# Johnson v. Trans Union L L C

> District Court, W.D. Louisiana · July 15, 2019

URL: https://www.frixlaw.com/law-library/cases/10193080

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** July 15, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10193080

## How later opinions describe it (automated extraction)

- holding that the absence of a waiver of sovereign immunity is a jurisdictional defect

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

MATTHEW JOHNSON CIVIL ACTION NO. 16-1240
VERSUS JUDGE ELIZABETH ERNY FOOTE
TRANS UNION, LLC and DEFENSE MAGISTRATE JUDGE HORNSBY
FINANCE AND ACCOUNTING
SERVICE
MEMORANDUM RULING
Before 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.
FACTUAL BACKGROUND
The 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.
Record Document 27.
DFAS, a 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.
LAW AND ANALYSIS
I, Federal Rule of Civil Procedure 12(b)(1).
Motions 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

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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.”
Id.
“A 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.

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I. Sovereign Immunity.
“In order to hale the federal government into a court proceeding, a plaintiff must
show that there has been a valid waiver of sovereign immunity.” Wagstaff, 509 F.3d at
663 (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. Wagstaff, 509
F.3d at 664. A waiver is strictly construed in favor of the sovereign. Id. In other words,
if there is a countervailing, plausible interpretation of the statute under which suit or
recovery would not be permitted against the United States, then the statute must be
deemed ambiguous; and an ambiguity, by logical extension, cannot lead to a finding of a
waiver. See FAA v. Cooper, 566 U.S. 284, 290-91 (2012). Without a waiver of sovereign
immunity, “the federal government is immune from suit.” Id.
Ill. The FCRA.
Johnson sued DFAS under the FCRA, which imposes liability on any person who
willfully or negligently fails to comply with the Act's requirements. 15 U.S.C. §§ 1681n(a),
16810(a). The term “person” is defined as “any individual, partnership, corporation, trust,
estate, cooperative, association, government or governmental subdivision or agency, or
other entity.” 15 U.S.C. § 1681a(b) (emphasis added). The question presented to this

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Court is whether the inclusion of “government” and/or “governmental subdivision or
agency” constitutes an unequivocal waiver of sovereign immunity for the United States.
Previously, this Court held that the statute’s explicit use of the term “government”
and “governmental . . . agency” provided a sound basis for finding a waiver of sovereign
immunity even though Congress did not specifically authorize suit or recovery against “the
United States.” When this Court issued its prior opinion, the Fifth Circuit had not been
confronted with this issue.’ Indeed, only one appellate court had actually addressed this
question, and that court decided that the FCRA did waive sovereign immunity. In Bormes
v. United States, 759 F.3d 793, 795 (7th Cir. 2014), the Seventh Circuit succinctly stated
that “[t]he United States is a government. One would suppose that the end of the inquiry.
By authorizing monetary relief against every kind of government, the United States has
waived its sovereign immunity. And so we conclude.” As Bormes explained, “what §
1681a(b) does is waive sovereign immunity for all requirements and remedies that another
section authorizes against any ‘person.’ Congress need not add ‘we really mean it!’ to
make statutes effectual.” Bormes, 759 F.3d at 796. Further, with regard to the potential
consequences caused by exposure under the Act, “[i]f the interaction of § 1681a(b) and
§ 1681n(a)(2) creates excessive liability—which it won't if federal officers obey the
statute—then the solution is an amendment, not judicial rewriting of a pellucid definitional
clause.” Id. Persuaded by Bormes, this Court followed suit in holding the FCRA waived
sovereign immunity.

* To date, the Fifth Circuit still has not had occasion to address the Government's
sovereign immunity in the context of the FCRA.
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At the time the Court rendered its opinion, there was no consensus among district
courts or the appellate courts, nor is there today. Courts interpreting the same statutory
provisions have reached and continue to reach contrary conclusions. This Court’s opinion
coincided not only with the Seventh Circuit in Bormes, but also other district courts within
the Fifth Circuit, as well as district courts in the Sixth, Tenth, and Eleventh Circuits. Those
opinions have not been overturned. However, since then, the Seventh Circuit has arguably
retreated from the stance it took in Bormes. Indeed, in Meyers v. Oneida Tribe of Indians
of Wis., 836 F.3d 818 (7th Cir. 2016), the court was faced with deciding whether the FCRA
waived sovereign immunity against tribal governments. Offering little meaningful
explanation, the court refused to extend Bormes, instead holding that the FCRA did not
waive sovereign immunity for Indian tribes, even though Indian tribes are governments.
See Meyers, 836 F.3d at 826-27.
In the wake of Bormes and Meyers, both the Fourth and Ninth Circuits have issued
opinions finding that the FCRA does not unequivocally waive sovereign immunity. See
Robinson v. United States Dep't of Educ., 917 F.3d 799 (4th Cir. 2019) and Daniel v. Nat’
Park Serv., 891 F.3d 762 (9th Cir. 2018). One of the observations made by those courts
is the extent of ambiguity within the FCRA itself. That is, while certain FCRA provisions
could certainly appear to include the United States and could be construed as a waiver of
sovereign immunity, other provisions cast doubt on Congress’s intent, thus leading to the
inevitable conclusion that a waiver cannot be borne from ambiguity. It is the holistic
approach taken by these courts in examining the FCRA, and the exploration of inconsistent

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internal provisions and/or sweeping consequences that could result from enforcement, that
lead this Court to agree that Congress “legislate[d] on a sensitive topic inadvertently or
without due deliberation.” Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 139
(2005).
A holistic review of the FCRA is consistent with the Supreme Court’s admonition that
“oftentimes the ‘meaning—or ambiguity—of certain words or phrases may only become
evident when placed in context.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (quoting
FDA v. Brown & Williamson, 529 U.S. 120, 132 (2000)). A determination of whether
statutory language is plain and clear requires a review of the words “in their context and
with a view to their place in the overall statutory scheme.” Id. (quoting Brown &
Williamson, 529 U.S. at 133). Here, the Court’s overarching duty is not to construe isolated
provisions but rather a complete statute. Id. (citing Graham Cty. Soil and Water
Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 290 (2010)).
The Court begins with the consideration that in Bormes, the United States conceded
that it was a person for purposes of the Act’s substantive requirements; its argument was
only as to whether damages were available against it. Clearly, those advocating on behalf
of the United States since Bormes have changed tack and no longer make such a powerful
concession. Nonetheless, there is not much dispute in the jurisprudence that within the
FCRA, Congress's definition of the term person is broad. In large part, it was this broad
definition that prompted this Court to follow Bormes’s path in finding that the term person,
which includes government, also included the United States government. Both the Fourth

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and Ninth Circuits recognized the broad definition of person, but those courts declined to
base their conclusions upon that isolated definition, as the term person was not being
interpreted on “a blank slate. ‘There is a longstanding interpretive presumption that person
does not include the sovereign,’” even though the term person includes government within
its definition. Robinson, 917 F.3d at 802 (quoting Vt. Agency of Nat. Res. v. U.S. ex rel
Stevens, 529 U.S. 765, 780 (2000)). Robinson explained that “the United States is not
ordinarily considered to bea person.” Id. Similarly, Daniel instructed that reading the term

person to mean the United States throughout the entire FCRA would lead to implausible
and awkward results, which alone demonstrates Congress did not intend the United States
to be subject to all of the statute’s provisions. Daniel, 891 F.3d at 770. These implausible
and awkward possibilities included criminal penalties against the United States, as well as
authorization for United States agencies and state governments to investigate and sue the
United States for damages.? The Ninth Circuit “doubt[ed] that Congress meant to build a
novel enforcement regime without doing so explicitly.” Id. at 771.
Furthermore, under the broader reading of the term person, punitive damages
would be available against the United States. Typically, it is presumed that Congress does

not intend to authorize the recovery of punitive damages from the United States. DFAS
noted this very principle in support of its motion to dismiss, contending that Congress
would not have intended to open the United States up to the possibility of far-reaching

2 Essentially, as Daniel observed, the United States could sue itself under the
FCRA and then collect damages from itse/f, which makes little sense.
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punitive damages upon a violation of the statute.* DFAS also recognized, however, that
Congress did, in fact, authorize punitive damages against the United States within a certain
subsection of the FCRA. So, as the Daniel court summarized, insofar as statutory
interpretation goes, the analysis of punitive damages “cuts both ways.” Daniel, 891 F.3d
at 772 n.6. Significantly, though, it does reveal that Congress knew how to explicitly
include the “United States” when it wanted to. Knowing that Congress specifically included
the United States when it so intended creates ambiguity about whether it really meant for
the terms person and government to also include the United States within their meaning.
That some of the interpretations of the statutory language and intent cut both ways
is ultimately dispositive of the question before the Court. It reveals that there are varying
plausible interpretations of the statute. In light of that conclusion, this Court can no longer
“say with perfect confidence that Congress meant to abrogate” sovereign immunity.
Daniel, 891 F.3d at 774. Since “imperfect confidence will not suffice,” Dellmuth v. Muth,
491 U.S. 223, 231 (1989), this Court must find that sovereign immunity has not been
waived. As such, Johnson cannot maintain his suit against DFAS.

3 As the Robinson court aptly pointed out, “it remains the province of the political
branches, not the courts, to weigh the costs and benefits of exposing the federal
government to civil litigation.” Robinson, 917 F.3d at 801. This very notion caused this
Court to reject DFAS’s cries about the unintended and grievous consequences that may
result from a waiver of sovereign immunity. It is not this Court’s duty to rewrite the
statutory text to countermand the far reaches of a statute’s penalty provisions. This
Court’s duty is to interpret the text as written.
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CONCLUSION
For the foregoing reasons, the Court concludes that the FCRA does not contain a
clear, unequivocal, and unambiguous waiver of sovereign immunity. Accordingly, this
Court lacks subject matter jurisdiction over Johnson’s claims against DFAS. DFAS’s motion
to dismiss [Record Document 48] be and is hereby GRANTED, and Johnson's claims are
DISMISSED WITHOUT PREJUDICE.
A judgment consistent with this Memorandum Ruling will issue herewith.
THUS DONE AND SIGNED on this __/ Of J cay of July, 2019.

ELIZABETH E/ FOOTE
UNITED “om COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10193080. Public record. Not legal advice.