United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta, United States District Judge.
consider [trial by jury] as the only anchor, ever yet
imagined by man, by which a government can be held
to the principles of its constitution.” -
on a jury is among the most important responsibilities of an
American citizen. Undoubtedly, fulfilling that obligation
interrupts day-to-day life, including taking time away from
work. To lessen the inconvenience and financial burden that
jury service poses, the federal government and the States
compensate jurors for their service. In this modern era, the
government has the option of compensating jurors by cash,
checks, or, as in the present case, debit cards. Often times,
the government partners with privately owned banks to
distribute juror compensation.
William Mark Scott and Ronald Morin allege that they served
on juries in the Superior Court of the District of Columbia
and received debit cards containing their juror compensation,
but did not receive all the compensation to which they were
entitled. Specifically, Plaintiffs complain that Defendant
J.P. Morgan Chase & Co. forced them to receive their
compensation on debit cards, provided them with misleading
information about those cards, structured the debit card
program so as to prevent them from receiving their full
compensation, and charged them outrageous fees for using that
compensation. They filed this putative class action against
Defendant on behalf of themselves and all others similarly
situated, demanding a jury trial and seeking declarative,
injunctive, and compensatory relief under state and federal
the court are Defendant's Motion to Dismiss and
Plaintiffs' Motion to Strike. Defendant asks the court to
dismiss Plaintiffs' Consolidated Complaint on the grounds
that it fails to name necessary and indispensable parties; it
does not state a claim against Defendant; and Defendant is
otherwise immune from suit under the doctrine of derivative
sovereign immunity. Plaintiff not only opposes
Defendant's Motion but also moves to strike the documents
Defendant attached to that Motion.
reasons that follow, the court denies Plaintiffs' Motion
to Strike and Defendant's Motion to Dismiss with respect
to Defendant's claim of derivative sovereign immunity.
The court defers ruling on the remaining issues in
Defendant's Motion. Rather, the court will permit the
parties to conduct limited discovery concerning
Defendant's assertion that it is immune from suit for its
actions relating to the District of Columbia Courts'
juror compensation program.
Secretary of the United States Department of the Treasury has
authority to designate and employ commercial national banks
as its financial agents in order to efficiently distribute
public monies. 12 U.S.C. § 90; United States v.
Citizens & S. Nat'l Bank, 889 F.2d 1067, 1069
(Fed. Cir. 1989). Money does not lose its public character
merely by being held in the coffers of commercial banks.
See Citizens & S. Nat'l Bank, 889 F.2d at
1069 (referencing Branch v. United States,
12 Ct. Cl. 281 (1876), aff'd, 100 U.S. 673
(1880)). Instead, the money continues to “be regarded
as in the public Treasury.” Id. (internal
quotation marks omitted).
September 2008, the Secretary of the Treasury, acting through
the Department of the Treasury's Financial Management
Service bureau (“the FMS”), designated Defendant
J.P. Morgan Chase & Co. as a federal financial agent and
memorialized the relationship in a “Financial Agency
Agreement.” See Def.'s Mot. to Dismiss,
ECF No. 18 [hereinafter Def.'s Mot.], Attach. 1, ECF No.
18-1 [hereinafter Levine Decl.], ¶ 2; Def.'s Mot.,
Ex. 1, ECF No. 18-2 [hereinafter FAA]. The agreement took
effect on October 1, 2008, and remained in effect until June
30, 2017. See FAA ¶ 2.A; FAA, Amend. 3;
Def.'s Reply in Supp. of Def.'s Mot. to Dismiss, ECF
No. 22 [hereinafter Def.'s Reply], Attach. 1, ECF No.
22-1 [hereinafter Second Levine Decl.], ¶ 3; Def.'s
Reply, Ex. 1, ECF No. 22-2 [hereinafter FAA Ext.]. As the
Department of the Treasury's financial agent, Defendant
was responsible for executing the U.S. Debit Card Program for
federal agencies. See FAA, Ex. A. In the spring of
2012, the Department of the Treasury extended the U.S. Debit
Card Program to the District of Columbia government.
Specifically, the FMS and “District of Columbia
Courts” executed a Memorandum of Understanding on April
18, 2012, to use the U.S. Debit Card Program to compensate
jurors who serve in the Superior Court of the District of
Columbia (“D.C. Superior Court”). See
Def.'s Mot., Ex. 2, ECF No. 18-3 [hereinafter DTA],
¶ 1. On that same date, the FMS also executed a
“Direction to Agent” order that instructed
Defendant “to provide U.S. Debit Card Program products
and services to DC Courts, ” effective April 18, 2012,
until March 14, 2013, unless extended. Id.
William Scott and Ronald Morin served on juries in D.C.
Superior Court in July 2016 and January 2017, respectively.
See Unopposed Mot. to Consolidate, ECF No. 14
[hereinafter Mot. to Cons.], Consolidated Class Action
Compl., ECF No. 14-2 [hereinafter Cons. Compl.], ¶¶
24-25. Jurors in D.C. Superior Court receive a “travel
allowance” of $4 for each day they travel to the
courthouse in response to a jury summons and, if selected,
they receive an additional “attendance fee” of
$30 for each day they serve on a jury. See D.C. Code
§ 15-718(a), (b), (e); About Jury Duty, D.C.
(“Subsidy” tab) (last visited Oct. 29,
2017). As a result of Plaintiffs' jury
service, Plaintiffs each received a debit card, issued by
Defendant, that contained juror compensation, along with
written information and instructions about how to access the
funds on the card. Cons. Compl. ¶¶ 24-25, 35.
materials Plaintiffs received outlined the steps required to
access their juror compensation. Jurors must activate their
debit cards prior to using them by visiting Defendant's
website. See Id. ¶¶ 43-44. The website
requires the juror to accept the “Terms of
Service” for use of the website, although those Terms
of Service do not contain information specific to debit cards
received in connection with jury duty. See Id.
¶¶ 47-48. Jurors also must confirm that they are
the individual to whom the card was issued by providing
personal information, such as their date of birth and zip
code, and then select a personal identification number.
Id. ¶ 49. The information Plaintiffs received
also outlined certain fees attending the use of their cards.
See Id. ¶ 73; Def.'s Mot., Ex. 3, ECF No.
money available on a card can either be withdrawn or used as
a cash equivalent. When a juror withdraws money, that
transaction is subject to certain fees that are applied to
the balance on the card. If a juror elects to withdraw part
of or all her juror compensation at one of Defendant's
branch locations or at a credit union, then Defendant charges
her $7. Cons. Compl. ¶¶ 63, 73.Alternatively,
jurors can seek to have the money on their debit cards issued
by check, but Defendant charges a $15 check fee. Id.
¶¶ 64, 73. As a third option, jurors may use an
automated teller machine (“ATM”) to access their
juror compensation, but certain ATMs charge fees. After one
free ATM withdrawal, a juror must use one of Defendant's
ATMs or an ATM of another bank in Defendant's network
(“in-network ATM”) for subsequent withdrawals in
order to avoid incurring a fee. Id. ¶¶ 59,
73, 97. Defendant's website, however, does not identify
any Defendant ATMs or in-network ATMs in the District of
Columbia. Id. ¶ 60. If a juror chooses to use
an out-of-network ATM, then Defendant charges a $2 fee, and
the out-of-network ATM's bank charges a separate fee.
See Id. ¶¶ 59, 73. Jurors cannot add money
to their debit cards, and, typically, they are only able to
make ATMS withdrawals in increments of $20. See Id.
¶¶ 61, 82.
debit cards also can be used like cash, but a juror
encounters certain fees if she does not know her balance at
the time she uses her card. As a general matter, there is no
fee when a juror uses her debit card to purchase an item.
See Id. ¶ 73. Defendant charges $0.25, however,
for a declined transaction. Id. ¶¶ 68, 73.
That fee attaches each time a juror tries to make a purchase
for which there are insufficient funds. See Id.
¶¶ 69, 73. A juror can avoid an insufficient funds
fee by knowing her precise balance on the card and asking the
retailer to use a sum certain towards a purchase, with the
remainder of the purchase made by other means-a method of use
known as a “split transaction.” See
Hr'g Tr. (draft), Sept. 29, 2017, at 27-28. A juror,
therefore, can avoid fees most easily if she knows the
balance on the debit card. See id.
the card's balance, however, might itself involve a fee.
There is no fee associated with making an account balance
inquiry through Defendant's website. See
Def.'s Mot., Ex. 3, ECF No. 18-4; Hr'g Tr. (draft),
Sept. 29, 2017, at 61. But if a juror checks her debit
card's balance at an ATM, regardless of whether the ATM