Millard v. U.S.

• Decision Date: 28 September 1990
• Docket Number: No. 89-1461,89-1461
• Citation: 916 F.2d 1
• Parties: Arthur Frank MILLARD, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1

916 F.2d 1

Arthur Frank MILLARD, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

No. 89-1461.

United States Court of Appeals, Federal Circuit.

Sept. 28, 1990.

Suggestion for Rehearing In Banc

Declined Nov. 26, 1990.

Arthur Frank Millard, Atlanta, Ga., pro se.

John S. Groat, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., for defendant-appellee. With him on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director, and Mary Mitchelson, Asst. Director. Also on the brief was Lieutenant Colonel Mark Steinbeck, and Major Robert McFetridge, Dept. of the Army, of counsel.

Before NIES, Chief Judge, ^* BENNETT, Senior Circuit Judge, and ARCHER, Circuit Judge.

NIES, Chief Judge.

Arthur Frank Millard, now a retired member of the United States Army, appeals from the judgment of the United States Claims Court, Millard v. United States, 16 Cl.Ct. 485 (1989) (Wiese, J.), granting summary judgment in favor of the government on Millard's claim under the Back Pay Act ¹ for the part of his monthly salary which the government paid to his former spouse pursuant to a wage assignment order for child support and alimony issued by the Superior Court of California, County of San Francisco. A California wage assignment for support is a type of garnishment to which the United States has consented to subject itself by 42 U.S.C. Sec. 659(a) (1988). We affirm.

I

42 U.S.C. Sec. 659

Wages Due From the United States Are Subject To State Court

Legal Process For Child Support and Alimony Payment

Garnishment is a legal proceeding brought by a creditor (garnishor) of a person (the debtor) against a third party (garnishee) to obtain property of the debtor in the hands of the third party to satisfy the debt owed to the garnishor. Harris v. Balk, 198 U.S. 215, 226, 25 S.Ct. 625, 628, 49 L.Ed. 1023 (1905). Garnishment is purely a creature of state law. Id. at 222, 25 S.Ct. at 626. Such process is routinely provided by state law for enforcement of court-ordered child support and alimony (a judgment debt) and may be used to reach wages of the judgment debtor in the hands of an employer. See United States v. Morton, 467 U.S. 822, 832 & n. 15, 104 S.Ct. 2769, 2775 & n. 15, 81 L.Ed.2d 680 (1984). A garnishment proceeding to enforce a judgment debt is an ancillary legal proceeding against the third party garnishee and must be brought where jurisdiction can be obtained over the third party. Harris v. Balk, 198 U.S. at 222, 25 S.Ct. at 626. No legal proceeding, including garnishment, may be brought against the United States absent a waiver of its sovereign immunity. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980). Thus, prior to enactment of 42 U.S.C. Sec. 659 in 1974, wages payable from the United States to an employee were not available for garnishment or similar legal process. See, e.g., Bolling v. Howland, 398 F.Supp. 1313 (M.D.Tenn.1975). In 1974, Congress gave consent to proceedings in the nature of garnishment against the United States but only for enforcement of court-ordered child support and alimony. Specifically, the statute provides:

Sec. 659. Enforcement of individual's legal obligations to provide child support or make alimony payments

(a) United States and District of Columbia to be subject to legal process

Notwithstanding any other provision of law ... moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments.

California, in addition to providing for regular garnishment proceedings, has enacted a special procedure, termed a wage assignment, whereby the recipient of court-ordered child or spousal support may obtain a partial assignment of the delinquent party's wages including future wages. ² Specific procedures are delineated in the California statutes to obtain this type of relief. After receiving a child or spousal support award pursuant to California divorce proceedings, the party entitled to such payments may file a petition against the allegedly delinquent party to obtain an order that that party is in default in the court-ordered payments and in contempt of the court's prior judgment. Once a party obtains an arrearage order, that party may obtain, in an ex parte proceeding, another order from that court wherein the court assigns wages of the judgment debtor to the judgment creditor. Cal.Civ.Code Sec. 4701(b) (Deering 1984). The court has no discretion to do otherwise. See Lang v. Superior Court, 153 Cal.App.3d 510, 200 Cal.Rptr. 526 (1984) (mandamus action). The wage assignment order need not be served immediately on anyone. It becomes effective ten days from the date service is made on any employer of the named judgment debtor. Cal.Civ.Code Sec. 4701(b)(4). Thereafter, the employer "shall continue to withhold" a stated amount from wages or salary due the employee and pay that amount to the named party who obtained the wage assignment. Cal.Civ.Code Sec. 4701(b)(7). No specific employer is named in a California wage assignment. ³ Such assignment is binding on all current and future employers who are served with a copy. Cal.Civ.Code Sec. 4701(a)(1). Moreover, the term "employer" is specifically defined in the California statute to include the United States. Cal.Civ.Code Sec. 4701(g).

The record discloses that Donalinda Ace Millard, appellant's former spouse, obtained an order of arrearage from the Superior Court in San Francisco, California on December 9, 1983, that found appellant to be in arrears in payment of both child and spousal support as of August 31, 1983. Appellant did not appear in that proceeding, although he was personally served in Georgia on October 11, 1983, and provided with an opportunity for a hearing. Appellant does not contest the fact that the arrearage award was obtained in accordance with California law. Donalinda later obtained an order from that same court assigning appellant's salary or wages. This California wage assignment was served on the appropriate pay officer of the United States Army Finance Center in Indianapolis, Indiana, on September 14, 1984. The standard wage assignment form was completed with the required statements that Arthur F. Millard was required to pay $300.00 a month in child and spousal support and was found, as of August 31, 1984, in arrears in the amount of $14,414.30. The court ordered the salary or wages of Arthur F. Millard assigned and payable to petitioner, Donalinda, in the amount of $300.00 per month until further order of the court plus $700.00 per month for 21 months commencing September 15, 1984, to satisfy the arrearage. ⁴

The Army complied with the wage assignment by making deductions from Millard's monthly paycheck beginning with his check of October 1, 1984. Millard was at the time stationed in Georgia. Millard first attacked the deductions before the Army Board for Correction of Military Records and, then, before the Controller General. When these efforts were unsuccessful, he filed suit in the U.S. Claims Court. At no time has he undertaken to defend or challenge the orders of arrearage or wage assignment in the California court. He maintains that he was not obligated to do so although repeatedly advised by the Army that it was his obligation to proceed in California to have the wage assignment set aside. Because Millard raises a plethora of issues dependent on various facts, we will defer a more detailed statement and supplement the facts as we address each issue. ⁵

While the underlying theme of Millard's various arguments is that the Army should not have honored any legal process for garnishment except from his present state of residence, Georgia, these arguments are presented as challenges to the legal process from the California court which, per Millard, was not regular on its face. Thus, the government erred, he argues, in complying with the order. He also asserts the government did not comply with certain other sections of the federal statute and regulations respecting garnishment procedures and, therefore, must be held liable to him on this ground.

The government counters (1) that state law discharges the government from liability to Millard for his pay by reason of the government's payment to his ex-wife pursuant to the California wage assignment and (2) that the government's acts, in any event, fall within the scope of section 659(f), a provision added in 1977, which specifies that the United States shall not be liable for any payments made "pursuant to legal process regular on its face, if such payment is made in accordance with this section and the regulations issued to carry out this section." ⁶

For reasons which follow, we conclude that while the specific exculpatory provision of section 659(f) has not been shown to be invokable on the present record, Millard has advanced no sound legal basis for imposing liability on the United States under state law. Thus, the Claims Court did not err in granting summary judgment in favor of the government.

II Liability and Immunity Provisions of Section 659

Two distinct issues are present in a suit against the government as garnishee, brought either by the garnishor or the employee. First, under Sec. 659(a), the question must be answered whether the government would be liable to the plaintiff under state law. Second, if state law would impose liability on a private garnishee, the question then is whether the government is not liable because of the exculpatory provision, Sec. 659(f), added to the federal statute...