Jeremy Meyers, individually, and on behalf of all others similarly situated, Plaintiff-Appellant,
Oneida Tribe of Indians of Wisconsin, Defendant-Appellee.
February 19, 2016
from the United States District Court for the Eastern
District of Wisconsin. No. l:15-cv-00445-WCG - William C.
Griesbach, Chief Judge.
Manion and ROVNER, Circuit Judges, and Blakey, District
ROVNER, Circuit Judge.
response to the burgeoning problem of identity theft, when
Congress enacted the Fair and Accurate Credit Transaction Act
(FACTA) in 2003, it ineluded within the Act a provision to
reduce the amount of potentially misappropriateable
information produced in credit and debit card receipts. The
Act prohibits merchants from printing on the receipt the
credit card expiration date and more than the last five
digits of the credit or debit card number. The plaintiff in
this case, Jeremy Meyers, used his credit card to make
purchases at two stores owned by the defendant, the Oneida
Tribe of Indians of Wisconsin, and received an
electronically-printed receipt at each store that included
more than the last five digits of his credit card as well as
the card's expiration date. Meyers brought a putative
class action in the eastern District of Wisconsin for
violations of FACTA, but the district court determined that
the defendant, an Indian Tribe, was immune from suit under
the Act. Meyers appeals and we affirm.
facts in this case are simple and not in dispute. Between
February 6 and 17, 2015, Meyers used his credit card to make
purchases at the Oneida Travel Center and two Oneida One Stop
retail locations in and around Green Bay, Wisconsin. All
three stores are owned and operated by a federally-recognized
Indian tribe, the Oneida Tribe of Indians of Wisconsin. At
each store he received electronically printed receipts that
included more than the last five digits of his credit card as
well as the card's expiration date. He alleges that the
Tribe issued these receipts in violation of FACTA.
an amendment to the Fair Credit Reporting Act, states that,
[n]o person that accepts credit cards or debit cards for the
transaction of business shall print more than the last 5
digits of the card number or the expiration date upon any
receipt provided to the cardholder at the point of the sale
15 U.S.C. § 1681c(g)(1). FACTA defines a person as
"any individual, partnership, corporation, trust,
estate, cooperative, association, government or governmental
subdivision or agency, or other entity." 15 U.S.C.
sued the Oneida Tribe for these alleged violations of FACTA
and brought a putative class action on behalf of all credit
and debit card holders who, after June 3, 2008, received from
the Oneida Tribe, an electronically printed receipt that
displayed more than the last five digits of the person's
credit or debit card or displayed the card's expiration
date. The district court judge stayed a decision on
certification of the class. (R. 7).
Oneida Tribe moved to dismiss Meyers' claim for lack of
subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). The Tribe argued that Meyers' claims
were barred under the doctrine of tribal sovereign immunity
and that Meyers had not suffered an "injury in
fact" granting him standing under Article III of the
district court correctly noted, as we discuss below, that the
question of sovereign immunity is not jurisdictional.
Nevertheless, the court properly treated the Tribe's
motion to dismiss for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1) as a motion to
dismiss for failure to state a claim for which relief can be
granted under Federal Rule of Civil Procedure 12(b)(6).
See Miller v. Herman, 600 F.3d 726, 732-33 (7th Cir.
2010); citing Peckmann v. Thompson, 966 F.2d 295,
297 (7th Cir. 1992) (when appropriate, a court may treat a
motion filed under Rule 12(b)(1) as if it were a Rule
12(b)(6) motion). The district court subsequently concluded
that the Tribe was immune from suit and granted the motion to
dismiss. This appeal followed.
begin with the threshold matter of jurisdiction. Just
recently, the Supreme Court issued its decision in
Spokeo which considered whether a plaintiff had
adequately alleged injury in fact so as to acquire standing
under Article III of the Constitution. Spokeo, Inc. v.
Robins, 136 S.Ct. 1540 (2016). The plaintiff in that
case alleged injury pursuant to a different part of the Fair
Credit Reporting Act than the one at issue in this case-one
that set forth requirements concerning the accurate creation
and use of consumer reports. The Supreme Court explained that
in order to satisfy the "case or controversy"
requirement of Article III of the Constitution, the injury
must be both particularized and concrete and thus a plaintiff
cannot satisfy these demands by alleging a bare procedural
violation. Id. at 1550. It went on to explain:
Congress' role in identifying and elevating intangible
harms does not mean that a plaintiff automatically satisfies
the injury-in-fact requirement whenever a statute grants a
person a statutory right and purports to authorize that
person to sue to vindicate that right. Article III standing