U.S. v. Kellum, No. 74-2990

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BELL, COLEMAN and GEE; COLEMAN
Citation523 F.2d 1284
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Thomas Boyd KELLUM and Jane K. Kellum, Defendants-Appellants.
Docket NumberNo. 74-2990
Decision Date28 November 1975

W. Timothy Jones, Jackson, Miss., William H. Barbour, Sr., Yazoo City, Miss., for defendants-appellants.

Robert E. Hauberg, U. S. Atty., Joseph E. Brown, Jr., Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BELL, COLEMAN and GEE, Circuit Judges.

COLEMAN, Circuit Judge.

Thomas Boyd Kellum and Mrs. Jane K. Kellum, husband and wife, appeal from a money judgment entered against them for an indebtedness owed the United States. Although not for the reasons assigned by the District Court, we affirm its Judgment.

For the unpaid balance of a loan from the Small Business Administration, the Kellums, on March 6, 1964, were indebted in the principal sum of $23,848.39, plus interest. On October 28, 1964, in the District Court for the Northern District of Mississippi, a consent judgment was entered against the debtors for the amount of the indebtedness. Thereafter, for seven years To the day, nothing happened. On October 28, 1971, pursuant to 28 U.S.C. § 1963, 1 the Northern District judgment was registered in the Southern District, where the Kellums then resided.

It was not, however, until April 16, 1973, in the Southern District, that the United States filed its civil action "to revive and renew" the consent judgment theretofore obtained on October 28, 1964.

The Kellums raised the following defenses to the 1973 complaint:

(1) The action is barred by 28 U.S.C. 2415(a). 2

(2) The claim was extinguished by §§ 743, 733, and 735 of the Mississippi Code of 1942 (now codified as 15-1-3, 15-1-43, and 15-1-47, respectively, of the Miss.Code of 1972). 3

(3) The cited state statutes, in combination with 28 U.S.C. § 1962, 4 bar the action.

(4) The claim is barred by estoppel.

The District Court held that the "Section 1963 registration (in the Southern District) was tantamount to the obtaining of a new judgment in a plenary action duly filed * * * (and) constituted an effective revival of the original judgment rendered in the Northern District of Mississippi." 5

The motion to dismiss was denied, the defendants declined to plead further, and final judgment was entered in favor of the United States for the full amount claimed. Relying on this approach, the District Court did not reach the issue of limitations. Since, however, the suit was to "revive and renew a judgment" this was a very viable issue in the case.

Statutes of Limitation

The United States, absent its own consent, is not subject to local statutes of limitations, United States v. John Hancock Mutual Insurance Company, 1960, 364 U.S. 301, 81 S.Ct. 1, 5 L.Ed.2d 1; United States v. Summerlin, 1940, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283; Phillips v. Commissioner of Internal Revenue, 1931, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289; United States v. Thompson, 1878, 98 U.S. 486, 25 L.Ed. 194; Gibson v. Chouteau, 1871, 80 U.S. 92, 13 Wall. 92, 20 L.Ed. 534.

Congressional intent to waive governmental immunity from state statutes of limitation must be "clearly manifested", United States v. Wurts, 1938, 303 U.S. 414, 58 S.Ct. 637, 82 L.Ed. 932; United States v. Nashville, C. & St. L. R. Co., 1886, 118 U.S. 120, 6 S.Ct. 1006, 30 L.Ed. 81.

Moreover, if Congress attaches conditions to such a waiver, those conditions must be complied with, Lucas v. Pilliod Lumber Company, 1930, 281 U.S. 245, 50 S.Ct. 297, 74 L.Ed. 829, 67 A.L.R. 1350.

In the case presently before us, the first question is whether Congress has waived the general governmental immunity from the application of the local (Mississippi) Seven year statute of limitations.

We think not.

The Small Business Act, 15 U.S.C., § 631 et seq., which created the Small Business Administration, imposes no statute of limitations upon that Organization. The consent judgment of October 28, 1964, was in favor of the United States, and properly so, see 15 U.S.C., §§ 633(c)(1), 633(c)(2), and 635(a); Small Business Administration v. McClellan, 1960, 364 U.S. 446, 450, 81 S.Ct. 191, 5 L.Ed.2d 200.

Appellants contend, however, that 28 U.S.C., § 2415(a) (Footnote 2, Supra ) supplies the necessary waiver or consent. That statute provides, with exceptions, that "every action for money damages brought by the United States upon any express or implied contract shall be barred unless the complaint is filed within six years after the right of action accrues * * * ". Additionally, they argue that a consent judgment is a contract, Ergo, the 1964 consent judgment is a contract, thus barred by Section 2415(a).

Our Court has recently said that a consent decree is In many respects (emphasis added) a contract between the parties thereto, United States v. City of Jackson, Mississippi, 5 Cir., 1975, 519 F.2d 1147, 1151, citing United States v. ITT Continental Baking Company, 420 U.S. 223, 236-37, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975). As we read it, the cited case involved the correct construction, or interpretation of, a consent decree entered into between ITT and the Federal Trade Commission. We offer the general observation that the contractual aspect of a consent judgment exists chiefly, if not altogether, in regard to disputes concerning what the parties actually consented to as reflected by the judgment in question.

A consent judgment has the same force and effect as any other judgment until set aside in the manner provided by law, May v. Moss, 8 Cir. 1952-1954, 194 F.2d 133, Cert. denied 343 U.S. 952, 72 S.Ct. 1046, 96 L.Ed. 1353; 212 F.2d 400; Kiwi Coders Corp. v. Acro Tool and Die Works, 7 Cir. 1958, 250 F.2d 562; Fleming v. Huebsch Laundry Corp., 7 Cir. 1947,159 F.2d 581; Siebring v. Hansen, 8 Cir. 1965, 346 F.2d 474, 477. Furthermore, the legislative history of 28 U.S.C., § 2415 provides no comfort for the appellants. The Senate report on Public Law 89-505, which became Section 2415, declares the purpose of the Act to be the establishment of limitations on contract and tort actions by the United States. At no point does the report designate a judgment as being a contract for the purposes of the Act, 1966 U.S.Code Cong. & Adm.News, pp. 2502-14.

We are convinced that this consent judgment for the recovery of money owed the United States, the amount of which is not in dispute, embraced all of the attributes commonly accorded a judgment, as much so as if it had been the result of litigation. It must be treated as a judgment, not as a contract.

Therefore, we hold that 28 U.S.C., § 2415 has no applicability to the judgment entered on October 28, 1964; that the United States has not waived its immunity from the applicability of the State seven year statute of limitations; and that the efficacy of the judgment has never been and is not now barred by any statute of limitations. On the same reasoning the Judgment could not be extinguished by a state statute.

Consequently, insofar as the continuing validity Vel non of the judgment was concerned there was no necessity for the United States to bring suit to renew or revive it. Neither could there be any legal impediment to renewal or revival if the United States saw fit to seek it.

It is altogether undisputed that the Judgment of October 28, 1964 was duly entered by a court having jurisdiction of the parties and the subject matter. The amount owed is not denied. Accordingly, the District Court should have entered judgment reviving and renewing the 1964 judgment.

Judgment Lien and Levy of Execution

A further examination of the law quickly reveals the reason for seeking to revive the 1964 Judgment. By virtue of certain statutes and rules enacted by Congress, the Judgment gave the government neither a lien nor the right to levy execution after October 28, 1971.

As to liens, 28 U.S.C. Section 1962 provides, in pertinent part:

Every judgment rendered by a district court within a State shall be a lien on the property located in such State in the same manner, to the same

extent and under the same conditions as a judgment of a court of general jurisdiction in such State, and shall cease to be a lien in the same manner and time

As to execution on a judgment, Rule 69(a) of the Federal Rules of Criminal Procedure clearly states:

Rule 69.


(a) In General. Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable.

The life of a lien or a judgment in Mississippi is specified as follows:

A judgment or decree rendered in any court held in this state shall not be a lien on the property of the defendant therein for a longer period than seven years from the rendition thereof, unless an action be brought thereon before the expiration of such time. However, the time during which the execution of a judgment or decree shall be stayed or enjoined by supersedeas, injunction or other process, shall not be computed as any part of the period of seven years. Section 15-1-47, Miss.Code 1972.

Thus, on October 28, 1971 the United States had a judgment against the Kellums which could be renewed or revived, but it was incapable of enforcement, either

by lien or levy. It was a tiger without teeth. Was the 1964

Judgment Revived and Renewed by Registering it in Another District Within the Same State?

If, as the government contends, and as the District Court decided, the 1971 registration of the 1964 Judgment was "tantamount to the obtaining of a new judgment in a plenary...

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