United States District Court, W.D. Louisiana, Shreveport Division
ELIZABETH E. FOOTE UNITED STATES DISTRICT COURT
the Court is a renewed motion to dismiss, or alternatively, a
motion for relief from a prior order of the Court, filed by
the only remaining Defendant, Defense Finance and Accounting
Service ("DFAS"). See Record Document 48.
For the second time, DFAS seeks to dismiss the claims of
Plaintiff Matthew Johnson ("Johnson") due to an
alleged lack of subject matter jurisdiction based upon
sovereign immunity. Both Johnson's opposition to the
motion to dismiss and DFAS's reply in support of its
motion have been submitted [Record Documents 53 & 55],
and therefore the matter is ripe for review. Upon due
consideration of the briefing and the available
jurisprudence, and for the following reasons, DFAS's
motion is GRANTED.
Court reiterates the facts as set forth in its prior opinion:
According 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.
In 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 the FCRA.
federal government agency within the Department of Defense,
previously moved to dismiss Johnson's claims, arguing
that the Court lacks subject matter jurisdiction because the
United States has not waived sovereign immunity for FCRA
claims. The Court initially disagreed with that position and
denied DFAS's motion. Upon further consideration of the
matter, the Court finds that sovereign immunity has not been
unequivocally waived as required, and therefore holds the
United States may not be sued for a violation of the FCRA.
Federal Rule of Civil Procedure 12(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
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 Wagstaff 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).
Because a defect in subject matter jurisdiction may be raised
at any time, even on appeal, Giles v. NYLCare Health
Plans, Inc., 172 F.3d 332, 336 (5th Cir. 1999), this
Court is free to examine the issue now even though it
previously rendered an opinion on the matter.