Robinson v. Pennsylvania Higher Education Assistance Agency et al

Filing 66

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 4/3/2017. (aos, Deputy Clerk)

IN TilE UNITED STATES I)JSTRICT COURT
FOR HIE I)JSTRICT OF MARYLAND

SOllt"erll Di"isioll

ANTIIONY

IWHINSON,

II:

*

Plaintiff,

*
Case No.: G,JII-IS-1I1179

\'.

*
PENNSYLVANIA HIGHER
EDUCATION ASSISTANO:
AGENCY, l'f al.•

*
*

Defl'lHlants.

*

*

*

*

*

*

*

*

*

MEMORANDUM

Plaintiff Anthony Rohinson ("Plaintiff'
Pennsylvania

Iligher Education Assistance

Department

of Education ("USDE").

In!llrlnation

Solutions.

U.s.e.

*

*

*

*

OPINION

or "Rohinson")

hrings suit against Defendants

Agency d/h/a Fed Loan Servicing. the United States

Equifax in!lmnation

Services. LLe. and Experian

Ine,,1 alleging claims under the Fair Credit Reporting Act (FCRA).

~ 16XI el self .. and common la\\' dclamation.

Dismiss !llr Lack ofJurisdietion

15

Defendant US DE has tiled a Motion to

under Fed. R. Civ. 1'. 12(h)( I). lOCI' No. 41. No hearing is

necessary. See Loc. R. 105.6 (D. Md. 2(16). For the fl)llo\\'ing reasons. Defendant's
Dismiss is granted and USDE is dismissed
I.

*

Motion to

from this action.

BACKGROUND

At the motion to dismiss stage. the Court takes the allegations
Complaint

in Plaintiffs

as true. Some time prior to Novemher 2011. Rohinson "discovered

J\mended

that there \\'ere

Direct Loan student loan accounts being repol1ed to his Experian. Equi!ilx. and Trans Union

I

Ikfe-ndallt Trans Union. LI.C was terminated from suit on September 2. 2015. ECF No . ...f9;ECF No. 50.

ECF No. 3X 'i X. Robinson had not authorizcd

crcdit rcports'"

'i 9.

opcncd in his namc. Id
accounts with Expcrian.

201 I. Robinson bcgan disputing thc Dircct l.oan

Equil~lX. and Trans Union (collectively.

PlaintitTstatcd

10. PlaintilTalso

disputcs to FLS tlH additional

a dcscription

Id

invcstigation.

in support of his disputcs. Id
an Amcnded

'i

'i 12. In April

II.

into thesc

2014. Plaintiff allcgcs that hc

14.

Complaint

in this Court on Junc 3. 2015. EC.T No. 3R. USDE
on Junc 12. 2015. ECF No. 41. Plaintiff liled

to thc Motion to Dismiss. Eel' No. 46. and USDE liled a Rcply. lOCI' No. 4X:'

STANDARD

OF RF:VIEW

.. It is wcll cstablished

that betllrc a federal court can dccidc thc mcrits ofa claim. thc

e1aim must in\"()ke thc jurisdiction

of the court'" AliI/I!!" \'.

2(06). Fcdcral Rule of Civi I Proccdurc
mallcr jurisdiction.

See KholllY

~ According. to Plaintiffs
("PIIEAi\")
is a student
operations

invcstigations

liccnse. a copy of his crcdit rcports. and othcr

tilcd its Motion to Dismiss IlH Lack ofJurisdiction
an Opposition

ofthc CRAs

states that upon inti.lI"Illation and belie!: the CRAs tlll"\vardcd his

providcd a policc report. a copy of his drivcr's

PlaintitTlilcd

In his

Dircct Loan to perfi.mll a crcdit chcck. not to opcn a loan account

in his namc. Id '111. Plaintiffrcqucstcd
disputcs.ld',

'i 10.

that the Direct Loan accounts wcrc .. ti-audulcntiy opcncd in his namc'"

and that hc had only authorizcd

documents

thc "crcdit rcporting agcncics"

as wcll as with FcdLoan Scrvicing and Dircct l.oans dircctly." Id

or "CRAs").
disputes.

In Novcmbcr

a studcnt loan account to bc

Alllcnd~d Complain!.

comrner<.:ially

as AIllCric<Hl

'i 3.

Education

462 F.3d 312. 316 (4th Cir.

12(b)( 1) govcrns motions to dismiss tl)r lack of subjcct

\". ,\Iesl!!"\"(,.

10<1nservicing company.

flrtlll"l7.

26X F. Supp. 2d 000. 006 (D. Md. 2003).

afr"-

R5 F.

Defendant Pennsylvania Iligher Education Assistance Agency
ECF
o.38'i 3. PHEAA conducts its ~tlldcnt loan servicing
Services

("AES")

and for federally-owned

loans as FcdLoan

of Education ("Direct Loans")./d
; Additionally. following a joint Motion to Stay, the proceedings in this case were stayed 011 June J 9, 1015 pending
appeals in two controlling cases. unrelated to the legal issue discussed in this Opinion. before the Fourth Circuit.
ECF No. 40; ECF No. 42. Alter the F01ll1h Circuit issued its tkcisions in those C<lses. Plaintiff filed a Motion to Lin
Stay on December 23. 2015. but Defendant PH EAA opposed pending writ ({certiorari pl..'titions to the Supreme
Court. ECF No. 51: ECF No. 52. The parties conferred about proceeding to discovery whik the casc was stayed as
10 ()ct'endant PIIEAA. but Dcfendant USDE objected because of the pending Motion to Dismiss. EeF No. 55.

Servicing

r"FLS").

It!.

FLS services

loans for the U.S. Department

App'x 960 (4th Cir. 2(04), Oncc a challengc is madc to subjcct matter jurisdiction.
bears thc burden
ChildrclI's

0

I' Jlrovi ng that subject mattcr j urisd ict ion ex ists, Scc Fadill1ll7d -/J({\'CllpOrl

Gllild. 742 F, Supp, 2d 772. 777 (D, Md, 2010) (citing Pi/Icy RIIII/'rcs.

'Comm'rs olCarml1

thc Plaintiff

Ass

'II I'.

I',

('1.1'.

Cty .. Md.. 523 F.3d 453. 459 (4th Cir. 2008)), The Court should grant a Rule

12(b)( 1) motion "only if the materialjurisdictionallacts

arc not in dispute and thc moving party

is entitled to prcvail as a matter of law," 1:'1'<111.\'
I'. IJ.F !'akills

('0 ..

a /Jil'. o/Slcll1dcx /111 Corl'"
'I

166 F,3d 642. 647 (4th Cir. 1999).
III,

ANAL YSIS
A, The Fair Credit Reporting

"Congress
eftlciency

Act

cnacted FCRA in 1970 to ensure lair and accuratc crcdit reporting. promote

in the banking system. and protcct consumer privacy," Salllldas

alld Tl'1Isl Co. o/Ta .. 526 F.3d 142. 147 (4th Cir. 2008) (citing Sa/i'co/lls.

551 U,S, 47. 52 (2007)). The Act imposes civilliahility
comply with any requirement

Co. o/Am.

~ 16810, The Act delincs "pcrson" to mcan "any individual.

corporation.

trust. estatc. cooperative.

of"person"

fails to
~

partnership.

or governmental

agency. or other entity," ~ 1681 a( b). The parties dispute whether "government
or agcncy" in the detlnition

Bllrr,

imposed undcr this

subchapter,"

government

I'.

with respcct to any consumer,"

1681n. or who "is negligent in 111ilingto comply with any requirement

subdivision

!Jrallch !Jallkill}!.

on "any pcrson" who "willfully

imposed under this subehapter

association.

I'.

includes the Department

subdivision

or

or governmental
of Education.

which is a federal agency.
B, So\'Crcign Immunity
The doctrine of"[sJovereign

immunity shields the United States li'om suit abscnt a

consent to be sucd that is 'unequivocally

expressed, ... Ullilcd Slolcs \', Bonllcs, 133 S.C!. 12. 16

3

(2012) (quoting
Government's

Uniled Slales \'. Nordic ViiI., Inc.. 503 U.S. 30. 33 (I (92)). "[Tlhe
consent to be sued must be construed

enlarged

A waiver of so\'ereign

immunity

1.4 (1969). and "all ambiguities"

cannot be implied. see Uniled Slales \'. King. 395 U.S.

are to be "resolved

Uniled Slales. No. 8:09-CV-00905.

in favor of the Government,"

20()() WL 4505877,

Nordic /'ill .. 503 U.S. at 34 ). II' sovereign

immunity

DePhillips \'.

at *2 (D. Md. Nov. 24. 200')) (citing

has not been waived. federal courts lack

over the claim. DePhillips. 2009 WI. 4505877

subject matter jurisdiction

and not

Nordic /'ill .. 503 U.S. at 34 (internal quotations

beyond what the statute requires,"

omitted).

strictly in I[l\'or of the sovereign.

at *2 (citing /',.,.Iinden

B. I'. \'. Cenl. Bank ofNig .. 461 U.S. 480. 485 n.5 ( 1(83)): McLean \'. Uniled ""lales. 566 F.3d
391. 401-02

(4th Cir. 2(09)).

In its Motion to Dismiss.

that the FCRA does not waive sovereign

immunity

the Court does not ha\'e subject matter jurisdiction.
Neither the Supreme
FCRA waives sovereign

actions under ~ 168In"):

BOl'lnes \'. UniledSlales.
decision

Oil

$10.000 in amount.
ofthc

laJny ...

I(Jlll1ded ...

immunity

to damages

759 F.3d 793. 795 (7th Cir. 2014) ("As l[lraS
the issue.").

In Uniled Slales \'. Borllles. the

Court hcld that the Little Tucker Act. 28 LJ.S.c. ~ 1346(a)(2).

Federal Claims, of ...

and therel(lI'e that

ECF No. 41-1 at 4-144

the Federal Government's

"ltJhe district courts shall have original jurisdiction,

immunity

for the federal government

See Uniled Slales \'. /Jorllles. 133 S. Ct. 12.20 (2012) ("We

FCRA itsclfwaives

we can tell. this is the first appellate
Supreme

USDE urges the Court to lind

Court nor the Fourth Circuit has squarcly ruled upon whether thc

immunity.

do not decide here \\hether

Defendant

concurrent

which provides that

with the United States Court of

civil action or claim against the United States. not exceeding
upon ... any Act of Congress,"

United States with respect to violations

I Pin cites to doculllenLs tiled on the COllrt"S electronic
by that systelll.

docs not waive sovereign

of the FCRA./Jorllles.

filing system (CM/ECF)

4

133 S. Ct. at 15.

refer to the page numbers generated

Howcver.

thc Supremc

Court did not dccidc whcthcr thc FCRA itsclfwaivcs

immunity.

and instcad rcmanded

Suprcmc Court instructcd

that qucstion

that "[s]incc

can dcterminc

whcthcr thc damagcs

Govcrnmcnt."

Id at 19 (cmphasis

sovcrcign

hack to thc Scvcnth Circuit. It!. at 20. Thc

FCRA is a dctailed rcmcdial schcmc. only i/s (}Imtcxt

liahility Congrcss

cralicd cxtends to thc Fcdcral

in original),

On rcmand. thc Scvcnth Circuit held that thc FCRA wai\'cd sovcrcign

immunity.

/1orllles

", Ullited S/a/L'S. 759 F.3d 793. 795. In so holding. thc Sc\'cnth Circuit relicd on thc plain
languagc of thc dclinition

"pcrson:'

history of thc FCRA. noting that while Scction

J

against consumcr

amcndcd

rcporting

liahility to all "pcrsons:'
interacted

agcncics.

Id Ilowc\'cr.

with thc cxisting dclinition

Congrcss

6X In. as originally

thc Icgislativc
of"pcrson"

Scction

cnactcd in 1970. applicd only
16XIn in 1996. cxpanding

in ~ 16Xla(h). which cncompasscs
in 8onlles.

It))' thc purposcs

damages

liahility undcr ~ 1681n to also apply to thc fedcral govcrnmcnt.

rcspondcd.

Act's suhstanti\'C

"[bJut ifthc Un itcd States is a 'person'

rcquircmcnts.

Congrcss

did not intcnd Ii))'
Thc Sc\'cnth Circuit

undcr ~ 16Xla(b) for the purposc of duties.

It!. at 795. It concludcd

how can it lIot he one li)r the purposc of remedies'?"
"Section

"any.,.

argucd that whilc it was a

"pcrson"

ofthc

accordingly.

1681 a( h) docs what it has donc sincc 1970. no mal1cr what happcns to othcr scctions.

, [it! waive[sj

sovcrcign

immunity

authorizcs

against any 'pcrson:

clTcctual."

liJr all rcquirements

Thc Sc\'Cnth Circuit's
on thc subjcct.

Congrcss

and rcmedics that anothcr scction

Id at 796,

opinions

thc

history did not discuss how this cxpansion

It!. at 795. Thc Unitcd States. as defcndant

go\'crnmcnt:'

Id Thc court rcfercnccd

which includcs "go\'crnmcnt:'

dccision

For cxamplc

need not add 'wc rcally mcan it" to makc statutes

in 80rllles conflictcd
in S/ellick \',

5

u.s

with a numbcr of district court

!Jel' '/ olEduc,.

No, II-CV -0730

,,

PJS/JJG. 2013 WL 673856. at * 1 (I). Minn. Feb. 25. 2(13). the court held that although "person"
in ~ 168Ia(b) includes "government."

this does not constitute Congress's

"unequivocal

expression"" ol"consent to be sued. Scc Slcllick, 2013 WL 673856, at *3. The court reasoned that
when the FCRA was enacted in 1970. its remedial pnn-isions,
to "persons"

but to consumer-reporting

not acting as a consumer

~~ 168 In and 168 I IJ, applied not

agencies. 1<1. At that time. the I"ederal go\'ernment

reponing agency, so it was "understandable

... why Congress did not

think to include within the FCRA a provision explicitly preserving sovereign
Thus, in eontrast to the Seventh Circuit's

immunity."' lei.

rcading 01"the legislative history, the Slcllick court did

not read the history to express an unequivocal
waiver 01"sovereign

was

waiver. Thc court I"urther reasoned that reading a

immunity into the statute would impose punitive damages and criminal

liability on the United States under ~ 168 In(a)(2) and ~ 1681'1, lei. at *4. This consequence.
thc court's view, ""would be immense."' 1eI.:scc olsIJ Gillal \',
6080,2010

WL 3582945, at *3 (W.D, Ark, Sept. 7,2(10)

waives sovereign
governmental

imlllunity by including in the delinition

subdivision'

02211-ZLW-KLM

Donicl \'. Nol'II'ork

Roll'h \'.

.. No. CIV, 08-

("'Plaintil"fs argument that the FCRA
01"'persons'.

u.s. /lir

the terms 'government

or

FIJrcc ,110m, No. 06-CV-

.. 2007 WL 3232593. at *3 (D, Colo, Oct. 31. 2(07) (holding that ..the United

States has not consented
Additionally.

is unconvincing."'):

u.s. DCI"1 ofEcluc

in

to suit under [the FCRA ]").

even alier the Seventh Circuit's
Scn' .. No. CV 16-1 8-BLG-SPW.

decision in Horlllcs. the district court in
2016 WL 4401369, at *3 (D. Mont: f\Ug.

17. 2(16) decl ined to I"ollow suit. The Donicl court held. alier revie\Vin~ all rclevant authorities.
that:
ITJhe Court bclieves that the district court 0p111l0nS li'olll this
circuit are morc persuasive than Horlllcs and linds that the FCRA
does not contain an unequivocal waiver 01" sovereign immunity,
The FCRA is ambiguous as to whether plaintil"I"s can recover
6

damages against government entities. as federal statutes
waive sovereign immunity in dearer terms.
Dalliel. 2016 WL 4401369.
'person'

typically

at *4. The court Ii.lrther Ii.llllld that "including

the United Statcs as a

every time the term is used in thc FCRA would lead to inconsistent

potcntially

!d at *5.

absurd results:'

In this casco the Court also declines to follow the Seventh Circuit's
The Court starts with thc guiding principle

that

"I i It is axiomatic

be sucd without its consent and that thc existence
(filiI""

cxpressed

187, 192 (1996) (internal
statutory

language

in statutory
citations

text ...

omitted),

waiving sovereign

of consent is a prcrequisite

lor money damages"
employee

28 U.S.c.

*

is well-cquipped

specilically

1346(b)(I).

or collceted

authorizes

immunity

"must be

Lallr \". Prlla, 518 U.S.
and able to construct
The

"claims against the Unitcd Statcs

or wrongli.Ii act or omission

Thc Tuckcr Act also authorizcs

of any internal-revenue
...

of any

or unliquidated

1346(a)( I )-(2). No such language

"civil aetionlsl

against

tax alleged to have becn erroncously

under the internal-re~'enue

or any Act of Congress

States, or Ii.Jr liquidated

Ii.)rjurisdiction:'

and it has donc so in othcr instances.

c1aiml s] against the United States, not exceeding
Constitution,

in lJo/lmr.

while acting within the scopc of his lor hcr] oflicc or

the Unitcd States Ii.)rthe rccovcry
or illegally assessed

Congress

Ii.)r injuries "caused by the negligent

of the Government

cmploymcnt:'

and will not bc implied:'

immunity,

Federal Tort Claims Act. Ii.,r example,

decision

that the United States may not

SlaIn ". Alilchell, 463 U.S. 206, 212 (1983). A waiver of sovereign

unequivocally

usagc and

laws" and "civil action/sl

$10,000 in amount.

or

Ii.lllllded either upon the

.. , or upon any express or implied contract with the Unitcd
damages

in cases not sounding

is fi.llllld reading

thc FCRA together.

7

15 U .S.c.

*

in tort. ' :' 28 U.S,c.

1681 a( b) and

**

1681n-1681

*
() of

Additionally.
damages

a separate and unrelated

section of the FCRA. 15 U.s.c.

liability on "any agency or department

consumer

1681u would be superl1uous

purposes.

to waive sO\"Creign immunity

Moreover.

"correetly

u.s.. 134 S.Ct,

BOlld \'.

Illce. would cover a chemical

awareness

weapons

**

when there is dissonance

delinition,"

!d. at 209 I, Ilcre. sweeping

Irom Congress.").

between that ordinary

the federal government

* 16810. but punitive

damages

1681 q ("any person who knowingly

under

on a consumer

that Congress

Coul1 were to accept the USDE's

li'om a
Ii.)r

at *5.

lor waiver are unavai ling. I'lainti ITasserts that ,,' i J f the

interprctation.

power under the FCRA to correct inaccurate

then consumers

and the Courts would have no

ercdit reporting of the usnE,"

8

*

intended such a result abscnt a

2013 WL 673856. at *: DUlliel. 2016 WL 4401369.
arguments

liabil ity under

shall be lined under Title 18. imprisoned

not morc than 2 ycars. or both"). It is inconceivable

rf s additional

not only to actual

* 1681 n and even criminal

and will fully obtains inli.mnation

agency under lalsc pretenses

"In settling on a

into cvery instance where the

under

Plainti

....

mcaning and thc reach of the

would expose the federal govcrnmcnt

See Stellid.

cannot

mcaning of a deli ned te!'ln.

liability on "persons"

clear statement.

*

the Supreme Court would

imposes

reporting

1681n-16810

of certain presuppositions

crime com milled in Australia.

particularly

consumer

if

(2014) (noting that even though a criminal statute. read on its

Illir reading of a statute. it is not unusual to consider the ordinary

damages

Certainly

for the United States.

not apply the statute to sueh conduct "absent a plain statement

FCRj\

168Iu(j).

into the FCRA. such language in

within the FCRA.

reading a statute 'demands

2077.2088

*

discloses

The Court linds that in light of clear expressions

of waiver in other statutes and even other provisions
be construed

15 U.S.c.

wcre to be read wholesale

and unnecessary.

1681u imposes

of the United States" which unlawfully

reports to the FBI for counterintelligence

liability for the federal government

*

lOCI' No. 46 at I.

Ilowever.

PlaintilTmaintains

administrative

remedies to seek discharge

of his student loan debt.

See 34 C.F.R. ~ 685.214 ("[i]n order to qualifY for discharge ofa loan under this section. a
borrower

must submit to the Secretary

asscrtions

in thc statement

must be true"):

4403 RRM .10. 2014 WL 4724707.
Ilighcr

Education

Department

Act ("IlEA").

of Education.

()gWlIIlOkllll

at *4 (LD,N.Y,

Sen's./I'IIEAA.

No, 12.CV.

Scpt. 23. 2014) (noting that "Iujnder

the

federally by the

process" and discussing

discharge

or student loan dcbt on grounds

then").

clear and unequivocal
matter jurisdiction.

waiver of sovereign

and Defendant

orthe

immunity,

FCRA cited by PlaintilTdo

Accordingly.

USDE shall be dismissed

not contain a

the Court is without subject

Irom suit.

CONCLUSION
For the fi.1regoing reasons.

separate

Edllc.

and the I~letual

seeking cel1ain types of loan relief must normally avail

In sum. the Court linds that the provisions

IV.

\'. Alii.

which govcrils student loans guaranteed

a bornJ\\w

himscl f of thc administrati\'c
of "identity

a written request and sworn statement.

Delendant's

Motion to Dismiss.

ECF No, 41. is grantcd. A

Order shall issue.

Date: April

d;?-

'2 . 2017

GEORGE.I. HAZEL
United States District Judge

')