United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE.
ELIZABETH ERNY FOOTE UNITED UNITED DISTRICT COURT JUDGE.
the Court is a motion to dismiss, filed by Defendant Defense
Finance and Accounting Service ("DFAS"). See Record
Document 21. Arguing a lack of subject matter jurisdiction,
DFAS seeks dismissal of Matthew Johnson's
("Johnson") claims against it pursuant to Federal
Rule of Civil Procedure 12(b)(1). Johnson has filed an
opposition to the motion to dismiss, Record Document 23, to
which DFAS has replied, Record Document 24. For the reasons
that follow, DFAS's motion to dismiss shall be
to Johnson's complaint, he was a member of the Texas
National Guard in 2007. He was scheduled to attend drill in
August 2007. The August drill was cancelled, and Johnson
attended drill in November 2007 instead. DFAS, a federal
agency, paid Johnson for the August drill he did not attend,
but did not pay him for the November drill that he did
attend. Therefore, Johnson was ultimately paid the correct
amount for the number of drills he attended.
2014, Johnson received a letter from DFAS seeking
reimbursement of the payment for the August 2007 drill he did
not attend. Johnson has repeatedly sought to explain the
circumstances to DFAS, that is, that he was not overpaid at
all. Nonetheless, DFAS reported the debt to Trans Union,
Experian, and Equifax, all of which are credit reporting
agencies. The debt was noted as a "derogatory, charged
off debt." In October 2015, Johnson disputed Trans
Union's inclusion of the debt on his credit report, thus
requiring Trans Union to perform a reasonable investigation
of the dispute under the Fair Credit Reporting Act
("FCRA"), 15 U.S.C. § 1681 et seq. Johnson
then brought suit under the FCRA, alleging that both Trans
Union and DFAS violated multiple provisions of that Act which
require reasonable investigations be conducted into both the
debt and the dispute. As a result of the alleged failure to
comply with the FCRA, coupled with the fact that the debt has
remained on his credit report, Johnson seeks damages under
federal government agency within the Department of Defense,
filed the instant motion to dismiss, arguing that the Court
lacks subject matter jurisdiction over Johnson's claims
because the United States has not waived sovereign immunity
for FCRA claims. The Court disagrees.
Federal Rule of Civil Procedure l2(b)(1).
filed pursuant to Federal Rule of Civil Procedure 12(b)(1)
allow a party to challenge the subject matter jurisdiction of
the district court to hear a case. "Lack of subject
matter jurisdiction may be found in any one of three
instances: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts." Ramming
v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The
burden of proof for a Rule 12(b)(1) motion to dismiss is on
the party asserting jurisdiction. See Id. In
reviewing a Rule 12(b)(1) motion to dismiss, "the
district court is empowered to consider matters of fact which
may be in dispute." Id. "Ultimately, a
motion to dismiss for lack of subject matter jurisdiction
should be granted only if it appears certain that the
plaintiff cannot prove any set of facts in support of his
claim that would entitle plaintiff to relief."
case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case." Home
Builders Ass'n, Inc. v. City of Madison, Miss., 143
F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v.
Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d
Cir. 1996)). If sovereign immunity is not expressly waived
under the FCRA, this Court is deprived of subject matter
jurisdiction over Johnson's claims against DFAS. See
Waastaff v. U.S. Dep't of Educ, 509 F.3d 661,
664 (5th Cir. 2007) (holding that the absence of a waiver of
sovereign immunity is a jurisdictional defect).
order to hale the federal government into a court proceeding,
a plaintiff must show that there has been a valid waiver of
sovereign immunity." Id. (quoting Lewis v.
Hunt, 492 F.3d 565, 570 (5th Cir. 2007)).
"Sovereign immunity shields the United States from suit
absent a consent to be sued that is 'unequivocally
expressed.'" United States v. Bormes, 568
U.S. 6, 9-10 (2012) (quoting United States v. Nordic
Village, Inc., 503 U.S. 30, 33-34 (1992)). A waiver of
sovereign immunity will not be implied; rather, it must be
unequivocally expressed in statutory text. Waastaff,
509 F.3d at 664. A waiver is ...