TIMOTHY J. KELLY, United States District Judge.
Before the Court are a Motion for Judgment on the Pleadings, ECF No. 69, filed by Defendant Nelnet, Inc. ("Nelnet") and two motions filed by Plaintiff Patricia Gavin: a Motion for Reconsideration, ECF No. 65 ("Pl.'s Mot."), and an Amended Motion for Reconsideration, ECF No. 72 ("Pl.'s Am. Mot."). The Court assumes familiarity with the factual and procedural background of the case as set forth in its prior Memorandum Opinion and Order dated May 15, 2018. See ECF No. 63 ("May Opinion"); Gavin v. Dep't of Air Force, 314 F.Supp.3d 297 (D.D.C. 2018). For the reasons set forth below, Nelnet's motion will be granted, and Gavin's motions denied.
Nelnet has moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). See ECF No. 69-1 ("Nelnet Br."); see also ECF No. 78 ("Pl.'s Opp'n"); ECF No. 79. "[A] Rule 12(c) motion... is functionally equivalent to a Rule 12(b)(6) motion." Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 130 (D.C. Cir. 2012). "In considering a motion for judgment on the pleadings, the Court should `accept as true the allegations in the opponent's pleadings' and `accord the benefit of all reasonable inferences to the non-moving party.'" Stewart v. Evans, 275 F.3d 1126, 1132 (D.C. Cir. 2002) (quoting Haynesworth v. Miller, 820 F.2d 1245, 1249 n.11 (D.C. Cir. 1987)). "But the Court need not accept inferences drawn by plaintiff if those inferences are not supported by the facts set out in the complaint, nor must the court accept legal conclusions cast as factual allegations." Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012). As under Rule 12(b)(6), "a complaint must have `facial plausibility,' meaning it must `plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
The Court will grant the motion, because at least two considerations require dismissal of Gavin's claims against Nelnet.
First, as Nelnet argues, the complaint does not contain "a short and plain statement of the claim showing that the pleader is entitled to relief" as required by Rule 8(a)(2). Fed. R. Civ. P. 8(a)(2); see Nelnet Br. at 16. "`[A] complaint that is
Second, to the extent the Court can discern a claim against Nelnet from Gavin's filings, it is not one on which relief can be granted. Gavin appears to claim that Nelnet, her loan servicer, is required to discharge her federal student loans. But there is no private right of action under the Higher Education Act of 1965, 20 U.S.C. § 1001 et seq., which governs federal student loans. See McCulloch v. PNC Bank Inc., 298 F.3d 1217, 1221 (11th Cir. 2002) (collecting cases); Kemper v. U.S. Dep't of Educ., 285 F.Supp.3d 145, 149 (D.D.C. 2018). Rather, a discharge must be sought administratively from the Secretary of Education. See, e.g., Johnson v. U.S. Dep't of Educ., 580 F.Supp.2d 154 (2008) (example of APA challenge to denial of student-loan discharge). Gavin does not claim to have ever requested a discharge administratively.
Nelnet's brief also presents other potentially meritorious arguments for dismissing Gavin's claims. See Nelnet Br. Gavin, for her part, provides no meaningful response to these arguments, instead reciting a hodgepodge of allegations that, for the most part, do not even mention Nelnet. See Pl's Opp'n. By failing to address Nelnet's arguments, Gavin has effectively conceded them. See Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014). The Court will not address these other arguments in detail, because the foregoing analysis makes sufficiently clear that Gavin's claims against Nelnet must be dismissed.
Gavin has filed two motions seeking reconsideration of the Court's Memorandum Opinion and Order dated May 15, 2018. Pl.'s Mot.; Pl.'s Am. Mot. In addition to reconsideration, the motions also seek various other relief. All of these requests will be denied.
Federal Rule of Civil Procedure 54(b) "recognizes [the court's] inherent power to reconsider an interlocutory order `as justice requires.'" Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc.,
In support of her requests for reconsideration, Gavin asserts that the Court's prior opinion contained the following error: the Court supposedly stated that her ex-husband retired in 2003, when in fact he "served in the Louisiana Air National Guard from 2000 to 2009." See Pl.'s Mot. ¶ 4. She argues that this allegation is the "fulcrum" of her claims. Id. ¶ 14.
This argument does not accurately describe the Court's prior opinion, nor does it justify reconsideration. In attempting to summarize Gavin's allegations, the Court's prior opinion stated that Gavin's ex-husband "served in the Air Force until his retirement in 1999" and "came out of retirement in 2009." May Opinion at 2, 3. These statements reflected Gavin's own filings, which stated that "[i]n 1999 he left the military to accept an assignment in private industry," and that he "was returned to active duty in 2009." ECF No. 62-1 at 14, 15. It may well be that the word "retirement" was ill chosen, since Gavin also alleges that her ex-husband served in the Louisiana Air National Guard in the interim. See id. at 14. But absolutely nothing in the Court's prior opinion turned on this factual nuance, and it does not warrant reconsideration of the Court's prior order. To the contrary, Gavin's allegation that her ex-husband never fully retired from the military undermines some of her claims, as will be explained below.
Gavin's two motions also ask for three other forms of relief, which will also be denied.
First, Gavin seeks to assert a "cross-claim" against the Air Force under the Barring Act, 31 U.S.C. § 3702. Pl.'s Am. Mot. at 1. This is not a true cross-claim, but simply the latest iteration of the claims Gavin has previously asserted against the Air Force and which the Court has dismissed as conceded. In effect, Gavin requests leave to amend her complaint to add this proposed claim against the Air Force.
"A district court may deny a motion to amend a complaint as futile if the proposed claim would not survive a motion to dismiss." Hettinga v. United States, 677 F.3d 471, 480 (D.C. Cir. 2012) (per curiam). The Court notes that § 3702 merely governs the processing of claims, and it is not a source of substantive rights or jurisdiction. See Curtin v. United States, 91 Fed.Cl. 683, 687 (2010). Thus, merely invoking § 3702 does not satisfy Gavin's obligation to explain the nature of the claim she seeks to assert against the Air Force and how the Court has jurisdiction over that claim. See Fed. R. Civ. P. 8(a)(1)-(2). As best the Court can tell, this proposed claim relates to a decision by the Air Force Board for Correction of Military Records ("AFBCMR") on July 13, 2012. The decision restored certain survivor benefits arising from her ex-husband's death, setting aside a forged waiver of those benefits.
This claim would not survive a motion to dismiss, because it is totally illogical. It rests on the premise that Gavin should have been awarded her ex-husband's retirement benefits starting in 2009. But she now asserts that her ex-husband never actually retired, meaning she was never entitled to his retirement benefits. See Pl.'s Mot. ¶ 4. Gavin lays out a convoluted theory for how she would have received these retirement benefits but for the forgery of her spousal-benefits waiver, see Pl.'s Am. Mot. ¶¶ 4-7, but this theory makes no sense and thus lacks "facial plausibility," Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The claim appears to have other deficiencies as well, notably that Gavin does not assert a basis for this Court's subject matter jurisdiction over it.
There is another reason, in addition to futility, to deny Gavin leave to file this "cross-claim." As the Court has previously explained, Gavin is not entitled to the reinstatement of her claims against the previously dismissed Defendants, because she never bothered to respond to their motions to dismiss. See May Opinion at 9-10. Gavin still has not responded to the arguments in the Air Force's motion to dismiss, even though it was filed over a year ago. ECF No. 39. And this latest claim appears to be only a repackaging of her previous allegations. Therefore, Gavin will not be allowed to assert her "cross-claim" against the Air Force.
Second, Gavin requests a "continuance of 90 days" so that she can "provide additional documentation," receive an "award of back Widow's Disability Pay" from the Social Security Administration, and retain "qualified and competent counsel." Pl.'s Mot. ¶¶ 30, 46. Effectively, she seeks to extend the deadlines for discovery set forth in the Court's prior orders. This request is moot: because all of Gavin's claims have been dismissed, there is no reason to extend the remaining deadlines.
Finally, Gavin requests mediation. Pl.'s Mot. ¶ 45. Because all of the claims in the action have now been dismissed, the Court will deny this request as well.
For all of the above reasons, Nelnet's Motion for Judgment on the Pleadings (ECF No. 69) is hereby