Davidson v. Kane
Filing
40
MEMORANDUM OPINION AND ORDER: IT IS ORDERED that Pla's 37 MOTION is DENIED. Signed by Judge William O. Bertelsman on May 5, 2015.(MWZ) cc: COR (Pla via U.S. Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
AT LEXINGTON
CIVIL ACTION NO. 5:11-cv-309 (WOB)
CLIFTON B. DAVIDSON
PLAINTIFF
VS.
BUREAU OF PRISONS, ET AL.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This
matter
is
before
the
Court
on
Plaintiff’s
enforcement of a previous court order, Doc. 37.
not filed a response.
motion
for
The Government has
After reviewing Plaintiff’s motion, the Court
has determined that oral argument is unnecessary.
For the following
reasons, the Court denies the motion.
I. FACTS1
On March 19, 2013, this Court entered a Memorandum Opinion and
Order denying Plaintiff’s Rule 60(b)(6) motion for relief from the
Court’s prior entry of summary judgment in favor of the Bureau of
Prisons (“BOP”).
Doc. 30; see also Doc. 24.
Despite the fact that
the order denied Plaintiff relief under Rule 60, this Court did issue
the following directive to the BOP:
“Within 45 days, the BOP shall
pay Davidson the sum of $350.00 and file a Notice in the record
informing the Court that it has done so.”
Doc. 30, at 13.
In compliance with the Court’s order, on May 2, 2013, Assistant
United States Attorney (“AUSA”) Andrew Sparks filed a Notice in the
1
Because the Court recounted in detail the factual background of this
case when ruling on Plaintiff’s Rule 60(b)(6) motion in March of 2013,
Doc. 30, this Order will discuss only the facts relevant to resolution of the
instant motion.
record that stated as follows:
“Pursuant to the Court’s Order of
March 19, 2013 [Record No. 30] the undersigned has been advised that
on May 2, 2013, the Bureau of Prisoners certified $350 for payment to
the Plaintiff.
This amount will be processed into the Plaintiff’s
inmate account.”
But Plaintiff claims that this $350 sum never made
it to his inmate account.
Doc. 37, at 2.
On May 20, 2013, Plaintiff filed a Notice with the Court alleging
that the BOP had not complied with the Court’s previous order because
Plaintiff had not received the money owed him.
Doc. 32.
Plaintiff
states that he then sent four (4) letters to the Financial Litigation
Unit at the U.S. Attorney’s Office in Springfield, IL, only two of
which received responses.
Attached
to
the
Doc. 37, at 3.
motion
is
the
Plaintiff’s letter of September 16, 2014.
Government’s
Doc. 37-5.
response
to
In that letter,
the Government informed Plaintiff that the U.S. Attorney’s Office had
used the $350 payment from BOP as an administrative offset towards the
restitution that Plaintiff owes from a prior criminal conviction in
federal court.
Id.
After receiving the Government’s response and then attempting to
communicate directly with AUSA Sharp about this issue, Plaintiff filed
the instant motion on March 27, 2015.
Doc. 37, at 3.
Importantly, Plaintiff also attached to his motion a letter that
he received from the Department of Justice (“DOJ”) in January of 2011,
entitled “U.S. Department of Justice Administrative Offset Notice.”
Doc. 37-2, at 1.
In that letter, DOJ informed Plaintiff that it had
the right “to reduce or withhold” any eligible payment to him for the
2
purposes of satisfying the restitution that he owes as a result of his
criminal conviction.
Id.
The letter further stated:
To avoid referral of your debt to the Treasury Offset
Program, within 60 calendar days from the date of this
notice you must: (1) pay your debt in full; (2) enter into
a repayment agreement; or (3) present evidence that all or
part of the criminal or the civil judgment debt is not past
due or that the judgment debt has been stayed or satisfied.
. . .
If you fail to take any of the above steps within the 60
day time period, the Department of Justice will refer the
debt to the Department of the Treasury and any and all
payments due to you from the Federal government will be
offset to pay the amount of your judgment debt.
Id. at 1-2.
II. ANALYSIS
The Court construes Plaintiff’s motion as a challenge to the
Government’s use of the Treasury Offset Program with respect to the
$350 payment this Court directed BOP to make to him.
three arguments in support of his motion:
Plaintiff raises
(1) that he already had a
“repayment agreement” with DOJ; (2) that the authority on which the
U.S. Attorney’s Office relied speaks in terms of “substantial” assets,
which does not include a settlement payment for $350; and (3) that the
Government’s action expressly violated the order of this Court and
what
the
payment.
U.S.
Attorney’s
Office
stated
would
happen
to
the
$350
Doc. 37, at 5.
The Government established the Treasury Offset Program pursuant
to 31 U.S.C. § 3716 and 31 C.F.R. § 285.5.
Those provisions of
federal law permit “the head of an executive, judicial, or legislative
agency” to collect debts owed to the United States “by administrative
offset” after following certain procedures.
3
31 U.S.C. § 3716(a).
One
of those procedures includes giving the debtor “an opportunity to make
a written agreement with the head of the agency to repay the amount of
the claim.”
Id. § 3716(a)(4) (emphasis added).2
Plaintiff
before
this
argues
Court
that
he
ordered
had
BOP
a
to
repayment
pay
him
agreement
$350,
with
DOJ
citing
his
participation in the Inmate Fiscal Responsibility Program (“IFRP”), 28
C.F.R. § 545.10-11.
But Plaintiff’s participation in IFRP, a BOP
program, does not establish that he had a repayment agreement with the
head
of
the
U.S.
Attorney’s
Office
for
the
Central
District
of
Illinois covering the amount that he owes in restitution.
The IFRP,
by
and
its
terms,
is
not
an
agreement
between
Plaintiff
DOJ.
Plaintiff’s first argument is thus unavailing.
Plaintiff next argues that the provision of law on which the
Government relied in its response to his administrative inquiry, 18
U.S.C. § 3664(n), does not permit the Government to offset the $350
this Court ordered BOP to pay him because $350 is not a “substantial”
sum within the meaning of the statute.
“substantial
settlement,
resources
or
incarceration,”
owed.”
other
shall
from
any
source,
applied
Id. (emphasis added).
including
[received]
judgment,
be
But that statute states that
during
“to
any
restitution
inheritance,
a
.
period
.
.
of
still
Plaintiff’s argument that $350 does not
constitute “substantial” resources is thus belied by the language of
2
The regulations implementing § 3716 include “subagency” within the
definition “agency.”
31 C.F.R. § 285.5(b).
The Court therefore finds that
the United States Attorney’s Office for the Central District of Illinois, the
relevant “agency,” may participate in the Treasury Offset Program.
4
the provision, which expressly includes any judgment.
Plaintiff’s
second argument therefore is also unavailing.
Plaintiff
finally
argues
that
the
Government’s
use
of
the
Treasury Offset Program on these facts violates the previous order of
this Court.
The Court disagrees.
The prior order of the Court
directed the BOP to pay Plaintiff $350.
The BOP complied with this
order,
the
as
evidenced
by
the
fact
that
Treasury
Department’s
Financial Management Service sent Plaintiff a letter informing him
that “[it] applied all or part of [his] Federal payment to a debt.”
Doc. 37-4.
The fact that another provision of federal law authorized
the Government to apply this payment to Plaintiff’s restitution does
not result in a violation of this Court’s order.
III. CONCLUSION
For the foregoing reasons, the Court denies Plaintiff’s motion
for enforcement of a previous court order.
Therefore, the Court being advised,
IT
IS
ORDERED
THAT
Plaintiff’s
hereby, denied.
This 5th day of May, 2015.
5
motion,
Doc.
37,
be,
and
is
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