Morrison v. Morrison, Civ. A. No. CA-6-75-8.

• Decision Date: 13 February 1976
• Docket Number: Civ. A. No. CA-6-75-8.
• Citation: 408 F. Supp. 315
• Parties: Eleanor MORRISON, Plaintiff, v. Herbert K. MORRISON and the United States Department of the Air Force, Defendants.
• Court: U.S. District Court — Northern District of Texas

408 F. Supp. 315

Eleanor MORRISON, Plaintiff, v. Herbert K. MORRISON and the United States Department of the Air Force, Defendants.

Civ. A. No. CA-6-75-8.

United States District Court, N. D. Texas, San Angelo Division.

February 13, 1976.

Justin A. Kever, Kever & Ratliff, San Angelo, Tex., for plaintiff.

Frank D. McCown, U. S. Atty., Fort Worth, Tex., Robert B. Wilson, Asst. U. S. Atty., Lubbock, Tex., for U. S. Dept. of A. F.

ORDER OF DISMISSAL

WOODWARD, District Judge.

The United States has filed a motion to dismiss for failure to state a claim upon which relief can be granted and a brief in support thereof. The plaintiff has responded with a brief in opposition to said motion. In examining said briefs, the court noted that there was a genuine question as to jurisdiction. After having considered the jurisdictional question, the court is of the opinion that the following order should be entered.

It is universally recognized that the federal courts are courts of limited jurisdiction and are empowered to hear only those cases authorized to be heard by a jurisdictional grant from Congress pursuant to Article III of the United States Constitution. See Wright, Federal Courts 15 (2d ed. 1970). One principle which stems from this characteristic of the federal courts is that in any given case, the court is presumed to lack jurisdiction. This presumption must be overcome by a conclusive showing that the court indeed is endowed with jurisdiction over the subject matter of the action. Wright, supra. Further, the court must dismiss an action in which there is a lack of subject matter jurisdiction, even if the jurisdictional defect is noted by the court and not raised in a motion of the parties. See Fed.R.Civ.P. 12(h)(3). A search for a jurisdictional base in the present case has revealed that the court lacks subject matter jurisdiction.

The plaintiff's pleadings state that the action "is a suit for enforcement of child support . . . authorized by the provisions of public law 93-647. . . ." Public law 93-647, codified as 42 U.S.C. § 659 (1975), reads as follows:

"Notwithstanding any other provision of law, effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States (including any agency or instrumentality thereof and any wholly owned Federal corporation) 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 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."

Mrs. Morrison in the present action seeks a writ of garnishment against the Air Force in order to garnish retirement payments due to Mr. Morrison as a retired officer. Although section 659 undoubtedly has some application to a case such as this, the question is the effect of its application as far as jurisdictional considerations are concerned.

Section 659 was passed by Congress in order to do away with the barrier of sovereign immunity in suits to garnish payments due to federal employees. The legislative history of Public Law 93-647 contains the following passage:

At the present time, the pay of Federal employees, including military personnel, is not subject to attachment for purposes of enforcing court orders, including orders for child support or alimony. The basis for this exemption is apparently a finding by the courts that the attachment procedure involves the immunity of the United States from suits to which it has not consented.

4 United States Code Congressional and Administrative News, p. 8157 (1974). The above passage states the problem with which Congress was faced — that of the sovereign immunity of the United States. The solution was to enact a statute that would waive such immunity; indeed, this waiver is the purpose and effect of section 659. In contrast, however, it neither purports to nor does it create a statutory right to relief by way of garnishment, but it merely removes the government's immunity from a garnishment proceeding authorized under state law without conferring jurisdiction upon the federal courts to entertain such actions. Had Congress intended for section 659 to confer such jurisdiction, it could have drafted the statute in the manner in which the following section, section 660, was drafted; it begins "the district courts of the United States shall have jurisdiction . . .." 42 U.S.C. § 660 (1975). As can be seen, section 659 does not provide an independent jurisdictional base upon which an action can be maintained in federal district court. If jurisdiction is to attach, it must be by some way of some other statute.

The statute that immediately comes to mind is 28 U.S.C. § 1346(a)(2) which provides that the district court shall have original jurisdiction of any claim against the United States "founded . . . upon . . . any Act of Congress. . . ." (The amount claimed in the complaint was $9,700, which is under the $10,000 limit of section 1346(a)(2). The amount in arrears has now increased to approximately $11,300. Consequently, this opinion will also discuss the applicability of 28 U.S.C. § 1331 which has an amount in controversy requirement of in excess of $10,000.) Jurisdiction can be asserted properly if the plaintiff's claim is "founded upon" an act of Congress. This court is of the opinion that a statute which waives sovereign immunity is not one upon which...