HOWARD v. UNITED STATES DEPARTMENT OF EDUCATION, No. 1:2009cv01633 - Document 113 (D.D.C. 2013)

Court Description: MEMORANDUM OPINION accompanying final order issued separately this day. Signed by Judge Emmet G. Sullivan on 6/6/13.(ah)
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ___________________________________ ) GREGORY T. HOWARD, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-1633 (EGS) (DAR) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________ ) MEMORANDUM OPINION This action captioned Complaint for the Tort of Negligence [Dkt. # 1] brought pro se under the Federal Tort Claims Act ( FTCA ), 28 U.S.C. §§ 1346, 2671-80, was referred to Magistrate Judge Deborah Robinson for a Report and Recommendation ( Report or R&R ). Judge Robinson considered Plaintiff s Motion for Summary Judgment on the Issue of Liability [Dkt. # 77] and Defendant s Motion to Dismiss or in the Alternative for Summary Judgment and Opposition to Plaintiff s Motion for Summary Judgment [Dkt. # 88]. In her Report issued on March 8, 2012, Judge Robinson finds that this Court lacks jurisdiction over plaintiff s claim of negligent interference with his rights under his student loan contract and, thus, recommends granting defendant s motion to dismiss pursuant to Rule 12(b)(1) and denying as moot both parties motions for summary judgment. Report [Dkt. # 102] at 4-5. Defendant filed a timely objection, Def. s LCvR 72.2 Objection to the R&R Ruling Submitted by the Hon. Deborah Robinson, U.S.M.J. ( Def. s Obj. ) [Dkt. # 103], and plaintiff was granted leave to file his objection and response to defendant s objection, Pl. s Fed. R. Civ. P. 72(b)(1) through (3) Objection to the R&R Ruling Submitted by the Hon. Deborah Robinson, 1 U.S.M.J. and Response to Def. s Obj. to the R&R Ruling Submitted by the Hon. Deborah Robinson, U.S.M.J. ( Pl. s Obj. ) [Dkt. # 106]. After careful consideration of the Report and each party s objections, the Court will sustain defendant s objection, adopt the R&R with modification, and overrule plaintiff s objections. Accordingly, defendant s motion to dismiss will be granted and this case will be dismissed. REVIEW STANDARD This Court's review of the magistrate judge's R&R is governed by Federal Rule of Civil Procedure 72(b). When a party files written objections to any part of the magistrate judge's recommendation with respect to a dispositive motion, the Court considers de novo those portions of the recommendation to which objections have been made, and may accept, reject, or modify the recommended decision[.] Robinson v. Winter, 457 F. Supp. 2d 32, 33 (D.D.C. 2006) (quoting Fed. R. Civ. P. 72(b)). DISCUSSION The Complaint, as supplemented [Dkt. # 9] and amended [Dkt. # 80], stems from the Department of Education s initial decision on August 28, 2007, to deny plaintiff s request pursuant to 20 U.S.C. § 1087(a) for a discharge of his student loans due to disability. 1 See Compl. ¶ 4. The loans were rightly discharged on December 31, 2008, based on Plaintiff s disability beginning September 30, 2005. Id. ¶¶ 5-6. Plaintiff claims that defendant administratively, negligently, and wrongfully denied his application in August 2007, id. ¶ 4, and seeks $12 million in damages for alleged emotional and financial injuries suffered as a result 1 In the Amended Complaint, plaintiff incorporates the initial and supplemental complaints. See Am. Compl. [Dkt. # 80] at 1. Hence the Court, consistent with its duty, where appropriate, to read Aall of [a pro se] plaintiff=s filings together,@ Richardson v. U.S., 193 F.3d 545, 548 (D.C. Cir. 1999), considers the original complaint operative. 2 of the agency s delay in discharging the student loans. See id. ¶¶ 8-10, 13, 16. The Magistrate Judge s recommendation is based solely on the FTCA s provision excluding from suit [a]ny claim arising out of . . . interference with contract rights. Report at 4-5 (citing 28 U.S.C. § 2680(h)). Defendant s Objection to the Report Defendant states that it does not object to [the] ruling or rationale but rather asserts an additional rationale for dismissal of the case. Def. s Obj. at 1. Defendant then purports to argue why the complaint is subject to dismissal for failure to state a claim . . . ., id. at 3, but it invokes sovereign immunity, see id. at 3-4, which is a jurisdictional basis for dismissal. United States v. Mitchell, 463 U.S. 206, 212 (1983) ( It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction. ); see Hornbeck Offshore Transp., LLC v. U.S., 569 F.3d 506, 512 (D.C. Cir. 2009) ( The extent of the waiver of sovereign immunity under the FTCA is coextensive with the district court s subjectmatter jurisdiction to hear the case. ) (citation omitted). This misstep notwithstanding, the Court agrees with defendant s additional rationale for dismissing the case -- albeit under Rule 12(b)(1). The FTCA confers in the district court jurisdiction over tort claims against the United States for monetary damages under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). The complaint alleges violations of the federal student loan statute, 20 U.S.C. § 1087, which is administered by the U.S. Department of Education and has no analogous local law . . . that could support liability of a private party for similar actions . . . . Hornbeck Offshore Transp., LLC, 569 F.3d at 510. Hence, the Court sustains defendant s 3 objection and hereby MODIFIES Judge Robinson s Report to include as an additional basis for dismissal the complaint s failure to satisfy the jurisdictional requirement set forth at 28 U.S.C. § 1346(b). Plaintiff s Objections to the Report Plaintiff asserts that Judge Robinson s recommendation to deny his summary judgment motion is clearly erroneous and contrary to law because he has stated a claim for intentional infliction of emotional distress [ IIED ]. Pl. s Obj. at 2. Judge Robinson notes the availability of an IIED claim under the FTCA but suggests that dismissal of the claim is warranted under Rule 12(b)(6) for failure to state a claim. See Report at 5 n.3. However, as determined above, the Court cannot consider the merits of the IIED claim because the statutory basis does not fit within the limited waiver of sovereign immunity under 28 U.S.C. § 1346(b), and the Court must dismiss the action when subject matter jurisdiction is found wanting. Fed. R. Civ. P. 12(h)(3). Plaintiff also asserts that a reasonable fact finder could find that the Defendant acted arbitrarily, capriciously and not in accordance with . . . the Administrative Procedure Act [ APA ], 5 U.S.C. § 706, by not initially discharging Plaintiff s loans . . . . Id. (emphasis added). The jurisdictional hurdle remains. First, the complaint seeks monetary damages, but the sovereign s immunity is waived under the APA for suits seeking relief other than money damages. 5 U.S.C. § 702; see Cohen v U.S., 650 F.3d 717, 723 (D.C. Cir. 2011) ( [T]here is no doubt Congress lifted the bar of sovereign immunity in actions not seeking money damages. ) (citation omitted). Second, the discharge of plaintiff s student loans renders any claim for relief under the APA moot. See 5 U.S.C. § 706 ( The reviewing court shall compel agency action unlawfully withheld or unreasonably delayed; and hold unlawful and set aside agency action . . . found to be arbitrary, capricious, . . . or otherwise not in accordance with law. ). 4 CONCLUSION For the foregoing reasons, plaintiff s objections are OVERRULED, defendant s objection is SUSTAINED, and the Magistrate Judge's Report and Recommendation is ADOPTED as modified. Accordingly, defendant s motion to dismiss for lack of subject matter jurisdiction is GRANTED and each party s motion for summary judgment is DENIED as moot. A separate final order accompanies this Memorandum Opinion DATE: June 6, 2013 SIGNED: EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE 5