The opinion of the court was delivered by: Dalzell, J.
This action arises from disputes between pro se plaintiff Denis F.
Sheils, a Pennsylvania citizen and licensed attorney,*fn1
and his ex-wife over their marital settlement agreement and
ongoing disagreements about matters such as alimony adjustments and
child support. Those controversies have been, and continue, in the
Bucks County Court of Common Pleas and its Domestic Relations Section
Our attention here first focuses on the extent to which we may exercise jurisdiction over Sheils's claims. To the extent we have jurisdiction as to any party or not abstain, we must consider what, if any, liability each of the indisputably state actor defendants -- Bucks County Domestic Relations Section, Laura LoBianco (DRS's Director) and Daniel N. Richard (Director of the Bureau of Child Support Enforcement ("BCSE") and Pennsylvania Department of Public Welfare ("DPW")) -- faces as a result of Sheils's alleged "due process" violations that he claims have, among other things, arisen from the enforcement proceedings that have caused his wages to be garnished.
Pending now are DRS, LoBianco, and Richard's respective motions to dismiss Sheils's second amended complaint. Sheils opposes these motions and each of the defendants filed reply briefs. Pursuant to our January 17, 2012 Order, Sheils filed a memorandum of law addressing our concern that he has failed to state a viable claim under the Thirteenth Amendment. DRS filed a separate response in opposition to that supplemental memorandum and LoBianco and Richard's respective motions to dismiss present their views on this issue.
For the reasons set forth below, we will grant DRS, LoBianco, and Richard's motions to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
On May 20, 2011, Sheils filed his first complaint in
this Court. At that time, DRS was the only defendant. Shortly thereafter, DRS filed its first motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). On January 17, 2012, we granted DRS's motion to dismiss in part ("January 17 Order"),*fn2 but granted Sheils leave to file an amended complaint that would not offend Ex parte Young, 209 U.S. 123 (1908). We dismissed Counts VII and XI of the complaint as against DRS, and directed Sheils to file a brief responding to our concern that he failed to state a Thirteenth Amendment claim.
Sheils filed his first amended complaint two weeks later and for the first time named LoBianco and Richard as defendants. He also filed his supplemental Thirteenth Amendment memorandum.
DRS filed its second motion to dismiss in February of 2012 and LoBianco and Richard filed their first motions to dismiss by the end of that month. Sheils filed opposition responses to each of these motions, but in his March 19, 2012 opposition to LoBianco's motion to dismiss he requested leave to amend his complaint to assert a separate Bivens claim. On May 29, 2012, we granted Sheils's second request for leave to amend and denied as moot defendants' pending motions to dismiss.
Sheils then filed his second amended complaint ("SAC") on June 6, 2012. Two days later, DRS filed its third motion to dismiss ("DRS MTD"). On June 20, 2012, LoBianco and Richard filed their motions to dismiss ("LoBianco MTD" and "Richard MTD", respectively). Sheils then filed three responses in opposition to defendants' motions (each denoted here as "Resp. Defendant's Name MTD"). Each defendant filed a reply brief, with DRS concluding the voluminous briefing in this matter in July.
II. The January 17 Order Resolving DRS's First Motion to Dismiss
Construing DRS's motion to dismiss on Eleventh Amendment immunity grounds as a facial jurisdictional challenge, January 17 Order ¶ g, we held in that Order that all of Sheils's § 1983 claims against DRS (Counts I through VI and VIII through X of the first complaint) were barred by Eleventh Amendment immunity. See id. ¶¶ g-q.*fn3
We also held that Count I of Sheils's complaint -- alleging a stand-alone, private right of action under 15 U.S.C. § 1673 -- was barred by DRS's Eleventh Amendment immunity. Id.
¶¶ r-u. We noted that § 1673 was enacted pursuant to Congress's Commerce Clause and Bankruptcy powers, id. ¶ s, and stated that " Congress does not have the power to abrogate DRS's Eleventh Amendment immunity under its Commerce Clause or bankruptcy powers ", January 17 Order ¶ u (citing Wheeling & Lake Erie Ry. Co. v. Pub. Util. Comm'n, 141 F.3d 88, 92 (3d Cir. 1998) (in turn citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58-60 (1996))).
While there is no doubt that the Supreme Court has held that Congress's Commerce Clause power cannot be used to abrogate a state's Eleventh Amendment immunity, see, e.g., Wheeling & Lake Erie Ry., id. at 92, our January 17 Order imprecisely stated that Congress lacked the power to " abrogate " state sovereign immunity under the Bankruptcy Clause.
The Supreme Court held in Central Virginia Community College v. Katz, 546 U.S. 356, 378 (2006), that " [t]he scope of [the states'] consent [to suit in federal court] was limited; the jurisdiction exercised in bankruptcy proceedings was chiefly in rem -- a narrow jurisdiction that does not implicate state sovereignty to nearly the same degree as other kinds of jurisdiction. . . . In ratifying the Bankruptcy Clause, the States acquiesced in a subordination of whatever sovereign immunity they might otherwise have asserted in [avoidance and recovery of preferential transfer] proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy courts. " Katz cabined its holding by explaining that " [w]e do not mean to suggest that every law labeled a 'bankruptcy' law could, consistent with the Bankruptcy Clause, properly impinge upon state sovereign immunity. " Id. at 378 n.15; see also id. at 369 n.9 ( " the ratification of the Bankruptcy Clause does represent a surrender by the States of their sovereign immunity in certain federal proceedings " (emphasis added)); In re Omine, 485 F.3d 1305, 1313 (11th Cir. 2007), withdrawn pursuant to settlement, No. 06-11655-II, 2007 WL 6813797 (describing these qualifications in Katz as creating a " remaining gray area " ).*fn4
Katz ultimately concluded that " the relevant 'abrogation' is the one effected in the plan of the Convention, not by [Congressionally enacted] statute " at 11 U.S.C. 106(a). Id. at 379. Thus, the issue that we addressed in our January 17 Order is not, strictly speaking, one of Congressional power to abrogate Eleventh Amendment immunity since the Supreme Court has held that the constitutional default requires no such action for certain core bankruptcy proceedings.
To be more precise, our January 17 Order's Bankruptcy Clause holding is better stated that § 1673 is not the sort of " 'bankruptcy' law . . ., consistent with the Bankruptcy Clause, [that] properly impinge[s] upon state sovereign immunity. " See id. at 378 n.15. Put another way, assuming § 1673 provides an implied right of action (a proposition we reject below), Katz teaches that Sheils's suit against DRS under this provision improperly impinges Eleventh Amendment immunity even though it was enacted, in part, pursuant to Congress's bankruptcy power.
We reach this conclusion because none of Sheils's claims arises under the Bankruptcy Code found in Title 11 of the United States Code, in contrast with the claims in Katz and Tennessee Student Assistance Corp. v. Hood, 541 U.S. 449 (2004), that the Supreme Court found not to violate state sovereignty. Accord Shieldalloy Metallurgical Corp. v. N.J. Dep't of Env'tl Prot., 743 F. Supp. 2d 429, 438-40 (D.N.J. 2010). Additionally, Sheils's claims fail to implicate one of the "[c]ritical features of every bankruptcy proceeding[:] . . . the exercise of exclusive jurisdiction over all of the debtor's property. " Katz, 546 U.S. at 363-64 (emphasis added) (citing Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934)).
Indeed, § 1673 only applies to the garnishment of one's wages. Sheils fails to allege that there is at issue here a debtor's estate over which we can exercise in rem jurisdiction. Moreover, Sheils's claims cannot be considered " to effectuate the in rem jurisdiction of the bankruptcy courts " since there is no threshold core bankruptcy jurisdiction. Katz, 546 U.S. at 378 (emphasis added); see also SAC ¶ 2 (citing only to 28 U.S.C. § 1331). Since § 1673's function cannot fairly be regarded as a core bankruptcy proceeding -- or, for that matter, any proceeding necessary to effectuate that already-present jurisdiction -- it does not " properly impinge upon state sovereign immunity " under Katz. Id. at 378 n.15.
We are fortified in our decision by Sheils's averment that DRS " administers, collects, and enforces . . . court support orders once they are established. . . . [and] collects and disburses all support payments received to the proper payment beneficiaries of the court order, and maintains a record of same. " SAC Compl. ¶ 5 (emphasis added). At bottom, Sheils contends that DRS is impermissibly exercising its administrative authority over him in violation of § 1673 and his claim is one of due process, not bankruptcy. There is nothing in Katz or Hood that " undermines the state's sovereign immunity for this kind of claim. " See Village of Rosemount v. Jaffe, 482 F.3d 926, 937 (7th Cir. 2007) (reasoning in dicta that where there is no contention that the state "wants to adjudicate a claim to funds that might or might not be part of [an] estate " and the state "instead has consistently argued that it is entitled to exercise [its] regulatory authority " , neither Katz nor Hood " undermine the state's sovereign immunity " ).
In the margins of our January 17 Order we also expressed doubt as to whether § 1673 supplies an implied right of action. See id. ¶ u n.12 (collecting cases). We found it unnecessary to reach that question as to DRS, however, because the authority under which § 1673 was enacted failed to strip DRS of its Eleventh Amendment immunity for the clarified reasons canvassed above.*fn5
We also assumed for the sake of argument that 45 C.F.R. § 303.101 created an implied right of action*fn6 and held that Sheils's claim under this Social Security regulation was barred by Eleventh Amendment immunity. We ignored Sheils's § 5 of the Fourteenth Amendment argument since the Social Security laws were enacted pursuant to Congress's spending powers. We rejected his argument that Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 551 F.3d 193, 197-98 (3d Cir. 2008), led to the inescapable conclusion that Pennsylvania waived its Eleventh Amendment immunity " by accepting the terms of the 'contract,' and [DRS] receiv[ed] federal funds under Title IV-D of the Social Security Act. " Resp. DRS's First MTD 7; see January 17 Order ¶¶ p n.8, v-aa (grounding our decision in Sossamon v. Texas, 131 S. Ct. 1651, 1662-63 (2011)).*fn7
III. The Second Amended Complaint
Counts I through VI and VIII through X of Sheils's second amended complaint ("SAC") allege that LoBianco and Richard violated and continue to violate many of his constitutional and federal statutory rights under 42 U.S.C. § 1983.*fn8 Count I also asserts that the allegedly offended 15 U.S.C. § 1673 provides a stand-alone, implied right of action against LoBianco and Richard. Count II also claims that the
Thirteenth Amendment creates a private right of action against DRS, LoBianco, and Richard for a violation of its self-effecting substantive right.*fn9 Count VII contends that LoBianco and Richard's alleged violation of federal regulation 45 C.F.R. § 303.101 gives rise to a cause of action. Count XI is a demand for accounting.*fn10 Finally, Count XII is a claim for Fifth Amendment due process and equal protection violations against LoBianco and Richard under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Sheils sues LoBianco and Richard in their official and individual capacities. SAC ¶¶ 6-7.
IV. The Motions to Dismiss, Generally
Defendants' motions to dismiss proceed under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). After we recite the relevant standards, we will first consider those claims over which the defendants assert we lack jurisdiction or should refrain from exercising our jurisdiction in light of an abstention doctrine. These claims are considered below and encompass the sole remaining Thirteenth Amendment claim against DRS and the official capacity claims against LoBianco and Richard that seek damages and retrospective injunctive relief, as well as prospective relief.
We conclude by analyzing those claims over which we undoubtedly have jurisdiction: the section 1673 and section 303.101 implied private rights of action claims, Sheils's individual capacity § 1983 and Bivens damages claims and self-effecting Thirteenth Amendment claims against LoBianco and Richard.
A. Rule 12(b)(1) Standard
For Facial Attack On Jurisdiction
In deciding a motion to dismiss on Rule 12(b)(1) grounds alleging a facial attack on jurisdiction, we look to "whether the allegations on the face of the complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district court." Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (internal quotations omitted). In Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000), our Court of Appeals explained that "[i]n reviewing a facial attack, the court [may also] consider . . . documents referenced [in the complaint] and attached thereto, [and construe all allegations] in the light most favorable to the plaintiff."
B. Rule 12(b)(6) Standard For Failure To State A Claim And Abstention
Our Court of Appeals has summarized the post-Twombly Rule 12(b)(6) analysis as follows:
To determine whether a complaint meets the pleading standard, our analysis unfolds in three steps. First, we outline the elements a plaintiff must plead to  state a claim for relief. See [Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009); Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 73 (3d Cir. 2011).] Next, we peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth. [See Iqbal, 556 U.S. at 679; Argueta, 643 F.3d at 73]. Finally, we look for well-pled factual allegations, assume their veracity, and then " determine whether they plausibly give rise to an entitlement to relief. " [Iqbal, 556 U.S. at 679; Argueta, 643 F.3d at 73]. This last step is " a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. " [Iqbal, 556 U.S. at 679].
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). We are obliged to draw all reasonable inferences therefrom in favor of the plaintiff. McGovern v. City of Philadelphia, 554 F.3d 114, 115 (3d Cir. 2009). And " [t]o decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and ...