UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
GREGORY T. HOWARD, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1633 (EGS)
)
UNITED STATES DEPARTMENT OF )
EDUCATION, )
)
Defendant. )
)
MEMORANDUM OPINION
Currently pending are three motions for relief from the
dismissal order in this case, brought under Federal Rule of
Civil Procedure 60(b). This memorandum opinion will discuss the
background of this case, the Rule 60(b) standard, and each
pending motion in turn. For the reasons set forth below, the
motions will be denied.
I. Plaintiff Seeks Relief From Dismissal.
Plaintiff commenced this case alleging that the U.S.
Department of Education had negligently determined that
Plaintiff was not entitled to discharge of his higher-education
loans under 20 U.S.C. § 1087(a) based on his alleged disability.
Compl. ¶ 4, ECF No. 1. On March 22, 2010, this Court dismissed
the complaint with prejudice, having determined that it was
barred by the doctrine of res judicata. Mem. Op., ECF No. 34;
Order, ECF No. 35. As the Court explained:
The nucleus of events giving rise to this lawsuit is
the same nucleus of events that gave rise to Howard’s
lawsuit filed against the Department of Education and
two other defendants in the United States District
Court for the Southern District of Ohio on February
20, 2008. That case, which was still pending when
Howard filed this complaint, was finally resolved in
favor of the Department of Education by order of that
court entered September 14, 2009. That order
determined that the court did not have subject matter
jurisdiction over Howard’s action for money damages
against the Department of Education because Howard had
neither affirmatively pled nor otherwise demonstrated
that he had exhausted his administrative remedies
under the Federal Tort Claims Act (“FTCA”), as
required. See Howard v. U.S. Department of Education,
No. 08-cv-159, 2009 WL 2950231, at *1–2 (S.D. Ohio
Sept. 14, 2009) (citing and discussing the FTCA’s
exhaustion requirement, 28 U.S.C. § 2675(a), and
dismissing for lack of subject matter jurisdiction).
Mem. Op. 2–3 (internal footnote omitted).
Dissatisfied, Plaintiff moved to vacate the dismissal order
under Rule 60(b). See Pl.’s Mot. to Vacate, ECF No. 38
[hereinafter Original Mot.]. (The Court will refer to this
motion as the “original motion.”) “[D]iscern[ing] no merit in
the arguments presented and find[ing] no basis for providing
relief from judgment,” the Court denied the motion. Order, ECF
No. 39.
Still dissatisfied, Plaintiff has filed three additional
motions, all citing Rule 60(b), which are currently pending.
See Mot. to Vacate or Set Aside the Court’s J. Filed Mar. 22,
2010, ECF No. 44 [hereinafter 1st Mot.]; Pl.’s Mot. to Enforce
Claim for Gross Negligent Noncompliance with FCRA, 18 U.S.C. §
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1681(a)(1) Against the Dep’t of Ed.; Alternative, Request That
the Claim for Gross Negligent Noncompliance with FCRA Proceed to
Trial, ECF No. 45 [hereinafter 2d Mot.]; Mot. to Set Aside
Docket Entry No. 34, Instanter, ECF No. 47 [hereinafter 3d
Mot.]. (The Court will refer to these motions as the “first
motion,” “second motion,” and “third motion,” respectively.)
II. Rule 60(b) May Allow Relief From a Final Judgment.
Rule 60(b) allows for relief from a final judgment for
“mistake, inadvertence, surprise, or excusable neglect”; where
“the judgment is void”; or for “any other reason that justifies
relief”; as well as other reasons not relevant to the pending
motions. Fed. R. Civ. P. 60(b)(1), (4), (6). “[T]he decision
to grant or deny a rule 60(b) motion is committed to the
discretion of the District Court.” United Mine Workers of Am.
1974 Pension v. Pittston Co., 984 F.2d 469, 476 (D.C. Cir.
1993).
III. Plaintiff’s First Motion Will Be Denied.
Plaintiff’s first motion makes three arguments that the
Court “inadvertently entered its March 22, 2010 order.” 1st
Mot. 1–2. None of these arguments justify relief from judgment.
First, Plaintiff argues that the dismissal of his case in
the Southern District of Ohio was not an adjudication on the
merits, and thus this Court should not have applied the doctrine
of res judicata in this case. Id. The Court’s March 22
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dismissal was therefore inadvertent, justifying relief under
Rule 60(b)(1), says Plaintiff. Id. This is simply a rehashing
of the same argument Plaintiff made in his original motion.
Compare Original Mot. ¶¶ 7–8 with 1st Mot. 1–2. The Court
already dispensed with this argument when it denied Plaintiff’s
original motion and will not reconsider it here.
Second, Plaintiff argues he actually did fully exhaust his
administrative remedies, a fact that this Court inadvertently
failed to consider, thus justifying relief under Rile 60(b)(1).
1st Mot. 2. Again, this is simply a rehashing of the same
argument made in his original motion. Compare Original Mot. ¶¶
3, 9 with 1st Mot. 2. The Court already dispensed with this
argument when it denied Plaintiff’s original motion and will not
reconsider it here.
Third and finally, Plaintiff argues that the Court
inadvertently failed to consider that he set forth a federal
cause of action under 5 U.S.C. § 706. 1st Mot. 2. Section 706
is the statute defining the scope of judicial review of the
federal courts. Plaintiff neither mentioned § 706 in his
complaint nor has he explained in his two sentences of argument
here how that section provides him a federal cause of action.
The Court, therefore, did not inadvertently fail to consider
that which was never raised and that which remains unexplained.
Because the Court has previously dispensed with two of
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Plaintiff’s arguments and the third is meritless, Plaintiff’s
first motion will be denied.
IV. Plaintiff’s Second Motion Will Be Denied.
Plaintiff’s second motion alleges that the Court
inadvertently failed to consider a claim allegedly made under
the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, thus
justifying relief under Rule 60(b)(1). 2d Mot. 4.
Specifically, Plaintiff argues that one sentence of his
complaint contained the magic words that should have alerted the
Court to his FCRA claim: “the Plaintiff suffered damage to his
credit rating causing him intense pain and great suffering and
considerable inconvenience which will continue in the future.”
Compl. ¶ 9; 2d Mot. 2. This brief allegation of an injury
suffered was pled as part of his negligence claim; it is nowhere
near a well pled additional claim under the FCRA. The Court did
not inadvertently fail to consider the FCRA claim because there
was no FCRA claim to consider. Plaintiff’s second motion will
therefore be denied as to relief from dismissal.
Plaintiff alternatively moves for a trial on the alleged
FCRA claim. 2d Mot. 2. This case has been dismissed and relief
from the dismissal will be denied. There is therefore no case
for which to have a trial. Plaintiff’s second motion will
therefore be denied as to the request for trial.
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V. Plaintiff’s Third Motion Will Be Denied.
Plaintiff’s third motion reads like a two-pronged appeal of
both the order dismissing this case and the order denying the
original Rule 60(b) motion. Plaintiff alleges that the Court
committed clear error in dismissing the case and abused its
discretion in denying the original motion. 3d Mot. 5. Relief
from the dismissal order is therefore appropriate under Rule
60(b), says Plaintiff, presumably because the judgment should be
considered void. Id.
Notwithstanding Plaintiff’s irrelevant references to the
Civil Justice Reform Act and the Declaratory Judgment Act, 3d
Mot. 2–3, whether this Court’s dismissal was clearly erroneous
or constituted an abuse of discretion is a question for the
Court of Appeals, not this Court. Furthermore, this is simply a
rehashing of the same argument made in his original motion.
Compare Original Mot. ¶¶ 4, 6 with 3d Mot. 5. The Court already
dispensed with this argument when it denied Plaintiff’s original
motion, and will not further reconsider it here. Plaintiff’s
third motion will therefore be denied.
VI. Plaintiff Is Cautioned Against Further Filing of Meritless
Motions.
Plaintiff has now filed four motions under Rule 60(b). All
have been denied, and all were meritless. Plaintiff is
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cautioned against filing any further meritless motions in this
case. See Fed. R. Civ. P. 11(b).
A separate order consistent with this memorandum opinion
shall be issued this date.
Signed: EMMET G. SULLIVAN
United States District Judge
December 22, 2010
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