DONALD DAVIS v. OFFICE OF THE ATTORNEY GENERAL

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Court of Appeals of Texas, Dallas.

DONALD DAVIS, Appellant v. OFFICE OF THE ATTORNEY GENERAL, Appellee

No. 05-17-00618-CV

Decided: May 18, 2018

Before Justices Francis, Brown, and Stoddart

MEMORANDUM OPINION

Pro se appellant Donald Davis appeals the trial court's order granting a plea to the jurisdiction filed by appellee Office of the Attorney General (OAG). In a single issue, Davis contends the trial court erred in granting the plea because OAG is not entitled to sovereign immunity protection from his claims alleging violations of the Fair Credit and Reporting Act (FCRA).1 For the following reasons, we affirm the trial court's order.

BACKGROUND

According to his first amended petition, Davis received four OAG notices informing him he owed past due child support and, unless he paid the amounts due within thirty days, OAG would report the arrears to consumer reporting agencies and the Internal Revenue Service. Davis disputed that he owed the child support and ultimately brought this action against OAG alleging a number of FCRA violations and libel by “placing false reports.” OAG answered, asserting sovereign immunity as an affirmative defense, and subsequently filed a plea to the jurisdiction challenging the trial court's subject-matter jurisdiction over Davis's claims. Following a hearing,2 the trial court entered an order granting OAG's plea to the jurisdiction and noted that “[n]o amendment of the pleadings would overcome [OAG's] sovereign immunity.”

APPLICABLE LAW

A plaintiff has the burden of pleading and proving the trial court has subject-matter jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A plaintiff suing a state agency, such as OAG,3 also must allege a valid waiver of sovereign immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).

A defendant may assert immunity from suit through a plea to the jurisdiction. Alamo Heights Indep. Sch. Dist. v. Clark, No. 16-0244, 2018 WL 1692367, at *7 (Tex. Apr. 6, 2018). If the plea challenges the pleadings, we determine whether the plaintiff alleged facts affirmatively demonstrating subject-matter jurisdiction. Id. We look to the pleader's intent, construe the pleadings liberally in favor of jurisdiction, and accept the allegations in the pleadings as true. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). If the pleadings affirmatively negate subject-matter jurisdiction, the trial court must grant a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004).

The Eleventh Amendment shields states and state agencies from suit in either federal or state court unless either (1) Congress has abrogated that immunity pursuant to a valid grant of constitutional authority or (2) the state has voluntarily waived the immunity. U.S. CONST. amend. XI; Alden v. Maine, 527 U.S. 706, 754 (1999); Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 195 (Tex. 2010); Hoff v. Nueces Cty., 153 S.W.3d 45, 48 (Tex. 2004) (per curiam) (“Eleventh Amendment immunity protects nonconsenting states from being sued in their own courts for federal law claims”). To abrogate the states' Eleventh Amendment immunity, Congress must unequivocally intend to do so and act pursuant to a valid grant of constitutional authority. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996); see Herrera, 322 S.W.3d at 195 & n. 12. A state's waiver of immunity for federal claims must be “unequivocally expressed.” Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990). A court “will give effect to a [s]tate's waiver of Eleventh Amendment immunity only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.” Id. (citation and internal quotations omitted).

Congress enacted FCRA for the purpose of requiring “consumer reporting agencies [to] adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information.․” 15 U.S.C. § 1681(b). The statute imposes significant responsibilities on credit reporting agencies, and a consumer injured by the negligent or willful failure of a reporting agency to comply with any of FCRA's requirements may sue for damages. Id. at §§ 1681e, 1681i, 1680n, 1681o.

Although no Texas state court has addressed whether Eleventh Amendment sovereign immunity shields a state or state agency, like OAG, from FCRA claims, other courts doing so have concluded that it does. See, e.g., Banks v. ACS Educ., 638 Fed. Appx. 587, 589 (9th Cir. 2016) (mem. op.); Webb v. Texas Higher Educ. Coordinating Bd., EP-14-CV-00345-FM, 2014 WL 12594193, at *10 (W.D. Tex. Dec. 12, 2014); Sorrell v. Illinois Student Assistance Comm'n, 314 F. Supp. 2d 813, 817 (C.D. Ill. 2004). Those courts have determined that, because Congress enacted FCRA pursuant to authority derived from the Commerce Clause and not from section 5 of the Fourteenth Amendment, it lacked a valid grant of constitutional authority to abrogate state immunity for FCRA claims. See Banks, 638 Fed. Appx. at 589; Webb, 2014 WL 12594193, at *10; Wright v. Applied Bank, No. 11-585-GMS, 2012 WL 3758957, at *2 (D. Del. Aug. 28, 2012); Bardes v. South Carolina, No. 2:10-559-PMD-RSC, 2010 WL 1498332, at *4 (D. S.C. Mar. 11, 2010); Densborn v. Trans Union, LLC, No. 08-C-3631, 2009 WL 331466, at *2 (N. D. Ill. Feb. 10, 2009); Peaslee v. Illinois Student Assistance Comm'n, No. 08-C-3167, 2008 WL 4833124, at *2 (N.D. Ill. Oct. 27, 2008); Alexander v. District Court of Md. for Charles Cty., No. DKC-2007-1647, 2008 WL 6124449, *7 (D. Md. Mar. 20, 2008), aff'd, 290 Fed. Appx. 595 (4th Cir. 2008); Betts v. Commonwealth of Va., No. 3:06CV753, 2007 WL 515406, at *3 (E.D. Va. Feb. 2, 2007); Rovers v. Oregon Dep't. of Justice Div. of Child Support, No. 05-6122-AA, 2005 WL 2218457, at *1 (D. Or. Sept. 13, 2005); Sorrell, 314 F. Supp. 2d at 817; O'Diah v. New York City, No. 02-CV-274(DLC), 2002 WL 1941179, at *6 (S.D.N.Y. Aug. 21, 2002); Richmond v. TRW Info Servs. Div., No. 96-1150 JM (POR), 1997 WL 1037886, at *4 (S.D. Cal. July 22, 1997); see also Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 727 (2003) (recognizing Congress may not abrogate sovereign immunity pursuant to Commerce Clause).

ANALYSIS

In his sole issue, Davis contends the trial court erred in granting OAG's plea to the jurisdiction because the Eleventh Amendment does not bar his FCRA claims in state court.4 Davis relies on Campbell v. Baldwin, 90 F. Supp. 2d 754 (E.D. Tex. 2000), in which the district court refused to dismiss the plaintiff's FCRA claims despite the defendants' assertion of Eleventh Amendment sovereign immunity. The defendants, however, were individual child support officers – not the state or a state agency – and the plaintiff sought only prospective injunctive relief. Id. at 755. The court held that, under those circumstances, the Eleventh Amendment did not bar the FCRA claims because official capacity actions for prospective relief are not treated as actions against the state. Id. at 755-56 (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, n. 10 (1989)); see also Ex Parte Young, 209 U.S. 123, 160 (1908) (Eleventh Amendment does not bar action against state officer to restrain unconstitutional conduct on part of officer under color of state law). Here, where the defendant is a state agency and the plaintiff seeks monetary damages, the Eleventh Amendment may shield the agency from federal claims.

Davis also contends that Congress intended to abrogate immunity for FCRA claims because the statute's definition of “person” includes “government or governmental subdivision or agency.” Addressing the same argument, an Illinois district court held that, although the definition could be construed as a reference to states and state agencies, “it is not clear and cannot be said to be an unequivocal indication that Congress intended such a result.” Peaslee, 2008 WL 4833124, at *2. The court further held that, even if Congress had intended to abrogate the states' Eleventh Amendment immunity, it did not do so pursuant to a valid grant of constitutional authority. Id. at *3 (citing Seminole Tribe of Fla., 517 U.S. at 55-70). Because Davis has identified no controlling precedent suggesting otherwise, we conclude, as other courts have, that Congress lacked a valid grant of constitutional authority to abrogate state immunity for FCRA claims. See, e.g., Banks, 638 Fed. Appx. at 589; Webb, 2014 WL 12594193, at *10; Sorrell, 314 F. Supp. 2d at 817.

The only other means by which Davis could maintain his suit against OAG is if the State voluntarily waived its Eleventh Amendment sovereign immunity. Davis asserts the trial court erred in determining states are protected from FCRA claims on the basis of sovereign immunity “because [the Texas Legislature] did not consent to suit under [FCRA].” Citing The Chair King, Inc. v. GTE Mobilenet of Houston, Inc., 184 S.W.3d 707 (Tex. 2006) and County of Dallas v. Sempe, 151 S.W.3d 291 (Tex. App.—Dallas 2004, pet. dism'd w.o.j.), Davis contends (1) no state enabling legislation is necessary when a party asserts a private federal cause of action and (2) a state court may not deny a federal right of action without a valid excuse. Neither case, however, addresses Eleventh Amendment sovereign immunity or, more specifically, whether the State of Texas waived immunity and consented to suit for FCRA claims. See The Chair King, 184 S.W.3d at 712 (addressing viability of federal claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227, against private entities) and Sempe, 151 S.W.3d at 299 (state law sovereign immunity defense is not “a valid excuse” in a 42 U.S.C. § 1983 action against a county because, under federal law, counties are not immune from section 1983 claims).

In the statement of facts portion of his brief, Davis asserts, without any support, that OAG waived its sovereignty “when it chose to become a consumer reporting agency.”5 To the extent Davis attempts to read a waiver of state immunity into FCRA, courts have rejected such an implied or constructive waiver of immunity. See Bansal v. Univ. of Tex. M.D. Anderson Cancer Ctr., 502 S.W.3d 347, 355-56 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (citing Sossamon v. Texas, 563 U.S. 277, 284 (2011)). Instead, “a [s]tate's express waiver of sovereign immunity must be unequivocal.” Id. (quoting College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 680 (1999)). Davis has not directed us to any authority, and we have found none, to show the State of Texas “unequivocally expressed” its consent to be sued for FCRA claims. Further, Davis's first amended petition fails to assert the State of Texas waived its Eleventh Amendment immunity for the claims.

Although we agree with Davis that there is concurrent jurisdiction for a FCRA claim in state and federal courts, see 15 U.S.C. § 1681p, Eleventh Amendment sovereign immunity nevertheless may apply to shield state agencies from suit on those claims. U.S. CONST. amend. XI; Alden, 527 U.S. at 754; Hoff, 153 S.W.3d at 48. Because Congress has not abrogated the states' sovereign immunity with respect to FCRA claims pursuant to a valid grant of constitutional authority and the State of Texas has not voluntarily waived that immunity, we conclude OAG is entitled to Eleventh Amendment sovereign immunity protection from Davis's FCRA claims and the trial court did not err in granting OAG's plea to the jurisdiction. Accordingly, we overrule Davis's sole issue.

We affirm the trial court's order granting OAG's plea to the jurisdiction.

FOOTNOTES

1.   See 15 U.S.C. § 1681-1681x (West 2009 & Supp. 2017).

2.   Davis did not request a reporter's record of the hearing on OAG's plea to the jurisdiction.

3.   Davis does not dispute that OAG is a State agency. See TEX. CONST. art. IV, § 1 (OAG is an officer to the State's executive department); TEX. GOV'T CODE ANN. § 402.021 (West 2013) (OAG represents the State in prosecuting and defending all actions in which the State is interested).

4.   The only issue and argument Davis raises in this appeal concerns his right to maintain his FCRA claims in the trial court. Davis mentions his libel claim only at the very end of his reply brief, writing, “Moreover, Davis [sic] libel claim encompass the FCRA and its survival is predicated therein. Arguments for FCRA is in-essence argument for libel claim.” The Texas Rules of Appellate Procedure require an appellant's brief to concisely state all issues presented for review and include a clear and concise argument, including appropriate citations to authority and the record. See TEX. R. APP P. 38.1(f), (h), (i). To the extent Davis asserted a libel claim separate from his claims for FCRA violations, he failed to brief any argument related to dismissal of the claim and, thus, has waived the issue on appeal. See, e.g., Bullock v. Am. Heart Ass'n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012, pet. denied).

5.   Davis also complains the trial court considered “factual matters not relevant to the plea to the jurisdiction” related to whether OAG is a “consumer reporting agency.” Davis cites only to his own response to OAG's plea to the jurisdiction, in which he asserts that OAG “appears to raise controverting fact issues as to [its] status as a consumer credit reporting agency.” Davis cites to nothing in the record, and we have found nothing, to show whether the trial court considered any irrelevant factual matters related to OAD's status as a “consumer reporting agency” when ruling on OAG's plea to the jurisdiction.

ADA BROWN JUSTICE

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