Arnold v. United States
| Decision Date | 26 August 1971 |
| Docket Number | Civ. A. No. 71-G-89. |
| Citation | 331 F. Supp. 42 |
| Parties | Mary Francis ARNOLD, Plaintiff, v. UNITED STATES of America et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Herman Gordon, Houston, Tex., for plaintiff.
Lavern D. Harris, Kerrville, Tex., Anthony J. P. Farris, U. S. Atty., Houston, Tex., and George R. Pain, Asst. U. S. Atty., Houston, Tex., for defendants.
The instant controversy originated when a divorce action was commenced in the Court of Domestic Relations of Brazoria County, Texas, wherein Mary Francis Arnold was plaintiff and Gerald Eugene Arnold was defendant. Subsequently plaintiff amended her original petition naming the United States of America as one of the defendants. In such pleading plaintiff alleged that she was entitled to, as part of a property settlement in the divorce proceedings, certain United States Navy retirement and disability benefits which are payable to her husband, Gerald Arnold.
Upon motion by the United States, and in accordance with the provisions of 28 U.S.C. § 1441(b), the action was removed to this federal jurisdiction for determination.
Defendant United States of America has now moved to dismiss this action per Rule 12(b) (2) Fed.R.Civ.P. () for the reason that plaintiff's suit constitutes an action against the United States of America to which it has not consented to be sued. In reply plaintiff moved the Court to retain jurisdiction over that portion of the cause in which Mary Francis Arnold is plaintiff and the United States of America is defendant. Plaintiff asserts that under the property laws of Texas she has a vested property right in and to her husband's retirement funds and benefits; and, that although the United States of America has not consented to this suit, it does arise as a claim or right arising under the laws of the United States as stated in 28 U.S.C. § 1441(b) since it involves a United States military service retirement fund as authorized by the applicable federal statutes applying to such military or veterans retirement benefits, 10 U.S.C. § 1401. Furthermore, plaintiff argues that the requisite consent in suits against a governmental agency should not be a predicate in litigation such as the instant case where the purpose of the action is solely to establish a vested property interest and not to sue the United States of America as a typically adverse defendant.
This suit by plaintiff is in effect a garnishment action against the United States of America, and such suit may not be maintained without the consent of the government to be sued. See New Haven Public Schools v. General Services Administration, 214 F.2d 592 (7th Cir. 1954); Love v. Royall, 179 F. 2d 5 (8th Cir. 1950); United States Dept. of Agriculture v. Hunter, 171 F.2d 793 (5th Cir. 1949). It is also clear that the waiver of sovereign immunity may be effectuated only by act of Congress. See In re Greenstreet, Inc., 209 F.2d 660 (7th Cir. 1942). It is thus the plaintiff's burden in the instant case to affirmatively demonstrate the requisite consent and her place within the terms of the same. See Kirk v. Good, 13 F.Supp. 1020 (E.D. Mo. 1929).
A suit, however captioned, is one against the United States if the judgment sought would expend itself on the public treasury or interfere with the public administration. See Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947). The results of the judgment or decree which may be entered should be of controlling importance. See State of New Mexico v. Backer, 199 F.2d 426 (10th Cir. 1952); Jones v. Tower Production Co., 138 F.2d 675 (10th Cir. 1943).
The case of Applegate v. Applegate, 39 F.Supp. 887 (E.D.Va.1941) is directly on point. Similarly, in that case a divorcee sued her former husband, a retired Navy man, for back alimony and sought to enjoin the Disbursing Officer of the United States Navy from further delivering funds to the defendant, as well as to deliver the same to the sequestrator. The court pointed out that the sole purpose of the suit was to reach the defendant's retirement pay from the United States which he received from the above-mentioned paymaster. After discussing the jurisdictional point as to alimony, the court dealt with the action pertaining to the paymaster as follows:
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Williams v. Williams
...very recently, the doctrine of sovereign immunity barred a garnishment proceeding against the United States. See Arnold v. United States, 331 F.Supp. 42, 43 (S.D.Tex.1971); Clarise Sportswear Co. v. U & W Manufacturing Co., 223 F.Supp. 961 (E.D.Pa.1963). Recently, however, the Congress has ......
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Lamerand v. Lamerand, CV 79-4761-WMB.
...plan would expend itself on the public treasury and is thus considered to be an action against the United States. Arnold v. United States, 331 F.Supp. 42, 43 (S.D.Tex.1971); Applegate v. Applegate, 39 F.Supp. 887 (E.D.Va.1941). It is well settled that the doctrine of sovereign immunity bars......
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In re Pritchard, Bankruptcy No. 6-87-57.
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Boaz Nursing Home, Inc. v. Recovery Inns of America, Inc.
...public administration of the Medicaid program). Our conclusions find support in Allen v. Allen, D.C., 291 F.Supp. 312 and in Arnold v. U.S., D.C., 331 F.Supp. 42 and Johnson v. Johnson, D.C., 332 F.Supp. 510, where the facts closely parallel those in the case at We come now to consideration......