United States District Court, E.D. New York
January 16, 2015
NOUREDINNE NOUREDINNE, Plaintiff,
ADMINISTRATION FOR CHILD AND FAMILY and ADMINISTRATION DE SUSTENTO DE MENORES, Defendants
NOUREDINNE NOUREDINNE, Plaintiff, Pro se, Astoria, NY.
For Administration for Child and Family, Defendant: Kathleen A. Mahoney, LORETTA LYNCH, UNITED STATES ATTORNEY, Brooklyn, New York.
For Administracion de Sustento de Menores, Defendant: Jorge M. Marquez San Martin, PUERTO RICO DEPARTMENT OF JUSTICE, San Juan, Puerto Rico.
MEMORANDUM AND ORDER
John Gleeson, United States District Judge.
Pro se plaintiff Noureddine Nouredinne brings this action against defendants Administration for Children and Families (" ACF") and Administracion de Sustento de Menores (" ASUME") alleging that they withheld monies from his income for child support but failed to make payments to his children. Nouredinne brings his claims pursuant to Article 78 of the New York Civil Practice Law and Rules (" Article 78") and " common sense, for the interest of justice." Defendant ACF moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim; defendant ASUME moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. For the reasons set forth below, the motions to dismiss for lack of subject matter jurisdiction are granted.
ACF is the federal agency that provides oversight for the Child Support and Enforcement Program, which Congress established in Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq., for the purposes of enforcing support obligations. See 42 U.S.C. § 651. ASUME is a state agency of the Commonwealth of Puerto Rico that is responsible for the enforcement of the state child support (including through the garnishment of wages) established under Title IV-D. Declaration of Jens Feck dated October 30, 2014 (" Feck Decl.") ¶ 8; see 8 L.P.R.A. § 501 et seq .
Pursuant to an income withholding order (" IWO") issued by ASUME on February 3, 2005, Nouredinne's employer, the Office of the Court Administration, garnished his wages and made " current" and " arrears" child support payments from March 9, 2005 to March 16, 2011. See Feck Dec., ECF No. 12, p. 4 & Ex. A (ASUME IWO dated Oct. 29, 2009); Plaintiff's Opposition (" Pl. Opp."), ECF No. 26, pp.8, 11-16 (State of New York Office of the State Comptroller letter dated June 8, 2012, and payment history dated June 14, 2012). In 2012, ASUME brought an action in Puerto Rico against Nouredinne for nonpayment of child support from November 2009 to October 2010. See Compl., ECF No. 1, pp.17-18 (Hearing minutes dated Aug. 29, 2012). In response to Nouredinne's inquiry, the State of New York Office of the State Comptroller issued a letter dated June 8, 2012 that documented Nouredinne's child support payment history between March 9, 2005 and March 16, 2011 that had been made payable to the Puerto Rico Child Support Enforcement Bureau. Pl. Opp., ECF No. 26, pp.8, 11-16. At a hearing on August 29, 2012, the trial court advised Nouredinne to obtain certification from ASUME that the payments had been received. See Compl., ECF No. 1, p. 18.
On June 13, 2013, the trial court in Puerto Rico found that $11, 528.27 had not been delivered to Nouredinne's children by ACF and entered judgment for nonpayment of child support in the amount of $36, 000 against Nouredinne. See Compl. ¶ III. Nouredinne maintains (and submits records supporting) that his wages were in fact garnished to meet his child support obligations. See Pl. Opp., ECF No. 26, pp.8-10. The record includes a letter that Nouredinne sent to ACF on June 19, 2013 seeking to determine where the money that had been deducted from his income had been sent. See ECF No. 26, p. 39 (Letter to ACF). Nouredinne filed an appeal on August 9, 2013 and an urgent motion seeking stay of the trial court's order on January 28, 2014. See Compl., ECF No. 1, pp.22 (motion) & 23 (letter to Appeals Court). The matter appears to be currently pending before the Court of Appeal in Puerto Rico. See Compl. ¶ III, ECF No. 1.
Nouredinne's complaint in this case seeks the following relief: (a) a " stay [of] any action of the Tribunal de Primera Instancia, until the expected result of appeal"; (b) a " [r]eview [of the] calculation to detect the discrepancy of the [Puerto Rico trial court's] calculus; (c) " an investigation to find out why the federal agency (Administration for children and family) didn't deliver the money deducted from my salary"; and (d) " permission to attend any hearing in this matter via telephone due to my health condition." See Compl. ¶ IV, ECF No. 1.
A. Motion to Dismiss--Standard of Review
" A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). When evaluating a motion to dismiss pursuant to Rule 12(b)(1), I must accept the factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995)(citation omitted). The party asserting subject matter jurisdiction has the burden of establishing that jurisdiction exists by a preponderance of the evidence. Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2nd Cir. 2008)(citing Makarova, 201 F.3d at 113).
Where a plaintiff proceeds pro se, the court must liberally construe her submissions on " the understanding that implicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citation and alteration omitted). If a liberal reading of the pro se complaint " gives any indication that a valid claim might be stated, " I must grant leave to amend it. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citing Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). I therefore interpret Nouredinne's complaint to raise the strongest arguments 4 it suggests. See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (citation omitted). However, " [d]espite the lenient standards with which courts review pro se complaints, pro se plaintiffs must [still] establish subject matter jurisdiction." Hill v. Douglas, 2010 WL 395817, at *2 (E.D.N.Y. Jan. 15, 2010).
B. Eleventh Amendment Immunity
The Eleventh Amendment bars suits by private persons against a state unless the state waives its sovereign immunity or Congress abrogates it by appropriate legislation. See Virginia Office for Prot. & Advocacy v. Stewart, 131 S.Ct. 1632, 1638, 179 L.Ed.2d 675 (2011). State sovereign immunity under the Eleventh Amendment extends to actions against the state's agencies and instrumentalities. Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009)(citing Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006)). The Commonwealth of Puerto Rico is treated as a state for purposes of Eleventh Amendment immunity. See Jusino Mercado v. Commonwealth of Puerto Rico, 214 F.3d 34, 37 (1st Cir. 2000); In re San Juan Dupont Plaza Hotel Fire Litigation, 888 F.2d 940, 942 (1st Cir. 1989)(citation omitted).
The only legal basis for jurisdiction alleged in the complaint is Article 78. See Compl. ¶ II. Article 78 is a state statute that authorizes proceedings in state court against state or local bodies and officers. See N.Y. Civ. Prac. L. & R. 7801. Congress has not waived sovereign immunity for the United States or its agencies with regard to Article 78. Defendants correctly state that as agencies of the United States, they cannot be sued under state law without their consent. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Thus, Nouredinne cannot maintain an Article 78 proceeding against ACF, a component of the Department of Health and Human Services, which is a federal executive branch department. See 42 U.S.C. § 3501. Nor can he maintain an Article 78 proceeding against ASUME, a state agency of the Commonwealth of Puerto Rico.