8th Cir. rejects jurisdiction in child support/credit protection case

In an opinion it will not publish, the Eighth Circuit summarily dismissed a case seeking 42 U.S.C. § 1983 jurisdiction to enforce the Child Support provisions of the Social Security Act, Title IV-D, 42 U.S.C. § 651. The court also rejected the plaintiff’s claim that there is an implied right of action to enforce the Consumer Credit Protection Act, 15 U.S.C. § 1673. Colbert v. Roling, 2007 WL 1390627, No. 06-1058 (8th Cir. May 14, 2007).

Mr. Colbert sued the Division of Child Support Enforcement of the Department of Social Services for the State of Missouri, alleging that they issued an income-withholding order against his wages that garnished more of his earnings than is permissible under the Consumer Credit Protection Act. 

 

The court recited the three pronged test for § 1983 jurisdiction from Blessing v. Freestone, 520 U.S. 329, 340 (1997).  The test is (1) whether the provision was intended to benefit the plaintiff; (2) whether the provision is too vague and amorphous that its enforcement would “strain judicial competence,” and (3) whether the provision unambiguously imposes a binding obligation on the states.  The court noted that Blessing rejected § 1983 jurisdiction for IV-D as a whole, but left open the possibility that some provision of IV-D might give rise to individual rights that can be enforced via § 1983.  The court then quoted Gonzaga v. Doe, 536 U.S. 273, 288 (2002), which rejected § 1983 jurisdiction because the provision at issue spoke in terms of institutional policy and practice, had an aggregate focus, and is not concerned with whether the needs of an individual were satisfied.

 

The provision relied upon by Mr. Colbert is 42 U.S.C. § 654(20)(A)-(B) which requires states to comply with laws and procedures for child support enforcement, as set forth in 42 U.S.C. § 666.  Section 666(b)(1) provides that states may collect child support up to the maximum permitted by the Consumer Credit Protection Act, 15 U.S.C. § 1673.  Thus, the provision of the Social Security relied upon by Mr. Colbert requires states to comply with the Consumer Credit Protection Act, which protects individual interests by restricting the amount of child support that can be collected from an individual. 

 

The Eighth Circuit quickly disposed of Mr. Colbert’s § 1983 argument.  The Eighth Circuit quoted Gonzaga and concluded that 42 U.S.C. § 654(20)(A)-(B) “only has an ‘aggregate focus’ and is not concerned with the individual interests of Colbert.”

 

The court similarly paid little attention to Mr. Colbert’s claim that there is an implied cause of action to enforce § 1673 of the Consumer Credit Protection Act.  The court cited McCabe v. City of Eureka, Mo., 644 F.2d 680 (8th Cir. 1981), in which the court rejected the claim of an implied cause of action to enforce § 1674 of the Consumer Credit Protection Act.  The court noted that the McCabe decision was based upon the presence of an express private right of action in Subchapter I of the Act but not Subchapter II, wherein lies § 1673 and § 1674.  The court found the McCabe decision controlling.

 

The court suggested that Mr. Colbert’s briefing was insufficiently detailed and poorly supported.  The most egregious example is that the plaintiff’s brief cited the 11^th Amendment, which concerns sovereign immunity, as the basis for a due process argument.  (The Due Process Clause is located in the 14^th Amendment.)  The court held that the plaintiff waived his due process argument by not providing “any specific support for his position.”