     Case: 09-50435     Document: 00511032128          Page: 1    Date Filed: 02/22/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 22, 2010
                                     No. 09-50435
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

AUDREY S WAGSTAFF,

                                                   Plaintiff-Appellant

v.

THE UNITED STATES DEPARTMENT OF EDUCATION,

                                                   Defendant-Appellee


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:08-CV-923


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Audrey Wagstaff filed a complaint against the United States Department
of Education (DOE) in Texas state court alleging various claims stemming from
the DOE’s attempts at and methods of collecting on allegedly outstanding
student loans owed by Wagstaff. The DOE removed the case to federal court
because the complaint alleged, inter alia, a violation of the Fair Debt Collection
Practices Act (FDCPA).          Wagstaff had previously filed a federal complaint
challenging the DOE’s attempts at and methods of collecting on student loans

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-50435      Document: 00511032128 Page: 2       Date Filed: 02/22/2010
                                   No. 09-50435

allegedly owed by Wagstaff. See Wagstaff v. United States Dep’t of Educ., 509
F.3d 661, 662-64 (5th Cir. 2007). One of the grounds upon which Wagstaff’s
prior complaint was dismissed was a lack of subject matter jurisdiction because
nothing in the FDCPA waived the DOE’s sovereign immunity from suit. Id. at
664-65. The district court dismissed Wagstaff’s instant complaint as barred by
the principle of res judicata. The district court also denied Wagstaff leave to
proceed in forma pauperis after certifying that her appeal was not taken in good
faith.
         Wagstaff now moves this court for leave to proceed IFP on appeal. By
doing so, Wagstaff is challenging the district court’s certification. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). A movant seeking leave to proceed
IFP on appeal must show that she is a pauper and that the appeal presents
nonfrivolous issues. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
Wagstaff arguably has shown that she is economically eligible to proceed IFP.
Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). Our inquiry
into whether an appeal is taken in good faith “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and
citations omitted).
         A review of the record in this case reveals that the named parties in both
complaints, Wagstaff and the DOE, are identical.          The district court was
competent to consider Wagstaff’s first complaint, which was filed pursuant to the
FDCPA. See 28 U.S.C. § 1331; 15 U.S.C. §§ 1692, 1692k(d). To the extent that
Wagstaff’s claims were dismissed for lack of subject matter jurisdiction, there
was no final decision on the merits of those claims. Darlak v. Bobear, 814 F.2d
1055, 1064 (5th Cir. 1987).       However, that dismissal was a final decision
regarding the lack of the district court’s power to act on those claims. Id. Also,
the district court did make alternative final decisions as to the merits of
Wagstaff’s claims. Finally, both of Wagstaff’s complaints stem from the DOE’s

                                          2
   Case: 09-50435    Document: 00511032128 Page: 3         Date Filed: 02/22/2010
                                 No. 09-50435

attempts at and methods of collecting Wagstaff’s outstanding student loans.
Thus, both complaints involve the same cause of action. See Test Masters Educ.
Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005). In light of the foregoing,
the district court properly found that Wagstaff’s instant complaint is barred by
res judicata. See id.
      Wagstaff has not shown that her appeal will raise nonfrivolous issues
regarding the district court’s dismissal of her complaint as barred by res
judicata. The instant appeal is without arguable merit and is thus frivolous.
Accordingly, Wagstaff’s IFP motion is DENIED. See Howard, 707 F.2d at 219-
20. Her appeal is DISMISSED as frivolous. See 5 TH C IR. R. 42.2; Baugh, 117
F.3d at 202 n.24.




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