Ndika v. Maranon

Filing 12

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 03/02/2017. (mpha) (Main Document 12 replaced on 3/2/2017) (mpha)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

FRANCIS O. NDIKA,
Plaintiff,
v.
MRS. MARANON, Soc. Sec.
Supervisor,
Defendant.

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M E M O R A N D U M

1:17cv27 (JCC/JFA)

O P I N I O N

This matter is before the Court on Defendant’s Motion
to Dismiss [Dkt. 2].

For the following reasons, the Court will

grant Defendant’s Motion and dismiss Plaintiff’s Complaint with
prejudice.
I. Background
This case has its roots in a longstanding dispute over
unpaid child support.

Plaintiff Francis O. Ndika has been in

litigation with his ex-wife in the Circuit Court for Prince
George’s County, Maryland since 1987 over outstanding child
support payments.
[Dkt. 3-1] at 2-9.

See Mem. in Supp. of Mot. to Dismiss Exh. A
As a result of those proceedings, on July

25, 2013, Prince George’s County Office of Child Support
Enforcement sent the U.S. Social Security Administration a

notice of garnishment, directing the agency to garnish $200.00
monthly from Plaintiff’s Social Security benefits pursuant to 42
U.S.C. § 659.

See Mem. in Supp. of Mot. to Dismiss Exh. B [Dkt.

3-1] at 11-14.
Plaintiff, however, did not receive Social Security
benefits at the time.
garnish.

Accordingly, there was nothing to

That changed on September 8, 2016, when the Social

Security Administration notified Plaintiff that he had been
approved for retirement benefits effective as of the prior
January.

The agency explained that Plaintiff would receive

benefits dating back to January in a lump-sum payment, less
$7,079.80 withheld to satisfy Plaintiff’s unpaid child support.
See Mem. in Supp. of Mot. to Dismiss Exh. E [Dkt. 3-1] at 24-29.
The agency further informed Plaintiff that it would withhold
$200.00 from each of his monthly payments going forward for the
same reason.

See id.

On December 9, 2010, Plaintiff filed a Warrant in Debt
in the General District Court for the City of Alexandria, naming
“Mrs. Maranon, (Soc. Sec. Supervisor).”

The Warrant in Debt

states that “[t]his is over withheld amt. from my seven months
Soc. Security monthly benefit (Jan-July 2016) ie $7,079.80.”
The identity of “Mrs. Maranon” remains unclear, but the federal
government nevertheless stepped in to defend the actions of the
Social Security Administration.
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Reasonably construing the action as one against a
federal employee in her official capacity, Defendant removed the
case to this Court on January 6, 2017, and filed the instant
Motion to Dismiss [Dkt. 2] the following week.

Plaintiff failed

to respond but for a letter informing Defendant and the Court of
his intention to appear at the hearing on this matter with
counsel.

Defendant failed to appear at the hearing on February

16, 2017, but filed a Motion [Dkt. 9] shortly thereafter
requesting a brief extension of time to respond.

The Court

granted that Motion, but Plaintiff’s eventual Response [Dkt. 11]
only requested an additional extension.
II. Legal Standard
A motion filed pursuant to Rule 12(b)(1) challenges
the Court’s subject matter jurisdiction over the pending action.
The burden of proving subject matter jurisdiction falls on the
plaintiff.

McNutt v. General Motors Acceptance Corp., 298 U.S.

178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.
1982).

Where, as here, “a Rule 12(b)(1) motion challenge is

raised to the factual basis for subject matter jurisdiction
. . . the district court is to regard the pleadings’ allegations
as mere evidence on the issue, and may consider evidence outside
the pleadings without converting the proceeding to one for
summary judgment.”

Richmond, Fredericksburg & Potomac R. Co. v.

United States, 945 F.2d 765, 768 (4th Cir. 1991).
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“Sovereign

immunity is jurisdictional in nature.”

F.D.I.C. v. Meyer, 510

U.S. 471, 475 (1994).
III. Analysis
Defendant contends that Plaintiff’s suit is barred by
sovereign immunity.

“Absent a waiver, sovereign immunity

shields the Federal Government and its agencies from suit.”
Meyer, 510 U.S. at 475.

“A waiver of the Federal Government’s

sovereign immunity must be unequivocally expressed in statutory
text” and “will be strictly construed, in terms of its scope, in
favor of the sovereign.”

Lane v. Pena, 518 U.S. 187, 192

(1996).
The United States has waived sovereign immunity to the
extent that it may, under some circumstances, be made a thirdparty garnishee in garnishment proceedings.

See 42 U.S.C.

§ 659(a); Diaz v. Diaz, 568 F.2d 1061, 1063 (4th Cir. 1977)
(“[T]he purpose and effect of 42 U.S.C. § 659 is to waive the
sovereign immunity of the United States for garnishment and like
purposes in a limited class of State court actions involving the
support obligations of government employees receiving, for
example, federal pensions.”).

As relevant here, federal law

permits the federal government to serve as a third-party
garnishee with respect to Social Security benefits paid to
individuals who are in arears in their child support.
U.S.C. §§ 659(a); 659(h)(1)(A)(ii)(II).
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See 42

The scope of this waiver is cabined by 42 U.S.C.
§ 659(f)(1), which states:
Neither
the
United
States,
nor
the
government of the District of Columbia, nor
any disbursing officer shall be liable with
respect to any payment made from moneys due
or payable from the United States to any
individual pursuant to legal process regular
on its face, if the payment is made in
accordance
with
this
section
and
the
regulations
issued
to
carry
out
this
section.
The United States may therefore be haled into court as a thirdparty garnishee, but may not be sued for complying with a
facially valid garnishment order.

The order need only appear

regular on its face; the government may not be held liable even
if the garnishment order is later shown to be invalid.

See

United States v. Morton, 467 U.S. 822, 836 (1984); Trimble v.
U.S. Soc. Sec., 369 F. App’x 27, 32 (11th Cir. 2010); Dockery v.
Comm’r, Soc. Sec., No. TDC-15-2650, 2016 WL 3087453, at *3 (D.
Md. June 1, 2016).
Here, Plaintiff has brought suit against a federal
official for complying with a garnishment order.

Having

reviewed the exhibits to Defendant’s Motion, the order appears
regular on its face.

See Mem. in Supp. of Mot. to Dismiss Exhs.

A, B [Dkt. 3-1] at 2-14.

The Social Security Administration

received the order in July of 2013.

Plaintiff was approved for

Social Security benefits roughly 39 months later, and in the

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interim the Social Security Administration was obligated to
garnish $200.00 per month from Plaintiff’s benefits.

Plaintiff

therefore had accrued a garnishment balance of roughly $7,800.00
by the time he received his lump sum payment of back benefits.
Pursuant to 15 U.S.C. § 1673(b)(2)(B) and the agency’s Programs
Operations Manual System, GN 02410.215(A)(5), the agency
withheld 65% of Plaintiff’s back benefits — as much of that
accrued balance as permitted by the law.1
In light of the above, the Court finds that it lacks
subject matter jurisdiction over these proceedings.

“A waiver

of the Federal Government’s sovereign immunity” is to be
“strictly construed, in terms of its scope, in favor of the
sovereign.”

Lane, 518 U.S. at 192.

The plain text of 42 U.S.C.

§ 659(f)(1) makes clear that the United States has not waived
its immunity with respect to this case.

Accordingly, this Court

must dismiss Plaintiff’s suit.
Finally, the Court notes that Plaintiff has requested
an additional month to respond to the instant Motion.

He argues

that the Court’s previous Order “gave [Plaintiff] only 7 days”
to respond, and “[n]ormally one month [sic] notice is needed for
the two parties in a case to be informed[ ]/ready for any case.”
Response [Dkt. 11].

The instant Motion, however, was filed and

1

Plaintiff was awarded $10,892 total in back benefits,
see Mem. in Supp. of Mot. to Dismiss Exh. E [Dkt. 3-1] at 24,
65% of which is $7,079.80.
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served upon Plaintiff on January 13, 2017.

The Court’s Order

did not give Plaintiff one week to respond to that Motion;
rather, it gave Plaintiff one additional week to respond beyond
the month that had already elapsed.

As Plaintiff has provided

no compelling reason for failing to respond within that time,
the Court declines to grant him any further extensions.
IV. Conclusion
For the foregoing reasons, the Court will grant
Defendant’s Motion [Dkt. 2] and dismiss Plaintiff’s Complaint
with prejudice.
An appropriate order will issue.
March 2, 2017
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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