Submitted: October 16, 2017
from United States District Court for the District of
Minnesota - Minneapolis
SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.
MURPHY, Circuit Judge.
Bautista Berenguer sued various municipalities and their
employees, alleging violations of the Driver's Privacy
Protection Act ("DPPA"), 18 U.S.C. §§
2721-25. After the issuance of our opinions in McDonough
v. Anoka County, 799 F.3d 931 (2015), and Tichich v.
City of Bloomington, 835 F.3d 856 (2016), Berenguer
conceded that only his claims against the City of Bloomington
and the City of Shakopee were timely and plausible.
Defendants' motions to dismiss for failure to state a
claim were granted by the district court,  which ruled that
Berenguer had failed to plead frequent suspicious accesses by
either Bloomington or Shakopee. Berenguer appeals, and we
Bautista Berenguer is a former Major League Baseball player
who pitched for two World Series winners: the 1984 Detroit
Tigers and the 1987 Minnesota Twins. After retiring from
baseball in 1992, he settled in Minnesota where he lives
today. Berenguer requested an audit by the Minnesota
Department of Public Safety in May 2014. The audit revealed
that officers from over thirty different departments had
accessed his information more than 125 times after 2005.
Berenguer requested further information, which revealed that
on several occasions officers had also accessed the names of
his children, Jody and Andrew Berenguer.
DPPA prohibits state motor vehicle departments from
disclosing personal information contained in a record except
for uses explicitly permitted by the statute. See 18
U.S.C. § 2721(a)-(b). Any "person who knowingly
obtains, discloses or uses personal information, from a motor
vehicle record, for a purpose not permitted" is liable
to the individual accessed. Id. § 2724. A court
may award an individual whose personal information has been
improperly accessed "actual damages, but not less than
liquidated damages in the amount of $2, 500, " attorney
fees, and also punitive damages when there is "proof of
willful or reckless disregard of the law." Id.
December 10, 2014, Berenguer filed suit against thirty-six
municipalities, the current and former commissioners of the
Minnesota Department of Public Safety, hundreds of John and
Jane Does, and fifty Entity Does. Berenguer's complaint
alleged that these entities and individuals had violated the
DPPA by accessing or disclosing his personal information
without a permissible purpose. Many of the defendants moved
to dismiss the claims as insufficiently pled and barred by
the statute of limitations. Berenguer's case was
informally stayed pending decisions in other cases with
similar issues. After Tichich was decided in 2016,
the district court asked the parties to submit supplemental
briefs to address the potential impact of prior decisions on
supplemental brief to the district court conceded that only
his claims against the cities of Bloomington and Shakopee
were timely under McDonough. Berenguer's audit showed
that employees at the Shakopee police department had obtained
his information on four different occasions between 2005 and
2011-once within the statute of limitations. Employees at the
Bloomington police department had accessed it nineteen times
between 2005 and 2011. The audits for Berenguer's
children revealed five simultaneous accesses by employees at
Bloomington and Shakopee (four from Bloomington and one from
Shakopee). Only one of these accesses came within the statute
of limitations (one by the Bloomington police department).
The district court concluded that the accesses had not shown
an impermissible purpose and granted defendants' motions
to dismiss. Berenguer appeals.
preliminary matter, defendants argue for the first time on
appeal that Berenguer lacks Article III standing to bring his
DPPA claim because he did not demonstrate an injury in fact.
III standing requires "(1) an injury that is (2)
'fairly traceable to the defendant's allegedly
unlawful conduct' and that is (3) 'likely to be
redressed by the requested relief.'" Lujan v.
Defenders of Wildlife, 504 U.S. 555, 590 (1992) (quoting
Allen v. Wright, 468 U.S. 737, 751 (1984)). Although
Congress cannot evade Article III's standing requirement
by conferring the right to sue on a person who would not
otherwise have standing, Spokeo, Inc. v. Robins, 136
S.Ct. 1540, 1548 (2016), Congress may "elevate de
facto concrete injuries, whether tangible or intangible,
into legally cognizable injuries." Heglund v. Aitkin
County, 871 F.3d 572, 577 (8th Cir. 2017). When
considering whether an intangible harm constitutes an injury
in fact, courts examine whether the alleged harm "has a
close relationship to a harm that has traditionally been
regarded as providing a basis for a lawsuit in English or
American courts." Spokeo, 136 S.Ct. at 1549.
person's control over information concerning her person
was a cognizable concept in the common law as an invasion of
privacy, Heglund, 871 F.3d at 577-78, and Congress
has explained that the DPPA was intended as protection
against "potential harm to privacy from state officials
accessing drivers' personal information for improper