UNITED STATES DISTRICT COURT

 FOR THE DISTRICT OF NEW JERSEY

___________________________________

 :

NICKOLA PIRINSKI, : Honorable Madeline Cox Arleo

:

Plaintiff, : Civil Action No. 11-3779 (SDW)

: 

v. : REPORT AND RECOMMENDATION

 : 

TREASURY DEPARTMENT, :

FINANCIAL MANAGEMENT, :

:

Defendants. :

___________________________________ :

THIS MATTER having come before the Court upon the motion of defendant, the United

States Department of Treasury (“Treasury”) to dismissthe complaint based on lack of subject matter

jurisdiction, pursuant to FED. R. CIV. P. 12(b)(1), or, alternatively, for failure to state a claim,

pursuant to Fed. R. Civ. P. 12(b)(6), (Dkt. No. 2), or for a more definite statement, pursuant to Fed.

R. Civ. P. 12(e); and pro se Plaintiff Nikoli Pirinski (“Plaintiff”) having submitted no opposition to

the motion to dismiss; and the Court having considered only the moving papers submitted by

Treasury in support of the motion; and having heard no oral argument, pursuant to FED. R. CIV. P.

78; and 

it appearing that, on May 26, 2011, Plaintiff filed the instant action in the Superior Court of

New Jersey, Essex County, Law Division, Special Civil Part, against Treasury, seeking monetary

damages; and

it appearing that, on June 30, 2011, Treasury removed the action to this Court, pursuant to

28 U.S.C. § 1442; and

it appearing that, pursuant to FED.R.CIV. P. 12(b)(1), a motion to dismiss for lack of subject

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matter jurisdiction will be granted if “the claim ‘clearly appears to be immaterial and made solely

for the purpose of obtaining jurisdiction or ... is whollyinsubstantial and frivolous,’” Kehr Packages,

Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991) (quoting Bell v. Hood, 327 U.S. 678,

682 (1946)); and 

it appearing that Plaintiff has not asserted any basis for this Court’s jurisdiction; and

it appearing that “[t]he United States, as sovereign, is immune from suit save as it consents

to be sued, . . . and the terms of its consent to be sued in any court define that court’s jurisdiction to

entertain the suit.” United States v. Sherwood, 312 U.S. 584 (1941) (internal citations omitted); and

it appearing that absent a specific waiver of sovereign immunity, the courts lack subject

matter jurisdiction over claims against the United States and its agencies, including Treasury; see

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); and 

it appearing that the Treasury, as a federal agency acting in its official capacity, is immune

from suit absent an express waiver of sovereign immunity; see Lehman v. Nakshian, 453 U.S. 156,

160 (1981); and 

it appearing that Plaintiff in his complaint fails to assert that any express waiver of sovereign

immunity is applicable to his claims; and

it appearing that the Court lacks subject matter jurisdiction over this action; and

it appearing that, when reviewing a motion under Rule 12(b)(6), the Court must accept the

allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. 

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); and 

it appearing that “[f]actual allegations must be enough to raise a right to relief about the

speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and that the Court is

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not required to accept those allegations which amount to mere “unsupported conclusions and

unwarranted inferences.” Doug Grant, Inc. v. Greate Bay Casino, Corp., 232 F.3d 173, 184 (3d Cir.

2000); see FED. R. CIV. P. 8(a)(2); and 

it appearing that, while a court will accept well-pled allegations as true for the purposes of

a 12(b)(6) motion, it will not accept bald assertions, unsupported conclusions, unwarranted

inferences, or sweeping legal conclusions case in the form of factual allegations; Morse, 132 F.3d

at 906 n.8; and

it appearing that, if the “well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct,” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950 (citation

omitted); and the complaint should be dismissed for failing to “show[] that the pleader is entitled to

relief” as required by Rule 8(a)(2), id.; and

it appearing that, even if the Court liberally construes Plaintiff’s complaint as it must, see

Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003); and

it appearing that as best can be gleaned from Plaintiff’s complaint, he alleges that Treasury

illegally withheld a portion of his social security benefits, despite his having notified the Illinois

Department of Human Services (“IDHS”) that he does not owe any outstanding debt; and

it appearing that, although Plaintiff has named Treasuryas the sole defendant, the allegations

in his complaint focus primarily on the wrongful conduct of the IDHS in its effort to collect a false

debt; and

it appearing that, Treasury does not have “any statutory authority over the debt, nor any role

in determining whether or not the debt was valid or whether [] [Plaintiff’s] benefit payment should

be offset,” Johnson v. United States Dep’t of Treasury, 300 F. App’x 860, 862 (11 Cir. Nov. 26, th

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2008); and

it appearing that once the IDHS certified the debt to Treasury, Treasurywas legally obligated

to offset Plaintiff’s social security payment in satisfaction of the alleged debt, Id.; see 31 U.S.C. §

3716(c)(1)(A); 31 C.F.R. § 285.5(d)(6); and thus

it appearing that Treasury is not a proper party to this action, 

IT IS on this 9 day of December, 2011, th

RECOMMENDED THAT defendant Treasury’s motion to dismiss for lack of subject

matter jurisdiction be GRANTED, pursuant to Rule 12(b)(1), (Dkt. No. 2); and it is further

RECOMMENDED THAT, alternatively, Treasury’s motion to dismiss for failure to state

a claim be GRANTED, pursuant to Rule 12(b)(6); and it is further

RECOMMENDED THAT Plaintiff’s complaint be dismissed; and it is further

RECOMMENDED THAT, in light of the Court’s rulings herein, that, alternatively, the

Treasury’s motion to dismiss for a more definite statement, under Rule 12(e), be DISMISSED AS

MOOT.

The parties have fourteen (14) days from the date hereof to file objections.

s/Madeline Cox Arleo 

MADELINE COX ARLEO

United States Magistrate Judge

cc: Hon. Susan D. Wigenton, U.S.D.J.

Clerk of the Court

All Parties

File

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