United States District Court, D. South Carolina, Beaufort Division
PATRICK MICHAEL DUFFY, United States District Judge
matter is before the Court on pro se Plaintiff
Charlie Strickland, Jr.'s objections to United States
Magistrate Judge Bristow Marchant's Report and
Recommendation (“R & R”) (ECF Nos. 93 &
89). In his R & R, the Magistrate Judge recommends the
Court grant the United States Department of Defense Finance
and Accounting Service's (“DFAS”) motion to
dismiss (ECF No. 69). For the following reasons, the Court
overrules Strickland's objections, adopts the R & R,
and grants DFAS's motion.
a retired marine, is suing over what he contends is the
wrongful garnishing of funds from his military retirement
account for child support. He alleges Defendants have engaged
in fraud and gross negligence, that they have infringed upon
his constitutional rights to due process and equal
protection, and that they have violated the Civil Rights Act
of 1964. He seeks injunctive relief as well as compensatory
and punitive damages.
originally filed this case in the United States District
Court for the District of Minnesota. After that court
transferred the case here, DFAS moved to dismiss for lack of
subject matter jurisdiction and for failure to state a claim.
See Fed. R. Civ. P. 12(b)(1), 12(b)(6). Strickland
filed a response, and the Magistrate Judge then considered
R & R, the Magistrate Judge concluded Strickland's
claims against DFAS should be dismissed for three reasons.
First, DFAS has sovereign immunity from Strickland's
constitutional claims. Second, Strickland's tort claims
fail because he has not exhausted his administrative
remedies, because he has sued a government office instead of
the United States itself, and because Strickland cannot
recover punitive damages from DFAS. Finally, 42 U.S.C. §
659 does not give Strickland a private right over the
garnishing of his account.
timely filed objections to the R & R. Thus, this matter
is ripe for review.
Magistrate Judge makes only a recommendation to this Court.
The R & R has no presumptive weight, and the
responsibility for making a final determination remains with
the Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). Parties may make written objections to the R & R
within fourteen days after being served with a copy of it. 28
U.S.C. § 636(b)(1). This Court must conduct a de novo
review of any portion of the R & R to which a specific
objection is made, and it may accept, reject, or modify the
Magistrate Judge's findings and recommendations in whole
or in part. Id. Additionally, the Court may receive
more evidence or recommit the matter to the Magistrate Judge
with instructions. Id. A party's failure to
object is taken as the party's agreement with the
Magistrate Judge's conclusions. See Thomas v.
Arn, 474 U.S. 140 (1985). Absent a timely, specific
objection-or as to those portions of the R & R to which
no specific objection is made-this Court “must
‘only satisfy itself that there is no clear error on
the face of the record in order to accept the
recommendation.'” Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
first argues that the R & R misstates the nature of his
lawsuit by stating he is asserting “claims related to
the payment of child support.” The Court sees nothing
incorrect in that statement.
Strickland contends that statements on page 2 of the R &
R show the Magistrate Judge was biased against him. The Court
sees no evidence of unfairness or bias; to the contrary, the
R & R addresses Strickland's arguments with the
liberal, benefit-of-the-doubt approach that pro se
litigants are to receive.
Strickland argues the R & R ignores that he has stated a
prima facie case for negligence. The Court need not decide
whether Strickland has sufficiently alleged a negligence
claim. As the Magistrate Judge determined, and as Strickland
concedes, he has failed to exhaust his administrative
remedies, and DFAS is not the proper target of his tort
Strickland appears to assert that the R & R's
analysis is not consistent with 42 U.S.C. §§ 659
and 660. The Court sees no such inconsistency.
Rather, the Magistrate Judge correctly interpreted § 659
as a limited waiver of sovereign immunity solely so that the
United States may be made a third-party garnishee in
garnishment proceedings. As for § 660, that section
gives federal courts jurisdiction to hear state-initiated
child support enforcement actions upon certification by the
Secretary of Health and Human Services. There is no evidence
that the Secretary has made such a certification here, but in
any event, such certification would not give this Court
jurisdiction over a suit initiated by Strickland. See