In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-3663

KENNETH A. MCCREADY,

Plaintiff-Appellant,

v.

JESSE WHITE, Secretary of State

of Illinois, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 03 C 5206—Paul E. Plunkett, Judge.

____________

SUBMITTED JUNE 29, 2005—DECIDED AUGUST 2, 2005

____________

Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit

Judges.

EASTERBROOK, Circuit Judge. The Driver’s Privacy

Protection Act of 1994, 18 U.S.C. §§ 2721-25, regulates the

disclosure and use of motor vehicle records. See Reno v.

Condon, 528 U.S. 141 (2000); Travis v. Reno, 163 F.3d 1000

(7th Cir. 1998). The statute’s caption—“Prohibition on

release and use of certain personal information from State

motor vehicle records”—conveys its gist. But Kenneth
2 No. 04-3663

McCready thinks that §2721(b) compels the release rather

than the withholding of certain information, and he wants

the district court to direct the State of Illinois to hand over

tidbits that will help him conduct his business of buying

cars auctioned to satisfy mechanics’ liens.

McCready believes that some lien holders, with the connivance or acquiescence of the state’s bureaucracy, remove

other security interests from title documents issued after a

sale. McCready sometimes purchases chattel paper representing other loans (or seeks to know who holds paper

that he could purchase) and wants details from the state’s

records that would help him to trace or validate these loans

and associated security interests. Illinois will not provide

this information—whether as a matter of state law, or of its

understanding of §2721(a), does not matter. Section 2721(b)

says that information covered by §2721(a), and thus

ordinarily held in confidence, “shall be disclosed for use in

connection with matters of motor vehicle or driver safety

and theft”, and McCready contends that obliterating

security interests from title records is a form of “theft.” The

district court, however, concluded that “theft” takes its

meaning from what follows in the subsection. Here is the

context:

Personal information referred to in subsection (a) shall

be disclosed for use in connection with matters of motor

vehicle or driver safety and theft, motor vehicle emissions, motor vehicle product alterations, recalls, or

advisories, performance monitoring of motor vehicles

and dealers by motor vehicle manufacturers, and

removal of non-owner records from the original owner

records of motor vehicle manufacturers to carry out the

purposes of titles I and IV of the Anti Car Theft Act of

1992, the Automobile Information Disclosure Act (15

U.S.C. 1231 et seq.), the Clean Air Act (42 U.S.C. 7401

et seq.), and chapters 301, 305, and 321-331 of title 49,
No. 04-3663 3

and, subject to subsection (a)(2), may be disclosed as

follows [in 14 additional subsections].

The judge read this language as compelling disclosure

only to the extent required by one of the specified statutes.

Another possibility is that the word “shall” in subsection (b)

is permissive rather than compulsory. “Shall” is a notoriously slippery word that careful drafters avoid. See Bryan

A. Garner, A Dictionary of Modern Legal Usage 939-41 (2d

ed. 1995). See also Castle Rock v. Gonzales, No. 04-278 (U.S.

June 27, 2005), slip op. 12; Gutierrez de Martinez v.

Lamagno, 515 U.S. 417, 432-33 n.9 (1995). Subsection (b) is

captioned “Permissible uses”, not “Obligatory disclosures”,

which implies that “shall” equals “may” in this construction.

The list after the language “may be disclosed as follows”

covers the same sort of uses that follow the word “shall,” so

unless “shall” means “may” the state both must, and need

not, disclose the same information to the same person.

McCready concedes that none of the statutes listed in

subsection (b) requires states to disclose the information he

wants. Nevertheless, he insists that the introductory

portion of subsection (b) operates independently, that it

compels rather than permits disclosure, and that omitting

a security interest from a title document is “theft.” Before

we decide whether §2721(b) requires disclosure and, if so,

of what—issues of first impression in any federal court— we

must inquire whether people who want information under

§2721(b) have a private right of action. That, too, is an issue

of first impression and is the appropriate starting

point—though not, as the defendants suppose, because it is

“jurisdictional.”

Defendants moved to dismiss under Fed. R. Civ. P.

12(b)(1) for lack of federal subject-matter jurisdiction. Ensuring the existence of subject-matter jurisdiction is the

court’s first duty in every lawsuit. See Steel Co. v. Citizens

for a Better Environment, 523 U.S. 83 (1998). It is not hard
4 No. 04-3663

to see a source of federal jurisdiction, however. McCready

makes a claim that rests entirely on federal law, and 28

U.S.C. §1331 supplies jurisdiction to entertain such claims.

That McCready’s theory may be bad substantively does not

negate that jurisdiction. See Bell v. Hood, 327 U.S. 678

(1946). Although some language in Merrell Dow

Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986),

might have been read to imply that the existence of a

private right of action under federal law is essential to

jurisdiction, the opinion in Grable & Sons Metal Products,

Inc. v. Darue Engineering & Manufacturing, No. 04-603

(U.S. June 13, 2005), slip op. 7-11, puts the kibosh on that

possibility. The district court had jurisdiction.

What is missing is not jurisdiction but a right of action.

The statute authorizes private suits, but only by persons

whose information has been disclosed improperly. 18 U.S.C.

§2724(a). McCready tries to avoid this limitation by invoking 42 U.S.C. §1983, which may supply a claim against state

actors even when the underlying statute lacks express

authorization for private litigation. See Maine v. Thiboutot,

448 U.S. 1 (1980). Yet §1983 provides a remedy only for the

violation of “rights, privileges, or immunities secured by the

Constitution and laws” of the United States. “Rights” differ

from “broader or vaguer ‘benefits’ or ‘interests’ ” that some

statutes create. See Gonzaga University v. Doe, 536 U.S.

273, 283 (2002). The Court concluded in Gonzaga that the

existence of personal rights is essential to a claim under

§1983 and that the standard for “discerning whether

personal rights exist in the §1983 context” is no different

from that “in discerning whether personal rights exist in

the implied right of action context.” Id. at 285. This means

concretely that only statutes conferring rights on identifiable persons may be enforced through §1983—and the

Court added that “if Congress wishes to create new rights

enforceable under §1983, it must do so in clear and unambiguous terms—no less and no more than what is required

for Congress to create new rights enforceable under an
No. 04-3663 5

implied private right of action.” Id. at 290. The Court’s

oxymoron—how can an “implied” right of action be phrased

in “clear and unambiguous terms,” when statutory silence

is what poses the question whether a right may be implied?—does not detract from the point of its message:

§1983 depends on person-specific “rights.” What must be

“clear and unambiguous” in the Court’s formulation is the

right-creating language.

Any possibility that Gonzaga is limited to statutes that

rest on the spending power (as the law in Gonzaga did) has

been dispelled by Rancho Palos Verdes v. Abrams, 125

S. Ct. 1453, 1458 (2005), which treats Gonzaga as establishing the effect of §1983 itself. Thus we must ask whether

§2721(b) creates person-specific rights, and it does not take

close analysis to produce a negative answer. The rule is

phrased in the passive (information “shall be disclosed”)

and does not say either who does the disclosing or who is

entitled to receive information. The list after the phrase

“may be disclosed as follows” does identify some beneficiaries—but McCready is not among them, and the use of

“may” demonstrates that even those who are on the list lack

enforceable rights. The language on which McCready relies

stops well short of creating an individual entitlement along

the lines that the Court has deemed sufficient in the past.

Compare Cannon v. University of Chicago, 441 U.S. 677

(1979), and Franklin v. Gwinnett County Public Schools,

503 U.S. 60 (1992), with Touche Ross & Co. v. Redington,

442 U.S. 560 (1979), and Karahalios v. National Federation

of Federal Employees, 489 U.S. 527 (1989). “For a statute to

create . . . private rights, its text must be phrased in terms

of the persons benefited.” Gonzaga, 536 U.S. at 284 (internal quotation marks omitted). Section 2721(b) does not

confer entitlements on identified beneficiaries. Because

McCready is no different from any other member of the

public, so far as §2721(b) is concerned, he can’t use §1983 to

supply the private right of action missing from §2724(a).

AFFIRMED
6 No. 04-3663

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-2-05