Williams v. Williams, Civ. No. K-76-248.

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtHerbert Myerberg, Bruce A. Kaufman, Baltimore, Md., for defendant and cross-plaintiff
Citation427 F. Supp. 557
Docket NumberCiv. No. K-76-248.
Decision Date27 December 1976
PartiesWalter A. WILLIAMS, Plaintiff and Cross-Defendant, United States of America, Garnishee, v. Essye B. WILLIAMS, Defendant and Cross-Plaintiff.

427 F. Supp. 557

Walter A. WILLIAMS, Plaintiff and Cross-Defendant,
United States of America, Garnishee,
v.
Essye B. WILLIAMS, Defendant and Cross-Plaintiff.

Civ. No. K-76-248.

United States District Court, D. Maryland.

December 27, 1976.


427 F. Supp. 558

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.

FRANK A. KAUFMAN, District Judge.

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.

427 F. Supp. 559
§ 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)
How and when a case arises "under the Constitution or laws of the United States" has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. Starin v. New York, 115 U.S. 248, 257, 6 S.Ct. 28, 29 L.Ed. 388; First Nat. Bank v. Williams, 252 U.S. 504, 512, 40 S.Ct. 372, 64 L.Ed. 690. The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. Ibid.; King County v. Seattle School Dist., 263 U.S. 361, 363, 364, 44 S.Ct. 127, 128, 68 L.Ed. 339. A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto (New Orleans v. Benjamin, 153 U.S. 411, 424, 14 S.Ct. 905, 38 L.Ed. 764; Defiance Water Co. v. Defiance, 191 U.S. 184, 191, 24 S.Ct. 63, 48 L.Ed. 140; Joy v. St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776; Denver v. New York Trust Co., 229 U.S. 123, 133, 33 S.Ct. 657, 57 L.Ed. 1101), and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. (Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511; Louisville & N. R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126; The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716; Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218.) * * * 299 U.S. supra at 112-13, 57 S.Ct. at 97.
A suit does not arise under a law renouncing a defense, though the result of the renunciation is an extension of the area of legislative power which will cause the suitor to prevail. Let us suppose an amendment of the Constitution by which the states are left at liberty to levy taxes on the income derived from federal securities, or to lay imposts and duties at their pleasure upon imports and exports. If such an amendment were adopted, a suit to recover taxes or duties imposed by the state law would not be one arising under the Constitution of the United States, though in the absence of the amendment the duty or the tax would
427 F. Supp. 560
fail. * * * 299 U.S. supra at 116, 57 at 99.6

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 "a statute which waives sovereign immunity is not one upon which an action can be founded. Rather, a statute upon which a claim can be founded is one which expressly or 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 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:

(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.8

In West, Judge O'Kelley wrote (at 1190-91):

In New Jersey v. Moriarity, 268 F.Supp. 546, 555 (D.N.J.1967), the court traced the development of this section:
The series of enactments culminating in Section 1442(a) were initially designed to protect Federal revenue officers from prosecution or civil suit in State court for violation of State law. (Citations omitted.) Removal was restricted to cases where the officers sic defense was that no personal liability, civil or criminal, could be attached to his action, since he was only performing his Federal duties.
427 F. Supp. 561
Subsequent amendments have, from time to time, enlarged the class of Federal officers and employees who might claim protection, but these additions left unchanged the basic theory and purpose of this removal privilege: that the officer was entitled to — and the interest of national supremacy required — his protection in actions brought against him which attacked and threatened him with personal liabilities or penalties.

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...

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14 practice notes
  • Loftin v. Rush, No. 84-8828
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 2 Agosto 1985
    ...v. Diaz, 568 F.2d 1061, 1063 (4th Cir.1977); Overman v. United States, 563 F.2d 1287, 1292 n. 5 (8th Cir.1977); Williams v. Williams, 427 F.Supp. 557, 559 (D.Md.1976); Wilhelm v. United States Dept. of Air Force, 418 F.Supp. 162, 164 (S.D.Tex.1976); Popple v. United States, 416 F.Supp. 1227......
  • Agosto v. Barcelo, Civ. No. 84-2186(PG).
    • United States
    • U.S. District Court — District of Puerto Rico
    • 27 Septiembre 1984
    ...proceedings, which routinely commence with an application for, and issuance of, an ex parte order. See, e.g., Williams v. Williams, 427 F.Supp. 557, 560 n. 8 (D.Md.1976); see generally, Wright, Miller & Cooper, supra, § 3721 at n. 40. In fact, the only issue which has caused difficulty for ......
  • Garrett v. Hoffman, Civ. A. No. 77-150.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 2 Noviembre 1977
    ...Florida writs could not reach plaintiff's retired pay while the United States still held the funds. See generally Williams v. Williams, 427 F.Supp. 557, 558 (D.Md. 1976); Applegate v. Applegate, 39 F.Supp. 887, 889-90 (E.D.Va.1941); S.Rep.No. 93-1356, 93d Cong., 2d Sess. ___, reprinted in 1......
  • Danfelt v. Bd. County Com'Rs of Washington County, Civil No. Y-98-215.
    • United States
    • U.S. District Court — District of Maryland
    • 19 Marzo 1998
    ...a notice of removal, and Plaintiff filed an opposition thereto, which the Court will treat as a motion to remand. Williams v. Williams, 427 F.Supp. 557, 558 & n. 1 (D.Md. 1976). Additionally, Defendant filed a motion to dismiss or for summary judgment. For the reasons explained more fully h......
  • Request a trial to view additional results
14 cases
  • Loftin v. Rush, No. 84-8828
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 2 Agosto 1985
    ...v. Diaz, 568 F.2d 1061, 1063 (4th Cir.1977); Overman v. United States, 563 F.2d 1287, 1292 n. 5 (8th Cir.1977); Williams v. Williams, 427 F.Supp. 557, 559 (D.Md.1976); Wilhelm v. United States Dept. of Air Force, 418 F.Supp. 162, 164 (S.D.Tex.1976); Popple v. United States, 416 F.Supp. 1227......
  • Agosto v. Barcelo, Civ. No. 84-2186(PG).
    • United States
    • U.S. District Court — District of Puerto Rico
    • 27 Septiembre 1984
    ...proceedings, which routinely commence with an application for, and issuance of, an ex parte order. See, e.g., Williams v. Williams, 427 F.Supp. 557, 560 n. 8 (D.Md.1976); see generally, Wright, Miller & Cooper, supra, § 3721 at n. 40. In fact, the only issue which has caused difficulty for ......
  • Garrett v. Hoffman, Civ. A. No. 77-150.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 2 Noviembre 1977
    ...Florida writs could not reach plaintiff's retired pay while the United States still held the funds. See generally Williams v. Williams, 427 F.Supp. 557, 558 (D.Md. 1976); Applegate v. Applegate, 39 F.Supp. 887, 889-90 (E.D.Va.1941); S.Rep.No. 93-1356, 93d Cong., 2d Sess. ___, reprinted in 1......
  • Danfelt v. Bd. County Com'Rs of Washington County, Civil No. Y-98-215.
    • United States
    • U.S. District Court — District of Maryland
    • 19 Marzo 1998
    ...a notice of removal, and Plaintiff filed an opposition thereto, which the Court will treat as a motion to remand. Williams v. Williams, 427 F.Supp. 557, 558 & n. 1 (D.Md. 1976). Additionally, Defendant filed a motion to dismiss or for summary judgment. For the reasons explained more fully h......
  • Request a trial to view additional results

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