UNITED STATES OF AMERICA v. DEUERLING
Filing
38
ORDER granting 33 Plaintiff's and Third Party Defendants' Motion to Dismiss Defendant's Amended Counterclaim. Counts I, II, III, VI and VII of Defendant's Amended Counterclaim are dismissed. Signed by Judge Alan N. Bloch on 9/28/2016. (lwp)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MELISSA A. DEUERLING,
Defendant, Counterclaimant,
and Third Party Plaintiff,
v.
G.C. SERVICES, L.P., et al.,
Third Party Defendants.
Civil No. 14-642
ORDER
AND NOW, this 28th day of September, 2016, in consideration of the Motion to Dismiss
Defendant’ s Amended Counterclaim (Doc. No. 33) and memorandum in support thereof (Doc.
No. 34) filed in the above-captioned matter by Plaintiff United States of America and Third Party
Defendants United States Department of Justice, United States Department of Treasury, and
United States Department of Education (“the Government”), on December 10, 2015, and in
further consideration of Defendant Melissa A. Deuerling’s brief in opposition thereto (Doc. No.
37), filed in the above-captioned matter on February 17, 2016,
IT IS HEREBY ORDERED that, for the reasons set forth herein, Plaintiff’s and Third
Party Defendants’ Motion is GRANTED. IT IS FURTHER ORDERED, pursuant to Federal
1
Rules of Civil Procedure 12(b)(1) and 12(b)(6), that Counts I, II, III, VI, and VII of the Amended
Counterclaim/Cross Claim and Third Party Complaint are hereby dismissed.
I. Background
In this action, the United States seeks to collect on student loan debts allegedly incurred
by Defendant and owed to the United States. The Amended Complaint contends, quite simply,
that Defendant executed a series of promissory notes to secure student loans, and that Defendant
defaulted on her obligations and is now indebted to the United States as reinsurer of the loans in
the amount of $23,417.93, plus a filing fee, interest, and costs. (Doc. No. 8). In response to the
Amended Complaint, Defendant originally filed a Motion to Dismiss (Doc. No. 11), which the
Court denied. Subsequently, Defendant filed an “Answer to Amended Complaint, and
Counterclaim.” (Doc. No. 20). In response, the Government filed a Motion to Dismiss
Defendant’s Counterclaims. (Doc. No. 22).
Next, rather than filing a brief in opposition to the Government’s motion, Defendant filed
a Third Party Complaint. (Doc. No. 24). Although Defendant entitled her filing a “Third Party
Complaint,” the Court noted that it was essentially an amended pleading that elaborated on her
previously filed “Answer to Amended Complaint, and Counterclaim.” The Court thus declared
the Government’s Motion to Dismiss moot, since it addressed what was no longer the most
recent pleading, and ordered the Government to respond to Defendant’s counterclaims contained
in the Third Party Complaint. (Doc. No. 25). In response, the Government, once again, filed a
Motion to Dismiss Defendant’s Counterclaim (Doc. No. 26), to which the Court ordered
Defendant to file a response. Again, rather than filing a brief in response to the Government’s
motion, Defendant filed a new pleading, entitled “Amended Counterclaim/Cross Claim and
Third Party Complaint” (Doc. No. 31), which, after several incarnations, now includes claims
2
under the Federal Tort Claims Act, the Fair Debt Collection Practices Act, and the Privacy Act.
The Court, once again, denied the Government’s most recent Motion to Dismiss and ordered the
Government to file a response to the claims in the Amended Counterclaim/Cross Claim and
Third Party Complaint (“Amended Counterclaim”). (Doc. No. 32).
On December 10, 2015, the Government filed Plaintiff’s and Third Party Defendants’
Motion to Dismiss Defendant’s Amended Counterclaim, which is the motion that is currently
before the Court.
II. Legal Analysis
A. Claim Under the Federal Tort Claims Act
The Government asserts, first, that Defendant’s claim against the United States under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., is barred by the doctrine of
sovereign immunity. As a general rule, the United States and its agencies are immune from suit
unless Congress has expressly provided consent to be sued. United States v. Mitchell, 445 U.S.
535, 538 (1980). “Absent a waiver, sovereign immunity shields the United States and its
agencies . . . from suit.” Williams v. U.S. Dist. Ct. for D.N.J., 455 Fed. Appx. 142, 143 (3d Cir.
2011). Moreover, a “waiver of sovereign immunity ‘cannot be implied but must be
unequivocally expressed.’” United States v. Mitchell, 445 U.S. at 538 (quoting United States v.
King, 395 U.S. 1, 4 (1969)). The burden of persuasion rests with the party arguing that the
government has waived sovereign immunity. See Koresko v. Solis, 2011 WL 5447435, at *8
(E.D. Pa. Nov. 10, 2011).
The FTCA creates a limited waiver of sovereign immunity in civil actions or claims for
monetary damages for certain tortious conduct, described as “injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or omission of any employee of
3
the Government while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.” 28 U.S.C. §§ 1346(b)(1), 2679(b)(1).
Although the FTCA provides a waiver of sovereign immunity for such conduct, it also requires
that—before a claimant can bring an action against the United States—he must first have
exhausted his administrative remedies by presenting “the claim to the appropriate Federal agency
and his claim shall have been finally denied.” 28 U.S.C. § 2675(a); Sanon v. Dep’t of Higher
Educ., 2010 WL 1049264, at *3 (E.D.N.Y. Mar. 18, 2010). This claim requirement is
jurisdictional and cannot be waived. See Keene Corp. v. United States, 700 F.2d 836, 841 (2d
Cir. 1983).
In the case at bar, however, Defendant has not alleged that she filed any such
administrative claim. Instead, she contends that her claim is not subject to the FTCA’s
prerequisite procedural requirements because her counterclaim is compulsory. (Doc. No. 37, at
2). While it is true that Section 2675(a) provides an exemption for counterclaims, Defendant’s
claim is not a counterclaim within the meaning of Federal Rule of Civil Procedure 13(d). See
Spawr v. United States, 796 F.2d 279, 281 (9th Cir. 1986). In defining compulsory
counterclaims, Rule 13(a)(1) states that, generally, “[a] pleading must state as a counterclaim any
claim that—at the time of its service—the pleader has against an opposing party if the claim . . .
arises out of the transaction or occurrence that is the subject matter of the opposing party’s
claim.” Rule 13(d) further provides that, although a defendant generally may assert a
counterclaim against a plaintiff, the right of a party to assert a counterclaim does not trump the
sovereign immunity of the United States. Thus, “[w]hen the United States institutes an action,
the defendant may assert only compulsory counterclaims.” Spawr, 796 F.2d at 281 (citing
4
Northridge Bank v. Comm’y Eye Care Ctr., 655 F.2d 832, 835-36 (7th Cir. 1981)). In fact,
“[c]ounterclaims under the F.T.C.A. have been permitted only when the principal action by the
United States was in tort and the counterclaim was compulsory in nature.” Id.
First, the Government’s action here is not based in tort, but is based in contract.
Specifically, the Government’s claim is based upon the terms of promissory notes that Defendant
allegedly executed when she took out student loans, whereas Defendant’s counterclaim
purportedly sounds in tort. Therefore, Defendant’s counterclaim does not fall under the
exemption cited by Defendant. See id.; United States v. Andre, 2012 WL 728737, at *2 (N.D.
Cal. Mar. 6, 2012).1
Second, Defendant’s claim is not a compulsory counterclaim, as she contends. Quite
simply, her claim does not arise “out of the transaction or occurrence that is the subject matter”
of the Government’s claim. Fed. R. Civ. Pro. 13(a)(1). In this case, the Government’s claim
arises from the loan transaction, discussed supra, in which, allegedly, Defendant agreed to
borrow money, money was disbursed, and Defendant failed to repay her loan. On the other
hand, Defendant’s counterclaim is wholly unrelated to the transaction that is the subject of the
Government’s claim, neither to the validity of those promissory notes, nor to any of the duties or
rights arising under those instruments. Instead, Defendant’s counterclaim seeks contribution,
indemnification, or a declaratory judgment based on facts related to a separate action to which
Defendant is not even a party.2 That case, United States ex rel. Washington v. Education
Defendant’s counterclaim is thus subject to procedural requirements, i.e., she is not
excused from the necessity of exhausting her administrative remedies before filing suit. See
Spawr, 796 F.2d at 281; Andre, 2012 WL 728737, at *2.
1
2
The Court notes that, although Defendant makes a claim in the alternative for declaratory
relief, such relief is not permitted under the FTCA. See Harrison v. Unites States, 329 Fed.
Appx. 179, 181 (10th Cir. 2009); Diaz-Bernal v. Myers, 758 F. Supp. 2d 106, 116-17 (D. Conn.
2010).
5
Management, LLC, No. 07-461 (W.D. Pa. filed Apr. 5, 2007), involves allegations that the
school which Defendant attended violated the False Claims Act by submitting false certifications
of compliance as to its eligibility to receive federal student funding. The Government’s claim
and Defendant’s counterclaim thus arise out of completely different “transactions or
occurences.” Accordingly, Defendant’s claim is not a compulsory counterclaim, and does not
fall under the exemption cited by Defendant.
Additionally, although Defendant contends, on the one hand, that she is excused from
having to exhaust her administrative remedies because she has filed a compulsory counterclaim,
she also asserts in her brief that her counterclaim, as drafted, technically seeks “indemnification
and contribution,” which courts have held generally fall within the FTCA’s waiver of sovereign
immunity. (Doc. No. 37, at 1). “Contribution,” however, is generally understood as “[t]he right
that gives one of several persons who are liable on a common debt the ability to recover ratably
from each of the others when that one person discharges the debt for the benefit of all.” Black’s
Law Dictionary 352 (Eighth ed. 2004). To “indemnify,” on the other hand, means “[t]o
reimburse (another) for a loss suffered because of a third party’s or one’s own act or default.” Id.
at 783-84. Since Defendant in this case is a borrower who allegedly defaulted on her loans owed
to Plaintiff United States, neither “contribution” nor “indemnification” properly describes the
relief Defendant is actually seeking—purportedly under the FTCA—in this count.
Nevertheless, the Court is mindful that Defendant is proceeding pro se, and, accordingly,
notes that in this count Defendant is simply seeking to prevent the Government from collecting
from her any amount of her loan debt that it may have already collected from another source.
The Court further notes that this claim, styled as a counterclaim under the FTCA, is already
stated in Defendant’s Answer as an affirmative defense seeking identical relief, i.e., the offset
6
from the Government’s award of any amount already recovered on this debt from other entities.
(Doc. No. 20, at 2). Thus, although this claim cannot be properly maintained as stated under the
FTCA, Defendant has included this claim as an affirmative defense in her Answer.
Therefore, since Defendant’s claim does not fall under the exemption she cites, wherein
the United States provided a waiver of its sovereign immunity, the Court finds that Defendant
cannot pierce the sovereign immunity of the United States in order to pursue that claim under the
FTCA. Accordingly, Defendant’s claim under the FTCA, Count I, should be dismissed pursuant
to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
B. Claims Under the Fair Debt Collection Practices Act
Defendant also alleges that the United States and its agencies, the U.S. Department of
Education, the U.S. Department of Treasury, and the U.S. Department of Justice, violated the
Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. The FDCPA, which
protects debtors and non-debtors from misleading and abusive debt collection practices, subjects
a debt collector to civil liability for failure to comply with its provisions. See 15 U.S.C.
§§ 1692(e), 1692k(a). The Government, however, asserts that Defendant’s claims under the
FDCPA are barred because the United States and its agencies have not waived their immunity to
suit under that statute.
As discussed, supra, “[a]bsent a waiver, sovereign immunity shields the United States
and its agencies . . . from suit.” Williams v. U.S. Dist. Ct. for D.N.J., 455 Fed. Appx. 142, 143
(3d Cir. 2011). Moreover, “[c]onsent to suit ‘must be unequivocally expressed’ in statutory text,
and cannot simply be implied.” Id. (quoting White-Squire v. U.S. Postal Serv. 592 F.3d 453, 456
(3d Cir. 2010)). Finally, it is Defendant who bears the burden of establishing that sovereign
immunity has been waived, and the determination of whether sovereign immunity has been
7
waived must be strictly construed in favor of the United States. See Clinton Cnty. Comm’rs v.
United States Envt’l Prot. Agency, 116 F.3d 1018, 1021 (3d Cir. 1997); Koresko v. Solis, 2011
WL 5447435, at *8 (E.D. Pa. Nov. 10, 2011).
The FDCPA specifically excludes “any officer or employee of the United States or any
State to the extent that collecting or attempting to collect any debt is in the performance of his
official duties.” 15 U.S.C. § 1692a(6)(C). In her brief, Defendant agrees that officers and
employees of federal agencies are exempt from debt collection related claims, but she argues that
her suit should be allowed to proceed because she is contending that the agencies themselves are
being sued as debt collectors. Defendant further explains that “[i]f Congress desired to exempt
government agencies, acting as assignees and collection agencies for private parties such as
banks, it would not have limited the exemption to officers and agents (human beings).” (Doc.
No. 37, at 2).
First, Defendant does not appear to be familiar with the general rule that the sovereign
immunity of the United States extends to its agencies. See F.D.I.C. v. Meyer, 510 U.S. 471, 475
(1994). Second, Defendant’s rationale simply fails to show that sovereign immunity has been
“unequivocally expressed.” Rather, Defendant seems to be asking this Court to find that a
waiver is somehow implied in the wording of the statute, which the Court is not permitted to do.
See White-Squier, 592 F.3d at 456. Moreover, courts which have considered the issue have
found that there is nothing in the FDCPA which contains any unequivocal or express waiver of
sovereign immunity by the government. See Williams v. U.S. Dist. Ct. for D.N.J., 455 Fed.
Appx. at 143; Wagstaff v. U.S. Dep’t of Educ., 509 F.3d 661, 664 (5th Cir. 2007).3
3
Additionally, sovereign immunity aside, courts have also held that government agencies
do not meet the definition of “debt collector,” as defined in the FDCPA. See Frew v. Van Ru
Credit Corp., 2006 WL 2261624, at *3 (E.D. Pa. Aug. 7, 2006); Burgess v. U.S. Dep’t of Educ.,
8
Thus, Defendant has failed to show that the Government waived its sovereign immunity
under the FDCPA. Accordingly, Defendant’s claims against the United States and its agencies
under the FDCPA, Counts II, III, and VI, should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction.4
C. Claim Under the Privacy Act
Finally, the Government argues that Defendant has failed to state a claim upon which
relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) for alleged violations,
by the Department of Education, of the Privacy Act of 1974, 5 U.S.C. § 552a.
In considering a Rule 12(b)(6) motion to dismiss, the factual allegations contained in the
complaint must be accepted as true and must be construed in the light most favorable to the
plaintiff, and the court must “‘determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief.’” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d
Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)); see
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007). While Federal Rule of Civil
Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the
pleader is entitled to relief,” the complaint must “‘give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.’” Phillips, 515 F.3d at 231 (quoting
Twombly, 550 U.S. at 555 (additional internal citation omitted)). Moreover, while “this standard
does not require ‘detailed factual allegations,’” Rule 8 “demands more than an unadorned, the2006 WL 1047064, at *5 (D. Vt. Apr. 17, 2006); DiNello v. U.S. Dep’t of Educ., 2006 WL
3783010, at *1 n.2 (N.D. Ill. Dec. 21, 2006).
4
The Court notes that these counts could be subject to dismissal pursuant to Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
However, because the Government has asked for dismissal for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1), the Court is ruling in accordance with the Government’s motion.
(Doc. No. 34, at 7).
9
defendant-unlawfully-harmed-me accusation.” Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 555).
It should be further noted, therefore, that in order 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.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). The
Supreme Court has noted that a “claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The standard “‘does not impose a
probability requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise
a reasonable expectation that discovery will reveal evidence of’ the necessary element.” Phillips,
515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). Moreover, the requirement that a court
accept as true all factual allegations does not extend to legal conclusions; thus, a court is “‘not
bound to accept as true a legal conclusion couched as a factual allegation.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555 (internal citation omitted)).
In the present case, the Government argues that Count VII of Defendant’s Amended
Counterclaim fails to allege factual allegations sufficient to support her claim of “Privacy Act
Accounting Violations” against the Department of Education. (Doc. No. 31, at 25). Specifically,
Defendant bases this claim on her contention that the Department of Education failed to “keep an
accounting of its disclosures” regarding her student loans, causing her harm. (Doc. No. 31, at
26). However, Defendant provides no factual allegations—i.e., she pleads no additional factual
content—to show that there is any basis for this accusation.
In fact, the Privacy Act provides that, in disclosing information, an agency is required to
keep an accurate accounting of “the date, nature, and purpose of each disclosure of a record to
10
any person or to another agency,” along with “the name and address of the person or agency to
whom the disclosure is made.” 5 U.S.C. § 552a(c)(1). The agency is required to retain such
accounting “for at least five years or the life of the record, whichever is longer, after the
disclosure for which the accounting is made.” 5 U.S.C. § 552a(c)(2). Moreover, the statute
provides that, aside from certain designated instances, the agency is obligated to make its
accounting “available to the individual named in the record at his request.” 5 U.S.C.
§ 552a(c)(3). The Privacy Act also specifies that, “upon request by any individual to gain access
to his record or to any information pertaining to him which is contained in the system,” the
agency must permit him “to review the record and have a copy made of all or any portion
thereof.” 5 U.S.C. § 552a(d)(1).
The Privacy Act also provides for a system of administrative review if an individual
disagrees with his record or with information pertaining to him which is in the system.
Accordingly, an individual may request amendment of a record pertaining to him, and the agency
must either make any correction requested or inform the individual of its refusal to amend the
record, the reason for such refusal, “the procedures established by the agency for the individual
to request a review of that refusal by the head of the agency . . . and the name and business
address of that official.” 5 U.S.C. § 552a(d)(2). Moreover, under the statute, any individual who
disagrees with the refusal of the agency to amend his record may request a review of such
refusal, and if, after review, the reviewing official also refuses to amend the record, the
individual must be permitted “to file with the agency a concise statement setting forth the
reasons for his disagreement,” and the agency must “notify the individual of the provisions for
judicial review of the reviewing official’s determination.” 5 U.S.C. § 552a(d)(3). Finally, if an
agency makes a determination not to amend an individual’s record in accordance with his
11
request, or if the agency fails to make such review in conformity with the statute’s provisions
providing for administrative review, “the individual may bring a civil action against the agency,
and the district courts of the United States shall have jurisdiction in [such] matters.” 5 U.S.C.
§ 552a(g)(1).
As noted, supra, Defendant alleges in the case at bar that the Department of Education
did not “keep an accounting of its disclosures” regarding her student loans to various entities.
(Doc. No. 31, ¶¶ 180-189). To support this claim factually, however, Defendant merely states
that her contentions “are based on information received from the collection agencies which,
during the dispute process, advised that the claims against her were assigned via an automated
mechanism without oversight.” (Doc. No. 31, ¶ 193). Such allegation, however, provides no
factual basis whatsoever for her claim that the Department of Education failed to keep an
accounting of its disclosures, and thus violated the Privacy Act. For instance, Defendant makes
no allegation that she requested access to such accounting from the Department of Education,
nor does she allege that the Department of Education failed to provide her with such accounting
upon her request, nor does she allege that she made any request for a correction to that
accounting. Similarly, Defendant makes no mention of any agency determination not to amend
her record in accordance with any request, nor that the agency failed to make some such review
in conformity with the administrative review procedure. See 5 U.S.C. §§ 552a(d)(3),
552a(g)(1)(A). Rather, other than the bald accusations that the Department of Education failed
to “keep an accounting of its disclosures,” Plaintiff supplies no factual allegations whatsoever to
justify her claim.
Accordingly, the Court finds that Defendant has failed to allege sufficient facts to
support her claim that the Department of Education committed “Accounting Violations” under
12
the Privacy Act. Thus, Defendant’s claim under the Privacy Act, Count VII, should be dismissed
for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil
Procedure 12(b)(6).
III. Conclusion
For the reasons stated, the Court finds no merit to Defendant’s arguments. Accordingly,
Plaintiff’s and Third Party Defendants’ Motion to Dismiss Defendant’s Amended Counterclaim
is granted. Counts I, II, III and VI of Defendant’s Amended Counterclaim are dismissed for lack
of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and Count
VII of Defendant’s Amended Counterclaim is dismissed for failure to state a claim upon which
relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
s/ Alan N. Bloch
Alan N. Bloch
United States District Judge
cc:
Counsel of Record
Melissa Deuerling
2802 Sebolt Road
South Park, PA 15129
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?