Sanon v. Dep't of Higher Educ. ( 2011 )

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
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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
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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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