United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR A
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
reasons set forth below, the Court hereby DENIES
Plaintiff's motion for a preliminary injunction [ECF No.
Walter Devine (“Plaintiff”) states that in 2006,
a federal student loan promissory note in his name was issued
for the benefit of his estranged daughter Rebekah Devine.
Plaintiff contends that he did not authorize his daughter to
take out the loan in his name, and claims that she forged his
signature in order to do so. After his daughter apparently
defaulted on the loan, Plaintiff began receiving
correspondence and phone calls from the Department of
Education (“DOE”) concerning past amounts due.
Plaintiff alleges that he informed the agency that he did not
sign the loan documents.
2015, Plaintiff received correspondence from Transworld
informing Plaintiff that the loan had been placed in
collection and that his failure to pay could result in his
wages being garnished. In response, Plaintiff filed an
“Application for Discharge Relief” with DOE,
alleging that he never took out or signed for the loan. On
August 24, 2015, Plaintiff received a decision from DOE
determining that he was liable for the loan and that his
wages were subject to garnishment at a rate of 15% of his
disposable income. Plaintiff's wages and Social Security
benefits were garnished beginning in July 2015.
filed this lawsuit in July 2016, alleging violations of the
Federal Torts Claims Act, 28 U.S.C. § 2671 et
seq., the “Little Tucker Act, ” 28 U.S.C.
§ 1346 (b)(1), and the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 et. seq. Now before the
Court is Plaintiff's motion for a preliminary injunction
[ECF No. 2]. Defendant Department of Education opposes the
motion [ECF No. 15].
Court employs a four-factor analysis in evaluating a motion
for a preliminary injunction. Those factors are: “(1)
the likelihood of success on the merits; (2) the potential
for irreparable harm [to the movant] if the injunction is
denied; (3) the balance of relevant impositions, i.e., the
hardship to the nonmovant if enjoined as contrasted with the
hardship to the movant if no injunction issues; and (4) the
effect (if any) of the court's ruling on the public
interest.” Esso Std. Oil Co. v. Monroig-Zayas,
445 F.3d 13, 18 (1st Cir. 2006) (internal quotation marks
omitted). “The party seeking the preliminary injunction
bears the burden of establishing that these four factors
weigh in its favor . . . . The sine qua non of this four-part
inquiry is likelihood of success on the merits: if the moving
party cannot demonstrate that he is likely to succeed in his
quest, the remaining factors become matters of idle
curiosity.” Id. (internal quotation marks and
discussed below, at this point in the proceedings, the Court
cannot find that it is likely that Plaintiff will succeed on
the merits of his claim. Furthermore, the denial of a
preliminary injunction is unlikely to cause irreparable harm
to Plaintiff. Therefore, the motion is denied.
Likelihood of Success on the Merits
argument primarily relies on tort claims brought under the
Federal Torts Claims Act (FTCA), 28 U.S.C. § 2671 et
seq. Defendant DOE correctly points out, however, that
the FTCA only waives the government's sovereign immunity
once Plaintiff has exhausted his administrative remedies.
See Rakes v. United States, 442 F.3d 7, 18 (1st Cir.
2006) (“The waiver [of sovereign immunity] effected by
the FTCA is, however, closely circumscribed by the terms of
the statute.”); 28 U.S.C. § 2675(a) (action may
not be instituted “unless the claimant shall have first
presented the claim to the appropriate Federal agency and
[his or her] claim shall have been finally denied by the
agency in writing and sent by certified or registered
noted above, Plaintiff bears the burden of proof, and he has
not met that burden in regard to the exhaustion requirement.
Plaintiff made no representation in his complaint or
preliminary injunction motion that he had exhausted his
administrative remedies. In addition, as Plaintiff noted in
his complaint, he hired a handwriting examiner who determined
in June 2016 that the signature on the loan document is
inconsistent with Plaintiff's handwriting, and thus not
authored by him. Plaintiff admitted at the motion hearing on
November 16 that he has not submitted this handwriting
analysis to DOE, but he agreed to do so shortly. The DOE must
have the opportunity to evaluate this evidence before
Plaintiff can be said to have exhausted his administrative
remedies. Furthermore, DOE asserts that Plaintiff has yet to
serve the agency with a written administrative claim for a
sum certain. Based on these facts, the Court cannot conclude
that Plaintiff exhausted his administrative remedies prior to
filing this lawsuit, which is a necessary prerequisite to
proving a likelihood of success on the merits.
preliminary injunction motion also relies on claims brought
under the the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692 et seq. (“FDCPA”). He argues
that Defendants violated the FDCPA by continuing to
communicate with Plaintiff after he informed Defendants that
the debt was not his, and he also claims that Defendants
engaged in unfair practices by failing to conduct an adequate
review of the arguments and evidence he presented. Defendant
DOE responds that the FDCPA does not waive sovereign immunity
as to DOE's attempts to collect a debt, and therefore,
such a claim is subject to dismissal as to DOE. Wagstaff
v. U.S. Dep't of Educ., 509 F.3d 661, 664 (5th Cir.
2007); see also Williams v. U.S. Dist. Court, 455 F.
App'x 142, 143 (3d Cir. 2011); Little v. Tennessee
Student Assistance Corp., 537 F.Supp.2d 942, 944 (W.D.
Tenn. 2008). The unresolved but significant issue of
sovereign immunity also precludes finding a likelihood of
success on the merits, at least as to the DOE.
Potential for ...