UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

BOARD OF GOVERNORS OF THE 

FEDERAL RESERVE SYSTEM,

Plaintiff,

v.

JANARD SMITH,

Defendant.

No. 23-cv-2747 (DLF)

MEMORANDUM OPINION & ORDER

In this action, the Board of Governors of the Federal Reserve System (“Board”) seeks 

recovery of $42,095 in educational benefits it paid to Janard Smith. Smith counterclaims against 

the Board for defamation. Before the Court is the Board’s motion to dismiss Smith’s counterclaim 

and for judgment on the pleadings. Dkt. 10. For the reasons that follow, the Court will grant the 

Board’s motion in part and deny it in part.

I. BACKGROUND1

The Board operates an “academic assistance plan” (the “Plan”) “for the benefit of [its]

employees.” Pl.’s Ex. 1B at 1, Dkt. 10-3. Under the Plan, “the Board provides employees with 

financial assistance to enroll in qualifying courses.” Id. But employees cannot double-dip:

“Employees receiving educational assistance (such as financial aid or scholarships) from sources 

other than the Board, such as the Department of Veterans Affairs or their educational institution, 

will be granted academic assistance only after those funds have been exhausted.” Id. at 5. “Failure 

1 Consistent with the applicable legal standard, what follows is drawn from “the undisputed facts 

that have been alleged in both parties’ pleadings.” Murphy v. Dep’t of Air Force, 326 F.R.D. 47, 

49 (D.D.C. 2018) (Brown Jackson, J.). 
2

to disclose educational assistance provided by entities other than the Board may result in 

disciplinary action . . . and the employee may be required to reimburse the Board for any 

educational assistance it provided if the employee received other educational assistance for the 

same costs that the Board reimbursed.” Id. 

From 2014 through January 2017, Smith applied for benefits under the Plan. Compl. ¶ 15, 

Dkt. 1; accord Answer ¶ 15, Dkt. 6. His application forms indicated that he had “read and 

underst[ood] the Board’s Academic Assistance Policy and agree[d] to be held accountable to” it. 

Dkt. 10-4 at 1, Dkt. 10-5 at 1, Dkt. 10-6 at 1. Even so, “Smith received financial assistance from 

the U.S. Department of Veterans Affairs (‘VA Benefits’) for all of the . . . coursework for which 

he sought financial assistance from the Board.” Compl. ¶ 19; accord Answer ¶ 19. In total, “the 

Board made payments to him under the Plan totaling $42,095 for coursework also paid for by VA 

Benefits.” Compl. ¶ 20; accord Answer ¶ 20.

The Board sued for, among other things, breach of contract and unjust enrichment. Compl. 

¶¶ 28–37. Smith answered and counterclaimed for defamation. Dkts. 6, 7. In support of his 

counterclaim, Smith alleged that he “had trouble communicating [with] and receiving benefits 

from” the Department of Veteran’s Affairs. Def.’s Countercl. ¶ 10, Dkt. 7. Further—in Smith’s 

telling at least—the Department was “inconsistent with disbursing [its] funds” and “communicated 

the expenses were exhausted.” Id. Smith “made Federal Reserve personnel well aware” of these 

problems, but “next steps [were] not thoroughly communicated” to him. Def.’s Resp. to Gov’t

Reply at 2, Dkt. 14. “[B]y the time anything was done, the Defendant was asked by the Federal 

Reserve’s HR to resign and [was] told this would settle the differences and confusion.” Id. The 

Board’s Human Resources staff led Smith “to believe that if he voluntarily resigned, the [Board] 

would forego all legal actions and not seek reimbursement.” Def.’s Countercl. ¶ 13.
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The Board moves for judgment on the pleadings and to dismiss Smith’s counterclaim for 

lack of jurisdiction. Dkt. 10. 

II. LEGAL STANDARDS

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may move to dismiss 

an action for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Because “[s]overeign 

immunity is jurisdictional in nature,” FDIC v. Meyer, 510 U.S. 471, 475 (1994), claims barred by 

the United States’ sovereign immunity are “subject to dismissal under Rule 12(b)(1),” Clayton v. 

District of Columbia, 931 F. Supp. 2d 192, 200 (D.D.C. 2013). 

Under Rule 12(c) of the Federal Rules of Civil Procedure, “a party may move for judgment 

on the pleadings.” Fed. R. Civ. P. 12(c). Movants under Rule 12(c) face a “heavy burden.” Dist. 

No. 1, Pac. Coast Dist. v. Liberty Mar. Corp., 933 F.3d 751, 760 (D.C. Cir. 2019). “To prevail on 

a Rule 12(c) motion, ‘[t]he moving party must show that no material issue of fact remains to be 

[re]solved and that it is entitled to judgment as a matter of law.’” Tapp v. Wash. Metro. Area 

Transit Auth., 306 F. Supp. 3d 383, 391 (D.D.C. 2016) (Brown Jackson, J.) (quoting Judicial

Watch, Inc. v. U.S. Dep’t of Energy, 888 F. Supp. 2d 189, 191 (D.D.C. 2012)). “[I]n deciding a 

Rule 12(c) motion . . . the [C]ourt relies on ‘the facts alleged in the complaint, documents attached 

to the complaint as exhibits or incorporated by reference, and matters about which the [C]ourt may 

take judicial notice.’” Id. (quoting Allen v. U.S. Dep’t of Educ., 755 F. Supp. 2d 122, 125 (D.D.C. 

2010)). “[J]udgment on the pleadings is not appropriate if there are issues of fact which if proved 

would defeat recovery, even if the trial court is convinced that the party opposing the motion is 

unlikely to prevail at trial.” Liberty Mar., 933 F.3d at 761 (cleaned up). Similarly, a defendant 

may defeat a Rule 12(c) motion by pleading a valid affirmative defense in his answer. 5 Wright 

& Miller, Federal Practice & Procedure § 1368 & nn. 23–26 (3d ed. 2024 update) (citing cases). 
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III. DISCUSSION

Starting with jurisdiction, the Court will dismiss Smith’s defamation counterclaim because 

the Board is immune from it. In addition, because Smith asserts an affirmative defense to which 

the Board has not responded, the Court will deny the Board’s motion for judgment on the 

pleadings. 

A. Smith’s Counterclaim

The Court will grant the Board’s motion to dismiss Smith’s counterclaim for lack of 

jurisdiction. “Absent a waiver, sovereign immunity shields the United States and its agencies from 

suit.” Meyer, 510 U.S. at 475. This principle applies to counterclaims brought against the United 

States. United States v. Shaw, 309 U.S. 495, 501–03 (1940). As the Supreme Court has explained, 

the United States does not waive its sovereign immunity by “voluntarily seek[ing] the aid of the 

courts for the collection of its indebtedness.” Id. at 501.

The Federal Tort Claims Act waives the United States’ sovereign immunity for certain tort 

claims brought against it. 28 U.S.C. §§ 1346(b), 2674. It does not apply, however, to “[a]ny claim 

arising out of . . . libel, slander, misrepresentation, [or] deceit.” Id. § 2680(h).

Given these principles, the Court lacks jurisdiction over Smith’s counterclaim. Because 

Smith’s counterclaim alleges that the Board “made knowingly false statements” about him, 

Countercl. ¶ 23, it arises out of libel or slander, see, e.g., Kugel v. United States, 947 F.2d 1504, 

1507 (D.C. Cir. 1991). Thus, the United States remains immune from it despite the Federal Tort 

Claims Act. See id. And because Smith identifies no other statute waiving the United States’

sovereign immunity from his defamation claim, it follows that the Court must dismiss that claim 

for lack of jurisdiction.
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It makes no difference that compulsory counterclaims are immune from the Claims Act’s 

exhaustion requirements. 28 U.S.C. § 2675(a). Whether or not Smith exhausted his administrative 

remedies is wholly separate from whether his claim arises out of libel or slander. Because it does, 

the Court lacks jurisdiction over it despite the Federal Tort Claims Act.

For these reasons, the Court will dismiss Smith’s counterclaim for lack of jurisdiction.

B. Judgment on the Pleadings

That leaves the Board’s motion. Federal common law governs contract claims by the 

federal government and its agencies, including the Board. See Boyle v. United Tech. Corp., 487 

U.S. 500, 504 (1988). To establish breach of contract under federal common law, “a party must 

allege and establish: (1) a valid contract between the parties; (2) an obligation or duty arising out 

of the contract; (3) a breach of that duty; and (4) damages caused by the breach.” Red Lake Band 

of Chippewa Indians v. U.S. Dep’t of Interior, 624 F. Supp. 2d 1, 12 (D.D.C. 2009) (quoting Pryor 

v. United States, 85 Fed. Cl. 97, 104 (Fed. Cl. 2008)). 

The federal common law of contracts recognizes an affirmative defense of release. See, 

e.g., United States v. Price, 50 U.S. 83, 92 (1850); Stanley v. George Washington Univ., 394 F. 

Supp. 3d 97, 106 n.7 (D.D.C. 2019) (recognizing release defenses); see also Perry v. MSPB, 582 

U.S. 420, 435 n.9 (2017) (describing release as an affirmative defense). “[A] release is a form of 

contract.” Stanley, 394 F. Supp. 3d at 106 (quoting Am. Civ. Constr., LLC v. Fort Myer Constr. 

Corp., 246 F. Supp. 3d 309, 321 (D.D.C 2017)). To form a valid release—or for that matter any 

contract—with the federal government, “four basic requirements must be met: (1) mutuality of 

intent to contract; (2) lack of ambiguity in offer and acceptance; (3) consideration; and (4) a 

government representative having actual authority to bind the United States in contract.” Anderson 

v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003) (citing cases). 
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It is “a matter of some debate as to whether” the pleading standard announced in Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), “applies to affirmative defenses” like release. 

Moore v. United States, 318 F. Supp. 3d 188, 193 (D.D.C. 2018). The weight of authority is that 

it does not. Id. (citing cases); 5 Wright & Miller, Federal Practice & Procedure § 1274 & n.9. 

Rather, it is enough to “assert[]” an affirmative defense such as release “in one sentence.” Moore, 

318 F. Supp. 3d at 193.

All this dooms the Board’s motion for judgment on the pleadings. Smith’s Answer asserts 

release as an affirmative defense. Answer ¶ 59. This affirmative defense, if proven, could 

establish that the Board released any of its claims against Smith under the Plan. For example, 

Smith could show—as he alleges in his counterclaim—that the Board’s agents told him “that if he 

voluntarily resigned,” the Board “would forego all legal actions and not seek reimbursement.”2 

Def.’s Countercl. ¶ 13. That showing could well establish an affirmative defense of release: the 

Board’s promise to forego reimbursement is not ambiguous, its exchange of a release for Smith’s 

resignation counts as consideration, and the remaining contract elements (mutuality of intent and 

actual authority) depend on facts that neither side has pled. See Anderson, 344 F.3d at 1353. Thus,

judgment on the pleadings is improper because there exists “an affirmative defense which, if 

proved, would defeat plaintiff’s recovery.” Qwest Commc’ns Corp. v. City of Berkeley, 208 F.R.D. 

288, 291 (N.D. Cal. 2002). 

2

In adjudicating a Rule 12(c) motion, the Court may not look beyond the parties’ pleadings 

without converting the motion to one for summary judgment. Fed. R. Civ. P. 12(d). It is not 

obvious that Smith’s allegations in support of his counterclaim—as opposed to his answer to the 

Board’s complaint—count as applicable “pleadings” for purposes of the Board’s Rule 12(c) 

motion. Here, however, the Court uses the allegations in Smith’s counterclaim exclusively to 

show by way of example that Smith has raised a viable affirmative defense.
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To be sure, Smith’s papers in opposition to the Board’s motion to dismiss do not mention 

release. Even so, it remains the Board’s burden to show that it is entitled to judgment on the 

pleadings in view of the content of Smith’s answer, which does raise a release defense. See, e.g., 

Murphy, 326 F.R.D. at 49. Because the Board has not discharged that burden, the Court will not 

enter judgment in its favor. Cf. Winston & Strawn, LLP v. McLean, 843 F.3d 503, 507 (D.C. Cir. 

2016); Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 892 F.3d 332, 345 (D.C. Cir. 

2018). The Court further notes that the Board has never moved to strike Smith’s release defense 

as “insufficient.” Fed. R. Civ. P. 12(f). 

One final point merits discussion. Before this Court, Smith’s principal defense has been 

unilateral mistake rather than release. But it is not at all clear that this defense can succeed, even 

assuming—perhaps contrary to fact—that Smith can establish the elements of mistake under 

federal common law. For one thing, mistake is generally characterized as an affirmative defense. 

See, e.g., Ameriserv Tr. v. United States, 125 Fed. Cl. 733, 746 (Fed. Cl. 2016). Smith’s answer 

to the Board’s complaint does not raise unilateral mistake as an affirmative defense, suggesting 

that he may have forfeited it under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(h). 

For another, although unilateral mistake can render a contract voidable, voiding the Plan would 

not get Smith where he needs to go. If the Plan is void, Smith was never entitled to collect his 

$42,095 under it, making the money potentially subject to recovery by the Board under principles 

of restitution. Restatement (Third) of Restitution § 34 (Am. L. Inst. 2011). In short, although the 

Court will reject the Board’s motion for judgment on the pleadings, it will not do so based on 

Smith’s defense of unilateral mistake.

For these reasons, the Court will deny the Board’s motion for judgment on the pleadings.
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Accordingly, it is

ORDERED that the Board’s motion for judgment on the pleadings, Dkt. 10, is DENIED. 

It is further

ORDERED that the Board’s motion to dismiss Smith’s counterclaim for lack of subjectmatter jurisdiction, Dkt. 10, is GRANTED. Smith’s counterclaim for defamation is DISMISSED

without prejudice for lack of jurisdiction. It is further

ORDERED that the parties shall file a status report proposing a schedule for further 

proceedings on or before June 14, 2024. The parties agree that “[t]here is no discovery as of right 

in this proceeding.” Notice Regarding the Joint Report Pursuant to Local Civil Rule 16.3(d) at 2, 

Dkt. 11; see Fed. R. Civ. P.26(a)(1)(B)(vi). Accordingly, the parties’ status report shall state each 

party’s position on (1) whether the Court should authorize discovery and on (2) the proper scope 

of discovery if authorized. In view of this case’s limited scope and amount in controversy, the 

Court does not expect that substantial discovery will be appropriate. See Fed. R. Civ. P. 26(b)(1). 

Further, the Court will not be inclined to authorize deposition discovery unless document 

discovery shows that depositions are necessary.

SO ORDERED.

________________________

May 30, 2024 DABNEY L. FRIEDRICH

United States District Judge