Gillert v. Experian Information Solutions, Inc. et al
MEMORANDUM OPINION AND ORDER. Signed by Honorable Robert T. Dawson on September 7, 2010. (dmc)
Gillert v. Experian Information Solutions, Inc. et al
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION RANDY W. GILLERT v. Civ. No. 08-6080 DEFENDANT PLAINTIFF
U.S. DEPARTMENT OF EDUCATION MEMORANDUM OPINION AND ORDER
Plaintiff Randy W. Gillert, filed his complaint on January 25, 2008, against Experian Information Solutions, Inc.,1 ("Experian") and the U.S. Department of Education (the "United States"). Currently before the Court are the United States's Motion for Summary Judgment (doc. 30) and supporting documents (docs. 31-32), Plaintiff's Response (docs. 42-43) and United States's Reply (docs. 48-50). Also before the Court are Plaintiff's Motion to Strike the Declaration of Delfin M. Reyes (docs. 40), United States's Response (docs. 44-45), and Plaintiff's Reply (doc. 54). For the reasons
set out below, the United States's Motion (doc. 30) is GRANTED and Plaintiff's claims are dismissed with prejudice. The Motion to
Strike the Declaration of Delfin M. Reyes (doc. 40) is DENIED as moot. I. Background Plaintiff's complaint alleges that the United States violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq.,
A n order of dismissal as to Experian Information Solutions, Inc., was f i l e d on May 3, 2010 (doc. 58).
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Plaintiff's credit history and failing to take remedial action after Plaintiff disputed the accuracy of the information.
Specifically, Plaintiff alleges that the United States reported Plaintiff's account as having payments pass due during a period which Plaintiff contends he was granted a forbearance on repayment. Plaintiff alleges forbearance was granted in November 2006, which continued through May 2008. In 2007, however, Plaintiff's Plaintiff alleges he
credit report reflected late payments.
disputed the accuracy of the manner in which the United States reported the delinquency of his account. Plaintiff also alleges the United States agreed to update his account to reflect the
forbearance but this was never done. II. Standards The United States's motion for judgment on the pleadings is titled a Motion for Summary Judgment (doc. 30), however, its principle argument is for dismissal of Plaintiff's complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(c). The United States's motion alternatively
argues for dismissal for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), and for summary judgment, see Fed. R. Civ. P. 56(a). "[I]f a party raises an issue as to the court's subject matter jurisdiction on a motion for judgment on the pleadings, the
district judge will treat the motion as if it had been brought
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under Rule 12(b)(1)." Rutenschroer v. Starr Seigle Commc'ns, Inc., 484 F. Supp.2d 1144, 1148 (D. Hawai'i 2006)(quoting 5C Wright & Miller, Federal Practice and Procedure: Civil 2d § 1367 (3d ed. 2004)); see Jessie v. Potter, 516 F.3d 709, 712 (8th Cir.
2008)(citing Osborn v. United States, 918 F.2d 724, 728-30 (8th Cir. 1990))(holding "[m]otions to dismiss for lack of subjectmatter jurisdiction can be decided . . . at the pleading stage, like a Rule 12(b)(6) motion"). Accordingly, the Court will decide
the United States's motion to dismiss for lack of subject matter jurisdiction as if brought under Rule 12(b)(1). Oliver, 2007 WL 1456212 n.1 (D. Neb. See Harris v. the
uncertainty as to whether the defense of sovereign immunity raises a jurisdictional issue as a 12(b)(1) or 12(b)(6) motion)(citations omitted). As the Court concludes it lacks subject matter
jurisdiction over Plaintiff's claims, there is no need to address the alternative arguments. Rule 12(b)(1) allows the Court to dismiss any and all claims over which, either on their face or in light of outside evidence, it lacks proper subject matter jurisdiction. Fed. R. Civ. P.
12(b)(1). Two types of subject matter jurisdiction challenge exist under Rule 12(b)(1): "facial attacks" and "factual attacks". See
Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osborn, 918 F.2d at 729 (8th Cir. 1990). Facial attacks challenges subject
matter jurisdiction based solely on the allegations appearing on Page 3 of 8
the face of the complaint.
A factual attack is dependent upon the
resolution of facts in order to determine whether subject matter jurisdiction exists. Osborn, 918 F.2d at 729 (8th Cir. 1990).
If a motion makes a facial attack, the court must afford the non-moving party the same protections as it would be entitled to receive under Rule 12(b)(6). Id. at 729. On the other hand, if
the motion makes a factual attack, the court may rely upon matters outside the pleadings when considering such attack, and the nonmoving party does not receive the benefits of Rule 12(b)(6)'s safeguards. Id.
Claims of sovereign immunity are properly raised in a motion to dismiss for lack of subject-matter jurisdiction. Hagen v.
Sisseton-Wahpeton Comty. College, 205 F.3d 1040, 1043 (8th Cir. 2000); Brown v. U.S., 151 F.3d 800; 803-04 (8th Cir. 1998). On
such a motion, the party claiming jurisdiction has the burden of proving subject matter jurisdiction by a preponderance of the evidence. See OnePoint Solutions, LLC v. Borchert, 486 F.3d 342,
347 (8th Cir. 2007). The United States contends the Court is without proper subject matter jurisdiction based upon sovereign immunity. suggests the FCRA waives sovereign immunity. Plaintiff
The Court construes
the United States's motion as a factual attack on Plaintiff's complaint. to Accordingly, the Court will look outside the pleadings whether subject matter 8 jurisdiction exists over
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Plaintiff's claims. III. Discussion The United States contends this Court lacks subject matter jurisdiction to hear Plaintiff's claims because the federal
government has not waived sovereign immunity, and therefore, it is protected against private civil liability arising from violations of the FCRA. Plaintiff argues that the FRCA unambiguously waives
the United States's sovereign immunity because the definition of "person" in the FCRA's private civil enforcement provision includes the terms "government or governmental subdivision or agency[.]" It is a well-settled principle that the federal government, as sovereign, is immune from suit. (1990). U.S. v. Dalm, 494 U.S. 596, 608
A suit against the Department of Education, an agency of
the federal government, is a suit against the United States; therefore, sovereign immunity is guaranteed the same. See Dugan v. Rank, 372 U.S. 609, 620 (1963) (holding that where the judgment would be borne by the public treasury, the suit is against the sovereign). Sovereign immunity protects the federal government from suit except where Congress has "unequivocally expressed" a waiver of immunity. U.S. v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992); U.S. v. Hall, 269 F.3d 940, 942 (8th Cir. 2001)(citing Lane v. Pena, 518 U.S. 187, 197 (1996)("where a cause of action is
authorized against the federal government, the available remedies Page 5 of 8
are not those that are `appropriate,' but only those for which sovereign immunity has been expressly waived.") "A waiver of sovereign immunity `cannot be implied but must be unequivocally expressed.'" U.S. v. Mitchell, 445 U.S. 535, 538 (1980)(quoting U.S. v. King, 395 U.S. 1, 4 (1969)). A waiver of sovereign
immunity is to be narrowly construed in favor of the federal government, government's and any ambiguities Lehman v. resolved 453 in the federal 156, 161
(1981)(citations omitted); Rutten v. U.S., 299 F.3d 993, 995 (8th Cir. 2002)(citing Nordic Village, 503 U.S. at 34 (1992)). Section 1681o(a) of the FCRA provides "[a]ny person who is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer[.]" "person" to 15 U.S.C. §1681o(a). "mean any individual, Section 1681a(a) defines partnership, corporation,
trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity." 15 U.S.C. §1681a(a).
Plaintiff's argument that the FCRA waives sovereign immunity by including in the definition of "persons", the terms "government or governmental subdivision" is unconvincing. See e.g., Ralph v. U.S. Air Force MGIB, 2007 WL 3232593 *3 (D. Colo. Oct. 31, 2007)(holding "the United States has not consented to suit under [the FCRA]"); Bormes v. U.S., 638 F. Supp.2d 958, 962 (N.D. Ill. 2009)(holding that the FCRA's inclusion 8 of the generic term
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sovereign immunity); but see Talley v. U.S. Dept. of Agric., Slip Copy, 2009 WL 303134 (N.D. Ill. 2009)(holding "the term government or governmental subdivision or agency" in the FCRA is an express waiver of the United States'[s] sovereign immunity."), aff'd, 595 F.3d 754 (7th Cir. 2010), rehearing en banc granted, opinion vacated (7th Cir. Jun 10, 2010) (No. 09-2123). Even if Congress may have intended for the FCRA to waive the United States's sovereign immunity, the Court cannot find the provisions cited by Plaintiff sufficiently meet the requirements of an unequivocal expression of waiver. Cir. 2002). longstanding Plaintiff rules of argues, Rutten, 299 F.3d at 995 (8th other things, that the
Congress's clear and unambiguous intent to subject the United States to liability under the FCRA. Waiver of sovereign immunity,
cannot be implied from the interpretation of Congress's intent. See Lane, 518 U.S. at 192 (1996). It must be done clearly and expressly through statutory text. any provision government's in the FCRA that Id. Plaintiff has not cited to waives the federal
similarly do not remedy the FCRA's deficiency of an express waiver. The Court finds the FCRA does not contain an unequivocal and express waiver of sovereign immunity. without proper subject-matter Accordingly, the Court is and dismissal is
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proper. IV. Conclusion For the reasons set out above, the United States's Motion (doc. 30) is GRANTED, and Plaintiff's complaint (doc. 1) is
DISMISSED WITH PREJUDICE as to the U.S. Department of Education. Further, Plaintiff's Motion to Strike the Declaration of Delfin M. Reyes (doc. 40) is DENIED as moot. IT IS SO ORDERED this 7th day of September, 2010. /s/ Robert T. Dawson Honorable Robert T. Dawson United States District Judge
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