Christopher v. U.S., (10th Cir. 2003)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KEVIN P. CHRISTOPHER,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

No.
name="1">01-5183

(D.C. No. 00-CV-34-C)

(N.D. Okla.)

ORDER AND JUDGMENT
name="txt*">(*)

Before HENRY, and HOLLOWAY, Circuit Judges, and

BRORBY, Senior

Circuit Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiff Kevin P. Christopher, proceeding pro se, appeals from an order of

the district court granting the United States' motion for summary judgment in this

action brought pursuant to Title IV of the Higher Education Act of 1965,

20 U.S.C. 1070-1099c. We affirm.

Mr. Christopher was a student at the NEC Spartan School of Aeronautics

(Spartan) in 1987, and again from 1989 until 1992. He received student loans

under the Federal Family Education Loan Program (Program) as authorized by

Title IV. After Mr. Christopher withdrew from Spartan, he sent a letter to the

Department of Education (DOE) asserting that Spartan had improperly handled

his student loans. The DOE determined that Spartan had not complied

with Program regulations when it certified Mr. Christopher as eligible for

Program funds because he was a part-time student and, thus, ineligible. As a

consequence, Spartan became liable to the lending institutions for the costs of the

loans and assumed the obligation to collect the loans, totaling over $21,000.00

from Mr. Christopher. Mr. Christopher did not repay the loans and continued to

contest the DOE's determination.

In 2000, Mr. Christopher filed suit against Spartan and the United States.

He alleged Spartan had violated the Racketeer Influenced and Corrupt

Organizations Act, 18 U.S.C. §§ 1962, 1964(c). He sought to enjoin

the DOE

from implementing and enforcing the provision of Title IV and alleged the DOE

had violated his constitutional rights to due process and equal protection, thus the

loans he received were illegal and unenforceable. He also sought to have Title IV

declared unconstitutional.

Mr. Christopher's claim against Spartan was dismissed pursuant to

Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The district court

entered

final judgment in favor of Spartan pursuant

to Fed. R. Civ. P. 54(b).

Mr. Christopher appealed and this court affirmed. See Christopher v. United

States, No. 00-5256, 2001 WL 1134980, at **1 (10th Cir. Sept. 26, 2001).

After this court's affirmance issued, the district court granted summary

judgment to the United States setting forth six reasons. The court held that

Mr. Christopher lacked standing to bring this action because only Spartan was

affected by the Department's determination against Spartan; Title IV does not

provide for a private right of action; Mr. Christopher was estopped from

challenging Spartan's eligibility certification because he had made eligibility

misrepresentations on his applications; he was not challenging the

constitutionality of Title IV, but rather the way in which it was administered;

and his claims were barred by the anti-injunction provision of Title IV. The

court also held that his recently added claims against the United States Treasury

were conclusory and lacking any factual basis.

On appeal, Mr. Christopher raises several issues against Spartan. These

issues will not be addressed because Spartan is not a party to this appeal as all

issues against it were settled in Mr. Christopher's prior appeal. Mr. Christopher

also argues that Title IV prohibits repayment of his student loans, the government

had no authority to advise Spartan about collecting his loans, and defendant

changed its interpretation of the regulations retroactively.

"We review the district court's grant of summary judgment de novo,

applying the same legal standard used by the district court" under Fed. R. Civ. P.

56(c). Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs.,

165 F.3d 1321, 1326 (10th Cir. 1999). Summary judgment is proper if the

moving party shows "there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

An issue of fact is "genuine" if there is sufficient evidence so that a rational trier

of fact could find for the non-movant. Simms, 165 F.3d at 1326. "An issue of

fact is 'material' if, under the substantive law, it is essential to the proper

disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670

(10th Cir. 1998). We examine the factual record and reasonable inferences

therefrom in the light most favorable to the party opposing summary judgment.

Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996).

Mr. Christopher does not address the threshold issue of whether a private

right of action exists under Title IV. This court has noted that "[w]here a statute

provides an administrative enforcement mechanism, the presumption is that no

private cause of action is intended." L'ggrke v. Benkula, 966 F.2d 1346, 1348

(10th Cir. 1992). After examining the statute, the court observed that "Title IV

gives extensive enforcement authority to the Secretary" and concluded that "no

private cause of action exists" under Title IV. Id. As no private cause of action

exists, Mr. Christopher cannot proceed with this action.

The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.

Entered for the Court

William J. Holloway, Jr.

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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