10-2319-cv
Sanon v. Dep't of Higher Educ.

               UNITED STATES COURT OF APPEALS
                   FOR THE SECOND CIRCUIT
                         AMENDED SUMMARY ORDER
      RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE
32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8th day of November, two thousand eleven.

PRESENT:
            DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                           Circuit Judges,
            EDWARD R. KORMAN,
                           District Judge.*
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YVES SANON,
          Plaintiff-Appellant,

                  -v.-                                     10-2319-cv

DEPARTMENT OF HIGHER EDUCATION, NCO
FINANCIAL SYSTEMS,
          Defendants-Appellees.
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      *
          The Honorable Edward R. Korman, of the United States
District Court for the Eastern District of New York, sitting by
designation.
FOR PLAINTIFF-APPELLANT:        YVES SANON, pro se, Flushing, New
                                York.

FOR DEFENDANTS-APPELLEES:       LAYALIZA SOLOVEICHIK, Assistant
                                United States Attorney (Varuni
                                Nelson, Assistant United States
                                Attorney, on the brief), for
                                Loretta E. Lynch, United States
                                Attorney for the Eastern District
                                of New York, Brooklyn, New York,
                                for U.S. Department of Education.

                                KEVIN B. MCHUGH, Law Offices of
                                Edward Garfinkel, Brooklyn, New
                                York; David Israel, Justin H.
                                Holmes, Sessions, Fishman, Nathan &
                                Israel, LLC, Metairie, Lousiana,
                                for NCO Financial Systems.
          Appeal from a judgment of the United States District

Court for the Eastern District of New York (Townes, J.) granting

summary judgment dismissing plaintiff-appellant Yves Sanon's

complaint.   We assume the parties' familiarity with the

underlying facts, the procedural history of the case, and the

issues on appeal.
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          We review a grant of summary judgment de novo.

Gudmundsson v. United States, 634 F.3d 212, 216 (2d Cir. 2011).

Summary judgment is appropriate where there is no genuine issue

as to any material fact and the moving party is entitled to

judgment as a matter of law.   Id. at 217 (internal quotation

marks omitted).   In evaluating the record, we must "resolve all

ambiguities and draw all permissible factual inferences" in favor

of the non-moving party.    Terry v. Ashcroft, 336 F.3d 128, 137


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(2d Cir. 2003) (internal quotation marks omitted).

          Sanon brought this action below against defendants-

appellees United States Department of Education ("DOE"), sued

herein as the Department of Higher Education, and NCO Financial

Systems ("NCO"), a debt collection agency, claiming that they had

wrongfully garnished $14,242 from his wages to collect on student

loans he purportedly incurred in the 1980s.   Sanon denied that he

had borrowed the money.   Following discovery, defendants moved

for summary judgment.

          In a memorandum and order filed March 18, 2010, the

district court granted the motions, holding that:    (1) Sanon's

claims under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C.

§§ 2671 et seq., were barred because the complaint did not allege
administrative exhaustion and the DOE had no record that Sanon

had filed an administrative claim; (2) his claims under the

Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 701 et

seq., were barred because Sanon had failed as a matter of law to

show that DOE's actions were arbitrary and capricious; (3) his

claims against NCO under the Higher Education Act (the "HEA"), 20

U.S.C. §§ 1070 et seq., were barred because Sanon had no private
right of action against NCO under the HEA and Sanon had failed in

any event to show that NCO had taken any action to violate his

federal rights; and (4) the court would not exercise supplemental

jurisdiction over Sanon's state claims against NCO.

          We have conducted an independent review of the record,

and we affirm the district court's grant of summary judgment


                                -3-
dismissing the complaint.     First, as to the APA claims against

DOE and the claims against NCO, we affirm for substantially the

reasons set forth by the district court below.      Sanon's bare

assertion, for example, that he never received the student loans

at issue was unsupported by any concrete or specific evidence,

and it was contradicted by ample documentary evidence submitted

by DOE.   See Davis v. State of New York, 316 F.3d 93, 100 (2d

Cir. 2002) ("[R]eliance upon conclusory statements or mere

allegations is not sufficient to defeat a summary judgment

motion.").     Likewise, with respect to the claims against NCO, the

HEA does not provide student borrowers a private right of action

to enforce its provisions.    Josey v. Sallie Mae, Inc., No. 09
Civ. 4403 (AJP), 2009 WL 2518643, at *5 & n.8 (S.D.N.Y. Aug. 17,

2009).

           Second, with respect to Sanon's claims pursuant to the

FTCA, we conclude that the district court erred in holding that

Sanon did not comply with the FTCA's administrative exhaustion

requirement.     28 U.S.C. § 2675(a).   Sanon did administratively

exhaust his claims -- by contesting the garnishment of his wages

through the DOE, which resulted in a final agency decision dated

March 15, 2004.     See DOE App. 173 ("Our findings are conclusive

and constitute [DOE]'s final decision on your objections.").

Nonetheless, we affirm on an alternative ground.     See Freedom

Holdings, Inc. v. Cuomo, 624 F.3d 38, 49 (2d Cir. 2010) ("We may

affirm the district court's decision on any ground appearing in

the record.").    By waiting until September 13, 2006 to file suit

in the district court, Sanon exceeded the FTCA's six-month


                                  -4-
limitations period.    See 28 U.S.C. § 2401(b) (requiring

commencement of any tort claim against United States within six

months of agency's "final denial"); Willis v. United States, 719
F.2d 608, 612-13 (2d Cir. 1983).    Hence, the FTCA claims were

untimely.

            We have considered Sanon's other arguments on appeal

and have found them to be without merit.    Accordingly, the

decision of the district court is hereby AFFIRMED.


                           FOR THE COURT:
                           CATHERINE O'HAGAN WOLFE, CLERK




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