20-1981-bk In re Hilal K. Homaidan
United States Court of Appeals for the Second Circuit AUGUST TERM 2020 No. 20-1981
HILAL K. HOMAIDAN, Plaintiff-Appellee,
v.
SALLIE MAE, INC., NAVIENT SOLUTIONS, LLC, NAVIENT CREDIT FINANCE CORPORATION, Defendants-Appellants. 1
ARGUED: MAY 19, 2021 DECIDED: JULY 15, 2021
Before: JACOBS, CHIN, NARDINI, Circuit Judges.
1The Clerk of Court is directed to amend the caption as set forth above. Reeham Youssef was added as a plaintiff in the proceeding below and appellants named her as an appellee here. However, Youssef was not a party to this case when the bankruptcy court entered the order on appeal. Therefore, she is not a proper party to this appeal and is removed from the caption.
1 In the United States Bankruptcy Court for the Eastern District of New York
(Stong, B.J.), the borrower argued that a student loan was discharged in
bankruptcy. The bankruptcy court denied the lender’s motion to dismiss after
concluding that 11 U.S.C. § 523(a)(8)(A)(ii)—which excepts from discharge “an
obligation to repay funds received as an educational benefit, scholarship, or
stipend”—does not cover private student loans. We AFFIRM.
____________________
GEORGE F. CARPINELLO, Boies Schiller Flexner LLP, Albany, NY (Adam R. Shaw, Robert C. Tietjen, Jenna C. Smith, on the brief), for Plaintiff-Appellee.
Austin C. Smith, Smith Law Group, New York, NY (on the brief), for Plaintiff-Appellee.
Lynn E. Swanson, Peter Freiberg, Jones, Swanson, Huddell & Garrison, L.L.C., New Orleans, LA (on the brief), for Plaintiff-Appellee.
Jason W. Burge, Fishman Haygood L.L.P., New Orleans, LA (on the brief), for Plaintiff-Appellee.
THOMAS M. FARRELL, McGuire Woods LLP, Houston, TX (K. Elizabeth Sieg, McGuire Woods LLP, Richmond, VA, on the brief), for Defendants-Appellants.
2 DENNIS JACOBS, Circuit Judge:
The Bankruptcy Code immunizes certain liabilities from discharge,
including much educational debt. See 11 U.S.C. § 523(a)(8). The question in
this case is whether the private educational loans that Plaintiff-Appellee Hilal K.
Homaidan took out from Defendant-Appellants Sallie Mae Inc., Navient
Solutions, LLC, and Navient Credit Finance Corporation (collectively,
“Navient”) were dischargeable.
Homaidan received the loans (the “Navient loans”), graduated from
Emerson College, and later filed for Chapter 7 bankruptcy. The bankruptcy
court’s 2009 discharge order was ambiguous as to whether the Navient loans
were discharged. Navient pursued repayment after the discharge order was
issued, and Homaidan complied. After paying off the loans in full, Homaidan
reopened the bankruptcy case and commenced this adversary proceeding
against Navient seeking, among other things, actual damages for Navient’s
alleged violation of the discharge order. The United States Bankruptcy Court
for the Eastern District of New York (Stong, B.J.) determined that the Navient
loans were not excepted from discharge under 11 U.S.C. § 523(a)(8)(A)(ii) and
3 therefore denied Navient’s motion to dismiss. See Homaidan v. SLM Corp. (In
re Homaidan), 596 B.R. 86, 107 (Bankr. E.D.N.Y. 2019).
Navient maintains that § 523(a)(8)(A)(ii) prevented the loans from being
discharged in Homaidan’s bankruptcy. That provision excepts from discharge
“obligation[s] to repay funds received as an educational benefit, scholarship, or
stipend.” 11 U.S.C. § 523(a)(8)(A)(ii). Under Navient’s reading of that
provision, the term “educational benefit” would encompass virtually all private
student loans. But that reading cannot be reconciled with the text and structure
of § 523(a)(8), both of which confirm that § 523(a)(8)(A)(ii) excepts from
discharge a far narrower category of debt.
Accordingly, we AFFIRM the bankruptcy court’s denial of Navient’s
motion to dismiss.
I
Homaidan attended Emerson College from 2003-2007 and took out several
loans to finance his education there. Among them were two direct-to-consumer
Tuition Answer Loans, totaling $12,567, from Sallie Mae Inc., a corporation to
which Navient is the successor. Although the loans helped underwrite
4 Homaidan’s college education, they were not made through Emerson’s financial
aid office, nor—Homaidan alleges—were they made solely to cover Emerson’s
cost of attendance. They went straight to Homaidan’s bank account, and the
loan proceeds exceeded the cost of Emerson’s tuition.
Soon after graduating, Homaidan filed for Chapter 7 bankruptcy in the
United States Bankruptcy Court for the Eastern District of New York. The
petition listed the Navient loans as liabilities. Homaidan eventually obtained a
discharge order from the bankruptcy court, but the order did not specify which
debts were discharged. Rather, it observed that some “common types of debts”
including “[d]ebts for most student loans,” are not dischargeable in a Chapter 7
proceeding. App’x 59 (alterations omitted).
After the bankruptcy proceeding was closed, Navient hired a collection
firm to pester Homaidan about paying back his Tuition Answer Loans. These
demands for repayment caused Homaidan to assume that the loans had not been
discharged; so he paid Navient in full, allegedly “under the mistaken belief that
he had a legal obligation to do so.” App’x at 26 (Compl. ¶ 51).
In 2017, Homaidan moved to reopen his bankruptcy case to seek a
5 determination that the Navient loans were in fact discharged during the original
proceeding. (This would allow him to sue Navient for violating the discharge
order.) Once the case was reopened, Homaidan commenced the instant
adversary proceeding against Navient, which is styled as a putative class action.
According to Homaidan, Navient has employed a scheme of issuing
dischargeable loans to unsophisticated student borrowers and then demanding
repayment even after those loans are discharged in bankruptcy.
Navient moved to dismiss the adversary proceeding under Federal Rule of
Civil Procedure 12(b)(6), arguing, inter alia, that Homaidan’s Tuition Answer
Loans were excepted from discharge under 11 U.S.C. § 523(a)(8)(A)(ii). The
bankruptcy court rejected that argument, concluding that “both by its terms and
read in context, [§ 523(a)(8)(A)(ii)] does not sweep in all education-related debt.”
In re Homaidan, 596 B.R. at 102. The district court (Block, J.) then certified the
bankruptcy court’s order for interlocutory appeal.
II
We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C.
§ 158(d)(2)(A). That provision gives us jurisdiction to review an interlocutory
6 order from a bankruptcy court if: (1) the district court certifies (inter alia) that the
order involves a question of law for which no controlling precedent exists; and
(2) this Court authorizes the appeal. See 28 U.S.C. § 158(d)(2)(A); Weber v.
United States, 484 F.3d 154, 157 (2d Cir. 2007). The district court so certified,
and a motions panel of this Court authorized the appeal.
Our review of the bankruptcy court’s order, which involves a pure
question of law, is de novo. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d
292, 300 (2d Cir. 2003).
III
The sole question is one of statutory interpretation: whether the loans at
issue constitute “an obligation to repay funds received as an educational benefit”
and were therefore excepted from discharge under § 523(a)(8)(A)(ii). Homaidan
contends that Navient is estopped from advancing its interpretation of
§ 523(a)(8)(A)(ii). But we reach it for the reasons set forth in the margin, 2 and
2 Homaidan argues that Navient is estopped because it has unsuccessfully advanced its interpretation of § 523(a)(8)(A)(ii) in other cases. Appellee Br. at 11–15 (citing Crocker v. Navient Sols. LLC (In re Crocker), 941 F.3d 206 (5th Cir. 2019), and McDaniel v. Navient Sols. LLC (In re McDaniel), 973 F.3d 1083 (10th Cir. 2020)). We disagree. Nonmutual offensive collateral estoppel, which
7 conclude that Homaidan’s loans fall outside the scope of § 523(a)(8)(A)(ii).
Our inquiry begins (and in this case ends) with the statutory text. See
Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003). The Bankruptcy
Code lays out several categories of educational debt that cannot be discharged in
bankruptcy absent a showing of undue hardship. See 11 U.S.C. § 523(a)(8).
Because the federal bankruptcy system is designed to “aid the unfortunate
debtor by giving him a fresh start in life,” Lamar, Archer & Cofrin, LLP v.
Appling, 138 S. Ct. 1752, 1758 (2018) (internal quotation marks omitted),
discharge exceptions such as § 523(a)(8) are “confined to those plainly expressed
in the Bankruptcy Code,” Bethpage Fed. Credit Union v. Furio (In re Furio), 77
“precludes a defendant from relitigating an issue the defendant has previously litigated and lost to another plaintiff,” Bifolck v. Philip Morris USA Inc., 936 F.3d 74, 79 (2d Cir. 2019) (internal quotation marks and alteration omitted), cannot be applied if it would be unfair to the defendant, see Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 330 (1979). Unfairness arises “if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant.” Id. Because the Fifth and Tenth Circuit cases relied upon by Homaidan are inconsistent with earlier cases that adopted Navient’s broader reading of § 523(a)(8)(A)(ii), see, e.g., Roy v. Sallie Mae (In re Roy), 2010 WL 1523996, at *1 (Bankr. D.N.J. Apr. 15, 2010), it would be unfair to preclude Navient from advancing its view here, see Flood v. Just Energy Mktg. Corp., 904 F.3d 219, 237 (2d Cir. 2018) (affirming denial of collateral estoppel when the defendant had previously prevailed in another district court).
8 F.3d 622, 624 (2d Cir. 1996) (internal quotation marks and alteration omitted).
The creditor bears the burden of establishing that a debt is excepted from
discharge. Cazenovia Coll. v. Renshaw (In re Renshaw), 222 F.3d 82, 90 (2d Cir.
2000).
Section 523(a)(8) excepts from discharge:
(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.
11 U.S.C. § 523(a)(8). This dense language means that three categories of
educational debt cannot be discharged in bankruptcy: (1) loans and benefit
overpayments backed by the government or a nonprofit; (2) obligations to repay
funds received as an educational benefit, scholarship, or stipend; and
(3) qualified private educational loans. 3
3 For a loan to be “qualified” under § 523(a)(8)(B), the student must attend an
9 Navient does not argue (in this appeal, at least) that the loan it made to
Homaidan falls into either the first or third categories. Nor does Navient argue
the loan constitutes a “scholarship” or “stipend.” Therefore, the only question
remaining is whether Navient’s loan is “an obligation to repay funds received as
an educational benefit” under § 523(a)(8)(A)(ii).
Navient argues that its loan agreement constitutes an “obligation to repay
funds” and that Homaidan obtained those funds for the purpose of advancing
his education, thereby deriving from them an “educational benefit.” Navient
endeavors to bolster this textual argument by pointing to a line of cases holding
(without much textual analysis) that a private loan is covered by
§ 523(a)(8)(A)(ii) if the debtor obtained the funds to pay for educational
expenses. See, e.g., Benson v. Corbin (In re Corbin), 506 B.R. 287, 296–97
(Bankr. W.D. Wash. 2014). Finally, Navient relies on a summary order of this
Court, which is by definition non-precedential, and in any event, beside the
point. 4
eligible educational institution and the loan must fund only qualified higher education expenses. See 26 U.S.C. § 25A(f)(2); id. § 221(d). 4 In Desormes v. U.S. Tr. (In re Desormes), a pro se debtor sought to discharge in
10 According to Homaidan (and the other two circuit courts that have
addressed the question), § 523(a)(8)(A)(ii) excepts from discharge only a narrow
category of conditional grant payments, not all private student loans.
A
Navient’s interpretation violates several rules of statutory construction.
First, it is unsupported by plain meaning. Navient argues that the ordinary
public meaning of “an obligation to repay funds received as an educational
benefit” includes student loans. But as the bankruptcy court explained, that
would be “an unconventional way to discuss a loan.” In re Homaidan, 596 B.R.
at 102. The Tenth Circuit, less charitable, observed that “no normal speaker of
English . . . would say that student loans are obligations to repay funds received
bankruptcy a private loan he took out to attend a for-profit law school. See 569 F. App’x 42, 43 (2d Cir. 2014). The bankruptcy court’s refusal to discharge the loan under § 523(a)(8)(A)(ii) was affirmed, but the (non-binding) order did not squarely take on the statutory interpretation question at the center of this appeal. The debtor’s primary contention was that his loan fell outside of § 523(a)(8)(A)(ii)’s scope because he did not receive funds directly. The panel’s single sentence of analysis rejects that argument. See id. And while the debtor’s briefing did raise an argument about the scope of § 523(a)(8)(A)(ii), the panel did not engage with it.
11 as an educational benefit.” In re McDaniel, 973 F.3d at 1096 (internal quotation
marks omitted). We agree: if Congress had intended to except all educational
loans from discharge under § 523(a)(8)(A)(ii), it would not have done so in such
stilted terms. As discussed infra, there are educational benefits that students
may become obligated to repay—such as conditional grants—which fit the
statutory text more naturally.
Next, Navient attempts to read “loan” into § 523(a)(8)(A)(ii); but the word
is absent from that provision, which itself is sandwiched in between two others
that use the word “loan” expressly. 5 When interpreting a disputed statutory
term, “we must not look merely to [the] particular clause, but consider [it] in
connection with it the whole statute.” Dada v. Mukasey, 554 U.S. 1, 16 (2008)
(internal quotation marks omitted). So when Congress “includes particular
language in one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and purposely in
5 The preceding subsection, § 523(a)(8)(A)(i), excepts from discharge a “loan made . . . by a governmental unit or nonprofit institution.” And the following subsection, § 523(a)(8)(B), likewise excepts “any other educational loan that is a qualified education loan.”
12 the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23
(1983) (internal quotation marks omitted).
Navient offers no compelling rejoinder to this argument, but instead
proffers two structural arguments of its own. Neither is persuasive. First,
Navient argues that § 523(a)(8)(A)(ii) must encompass student loans because
§ 523(a)(8)(B) refers to “any other educational loan,” thus implying that the
preceding subsections likewise cover loans. Appellant Br. at 22. But
§ 523(a)(8)(A)(i) expressly excepts from discharge “loan[s]” that are backed by the
government or a nonprofit. The natural reading of “other” in § 523(a)(8)(B) is
that it refers back to § 523(a)(8)(A)(i), not § 523(a)(8)(A)(ii).
Second, Navient points us to other statutes in which Congress has used the
term “obligation to repay” in reference to loans. Appellant Br. at 21–22 (citing,
inter alia, 12 U.S.C. § 1430(d)). That observation has little bearing on our
analysis, which principally concerns § 523(a)(8). The question is not whether
the phrase “obligation to repay” can ever be used to describe a loan, or even
whether it can be an apt description. Rather, we must determine what Congress
meant when it used that term in § 523(a)(8). Congress used the word “loan”
13 several times in § 523(a)(8) but left it out of § 523(a)(8)(A)(ii), signaling that the
omission was intentional. See Russello, 464 U.S. at 23.
B
Navient’s construction also offends the canon against surplusage, which
advises courts to interpret a statute to effectuate all its provisions, “so that no
part will be inoperative or superfluous.” Hibbs v. Winn, 542 U.S. 88, 101 (2004).
The canon is at its “strongest when an interpretation would render superfluous
another part of the same statutory scheme.” Marx v. Gen. Revenue Corp., 568
U.S. 371, 386 (2013).
Navient’s broad reading—under which any loan is nondischargeable
under § 523(a)(8)(A)(ii) if it was used to further one’s education—would draw
virtually all student loans within the scope of § 523(a)(8)(A)(ii). That
construction proves too much. If it were adopted, the other subsections of
§ 523(a)(8)—both of which delineate specific categories of nondischargeable
educational debt—would be swallowed up. 6 Loans excepted from discharge
6 Navient maintains that its interpretation leaves a role for § 523(a)(8)(B) to play. Appellant Br. at 30 (citing Wills v. Sallie Mae Servicing (In re Wills), 2010 WL 1688221, (S.D. Ind. Apr. 23, 2010)). In Wills, the debtor took out a loan to
14 under § 523(a)(8)(A)(i) and § 523(a)(8)(B) “would be no more than a subset of
such loans already excepted from discharge under § 523(a)(8)(A)(ii).” See
Nunez v. Key Educ. Res. (In re Nunez), 527 B.R. 410, 415 (Bankr. D. Or. 2015).
We presume that by constructing a statute with three distinct subsections,
“Congress intended each [one] to have a distinct function and to target different
kinds of debt[].” Inst. of Imaginal Stud. v. Christoff (In re Christoff), 527 B.R.
624, 634 (9th Cir. BAP 2015).
The evolution of § 523(a)(8) confirms that it is not a catch-all for
educational loans. The term disputed in this case—“obligation to repay funds
received as an educational benefit”—was first added to § 523(a)(8) in 1990.
From 1990 to 2005, § 523(a)(8) was a single paragraph that excepted from
discharge a debt:
finance his grandson’s education. 2010 WL 1688221, at *1. Navient says that because the grandfather did not receive an “educational benefit” from the loan, it would not be excepted from discharge under § 523(a)(8)(A)(ii) but still be covered under § 523(a)(8)(B). But this contradicts Navient’s assertion that what matters for § 523(a)(8)(A)(ii) is “the purpose of [the] loan.” Appellant Br. at 7. Under Navient’s purpose-focused test, the loan in Wills would appear to still be covered by § 523(a)(8)(A)(ii). And even if Navient could posit a set of facts under which a loan would escape § 523(a)(8)(A)(ii)’s reach, it cannot persuasively dispute that its broad interpretation causes considerable overlap.
15 for 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 for an obligation to repay funds received as an educational benefit, scholarship or stipend.
The Federal Debt Collection Act of 1990, Pub. L. No. 101-647, § 3621(1), 104 Stat.
4933, 4964–65 (1990). The statute took its current, three-subsection form in 2005
when Congress enacted the Bankruptcy Abuse Prevention and Consumer
Protection Act (“BAPCPA”).
Navient argues that by setting § 523(a)(8)(A)(ii) off in a separate
subsection, Congress intended to except from discharge all private student loans.
This assertion puts more weight on the BAPCPA amendment than it can bear.
The Act did not alter the substance of the phrase at issue; it inserted a comma
after “scholarship,” and merely tweaked the statute’s format by splitting it into
two subsections, now § 523(a)(8)(A)(i) and § 523(a)(8)(A)(ii). And Navient
conceded that before the BAPCPA, “the near-unanimity of courts” interpreted
§ 523(a)(8)’s language as not excepting private student loans from discharge.
See In re Crocker, 941 F.3d at 222; Dufrane v. Navient Sols., Inc. (In re Dufrane),
566 B.R. 28, 37 (Bankr. C.D. Cal. 2017) (“In a series of cases following the 1990
16 amendment, bankruptcy courts uniformly rejected the notion that the new term
‘educational benefit’ could be read . . . to except from discharge loans made by
for-profit lenders . . . .”). It would be quite strange for Congress to render
nondischargeable a huge new category of debt by tinkering with § 523(a)(8)’s
format but leaving untouched (but for an Oxford comma) wording that had
never been interpreted to except private loans from discharge.
The BAPCPA’s far more significant modification was the addition of
§ 523(a)(8)(B). That new subsection, which excepts a subset of private loans
from discharge, was a “response to the growing trend of commercial lending”
and was designed to “make qualified private student loans harder to discharge.”
Thomas v. Dep’t of Educ. (In re Thomas), 931 F.3d 449, 453 (5th Cir. 2019). But
under Navient’s interpretation, private student loans were already excepted from
discharge as “obligation[s] to repay funds received as an educational benefit.”
11 U.S.C. § 523(a)(8)(A)(ii). “It defies logic to suggest that Congress added
subsection 523(a)(8)(B) in 2005 to encompass a subset of loans already covered
under subsection 523(a)(8)(A)(ii).” Decena v. Citizens Bank (In re Decena), 549
B.R. 11, 19 (Bankr. E.D.N.Y. 2016), rev’d on other grounds, 562 B.R. 202 (E.D.N.Y.
17 2016).
While Navient’s broader reading of § 523(a)(8)(A)(ii) largely obviates its
neighboring subsections, Homaidan’s narrower interpretation reserves a role for
each one: § 523(a)(8)(A)(i) covers government and nonprofit-backed loans and
educational benefit overpayments 7; § 523(a)(8)(A)(ii) covers scholarships,
stipends, and conditional education grants; and § 523(a)(8)(B) covers private
loans made to individuals attending eligible schools for certain qualified
expenses.
C
Navient’s interpretation also clashes with noscitur a sociis, the canon that
“counsels that a word is given more precise content by the neighboring words
with which it is associated.” 8 Freeman v. Quicken Loans, Inc., 566 U.S. 624, 634–
7 An educational benefit overpayment occurs, for example, when a GI Bill recipient continues to receive payments even after leaving school. See In re Renshaw, 222 F.3d at 92.
8 Navient suggests that relying on noscitur is inappropriate when, as here, a statutory list contains just three items. See Appellant Br. at 36 (citing Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 288 (2010)). But Graham involved three listed items that were “each quite distinct from the other no matter how construed.” 559 U.S. at 288. That is not the case
18 35 (2012) (internal quotation marks omitted); see also United States v. Dauray,
215 F.3d 257, 262 (2d Cir. 2000) (“[T]he meaning of doubtful terms or phrases
may be determined by reference to their relationship with other associated words
or phrases.”). Employing noscitur a sociis helps prevent a court from “ascribing
to one word a meaning so broad that it is inconsistent with its accompanying
words, thus giving unintended breadth to the Acts of Congress.” Yates v.
United States, 574 U.S. 528, 543 (2015) (internal quotation marks omitted).
In this case, the disputed term—“educational benefit”—is undefined and
potentially ambiguous. Noscitur therefore instructs us to cabin it such that its
scope aligns with that of its listed companions—“scholarship” and “stipend.”
See T.W. v. N.Y. State Bd. of L. Examiners, 996 F.3d 87, 98 (2d Cir. 2021) (relying
on noscitur to avoid an interpretation that would “define the word much more
broadly than its statutory neighbors”). Both “scholarship” and “stipend”
describe conditional grant payments “which are not generally required to be
repaid by the recipient.” Campbell v. Citibank, N.A. (In re Campbell), 547 B.R.
here. Moreover, post-Graham, the Supreme Court has utilized noscitur when interpreting a term in a list of three items. See Yates v. United States, 574 U.S. 528, 544–45 (2015).
19 49, 55 (Bankr. E.D.N.Y. 2016). For example, a “scholarship” for a student-athlete
need not be repaid if the recipient remains on the team; similarly, a “stipend” is a
payment that is conditioned on the recipient’s performance of services and
generally need not be repaid. The defining characteristic of a loan, by contrast,
is an unconditional obligation to pay it back. Interpreting “educational benefit”
to cover all private student loans when the two terms listed in tandem describe
“specific and quite limited kinds of payments that . . . do not usually require
repayment,” In re Crocker, 941 F.3d at 220, would improperly broaden
§ 523(a)(8)(A)(ii)’s scope.
“Educational benefit” is therefore best read to refer to conditional grant
payments similar to scholarships and stipends. The Reserve Officer Training
Corps and the National Health Service Corps, for example, pay tuition in
exchange for a promise to serve in the military after graduation or to practice
medicine in an underserved region. See Jason Iuliano, Student Loan
Bankruptcy and the Meaning of Educational Benefit, 93 AM. BANKR. L.J. 277, 292
(2019). A recipient who breaks that promise incurs an “obligation to repay [the]
funds” that they previously received “as an educational benefit.” Per
20 § 523(a)(8)(A)(ii), that obligation cannot be discharged in bankruptcy.
CONCLUSION
For the reasons stated above, the district court’s order denying Navient’s
motion to dismiss is AFFIRMED.