Loftin v. Rush
| Decision Date | 02 August 1985 |
| Docket Number | No. 84-8828,84-8828 |
| Citation | 767 F.2d 800 |
| Parties | Pamela A. LOFTIN, Plaintiff-Appellant, v. James K. RUSH, Defendant, United States of America, Garnishee-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Jerry D. Sanders, Columbus, Ga., for plaintiff-appellant.
Jack Hood, Asst. U.S. Atty., Macon, Ga., for garnishee-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before HENDERSON and CLARK, Circuit Judges, and HOFFMAN *, District Judge.
This appeal addresses the scope of removal under 28 U.S.C. Sec. 1442(a)(1), and the extent to which Congress waived sovereign immunity under 42 U.S.C. Sec. 659(a) (1982). 1
Pamela A. Loftin was divorced from James K. Rush in September of 1974. As part of the divorce decree, Rush was obligated to pay child support. He did not do so. As a result, Loftin swore out an Affidavit of Continuing Garnishment in the Muscogee County Superior Court, Georgia, in the amount of $37,966.
The Summons of Garnishment was served on Rush's employer, the United States Navy, on February 7, 1984. It indicated the full amount of the judgment against Rush and advised the Navy it had 45 days to answer. It warned that a failure to answer would render the Navy liable for the full amount of the judgment.
Sixty-nine days later, on April 16, 1984, when the Navy had filed no answer, the Superior Court entered a default judgment against the Navy for $37,966 plus costs. A copy of the judgment was mailed to the Navy and received April 20.
One day after the judgment was entered, on April 17, 1984, the court received a letter from the Navy, explaining that it intended to honor the garnishment but that it could not file an answer until it received pay information from Rush's commanding officer. Two months elapsed. The Navy's answer was filed June 19, 1984, and its first monthly check, in the amount of $456.47 was tendered June 20.
Noticeably angered by the Navy's idiosyncratic time frame, Loftin's counsel wrote the Navy a letter June 19, 1984, calling its attention to the default judgment and informing it that its monthly payments were not acceptable. Counsel threatened to have a Writ of Execution issue against the United States unless the full amount of the judgment--$37,966--was paid into court by July 1, 1984.
The Navy received the letter June 22, 1984. It filed a petition for removal July 9, 1984. Subsequently, on July 10, the Superior Court received the Navy's second monthly check. Roughly three weeks later, August 3, 1984, Loftin filed a motion to remand to Superior Court.
The district court remanded, but not until it had "quashed, nullified and vacated" the default judgment and had dismissed any direct claim Loftin had against the United States. Once the court dismissed the claim and vacated the judgment, it remanded the basic garnishment action to the state court. This appeal followed: Loftin challenges the removal to federal court; the district court's determination that a default judgment could not be sustained against the United States; and the court's remand of the remaining garnishment action to state court.
The first issue to be resolved is whether we can review the district court's order dismissing the claim against the United States and remanding the remaining claims to state court. Congress has prohibited appellate review of a federal district court's remand order. Title 28 U.S.C. Sec. 1447(d) (1982) provides unambiguously that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise...." The statute includes a single exception, not apposite here.
In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), the Supreme Court analyzed 1447(d) and determined that it is to be interpreted as precluding appellate review only where the court remands pursuant to 1447(c). 2 423 U.S. at 349-52, 96 S.Ct. at 592-93. From Thermtron we extrapolated the principle that a failure to cite 1447(c), or mention its buzzwords, does not per se give us license to review a remand order. Division of Archives, History and Records Management, Department of State v. Austin, 729 F.2d 1292, 1293 (11th Cir.1984); In re Weaver, 610 F.2d 335, 337 (5th Cir.1980); See In re Merrimack Mutual Fire Insurance Co., 587 F.2d 642, 648 (5th Cir.1978).
An analysis of the district court's order indicates that it remanded the case after it dismissed the federal component, concluding that the garnishment action would be better prosecuted in the state court. The court implied that without the federal component, the case was "removed improvidently and without jurisdiction." See IMFC Professional Services of Florida, Inc. v. Latin American Home Health, Inc., 676 F.2d 152, 160 (5th Cir. Unit B 1982). This implication is adequately supported and remand was appropriate here after the district court decided the federal issue and only non-federal issues remained. 3 See Thermtron, 423 U.S. at 352-53, 96 S.Ct. at 593-94; Armstrong v. Alabama Power Co., 667 F.2d 1385, 1387 (11th Cir.1982); Merrimack, 587 F.2d at 648-49.
However, the court's order is not immunized from review. The district court's order was not confined to a simple remand. It vacated a state judgment. Nothing bars our review of this order: " " City of Waco, Texas v. United States Fidelity and Guaranty Co., 293 U.S. 140, 143, 55 S.Ct. 6, 7, 79 L.Ed. 244 (1934) (cited in Armstrong, 667 F.2d at 1387).
To review the district court's order vacating the state court's judgment, we must review sequentially the steps that preceded it. First, we must resolve whether the garnishment action could be removed to federal court. The government urges that removal is authorized under both 28 U.S.C. Sec. 1441 4 and Sec. 1442(a)(1). 5 Loftin counters that neither of these statutes provides a basis for removal. 6
The Supreme Court has held that "the right of removal [under Sec. 1442(a)(1) ] is absolute for conduct performed under color of federal office," Arizona v. Manypenny, 451 U.S. 232, 242, 101 S.Ct. 1657, 1664, 68 L.Ed.2d 58 (1981), and that 28 U.S.C. Sec. 1442(a)(1) "is broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law." Willingham v. Morgan, 395 U.S. 402, 406-07, 89 S.Ct. 1813, 1816, 23 L.Ed.2d 396 (1969). The Court agreed with the government that "the removal statute is an incident of federal supremacy, and that one of its purposes [is] to provide a federal forum for cases where federal officials must raise defenses arising from their official duties." Willingham, 395 U.S. at 405, 89 S.Ct. at 1815.
We have held that unlike Sec. 1441, the general removal statute, Sec. 1442 "grants independent jurisdictional grounds over cases involving federal officers where a district court otherwise would not have jurisdiction." IMFC, 676 F.2d at 156; Accord 1(A) J. Moore, Federal Practice p 0.164, at pp. 384-85 (2d ed. 1985); See Id at 388-89.
The question in each case removed under Sec. 1442 is not, therefore, whether the action could have been filed in district court but, rather, whether the case is against any officer, agency, or agent of the United States for any act under color of such office. See 28 U.S.C. Sec. 1442(a)(1). The Fifth Circuit has had occasion to construe Sec. 1442(a)(1) under circumstances similar to those presented in the case at bar. In Murray v. Murray, 621 F.2d 103 (5th Cir.1980), 7 a woman sought to use 42 U.S.C. Sec. 659 to garnish moneys owed to her former husband by the Veterans Administration. The United States, as garnishee, removed the action to federal court and the court granted the government's motion for summary judgment, concluding that the moneys were exempt from garnishment. The appeals court vacated the district court's judgment and remanded, with instructions to the district court to remand the case to state court "[b]ecause Sec. 1442(a)(1) does not support the removal of this action to the district court...." Murray, 621 F.2d at 108.
The issue before the court in Murray was narrow, namely, "whether a federal district court, as an exercise of its Sec. 1442(a)(1) removal jurisdiction, may entertain [a] summons in garnishment commenced in state court against the United States." Id. at 107. Although the interpretation of a federal statute was at issue, the court noted that the United States was merely a stakeholder in the action and that its substantive liability was fixed regardless of the interpretation of the federal statute. Id.; Accord Franchise Tax Board of California v. United States Postal Service, --- U.S. ----, ----, 104 S.Ct. 2549, 2556, n. 19, 81 L.Ed.2d 446 (1984) (). The Murray court expressly did not decide whether removal under Sec. 1442(a)(1) might be warranted if the United States were subject to liability in excess of its acknowledged obligation to pay. Id. 621 F.2d at 107, n. 9.
Murray is not dispositive of the issue before us. We are now confronted with the question left unresolved by Murray, specifically, whether Sec. 1442(a)(1) authorizes removal where a state court judgment is entered against the government in an amount which exceeds that which the government was required by its own statute to collect in behalf of the creditor of a federal employee. We conclude that removal was proper.
In the case sub judice, the Muscogee County Superior Court entered a default judgment against the United States for the full amount of the judgment secured by Loftin against Rush. That...
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