Williams v. Williams
Decision Date | 27 December 1976 |
Docket Number | Civ. No. K-76-248. |
Citation | 427 F. Supp. 557 |
Parties | Walter A. WILLIAMS, Plaintiff and Cross-Defendant, United States of America, Garnishee, v. Essye B. WILLIAMS, Defendant and Cross-Plaintiff. |
Court | U.S. District Court — District of Maryland |
Jervis S. Finney, U. S. Atty., Thomas G. Banjanin, Asst. U. S. Atty., Baltimore, Md., for garnishee.
Herbert Myerberg, Bruce A. Kaufman, Baltimore, Md., for defendant and cross-plaintiff.
This case grows out of a divorce proceeding instituted in a Maryland court by the husband, seeking a decree of divorce a vinculo matrimonii. Eventually, however, the wife prevailed upon her cross-bill of complaint and won a decree of divorce and an award of alimony. Thereafter the wife, seeking to enforce her alimony award, named the United States as garnishee in a series of writs of attachment filed in and issued out of the state court. In so doing, the wife attempted to reach the substantial retirement income which her husband, a retired warrant officer, receives from the United States. The United States has removed this case to this Court. The wife contends that such removal is not soundly based and that this case should be remanded to the state court.1
Until very recently, the doctrine of sovereign immunity barred a garnishment proceeding against the United States. See Arnold v. United States, 331 F.Supp. 42, 43 (S.D.Tex.1971); Clarise Sportswear Co. v. U & W Manufacturing Co., 223 F.Supp. 961 (E.D.Pa.1963). Recently, however, the Congress has enacted The Social Services Amendments of 1974, Pub.L. 93-647, § 101(a), 88 Stat. 2357, codified in part as 42 U.S.C. § 659 (Supp. IV, 1974), which provides:
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.
With the shield of sovereign immunity thus lowered, Mrs. Williams sought in the state court, and continues to seek in this Court, to garnish her husband's retirement pay.
The Government claims removal jurisdiction under both (1) a combination of 28 U.S.C. § 1441(a)2 and either 28 U.S.C. § 1331(a)3 or § 1346(a)(2)4 and (2) 28 U.S.C. § 1442(a)(1).5 Section 1441 authorizes removal of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction * * *." The Government alleges original jurisdiction alternatively under 28 U.S.C. § 1331(a) or § 1346(a)(2) depending upon whether or not the amount in controversy exceeds $10,000. However, original jurisdiction does not exist, and therefore removal jurisdiction does not exist under 28 U.S.C. § 1441(a) taken in combination with either § 1331(a) or § 1346(a)(2), because this case does not "arise under" 42 U.S.C. § 659 or any other provision of federal law, within the meaning of section 1331(a) and also is not "founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department" as required by § 1346(a)(2). In Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936), Mr. Justice Cardozo wrote with regard to 1331(a):
In Morrison v. Morrison, 408 F.Supp. 315 (N.D.Tex.1976), a wife sought in a suit instituted originally in federal district court to reach retirement payments due from the Air Force to her husband to satisfy child support obligations. Noting (at 317) the removal of "the barrier of sovereign immunity" by 42 U.S.C. § 659, the Court held jurisdiction lacking under a combination of section 659 and 28 U.S.C. § 1331(a), citing, inter alia, to Gully, and also lacking under a combination of section 659 and 28 U.S.C. § 1346(a)(2). With regard to the latter, Judge Woodward wrote (at 317) that
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 the Government to federal district court was held inappropriate under both 28 U.S.C. § 1441(a) combined with 28 U.S.C. § 1346, and under 28 U.S.C. § 1442(a)(1). See also to the same effect, as to section 1441 combined with section 1346(a)(2), Wilhelm v. United States Dep't of Air Force, 418 F.Supp. 162 (S.D.Tex. 1976). This Court agrees with the views expressed in Wilhelm, Morrison and West as to section 1441. The applicability of section 1442(a)(1) raises, however, different and more complex issues.7
Section 1442 provides in part:
In West, Judge O'Kelley wrote (at 1190-91):
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. Accordingly, this court...
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