UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ANTHONY ROBINSON, Plaintiff, v. Civil Action No. 20-1482 (CKK) U.S. DEPARTMENT OF EDUCATION, Defendant.
MEMORANDUM OPINION (November 11, 2020)
In this case, Mr. Anthony Robinson (“Plaintiff”) asserts a single claim against the United
States Department of Education (“USDE”) under the Fair Credit Reporting Act (“FCRA”). USDE,
however, has moved to dismiss Plaintiff’s claim because of the preclusive effect of a prior
judgment rendered against Plaintiff in Robinson v. United States Dep’t of Educ., 917 F.3d 799 (4th
Cir. 2019) (“Robinson I”). Upon consideration of the briefing, the relevant authorities, and the
record as a whole, 1 the Court agrees with USDE that the preclusive effect of Robinson I binds
Plaintiff and merits the dismissal of his present FCRA claim for lack of subject-matter jurisdiction.
As such, the Court will DISMISS Plaintiff’s Amended Complaint WITH PREJUDICE.
1 The Court’s consideration has focused on the following briefing and material submitted by the parties: • Not. of Removal, ECF No. 1; • Am. Compl., ECF No. 7; • Def.’s Mem. of Law in Supp. of Mot. to Dismiss (“Def.’s Mot.”), ECF No. 8–1; • Pl.’s Cross-Mot. for Summ. J. and Resp. to Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 10; • Def.’s Reply in Supp. of Mot. to Dismiss and in Opp’n to Pl.’s Cross-Mot. for Summ. J. (“Def.’s Reply”), ECF No. 13; • Pl.’s Reply to Def.’s Reply and Mot. to Strike, or in the Alternative, for Leave to File Sur-Reply (“Pl.’s Reply”), ECF No. 17; and • Pl.’s Sur-Reply, ECF No. 21.
1 I. BACKGROUND
A. Robinson I
On December 2, 2014, Plaintiff filed Robinson I in the Circuit Court for Prince George’s
County, Maryland, against USDE, the Pennsylvania Higher Education Assistance Agency
(“PHEAA”), and Equifax, Experian, and TransUnion, LLC (collectively, the “Credit Reporting
Agencies”). See Def.’s Mot. at 5 (citing Robinson v. Pennsylvania Higher Education Assistance
Agency et al., No. CAL-14-32388). On January 9, 2015, Robinson I was removed to the District
Court for the District of Maryland, where Plaintiff then amended his complaint on June 3, 2015.
See generally Def.’s Mot., Ex. A (Robinson I Am. Compl.). In that amended complaint, Plaintiff
alleged that federal student loan accounts with USDE were opened in his name without his
authorization. See id. ¶¶ 3, 8–9. Plaintiff further alleged that USDE and PHEAA failed to
adequately investigate these disputed loan accounts and, instead, instructed the Credit Reporting
Agencies to report Plaintiff’s responsibility for the accounts. See id. ¶¶ 10–13. On the basis of
this alleged conduct, Plaintiff argued that USDE had violated § 1681s-2(b) of FCRA and was,
therefore, liable for damages under that statute. See id. ¶¶ 26–31.
On June 12, 2015, USDE moved to dismiss Plaintiff’s FCRA claim, arguing that the
agency’s sovereign immunity against such a claim deprived the Maryland district court of subject-
matter jurisdiction. See Robinson v. Pennsylvania Higher Educ. Assistance Agency, et al., No.
GJH-15-0079, 2017 WL 1277429, at *1–2 (D. Md. Apr. 3, 2017). In addressing this argument,
the Maryland district court first acknowledged “the guiding principle that . . . ‘the United States
may not be sued without its consent and that the existence of consent is a prerequisite for
jurisdiction.’” Id. at *3 (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). The court
2 further explained that a “waiver of sovereign immunity ‘must be unequivocally expressed in
statutory text . . . and will not be implied.’” Robinson, 2017 WL 1277429, at *1–2 (quoting Lane
v. Pena, 518 U.S. 187, 192 (1996)). Within this framework, the Maryland district court concluded
that FCRA “do[es] not contain a clear and unequivocal waiver of sovereign immunity,” and, as
such, it dismissed Plaintiff’s FCRA claim against USDE for lack of subject matter jurisdiction.
Robinson, 2017 WL 1277429, at *4.
Plaintiff subsequently appealed the Maryland district court’s dismissal order to the United
States Court of Appeals for the Fourth Circuit. See Robinson v. United States Dep’t of Educ., 917
F.3d 799, 800 (4th Cir. 2019). Therein, the Fourth Circuit made clear that “[t]he only question
presented on appeal [wa]s whether the United States has waived sovereign immunity for suits
alleging that the federal government willfully or negligently violated FCRA.” Robinson, 917 F.3d
at 801. Upon review of FCRA, the Fourth Circuit concluded that the statute’s “text and structure
make clear that no unambiguous and unequivocal waiver of sovereign immunity has taken place,”
and, therefore, USDE remains immune from claims under FCRA. Id. at 806. Accordingly, the
Fourth Circuit affirmed the Maryland district court’s dismissal of Plaintiff’s FCRA claim against
USDE for lack of subject-matter jurisdiction. Id. at 807. Ultimately, the Supreme Court denied
certiorari in Robinson I on April 20, 2020. See Robinson v. Dep’t of Educ., 140 S. Ct. 1440 (2020).
B. Robinson II
On May 20, 2019, shortly after the Fourth Circuit’s March 6, 2019 decision in Robinson I,
Plaintiff filed another civil action against USDE in the Superior Court of the District of Columbia,
captioned Robinson v. United States Dep’t of Educ., No. 2019-CA-003345-B (“Robinson II”). See
Compl., ECF No. 1-1. USDE removed Robinson II to this Court on June 5, 2020, see Not. of
3 Removal, ECF No. 1, and Plaintiff eventually amended his complaint on July 31, 2020, see Am.
Compl., ECF No. 7.
In the Amended Complaint, Plaintiff now alleges, as he did in Robinson I, that USDE
reported to the Credit Reporting Agencies that Plaintiff was responsible for federal student loan
accounts that Plaintiff had not authorized. See Am. Compl. ¶¶ 10–16. Plaintiff further alleges that
he disputed these USDE loan accounts, but that USDE failed to adequately investigate the disputed
accounts and continued to report to the Credit Reporting Agencies that the disputed accounts
belonged to Plaintiff. See id. ¶¶ 16–21. On the basis of these allegations, Plaintiff asserts, for a
second time, that USDE violated § 1681s-2(b) of FCRA and, accordingly, presents a claim for
damages against the agency under FCRA. See id. ¶¶ 30–35. USDE has now moved to dismiss
Plaintiff’s FCRA claim in Robinson II, in part, because of the preclusive effect of the judgment in
Robinson I. See Def.’s Mot. at 5–9; Def.’s Reply at 4–11. USDE’s motion is now ripe for review.
II. LEGAL STANDARD
A court must dismiss a case pursuant to Federal Rule of Civil Procedure 12(b)(1) when it
lacks subject-matter jurisdiction. In determining whether there is jurisdiction, the Court may
“consider the complaint supplemented by undisputed facts evidenced in the record, or the
complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal
for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation
marks omitted) (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)); see
also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005)
(“[T]he district court may consider materials outside the pleadings in deciding whether to grant a
motion to dismiss for lack of jurisdiction.”).
4 In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all
factual allegations in the complaint and construe the complaint liberally, granting plaintiff the
benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole
Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005) (“At the motion to dismiss stage, counseled
complaints as well as pro se complaints, are to be construed with sufficient liberality to afford all
possible inferences favorable to the pleader on allegations of fact.”); Leatherman v. Tarrant Cty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993) (“We review here a
decision granting a motion to dismiss, and therefore must accept as true all the factual allegations
in the complaint.”); Koutny v. Martin, 530 F. Supp. 2d 84, 87 (D.D.C. 2007) (“[A] court accepts
as true all of the factual allegations contained in the complaint and may also consider ‘undisputed
facts evidenced in the record.’” (internal citations omitted) (quoting Mineta, 333 F.3d at 198)).
Despite the favorable inferences that a plaintiff receives on a motion to dismiss, it remains
the plaintiff’s burden to prove subject matter jurisdiction by a preponderance of the evidence. Am.
Farm Bureau v. United States Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000).
“Although a court must accept as true all factual allegations contained in the complaint when
reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[’s] factual allegations in the
complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6)
motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163,
170 (D.D.C. 2007) (internal citations and quotation marks omitted) (quoting Grand Lodge of
Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001)), aff’d, 2008 WL
4068606 (D.C. Cir. Mar. 17, 2008). A court need not accept as true “a legal conclusion couched
as a factual allegation” or an inference “unsupported by the facts set out in the complaint.”
5 Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (internal quotation marks
omitted) (quoting Papasam v. Allain, 478 U.S. 265, 286 (1986)).
III. DISCUSSION
In brief, the viability of Plaintiff’s present claim turns on whether FCRA effectuates a
waiver of USDE’s sovereign immunity. Plaintiff recently litigated this precise issue in Robinson
I, wherein the Fourth Circuit concluded that FCRA does not waive USDE’s sovereign immunity.
For the reasons set forth below, Plaintiff is bound by the issue preclusive effect of the Robinson I
judgment and this Court must, therefore, DISMISS Plaintiff’s FCRA claim for lack of subject-
matter jurisdiction.
A. The Court May Properly Consider The Doctrine Of Issue Preclusion
As an initial matter, the parties dispute the Court’s ability to consider the issue preclusive
effect of the judgment in Robinson I. This dispute has arisen because, while USDE asserted a
claim preclusion defense in its motion to dismiss, see Def.’s Mot. at 4–9, it only asserted the
defense of issue preclusion for the first time its reply brief, see Def.’s Reply at 10–11; see also
Cigar Ass’n of Am. v. U.S. Food & Drug Admin., 436 F. Supp. 3d 70, 81 n.6 (D.D.C. 2020) (“[R]es
judicata includes two preclusive doctrines—claim preclusion and issue preclusion.”). In response,
Plaintiff has lamented USDE’s failure to raise the defense of issue preclusion in its initial motion
and has requested that the Court now strike that argument altogether. See Pl.’s Reply at 1–2.
Regardless of this procedural dispute, the Court may properly consider the issue preclusive
effect of the Robinson I judgment on Plaintiff’s present FCRA claim. “[I]ssue preclusion ‘belongs
to courts as well as to litigants,’” and, therefore, “‘even a party’s forfeiture of the right to assert it
. . . does not destroy a court’s ability to consider the issue sua sponte.’” Scahill v. District of
Columbia, 271 F. Supp. 3d 216, 225 (D.D.C. 2017), aff’d, 909 F.3d 1177 (D.C. Cir. 2018) (quoting
6 Stanton v. D.C. Court of Appeals, 127 F.3d 72, 77 (D.C. Cir. 1997)). Indeed, courts rely on the
issue preclusion doctrine “to conserve judicial resources, avoid inconsistent results, engender
respect for judgments of predictable and certain effect, and to prevent serial forum-shopping and
piecemeal litigation.” Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981). Moreover,
in this case, Plaintiff was plainly on notice that the issue preclusive effect of the Robinson I
judgment was potentially dispositive of his FCRA claim against USDE. See Def.’s Reply at 10–
11. The Court specifically granted Plaintiff leave to file a sur-reply brief for the express purpose
of permitting Plaintiff another opportunity to address the issues of res judicata in this case. See
Minute Order (Oct. 21, 2020). For these reasons, the Court finds no impediment to its ability to
now consider the issue preclusive effect of the Robinson I judgment in this case and will do so
herein.
B. The Doctrine Of Issue Preclusion Merits Dismissal
Plaintiff’s Amended Complaint now asserts a single FCRA claim for damages against
USDE. See Am. Compl. ¶¶ 30–35. But as a federal agency, USDE is “immune from suit, unless
sovereign immunity has been waived.” Allen v. U.S. Dep’t of Educ., 755 F. Supp. 2d 122, 124
(D.D.C. 2010) (quoting Loeffler v. Frank, 486 U.S. 549, 554 (1988)). And “[b]ecause sovereign
immunity is jurisdictional in nature, [the Court] must assure [itself] that [Plaintiff’s] claim[] fall[s]
within a valid waiver of sovereign immunity before allowing the suit to proceed.” Sierra Club v.
Wheeler, 956 F.3d 612, 616 (D.C. Cir. 2020) (quotation omitted).
On this point, USDE argues that the Court need not decide the issue of sovereign immunity
anew, because Plaintiff is bound by the prior judgment in Robinson I, which found no waiver of
sovereign immunity under FCRA. See Def.’s Reply at 10–11. Relevant here, the doctrine of issue
preclusion specifically bars “successive litigation of an issue of fact or law actually litigated and
7 resolved in a . . . prior judgment.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New
Hampshire v. Maine, 532 U.S. 742, 748–49, (2001)). Issue preclusion applies where three
elements are present: “(1) the same issue now being raised must have been contested by the parties
and submitted for judicial determination in the prior case,” (2) “the issue must have been actually
and necessarily determined by a court of competent jurisdiction in that prior case,” and (3)
“preclusion in the second case must not work a basic unfairness to the party bound by the first
determination.” Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting Yamaha
Corp. of Amer. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992).
Each of these elements of issue preclusion exist in this case, as it applies to the question of
USDE’s sovereign immunity under FCRA litigated in Robinson I. First, the sovereign immunity
issue litigated by Plaintiff and USDE in Robinson I is the same issue presently litigated by those
two parties here in Robinson II. In this case, Plaintiff asserts a claim for damages against USDE
for a violation of its obligations under § 1681s-2(b) of FCRA, see Am. Compl. ¶¶30–35, and argues
that FCRA permits such a claim because the statute has waived the agency’s sovereign immunity,
see id. ¶ 2. Plaintiff’s current opposition brief crystallizes this point:
In its motion to dismiss, USDE argues that the Court lacks subject matter jurisdiction over Plaintiff’s claims under the Fair Credit Reporting Act (“FCRA”) because the FCRA contains no express waiver of sovereign immunity. Defendant’s argument must fail for the statutory language in the FCRA clearly and unambiguously waives sovereign immunity for the federal government, including governmental agencies such as USDE.
Pl.’s Opp’n at 7. But in Robinson I, the Fourth Circuit addressed this precise question and held
that Plaintiff could not sue USDE under FCRA, because “FCRA’s text and structure make clear
that no unambiguous and unequivocal waiver of [USDE’s] sovereign immunity has taken place.”
Robinson, 917 F.3d at 806. Specifically, the Fourth Circuit explained that while FCRA creates a
cause of action against any “person” who negligently or willfully violates FCRA, see 15 U.S.C.
8 §§ 1681n & 1681o, the term “person” in the statute does not comprise the United States and,
therefore, does not effectuate a waiver of the federal government’s traditional sovereign immunity
against civil actions, see Robinson, 917 F.3d at 802–06. This sovereign immunity analysis is
squarely the “same” legal issue now before this Court in Robinson II.
Second, the issue of USDE’s sovereign immunity under FCRA was “actually and
necessarily determined by a court of competent jurisdiction” in Robinson I. Martin, 488 F.3d at
454. In the first instance, the Maryland district court in Robinson I expressly dismissed Plaintiff’s
FCRA claim against USDE after the court held that FCRA “do[es] not contain a clear and
unequivocal waiver of sovereign immunity,” leaving the court “without subject matter
jurisdiction.” Robinson, 2017 WL 1277429, at *4. Plaintiff then appealed this decision to the
Fourth Circuit, which made clear that “[t]he only question presented on appeal [wa]s whether the
United States has waived sovereign immunity for suits alleging that the federal government
willfully or negligently violated FCRA.” Robinson, 917 F.3d at 801. In addressing this question,
the Fourth Circuit expressly held that FCRA did not effect a waiver of USDE’s sovereign
immunity and, therefore, the Fourth Circuit affirmed the Maryland district court’s dismissal of
Plaintiff’s FCRA claim for want of subject-matter jurisdiction. Id. at 806. Given these clear
decisions from the Maryland district court and the Fourth Circuit, this Court finds that the issue of
USDE’s sovereign immunity under FCRA was actually and necessarily adjudicated by a court of
competent jurisdiction in Robinson I.
Finally, precluding Plaintiff from relitigating the question of USDE’s sovereign immunity
in this case (Robinson II) does “not work a basic unfairness to [Plaintiff].” Martin, 488 F.3d at
454. Whether issue preclusion works some unfairness upon a party turns primarily on whether
“the losing party clearly lacked any incentive to litigate the point” at issue in the earlier case.
9 Canonsburg Gen. Hosp. v. Sebelius, 989 F. Supp. 2d 8, 19 (D.D.C. 2013) (quotation omitted),
aff’d sub nom. Canonsburg Gen. Hosp. v. Burwell, 807 F.3d 295 (D.C. Cir. 2015). Courts
evaluating the fairness of preclusion also consider whether the “prior proceedings were seriously
defective.” Martin, 488 F.3d at 455.
Neither concern is present in this case. As noted above, Plaintiff fully litigated in Robinson
I the issue of whether FCRA waived USDE’s sovereign immunity both before the Maryland
district court and then again before the Fourth Circuit. And importantly, the sovereign immunity
issue in Robinson I presented a dispositive jurisdictional bar to Plaintiff’s FCRA claim against
USDE. See Robinson, 917 F.3d at 806. Accordingly, Plaintiff had every incentive to forcefully
litigate the sovereign immunity issue in Robinson I to protect the viability of his FCRA claim
against USDE, see Scahill v. District of Columbia, 909 F.3d 1177, 1182 (D.C. Cir. 2018), and did
so to conclusion before both a federal district court and a federal court of appeals, see Robinson,
917 F.3d at 806. As such, requiring Plaintiff to adhere to the issue preclusive effect of the Robinson
I judgment does not create any basic unfairness. See Venetian Casino Resort, LLC v. NLRB, 484
F.3d 601, 610 (D.C. Cir. 2007) (finding no unfairness where the court could “discern no difference
between the incentives that the [plaintiff] may have had in its Ninth Circuit litigation and its
incentives here. The stakes in its attempt before that court were no less than they are now.”)
Relatedly, the Court disagrees with Plaintiff’s argument that it would be unfair to preclude
re-litigation of the sovereign immunity issue in Robinson II because the D.C. Circuit has not yet
ruled on the matter. See Pl.’s Sur-Reply at 1–2. At bottom, this argument advances an untenable
position in favor of forum-shopping. In Robinson I, Plaintiff fully litigated the question of whether
FCRA waived USDE’s sovereign immunity, and, on March 6, 2019, Plaintiff received a squarely
adverse decision from the Fourth Circuit on that legal issue. Robinson, 917 F.3d at 806. Plaintiff
10 then promptly filed Robinson II in this jurisdiction on May 20, 2019, reasserting another FCRA
claim against USDE and specifically alleging in his pleadings that the Fourth Circuit was wrong
to conclude that the federal government was immune to such FCRA claims. See Am. Compl. ¶ 4.
But, of course, Plaintiff himself litigated that Fourth Circuit case and now simply seeks an
opportunity to relitigate the same issue of sovereign immunity in a new court to a different result.
Plaintiff is not entitled to such a second-bite at the apple, nor is he permitted to relitigate identical
legal issues against the same party in various jurisdictions until he finds a favorable forum. See
Canonsburg Gen. Hosp., 989 F. Supp. 2d at 18 (“[T]he plaintiff has already had its day in court
on the identical issue and, having lost, is trying to get the proverbial second bite at the apple.”).
Preventing this type of forum-shopping is precisely the purpose of the res judicata doctrines,
including issue preclusion. See Hardison, 655 F.2d at 1288.
IV. CONCLUSION
For the reasons set forth above, the Court finds that the judgment in Robinson I has issue
preclusive effect in this case. Applying the Robinson I judgment to the case at bar, the Court
concludes that FCRA does not waive USDE’s sovereign immunity. See Robinson, 917 F.3d at
806. Absent such a waiver, this Court lacks subject-matter jurisdiction over Plaintiff’s FCRA
claim. See Sierra Club, 956 F.3d at 616. The Court, therefore, DISMISSES Plaintiff’s Amended
Complaint WITH PREJUDICE.
An appropriate Order accompanies this Memorandum Opinion.
Date: November 11, 2020 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge