                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2274
                                   ___________

Mary Ann Harter,                       *
                                       *
                  Appellant,           * Appeal from the United States
                                       * District Court for the Eastern
     v.                                * District of Missouri.
                                       *
Rod Paige, Secretary, United States    *     [UNPUBLISHED]
Department of Education,               *
                                       *
                  Appellee.            *
                                  ___________

                             Submitted: April 13, 2005
                                Filed: May 4, 2005
                                 ___________

Before LOKEN, Chief Judge, FAGG and BYE, Circuit Judges.
                              ___________

PER CURIAM.

       Mary Ann Harter, an attorney employed as a teacher by the state of Missouri,
defaulted on three guaranteed student loans she had obtained to fund her law school
education. Under the Federal Family Education Loan Program, the Department of
Education reimbursed the guaranty agency and initiated proceedings to collect the
loan by garnishing Harter’s wages. See 20 U.S.C. § 1095a. The Department sent
Harter a notice of its intent to collect the debt by administrative wage garnishment
(AWG), and Harter asked for a hearing, through her attorney, her husband. Harter
later requested an extension of the hearing date, then failed to respond to the
rescheduling request. The Department left a telephone message stating that if Harter
did not call, she would forfeit a hearing. Harter’s attorney conceded at oral argument
that the message was left on the Harters’ home answering machine, but claimed the
contents of the message was unknown because their teenager inadvertently erased it.
 After a written records hearing, the hearing officer issued a decision ordering
garnishment of Harter’s wages. In its decision, the officer considered and rejected
each of Harter’s objections to the garnishment. Most of the objections lacked
evidentiary support.

       Harter then filed this action challenging the garnishment decision under the
Administrative Procedure Act and the constitutionality of the Department’s
administrative wage garnishment. The district court* denied Harter’s motion to quash
the garnishment, her partial motion for summary judgment, and her motion for a
temporary restraining order. The court granted summary judgment to the Department
on Harter’s request for review of the administrative decision. The court found the
Department’s AWG was constitutional and the Department “established that there
was appropriate notice, but that [Harter] was unresponsive.” The court also observed
Harter failed to submit a statement of uncontroverted material facts and failed to
present any specific evidence to dispute any of the Department’s facts. Instead,
Harter had “attempted to rely on allegations in her pleadings rather than providing
sufficient probative evidence as required under [Federal Rule of Civil Procedure] 56.”

      Harter appeals arguing summary judgment was improper. We disagree. The
Department put adequate evidence into the summary judgment record to show Harter
was delinquent on her loans, she was given notice of intent to garnish, she was given
an opportunity to pick a hearing date through her attorney, and her attorney did not
respond. Harter failed to present any evidence to dispute these facts.



      *
       The Honorable Henry Autrey, United States District Judge for the Eastern
District of Missouri.

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        Harter also contends the statute authorizing AWG is unconstitutional. Harter’s
Fifth Amendment claim fails because the Department’s written records hearing
satisfies the due process requirement that the Department provide defaulted student
loan debtors a meaningful opportunity to present objections before implementing the
garnishment. Harter has failed to produce any evidence supporting her allegation that
the Department’s hearing was inadequate. We also reject Harter’s assertion that the
separation of powers doctrine prohibits Congress from assigning the Department the
power to decide defaulted student loan claims. Because the claims are raised for the
first time on appeal, we decline to consider Harter’s Seventh and Tenth Amendment
claims, as well as her claim that due process requires the hearing to be conducted by
an entity other than the Department.

       Harter next argues the district court should not have granted summary
judgment on her claim that the Department’s decision was arbitrary and capricious
under the Administrative Procedure Act. According to Harter, there were genuine
issues of material fact regarding her earlier bankruptcy and the Department’s actions
after she filed her complaint. Harter bore the burden to show the debt was
extinguished, however, and failed to do so. Further, the Department’s actions had no
effect on the district court’s review of the allegations in Harter’s complaint.

      Harter also contends the district court should have granted her motion for a
temporary restraining order. The Department did not exceed its authority in
implementing AWG, and 20 U.S.C. § 1082(a)(2) prohibits a court from entering an
injunction against the Secretary of Education.

      Last, Harter argues the Department should have excluded the amount
contributed to her teacher pension fund when determining the amount of pay subject
to garnishment. Harter relies on 20 U.S.C. § 1095a(e) (defining disposable pay
subject to garnishment as amount remaining “after the deduction of any amounts
required by law to be withheld”), Mo. Rev. Stat. § 169.030 (requiring public school

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retirement contributions), and id. § 169.587 (exempting retirement property or right
from garnishment). Because Harter raises this argument for the first time on appeal,
we decline to consider it. Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 725 (8th Cir.
2002). At oral argument, however, the Department’s attorney stated the Department
had been unaware of the Missouri statute, would review the legal issue, and
determine whether Harter is entitled to a reduction in garnishment.

       We grant Harter’s request for leave to supplement the appendix with federal
government records, including those of her bankruptcy. Having done so, we affirm
the district court.
                      ______________________________




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