United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
J. HAZEL UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Anthony Robinson's Motion
for Reconsideration of this Court's April 3, 2017 Order,
ECF No. 67, granting Defendant United States Department of
Education's Motion to Dismiss, ECF No. 41, and Defendant
Pennsylvania Higher Education Assistance Agency's
("PHEAA's") Motion to Dismiss Robinson's
defamation claim, ECF No. 68. No hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016).
Amended Complaint, Robinson alleges that the Defendants
violated the Fair Credit Reporting Act ("FCRA"),
ECF No. 38 ¶¶ 16-31, and are liable for defamation,
id. ¶¶ 32-44. In sum, Robinson alleges that he
discovered that Direct Loan student loan accounts were being
reported to his Experian, Equifax and Trans Union (the
"Credit Reporting Agencies" or "CRAs")
credit reports under his name, id. ¶ 8,
although he had not authorized the accounts, id.
¶ 11. Since 2011, Robinson has been disputing the
accounts with the CRAs and PHEAA. Id. ¶ 10.
Robinson asserts that the CRAs and PHEAA violated the FCRA
by, among other things, "failing to conduct a reasonable
investigation" regarding his dispute, id.
¶ 17, failing to provide specific information to
Robinson, id. ¶ 21, and failing to review
specific information provided by Robinson, id.
Motion for Reconsideration
12, 2015, Defendant United States Department of Education
filed a Motion to Dismiss the Amended Complaint for Lack of
Jurisdiction, arguing that the FCRA did not expressly waive
the United States' sovereign immunity. ECF No. 41-1 at
13. On April 3, 2017, the Court granted the Department of
Education's Motion, finding that a careful reading of the
FCRA established that the provisions "do not contain a
clear and unequivocal waiver of sovereign immunity." ECF
No. 66 at 9. The Court acknowledged that the Seventh Circuit
had come to the opposite conclusion in Bormes v. United
States, 759 F.3d 793, 795 (7th Cir. 2014); however, the
Court declined to follow the Seventh Circuit's reasoning,
explaining that "[t]he Seventh Circuit's decision .
.. conflicted with a number of district court opinions,
" and that even after Bormes, additional
district courts had declined to read a waiver of sovereign
immunity into the FCRA. See ECF No. 66 at 5-6
(citing Daniel v. Nat 7 Park Serv., No. CV
16-18-BLG-SWP, 2016 WL 4401369, at *3 (D. Mont. Aug. 17,
2016) ("The FCRA is ambiguous as to whether plaintiffs
can recover damages against government entities, as federal
statutes typically waive sovereign immunity in clearer
terms."). On April 17, 2017, Robinson filed a Motion for
Reconsideration, asking the Court to reconsider its dismissal
of the Department of Education from this case. ECF No. 69.
motion for reconsideration filed within 28 days of the
underlying order is governed by Federal Rule of Civil
Procedure 59(e). Courts have recognized three limited grounds
for granting a motion for reconsideration pursuant to Rule
59(e): (1) to accommodate an intervening change in
controlling law; (2) to account for new evidence; or (3) to
correct clear error of law or prevent manifest injustice.
See United States ex rel. Becker v. Westinghouse Savannah
River Co., 305 F.3d 284, 290 (4th Cir. 2002)
(citing Pacific Ins. Co. v. Am. Nat'l Fire Ins.
Co., 148 F.3d 396, 403 (4th Cir. 1998)),
cert, denied, 538 U.S. 1012 (2003). A Rule 59(e)
motion "may not be used to re-litigate old matters, or
to raise arguments or present evidence that could have been
raised prior to the entry of judgment." Pacific Ins.
Co., 148 F.3d at 403 (quoting 11 Wright, et al,
Federal Practice and Procedure § 2810.1, at 127-28 (2d
ed. 1995)). See also Sanders v. Prince George's
Public School System, No. RWT 08-cv-501, 2011 WL
4443441, at *1 (D. Md. Sept. 21, 2011) (a motion for
reconsideration is "not the proper place to relitigate a
case after the court has ruled against a party, as mere
disagreement with a court's rulings will not support
granting such a request"). "In general,
'reconsideration of a judgment after its entry is an
extraordinary remedy which should be used
sparingly.'" Id. (quoting Wright, et
al, supra, § 2810.1, at 124).
Robinson argues that the Court's Order "contains a
clear error of law." ECF No. 69 at 1. Robinson argues
first that the terms of the FCRA are "undisputedly open
to only one interpretation-that the United States is [a]
'person' under the FCRA." Id. at 3.
Robinson then argues that it was an error of law for the
Court to decline to imply a waiver of sovereign immunity, as
other sections of the FCRA expressly imposed damages
liability on the United States. Id. at 5. Finally,
Robinson argues that the Court erred by "attempt[ing] to
rewrite the statute." Id. at 11. These are the
same arguments Robinson made in his Opposition to Defendant
United States Department of Education's Motion to Dismiss
Amended Complaint for Lack of Jurisdiction. See,
e.g., ECF No. 46 at 6 ("The FCRA's Unambiguous
Definition of'Person' As Including the
'Government' Shows that Congress Intended to Waive
Sovereign Immunity"), 11 ("The Consequences of
Waiving Sovereign Immunity Are Appropriate Because the United
States Voluntarily Acts as a Substantial Furnisher"), 12
("It is not the role of the judiciary to substitute its
judgment for that of Congress when Congress has enacted
statute with clear, unequivocal intentions by assuming that
Congress must have failed to consider the consequences of the
certainly true that there is a "split of persuasive
authority" on the question of whether the FCRA waived
the United States' sovereign immunity. See Tice v.
United States Dep't of Treasury, No.
2:16-CV-1813-CWH, 2017 WL 3017717, at *3 (D.S.C. Mar. 30,
2017) (collecting cases from various district courts split on
this issue). But while the Fourth Circuit has not opined on
this issue, at least one other court in this Circuit has
similarly found that "the FCRA does not unequivocally
waive the United States' sovereign immunity for the
violations of the FCRA that are at issue here."
Id. at *5. Furthermore, since the April 3, 2017
Order, this Court has had another opportunity to consider
whether the FCRA waived sovereign immunity, and held that
"the provisions of the FCRA imposing civil liability for
noncompliance with its provisions do not contain an
unequivocal waiver of sovereign immunity for the federal
government." Johnson v. Devos, No. GJH-15-1820,
2017 WL 3475668, at *5 (D. Md. Aug. 11, 2017). Robinson may
disagree with the Court's April 3, 2017 decision, as may
other courts; however, with no precedent in this Circuit or
from the Supreme Court directing it otherwise, id.
at *3 (noting that the Supreme Court and Fourth Circuit
"have not addressed whether the FCRA contains a waiver
of sovereign immunity"), and with a number of other
district courts having arrived at the same conclusion, the
Court cannot conclude that its decision contained a
"clear error of law" as required to reconsider its
decision. As such, Robinson's Motion for Reconsideration,
ECF No. 67 is denied.
Motion to Dismiss Count III of the Amended
Motion to Dismiss Robinson's defamation claim, ECF No.
68-which Robinson did not oppose-is denied. PHEAA argues that
Robinson's defamation claim is "preempted by the ...
FCRA" and should be dismissed. ECF No. 68-1 at 1. 15
U.S.C. § 1681h(e) provides that "[e]xcept as
provided in sections 168 In and 1681o of this title, no
consumer may bring any action or proceeding in the nature of
defamation ... with respect to the reporting of information .
. . except as to false information furnished with malice or
willful intent to injure such consumer." To plead
malice, a plaintiff must plead that the defendant "acted
with reckless disregard for the truth or falsity of the
information it was reporting, which requires a showing that
[the defendant] acted with a high degree of awareness of
probable falsity or had serious doubts as to its
veracity." Alston v. United Collections Bureau,
Inc., No. DKC-13-0913, 2014 WL 859013, at * 11 (D. Md.
Mar. 4, 2014). To plead a willful intent to injure, a
plaintiff must plead that the defendant "knowingly and
intentionally committed an act in conscious disregard for
[plaintiffs] rights." Beachley v. PNC Bank, Nat.
Ass'n, No. CIV. JKB-10-1774, 2011 WL 3705239, at *5
(D. Md. Aug. 22, 2011). Plaintiffs cannot merely plead a
"formulaic recitation of the elements" of a claim
to survive a Motion to Dismiss. Ashcroft v. Iqbal,
556 U.S. 662, 681(2009).
argues that "Plaintiffs Amended Complaint does not make
a single factual allegation that suggests PHEAA acted
maliciously or with a willful intent to injure." ECF No.
68-1 at l. The Court finds otherwise. Robinson
alleges that he provided PHEAA with a copy of his signature,
which showed that the signature on the documents opening the
loan accounts was a forgery. ECF No. 38 ¶ 34.
Furthermore, Robinson alleges that he advised PHEAA on
numerous occasions that he did not open the accounts, and
provided them with documentation that verified his claim.
Id. ¶ 35. Robinson claims that PHEAA, despite
knowing that the accounts had not been opened by Robinson,
falsely reported his delinquency to the CRAs "as a
collection tactic to coerce Plaintiff into paying PHEAA,
" id. ¶ 37, and with the intent to
"harm the Plaintiffs chances of obtaining credit, "
id. ¶ 40. Thus, at this stage, the Court finds
that Robinson has sufficiently pleaded that PHEAA acted with
"reckless disregard" that the information it was
sending to the CRAs was false, as required to establish
malice. As such, the Court finds that Robinson's
defamation claim is not preempted by § 1681h(e).
foregoing reasons, it is hereby ORDERED
1. PHEAA's Motion to Dismiss Count III of the Amended
Complaint, ECF No. 68, is ...