                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
Steven Ivey,                              )
                                          )
      Plaintiff,                          )
                                          )
              v.                          )                 Civil No. 13-cv-00576 (APM)
                                          )
Arne Duncan, Secretary,                   )
United States Department of Education,    )
                                          )
      Defendant.                          )
_________________________________________ )

                                  MEMORANDUM OPINION

       The court has conducted a de novo review of Magistrate Judge Kay’s Report and

Recommendation issued on August 14, 2014. See Report and Recommendation, ECF No. 20

[hereinafter R&R]; see Gardill v. District of Columbia, 930 F. Supp. 2d 35, 41 (D.D.C. 2013)

(setting forth de novo standard of review). It has also considered Plaintiff Steven Ivey’s Objections

to Judge Kay’s Report and Recommendation, see Pl.’s Objections, ECF No. 21, as well as

Defendant Arne Duncan’s responses to Plaintiff’s Objections, see Def.’s Resp., ECF No. 25.

       In reviewing a magistrate judge’s report and recommendation, the district court may decide

to accept, reject, or modify the recommendations therein. 28 U.S.C. § 636(b)(1)(C). Having

reviewed the record in its entirety in this matter, the court accepts Judge Kay’s Report and

Recommendation and overrules Plaintiff’s objections.

       The court agrees with Judge Kay’s legal conclusions as to the United States’ sovereign

immunity in this matter. See R&R at 7 (finding a limited waiver of immunity under the Privacy

Act); id. at 7-8 (finding a waiver of immunity as to claims for non-injunctive relief under the

Higher Education Act); id. at 8 (finding a limited waiver of immunity under the Administrative
Procedure Act); id. (holding that there was no waiver of sovereign immunity where, as here,

Plaintiff has made “vague references” to purportedly unconstitutional conduct). The court also

agrees with Judge Kay’s legal conclusions that to the extent Plaintiff has brought a claim: (1)

under the Privacy Act, he has failed to exhaust administrative remedies, id. at 9-11; (2) under the

Administrative Procedure Act, he has an adequate remedy at law under the Privacy Act, id. at 11;

and (3) under the Higher Education Act, that statue does not afford him a private right of action,

id. at 11-12.

        Plaintiff’s objections to the Report and Recommendation are overruled. First, Plaintiff

objects to Judge Kay’s finding that he failed to exhaust administrative remedies under the Privacy

Act, and he urges the court to permit discovery on that issue. Pl.’s Objections at 1-2, 4. This court

agrees with Judge Kay’s finding that Defendant carried its burden of both pleading and proving

Plaintiff’s failure to exhaust. See R&R at 10 (citing Declaration of Valerie Sherrer, ECF No. 13-

1); Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (placing the burden on the

defendant to show administrative exhaustion); Ramstack v. Dep’t of Army, 607 F. Supp. 2d 94,

104 (D.D.C. 2009) (applying Bowden to Privacy Act claim). With Defendant having met its

burden, the burden shifted to Plaintiff to “plead[ ] and prov[ ] facts supporting equitable avoidance

of the defense.” Bowden, 106 F.3d at 437; Ramstack, 607 F. Supp. 2d at 104 (quoting Bowden).

Plaintiff failed to carry his burden here. He offered no evidence showing that he followed the

U.S. Department of Education’s procedures for correcting records under the Privacy Act.

See R&R at 10; Def.’s Objections at 2. His conclusory assertion that he “included and cited

writings for 3 years prior to the filing of the present civil action wherein he attempted to have the

issues resolved,” id. at 4, is not enough to meet his evidentiary burden.




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       Second, Plaintiff argues that sovereign immunity does not permit Defendant to “escape

[his] duty” under the Higher Education Act to correct and produce student loan records. Id. at 2-

3. But the Act states otherwise on its face. It provides that the Secretary of Education may “be

sued” but “no attachment, injunction, garnishment, or other similar process, mesne or final, shall

be issued against the Secretary.” 20 U.S.C. § 1082(a)(2). Plaintiff’s request that Defendant correct

and produce student loan records is one for injunctive relief. Therefore, it is expressly barred by

statute. See Am. Ass’n of Cosmetology Sch. v. Riley, 170 F.3d 1250, 1253-54 (9th Cir. 1999)

(holding that suit for declaratory relief is barred under section 1082(a)(2)’s anti-injunction

provision); Green v. United States, 163 F. Supp. 2d 593, 597 (W.D.N.C. 2000) (holding that suit

to bar debt collection is barred under the Higher Education Act); Bond v. Dep’t of Educ., No. 4:14-

cv-0013, 2014 WL 4093343, at * 4 (holding that the Department of Education “enjoys sovereign

immunity from suits seeking injunctive relief” under the Higher Education Act).

       Third, Plaintiff contends that the dismissal of his claims under both the Privacy Act and

the Administrative Procedure Act (APA) results in a “contradiction.” Pl.’s Objections at 4. There

is no contradiction. A claim under the APA is limited to review of final agency action “for which

there is no other adequate remedy in a court.” 5 U.S.C. § 704. Here, because the Privacy Act

provides an adequate remedy, Plaintiff cannot advance a claim under the APA. See Tripp v. Dep’t

of Defense, 193 F. Supp. 2d 229, 238 (D.D.C. 2002) (holding that “plaintiff can not [sic] bring an

independent APA claim predicated on Privacy Act violation”). And Plaintiff’s Privacy Act claim

is barred because, as discussed above, he failed to exhaust his administrative remedies. There is

no contradiction between these two conclusions.

       Fourth, Plaintiff contends that his “claims are not specific to the [Higher Education Act] in

all claims presented or those that have emerged during the mediation hearings. Thus, dismissal of



                                                 3
the complaint based solely on this criteria would be improper.” Pl.’s Objections at 5. Plaintiff’s

precise objection is unclear. To the extent that he contends new claims “emerged during the

mediation hearings,” such claims, if they exist, are not before the court because he has not amended

his complaint to include them. Furthermore, to the extent he contests Judge Kay’s conclusion that

the Higher Education Act does not provide a private cause of action, he is wrong. See R&R at 12

(citing cases).

        Finally, Plaintiff seeks a transfer to an unspecified state court. Pl.’s Objections at 6.

The court lacks the power to transfer Plaintiff’s claims to a state court. See 28 U.S.C. § 1631;

Kier Bros. Invs. Inc. v. White, 943 F. Supp. 1, 4 (D.D.C. 1996) (recognizing that section 1631 only

permits transfer to other federal courts).

        A separate Order accompanies this memorandum opinion.




Dated: April 13, 2016                                Amit P. Mehta
                                                     United States District Judge




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