Brown v. Pennsylvania Higher Education Agency

• Court: District Court, District of Columbia
• Decided: March 2, 2020
• Docket: Civil Action No. 2019-0979
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Shuntay Antonio Brown, : : Plaintiff, : v. : Civil Action No. 19-979 (CKK) : Pennsylvania Higher Education : Agency et al., : : Defendants. :

MEMORANDUM OPINION

This pro se action brought under the Fair Credit Reporting Act was removed from D.C.

Superior Court by Trans Union, LLC. See Not. of Removal [Dkt. # 1]. In addition to the three

major credit reporting bureaus, namely Trans Union; Experian Information Solutions, Inc.

(“Experian”); and Equifax Information Solutions, Inc. (“Equifax”), plaintiff has sued the U.S.

Department of Education, the U.S. Department of Housing and Urban Development (“HUD”)

(collectively the “Federal Defendants”); the D.C. Housing Authority (“DCHA” or “Housing

Authority”); and the Pennsylvania Higher Education Assistance Agency (“PHEAA”).

Pending before the Court are the fully briefed motions to dismiss of Equifax [Dkt. # 36],

PHEAA [Dkt. # 38], DCHA [Dkt. # 60], and the Federal Defendants [Dkt. # 65]. Each motion

seeks dismissal under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon

which relief may be granted. 1 For the reasons explained below, the Court will (1) grant the

motions of PHEAA and DCHA to dismiss with prejudice, (2) grant without prejudice the

1 Also pending is Experian’s motion to dismiss solely “as a Sanction for Plaintiff’s Misconduct” [Dkt. # 81], which Trans Union has joined. This opinion does not address that motion.

1 motions of Equifax and the Federal Defendants’ to dismiss, and (3) deny all of plaintiff’s sundry

motions.

I. BACKGROUND

A. Procedural Posture

In the operative complaint filed in Superior Court on April 3, 2019, plaintiff invokes the

Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., and the Violence Against

Women Act (“VAWA”). He claims only that “defendants are refusing to report true information

under the FCRA credit dispute regarding domestic violence under VAWA and FCRA.” 2 Compl.

at 1 [Dkt. # 1-2]. 3 Plaintiff does not allege supporting facts nor seek a cognizable remedy. See

id. (requesting “[t]o prepare for a jury trial on the merits pursuant to the Dred Scott case base on

Jurisdiction”). Yet, on April 8, 2019, Trans Union removed the case to this court based on

federal question jurisdiction. See Not. of Removal ¶ 3; 28 U.S.C. § 1331 (conferring in the

district court original jurisdiction over civil actions arising under the Constitution or laws or

treaties of the United States). At that time, according to Trans Union, no other “named

Defendants” had been served with process, but it was able to obtain Experian’s consent because

Experian was “aware of this litigation[.]” 4 Not. of Removal ¶ 5.

2 The 116-page pleading consists of a four-page form Complaint and a host of exhibits (“Ex.”). 3 The page number citations are those automatically assigned by the electronic case filing system. 4 For this reason, plaintiff’s motions to remand the case to Superior Court [Dkt. ## 54, 76] will be denied because contrary to his argument, unanimity of consent to remove is required only “when the civil action is removed solely under section 1441(a)” and “all defendants . . . have been properly joined and served.” 28 U.S.C. § 1446(b)(2)(A).

2 B. Factual Posture

According to PHEAA, plaintiff “is a federal student loan borrower who until [July 3,

2019] had several loans serviced by PHEAA, a federal student loan servicer doing business as

FedLoan Servicing.” PHEAA’s Mem. of P. & A. (“Mem.”) at 1 [Dkt. # 38-1] (citing Compl.

Exhibits pp. 93-94, 103-04). On February 26, 2019, plaintiff “filed two credit dispute forms with

PHEAA, alleging that his student loan debt was either discharged in bankruptcy or suspended

due to disability.” Id. On March 14, 2019, PHEAA informed plaintiff that contrary to his belief,

“his student loans were not discharged in bankruptcy, . . . but that [it had] received a

consolidation payment on March 13, 2019 that had the effect of combining [plaintiff’s] prior

loans into a new loan, and making the prior loans as paid in full.” Id. at 1-2 (citing 11 U.S.C.

§ 523(a)(8)). 5 PHEAA then “furnished” to the credit reporting agencies information that

“correctly reflects that [plaintiff’s] prior loans are considered paid in full as a result of his loan

5 Section 523(a) of Title 11 states in relevant part that a bankruptcy discharge does not discharge an individual debtor from any debt

(8) unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and the debtor's dependents, for--

(A)(i) an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution; or

(ii) an obligation to repay funds received as an educational benefit, scholarship, or stipend; or

(B) any other educational loan that is a qualified education loan, as defined in section 221(d)(1) of the Internal Revenue Code of 1986, incurred by a debtor who is an individual[.]

3 consolidation.” Id. at 2; see Compl. Ex. B at 61-79 (Apr. 2, 2019 Experian Report showing

“PHEAA/FED LOAN SERV” accounts as “removed from your credit report” and “Deleted”);

Compl. Ex. C at 95 (Mar. 20, 2019 “Paid in Full Notification” from FedLoan Servicing

regarding 12 disbursements from October 27, 2008, to October 28, 2015).

II. LEGAL STANDARD

A party may move under Rule 12(b)(6) to dismiss a complaint on the grounds that it

“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A]

complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual

allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678. Although dismissals with prejudice are disfavored, a

“dismissal with prejudice is warranted . . . when a trial court determines that the allegation of

other facts consistent with the challenged pleading could not possibly cure the deficiency.”

Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (per curiam) (internal quotation

marks and citations omitted)).

In ruling on a motion to dismiss for failure to state a claim, the Court accepts as true the

well-pleaded allegations in the operative complaint, but “not . . . the plaintiff’s legal conclusions

or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in

U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court may consider not only “the facts alleged in

the complaint” but also “documents attached to the complaint as exhibits or incorporated by

4 reference in the complaint, and matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citing EEOC v. St. Francis

Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997)). Pro se pleadings are held to

“less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S.

89, 94 (2007) (per curiam), but still they must satisfy the minimal requirement of alleging

sufficient “factual matter” to permit a court “to infer more than the mere possibility of

misconduct[.]” Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 150 (D.C. Cir. 2015)

(quoting Atherton v. District of Columbia Off. of the Mayor, 567 F.3d 672, 681-82 (D.C. Cir.

2009) (internal quotation marks omitted)).

III. ANALYSIS

A. Violence Against Women Act (VAWA)

Plaintiff mentions VAWA, which was enacted “to protect the civil rights of victims of

gender motivated violence . . . by establishing a Federal civil cause of action for victims of crime

of violence motivated by gender.” 34 U.S.C. § 12361(a) (formally 42 U.S.C. § 13981)).

Although plaintiff has not specified which defendant is subject to the VAWA, the Housing

Authority “implements VAWA in several ways, including the adoption of an Emergency

Transfer Plan for victims of domestic violence, dating violence, sexual assault or stalking.” 6

Mem. of P. & A. in Supp. of DCHA’s Mot. to Dismiss at 6 [Dkt. # 60] (citing 14 DCMR § 4907,

6 DCHA is the local authority established to implement the United States Housing Act, 42 U.S.C. §§ 1437 et seq. It oversees the District’s public housing program and the Housing Choice Voucher Program (“HCVP”) governed by Section 8 of the National Housing Act of 1937, as amended. 42 U.S.C. § 1437f(o). See Karim-Panahi v. 4000 Massachusetts Apartments, 302 F. Supp. 3d 330, 332–33 (D.D.C. 2018), aff'd, No. 18-7054, 2018 WL 6167393 (D.C. Cir. Nov. 1, 2018) (for a comprehensive discussion of the voucher program). According to DCHA, “Plaintiff is a participant of the HCVP.” Mem. at 4 (citing Compl. Ex. p. 96).

5 14 DCMR §§ 8500 et seq.; 24 CFR § 5.2005(e)); see generally Compl. Ex. A, (HUD’s

“Violence Against Women Reauthorization Act of 2013 Guidance”) [Dkt. # 1-2 at 8-59].

Apart from the fact that plaintiff has alleged no coherent set of facts to establish his

standing to sue under the VAWA, the Supreme Court has deemed unconstitutional the provision

that creates a private cause of action, 34 U.S.C. § 12361(c). In United States v. Morrison, the

Court “consider[ed] the constitutionality of [then-numbered] 42 U.S.C. § 13981, which provides

a federal civil remedy for the victims of gender-motivated violence.” It concluded:

Petitioner’s [ ] complaint alleges that she was the victim of a brutal assault. But Congress’ effort in § 13981 to provide a federal civil remedy can be sustained neither under the Commerce Clause nor under § 5 of the Fourteenth Amendment. If the allegations here are true, no civilized system of justice could fail to provide her a remedy for the conduct of [the] respondent[.] But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States.

529 U.S. 598, 601-02, 627 (2000). 7 Consequently, plaintiff’s VAWA claim is dismissed.

B. Fair Credit Reporting Act (FCRA)

“Congress enacted [the] FCRA in 1970 to ensure fair and accurate credit reporting,

promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of

Am. v. Burr, 551 U.S. 47, 52 (2007) (citations omitted). To that end, the FCRA imposes

limitations and duties on furnishers of information, and it creates liability for certain violations.

“If a violation is negligent, the affected consumer is entitled to actual damages. If willful,

however, the consumer may have actual damages, or statutory damages ranging from $100 to

$1,000, and even punitive damages.” Id. at 53 (citing 15 U.S.C. §§ 1681o, 1681n).

7 Indeed, plaintiff has supplied a DCHA Decision denying his “request for a voucher pursuant to VAWA” based on his “failure to demonstrate entitlement to VAWA protections,” and informing plaintiff of his right to appeal the decision to the District of Columbia Court of Appeals. Compl. Ex. p. 98.

6 Under the FCRA, “[a] person shall not furnish any information relating to a consumer to

any consumer reporting agency if the person knows or has reasonable cause to believe that the

information is inaccurate.” 8 15 U.S.C. § 1681s–2(a)(1)(A). In addition, “[a] person shall not

furnish information relating to a consumer to any consumer reporting agency if . . . the person

has been notified by the consumer . . . that the specific information is inaccurate; and . . . the

information is, in fact, inaccurate.” Id. § 1681s–2(a)(1)(B). Both these obligations arise under

Section 1681s–2(a) of Title 15, but there is no private right of action for violations of this

section. Haynes v. Navy Fed. Credit Union, 825 F. Supp. 2d 285, 295 (D.D.C. 2011) (citing §§

1681s(c)(1)(B), 1681s–2(c)–(d) (granting enforcement power to the States and Federal

regulators); see also SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355, 358 (3d Cir. 2011)

(claims under § 1681s-2(a) “are available only to the Government”).

Under 15 U.S.C. § 1681s–2(b), upon being notified by a credit reporting agency of a

dispute as to the accuracy of its information, the furnisher of information to a credit reporting

agency “has duties under [the Fair Credit Reporting Act] to investigate the disputed information

and correct it as necessary.” Haynes v. Navy Fed. Credit Union, 52 F. Supp. 3d 13, 19 (D.D.C.

2014) (quoting Ihebereme v. Capital One, N.A., 933 F. Supp. 2d 86, 111 (D.D.C. 2013), aff'd,

573 Fed. App’x 2 (D.C. Cir. 2014) (alteration in original)). The “FCRA does provide a private

right of action for violations under Section 1681s–2(b) . . . if the furnisher of information

negligently or willfully failed to meet the requirements” of that section. Haynes, 825 F. Supp. 2d

at 295; see SimmsParris, 652 F.3d at 358 (§ 1681s-2(b) is “the only section that can be enforced

by a private citizen seeking to recover damages caused by a furnisher of information”) (citing

8 “The term ‘person’ means any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.” 15 U.S.C. § 1681a.

7 Chiang v. Verizon New England Inc., 595 F.3d 26, 35 (1st Cir. 2010); Gorman v. Wolpoff &

Abramson, LLP, 584 F.3d 1147, 1162 (9th Cir. 2009); Saunders v. Branch Banking & Trust Co.

of VA., 526 F.3d 142, 149 (4th Cir. 2008)). “[C]laims made under state law [e.g., negligence]

concerning the furnishing and correcting of information to credit reporting agencies are

preempted by FCRA.” Ihebereme, 933 F. Supp. 2d at 98.

1. PHEAA’s Motion to Dismiss 9

PHEAA argues that plaintiff’s claim against it “cannot be cured via amendment” because

the information it has furnished the credit reporting agencies “correctly reflects that Brown’s

prior loans are considered paid in full as a result of his loan consolidation,” and that plaintiff has

admitted as much. Mem. at 1-2 [Dkt. # 38-1] (citing Dkt. # 20-1 at 2-4); see id. 6 (noting that

plaintiff “alleges only that PHEAA has correctly labelled his pre-consolidation accounts as paid

in full”) (citing Dkt. # 8 at 2)). The April 2, 2019 Experian report attached to the complaint

lends further support insofar as it identifies the “PHEAA/FED LOAN SERV” accounts that were

“removed from [plaintiff’s] credit report” and “Deleted.”

Plaintiff counters that PHEAA’s “representations to [the credit reporting agencies] ha[ve]

damage[d] [his] credit history making it hard [for] him to obtain housing, employment, and

economic and social development after the Chapter Seven Final Report which included the

student loan debt in 2012.” Pl.’s Opp’n to Mot. to Dismiss Filed by PHEAA and Equifax at 4-5

[Dkt. # 48]. However, he has not identified the “representations” and alleged that they were

9 Plaintiff has moved for sanctions against PHEAA for allegedly violating Local Civil Rule 26.1’s disclosure requirement [Dkt. # 42]. Local Rule 26.1 applies “where a corporation is a party.” PHEAA counters that the rule seems inapplicable because it is an “instrumentality of the Commonwealth of Pennsylvania.” Opp’n [Dkt. # 44]. That “PHEAA conducts its student loan servicing operations for federally-owned loans as FedLoan Servicing,” https://myfedloan.org/borrowers/student-loans-101/lifecycle, does not make it less so. In any event, PHEAA has filed a Rule 26.1 certificate “[i]n an abundance of caution.” [Dkt. # 46]. Therefore, plaintiff’s motion for sanctions against this defendant will be denied.

8 inaccurate to state an actionable claim. It is reasonably safe to conclude from plaintiff’s own

exhibits that PHEAA has done what is required of it under the FCRA. Upon receiving plaintiff’s

credit dispute forms in February 2019, PHEAA launched a timely investigation and within

approximately one month furnished the credit bureaus with accurate information about the

accounts being paid in full. Therefore, the complaint against this defendant is dismissed with

prejudice.

2. Housing Authority’s Motion to Dismiss 10

Having dismissed the VAWA claim, the Court is unsure what remains of plaintiff’s claim

against DCHA; plaintiff’s opposition [Dkt. # 62] is unilluminating.11 To the extent that plaintiff

seeks to hold the Housing Authority liable under the FCRA, his claim fails simply because

DCHA is not a furnisher of information covered by the Act. It “is not a consumer reporting

agency,” and it “does not and cannot engage in any credit reporting activities.” Mem. at 7-8

(citing 42 U.S.C. § 1437f (“Low-income housing assistance”); 24 C.F.R. §§ 982.201 (“Eligibility

and targeting” for public housing assistance). Furthermore, information gathered for the

purpose of implementing programs under the Housing Act “shall remain confidential and shall

be used only for [that] purpose[.]” 42 U.S.C. § 1437f. Therefore, the complaint against DCHA

is dismissed with prejudice as well.

10 Plaintiff’s has moved for a sanction and to strike the D.C. Housing Authority’s motion to dismiss seemingly because one of the attorneys at the law firm hired to represent the agency signed the motion before entering her appearance. See Mot. [Dkt. # 63]. Plaintiff’s motion will be denied for the reasons stated in the opposition [Dkt. # 67] and because a motion to dismiss is not “a pleading” that can be ordered stricken under Fed. R. Civ. P. 12(f). Nwachukwu v. Rooney, 362 F. Supp. 2d 183, 190 (D.D.C. 2005) (citing Fed. R. Civ. P. 7(a), defining “Pleadings”). Even if it were a pleading, counsel’s alleged misstep would not be a valid ground for striking the pleading. See Fed. R. Civ. P. 12(f) (“The court may strike . . . an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter”). 11 Inexplicably, plaintiff has attached to his opposition documents and copies of court rulings that seem wholly unrelated to this case.

9 3. Motions of Equifax and the Federal Defendants to Dismiss

The premise of the remaining Rule 12(b)(6) motions to dismiss is that the complaint is

factually deficient. It bears repeating that to survive a motion to dismiss, even a pro se pleading

must satisfy the minimal requirement of alleging sufficient factual matter to show more than “the

mere possibility of misconduct.” Brown, 789 F.3d at 150. As Equifax points out, the complaint

“makes no reference to who, what, where, when, why, or how the alleged violations occurred.”

Mot. at 3. But this does not sound the death knell for the case. It is possible that plaintiff can

cure the pleading deficiency through an amended complaint. Furthermore, in reply to plaintiff’s

opposition, the Federal Defendants state that “[a] review of” the opposition [Dkt. # 69] “makes

evident that it is, in substance, a Motion to Amend his Complaint,” and they “do not object to

Plaintiff amending his Complaint.” Reply [Dkt. # 75]. Accordingly, the Court will dismiss the

complaint against Equifax and the Federal Defendants without prejudice and with leave for

plaintiff to amend the complaint.

CONCLUSION

For the foregoing reasons, the Court concludes that plaintiff has failed to state a claim

upon which relief may be granted. Consequently, each Rule 12(b)(6) motion will be granted and

the complaint will be dismissed with prejudice only as to PHEAA and the D.C. Housing

Authority. In all other respects, the complaint will be dismissed without prejudice and with

10 leave for plaintiff to amend, and all of plaintiff’s pending motions will be denied. 12 A separate

order accompanies this Memorandum Opinion.

___________s/_______________ COLLEEN KOLLAR-KOTELLY Date: March 2, 2020 United States District Judge

12 In addition to the previously discussed motions, plaintiff has pending a motion for the credit bureaus essentially to investigate his claims [Dkt. # 71], which will be denied as premature; and two perplexing motions seemingly to confirm or certify matters that are or were before the U.S. Bankruptcy Court for the Northern District of Illinois [Dkt. ## 78, 79], which will be denied for want of jurisdiction.