United States District Court, E.D. Virginia, Alexandria Division
FRANCIS O. NDIKA, Plaintiff,
MRS. MARANON, Soc. Sec. Supervisor, Defendant.
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE
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.
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. See Mem. in Supp. of Mot. to
Dismiss Exh. A [Dkt. 3-1] at 2-9. 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.
however, did not receive Social Security benefits at the
time. Accordingly, there was nothing to garnish. 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.
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.
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.
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). “Sovereign immunity is jurisdictional in
nature.” F.D.I.C. v. Meyer, 510 U.S. 471, 475
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).
United States has waived sovereign immunity to the extent
that it may, under some circumstances, be made a third-party
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. See 42 U.S.C.
§§ 659(a); 659(h)(1)(A)(ii)(II).
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