Collin v. Commissioner of Social Security Administration

Filing 12

Opinion and Order. Respondent's Motion to Dismiss (Related doc # 9 ) is granted. Judge Christopher A. Boyko on 5/23/2017. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

VICTORIA G. COLLIN,
Petitioner,
Vs.
NANCY A. BERRYHILL,
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Respondent.

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CASE NO.1:16CV2508
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter comes before the Court upon the Motion of Nancy A. Berryhill, acting
commissioner of the Social Security Administration (“SSA”), to dismiss Petitioner’s request for
Writ of Mandamus for lack of subject-matter jurisdiction pursuant to Fed. R. Civ P. 12(b)(1).
(ECF # 9). For the following reasons, the Respondent’s Motion to Dismiss is GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner Victoria G. Collin filed this petition for Writ of Mandamus on February 15,
2017, against Respondent (“the Government”) Nancy A. Berryhill1, the acting Commissioner of
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Replacing previous SSA commissioner Carolyn W. Colvin as Respondent pursuant to
Fed. R. Civ P. 25.

Social Security, to compel the Government to: (1) reinstate Social Security garnishments
(“garnishments”) of James R. Jacobs and (2) issue payments for amounts allegedly “due and
owed” by the Government. Petitioner’s request for (1) reinstatement is no longer at issue
because garnishments resumed in February 2017. On February 15, 2017, the Defendant filed a
Motion to Dismiss the claim (2) of payments “due and owed.”
Petitioner obtained a Cuyahoga County Court order to garnish the Social Security
benefits of her ex-husband, Mr. Jacobs, as child support authorized by 42 U.S.C. § 659.
Payment began in September 2014 and stopped in October 2015. On October 8, 2015, the
Government issued notification to Petitioner that it had received a “stop order” and garnishment
payments would cease. Neither the Petitioner, nor Petitioner’s representative issued a “stop
order” request to cease garnishments by the Government. In December 2015, Petitioner sent a
letter to the Government, requesting (1) reinstatement and (2) retroactive garnishments due. The
Government resumed payment of garnishments in January 2017. Petitioner, having exhausted
all other avenues for relief and with no other adequate remedy at law, requests a Writ of
Mandamus to compel the Government to pay those garnishments uncollected from October 2015
through January 2017.
II. LAW AND ANALYSIS
A. Standard of Review
In deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must accept as
true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89,
93-94 (2007). The court need not, however, accept conclusions of law as true:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief..”
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As the Court held in [Bell Atlantic v.] Twombly, 550 U.S. 544, 127 S. Ct. 1955
[(2007)], the pleading standard Rule 8 announces does not require “detailed
factual allegations,” but it demands more than an unadorned,
the-Defendant-unlawfully-harmed-me accusation. Id. at 555. A pleading that
offers “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555. Nor does a complaint suffice if it tenders
“naked assertion[s]” devoid of “further factual enhancement.” Id. at 557.

To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. A
claim has facial plausibility when the Petitioner pleads factual content that allows the
court to draw the reasonable inference that the Defendant is liable for the misconduct
alleged. Id. at 556. The plausibility standard is not akin to a “probability requirement,”
but it asks for more than a sheer possibility that a Defendant has acted unlawfully. Id.
Where a complaint pleads facts that are “merely consistent with” a Defendant’s liability,
it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”
Id. at 557.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
According to the Sixth Circuit, the standard described in Twombly and Iqbal “obliges a
pleader to amplify a claim with some factual allegations in those contexts where such
amplification is needed to render the claim plausible.” Weisbarth v. Geauga Park Dist., 499
F.3d 538, 541 (6th Cir. 2007) (quoting Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007)).
That is, “Iqbal interpreted Twombly to require more concrete allegations only in those instances
in which the complaint, on its face, does not otherwise set forth a plausible claim for relief.”
Weisbarth, 499 F.3d at 542. A complaint should be dismissed when it fails to allege “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

B. Article III Standing
The Constitution limits federal court jurisdiction to “cases” or “controversies.” U.S.

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CONST. art. III, § 2, cl. 1. One aspect of case-or-controversy is standing to sue. Arizonans for
Official English v. Arizona, 520 U.S. 43, 64 (1997), citing Northeastern Fla. Chapter, Assc. Gen.
Contractors of America v. Jacksonville, 508 U.S. 656, 663-664 (1993). To have standing, a
petitioner must show: (1) they have suffered an injury in fact, which is a violation of a “legally
protected interest which is (a) concrete and particularized and (b) actual or imminent and not just
hypothetical;” (2) a causal connection between the injury and defendant’s conduct; and (3) a
favorable decision will likely redress the issue. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992).
Petitioner’s request for reinstatement of garnishments by the SSA has been reinstated and
she no longer has an injury that requires remedy. Petitioner’s first cause of action is moot.
C. Subject-Matter Jurisdiction
Federal courts are courts of limited jurisdiction. McCormick v. Sullivant, 23 U.S. 192,
199 (1825). A Federal Rules of Civil Procedure 12(b)(1) motion to dismiss on the basis of
jurisdiction may be sustained by a facial or factual attack. United States v. Ritchie, 15 F.3d 592,
598 (6th Cir. 1994). In such a motion, the Petitioner has the burden to prove subject-matter
jurisdiction exists. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 182
(1936). A facial attack “is a challenge to the sufficiency of the pleading itself” and a court must
“take the material allegations of the pleading as true and construed in a light most favorable to
the nonmoving party.” Ritchie, 15 F3d. at 598. Conversely, a factual attack is “a challenge to
the factual existence of subject matter jurisdiction.” Id. Factual attacks require no presumptions
of truthfulness for either party and the court may consider evidence outside the complaint to
determine its authority to hear the case. Id.; Ohio Nat’l Life Ins. Co v. United States, 922 F.2d

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320, 325 (6th Cir. 1990). Under a facial challenge, the non-moving party “can survive the
motion by showing any arguable basis in law for the claim made.” Musson Theatrical, Inc. v.
Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir.1996).
D. 42 U.S.C. § 659 Standing
The SSA is an extension of the Federal Government and entitled to the protections of
sovereign immunity. See, e.g., Whittle v. United States, 7 F.3d 1259,1262 (6th Cir. 1993). The
United States, as a sovereign entity, “is immune from suit save as it consents to be sued.” United
States v. Sherwood, 213 U.S. 584 (1941). Any waiver of this sovereign immunity must be
unequivocal, explicit, and may not be implied. United States v. Mitchell, 463 U.S. 206, 212
(1980). Any ambiguity will be strictly construed in favor of the sovereign. United States v.
Testan, 424 U.S. 392, 399 (1976).
While 42 U.S.C. § 659 does grant a limited waiver of sovereign immunity, “it merely
removes the government's immunity from a garnishment proceeding authorized under state law
without conferring jurisdiction upon the federal courts to entertain such actions.” Morrison v.
Morrison, 408 F.Supp. 315, 316 (N.D.Tex.1976); see also Stubli v. Principi, 362 F.2d 949, 951
(N.D.Ohio 2005). 5 CFR § 581.305(e)(2) protects against the Government’s liability for failure
to comply with the legal process and was passed with the intention of protecting against claims
against the Government that stemmed from 42 U.S.C. § 659 and its waiver of sovereign
immunity.2 See Jacobson v. United States 129 A.3d 1103 (N.J. Super. Ct. App. Div.,. 2011)
citing 62 Fed. Reg. 31763 (June 11, 1997). The Government does not waive sovereign immunity

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This was in part in response to cases which exposed the Government to liability where it failed
to collect garnishments stemming from, for example, alimony or child support judgments. See
generally DeTienne v. DeTienne, 815 F.Supp. 394 (D.Kan.1993)
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when it submits to a Garnishment Order. Stubli 362 at 951. Furthermore, garnishment is purely a
creature of state law. Harris v. Balk, 198 U.S. 215, 226 (1905). Consequently, the Government
cannot be sued for money damages arising from garnishments under 42 U.S.C. § 659. Stubli 362
at 951.
The Petitioner’s argument appears to proceed on the theory that because there had been
previous delays (the Government sent a check in May 2015 for amounts garnished from
November 2014 to April 2015), either the Government’s failure to send garnishments for the
period of November 2015 through January 2015 represents a similar delay or that the
Government acknowledged the “due and owed” payments. Ostensibly, Petitioner contends that
she is essentially requesting a check that never came or, alternatively, that the Government
implicitly created a duty for itself “by the recognition that payments were due.” In the
Petitioner’s view, this would take her request out of the realm of money damages. However, this
is demonstrably false. The Government issued a “stop payment” notice and thus it was a failure
to withhold rather than a ‘check lost in the mail.’ The Petitioner herself recognized this fact in
her original request that the garnishments be “reinstated.” Consequently, the Petitioner’s suit is
for damages against the Government, not for a release of payment. Equally untenable is
Petitioner’s argument that the Government waived sovereign immunity when it recognized
payments were due. The Government cannot waive its sovereign immunity implicitly. King, 395
U.S. at 89.
The only waiver of sovereign immunity with respect to 42 U.S.C. § 659 was created to
“simply authorize...federal agencies to honor state court garnishment orders.” Stubli 362 F.
Supp. 2d at 951. 5 C.F.R. § 581.305 is specifically amended to protect the Government from

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money damages liability arising from 42 U.S.C. § 659. See Jacobson 129 at 1110 quoting 62
Fed. Reg. 31763 (June 11, 1997). The Government has retained its sovereign immunity and
there is no federal cause of action. Therefore, this court lacks subject-matter jurisdiction over
Petitioner’s claim of funds “due and owing” over the period in question.
E. Writ of Mandamus
“Mandamus is an extraordinary remedy, and it will only be granted when the Petitioner
shows that its right to issuance of the writ is clear and indisputable. Only exceptional
circumstances amounting to a judicial usurpation of power will justify the invocation of this
extraordinary remedy.” Armco, Inc. v. Usw, AFL-CIO, Local 169, 280 F.3d 669, 683 (6th Cir.
2002) (citing In re Bendectin Products Liability Litigation, 749 F.2d 300, 303 (6th Cir. 1984));
see also Kerr v. United States District Court for the Northern District of California, 426 U.S.
394, 402 (1976). The Petitioner has the burden of showing that mandamus is the proper remedy
and must establish a “clear and indisputable right” to the relief requested. Will v. Calvert Fire
Ins. Co., 437 U.S. 655, 661-62 (1978). “Mandamus issues to compel an officer to perform a
purely ministerial duty. It cannot be used to compel or control a duty in the discharge of which
by law he is given discretion.” Work v. United States ex rel. Rives, 267 U.S. 175, 177 (1925).
“The general principle which governs proceedings by mandamus is, that whatever can be done
without the employment of that extraordinary writ, may not be done with it. It lies only when
there is practically no other remedy.” Helstoski v. Meanor, 442 U.S. 500, 505 (1979), quoting
Ex parte Rowland, 104 U.S. 604, 617 (1882).
The garnishment actions or lack thereof by the SSA do not constitute a mandatory or
ministerial act. The SSA does not owe a duty to Petitioner. See 28 U.S.C. § 1361; 5 C.F.R. §

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581.305(e)(2). Nor can Petitioner show that she has met the threshold for right of relief and
therefore fails to state a claim upon which she is entitled to relief. Fed. R. Civ P. 12(b)(6).
III. CONCLUSION
For the foregoing reasons, Respondent’s Motion to Dismiss is GRANTED.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: May 23, 2017

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