WAGSTAFF v. USA

Filing 43

PUBLISHED MEMORANDUM OPINION and FINAL ORDER granting 19 Motion for Summary Judgment and finding as moot 38 Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of the Government. Signed by Judge Susan G. Braden. (dls) Copy to parties.

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$tstes @ourt of JfeDers[ @tsfms
No. 11-466C
Filed: July 31,2013
TO BE PUBLISHEI)

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Plaintiff, pro se,

THE TINITED STATES,
Defendant.

*!**** *** **** *,t+* *,1* * **** ******

Audrey S, Wagstaff,

31

2013

Pro Se;

U.S. COURT OF
Takings;
FEDERAL CLAIMS
Illegal exactions;
Motion for Summary Judgment, RCFC
56(c);
U.S.C. S 3720A (2006) (authorizing tax
31
refund offsets against taxpayers who owe
debts to federal agencies);
31 U.S.C. $ 3720D (2006) (authorizing wage
gamishments against persons who owe
debts to federal agencies);
Fed. R. Evid. 902(4) (certified copies of
public records);
RCFC 3a(a)(1) (authorizing inspection of
original documents).

AUDREY S. WAGSTAFF,

*

JUL

*
,1.

FILED

*

*****

San Antonio, Texas, Plaintiff,

pro

se.

Russell J. Upton, United States Department of Justice, Commercial Litigation Branch, Civil
Division, Washington, D.C., Counsel for Defendant.

MEMORANDUM OPINION AND FINAL ORDER
BRADEN,,/adge
This case is the sixth in a series of cases involving pro se Plaintiff Audrey S. Wagstaff
("Plaintiff') and the Depa(ment of Education, all regarding Plaintiff s student loans. On August
30, 1999, the Department of Education sued Plaintiff in the United States District Court for the
Westem District of Texas, seeking repayment of the principal and interest due on Plaintiff s
student loans. See Complaint, United States v. Wagstffi No. 5:99-cv-00960 (W.D. Tex. Aug.
30, lggg), ECF No. | ("Ilagstaff I'). That case voluntarily was dismissed by the Department of
Education on May 30, 2000, but the Department of Education subsequently initiated
administrative proceedings that resulted in Plaintiff s wages being administratively gamished
and her federal tax refunds offset to recover the loan balance and associated interest.
On December 29,2005, Plaintiff sued the Department of Education in the United States
District Court for the Western District of Texas, alleging that the Department of Education
violared the Fair Debt collecrion Pracrices Act ("FDCPA"), Pub. L. No. 95-109, l5 U.S.C. $$

1692-1692p (2006). See lhagstafv. Dep't of Educ., No. 5:05-cv-01245 (W.D' Tex. Feb. 15,
2007) (lhgstaffll). That action was dismissed for lack ofjurisdiction, and the United States

for the Fifth Circuit

Court

of

I,

FACTUAL BACKGROUND AND PRIOR PROCEDURAL HISTORY.'

subsequently affirmed the dismissal. See
lVagstaff v. Dep't of Educ.,509 F.3d 661 (5th Cir. 2007) ("Wagstaff III')' On October 31' 2008'
Plaintiff again sued the Departrnent of Education, this time in Texas state court, but the lawsuit
was removed to federal district court and again dismissed. See Wagstaffv. Dep't of Educ., No.
5:08-cv-00923 (W.D. Tex. Apr.22,2009) (" IYagstaff IIr). That decision was also appealed and
upheld by the United States Court of Appeals for the Fifth Circuit. See llagstaff v. Dept. of
Educ.,366 F. App'x 564 (5th Cir.2010) (unpublished) ("llagstaffln). Plaintiffnow seeks relief
from this court.

Appeals

A.

In

1991-1993 And
Defaulted On The Notes, And The Department Of Education Attempted To
Collect.

Plaintiff Signed Six Student Loan Promissory Notes

Between January 1991 and February 1993, Plaintiff signed promissory notes for four
stafford Loans and two Supplemental Loans for students ('sLS) to attend our Lady of the
Lake University in San Antonio, Texas. Compl. Exs. 1-6 i'tft" ti* promissory notes";.2 The
total principal amount of the promissory notes due is $17,000.00, and each note indicates that it
was approved and disbursed by Bank One, Texas, N.A. Compl. Exs. l-6. Following Plaintiff s
graduation in May 1993, she was employed through at least February, 2007 , if not later, but to
dale has made no voluntary payments on any ofthese loans' See lyagstaff II at8.

I The facts discussed herein were derived from: the July 18, 2011 Complaint ("Compl.")
and attachments thereto; attachments to the Declaration of S. Dawn Scaniffe ("Scaniffe Decl.")
filed with Defendant's ("the Govemment's") August 9,2012 Motion For Summary Judgment
(,,Gov't S.J. Mot. Att. A-TT"); the February 15,2007 Memorandum Decision And order from
the United States District Court for the Westem District of Texas in lVagstaff II (reproduced at
Exhibit A of the Govemment's November 14,2011 Motion To Dismiss) and filings associated
with that case; and from judicial opinions in llagstalf III-V.
2

The six oromissory notes are summarized in the chart below:

Date Signed
0t/171199r
09t031r991
02118/1992
09128/1992
0912811992

01/1211993

Total
Compl. Exs. 1-6.

Date

Processed Amount

01ll'111991

0913011991
0310511992
1011611992

t0/16/1992

0210811993

Loan TYPe
$4,000 Stafford
$3,000 Stafford
$2,000 Stafford
$4.000 Stafford
sLS
$3.000
sLS
$1,000

$17.000

Source
Compl. Ex. 1
Compl. Ex. 2
Compl. Ex. 3
Compl. Ex. 4
Compl. Ex. 5
Compl. Ex. 6

Plaintiff s "student loans were guaranteed by the Texas Guaranteed Student Loan
Corporation C'TGSLC) and then reinsured by the Department of Education under federal loan
guaranty programs." lVagstaff II at 8. "[]n August 1995, after the TGSLC was unable to collect
from [P]laintiff, it assigned its right and title to the loans to the Department of Education."
Ilagstaff II at 8. Pursuant to a May 22, 1995 Notice from the Department of the Treasury
("Treasury"), Plaintiffs 1994 income tax refund was offset to recover funds the Department of
Education paid as a result of Plaintiffs nonpayment ofher student loans, plus associated interest.
Compl. fl 46. Plaintiff s income tax refund also was offset for the 1998 ta><yeu. Compl. fl 7.
On or around August 30, 1999, the Department of Education filed suit against Plaintiff in
the United States District Court for the Westem District of Texas for repayment of the principal
and interest due on her student loans. Compl.fl 8; see also Wagstaff I,ECFNo. 1. On or around
October 6, 1999, Plaintiff met with a "United States Assistant District Attomey" to dispute the
Department ofEducation's claim and the validity ofat least one ofthe promissory notes. Compl.

(Tor

On May 30, 2000, the Government voluntarily dismissed the August 30,1999 Complaint,
without prejudice. See Llagstaff /, ECF No. 3;' see also llagstaff 11 at 9 (describing the
dismissal of the Government's August 30, 1999 lawsuit). Following the dismissal, the
Department of Education investigated Plaintiffs allegations, but after Plaintiff failed to provide
evidence to support her claim, concluded that the promissory notes were valid. See ll/agstaff II
at 9 (describing the Govemment's actions after its voluntary dismissal of Wogstaff I).

In 2004, the Department of Education resumed efforts to collect the outstanding balance
of Plaintiff s loans. See Wagstaff II at 9. On August 26,2004, the Department of Education sent
Plaintiff a notice advising that any further income tax refunds would be offset, but that she could
seek administrative review of this decision within sixty-five days. See llagstaff II, ECF No. 44,
Ex. 12 at 2. As of September 22,2004, the Department of Education's records indicated that
Plaintiff owed $36,266.70, reflecting a principal balance of $18,040.35, interest of $10,973.01,
and fees and costs of$7.253.34.) Compl. Ex. 7.
3

appears to be that one of the two promissory notes she signed on
September 28, 1992 was invalid, because she intended to assume one loan, but was informed by
Our Lady ofthe Lake University that one ofher loan requests was lost. See Complaint, l(agstaff
-I1,

Plaintiffs dispute

ECF No. 5 ll 3.
4

Plaintiff does not appear to understand that a voluntary dismissal is not a judgment on
the merits. The Department of Education's May 30, 2000 voluntary dismissal was nol a
judgment by the United States District Court for the Westem District of Texas determining that
Plaintiff did not owe funds to the Department of Education.
5

"Fees and costs" reflect collection costs of 250lo of the combined principal and interest.
Compl. Exs. 1-6 (promissory notes indicating lhat 25yo collection costs could be imposed), Ex. 7
(Department of Education records indicating that Plaintiff was charged collection costs of 25%).
Plaintiffs principal balance was $18,040.35, i.e., $1,040.35 more than the $17,000 total for the
promissory notes she signed, because $1,340.35 in unpaid interest was capitalized when TGSLC

On or about November 11, 2004, Plaintiff filed a Request For Review of tax refund
offsets with the Department of Education. See llagstalf II at 9. Because Plaintiffls November
11,2004 Request For Review was deemed untimely, on May 3,2005, the Departmenl of
Education decided Plaintiffs Request For Review and determined that tax refund offsets could
proceed. See lYagstaff II at 9; see also lltagstaff II, ECF No. 44, Ex. 12 (Department of
Education's May 3,2005 decision regarding tax refund offsets).
For tax years 2004-2008 and 2010, Treasury resumed tax refund offsets to Plaintiffs
income tax retums. Compl. fl 159. Between November 2004 and July 2005, Plaintiff continued
to conespond with the Department of Education, requesting a complete accounting of her debt,
objecting to having not received a hearing, and raising concerns about the collection methods
used by NCO Financial Systems, Inc., a debt collection agency. See Wagstaff II at9-10.

At some point in 2005, the Department of Education initiated efforts to gamish Plaintiff s
wages. See Wagstaff II at 8, 10. On July 18,2005, Plaintiff signed a Request For Hearing, Form
DCSI-010, disputing the validity of the wage gamishments. Compl. Ex' 9. On this form,
Plaintiff checked a box indicating that she sought "a written records hearing of my objection(s)
based on [the Department of Education's] review of this wdtten statement," but did not check a
box requesting an in-person or telephone hearing. Compl. Ex. 9. On August 16, 2005' NCO
Financial Systems responded to Plaintiffs Request For Hearing, indicating that she had
"provided no evidence to support the objection you raised that the balance owed on this debt is
inconect[.]" Compl. Ex. 10. The August 16,2005 letter also advised Plaintiff that she could
submit objections within fifteen days after the date of that letter. Compl. Ex. 10. On September
t3, 2005, the Department of Education issued a Garnishment Hearing Decision upholding the
gamishment of Plaintiff s wages, because she failed to provide any evidence substantiating the
claim that her debts were invalid. See llagstaff II at 10; id., ECF No. 44, Ex. 14. The
Department of Education's Gamishment Hearing Decision also determined that Plaintiff s wages
"ari subject to a gamishment order . . . at the rate of 15% of your disposable pay." Id., ECF No'
44,8x. 14 at2.

B.

On December 29,2005 And October 31, 2008' Plaintiff Sued The Department
Of Education.

in forma pauperis, in the United
States District Court for the Westem District of Texas, alleging that the Department of Education
The
violated the FDCPA regarding the administration of her loans. see lyagstaff II at
and wage
December 29,2005 Complaint sought an order enjoining the tax refund offsets
garnishments, requested that Plaintiff s credit report be updated, and sought an award of
monetary damages for "violation of [her] rights. " See l{agstaff II at 2'3.

on December 29,2005, Plaintiff filed a complaint,

2.

paid the lender on the debt claims and, although the promissory note Plaintiff signed on
September 3, 1991 was for $3,000, Department of Education records show the loan she received
was for $2,700. Gov't S.J. Mot. Atts. K, P, S, V, Y, BB.

On February 15, 200'/, the District Court dismissed Plaintiff s Complaint, determining
that the FDCPA did not waive sovereign immunity. See LVagstaff II at 19-21. In addition, the
court determined that the Department of Education did not meet the statutory definition of a
"debt collector" under the FDCPA and therefore was not regulated by that statute. Saa Wagstaff
II at 2l-22. To the extent that Plaintiff asserted a tort claim, Plaintiff failed to exhaust
administrative remedies, as required by the Federal Tort Claims Act,28 U.S.C. $$ 2671-2680
(2006). See l{agstaff II at 23-24. Finally, the District Court determined, in the altemative, that
the Department of Education was entitled to summary judgment, because "there is no genuine
issue of material fact that [P]laintiff took out student loans from 1991 to 1993, and that she did
not make any voluntary payments on the loans" and "[t]here is no genuine issue of material fact
that the Department of Education is the cunent holder of the notes, as the loans were federally
insured and the Govemment paid the lenders when [P]laintiff defaulted on the underlying
debts[.]" luags|aff I I at 24.

Plaintiff filed an appeal to the United States Court of Appeals for the Fifth Circuit. On
December 4, 2007, the United States Court of Appeals for the Fifth Circuit upheld the trial
court's dismissal on the grounds that a federal district court does not have subject matter
jurisdiction to adjudicate FDCPA claims against the United States, holding that the FDCPA does
not waive the United States' sovereign immunity. See llagstaff III,509 F.3d at 663-64. Next,
Plaintiff filed a petition for a writ of certiorari to the United States Supreme Court, that was
denied. See l(agstaffv. Dep't ofEduc.,554 U.S. 904 (2008). On September 5, 2008, a petition
for rehearing also was denied. See lltagstaffv. Dep't ofEduc.,129 S. Ct. 25 (2008).
Next, Plaintiff filed a suit against the Department of Education in the 224th Judicial
District Court, Bexar County, Texas, on October 3 1, 2008. See lltagstaff IV, ECF. No. I ; see
a/so Compl. fl 135. On November 12, 2008, the Department of Education removed that case to
the United States District Court for the Western District of Texas. See llagstaff 14 ECF No. I .
On April 22,2009, that District Court dismissed the October 31, 2008 Complaint as baned by
the principle of res judicata (Ittagstaff IV, ECF No. 35), and on June 24,2009, also denied
Plaintiff leave to proceed in forma paupeni, concluding that the petition was not made in good
faith and Plaintilf had the resources to pay court costs. See llagstaff IV, ECF No. 45.

Plaintiff again appealed to the United States Court of Appeals for the Fifth Circuit
requesting to proceed in forma pauperis. Compl. !l 136. On February 22,2010, that court
denied the appeal, because Plaintiff "ha[d] not shown that her appeal [would] raise nonfrivolous
issues regarding the district court's dismissal of her complaint as barred by res judicata;'
Ilagstaff V,366 F. App'x at 566. Plaintiff again petitioned for a writ of certiorari in the United

States Supreme Court. On January 10, 2011, that petition also was denied. See
lltagstaffv. Dep't ofEduc.,131 s. ct. 979 (2011). on March, 7,2011, the petition for rehearing
was denied. See Wagstaffv. Dep't ofEduc.,l3l S. Ct. 1628 (2011).

II,

PROCEDURAL HISTORY IN THE UNITED STATES COURT OF FEDERAL
CLAIMS.

On July 18, 201 I, Plaintiff filed a Complaint in the United States Court of Federal
Claims, alleging four claims for relief. Compl. tf,!J 146-69. Count I alleged that the Department

ofEducation, through "oppression and duress," has profited by unlawful debt collection practices
against Plaintiff. Compl. fl$ 146-51 . Count II alleges that the Department of Education's refusal
to stop debt collectors from contacting Plaintiff constituted a regulatory taking. Compl. flfl 15256. Count III alleges that the Department of Education, through wage gamishment and ta.{
refund offsets, effected a physical taking of Plaintiff s funds. Compl. flfl 157-60. Count IV
alleges violations of Plaintiff s right to due process. Compl. fl$ 161-64. Therefore, the July 18,
2011 Complaint requested: compensation for the tax refund offsets and wage gamishments; "[a]
declaration that Defendant's claim or in the alternative, amount, methods and accounting are not
reasonable or bona fide and not supported under alleged contract or established contract law;" an
injunction preventing any additional taking of her property; and "[a]ny other relief the Coun
deems proper and applicable." Compl. flfl 165-69.
The July 18, 2011 Complaint also challenged the constitutionality of the Debt Collection
Improvement Act of 1996 ("DCIA"), Pub. L. No. 104-134, 110 Stat. 1321, on the grounds that it
violated "Plaintiff s 5th Constitutional amendment rights [sic]." Compl. fl 44. The July 18, 2011
Complaint also alleges that the imposition of a 25%o fee for use of a debt collection agency
"amount[s] to excessive collection fees" that is "arbitrary, capricious, without factual support[,]
and contrary to law." Compl. flfl 38-39. In addition, the July 18, 201 I Complaint alleges that the
Department of Education's debt collection practices, violate: Plaintiffs civil rights; the Civil
Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241o and the Privacy Act of 1974, Pub. L. No.
93-579, 88 Stat. 1896 (codified at 5 U.S.C. $ 552a). Compl.ff12,32,81,91,94,99,122'143.
On July I 8, 201 1, Plaintiff also filed a Motion For Leave To Proceed In Forma Pauperis.

On September 14,2011 and November 2, 2011, the court granted the Govemment
enlargements of time to file an Answer or responsive pleading.
On November 14, 2011, the Government filed a Motion To Dismiss the July 18' 2011
Complaint, pursuant to RCFC 12(bxl) and l2(b)(6).
On December 15, 201 l, Plaintiff filed a Response and a Motion requesting that the court
appoint counsel to represent her on the ground that "Plaintiff admits . . . that she finds many of
Defendant's arguments . . . confusing." On December 19, 2011, the court denied Plaintiff s
December 15, 201 1 Motion.
On January 3,2012, the Government filed a Reply.

On May 17,2012, the court issued a Memorandum Opinion And Order, granting-in-part
and denying-in-part the Govemment's November 14, 201I Motion To Dismiss. See
Wagstaff v. [Jnited States,105 Fed. Cl. 99 (2012) ("Wasstaff Vl'). Pursuant to RCFC 12(bXl),
the court dismissed Plaintiffs tort claims; statutory civil rights claims; Privacy Act claims; and
claims based on: the Fifth Amendment Due Process clause; the Fourteenth Amendment Equal
Proteotion clause; and the First Amendment. Id. at 109-10. Under the principle of res judicata,
6

Plaintiff invoked the "Civil Rights Act of 1965." Compl.
intended to refer to the Civil Rishts Act of 1964.
Plaintiff

fl 32. The court assumes

the court did not consider claims of violations of the FDCPA, because these claims were
adjudicated by a federal district court and a federal appellate court. Id, at 110. Further, the court
dismissed Plaintiffs request for injunctive relief as outside the mandate of the Tucker Act. Id.
The Takings Clause claim in the July 18, 2011 Complaint also was dismissed pursuant to RCFC
12(bX6), because Plaintiffs allegations of improper government conduct were contrary to the
takings doctrine requirement that the Govemment's taking action must be valid and authorized.
Id. The Govemment, however, properly recast Plaintiff s takings claims stemming from wage
gamishments and offsets as illegal exaction claims, so that the court denied the Government's
November 11, 2011 Motion To Dismiss with respect to Plaintiff s claim that the wage
gamishments were illegal exactions. Id. at 110-13.
On August 9, 2012, the Govemment filed a Motion For Summary Judgment on Plaintiff s
illegal exaction claim and attached the Declaration of S. Dawn Scaniffe. Plaintiff submitted a
Response on September 7,2012 (Pl. S.J. Resp."), and the Govemment submitted a Reply on
October 4, 2012 ("Gov't S.J. Reply").

On September 7, 2012, Plaintiff filed a Motion For Inadmissible Evidence and Motion
For Discovery, which the court granted-in-part on December 26,2012. Specifically, the court
delerred consideration of the Covemment's August 9, 2012 Motion for Summary Judgment to
provide Plaintiff time to take discovery, hire a certified public accountant to review documents,
and obtain affidavits. 12126112 Order, ECF No. 36. The court also ordered the Govemment "to
provide Plaintiff with the Texas Guaranteed Student Loan Corporation's Basic Program
Participation Agreement, Claim Payment Agreement, Rehabilitation Agreement, Reinsurance
Agreement, and, if the document exists, Voluntary Flexible Agreement." 12126112 Order, ECF
No. 36. In addition, the court ordered the Govemment "to provide Plaintiff with any studentloan related agreements or contracts within its possession between Plaintiffs school and lending
institutions." 12/26112 Order, ECF No. 36.
On January 16,2013, the Govemment filed a Notice Regarding Production of Documents
("1/16113 Gov't Notice"), stating that on January 15, 2013 the Govemment complied with the

December 26,2012 Order by providing Plaintiff with rhe TGSLC's Basic Program Participation
Agreement, Claim Payment Agreement, Rehabilitation Agreement, and Reinsurance Agreement.
The Govemment reported that "the Department of Education . . . does not maintain a 'Voluntary
Flexible Agreement' with the TGSLC," and that the Department of Education "does not possess
any other studentloan related agreements or contracts . . . between Plaintiffs school . . . and
lending institutions." l/16/13 Gov't Notice at 1.

On March 19,2013, Plaintiff submitted a Motion For Relief and five exhibits related to
communications between Plaintiff and the Department of Education, regarding discovery
requests during proceedings in the United States District Court for the Westem District of Texas.
Also on March 19,2013, Plaintiff submitted a Motion For Summary Judgment ("P1. S.J. Mot.").
On March 29,2013, the Govemment filed a Motion To Stay The Obligation To Respond
To Plaintiff s Motions For Relief And For Summary Judgment, which the court granted on April
2,2013. Despite the stay, on April 29,2013, Plaintiff submitted a Supplemental To Plaintiff s

Motion For Relief [and Plaintiff s] Motion For Summary Judgment and Plaintiff s Response To
Defendant's Motion To Suspend.

III.

DISCUSSION.

A.
Act.

Jurisdiction'

The jurisdiction ofthe United States Court of Federal Claims is established by the Tucker
See 28 U.S.C. $1491 (2006). The Tucker Act authorizes the court to "render judgment

upon any claim against the united States founded either upon the constitution, or any Act of
Congress or any regulation of an executive department, or upon any express or implied contract
wittrthe United States, or for liquidated or unliquidated damages in cases not sounding in tort."
28 U.S.C. $1a91(a)(1) (2006). The Tucker Act, however, is a 'Jurisdictional statute; it does not
create any substantive right enforceable against the United States for money damages. . . . [T]he
Act merely confers jurisdiction upon it whenever the substantive right exists." United
states v. Testan, 424 U.S. 392, 398 (1976). Therefore, a plaintiff must identifi and plead an
independent contractual relationship, constitutional provision, federal statute, or executive
ageniy regulation that provides a substantive right to money damages. See Fisher v. United
States,402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) ("The Tucker Act itself does not create a
substantive cause of action; in order to come within the jurisdictional reach and the waiver ofthe
Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to
money damages."). The burden of establishing jurisdiction falls on the plaintiff. See FWPBS,
Inc. v.. Dallas,493 U.S. 2l5,23l (1990) (holding that the burden is on the plaintiff to allege facts
sufficient to establish jurisdiction); see aiso RCFC 12(bXl)'

The July 18, 2011 Complaint's claim for a "taking" (Compl. 'lf 158) via the wage
gamishments imposed upon Plaintiff, that the court interprets as an alleged illegal exaction
.luirn, dld not actrue until September 13, 2005. The July 18, 2011 Complaint was filed within
the six-year statute of limitations with respect to this claim. See 28 U.S.C. $ 2501 (establishing a
six-year statute of limitations for claims adjudicated by the United States Court of Federal
claims). The July 18,2011 Complaint alleges that the debt on which the September 13,2005
Gamishment Hearing Decision was based is erroneous, because Plaintiff did not receive some of
the funds, and/or because they have already been re-paid. Compl .127. Fot these reasons, the
court has determined that it has jurisdiction to adjudicate the illegal exaction claim alleged in the
July 1 8, 201 1 Complaint. See llagstaff VI, 105 Fed. Cl' at 1 1 3.

B.

Standing.

The United States Supreme Court has held that "the question of standing is whether the
litigant is entitled to have the court decide the merits of the dispute or of particular issues."
With v. Seldin, 422 U.S. 490, 498 (1975). Standing must be determined "as of the
commencement of suit." Rorhe Dev. Corp. v. Dep't of Def., 413 F .3d 1327 , 1334 (Fed' Cir'
2005). The party invoking federal jurisdiction bears the burden of establishing standing. See
Lujan v. Defenders of llritcllife, 504 u.s. 555, 560-61 (1992). Specifically, "a plaintiff must
shlw [that] it has sulfered an'injury in fact' that is . . . concrete and particularized and. . . actual
or imminent, not conjectural or hypothetical; . . . the injury is fairly traceable to the challenged

action ofthe defendant; and . . . it is likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc.,
528 U.S. 167, 180-81 (2000).
The July 18, 201I Complaint alleges that Plaintiff has suffered an "injury in fact" that is
concrete, particularized, and traceable to illegal exaction via wage gamishments imposed upon
Plaintiff. Compl. 158. Money damages would redress this injury. Compl. 165.
Accordingly, Plaintiff has standing to seek an adjudication of the illegal exaction claim alleged
in the July 18, 201 1 Complaint.

fl

C.

!l

Standard For Motion For Summary Judgment.

On a motion for summary judgment, if there is no genuine issue as to any material fact,
the moving party is entitled to judgment as a matter of law. See Yant v. United Stales, 588 F.3d
1369, l37l (Fed. Cir. 2009) ("Summary judgment is appropriate where there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law."); see also
RCFC 56(c). Only genuine disputes as to material facts that might affect the outcome of the suit
will preclude entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 -48 (1986) ("As to materiality, the substantive law will identify which facts are material.
Only disputes over lacts that might affect the outcome of the suit under the goveming law will
properly preclude the entry of summary judgment. Factual disputes that are inelevant or
unnecessary will not be counted. . . . That is, while the materiality determination rests on the
substantive law, it is the substantive law's identification of which facts are critical and which
facts are irrelevant that govems.").7 The existence of "some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgmentf.]" Id. at
247-48. Therefore, to avoid summary judgment, the nonmoving parly must put forth evidence
suificient for a reasonable fact-finder to return a verdict for that oartv. Id. at248-50.
The moving party bears the initial burden of demo*t."tir; the absence of any genuine
issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (holding the
moving party must meet its burden "by 'showing'-that is, pointing out to the [trial court]---that
there is an absence of evidence to support the nonmoving party's case"); see also Riley &
Ephriam Constr. Co. v. United Stares,408 F.3d 1369,1371 (Fed. Cir. 2005) ("The moving party
bears the burden of demonstrating the absence of a genuine issue of material fact."). Once the
moving party demonstrates the absence of a genuine issue of material fact, however, the burden
shifts to the nonmoving party to show the existence of a genuine issue for Irial. See M.
Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) ("In the
[United States] Court of Federal Claims, once the moving party comes forward with evidence
satisfying its initial burden on a motion for summary judgment, the party opposing the motion
must present evidence creating a genuine issue of material fact.").
7

Federal Rule of Civil Procedure 56(c) is identical to RCFC 56(c). In such situatrons,
our appellate court "examines the general federal law interpreting the corresponding Federal
Rule of Civil Procedure as persuasive." Ilheeler v. United States, 11 F.3d 156, 157 n.1 (Fed.
Cir. 1993) (citing Widdoss v. Sec'y of the Dep't of Health & Human Servs., 989 F.2d I170, 1178
n.7 (Fed. Cir. 1993)).

"[O]n summary judgment the inferences to be drawn from the underlying facts . . ' must
be viewed in the light most favorable to the party opposing the motion." Matsushitq Elec. Indus.
Co. v, Zenith Radio Corp.,475 U.S. 574,587 (1987). "[T]he determination of whether a given
factual dispute requires submission to a jury must be guided by the substantive evidentiary
standards that apply to the case." Anderson,477 U.S. at255-

D.

Standard Of Review For Pro Se Litigants.

The pleadings of a pro se plaintiff are held to a less stringent standard than those of
litigants represented by counsel. See Hughes v. Rowe,449 U.S. 5, 9 (1980) (holding ihat pto se
complaints, "however inartfully pleaded are held to less stringent standards than formal
pleadings drafted by lawyers" (citations and intemal quotation marks omitted)). It has been the
tradition of this court to examine the record "to see if a lpro se] plaintiff has a cause of action
somewhere displayed." Rudererv. United States, 412 F.2d 1285, 1292 (Ct. Cl. 1969).
Nevertheless, while the court may excuse ambiguities in a pro se plaintiff s complaint, the court
"does not excuse [a complaint's] failures." Henke v. United States,60 F.3d795,799 (Fed. Cir.
1993).

E.

The Government's August 9,2012 Motion For Summary Judgment'

1.

The Government's Argument.

The Govemment argues that the six promissory notes that Plaintiff signed are valid and
held by the Department of Education. Gov't S.J. Mot. at 7-8 (citing Scaniffe Decl. flfl 32-33).
When Plaintiff defaulted on these loans, the originating lender, Bank One, assigned them to the
originating guaranty agency, TGSLC, which, in tum, assigned them to the Department of
Education. Gov't S.J. Mot. at 8 (citing Scaniffe Decl. 'lffl 39-40). Although the Govemment
concedes that evidence supports Plaintiff s contention that she was asked to sign a duplicate
promissory note, "nothing in the record indicates that [the Department of] Education is collecting
on the duplicate amount." Gov't S.J. Mot. at 7 (citing Scaniffe Decl. lJfl 34,36). Furthermore,
the loan balance history refutes Plaintiff s assertions that she has paid some of the amount that
the Department of Education claims she owes. Gov't S.J. Mot. at 8 (citing Scaniffe Decl. fl 45).
A partial manual recalculation of Plaintiff s loan balance shows that the loan balance is correct.
Gov't S.J. Mot. at 9 (citing Scaniffe Decl. ufl 46-65). Plaintiff has made no voluntary payments
to the Department of Education. Gov't S.J. Mot. at 10.

In addition, the Department of Education acted legally in gamishing Plaintiffs wages,
and Plaintiff was afforded due process. Gov't S.J. Mot. at 10-13. Administrative wage
samishment is authorized under 31 U.S.C. 0 3720D.o Gov't S.J. Mot. at 11. There is no time
" Section 3720D(a) provides. in relevant part:

[T]he head of an executive, judicial, or legislative agency that administers

a

program that gives rise to a delinquent nontax debt owed to the United States by
an individual may in accordance with this section gamish the disposable pay of

l0

limit on initiating the collection of student loan debts through gamishment. Gov't S.J. Mot. at 11
(citing 20 U.S.C. $ 1091a(a)(2) ("[N]o limitation shall terminate the period within which ...
gamishment . . . may be initated[.]"). The Department of "Education notified [Plaintiff] on June
1'/, 2005 that her wages would be garnished if she failed to enter into a payrnent agreement with
the United States." Gov't Mot. S.J. at 12 (citing Scaniffe Decl. fl 67; 31 U.S.C. $ 3720A(bX1)
(requiring notification before garnishment)). Plaintiff requested and received a written records
hearing. Gov't S.J. Mot. at 13 (citing Scaniffe Decl. at fltf 59-60; IYagstaff Vl,59 Fed. Cl. at 105
n.7 ("Plaintiff explicitly requested a written hearing and abjured her right to request an in-person
hearing.")). The Department of Education responded to Plaintiffs objections in a September 3,
2005 letter. Scaniffe Decl. Att. NN (Gamishment Hearing Decision). Gamishment was ordered
on October 4,2005. Scaniffe Decl.l72.

a.

The Plaintiff

s Response.

Plaintiff responds that the Govemment "is mandated by statutory law to produce the
original unaltered alleged contract." Pl. S.J. Resp. at 1 1. Plaintiff also asserts that the United
States "unequivocally never lent one cent to Plaintiff." Pl. S.J. Resp. at 11. However, rather
than presenting evidence to substantiate her claim of illegal exaction, Plaintiff relies on what she
asserts is the Govemment's lack of evidence that the promissory notes are valid and held by the
Department of Education, that she received due process before her wages were gamished, and
that the amount due was correct. Pl. S.J. Resp. at Il-20.

b.

The Court's Resolution,

To prevail on her illegal exaction claim, Plaintiff must prove by a preponderance of the
evidence that money was "'improperly paid, exacted, or taken from the claimant in contravention
of the Constitution, a statute, or a regulation. "' Norman v. United States, 429 F.3d 1081, 1095
(Fed. Cir. 2005) (quoting Eastport S.S. Corp. v. United States,372 F.2d 1002, 1007 (Ct. Cl.
1967). With that standard in mind, the court's May 17,2012 Memorandum Opinion And Order
wamed Plaintiffthat she needed to adduce evidence to support her illegal exaction claim.

Plaintiff s July 18, 2011 Complaint will not survive a properly supported motion
for summary judgment unless she submits evidence that the six promissory notes
signed in 1991-93 ue legally invalid, or that the Department of Education was not
properly assigned the right to collect on these notes. . . . The court's review of
the evidence Plaintiff presented in previous proceedings and in the July 18, 2011
Complaint suggests that the existing evidence would not be sufficient to prevent a
grant of summary judgment in the Govemment's favor at this point.

l{agstalf VI,

105 Fed.

Cl. at 1 13.

the individual to collect the amount owed, if the individual is not currently
making required repayment in accordance with any agreement between the
agency head and the individual.
31 U.S.C. $ 3720D(a).

ll

Since the court issued that waming, the court has ordered the Govemment to produce all
relevant documents in its possession and granted Plaintiff s request for time to hire a certified

public accountant to review the Govemment's claims. 12126112 Order, ECF No. 36 ("The
appropriate time for such a review, and the filing ofany affidavit resulting from it, is before the
court rules on the Govemment's August 9, 2012 Motion For Summary Judgment.").
Nonetheless, Plaintiff has not adduced additional evidence that the six promissory notes
signed in 199l-1993 are legally invalid, or that the Department of Education was not properly
assigned the right to collect on these notes. Although Plaintiff submitted twenty-nine exhibits to
her March 19, 2013 Motion For Summary Judgment, none support her contentions that the
Department of Education committed an illegal exaction when it gamished her wages. Pl. S.J.
Mot. Exs. l-29. ln contrast, the Govemment has adduced evidence that the Department of
Education has collected on conectly calculated debts from valid promissory notes in accordance
with statutory provisions.

The Department of Education filed copies of the six promissory notes and made the
originals available for Plaintiff s inspection. Scaniffe Decl. fl 42 & Attachments I, N, Q, T, W,
Z. Although Plaintiffs September 7, 2012 Response demanded "the original unaltered alleged
contract" of her student loans, the Rules of the United States Court of Federal Claims allow the
Govemment to give Plaintiff access to inspect the originals of any requested documents. See
RCFC 3a(a)(1) (allowing a party to request that another party "produce and permit the requesting
party or its representative to inspect, [or] copy" documents). There also is no requirement that
the Govemment submit the originals as evidence. Fed. R. Evid. 902(4) ("A copy of an official
record----or a copy of a document that was recorded or filed in a public office as authorized by
law-[is self-authenticating] if the copy is certified as correct by: (A) the custodian or another
person authorized to make the certification; or (B) a certificate that complies with Rule 902(1),
(2), or (3), a federal statute, or a rule prescribed by the Supreme Court."). Plaintiff has failed to
produce any document or affidavit that calls into question the validity of any of the six
promrssory notes.

Nor has Plaintiff adduced any evidence that calls into question the veracity of the loan
balance amount. At the time wage garnishment payments were initiated, the imposition of
collection fees and interest resulted in a loan balance that was substantially larger than the
original loan amount and, because of these fees, the gamishments made only small reductions in
the principal owed. Pl. Mot. Exs. at 60-65. While this might have caused Plaintiff to suspect
unlawfirl behavior on the part of the Govemment (Pl. Mot. at 20), she has not adduced any
evidence that the Govemment's assessments are incorrect, and Plaintiff received proper notice of
both her loan balance and the fees to be assessed. Scanift'e Decl. !f!f 46-66 (summarizing the
loans, the assessment of interest and fees, verification of balance through manual recalculation,
assignment to the Department of Education, and showing notice of garnishment to Plaintiff on
the promissory notes). Although Plaintiff argues that the Department of Education was
unlawfully collecting on a duplicate promissory note, the Government has adduced evidence that
it has not collected on the duplicate note that Plaintiff signed. Scaniffe Decl. fl'lf 34,36. ln
contrast, Plaintiff has adduced evidence that she signed two copies of the promissory note, but

t2

she has not adduced evidence that the Government has collected on both

copies. Pl. S.J. Mot.

Ex. i9.
The Department of Education has the authority to collect on Plaintiffs defaulted loans.
31 U.S.C. $ 3i20D(a) (authorizing garnishment of disposable pay with proper notice to the
debtor, wheie the required puy-"nir are not being made); Scaniffe DecL I 42 (stating that the
that the
loans were assigned io the bepartment of Education). There is no evidence to suggest
Govemment behaved unlawfully, and the Govemment supported its claim that it has followed
intent
the applicable due process requirements. See 31 U.S.C. $ 3720A(b) (requiring notice of
(notice of
and opportunity foi review before utilizing wage gamishment); Scaniffe Decl. fl 67
intent to collect was given on June 17,2005).

BecausetheGovemmenthasproperlysupporteditsassertionthatthepromissorynotes
to collect on those
are valid, and that the Department oi Educutio'' ucted within its authority
judgment, pursuant- to. Rule 56(c)' See
notes, the court must grarrt the Govemment summary
with due regard . . '
RCFC 56(c); see also ielotex,477 U.S. at 327 ("Rule 56 must be construed
to demonstrate in
for the righis of persons opposing [factually insufficient] claims and defenses
no factual
ih".unn"r. p.ouid.d Uy tiri nuii,'prior to trial, that the claims and defenses have
basis.").

N.

CONCLUSION.

2012 Motion for Summary
For the reasons discussed herein, the Govemment's August 9,
19' 2013 Motion For Summary
Judgment is granted. See RCFC 56(c)' Plaintiff s March
judgment in favor of the
is iroot. The Clerk of thl.Court is directed to enter

iffi;;;i

Govemment.

IT IS SO ORDERED.

tJ