United States District Court, N.D. Ohio, Eastern Division
Mario D. Blue, Plaintiff,
United States Dept. of Treasury, Defendant.
MEMORANDUM OF OPINION AND ORDER
A. BARKER, U.S. DISTRICT JUDGE
se Plaintiff Mario D. Blue filed this action in the
Cleveland Municipal Court against the United States
Department of Treasury alleging it breached a contract with
Plaintiff by withholding his tax refund to offset a child
support arrearage. The United States removed the action to
federal court and filed a Motion to Dismiss claiming this
Court lacks subject matter jurisdiction to review Treasury
offsets. For the reasons stated below, the government's
Motion to Dismiss (Doc. No. 4) is granted and this action is
dismissed for lack of jurisdiction.
Rule of Civil Procedure 12(b)(1) allows dismissal for
“lack of jurisdiction over the subject matter” of
claims asserted in the Complaint. Fed.R.Civ.P. 12(b)(1).
Generally, Fed.R.Civ.P. 12(b)(1) Motions fall into two
categories: facial attacks and factual attacks. Fed.R.Civ.P.
12(b)(1); United States v. Richie, 15 F.3d 592, 598
(6th Cir. 1994). In a facial attack, the challenger asserts
that the allegations contained in a Complaint are
insufficient on their face to invoke federal jurisdiction. By
contrast, in a factual attack, the challenger disputes the
truth of the allegations that, by themselves, would otherwise
invoke federal jurisdiction. See In re Title Ins.
Antitrust Cases, 702 F.Supp.2d 840, 884-85 (N.D. Ohio
2010), citing, Ohio Hosp. Ass'n v. Shalala, 978
F.Supp. 735, 739 (N.D. Ohio. 1997). If the Motion presents a
facial attack, the Court must take all the material factual
allegations in the Complaint as true and construe them in the
light most favorable to the Plaintiff. United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Conversely,
if the Motion presents a factual attack, then the Court is
free to consider extrinsic evidence and may weigh the
evidence of its own jurisdiction without affording the
Plaintiff the presumption of truthfulness. Ritchie,
15 F.3d at 598. The Plaintiff has the burden of proving
subject matter jurisdiction in order to survive a Motion to
Dismiss pursuant to Rule 12(b)(1). Madison-Hughes v.
Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). Lack of
subject matter jurisdiction is a non-waivable, fatal defect.
Von Dunser v. Aronoff, 915 F.2d 1071, 1074 (6th Cir.
assert a facial challenge to federal court jurisdiction,
claiming this Court is barred by a federal statute from
hearing any action challenging a Treasury offset of a tax
refund for payment of a child support arrearage. This Court
therefore must accept the Plaintiff's material factual
allegations in the Complaint as true. Ritchie, 15
F.3d at 598.
however, alleges few factual allegations. He states:
Defendant(s) executed a contract with Plaintiff-in terms
Plaintiff requested proof or competent evidence (binding
contract) where full consent is given to the U.S. DEPARTMENT
OF TREASURY BUREAU OF THE FISCAL SERVICE to distribute
personal property (Earned Income) to a third party collection
Agency (CUYAHOGA COUNTY CSEA) towards an alleged debt owed.
Plaintiff, or its agents, has made a demand on Defendant(s),
but Defendant(s) has failed to comply with such demand.
Defendant breached the terms of the agreement and as [a]
result, Plaintiff suffers damages in the amount of Four
Thousand Eighth Hundred Dollars ($4, 800.00).
(Doc. No. 1-1 at 1). Liberally construing Plaintiff's
allegations, it appears that Plaintiff is challenging the
offset of his federal income tax refund for a child support
well-settled that the federal government and federal agencies
enjoy sovereign immunity from suit unless it expressly waives
its immunity and consents to suit. See FDIC v.
Meyer, 510 U.S. 471, 475 (1994) (“[i]t is
axiomatic that the United States may not be sued without its
consent and that the existence of consent is a prerequisite
for jurisdiction”). Congress defines the exact terms
and conditions upon which the government may be sued, and the
terms of the United States' consent define the parameters
of federal court jurisdiction to entertain suits brought
against the United States. United States v. Orleans,
425 U.S. 807 (1976). A waiver of sovereign immunity must be
strictly construed, unequivocally expressed, and cannot be
implied. United States v. King, 395 U.S. 1, 4
has not waived sovereign immunity for this type of suit
against the Treasury Department. In fact, Congress has
explicitly barred such suits, stating, “No Court of the
United States shall have jurisdiction to hear any action,
whether legal or equitable, brought to restrain or review a
reduction authorized by subsection (c), (d), (e), or
(f).” 26 U.S.C.A. § 6402(g). Subsection (c) cited
above authorizes a reduction of an individual's federal
income tax refund for “any past-due [child] support
… owed by that person.” 26 U.S.C. §
6402(c). Under the terms of ...