Easterbrook on the Gonzaga “Oxymoron”; Roberts on Overturning Thiboutot

The Seventh Circuit has held that the Driver’s Privacy Protection Act of 1994 does not give a businessman a right to records that he wants to help him buy cars auctioned to satisfy mechanics’ liens, and thus is not enforceable by him under 42 U.S.C. section 1983.

The opinion, written by Judge Frank Easterbrook (Reagan) and joined by Judges Kenneth Ripple (Reagan) and Clare Ann Williams (Clinton), applies the test of Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), but quips about the “oxymoron” of searching for “clear and unambiguous terms” in silence.

Facts/Legal Claim. Plaintiff McCready sought to compel disclosure of records under 18 U.S.C. § 2721(b), which provides the exceptions to the statutes’ privacy provisions, including that information “shall be disclosed for use in connection with … theft.” McCready claimed that he needed the information to determine whether valid security interests were unlawfully removed from a vehicle’s title.

Opinion. After describing the general requirements of Gonzaga for finding a “right” enforceable under section 1983, the court observed:

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 implied?--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.

After concluding that the Gonzaga test applies to all statutes, not only those enacted under the Spending Clause, the court found that section 2721(b) lacks such “person-specific ‘right,’” as it is “phrased in the passive … and does not say either who does the disclosing or who is entitled to receive information,” and the list of beneficiaries identified subsequently does not include the plaintiff. “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).”

Commentary. The observation that searching for clear and unambiguous terms in silence is an oxymoron is a recognition that the Supreme Court’s tests for implied rights of action and section 1983 rights are designed to make those tests very difficult to meet – nearly impossible, now, in the implied right of action context, and heading in that direction for section 1983.

One of the John Roberts’ memos recently released from his days in the Department of Justice 23 years ago discloses the intent behind those tests. In a 1982 memo on proposed legislative changes to section 1983, Roberts refers to the “damage created by Thiboutot” (Maine v. Thiboutot, 448 U.S. 1 (1980), which held that statutes may be enforced through section 1983. He describes approaches to restricting the statutes enforceable under section and suggested: “Our legislative proposals could perhaps even be cast as efforts to ‘clarify’ rather than ‘overturn’ that decision,” implying that the intent was the latter.