Johnson v. Duncan et al

Filing 56

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 8/11/2017. (aos, Deputy Clerk)

FILED
ST
IN TI'E UNITEI) ~ f\l'ES 1)IS1'I'IC'I' C()UR""I~"S. L'!STr:ICT CGU":T
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I:,.. .)ll'i/CTCF:-:,
~YL.A)::l
FOR THE I>ISTRICT OF MARYLAND

..

SOl/IIII'm Dil'isioll

.JOSEI'll .IOIINSON, .IR.

1011 AUG I

.

A II: 30

CI - ;,:.' ..:'... .:
Er.,-:." '-"or" .

*

."

"

Plaintiff,

J

1'\/

.:

:.:- ~

-

'

*
Casc No.: G.JH-15-11l211

\'.

*
BETSY DEVOS, SECRETARY
U.S. DEP'T OF EDUe., l'l :11.,

*
Dcfcndants.

*
*

*

*

*

*

*

*

*

MEMORANDUM
In a prcvious Mcmorandum

promissory

PlaintiffJoscph

(collecti\'ely.

cstoppcl. unjust cnrichmcnt.

*

*

Motion Il)r

Johnson, Jr.'s action against Arnc

"Dcfcndants").

of Education.1

and the Departmcnt

for hrcach of conditional

Act of 1996. and thc Ilighcr Education Act of 1965. all arising from Johnson's
debt." Now pcnding bci()rc thc Court is Plaintilrs
ECF No. 51. and Dcicndants'

of

scttlcmcnt.

and violations ofthc Consumcr Crcdit Rcporting

Rctorm Act of 1996 or Fair Crcdit Rcporting Act ("FCRA "). the Deht Collection

Complaint.

*

OI'INION

of the Unitcd Statcs Dcpartmcnt

Education (..the Departmcnt")

*

Opinion. the Court grant cd Dcfcndants'

Judgmcnt on the Pleadings, dismissing
Duncan, thcn-Sccrctary

*

Improvcmcnt

student loan

Motion to Clarify and I())' I.cavc to Amcnd thc

Motion to Strikc Plaintilrs

Motion. ECF No. 52. No

hcaring is ncccssary. See I.oc. R. 105.6 (D. Md. July I. 2016). For thc following rcasons.
PlaintiJrs

Motion is dcnicd and Defendants'

Motion to Strike is dcnied.

I Betsy [)~Vos was cOlllinncd as the eleventh Secretary of Education on February 7. 2017 and shall be automatically
substituted for fonner Secretar\' of Education. Arne Duncan pursuant to Fed. R. Civ. P. 25(d).
~The hackground facts of this ~asc were fully set forth in the Court's previous Opinioll. EeF No. 49. 1\11claims
were dismissed. 5;c:e id at 13.

I.

[)(SCUSSION
A. Defendants'

Motion to Strike

As an initial matter. Johnson
represented

by counscl.

See UniledSwles

Brian S. Jablon. A district court is not rcquired to accept such a motion.

". Gadsdell. No. CRIM. WDQ-II-0302.

Nov. 20. 2013). a/fd. 616 F. App'x
that

"r

filed his pro se Motion. ECI' No. 51. while he was

wlhen a party is represented

2013 WI. 6145109.

at

*.j

(D. Md.

539 (4th Cir. 2015). Indeed. Local Rule 102.1 (a)( i) provides
by counsel. the Clerk shall accept for Iiling only documents

signed by a member of the Bar of this Court whose appearancc

is entered on behalfofthat

party'" Loc. R. 102.1 (a)( i) (D. Md. July 1. 2016). Jablon has not liled a Motion to Withdraw
this matter. and Defendants
Howcvcr.

have moved to strike Plaintilrs

a new attorney.

Kathleen

in

Motion on this basis. ECF No. 52.

11yland. entered an appearance

as counsel of record

on March 27. 2017. See ECF No. 53. On the same day. Hyland Iiled an Opposition

to

Defcndant's

leave to

Motion to Strike on Plaintiffs

behalf. and in the alternati\'c.

requestcd

amend to cure thc citcd error under Loc. R. 102.1 (a)(i), ECF No, 54, In the Opposition
Motion to Strike. PlaintifT indicates that he reasonably
to represcnt

him 1()lIowingjudgmcnt.

attorneys"

will. in its discretion.

at issue

it \\"Ould appear thaI Plaintiff may have been

when he Iiled. notwithstanding
entertain

believed that Jabron \\'as no longer going

and there lore filed the Motion I()r Reconsideration

here pro se. See ECF No. 54 at 4. Thcrelore.
"between

to the

Jabron's

the merits of Johnson's

f~lilure to withdra\\'.

The Court thus

Motion. and deny Defendants'

Motion to

Strike.

B. .>Iaintiff's Motion to Clarify or for Lean
The Court may not grant a post-judgment
lirst vacatcs itsjudgmcnt

pursuant

to Amend

motion to amcnd the complaint

unless the court

to Fed. R. Civ. P. 59(e) or 60(b). See Ca/nu:\' Chrisliall

2

Celller

I'.

Cilyo(Fret!ericks!JlIrg.

I'irginill. 710 F.3d 536. 539 (4th Cir. 2013). Under Rule 59(e).

a parly may tile a motion to alter or amend ajudgment
judgmcnt.
3430673.

Fed. R. Civ. P. 59(e): see 1Iiso Fort!
at

*I

Unilet! SillIes. No. GJH-II-3039.

2016 WI.

(D. Md. Mar. 16. 2016). The Courl may altcr or amend an earlier judgment

,,( I) to accommodate
not available

I'.

no later than 28 days aner the entry of the

an intcrvening

change in controlling

at trial: or (3) to correct a e1ear error oflaw

S'{{lIes ex rei. Becker

I'.

Weslinghollse

law: (2) to account
or prevent manifest

lilr new evidence
injustice:'

(4th Cir. 1998)).

Under Rule 60( b). the Court may relieve a party li'om an adverse judgment
inadvertence.

that. with reasonable

diligence.

(3) Ii-aud. misreprcscntation.
the judgmcnt

surprisc. or cxcusable

by an opposing

relcased. or dischargcd:

has been reversed or vacated: or applying
reason that justi lies rei ier. Fed, R, (iv,

it prospcctively

if the party

neglect: (2) newly discovered

could not have been discO\wed

or misconduet

has been satislied.

linilet!

SlI\'{{nnllh Rh'er Co., 305 F,3d 284. 290 (4th ('il'. 2(02)

(citilH! /'lIC, IllS, Co. \', Alii. NlII 'I Fire Ins, Co .. 148 F.3d 396.403

shows (1) mistake.

only

evidcnce

in time to move li,r a new trial:

party: (4) the judgment

is \'tlid: (5)

it is based on an earlier judgment
is no longcr equitable:

P, 60(b): see 1Iiso Rohinson

that

or (6) any other

\', Wix Fil'm'ion

('orp. LU '.

599 F.3d 403. 41 I (4th Cir. 2(10),
However.

the Fourth Circuit has clarilied

that lill' post-judgmcnt

complaint.

as hcrc ... [t]o dctel1lline whethcr vacatur is warrantcd

itsclfwith

cithcr ofthosc

rules' legal standards.

rcqucsts to amcnd thc

, , , the court necd not conccrn

Thc co uri nccd only ask whether the amcndment

should bc grantcd. just as it would on a prcjudgmcnt

motion to amcnd pursuant to Fed. R, Civ, P.

15(a):' KlIlyle \'. /'enn NlII, GlIllling. Inc .. 637 FJd 462. 471 (4th Cir. 20 I I), Accordingly
court should cvaluate a postjudgmcnt

motion to amcnd thc complaint

"a

"undcr thc samc Icgal

standard as a similar motion liled bcforc judgment

was entcrcd-for

prcjudice.

-

Id (citin!! Laher \', Iht/wl'. . 438 F,3d 404. 427 (4th Cir. 2006)),

futilitv'"
-

"Whcthcr
amcndmcnt

an amcndmcnt

is prcjudicial

whcrc, for cxamplc.

"Iblclatcd

omittcd):

.lee also f)ea,\~\'\', lIill.

of litigation arc not 1~l\'orcd"): Isaac \', lIarl'llrd

amount of S J 2.390,00

(the "Purportcd

balance 01'$35.556,58.

and therefore

procccdcd

has been repcatcdly

of Education

Rcquiring

dischargcd

PlaintilTs

and ancr Plaintiffs

the Dcpartmcnt

of privacy by intrusion

PlaintilTsccks

(S.D,W.

and rcducc Johnson's

principal

substantially

diflerent

(dcnying

balancc.

three claims of breach of contract.

upon seclusion'"

See ECF No. 51-1 at 9-17.

to no\\' dcfend against these claims at this late juncturc

Va. Oct. 16.2(09)

to amcnd

and procccd on a thcory that the Departmcnt

failed to "apply valid check paymcnts"

and "invasion

claim that his dcbt has bccn

rejectcd by this Court and othcrs -

for the sccond time. post-judgmcnt.

See lOCI'

studcnt joan obligations.

See Rhodes \', E.I. DIII'011l De Nell/olll'S & Co.. No. CIV.A. 6:06-CV-00530.

*I

\\ hich

lilll y sat islicd his oUlstand ing pri nci pal

Plaintiff also adds a barrage of new claims. including
conversion.

amcndmcnt

on a theory that his Fcbruary 2012 chcck in thc

Settlemcnt")

Nos. J and 10, Now, ncarly two ycars later -

his Complaint

dcnial of proposcd

change thc naturc of thc complain!"').

Sincc Junc 2015. PlaintilThas

extinguished

and

833 F,2d 38. 42 (4th Cir. 1(87) (noting that

769 F.2d 8 J 7, 829 (I st Cir. 1(85) (aninning

would "very matcrially

is oncn found to bc

by thc dcICndant and is oflCrcd shortly bcl()I'C or during

claims which changc thc charactcr

Ullilwsily.

by thc naturc of thc

it "raiscs a ncw Icgal thcory that \HHlld rcquirc thc gathcring

analysis of 1~lctsnot alrcady considcrcd
trial." Id (citations

will oncn bc dctcrmincd

lAther, 438 F.3d at 427. An amcndmcnt

and its timing."

prcjudicial

at

bad 1~lith. or

is prcjudicial.

2009 WL 3380351.

Ieavc to amcnd whcrc "adding a ncw and

cause of action" would prejudicc

the defendants):

(JII/lli (Jllldoor

A,h'l.'I'Ii.l1I1g

Illc. \'. CollIlI/hia

Ollldoor

IlIc .. 974 F.2d 502. 506 (4th Cir. 1992)

Ad\'rJ'li.lillg.

(denying

leave to amend. noting that ..[tjrying cases onc claim at a time is both unfair to thc

opposing

party and ineflicient
Moreovcr.

no justilication

for the judicial

I'laintilThas

systcm").

bad ample opportunity

to present these claims. and hc has offcrcd

It))' omitting thcse claims in his Complaint

GlasrJ' \'.1:11:0 /Jioch"l1/.

fllc .. 126 F. App'x

or First Amended

593. 602 (4th Cir. 2005) (aflirming

to amend where plaintiff had "many opportunities

to present their claim"):

ARAMA RK Cor" .. No, 1: 12-CV -0 1584-ELJ I. 2014 WI. 1248296.

a/rd.

Complaint.

582 F. App' x 151 (4th Cir. 2014) (denying

S""

deoial of leave

1/""II,hill

\',

at *25 (D. Md. Mar. 25. 2(14).

leave to amend wherc plainti 1'1'
knell' the

underlying

l~lCtswhen he filed the carlier complaint).

prejudicial

to Defendants.

In addition.

The timing of his amendment

"where thc movant first presents a theory diflieult

and. only alier that I~lils. a Icss I~ll'orable theory. dcnial ofleal'c
I~lith may bc appropriate."
In this casc. Johnson

accord and satisfaction"

a theory that his "conditional

check "should

havc reduced"

Vi11S01l.NO.1: 14CV 192.2015

to amcnd and agrccing

to amcnd on the grounds of bad

settlement

estoppel.

thc balance,

WL 4774276.

.<.,.""

Johnson advanccs

a I'alid

S"" 1/01'1011".

at *29 (N,D, \Y, Va, Aug. 12. 2015) (denying

that "Iolnly alier Iplaintiff]

bccame aware ofthc

limitations

that hc has choscn to add these allegations

(internal

omittcd).

This. coupled with Johnson's

5

Icavc

on pleading

ncw t~lctual allegations.

leading to thc natural conclusion
and altcrations

a theory that the

ECF No. 51-1 at 7-8.

. , . [thc] claims through motions practice did he mcntion any ofthcsc

citations

constitutes

of his student loans. ECF No, 10 at 14. and now. only alier the Court has

tound that such a theory is barred by collateral
settlemcnt

but t~l\'orable

111\'.Cor" .. 660 F.2d 594. 599 (5th Cir. 1981).

DIISSOIIY ", GlllrCO(lS1

first prescnted

to establish

is thus

in bad I~lith ... ")

wcll-establishcd

historl'

as "a serial litigator who is on a decade-long

quest (undetcrred

by lack of success at each

instance) to avoid paying student loans that he took out from 1993 to 1996 and to sue various
with thesc loans:' Johnsoll

parties associated
2015 WL 7769502.

at *1 (D. Md. NO\'. 17. 2015).a{l'd.

the Court to lind that the proposcd

amendment

Finally. such an amendment
proposed
standards:'

amended

r. Experiall lillil. So/s .. IlIc.. No. I'WG-15-55X.

complaint

670 F. App'x 77X (4th Cir. 2(16).

is also made in bad laith.

would be futile. An amendment

is tiltile where ..the

lails to state a claim under the applicable

or "fails to satisfY the requiremcnts

rules and accompanying

KlIIy/e ". I'elln Nal.

of the fcderal rules:'

Ga1l1ing, IlIc.. 637 F.3d 462. 471 (4th Cir. 2(11). I lere. because I'laintilThas
that sovereign

immunity

has been waived for the Department

with respect to any of his claims. thc proposcd

e,g.. Frielld,. oIDere~f'J)ark

". Nal'/I'ark

at *6 (D,S.C. Apr. 13. 2(15) (finding
fedcral defendants

Sen,.

leads

of Education.

Sccond Amcnded

Complaint

No, 2: 13-CV -03453-DCN.

intcrvenor-dclendant"

would be futile unless proponcnt

s proposcd

could establish

f~liled to establish
a fedcral agency.
is also futile, See.
2015 WL 12X077X2.

amendment

against

that lederal delendants

had

.

waived sovereil!n immunitv).
~
"Sovereign
(4th Cir. 2(00).

immunity

deprives a court of jurisdiction."

"It is wcll establishcd

the claim must invoke the jurisdiction
2(06),

Once a challcnge

225 F.3d 46X. 469

that bclt)re a federal court can decide the merits ofa claim.
of the court." ,lli//er ".

is madc to subject mattcr jurisdiction.

proving that subjcct mattcr jurisdiction

us. ".JOlles.

BrOIl'll,

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

thc Plainti ITbears the burdcn of

exists. See 1"\'(111.1' 13. Perkins Co .. a Dir, o(Slalldex
". F

111/'/ Corp .. 166 F,3d 642. 64 7 (4th Cir. 1999): see a/so Ferdilll11ll/~Dl1l'ellpOrl ". ('hi/drell '.'
(jlli/d

742 f. Slipp. 2e1 772. 777 (D. Md, 20 I0). federal

prescribes

that "[i]fthc

cOllrt detcrmincs

Rule of Civil Procedure

12(h )(3)

at anv timc that it lacks subject matter jurisdiction.
.
'.

6

the

court must dismiss the action'"

Fed. R. Civ. 1'. 12(h)(3): see also lIellder.IWI ex rei. Ilellder.IWI

Shillseki. 562 U.S. 428. 434 (2011) (noting that "!olbjeetions

to subjcct-mallerjurisdiction

r.

...

may be raised at any time"').
First. the Court lacks jurisdiction
Department.

over Plaintifrs

because the limited waiver of sovereign

commonly

breach of contract claims against the

immunity

set 1(1(.thin 28 U.S.c.

known as the Lillie Tucker Act. does not apply to Plaintilfs

Tucker Act provides

~ 1346(a).

claims. The Little

in relevant part:

[Tlhc district courts shall have original jurisdiction.
concurrent
with the United States Court of Federal Claims. of ... lanyl ...
civil action or claim against the United States. not exceeding
$10.000 in amount. I(lllllded ...
upon any express or implied
contract with the United States. or I()I' liquidated or unliquidated
damages in cases not sounding in tort.
28 U.S.c.

~ 1346(a)(2).

Ilowever.

..the Little Tucker Act has long been construed

as wai\'ing the

federal government's

sovereign

immunity

only with respect to claims that seck monetary

rclief

in the 1()fIll of 'actual.

presently

due money damages .... f)mr,\'OIl \'. Greal Lakes Edu,.. I.OIUI

Sen'.I .. Ill,. .. No. 15-CV -4 75-BBC. 20 J 6 WI. 426610. at *3 (W.D. Wis. reb. 3. 2016) (citing
Bowell \'. Massad1/l.1'l'lls. 487 U.S. 879. 914-15 (1988)).

or declaratory

"Claims

I()r any type of equitable

nonmonetary

rclief. such as injunctive

Act's ambit."

or

!d (citing Sharp \'. Weillherger. 798 F.2d 1521. 1523-24 (D.c. Cir. 1986»).

llerc. while Plaintiff seeks $10.000.00
breach ofthc

federal Direct Loan contract.

due moncy damages"

relict: do not lilll within the Little Tuckcr

in compensatory

PlaintilThas

damages

I(Jr

Dcfcndants'

no causc of action I()r "actual. presently

li'OIll the United Statcs. As thc Court of Fcderal Claims has already

recognizcd:
Although he alleges a mcdley of contractual
brcaehcs by the
Departmcnt of Education. Mr. Johnson ne\'cr suggests that he has
sustained any injury that would require the government to pay him

7

allcged

dmll<wcs. Indccd. his solc ~
I!ricvancc is that thc ~
I!ovcrnmcnt has
~
illcgally increased his prccxisting debt. Whether or not this is so.
Mr. Johnson will not havc a causc for monctary damagcs until he
actually pays olTsome part of that allcgcdly impropcr debt. ...
Currcntly. cven if Mr. Johnson wcrc to proV'C that a portion of his
dcbt is unjustilicd.
hc would still owe a substantial outstanding
balancc to the Dcpartmcnt of Education. Mr. Johnson conscqucntly
has no grounds to dcmand a refund of paymcnts alrcady made and
thus no claim li,r monctary damagcs .
.Iohmoll

105 Fcd. CI. 85. 95 (2012). Thus. cvcn ifsucccsslill.l'laintilTcould

\'. Ullill'dS/all's.

only achievc injunctivc

rclicf in thc limn of an ordcr that his dcbt amount bc rccalculatcd.

Bccausc such claims do not 1[111 within thc Little Tuckcr Act's waivcr of immunity.
lacks jurisdiction

ovcr Johnson's

(Iinding no jurisdiction
spccilic

pcrllmnancc

brcach of contract claims. See

onthc

contract also fails. as thc Ilighcr Education

rclicf against thc Sccrctary

ilEA. See 20 U.S.c.

~ I082(a)(2)

under thc Sccrctary's

("no ...

control):

action seeking to cnjoin Secretary

of Education

...

shall be issued against the Sccretary

1rom collecting
ovcr I'laintifCs

ncgligcnt

or wronglili

act or omission

2010 WL

ovcr plaintifCs

tort claims Illr convcrsion

The Fedcral Tort Claims Act ("FTCA")
immunity.

and
28

see Siller )'. U'li/cd

but such waivers must bc strictly and narnl\\ly

See I.alle \'. Pella. 518 U.S. 187. 192 (J 996). Thc FTCA providcs

remedy lor "injury or loss of property.

or pcrsonal

8

thc cxclusiv'c

injury or dcath arising or rcsulting

of any cmploycc

ofthc

or

on his student loan dcbt).

~ 267 J. l'1 seq.. operates as a limited waiver of sovcrcign

construed.

prohibits

in relation to her powers under the

no subjectmalterjurisdiction

upon scclusion.

Slales. 44 J F.~d ~06. ~ J 0 (4th Cir. 2(06).

Act ("IlEA")

claim for

DUllcall. No. CIY. CCB-09-1407.

Lipc:l'lIko,..

thc COUl11acksjurisdiction

invasion of privacy by intrusion
U.S.c.

of Education

injunction

672846. at *2 (D. Md. Feb. 22. 2(10) (linding

Additionally.

20 16 WI. 4266 I O. at *~

ovcr studcnt loan casc under thc Littlc Tucker Act). I'laintifCs

claims Illr injunctive

propcrty

f)l/\,.SOIl.

thc Court

Govcrnmcnt

fromthc

whilc acting within

the scope of his office or employmenl."
brought only "against

28 U.S.c.

*

2679(b).

immunity

such claims are properly

the United States," See id Thus ... [tJhe authority of any federal agency to

sue and be sued in its own name shall not be construed
agency on claims"

However.

under the FTCA.

*

suits against such federal

2679(a). Since the FTC A "only "'aives sovereign

for suits brought against .the United States:

nomine or against a federal employee

to authorize

individually

suits brought against a federal agency eo

are dismissible

for lack of jurisdiction,"

*

Sll'IJng 1'. fJ)'ar. 573 F. Supp. 2d 880. 884-85 (D. Md. 2008) (citing 28 U.S.c.
Ed,~l'.341 F.2d 477. 480 (4th Cir. 1965»). Accordingly.
Dcpartment

"unequivocally

I'.

tort claims against thc

of Edueat ion filii for lack of subject matter jurisdiction.

Finally. Plainti 1'1' ails to establish
f

Maryland

PlaintiJrs

expressed"

Consumer

that waiver of sovereign

immunity

in his claims under the Fair Credit Reporting

Debt Collection

(D. Md. Apr. 3. 2017). the provisions
with its provisions
government.

is clear and

Act ("FCRA ") or the

As this Court recently held in RohillSon

Act ("MCDCA").

l'enl1.l)'/\'lInia Higher Edllc. A.I.li.llance Agent)'. No. GJII-15-0079.

Plaintiff:

2679: //ohnes ".

2017 WL 1277429. at *3

of the FCRA imposing civil liability for noncompliance

do not contain an unequivocal

waiver of sovereign

FUl1her. the language of the MCDCA -

in no way operates to waive sovereign

a Maryland

immunity

immunity

I,ll' the federal

state statute -

f,)J' thc U.S. Department

cited by
of Education.

See ECF No. 54 at 9. That the MCDCA defines "person" to include a "legal or commercial
entity," Md. Code. Com. Law

u.s. Dep'l

14-201. is wholly inapposite

to the question of waiver. C( lIa ".

o(Edllc .. 680 F. Supp. 2d 45. 47 (D.D.C. 2(10) (declining

the defendant
Congress

*

based on the FDCPA in accordance

can waive an executive

claims similarly

agency's

f~lil f,)r lack of jurisdiction.

to "assert jurisdiction

with .the longstanding

sovereign

principle

that only

immunity .... ). The remaining

proposed

and therej,)re

9

shall be denied as futile.

over

II.

CONCLUSION

For the foregoing reasons. Plaintiffs Motion for Leave to Amend. Eel' No. 51. is denied.
Defendants' Motion to Strike. Eel' No. 52. is denied. A separate Order shall issue.

Date: August

J(

/VI/-

. 2017

GEORGE J. HAZEL

United States District Judge

10