United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
Page Hood Chief Judge, United States District Court
12, 2017, Plaintiff Kyisha Jones (“Jones”)
brought this action against Defendant United States
Department of Agriculture (“USDA”), alleging that
the USDA provided false information on Jones's consumer
reports in violation of the Fair Credit Reporting Act (FCRA),
15 U.S.C. §§ 1681 et seq. Jones requests
monetary damages, among other things. The matter is before
this Court on the USDA's Motion to Dismiss for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1). (Doc # 8) Jones filed a Response on
November 2, 2017. (Doc # 11) On November 16, 2017, the USDA
filed a Reply. (Doc # 12)
was charged by the USDA for health insurance costs. (Doc # 1,
Pg ID 2) In March 2016, Jones was contacted by the USDA and
made aware that she had an outstanding balance on unpaid
medical insurance bills. (Id.) Jones subsequently
made payment arrangements with the USDA, and attempted to get
the charges waived. (Id.) During October 2016, Jones
paid the entire outstanding balance alleged by the USDA.
claims to have discovered false, derogatory information being
reported by the USDA on her consumer reports during December
2016. (Id.) Jones alleges the USDA was reporting
that Jones still owed a balance, and that she was 120 days
late in making several payments. (Id.) Jones
disputed the allegedly false information being distributed by
the USDA. (Id.)
also sent a description of her dispute regarding the
allegedly false USDA information and an explanation to each
of the three major credit reporting agencies. (Doc # 1, Pg ID
3) Jones requested that the credit reporting agencies
reinvestigate and correct the allegedly false USDA
information pursuant to 15 U.S.C. § 1681i.
(Id.) Each of the three credit reporting agencies
responded to Jones by requesting that the USDA verify the
allegedly false information. (Id.) The USDA
responded by verifying the accuracy of a significant portion
of the allegedly false information. (Id.) Jones
alleges the USDA failed to reasonably reinvestigate under 15
U.S.C. § 1681s-2(b), and that the failure was either
willful, or alternatively, negligent. (Id.) Jones
alleges she has suffered, and continues to suffer, damages as
a result of the USDA's failure to abide by the
requirements of 15 U.S.C. § 1681s-2(b).
USDA argues that Jones's case should be dismissed for
lack of subject matter jurisdiction because the FCRA does not
include an express and unequivocal waiver of sovereign
immunity for claims brought against an entity of the United
States. For the reasons set forth below, the USDA's
Motion is DENIED.
Standard of Review
Civ. P. 12(b)(1) provides for the dismissal of an action for
lack of subject matter jurisdiction. A Rule 12(b)(1) motion
for lack of subject matter jurisdiction can challenge the
sufficiency of the pleading itself (facial attack) or the
factual existence of subject matter jurisdiction (factual
attack). Cartwright v. Garner, 751 F.3d 752, 759-60
(6th Cir. 2014) (citing United States v. Ritchie, 15
F.3d 592, 598 (6th Cir. 1994). In the case of a facial
attack, and the court takes the allegations of the complaint
as true to determine whether the plaintiff has alleged a
basis for subject matter jurisdiction. Id.
case of a factual attack, a court has broad discretion with
respect to what evidence to consider in deciding whether
subject matter jurisdiction exists, including evidence
outside of the pleadings, and has the power to weigh the
evidence and determine the effect of that evidence on the
court's authority to hear the case. Id.
Plaintiff bears the burden of establishing that subject
matter jurisdiction exists. DLX, Inc. v. Commonwealth of
Kentucky, 381 F.3d 511, 516 (6th Cir. 2004).
USDA makes a facial attack on the complaint, arguing that
this Court lacks subject matter jurisdiction to hear
Jones's FCRA claim against the USDA because the FCRA does
not waive sovereign immunity for claims brought against an
entity of the federal government.
is a prerequisite for jurisdiction over a suit brought
against the United States. United States v.
Mitchell, 463 U.S. 206, 212 (1983). When the United
States waives sovereign immunity by statute, the waiver must
be expressed unequivocally in the statutory text. Lane v.
Pena, 518 U.S. 187, 192 (1996). A waiver of sovereign
immunity will not be implied. United States v. Nordic
Vill. Inc., 503 U.S. 30, 34 (1992) (citations omitted).
Any ambiguities should be resolved in favor of the United
States. Id. A federal ...