Kenneth A. M C Cready v. JESSE WHITE , Secretary of State of Illinois

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3663
K ENNETH A. M C C READY ,
Plaintiff-Appellant,
v.
J ESSE W HITE , Secretary of State
of Illinois, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 03 C 5206—Paul E. Plunkett, Judge.
____________
S UBMITTED J UNE 29, 2005—D ECIDED A UGUST 2, 2005
____________
Before E ASTERBROOK , R IPPLE , and W ILLIAMS , Circuit
Judges.
E ASTERBROOK , Circuit Judge. The Driver’s Privacy
Protection Act of 1994, 18 U.S.C. §§ 2721-25, regulates the
disclosure and use of motor vehicle records. See Reno v.
Condon, 528 U.S. 141 (2000); Travis v. Reno, 163 F.3d 1000
(7th Cir. 1998). The statute’s caption—“Prohibition on
release and use of certain personal information from State
motor vehicle records”—conveys its gist. But Kenneth

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McCready thinks that §2721(b) compels the release rather
than the withholding of certain information, and he wants
the district court to direct the State of Illinois to hand over
tidbits that will help him conduct his business of buying
cars auctioned to satisfy mechanics’ liens.
McCready believes that some lien holders, with the con-
nivance or acquiescence of the state’s bureaucracy, remove
other security interests from title documents issued after a
sale. McCready sometimes purchases chattel paper rep-
resenting other loans (or seeks to know who holds paper
that he could purchase) and wants details from the state’s
records that would help him to trace or validate these loans
and associated security interests. Illinois will not provide
this information—whether as a matter of state law, or of its
understanding of §2721(a), does not matter. Section 2721(b)
says that information covered by §2721(a), and thus
ordinarily held in confidence, “shall be disclosed for use in
connection with matters of motor vehicle or driver safety
and theft”, and McCready contends that obliterating
security interests from title records is a form of “theft.” The
district court, however, concluded that “theft” takes its
meaning from what follows in the subsection. Here is the
context:
Personal information referred to in subsection (a) shall
be disclosed for use in connection with matters of motor
vehicle or driver safety and theft, motor vehicle emis-
sions, motor vehicle product alterations, recalls, or
advisories, performance monitoring of motor vehicles
and dealers by motor vehicle manufacturers, and
removal of non-owner records from the original owner
records of motor vehicle manufacturers to carry out the
purposes of titles I and IV of the Anti Car Theft Act of
1992, the Automobile Information Disclosure Act (15
U.S.C. 1231 et seq.), the Clean Air Act (42 U.S.C. 7401
et seq.), and chapters 301, 305, and 321-331 of title 49,

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No. 04-3663 3
and, subject to subsection (a)(2), may be disclosed as
follows [in 14 additional subsections].
The judge read this language as compelling disclosure
only to the extent required by one of the specified statutes.
Another possibility is that the word “shall” in subsection (b)
is permissive rather than compulsory. “Shall” is a notor-
iously slippery word that careful drafters avoid. See Bryan
A. Garner, A Dictionary of Modern Legal Usage 939-41 (2d
ed. 1995). See also Castle Rock v. Gonzales, No. 04-278 (U.S.
June 27, 2005), slip op. 12; Gutierrez de Martinez v.
Lamagno, 515 U.S. 417, 432-33 n.9 (1995). Subsection (b) is
captioned “Permissible uses”, not “Obligatory disclosures”,
which implies that “shall” equals “may” in this construction.
The list after the language “may be disclosed as follows”
covers the same sort of uses that follow the word “shall,” so
unless “shall” means “may” the state both must, and need
not, disclose the same information to the same person.
McCready concedes that none of the statutes listed in
subsection (b) requires states to disclose the information he
wants. Nevertheless, he insists that the introductory
portion of subsection (b) operates independently, that it
compels rather than permits disclosure, and that omitting
a security interest from a title document is “theft.” Before
we decide whether §2721(b) requires disclosure and, if so,
of what—issues of first impression in any federal court— we
must inquire whether people who want information under
§2721(b) have a private right of action. That, too, is an issue
of first impression and is the appropriate starting
point—though not, as the defendants suppose, because it is
“jurisdictional.”
Defendants moved to dismiss under Fed. R. Civ. P.
12(b)(1) for lack of federal subject-matter jurisdiction. En-
suring the existence of subject-matter jurisdiction is the
court’s first duty in every lawsuit. See Steel Co. v. Citizens
for a Better Environment, 523 U.S. 83 (1998). It is not hard

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4 No. 04-3663
to see a source of federal jurisdiction, however. McCready
makes a claim that rests entirely on federal law, and 28
U.S.C. §1331 supplies jurisdiction to entertain such claims.
That McCready’s theory may be bad substantively does not
negate that jurisdiction. See Bell v. Hood, 327 U.S. 678
(1946). Although some language in Merrell Dow
Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986),
might have been read to imply that the existence of a
private right of action under federal law is essential to
jurisdiction, the opinion in Grable & Sons Metal Products,
Inc. v. Darue Engineering & Manufacturing, No. 04-603
(U.S. June 13, 2005), slip op. 7-11, puts the kibosh on that
possibility. The district court had jurisdiction.
What is missing is not jurisdiction but a right of action.
The statute authorizes private suits, but only by persons
whose information has been disclosed improperly. 18 U.S.C.
§2724(a). McCready tries to avoid this limitation by invok-
ing 42 U.S.C. §1983, which may supply a claim against state
actors even when the underlying statute lacks express
authorization for private litigation. See Maine v. Thiboutot,
448 U.S. 1 (1980). Yet §1983 provides a remedy only for the
violation of “rights, privileges, or immunities secured by the
Constitution and laws” of the United States. “Rights” differ
from “broader or vaguer ‘benefits’ or ‘interests’ ” that some
statutes create. See Gonzaga University v. Doe, 536 U.S.
273, 283 (2002). The Court concluded in Gonzaga that the
existence of personal rights is essential to a claim under
§1983 and that the standard for “discerning whether
personal rights exist in the §1983 context” is no different
from that “in discerning whether personal rights exist in
the implied right of action context.” Id. at 285. This means
concretely that only statutes conferring rights on identifi-
able persons may be enforced through §1983—and the
Court added that “if Congress wishes to create new rights
enforceable under §1983, it must do so in clear and unam-
biguous terms—no less and no more than what is required
for Congress to create new rights enforceable under an

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No. 04-3663 5
implied private right of action.” Id. at 290. The Court’s
oxymoron—how can an “implied” right of action be phrased
in “clear and unambiguous terms,” when statutory silence
is what poses the question whether a right may be im-
plied?—does not detract from the point of its message:
§1983 depends on person-specific “rights.” What must be
“clear and unambiguous” in the Court’s formulation is the
right-creating language.
Any possibility that Gonzaga is limited to statutes that
rest on the spending power (as the law in Gonzaga did) has
been dispelled by Rancho Palos Verdes v. Abrams, 125
S. Ct. 1453, 1458 (2005), which treats Gonzaga as establish-
ing the effect of §1983 itself. Thus we must ask whether
§2721(b) creates person-specific rights, and it does not take
close analysis to produce a negative answer. The rule is
phrased in the passive (information “shall be disclosed”)
and does not say either who does the disclosing or who is
entitled to receive information. The list after the phrase
“may be disclosed as follows” does identify some benefici-
aries—but McCready is not among them, and the use of
“may” demonstrates that even those who are on the list lack
enforceable rights. The language on which McCready relies
stops well short of creating an individual entitlement along
the lines that the Court has deemed sufficient in the past.
Compare Cannon v. University of Chicago, 441 U.S. 677
(1979), and Franklin v. Gwinnett County Public Schools,
503 U.S. 60 (1992), with Touche Ross & Co. v. Redington,
442 U.S. 560 (1979), and Karahalios v. National Federation
of Federal Employees, 489 U.S. 527 (1989). “For a statute to
create . . . private rights, its text must be phrased in terms
of the persons benefited.” Gonzaga, 536 U.S. at 284 (inter-
nal quotation marks omitted). Section 2721(b) does not
confer entitlements on identified beneficiaries. Because
McCready is no different from any other member of the
public, so far as §2721(b) is concerned, he can’t use §1983 to
supply the private right of action missing from §2724(a).
A FFIRMED

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6 No. 04-3663
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-2-05

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