GLASS v. U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES et al

Filing 22

MEMORANDUM AND OPINION. Signed by Judge John D. Bates on 11/14/17. (ms)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
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THOMAS GLASS,
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Plaintiff,
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v.
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U.S. DEPARTMENT OF HEALTH
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AND HUMAN SERVICES, et al.,
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Defendants.
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_________________________________________ )

Civil Action No. 17-0428 (JDB)

MEMORANDUM OPINION
Plaintiff filed a civil complaint in the Superior Court of the District of Columbia on
December 9, 2016 and an Amended Complaint, ECF No. 1-1, on December 12, 2016. He
named as defendants the U.S. Department of Health & Human Services (“DHHS”) and the
Florida Department of Revenue and the Office of the State Attorney, Eleventh Judicial Circuit
(collectively “State Defendants”). 1 DHHS removed the case on March 3, 2017. 2 This matter
has come before the Court on the State Defendants’ Renewed Motion to Dismiss, ECF No. 5,
plaintiff’s Motion to Amend Complaint, ECF No. 8, and Defendant U.S. Department of Health

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“The legal name of the Miami-Dade State Attorney’s Office is the Office of the State Attorney,
Eleventh Judicial Circuit[.]” State Defs.’ Renewed Mot. to Dismiss at 1 n.1.
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The Florida Defendants “neither consented to nor joined the removal instituted by [D]HHS.”
State Defs.’ Renewed Mot. to Dismiss at 3 n.3.
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& Human Services’ Motion to Dismiss, ECF No. 12. For the reasons discussed below, the Court
denies plaintiff’s motion to amend and grants defendants’ motions to dismiss. 3
I. BACKGROUND
In January 2000, child support proceedings against plaintiff commenced in the Circuit
Court of the Eleventh Circuit in and for Dade County, Florida (“Florida Court”). See generally
State Defs.’ Renewed Mot. to Dismiss (“State Mot.”), Ex. A. On May 1, 2000, the Florida Court
ordered plaintiff to pay $202.97 by-weekly. See generally id., Exs. B-D. 4 Although the Florida
Court reduced the payment on April 23, 2010, see generally id., Ex. E, it entered an order on
June 20, 2015, increasing plaintiff’s child support obligation to $ 675.00 monthly, see id., Ex. F. 5
Plaintiff apparently had a second child. “Around or about April 26, 2016, the plaintiff
had learn[ed] of a new child that had been added to [his] case within the State[.]” Am. Compl. ¶
4. Plaintiff sought review by a state agency of his child support obligation on or about May 5,
2016 because of these changed circumstances. See id. ¶ 6. The agency had plaintiff submit
“additional pay stubs for extensive review to consider the modified support order.” Id. ¶ 14; see
id. ¶ 8. Plaintiff complied, see id. ¶¶ 9-11, 15, and the agency appears to have found that
plaintiff’s child support payment should be reduced to $ 380.40 monthly, see id. ¶ 12. It advised:

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In addition, the Court denies “Plaintiff[’s] Motion to Set Aside Order Pending Outcome of
Plaintiff’s Motion Hearings,” ECF No. 19, as moot.
4

The Florida Court ordered plaintiff to pay $ 187.97 bi-weekly for child support plus $ 15.00 biweekly towards the child support he owed, which totaled $2,592.02, retroactive to May 18, 1999.
See State Mot., Ex. B at 1.
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The Florida Court ordered plaintiff to pay $ 643.61 monthly for child support plus $ 31.39
monthly towards arrears, which totaled $ 24,764.82 as of July 13, 2015. See State Mot., Ex. F at
2.
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Your support order was entered by the Circuit Court. We will ask
our attorney to file a petition and Proposed Modified Support Order
with the Circuit Court based on our review. If filed, you and the
other party will receive a copy of our petition and the proposed order
. . . . If you requested the review, you will receive the petition and
proposed order by regular mail. You will have 30 calendar days
from . . . the date the petition and proposed order [were] mailed to
you[] to request a court hearing. Otherwise the court may modify
the support order in accordance with the terms of the Proposed
Modified Support Order without a hearing.
Id., Ex. A (Results of Support Order Review). Nevertheless, the agency declined to submit a
proposed modified support order, id. ¶ 15, yet issued no “written response or reason for the
rejection of the proposed support order,” id. ¶ 16. Thus, plaintiff remained obligated not only to
pay $ 675.00 monthly for the first child, but also to pay an additional $ 370.00 monthly for the
second child. Id., Exs. B-C (respectively, Statement of Obligor’s Rights, Remedies and Duties
For Immediate Income Deduction, CSE Case Numbers 1120436559 and 2000806267). 6
Plaintiff styles his first cause of action “Tort.” Am. Compl. at 3. He claims that the State
Defendants violated 45 C.F.R. § 303.8(b), see Am. Compl. ¶¶ 17-18, which requires a State to
have procedures for the review of a child support order on a parent’s request “if the amount of
the child support award under the order differs from the amount that would be awarded in
accordance with the guidelines[,]” 45 C.F.R. § 303.8(b)(1), and to make a “downward change in
the amount of child support,” id. § 303.8(b)(3)(ii)(A), if the circumstances warrant. The Court
presumes that plaintiff refers to regulations implementing Part D of Title IV of the Social
Security Act (Title IV-D) pertaining to child support and establishment of paternity. See 42
U.S.C. §§ 651-669b. His second cause of action, styled “Dignitary Tort, Abuse of Process,” Am.

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Plaintiff remained obligated to pay a total of $ 675.00 for monthly support and past-due
support for one child, and to pay $ 345.00 monthly plus $25.00 past-due support for the second
child. See Compl., Exs. B-C.
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Compl. at 5, arises from the State Defendants’ collection and disbursement of child support
payments, id. ¶ 20.
Plaintiff was to make payments by direct deduction from his pay check to the State
Disbursement Unit until his child reached emancipation on July 18, 2017. See, e.g., State Mem.,
Ex. B (Income Deduction Notice to Payor). In November 2016, plaintiff contacted the Florida
Department of Revenue “regarding a request to terminate income deduction orders, and to
request an Employer to be added as the primary [payor] to satisfy future income deduction
orders.” Id. ¶ 21. He intended to terminate a former employer, YRC Freight, and “add[]
Lacaster Foods as an employer to satisfy child support payments with CSE case number
1120436559,” id. ¶ 23, and to “add[] Ruan Transport Service as an employer to satisfy child
support payments with CSE case number 2000806267,” id. ¶ 22. According to plaintiff, the state
agency “failed to apply or process” his request, id. ¶ 25, and instead “order[ed] both employers
to submit full payments” in November 2016, id. ¶ 24. As a result, plaintiff paid a “double
support payment” in a single month, and he was left “without the option to seek reimbursement.”
Id. ¶ 26 (emphasis removed). These failures allegedly have violated 45 C.F.R. § 305.60(b), see
Am. Compl. ¶ 20, pursuant to which the State Defendants are obligated to “conduct audits to
determine the financial management of the State IV-D program, including assessments of . . .
[w]hether collections and disbursements of support payments are carried out correctly and are
fully accounted for,” 45 C.F.R. § 305.60(b)(2).
Plaintiff demands “reimbursement of all monthly overpaid support . . . payments and
failed adjustments,” and correction of the “income deduction orders selecting employers
specifically to satisfy a specific CSE case as [he] directed . . . to satisfy one obligation.” Am.
Compl. at 6.

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II. DISCUSSION 7
A. Plaintiff’s Motion to Amend the Complaint
Plaintiff moves to amend his complaint by adding a new defendant, Hearing Officer
Valerie Tomkins, who allegedly committed official misconduct when she denied plaintiff’s
motion to modify a child support order in March 2016. See generally Mot. to Am. Compl., Ex.
(“Proposed Second Am. Compl.”), ECF No. 8-1 ¶¶ 29-35. Plaintiff alleges that he sought a
downward modification of a support order in August 2015, and his motion did not comply with
the Florida court rules. Proposed Second Am. Compl. ¶¶ 39-30; see id., Ex. O. He faults the
court clerk for failing to correct his error, see id. ¶¶ 31, 34, and Hearing Officer Tomkins for
dismissing the matter or, alternatively, for failing to continue the matter so that plaintiff could
file the proper papers, see id. ¶ 33, 35. Plaintiff demands monetary damages and correction of
income deduction orders. Id. at 7 (page number designated by the Court). In all other respects,
the proposed amended pleading is substantially similar to the Amended Complaint.
The State Defendants oppose plaintiff’s motion on multiple grounds, see State Defs.’
Mem. of P. & A. in Opp’n to Glass’s Mot. for Leave to File Second Am. Compl., ECF No. 11 at
2, two of which are dispositive. First, a state court judge enjoys absolute immunity from liability
for damages for acts taken in her judicial capacity. See Stump v. Sparkman, 435 U.S. 349, 364
(1978) (concluding that state judge was “immune from damages liability even if his [decision]
was in error”). Without question, Tomkins’ dismissal of plaintiff’s case is an action taken in her
judicial capacity. See Burger v. Gerber, No. 01-5238, 2001 WL 1606283, at *1 (D.C. Cir. Nov.

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Plaintiff is proceeding pro se and in forma pauperis, and the responsibility for serving
defendants falls on the Clerk of Court and the United States Marshals Service. See 28 U.S.C. §
1915(d); Fed. R. Civ. P. 4(c)(3). The Court denies DHHS’s motion to dismiss under Rule
12(b)(5), see DHHS Mem. at 10-11, for insufficient service of process.
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20, 2001) (per curiam) (affirming dismissal on judicial immunity grounds of appellant’s claim
against United States Tax Court Judge where “[t]he action about which appellant complains –
ruling on a motion to dismiss a tax court petition – was well within the judge’s judicial
capacity”); Thomas v. Wilkins, 61 F. Supp. 3d 13, 19 (D.D.C. 2014) (finding that “judge’s
decision to file or deny a party’s motions or requests is an action routinely performed by a judge
in the course of litigation, and thus would constitute a judicial act immune from suit”), aff’d, No.
14-5197, 2015 WL 1606933 (D.C. Cir. Feb. 23, 2015). Absent any showing by plaintiff that
Tomkins’ “actions [were] taken in the complete absence of all jurisdiction,” Sindram v. Suda,
986 F.2d 1459, 1460 (D.C. Cir. 1993) (citation omitted), if Tomkins were a defendant, she would
be “immune from damage suits for performance of tasks that are an integral part of the judicial
process.” id. at 1461 (citations omitted); see Butz v. Economou, 438 U.S. 478, 511-13 (1978)
(holding that administrative hearing officers were entitled to judicial immunity).
Second, plaintiff’s demand for “[c]orrecting [his] income deduction orders,” Proposed
Second Am. Compl. at 7, is barred by the Rooker-Feldman doctrine. This doctrine applies to
“cases brought by state-court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284 (2005). It prevents a plaintiff from seeking review of a state court decision because a federal
district court “lack[s] jurisdiction to review judicial decisions by state . . . courts.” Richardson v.
District of Columbia Court of Appeals, 83 F.3d 1513, 1514 (D.C. Cir. 1996) (citing District of
Columbia v. Feldman, 460 U.S. 462, 476 (1983), and Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923)). Therefore, plaintiff may not achieve modification of a support order issued by the
Florida court by means of this lawsuit in federal district court.

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“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) (citation omitted), cert. denied, 133 S. Ct. 860 (2013). The claims plaintiff purports to
raise in a second amended complaint against Tomkins cannot survive a motion to dismiss, and
therefore the Court denies plaintiff’s motion to amend.
B. Dismissal Under Rule 12(b)(1)
“Federal district courts are courts of limited jurisdiction,” and “it is to be presumed that a
cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994) (citations omitted). Plaintiff bears the initial burden of establishing by a
preponderance of the evidence that this Court has subject matter jurisdiction over his claims. Id.;
see Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Homeland Sec., 527 F. Supp.
2d 101, 104 (D.D.C. 2007). In deciding a motion brought under Rule 12(b)(1), the Court “may
consider materials outside the pleadings” and “accept[s] all of the factual allegations in the
complaint as true.” Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253
(D.C. Cir. 2005) (internal quotation marks and citations omitted).
1. Eleventh Amendment Immunity
The Eleventh Amendment to the United States Constitution immunizes a state or state
agency from suit in federal court, unless its immunity is waived. See College Sav. Bank v.
Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675-76 (1999); Keenan v.
Washington Metro. Area Transit Auth., 643 F. Supp. 324, 327-28 (D.D.C. 1986) (citing cases).
A waiver is found “only where stated by the most express language or by such overwhelming
implications from the test as [will] leave no room for any other reasonable construction.” Morris

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v. Washington Metro. Area Transit Auth., 781 F.2d 218, 221 (D.C. Cir. 1986) (internal citations
and quotation marks omitted).
The State Defendants move to dismiss on the ground that Florida’s Eleventh Amendment
immunity deprives this Court of subject matter jurisdiction. See State Mot. at 5-6. Both the
Florida Department of Revenue, see Camm v. Scott, 834 F. Supp. 2d 1342, 1347 (M.D. Fla.
2011), and the State Attorney’s Office, see Rosario v. Am. Corrective Counseling Servs., Inc.,
506 F.3d 1029, 1043 (11th Cir. 2007), are arms of the state government for purposes of the
Eleventh Amendment. Plaintiff does not demonstrate that Florida has waived its immunity, and
therefore the Court will dismiss plaintiff’s claims against the State Defendants for lack of subject
matter jurisdiction.
2. Sovereign Immunity
“It is axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206,
212 (1983). Accordingly, the United States enjoys sovereign immunity unless there is a clear
and express waiver of immunity. See id.; see also Lane v. Peña, 518 U.S. 187, 192 (1996).
Once again, plaintiff has not demonstrated that the United States has waived its immunity from
suit, and the Court is deprived of subject matter jurisdiction. See FDIC v. Meyer, 510 U.S. 471,
475 (1994).
C. Dismissal Under Rule 12(b)(6)
Even if defendants’ respective immunities imposed no bar to plaintiff’s claims, there
remain several reasons to dismiss the Amended Complaint in its entirety. “A motion to dismiss
under [Rule] 12(b)(6) tests whether the complaint properly states a claim on which relief may be
granted. ” Davis v. Billington, 775 F. Supp. 2d 23, 32 (D.D.C. 2011). Although “‘detailed

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factual allegations’” are not required, a plaintiff must offer “more than an unadorned, the
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007)). A “complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when
the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). “A
complaint alleging facts which are merely consistent with a defendant’s liability . . . stops short
of the line between possibility and plausibility of entitlement to relief.” Id. (citing Twombly, 550
U.S. at 557) (internal quotation marks omitted). The complaint is construed liberally in a
plaintiff’s favor, and the Court accepts as true all well-pleaded factual allegations. Davis, 775 F.
Supp. 2d at 32-33. Nevertheless, any conclusory allegations are not entitled to an assumption of
truth, and even those allegations pleaded with factual support need only be accepted insofar as
“they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679; see Sissel v. U.S.
Dep’t of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014) (quoting Doe v. Rumsfeld, 683
F.3d 390, 391 (D.C. Cir. 2012)).
Aside from mentioning DHHS in the caption of his Amended Complaint, the pleading
does not allege an action or omission attributable to DHHS resulting in any injury to plaintiff.
Furthermore, because no individual has a private right “to force a state agency to substantially
comply with Title IV-D,” Blessing v. Freestone, 520 U.S. 329, 332 (1997); Cuvillier v. Taylor,
503 F.3d 397, 406 (5th Cir. 2007) (rejecting claim “that Title IV-D gives [appellant] a federal
right to child support or child support collection on her behalf”), plaintiff’s claims alleging
violations of the regulations to which he refers cannot proceed. Insofar as plaintiff brings this

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lawsuit against DHHS as a means by which to alter, overturn, or enjoin enforcement of the
Florida Court’s child support orders, the Rooker Feldman doctrine applies. See, e.g., Ballinger v.
Colutta, 322 F.3d 546, 548-49 (8th Cir. 2003). The Amended Complaint thus fails to state
claims against either state or federal defendants upon which relief can be granted.
III. CONCLUSION
The Court denies plaintiff’s motion to amend the complaint as futile. In addition, the
Court concludes that all defendants are immune from suit and that the Amended Complaint fails
to state claims upon which relief can be granted. Accordingly, defendants’ motions to dismiss
are granted. An Order is issued separately.

DATE: November 14, 2017

/s/
JOHN D. BATES
United States District Judge

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