                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
MSHAIRI JONATHAN MILLER,            )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )               Civil Action No. 12-1255 (ABJ)
                                    )
D. SMITH, et al.,                   )
                                    )
                  Defendants.       )
____________________________________)


                                MEMORANDUM OPINION

       Plaintiff, Mshairi Jonathan Miller, proceeding pro se, has brought this action against both

the United States Department of Treasury Financial Management Service (“FMS”) and an

individual identified as D. Smith, in her official capacity as Accounts Manager for the Maryland

Department of Budget and Management Central Collection Unit. Plaintiff challenges the offset

of federal payments owed to him for his work as an independent contractor for the Superior

Court of the District of Columbia. The complaint alleges that defendants have wrongfully offset

the entire value of his payments in order to discharge a non-tax debt that plaintiff owes to the

State of Maryland.

       Currently pending before the Court are motions to dismiss or for summary judgment by

both FMS, [Dkt. # 6], and Smith [Dkt. # 25]; plaintiff’s motion for leave to file an amended

complaint, [Dkt. # 35]; a renewal of FMS’s motion to dismiss or for summary judgment as to the

proposed amended complaint, [Dkt. # 43]; and plaintiff’s motion for summary judgment, [Dkt. #

47]. Because the Court lacks jurisdiction over plaintiff’s claims against both defendants for

monetary relief and over plaintiff’s claims against Smith that arise under state law, and because
plaintiff’s remaining claims against both defendants are legally deficient, the Court will dismiss

all of plaintiff’s claims except for his claims for injunctive relief against FMS, and it will grant

summary judgment for FMS on the remaining claims. Although the Court is sympathetic to

plaintiff’s concerns, and it has made several efforts to bring the parties together to achieve a

mediated resolution, those efforts have failed, and the Court must proceed to the merits of his

complaint.   Holding plaintiff’s complaint to less stringent standards than it accords formal

pleadings drafted by lawyers, the Court finds that plaintiff has failed to advance a viable legal

theory under which a federal court in this district could grant him relief.

                                         BACKGROUND

       I.      Factual Background

       The following factual allegations appear in both plaintiff’s complaint, [Dkt. # 3-1], and

his proposed amended complaint, [Dkt. # 35-2], unless otherwise noted.

       Plaintiff is an independent contractor who has been providing services as a legal

investigator to the Superior Court of the District of Columbia since 2005. Compl. ¶ 1; Proposed

Am. Compl. ¶ 1. To receive payment for his work, plaintiff allegedly submits a voucher for each

case for which he performs work to the Superior Court’s finance office. Compl. ¶ 2; Proposed

Am. Compl. ¶ 2. Plaintiff’s payment is deposited directly into his checking account. Compl.

¶¶ 3–4; Proposed Am. Compl. ¶¶ 3–4. Plaintiff’s central allegation in this case is that FMS and

the Maryland Department of Budget and Management Central Collection Unit have been

intercepting the entire value of his payments in order to offset non-tax debt that he owes to the

State of Maryland. Compl. ¶ 4; Proposed Am. Compl. ¶ 4. The complaints allege that this

conduct began two months prior to the filing date of the original complaint in this action.

Compl. ¶ 4; Proposed Am. Compl. ¶ 4. Plaintiff acknowledges that he has an outstanding debt,



                                                  2
but he challenges defendants’ authority to collect the entire amount of his payments. Compl. ¶¶

4–5; Proposed Am. Compl. ¶¶ 4–5. According to the complaint, defendants’ actions undermine

plaintiff’s ability to pay for his rent, mortgage, insurance, utilities, and food. Compl. ¶ 7;

Proposed Am. Compl. ¶ 7.

       II.    Procedural Background

       Plaintiff filed his original complaint in Superior Court for the District of Columbia on

June 14, 2012. [Dkt. # 3-1] at 78–80. Although plaintiff has not filed a motion for temporary

restraining order in this case, the complaint was accompanied by a temporary restraining order

affidavit of facts. Id. at 81–83. Plaintiff filed a motion for preliminary injunction on July 11,

2012. [Dkt. # 3-1] at 24–27. On August 2, 2012, the Superior Court judge granted defendant D.

Smith’s motion to quash proof of service and ordered plaintiff to file proper proof of service on

Smith on or before October 12, 2012. [Dkt. # 3-1] at 9–11.

       On July 27, 2012, defendant FMS removed the action to this Court, see [Dkt. # 1], and on

August 24, 2012, FMS filed a motion to dismiss or for summary judgment and an opposition to

plaintiff’s motion for preliminary injunction. [Dkt. # 6]. That motion is now fully briefed and

pending before the Court. By Minute Order of September 13, 2012, the Court consolidated

plaintiff’s motion for preliminary injunction with the merits, under Federal Rule of Civil

Procedure 65(a)(2).

       The following months were occupied by plaintiff’s attempts to perfect service on

defendant Smith and the parties’ attempts to resolve the dispute on their own. By Order of

August 17, 2012, the Court required plaintiff to file proper proof of service on defendant D.

Smith on or before October 12, 2012. [Dkt. # 4]. Plaintiff filed a return of service for Smith on

September 21, 2012, [Dkt. # 10], and on October 10, 2012, Smith filed a motion to quash service



                                               3
of process, [Dkt. # 14]. In response, the Court issued an Order on October 10, 2012, requiring

plaintiff to cause process to be served on Smith in her official capacity in accordance with

Federal Rule of Civil Procedure 4(j)(2) and to file proof of service with the Court on or before

October 31, 2012. [Dkt. # 16]. On October 26, 2012, plaintiff filed proof of service with the

Court. [Dkt. # 18]. However, noting that the complaint was not clear as to whether Smith was

named as a defendant in her individual capacity or her official capacity, the Court, by Minute

Order of November 5, 2012, 1 ordered plaintiff to file a notice with the Court on or before

November 13, 2012, indicating the capacity in which Smith was sued. In response, plaintiff filed

a notice on November 7, 2012, [Dkt. # 19], indicating that Smith is named in her official

capacity. Accordingly, the Court issued an Order on November 8, 2012, requiring plaintiff to

file proof of service on Smith in her official capacity by no later than December 10, 2012.

Plaintiff filed its return of service on November 12, 2012, and Smith filed a motion to quash the

return of service on November 26, 2012. [Dkt. # 24]. Finally, by Minute Order of December 10,

2012, the Court ordered defendant Smith to file a memorandum explaining why the proof of

service filed by plaintiff on October 26, 2012 was not sufficient to establish that Smith was

properly served in her official capacity. In response to that Minute Order, Smith filed a motion

to dismiss or for summary judgment, [Dkt. # 25], and withdrew her motion to quash, see Notice

of Withdrawal [Dkt. # 27]. Smith’s dispositive motion is now fully briefed and pending before

the Court.

       With the consent of the parties, the Court referred this action to mediation on February

11, 2013. [Dkt. # 31]. On April 11, 2013, the parties notified the Court that mediation was not

successful. [Dkt. # 34]. Shortly thereafter, plaintiff filed a motion for leave to file an amended


1      This Minute Order was amended by subsequent Minute Order of November 6, 2012, to
change the deadline for plaintiff’s notice from November 12, 2013 to November 13, 2012.
                                                4
complaint, [Dkt. # 35], which both defendants have opposed [Dkt. # 42, 44]. FMS has also filed

a renewed motion to dismiss or for summary judgment as to the proposed amended complaint.

[Dkt. # 43]. And on June 17, 2013, plaintiff filed his own motion for summary judgment. [Dkt.

# 47].

                                   STANDARD OF REVIEW

         I.     Motion to Dismiss

         In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must

“treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all

inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216

F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.

1979) (citations omitted); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.

2011).    Nevertheless, the Court need not accept inferences drawn by the plaintiff if those

inferences are unsupported by facts alleged in the complaint, nor must the Court accept

plaintiff’s legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

         A pro se plaintiff’s complaint will be held to “less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). But even a pro se

complaint “must plead factual matter that permits the court to infer more than the mere

possibility of misconduct.” Jones v. Horne, 634 F.3d 588, 596 (D.C. Cir. 2011) (internal

citations and quotation marks omitted).

         A.     Subject Matter Jurisdiction

         Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);

Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts



                                                 5
of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.”

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors

Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin,

and end, with an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an

Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-

matter jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971

(D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.

694, 702 (1982).

       When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a

motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the

complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other

grounds, 482 U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings

as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.”

Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert

v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc.

v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

       B.       Failure to State a Claim

       “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the pleaded factual

content “allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a



                                                   6
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ ‘that the

pleader is entitled to relief.’” Id. at 679, quoting Fed. R. Civ. P. 8(a)(2). A pleading must offer

more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of

action,” id. at 678, quoting Twombly, 550 U.S. at 555, and “the tenet that a court must accept as

true all of the allegations contained in a complaint is inapplicable to legal conclusions,” id. In

ruling upon a motion to dismiss, a court may ordinarily consider only “the facts alleged in the

complaint, documents attached as exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F. Supp.

2d 191, 196 (D.D.C. 2002), citing Equal Emp’t Opportunity Comm’n v. St. Francis Xavier

Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).

       II.     Summary Judgment

       Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The party seeking summary judgment bears the “initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat

summary judgment, the non-moving party must “designate specific facts showing there is a

genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual

dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.



                                                7
242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the

non-moving party; a fact is only “material” if it is capable of affecting the outcome of the

litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In

assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the

light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550

U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam).

                                             ANALYSIS

        Both the complaint and the proposed amended complaint allege that defendants have

exceeded their authority under the law by withholding plaintiff’s federal payments in full rather

than merely offsetting some portion of the funds to be paid. Compl. ¶¶ 4–5, 8–10; Proposed Am.

Compl. ¶¶ 4–5, 8–10. Although plaintiff lodges a series of other allegations of wrongdoing

against both defendants in his oppositions to their motions to dismiss, [Dkt. # 9, 28], the only

claim that plaintiff makes in the complaint and the proposed amended complaint is that

defendants are wrongly collecting the entire value of his federal payments instead of collecting

some smaller percentage of the value. Accordingly, that is the only claim that the Court will

consider. See Daniels v. District of Columbia, 894 F. Supp. 2d 61, 69 (D.D.C. 2012), quoting

Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C.

2003) (internal quotation marks omitted) (“It is axiomatic that a complaint may not be amended

by the briefs in opposition to a motion to dismiss . . . .”).

        Plaintiff seeks injunctive relief, compensatory and punitive damages, and court costs.

Compl. ¶ 9; Proposed Am. Compl. ¶ 9. The complaint seeks $65,000 in compensatory/punitive




                                                   8
damages, Compl. ¶ 10, and the proposed amended complaint seeks $500,000, Proposed Am.

Compl. ¶ 10.

       I.      Defendant FMS’s Motion to Dismiss or for Summary Judgment as to the
               Original Complaint

       Defendant FMS has moved to dismiss all claims against it or, in the alternative, for

summary judgment.

       FMS’s motion to dismiss is based on grounds of sovereign immunity, subject matter

jurisdiction, and failure to state a claim upon which relief may be granted. 2 The Court will

dismiss plaintiff’s claim for monetary relief against FMS because the claim is barred by

sovereign immunity, and the Court lacks jurisdiction over it.

       The Tucker Act vests the United States Court of Federal Claims with exclusive

jurisdiction over claims seeking over $10,000 in monetary damages, unless Congress has granted

another court authority to hear the claim concurrently. 28 U.S.C. §§ 1346(a)(1)–(2), 1491(a)(1)–

(2); see also Kidwell v. Dep’t of the Army, 56 F.3d 279, 283 (D.C. Cir. 1995), citing Bowen v.

Massachusetts, 487 U.S. 897, 910 n.48 (1988). Plaintiff’s claim for damages exceeds the




2       The motion also cites plaintiff’s failure to properly serve FMS under Federal Rule of
Civil Procedure 8(a)(2). See Def.’s Mot. to Dismiss or for Summ. J. (“FMS’s Mot.”) [Dkt. # 6]
at 2. However, the Court declines to address this ground because plaintiff – who is proceeding
pro se – has now filed a proper return of service on FMS, Return of Service/Aff. (October 5,
2012) [Dkt. # 13], and FMS has not been disadvantaged by the belated nature of the service but
has been actively involved in this case since its inception. See Ali v. Mid-Atl. Settlement Servs.,
Inc., 233 F.R.D. 32, 35 (D.D.C. 2006), quoting Karlsson v. Rabinowitz, 318 F.2d 666 (4th Cir.
1963) (“[W]here the defendant has received actual notice of the action, [the Federal Rules]
should be liberally construed to effectuate service and uphold the jurisdiction of the court.”). In
addition, the Court declines to dismiss this case under Federal Rule of Civil Procedure 8(a)(2) for
failure to show that the pleader is entitled to relief. The Court finds that plaintiff’s complaint
includes a sufficient plain statement of the claim such as to give “the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests[.]” Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 512 (2002).


                                                9
$10,000 limit, and plaintiff has not identified any statute that would vest this Court with

concurrent jurisdiction. 3

        In addition, plaintiff has not identified any waiver of the United States’ sovereign

immunity as to his claim for damages against FMS. 4 “A waiver of the Federal Government’s

sovereign immunity must be unequivocally expressed in statutory text, and will not be implied.”

Lane v. Pena, 518 U.S. 187, 192 (1996) (internal citations omitted); see also Haase v. Sessions,

893 F.2d 370, 373 (D.C. Cir. 1990) (“[W]aivers of sovereign immunity, the Supreme Court has

repeatedly reminded us, must be narrowly construed.”). Moreover, “to sustain a claim that the

government is liable for awards of monetary damages, the waiver of sovereign immunity must

extend unambiguously to such monetary claims.” Lane, 518 U.S. at 192. The only federal

statute that plaintiff cites in favor of his claims is the Debt Collection Improvement Act of 1996

(“DCIA”), 31 U.S.C. § 3701, et seq. See Statutes to Support Pl.’s Arguments in his Am. Compl.

[Dkt. # 35-2] ¶¶ 1–3. That statute governs the United States’ withholding of funds to satisfy a

claim. 31 U.S.C. § 3701. Plaintiff has not identified any waiver of sovereign immunity in that


3      In fact, neither plaintiff’s complaint nor his opposition to FMS’s motion to dismiss or for
summary judgment specify which statute, regulation, or other source of law plaintiff believes
FMS has violated. However, since plaintiff has provided the Court a list of the statutes that he
believes support his claims, – as both an attachment to his proposed amended complaint and his
motion for summary judgment – the Court will construe the claims in the complaint as arising
under the statutes listed in that document. See Statutes to Support Pl.’s Arguments in his Am.
Compl. [Dkt. # 35-2].

4       The Court also notes that in his opposition to FMS’s motion, plaintiff failed to address
FMS’s sovereign immunity argument. On that basis alone, the Court could treat FMS’s
argument as conceded and dismiss plaintiff’s claims for damages against it. See Durant v.
District of Columbia, -- F. Supp. 2d --, Civ. A. No. 10-25, 2013 WL 1189363, at *8 (D.D.C.
Mar. 25, 2013), citing McMillan v. Wash. Metro. Area Transit Auth., 898 F. Supp. 2d 64, 69
(D.D.C. 2012) (“It is well understood in this Circuit that when a plaintiff files an opposition to a
motion . . . addressing only certain arguments raised by the defendant, a court may treat those
arguments that the plaintiff failed to address as conceded.”). However, because plaintiff is
proceeding pro se, the Court declines to dismiss the claim on that basis alone. See Rodriguez v.
Donovan, -- F. Supp. 2d --, Civ. A. No. 12-434, 2013 WL 504160, at *3 (D.D.C. Feb. 12, 2013).
                                                10
statute that would apply to his claims for monetary damages, and the Court does not find any.

Accordingly, the Court finds that plaintiff’s claim for monetary relief against FMS is barred by

sovereign immunity, and it will grant FMS’s motion to dismiss that claim under Federal Rule of

Civil Procedure 12(b)(1).

        However, to the extent that plaintiff seeks an injunction barring FMS from continuing to

intercept his entire payments, Congress has waived the government’s sovereign immunity and

vested jurisdiction in this Court over that claim through the Administrative Procedure Act, 5

U.S.C. § 702; see also Sea-Land Serv., Inc. v. Alaska R.R., 659 F.2d 243, 244 (D.C. Cir. 1981)

(stating that the Administrative Procedure Act “eliminate[es] sovereign immunity defense[s] in

all actions for specific, nonmonetary relief against a United States agency or officer acting in an

official capacity”).

        Nonetheless, the Court finds that summary judgment in favor of FMS is warranted on the

claim for injunctive relief. A motion to dismiss must be treated as a motion for summary

judgment if “matters outside the pleadings are presented to and not excluded by the court.” Fed.

R. Civ. P. 12(d); see also Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003)

(holding that district court’s consideration of matters outside the pleadings converted the

defendant’s Rule 12 motion into one for summary judgment).            Because both parties have

submitted documents outside of the pleadings, and the Court will rely on them to resolve at least

some issues presented by FMS’s motion, the Court will proceed directly to FMS’s motion for

summary judgment.

        As described above, plaintiff has indicated that the legal basis for his claim against FMS

arises under the DCIA and the regulations implementing it.         See Statutes to Support Pl.’s




                                                11
Arguments in his Am. Compl., [Dkt. # 47] at 7; [Dkt. # 35-2] at 5.5 The DCIA authorizes the

Department of Treasury to enter into a reciprocal agreement with a state, under which FMS

agrees to offset certain federal payments – including vendor payments – in order to collect non-

tax debts owed to the state. 31 U.S.C. § 3716(h); 31 C.F.R. § 285.6; 31 C.F.R. § 285.5(e)(1)

(stating that vendor payments are eligible for offset in accordance with 31 U.S.C. 3716). Such a

reciprocal agreement exists between FMS and the State of Maryland. See generally Kobielus

Decl., Ex. A to FMS’s Mot [Dkt. # 6-1]. The system by which FMS collects debt under the

DCIA is called the Treasury Offset Program (“TOPS”). See Lepelletier v. U.S. Dep’t of Educ.,

Civ. A. No. 09-1119, 2009 WL 4840153, at *1 (D.D.C. Dec. 14, 2009). In this case, debts have

been certified to TOPS from the District of Columbia and the State of Maryland. Kobielus Decl.

¶ 6.

       Although plaintiff claims that FMS does not have the authority to deprive him of the

entire value of his independent contractor payments, he does not cite any provision of the DCIA,

any regulation, or any other source of law that caps the portion of a vendor payment that FMS

may collect once an authorized state has certified a debt to TOPS. Rather, the DCIA states that

“a disbursing official of the Department of Treasury . . . shall offset at least annually the amount

of a payment which a payment certifying agency has certified to the disbursing official for

disbursement, by an amount equal to the amount of a claim which a creditor agency has certified

to the Secretary of the Treasury pursuant to this subsection.” 31 U.S.C. § 3716(c)(1)(A). And

the implementing regulation – entitled Administrative Offset Under Reciprocal Agreements with

States – 31 C.F.R. § 285.6(h)(1), expressly incorporates 31 C.F.R. § 285.5(f)(2)(i), which states



5       Moreover, in plaintiff’s opposition to FMS’s motion to dismiss or for summary judgment,
plaintiff does not oppose FMS’s characterization of his claims in its motion as arising under the
DCIA. See FMS’s Mot. at 2.
                                                12
that, “[e]xcept as otherwise provided in 31 C.F.R. § 285.4(e) and 285.7(g) (addressing

centralized offset of certain Federal benefit payments and salary payments, respectively), the

disbursing official shall offset the lesser of: (A) The amount of the payment shown on the

payment record; or (B) The amount of the debt, including any interest, penalties and

administrative costs . . . .”     31 C.F.R. § 285.5(f)(2)(i); see also 31 C.F.R. § 285.6(h)(1)

(“Disbursing officials shall conduct administrative offset under this section in the same manner

as set forth in 31 C.F.R 285.5(f) through (i).”).

       The two express exceptions to the requirements imposed upon the disbursing official are

not applicable here. The first, 31 C.F.R. § 285.4(e), provides limits for the percentage of an

individual’s “monthly covered benefit payment” that may be offset. A “monthly covered benefit

payment” as defined by the regulation is “a covered benefit payment payable to a payee on a

recurring basis at monthly intervals that is not expressly limited in duration, at the time the first

payment is made, to a period of less than 12 months.” 31 C.F.R. § 285.4(b). And the provisions

of the regulation expressly apply only to “Federal benefit payments payable to an individual

under the Social Security Act . . ., part B of the Black Lung Benefits Act, or any law

administered by the Railroad Retirement Board[.]” 31 C.F.R. § 285.4(a). Here, plaintiff does

not allege that he receives any “monthly covered benefit payment” from the federal government

that is being offset or withheld. Rather, plaintiff’s complaint, as well as his opposition to

defendant’s motion, specifically aver that the payments that have been offset are fees plaintiff

receives for independent contract work upon submission of a voucher to the District of Columbia

Superior Court Finance Office. Compl. ¶ 2; Pl.’s Opp. to Def.’s Mot. to Dismiss and For Summ.

J. (“Pl.’s Opp. to FMS’s Mot.”) [Dkt. # 9] at 1. Accordingly, this exception does not apply.




                                                    13
       The second exception also does not apply. 31 C.F.R. § 285.7(g) provides a cap for the

percentage of an individual’s “salary payment” that may be offset. According to the regulation,

“salary offset means administrative offset to collect a debt owed by a Federal employee from the

current pay account of the employee.” 31 CFR § 285.7(b). But again, plaintiff has provided no

evidence – and indeed, not even an allegation – that he is a federal employee or that he earns a

“salary” that is being offset. First, in the complaint, plaintiff characterizes his status as an

independent contractor – not an employee. 6 Compl. ¶ 2. This status is confirmed by the form of

the proof of payment from the General Services Administration that plaintiff has attached to his

complaint as an exhibit. [Dkt. # 3-1] at 122. The form is labeled “invoice,” it lists Mshairi J.

Miller as the “vendor name,” and it states: “This notice identifies the invoice, purchase order or

similar document numbers to which the enclosed check relates.” Id. In other words, the

payments are not federal employee salary, but vendor payments. Finally, plaintiff attaches to the

complaint three “Notices of Intent to Offset” from the Maryland Department of Budget and

Management dated May 5, 2012. All three notices explain that his “federal vendor payments”

will be offset to satisfy outstanding debt with the Central Collection Unit, State of Maryland.

[Dkt. # 3-1] at 102–104. The documents expressly note that “Federal Income Tax refunds;




6       The Court notes that in his opposition to FSM’s motion, plaintiff avers that legal
investigators make an annual salary of $65,000 and receive “a whole Pay Check every Friday in
the month,” Pl.’s Opp. to FMS’s Mot. at 2, but the complaint characterizes his legal investigator
role as an “independent contractor” who gets paid on a per-case basis by submitting a voucher
for the work performed on that case, Compl. ¶ 2.


                                               14
Federal Social Security Benefits, Federal Salary Payments; etc. are not Federal Vendor Payments

and are not subject to offset.” Id. 7

        Therefore, plaintiff has failed to establish that any of the federal statutes or regulations

under which his claims arise prohibit FMS from collecting the entire amount of his vendor

payments. Rather the DCIA and the implementing regulations require FMS to offset the entire

amount of the vendor payment if that amount is less than the debt owed.                  31 C.F.R.

§ 285.6(h)(1), incorporating 31 C.F.R. § 285.5(f)(2)(i).       Accordingly, the Court will grant

summary judgment to FMS as to plaintiff’s request for injunctive relief.

        II.     Plaintiff’s claims against Smith

        The Court will also grant Smith’s motion to dismiss.

        First, plaintiff’s claim against Smith for monetary relief, and any claim against Smith

arising under Maryland state law, are both barred by sovereign immunity. Importantly, Smith is

sued in this case in her official capacity as an accounts manager for the Maryland Department of

Budget and Management, not in her individual capacity. 8 A “suit against a state official in his or

her official capacity is not a suit against the official but rather is a suit against the official’s



7       Plaintiff also attaches several notices from FMS dated 2009 and 2010, which indicate that
FMS was intercepting federal payments to satisfy non-tax debt that had been certified from the
State of Maryland. [Dkt. # 3-1] at 119–121. Plaintiff, however, does not contend that the nature
of the payments offset at that time was any different from payments offset in 2012. Rather,
plaintiff alleges in his complaint that he has been an independent contractor acting as a legal
investigator for the Superior Court of the District of Columbia for the past seven years. Compl.
¶ 1. Moreover, his complaint only contests the funds intercepted in the two months prior to the
filing of the complaint, Compl. ¶ 4, which are April and May of 2012, so the notices from 2009
and 2010 are not relevant to the claims underlying this action.

8       In response to the Court’s Minute Order of November 5, 2012, requiring plaintiff to file a
notice informing the Court whether he intended to serve defendant D. Smith in her individual or
official capacity, plaintiff clarified that Smith is sued in her official capacity as an accounts
manager for the Maryland Department of Budget and Management, not in her individual
capacity. See Notice to Ct. of Serv. of Process for D. Smith, [Dkt. # 19] ¶¶ 3–4.
                                                15
office,” and is, therefore, no different from a suit against the State itself. Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 71 (1989). In the absence of a waiver of sovereign immunity, the

Eleventh Amendment bars suits for retroactive monetary relief brought against a State by its own

citizens in federal court. Edelman v. Jordan, 415 U.S. 651, 663 (1974). Moreover, suits against

a state, brought in federal court, for violation of a state law, are also barred by the Eleventh

Amendment, even if the court would otherwise have supplemental jurisdiction over state law

claims.     Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984); see also

McNeilus Truck & Mfg., Inc. v. Ohio ex rel. Montgomery, 226 F.3d 429, 438 (6th Cir. 2000).

          Plaintiff has not pointed the Court to any provision of state or federal law that would

waive Maryland’s sovereign immunity, and the Court does not find a waiver in any of the state

or federal statutes that plaintiff cites as the basis for his claims. See Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 239–40 (1985) (holding that courts will only find a waiver of sovereign

immunity “‘by the most express language or by such overwhelming implication from the text as

[will] leave no room for any other reasonable construction’”), quoting Edelman v. Jordan, 415

U.S. 651, 673 (1974); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 (1996) (“Congress

may abrogate states’ sovereign immunity if it has ‘unequivocably expresse[d] it intent to

abrogate the immunity’ and has acted ‘pursuant to a valid exercise of power.’”), quoting Green v.

Mansour, 474 U.S. 64, 68 (1985). Accordingly the Court will dismiss plaintiff’s claims for

monetary relief against Smith and any claim against Smith arising from Maryland state law. See

Rodriguez v. Editor in Chief, Legal Times, No. 07-5234, 2008 WL 2396189, at *1 (D.C. Cir.

Feb. 25, 2008) (per curiam) (summarily affirming the district court’s dismissal of claims for

money damages against Virginia state defendants in their official capacities as barred by the

Eleventh Amendment).



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       However, under Ex Parte Young, 209 U.S. 123 (1908), “a private party can sue a state

officer in his or her official capacity to enjoin prospective action that would violate federal law.”

Ameritech Corp. v. McCann, 297 F.3d 582, 586 (7th Cir. 2002). The problem here is that

plaintiff has not identified any federal law that Smith has violated. Plaintiff objects only to the

portion of his vendor payments that the federal government is withholding at Maryland’s behest.

His complaint does not contest the underlying debt or the process that the State used to certify

debt to FMS. See Compl. ¶ 4 (“Plaintiff acknowledges that there was some out[s]tanding

[d]ebts, but Defendants should not be collecting whole Pay Checks.”). Yet plaintiff has not

shown that the State of Maryland plays any role in determining what portion of an individual’s

federal payment will be withheld once the State has certified a debt to FMS under the TOPS

program. And, as the Court has already explained, the DCIA requires that “a disbursing official

of the Department of Treasury . . . shall offset at least annually the amount of a payment which a

payment certifying agency has certified to the disbursing official for disbursement, by an amount

equal to the amount of a claim which a creditor agency has certified to the Secretary of the

Treasury pursuant to this subsection.” 31 U.S.C. § 3716(c)(1)(A). Under the DCIA, the State

plays no role in determining what portion of an individual’s federal payment is offset, apart from

certifying to FMS how much is owed, and FMS is bound to satisfy the entire debt. Accordingly,

plaintiff has failed to state a claim against Smith under Federal law upon which relief can be

granted.

       III.    Plaintiff’s motion for leave to file an amended complaint

       Plaintiff’s proposed amended complaint does not cure any of the deficiencies identified

above: (1) the jurisdiction and immunity bars that prevent plaintiff from asserting his claims for

monetary relief against FMS or Smith and his claims against Smith under state law, (2) the



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deficiencies in plaintiff’s claims against FMS for injunctive relief, or (3) the deficiencies in

plaintiff’s claims against Smith arising under federal law. Accordingly, the Court will deny his

motion for leave to amend the complaint.

       When a party seeks to amend its pleading after a responsive pleading has been served, the

Court should “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2);

see Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). When evaluating whether to

grant leave to amend, the Court must consider (1) undue delay; (2) prejudice to the opposing

party; (3) futility of the amendment; (4) bad faith; and (5) whether the plaintiff has previously

amended the complaint. Atchinson v. District of Columbia, 73 F.3d 418, 425 (D.C. Cir. 1996),

quoting Foman v. Davis, 371 U.S. 178, 182 (1962). The Court may deny leave to amend based

on futility “if the proposed claim would not survive a motion to dismiss.” Rumber v. District of

Columbia, 598 F. Supp. 2d 97, 102 (D.D.C. 2009), citing James Madison Ltd. v. Ludwig, 82 F.3d

1085, 1099 (D.C. Cir. 1996). The only difference between the original complaint and the

proposed amended complaint is the amount of damages that plaintiff demands. This does not

cure any of the deficiencies in his original complaint. Accordingly, the Court will deny plaintiff

leave to file an amended complaint because his amendment would be futile.

                                        CONCLUSION

       For the above-stated reasons:

1. The Court will grant defendant FMS’s motion to dismiss or for summary judgment. For

   plaintiff’s claims for monetary relief, the motion will be granted as to the motion to dismiss.

   For plaintiff’s claims against FMS for injunctive relief, the motion will be granted as to the

   motion for summary judgment.




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2. The Court will grant defendant D. Smith’s motion to dismiss or for summary judgment as to

   the motion to dismiss.

3. The Court will deny plaintiff’s motion for leave to amend the complaint;

4. The Court will deny as moot FMS’s renewed motion to dismiss or for summary judgment;

   and

5. The Court will deny as moot plaintiff’s motion for summary judgment.

         A separate Order will issue.




                                            AMY BERMAN JACKSON
                                            United States District Judge

DATE: July 10, 2013




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