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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JOSHUA THURSTON,

 Plaintiff,

vs.

EQUIFAX INFORMATION SERVICES, 

LLC, EXPERIAN INFORMATION 

SOLUTIONS, INC., TRANSUNION, 

LLC, USAA FEDERAL SAVINGS 

BANK, ARMY AND AIR FORCE 

EXCHANGE SERVICE, D/B/A 

MILITARY STAR;

 Defendants.

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SA-20-CV-00513-FB

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Fred Biery:

This Report and Recommendation concerns Defendant Army and Air Force Exchange 

Service, d/b/a Military Star’s Motion to Dismiss [#29]. All dispositive pretrial matters in this 

case have been referred to the undersigned for disposition pursuant to Western District of Texas 

Local Rule CV-72 and Appendix C [#37]. The undersigned has authority to enter this 

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). In issuing this recommendation, the 

undersigned has also considered Plaintiff’s Memorandum of Law in Support of its Opposition to 

Defendant’s Motion [#43] and Defendant’s Reply in Support of its Motion [#45]. For the 

reasons set forth below, it is recommended that Defendant’s motion be GRANTED.

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I. Background

Plaintiff Joshua Thurston filed this case against the Army and Airforce Exchange Service 

d/b/a Military Star (“AAFES”) and other Defendants,1alleging violations of the Fair Credit 

Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”). Thurston alleges that TransUnion and 

Experian, as credit bureaus, prepared and issued credit reports concerning Thurston that included 

inaccurate information related to a loan obtained from USAA Federal Savings Bank in 

conjunction with a motorcycle purchase. (Compl. [#1] at ¶¶ 18–19.) Thurston also alleges that 

TransUnion, Equifax, and Experian prepared and issued credit reports containing inaccurate 

information relating to his account with Military Star. (Id. at ¶ 32.) Military Star is a credit card 

program run by AAFES. (Mtn. [#29] at 1 n.1.) The dispute involving Thurston’s Military Star 

account concerns a late payment for the month of December 2018. (Compl. [#1] at ¶ 33.) 

According to Thurston, AAFES failed to conduct a reasonable investigation after 

receiving notice of a dispute regarding Thurston’s credit reports. (Id. at ¶¶ 36–37.) Thurston 

claims AAFES has continued to furnish false and inaccurate adverse information on the 

consumer report with respect to the disputed account, which continues to affect Thurston’s credit 

score. (Id. at ¶¶ 37–44.) The only causes of action asserted against AAFES are Counts Nine and 

Ten of the Complaint, which assert that the alleged conduct constitutes both willful and negligent 

violations of the FCRA. (Id. at ¶¶ 110–32.) Thurston seeks actual and punitive damages, as well 

as attorneys’ fees and costs under the FCRA. (Id. at ¶¶ 119–20.) 

AAFES has moved to dismiss Thurston’s claims pursuant to Federal Rule of Civil 

Procedure 12(b)(1) for lack of subject matter jurisdiction. AAFES argues that it is an 

1 Thurston’s Complaint also named Equifax Information Services, LLC (“Equifax”), 

Experian Information Solutions, Inc. (“Experian”), TransUnion, LLC (“TransUnion”), and 

USAA Federal Savings Bank (“USAA”) as Defendants. Thurston has settled his claims with 

Equifax and USAA [#49, #53]. 

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instrumentality of the federal government and therefore enjoys sovereign immunity from suit. 

Thurston asks this Court to find that the FCRA waived the United States’ sovereign immunity 

with respect to claims for damages arising under the FCRA and to deny AAFES’s motion. The 

motion is ripe for review. 

II. Legal Standard

Sovereign immunity is jurisdictional in nature. F.D.I.C. v. Meyer, 510 U.S. 471, 475 

(1994). Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party 

to challenge the subject-matter jurisdiction of the district court to hear a case. See Fed. R. Civ. P. 

12(b)(1); Ramming v. United States, 281 F.3d 158, 161. When a court’s subject matter 

jurisdiction is factually attacked, the court may consider matters outside of the pleadings.

Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir. 1981). Where a motion to dismiss for lack of 

jurisdiction is limited to a facial attack on the pleadings, as here, it is subject to the same standard 

as a motion brought under Rule 12(b)(6). See Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 

2008); Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992). In facial attacks, the court must 

accept “all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” 

Martin K. Eby Const. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004); 

O’Rourke v. United States, 298 F. Supp. 2d 531, 534 (E.D. Tex. 2004) (applying this standard to 

Rule 12(b)(1) motion). The burden of establishing federal jurisdiction rests on the party seeking 

the federal forum. Ramming, 668 F.3d at 161. 

III. Analysis

AAFES seeks dismissal of Thurston’s FCRA claims because it contends it enjoys

sovereign immunity from suit. AAFES argues that it is an instrumentality of the United States 

government, runs the Military Star credit card program, and is the proper defendant in this suit. 

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Indeed, the Supreme Court has recognized AAFES as “a non-appropriated fund instrumentality 

of the United States” and an “arm of the government deemed by it essential for the performance 

of governmental functions.” Army & Air Force Exchange Serv. v. Sheehan, 456 U.S. 728, 729 

n.1, 733 (1982) (citations and quotations omitted). “AAFES is under the control of the 

Secretaries of the Army and Air Force and, like other military post exchanges, is intended ‘to 

provide convenient and reliable sources where soldiers can obtain their ordinary needs at the 

lowest possible prices.’” Id. at 729 n.1 (quoting Standard Oil Co. v. Johnson, 316 U.S. 481, 

484–85 (1942)). As an arm of the government, AAFES “partake[s] of whatever immunities it 

may have under the constitution and federal statutes.” Id. at 733–34 (quoting United States v. 

Miss. Tax Comm’n, 421 U.S. 599, 606 (1975)). Thurston concedes that AAFES, which is doing 

business as Military Star in connection with this lawsuit, is an agency of the United States 

government. The issue is whether the FCRA waives that immunity. 

A. AAFES enjoys sovereign immunity from suit, unless the FCRA unequivocally 

waives the immunity of the federal government. 

As a sovereign, the United States is immune from suit unless it expressly consents to be 

sued by an act of Congress. Meyer, 510 U.S. at 475. Absent a statutory waiver of immunity, the 

principle of sovereign immunity “shields the Federal Government and its agencies from suit.” 

Id. If the government has not waived its immunity, the court lacks subject matter jurisdiction 

over the governmental party, and the barred claims must be dismissed without prejudice under 

Rule 12(b)(1). Warnock v. Pecos County, Tex., 88 F.3d 341, 343 (5th Cir. 1996). 

The burden of demonstrating a waiver of sovereign immunity is a heavy one. See Petty v. 

Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 276 (1959) (“The conclusion that there has 

been a waiver of immunity will not be lightly inferred . . . .”). A waiver of sovereign immunity

must be “unequivocally expressed in statutory text . . . and will not be implied.” Lewis v. Hunt, 

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492 F.3d 565, 570 (5th Cir. 2007) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). Moreover, 

where there has indeed been a statutory waiver of immunity, such waiver must “be strictly 

construed, in terms of its scope, in favor of the sovereign.” Id. (quoting Lane, 518 U.S. at 192). 

Importantly, a court’s evaluation of waiver must focus on the statutory text itself, as “[a] statute’s 

legislative history cannot supply a waiver that does not appear clearly in any statutory text.” See

Lane, 518 U.S. at 192. 

Along with the general burden to establish subject matter jurisdiction, Thurston also

bears the burden of showing Congress’s unequivocal waiver of immunity. See Freeman v. 

United States, 556 F.3d 326, 334 (5th Cir. 2009). Accordingly, to establish this Court’s subject 

matter jurisdiction over AAFES, Thurston must demonstrate that Congress unequivocally 

waived the immunity of the federal government in enacting the FCRA.

B. Whether the FCRA waives the United States’ sovereign immunity is an open 

question in this Circuit.

The parties disagree as to whether the FCRA, the statute under which Thurston’s claims 

arise, unequivocally waives the United States’ immunity from suit. At the center of this dispute 

is the FCRA’s definition of “person” in its enforcement scheme. The FCRA imposes civil 

liability for damages on any “person” who willfully or negligently fails to comply with any 

requirement imposed by the Act. 15 U.S.C. §§ 1681n(a), 1681o(a). Thurston alleges that 

AAFES violated 15 U.S.C. § 1681s-2, a provision of the FCRA imposing certain duties on those 

who “furnish information” to credit reporting agencies, by failing to fully and properly 

investigate the dispute about his Military Star account and to correctly report the results of the 

investigation. (Compl. [#1] at ¶¶ 115, 126.) This specific subsection imposes a duty to correct 

and update information on any “person” who “has furnished to a consumer reporting agency 

information that the person determines is not complete or accurate.” 15 U.S.C. § 1681sCase 5:20-cv-00513-FB-ESC Document 59 Filed 11/02/20 Page 5 of 14
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2(a)(2)(B). The FCRA defines the term “person” 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). Thurston argues, as have many litigants 

across the country before him, that by designating “governments” as persons subject to liability 

under the FCRA, Congress unequivocally waived the immunity of the federal government and its 

agencies with respect to FCRA claims. (Resp. [#43] at 2.) 

Neither the Supreme Court nor the Fifth Circuit has addressed the question of whether the 

FCRA waived the United States’ sovereign immunity, and the Supreme Court recently declined 

to grant certiorari to resolve what has emerged as a “Circuit split” on the issue. See Robinson v. 

Dep’t of Educ., 140 S. Ct. 1440 (Apr. 20, 2020) (denying petition for review over dissent of 

Justices Thomas and Kavanaugh). AAFES asks the Court to adopt the reasoning of the Fourth 

and Ninth Circuit Courts of Appeals, both of which recently held that the statutory text of the

FCRA does not contain an unambiguous expression of Congressional intent to waive sovereign 

immunity. See Robinson v. U.S. Dep’t of Educ., 917 F.3d 799, 806 (4th Cir. 2019), cert. denied; 

see also Daniel v. Nat’l Park Serv., 891 F.3d 762, 776 (9th Cir. 2018). Thurston, on the other 

hand, while acknowledging the recent Fourth and Ninth Circuit decisions, asks this Court to 

follow the reasoning of a Fifth Circuit case predating Robinson and Daniel, which held that 

Congress unequivocally waived the immunity of the federal government in enacting the Equal 

Credit Opportunity Act (“ECOA”), another consumer protection statute, by including 

“government or governmental subdivision or agency” in the definition of “person,” as in the 

FCRA. See Moore v. U.S. Dep’t of Agric., 55 F.3d 991, 993–94 (5th Cir. 1995) (citing 15 U.S.C. 

§§ 1691a(e), (f)). The only additional Circuit Court of Appeals to address the question of the 

FCRA’s immunity waiver is the Seventh Circuit, which similarly held in 2014 that the FCRA’s

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definition of “person,” by “authorizing monetary relief against every kind of government,” 

waived the United States’ sovereign immunity. Bormes v. United States, 759 F.3d 793, 795–97

(7th Cir. 2014) (on rehearing en banc).2 

As to be expected under these circumstances, there are district court decisions from 

across the country reaching opposing conclusions. In arguing the reasons that this Court should 

extend Moore’s interpretation of the ECOA to the FCRA, Thurston relies heavily on two district 

courts cases from this Circuit that adopted Moore’s reasoning and predicted that the Fifth 

Circuit, if faced with the decision, would find that the FCRA explicitly waived the sovereign 

immunity of the federal government and its agencies. See Ingram v. Experian Info. Sols., Inc., 

No. 3:16-CV-00210-NBB-RP, 2017 WL 2507694 (N.D. Miss. June 8, 2017); Kent v. Trans 

Union, LLC, No. 4:16-CV-322-A, 2017 WL 3701861 (N.D. Tex. Aug. 25, 2017). Yet, the only 

district court case from the Fifth Circuit issued since the Robinson and Daniel decisions followed 

the reasoning of these opinions, departed from Moore’s more simplistic analysis, and, viewing 

the FCRA more holistically, found that the FCRA does not contain unambiguous language 

regarding any waiver of sovereign immunity and therefore cannot be an unequivocal expression 

of Congressional intent to waive the immunity of the United States. See Johnson v. Trans 

Union, LLC, No. 16-1240, 2019 WL 3202212, at *4 (W.D. La. Jul. 15, 2019). 

2 Yet, the Seventh Circuit subsequently held that the FCRA’s general civil enforcement 

provisions could not be read to abrogate the sovereign immunity of tribal governments, even if 

the Act waived federal sovereign immunity and even if Indian tribes are, indeed, “governments.” 

See Meyers v. Oneida Tribe of Indians of Wis., 836 F.3d 818, 826 (7th Cir. 2016). Some courts 

view the distinction made in Meyers as suggesting the Seventh Circuit may be retreating from its 

former holding, while others interpret the decision as clearly reaffirming the Bormes decision. 

Compare Robinson, 140 S. Ct. 1440 (Thomas, J., dissenting from denial of cert.) with Johnson v. 

Trans Union, LLC, No. 16-1240, 2019 WL 3202212, at *3 (W.D. La. July 15, 2019). 

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C. Ambiguities in the FCRA’s structure and text prevent this Court from finding that 

Congress unequivocally waived the immunity of the United States for claims arising 

under the Act.

As previously noted, the waiver of sovereign immunity cannot be implied and must 

instead be “unequivocally expressed” in the statutory text. Lewis, 492 F.3d at 570. Nowhere in 

the statutory text of the FCRA is there an explicit reference to the waiver of sovereign immunity

of the United States. Congress has, in other contexts, expressed its intent to abrogate immunity 

with great clarity. The Federal Tort Claims Act, for example, contains an entirely separate 

statutory provision establishing the limited liability of the United States under the Act. See, e.g., 

28 U.S.C. § 2674 (“The United States shall be liable . . . in the same manner and to the same 

extent as a private individual under like circumstances, but shall not be liable for interest prior to 

judgment or for punitive damages.”). See also 28 U.S.C. § 1346(a)(2) (the Little Tucker Act) 

(“The 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 . . . .”). As the Fourth Circuit 

noted in Robinson, both of these acts specifically reference the United States and its liability 

under the Act. See 917 F.3d at 803. The Ninth Circuit in Daniel noted that the Clean Water Act 

and the Resource Conservation and Recovery Act contain similar direct references indicating an 

intent to subject the United States to liability. 891 F.3d at 772; see also 33 U.S.C. § 1365(a)(1) 

(“[A]ny citizen may commence a civil action on his own behalf . . . against any person (including 

(i) the United States, and (ii) any other governmental instrumentality or agency . . .).”); 42 U.S.C. 

§ 6972(a)(1)(A) (“[A]ny person may commence a civil action on his own behalf . . . against any 

person (including (a) the United States, and (b) any other governmental instrumentality or 

agency . . .).”). 

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Against this backdrop, federal courts are justly entitled to “presume congressional 

familiarity” with the need for immunity waivers to be unambiguous and unequivocal. U.S. Dep’t 

of Energy v. Ohio, 503 U.S. 607, 615 (1992). The civil liability provisions of the FCRA, unlike 

the FTCA of the Little Tucker Act, do not contain any reference to the United States, which is 

only even arguably implicated through reference to the inclusion of “governments” in the general 

definition of “persons” applying to the entire Act. “Even the definition section [of the FCRA] 

does not specifically mention the United States or the federal government.” Robinson, 917 F.3d 

at 803 (citing 15 U.S.C. § 1681a(b)).

Despite a lack of any express reference to the waiver of immunity in the FCRA, Thurston

argues that this Court is bound to follow Moore and find that Congress spoke unequivocally 

when it enacted the FCRA with respect to its intent to subject the United States to damages suits. 

Yet Moore did not address the FCRA, so it is not binding here. Nor should its reasoning be 

extended to the FCRA context, because Moore did not examine the statutory scheme of the 

ECOA holistically, and when interpreting the ECOA, failed to consider whether there were other 

ECOA provisions, aside from the introductory section defining “person” as including 

“governments,” that might further support or call into question the conclusion that Congress 

intended to abrogate the federal government’s immunity in enacting the ECOA. 

Instead, the analysis in Moore was limited to a comparison of the ECOA and the Truth in 

Lending Act (“TILA”), 15 U.S.C. §§ 1601–1667e, both of which (along with the FCRA) were 

enacted under the overarching umbrella of the Consumer Credit Protection Act.3 Moore, 55 F.3d 

at 994. The Fifth Circuit found it significant and ultimately determinative that TILA contains a 

3

See also Talley v. U.S. Dep’t of Agric., No. 07 C 0705, 2007 WL 2028537, at *2 (N.D. 

Ill. July 12, 2007) (The ECOA, FCRA, and the Truth In Lending Act (‘TILA’) were all three 

enacted as part of the broader statutory umbrella of the Federal Consumer Protection Act, and all 

of these acts define “person” to include “government or governmental subdivision or agency.”). 

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specific provision preserving the United States’ sovereign immunity against TILA claims, 

whereas the ECOA does not. See 15 U.S.C. § 1612(b) (“No civil or criminal penalty provided 

under this subchapter for any violation thereof may be imposed upon the United States or any 

department or agency thereof, or upon any State or political subdivision thereof, or any agency 

of any State or political subdivision.”). The absence of any express preservation of the United 

States’ sovereign immunity in the ECOA was, according to the Fifth Circuit, a clear indication of 

Congress’s intent to subject the federal government to suit under the ECOA, which was passed 

after TILA. Moore, 55 F.3d at 994 (“Clearly, TILA indicates that Congress intended 

‘government or governmental subdivision or agency’ to include the United States, because 

otherwise it would not have specifically preserved the United States’ immunity unless it believed 

that such immunity had been previously waived.”). The Moore court’s inference of waiver based 

on the absence of the express retention of immunity—as opposed to the express waiver of it—

can be characterized as a waiver by implication and is at odds with the requirement of a clear, 

unequivocal expression of Congressional intent to subject the United States to suit. 

The Seventh Circuit’s decision in Bormes does not provide much more guidance, in light 

of the fact that the Government in that case had conceded that the United States, as a 

“government,” was a “person” subject to the duties imposed by the FCRA, a concession not 

made here. 759 F.3d at 795. The real issue in Bormes was, therefore, whether there was any 

statutory basis for imposing duties on the federal government, on the one hand, yet not imposing 

liability for damages on the other. Id. The Seventh Circuit found that “[n]othing in the FCRA 

allows the slightest basis for [that] distinction.” Id. And as previously noted, a later panel of the 

Seventh Circuit carved out an exception to Bormes’s holding for the tribal governments of 

federally recognized Indian tribes. See Meyers, 836 F.3d at 826. 

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Ultimately, this Court is left with the underlying question—is the general reference to 

“governments” in the definition of “persons” in the FCRA, despite the lack of any specific 

reference to the United States or the waiver of its immunity in the civil liability provisions of the 

FCRA, sufficient to abrogate immunity and subject the federal government to suits for damages 

under the Act?4 The Fourth Circuit in Robinson and Ninth Circuit in Daniel engaged in a more 

holistic and comprehensive analysis of the structure and statutory provisions of the FCRA than 

the Seventh Circuit did of the FCRA in Bormes or the Fifth Circuit did of the ECOA in Moore. 

The Robinson and Daniel courts, after examining more than just the definitional provisions of 

the FCRA, both concluded that there were ambiguities in the Act that prevented a finding of a 

clear and unequivocal waiver of sovereign immunity. See Robinson, 917 F.3d at 806 (“[The] 

FCRA’s text and structure make clear that no unambiguous and unequivocal waiver of sovereign 

immunity has taken place.”); Daniel, 891 F.3d at 776 (viewing the statute as ambiguous with 

respect to waiver of immunity and concluding “Congress never considered extending the 

enforcement provisions of the FCRA to the federal government.”). The undersigned agrees with 

the reasoning of these courts.

The circuit courts in Robinson and Daniel based their decisions in part on the fact that 

there is an explicit waiver of federal sovereign immunity found elsewhere in the FCRA, in a 

4 The use of the term “government” in the FCRA’s definition of “person” has given rise 

to numerous lawsuits against various governmental entities at other levels of government. See, 

e.g., Cutrer v. Tarrant County Local Workforce Dev. Bd., 943 F.3d 265 (5th Cir. 2019); Kerce v. 

Fla. Dep’t of Law Enforcement/Capitol Police, No. 4:16-cv-239/MCR/GRJ, 2017 WL 11504388 

(N.D. Fla. Aug. 16, 2017); Pele v. Penn. Higher Educ. Assistance Agency, 53 F. Supp. 3d 857 

(E.D. Va. 2014), vacated by 628 Fed. App’x 870 (4th Cir. 2015). Of course, some of these cases 

have involved the asserted defense of Eleventh Amendment immunity. See Pele, 53 F. Supp. 3d 

at 871 (granting summary judgment to Pennsylvania state agency on Eleventh Amendment 

immunity grounds); but see Pele, 628 Fed. App’x at 872 (vacating decision and holding that 

agency was not arm of the state for immunity purposes). Whether the FCRA expressly waives 

the Eleventh Amendment immunity of state governments and their agencies is not before the 

Court. 

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provision that does not apply to Thurston’s claims. Section 1681u of the FCRA empowers the 

Federal Bureau of Investigation to obtain information from consumer reporting agencies in 

connection with its counterterrorism efforts and includes a clear waiver of immunity. 15 U.S.C. 

§ 1681u(j) (“Any agency or department of the United States obtaining or disclosing any 

consumer reports, records, or information contained therein in violation of [§ 1681u] is liable to 

the consumer to whom such consumer reports, records, or information relate” for statutory, 

actual, and sometimes punitive damages.). Unlike the arguments proposed for inferring the 

waiver of immunity with respect to the FCRA’s general civil liability provisions, “the import of 

§ 1681u(j) is plain as day.” Robinson, 917 F.3d at 803–04. See also Daniel, 891 F.3d at 772 

(“Because Congress knew how to explicitly waive sovereign immunity in the FCRA, it could 

have used that same language when enacting subsequent enforcement provisions.”). Notably, 

the Fifth Circuit did not consider such a provision in reaching its conclusion regarding the 

ECOA’s immunity waiver in Moore. This Court also finds the clear, unambiguous immunity 

waiver in Section 1681u significant and that it weakens Thurston’s argument for extending 

Moore’s reasoning to the FCRA. 

The undersigned is also persuaded by the Daniel court’s examination of other sections of 

the FCRA that reference “person” and the “implausible results” created by substituting “the 

United States” for “person” in every provision throughout the Act. See 891 F.3d at 770. Doing 

so would not only subject the United States (not just its employees) to criminal penalties, such as 

incarceration, as well as punitive damages, but it would also authorize the Federal Trade 

Commission, the Consumer Financial Protection Bureau, and even state governments to initiate 

enforcement actions against the United States for violations of the FCRA. Id. (citing See 15 

U.S.C. §§ 1681n, 1681q, 1681s(a)(2)(A), 1681s(c)(1)(B)). In the context of other sovereign 

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immunity waivers, such as the Federal Tort Claims Act, Congress took care to prohibit the 

assessment of punitive damages against the United States. See id. at 771 (citing 28 U.S.C. § 

2674). “Hence, a finding of waiver of sovereign immunity to authorize Daniel’s suit would 

require us to believe that Congress chose to prohibit punitive damages against the United States 

for tortiously killing people, . . . but allowed punitive damages on the government for printing 

overly revealing debit card receipts.” Id. (internal citation omitted). 

Again, “ambiguities” in the FCRA’s language must be “construed in favor of immunity.” 

Id. at 774 (quoting FAA v. Cooper, 566 U.S. 284, 290 (2012)). Given that “the federal 

government is the nation’s largest employer and lender,” a waiver of immunity based solely on 

the reference to “governments” in the definitional portion of the FCRA seems far too “casual.” 

Robinson, 917 F.3d at 804. Congress must speak unequivocally for this Court to subject the 

United States to a claim for damages for failing to accurately report consumer debt information. 

IV. Conclusion and Recommendation

Having considered AAFES’s motion, the response and reply thereto, the pleadings, and 

the governing law, the undersigned recommends that Defendant Army and Air Force Exchange 

Service, d/b/a Military Star’s Motion to Dismiss [#29] be GRANTED and Thurston’s claims 

against Defendant Army and Air Force Exchange Service, d/b/a Military Star be DISMISSED. 

V. Instructions for Service and Notice of Right to Object/Appeal

The United States District Clerk shall serve a copy of this report and recommendation on 

all parties by either (1) electronic transmittal to all parties represented by attorneys registered as 

a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified 

mail, return receipt requested. Written objections to this report and recommendation must be 

filed within fourteen (14) days after being served with a copy of same, unless this time period is 

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modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file 

the objections with the Clerk of Court and serve the objections on all other parties. A party filing 

objections must specifically identify those findings, conclusions or recommendations to which 

objections are being made and the basis for such objections; the district court need not consider 

frivolous, conclusive or general objections. A party’s failure to file written objections to the 

proposed findings, conclusions and recommendations contained in this report shall bar the party 

from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52 (1985); 

Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file 

timely written objections to the proposed findings, conclusions and recommendations contained 

in this report and recommendation shall bar the aggrieved party, except upon grounds of plain 

error, from attacking on appeal the un-objected-to proposed factual findings and legal 

conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 

1428–29 (5th Cir. 1996) (en banc).

SIGNED this 2nd day of November, 2020.

ELIZABETH S. ("BETSY") CHESTNEY

UNITED STATES MAGISTRATE JUDGE

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