# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 2020 Decided September 24, 2021

No. 19

- 5321

K LINT L. M OWRER & F RED W EAVER , J R

. ,

A PPELLANTS

v.

U NITED S TATES D EPARTMENT OF T RANSPORTATION , ET AL .,

A PPELLEES

Appeal from the United States District Court for the District of Columbia (No. 1:12

- cv

- 01158)

Charles R. Stinson argued the cause for appellants. With him on the briefs was Paul D. Cullen, Jr.

Caroline D. Lopez , Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Mark B. Stern , Attorney, Steven G. Bradbury , General Counsel, U.S. Department of Transportation, Paul M. Geier

, Assistant General Counsel for Litigation and Enforcement, Joy K. Park , Senior Trial Attorney, and Charles J. Fromm , Deputy Chief Counsel, Federal Motor Carrier Safety Administration.

Before: W ILKINS and K ATSAS , Circuit Judges , and R ANDOLPH , Senior Circuit Judge

.2
Opinion for the Court filed by Circu it Judge K ATSAS

. Concurring opinion filed by Circuit Judge K ATSAS

. Opinion concurring in part and concurring in the judgment filed by Senior Circuit Judge R ANDOLPH

.

K ATSAS , Circuit Judge : The Fair Credit Reporting Act (FCRA) governs the release of consumer reports by consumer reporting agencies. This appeal presents the question whether the Federal Motor Carrier Safety Administration acts as a consumer reporting agency by distribut ing s afety record s of commercial truck drivers to prospective employers , as required by an other federal statute . We hold that the Administration does not act as a consumer reporting agency in doing so

, and we therefore affirm the dismissal of this FC R A damages action

.

I

A
Congress enacted FCRA to “ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr , 551 U.S. 47, 52 (2007)

. To those ends, FCRA comprehensively regulat es consumer reporting agencies . Three of its obligations are directly relevant here. First, in preparing any consumer report, a consumer reporting agency must follow reasonable procedures to ensure that the report is as accurate as possible

. 15 U.S.C. § 1681e(b). Second, a consumer reporting agency
must investigate the accuracy of its records about a consumer upon the consumer’s request. Id. § 1681i(a)(1)(A) . Third

, if a consumer reporting agency includes in a consumer report any information t hat the consumer disputes, the report must note the dispute and summarize the consumer’s position. I d. §§ 1681c(f), 1681i(b)

– (c).3

FCRA defines its key terms “consumer reporting agency” and “consumer report.” A “consumer reporting agency” is

“ any person w hich, for monetary fees ... regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties. ” 15 U.S.C. § 1681a(f ). A “consumer report” is any communication by a consumer reporting agency that meets two further criteria. First, the communication must bear on a consumer’s “ credit worthiness, credit standing, credit capacity, character, general reputation, personal c haracteristics, or mode of living .” Id. § 1681a(d)(1). Second

, the report must “ serv [e] as a factor in establishing the consumer ’ s eligibility ” for one of several purposes , including “ employment purposes, ” i d. § 1681a(d)(1)(B)

, which means “evaluating a consumer for employment, promotion, reassignment or retention as an employee,” id. § 1681a(h)

. A “consumer” means an “individual.” I

d. § 1681a(c).

FCRA authorizes the award of money damages to consumers injured by certain violat ions of the statute. It imposes liability for actual damages on “[a]ny person” who negligently violates FCRA. 15 U.S.C. § 1681o(a)(1). It imposes liability for actual or statutory damages on “[a]ny person” who willfully violates FCRA. Id. § 1681n(a)(1) (A). And it defines “person” to include any “ government or governmental subdivision or agency. ” I d. § 1681a(b).

B

Since 199 8 , Congress has required t he Department of Transportation to collect information on the safety of commercial motor carriers and drivers. See 49 U.S.C. § 31106(a)(3)(B). The Department stores this information in a database called the Motor Carrier Management Information4
System (MCMIS)

, which it administers through the Federal Motor Carrier Safety Administration

. See Privacy Act of 1974: System of Records, 65 F ed. R eg . 83,124, 83,124

– 25 (Dec. 29, 2000). The Administration obtains m uch of its information from state governments, which submit it as a condition of

rece iving federal grants. 49 U.S.C. § 31102(c)(2)(L), (P); 49 C.F.R. § 350.20 7(a)(12)

.
The MCMIS contains a wide range of information on commercial drivers, including crash reports and re cord s of roadside inspections

. See 65 F ed. R eg . at 83,125. The Administration uses this information to guide the operation of its Motor Carrier Safety Assistance Program

, see i d. , which involves grants to states and other political jurisdictions to improve motor

- carrier safety, s ee 49 U.S.C. § 31102 ; 49 C.F.R. § 350.1 01 et seq. The agency also uses the information to guide enforcement actions, see 65 F ed. R eg . at 83,12 4

– 2 5

, which include placing out of service commercial drivers who pose an imminent safety hazard

, 49 U.S.C. § 521(b)(5)

. In 2005, Congress directed the Administration to make certain “reports contained in the [ MCMIS ]” available to pre

employment screeners for the motor

- carrier industry. Safe, Accountable, Flexible, Efficient (SAFE) Transportation Act, Pub. L. No. 109

- 59, sec. 4117(a), § 31150(a), 119 Stat. 1144, 1728 (2005) (codified at 49 U.S.C. § 31150(a)). The Administration implemented this directi on by creating the Pre

Employment Screening Program (PSP) , which allows prospective employers to access crash and inspection reports

on commercial drivers. See Privacy Act of 1974; System of Records Notice, 75 F ed

. R eg . 10,554, 10,556 (Mar. 8, 2010). The PSP charges a fee for these records and provides them only with a driver ’ s written consent. Id.5
The SAFE Transportation Act require s t he Administration to satisfy four conditions before releasing MCMIS records to prospective employers. First, the Administration must ensure that any information is released “in accordance with [ FCRA ]

a nd all other applicable Federal law.” 49 U.S.C. § 311 50(b)(1). Second, it must ensure that the driver consents to release of the information. Id. § 31150(b)( 2 ). Third, it must ensure that the screener does not release the information to any other person. Id. § 31150(b)(3). Fourth, it must provide a procedure for the driver to correct inaccurate information in the System

. Id. § 31150(b)(4).

To comply with the last requirement, the Administration
creat ed a system called DataQs, which allows drivers to challenge information in their PSP reports. Pre

- Employment Screening Program, 77 F ed. R eg . 42,548, 42,551 (July 19, 2012). DataQs forward s challenges to the state that submitted the contested information , and t he state then decides whether
to modify or remove it

. Id.

C

Klint Mowrer and Fred Weaver are commercial truck drivers who received citations for violating state vehicle

- safety laws. Mowrer received a citation because his “rear drag link ” ha d too much “ play by hand pressure,” and Weaver received a citation for fail ing to obey a “ direction to be weighed .” J.A. 213

, 2 15. S tate officials reported these citations to the Administration for inclu sion i n the MCMIS. After state courts dismissed misdemeanor charges arising from the citations , the drivers asked the Administration to remove the m from the MCMIS. The Administration forwarded the requests to the relevant state agencies, which declined t o remove the citations. The drivers later authorized the release of their PSP reports to6 prospective employers . They now allege harm from the inclusion of their citations in those reports

.

Mowrer sued the Administration in 2012. Joined by three other drivers and a trade association, he raised claims under FCRA, the A dministrative P rocedure A ct , and the Privacy Act. Weaver filed a similar action in our court, which we transferred to the district court. Weaver v. FMCSA

, 744 F.3d 142, 148 (D.C. Cir. 2014) . In 2014, the drivers filed a consolidated complaint , which raised FCRA and APA claims but no Privacy Act claim . The drivers sought both damages under FCRA and prospective relief under the APA.

In 2015, the Administration moved to dismiss the complaint . The district court denied the motion. As relevant here, it held that FCRA waives federal sovereign immunity from damages for FCRA violations

. Owner

- Operator Ind ep

. Drivers Ass’n v. Foxx , Nos. 12

- 1158, 1 4

- 548, 2015 WL 13651262

, at *4 n.3 ( D.D.C. Mar. 10, 2015).

In 2016, the district court dismissed the complaint for lack of standing. Owner

- Operator Indep. Drivers Ass’n v. DOT

, 211 F. Supp. 3d 252, 2 61

– 62 (D.D.C. 2016). We affirmed in part and reversed in part. 879 F.3d 339 (D.C. Cir. 2018). First, we held that Mowrer and Weaver had Article III standing to seek damages based on the Administration’s release of their safety rec ords to prospective employers

. Id. at 345. Next , we held that the d rivers and their co

- plaintiffs lacked standing to seek injunctive relief, as the MCMIS no longer contained any disputed information. Id. at 346

– 47

. W e thus remanded for further proceedings on the damages claims under FCRA. Id. at 347.

In May 2018, the drivers moved to amend their complaint
to seek injunctive relief and to resurrect the Privacy Act claims that they previously had asserted individually

. The district7

court denied the motion on the ground that our prior decision had foreclosed injunctive relief, but it invited the drivers to add Privacy Act claims in a separate motion

. Owner

- Operator Indep. Drivers Ass ’ n v. DOT , 316 F. Supp. 3d 201, 206 (D.D.C

. 2018)

. The drivers again moved to add those claims in July 2018 . But after receiving briefing on the issue, the court denied that motion as well

. I t reasoned that the drivers had unduly delayed in seeking to revive the ir Privacy Act claim s and, in the alternative, that the drivers had waived the claim s by omitting them from the ir consolidated complaint. Mowrer v. DOT , 326 F.R.D. 350, 353 (D.D.C. 2018)

. T he operative complaint thus seeks relief only under FCRA.

The drivers allege that the Administration violated FCRA in three ways: by not following reasonable procedures to ensure that their PSP reports were as accurate as possible, by failing to invest igate the accuracy of their PSP reports upon request, and by refusing to add a statement of dispute to their PSP reports. T he drivers seek actual or statutory damages

.
The district court dismissed the complaint on the ground that the Administration , in re leasing MCMIS records as required by the SAFE Transportation Act, i s not a “ consumer reporting agency” under FCRA

. Mowrer v. DOT

, No. 12

- 1158, 2019 WL 4418747 , at *6 ( D.D.C. Sept. 16, 2019).

On appeal, the drivers challenge both the dismissal of their FCR A claim and the denial of their July 2018 motion to amend. W e have appellate jurisdiction under 28 U.S.C. § 1291.

II

Before reaching the merits, we consider whether Congress has waived the federal government’s sovereign immunity from damages claims under FCRA.8

A waiver of sovereign immunity “must be unequivocally expressed in statutory text.” FAA v. Cooper , 566 U.S. 284, 29 0 (2012) (cleaned up) . Any ambiguities must be “construed in favor of immunity,” and ambiguity exists if there is a “plausible interpretation of the statute that would not authorize money damages against the Government.” Id. at 290

– 91 . At the same time, waiving sovereign immunity does not require “magic words.” Id. at 291. We instead require only that the waiver

“ be clearly di scernable from the statutory text in light of traditional interpretive tools. ” Id. FCRA meets this standard. It provides that “[a]ny person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer i s liable to that consumer” for either “actual damages” or statutory “damages” within specified dollar ranges. 15 U.S.C. § 1681n(a)(1)(A). “[T]his subchapter” refers to subchapter III of chapter 41 of Title 15, which contains FCRA. See id. §§ 1681

– 1681x. Likewise, FCRA provides that “[a]ny person who is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer” for “actual damages.” Id. § 1681 o (a)(1). FCRA also defines the term “person”

— it states that “for the purposes of this subchapter ... [ t ] he term ‘person’ means any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.” Id. § 16 81a (a)

– (b). For willful violations, FCRA provides one cause of action against “[a]ny person,” id. § 1681n(a)(1)(A), and an additional cause of action against any “natural person,” id. § 1681n(a)(1)(B).
Together, these provisions speak clearly enough to waive federal sovereign immunity. FCRA defines “person” to include “any ... government”

— a term that, as used in a federal statute, surely include s the federal government. FCRA makes the definition generally applicable to subchapter III, which9
includes its private causes of action. Through those causes of action, FCRA imposes monetary liability on “any person” who willfully or negligently violates its terms. And it distinguishes between liability that runs against “any” person and liability that runs only against “natural” persons, reflecting a calibrated approach to the question of which persons should bear which liabilities. For these reasons, the Seventh Circuit correctly held that FCRA waives federal sovereign immunity. Bormes v. United States , 759 F.3d 79 3 (7th Cir. 2014).

The Fourth and Ninth Circuits have reached the opposite conclusion, Robins on v. U.S. Dep’t of Educ. , 917 F.3d 799 (4th Cir. 2019) ; Daniel v. Nat’l Park Serv. , 891 F.3d 762 (9th Cir. 2018) , but their reasoning is unpersuasive

. These courts noted that FCRA contains a second, more specific waiver of sovereign immunity. Robins on , 917 F.3d at 803

– 04; Daniel , 891 F.3d at 771

– 72. Section 626 of FCRA requires consumer reporting agencies to disclose certain information to the Federal Bureau of Investigation, 15 U.S.C. § 1681u(a)

– (b); permits the FBI to disseminate that information to other federal agencies in limited circumstances, id. § 1681u(g); and imposes damages liability on “[a]ny agency or department of the United States obtaining or disclosing any consumer reports, records, or information contained therein in violation of th is section,” id. § 1681u(j). But t here is a good reason why section 626 specifically targets federal agencies, as only they may lawfully receive consumer information under it. The fact that section 626 imposes liability only on federal agencies thus says little about whether FCRA’s other causes of action cover the United States through broader language encompassing “any ... government.”

The Fourth Circuit reasoned that if FCRA’s definition of “person” applied to its primary causes of action, then a seriou s constitutional question would arise. Robinson , 917 F.3d at 805.10 For if those causes of action run against “any ... government,” they would cover state governments even though Congress cannot abrogate state sovereign immunity under the Commerce Clause. Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 47 (1996)

. But even if FCRA unconstitutionally imposes damages liability on state governments, there is no constitutional bar to Congress waiving the sovereign immunity of the federal government. Moreover, although ambiguous statutes do not abrogate state sovereign immunity

— just as they do not waive federal sovereign immunity

— that doe s not license courts to disregard the clear terms of unambiguous statutes. Thus, when Congress subjected any “public agency” to damages liability under the Age Discrimination in Employment Act, and separately defined “public agency” to include states, it managed to extend ADEA liability to the states

— even though the extension proved unconstitutional. See Kimel v. Fla

. Bd. of Regents , 528 U.S. 62, 73

– 74 (2000). So too here, when Congress subjected any “person” to damages liability under FCRA, and separate ly defined “person” to include “any ... government,” it acted with sufficient clarity to reach federal and state governments.
FCRA also subjects covered persons to punitive damages, 15 U.S.C. § 1681n(a)(2)

, criminal liability, id. § 1681q

, and civil enforc ement actions by the Federal Trade Commission, id. § 1681s(a), and the states, id . § 1681s(c). According to the Fourth and Ninth Circuits, the consequences of applying these provisions to the federal government would range from implausible to absurd. So, the courts concluded, FCRA’s definition of “person” must be limited to its “substantive” rather than its “enforcement” provisions. See Robinson , 917 F.3d at 806; Daniel , 891 F.3d at 770

– 7 1 . But some of these consequences are hardly absurd. For instance , Congress may impose punitive damages on government entities, so long as it does so “expressly.” City of Newport v. Fact Concerts, Inc.

, 453 U.S. 247, 260 n.21 (1981) . And the federal government11
routinely investigates itself, which is the primary missio n of various Inspectors General. As for the federal government imposing criminal liability on itself, or subjecting itself to investigation by the states, we may assume that contextual considerations would prevent application of the “person” definition as written. See Util. Air Regul

. Grp. v. EPA , 573 U.S. 302, 320 (2014) (defined term “may take on distinct characters from association with distinct statutory objects”). But no such contextual considerations apply with respect to sovereign immun ity, where the only interpretive constraint is that Congress waive it unambiguously. Finally, there is no arguable basis for limiting FCRA’s definition of “person” to substantive but not enforcement provisions ; the definition by its terms is “applicable for the purposes of this subchapter”

— i.e. , subchapter III, which contains the entire statute. 15 U.S.C. § 1681 a (a). So once it is conceded that “any ... government” includes the United States

— which is necessary to make FCRA’s substantive prov isions apply to the federal government

— there is no basis for denying that the same definition governs FCRA’s private damages actions.

Finally, the Ninth Circuit reasoned that FCRA’s statutory history counsels against reading its broad definition of “person ” to effect a sovereign

- immunity waiver. See Daniel

, 891 F.3d at 774

– 76. As originally enacted in 1970, FCRA contained its current definition of “person,” but imposed liability only on “[a]ny consumer reporting agency or user of information” who negligen tly or willfully violate d the Act. Pub. L. No. 91

- 508, tit. VI, §§ 616

– 6 17, 84 Stat. 1127, 1134 (1970). So, the argument goes, the definition of “person” in the 1970 statute cannot have waived sovereign immunity. We fail to see the relevance of that con clusion , for Congress later broadened FCRA’s damages actions to run against any “person,” C onsumer Credit Reporting Reform Act of 1996,12

Pub. L. No. 104

- 208, § 2412, 110 Stat. 3009

- 426, 3009

- 446, which is the text that we must construe and apply here. 1

For these reasons, we hold that FCRA waives federal sovereign immunity from its damages claims

.

III
To qualify as a “consumer reporting agency” regulated by FCRA, a person must regularly engage “ in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties. ” 15 U.S.C. § 1681a(f). The drivers contend that the Administration is a consumer reporting
agency because it assembles accident and vehi cle

- inspection reports in the MCMIS and then furnishes them to prospective employers through the PSP

. The drivers argue that the Administration violated FCRA by not using reasonable procedures to ensure the accuracy of the se records, id. § 1681e(b) , by fa iling to investigate the accuracy of their records upon request, id. § 1681i(a)(1)(A ), and by failing to

1 We do not share the Ninth Circuit’s confidence that the 1970 statute effected no waiver of sovereign immunity. For example , the statute imposed damages liability on any “user of information” who negligently or willfully violated its terms, Pub. L. No. 91

- 508, tit. VI, sec. 601, §§ 616

– 6 17, 84 Stat. at 1134 ; it permitted consumer reporting agencies to disclose consumer reports to an y “person” who the reporting agency believed intended to use the information for credit or other specified purposes, id. § 604(3), 84 Stat. at 1129; and it defined “person” to include any government or government
agency, id. § 603(b), 84 Stat. at 1128. Th e 1970 Act thus appears to waive sovereign immunity insofar as it uses consumer information received from a credit reporting agency, though we need not definitively resolve that question.13
note to prospective employers that the drivers disputed the accuracy of the citations at issue, id. §§ 1681c(f), 1681i(b)

– (c).
In our view, the governm ent is not a “ consumer reporting
agency ” in its administration of the MCMIS and the PSP. For the sake of argument, we may assume that driver

- safety records are “consumer reports” within the meaning of FCRA. But while the SAFE Transportation Act requires the Administration to make such records available to prospective employers, the Administra tion neither assembles nor evaluates the records for that purpose. To the contrary, it assembles and evaluates driver

- safety records in the MCMIS, see 65 Fed. Reg. at 83,124

– 25, and does so to “support safety regulatory and enforcement activities” require d by Title 49, see 49 U.S.C. § 31106(a)(1). The Administration thus uses MCMIS data to inform its administration of the Motor Carrier Safety Assistance Program, see 65 Fed. Reg. at 83,125, which provides some $300 million in annual grants to states and ot her jurisdictions for safety

- related activities, see 49 U.S.C. §§ 31102, 31104. Likewise, the Administration uses MCMIS data to inform its own enforcement activity. See 65 Fed. Reg. at 83 ,124

– 25

. I t has assembled and evaluated MCMIS data for these purpo ses at least since 1998

, see Pub. L. No. 105

- 178

, sec. 4004(a)

, § 31106, 112 Stat. 107

, 398

– 400 (1998)

— seven years before the SAFE Transportation Act authorized the Administration to release driver

- safety records to prospective employers. And the SAFE Transportation Act simply requires the release of specified “ reports” that are already “contained in the Motor Carrie r Management Information System”

— namely accident reports, inspection reports with no driver

- related safety violations, and inspection reports with serious driver

related safety violations. 49 U.S.C. § 31150(a). For these reasons, the Administration canno t fairly be described as regularly engaged in “assembling” or “evaluating” these accident and inspection reports “for the purpose of furnishing” them to the drivers’ prospective employers.14
The canon against surplusage reinforces our conclusion. The SAFE T ransportation Act requires the Administration to satisfy four requirements before releasing MCMIS records to
pre

- employment screeners , and these requirements incorporate

or parallel ones that FCRA already imposes on consumer reporting agencies. First, the Administration must “ensure that any information that is released” to prospective employers “will be in accordance with [FCRA] and all other applicable Federal law

. ” 49 U.S.C. § 31150(b)(1). Second, the Administration must obtain a driver’s written cons ent before releasing his safety records, id. § 31150(b)(2), which tracks FCRA’s requirement that a consumer reporting agency must obtain the consumer’s written consent before releasing a

c onsumer report for employment purposes

, 15 U.S.C. § 1681b(b)(1)(A)(i ), (b)(2)(A)(ii). Third, the Administration must ensure that MCMIS records will be released only to the prospective employer, 49 U.S.C. § 31150(b)(3), which tracks FCRA’s requirement that a consumer reporting agency must require prospective user s to certify that a consumer report will be used only for authorized purposes, 15 U.S.C. § 1681e(a). Fourth, the Administration must create a procedure for drivers
to correct inaccurate information in the MCMIS, 49 U.S.C. § 31150(b)(4) , which tracks FCRA’s requirement that credit reporting agencies use procedures to ensure the “maximum possible accuracy” of information in consumer reports, 15 U.S.C. § 1681e(b), and conduct at least a “reasonable reinvestigation” if a consumer disputes the accuracy of informa tion in his file, id. § 1681i(a)(1)(A). These various requirements in the SAFE Transportation Act would have little or no effect if the Administration were already a “consumer reporting agency” covered by FCRA. To be sure, the SAFE Transportation Act con tains at least a bit of surplusage insofar as it incorporates “other applicable Federal law” besides FCRA. 49 U.S.C. § 31150(b)(1). But one short, unavoidably redundant catchall phrase is a far cry from what the plaintiffs’15
position implies

— the pointless incorporation into the SAFE Transportation Act of one FCRA requirement after another.

In contrast, our interpretation gives meaningful effect to the four FCRA

- related conditions in the SAFE Transportation Act . Specifically, they oblige the Administration to act “in accordance with” FCRA provisions regarding the release of information and to follow three other requirements tracking those of FCRA. On th is understanding, the Administration’s release of the drivers’ safety records may well have violated the SAFE Transportation Act, though not FCRA itself. A ny such violation of the SAFE Transportation Act may, in an appropriate case, be redressable through the APA. But here, we have already held that the drivers lack standing to seek prospective relief under the APA, as the disputed records have already been removed from the MCMIS. See Owner

- Operator Indep. Drivers
, 879 F.3d at 346

– 47 . And a violation of section 31150 could not itself support the money damages sought by the drivers

, for the SAFE Transportation Act contains no arguable waiver of sovereign immunity.
For these reasons, w e hold that the government did not become a “consumer reporting agency” under FCRA through its administration of the MCMIS database and the PSP disclosu re program. We thus affirm the dismissal of the drivers’ damages claims under FCRA.

IV

The remaining issue is whether the district court permissibly denied the drivers’ July 2018 motion to amend their complaint to add Privacy Act claims

. Federal Rule of Civil Procedure 15(a)(2) provides that a district court “should freely ” allow amendment “ when justice so requires. ” But t he decision whether to permit amendment is “ vested in the sound discretion of the trial court

, ” Doe v. McMillan , 566 F.2d 713,16
720 (D. C. Cir. 1977) , which can deny leave to amend based on either “undue delay ” by the moving party or “ undue prejudice ” to the other side

, Foman v. Davis , 371 U.S. 178, 182 (1962).

In this case, t he district court permissibly denied leave to amend

. We have consistently held that undue delay is a valid ground for denying leave to amend

, see , e.g. , Elkins v. Dist rict of Columbia , 690 F.3d 554, 565 (D.C. Cir. 2012); Doe , 566 F.2d at 720, especially when the plaintiff offer s “no good reason” for the delay

, Trudel v. SunTrust Bank , 924 F.3d. 1281, 1288 (D.C. Cir. 2019). H ere, the drivers offer no explanation why they raised Privacy Act claims in their opening complaints, omitted them from their consolidated co mplaint

, and then waited four years before raising the claims anew

. The drivers instead argue that undue delay cannot support a denial of leave to amend without a further showing of prejudice. We need not decide whether such a showing is always required, for we agree with the district court that , in this case, the drivers waived their Privacy Act claims

. The district court reasonably concluded that “ i f an amended complaint omits claims raised in the original complaint, the plaintiff has waived t hose omitted claims.” Young v. City of M oun t Ranier , 238 F.3d 567, 573 (4th Cir. 2001). And excusing such a waiver here would both eliminate a defense to liability and oblige the Administration to continue litigating a case that has already run for nine years. Th at is more than enough to deny amendment

. We recognize that the district court , in denying the first motion to amend

, remarked that the drivers could later add a Privacy Act claim

. Owner

- Operator Indep. Drivers , 316 F. Supp. 3d at 206. The drivers argue that this remark bound the
court going forward

. But a court may “ modify or rescind its orders at any point prior to final judgment in a civil case.” Dietz v. Bouldin , 136 S. Ct. 1885, 1892 (2016). H ere, t he district court changed course lo ng before final judgment

, then17
reasonably explained its revised position. Changing course in this way did not violate any law of the case

.

V
The district court properly dismissed the drivers’ complaint and permissibly denied their July 2018 motion for leave to amend.

Affirmed

.K ATSAS , Circuit Judge , concurring : The Court’s opinion in this case proceeds in conventional fashion by deciding, first, that the Fair Credit Reporting Act waives the federal government’s sovereign immunity from claims for money damages and, second, that the FCRA claims asserted against the government here lack merit. Judge Randolph criticizes us for deciding the sovereign

- immunity question unnecessarily. I write separately to explain my view that b ecause the sovereign

immunity question goes to our jurisdiction, we must decide it before re aching the merits

. I

In Steel Co. v. Citizens for a Better Env ironmen t , 523 U.S. 83 (1998), the Supreme Court famously and emphatically confirmed that a federal court, before it resolves the merits of a case, must first conclude that it has jurisdiction to do so. Id.
at 93

– 102. This requirement, which rests on a “ long and venerable line of our cases,” arises from “ ‘ the nature and limits of the judicial power ’ ” and is “ ‘ inflexible and without exception

. ’ ” I

d. at 94

– 95 ( quoting Mansfield, C. & L.M.R. Co. v. Swan , 111 U.S. 379, 382 (1884) ). B ecause jurisdiction is the “power to declare the law,” a court without jurisdiction “cannot proceed at all in any cause. ” I d. at 94 (quoting Ex parte McCardle , 74 U.S. (7 Wall.) 506, 514 (1868)). A court with onl y possible or hypothetical jurisdiction “ produces nothing more than a hypothetical judgment

— which comes to the same thing as an advisory opinion.” Id. at 101.
The Supreme Court held in FDIC v. Meyer , 510 U.S. 471 (1994)

, that “ [ s ] overeign immunity is jurisdictional in nature

. ” Id. at 475. The C ourt thought it “axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” Id. (quoting United States v. Mitchell , 463 U.S. 206, 212 (1983)). Likewise, “the terms of the United States’ consent to be sued in any court define that court’s jurisdiction to entertain the suit.” Id. (cleaned up) (quoting United States v. Sherwood , 3122
U.S. 584, 586 (1941)). “Therefore,” before reaching the merits of a suit for damages against the federal go vernment, a court “must first decide” whether Congress has waived the government’s sovereign immunity. Id. Meyer proceeded to hold that Congress had waived the government’s immunity on the claims at issue, id. at 475

– 83 , and then to reject the claims

on their merits

, id. at 483

– 86.

After Meyer , our court has four times held that we must find a waiver of sovereign immunity before reaching the merits of claims against the federal government

. In Rochon v. Gonzales , 438 F.3d 1211 (D.C. Cir. 2006), we cited Steel Co. for the proposition that we “must” begin with the “issue of jurisdiction

, ” we described federal sovereign immunity as “jurisdictional” for that purpose, and we reached the merits only after resolving the disputed immunity question. Id. at 1214

– 16. In Trudeau v. FTC , 456 F.3d 178 (D.C. Cir. 2006), we ranked as “ ‘ jurisdictional ’ ” the question “whether the United States has waived its sovereign immunity,” and we reached the merits only after “[h]aving conc luded that there is jurisdiction

. ” I

d. at 18 5

– 8 7 (quoting Meyer , 510 U.S. at 475)

. In Perry Capital LLC v. Mnuchin , 864 F.3d 591 (D.C. Cir. 2 017), we held that Steel Co. ’s “obligation to assure ourselves we have jurisdiction ” at the outset “ extends to so vereign immunity because it is ‘jurisdictional in nature.’” Id. at 6 1 9 (quoting Meyer , 510 U.S. at 475). I n Sierra Club v. Wheeler

, 956 F.3d 612 (D.C. Cir. 2020) , we held that “[b]ecause sovereign immunity is ‘jurisdictional in nature,’ we must assure ourselves that the Sierra Club’s claims fall within a valid waiver of sovereign immunity before allowing the suit to proceed.” Id. at 616 (quoting Meyer , 510 U.S. a t 475)

. We have also treated federal sovereign immunity as jurisdiction al in other respects

. W e have raised the issue sua sponte

. See Perry Capital , 864 F.3d at 619 ; Trudeau , 456 F.3d at 185 ; Rochon , 438 F.3d at 1215

– 16

. And w e have held that an agency’s appearance in court does not waive its sovereign3
immunity because “officers of the United States possess no power ... to confer jurisdiction on a court in the absence of some express provision of C ongress.” Dep’t of Army v. F LRA

, 56 F.3d 273, 2 75 (D.C. Cir. 1995) (quoting United States v. N.Y. Rayon Importing Co. , 329 U.S. 654, 660 (1947) )

. This analysis accords with the treatment of state sovereign immunity. Federal and s tate sovereign immunity derive from the same source

— the centuries

- old vie w that no sovereign may

“ be sued without its consent,” which was “universal in the States when the Constitution was drafted and ratified.” Alden

v. Maine , 527 U.S. 706, 715

– 16 (1999)

. Before ratification,

s tates enjoyed this immunity as “fully sovereign nations,” Franchise Tax B d. v. Hyatt
, 139 S. Ct. 1485 , 1493

– 95 (2019)

—
as the United States does today

. States still largely enjoy the same immunity, insofar as sovereign immunity “ limits the grant of judicial authority in Art. III

. ” Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 98 (1984)

. Likewise, t he Eleventh Amendment, which sought “to restore the original constitutional design” regarding sovereign immunity, Alden

, 527 U.S. at 722, speaks in expressly jurisdictional terms

, U.S. Const. a mend. XI (limiting scope of the federal “Judicial power” to entertain suits against states ). And because state sovereign immunity imposes a “jurisdictional restriction” on the federal courts, it must be “ given priority” under Steel Co. Vt

. Agency of Nat. Res. v. U nited S tates ex rel. Stevens , 529 U.S. 765, 778

– 80 (2000).

O ur treatment of foreign sovereign immunity is also instructive. The Foreign Sovereign Immunities Act grants foreign sovereigns immunity “from the jurisdiction of the courts of the United States and of the States,” 28 U.S.C. § 1604, except as provided by exceptions in the FSIA itself, see id. § § 1605

– 16 07. Accordingly, we must resolve assertions of foreign sover eign immunity “[a]t the threshold of every action

, ” before the merits. Verlinden B.V. v. Cent. Bank of4
Nigeria , 461 U.S. 480, 493

– 94 (19 8 3); Process & Ind. Dev. Ltd. v. Fed

. Repub. of Nigeria , 962 F.3d 576, 584 (D.C. Cir. 2020).

II

A gainst all this , Judge Randolph invokes In re Sealed Case No. 99

- 3091 , 192 F.3d 995 (D.C. Cir. 1999) (per curiam). There

, we held that because federal sovereign immunity “can be waived,” it is a “ less than pure jurisdictional question

, ” which “need not be decided before [the] merits

. ” Id. at 1000

– 01 (cleaned up). The primary authority we cited was United States ex rel. Long v. SCS Business & Technical Institute, Inc.

, 173 F.3d 890 (D.C. Cir. 1999), which we read to hold that Eleventh Amendment immunity “ need not be decided before the merits.” 192 F.3d at 1000.

How to handle this clear conflict among our precedents? We have held that “when a decision of one panel is inconsistent with the decision of a pr ior panel, the norm is that the later decision, being in violation of that fixed law, cannot prevail.” Sierra Club v. Jackson , 648 F.3d 848, 854 (D.C. Cir. 2011). Moreover, if an earlier circuit precedent prevails over later inconsistent circuit preceden t s , then so too must an earlier Supreme Court preceden t

. T hompson v. Dallas City Attorney’s Office , 913 F.3d 464, 467

– 68 (5th Cir. 2019)

. And Sealed Case conflicts with prior Supreme Court precedent: whereas Meyer held that federal sovereign immunity is a “jurisdictional” issue that we “must first decide” before reaching the merits

, 510 U.S. at 475

, Sealed Case held that federal sovereign immunity is only “quasi

-

jurisdictional” and so “we are not required to decide [it] before the merits,” 192 F.3d at 1000

– 01. Later5
panels of this Court were thus correct to follow Meyer over Sealed Case , a nd we should do the same

. 1

Moreover
, later Supreme Court decisions have “eviscerated” the reas oning of Sealed Case

, which separa tely makes i t no longer binding. See Dellums v. NRC

, 863 F.2d 968, 978 n.11 (D.C. Cir. 1988)

. Sealed Case held that federal sovereign immunity is a “less than pure jurisdictional question”

— and thus not subject to Steel Co.

— b ecause Congress can waive it. 192 F.3d at 1000

. But in that respect, federal sovereign immunity is like two other waivable but jurisdictional questions : Eleventh Amendment immunity, which Sealed Case discussed , and personal jurisdiction, see Wis. Dep’t of Corr

. v. Schacht , 524 U.S. 381, 394 (1998) (Kennedy, J., concurring) (“the hybrid nature of the jurisdictional bar erected by the Eleventh Amendment ... bears substantial similarity to personal jurisdiction requirements, since it can be waived”); Baude & Sachs

, The Misunderstood Eleventh Amendment , 169 U. Penn. L. Rev. 609, 625 (2021); Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction , 115 Harv. L. Rev. 1559, 1574

– 79 (2002 ). A fter we decided Sealed Case , the Supreme Court made clear that Eleven th Amendment immunity is a threshold jurisdictional issue for purposes of Steel Co.

, see Vt. Agency , 529 U.S. at 778

– 80 , even though states can waive it

. Likewise, the Court has held that personal jurisdiction, though waivable, ranks as jurisdictional under Steel Co. Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 583

– 84 (1999) . Later, the Court confirmed

1 Judge Randolph dismisses Meyer as unreasoned dicta

. Post
at 6 . But the Supreme Court made clear what it mean t : “Sovereign immunity is jurisdictional in nature

, ” and, “[t]herefore, we must first decide” it. Meyer
, 510 U.S. at 475. The Court proceeded to r esolve

a sovereign

- immunity question against the government, only then to rule for the government on the merits

, id. at 475

– 83

— precisely our disposition in this case.6

the corollary proposition that a federal court “may not rule o n the merits of a case without first determining that it has ” both

“ subject

- matter ” and “ personal jurisdiction

. ” S inochem Int ’ l Co. v. Malay

. Int ’ l Shipping Corp. , 549 U.S. 422, 43 0

– 3 1 (2007)

. Aft er th e se intervening decisions, it is no longer possible to maintain that courts may skip over federal sovereign immunity simply because Congress can waive it

. 2

2 The law of other circuits tugs in different directions. At least five other circuits have trea t ed federal sovereign immunity as a threshold jurisdictional issue. See Montilla v. Fed. Nat ’ l Mortg. Ass ’ n , 999 F.3d 751, 758 (1st Cir. 2021) (sovereign immunity is “a threshold jurisdictional question”); Tobar v. United States , 639 F.3d 1191, 1195 (9th Cir. 2011) (sovereign immunity “can be raised at any time by the government, as it goes to a court’s jurisdiction”) ; Dotson v. Griesa , 398 F.3d 156, 177 (2d Cir. 2005) (“ Because a finding of sovereign immunity would deprive this court of subject
matte r jurisdiction, we address that question first ....”); Harmon Indus., Inc. v. Browner , 191 F.3d 894, 903 (8th Cir. 1999) (“Sovereign immunity ... is a jurisdictional threshold matter and it is well

- established that questions of subject matter jurisdiction can be raised for the first time on appeal

. ”); Antol v. Perry , 82 F.3d 1291, 1297 (3d Cir. 1996) (“the district court first should have considered whether Congress unequivocally expressed a waiver of sovereign immunity ” because it “ is jurisdictional in nature” (cleaned up))

. Judge Randolph highlights circuit decision s coming out the opposite
way, see post at 5 n.7 & 12

– 17, though he overstates the extent of support for his view by including in his addendum cases decided before Steel Co. , cases skipping over so vereign immunity without addressing the sequencing question, cases skipping over sovereign immunity to decide another jurisdictional question, and unpublished decisions. The fairest summary of all the caselaw appears in one of the decision s that he cites: “We have not spoken with one voice on whether we must, or whether we may, resolve a sovereign

- immunity defense before addressing the merits.” Nair v. Oakland Cty. Comm. Mental Health Auth. , 443 F.3d 469, 47 4 (6th Cir. 2006).7

III More broadly, Judge Randolph contends that Steel Co. imposes no sequencing rule for any question of statutory as opposed to constitutional jurisdiction. P ost at 1

– 4

. But Steel Co. says the opposite, as does most of our precedent

. A
As a conceptual matter, it makes little sense , in distinguishing between jurisdiction and the merits, to differentiate constitutional and statutory jurisdiction. Article III imposes two limitations on the jurisdiction of the federal courts. First, “[t]he judicial Power of the United States” extends only to the Supreme Court and “such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const. Art. III, § 1. It is hornbook law that Congress’s power to establish inferior courts includes the power to “define their respective jurisdictions

. ” Sheldon v. Sill , 49 U.S. (8 How.) 441, 448 (1850). Second, “[t]he judicial Power” extends only to certain “Cases” and “Controversies.” U.S. Const. Art. III, § 2. Both limitations arise from the same, explicitly jurisdictional reference to the federal “judicial Power.” And nothing in Article III suggests that the jurisdictional rules established under section 1 are of lesser kind than those created by section 2 . Because Article III itself does not impose a hierarchy of jurisdictional issues, we should not either. See Kaplan v. Cent. Bank of the Islamic Repub. of Iran , 896 F.3d 501, 517 (D.C. Cir. 2018) (Edwards, J., concurring) (“The distinction between statutory limitations on subject

- matter jurisdiction and other Article III jurisdictional limitations is tenuous, as both limitations arise from Article III.”).

Nor did Steel Co. draw that distinction. Although the jurisdictional question presented there involved the case

- or

controversy requirement of Article III, the Court’s reasoning was not so limited. In holding that federal courts must decide8
jurisd ictional issues before merits ones, Steel Co. described jurisdictional issues as ones involving “power to declare the law” or “the nature and limits of the judicial power of the United States.” 523 U.S. at 94

– 95 (quoting Ex parte McCardle

, 74 U.S. (7 Wall.) at 514, and Mansfield , 111 U.S. at 382). On that understanding, it makes no difference whether the resolution of a jurisdictional issue depends on Article III or a federal statute. Moreover , the canonical cases cited in Steel Co. for the propo sition that jurisdiction al issues must be decided first presented only questions of statutory jurisdiction: Ex parte McCardle involved a statute that stripped away jurisdiction otherwise provided by Article III, see 74 U.S. (7 Wall.) at 512

– 13, and Mansfie ld involved the statutory requirement of complete diversity of citizenship

, see 111 U.S. at 380

– 82. 3 Finally, in summing up its holding, Stee l Co. referenced both statutory and constitutional jurisdiction: “The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from actin g permanently regarding certain subjects.” 523 U.S. at 101.

This Court repeatedly has held that, under Steel Co. , we “must” decide questions of statutory jurisdiction before the merits. I n re Sealed Case , 449 F.3d 118, 121 (D.C. Cir. 2006)

. We have done so in cases involving statutory jurisdiction over a sentencing appeal, id. ; statutory jurisdiction under the Tucker Act

, Rochon , 438 F.3d at 1214 ( “We begin, as we must, with the issue of jurisdiction.”); statutory jurisdiction under the Hobbs Act, Nuclear Energy Inst., Inc. v. EPA , 373 F.3d 1251,

3 The parties in Mansfield were minimally but not completely diverse

, s ee 111 U.S. at 380

– 82 , and the requirement of complete diversity arises by statute

, see Strawbridge v. Curtiss

, 7 U.S. (3 Cranch) 267 , 267 (1806).9
1264 (D.C. Cir. 2004) (“Before addressing the merits ... we
must consider two jurisdictional issues.”) ; ha beas jurisdiction under 28 U.S.C. § 2253

, Madley v. U.S. Parole Comm ’ n , 278 F.3d 1306, 1308 (D.C. Cir. 2002) (“ As the question affects our power to consider this appeal, we must consider it before the merits .” ( cleaned up )); and finality under 28 U.S.C. § 1291, Doe v. Exxon Mobil Corp. , 473 F.3d 345, 348 (D.C. Cir. 2007) (“Before we can consider the merits of Exxon ’ s political question arguments, we must determine whether we have jurisdiction.”); Pueblo of Sandia v. Babbitt , 231 F.3d 878, 880 (D.C. Cir. 200 0) (“Because this court may not proceed without appellate jurisdiction, we must address the motion to dismiss before considering the arguments on the merits.”)

. Similarly

, in Coalition for Fair Lumber Imports v. United States

, 471 F.3d 1329 (D.C. Cir. 200 6), we held that “statutory jurisdiction” is a “jurisdictional” issue under Steel Co. , which permitted us to decide it without reaching another jurisdictional question about Article III mootness. Id. at 1332

– 33.

B
Again, we confront conflicting precedents. In the decisions discussed above, we held that we must decide questions of statutory jurisdiction before the merits. On the other hand, Kramer v. Gates , 481 F.3d 788 (D.C. Cir. 2007), held that the “absolute priority” rule of Steel Co. gover ns only “issues related to Article III jurisdiction” and does not prohibit “addressing the merits where doing so [ makes] it possible to avoid a doubtful issue of statutory jurisdiction.” Id

. at 791. Since then, we have twice applied Kramer without furthe r analysis

. Am

. Hosp. Ass’n v. Azar , 964 F.3d 1230, 1246 (D.C. Cir. 2020) (“The law of our circuit allows a court to assume hypothetical statutory jurisdiction even if we cannot assume Article III jurisdiction.”); Chalabi v. Hashemite Kingdom of Jordan

, 543 F.3d 725, 728 (D.C. Cir. 2008) (“ Steel Co. requires10
that we prioritize the jurisdictional issue only when the existence of Article III jurisdiction is in doubt”).
To harmonize these competing case lines, I would again
return to Meyer , which specificall y held that federal courts “must first decide” federal sovereign immunity before reaching the merits. 510 U.S. at 475. Whatever rule might govern statutory

- jurisdiction questions besides those bearing on federal sovereign immunity, no circuit decision co uld abrogate the Supreme Court’s specific holding on that point. Moreover
, earlier circuit decisions control over later ones , and at least six
pre

- Kramer decisions squarely require federal courts to resolve questions of statutory jurisdiction before the m erits. Finally , as explained below, subsequent Supreme Court decisions have eviscerated Kramer

. Kramer rel ie d on the second footnote of Steel Co. , which stated that sometimes “a merits question can be given priority over a statutory standing question

. ” 523 U.S. at 97 n.2. Kramer equated the phrase “statutory standing” with “statutory jurisdiction,” th en made the sweeping conclusion that courts may decide the merits before any question of statutory jurisdiction. 481 F.3d at 791

. But after K ramer was decided, the Supreme Court clarified that the term “ s tatutory standing”

m eans the traditional zone

- of

- interests requirement, which asks

“ whether a legislatively conferred cause of action encompasses a particular plaintiff ’ s claim. ” Lexmark In t’l , Inc. v. Static Control Components, Inc. , 572 U.S. 118 , 127 (2014) (citing Steel Co. , 523 U.S. at 97 n.2)

. Lexmark further noted that the term “statutory standing” is misleading, “since the absence of a valid (as opposed to arguable) cause of action does not implicate subject

- matter jurisdiction, i.e. , the court’s statutory or constitutional power to adjudicate the case.” Id. at 128 n.4 (cleaned up)

. So in concluding that a court may decide the

“ merits” question “whether any plaintiff has a cause of action under the statute” at issue before deciding the so

- called11 “statutory standing” question “whether this plaintiff has a cause of action

, ” Steel Co.

, 523 U.S. at 97 n.2

, the Supreme Court

w as simply allowing one merits questio n to be decided before another. 4 After Lexmark , there is no basis for reading the footnoted reference to “statutory standing” as encompassing all questions of statutory jurisdiction. 5

Sinochem further undercuts Kramer

. That case reiterated the holding of Ruhrgas that federal courts may decide questions of personal jurisdiction before questions of subject

4 That is exactly what happened in National Railroad Passenger Corp. v. National Association of Railroad Passengers

, 414 U.S. 453 (1974), where the Court decided the merits question “whether a statutory cause of action existed” before considering the “statutory standing” question whether the plaintiff came w ithin its “zone of interests.” See Steel Co. , 523 U.S. at 97 & n.2 (discussing National Railroad

).

5 In clarifying that “statutory standing,” “prudential standing,” and “cause of action” are all merits questions

, Lexmark highlights another question noted in footnote 2 of Steel Co. : how can “statutory standing” questions (about the merits) ever “be given priority over an Article III question”? 523 U.S. at 97 n.2. Vermont answers that question. There, the Court held that the merits question whether a statutory cause of action runs against the states may be decided before the “jurisdictional” question wh ether the Eleventh Amendment would bar the claim. See 529 U.S. at 779

– 80 . The Court explained that only “[t]he combination of logical priority and virtual coincidence of scope makes it possible,” as between these two questions , “to decide the statutory i ssue first.” Id. Logical priority, because the question whether a statute purports to authorize some claim against a state is analytically prior to the question whether the Eleventh Amendment would prohibit it. And v irtual coincidence, because deciding the statutory merits question would not “expand the Court’s power beyond the limits that the jurisdictional restriction has imposed.” Id. at 779. This reasoning does not suggest that any question of statutory jurisdiction may be decided first

.12
matter jurisdiction. 549 U.S. at 430

– 31

. In Ru h rgas , the only disputed question of subject

- matter jurisdiction was one involving “the complete diversity required by 28 U.S.C. § 1332, but not Article III.” 526 U.S. at 584 (cleaned up) . Yet in Sinochem , the Court treated that statutory question as one that , like personal jurisdiction, must be decided before the merits. 549 U.S. at 431

. For these reasons, I agree with Judge Edwards that Lexmark and Sinochem have substantially undercut the Kramer line of cases

. See Kaplan , 896 F.3d at 520 (Edwards, J., con curring) (“At an appropriate opportunity, the court should consider whether, in light of Sinochem and Lexmark , the Kramer

/ Chalabi distinction between statutory and Article III jurisdictional issues can be sustained.”). 6

IV
Finally, Judge Randolph opines on the history of sovereign immunity. In his view, because the existence of immunity was an open question at the Founding, and because the Supreme Court decided merits questions before sovereign

- immunity

6 T he other precedents that Judge Randolph cites are inapposite

. P ost at 3 & n.4

. Thomas v. Net work Solutions

, Inc. , 176 F.3d 500 (D.C. Cir. 1999), skipped over the question whether a government contractor should receive antitrust immunity , not sovereign immunity

. Id. at 507

– 10

. Sherrod v. Breitbart , 720 F.3d 932 (D.C. Cir. 2013), assumed appellate jurisdiction under Norton v. Matthews

, 427 U.S. 524 (1976), wh ich did the same only because its “ merits question was decided in a companion case ,” Steel Co. , 523 U.S. at 98 (describing Norton , 427 U.S. at 530

– 31). Lin v. United States

, 690 F. App ’ x 7 (D.C. Cir. 2017), is unpublished. And United States ex rel. Long v. SCS Business & Technical Institute , 173 F.3d 890 (D.C. Cir. 1999), anticipated Vermont in holding that courts may decide wheth er a statutory cause of action runs against states before deciding whether the Eleventh Amendment would bar the cause of action if it did. See id. at 893

– 98. As shown above in note 5 , that is entirely consistent with my take on Steel Co.13
questions through the twentieth century, we should not read Meyer to curtail that longstanding discretion. Post at 6

– 11

. But even p utting aside that Meyer says what it says

, Judge Randolph gets the history wrong

. Far from inventing a novel rule, Meyer applie d an understanding of sovereign immunity that predates the Founding.

A

“ [T] he doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified .” Alden

, 527 U.S. at 715

– 16

. In the Fou nders’ view, it derived from both the common law and the law of nations

. Franchise Tax Bd. , 139 S. Ct. at 1493

. Under the common law, “ no suit or action [could] be brought against the king, even in civil matters, because no court [could] have jurisdiction over him.” 1 W. Blackstone, Commentaries * 235 ; see also Chisholm v. Georgia

, 2 U.S. (2 Dall.) 419 , 437

– 46 (1793) (Iredell, J., dissenting) (collecting English authorities ) ; 1 F. Pollock & F. Maitland, History of English Law 518 (2d ed. 1 898 ) ( the king “cannot be compelled to answer in his own court”)

. And under the law of nations

, the s overeign wa s “exemp t [] ... from all [foreign] jurisdiction.” 4 E. de Vattel, The Law of Nations 486 (J. Chitty ed. 18 35 )

. 7

7 Judge Randolph protests that English subjects could obtain relief against the Crown. Post at 7. But as Blackstone explains, this relief depended on the Crown ’s consent, “not upon compulsion

, ” 1 Blackstone, supra , at * 236

, w hich is consistent with how Alden describe d the “universa l” doctrine of sovereign immunity

, see 527 U.S. at 715

– 16. Judge Randolph identifies the specific procedures of traverse and monstrans de droit , which allowed subjects to avoid certain “delays incid ent to a petition of right.” 9 W. Holdsworth, A History of English Law 25

– 26 (3d ed. 1944). Both are consistent with sovereign immunity: for one thing, they were procedures enacted by statute, indicating at most a waiver of sovereign14
During the ratification debate s , leading Federalists were adamant that the Constitution did not abrogate this settled background rule

. Alexander Hamilton wrote in The Federalist that it “is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” The Federalist No. 81 . James Madison affirmed in the Virginia ratifying convention that it was “not in the power of individuals to call any state into court.” 3 Debates on the Federal Constitution 5 33 (J. Elliot ed., 2d ed. 18 54 )

. And John Marshall , speaking soon after Madison, concurred that it was

“ not rational to suppose that the sovereign power should be dragged before a court.” Id. at 555. L eading A nti

- F ederalists agreed that sovereigns were not properly “subject[] . . . to answer in a court of law, to the suit of an individual

. ” See

, e.g. , Brutus No. 13 ( Feb. 21, 1788 )

, in 4 The Founders’ Constitution 238 (P. Kurland & R. Lerner eds. 1987 )

. The reaction to Chisholm v. Georgia

, 2 U.S. (2 Dall.) 419 (1793)

, reflected this consensus

. When four Justices read Article III to allow a citizen of South Carolina to sue the State of Georgia without its consent, the decision “fell upon the country with a profound shock.” 1 C. Warren, The Supreme Court in United States History 96 (rev

. ed. 1926). In l ittle more than two months , Congress approved the Eleventh A mendment with near unanimity in both Houses. See Alden , 527 U.S. at 721. Within two years, the states ratified it and thereby “overruled the Court

. ” Id. at 723. In doing so, the y “acted not to change but to restore the original c onstitutional design. ” Id. at 722; see also Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 69 (1996) ( Chisolm “was contrary to the well

- understood meaning of the Constitution”)

.

immunity; for anothe r, relief under them still required sending a case “before the king to make a final discussion.” See id.15

While most Found ing

- era discussions of sovereign immunity addressed the states, t he immunity of the United States was understood even more clearly

. As Alden explained, “the sovereign’s right to assert immunity from suit in its own courts was a principle so well established that no one conceived it would be altered by the new Constitution.” 527 U.S. at 741

. T he United States fell squarely within th is background rule , a s it was supreme over the states within its sphere of operation

, U.S. Const. Art. VI, cl. 2. Thus, e ve n j ustices in the Chisholm majority recognized that Article III preserved federal sovereign immunity. Chisholm , 2 U.S. (2 Dall.) at 469 (Cushing, J.) (expressing “doubt” that the “United States may be sued by a citizen of any of the States”); id. at 478 (Jay, C.J.) (raising an “important difference” b etween suits against states and suits against the United States). For these reasons, Chief Justice Marshall could describe the rule that “ no suit can be commenced or prosecuted against the United States ” as

“ universally received opinion .” Cohens v. Virginia , 19 U.S. (6 Wheat.) 264, 411

– 12 (1821)

. B

The Framers also regarded sovereign immunity as jurisdictional

. Then as now, a justiciable case required adverse

“ parties to come into court, who can be reached by its process, and bound by its power .” 1 0 Annals of Cong. 606 (1800) (remarks of then

- Rep resentative John Marshall) ; see also Borden v. Fitch , 15 Johns. 121, 141 (N.Y. Sup. Ct. 1818) (“To give any binding effect to a judgment, it is essential that the Court should have jurisdiction of the person .”). I mmunity enabled a defendant sovereign to frustrate this requirement

— M adison and Marshall asserted that no party could “call” or “drag[]” a sovereign into court. 3 Debates

, supra , at 5 33, 555. Blackstone described sovereign immunity as a bar to “jurisdiction,” which “implies superiority of power.” 1 Blackstone, supra , at * 2 35. And Hamilton acknowledged that16
a sovereign could be sued “ with[] its consent

. ” The Federalist No. 81

. From the beginning, s overeign immunity thus

c oncerned the power to hale a particular party into court, or what we now call personal jurisdiction. See PennEast Pipeline Co., LLC v. New Jersey , 141 S. Ct. 2244, 2264 (2021) (Gorsuch, J., dissenting) (“ S tructural [sovereign] immu nity sounds in personal jurisdiction

.... ”); Nelson, supra , at 1565

– 66 & n.23 ; Baude & Sachs, supra , at 625.
This understanding fills the United States Reports . In United States v. Clarke

, 33 U.S. (8 Pet.) 436 (1834) , Chief Justice Marshal l remarked that a court “ cannot exercise jurisdiction over ” a suit against the United States unless it falls

“ within the authority of some act of [C]ongress .” Id. at 444. And in later cases, the Court regularly described the government’s consent to be sue d as a prerequisite to jurisdiction. See

, e.g. , United States v. U.S. Fid. & Guar. Co.

, 309 U.S. 506, 514 (1940) (“Consent alone gives jurisdiction to adjudge against a sovereign. Absent that consent, the attempted exercise of judicial power is void.”); Haycraft v. United States , 89 U.S. 81, 92 (1874) (“ To our minds the question is one of jurisdiction. A sovereign cannot be sued in his own courts except with his consent .”); United States v. McLemore , 45 U.S. (4 How.) 286, 288 (1846) (“ There was no jurisd iction of this case in the Circuit Court, as the government is not liable to be sued, except with its own consent .”).
Meyer reasoned from this foundation. As Steel Co.
recount ed , a “long and venerable line of our cases ” had held that courts must confirm their own jurisdiction before resolving the merits of a case. 523 U.S. at 94

– 95. And in Meyer itself, the Court held that federal sovereign immunity was “jurisdictional” because the “terms of the United States’
consent to be sued in any court define that court’s jurisdiction,” and because “the United States may not be sued without its consent.” 510 U.S. at 475 (quoting Sherwood , 312 U.S. at 586

,17

and Mitchell , 463 U.S. at 212 (cleaned up ) ). This reasoning followed Hami lton, Madison, and Marshall in viewing sovereign immunity as effectively a rule of personal jurisdiction

. Meyer thus combined two legal principles that date back to the Founding

— first, that federal courts must begin with their own jurisdiction and, second , that sovereign immunity is jurisdictional

— to conclu de that federal courts must begin with sovereign immunity. The brevity of the Court’s opinion reflects not its novelty, but its bedrock nature

. 8

C

Judge Randolph identifies some early cases that decid e d the merits before sovereign immunity. Post at 10

– 11

. But his nineteenth

- century cases involved ejectment actions brought against federal officials

. United States v. Lee , 106 U.S. (16 Otto) 196, 19 6

– 9 7 (1882) (“the United States was not a party”) ; Grisar v. McDowell , 73 U.S. (6 Wall.) 363, 369

– 70 (1868); Brown v. Huger , 62 U.S. (21 How.) 305, 308

– 09 (1858);

8 The resemblance between sovereign immunity and personal jurisdiction is admittedly imperfect. But to the degree that sovereign immunity is unlike personal jurisdiction, it is instead like subject

matter jurisdiction. See Schacht , 524 U.S. at 394

– 95 (Kennedy, J., concurring). For instance, the Eleventh Amendment concerns the “Judicial power,” U.S. Const. amend. XI, which suggests a limit o f subject

- matter jurisdiction. Similarly, the Supreme Court has held that sovereign immunity may be asserted for the first time on appeal, Edelman v. Jordan , 415 U.S. 651, 678 (1974)

— a rule that gener ally applies to questions of subject

- matter jurisdiction

, Capron v. Van Noorden , 6 U.S. (2 Cranch) 126, 127 (1804), but not personal jurisdiction, Ins. Corp. of Ir

. v. Compagnie des Bauxites de Guinee

, 456 U.S. 694, 702

– 04 (1982). This resemblance between sovereign immunity and subject

- matter jurisdiction does not affect the ordering question before us, for courts must decide both personal and subject

matter jurisdiction before the merits

. S ee S inochem , 549 U.S. at 430

– 31

.18

Wilcox v. Jackson , 38 U.S. (13 Pet.) 498, 509 (1839). As the Court later explained, these cases stand o nly for the proposition that federal officials may be “sued individually as trespassers

. ” Belknap v. Schild , 161 U.S. 10, 19 (1896). Moreover , only one of the cases even mentioned sovereign immunity, and it did so without considering whether the immunity was jurisdictional, much less whether anything turned on that question. See Lee

, 106 U.S. (16 Otto) at 204

– 23. Judge Randolph does identify
two twentieth

- century case s where the Supreme Court resolved the merits while reserving a question of sovereign i mmunity. United States v. Mitchell , 445 U.S. 535, 546 & n.7 (1980) ; Rabinowitz v. Kennedy , 376 U.S. 605, 607 (1964) . But neither decision offered any reasoning for doing so

. On the question of sequencing, these two decisions thus qualify as “drive

- by jurisdictional rulings” entitled to “ no precedential effect.” Steel Co. , 523 U.S. at 91. Likewise, they establish no practice long or settled enough to have interpretive significance. And th e ir utter silence on the sequencing question certainl y does not trump the Supreme Court’s later, reasoned holding on that very point in Meyer

. 9
Judge Randolph also argues that English common

- law courts did not apply any ordering rule regarding sovereign

9 Judge Randolph mentions t wo i napposite decisions. In United States ex rel. Goldberg v. Daniels , 231 U.S. 218 (1913)

, the Supreme Court ruled for the government on sovereign immunity, which it described as “earlier in point of logic” than the merits. Id. at 221

– 22. Califano v. Boles , 443 U.S. 282 (1979)

, involved a denial of benefits under the Social Security Act, an action that fell comfortably within both the judicial

- review provision in 28 U.S.C. § 405(g) and the waiver of sovereign immunity for claims “seeking relief other than m oney damages” in 5 U.S.C. § 702. The unaddressed immunity question concerned not whether the Court could reach the merits, but only a dispute about the available remedy if the claimant had prevailed on the merits. See 443 U.S. at 296

– 97.19
immunity. Post at 7

– 8. But the requirement that federal courts begin with their jur isdiction stems from the plain text of the Constitution, which specifically limits the federal “ judicial P ow er ” to certain courts, U.S. Const. Art. III, § 1 , and certain

c ases or c ontroversies, id. § 2. English law, which lacked a written constitution and allowed common

- law courts to

“ regulate []” their own jurisdiction

, see Ex parte Bollman , 8 U.S. (4 Cranch) 7 5, 93 (1807), had no cause for a comparable sequencing rule. And none of the Supreme Court’s sequencing decisions , including its comprehensive opinion in Steel Co.

, even considered English law

. So it is hard to see how a decision from the Exchequer Chamber , which did not address sequencing at all

, could trump the express holding of Meyer and two hundred years of American law that support it.

V
Finally, a word about prudence. Judge Randolph thinks that because the merits questions in this case are straightforward

, it would be sensible to skip over the circuit

splitting question whether FCRA waives federal sovereign immunity. Post at 1

. But the anterior sequencing question

— whether we must decide the sovereign

- immunity question first

— is itself more compl ex than the sovereign

- immunity question , as my back

- and

- forth with Judge Randolph makes clear

. Moreover
, as shown above, the sequencing question implicates two distinct conflicts within our own precedent

, as well as deep inter

- circuit confusion over whether sovereign immunity is jurisdictional. So regardless of whether I am right about Steel Co. and Meyer
, the Court sensibly avoid s that question by resolving sovereign immunity first. For while reasonable jurists may debate whether we must decide sovereign immunity first, all agree that we may do so

.R A N D O L P H , Senior Circuit Judge
, concur ring i n part and

concur ring in the judgme nt,

My colleag ues conclude first that the g overning statute waives the sovere ign i m munity of the Fe dera l Motor Carrie r Safety Administration. Then they tell us that the statute waiving

sovere ign immunit y does not apply to this fede ral ag ency — and so the plaintiffs lose.

One may wonder how it can be that a statute wa i v es the

sovere ign immunit y of a fede ral ag ency when the statute does

n o t ev en ap ply to the ag ency ? This is a puzz le about which I
expr ess no opinion. As I see it, the court should not have exercised its discretion to decide the question of so v er eign immunit y first. There is a circ u i t split on whether this fede ral
ag ency has immunit y and, g iven the panel’ s conclusion that the 1 plaintiffs have no cause of action — with which I agr ee — I think it was improper to take a position on t hat question.

I

.

The major premise of J udg e Katsas’ s concur ring opinion is that a fede ral court must alway s s at i s fy itself that it has statutory jurisdiction befor e it may rea ch the merits. The rest of h is concur

ring opinion is devoted to demonstrating th at

sovere ign immunity

is a matter of

jurisdiction.

As I see it, his premise is wrong and so th e re st of his

concur ring opinion does not matter. Even if sovere ign immunit y is jurisdict i onal (it is not), Supreme Court decisions and 2

Compare Borme

s v. Unite d State

s , 759 F.3d 793 (7th Cir

. 2014 ), 1

w ith Daniel v. Nat’l Park Ser v. , 891 F.3d 762 (9th Cir

. 2018 ), a n d Robinson v. U.S. Dep’t of Educ. , 917 F.3d 799 (4th Cir . 201 9).

I t “ov er st at es the st

re ngt h” of im m unity to “anal og iz e it to a la ck 2 of jurisdi ct io n,” as Jud ge Eas terbro ok aptl y expla ined in Unite d2

decisions of this court hold in the clea rest possible terms that there is no rig id rule requiring a fede ral court to decide statutory jurisdiction (as distinguished from Art ic le I I I jur isdiction) befor e g etting to the me rits.

Consider National Railroad Passenger Corp. v. National Association of Railroad Passengers
, 414 U.S. 453 (1974)

. The Court first d ec i d ed that the plaintiffs did not have a cause of action. Only then did the Court explain: “Since we hold that no rig ht of action exis ts, questions of [st atutory ] s t an ding and jurisdiction beca

me immaterial.” 414 U.S. at 465 n.13 (italics added)

. The Court thus made clea r that a merits question can be decide d befor e a s t at utory jurisdiction question. Steel Co. v. Citi zens for a Better Environ me nt , 523 U.S. 83, 96-97 & n. 2 (1998), whil e holding that “a merits question cannot be g iven priority over an Article I I I quest i o n , ” rea ffirme d National Railroad

. I n dissent, J ustice Stevens relied on N ational 3

State s v. County of Cook
, 167 F.3d 381, 388 (7th Cir

. 1999 ). Aft er al l, fe der al so ve re ig n im

m unity co nce rns “not the co m pete nce of the co urt to re nder a binding jud gm ent, but the pro prie ty of inte rpre ti ng a gi ve n st at ute to al lo w par

ti cula r re li ef .” Id. at 389. And t

he Suprem e Cour

t h as cl ar if ie d that rule s “shoul d not be re fe rr ed to as jurisdi ct ion al ” unles s they go ve rn a co urt’s “subj ec t- m at te r or per so nal jurisdi ct io n.” Hender son ex re l. Henders on v. S hinse ki
, 562 U.S. 4 2 8
, 4 3 5 (2011). “Other rule s, ev en if im

por ta nt and m andat or

y

. . . sho uld not be gi ve n the juris dict io nal br and.” Id.

As Justic e Brey er put it in his Stee l Co. co ncurr ing opi nio n, 3 “[t] his Cour

t has pre vi ous ly m ade cl ea r that court s m ay ‘res er

v[ e] diff ic ult quest io ns of

. . . jurisdi ct io n w hen the ca se al te rna ti ve ly co uld be re so lv ed on the m er it s in fa vo r of the sa

m e par ty .’ N o rt on v. Mathews
, 427 U.S. 524, 532 (1976). That rule m ak es theo re ti ca l se nse [a nd] eno rmous pra ct ic al se nse .” 523 U.S. at 111 (Br ey er , J.,

co ncurr ing ).3

Railroad and ar g ued — as does Judge Katsas in his concurr ing opinion here — that it was not logic al to trea t statutory questions of jurisdiction dif

fe re ntly than Article I I I case -or- controve rsy questions. 523 U.S. at 120 & n. 12. The Court reje cted J ustice Stevens’ ar g ument. Id. at 97 n. 2.

J udg e Katsas draw s an analog y t o the Supreme Court’s “treat m ent of state sovere ign immunit y .” Ante
, at 3. But the analog y ref

utes his position. A few y ear s afte r Steel C o. the Court acknow ledg ed with appro v al that it had “routinely addre ssed before the question whether the Eleventh Amendment forbids a particula

r statutory cau s e o f action to be asser ted
ag ainst States, the question whether the statute itself permits the

cause of ac tion it cre ates to be asserted ag ainst States (which it

can do only by clea

rly expressing su ch an intent).” Vermont Agency o f N a tural Resource

s v. U.S. ex rel. Steve ns , 529 U.S. 765, 779 (2000). I t is worth noting that J ustice Scalia, t h e author of the Court’s Steel Co. opinion, also wrote the Court’s opinion in Vermont Age ncy

.

Our court there fore has deter mined that Steel Co. is limit ed
to Article I I I jurisdiction and that the Supreme Court “explicitly

rec og nized the pro p riety of addre ssing the merits wher e doing

so made it possible to avoid a doubtful is s u e o f statutory jur i s d i ction.” Kramer v. Gates
, 481 F.3d 788, 791 (D.C. Cir. 200 7 ) (W i l liams, J .). We rea ched the same conclusion about Steel Co. in Sherrod v. Breitbart
, 720 F.3d 932, 399–400 (D.C. Cir. 2013). Speaking for the court i n a later case , Chief J udg e 4 Srinivasan thus stated: “The law of our circ uit allows a court to

See also Lin v. Unite d State s , 690 F. A p p ’ x 7, 9 (D.C. Cir

. 4 2017 ); Chalabi v. Hashe mit e Ki ngdo m of Jor dan , 543 F.3d 725 , 728 (D.C. Cir . 200 8); Thomas v. Networ k So ls

., Inc

. , 176 F.3d 500 (D.C. Cir

. 1999 ); U.S. ex re l. Long v. SCS Bus. & Tec h. Sols.
, 173 F.3d 890, 895– 98 (D.C. Cir. 1999).4

assume hy

pothetical statutory jur i sdiction even if we cannot

assume Article I I I jurisdiction.” Am. Hosp. Ass’n v. Azar
, 964 F.3d 1230, 1246 (D.C. Cir. 2020). These decisions are flatly 5
contra ry to J udg e Ka t s as’s arg ument. Despite his attempt to soften their impact, no panel has overr uled Kramer or Sherrod
, no r co u l d i t

. See LaShawn A. v. Barry
, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (e n banc)

.

I I

.

This bring s me to the final nail i n m y colleag ue’s

concur ring opinion. As we have held and as the Supreme Court itself has rec og ni z ed, Steel Co. ’s priority -of- decision rule is limit ed to Article I I I jurisdiction. J udg e Katsas’ s arg ument that 6

we must de cide sovere ign immunity befor e re aching the merits

can be corr ect if and only if sovere ign immunit y is a matter of Article I I I jurisdiction. I t clea rly i s n o t and the concur ring opinion does not even a ttempt to show otherwise.

After the S u p re me Court decide d Steel Co.
, our court was “unce rtain” whether it c overe d fede ral sover eig n immunit y

. E. Bay Mun. Utility Dist. v. U.S. Dep’ t of Com.
, 142 F.3d 479, 482 (D.C. Cir. 1998). In re Sealed Case No. 99-3091
, 192 F.3d 995 (D.C. Cir. 1999), settled the matter as far as o u r circ uit law is

conce rned. Our court’s ruling was clea r and concise : “Given the

T h is is al so the la

w of ot her ci rc uits

. See Unite d State s v. 5 W oods
, 210 F.3d 70, 74 (1st Cir

. 200 0 ); Butche r v. W endt
, 975 F.3d 236, 244 (2d Cir

. 2020 ); Bower s v. Nat’l Colle

giate Athle ti c Ass ’n
, 346 F.3d 402, 415 (3d Cir . 2003); Montague v. NLRB , 698 F.3d 307, 313 (6th Cir

. 2012 ); Lukowsk i v. INS
, 279 F.3d 644, 647 n. 1 (8th Cir

. 2002 ); Mine

se n v. Mc Hugh , 671 F.3d 133 2, 13 37 (Fed. Cir. 2012).

Eve n w it h re spe ct to Art ic le I I I jurisdi ct io n ther e ar e exc epti ons , 6

as the co u rt ex p la ined in Emory v. Unite d Air Lines

, Inc

. , 720 F.3d 915, 920 (D.C. Cir . 201 3).5

‘quasi-jurisdictional or ‘hy brid’ status

. . . of fede ra l sovere ign immunit y , we are not require d to decide th at i ssue befor e the merits.” Id. at 1000–01. 7

And that tallies with the Supreme Court’s repe ated refusa l
to “manda

te” an “order o f decision that the lower courts must follow. ” P ea r

s on , 555 U.S. at 241. Take qualified immunit y , which “spring s from the same root considerations that g ener ated the doctrine of sovere ign immunit y .” Scheue r v. Rhod es , 416 U.S. 232, 239 (1974). I n that context, the Court has rec og nized that a “rig id” order ing rule risks “bad d ec i s i o nmaking ” and a “substantial expenditure of scar ce judicial resour ces on difficult questions that have no e ffe ct on the outcome of the ca se.”

Jud ge Kat sa s sa

y s that “fiv e ot

her ci rc uits ” — the Firs t, Sec ond, 7 Third, Eig hth, and Ninth — tr ea t fe der al so ve re ig n immun it y as a “thre sho ld jurisdi ctio nal is sue .” Ante
, at 6 n.2. That w oul d be new s to them

. See

, e.g. , Conbo

y v . U.S. S

mall Bus. Admin. , 992 F.3d 153, 157 (3d Cir . 2021) (de ci ding the m er it s a nd explai ning t

hat “we nee d
not re so lv e” fe der al so ve re ig n im m unity ); Zarc on, Inc

. v. NLRB , 578 F.3d 892, 896 n.3 (8th Cir

. 2009 ) (fin d in g it “un nec es sa ry

. . . to addre ss ” fe der al so ve re ig n im m unity in li ght of m er it s ruli ng) ; Unite d State s v. Manning
, 527 F.3d 828, 837 n.8 (9th Cir

. 2008 ) (“ B eca u se the [s ta tute ] is in val id under the Suprem ac y Cla use

. . . w e do not

re ac h the is sue of so ve re ig n im m unity [.]” ); Montij o-Rey es v. Unite d State s , 436 F.3d 19, 23 (1st C ir

. 2006 ) (“We do not nee d to dec ide” the so ve re ig n- im

m u n it y is sue

. “I nste ad, w e dec ide the ca se on the indepe ndent gr ound th at there is an insuf fi ci ent ca usa l li nk betw ee n the al le ge d fa il ure to co m ply

. . . and th e al le ged har m .”) ; Smith v. Lehman
, 689 F.2d 342, 345 (2d Cir. 1982) (“This dif fi cult so ve re ig n im m un ity quest io n nee d not be dec ided, how ev er , bec aus e Sm it h’s

co nsti tuti ona l c la im s c anno t s ucc ee d on the m er it s.” ).

I n fa ct , ev er

y ci rc uit — Firs t, Sec ond, Third, Four th, Fift h, Sixth, Sev en th, Eig hth, Ninth, Tenth, Ele ve nth, and Fede ra l — ag re es w it h

our co urt that it m ay exe rc is e it s disc re ti on to by pas s fe der al so ve re ig n im m unity and re ac h the m er it s. See the Addendum to this opini on.6

I I I

. Ag ainst all this, J u d ge Katsas offe rs a single line from FDIC v. Mey er , 510 U.S. 471, 475 (1994): “Sovere ign immunit y is jurisdictional in nature [,] ” so “we must first decide whether [t he Fed eral Savings and L oan I nsuranc e Corporation’s] immunit y has been waived.” I n his view, this “holding ” cre ated 8 a mandatory order of operations akin t o that in Steel C o. Ante
, at 9, 15–16.

T h e analog y to Steel Co. is telling — just not in the wa y J udg e Katsas intends. I n Steel Co.
, the Court’s thumbs-down to by passing Article I I I questions spanned more than a dozen pag es in the United States Reports and drew support from the text and
str u ct u re of Article I I I
, the “common understanding of what it takes to make a ju s t i ciable case ,” and a “long and vener able line” of pr ece dent stretching back to 1804. Steel Co.
, 523 U.S.
at 94, 102. Compare that to Mey er

. On J udg e Katsas’ s rea ding, Mey er broke from centur ies of common-law prac ti ce (w ithout

a whi ff of historical analy sis), announce d a new constitutional rule (without citing the Constit ution), and overr uled st acks of Supreme Court case s (without a word on stare decisis) — all in a five -sentenc e umbre lla para g raph.

A.

J udg e Katsa s b egi ns his historical account of the common law in 1765, when Bla ckstone wrote that Eng lish subjects could

“[T]he Suprem e Cour

t has w ar ned ag ai nst ‘diss ec t[ ing ] the 8

se ntenc es of the Unite d Sta te s Repo rt s as tho ugh they w er e the Unite d Sta te s Code .’” Kalk

a v. Hawk
, 215 F.3d 90, 95 (D.C. Cir

. 2000 ) (quot ing St. Mary ’s Honor Ctr

. v. Hick s , 5 0 9 U .S. 502, 515 (1993)). “So per haps the st at em ent abo ut w hat the [Co urt] ‘mus t’ do des cr ibes onl y w hat [ it ] o rdina

ri ly sho uld do.” Id.7

not sue the crow n as they would an ordinary defe n dant. But 9 that is only half the story

. I n the thir t ee n t h ce ntury , Br acton observe d that “it was the king’ s duty to redr ess wrong s done by himself or on his behalf

[.] ” L udwik Erlich, Procee dings Against the Crown (

1216 – 1377) 43, in 6 Oxford Studies in Social and L eg al History (Paul Vinog raf f, ed. 1921). So from Edwar d I on, “the king himself [wa]s sued in the respe ctful form of a petition, and he never fail[ed] to comply with the judgme nt of his court.” Marbury v. Madison
, 5 U.S. (1 Cranch) 137, 163 (1803) (Mar shall, C.J .). And by the fourtee nth centur y , two new proce dures — trave rse an d monstrans de droit — let subjects

rec over proper

ty without roy al consent. 9 Wil liam Holdsworth, A History of

English Law 25–26 (3d ed. 1944). The short of the
matter is this: “ordina

ry writs did not lie” ag ainst the king, id. at 10, b u t “s o v ere ign immunit y was not a bar to relief ,” L ouis L

. J af fe, Suits Against Gove rnments and Officers: Sovere ign Immunity , 77 Har

v. L . Rev. 1, 1 (1963).

J udg e Katsas’ s sequenc ing rule is nowher e to be found in the common law. Take the Banke rs’ Ca s e — the seminal eig hteenth-c entury prec edent on sovere ign immunit y

. The case

arose when Charles I I signe d a secr et tr ea t y t o help L ouis XI V

Jud ge Kat sa s al so ci te s Vat te l fo r the rule th at sov er ei gns ar e 9

exe m pt fr om fo re ig n jurisdi ct io n. Ant e , at 1 3

. But this ig nor es the dist inct io n betw ee n “dom es ti c” and “fo re ig n” so ve re ig n im m unity

. As then- Pro fesso r Sca li a expla ined, “the princ iple s go ve rning the

am ena bili ty of a [so ve re ig n] to suit bef or e its ow n court s” ar e “ not at al l the sa m e” as tho se “go ve rning it s am ena bili ty to suit bef

or e th e

co urts of ano ther so ve re ig n.” Anto nin Sca li a, Sover ei gn Immunit

y and Nonstatut ory Rev ie w of Fede ral Adminis tr ativ e Act ion: S

ome Conclus ions fr om t

he Public -l

ands Cas es , 68 Mic h. L

. Rev

. 867, 886 (1970). Fede ra l so ve re ig n im m unity emb odies the fo rm er ; Vat te l’s rule and the El ev enth Am endm ent e m body the l at te r. See id.8

defe at the Dutch. B ut war s are expensive, and C harle s — “the play boy monarc h” — was broke. Ronald Hutton, Charles II 446 (1989). So in 1671, he suspended pay ment on his debts, leaving L ondon banker s in “ruin[
, ]

. . . unable to pay their depositors.” Holdsworth, supra , at 33. Then, af t er promising the banker s a roy al ann u i t y , Charles defa ulted ag ain in 1683. Seven y ear s (and one Glorious Revolution) later, the banker s asked the Court of Ex cheque r t o “enf

orce pay ment of t hese arre ars.” The Case of the Banke rs , in 14 A Complete Collection of State T ri als 3 (T.C. Howe ll ed., 1812) [hereina fter Banke rs’ Case ].

The Banke rs’ Case raised two issues. The first was a merits question: whether the annuity was valid. The second conce rned

sovere ign immunit y

. By passi n g the usual proce dures, the banker s had sued in the Ex cheque r — the “cour t of revenue” with “p o we r over the king’ s trea sure.” 3 Wil liam Bla ckstone, Commentaries on the Laws of England 4 2 8 (15th ed. 1809). Wit h this novel tactic came a novel question: whether the court had “power to relieve the petitioners, and g ive judgme nt for them.” Banke rs’ Case 7.

The barons of the Ex cheque r addre ssed the issues i n prec isely that order
, holding for the banke rs on both questions. S ee id. at 6–7. And when the attorney g ener al appea led
, a majority o f t h e Ex cheque r Chamber aff irmed. Consider L ord Chief J ustice Holt’s opinion. L ike the barons, Holt beg an with the merits, finding the annuity “g ood and firm in law.” Id. at 34. Only th en did he rea ch the sovere ign- immunit y question, holding that the banker s’ suit was “ver y proper and leg al.” After all: the banker s “ha[d] a righ t ; and if so, then they must have

some reme dy to come at it too.” Id. ; cf. Marbury
, 5 U.S. at 163. I n Holt’s view, the merits issue prec eded

— an d informed

— any disc u s s ion of power or relief

. The House of L ords ag ree d with the Ex cheque r majority

. See B ankers’ Case 110.9

B.

J udg e Katsas sug g ests that his position is roo ted in the Constit ution. Article I I I
, section 2 states that the “judicial Power shall extend” to cer

tain “Cases” and “Controver sies.” I t follows that “whe ther there is a case or controve rsy ” is a “thre shold matter.” Steel Co.
, 523 U.S. at 92, 94. Yet bey ond these “lar g e, round, indefinite terms,” J ohn F. Mannin g, S eparation of Powers as Ordinary Interpr et ation
, 124 Har v. L

. Rev. 1939, 2005 (2011), Ar

ticle I I I dictates no rig id decisional seque nce.

As to fede ral s o v ereig n immunit y , the Constit ution say s nothing. Stil l less is there any hint about wher e it should fall in the courts’ order of opera tions. That is ha rdly surprising
, for at the founding
, “the fede ral g overnme nt’s immunit y from suit was

a question — not a settled constitutional fac t.” Vicki C

. J a c k s o n , S u in g th e Fede ral Gove rnment: Sovere ignty, Immunity, and Judicial Indepe ndence
, 35 Geo. Wash. I nt’l L

. Rev. 521, 523 (2003). 1 0

C.

The Suprem e Cour

t fi rs t re cog nize d fe der al so ve re ig n 1 0 im m unity in 1821
, w hen Chie f Justic e Ma rs hall ca ll ed it “[t] he unive rs al ly re ce iv ed opi nio n[.]” Cohens v. Vir ginia
, 19 U.S. (6 Whea

t) 2 6 4
, 4 1 1 (1821). As then- Jud ge Sca li a quipped: “I ca nnot av oi d
not ing

. . . the pro fo und env y that m y co ll ea gue Jud ge Gins b u rg an d I hav e of Justic e Ma

rs hall ’s abilit

y to dec ide suc h an im

por ta nt is sue in fo ur w or ds[.] ” Anto nin Sca li a, His tori cal A n o m alie s in Adminis tr ativ e Law
, Y.B.: Sup. Ct. His t. Soc ’y 1985
, 103, 105 (1985).10

I f the Const itution forbids courts from by passing fede ral

sovere ign immunit y , that “under standing ” should “fill[] the United States Reports.” Ante
, at 15. But the opposite is true. Fr om the nineteenth century onwar d, the Court often used its discreti o n t o rea ch the merits ahea d — or instead — of

sovere ign- immunit y

questions.

Take W ilcox v. Jackson
, 38 U.S. 498 (1839). There
, the Court ruled on the merits for a fede ral office r, witho u t even mentioning sovere ign immunit y

. See also, e.g. , Brown v. Huger
, 62 U.S. 305 (1858) (same) ; Grisar v. McD owell
, 73 U.S. 363 (1867) ( same). And in Lee v. United States , 106 U.S. 196, 199 (1882), the Court “conside r[ed] first” the merits, befor e say ing

a word about the immunit y question. Telling ly
, while Lee drew

a spirited dissent, not one J ustice sug g ested that th e majority ’s
sequenc ing c hoice of

fende d the Constitut ion.

Of course , ear ly courts also used their discretion to dismiss

case s on soverei gn -i mmunity g rounds, without rea ching the merits. And they often couche d such dismiss als in jurisdictional
terms. E.g.
, United States v. McLem ore , 45 U.S. 2 8 6
, 288 (1846). Stil l, no one sug g ested that Article I I I mandated that
sequenc e — a point illust rate d in U.S. ex rel. Goldberg v. Mey er , 37 App. D.C. 282 (1911), aff’d sub nom
, U.S. ex rel. Goldberg

v. Daniels
, 231 U.S. 218 (1913). I n Goldberg
, our co u rt ruled

on t h e m er i t s for the Secre tary of the Navy
, holding that a fede ral statute did not compel him to deliver a decommissioned cruiser to a would-be buy er. Id. at 288–89. Writi ng for the Court, J ustice Holmes aff irmed on the alterna tive g round of fede ral sovere ign immunit y

. See 231 U.S. at 222. But he called this rationale “ea

rlier in point of log i c ”

— not constitutional priority — and he found “no suffici en t rea son for throwing doubt” on our merits-first approa ch. Id. at 221 (empha sis added)

. The upshot was clea r. Dec isi o n al sequenc ing was a matter of disc retion.11

And that view held throug hout the twentieth centur y

. Consider Kennedy v. Rabinowitz
, 318 F.2d 181 (D.C. Cir. 1963), aff’d
, 376 U.S. 605 (1964) — a mirror imag e of Goldberg

. I n Rabinowitz
, lawy ers repr ese nting Cuba sued the Secre tary of State, s eeking a decla

ratory judgme nt that they wer e exempt from reg istering as fore ign ag ents. Calling sovere ign immunit y

a “thre shold question,” our court order ed the case “dismissed

. . . as an unconsente d suit ag ainst the United States.” Id. at 182–83. Bu t the Supreme Court saw things differ ently

. I n its view, th e For eig n Ag ents Reg istration Act “plainly and unquest i o nably require [d] petitioners t o reg ister.” 376 U.S. at 607. The Court thus aff irmed on the merits, fi n d i n g no “occ asion to consider”

sovere ign immuni ty

. Id. See also, e.g. , Calif ano v. Boles
, 443 U.S. 282, 296–97 (1979) (“B eca use of ou r d i sposition of the [m erits] issue, we need not a nd do not r eac h” fede ral sovere ign immunit y ); United States v. Mitchell
, 445 U.S. 535, 542 (1980) (dec iding the merits and explaining that the Court “nee d not consider” fede ral sover eig n immunit y ).

Did Mey er rea lly discard all this prec edent? J udg e Katsa s thinks so, observing — quite rig htly — that none of these case s addre ssed the sequenc ing question head- on. Ante
, at 17. But that is ex ac t l y the point. I f two-hundre d y ear s elapse d befor e any one supposed that the C ons tituti on forbids courts to by pass fede ral sovere ign immunit y , t hat is a g ood sign that Sovereig n I m m u n i ty First! is “bad wine of rec ent vintag e.” Rotkiske v. Klemm
, 140 S. Ct. 355, 36 0 (2019) (quoting TRW Inc. v. Andrews
, 534 U.S. 1 9
, 3 7 (2001) (Scalia, J
., concur ring in judgme nt)).

* * *

I acknow ledg e my colleag ue’s prer og ative to disag ree with the prec edents o f t h e S upreme Court and of our court. Yet it12

seems to me incumbent on my colleag ue to descr ibe how he would repla ce the many pre ce d ents he disreg ards, prec edents that make “theor etical sense” and “enor mous prac tical s ense.” Supra n.3.

ADDENDU M

F irst Circ uit:

Montijo-Rey es v. United States
, 436 F.3d 19, 23 (1st Cir. 2006) (“We do not need to decide ” the sovere ign- immunit y i s sue. “I nstead, we decide the case on the independe nt g round that there is an insufficient causa l link betwee n the alleg ed failure to comply . . . and the a lleg ed har

m.”).

Scheide gg v. Dep’ t of Air Force
, 915 F. 2 d 1558 (Table ), 1990 WL 151390, at *2 (1st C i r. S ep t. 28, 1990) (per curia m joined by Br ey er, J .) (“ W e by pass [federa l sovere ign immunit y ] beca use we can rea dily aff

irm the dismiss al

. . . on the merits.”).

Latinos Unidos de Chelsea en Acc ion ( Lucha) v. Sec’

y of Hous. & Urb. Dev

. , 799 F.2d 774, 793 & n.27 (1st Cir. 1986) (bec ause “ther e is no private r ight of action,” it is “unnec essar y for us to consider whether sovere ign immunit y sta n d s as a bar to plaintiffs’ suit”).

Second Circuit:

S mi t h v. Lehman
, 689 F.2d 342, 345 (2d Cir. 1982) (“This difficult sovere i gn immunit y question need not be decide d, howeve r, beca

use Smit h’s constitutional claims cannot succe ed on the merits.”)

.13

Thi rd Circuit:

Conboy v. U.S. Small Bus. Admin.
, 992 F.3d 15 3
, 157 (3d Cir. 2021) (“[A]lt houg h we have not expli citly addre ssed whether the United States has waived sovere ign immunit y as to u n just enric hment claims, we need not r esolve that issue here beca use Conboy and Gilsenan cited no rec ord evidenc e cre ating a fac tual disp u t e m aterial to their unjust enric hment claim ag ainst the SBA.” ).

U.S. ex rel. IRS v. N

o r t on , 717 F.2d 767, 774 (3d Cir. 1983) (“[W] e find it unneces sary

. . . to decide whether sovere ign immunit y bars the imposit i o n o f a criminal contempt sanction
ag ainst the I RS” beca

use “the I RS did not have fair war ning that its re t enti on of funds was a per se violation of the automatic stay .”).

F ourth Circuit:

Turne r v. United States
, 736 F.3d 274, 280 n.2 (4th Cir. 2013) (“[W] e need not consider [sovereig n immunit y ] beca use we find that the [C oast Guar d] did not violate the re l ev an t standard of

car e . . ..”)

.

Laber v. Harv ey , 438 F.3d 404, 423 & n.19 (4th Cir. 2006) (e n banc) (“ Title VI I does not authorize a fede ral-se ctor employ ee to bring a civil action [of this sort],” so “we need not addre ss the Army ’s sovere ign immunity arg ument.”).

Al Faye d v. United States
, 210 F.3d 421, 423–25 (4th Cir. 2000) (“[T]he dist ri ct co urt did not abuse its discretion” in declining “the issuance of a subpoena for highly cla s s i fi ed g overnme nt14

documents[.] ” So “we need not rea ch the Gover nment’s [sovereig n-immunity ] arg ument[.] ”).

Litt ell v. Morton
, 445 F.2d 1207, 121 0 (4 t h Cir. 1971) (“We consider first if the [st atute] i s applicable
, beca use if it is not, manifestly
, we need not consider the question o f sovere ign immunit y .”).

F if th Circuit:

Eberle v

. Go n z ales
, 240 F. App’x 622, 629 n.3 (5th Cir. 2007) (“B ecau s e we conclude that Eberle either failed to exhaust his administrative reme dies or failed to establish a prima fac ie case of reta liatio n , we need not rea ch Def endants’ alterna tive
arg ument that the g overnme nt has not waived sovere ign immunit y . . ..”).

Sixth Circuit:

Nair v. Oakland Cnty. Cmty. Mental Health Auth.
, 443 F.3d 469, 477 (6th Cir. 2006) (“[U]nder any circ umstances in whi ch t he State (or the United States) declines to raise sovere ign immunit y

as a threshold defe nse, we conclude that the fede ral courts have discretion to addre ss the sovere ign- immunit y defe nse and the merits in whicheve r orde r they pref er.” ).

Local 3-689, Oil, C

h em

. & Atomic Int’l Union v. Martin Marietta Energy Sys., Inc.
, 77 F.3d 131, 138 n.11 (6th Cir. 1996) (“[A]s it has already

been decided that the requisite statutes do
not imply private rig hts of action, this court need not rea ch whether the Ener g y

Act wa ives sovere ign immunity .”).15

Seventh Circuit:

United States v. All Assets & Equip. of W

. Side Bldg. Corp.
, 188 F.3d 440, 443 n.1 (7th Cir. 1999) (“B eca use the g overnme nt did

n o t direc tly appea l this issue, we need not rea ch this th o rn y question of sovere ign immunity .”).

Merrill Tenant Council v. U.S. Dep’ t of Hous. & Urb. Dev

. , 638 F.2d 1 0 8 6,1091 n.7 (7th Cir. 1981) (“Be cause a penalty clause is voi d in a contra ctual cause of action in I llinois
, we do not

rea ch the issue of wh ether the waiver of sovere ign immunit y extends to a penalty .”).

Eigh th Circuit:

Zarcon, Inc. v . NLRB , 578 F.3d 892, 896 & n.3 (8th Cir. 2009) (“[W] e reje ct Zarcon’s arg ument that the OPEN Gover nment Act should apply to this case [,] ” so “it is unnece ssary for us to addre ss the NL RB’s additional [sovereig n-immunity ] arg ument . . ..”).

Hartman v. Lyng
, 8 8 4 F.2d 1103, 1107 n.3 (8th Cir. 1989) (“ [ W] e need not, and there fore do not, rule on the sovere ign immunit y issue, g iven our c onclusion that the district court did not err in de clining to a

war d damag es.”)

.

United Handicapped Fed’n v. Andre
, 622 F.2d 342, 348 n.6 (8th Cir. 1980) (“We find that plaintiffs wer e not preva iling parties
ag ainst fede ral defe ndants. Under the circ u m s t ance s, we need not pass on the question of sover eig n immunit y .”).16

Ninth Circuit:

Olsen v. U.S. ex rel. Fed. Crop Ins. Corp.
, 334 F. App’x 834, 835 n.1 (9th Cir. 2009) (“I n light o f our deter

mination that the district court prope rly

vacated the aw ards, we need not a ddress whether the g overnme nt waived its sovere ign immunity .”).

Foti v. McH

ugh
, 247 F. App’x 899, 901 (9th Cir. 2007) (“B eca use the g overnm ent’s identification policy does not viola t e Appellants’ constitutional rig hts, we need not addre ss whethe r the district court proper ly dismiss ed

. . . on the basis of sover eig n immunit y .”).

Castaneda v. U.S. Dep’ t of Agric.
, 807 F.2d 1478, 1479 n.3 (9th Cir. 1987) (“B eca

use we aff

irm the dismiss al of Castaneda ’s action on the merit s , we need not resolve the dispute betwee n the parties as to whether the doctrine of sovere ign immunit y bars his action ag ainst the USDA.”)

.

Lehner v. United States
, 685 F.2d 1187, 1190 (9th C i r. 1 982) (“de clin[i ng ] to decide ” sovere ign- immunit y questio n wher e plainti ff “fa iled to alleg e fac ts which, if proven, would entitle her to re lief”)

.

Tenth Circuit:

W atson v. United States
, 485 F.3d 1100, 1111 n.9 (10th Ci r. 2007) (Gorsuc h, J .) (“ Beca use we aff

irm the district court’s holding that the g overnme nt was not neg lige nt in its car e of Mr. L ewis, we need not pa ss on . . . sovereig n immunit y [.] ”).17

Eleventh Circuit:

In re Gateway Radiology Consultant s, P.A.
, 983 F.3d 1239, 1255 n.7 (11th Cir. 2020) (“B eca use we hold for the [U.S

. Small Business Administration] on the merits, we need not and do not

rea ch the sove reig n immunit y issue.”).

F ederal Cir cuit:

Bluebon n et Sav. Bank, F.S.B. v. United States
, 266 F.3d 1348, 1358 (F ed. Cir. 2001); cf. Energy Nw. v. United States
, 641 F.3d 1300, 1311 n.6 (Fed

. Cir. 2011) (explaining that Bluebonnett “re jected [t he plaintiffs’] claim for inadequa te proof” and “d i d not take up the sove reig n immunit y question”).