United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
Anthony Robinson ('"Plaintiff" or
"Robinson') brings suit against Defendants
Pennsylvania Higher Education Assistance Agency d/b/a FedLoan
Servicing, the United States Department of Education
("USDE"). Equifax Information Services. LLC. and
Experian Information Solutions. Inc.. alleging claims under the
Pair Credit Reporting Act (FCRA). 1 5 U.S.C. § 1681
el seq., and common law defamation. Defendant USDE
has filed a Motion to Dismiss for Lack of Jurisdiction under
Fed.R.Civ.P. 12(b)(1). ECF No. 41. No hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016). For the following
reasons. Defendant's Motion to Dismiss is granted and
USDE is dismissed from this action.
motion to dismiss stage, the Court takes the allegations in
Plaintiffs Amended Complaint as true. Some time prior to
November 2011. Robinson "discovered that there were
Direct Loan student loan accounts being reported to his
Experian. Equifax, and Trans Union credit reports." ECF
No. 38 ¶ 8. Robinson had not authorized a student loan
account lo be opened in his name. Id. ¶ 9. In
November 2011, Robinson began disputing the Direct Loan
accounts with Experian. Equifax, and Trans Union
(collectively, the "'credit reporting agencies"
or "CRAs") as well as with FedLoan Servicing and
Direct Loans directly. Id. ¶ 10. In his disputes.
Plaintiff stated that the Direct Loan accounts were
"fraudulently opened in his name." and that he had
only authorized Direct Loan to perform a credit check, not to
open a loan account in his name. Id. ¶ 11.
Plaintiff requested a description of the CRAs"
investigations into these disputes. Id. ¶ 10.
Plaintiff also states that upon information and belief, the
CRAs forwarded his disputes to FLS for additional
investigation. Id. ¶ 12. In April 2014.
Plaintiff alleges that he provided a police report, a copy of
his driver's license, a copy of his credit reports, and
other documents in support of his disputes. Id.
tiled an Amended Complaint in this Court on June 3. 2015. ECF
No. 38. USDE tiled its Motion to Dismiss for Lack of
Jurisdiction on June 12. 2015. ECF No. 41. Plaintiff tiled an
Opposition to the Motion to Dismiss, ECF No. 46. and USDE
tiled a Reply. ECF No. 48
STANDARD OF REVIEW
is well established that before a federal court can decide
the merits of a claim, the claim must invoke the jurisdiction
of the court." Miller v. Brown. 462 F.3d 312.
316 (4th Cir. 2006). Federal Rule of Civil Procedure 12(b)(1)
governs motions to dismiss for lack of subject matter
jurisdiction. See Khoury v. Meserve, 268
F.Supp.2d 600. 606 (D. Md. 2003).aff'd. 85
F.App'x 960 (4th Cir. 2004). Once a challenge is made to
subject matter jurisdiction, the Plaintiff bears the burden
of proving that subject matter jurisdiction exists. See
Ferdinand -Davenport v. Children's Guild, 742
F.Supp.2d 772. 777 (D. Md. 2010) (citing Piney Run Pres.
Ass'n v. Cty. Comm 'rs of Carroll Cty. Md. 523
F.3d 453. 459 (4th Cir. 2008)). The Court should grant a Rule
12(b)(1) motion "only if the material jurisdictional
facts arc not in dispute and the moving party is entitled to
prevail as a matter of law." Evans v. B.F. Perkins
Co. a Div. of Standex Int'l Corp.,
166 F.3d 642. 647 (4th Cir. 1999).
The Fair Credit Reporting Act
enacted FCRA in 1970 to ensure fair and accurate credit
reporting, promote efficiency in the banking system, and
protect consumer privacy." Saunders v. Branch
Banking and Trust Co. of Va. 526 F.3d 142. 147 (4th Cir.
2008) (citing Safeco Ins. Co. of Am. v. Burr. 551
U.S. 47. 52 (2007)). The Act imposes civil liability on
"any person" who "willfully fails to comply
with any requirement imposed under this subchapter with
respect to any consumer." $ 168In. or who "is
negligent in failing to comply with any requirement imposed
under this subchapter." § 1681o. The Act
defines "person" to mean "any individual,
partnership. corporation, trust, estate, cooperative,
association, government or governmental subdivision or
agency, or other entity." § 1681 a(b). The parties
dispute whether "government or governmental subdivision
or agency" in the definition of "person"
includes the Department of Education, which is a federal
doctrine of "[s]overeign immunity shields the United
States from suit absent a consent to be sued that is
"unequivocally expressed.'" United States
v. Bormes. 133 S.Ct. 12. 16 (2012) (quoting United
States v. Nordic Vill., Inc. 503 U.S. 30, 33
(1092)). "[T]he Government's consent to be sued must
be construed strictly in favor of the sovereign, and not
enlarged beyond what the statute requires." Nordic
I'M.. 503 U.S. at 34 (internal quotations omitted).
A waiver of sovereign immunity cannot be implied, see L
'ailed Stales v. King, 395 U.S. 1. 4 (1969). and
"all ambiguities" are to be "resolved in favor
of the Government." DePhillips v. United
States. No. 8:09-CV-009()5. 2009 WL 4505877. at *2 (D.
Md. Nov. 24. 2009) (citing Nordic Vill. 503 U.S. at
34)). If sovereign immunity has not been waived, federal
courts lack subject matter jurisdiction over the claim.
DePhillips. 2009 WL 4505877 at *2 (citing
Verlinden B.V. v. Cent. Bank of Nig, 461 U.S. 480.
485 n.5 (1983)); McLean v. United States. 566 F.3d
391. 401-02 (4th Cir. 2009)). In its Motion to Dismiss.
Defendant USDE urges the Court to find that the FCRA does not
waive sovereign immunity for the federal government and
therefore that the Court does not have subject matter
jurisdiction. LCT No. 41-1 at 4-14.
the Supreme Court nor the Fourth Circuit has squarely ruled
upon whether the FCRA waives sovereign immunity. See
United States v. Bormes. 133 S. Ci 12. 20 (2012)
("We do not decide here whether FCRA itself waives the
federal Government's immunity to damages actions under
§ 168 In"): Bormes v. United Stales. 759
F.3d 793, 795 (7th Cir. 2014) ("As far as we can tell,
this is the first appellate decision on the issue."). In
United States v. Bormes, the Supreme Court held that
the Little fucker Act. 28 U.S.C. § 1346(a)(2). which
provides that "[t]he district courts shall have original
jurisdiction, concurrent with the United States Court of
Federal Claims, of. . . [a]ny .. . civil action or claim
against the United States, not exceeding $10, 000 in amount,
founded . . . upon . .. any Act of Congress." does not
waive sovereign immunity of the United States with respect to
violations of the FCRA. Bormes, 133 S.Ct. at 15.
However, the Supreme Court did not decide whether the FCRA
itself waives sovereign immunity, and instead remanded that
question hack to the Seventh Circuit. Id. at 20. The
Supreme Court instructed that "[s]ince FCRA is a
detailed remedial scheme, only its own text can
determine whether the damages liability Congress crafted
extends to the Federal Government." Id. at 19
(emphasis in original).
remand, the Seventh Circuit held that the FCRA waived
sovereign immunity. Bormes v. United States. 759
f'.3d 793. 795. In so holding, the Seventh Circuit relied
on the plain language of the definition "person."
which includes "government." Id. The court
referenced the history of the FCRA. noting that while Section
168 In. as originally enacted in 1970. applied only against
consumer reporting agencies. Congress amended Section 1681n
in 1996. expanding liability to all "persons"
Id. However. the legislative history did not discuss
how this expansion interacted with the existing definition of
"person" in § 1681a(b), which encompasses
"any . .. government." Id. at 795. The
United States, as defendant in Bormes, argued that
while it was a "person" for the purposes of the
Act's substantive requirements. Congress did not intend
for damages liability under § 1681 n to also apply to
the federal government. The Seventh Circuit responded,
"[b]ut if the United States is a 'person" under
§ 1681a(b) for the purpose of duties. how can it
not be one for the purpose of remedies?"
Id. at 795. It concluded accordingly. "Section
1681a(b) does what it has done since 1970. no matter what