DeSiena v. Pa. Higher Educ. Assistance Agency

• Court: Court of Appeals for the Second Circuit
• Decided: June 16, 2023
• Docket: 22-1956
• Status: Unpublished

Opinion

22-1956 DeSiena v. Pa. Higher Educ. Assistance Agency

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of June, two thousand twenty-three.

PRESENT:

RICHARD J. SULLIVAN, BETH ROBINSON, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

SUSAN DESIENA,

Plaintiff-Appellant,

v. No. 22-1956

PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY,

Defendant-Appellee. ∗ _____________________________________

∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Plaintiff-Appellant: Susan DeSiena, pro se, Bethpage, NY.

For Defendant-Appellee: Justin G. Weber, Troutman Pepper Hamilton Sanders LLP, Harrisburg, PA; Jessica Rothenberg, Troutman Pepper Hamilton Sanders LLP, New York, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Gary R. Brown, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Susan DeSiena, proceeding pro se, appeals from the district court’s grant of

summary judgment in favor of the Pennsylvania Higher Education Assistance

Agency (the “Agency”) on her claim that the Agency failed to comply with its duty

to investigate her report of fraud under the Fair Credit Reporting Act (“FCRA”),

15 U.S.C. § 1681 et seq. We review a district court’s grant of summary judgment de

novo, see Kee v. City of New York, 12 F.4th 150, 157–58 (2d Cir. 2021), meaning

without any deference to the district court’s decision, and will affirm when there

is “no genuine dispute as to any material fact and the movant is entitled to

2 judgment as a matter of law,” Fed. R. Civ. P. 56(a). We assume the parties’

familiarity with the underlying facts, procedural history, and issues on appeal.

The FCRA imposes several duties on “furnishers” of information to credit

reporting agencies (“CRAs”). 15 U.S.C. § 1681s-2; see also 12 C.F.R. § 1022.41(c)

(defining “furnisher”). Section 1681s-2(a) requires furnishers to provide CRAs

with accurate information about their consumers. 15 U.S.C. § 1681s-2(a). Section

1681s-2(b) provides that furnishers must “reasonably investigate” upon receiving

notice of a dispute regarding the completeness or accuracy of reported

information. Longman v. Wachovia Bank, N.A., 702 F.3d 148, 151 (2d Cir. 2012)

(citing 15 U.S.C. §§ 1681i(a)(1)(A), 1681s–2(b)).

DeSiena claims that the Agency – a “furnisher” of information under the

FCRA – failed to investigate her claim that a Parent PLUS Loan in her name (the

“Loan”) was fraudulently opened by a third party. 1 But the undisputed facts show

that the Agency reasonably investigated DeSiena’s claim of fraud. On November

1 To trigger a furnisher’s duty to investigate, consumers must first file a dispute with a CRA, which then refers the challenge to the furnisher. See Sprague v. Salisbury Bank & Tr. Co., 969 F.3d 95, 99 (2d Cir. 2020). Although there is some question as to whether DeSiena actually filed a dispute with a CRA, the Agency does not argue on appeal that DeSiena failed to meet this statutory requirement. Because arguments not made in an appellant’s opening brief are forfeited, the Agency has not preserved this issue for appeal. See JP Morgan Chase Bank v. Altos Hornos de Mex., S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005); see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 n.4 (2014). 3 28, 2016, DeSiena sent the Agency a notarized letter asserting that she “did not

sign” for the Loan. Supp. App’x at 136. Shortly thereafter, the Agency responded

to DeSiena, stating that it had “received and investigated [her] credit dispute.” Id.

at 198. The letter explained that the investigation included a “review of all

[DeSiena’s] relevant account history and documentation, including any

information [she had] provided to [the Agency].” Id. Based on its review, the

Agency concluded that the disputed information was “accurate.” Id.

While DeSiena challenges the conclusion reached by the Agency, she

admitted that she has “no idea” whether the Agency actually conducted a

“reasonable investigation” into her claim. Id. at 130. Indeed, DeSiena testified that

the only evidence she has to support her failure-to-investigate claim consists of the

“very bad reviews” that she had seen on the internet. Id. To be sure, DeSiena

submitted an affidavit stating that she did not sign for the Loan. But this assertion,

without more, does not demonstrate that the Agency failed to conduct a

“reasonabl[e] investigat[ion].” Longman, 702 F.3d at 151. At bottom, DeSiena’s

argument reduces to the untenable claim that “any investigation that did not

accept [her] allegations as accurate was by definition unreasonable.” Chiang v.

4 Verizon New England Inc., 595 F.3d 26, 41 (1st Cir. 2010). Without more, she cannot

prevail on her failure-to-investigate claim. 2

We have considered DeSiena’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

Additionally, we direct the Clerk of Court to seal the appendix filed with DeSiena’s

brief (Doc. No. 45).

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

2To the extent that DeSiena seeks to supplement the record on appeal, that motion is denied. We consider evidence outside the district court record only in “extraordinary circumstances.” Int’l Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975); see Fed. R. App. P. 10(a) (defining record on appeal). The materials that DeSiena seeks to add to the record are not relevant to the failure-to-investigate claim that is the subject of this appeal. 5