West v. West, Civ. A. No. C75-962A to C75-964A
Citation | 402 F. Supp. 1189 |
Decision Date | 31 October 1975 |
Docket Number | C75-1159A,C75-1145A,C75-1981A and C75-2084A.,C75-1101A,C75-1149A,C75-1831A,Civ. A. No. C75-962A to C75-964A |
Parties | Mary J. WEST v. Richard Nolan WEST, U. S. Department of the Army, Garnishee. Hannelore Hommersom BOEMANNS v. Herman Joseph BOEMANNS, Retired Pay Division Finance Center, U. S. Army, Garnishee. Esther G. WYNN v. Jimmy W. WYNN, Retired Pay Division Finance Center, U. S. Army, Finance Department, Garnishee. Sara V. JENNINGS v. William B. JENNINGS, The United States of America, Garnishee. Darlene Elinor Davenport MILLER v. David Edward MILLER, Commander, U. S. Army Finance Accounting Center, Indianapolis, Indiana, Garnishee (three cases). Helen HILL v. Neely HILL, United States of America, Garnishee. Willa EDWARDS v. Ralph EDWARDS, United States Air Force, Garnishee. Priscilla F. ALLIS v. John B. ALLIS, U. S. Public Health Service Dept. of Health, Education & Welfare, Garnishee. |
Court | U.S. District Court — Northern District of Georgia |
Spence, Garrett & Spence, Alpharetta, Ga., for plaintiff Mary West.
John W. Stokes, Jr., U. S. Atty., Julian M. Longley, Jr., Asst. U. S. Atty., Atlanta, Ga., for garnishee.
O'KELLEY, District Judge.
42 U.S.C. § 659. Relying on this provision, the plaintiffs (all former wives of the respective defendants) filed proceedings in the Civil Court of Fulton County to garnishee monies that the United States owed their former husbands. The United States, as garnishee, filed petitions to remove each of the cases to this court. The question presently before this court is not the ability or inability of the plaintiffs to garnishee their former husbands' wages or retirement benefits. Rather, this court faces the limited issue of whether the cases are within its removal jurisdiction. After carefully considering the arguments advanced by all interested parties, the court is persuaded that the cases should be remanded to the state courts.
In New Jersey v. Moriarity, 268 F.Supp. 546, 555 (D.N.J.1967), the court traced the development of this section:
See Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969); Peterson v. Blue Cross/Blue Shield of Texas, 508 F.2d 55 (5th Cir. 1975).
Viewed in light of its purpose, the court is convinced that section 1442 (a)(1) is inapplicable in the instant cases for two reasons. First, since these actions do not purport to subject any federal officer to a personal liability or penalty, they are not actions "against" a federal officer within the purview of section 1442(a)(1). New Jersey v. Moriarity, supra. While a federal officer might be named as a nominal defendant in an action under 42 U.S. C. § 659, he will not be subjected to personal liability as the sole purpose of the action is to reach federal monies due and owing to the defendant. Second, even if "against" a federal officer, still the actions do not purport to penalize the officer for official acts taken in the past, nor do they attempt to enjoin future official acts.1 Accordingly, this court concludes that the actions are not within the court's section 1442(a)(1) removal jurisdiction.
The second basis of removal jurisdiction urged upon the court is 28 U.S.C. § 1441(a). This section provides:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
The original jurisdiction required by section 1441(a) is allegedly provided in these cases by 28 U.S.C. § 1346(a)(2).2 The court has considered the arguments presented and is persuaded that section 1346(a)(2) does not provide original jurisdiction in the circumstances presented in the instant cases and, therefore, that section 1441(a) does not confer the necessary removal...
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...impliedly creates a right to relief. * * * Section 659 in no way purports to establish a federal right to garnishment." In West v. West, 402 F.Supp. 1189 (N.D.Ga.1975), eight wives brought suit in state courts to garnish monies due from the United States to their former husbands. Removal by......
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