Defendant's Attorney: Erin E. Brizius and Ruchi Asher
Description: Victoria Collin brought suit against the Commissioner of
Social Security to recover moneys she says are “due and owing” as a result of the
Commissioner’s failure, for about a year, to garnish certain benefits paid to her ex-husband. The
district court dismissed the suit on grounds of sovereign immunity. We affirm.
No. 17-3733 Collin v. Comm’r of Soc. Sec. Page 2
Collin divorced James Jacobs several decades ago. In 1990, an Ohio state court ordered
Jacobs to pay Collin $13,800 in child-support payments and attorney fees. Sometime thereafter
Jacobs began to receive social-security benefits, but at no time, apparently, did he pay Collin the
money he owed her. By January 2014, with interest, Jacobs’s arrearage totaled $45,356. That
month the state court entered an order directing the Commissioner to garnish that amount from
Jacobs’s social-security payments. In September 2014 the Commissioner agreed to honor that
order, and thus to withhold approximately $700 per month from Jacobs’s benefits payments and
to forward the funds to the Cuyahoga County Clerk of Courts until the arrearage was paid off.
See generally 42 U.S.C. § 659. Accordingly, until October 2015, the Commissioner sent
garnished funds to the state-court clerk, though on two occasions—in May and October 2015—
the Commissioner paid a larger sum, apparently in each instance to make up for the
Commissioner’s failure to make payments in prior months. At any rate, in October 2015 the
Commissioner mistakenly terminated the garnishment altogether.
A year later Collin brought this suit, which took the form of a petition for mandamus in
the district court. The petition asked the district court to order the Commissioner both to resume
the garnishment and to pay a lump sum equal to the amount the Commissioner had failed to
garnish after the October 2015 termination. In January 2017—three months after the petition
was filed—the Commissioner voluntarily resumed the garnishment. Soon thereafter the district
court granted the Commissioner’s motion to dismiss, holding that Collin’s request to resume the
garnishment was moot (because the Commissioner had done so already) and that Collin’s
demand for a lump-sum payment was one for “money damages,” as to which the United States
was immune from suit. We review the court’s dismissal de novo. S. Rehab. Grp., P.L.L.C. v.
Sec’y of Health & Human Servs., 732 F.3d 670, 676 (6th Cir. 2013).
“The doctrine of sovereign immunity removes subject matter jurisdiction in lawsuits
against the United States unless the government has consented to suit.” Haines v. Fed. Motor
Carrier Safety Admin., 814 F.3d 417, 425 (6th Cir. 2016) (internal quotation marks omitted).
Here, Collin argues that the United States has consented to this litigation by means of 42 U.S.C.
§ 659(a). That subsection provides in relevant part that moneys
No. 17-3733 Collin v. Comm’r of Soc. Sec. Page 3
payable by the United States . . . 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 . . . to enforce the legal obligation of the
individual to provide child support or alimony.
Pursuant to § 659, the Office of Personnel Management has promulgated a regulation
(whose validity is not contested here) that in turn provides: “Neither the United States, any
disbursing officer, nor any governmental entity shall be liable under this part to pay money
damages for failure to comply with legal process.” 5 C.F.R. § 581.305(e)(2). Thus, the parties
agree, the question presented here is whether Collin’s demand for a lump-sum payment is a
demand for money damages.
The Supreme Court has “long recognized the distinction between an action at law for
damages—which are intended to provide a victim with monetary compensation for an injury to
his person, property, or reputation—and an equitable action for specific relief—which may
include an order . . . for the recovery of specific property or monies[.]” Bowen v. Massachusetts,
487 U.S. 879, 893 (1988) (internal quotation marks omitted). Money damages are thus
compensatory relief, which serve as a “substitute for a suffered loss, whereas specific remedies
are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was
entitled.” Id. at 895 (internal quotation marks omitted).
This distinction is harder to make when, as here, the very thing to which the plaintiff says
she is entitled is the payment of money. In Bowen, the Court held that “[t]he State’s suit to
enforce § 1396b(a) of the Medicaid Act, which provides that the Secretary [of Health and Human
Services] ‘shall pay’ certain amounts for appropriate Medicaid services, is not a suit seeking
money in compensation for the damage sustained by the failure of the Federal Government to
pay as mandated; rather, it is a suit seeking to enforce the statutory mandate itself, which
happens to be one for the payment of money.” Id. at 900 (second emphasis added). Here the
statutory mandate is different in kind. Specifically, under 42 U.S.C. § 659, the government
obligated itself “to withhold” approximately $700 per month from benefits owed to Jacobs, and
to pay those moneys to the Cuyahoga County Clerk of Courts. The government did not withhold
those funds between October 2015 and January 2017, and cannot do so now because those
benefits have already been paid. The lump sum that Collin seeks now, therefore, would be a
No. 17-3733 Collin v. Comm’r of Soc. Sec. Page 4
substitute for moneys the government should have withheld then. Thus, the relief she seeks for
those missed payments is not enforcement of “the statutory mandate itself”—as to those
payments, rather, the time for “withholding[,]” 42 U.S.C. § 659(a), is long since past—but
instead money damages for the government’s prior failure to withhold. See Dep’t of Army v.
FLRA, 56 F.3d 273, 276 (D.C. Cir. 1995) (where the statutory mandate was only to provide
“notice” of the “Army’s pay-lag policy,” interest charges to compensate employees for the
government’s failure to provide such notice were money damages).
The government therefore has not waived its immunity as to Collin’s demand for a lumpsum
payment. Nor did the government waive that immunity by making payments larger than
$700 in May and October 2015 (to make up for missed payments in the months before), since
only Congress by legislation, rather than the Commissioner by conduct, can waive the
government’s sovereign immunity. See Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 671
(6th Cir. 2013). It bears mention, finally, that our decision does not mean that Collin will never
receive the payments she seeks in a lump sum now. To the contrary, she will receive them as
part of the future stream of payments that the Commissioner will make (one hopes without
further mistakes by the government) until Jacobs’s arrearage is finally paid off.
Outcome: The district court’s judgment is affirmed.