First Virginia Bank v. Randolph

• Citation: 324 U.S.App. D.C. 29,110 F.3d 75
• Decision Date: 12 June 1997
• Docket Number: No. 96-5205,96-5205
• Parties: , 65 USLW 2694 FIRST VIRGINIA BANK, Appellee, v. Vera RANDOLPH, Defendant, United States of America and U.S. Department of State, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 75

110 F.3d 75

324 U.S.App.D.C. 29, 65 USLW 2694

FIRST VIRGINIA BANK, Appellee, v. Vera RANDOLPH, Defendant United States of America and U.S. Department of State, Appellants.

No. 96-5205.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 24, 1997.

Decided April 11, 1997.

Rehearing Denied June 12, 1997.

Appeal from the United States District Court for the District of Columbia (95cv00919).

Robert D. Kamenshine, Washington, DC, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Frank W. Hunger, Assistant Attorney General, and William G. Kanter, Deputy Director. Eric H. Holder, Jr., U.S. Attorney, Claire M. Whitaker and R. Craig Lawrence, Assistant U.S. Attorneys, entered appearances.

Mark L. Booz, Atlanta, GA, argued the cause and filed the briefs for appellee First Virginia Bank. Kathleen T. Barlow entered an appearance.

Before: WILLIAMS, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

May a judgment creditor recover damages against the United States for its wrongful failure to garnish the wages of a government employee who is a judgment debtor? That issue, and a jurisdictional question, are presented in the government's appeal from the district court's award of $385.71 in "damages" to First Virginia Bank.

I

The State Department began garnishing the wages of its employee, Vera Randolph, in March 1994 after it was served with a writ of attachment. The Bank obtained the writ from the Superior Court of the District of Columbia. The garnishment provision of the Hatch Act Reform Amendments of 1993, 5 U.S.C. § 5520a(b), subjects the pay of federal agency employees to legal process "in the same manner and to the same extent as if the agency were a private person." District of Columbia law requires an employer served with a writ of attachment to "withhold and pay" to the judgment creditor a percentage of the employee's gross wages until the "attachment is wholly satisfied." D.C.CODE § 16-573(a) & (a)(2).

In November 1994, nine months after the garnishment began, Randolph notified the State Department of her filing of a motion in Superior Court to quash the writ. The State Department then stopped garnishing her wages in light of D.C. CODE § 16-573(b). This local law states that whenever the employer receives "written notice of any court proceeding attacking the attachment or the judgment on which it is based, the employer shall make no further payments to the judgment creditor or his legal representative until receipt of an order terminating the proceedings; except that in the case of child support judgments, the employer shall continue to withhold the payments from the judgment debtor until receipt of an order of the court terminating the withholding."

Shortly after notifying the State Department of her motion, Randolph retired from federal service. The Superior Court thereafter declared her challenge to the writ of attachment moot because the State Department was no longer paying her any wages. First Virginia Bank--whose judgment against Randolph remained unsatisfied--filed a motion against the State Department to recover the portion of Randolph's wages the Bank would have received if the government had continued garnishing them, as the Bank claimed it should have. The government responded by removing the case to the federal district court.

On cross-motions for summary judgment, the district court ruled that the State Department had wrongfully ceased garnishing Randolph's pay. No matter that Randolph had filed a motion to quash the writ of attachment. As the district court saw it, the State Department had misinterpreted D.C. CODE § 16-573(b). The garnishment should have continued while Randolph litigated her motion. The court viewed § 16-573(b) as relieving employers only of their duty to pay the withheld wages to the judgment creditor, not to stop withholding a percentage of the employee's wages. First Va. Bank v. Randolph, 920 F.Supp. 213, 216-17 (D.D.C.1996). (The government has decided not to contest this ruling.)

In seeking a monetary award against the State Department for its failure to withhold part of Randolph's wages, the Bank relied upon D.C.CODE § 16-575: if "the employer-garnishee fails to pay to the judgment creditor the percentages ... of the wages which become payable to the judgment debtor for any pay period, judgment shall be entered against him for an amount equal to the percentages with respect to which the failure occurs." The government invoked sovereign immunity to shield it from liability under § 16-575, but the district court held that the Hatch Act amendment, by subjecting the federal government to the same legal responsibilities as private employers, waived the government's immunity. First Va. Bank, 920 F.Supp. at 218. Accordingly, the court awarded the Bank $385.71 in "damages," an amount representing $75.71 in the outstanding principal on Randolph's debts and $310.00 in costs.

II

Before argument, we ordered the parties to file supplemental briefs addressing the question whether this court or the Federal Circuit had jurisdiction over the appeal. The so-called little Tucker Act gives district courts and the Court of Federal Claims concurrent jurisdiction of any "civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1346(a)(2). Under 28 U.S.C. § 1295(a)(2), the Federal Circuit has exclusive jurisdiction over appeals in non-tax cases in which the district court's jurisdiction "was based, in whole or in part" on the little Tucker Act.

The presence, or absence, of our appellate jurisdiction thus depends on what occurred in the district court. If the district court's jurisdiction did not rest in whole or in part on the little Tucker Act, we have jurisdiction over the government's appeal. Both parties think the appeal is properly before us, but for different reasons. The government's main point is that little Tucker Act jurisdiction could not have existed because the Bank failed to satisfy one of the conditions for invoking it--namely, that the substantive law, here the Hatch Act Reform Amendments, 5 U.S.C. § 5520a(b), "can fairly be interpreted" to mandate compensation from the government for the damage the Bank incurred. United States v. Mitchell, 463 U.S. 206, 217, 103 S.Ct. 2961, 2968, 77 L.Ed.2d 580 (1983). To rule on the government's contention would draw us close to the merits and so we will pass over it for the moment. There are other reasons for sustaining our appellate jurisdiction.

Even if a substantive law mandates compensation from the government, a claimant will need to show that the United States has consented to the suit. This showing is considered a prerequisite to jurisdiction; if the government has not consented to the suit, sovereign immunity requires the court to dismiss the action for lack of jurisdiction. United States v. Mitchell, 463 U.S. at 212, 103 S.Ct. at 2965. Because sovereign immunity is thus "jurisdictional," the little Tucker Act can be viewed as conferring "jurisdiction" in two respects. The Act vests the district courts with concurrent subject matter jurisdiction over specified claims against the government not exceeding $10,000. The Act also gives the district courts (and the claims court) "jurisdiction" by waiving the government's sovereign immunity. Id.

Litigants seeking damages from the United States for statutory violations often have no choice but to base their lawsuits on the little Tucker Act. If the substantive statutes on which they rest their damage claims do not waive sovereign immunity (or do not consent to suit, which amounts to the same thing), plaintiffs have to use the waiver contained in the Tucker Act. But there are cases in the district courts--this is one of them--in which the plaintiff decides not to rely on the little Tucker Act, cases in which the plaintiff rests on some other provision of federal law for the requisite governmental consent to suit. Such cases are not based, wholly or partly, on the little Tucker Act and appeals from the judgments of the district courts are to be heard in the regional courts of appeals, not the Federal Circuit. See Vietnam Veterans of Am. v. Secretary of the Navy, 843 F.2d 528, 533-34 (D.C.Cir.1988). We once described this category of lawsuits as comprising claims "brought under statutes that independently confer jurisdiction upon the district court and waive sovereign immunity for money claims against the United States." Van Drasek v. Lehman, 762 F.2d 1065, 1068 (D.C.Cir.1985).

The statement in Van Drasek does not mean that the waiver of sovereign immunity itself "independently confer[s] jurisdiction." Nor does it mean that the substantive provision the government allegedly violated must "independently confer jurisdiction." There may be a separate provision waiving sovereign immunity (and in that sense, conferring "jurisdiction"), but subject matter jurisdiction still must be established. Here that was accomplished through 28 U.S.C. § 1331, the provision vesting the district courts with jurisdiction over cases arising under federal law. The Bank's action qualifies as such a case because it arises under the Hatch Act Reform Amendments. As to the other jurisdictional prerequisite--sovereign immunity--the Bank claimed, and the district court agreed, that the Hatch Act amendments waived the government's immunity. See First Va. Bank, 920 F.Supp. at 217-18. Both of the conditions mentioned in the statement from Van Drasek were therefore present: the district court had subject matter jurisdiction under 28 U.S.C. § 1331, and the claimant invoked only a...