United States District Court, D. Colorado
RECOMMENDATION TO DISMISS IN PART AND TO DRAW
P. Gallagher, United States Magistrate Judge.
matter comes before the Court on the Amended Complaint (ECF
No. 5). The matter has been referred to this
Magistrate Judge for recommendation (ECF No. 9).
Court must construe Plaintiff's filings liberally because
she is not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520- 21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court should not act as an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110.
Court has reviewed the filings to date. The Court has
considered the entire case file, the applicable law, and is
sufficiently advised in the premises. This Magistrate Judge
respectfully recommends that the Amended Complaint (ECF No.
5) be dismissed in part and the remaining claim be drawn to a
Factual and Procedural Background
Tonya Blunt resides in Denver, Colorado. On March 4, 2019,
she filed pro se a Complaint for Judicial Review of
Social Security Decision (ECF No. 1) and an Application to
Proceed in District Court Without Prepaying Fees or Costs
(Long Form) (ECF No. 2). The Court granted her leave to
proceed pursuant to 28 U.S.C. § 1915 (ECF No. 4).
Court's direction (ECF No. 4), on March 21, 2019,
Plaintiff filed an Amended Complaint (ECF No. 5), which is
the operative pleading. In the Amended Complaint, Plaintiff
identifies the U.S. Department of Education and U.S.
Department of the Treasury as defendants. (Id. at
2). She alleges her Fifth Amendment due process rights have
been violated due to the garnishment of her Social Security
benefits by Defendants, because she was “not notified
in advance.” (Id. at 4-5). As relief, she
states “exhaustion of administrative tactics that
violate U.S. Constitution Amendments.” (Id. at
6). The Court construes this request as seeking injunctive
relief ordering that the garnishment be stopped.
Hall, 935 F.2d at 1110 (““[I]f the court
can reasonably read the pleadings to state a valid claim on
which the [pro se litigant] could prevail, it should do so
despite the . . . failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements.”); (see also ECF No. 1 at 2).
explained in the Order Directing Plaintiff to File Amended
Complaint (ECF No. 4), in the Debt Collection Improvement
Act, Congress authorized the Department of the Treasury to
withhold Social Security payments to offset federal student
loan debt. Lockhart v. United States, 546 U.S. 142,
145 (2005) (citing 31 U.S.C. § 3716(c)(3)(A)(i))
(“Only in 1996 did the Debt Collection Improvement
Act-in amending and recodifying the Debt Collection
Act-provide that, ‘[n]otwithstanding any other
provision of law (including [§ 407] ...),' with a
limited exception not relevant here, ‘all payment due
an individual under ... the Social Security Act ... shall be
subject to offset under this section.'”); see
also Castillo v. U.S. Dep't of Educ., No.
1:07CV00439, 2008 WL 1767060, at *2 (M.D. N.C. Apr. 15, 2008)
(unpublished) (“the Debt Collection Improvement Act
specifically allows for the garnishment of Social Security
benefits to collect unpaid student loan debt”). Thus,
the garnishment itself appears to be proper.
Plaintiff alleges she “was certainly not notified in
advance of neither one of the garnishments, ” in
violation of due process. (ECF No. 5 at 5). Due process
requires complying with certain procedures, including
providing notice, prior to garnishment. See Omegbu v.
U.S. Dep't of Treasury, 118 Fed.Appx. 989, 991 (7th
Cir. 2004); 31 U.S.C. § 3716. Thus, to the extent
Plaintiff sets forth a due process claim for injunctive
relief against the U.S. Department of the Treasury, I
recommend allowing such claim to be drawn to a presiding
judge. See Id. at 990 (“the Administrative
Procedure Act, 5 U.S.C. § 702, provides a waiver for
Omegbu's suit for injunctive relief against the
Higher Education Act of 1965 waives sovereign immunity
against the U.S. Department of Education only for
non-injunctive relief. Omegbu, 118 Fed.Appx. at 990.
However, there is no waiver for injunctive relief, which is
the only relief requested in this case. See id.;
see also Kemper v. U.S. Dep't of Educ., 285
F.Supp.3d 145, 148 (D.D.C. 2018) (“the Higher Education
Act of 1965 (HEA) bars Plaintiff's claim for injunctive
relief”); 20 U.S.C. § 1082(a)(2) (“no
attachment, injunction, garnishment, or other similar
process, mesne or final, shall be issued against the
Secretary or property under the Secretary's
control”). Thus, I recommend that Defendant U.S.
Department of Education be dismissed from this action because
sovereign immunity has not been waived for injunctive relief
against this federal agency.
further recommend that, to the extent Plaintiff seeks relief
under “State Consumer Protection Statu[t]es, ”
such claim be dismissed because Plaintiff has not identified
a waiver of sovereign immunity for a federal entity to be
sued under state consumer protection laws. (ECF No. 5 at 5);
Iowa Tribe of Kan. & Neb. v. Salazar, 607 F.3d
1225, 1232 (10th Cir. 2010) (“plaintiffs may not
proceed unless they can establish that the United States has
waived its sovereign immunity with respect to their