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Lang v. Social Security Administration: US District Court : CIVIL PROCEDURE - state court default judgment versus Social Security Administration void; complaint properly removed; suit dismissed

Civil No. 08-5029 (JRT/JJG)
Robert J. Bruno, ROBERT J. BRUNO, LTD., 1601 Highway 12 East,
Suite 107, Burnsville, MN 55337, for plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, UNITED STATES
ATTORNEYS OFFICE, 600 United States Courthouse, 300 South
Fourth Street, Minneapolis, MN 55415, for defendant.
This case is before the Court on plaintiff Geraldine Langs motion for remand and
defendant Social Security Administrations (SSA) motion to dismiss. For the reasons
set forth below, the Court denies Langs motion to remand and grants the SSAs motion
to dismiss.
Lang was awarded alimony and child support from her ex-husband after a
Minnesota state court entered a judgment and divorce decree on October 29, 2004.
(Docket No. 8, Ex. 1.) Three years later, on December 26, 2007, the Minnesota State
District Court for the First Judicial District issued an order granting judgment in Langs
favor for approximately 00 in past-due child support and medical support. (Id., Ex.
12, 5.) On December 31, Lang served a garnishment summons on the designated
officer for the St. Paul office of the SSA, seeking the withholding of a portion of Langs
ex-husbands Social Security Disability benefits to satisfy the judgment for past-due child
support. (Id., Ex. 3.)
On February 18, 2008, in response to a request by the SSA, Lang supplemented
the garnishment summons by providing the SSA with a copy of the state courts order of
judgment for child support arrearages. On February 25, the SSA responded that there
was insufficient information in Langs correspondence from which to determine 1) that
the SSA was ordered to collect child support or 2) the person whose benefit payments the
garnishment would affect. (Id., Ex. 4.) As a result of these alleged failures, the SSA did
not commence garnishment of Langs ex-husbands Social Security Disability benefits.
On March 25, 2008, Lang mailed to the designated St. Paul SSA officer a notice of
hearing on a motion for default judgment or for leave to proceed on a Supplemental
Complaint. (Docket No. 9, Ex. 6.) The SSA served no response and did not appear at the
hearing. (Docket No. 15 at 3.) On April 8, 2008, the state district court granted Lang
leave to serve and file the Supplemental Complaint, which reads in relevant part:
7. On December 31[, 2007], the SSA is indebted to the Judgment
Debtor[, Langs ex-husband,] in amounts that are unknown.
8. The garnishee, [the SSA,] is in default for failure to disclose.
WHEREFORE, Plaintiff prays for judgment against the Garnishee [the
SSA] in the amount of ,456.88 plus costs and disbursements.
(Docket No. 9, Ex. 8.)
On April 10, 2008, Lang filed and mailed a copy of the Supplemental Complaint
to the designated officer at the St. Paul SSA office. (Id., Ex. 8.) Lang alleges that this act
constituted proper service of the Supplemental Complaint on the SSA. (Docket No. 15 at
4.) The SSA did not respond, however, and on June 5, 2008, the state district court filed
an order entering default judgment against the SSA. (Docket No. 10, Ex. 10.) On
June 30, the SSA mailed a letter to Langs counsel stating, WE ARE UNABLE TO
PROCESS YOUR REQUEST . . . If you have any questions, you should call, write, or
visit any Social Security office. (Id., Ex. 11.) On July 15, the state court issued a writ
of execution directing the Ramsey County Sherriff to execute the judgment against the
SSA. (Id., Ex. 12.) On August 12, the Ramsey County Sheriff served the writ of
execution at the St. Paul SSA office, but found no assets to satisfy the writ. (Id., Ex. 13.)
The United States Attorney for the District of Minnesota, on August 28, 2008,
filed a notice of removal of the Supplemental Complaint against the SSA. Lang
subsequently filed the instant motion to remand, and on October 8, 2008, the SSA filed a
motion to dismiss.
The SSA removed the Supplemental Complaint to the United States District Court
for the District of Minnesota pursuant to 28 U.S.C. 1442(a)(1).1 Under 1442(a)(1), a
civil action commenced in a state court may be removed to a federal district court if that
action is against [t]he United States or any agency thereof. Id. 1442(a)(1). To
qualify for removal under this section, a defendant must, among other things, raise a
colorable defense arising out of [the defendant's] duty to enforce federal law. Mesa v.
California, 489 U.S. 121, 133 (1989) (internal quotations marks omitted). For a defense
to be considered colorable, it need only be plausible; 1442(a)(1) does not require a
court to hold that a defense will be successful before removal is appropriate. United
States v. Todd, 245 F.3d 691, 693 (8th Cir. 2001).
A. The SSAs Motion to Remove is Timely
Lang first contends that the SSAs notice of removal is improper because it is
untimely. The notice of removal of a civil action or proceeding shall be filed within
thirty days after the receipt by the defendant, through service or otherwise, of a copy of
the initial pleading setting forth the claim for relief upon which such action or proceeding
is based. 28 U.S.C. 1446(b). Further,
1 The Court does not address the merits of the SSAs additional removal grounds under
1441(a), finding that the grounds for removal under 1442(a)(1) are independently sufficient
to permit the removal of the Supplemental Complaint.
[i]f the case stated by the initial pleading is not removable, a notice of
removal may be filed within thirty days after the receipt by the defendant,
through service or otherwise, of a copy of an amended pleading, motion,
order or other paper from which it may first be ascertained that the case is
one which is or has become removable.
Here, the first question is therefore which initial pleading began the period of
limitations for removal. Next, the Court must determine whether an amended pleading,
from which a colorable federal defense could first be ascertained, was properly served
such that a new period of limitations commenced.
In this case, there are two pleadings or papers: the garnishment summons and the
Supplemental Complaint. Lang contends that the garnishment summons, served on the
SSA on December 31, 2007 pursuant to 42 U.S.C. 659, is the initial pleading that
begins the period of limitations for filing a notice of removal. Section 659 provides for a
limited waiver of the United States sovereign immunity (a federal defense) in
garnishment collection actions:
Moneys (the entitlement to which is based upon remuneration for
employment) due from, or payable by, the United States . . . (including any
agency . . . 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 in accordance with State law enacted pursuant to subsections
(a)(1) and (b) of section 666 of this title and to any other legal process
brought, by a State agency administering a program under a State plan
approved under this part or by an individual obligee, to enforce the legal
obligation of the individual to provide child support or alimony.
42 U.S.C. 659(a) (emphasis added).
Under the statute, service of any orders seeking the withholding of funds payable
to an individual by the United States, which include Social Security Disability benefits
payable by the SSA, id. 659(h)(A)(i)(I), may be made to a designated officer of that
agency. Id. 659(c)(1). Here, it is undisputed that the garnishment summons of
December 31, 2007 was properly served on a designated SSA officer in St. Paul pursuant
to 42 U.S.C. 659. It is therefore clear that the removal of the garnishment summons, if
removed on August 28, 2008, would be untimely, even if it were permissible under
removal statutes.
Lang further argues that the Supplemental Complaint is not a new, amended
pleading under 1446(b), and thus the removal period of limitations began with the
service on the SSA of the garnishment summons four months earlier. The Supplemental
Complaint, however, is not a mere continuation of the garnishment collection action.
Instead, it gives rise to a new, direct claim against the SSA. Thus, the Court next
considers whether the SSA properly filed a notice of removal within thirty days of the
filing of the Supplemental Complaint.
Lang claims that she properly served the Supplemental Complaint on the SSA in
accordance with 42 U.S.C. 659 on April 10, 2008: Lang mailed the Supplemental
Complaint by registered, certified mail to the designated SSA garnishment officer. As a
result, Lang argues that the SSAs filing of a notice of removal on August 28, 2008, was
well over thirty days after service and is thus untimely. The SSA disagrees, arguing that
it was never properly served.
[L]egal process [under 659] means any writ, order, summons, or other similar
process in the nature of garnishment . . . which is directed to, and the purpose of which is
to compel, a governmental entity which holds moneys which are otherwise payable to
make a payment from the moneys to another party in order to satisfy a legal
obligation of the individual to provide child support or make alimony payments. Id.
659(i)(5) (emphasis added)). The Supplemental Complaint, however, was not in the
nature of garnishment and thus 659 did not provide for the rules of service on the SSA.
The Supreme Court has held that actual service is required for the 28 U.S.C.
1446(b) removal period of limitations to begin. Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 351-52 (1999). Under the Federal Rules of Civil
Procedure, to serve a United States agency . . . a party must serve the United States and
also send a copy of the summons and of the complaint by registered or certified mail to
the agency. Fed. R. Civ. P. 4(i)(2). In order to serve the United States, a party must
deliver a copy of the summons and the complaint to the United States attorney for the
district where the action is brought. Id. 4(1)(A)(i) Here, Lang sought a judgment
directly against the SSA, an agency of the United States, but failed to properly serve the
United States Attorney for the District of Minnesota. Consequently, the Court will not
deny the SSAs petition for removal on the grounds that the SSAs removal notice was
B. The Social Security Administration Has a Valid Federal Defense
The Court next turns to the issue of whether the SSA has stated a colorable federal
defense. It is axiomatic that the United States may not be sued without its consent and
that the existence of consent is a prerequisite for jurisdiction. See United States v.
Mitchell, 463 U.S. 206, 212 (1983). In Overman v. United States, 563 F.2d 1287 (8th Cir.
1977), the Eighth Circuit addressed a suit contesting the validity of a prior divorce
decree that [came] into federal court by removal after a federal employee garnished for
alimony and child support obligations sought to enjoin his federal disbursing officer from
honoring the garnishment. Id. at 1289. On appeal from the district courts denial of the
federal employees motion to remand under 659, the Court held that [c]learly, the
defense of sovereign immunity applies here. Appellant points to no statute or other
ground permitting him to sue the Government, and 42 U.S.C. 659 . . . does not
authorize this action against federal defendants. Overman, 563 F.2d at 1291. The
Eighth Circuit further noted that 659 only waives government immunity from legal
process brought for the enforcement . . . of the legal obligations to provide child support
to make alimony payments. The statute patently does not waive governmental immunity
to other kinds of lawsuits. Overman, 563 F.2d at 1291-92 (internal quotation marks
omitted). Finally, the Eighth Circuit held that under 659, Congress has not consented
to its fiscal officer being sued for any purpose other than enforcement of the legal
obligations to provide child support or alimony payments. Id. (emphasis added). As
a result, the United States sovereign immunity barred the employees claim for
injunctive relief. Id.
Here, the Supplemental Complaint was filed four months after the garnishment
summons was served on the SSA, and it seeks judgment against the SSA. Thus, the
Supplemental Complaint changed the nature of the litigation from a garnishment
collection action against Langs ex-husband to an action directly against the SSA. Under
Overman, and absent any claim by Lang that an alternative statute waives governmental
immunity in these circumstances, the SSA has sovereign immunity from such a claim.
As a result, not only does the United States have a colorable and substantial federal
defense such that removal is appropriate under 1442(a)(1), but dismissal for failure to
state a claim is warranted. A motion to dismiss should not be granted unless it appears
beyond a doubt that plaintiff can prove no set of facts that would entitle plaintiff to relief.
Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). Where Lang has failed to cite any
statute in which the United States consents to be sued for a claim such as the one sought
in the Supplemental Complaint, however, Lang has failed to state a claim on which relief
may be granted.
Lang also argues that the SSA improperly removed this action under the Rooker-
Feldman doctrine, which generally bars a federal courts review of the final state court
judgment. That is, Rooker-Feldman applies to cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection. Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Generally, a case may not
be removed after a state court has entered final judgment on a matter. Four Keys Leasing
& Maint. Corp. v. Simithis, 849 F.2d 770, 774 (2d Cir. 1988). However, it is well
established that a federal district court has jurisdiction to consider a motion for relief
from an order of default entered in state court. A federal court has the power to set aside a
default entered in state court . . . when a state court lacked jurisdiction to make an entry
of default. See, e.g., Aiken v. Waffle House, Inc., 509 F. Supp. 2d 541, 545 (D.S.C.
2007) (internal quotation marks omitted)). Here, the Court finds that as a consequence of
the insufficient service of process of the Supplemental Complaint on the United States,
the state court did not have jurisdiction to enter an order of default against the SSA.
Accordingly, the state courts default judgment is void and the Supplemental Complaint
was properly removed.2
At the hearing on these motions, the parties alluded to a state court hearing, set for
February 24, 2009, in which the SSA intends to iron out the issues that were the focus of
this litigation in state courts. The Court expects that the garnishment collection issue,
which the SSA did not remove with the Supplemental Complaint, will be resolved at that
2 The Aiken court also noted that the Rooker-Feldman doctrine, which prohibits federal
court review of state court judgments . . . [addresses] separate federal court actions, filed in the
original jurisdiction of the court, rather than removal of state court actions over which the federal
court has, at the time of removal, original jurisdiction. Aiken, 509 F. Supp. 2d at 544 n.2 (citing
Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198-99 (4th Cir. 2000)). Here, the SSAs
removal would also be appropriate under 28 U.S.C. 1441(a), and would not offend Rooker-
Feldman, based on the Courts assertion of original jurisdiction over a civil action against the
United States for an amount less than ,000. See 28 U.S.C. 1346(b).
Based on the foregoing, all the files, records, and proceedings herein, IT IS
1. Plaintiff Geraldine Langs Motion to Remand [Docket No. 13] is DENIED.
2. Defendant Social Security Administrations Motion to Dismiss [Docket
No. 21] is GRANTED.
DATED: February 5, 2009 ____s/ ____
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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