                     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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