very case on the breeze i'm guessing that you've probably made up your mind about one of these issues so rather than beat around the bush does the court wish to hear more about the waiver sovereign immunity or perhaps the issues of particular eyes and big and i without prejudging where we would come out on either i think you would probably agree that there are some factual differences between daniel and bassett so there are you really like to hear the whole nine yards from give you a receipt it's about six inches long and that is your entry ticket to the park and so the entry of course is a multi day entry so you typically you get it and you pop it on your dashboard because every time you go through the guard station then the guard sees a ticket allows you in so that's the situation here so and when stephanie daniel bought the entrance tickets she put it on the dashboard of her car and then when she entered and left the park for that or the next three days it was stayed on that part of a car right so how do we know that  fraud the no the third man a complaint does not state cispa civically because she doesn't know obviously when her identity was stolen but she does know that her credit card started to have beginning in june started to have  fraudulent charges that's not there in the proximity between the park visit and the in the from the credit card theft she just doesn't know between those two dates what might have happened exactly so it was about that's that was an exchange in discovery so discovery went on prior to the case being dismissed because after briefing the parties went through discovery and then only later was the case dismissed so is there anything else that will help me with your trace ability in apart from the temporal association that you're telling me was established in discovery but we don't know of course is who stole her identity or how it's done for you or that it had anything to do with this receipt or any receipt i mean we have anything else that tells us that no all we have is her is her bank telling her go through receipts and see if there was something that was that was there i mean basically after her identity was stolen her bank said stephanie go through your receipts see if there's anything that might be on in the you have where they might have printed too much and she said ok i'll do that went through and saw a look here's the park service saying nasty that and the bank said well i think you've got a case well there's a difference of course between what you need to allege to simply have standing and get in the court and then what you need to put forward to survive motion for summary judgment absolutely and we have an odd situation here where if i understand you correctly your view is you've alleged enough for standing by making the causal or prospective allegations but then i also hear you saying if you were on a motion for summary judgment which  not there's no other evidence that you have or would there be well we stopped discovery as soon as it was dismissed so you know that was the most in the last year so it's hard to say what we would be able to turn up but we haven't i mean the case is basically been held in states as well since you're not since dismissed order so in one set happens then we'll be able to pursue it more thoroughly with the bank for example to find out how it's done and who has done it and who went through i mean how they discovered the fraud where those charges are made that sort of thing but we didn't do any of that so it's oh well you're saying now is if you were to survive a dismissal based on standing that there is additional discovery that could be in the works that would put you in a different posture on a motion for summary judgment exactly i think the allegation in the complaint is that that there that is caused in part by the park service and so that's that's the basic difference between those cases where it is just the simple printing of the expiration versus something or is here there has been actually an actual identity theft and the waiver of sovereign immunity is now that's where the the jurisprudence has fallen down on both sides of the issue quite hard that of course the seventh circuit in burma's just said look if congress wanted to make it that way they made it that way in a couple district courts district cour including the judge waters in this case has said congress could not have possibly meant that therefore we're going to interpret to say that they didn't and i think what i would urge this court to do is is to follow the bombers court where they simply said you know look the supreme court has instructed us we can't do the remedial work for congress if congress does something in a little error in drafting or that in ten what they didn't intend that's up to congress and it's not up to the courts to say well i don't think you meant that well i don't think it's a question of what did they mean with course have a very high standard on the sovereign immunity there needs to be an explicit waiver and one thing i noticed in going through the seventh circuit decision is it didn't really trace the history of the statute and so when i look at the fair credit reporting act when it starts out we're really talking about consumer reporting agencies and then following that congress added a specific provision with respect to agencies or departments of the united states and so there was a very specific it seems to me waiver under a specific section and then the next thing we know where they're using broad terms like person so my my sense in reading all this is that we can't say would you lead you back to a what's the standard so do you have any explanation for why congress would be very explicit in adding the united  on section you j but then all the other references are to general person definition with you know government agency you know i think your honor that's exactly right so in the nine hundred ninety six amendments where they added the bit about monetary damages and they added the bit about persons which were for section sixty one a section but specifically in use subsection j and you subsection l they limit there that they recognizes that there's other provisions other subchapter provide remedies but they apply here they say that they provide exclusive remedies just to this section so the whole deal about whether your agencies are providing to the f b i i think applies only to that section to section you but then when you but that section has adopted  make sense the first time out that they're talking about a criminal penalty or remedy against the united states when that doesn't make any sense right well not necessarily but it's not the only time that there's that that that's been a put  the government has put in this is you know a criminal remedies against united states and actors of the united states there are supposed civil i mean there are civil remedies under the original act as well you know ok would you just kind of wind  you say it's not the first time but is there ever a situation where we have criminal remedy against an agency or a government as opposed to an employee you know ok you know this strictly for actors  issue really sort of cross cutting great importance to the government given the potential what abilities that are at issue and i think my friend correctly noted that pretty much impossible to figure out how there could be any harm when the plaintiff actually keeps the receipt and then if you couple that with congress is express finding in the debt that credit card clarification act which was relied on by both the seventh and the second circuits where congress says look the failure to truncate the expiration date without anything else experts does not and to the possibility of harm but seems like isn't it important not only that he kept the receipt but that the merchant copy the allegation is that the merchant copy didn't have a long number although it's best measure we've got for traceability what do they have to show and i think that if i mean i don't it's hard for me particularly given congress finding about the lack of that results from the printing of the expiration date sort of per se as opposed everything else i'm not sure what it would be but here the first amendment complaint does and i don't know whether it's been superseded you know in that respect the first amendment complaint says that it was a two month interval between the time of the fraudulent charges and the print of the receipt there is no point of specifically says there's no other way to see it plain of kept a receipt there ought to be some i mean it's possible someone the one might be able to allege look th circumstances in which someone has figured out how to use this credit card expiration date there's some very close temporal sort of association to where you know  father how do you have whoever when i mean i think the problem i'm having is that you're out of court before you can even get this and so i mean you know it's not nothing but the allegations here two months seems to me to be not a very long time well no you want to it's not that alone but it gives him if you for kept your credit card i mean the whole theory of all of this statute was that you know this goes back to dumpster diving whether you agree with it or not though the notion that you you know put it in your dashboard you don't normally put your restaurant receipt in your dash board but an entrance receipt is a little bit if you want that's not pled in the complaint there's nothing about putting receipts on dash boards in this complaint i mean i still think there'd be plenty of difficulties after that what if the what if that park ranger to see it and there's no problem you run i still think that there would be a problem i mean congress did find and i think that the second and the seventh circuit correctly said when congress finds that there is no harm resulting from the use of the expiration date without any of the other information that's supposed to be truncated that there's no harm that that absent some significant showing to the contrary there's not going to be any harm and maybe some point of we're not saying but you know what and that's sort of safe harbor period where there's no harm and then we're back to normal i mean it's of kind of an odd situation the way you read through that it's like ok well forget the past but now that's over on to the future it seems to me we have it on there in the statute i'm not sure you can believe it is a harm you question what in your view would be minimal standing out i think that if for example someone had sort of within three hours started using you know the credit card you know sort of or the debit card well how about the allegation in what would be and by the way i think this is the third amendment complaint that we're working from not that you mention the first amendment right but i think it's a thirty minute complaint so what if there were a foursome and a complaint that said in this particular case the park service required me to display this thing on my dashboard in that way it's pretty different than a restaurant receipt because you're using it as a ticket right maybe your honor that's not been pled me we're dealing with the y but in response to judgment you and question i think it's a question you're now getting from all three of us why wouldn't that be sufficient if there were sufficient tempore a proximity i still again i mean i  mean i don't know that i've got a whole lot more to say than the fact that when congress at you know actually says that this portion of the credit card bill just the expiration date standing alone doesn't doesn't materially enable anyone to make false charges that is very significant l t v that can be overcome but as a starting point and it doesn't knowledge by the rest of the statute i mean you know this is the same provision the talks about the truncation you know the numbers and nobody's saying that's not important it's just this business about the expiration date standing alone that that's the only thing we're talking about and that's why i'm sort of reluctant given congress finding to posit exactly how you could get around that i'm willing to assume that there could be a circumstance in which you will e have evidence to somehow somebody did this but here even if you didn't have the finding all we have is an allegation that somebody had a receipt printed out with only the expiration date and they kept  correctly if you can prove you can win then you can get standing with respect to the expiration date i think that's a trick question you're right i mean i'm just trying to interpret what you and i know i appreciate that your hon r was just being flip the you know we obviously you don't have to prove that you can win at the standing stage and we appreciate that we do think that you've got to do something more than to say that may be the scullery and it's not the sky every against the united states remember i mean it's a like the united states isn't going to be able to air anything to say the not i mean council referred to finding out more about when various transactions occur that's something you know that like a plaintiff can do you know in the course of jew diligence and you come you prepare a complaint you know if attachments you show ok here's what i found out you don't need the skull for free to do that and that's what i don't understand is that there's nothing when you ask my friend what it would be that he could in the future produce that's what he referred you and it may well be is that kristen said when you talk to park rangers or supervisors they say yeah we tell people leave it on the dashboard because it's a lot easier and we don't have to stop you every time you go through the little booth at the entrance to the national are so you know where you're discounting discovery that hasn't taken place he was talking about discovery that could take place down the road of course you need to get  standing to do that well i guess what i'm saying is that it's under its own twamley if you want to come in and bring a lawsuit that you don't say maybe this happened i kept the receipt but who knows you go and you prepare your case you have some reason to think it may you still may lose in the end you're not going to necessarily win because of that but you have but you feel like put together like the showing that indicates some reason to think that there could be one that it that it's not just pure sort of conclusory speculation but here when you've kept the receipt yourself you have a congressional finding be not be dispositive but it is significant and there's nothing to fill the get out except maybe if my bank could tell me more i think of the employment cases where something happens that someone considers an adverse action or that they take a position and then three six nine months go by and waves and then you're fired and you say it's my belief that there's a connection between a and b in my firing and we say well that that may be enough to get you by an initial allegations but it might not be sufficient in the end so here we're talking about a two month close temporal connection sort of maybe for like have found out where some of these charges were made you know and so forth but to just come in and say that at some point and afterwards there was you know sort of some and identified you know false charges you know and that's all there is we don't even know if the public that the card like leader got cancelled all we know is that there are some charges i think  gets enact it in one nine hundred seventy and that is not actual the the the seventh circuit describes that as a waiver that's not even a waiver at that time there's no right of damages against persons at that point you have the you know presumably an e p a waiver but this is not a waiver as such at all in one thousand nine hundred seventy and most of what the statute is dealing with at that point and the people who were subject to damages were the credit reporting agencies so you know you know scroll ahead you know twenty six years tonight hundred ninety six and then congress it revamps in a major way th statute and an ends sort of all sorts of new substantive obligations and also for the first time put him on the privet the two provisions the two damages provisions that are at issue here and the sort of so there's no indication look at this because this is the first time we have a wait for so yes of course you pla that there's a night hundred seventy definition if there weren't we couldn't be here so the only question is it is there is that definition sort of like willy nilly sort of controlling because unless one thinks it they knew it was there they didn't think it was a waiver of sovereign immunity at that point and so the question is by using the term person in two provisions the dewberry community did congress necessarily inevitably import the meaning of person from earlier and to do that is of have to look ok we've got sort of this is an arrangement in which like the united states and states local governments foreign governments get subject to criminal penalties punitive damages all of which there's not a true suggestion in the legislative history th the scored as having a ten million dollar effect on the federal government over a period of five years and that's attributable to increased cost to the judicial system and to the cost of bringing in for suggestion about sort of at the tional cost to the treasury from damages when i mean if he extended to a concessionaire to a concession here much as well as i understand was involved in the submitted case yes it wasn't that a about us it wasn't a suit against the government but there are a lot of examples where there's a concessionaire in a national park so what about that the answer is no it's covered by the same immunity to prevent harm only a concessionaire in the park service and others as i understand those contracts as those are independent third party contractors that ron  times but you're talking about as an independent contractor and they're not covered by the toward points that you've answered the question right so are your home so you've got sort of a total absence of reference you've got an expectation that this isn't going to add a lot onto the sort of two third will government's budget concerns and all this is in very marked contrast to the privacy act because there already is a comprehensive scheme that's designed to regulate information to a credit reporting agency the difference between the outcomes under the privacy act and under a figure of under the privacy act you can get an action for injunctive relief if the government that one which deals sort of specifically with the federal government and it contains its own specific damages provision and again i mean it's just one of many data points that tells look in that one congress did exactly what you would expect it to do when it's waving the munity of the united states and there's no criminal in that section just punitive right very in very specified circumstances yes on the and again another sort of strange aspect of this is that this nine hundred ninety six legislation on the fair credit reporting act like you know fundamental changes come two months after the supreme court's decision and seminole tribe which i mean i can remember her son all tribe and what a sort of big deal well that was at the time were a congress that said unconstitutional so there was no problem but again one would have thought that in the wake of seminole tribe congress would not have cavalierly just enacted a statute that purported to subject states to  e and compensatory and statutory damages you know but again it's just there's just you know data point after data point after data point that tells you that this can't be the case you know wrap it up time here i know that's rebuttal if you needed a little more you can tell me because we were overly generous with the government here because we want to get to both issues thank you your honor just as i will address first the the the notion of what is what suffices under well basically and so your honor at the time this complaint was filed the state of the laws not what it is today that and so at that time you know in most of the united states a simple allegation of a statutory violation and that with the statutory damages sufficed there wasn't the subsequent you know just shows decisions about that a simple printing of the receipt was not sufficient so the you know even this year earlier this year the two district of arizona cases are exact opposite points on that whether or not it was sufficient just to have the reason the receipt for  a statutory violation so your honor that at the time of the complaint it was that simple allegation that there were there was a statutory violation and it caused  and so far as we know it's the only reason that that stephanie daniels identity was stolen there's no other thing that she did anywhere here there they would expose or accept this and so that's the reason the basis for the complaint when discovery if you're allowed discovery at the trial level would it be possible to determine whether this in this timeframe from the time she submits the debit card to the park service at the entrance to when the first instance of the dignity for to establish whether that was the sole and only time that was conceived to be an allegation of a statutory violation and that the state of the law was different i mean when the complaint was filed and it was only subsequent to that that these issues have arisen in frankly in briefing here and so i mean had i had i the opportunity to take advantage of the cases that have decided in this calendar year the complaint would look different and obviously the preparation for the complaint would have been different and had i have opportunity to event and for example those are issues that would it would have been added into the complaint that but i think that regardless it's it very very difficult to to show in a complaint that you know you're going to win unless you have some sort of criminal you know some sort of  criminal case where someone has been proven guilty already else how are you how can you establish that civil liability of print i think we all would agree that we're a long way from a short simple statement of a coin true story seat i think how they printed the receipt is something you know in discovery found out that they they brought back some old machines that they were using for a while and hadn't had them reprogrammed and therefore you know they started printing receipts of i mean there was he started printing expiration dates again you know things like that and you know where they where that information went you know those that's information i don't know we haven't figured out on discovery what the park service was doing with you know with their version of the receipts so those are issues that we don't know about that but their version of receipt didn't have the other number on it right the merchant copy wasn't didn't violate the statute as i understand it well i've never seen that came out in briefing here it didn't come out it there but i don't want to catch you off guard and i frankly don't remember that's why but regardless the it it would seem an impossible standard and i think it i think this that the complaint as it stands mute stickball standard i'm not sure i can sure i can prove that i'm going to win in a complaint and regarding the waiver sovereign immunity i think it's important that two things is that the one thousand nine hundred six amendments added both us section you and also added to the dollar damages they did at the same time and they didn't i mean they didn't bother changing it and when later when they when they did the receipt clarification act remember that was just another one your grace period edition so when they when they brought in fact in two thousand and three that they automatically put in a three year grace period to begin with and then the clarification actus added another year of grace period but they didn't change fact you know they didn't change the whole notion that expiration dates don't matter anymore it's still the law is still against the law to print the expiration dates on the receipt and so if congress had you know as if they really meant  that expiration dates don't mean anything then they should have changed the law but they didn't it will in fact it would came back into effect after the two thousand and seven i mean the two thousand and sunset of the clarification act the expiration dates are again illegal and the other thing too is in that sort of that the parallel little statue tory scheme under the equal credit opportunity act in the truth in lending act you know the courts have found that the equal credit opportunity act waive sovereign immunity and it's the i mean it's the same as as as figaro and it's only in the truth in lending act where there is an express an explicit preservation of immunity so the same the same sort of situation exists and in the fair credit reporting act as it does in the equal credit opportunity act and person don't have any problem finding that there's a waiver seven minute a there but here you know it's the warmest line which is similar to the book equal credit opportunity act findings like well i don't see it so it's a waiver and you know unless i think that if congress had wanted immunity and then and remember congress hasn't done anything since varmus you know congress is out the opportunity to put it in there and they haven't so maybe congress is ok with it and you know if given the  given that we have to assume that congress knew what they're doing and we can second guess a guess and all we want but that i think the plain fact is is that they put the language in there the course of in force that language and so far there's there's only the seventh circuit has been there and congress hasn't anything to you know it's rescinded or to change it thank you me the question thank both of you for argument's very interesting legal issues here the case of daniel versus the national park service is submitted in wagering thank you