Schlesner v. U.S.

• Decision Date: 19 February 2003
• Docket Number: No. 02-C-0685.,02-C-0685.
• Citation: Schlesner v. U.S., 246 F.Supp.2d 1036 (E.D. Wis. 2003)
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: James A. SCHLESNER, Plaintiff, v. UNITED STATES of America, Social Security Administration, Its Agents and Employees, Defendants.

246 F.Supp.2d 1036

James A. SCHLESNER, Plaintiff, v.UNITED STATES of America, Social Security Administration, Its Agents and Employees, Defendants.

No. 02-C-0685.

United States District Court, E.D. Wisconsin.

February 19, 2003.

Steven C. Harvey, for Plaintiff.Susan M. Knepel, for Defendants.

DECISION AND ORDER RE: DEFENDANTS' MOTION TO DISMISS COMPLAINT

CALLAHAN, United States Magistrate Judge.

I.FACTUAL AND PROCEDURAL BACKGROUND

This action was commenced on July 11, 2002, when the plaintiff, James A. Schlesner("Schlesner"), filed a complaint naming the United States of America ("United States"), the Social Security Administration (the "SSA"), its agents and employees as defendants.¹Distilled to its essence, Schlesner's complaint alleges that he had been ordered by a Wisconsin state court to pay child support in the amount of $49.75 per week.(Compl.¶ 3).Pursuant to a state court order, the SSA began in approximately July, 1998, to withhold $214.00 per month from the plaintiffs social security benefits and pay it to the Wisconsin Support Collection Trust Fund (the "WSCTF").(Compl.¶ 5.)More precisely, the SSA paid $215.00 to the WSCTF on or about August 10, 1998.(Compl¶ 6.)The SSA continued to withhold $214.00 per month from the plaintiffs social security benefits over the course of the next four months, but failed to pay such money to the WSCTF.(Compl.¶ 16.)Indeed, it was not until on or about January 10, 1999, that the SSA finally made a payment to the WSCTF in the amount of $856.00.(Compl.¶ 6.)

The SSA's failure to make monthly payments to the WSCTF had serious consequences for the plaintiff.On October 19, 1998, a contempt hearing was held in a Wisconsin state court because of the plaintiffs failure to make the required child support payments.(Compl.¶ 7.)The plaintiff was found in contempt, and a sentence of six months in jail was imposed.(Compl.¶ 7.)However, the plaintiff was given until November 19, 1998, to purge the contempt by paying the accrued child support arrearage in full.(Compl. ¶ 7.)Unknown to the plaintiff, the SSA was withholding the child support payments but was not forwarding them to the WSCTF.(Compl.¶ 8.)Thus, because the plaintiffs remaining income was insufficient to cover living expenses and the arrearage, and because he was unable to purge himself of the earlier contempt finding, he was committed to jail on November 18, 1998.(Compl.¶ ¶ 9, 10.)

While he was serving his jail term, the plaintiff learned that the SSA had not been paying to the WSCTF the $214.00 it had been withholding from his benefits.(Compl.¶ 11.)The plaintiff gained his release from jail on December 15, 1998, by paying over his December 1998 social security disability check in the amount of $309.00.(Compl.¶ 12.)Thereafter, on January 18, 1999, the WSCTF received $856.00 from the SSA.(Compl.¶ 14.)This represented the four months of $214.00 monthly child support payments which the SSA had withheld from the plaintiffs benefits from mid-August through December, 1998.(Compl.¶ 14.)

Unfortunately, the plaintiffs problems were not yet entirely behind him.This is because on February 15, 1999, the WSCTF received another $214.00 payment from the SSA, but the SSA failed to pay to the WSCTF the withheld child support payments for the months of March and April, 1999.(Compl.¶ 15.)As a result of the WSCTF's not receiving such child support payments, the plaintiff was arrested and again jailed from April 23 through April 27, 1999.(Compl.¶¶ 16-17.)On that latter date, the plaintiff provided to the sentencing judge a copy of correspondence he had previously received from a representative of the SSA in which the SSA acknowledged that the failure to make the required payments had been the fault of the SSA.(Compl.¶ 17.)

Furthermore, as a result of the plaintiffs incarceration, he had placement of his three children from a separate marriage and divorce taken away from him, and thereby lost the right to receive child support in the amount of $75.00 per week, effective in or about December, 1998.(Compl.¶ 18.)Although he finally regained placement of his three children in August, 2000, such placement was reduced to a fifty-fifty split.(Compl.¶ 19.)As a consequence of the fifty-fifty placement, the plaintiff no longer receives child support payments.(Compl.¶ 20.)Indeed, as a result of such fifty-fifty placement, he has not received child support payments since December, 1998.(Compl.¶ 20.)

The plaintiff seeks damages from the defendants for all of the foregoing.More precisely, he asserts claims for negligence against the defendants under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),1402(b),2401(b), and2671-2680, and for violation of his rights under the full faith and credit, due process, and equal protection clauses of the United States Constitution.

The plaintiffs complaint was met with a motion to dismiss.More precisely, the defendants have filed a motion to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).The motion has now been fully briefed and is ready for resolution.For the reasons which follow, the defendants' motion to dismiss will be granted.

II.DISCUSSION

A.Legal Standards

Federal Rule of Civil Procedure 12(b) provides, in pertinent part, as follows: "Every defense, in law or in fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, ... (6) failure to state a claim upon which relief can be granted."

Federal Rule of Civil Procedure 12(b)(1) permits the court to dismiss an action for lack of subject matter jurisdiction.Once the existence of subject matter jurisdiction is questioned, it is the plaintiffs burden to establish that all jurisdictional requirements have been met.SeeKontos v. U.S. Dep't of Labor,826 F.2d 573, 576(7th Cir.1987).However, "[w]hen ruling on a motion to dismiss for lack of subject matter jurisdiction, the ... court must accept all of the complaint's well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in [the]plaintiffs favor."Waldron v. Pierre,995 F.Supp. 935, 936(N.D.Ill.1998).Additionally, "it is proper for the court to look beyond the jurisdictional allegations in the complaint and to view whatever evidence has been submitted in response to the motion," including affidavits and testimony in order to resolve any factual dispute regarding the court's jurisdiction.Sprague v. King,825 F.Supp. 1324, 1329(N.D.Ill.1993);see alsoKontos,826 F.2d at 576.

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) requires the court to decide whether the plaintiffs pleadings actually state a claim upon which relief can be granted.For the purposes of a motion to dismiss, all factual allegations of the complaint are taken as true.SeeLeatherman v. Tarrant County Narcotics Intelligence and Coordination Unit,507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517(1993);see alsoEison v. McCoy,146 F.3d 468, 470(7th Cir.1998).Such allegations must be viewed liberally and in the light most favorable to the plaintiff.Harrell v. Cook,169 F.3d 428, 431(7th Cir.1999)."`[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"Ogden Martin Sys. of Indianapolis, Inc. v. Whiting Corp.,179 F.3d 523, 526(7th Cir.1999)(quotingConley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80(1957)).However, the court is not required to ignore any facts alleged in the complaint that undermine the plaintiffs claim or to assign weight to unsupported conclusions of law.Gray v. County of Dane,854 F.2d 179, 182(7th Cir.1988).

B.Analysis

As stated previously, the plaintiff asserts claims for relief based upon two theories of liability.First, he claims that he was damaged by virtue of the defendants' negligence in "failing to properly pay withheld funds from [p]laintiff's social security benefits, to the WSCTF, on a monthly basis."(Compl.¶ 25.)Second, he claims that the defendants' "actions constitute violations of the full faith and credit clause, Art. IV, sec. 1, and the Due Process clauses and the Equal Protection clauses, as stated in the Fifth and Fourteenth Amendments, United States Constitution, from September, 1998 to January, 1999."(Compl.¶ 33.)

1.The Negligence Claim

"No legal proceedings, including garnishment, may be brought against the United States absent a waiver of its sovereign immunity."Millard v. United States,916 F.2d 1, 3(Fed.Cir.1990).The United States has, however, waived its sovereign immunity from proceedings in the nature of garnishment for enforcement of child support and alimony.Id.Congress did so with the passage of 42 U.S.C. § 659, which provides, in pertinent part Notwithstanding any other provision of law ... effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States ... (including any agency, subdivision, or instrumentality thereof) to any individual ... shall be subject, in like manner and to the same extent as if the United States ... were a private person, to withholding ... and to any other legal process brought ... to enforce the legal obligation of the individual to provide child support or alimony.

42 U.S.C. § 659(a).

Title 42 U.S.C. § 659(h) more specifically defines moneys payable to an individual which are considered to be based upon remuneration for employment, stating, in relevant part, that those moneys:

(A) consist of—

(i) compensation payable for personal services of the individual, whether the compensation is denominated as wages, salary, commission, bonus, pay,...