Blunt v. U.S. Department of Education

          RECOMMENDATION TO DISMISS IN PART AND TO DRAW CASE

          GORDON P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on the Amended Complaint (ECF No. 5)^[1]. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 9)^[2].

         The 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.

         The 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 presiding judge.

         I. Factual and Procedural Background

         Plaintiff 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).

         At the 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).

         II. Amended Complaint

         As 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.

         However, 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 Treasury”).

         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.

         I 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 claim”).

         III. Recommendation

         For the reasons set forth herein, this Magistrate Judge respectfully RECOMMENDS that the claims as alleged against the U.S. Department of Education, and any claim alleged pursuant to state consumer protection laws, be ...