# Employment Development Department v. United States Postal Service, Franchise Tax Board v. United States Postal Service

> Court of Appeals for the Ninth Circuit · February 10, 1983 · 698 F.2d 1029

URL: https://www.frixlaw.com/law-library/cases/9470220

## Case

- **Full name:** EMPLOYMENT DEVELOPMENT DEPARTMENT, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee; FRANCHISE TAX BOARD, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** February 10, 1983
- **Citations:** 698 F.2d 1029; 1983 U.S. App. LEXIS 30630
- **Precedential status:** Published
- **Opinion:** Dissent by Schroeder
- **Judges:** Schroeder, Reinhardt, Thompson
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Franchise Tax Board v. United States Postal Service, 467 U.S. 512 (1984).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9470220

## Opinion text

SCHROEDER, Circuit Judge,
dissenting in part:
I concur in the court’s opinion in No. 80-5694 holding that the California Employment Development Department may recover funds which the U.S. Postal Service owes to mail transportation contractors who are delinquent in paying state unemployment taxes.
I dissent from the decision in No. 80-5700 which holds that the California Franchise Tax Board may not use similar procedures to recover funds which the Service owes to employees who are delinquent in paying state income taxes. The majority reaches that determination because it interprets 5 U.S.C. § 5517 to prohibit use of such procedures. I cannot agree.
Section 5517 authorizes federal agencies to withhold state income taxes from their employees’ salaries. By its own terms, it is a limited waiver of sovereign immunity. It therefore provides in part that
(b) This section does not give the consent of the United States to the application of a statute which imposes more burdensome requirements on the United States than on other employers, or which subjects the United States or its employees to a penalty or liability because of this section. 5 U.S.C. § 5517 (b) (1976).
The language is merely a description of the limited congressional consent given in that provision. It does not purport to limit congressional power to waive immunity in other statutes.
In the Postal Reorganization Act, Congress did waive Postal Service immunity, without any qualification regarding state tax procedures, by providing that the Service can “sue or be sued” like a private *1038 employer. 39 U.S.C. § 401 (1) (1976). See FHA v. Burr, 309 U.S. 242, 245 , 60 S.Ct. 488, 490 , 84 L.Ed. 724 (1940). The federal courts have consistently held that section 401(1) waives Postal Service immunity from state garnishment proceedings. Associates Financial Services v. Robinson, 582 F.2d 1 (5th Cir.1978) (per curiam); Beneficial Finance Co. v. Dallas, 571 F.2d 125 (2d Cir.1978); General Electric Credit Corp. v. Smith, 565 F.2d 291 (4th Cir.1977) (per curiam); Goodman’s Furniture Co. v. United States Postal Service, 561 F.2d 462 (3d Cir.1977) (per curiam); May Department Stores Co. v. Williamson, 549 F.2d 1147 (8th Cir.1977); Standard Oil Division, American Oil Co. v. Starks, 528 F.2d 201 (7th Cir.1975) (per curiam). See also Sportique Fashions, Inc. v. Sullivan, 597 F.2d 664 , 665 n. 2 (9th Cir.1979) (dictum). Cf. Snapp v. United States Postal Service, 664 F.2d 1329 (5th Cir.1982) (rejecting attempt by Postal Service employee to enjoin wage garnishment); Long Island Trust Co. v. United States Postal Service, 647 F.2d 336 (2d Cir.1981) (assuming without discussion amenability of Postal Service to garnishment).
The statutory collection process in question here is essentially a garnishment procedure. We are offered no reason why Congress would wish to treat Postal Service employees’ tax debts any differently than it treats their other debts. Nor are we offered any statutory language requiring such a distinction.
I conclude that California’s income tax collection procedures do not offend the provisions of 5 U.S.C. § 5517 , and that their implementation in this case is the only result which furthers Congress’ intent to treat the Service like a private employer. I would therefore reverse both judgments.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9470220. Public record. Not legal advice.