UNITED STATES I)ISTRIC'I` COURT
` FOR THE DISTRICT OF COLUMBIA

KEVIN R. KEMPER, )
y )
Plaintiff, )
) _
v. ) - civil Aaion NO. 17-683 (TNM)
) _
)
U.s. DEPARTMENT )
oF EDUC'ATION er az., )
' )
Defendants. )
MEMORANDUMOPINIGN

Plaintiff Kevin R. Kernper, appearing pro Se, has sued the Department of Education and l
current or former Department employees for injunctive-relief and monetary damages Plaintiff 7 -
seeks to prevent the Departrnent of Treasury from garnishing his social security payments.to
satisfy a student loan he alleges Was paid in full in the mid-l-9_SOS. Pending are Defendants’
Motion to Disrniss under Federal Rules of Civil Procedure lZ(b)(l) and lZ(b)(6) [Dkt. # 13],
Plaintiff’s ‘Motion for Preliminary Injunction/Ternporary Restraining Order [Dl<t. # 3], and
l°laintiff’s l\/[otion for Summary Judgrnent [Dkt. # lO]. For the reasons explained beloW, subject
matter jurisdiction is lacking Consequently, Defendar_its’ motion to dism-iss under Rule lZ(b)(l)
is GRANTED, Plaintiff’ s motions are DENIED, and the case is DISMISSED Without prejudice

7 7 7 7 7 I. BAC_KGROUND

Plaintiff alleges that he Was “intr`oduced”`to-student loans in 1974 while attending a local
university in Sacramento, Califorilia. Am. Compl. at l [Dkt. # 5]. “In the mideS()’s,” Plaintiff
tendered What he believed to be his “final loan payment of about $25_0” by Way of “a check

endorsed ‘cashing`this check denotes that the account is paid in full.”’ `Id. at 2. Plaintiff did not

l

 

 

receive a response from the Department of Education (DOE), but he “presurned that was their
standard procedure.” Id. Plaintiff surmises that, “[b]eginning in the 1990’3,” DOE “felt they
were not paid off entirely and instead of communicating with the Plaintiff, sent a presumed bill .
-. . to a local collection agency Who sent their developed copy to the Plaintitf.” Id. Plaintiff n
“responded immediately to the Collection Agency that there was no money due [because] the l
debt Was paid in total in the l980’s”; as a result, the collection notices stopped coming to
Pl_aintift`. Id. But a “few‘years later, another notice came from another collection agency for
approximately $19,000,” even though Plaintift`s debt “never was higher than $3200.00.” Id. at
3.

On hebmary 3, 2017, the Treasury Department notified Plaint_ift` that his debt to DOE Was
referred for collection action, Whereby 15 percent of Plaintift’s monthly Social Security benefit
n payments would be withheld to satisfy the debt Compl. Attachment [Dl<t. # l at 5]. The
withholding was to begin no sooner than April 2017, but the notice also included information
about how “{t]o prevent this collection action.” li’c£. Plaintiff commenced this civil action on
March 20, 2017, to enjoin Treasury’s proposed action. The case was formally filed on April 17,
,2017, after the court’s grant.of Plaintiff’s motion to'proceed informal pauperis submitted with
the original complaint l

II. _ SUBJECT MATTER JURISDICTION

“Federal courts are courts of limited jurisdiction They possess only that power
authorized by Constitution and statute,” and it is “presumed that a cause lies outside this limited
-jurisdiction.” Kokkonen v. Guardian _Lz`fe his Co. of Am., 511 U.S. 375, 377 (1994). Because a
federal court is “forbidden . . . Jfrom acting beyond [its} authority,” NetworkIP, LLC v. FCC, 548

F.3d 116, 120 (D.C. Cir. 2008), it has “an affirmative obligation ‘to consider whether the

 

 

constitutional and statutory authority exist . . . to hear each dispute.”’ James Maa'ison Ltd. ex rel.
Hechz‘ v. Ludwz'g, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert-v. Nar ’l Acad, ofScis.,r
974 F.2d 192, 196 (D.C. Cir. 1992)). If not, the case must be dismissed, Arbaugh v. Y & H
Corp., 546 U.S. 500, 506-07 (2006), and the court “can proceed no further,” Simpkz`ns v. Disrrict
of Columbia Gov ’t-, 108 F.3d 366, 371 (DiC.-Cir. 1997). See-id. (noting that, in the absence of
subject matter jurisdiction, “the {district] court could no more rule in favor of the government
than against it”). .~

- On amotion to dismiss under Rule 12(b)(l), the plaintiff has the burden of demonstrating
the courtis subject matter jurisdiction Knapp Med. Cir. v_ Hargan, 875 F.3d 1125, ll28 (D.C.
Cir. 2017) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (199-2)). In deciding the
jurisdictional question, the court must construe the complaint liberally, accept the factual
allegations as true, and “grant[ ] plaintiff the benefit of all inferences that can be derived from the `
facts alleged[.]” Am. Nar’l Ins. C0. v. FDIC, 642 F.3d ll37j 1139 (D.C. Cir. 2011) (quoting
Thomas v. Pri'nct`pz`, 394 F.3d 970, 972 (D.C. Cir. 2005)). But the court need not accept factually
_ unsupported inferences drawn by the plaintiff or legal conclusions cast as factual allegations
Bmwnmg v. clinton, 292 F.3d 23 5, 242 (D.c. cir. 2002).

III. ANALYSIS
A. Claim for Injunctive Relief
Sovereign immunity “goes to the subject matter jurisdiction of the court.” Delta Foods

Inc. v. Republz'c 0thana,‘265. F.3d 1068, 1071 (D.C. Cir. 2001). lt bars lawsuits against the
United States, its agencies, and its employees sued in their official'capacities absent a specific
waiver. _FDIC vt Meyer, 510 U.S. 471, 475 (1994); Wilson v. Obama, 770 F. Supp. 2d l88, 191

(D.'D.C.'2011) (citing Clark v; Library ofCongresS, 750 F.2d 89, 102-04 (D.C. Cir. 1984)); A

 

waiver “rnust be unequivocally expressed in statutory text, and [it cannot] be implied.” Lane v.
Pena, 518 U.S. 187, 192 (1996) (citations omitted); see Knapp Med. Ctr., 875 F.3d at 1128
(“‘Only Congr_ess may determine a lower federal court’s subject-matter jurisdiction,’ and what

the Congress gives, the Congress may take away.”) (quoting Konfrick v. Ryan, 540 U.S. 443, 452

_ (2004)). _-

Defendantsl argue correctly that the Higher Education Act of 1965 (HEA) bars Plaintiff"s
claim for injunctive relief. See Defs.’ Mem. at 6-7._ .The HEA authorizes lawsuits against the
Education Secretary,1 but it specifically states: “[N]o attachment,_ injunction, garnishment, or
other similar process, mesne or final, shall be issued against the Secretary . . .'.” 20 U.S.C.

§ 1082(a)(2).- Consequentiy, Plaintiff` s claim for injunctive relief must be dismissed -See
Thomas' v. Bennett, 856 F.2d 1165,' 1168 (Sth Cir. 1988) (holding that § 1082(a)(2) prohibits
injunctive relief against the Secretary); Green v. Unirea’ States, 163 F. Supp. 2d 593, 597
(W.D.N.C. 2000) (noting that “[a]n action that seeks to prohibit the government from collecting
a debt seeks injunctive relief_a type of action over which this court lacks subject~matt.er
jurisdiction because the government continues to enjoy sovereign immunity from suit as to such
claims in accordance with . . . the HEA”). v

l B. Claim for Monetary Relief

Plaintiff seeks “general damages of 81900”' and punitive damages “in_the amount of
319,000,000.” Am. Compl. at 6. From all indications, Plaintiff has sued the individual

Defendants in their official capacities as DOE employees, which “generally-represent[sj only

 

. l .The HEA does not authorize lawsuits against the other Defendants, regardless of whether the

relief sought isinjunctive. To the extent Plaintiff seeks an injunction against the Department of
the Treasury, such relief is unavailable .if for no other reason than that the Department of the
Treasury is not a defendant in this case. '

 

 

another way of pleading an action against an entity of Which an officer is an agent[.]” Kentucky
v. Graiham, 473 U.S. 159, 165 (1985). -in contrast to a personal-capacity suit where “an award of
_ damages . . . can be executed only against the official’s' personal assets,” an award of damages in
an official-capacity suit is recovered from_“the government entity itself.” Id. at 166. As a result,
I consider next Whether the United States has consented to be sued under the present
1 circumstances
The_HEA does not expressly authorize a private right of action, and “[c]ase precedent
weighs heavily against granting an implied cause of action.” Jac!cson v. Culinarjy Sch. of
Washingron, 788 F. Supp. 1233, 1257-58 (D.D.C. 1992) (listing cases); accord Ivey v. Duncan,
l3-cv-576,- 2014 WL 11256897, at *6 (D.D.C. -Aug. 4, 2014), report and recommendation
_ adopted, 2016 WL 1452326 (lJ.D.C. Apr. 713_, 2016) (noting that “courts have construed the
Act’s provision _penni_tting suit against the secretary as a jurisdictional grant only and not as
creating a separate cause of action”)). Accordingly, the HEA does not authorize Plaintiff’s
claims in this case.
Nor are Plainti_ff’s claims properly before me pursuant to the partial waiver of sovereign

immunity established by the Federal Tort Claims Act (FTCA).2 Nothing 1n the record indicates

 

2 To the extent that Plaintiff raises any 'claims.that do not sound in tort,'these claims are not
properly-before me pursuant to the Tucker or Little Tucl<er Acts,_ 28 U.S.C. §§ 1491, 1346(a)(2).
The Tucker Act and Little Tucker Act waive the United States’s immunity as to certain claims
for monetary damages The Little Tucker Act confers concurrent jurisdiction upon the United
States district courts and the Court of Federal Claims to hear claims “not exceeding`.$10,000,” 28
U.S.C. § l346(a)(2), Whereas the Tucker Act confers exclusive jurisdiction upon the Court of
Federal Claims to hear claims exceeding 810,000, 28 U.S.`C. § l49l(a)(l). _A “claim is subject to
the Tucker Act and its jurisdictional consequences if, in whole or in part, it explicitly or cin
essence’ seeks more than $l0,000 in monetary relief from the federal government.” Kidwell v.
Dep ’r ofthe'Army, Bd.for Corr. ofMilita)j) Records, 56 F.3d 279, 284 (D.C. Cir. 1995).

' Plaintiff’s demand for damages exceeds the Little Tucker Act’s $l0,000 limit Accordingly, 1
lack subject matter jurisdiction over any non-tort claims in this case.

 

 

that Plaintiff presented a written claim “to the appropriate Federal agency” before filing suit, as
required by the FTCA. See 28 U.S.C. § 2675 (a). That presentment requirement is jurisdictional
SeelAbdurrahman v. Engstrom, 168 F. App’x 445, 445 (D.C. Cir. 2005) (per curiam) (affirming
the district court’-s dismissal of an unexhausted FTCA claim “for lack of subject matter y
_ l j urisdiction”). ‘Although Defendants raised this point in their motion to dismiss and Plaintiff was
l warned that Defen'dants’ arguments could be treated as conceded if not opposed by October 2,
2017, see Aug. 30, 2017 Order [Dkt. # 15], Plaintiff did not file aresponse to Defendants’
motion to dismiss Thus, Plaintiff has not satisfied his burden of establishing subject matter
jurisdiction
l III. CONC_LUSION
For the foregoing reasons, Defendants’ motion to dismiss for want of subject matter
jurisdiction is GRANTED, Plaintiff s separate motions for injunctive relief and for summary
judgment are DENIED, and the case is DISMISSED without prejudice A separate order

accompanies this Memorandum Opinion.

 

Dated: unitary 4, 2018 ~ , 7 TREvoR N MCFADDEN
' l \ United S_tates District Judge

 

