Petition — United States v. Morton

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Office - Supreme Court, U.S,

83-916 FILED

GEC 2 068

No.

a I STEVAS.

Iu the Supreme Court of the Uni rr

OCTOBER TERM, 1983

UNITED STATES OF AMERICA, PETITIONER

Vv.

ALLAN WAYNE MORTON

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Rex E. LEE

Solicitor General

J. PAUL MCGRATH

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

SAMUEL A. ALITO, JR.

Assistant to the Solicitor General

LEONARD SCHAITMAN

LINDA JAN S. PACK

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether, when the federal government, acting pur-

suant to 42 U.S.C. (Supp. V) 659, honors a facially

valid writ of garnishment issued by a state court to

collect alimony or child support owed by a federal

employee, the government may be liable for reim-

bursement if it is later held that the state court lacked

personal jurisdiction over the employee.

(1)

TABLE OF CONTENTS

Page

RIE SIRE Fein ee a aaa aE 1

aa a nniauanaenindoann 1

Statutory and regulatory provisions involved ................ 2

EEE EE Sie A ee 2

Reasons for granting the petition —........0.......0.......c00 5

NE 21

REALS Sa Re la

GE BE AE SC LO ae ee eC 6la

EE A a SS IE 62a

SENOS EE sl 98a

ER i a Rc ee oer 104a

Tn SIRES RST SRSE SRS REE a 109a

TABLE OF AUTHORITIES

Cases :

Buchanan V. Alexander, 45 U.S. (4 How.) 19 ........ 2

Calhoun v. United States, 557 F.2d 401, cert. de-

gS re ee eR 12

Chemehuevi Tribe of Indians v. FPC, 420 U.S. 896.. 8

Clark vy. Uebersee Finanz-Korporation, A.G., 332

Sg LINE I OR er CP Oe 8

Cunningham v. Department of the Navy, 455

OOO Ra 15

sR, I od ccscpcencctesesensocncntvcs 2

International Shoe Co. v. State of Washington, 326

ARSC eee 4

Jizmerjian V. Department of the Air Force, 457

F, Supp. 820, aff'd, 607 F.2d 1001, cert. denied,

I es 14-15

Overman V. United States, 568 F.2d 1287 ................ 18

Philbrook v. Glodgett, 421 U.S. 707 ........0000.0000000..... 8

Popple v. United States, 416 F. Supp. 1227............. 15

(ui)

Cases—Continued Page

Red Lion Broadcasting Co. v. FCC, 895 U.S. 367.... 11

Rush v. United States Agency for International

Development, No. 82-1853 (D.C. Cir. Apr. 26,

PN a celsennicemeneclionaliiibidaie 13-14

Slotare V. Sletare, TIS U.G. 1........20000seceseccescesecsnssecoes 15

Snapp V. United States Postal Service-Texarkana,

REST Eee Rs 14

Sniadach vy. Family Finance Corp., 395 U.S. 337.... 11

oe GE th ere 11

United States v. Clark, 454 U.S. 556............0000000... 11

Statutes and regulations:

Social Security Act, 42 U.S.C. (& Supp. V) 659

eT yk NSS ee A ip ae MT 2

8 ea CAE Cn Nee CO ne Pl 2, 18, 98a

ef a mI ie " 4

42 U.S.C. (Supp. V) 659(a) ............. 2, 4, 6, 9, 18, 20

42 U.S.C. (Supp. V) 659(d) ........0000000. 8,18

42 U.S.C. (Supp. V) 659(f) ............. 2, 3, 6, 7, 8, 12,

al 18, 14, 15

oe See Se ee ee 8-4

42 U.S.C. (Supp. V) 662(e) (1) ........00000..... 6, 8, 98a

Social Services Amendment of 1974 Pub. L. No.

98-647, §101(a), 88 Stat. 2867 00000. 2

Tax Reduction and Simplification Act of 1977,

Pub. L. No. 95-30, Title V, §501(a), 91 Stat.

BI cahcteinssacercaleasianalaieianne thc niatediln As cmadetatadnaaiacaians 2

Uniform Reciprocal Enforcement of Support Act,

9 U.L.A. 643 (1979)

ae Ne Ee icikntisin naceictacisbaseuctsanonion

28 U.S.C. (Supp. V) 1491

Ala. Code (1977):

—_

ann

HOR RRR Ree Ree Rete ee ee eens eseseees

ee errr et ee eee eee eee ee eee eee

sss

Ariz. Rev. Stat. Ann. § 12-1592 (1982)

Ark. Stat. Ann. § 31-446 (repl. 1962)

—_

oo 8

Statutes and regulations—Continued Page

Cal. Civ. Proc. Code § 706.154(b) (West cum.

I TIER gisele cece nllnebchacaacaatbbaenebonsbiinaiadian 9

Ill. Ann. Stat. ch. 62 (Smith-Hurd 1972):

I ia a 2s il dierent Segneinmeemeaniaiuiiens 20

EEE ES a Eee eee 10

Ind. Code Ann, § 34-1-11-29 (Burns 1978) ............ 10

Iowa Code Ann. § 642.18 (West 1950) —.........0....... 10

Mass. Ann. Laws, ch. 246, § 48 (Michie/Law

IIE Susi oc 1c oak a nacanecenlesateenastiaiahibineiniocuns 10

Md. Cts. and Jud. Proc. Code Ann. § 11-601(a)

a ERS aT ¢ ae OE 10

Mo. Ann, Stat. § 525.070 (Vernon 1974) .............. 10

N.D. Cent. Code § 82-09.1-15 (repl. supp. 1983) .. 10

N.H. Rev. Stat. Ann. § 512.28 (repl. 1968) .......... 10

N.J. Stat. Ann. § 2A: 17-58 (West 1952) ....000000...... 10

N.Y. Civ. Prac. Law § 5209 (McKinney 1978) .... 10

N.Y. Dom. Rel. Law §§ 30-48 (McKinney 1977).... 16

Ohio Rev. Code Ann. (Page supp. 1982) :

I oe sce iciinioaaneeats 20

8 CES RET i <a 10

Okla. Stat. Ann. tit. 12, § 1283 (West 1961) ........ 10

Tenn. Code Ann. § 29-7-117 (repl. 1980) ..0000000000..... 10

Wash. Rev. Code § 7.382.800 (1961) 00.0... 10

5 C.F.R.:

NEE AE aL ee Om TTR 2,11

ESC A Se a AS 9

OS eee 11, 101a

PRN CED © dccccacccnnscectesvbideniibenr es 12

Miscellaneous :

48 Fed. Reg. (19838) :

F IE RR Real aoa Sreerelae 2,11, 102a

SRE SEAGIG a RSE rea RE a 12

ERS ER LAR ae aR 12

pO | cee ee ee 11

6 Am. Jur. 2d Attachment and Garnishment

RIESE ATA LEE MR ota ae 11

Miscellaneous—Continued Page

2J. Beale, The Conflict of Laws .00........0000000000000.. 8

88 C.J,S. Garnishment (1948) 200.000... 11

120 Cdng. Rec. (1974) :

is I ctinsicatanccaratnnernntpnenscentpeinnaiintioniann 17

NO PSC ct aes aes ee eR LR 17, 18

Note, Counterclaims and Defenses under the Uni-

form Reciprocal Enforcement of Support Act,

ft SS YF Cee 16

Note, Interstate Enforcement of Support Obliga-

gations through Long Arm Statutes and URESA,

18 J. Family Law 587 (1979-1980) ..................... 16

H.R. Rep. 481, 92d Cong., lst Sess. (1971) ............. 17

In re Technical Sergeant Harry E. Mathews,

USAF ., File No. B-208668 ........................0....... 11

Restatement (Second) of Conflict of Laws (1971).. 8

Restatement of Judgments (1942) 200000000. 8

1 Restatement (Second) of Judgments (1982)...... 8

S. Rep. 1850, 94th Cong., 2d Sess. (1976) ............... 13

S. Rep. 1356, 98d Cong., 2d Sess, (1974) ................. 15, 16

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

ALLAN WAYNE MORTON

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Federal Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-60a) is reported at 708 F.2d 680. The opinion of

the Claims Court (App., infra, 62a-65a) is not

reported.

JURISDICTION

The judgment of the court of appeals was entered

on May 17, 1983. A timely petition for rehearing

was denied on July 5, 1983 (App., infra, 61a). On

September 26, 1983, the Chief Justice extended the

(1)

time for filing a petition for a writ of certiorari to

and including December 2, 1983. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY AND

REGULATORY PROVISIONS INVOLVED

The relevant provisions of the Social Security Act,

42 U.S.C. (Supp. V) 659 et seqg., and the pertinent

parts of the implementing regulations, 5 C.F.R. Pt.

581, as amended by 48 Fed. Reg. 26279-26294

(1988), are set forth in Appendix D, infra, 98a-108a.

STATEMENT

1. In 1974, Congress enacted 42 U.S.C. 659

(amended 1977),' which partially waived the tradi-

tional sovereign immunity against writs garnishing

the salaries of federal employees.’ Section 659 (now

codified as 42 U.S.C. (Supp. V) 659(a)) allowed

garnishment of federal salaries to collect alimony and

child support payments “in like manner and to the

same extent as if the United States * * * were a

private person.” However, under 42 U.S.C. (Supp.

V) 659(f), which was added in 1977,* neither the

government nor its disbursing officers are liable for

amounts paid “pursuant to legal process regular on

its face, if such payment is made in accordance with

this section and the regulations issued to carry out

this section.” The term “legal process” is defined by

1 Section 659 was originally enacted as part of the Social

Services Amendments of 1974, Pub. L. No. 98-647, § 101 (a),

88 Stat. 2357.

2 See FHA v. Burr, 809 U.S. 242, 244 (1940) ; Buchanan Vv.

Alexander, 45 U.S. (4 How.) 19, 20 (1846).

* Tax Reduction and Simplification Act of 1977, Pub. L. No.

95-30, Title V, § 501 (a), 91 Stat. 157.

statute as “any writ * * * or other similar process

in the nature of garnishment” that, among other

things, “is issued by * * * a court of competent

jurisdiction” (42 U.S.C. (Supp. V) 662(e) (1)).

2. Respondent, a career Air Force officer, was

sued for divorce in Alabama. Served by mail while

stationed in Alaska, he failed to make an appearance

in the Alabama suit on the advice of counsel‘ that

such service was insufficient. The Alabama court

then entered a default judgment granting the divorce

and ordering the payment of alimony and child sup-

port. To enforce that judgment, the court subse-

quently issued a writ of garnishment for respondent’s

federal pay. The Air Force Finance Office at Elmen-

dorf Air Base in Alaska notified respondent that the

writ had been received (see 42 U.S.C. (Supp. V) 659

(d)), and respondent, repeating the advice of coun-

sel, protested that his pay could not be garnished be-

cause he had not been served properly in the underly-

ing state court proceeding. However, because the

Alabama writ was “regular on its face,” the Air

Force honored the writ and began garnishing re-

spondent’s pay (App., infra, 4a, 67a). Several

months later, respondent successfully sued in the

former Court of Claims for recovery of this money,

arguing that the Alabama court had lacked in per-

sonam jurisdiction (see id. at 68a-81a).

On appeal, a divided panel of the Federal Circuit

affirmed (App., infra, 1a-60a). The court of appeals

noted that the government is immune from suit under

Section 659(f) only if payment is made “pursuant

to legal process regular on its face” (id. at 5a-7a).

Observing that “legal process” is defined by 42 U.S.C.

* Respondent was advised by an officer of the Air Force

Judge Advocate General’s office (App., infra, 8a-da).

662(e)(1) as process “issued by * * * a court of

competent jurisdiction,” the court concluded (id. at

8a-lla) that “competent jurisdiction” means both

subject matter and in personam jurisdiction. The

court then determined that respondent’s contacts with

Alabama were insufficient to permit the courts of

that state to exercise in personam jurisdiction over

him (see International Shoe Co. v. State of Washing-

ton, 326 U.S. 310 (1945) ), and accordingly held that

the Alabama court was not “a court of competent

jurisdiction” and that its garnishment writ was

therefore not “legal process” within the meaning of

42 U.S.C. (Supp. V) 659 and 662(e) (1) (App. infra,

lla-18a).° The court stated (id. at 17a (footnotes

omitted) ) :

[W]e hold that the immunity provisions of the

garnishment statute permit the Government,

where the process document is regular on its

face, to make payment without liability on a pre-

sumption that the underlying judgment is valid,

but that such a presumption is rebuttable by a

showing that the Government had notice of a

substantial claim of jurisdictional irregularity.

The court found that the government had such notice

here and was consequently liable to respondent for

the amount withheld from his salary pursuant to the

writ (id. at 17a-18a).

Judge Nies dissented (App., infra, 20a-55a). She

concluded that a private employer would not be liable

to respondent under the circumstances of this case

* The court of appeals also suggested (App., infra, 8a) that

alimony or child support orders entered by a court without

personal jurisdiction over the defendant are not “legal obliga-

tions” under Section 659(a), which waives sovereign immu-

nity for garnishment writs “for the enforcement, against such

individual of his legal obligations to provide child support or

make alimony payments” (emphasis added).

(id. at 2la-3la) and that the government was,

in any event, immune from respondent’s suit under

Section 659(f) because the writ of garnishment was

“regular on its face” (App., infra, 38a-36a). Judge

Nies observed (id. at 47a) :

The majority decision will create chaos in how

the Government must operate in the thousands

of garnishments it faces daily. It must either

pay twice, or where permitted by a state court,

litigate for any employee who raises a “substan-

tial claim of jurisdictional irregularity” regard-

less of the regularity of the process “‘on its face.”

Judge Nies added (id. at 42a) that “it would entirely

defeat the objective of the garnishment statute * * *

if the Government must attempt to defeat the claims

of dependent children and spouses, who are the only

persons who can garnish federal wages.”

REASONS FOR GRANTING THE PETITION

This case presents a question of considerable prac-

tical importance concerning the government’s obliga-

tions when served with a facially valid writ of gar-

nishment. The decision of the court of appeals hold-

ing that the government may be held liable in dam-

ages for honoring such a writ is contrary to the ex-

press language of the federal garnishment statute

and its implementing regulations and conflicts with

decisions of several other courts of appeals. It places

an unmanageable burden on the federal government;

in many instances, it will leave federal disbursing

officers little choice but to dishonor state court process

and stand in contempt; and it will draw the govern-

ment into marital disputes and cause the government

to oppose the alimony and child support claims of

former spouses and children, who will otherwise be

compelled to depend on public assistance. Review by

this Court is clearly warranted, especially since all

suits seeking reimbursement for garnished federal

pay may be brought in the Claims Court (28 U.S.C.

(Supp. V) 1491).

1. When Congress waived sovereign immunity for

certain writs of garnishment (see 42 U.S.C. (Supp.

V) 659(a)), it unequivocally provided in 42 U.S.C.

(Supp. V) 659(f) that neither the government nor its

disbursing officers may be held liable for a payment

made “pursuant to legal process regular on its face,

if such payment is made in accordance with this sec-

tion and the regulations issued to carry out this sec-

tion.” In the present case, the court of appeals did

not dispute that the garnishment writ was “regular

on its face,’’ but the court held that the writ was not

“legal process” within the meaning of the garnish-

ment statute. Noting that 42 U.S.C. (Supp. V) 662

(e) (1) defines “legal process” to require issuance by

a “court of competent jurisdiction” the court below

held that a “court of competent jurisdiction” must

have personal, as well as subject matter, jurisdiction

and that garnishment writs issued by a court lacking

personal jurisdiction are thus not “legal process.”

Therefore, the court below concluded, when the gov-

ernment honors such a writ despite notice of “a claim

of substantial jurisdictional irregularity,” the gov-

ernment is not protected from liability by Section

659(f).

The court of appeals’ interpretation of the statute

is clearly wrong and yields an absurd result. Section

659(f) provides that the government is immune from

liability for honoring “legal process regular on its

face.” If the term “legal process” is limited to

process issued by a court with personal, as well as

subject matter, jurisdiction, the government is not

immune from suit for complying with process that is

“regular on its face,” as the plain language of Section

659(f) provides. Instead, the government must look

beyond the facial validity of garnishment writs and

determine whether the state court that issued the un-

derlying judgment had personal jurisdiction over the

defendant. Thus, the court of appeals’ construction

renders Section 659(f) internally inconsistent.

Apparently recognizing this problem, the court of

appeals announced (App., infra, 17a (footnotes omit-

ted) ) that “the immunity provisions of the garnish-

ment statute permit the Government, where the proc-

ess document is regular on its face, to make payment

without liability on a presumption that the under-

lying judgment is valid, but that such a presump-

tion is rebuttable by a showing that the Government

had notice of a substantial claim of jurisdictional ir-

regularity.” Whatever the merit of this rule—and

we will show that it is unworkable (see pages 18-21,

infra)—it is clearly the court’s own invention. The

court did not purport to extract it from any provision

of the federal garnishment statute, from the legis-

lative history of the statute, or indeed from any other

authority.

Moreover, this rule cannot be reconciled ither

with the plain meaning of Section 659(f) or with the

court of appeals’ own interpretation of the term “‘le-

gal process.” Section 659(f) unambiguously shields

the government from liability whenever it honors a

state garnishment writ that is “regular on its face’;

whether the government had notice of claims regard-

ing the state court’s in personam jurisdiction is im-

material. Notice seems equally immaterial if the

court of appeals’ interpretation of the phrase “court

of competent jurisdiction” is accepted. If a court

without personal jurisdiction is not a “court of com-

petent jurisdiction,” as the decision below held (App.,

infra, 8a-1la), then a garnishment writ issued by

such a court is not “legal process” within the mean-

ing of the immunity provision, and that provision

does not apply. Whether or not the government had

notice of the jurisdictional defect would not seem to

matter.

The court of appeals went wrong when it con-

strued the phrase “court of competent jurisdiction”

to mean personal, as well as subject matter, juris-

diction. “Competent jurisdiction” usually means

merely subject matter jurisdiction. See, eg., 1 Re

statement (Second) of Judgments 27-28 (1982)

(“The term ‘subject matter jurisdiction’ * * * is also

sometimes referred to as ‘competence’ or ‘compe-

tency.’”’) ; Restatement (Second) of Conflict of Laws

§ 92 (1971); Restatement of Judgments § 7 (1942) ;

2 J. Beale, The Conflict of Laws § 432.3 at 1377

(1935) (The competence of a court means “jurisdic-

tion to take up the matter under consideration.’’) ;

18 U.S.C. 2510(9) (“judge of competent jurisdic-

tion” means judge with authority to enter a certain

type of orders).

This interpretation is also supported by the prin-

ciple that a statute should be construed, where possible,

so as to make its provisions consistent. See, e.g., Phil-

brook v. Glodgett, 421 U.S. 707, 713 (1975) ; Cheme-

huevi Tribe of Indians v. FPC, 420 U.S. 395, 403

(1975) ; Clark v. Uebersee Finanz-Korporation, A.G.,

332 U.S. 480, 488-489 (1947). Here, interpreting

the phrase “court of competent jurisdiction” to refer

only to subject matter jurisdiction harmonizes Sec-

tion 659(f)’s reference to “legal process regular on

its face” with Section 662(e)(1)’s definition of “le-

gal process,” which requires issuance by “a court of

competent jurisdiction.” Unlike the lack of personal

jurisdiction, the absence of subject matter jurisdic-

tion is almost always detectable from the face of the

process.*®

Moreover, as the dissent below pointed out (App.,

infra, 21a-3la), the court of appeals’ interpretation

subjects the federal government to greater liability

and administrative burdens than are borne by pri-

vate garnishees under the laws of many states—a

result that Congress almost certainly did not intend.

A number of state statutes insulate garnishees from

liability under circumstances such as those present in

this case. Alabama law, for example, provides that

“t]he judgment condemning the debt, money or ef-

fects to the satisfaction of the plaintiff's demand is

conclusive as between the garnishee and the defend-

ant to the extent of such judgment, unless the de-

fendant prosecutes to effect an appeal from such

judgment * * *” (Ala. Code § 6-6-461 (1977)). Cal.

Civ. Proc. Code § 706.154(b) (West cum. supp.

1983) provides that “an employer who complies with

any written order or written notice which purports

to be given or served in accordance with the pro-

visions of this chapter [on garnishment] is not sub-

* There is no merit in the court of appeals’ suggestion (App.,

infra, 8a; see also page 4 note 5, supra) that alimony or

child support orders entered by a court without personal juris-

diction over the defendant do not fall within Section 659 (a),

which waives sovereign immunity for garnishment writs for

the enforcement of “legal obligations” to furnish child sup-

port or pay alimony. As the implementing regulations provide

(5 C.F.R. 581.102(g)), a “legal obligation” in this context is

one that is “enforceable under appropriate State or local law.”

Here, the Alabama court enforced respondent’s obligations by

issuing the writ. Furthermore, the court of appeals’ inter-

pretation of the phrase “legal obligation” would seemingly ex-

clude judgments suffering any legal defect.

ject to any civil or criminal liability for such com-

pliance unless the employer has actively participated

in a fraud.” Similarly, N.Y. Civ. Prac. Law § 5209

(McKinney 1978) states:

A person who, pursuant to an execution or or-

der, pays or delivers, to the judgment creditor or

a sheriff or receiver, money or other personal

property in which a judgment debtor has or will

have an interest, or so pays a debt he owes the

judgment debtor, is discharged from his obliga-

tion to the judgment debtor to the extent of the

payment or delivery.

See also Ariz. Rev. Stat. Ann. § 12-1592 (1982); Ark.

Stat. Ann. § 31-146 (repl. 1962); Ill. Ann. Stat. ch.

62, § 44 (Smith-Hurd 1972); Ind. Code Ann. § 34-1-

11-29 (Burns 1973) ; Iowa Code Ann. § 642.18 (West

1950) ; Md. Cts. & Jud. Proc. Code Ann. § 11-601(a)

(repl. 1980) ; Mass. Ann. Laws, ch. 246, § 43 (Michie/

Law Coop. 1974); Mo. Ann. Stat. § 525.070 (Vernon

1958); N.H. Rev. Stat. Ann. § 512.28 (repl. 1968) ;

N.J. Stat. Ann. § 2A: 17-53 (West 1952) ; N.D. Cent.

Code § 32-09.1-15 (repl. supp. 1983) ; Ohio Rev. Code

Ann. § 2716.21(D) (Page supp. 1982); Okla. Stat.

Ann. tit. 12, § 1233 (West 1961); Tenn. Code Ann.

§ 29-7-117 (repl. 1980); Wash. Rev. Code Ann.

§ 7.382.300 (1961).

It seems quite unlikely that Congress intended to

treat the government more harshly than private gar-

nishees. Not only has the federal government tradi-

tionally been immune altogether from garnishment

writs, but the administrative burden on the govern-

ment, by far the nation’s largest employer, would far

exceed that of any private garnishee."

™We acknowledge that there is authority for the proposi-

tion that “a valid judgment against the defendant is essential

2. The court of appeals also gave insufficient def-

erence to the interpretations of those charged with

administration of the federal garnishment statute.

See, e.g., United States v. Clark, 454 U.S. 555, 565

(1982) ; Red Lion Broadcasting Co. v. FCC, 395 U.S.

367, 380-881 (1969); Udall v. Tallman, 380 U.S. 1,

16 (1965). The Comptroller General has held that

a military employee whose salary is garnished pur-

suant to a facially valid writ is not entitled to reim-

bursement even if the underlying judgment is set

aside for lack of personal jurisdiction.* And the im-

plementing regulations issued by the Office of Per-

sonnel Management (see 5 C.F.R. Pt. 581), as

amended by 48 Fed. Reg. 26279-26294 (1983) ) pro-

vide that the federal government must comply with

a garnishment writ except in certain enumerated cir-

cumstances, such as where there are jurisdictional de-

fects apparent “on its face” or where the garnishment

is not for alimony or child support (5 C.F.R. 581.365,

to the validity of a judgment against the garnishee” (App.,

infra, lla n.5). See Annot., 49 A.L.R. 1411 (1927); 6 Am.

Jur. 2d Attachment and Garnishment § 400 (1968) and cases

cited; 38 C.J.S. Garnishment §§ 244 and 298(e) (19438) and

cases cited. Many of these cases, however, appear to have been

overruled by statutory enactments, and most concern pre-

judgment garnishment, where the garnishee had the duty to

assert certain defenses that would be available to the defend-

ant, including jurisdictional defects (see Sniadach v. Family

Finance Corp., 396 U.S. 337, 344 (1969) (Black, J., dissent-

ing). This obligation was important in pre-judgment garnish-

ment because it was not always necessary for the plaintiff to

give the defendant notice of the garnishment (see Sniadach,

supra (declaring procedure unconstitutional) ).

as amended by 48 Fed. Reg. 26280-26281 (1983) ).

Doubts about in personam jurisdiction over the de-

fendant/employee in the underlying divorce proceed-

ings are not mentioned as a ground for nonpayment.’

8. The court of appeals’ decision conflicts with

Calhoun v. United States, 557 F.2d 401 (4th Cir.),

cert. denied, 484 U.S. 966 (1977), which affirmed

summary judgment against a Navy officer who sought

recovery of pay garnished to satisfy alimony and

child support obligations. The officer contended that

the garnishment writ was void because the court that

issued the underlying divorce judgment lacked per-

sonal jurisdiction over him (557 F.2d at 402). Re

jecting that argument, the Fourth Circuit observed

(ibid.) that the divorce judgment was “facially valid”’

and added:

Calhoun is assuredly in a better position to effec-

tively litigate [the issue of personal jurisdiction]

than is the United States. The United States was

under no duty to contest the judgment, exposing

itself to potential double liabilities. It was Cal-

houn’s obligation to attack the judgment if he

wished to avoid the deduction from his pay."*!

* See also 5 C.F.R. 581.305 (a) (6) (f), as added by 48 Fed.

Reg. 26280 (1983) (App., infra, 102a-1038a).

% The court below attempted to distinguish Calhoun on two

grounds. First, the court observed (App., infra, 10a) that

Calhoun did not consider the effect of 42 U.S.C. (Supp. V)

659(f), which took effect shortly before the decision in that

Similarly, the Eighth Circuit held in Overman v.

United States, 563 F.2d 1287 (1977), that Section

659 did not permit a suit by a federal employee to

enjoin the government from honoring a garnishment

writ allegedly procured by fraud. The court con-

cluded (id. at 1291) that no statute waived sovereign

immunity from such a suit and reasoned that 42

U.S.C. 659 (now codified as amended at 42 U.S.C.

(Supp. V) 659(a)) did not provide the requisite

waiver but “simply removed the bar of sovereign im-

munity to one narrow class of actions: enforcement

of garnishment writs issued by state courts.” ™

The decision below also conflicts with the District

of Columbia Circuit’s recent decision in Rush v.

(S. Rep. 1350, 94th Cong., 2d Sess. 3 (1976)) that “[i]t is not

the purpose of the committee bill to make any major changes

in the new child support law. The bill would make modifica-

tions, consistent with the original congressional intent, to

clarify questions that have been raised [and] to provide for

administrative improvement.”

The court below also argued (App., infra, 17a-18a) that

here, “unlike the situation in the Calhoun case, the State of

Alabama had no ‘long-arm’ statute at the time of filing of the

suit by Mrs. Morton.” But as the dissenting judge pointed

out (App., infra, 30a-81la), “[t]he Calhoun court did not ex-

onerate the United States because the underlying judgment

was not void, but because in its view, it is not incumbent on

an employer to look behind the facial validity of the garnish-

ment process.” See also id. at 30a n.7.

1 Like Calhoun, Overman did not discuss Section 659(f).

As previously noted, however, Section 659(f) does not expand

the government’s liability. The court below attempted to dis-

tinguish Overman because there the underlying judgment was

alleged to be defective on the grounds of fraud and not for

lack of personal jurisdiction (App., infra, 10a-1la). However,

since the decision in Overman was based on sovereign im-

munity, this distinction does not seem relevant to Overman’s

analysis.

United States Agency for International Development,

No. 82-1853 (Apr. 26, 1983) (App., infra, 104a-

107a).” There, a federal employee sued for recovery

of garnished wages and injunctive relief, claiming

among other things that the state court that ordered

him to pay child support lacked personal jurisdiction.

Noting that the government is immune from suit for

payments made pursuant to a garnishment writ that

is “regular on its face” (42 U.S.C. (Supp. V) 659

(f)), the District of Columbia Circuit remarked

(App., infra, 107a) :

In the present case, Rush has not claimed that

the garnishment order was facially invalid or

that AID violated statutory requirements or ap-

plicable regulations. Thus, at least to the extent

that Rush seeks reimbursement of funds previ-

ously garnished, he is barred by the statute from

litigating those claims against AID or its admin-

istrator.

The court did not inquire whether the government had

notice of any substantial jurisdictional irregularities,

as the Federal Circuit’s decision requires. See also

Snapp v. United States Postal Service—Texarkana,

664 F.2d 1329 (5th Cir. 1982) (no subject matter

jurisdiction of employee’s suit to enjoin garnish-

ment) ; Jizmerjian v. Department of the Air Force,

457 F. Supp. 820 (D.S.C. 1978), aff'd, 607 F.2d 1001

12 Rush’s petition for a writ of certiorari (No. 83-382) is

pending. As explained in our brief in opposition in that case

(a copy of which we are serving on petitioner), we believe

that certiorari should be denied in that case. While we are

confident that the Rush court would decide the present case

differently from the Federal Circuit, we think that the Fed-

eral Circuit would reach the same result in Rush as did the

District of Columbia Circuit.

(4th Cir. 1979), cert. denied, 444 U.S. 1082 (1980) ;

Cunningham vy. Department of the Navy, 455 F. Supp.

1370 (D. Con». 1978); Pop-’e v. United States, 416

F. Supp. 1227 (W.D.N.Y. 1976).

4.a. The court of appeals’ interpretation of the

garnishment statute will frustrate Congress’s ex-

pressed intent. The garnishment statute, together

with other related measures, was enacted “to assure

an effective program of child support.” S. Rep. 1356,

93d Cong., 2d Sess. 2 (1974). The Senate report

stated (id. at 42) that “[t]he problem of welfare

in the United States is, to a considerable extent, a

problem of the nonsupport of children by their absent

parents * * *. The Committee believes that all chil-

dren have the right to receive support from their

fathers. * * * [E]nforcement of child support obliga-

tion is not,an area of jurisprudence of which this

country can be proud.”

Before the federal garnishment statute was en-

acted, there were two chief ways to enforce a child

support or alimony award against a federal employee

or serviceman (hereinafter “husband”) living in an-

other state. First, the non-employee spouse (‘wife’)

could seek to enforce the award in the courts of the

husband’s state. This procedure was unsatisfactory

for several reasons. It was costly for the wife to liti-

gate in a distant state. The husband often had no

assets to attach other than his federal salary, which

could not be garnished. A delinquent husband, who

might have moved in the first place to escape pay-

ment, could simply move again. And because states

are constitutionally required to extend full faith and

credit to support orders only if they are final under

the law of the issuing state (Sistare v. Sistare, 218

U.S. 1 (1910) ), it was often necessary for the wife

to bring repeated enforcement actions as installments

became due.”

Because of these and other problems, the Uniform

Reciprocal Enforcement of Support Act (URESA)

(9 U.L.A. 648 (1979)) was promulgated in 1950.

URESA or compatible legislation has now been

adopted by every state."* Under URESA, the wife or

children may file a complaint in their state of resi-

dence (§§ 13, 14). If the court finds that the com-

plaint “sets forth facts from which it may be deter-

mined that the [husband] owes a duty of support,”

the court sends the complaint to the appropriate court

in the husband’s state (§ 17), where the local prose-

cutor represents the wife ($18) and seeks the is-

suance of a support order (§ 23).

This procedure also proved ineffective. The Senate

committee that added the garnishment statute ob-

served (S. Rep. 1856, 93d Cong., 2d Sess. 43

(1974) ): “Thousands of unserved child support war-

rants pile up in many jurisdictions and often traffic

cases have a higher priority.” The committee noted

(id. at 48-44) that the former wives and children of

many affluent or middle-class fathers were forced to

live on public assistance because of the lack of effec-

tive procedures for enforcing support awards, and

18 See Note, Counterclaims and Defenses under the Uniform

Recipriocal Enforcement of Support Act, 15 Ga. L. Rev. 148,

144 (1980) (hereinafter cited as Note, Counterclaims and De-

fenses); Note, Interstate Enforcement of Support Obligations

through Long Arm Statutes and URESA, 18 J. Family Law

587 (1979-1980).

4 See Note, Counterclaims and Defenses, supra, at 145

n.11 (collecting statutes). New York, which has not adopted

URESA, has a similar, compatible law (N.Y. Dom. Rel. Law

§§ 30-43 (McKinney 1977) ).

the committee listed as among the principal flaws in

procedures then available “the statutory barrier to

collecting from military personnel and Federal em-

ployees, and the low priority given child support in-

vestigations by the understaffed district attorneys

offices” (id. at 44; see also 120 Cong. Rec. 40323-

40324 (1974). During the House debates on the gar-

nishment statute, Representative Ullman, the floor

sponsor, made much the same point, stating (120

Cong. Rec. 41810 (1974): “[{O]ur biggest problem in

this whole area is that prosecutors fail to prosecute

[under URESA] because they have more important

things to do. We just simply have not even gotten a

start on presenting these cases.”

Congress also recognized the special problems posed

by delinquent husbands who were federal or military

retirees. A House report on a predecessor garnish-

ment bill noted (H.R. Rep. 481, 92d Cong., 1st Sess.

17 (1971)) that suits to enforce retirees’ support

obligations were “frequently thwarted by a retiree

pulling up stakes in the state in which he is being

sued and moving to another state where legal action

must be commenced again.” Recommending the

waiver of sovereign immunity for certain garnish-

ment writs, the committee stated (id. at 18):

We recognize this is a drastic departure from

anything we have had in the past; but we believe

it is wrong for the United States to protect re-

tired and retainer pay while the military retiree

can, for practical purposes, ignore court orders.

We recognize that the military retiree, because

of the frequency of moves during the time spent

on active duty, may have less roots in a particu-

lar community than his civilian counterpart.

b. The federal garnishment statute was designed

to remedy many of these problems. It permits the

garnishment of federal pay to enforce alimony and

child support obligations “in like manner and to the

same extent as if the United States or the District

of Columbia were a private person” (42 U.S.C.

(Supp. V) 659(a)). This enables wives to attach an

asset that cannot easily be concealed, and it prevents

husbands from evading payment by changing their

residences. The government is not drawn into marital

disputes and is spared undue administrative expense,

because it is immune from liability for honoring

“legal process regular on its face, if such payment is

made in accordance with [the garnishment statute]

and the regulations issued to carry out [that statute]”

(42 U.S.C. (Supp. V) 659(f)). At the same time,

the husband’s rights are protected because he is

promptly notified when the writ is served (42 U.S.C.

(Supp. V) 659(d)) and may then take whatever

steps are available to any other similarly situated

garnishment defendant under the laws of the issuing

state. See 120 Cong. Rec. 41810 (1974) (remarks of

Rep. Uliman).

The court of appeals’ decision thwarts this care-

fully crafted scheme and frustrates Congress’s clear

intent concerning the enforcement of the alimony and

child support obligations of federal and military em-

ployees and retirees. It also creates an unmanage-

able burden for federal disbursing officers by forcing

them to choose between ignoring state court orders or

subjecting the government to monetary liability.

Under the decision below, the government may be

liable for reimbursement if it honors a facially valid

garnishment writ after having received “notice of

a substantial claim of jurisdiction irregularity”

(App., infra, 17a). Indeed, the court reserved deci-

sion on the question whether notice of a mere “non-

frivolous claim’? would not also suffice (id. at 17a,

n.12). We have been informed that the salaries of

more than 138,000 servicemen alone are now being

garnished.

It is predictable that, as a result of the court of

appeals’ decision, a large number of the federal em-

ployees whose salaries are garnished will seek to

avoid payment by providing disbursing officers with

notice of claimed jurisdictional defects. Especially in

cases involving servicemen, who are frequently trans-

ferred, asserting a colorable claim of lack of in

personam jurisdiction will not be difficult. As Judge

Nies noted in dissent (App., infra, 42a-48a), “[t]he

majority’s test of ‘notice of substantial irregularity’

means no more, on the basis of the facts here, than

that an employee must tell his pay officer or super-

visor that he was not domiciled in the state asserting

jurisdiction over him.”

Determining whether such claims are “substantial”

or “nonfrivolous” is a task beyond the capabilities of

federal disbursing offices. In the first place, there is

no satisfactory way for disbursing officers to ascer-

tain the relevant facts. If they rely on employees’

allegations, employees will have little trouble estab-

lishing “substantial” claims. On the other hand, it is

completely unreasonable to expect disbursing officers

to engage in independent factfinding based on the

state court record or the parties’ submissions.

Even if the facts are undisputed, evaluating juris-

dictional claims would be extremely time-consuming

and would require considerable legal skill. Questions

of in personam jurisdiction are often difficult, and

cases involving servicemen are likely to explore the

outer reaches of the states’ power in this regard.

Moreover, the court of appeals’ decision holds the gov-

ernment to an extremely high standard. The govern-

ment may not safely rely upon a state court’s deter-

mination that personal jurisdiction was present.

Instead, the government must decide whether the

state court erred, or at least whether a substantial

or nonfrivolous claim of error has been asserted.

If the government honors a garnishment writ de-

spite a claim of jurisdictional irregularity, it will

risk having to pay twice in the event that the Claims

Court decides the issue of in personam jurisdiction

differently. Because of this risk, as well as the diffi-

culty and uncertainty involved in determining whether

a substantial claim of jurisdictional irregularity has

been raised, federal disbursing officers in many cases

will have little choice but to disobey state garnish-

ment writs. This will lead to needless friction be-

tween the federal government and state courts (see

App., infra, 25a, 47a-52a (Nies, J., dissenting) ),*

18 The government’s authority to refuse to comply with state

garnishment writs is uncertain. Section 659(a) provides that

the government is to be treated “in like manner and to the

same extent as if the United States * * * were a private per-

son.” Post-judgment garnishment procedures frequentiy do

not permit the defendant, let alone the garnishee, to attack

the underlying judgment. Instead, the garnishee is merely

called upon to answer whether he owes the defendant any

money and, if so, the amount of indebtedness. See, e.g., Ill.

Ann. Stat. ch. 62, §39(b) (Smith-Hurd 1972); Ohio Rev.

Code Ann. § 2716.13(B); 2721.01(C) (Page supp. 1982).

Under the Alabama statutes, the garnishee must answer

whether he is or will be indebted to the defendant (Ala. Code

§§ 6-6-3938, 6-6-450 (1977)). “If the garnishee - answers

and admits indebtedness to the defendant, judgment thereon

must be entered against him, after judgment against the de-

fendant * * *” (id. at §6-6-454). Thus, as Judge Nies ob-

and will force wives and children to whom alimony

and child support payments are owed to rely upon

the remedies that Congress found to be inadequate

when it enacted the garnishment statute. See App.,

infra, 19a n.14.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Rex E. LEE

Solicitor General

J. PAUL MCGRATH

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

SAMUEL A. ALITO, JR.

Assistant to the Solicitor General

LEONARD SCHAITMAN

LINDA JAN S. PACK

Attorneys

DECEMBER 1983

served (App., infra, 25a), “[t]he United States could no

more ‘refuse to honor’ the writ summoning the Govern-

ment to the Alabama court than it could ‘refuse to honor’ the

summons by the Court of Claims.”

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal No. 290-77

ALLAN WAYNE MORTON, APPELLEE

Vv.

THE UNITED STATES, APPELLANT

Decided: May 17, 1983

Before MILLER, SMITH, and NIES, Circuit Judges.

MILLER, Circuit Judge.

This appeal, in a case of first impression, is from a

judgment * of the United States Claims Court based on its

holding that Allan Wayne Morton was entitled to recover

from the United States accrued amounts of money with-

held from his compensation, as a Colonel in the United

States Air Force, pursuant to writs of garnishment issued

by the Circuit Court for the Tenth Judicial Circuit of

Alabama. The case arises under Title 37, United States

Code (relating to pay and allowances of the uniformed

services), and the Fifth Amendment to the Constitution

(prohibiting deprivation of property without due process

of law). We affirm.

1 Entered October 8, 1982, pursuant to this court’s order of Octo-

ber 4, 1982, and corresponding to the decision recommended by the

trial judge in his opinion filed December 14, 1981.

BACKGROUND

Colonel Morton was born in Alabama in 1934 and lived

there until he joined the Air Force in 1957 at the age of

23. In 1954, he married Patricia Kay Morton in Alabama,

where their first son was born. The Mortons moved to

Georgia in 1957; then to Ohio in 1960; to Georgia in

1961; to the Philippines in 1963; and to New York in

1965. A second son was born in 1960. Colonel Morton

served in Vietnam from 1968 to 1969, during which time

his family lived in Florida. In 1969, after returning from

Vietnam, Colonel Morton and his wife bought a home in

Virginia, where they lived until September of 1973, at

which time they separated pursuant to a written separa-

tion agreement. (Colonel Morton had been notified in

August of 1973 that his next military assignment would

be in Alaska.)

Mrs. Morton and her two sons moved to Alabama on

September 16, 1973. Household goods were moved to Ala-

bama at that time using Colonel Morton’s military house-

hold goods moving allowance. It was Colonel Morton’s

understanding that in order to use his moving allowance

for this purpose it was necessary to file his income tax

returns for 1973 in Alabama. Accordingly, Colonel and

Mrs. Morton filed joint federal and state income tax re-

turns in Alabama for 1973. They also filed a joint state

income tax return in Virginia for 1973. For 1974, Mrs.

Morton filed individual federal and Alabama income tax

returns, refusing to file joint returns with Colonel Morton,

who also filed separate returns in Alabama because he

hoped to persuade Mrs. Morton to file joint returns with

him in order to reduce their tax liability. (Such joint

returns would, of course, supersede the previously filed:

individual returns.) Colonel Morton also filed a 1974 in-

dividual state income tax return in Virginia. His income

tax returns for 1975 and thereafter were filed in Alaska.

The separation agreement provided, inter alia, that the

Virginia home was to be the sole property of Colonel

Morton and that he was to make fixed monthly payments

to Mrs. Morton for the support of the two children.

On June 1, 1974, Colonel Morton entered into a con-

tract to purchase a permanent home for himself in An-

chorage, Alaska. He intended to finance the purchase in

part from the proceeds of the sale of the Virginia home.

However, he was unable to consummate the Alaska pur-

chase because, contrary to the provisions of the separation

agreement, Mrs. Morton refused to sign the deed convey-

ing the Virginia home. In a suit by Colonel Morton to

obtain specific performance of the separation agreement,

Mrs. Morton succeeded in having the agreement set aside.

Meanwhile, on August 28, 1974, Mrs. Morton filed suit

in the Circuit Court for the Tenth Judicial District of

Alabama for divorce, custody of the two children, support

and maintenance for the children, and alimony. Colonel

Morton received the suit papers by registered mail on

September 17, 1974. Personal service was never effected.

Colonel Morton contacted an attorney in the Judge Ad-

vocate General’s office at Elmendorf Air Force Base in

Alaska who advised him that service by mail was not

sufficient to support a money judgment against him. Ac-

cordingly, Colonel Morton did not make an appearance in

the Alabama suit. Judgment by default was entered

against Colonel] Morton on August 14, 1975. It granted

Mrs. Morton a divorce and custody of the two children,

and ordered Colonel Morton to pay Mrs. Morton $500 per

month “as alimony . .. and partial support and mainte-

nance of the... minor children.”

On December 27, 1976, the Air Force Finance Office at

Elmendorf received a writ of garnishment issued by the

Colonel Morton’s pay in the amount of $4100. After re-

ceiving notice of the writ, Colonel Morton again sought

advice from an attorney in the Judge Advocate General’s

office. The attorney assured Colonel Morton that Mrs.

Morton could not legally garnish his pay on the basis of

the service of process by mail from the State of Alabama.

Thereafter, on December 30, 1976, Colonel Morton pro-

tested to the Finance Office that he had paid all his obli-

gations to Mrs. Morton,? that he was never properly

served in the Alabama suit, that he was neither a resident

nor a domiciliary of Alabama, and that the decree of the

Alabama court ordering him to pay alimony and child

support was void for lack of jurisdiction.

Despite these protests, the Finance Office filed an

answer to the writ on January 11, 1977, confessing in-

debtedness of $4100. That amount was subsequently de-

ducted from Colonel Morton’s pay and was paid to the

clerk of the Alabama court. Other subsequent writs were

similarly honored by the Finance Office.

On May 26, 1977, Colonel Morton filed this action to

recover the amounts he alleges were wrongfully withheld

from his military pay.

The Decision Below

The trial court concluded that Colonel Morton was

neither a resident nor a domiciliary of Alabama, stating:

When the plaintiff moved to Alaska in May 1974,

it was his intention to purchase a home in Alaska

and to establish a domicile in that State. He made

his intention known at the time to associates.

A change in domicile requires physical presence

at the new location, plus an intention on the part

of the individual to make the new location his or

her home, and the absence of any intention to have

a home at a former domicile. Stamer v. United

States, 148 Ct. Cl. 482, 490 (1960); cf. Holmes v.

Sopuch, 639 F.2d 431, 483 (8th Cir. 1981). When

these elements concur, the change in domicile is in-

2 At trial, Colonel Morton introduced evidence that, although the

separation agreement had been set aside, he had continued to make

support payments ($500 per month) to Mrs. Morton because he felt

a moral! obligation to do so; further, that at the time the writ was

served, his oldest son was no longer a minor and was married.

stantaneous. Spurgeon v. Mission State Bank, 151

F.2d 702, 705-06 (8th Cir.), cert. denied, 327 U.S.

782 (1945).

With respect to the plaintiff, the essential ele-

ments for acquiring a new domicile concurred when

the plaintiff arrived in Alaska during the month of

May 1974. From then until 1977, the plaintiff was

an actual resident of Alaska, it was his intention to

make Alaska his home, and he lacked any intention

to have a home at a former domicile. Accordingly, it

necessarily follows that the plaintiff was a domicil-

iary of Alaska, and not of Alabama, during the

1974-75 period when the divorce proceeding against

him in Alabama was in progress.

Next, considering the “minimum contacts” doctrine of

International Shoe Co. v. Washington, 326 U.S. 310

(1945), and its progeny, the trial court concluded that—

it would offend “traditional notions of fair play, and

substantial justice” if the plaintiff’s contacts with

Alabama prior to July 1957 were to be regarded as

necessarily conferring jurisdiction on the Alabama

courts to enter a money judgment against him some

18 years later, when the plaintiff was a domiciliary

and actual resident of Alaska, was not served per-

sonally within the territorial limits of Alabama, and

did not do anything to subject himself to the juris-

diction of the Alabama court.

The third and final question considered by the trial

court was whether subsection (f) of the garnishment

statute, 42 U.S.C. § 659, as amended by Pub. L. 95-30,

§ 501, 91 Stat. 157 (1977),* grants the Government im-

342 U.S.C. § 659(a) allows the United States to be served with

legal process for the enforcement of its employees’ legal obligations

to provide child support and alimony, thus:

United States and District of Columbia to be subject to legal

process

Notwithstanding any other provision of law, effective Janu-

ary 1, 19765, moneys (the entitlement to which is based upou

munity from suit under the circumstances of this case.

This subsection provides:

Non-liability of United States, disbursing officers,

and governmental entities with respect to payments

Neither the United States, any disbursing officer,

nor governmental entity shall be liable with respect

to any payment made from moneys due or payable

from the United States to any individual pursuant to

legal process regular on its face, if such payment is

made in accordance with this section and the regula-

tions issued to carry cut this section.

“Legal process” is defined in 42 U.S.C. § 662:

Definitions

For purposes of section 659 of this title—

(e) The term “legal process” means any writ,

order, summons, or other similar process in the

nature of garnishment, which—

(1) is issued by (A) a court of competent juris-

diction within any Stace, territory, or possession of

the United States, (B) a court of competent juris-

diction in any foreign country with which the United

States has entered into an agreement which requires

the United States to honor such process, or (C) an

authorized official pursuant to an order of such a

court of competent jurisdiction or pursuant to State

or local law, and

remuneration for employment) due from, or payable by, the

United States or the District of Columbia (including any

agency, subdivision, or instrumentality thereof) to an individ-

ual, including members-of the armed services, shall be subject,

in like manner and to the same extent as if the United States

or the District of Columbia 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.

(2) is directed to, and the purpose of which is to

compel, a governmental entity, which holds moneys

which are otherwise payable to an individual, to

make a payment from such moneys to another party

in order to satisfy a legal obligation of such indi-

vidual to provide child support or make alimony

payments.

The regulations issued to carry out 42 U.S.C. § 659 pro-

vide in pertinent part:

(f) “Legal process” means any writ, order, sum-

mons, or other similar process in the nature of

garnishment, * * * which—

(1) Is issued by:

(i) A court of competent jurisdiction, including

Indian tribal courts, within any State, territory, or

possession of the United States, or the District of

Columbia * * *.

5 C.F.R. § 581.102(f) (1981) (emphasis supplied).

Regarding the question of whether the Government had

made payment “pursuant to legal process regular on its

face” and was, therefore, provided with immunity under

42 U.S.C. § 659(f), the trial judge concluded:

As the decree of the Alabama court was void for

lack of jurisdiction insofar as it ordered Colonel

Morton to make alimony and child support payments

to Patricia Kay Morton, the writs of garnishment

must necessarily fall along with the portion of the

decree on which they were based. Laborde v. Ubarri,

214 U.S. 178, 174 (1909).

As the Alabama court, in purporting to order

Colonel Morton to make alimeny and child support

payments to Patricia Kay Morton, was not a “court

of competent jurisdiction” because it had not acquired

jurisdiction over the person of Colonel Morton, the

void ancillary writs of garnishment which the Air

Force Finance Office honored in this case did not

constitute the sort of “legal process” that would have

insulated the Government against liability.

ANALYSIS

Immunity

As quoted above, 42 U.S.C. § 662 defines “legal process”

to require that it be issued by a court of competent juris-

diction. There is no legislative history to guide us in

interpreting the phrase “competent jurisdiction,” but we

may assume that Congress was aware that garnishment,

a form of attachment, is merely an incident to a suit, and

unless the suit can be maintained the garnishment must

fail.* Accordingly, we conclude that process issued by a

court in an ancillary garnishment proceeding against the

Government does not satisfy the statutory and regulatory

requirements if that court was not a court of competent

jurisdiction over the underlying suit.

The point can also be made that where the judgment in

the underlying suit is void, the “legal obligations” require-

ment of 42 U.S.C. § 659(a) is not satisfied. Similarly,

Regulation 581.102(g) defines “legal obligation” to mean

an obligation “which is enforceable under appropriate

State or loca] law.” (Emphasis added.) Obviously a void

judgment would not meet this requirement.

With respect to whether 42 U.S.C. § 659(f) provides

the Government with immunity from suit under the facts

4 Big Vein Coal Co. v. Read, 229 U.S. $1, 38 (1918); Laborde v.

Ubarri, 214 U.S. 173 (1909); Davis v. Ensign-Bickford Co., 189

F.2d 624, 626 (8th Cir. 1944); see alsu In re Stark, 86 F.2d 280

(W.D.N.Y. 1929); Olson v. Field Enterprises Educational Corp.,

231 So. 2d 768, 765 (Ala. App. 1970) (“Garnishment is an ancillary

proceeding, not an original civil suit.”) What the dissent appears

to say is that even if the Alabama court was not a court of com-

petent jurisdiction over the underlying suit (in which event its

judgment would be void), it was, nevertheless, a court of com-

petent jurisdiction for purposes of the garnishment. Such a nar-

row reading of the phrase would elevate form over substance, to the

deprivation of property without constitutional due process.

of this case, it must be determined whether “competent

jurisdiction” in the statute (42 U.S.C. § 662(e) (1)) and

regulations (5 C.F.R. § 581.102(f)) means only subject

matter jurisdiction or both subject matter and personal

jurisdiction; further, whether the immunity statute’s pro-

vision that legal process be “regular on its face” permits

the Government to escape liability notwithstanding notice

of substantial questions over regularity. Colonel Morton

argues that the Government is immune from suit only if

payment is made by the United States “pursuant to legal

process” and if that payment is made “in accordance

with . . . the regulations issued to carry out [that]

section.” 42 U.S.C. § 659(f). He contends that, because

“a court of competent jurisdiction” is one having both

subject matter jurisdiction and personal jurisdiction, cit-

ing Robinson v. Attapulgus Clay Co., 55 Ga. App. 141,

189 S.E. 555 (1937), and State v. Long, 44 Del. 251, 59

A.2d 545 (1948), rev’d on other grounds, 44 Del. 262,

65 A.2d 489 (1949), the Government cannot be immune

from suit in this case unless the Alabama court had

personal jurisdiction over him in the underlying suit for

divorce, support, and alimony.

The Government objects to this interpretation, arguing

that to so limit the Government’s immunity would place

an intolerable burden on the executive branch and would

cause an administrative nightmare that Congress could

never have intended. The Government further argues

that case law uniformly interprets the statute to preclude

looking into the validity of the underlying judgment so

long as the writ of garnishment is “regular on its face.”

However, the cases relied upon by the Government, be-

ginning with Popple v. United States, 416 F. Supp. 1227

(W.D. N.Y. 1976), and including Craft v. Craft, No. 77-

1205 (W.D. Okla. Feb. 16, 1979), involved the question

of whether a federal district court had subject matter

jurisdiction under 42 U.S.C. § 659 to entertain a challenge

to a writ of garnishment issued pursuant to that statute.

In Overman v. United States, 563 F.2d 1287 (8th Cir.

10a

1977), the plaintiff’s attempt to challenge garnishment of

his salary was based on the allegation that the underlying

Tennessee divorce decree had been obtained by fraud—

not on lack of personal jurisdiction. In Cunningham v.

Dept. of Navy, 455 F. Supp. 1870 (D. Conn. 1978), the

plaintiff based his challenge to the garnishment of his

disability retirement pension on the alleged unconstitu-

tional application of the New York “long-arm” statute.

In Jizmerjian v. Dept. of Air Force, 457 F. Supp. 820 (D.

S.C. 1978), aff'd mem., 607 F.2d 1001 (4th Cir. 1979),

cert. denied, 444 U.S. 1082 (1980), the court looked to

the facia] validity of the legal process (garnishment) and

did not even mention, much less consider, the requirement

in 42 U.S.C. § 662 that such process be issued by a court

of competent jurisdiction. In Calhoun v. United States.

557 F.2d 401 (4th Cir.), cert. denied, 434 U.S. 966

(1977), the decision in the court’s brief per curiam opin-

ion, which noted the facial validity of the underlying di-

vorce judgment, was issued June 21, 1977, after the

effective-date (June 1, 1977) of the amendments added

by Pub. L. No. 95-30, 91 Stat. 159 (May 23, 1977),

which included the requirement that legal process regular

on its face must be issued by a court of competent juris-

diction. Since the case was argued February 16, 1977, it

is apparent that the court did not consider the court of

competent jurisdiction requirement, as we have.

We conclude that “competent jurisdiction” in the

statute and regulations means both subject matter ju-

risdiction and personal jurisdiction. A court’s jurisdic-

tion normally encompasses both personal and subject

matter jurisdiction, and we see nothing in the cases

cited by the Government or in the legislative history sug-

gesting otherwise when the Government’s immunity is

invoked. In a recent opinion, Lugar v. Edmondson Oil

Co., Inc., —— U.S. ——, 102 S. Ct. 2744, 2752 (1982),

the Supreme Court makes it clear that constitutional re-

quirements of due process have long been applied to gar-

nishment procedures, citing Sniadach v. Family Finance

lla

Corp., 395 U.S. 337 (1969), and North Georgia Finish-

ing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975). More-

over, it has long been the rule that a court cannot adju-

dicate a personal claim, such as one for alimony or child

support, without jurisdiction over the person. Vanderbilt

v. Vanderbilt, 354 U.S. 416, 418 (1957).° Alabama law

cannot, under the label of “comity” or “indifference”

override federal constitutional and statutory require-

ments.

Jurisdiction

The due process clause of the Fourteenth Amendment

places a limitation on the circumstances in which a state

may assert personal jurisdiction over a nonresident de-

fendant. The seminal case of International Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945) established what

has since become known as the “minimum contacts” test

for personal jurisdiction:

[D]ue process requires only that in order to sub-

ject a defendant to a judgment in personam, if he

be not present within the territory of the forum, he

have certain minimum contacts with it such that the

maintenance of the suit does not offend “traditional

notions of fair play and substantial justice.”

5 The dissent finds no authority which imposes liability on a

private employer (or other garnishee) for failure to undertake the

defense of a supplemental garnishment proceeding by attacking the

underlying judgment against the judgment-debtor. However, it ap-

pears to be well settled that a valid judgment against the defendant

is essential] to the validity of a judgment against the garnishee. 88

C.J.S. § 244 and cases cited. Also, recovery for wrongful garnish-

ment has been allowed in suits brought by the defendants. 388 C.J.S.

§ 311 and cases cited. We note, particularly, the case of Betts v.

Coltes, 467 F. Supp. 544 (D. Hawaii 1979), where the court made

clear that monies erroneously paid over to a judgment creditor may

be recovered, and a misuse of process or a failure to correct an

erroneous garnishment could entitle an employee to damages

from his employer.

12a

The type of contacts necessary to satisfy the due process

clause was explained by the Supreme Court in Hanson

v. Denckla, 357 U.S. 235, 253 (1958):

The unilateral activity of those who claim some re-

lationship with a nonresident defendant cannot

satisfy the requirement of contact with the forum

State. The application of that rule will vary with

quality and nature of the defendant’s activity, but it

is essential in each case that there be some act by

which the defendant purposefully avails itself of

the privilege of conducting activities within the

forum State, thus invoking the benefits and pro-

tections of its laws.

Accordingly, the mere fact that Mrs. Morton and the

two Morton children moved from Virginia to Alabama

following the Mortons’ separation in Virginia was in-

sufficient to invest Alabama courts with personal ju-

risdiction over Colonel Morton in the underlying suit.

Indeed, this very question was treated by the Supreme

Court in Kulko v. California Superior Court, 436 U.S.

84 (1978).

In that case, Mr. and Mrs. Kulko were married in Cal-

ifornia during a three-day stopover while Mr. Kulko was

en route from Texas to a military tour of duty in Korea.

Subsequently, the Kulkos moved to New York, where they

lived until 1972. During that time, two children were

born to them. In 1972, the Kulkos separated pursuant to

an agreement drawn up in New York which, inter alia,

provided for specified joint custody. Mrs. Kulko sub-

sequently secured a Haitian divorce decree which in-

corporated the terms of the separation agreement, in-

cluding a provision for child support payments while the

children were with them mother. She thereafter moved

to California, where she was joined by the two children,

who had been living with their father. When she brought

an action in California to establish the Haitian decree

as a California judgment, to obtain full custody of the

18a

children, and to increase Mr. Kulko’s support obliga-

tions, Mr. Kulko entered a special appearance to con-

test jurisdiction on constitutional grounds. The Supreme

Court held that Mr. Kulko’s contacts with California

were insufficient, as a matter of Fourteenth Amendment

due process, to vest the courts of that state with personal

jurisdiction over him.*

In determining whether, under the particular facts

of the instant case, the “quality and nature” of Colonel

Morton’s contacts with Alabama enabled the Alabama

state court to have personal jurisdiction over him,’ do-

micile must be considered. It is well settled that in order

to acquire a new domicile, a person must be present in

the new location, intended to make that location his home,

and have no intent to have a home at a former domicile.

Stamer v. United States, 148 Ct. Cl. 482, 490 (1960).

The Government contends that Colonel Morton’s acts do

not bear out the trial judge’s findings that he had an

intent to make a permanent home in Alaska and no in-

tent to return to a former domicile. In particular, the

Government points to the fact that Colonel Morton filed

® The Court said that “the mere act of sending a child to Califor-

nia to live with her mother . . . connotes no intention to obtain or

expectancy of receiving a corresponding benefit in the State that

would make fair the assertion of that State’s judicial jurisdiction.”

486 U.S. at 101. In like manner, Colonel Morton’s contacts with

Alabama from 1957 to 1973 were unrelated to state benefits. We

are satisfied that he never resumed, or intended to resume, resi-

dence or domicile in Alabama and that he did intend to and did

acquire such status in Alaska.

™ We note that the due process clause of the Fourteenth Amend-

ment does not serve as an independent basis for personal jurisdic-

tion. Rather, “(t]he Due Process Clause of the Fourteenth Amend-

ment operates as a limitation on the jurisdiction of state courts to

enter judgments affecting rights or interests of nonresident defend-

ants,” Kulko v. California Superior Court, 486 U.S. at 91, serving

as a “constitutional limitation on state power.” Shaffer v. Heitner,

488 U.S. 186, 216-17 (1977). See also Home Ins. Co. v. Dick, 281

U.S. 397, 410 (1930).

l4a

income tax returns in Alabama in 1973 and 1974. How-

ever, the trial judge found that the reasons for filing

in Alabama were connected with the Mortons’ separation

and the presence of Mrs. Morton in Alabama, and that

such filing did not reflect Colonel Morton’s intent to re-

turn to Alabama, to derive any benefit or protection

from the laws of that state, or to not make Alaska his

home. We are satisfied that the trial judge’s findings

are sufficiently supported by the record.* Thus, we con-

clude that Colonel Morton was domiciled in Alaska on

August 28, 1974.°

Next, we regard as de minimis Colonel Morton’s having

once lived in Alabama more than 17 years before in-

stitution of the divorce suit. This conclusion is well

supported by Lightell v. Lightell, 394 So.2d 41 (Ala. Civ.

App. 1981), in which the court held that the lower

court (Circuit Court, Montgomery County—Fifteenth

Judiical Circuit) did not have in personam jurisdiction

over the husband required to render a determination of

paternity and a personal judgment for child support,

alimony, attorney fees, and division of out-of-state prop-

erty. The parties had separated while living in North

Carolina, Thereafter, the wife moved to Alabama, and

the husband traveled about pursuant to his career and

currently resided in the Canal Zone. The wife sued for

divorce and other relief, most of which was granted by

§ The Government also contends that statements in letters from

Colonel Morton’s attorney infer that Colonel Morton did not intend

to remain in Alaska, and that Colonel Morton did not consider

Alaska to be his domicile. These factors certainly have relevance in

a domicile determination. However, considering all the facts in

evidence, we conclude that the trial judge correctly determined that

these contentions are not sufficiently persuasive to warrant “any

change in the opinion . . . that the plaintiff was a domiciliary of

Alaska, and not of Alabama, when the divorce proceeding against

him in Alabama was in progress.”

® It is also significant that, as related earlier, Mrs. Morton filed an

affidavit declaring that Colonel Morton was, at the time of instiga-

tion of her suit, a “nonresident” of Alabama.

15a

the lower court. Although upholding the lower court’s

granting of the divorce, the Alabama appellate court

said, regarding the other relief:

In the present case, to put it succinctly, the de-

fendant has never conducted any activity in the

State of Alabama. Nothing in the record would sug-

gest that any basis for the exercise of in personam

jurisdiction over him in Alabama would exist... .

Plaintiff .. . asserts that Alabama’s strong interest

in protecting the welfare of the minor child provides

the sufficient “minimum contact.” While this in-

terest is unquestionably important, it simply does not

make Alabama a fair forum in which to require

the husband, who derives no personal or commercial

benefit from the child’s presence in Alabama, and

who lacks any other relevant contact with the state,

to defend a paternity determination therein. Kulko

v. Superior Court of California, .. . 486 U.S. at

100, 98 S.Ct. at 1701. The unilateral activity of the

wife in moving to Alabama cannot satisfy the re-

quirement of the husband’s “minimum contacts”

with the forum state. It is essential in each case

that there be some act by which the defendant pur-

posely avails himself of the privilege of conducting

activities in the forum state. Hanson v. Denckla,

357 U.S. 286 ....

Finally, using a quasi in rem theory, the Government

attempts to justify jurisdiction on the basis that Colonel

Morton’s salary, upon which Mrs. Morton and the child-

ren relied for support, was present in Alabama or, at

least, subject to the jurisdiction of Alabama. This fails

for two reasons: First, the suit was brought against

Colonel Morton—not against his salary, which was not

located in Alabama under that state’s law. Louisville &

N.R. Co. v. Nash, 118 Ala. 477, 23 So. 825 (1898).

Second, even if his salary were considered to be located

in Alabama, this would not support jurisdiction in view

16a

of the Supreme Court’s admonition in Shaffer v. Heitner,

433 U.S. 186, 209, 212 (1977):

[A]lthough the presence of the defendant’s prop-

erty in a State might suggest the existence of other

ties among the defendant, the State, and the litiga-

tion, the presence of the property alone would not

support the State’s jurisdiction. If those other ties

did not exist, cases over which the State is now

thought to have jurisdiction could not be brought in

that forum.

. . . [All assertions of state-court jurisdiction

must be evaluated according to the standards set

forth in International Shoe and its progeny. [Foot-

note omitted. ]

See also State Tax on Foreign-Held Bonds, 82 U.S. 300,

820 (1872) (“All the property there can be... in debts

of corporations, belongs to the creditors, to whom they

are payable, and follows their domicile, wherever that

may be. Their debts can have no locality separate from

the parties to whom they are due.’’) *°

Accordingly we conclude that Colonel Morton’s con-

tacts with the State of Alabama were too tenuous and

insubstantial to support personal jurisdiction of the

Alabama state court consistent with the “traditional no-

tions of fair play and substantial justice” required to

meet the tést of due process under the Fourteenth

Amendment to the Constitution. International Shoe Co.

v. Washington, 326 U.S. at 316.

From the foregoing, it follows that the writs of gar-

nishment issued by the Alabama state court were not

issued by a “court of competent jurisdiction” as required

by 42 U.S.C. § 662(e) and, therefore, did not constitute

1° This, of course, suggests a further reason for concluding that

the Alabama court was not a court of competent jurisdiction, be-

cause it lacked jurisdiction over the Government's debt to Colonel

Morton which it sought to garnish.

17a

“legal process” for purposes of 42 U.S.C. § 659. To hold

otherwise and to require (as would the dissent) Colonel

Morton, a resident of Alaska, to proceed in the Alabama

state court against Mrs. Morton would, in effect, render

those statutes violative of constitutional due process,

contrary to the principles that a court should construe

legislative enactments to avoid constitutional difficulties if

possible. United States v. Clark, 455 U.S. 28, 34 (1980) ;

United States v. Harriss, 347 U.S. 612, 618 (1954);

Blasecki v. City of Durham, 456 F.2d 87, 98 (4th Cir.),

cert. denied, 409 U.S. 912 (1972). This is particularly

so where, as here, there is no legislative history of the

statutes suggesting a contrary interpretation.

At the same time, we hold that the immunity pro-

visions of the garnishment statute permit the Govern-

ment, where the process document is regular on its

face, to make payment without liability on a presump-

tion that the underlying judgment is valid.“ but that

such a presumption is rebuttable by a showing that the

Government had notice of a substantial claim of juris-

dictional irregularity."* That is the case here. The De-

partment of the Air Force, through its Finance Office

at Elmendorf, had information sufficient to give notice

of apparent lack of personal jurisdiction in the Alabama

court in the underlying suit. The record supplied to the

Finance Office by Colonel Morton included an affidavit

executed by Mrs. Morton upon instigation of her suit

admitting that Colonel Morton was at that time a “non-

resident” of Alabama. Also, the trial judge found that,

unlike the situation in the Calhoun case, the State of

Alabama had no “long-arm” statute at the time of fil-

1 Cf. Insurance Corp. v. Compagnie des Bauzites, —— U.S. ——,

102 S. Ct. 2009, 2107 (1982).

12 We need not decide whether a mere nonfrivolous claim would

rebut the presumption that a process document has been issued by a

court of competent jurisdiction.

Pat

18a

ing of the suit by Mrs. Morton which enabled it to ex-

ert personal jurisdiction for alimony or child support

over nonresidents solely by service of process by regis-

tered mail.’*

The Finance Office disregarded the information show-

ing jurisdictional irregularity in the underlying Alabama

suit. This was exacerbated by the fact that Colonel Mor-

ton’s position was based on advice from the Department’s

Judge Advocate’s Office at Elmendorf. Our conclusion

that the presumption, that a process document regular

on its face is supported by a valid underlying judgment,

is rebuttable places no greater burden on the Government

in this case than that already assumed by it when,

through the base Judge Advocate’s Office, it responded

to Colonel Morton’s request with legal advice based on

information sufficient to rebut the presumption that the

judgment in the underlying suit was valid. We are not

persuaded by the Government’s argument that, were we

to hold in Colonel Morton’s favor, on the facts of this

case, the result would be an administrative nightmare.

(See second paragraph of note 14, infra.)

Accordingly, the Government is liable under the Fifth

Amendment to the Constitution for monies wrongfully

paid pursuant to the Alabama court’s writs, said monies

being those which had accrued to Colonel Morton under

Title 37, United States Code.

18 Trial Judge Finding of Fact No. 31:

In 1974 and 1976, during the pendency of the divorce pro-

ceeding instituted by Patricia Kay Morton against Colonel

Morton, the State of Alabama did not have a “long-arm” statute

authorizing personal service on nonresidents for child custody,

child support, or maintenance and support. At that time, the

Alabama rule permitting substituted service was limited to the

termination of the marital status, in the absence of the neces-

sary “minimum contacts” required for the Alabama court to

exercise personal jurisdiction over a nonresident defendant.

19a

The judgment of the Claims Court is affirmed, and

the cause is remanded for a determination of quantum.”

AFFIRMED

4JIt should be pointed out that the Supreme Court, in Kulko,

observed that both California and New York had adopted versions

of the Uniform Reciprocal Enforcement of Support Act, which is

designed to “facilitate the procurement and enforcement of child-

support decrees where the dependent children reside in a State that

cannot obtain personal jurisdiction over the defendant.” 436 U.S.

at 99. The Court reasoned that because “the Uniform Acts will

facilitate both [Mrs. Kulko’s] prosecution of a claim for additional

support and collection of any support payments found to be owed

by (Mr. Kulko] .. . it cannot here be concluded . . . that resident

plaintiffs would be at a ‘severe disadvantage’ if in personam juris-

diction over out-of-state defendants were sometimes unavailable.”

Id. at 100 & n.15.

In this case, had the Air Force Finance Office refused to honor

the writs of garnishment, Mrs. Morton’s interests were similarly

protected, because both Alabama and Alaska had adopted the Uni-

form Reciprocal Enforcement of Support Act. Ala. Code § 30-4-80

et seq. (1976); Alaska Stat. § 25.25.010 et seg. (1977). We note

that all fifty states, the District of Columbia, P»crto Rico, and the

Virgin Islands have adopted the Uniform Keciprocal Enforcement

of Support Act. Am. Jur. 2d Desk Book, Supp. 1982.

20a

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal No. 290-77

ALLAN WAYNE MORTON, APPELLANT

Vv.

THE UNITED STATES, APPELLEE

NIES, Circuit Judge, dissenting.

I dissent. In summary, my reasons are:

1. Colonel Morton has no unsatisfied claim for statu-

tory pay. Morton’s claim has been discharged by pay-

ment to the Alabama court even if the underlying judg-

ment were void or had been set aside. An employee has

no claim against his employer for failing to litigate the

validity of a pre-existing judgment on which garnish-

ment is based.

2. The United States has specifically reserved its im-

munity from suit (whether viewed as a statutory claim,

a violation of fiduciary duty, a suit for wrongful garnish-

ment, or an action based on abuse of administrative dis-

cretion). The majority, in effect, interprets the statu-

tory reservation of sovereign immunity to impose liability.

8. Absence of binding judgment on affected parties.

The judgment of the Claims Court must be vacated be-

cause of the absence of indispensable parties, namely,

the dependents of Colonel Morton who benefited by the

garnishment.

2la

4. Principles of comity and federalism require that

Colonel Morton seek relief in the Alabama courts. The

majority’s holding that the underlying Alabama judg-

ment against Colonel Morton is void violates these

principles.

5. The exercise of jurisdiction by the Alabama Court

over Colonel Morton in 1974 does not offend concepts of

due process. Colonel Morton was purposely availing him-

self of the privileges of the state of Alabama at that

time in the conduct of his personal affiairs.

I base these conclusions on the following key factors.

First, the facial validity of the writs served on the Gov-

ernment, as well as the judgment for alimony and child

support which accompanied the garnishment process, is

unquestioned and unquestionable. Second, Morton does

not dispute that he received actual notice of the divorce

decree, the writs, and the Government’s answers. Third,

the judgment for alimony and child support, while based

on a default, was entered only after a hearing before

the Alabama court and open court testimony by Mrs.

Morton. The court was aware that Colonel Morton was

a nonresident of Alabama and, nevertheless, found it

had jurisdiction over him to enter the monetary judgment.

Finally, but most importantly, the legislative history of

the Social Services Amendments of 1974, Pub. L. No.

93-647, 88 Stat. 2337 (1975) (S. Rep. No. 93-1356, 98rd

Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad.

News 8133), shows that the purpose in allowing gar-

nishment, which came into being by that statute, was

to aid the states and federal Government in reducing

public aid to dependent children. Garnishment of fed-

eral wages is allowed only for support payments of de-

pendents. The majority entirely frustrates this purpose.

Morton’s pay claim has been discharged

The fundamental error which pervades the majority

opinion is its unquestioning acceptance of the premise

22a

that a private employer would remain liable to an em-

ployee for wages under the circumstances here. Thus,

the majority finds it necessary to discuss only the issue

of sovereign immunity. Since a private employer would

not be liable under similar circumstances, consideration

of sovereign immunity would be unnecessary except that,

if there is immunity, a fundamental question of the

court’s jurisdiction is raised.

It has been the position of Morton throughout these

proceedings that, regardless of facial validity, where

garnishment proceedings are based on a void judgment,

payment by the garnishee is, ipso facto, illegal, so that

the garnishee remains liable on his debt to the judgment-

debtor. This legal premise is erroneous, but it is the

basis for liability adopted by the trial court and pur-

portedly by the majority.’ As stated in the trial judge’s

opinion (Slip Op. at 21-22):

The writs of garnishment involved in the present

case were issued as incidents to the decree of the

Alabama court. As the decree of the Alabama court

was void for lack of jurisdiction insofar as it

ordered Colonel Morton to make alimony and child

support payments to Patricia Kay Morton, the writs

of garnishment must necessarily fall along with the

portion of the decree of which they were based.

Laborde v. Ubarri, 214 U.S. 173, 174 (1909).

For the reasons previously outlined, it is con-

cluded that the Air Force Finance Office acted ar-

bitrarily and illegally when it ignored the plain-

tiff’s protest that the Alabama court did not have

jurisdiction to enter a money judgment against him

for alimony and child support, made deductions from

plaintiff’s pay, and paid the money over to the Cir-

1 After many readings of the majority opinion, I can only con-

clude that the majority’s theory of liability sounds in tort rather

than being based on a statutory pay claim, i.e., on a debt.

28a

cuit Court for the Tenth Judicial Circuit of Ala-

bama pursuant to writs of garnishment that were

void because they were ancillary to a court decree

which was void for lack of jurisdiction insofar as

it ordered Colonel Morton to make alimony and child

support payments to Patricia Kay Morton.

Morton’s argument begins with an analysis of di-

vorce law? leading to the conclusion that a court must

have personal jurisdiction over the defendant in a divorce

action to enter a monetary judgment. No one takes

issue with this premise. Then, he correctly states that

garnishment proceedings are ancillary to the principal

action. Thus, if the original judgment is held to be

void, the ancillary writ of garnishment also falls. La-

borde v. Ubarri, 214 U.S. 173 (1909); Wilkinson v.

Cohen, 257 Ala. 16, 57 So.2d 108 (1952). This prece-

dent does not establish that a garnishee remains liable

because execution was obtained against him on a void

judgment. No such precedent exists. Rather, the cited

precedent establishes that if the underlying judgment

is set aside, the judgment-creditor must return the prop-

erty he obtained by garnishment. Thus, the cases deal

with the rights of Colonel Morton against Mrs. Morton,

not against the United States.

Similarly, no precedent relevant to this case can be

derived from prejudgment garnishment cases on which

2 This case was previously before the United States Court of

Claims on cross motions for summary judgment, which were denied

without prejudice. The court did not make any determination, legal

or factual, on any issue, inasmuch as it found the record inade-

quate. The issue of liability of an ordinary garnishee was raised in

the briefs on the motions for summary judgment, and the arguments

previously advanced by Morton have been taken into account. The

issue of immunity came into this case only after enactment of 42

U.S.C. § 659(f). Because the issue of liability has never been fully

briefed by the Government and because I find this issue in itself

dispositive, it has been developed here. Also the immunity provision

cannot be interpreted properly, in my view, without full apprecia-

tion of the issue of liability.

24a

Morton and the majority rely. (See n.4, infra.) The

United States was in no way responsible for the under-

lying judgment against Colonel Morton. Indeed, the gen-

eral principles to be applied here are more appropri-

ately found in the Law of Judgments. In any event,

since garnishment is a creation of state statutory law,

in determining whether the United States as a gar-

nisheed employer has fulfilled its obligations, we first

must look to state law for guidance and in particular

to the law of Alabama.

In establishing garnishment procedures, the various

states can impose whatever duties their citizens find

appropriate on a garnishee, and by waiver of immunity

the United States has made itself subject to these state

laws like an ordinary employer. The obligations im-

posed by a state on a garnishee must, of course, take into

account the due process rights of a garnishee which

are as important as the due process rights of a judgment-

debtor. The majority, without any analysis of the Ala-

bama statute, finds a duty on an employer served with

garnishment to carry the burden of litigation for his

employee on penalty of double liability. Such an obliga-

tion would clearly violate the due process rights of a

garnishee. The employer/garnishee has no interest in

the litigation, being merely a stakeholder, and cannot be

made to shoulder the burden and expense of litigation for

someone else. Indeed, I believe the concept of imposing

a duty to litigate the underlying judgment would be

unthinkable, except for the fact that the employer here

is the Government. However, the relationship between

the Government and Colonel Morton in garnishment pro-

ceedings is in no way unique. It should at least give

the majority pause that out of the thousands and thou-

sands of garnishment proceedings against employers each

month, not one case can be cited where an employer was

held liable to this employee because the underlying judg-

ment was void or because the employer failed to litigate

the issue of its validity for his employee. Anyone who

25a

has ever dealt with garnishment involving private em-

ployees would be aware that employees routinely tell

their employers, when informed of garnishment, that the

judgment was satisfied, that they were not served, or

that they will sue if they do not get their wages, just

as Colonel Morton did here. Such statements do not affect

a private employer’s duty or liability. Employers must

pay according to the court’s direction, assuming the em-

ployer is subject to the court’s jurisdiction. It is horn-

book law in garnishment proceedings throughout the

states that the employee has the obligation to challenge

the garnishor before the court which allowed garnish-

ment. Calhoun v. United States, 557 F.2d 401 (4th

Cir.) (per curiam), cert. denied, 484 U.S. 966 (1977).

Under Alabama law, nothing could be clearer than

that Morton would have no claim against a private em-

ployer merely because the underlying judgment is void.

Upon proper service of a writ on an employer, the em-

ployer has no option but to answer, stating the amount

of indebtedness to its employee. The majority suggests

the Government should have “refused to honor’ the writ.

No private employer has that right, and under 42 U.S.C.

§659(a) (1976 & Supp. IV 1980) the Government is

treated “in like manner and to the same extent as if the

United States .. . were a private person.” The United

States could no more “refuse to honor” the writ sum-

moning the Government to the Alabama court than it

could “refuse to honor’ the summons by the Court of

Claims. The United States had to answer, and in its

26a

of garnishable indebtedness, or if the employer fails to

answer, a judgment must be entered against the em-

ployer in favor of the garnishor (i.e, Mrs. Morton).

Id, §§ 6-6-454 and 6-6-457. Where the garnishment is

on an existing judgment, an employee may post bond to

stop the garnishment. Id. § 6-6-430(a). Where no bond

is given and the garnisheed employer pays to the court,

§ 6-6-453(a) provides: “Such payment has the effect

to discharge the garnishee from liability for the amount

so paid....”

As further protection of the garnishee from the debtor,

(i.e., the United States from Colonel Morton), the statute

provides in § 6-6-461:

The judgment condemning the debt, money or

effects to the satisfaction of the plaintiff’s [Mrs.

Morton’s] demand is conclusive as between the gar-

nishee [the United States] and the defendant [Colo-

nel Morton] to the extent of such judgment, unless

the defendant prosecutes to effect an appeal from

such judgment, which he may do in his own name;

and, if such judgment is stayed by bond and the

garnishee is notified of the fact, he is not permitted

to discharge such judgment pending appeal.

No Alabama case law construes the protection given

the garnishee from a subsequent action by the judgment-

debtor as in any way conditional on the actual validity

of the underlying judgment. As early as 1878, the Su-

preme Court of Alabama held in Montgomery Gas Light

Co. v. Merrick & Sons, 61 Ala. 534 (1878):

Since the garnishee stands in relation of indif-

ference between the plaintiff and the defendant, the

court will protect him against the jeopardy of a

double satisfaction, if an action is commenced against

him by the defendant.

In construing a Georgia statute paralleling that of

Alabama, Judge O’Kelley, in West v. West, 402 F. Supp.

27a

1189 (N.D. Ga. 1975), provided the following perceptive

analysis of the role and liability of an employer (in that

case also the federal Government) who becomes involved

in garnishment proceedings:

Under Georgia law, when a garnishee answers the

summons of garnishment, the statements in the

answer are accepted as true, and the garnishee is

discharged from all further liability unless either

the claimant or the defendant files a traverse con-

testing the answer. Ga. Code Ann. § 46-303 (Rev.

1974); Peaslee-Gaulbert Corp. v. Okarma, 97 Ga.

App. 809, 104 S.E.2d 548 (1958).

If the fact and amount of the government’s debt to

the defendant is not challenged, the garnishee has

no further liability and is no longer interested in

the litigation.

Id, at 1191-92. See also Garrett v. Hoffman, 441 F.

Supp. 1151, 1157 (E.D. Pa. 1977) (“[A] Florida writ,

once served on the Federal defendants, rendered them

liable for [garnishor/wife] for plaintiff's accrued re-

tirement pay for the month in question.”).

The majority does not make any analysis of Alabama

law or of a private employer’s liability except to indicate

in a footnote (n. 5, ante) that liability is “well-settled,”

referring the reader to 38 C.J.S. Garnishment §§ 244, 281

(1955) and cases cited therein.* However, the authority

*In looking for precedent in garnishment proceedings, as previ-

ously indicated, one must distinguish between cases where the un-

derlying judgment was obtained prior to the garnishee’s involve-

ment and those where the presence of the garnishee, or the “res” he

holds, provides the jurisdictional basis for the judgment against the

person whose property is garnished. Greater duties may have been

imposed in pre-judgment garnishment, but after recent decisions

of the U.S. Supreme Court these cases have little, if any, continued

in any event. See Note, Garnishment in Alabama, 29 Ala.

661-67 (1978), for a discussion of the effect of these

decisions on Alabama law. Cole v. Randall Park Holding Co., 201

28a

cited, upon examination, fails to provide any support for

the summary disposition of this issue by the majority.

Indeed, the only attempts by an employee to subject an

employer to double liability, by reason of failing to make

a collateral attack on the underlying judgment, have been

against the Government and in all cases, except this one,

such attempts have received short shrift.

The Fourth Circuit in the landmark case directly on

point, Calhoun v. United States, supra, which was fully

briefed up to the Supreme Court, reached a conclusion

directly contrary to the majority. The pertinent facts on

the issue of liability in Calhoun are indistinguishable

from the facts at hand.’ An officer sued for his statutory

pay under the Tucker Act. Commander Calhoun had

received service by mail in Virginia relating to California

divorce proceedings after his wife abandoned him and

moved to California. Commander Calhoun did not answer

or appear in the proceedings. His wife was granted a

Md. 616, 95 A.2d 278 (1958), and Egnatik v. Riverview State Bank

of Kansas City, 114 Kan. 105, 216 P. 1100 (1923), cited by appel-

lant, and the cases at 38 C.J.S. Garnishment § 244 (1955), are cases

of this nature and have no applicability to garnishment in aid of

execution on a pre-existing judgment. Here the United States was

in no way responsible for the judgment of alimony and child sup-

port against Colonel Morton, and, indeed, was not subject to garnish-

ment suits at the time the suit was begun. See Garrett v. Hoffman,

441 F. Supp. 1151, 1158 (E.D. Pa. 1977), which discusses this

difference in connection with garnishment of federal wages. The

majority also cites 38 C.J.S. Garnishment § 311 (1955) and dictum

in Betts v. Coltes, 467 F. Supp. 544 (D. Hawaii 1979), concerning

actions for wrongful garnishment, tort cases not within the juris-

diction of the trial forum here, and/or excessive garnishment, not

relevant here.

5 On the issue of in personam jurisdiction, the facts detailed in

the trial court and appellate opinions show that Commander Calhoun

had no connection with California, unlike Colonel Morton with

Alabama.

*The jurisdiction of the district courts was identical at that

time with the former United States Court of Claims except for

amount in such cases. 28 U.S.C. § 1846(a) (2) (1976).

29a

divorce and an award of alimony and child support. Mrs.

Calhoun applied to the California court for a writ of

garnishment on that judgment. Commander Calhoun re-

ceived notice of garnishment from the court and from the

Navy Family Allowance Activity. His attorney informed

the Navy that the California court had no in personam

jurisdiction over Commander Calhoun when it entered

the support detree, since he was not resident, domiciled,

served with process or otherwise engaged in activities in

California. Like Morton, he asserted that the Govern-

ment was obligated to attack the California decree. All

of the arguments advanced by Colonel Morton were ad-

vanced by Commander Calhoun. In a per curiam opinion

of Chief Judge Haynsworth and Judges Butzner and

Russell, the court affirmed the grant of summary judg-

ment to the Government, applying the same law to the

Government as that applicable to a private employer:

It is clear that the employer, on receipt of the

garnishment notice, must give notice to its employee

that it has been served so that the employee has the

opportunity to defend himself. See Harris v. Balk,

198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023 (1904).

The employer has a greater obligation only where the

underlying judgment is void on its face.

In this case, the divorce judgment is facially valid.

Service by mail was had in accordance with the Cali-

fornia Code of Civil Procedure § 415.20. The asserted

invalidity is the California court’s lack of in personam

jurisdiction over Calhoun. The question as to in

»ersonam jurisdiction will probably be whether Cal-

houn was a domiciliary resident or citizen of Cali-

fornia. Calhoun is assuredly in a better position to

effectively litigate that issue than is the United

States. The United States was under no duty to

contest the judgment, exposing itself to potential

tonite Habitties. It was Calhoun’s obligation to

80a

attack the judgment if he wished to avoid the deduc-

tion from his pay.

557 F.2d at 402 (emphasis added).

The majority attempts to distinguish Calhoun from the

case at hand by reliance on the finding of the trial judge

here that Alabama had no “long-arm” statute comparable

to that of California. (n. 13, ante.) Not only is absence

of a statute immaterial in view of the judicially estab-

lished law in Alabama,’ but also the existence of a long-

arm statute does not change the issue of whether Calhoun

and Morton could be subject, as a matter of due process,

to the jurisdiction of the respective courts. Kulko v.

California Superior Court, 486 U.S. 84 (1978).

The Calhoun court did not exonerate the United States

because the underlying judgment was not void, but be

cause, in its view, it was not incumbent on an employer

T Contrary to the majority view, a long-arm statute is not neces-

sary to confer jurisdiction on the Alabama state court. Such juris-

diction may be exercised unless restricted by a long-arm statute or

other jurisdictional limitation. The Alabama Supreme Court in

New York Times v. Sullivan, 278 Ala. 656, 144 So.2d 25, 34 (1962),

rev'd on other grounds, 876 U.S. 254 (1964), had declared that

Alabama jurisdiction extended to the full extent allowed by due

process and permitted service by mail on non-residents. See also

Ez parte Martin, 281 Ala. 185, 199 So.2d 886 (1967). Rule 4.2 was

adopted by the Alabama Supreme Court to clarify the former Rule 4

of the Alabama Code of Civil Procedure (effective July 8, 1973, and

published at 290 Ala. 878 (1978)). The new rules, while making

explicit that Alabama asserts “long-arm” jurisdiction as far as due

process will allow, does not represent any expansion of the jurisdic-

tion of Alabama courts over what it was at the time Mrs. Morton

filed her complaint against Colone! Morton. Code of Alabama, Tit.

18, §17(a) (1971) (1978 Cum. Supp.). See generally, “Committee

Comments on Proposed Amendments to the Alabama Code of Civil

Procedure,” 87 Alabama Lawyer 84 (April 1976).

The majority states there was no “personal service” on Colonel

Morton, using the term in the narrow sense of delivery of a sum-

mons to him personally within the state. He was properly served by

mail pursuant to the court’s direction if he was subject to the court’s

jurisdiction. There is no challenge to the adequacy of the notice he

actually received of all proceedings.

8la

to look behind the facial validity of the garnishment proc-

ess. The Fourth Circuit refused to undertake the ill-

advised plunge into the facts taken by the majority here.

It relied on the statement of the California court that it

had jurisdiction. The Alabama divorce decree which was

served on the United States with the writ in issue here

begins with the equivalent statement: “It appearing in

this cause that the Defendant was duly served and failed

to appear... .”

It must be emphasized that the Calhoun court was

addressing only the issue of liability. While garnishment

of federal wages came into being in 1975, the immunity

provision and the definitions in 42 U.S.C. § 662 relating

thereto, discussed infra, were not enacted until 1977 and

were not at issue in Calhoun. Thus, without the immunity

provision, the Calhoun court found no liability. The ma-

jority’s treatment of Calhoun in its discussion of im-

munity illustrates the confusion which I find throughout

the opinion between immunity and liability.

Relief from Void Judgments

The majority puts forth no basis for liability other than

that a garnisheed employer would remain liable to an

employee for paying a void judgment against his employee.

Void to the majority means void for all purposes and with

respect to all persons. This conclusion is not only in error

as a matter of garnishment law but also contravenes ac-

cepted principles of the effect which must be given to void

judgments, particularly where the rights of third parties

would be adversely affected. To avoid belaboring this

point, I will only call attention to the American Law In-

stitute’s recently published Restatement (Second) of Judg-

ments (1982), which contains lucid explanations through-

out the two volumes why the majority’s simplistic view is

in error. Of particular interest is § 16 Comment ¢ (pp.

146-47 of Vol. 1), which analyzes the problem of a judg-

ment based on a void judgment as follows:

32a

As stated in Comment a above, the problem when

met head-on is that of a judgment based and de-

pendent upon an earlier judgment which is subse-

quently nullified. It has been contended that the later

judgment should then be automatically nullified. The

current doctrine, however, is that the later judgment

remains valid, but a party, upon a showing that the

earlier judgment has been nullified and that relief

from the later judgment is warranted, may by ap-

propriate proceedings secure such relief.

If, when the earlier judgment is set aside or re-

versed, the later judgment is still subject to a post-

judgment motion for a new trial or the like, or is

still open to appeal, or such a motion has actually

been made and is pending or an appeal has been taken

and remains undecided, a party may inform the trial

or appellate court of the nullification of the earlier

judgment and the consequence elimination of the

basis for the later judgment. The court should then

normally set aside the later judgment. When the

later judgment is no longer open to a motion for a

new trial or the like at the trial court level, nor

subject to appeal, the fact of the nullification of the

earlier judgment may be made the ground for appro-

priate proceedings for relief from the later judgment

with any suitable provision for restitution of benefits

that may have been obtained under that judgment.

It must be borne in mind that relief from any judg-

ment is based on equitable principles and that restitution

can be obtained only from one who benefited by the

judgment. This is the thrust of the decision of the Su-

preme Court in Laborde v. Ubarri, supra (attachor re-

quired to return property). Similarly, in a recent deci-

sion, Harris v. National Bank & Trust Co., 406 So.2d

968 (Ala. Civ. App. 1981), where a writ of garnishment

was void, an employee was held to be entitled to return

of her garnisheed wages from the person (garnishor or

employer) who was holding them. Thus, if Colonel Morton

is entitled to relief from the Alabama judgments, the

83a

proper defendant is his wife, not the United States.

Tinnin V. Tinnin, 391 So.2d 1047 (Ala. Civ. App. 1980).

Conclusion on Liability

The trial court erred as a matter of law in finding the

United States liable under the precedent of Laborde v.

Ubarri, supra. The majority similarly assumes liability,

if there is no immunity.* I would hold for the Govern-

ment on the issue of liability.

III

Interpretation of 42 U.S.C. § 659(f)

The majority wholly ignores the interpretation of the

subject statute given by the Comptroller General of the

United States and more than eight years of established

administrative practice. Indeed, the majority appears un-

aware that the current garnishment regulations of the

Office of Personnel Management, 5 C.F.R. § 581.101 et seq.

(1981) (which are basic to the regulations of all agen-

cies), are void if the majority opinion stands. Moreover,

these regulations were entirely in accordance with the de-

cisions of all other federal courts which had interpreted

the statute and the obligations of the Government as a

garnishee before this court’s decision. In view of the

plenary appellate jurisdiction of this court over these

cases, see 28 U.S.C. §§ 1295(a) (2) and (38), regulations

® The majority has laced its opinion with constitutional overtones.

In connection with a claim to statutory pay, this adds nothing to

Morton's claim. Testan v. United States, 424 U.S. 392 (1976).

Morton’s due process rights were, in any event, fully protected by

his right to defend the garnishment proceeding, as he had a right

to do under Alabama law, as a party. Harris v. National Bank &

Trust Co., 406 So.2d 968 (Ala. Civ. App. 1981). Despite at least

three opportunities (three to five writs have been served), Morton

wholly failed to avail himself of state procedures which would have

protected him from wrongful garnishment. The majority's solici-

tude for his due process rights appears misplaced. By choice, he

purposefully ignored the safeguards available to him.

84a

of all federal agencies must be made to conform to the

majority decision, which in my view is equally in error

on the issue of immunity as on liability.

Sovereign immunity is deemed waived by the various

statutes under which persons employed by the Govern-

ment are entitled to pay. 42 U.S.C. § 659, enacted in

1975, waives sovereign immunity to allow garnishment of

federal wages for the limited purpose of family support.

After a flurry of litigation against the Government re-

garding garnishment, in 1977 the garnishment statute

was amended (Tax Reduction and Simplification Act of

1977, Pub. L. No. 95-30, § 501, 91 Stat. 126, 157 (1977) )

specifically to reassert sovereign immunity with respect to

claims of employees whose wages had been garnished.

Any pay claim is, thus, limited by the final paragraph of

42 U.S.C. § 659:*

(f) Neither the United States, any disbursing officer,

nor governmental entity shall be liable with respect to

any payment made from moneys due or payable from

the United States to any individua] pursuant to legal

process regular on its face, if such payment is made

in accordance with this section and the regulations

issued to carry out this section.

This immunity provision, in fact, parallels generally

the scope of a garnishee’s liability as defined by the Ala-

bama courts and in Calhoun. The immunity provision has

the effect of a limitation or prohibition against imposi-

tion of greater duties on the Government by any state

and, thus, is an aid to administration in that garnishment

from all states can be treated uniformly. Since 42 U.S.C.

659(f) by its terms is satisfied here, Morton’s claim

should be dismissed for lack of jurisdiction. The majority,

however, finds no immunity by interpreting the reserva-

* While the section is entitled “Non-liability,” it is considered by

the parties and the majority as a reservation of immunity, and for

purposes here, I will also treat it as an immunity statute. The stat-

ute could also be treated as an affirmative defense to a pay claim.

85a

tion of immunity narrowly and by the addition of qualify-

ing phrases, contrary to repeated instruction of the

Supreme Court that consent must be “unequivocally ex-

pressed.” United States v. Mitchell, 445 U.S. 535, 538

(1980); United States v. Testan, 424 U.S. 392, 399

(1976).

The majority first construes the immunity statute to

require that the court which issued the underlying judg-

ment must have jurisdiction over the subject matter and

in personam jurisdiction over the employee. Only then,

in the majority view, is the court a “court of competent

jurisdiction” within the meaning of 42 U.S.C. § 662

(Supp. IV 1980), the section in which “legal process’ is

defined. By finding that the Alabama court had no juris-

diction over Morton, the Alabama court could not issue

“legal process” [“[T]he writs . . . did not constitute legal

process for purposes of 42 U.S.C. § 659,” ante at 20).

Thus, it would seem unnecessary to read further into

42 U.S.C. § 659 to say there is no sovereign immunity,

and in fact, the majority’s analysis entitled “Immunity”

ends at this point.’°

The majority at the end of its opinion then appears

to have second thoughts about the absolutism of its hold-

ing on immunity and steps back to modify its position,

concluding:

At the same time, we hold that the immunity pro-

visions of the garnishment statute permit the Gov-

ernment, where the process document is regular on

its face, to make payment without liability on a

presumption that the underlying judgment is valid.

Ante, at 20-21.

10 The majority similarly relies on the necessity for a “legal obli-

gation” in 42 U.S.C. § 659(a) (1976 & Supp. IV 1980). Apparently

the majority rejects the view of Congress that “all children have the

right to receive support from their fathers.” S. Rep. No. 98-1356,

98rd Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad. News

8138, 8146.

86a

Since all process served here is regular on its face and

the Government would be exculpated, the majority has

to turn again, and adds:

{[B]ut that such presumption is rebuttable by a

showing that the Government had notice of a sub-

stantial claim of jurisdictional irregularity.

Ante, at 21. In effect, the majority accepts the immunity

statute as written but adds its own proviso.

What the majority is, in fact, doing is construing the

immunity statute to impose liability on a theory of negli-

gence or breach of fiduciary duty. Indeed, its entire two

factor analysis of “court of competent jurisdiction” is

simply irrelevant to its own conclusion. The majority

adopts no absolute requirement for either subject matter

or personal jurisdiction. In my view, to be a “court of

competent jurisdiction” the court must have subject mat-

ter jurisdiction.

Since the majority is basing the allowance of Morton’s

claim on the conduct of the Air Force and Morton, it is

appropriate to look at what steps the Government took

and what “notice” Morton gave the Government.

To begin with, when Colonel Morton sought advice in

1975 concerning the judgment awarding alimony and

child support to Mrs. Morton, the Air Force advised him

that a court entering a monetary decree had to have

personal jurisdiction over him. That advice was correct.

Personal jurisdiction does not, of course, require personal

service, in the sense of service on Colonel Morton in

Alabama. Service by mail, as authorized by the Alabama

court here, is sufficient for the exercise of personal ju-

risdiction if Colonel Morton had sufficient contacts with

Alabama.

With respect to the subsequent writs of garnishment,

Morton does not challenge the facts set forth in the fol-

lowing affidavit:

State of Colorado )

)

City and County of Denver )

AFFIDAVIT

James R. Russell, Affiant, being first duly sworn,

upon oath deposes and states as follows:

1. Affiant is a civilian Attorney-Advisor assigned to

the Office of the Staff Judge Advocate, Air Force

Accounting and Finance Center, Denver CO 80279.

Affiant’s duties principally involve legal review of

State garnishment and similar processes served on

the United States Air Force pursuant to 42 U.S.C.

659.

2. On 27 December 1976, the United States Air

Force was served by certified mail with a Writ of

Garnishment seeking to garnish the pay of Col Allan

W. Morton. When the Writ of Garnishment was

submitted to AFAFC/JA for legal review, it was

randomly assigned to Affiant. In legal review, Af-

fiant observed :

a. The Writ of Garnishment served was the “reg-

ular” form used in the State of Alabama. It was

issued by the Register of the Tenth Judicial Circuit

Court. (Attachment 1.)

b. The Writ of Garnishment recited a decree en-

tered in the cause dated 14 August 1975.

ce. The Writ recited on its face that it sought

“alimony and child support” in the amount of

$4,100.00.

d. The Writ was accompanied by an Affidavit

executed by Patricia K. Morton which recited the

Judgment dated 14 August 1975 and that $4,100.00

was due and owing for alimony and child support.

(Attachment 2.)

e. The Writ was accompanied by a copy of a

“Final Judgment of Divorce”. In paragraph 5, such

88a

Judgment demonstrated that $500.00 per month was

made against Allan W. Morton “as alimony for

plaintiff and partial support and maintenance of the

said minor children”. The Judgment recited in its

first line, “It appearing of record in this cause that

the defendant was duly served and failed to ap-

pear...”. (Attachment 3.)

8. Based upon the observation in paragraph 2

hereof, Affiant determined that the Writ of Gar-

nishment was issued under the authority of the Cir-

cuit Court and such had proper subject matter juris-

diction; that the collection was for child support and

alimony and was therefore within the “waiver of

sovereign immunity” imparted by 42 U.S.C. 659;

that such Writ was issued upon Affidavit and was

based upon a Final Judgment of Divorce which in-

cluded an alimony and child support award; and that

the Final Judgment of Divorce recited, “defendant

was duly served”, and did not by its face raise per-

sonal jurisdiction questions. The Writ of Garnish-

ment was determined to be legally sufficient to the

extent of $4,100.00. At such time, the position of

the United States Air Force was that “costs” were

not within the scope of the waiver of sovereign

immunity.

4. On or about 30 December 1976, Mr. Johnny

Nieto, AFAFC/JA, then the senior attorney assigned

to garnishment duties and Affiant’s supervisor, re-

ceived a telephone call from Col Morton essentially

alleging that the Alabama garnishment was invalid

as no personal service of process was made. Mr.

Nieto referred the information to Affiant and, on

or about 30 December 1976, Affiant “stayed” com-

pliance with the Writ pending receipt of documenta-

tion which Col Morton had indicated he would send.

5. On or about 10 January 1977, Affiant received a

call from Col Morton, the nature of which was to

89a

advise that he was going to sue Affiant personally.

In this conversation, Col Morton advised Affiant he

had received service of process in the Alabama di-

vorce proceeding by registered mail.

6. By letter dated 30 December 1976, Col Morton

presented arguments that he had paid the obliga-

tion; that he was never served or notified of the

proceeding; and that he was neither domiciled or a

resident of Alabama. (Attachment 4.) In support

of his arguments, Col Morton attached copies of five

letters. (Attachment 5.) The letters were essentially

the opinion of his legal counsel as to the validity of

the Alabama divorce. The letters contained nothing

that had any bearing on the recitation in the Judg-

ment that “defendant was duly served”. Further,

the letters demonstrated that Col Morton was a

domiciliary of the State of Alabama who was ad-

vised by counsel on 18 August 1976 to change his

legal place of residence. [Emphasis added. }

7. On 11 January 1977, an Answer was filed in the

Alabama Court confessing indebtedness of $4,100.00

and such amount was subsequently paid to the Clerk

of the Circuit Court. (Attachment 6.) Col Morton

was advised by letter dated 14 January 1977 that

the Alabama process was regular and valid on its

face and would be honored. (Attachment 7.)

8. By telephone conversation 31 January 1977,

Kaletah Carroll, plaintiff’s counsel herein, advised

Affiant of her opinion of Alabama law and stated

that no personal service of process had been made.

By letter dated 29 March 1977, Kaletah Carroll

provided documentation affirmatively demonstrating

that Col Morton was served in the Alabama divorce

proceeding by registered “return receipt requested”

mail. (Attachment 8.)

9. On 2 May 1977, the United States Air Force was

served with a second writ of Garnishment seeking

40a

$1,750.00. (Attachment 9.) A Motion for Enlarge-

ment of Time of [sic] Answer was filed due to the

enactment of Pub. L. 95-80 (23 May 1977). (At-

tachment 10.) Since Affiant was under threat of per-

sonal suit, the question of validity of service of

process by registered mail was posed to the U.S.

Attorney in Birmingham AL by letter dated 1 June

1977. (Attachment 11.) The U.S. Attorney advised

that such service was sufficient pursuant to Rule

4.2, Alabama Rules of Civil Procedure. (Attach-

ment 12.) An Answer to such Writ is due 6 July

1977 and such process has been determined legally

sufficient and such answer was filed 30 June 1977

(Attachment 13) ; however, amounts due thereunder

have not been paid as of present to the Clerk of the

Court.

10. Attachments referred to herein are by this ref-

erence incorporated herein.

FURTHER, Affiant saith not.

/s/ James R. Russell

JAMES R. RUSSELL

Affiant

Subscribed and sworn to before me by James R.

Russell this 30th day of June, 1977.

/s/ Patricia A. Stichter

PATRICIA A, STICHTER

Notary Public

My Commission expires 21 June, 1980.

The affidavit is confirmed by Mr. Russell’s letter of

January 14, 1977, to Colonel Morton which states:

To begin, Public Law 98-647, codified at 42 U.S.C.

$659 enters the consent of the United States to

4la

garnishment and similar processes of the states. No

federal law of garnishment was created, and conse-

quently, all questions of law are resolved by refer-

ence to the law of the issuing state.

We are precluded, as are US Attorneys, from raising

any matter in the nature of a defense which belongs

to the member. Further, we have no ajudicatory

[sic] authority in factual matters. Even if it is

proven to us that you have made the payments al-

leged as delinquent in the process, we still cannot

disobey the court order. Such would be a defense

that, by necessity, would have to be raised by you

in the Alabama court.

The divorce decree herein recites that “Defendant

was duly served and failed to appear within the

time required”. Such may be untrue; however, it

validates the face of the instrument. Any defect in

jurisdiction or notice must be raised in the court.

The test of whether a court may exercise power over

you is not limited to domicile or residence. There

are many circumstances which would meet the

“minimum contacts” required by the Supreme Court

pronouncements in Hanson v. Denckla, 357 U.S. 235

and International Shoe v. Washington, 326, [sic]

US. 310.

The Government’s advice that it could not undertake

to challenge the alimony/child support decree on his be-

half is in accordance with the regulations of the Air

Force at that time and is in accordance with current

regulations of the Office of Personnel Management, de-

tailed infra, which, under the majority view are void.

In my view the regulations not only correctly implement

the statute, but it would be contrary to basic fairness

if the force of the Government is brought to bear on the

side of one party to an essentially private dispute. In-

42a

deed, it would entirely defeat the objective of the gar-

nishment statute which is to remove persons from public

assistance, if the Government must attempt to defeat the

claims of dependent children and spouses, who are the

only persons who can garnish federal wages.

Turning to Colonel Morton’s “substantial claim,” I can

find no more in the record than a bald assertion that the

support judgment was no good. The fact that he did not

actually live in Alabama, and that Mrs. Morton so

stated in the divorce papers, does not resolve the issue

of jurisdiction of the Alabama courts. On the facts

here, in my view, the support judgment was valid ab

initio, but even if void, it was the basis for a valid judg-

ment against the Government until set aside. In no

event can the voidness of the underlying judgment be

used as a sword against the Government.

What the majority wholly fails to appreciate is that

42 U.S.C. § 659(f) is designed not only to protect the

Government itself from a claim like Colonel Morton’s,

but also to shield individuals who serve as disbursing

officers. The record indicates that Colonel Morton has

threatened individual Government officers with suit for

their actions. The majority, by its interpretation of the

statute injecting Fifth Amendment rights of due process,

places a seal of approval on such Bivens claims."' The

majority myopically looks only at protecting Colonel

Morton, who is the only interested party whose rights

remain fully protected if 42 U.S.C. § 659(f) is upheld

by its terms. By its restrictive reading of 42 U.S.C.

§ 659(f), the majority destroys its intended purposes.

Also, contrary to the majority view, the rule of this

case places an enormous administrative burden on all

agencies of the Government. All regulations must be

revised to conform to this decision. The majority’s test

of “notice of substantial irregularity” means no more,

11 Bivens v. Siz Unknown Named Agents of Federal Bureau of

Narcotics, 408 U.S. 888 (1971); See also Butz v. Economou, 438

U.S. 478 (1978).

48a

on the basis of the facts here, than that an employee

must tell his pay officer or supervisor that he was not

domiciled in the state asserting jurisdiction over him.

Colonel Morton did no more than that, and his “support-

ing” evidence, a letter from his attorney advising him

to change his domicile from Alabama, negated his claim.

No other “facts” relied on by the majority were even

known until the trial. The undercurrent in the opinion

is that the Government owes a special duty to military

personnel.'? However, all employees of the Government

are subject to garnishment of wages and a privileged

class cannot be recognized within the confines of 42

U.S.C. § 659(f).

The regulations of the Office of Personnel Management

(5 C.F.R. § 581.101 et seg. (1981) ], too lengthy to quote

in their entirety, are based on the interpretation of the

statute and understanding of the Government’s respon-

sibilities previously given by all other administrative and

judicial authorities. No provision is made for defending

a suit for an employee or looking behind facial validity

on penalty of double liability. For example, § 581.302

entitled “Notification of Obligor” provides:

(a) As soon as possible, but not later than fifteen

(15) calendar days after the date of valid service of

legal process, the agent designated to accept legal

process shall send to the obligor, at his or her duty

station or last known home address, written notice:

(2) Of the maximum garnishment limitations set

forth in § 581.402, with a request that the obligor

submit supporting affidavits or other documentation

necessary for determining the applicable percentage

limitation ;

12 The majority’s emphasis on what Colonel Morton said he was

told by military legal advisors confirms that the majority has recog-

nized a tort claim not a pay claim.

44a

(4) Of the percentage that would be deducted if

he/she fails to submit the documentation necessary

to enable the governmental entity to respond to the

legal process within the time limits set forth in

§ 581.303.

(b) The governmental entity may provide the

obligor with the following additional information:

(1) Copies of any other documents submitted in

support of the legal process:

(2) That the United States does not represent the

interests of the obligor in the pending legal pro-

ceedings:

(3) That the obligor may wish to consult legal

counsel regarding defenses to the legal process that

he or she may wish to assert; and

(4) That obligors in the uniformed services may

avail themselves of the protections provided in sec-

tions 520, 521, and 523 of the Soldiers’ and Sailors’

Civil Relief Act of 1940 (50 U.S. Code App. 501

et seq.).

§ 581.305(a) provides:

(a) The governmental entity shall comply with

legal process, except where the process cannot be

complied with because:

(1) It does not, on its face, conform to the laws

of the jurisdiction from which it was issued;

(6) Where notice is received that the obligor

45a

pliance with the legal process while an appeal is

pending.

On facts virtually identical to those here, but with the

further development that the state garnishment order

was subsequently set aside, the Comptroller General of

the United States rendered an opinion giving the follow-

ing interpretation to the provisions of 42 U.S.C. § 659(f) :

As is indicated above, when the Air Force re-

ceived the garnishment order, they reviewed it and

found it valid on its face and in conformity with the

Florida law. Sergeant Mathews has not shown that

that finding was incorrect. Instead, he argued that

the order was invalid because it was obtained by

fraud, and that he had not been properly served in

the original court action against him. As the Air

Force advised him, these were matters for him to

litigate in the courts and not for the Air Force to

decide. That is, they were not challenges to the

facial validity of the garnishment order. While the

order was set aside in 1980, it was valid at the

time payment was being made under it, and the

Government had a duty to comply with it until the

court modified it. There is no authority for reim-

bursement of the amounts withheld from Sergeant

Mathews’ pay, nor is there authority to reimburse

him for the legal and other expenses he claims he

incurred in having the order overturned.

Accordingly, the disallowance of the claim is sus-

ned.

In the Matter of Technical Sergeant Harry E. Mathews,

U.S.A.F., File No. B-203668 (Comp. Gen. Feb. 2, 1982)

(emphasis added).

46a

Although not determinative, the construction of a

statute by those charged with its administration is

entitled to great deference, particularly when that

interpretation has been followed consistently over a

long period of time.

To the same effect is the statement in United States v.

Hopkins, 427 U.S. 128, 127 (1976) (per curiam) :

[W]e think that the Court of Claims gave insuffi-

cient attention to applicable administrative regula-

tions when it undertook to decide the question.

It must also be added that the administrative inter-

pretation ignored here has had the blessing of the other

circuits.

In Jizmerjian v. Dept of Air Force, 457 F. Supp. 820

(D.S.C. 1978), affd, 607 F. 2d 1001 (4th Cir. 1979),

cert. denied, 444 U.S. 1082 (1980), in an action for re-

tirement pay paid by the Government pursuant to gar-

nishment in Arizona, the court questioned the basis for

the exercise of jurisdiction over the judgment-debtor in

the principal action but dismissed the suit against the

Government on the basis of sovereign immunity as set

forth in 42 U.S.C. § 659(f). The Arizona decree, like

the Alabama decree here, stated no precise basis for ju-

risdiction and the ensuing contempt decree stated only

that the Arizona court had “jurisdiction over the sub-

ject matter and the persons.” Jd. at 823. The Jizmerjian

court, nevertheless held :

Notwithstanding the able and articulate citation of

authority in plaintiff’s brief in opposition to defend-

ant’s motion (for summary judgment], this court is

persuaded that 42 U.S.C. §659(f) insulates the

United States from this suit.

Id. at 824. .

In Overman v. United States, 563 F.2d 1287, 1291

(8th Cir. 1977), the Eighth Circuit, construing 42 U.S.C.

§ 669(f), similarly held that the judgment-debtor could

47a

not enjoin the Government from honoring the garnish-

ment of his wages, stating: “Clearly, the defense of

sovereign immunity applies here.”

The majority decision will create chaos in how the

Government must operate in the thousands of garnish-

ments it faces daily. It must either pay twice, or where

permitted by a state court, litigate for any employee who

raises a “substantial claim of jurisdictional irregularity”

regardless of the regularity of the process “on its face.”

I would give 42 U.S.C. § 659(f) the same interpreta-

tion as the Comptroller General and the above courts.

Given the various forms which a garnishment process

can take and that garnishment may not even come from

the court that entered the basic judgment, any other in-

terpretation creates impossible administrative burdens.

No more is required than that whatever process is served

on the Government, the papers must be facially regular

and be issued by a court with garnishment jurisdiction.

There is no question here but that all process served on

the Government was regular and came from the proper

court under Alabama law. No violation of any regula-

tion occurred. The statute by its terms provides im-

munity to the sovereign and its employees.

Comity and Federalism

Suits against the Government resulting from gar-

nishment of federal pay have taken many forms, but

uniformly the result has been dismissal from the fed-

eral courts. The common theme found in each of these

cases is that the federal court must defer to state

remedies and procedures and not intrude into matters

primarily of state interest."*

18 In any collateral relief from a judgment, which is what Colonel

Morton seeks here, comity must be considered. (See Restatement

(Second) of Judgments §79 (1982).) Comity has even greater

significance between state and federal courts.

48a

The Eighth Circuit in Overman v. United States, 563

F.2d at 1292-938, succinctly defined the appropriate re-

lationship between federal and state courts:

There is, and ought to be, a continuing federal

policy to avoid handling domestic relations cases in

federal court in the absence of important concerns

of a constitutional dimension. See, e.g., Ohio ex rel.

Popovici v. Agler, 280 U.S. 379, 383, 50 S.Ct. 154,

74 L.Ed. 489 (1930); In re Burrus, 136 U.S. 586,

598-94, 10 S.Ct. 850, 34 L.Ed. 500 (1890); Hern-

stadt v. Hernstadt, 373 F.2d 316 (2d Cir. 1967),

Such eases touch state law and policy in a deep and

sensitive manner, and “[a]s a matter of policy and

comity, these local problems should be decided in

state courts.” Buechold v. Ortis, supra, 401 F.2d at

373. This court will not lightly presume that Con-

gress, when enacting § 659, meant for the federal

courts to take over the entire domain of domestic re-

lations law applicable to federal employees.® More-

over, we will not readily infer that Congress in-

tended to permit federal agencies to be dragged in

as defendants by any federal employee or spouse of

an employee who, unhappy with a prior state adjudi-

cation, seeks to contest it by suing the Government

over wage garnishment rather than challenging the

divorce decree in an appropriate state forum.

5 The federal courts have uniformly rejected jurisdiction of

garnishment proceedings whether the federal defendants have

sought removal or action has been commenced initially in fed-

eral court. Wilhelm v. United States Dept. of Air Force

Accounting, 418 F. Supp. 162 (S.D. Tex. 1976); Popple v.

United States, 416 F. Supp. 1227 (W.D. N.Y. 1976) ; Golightly

v. Golightly, 410 F. Supp. 861 (D. Neb. 1976); Morrison v.

Morrison, 408 F. Supp. 315 (N.D. Tex. 1976); West v. West,

402 F. Supp. 1189 (N.D. Ga. 1975); Bolling v. Howland, 398

F. Supp. 1818 (M.D. Tenn. 1975).

In Cunningham v. Department of Navy, 455 F. Supp.

1870 (D. Conn. 1978), the Connecticut district court dis-

49a

missed an action to enjoin the garnishment of the plain-

tiff’s Navy retirement pay pursuant to garnishment pro-

ceedings in a New York court on a Virginia divorce

decree. The plaintiff resided in Connecticut and had

never resided in New York. He attacked the exercise of

in personam jurisdiction over him by the New York

court in rendering the judgment against him on which

the garnishment order to the Navy was based. The court

expressed doubt about the constitutionality of the New

York long-arm statute as applied to Mr. Cunningham,

but concluded that it was without power to consider

plaintiff’s collateral attack on the New York judgment."

Noting the deep concerns with respect to comity ex-

pressed in Overman, and by the Supreme Court in

Sosna v. Iowa, 419 U.S. 393 (1975), the Cunningham

court held:

Similar considerations should apply in the case at

bar. Although plaintiff insists that his only claim is

against an agency of the federal government, his

extensive briefing on the New York matrimonial

long-arm statute, his vehement argument regarding

his non-liability for an alimony arrearage, and his

documenting of his ex-wife’s allegedly unconscion-

able behavior before the New York court belie the

narrowness of his claim. He implicates domestic

relations policies which are more properly within the

interest of the two states involved—either New York

or Virginia.

455 F. Supp. at 1372.

Other courts agree. In West v. West, 402 F. Supp.

at 1192, the court stated:

14 The majority incorrectly states that the plaintiff in Cunning-

ham did not attack lack of personal jurisdiction. This is precisely

what he did attack in arguing that the in personam jurisdiction

exercised by the New York court was unconstitutional. Colonel

Morton makes the identical attack here.

50a

At this point, the only question which would arise

in the case would concern the basis of the garnish-

ment, a domestic relations type of issue not appro-

priate for resolution by this court. See Barber v.

Barber, 62 U.S. (21 How.) 582, 16 L.Ed. 226

(1859).

In Jizmerjian v. Dept. Of Air Force, 457 F. Supp. at

824, the court advised:

[H]is only possible successful method of attack on

the Arizona alimony decree must take place in the

Arizona state courts.

In Popple v. United States, 416 F. Supp. at 1228, the dis-

trict court similarly deferred to the state:

Plaintiff’s real argument is that § 659 does not

give a state court jurisdiction over an individual not

resident in that state. This argument would prop-

erly be made in .e state court that purported to

garnish wages of an individual not resident in that

state.

In Garrett v. Hoffman, supra, Judge Luongo con-

strued 28 U.S.C. § 2283 (1970) as precluding federal

court action under similar circumstances:

A litigant may not defeat the policy underlying

§ 2283—the avoidance of “needless friction between

state and federal courts”—by framing the action as

one for a declaratory judgment rather than as one

15 § 2283. Stay of State court proceedings

A court of the United States may not grant an injunction to

stay proceedings in a State court except as expressly authorized

by Act of Congress, or where necessary in aid of its jurisdic-

tion, or to protect or effectuate its judgments.

See Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng’rs,

898 U.S. 281, 287 (1970) (“It is settled that the prohibition of

§ 2288 cannot be evaded by addressing the order to the parties or

prohibiting utilization of the results of a completed state proceed-

ing.”).

5la

for an injunction. E.g., Dresser Indus., Inc. V.

Insurance Co. of North America, 358 F. Supp. 327,

330 (N.D. Tex. 1973); Brooks v. Briley, 274 F.

Supp. 538, 558 (M.D. Tenn. 1967) (alternative hold-

ing) (three-judge court), aff'd per curiam, 391 U.S.

361, 88 S.Ct. 1671, 20 L.Ed.2d 647 (1968); Rocke-

feller v. First Nat’l Bank, 154 F. Supp. 122, 125

(S.D. Ga. 1957); C. Wright, Federal Courts § 47,

at 204-05 (3d ed. 1976).

The federal defendants here argue that this ac-

tion “is in essence an attempt by plaintiff to in-

validate and enjoin enforcement of the Florida

judgment by resort to federal court.” .... Plaintiff

.. . asserts, this lawsuit challenges only “the Fed-

eral defendants’ actions in failing to pay the plain-

tiff retired pay to which he is entitled.” ....I

cannot accept plaintiff’s contention. An examination

of the relief requested in his complaint makes it

abundantly clear that plaintiff is ultimately at-

tacking the Florida court’s writs of garnishment.

441 F. Supp. 1156-57 (footnotes omitted). In Wilhelm

v. U.S. Dept of Air Force Accounting, 418 F. Supp. 162

(S.D. Tex. 1976), the court similarly deferred to the

state, in declining to accept removal from the Texas

courts at the behest of the Government, stating:

The Court has concluded that no policy or purpose

will be served by construing § 1442(a)(1) in the

present context to permit the removal of these do-

mestic relations disputes to federal court. A broader

construction of this provision would effect a pro-

found alteration in the relationship between federal

and state courts.

Id. at 166.

No sound policy warrants the friction the majority

creates not only with Alabama, but with all other state

jurisdictions. In my view, the majority is in clear con-

flict with the decision of the Supreme Court in Trainor

52a

v. Hernandez, 431 U.S. 484 (1977), involving a consti-

tutional challenge to the Illinois attachment statute.

In dismissing the federal action, the court raised again

the vital consideration “that in a Union where both the

States and Federal Government are sovereign entities,

there are basic concerns of federalism which counsel

against interference by federal courts, through injunc-

tions or otherwise, with legitimate state functions, par-

ticularly with the operation of state courts.” Id. at 441

(emphasis added). That concern is not found in the

majority decision.**

The majority opinion would lead one to believe that

the support judgment was not a considered judgment of

the court. The majority refers to it as “x judgment by

default.” A default in the case was entered by the clerk.

However, before the judgment in the case was given,

Mrs. Morton was required to appear before the court to

establish her entitlement to a money judgment. The

decree in this case specifically states that “testimony” was

given by Mrs. Morton. To obtain service by mail on her

husband Mrs. Morton had correctly stated that he was

a nonresident. The majority assumes that the Alabama

court was either incompetent or ignored the fact of his

non-residence in deciding that Mrs. Morton was entitled

to a monetary award. Lightell v. Lightell, 394 So.2d

41 (Ala. Civ. App. 1981), cited by the majority, belies

the inference that Alabama courts are little concerned

with jurisdictional questions.

Jurisdiction of Alabama Court

The majority upholds the trial court’s conclusion that

Colonel Morton did not have sufficient contact with Ala-

bama to bring him within the jurisdiction of its courts.

%* Prior decisions of the U.S. Court of Claims have adhered to

that principle. Gunston v. United States, 602 F.2d 816, 819 n.4 (Ct.

Cl. 1979).

58a

There can be no dispute that, as the plaintiff, Colonel

Morton would have the burden of proof of facts sup-

porting that legal conclusion. The facts stated in the

majority opinion in his favor have been given a gloss

they do not deserve. Indeed, the record lacks vitality

due to the absence of the most knowledgeable adversary,

Mrs. Morton.’* The record consists solely of answers to

interrogatories and affidavits. There has in no sense

been the kind of trial where facts are developed through

testimony of witnesses subject to cross-examination.

Moreover, the Government has no personal knowledge

with which to counter Colonel Morton’s self-serving

statements.

However, even on this bland record, one can find no

basic unfairness under the standards of Kulko v. Su-

perior Court of California, supra, in the exercise of ju-

risdiction by the Alabama court since Colonel Morton had

purposely availed himself “of the privilege of conduct-

ing activities within the forum State, invoking the bene-

fits and protections of its laws.” Hanson v. Denckla, 357

U.S. 235 (1958).

In 1974, the year in which Colonel Morton was served

in the divorce proceedings, he was paying taxes to the

state of Alabama and claiming Alabama as his perm-

anent place of residence, not only on Air Force forms, but

on his 1973 and 1974 federal tax returns (filed 1974 and

1975), where a deduction could have been taken for

54a

Whether payment in Alabama also reduced his liability

for taxes in Virginia, where he had to file as an actual

resident, we do not know. None of his returns are in the

record despite the request of the trial judge for these

documents.

Moreover, he had used the state of Alabama in other

ways over the years in addition to those mentioned by

the majority. He registered one or more cars in Alabama

after he had left the state. It is also apparent that Colo-

nel Morton sought to invoke the law and courts of Ala-

bama. On September 15, 1973, in anticipation of sepa-

ration, Colonel Morton and his wife entered into a sepa-

ration agreement. At that time they were residing in

Virginia. It is apparent from this agreement that the

parties contemplated that, if divorce proceedings were

instituted, Alabama courts would be used.'* He moved his

wife and children to Alabama at Government expense by

asserting it was his permanent residence. At that time,

he avers, he hoped for a reconciliation.

After the Alabama court awarded the judgment for

alimony and child support in the same amounts as he had

been paying,’® Colonel Morton continued to make pay-

ments to Mrs. Morton until December 1976, specifying

on his check: “for divorce,” “for child support,” or simply

the number of the payment since the separation agree-

ment. His action indicates that he was generally satis-

fied with the decree and waived any objection to lack

of personal jurisdiction which in itself is ground for

finding the decree to be valid. Restatement, (Second) of

Judgments §§5 and 61 (1982). He married Ronnette

18 The settlement agreement incorporated the particular grounds

for divorce provided under Alabama law and was to serve as the

basis for division of property, alimony and child support, if the

parties were divorced on such grounds.

1® Morton had been paying $500 a month under the settlement

agreement then in effect since September 1973. The decree imposed

no greater burden than he had agreed to.

55a

Dreves in October 1975 in reliance on the Alabama

divorce.

During the pendency of the divorce proceedings in

Alabama (August 1974-August 1975), the parties were

actively litigating the settlement agreement in Virginia

from July 1974 until June 10, 1976. A letter from his

attorney, whom the majority nevertheless treats as un-

informed, advised him in August 1976 to change his

domicile from Alabama.

Whether Colonel Morton intended to make, or made,

Alaska his permanent domicile from the moment he trans-

ferred there in May 1974 is not proved by credible evi-

dence*® nor, in any event, of controlling significance.

Accepting his statement of intent as true cannot over-

come the facts of his relationship with Alabama which

he asserted as a taxpayer for the entirety of 1974. He

was, accordingly, subject to the jurisdiction of the Ala-

bama court in 1974 and to service by mail, since he could

not be physically served there, as permitted by the Ala-

bama court.

In view of the foregoing, I would reverse the judgment

of the Claims Court.

2° He did not pay taxes in Alaska until] 1976 (for 1975) and he

moved from there in 1977.

56a

_ APPENDIX

CODE OF ALABAMA—1975

ARTICLE 9.

GARNISHMENTS.

§ 6-6-370. “Garnishment” defined.

A “garnishment,” as employed in this article, is process

to reach and subject money or effects of a defendant. . .,

in a judgment . . . in the possession or under the control

of a third person, . . .; and such third person is called the

garnishee.

. * * * *

§ 6-6-3890. When process of garnishment obtainable.

The plaintiff . . . in any judgment on which execution

can issue may obtain process of garnishment as defined

in section 6-6-370 ....

§ 6-6-391. Affidavit of amount due plaintiff.

To obtain such writ of garnishment, the plaintiff, his

agent or attorney must make, before an officer authorized

to administer oaths, and file, with the clerk of the court

in which . . . the judgment was entered, an affidavit

stating the amount due from the defendant to the plain-

tiff, . . . that process of garnishment is believed to be

necessary to obtain satisfaction thereof and that the per-

son to be summoned as garnishee is believed to be charge-

able as garnishee in the case... .

§ 6-6-3938. Issuance and service of process.

Upon the filing of the affidavit . . ., the officer filing

the same must issue process of garnishment and a copy

thereof for each garnishee, to be served by the proper

57a

officer, requiring the garnishee to appear within 30 days

and file an answer, upon oath, whether, at the time of the

service of the garnishment, at the time of making his

answer or at any time intervening between the time of

serving the garnishment and making the answer he was

indebted to the defendant and whether he will not be

indebted in future to him by a contract then existing,

whether by a contract then existing he is liable to him

for the delivery of personal property or for the payment

of money which may be discharged by the delivery of per-

sonal property or which is payable in personal property

and whether he has not in his possession or under his

contro] money of effects belonging to the defendant.

o o * a *

§ 6-6-430. Filing of bond; discliftge of money or property

from garnishment; proceedings as if bond not

executed; judgment; discharge of garnishee.

(a) When garnishment has been issued ... upon a

judgment, the defendant may make and file with the

issuing the garnishment bond in such sum as the judge

judge or clerk issuing the garnishment bond in such sum

as the judge or clerk may prescribe, not exceeding twice

the amount of the plaintiff’s demand, payable to the plain-

tiff, with sufficiency surety, to be approved by such judge

or clerk, conditioned to pay the amount for which the

garnishee may be found indebted or liable to the defend-

ant and the cost of the garnishment. Thereupon, the

must answer, and, except as is otherwise provided in this

article, the case must proceed and be determined as if

such bond had not been executed.

58a

§ 6-6-450. Filing of answer; notice thereof; oral exami-

nation.

The garnishee must answer under oath according to

the terms of the garnishment; and, upon filing, the clerk or

§ 6-6-452. Payment of defendant’s money into court if

garnishee admits possession thereof.

If the garnishee admits the possession of money belong-

ing to the defendant, he must pay the same or so much

thereof as may be necessary to satisfy the plaintiff’s de

mand and costs into court to await the order of the court;

and, if he fails to make such payment, he is liable as if

he had admitted an indebtedness for the amount of such

money.

§ 6-6-453. Payment of indebtedness or liability to clerk;

effect thereof; ordering of deposit by court.

(a) When the garnishee admits indebtedness or liability

to the defendant and the defendant has not executed bond

for the dissolution of the garnishment, as provided in

division 4 of this article, the garnishee may, by order of

the court first had and obtained, pay the amount of such

indebtedness or liability or so much thereof as the court

may direct into the hands of the clerk, to be held subject

to the judgment in the case. Such payment has the effect

to discharge the garnishee from liability for the amount

so paid and interest subsequently accruing thereon... .

§ 6-6-454. Judgment where answer admits indebtedness

to defendant.

59a

amount of the judgment against the defendant, or, if more

or equal thereto, for the amount thereof... .

§ 6-6-457. Proceedings on failure to appear and answer.

If the garnishee fails to appear and answer, a condi-

tional judgment must be entered against him for the

amount of the plaintiff’s claim, as ascertained by his

judgment, to be made absolute unless he appears within

30 days after notice of the conditional judgment issued by

the clerk, to be served on him, as other process, by the

sheriff. If he fails to appear within the time required by

the notice served upon him or if two notices are returned

“not found” by the sheriff of the county in which the

garnishment was executed, the judgment must be made

absolute.

§ 6-6-459. Contest of answer by defendant.

The defendant, upon the coming in of the answer, may,

within 30 days after notice of the filing of the answer,

allege that the garnishee is indebted to him in a larger

sum than he has admitted, is otherwise liable to him on a

demand, the subject of garnishment, or that he holds

money or effects of the defendant not admitted in his

answer, which, being reduced to writing setting forth

particularly in what respect the answer is deficient and

being sworn to, an issue must thereupon be made up,

under the direction of the court, which must be tried by

a jury if required by either party; but such controversy

shall] not prevent the plaintiff from taking judgment upon

the answer of the garnishee.

§ 6-6-461. Effect of judgment for plaintiff as between

garnishee and defendant.

The judgment condemning the debt, demand, money or

effects to the satisfaction of the plaintiff’s demand is con-

60a

clusive as between the garnishee and the defendant to the

extent of such judgment, unless the defendant prosecutes

to effect an appeal from such judgment, which he may do

in his own name; and, if such judgment is stayed by bond

and the garnishee is notified of the fact, he is not per-

mitted to discharge such judgment pending the appeal.

§ 6-6-4683. Disposition of claims of other persons sug-

gested by garnishee.

(e) The interposition of these collateral issues [i.e.,

third party claimants] does not affect the jurisdiction of

the court obtained by . . . service of garnishment.

§ 6-6-464. Appeals.

An appeal lies to the supreme court or the court of

civil appeals, as the case may be, at the instance of the

plaintiff, the defendant, the garnishee or the contestant or

claimant.

6la

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

No. 290-77

ALLAN WAYNE MORTON, APPELLEE

Vv,

THE UNITED STATES, APPELLANT

ORDER

A suggestion for rehearing en banc and a petition for

reconsideration having been filed in this case,

UPON CONSIDERATION THEREOF, it is Ordered

by the court that the suggestion for rehearing en banc

and the petition be, and the same are hereby, Denied.

FOR THE COURT:

/s/ George A. Hutchinson

Clerk

Date—July 5, 1983

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APPENDIX C

IN THE UNITED STATES COURT OF CLAIMS

TRIAL DIVISION

No. 290-77

(Filed December 14, 1981)

ALLAN WAYNE MORTON

Vv.

THE UNITED STATES

Military pay; garnishment; domicile; “minimum

contacts”; jurisdiction of state court; legal

process.

OPINION *

WHITE, Senior Trial Judge: In the petition, as

amended, Allan Wayne Morton, a colonel in the U.S. Air

Force and usually referred to hereafter in the opinion as

“the plaintiff” or as “Colonel Morton,” seeks to recover

$18,136.54, representing amounts which the United States

Air Force allegedly deducted from his pay as a commis-

sioned officer on active duty and paid over to the Circuit

Court for the Tenth Judicial Circuit of Alabama pursuant

* The trial judge’s recommended decision and conclusion of law

are submitted in accordance with Rule 184(h).

63a

to writs of garnishment issued by that court. The writs

of garnishment were ancillary to a decree for divorce,

alimony, and child support, which the Alabama court

entered in a case filed against Colonel Morton by his then

wife, Patricia Kay Morton.

The plaintiff and Patricia Kay Morton were married in

1954 and separated in September 1973. At the time of

the separation, the Mortons had two minor sons, one about

161% years old and the other almost 13 years old.

During the 4-year period immediately preceding their

separation, the Mortons and their two minor sons lived in

a home which they had purchased in Loudoun County,

Virginia. One important factor in the separation was

that the plaintiff was notified in August 1973 that his

next Air Force assignment would be in the State of

Alaska, and Patricia Kay Morton was unwilling to accom-

pany the plaintiff to Alaska.

On September 15, 1973, the plaintiff and Patricia Kay

Morton, in anticipation of their imminent separation,

signed a document entitled “Separation Agreement.” This

agreement provided that the real and personal property

which the couple had accumulated was to be divided be-

tween them in a specified manner, with the plaintiff

receiving the Loudoun County house and paying off the

mortgage; that Patricia Kay Morton was to have the sole

custody and control of the two minor sons, with the

plaintiff to have reasonable visitation rights; and that

the plaintiff was to pay Patricia Kay Morton, as separate

maintenance payments that were to include support for

both children, the sum of $500 per month for 30 months

and, thereafter, $200 per month for 33 months. The

settlement agreement also contained the following provi-

sion (among others) :

* * * Any decree entered in any action for divorce

which may be requested by either party shall be

agreed to by the other party and shall be consistent

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with the terms of this agreement and the court is

requested to include this agreement in the decree.

* *#

On or about September 16, 1978, the plaintiff and

Patricia Kay Morton separated. Patricia Kay Morton

and the two young sons moved to Alabama, where she and

the plaintiff had married and had lived for the first 3

years of their married life. The plaintiff remained in

the Loudoun County house until May 1974, when he

moved to Alaska pursuant to the Air Force assignment

previously mentioned.

The separation agreement of September 15, 1973, was

later involved in a suit for specific performance which

the plaintiff filed (through counsel) in July 1974 against

Patricia Kay Morton in the Circuit Court of Loudoun

County, Virginia. The filing of the suit was triggered by

Patricia Kay Morton’s refusal to sign the deed convey-

ing the Loudoun County house to the purchasers with

whom the plaintiff had contracted to sell the house.

(Under the separation agreement, the house was to be

the property of the plaintiff.) In a decree which the

Loudoun County court entered on March 25, 1976, follow-

ing a trial, the separation agreement of September 15,

1973, was set aside, cancelled, and annulled. The plain-

tiff thereupon gav> notice of appeal to the Supreme Court

of Virginia. During the pendency of the appeal, the

plaintiff and Patricia Kay Morton settled all matters

involved in the Virginia case, including the setting aside

of the separation agreement. Pursuant to this settle-

ment Patricia Kay Morton received $12,500 in cash from

the sale of the Loudoun County house, and she was per-

mitted to keep all the property (furniture, china, silver,

crystal, other valuables collected by the Mortons over the

years, and an automobile) which she had taken with her

when she moved to Alabama from Virginia in September

1973. In view of the settlement, the Circuit Court of

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Loudoun County entered a final decree on June 10, 1976,

dismissing the cause.

In addition to paying Patricia Kay Morton the sum

of $12,500 in settlement of the Virginia litigation, the

plaintiff voluntarily continued to make child support pay-

ments, as he felt a moral obligation to do so. These child

support payments were at the rate of $500 per month

until the older child became 18 years of age, and then

at the reduced rate of $250 a month for the younger

child, until Patricia Kay Morton began garnishing the

plaintiff’s pay under circumstances described hereafter.

On August 28, 1974 (during the pendency of the case

in Loudon County, Virginia), Patricia Kay Morton filed

suit in the Circuit Court for the Tenth Judicial Circuit

of Alabama against Colonel Morton for divorce, for the

custody of the two minor children, together with support

and maintenance for the children, and for alimony.

Suit papers in the Alabama divorce proceeding were

sent by registered mail to Colonel Morton in Alaska.

He received them on September 17,’ 1974. No personal

service was made on Colonel Morton at any time or at

any place in connection with the Alabama divorce suit.

Colonel Morton did not make an appearance at any

time in the Alabama divorce suit.

Colonel Morton having failed, within the time per-

mitted, to plead or otherwise defend the suit, judgment

by default was entered against him on August 14, 1975,

by the Circuit Court for the Tenth Judicial Circuit of

Alabama. The judgment granted Patricia Kay Morton a

divorce from Colonel Morton, it awarded to her the cus-

tody of the two children, and it ordered Colonel Morton

to pay to Patricia Kay Morton the sum of $500 each

month “as alimony for * * * [Patricia Kay Morton]

and partial support and maintenance of the * * * minor

children.” (As of August 14, 1975, the older son was

already past the age of 18.)

On December 27, 1976, the Air Force Finance Officer

received by certified mail a writ of garnishment which

66a

had been issued by the Register of the Circuit Court for

the Tenth Judicial Circuit of Alabama as ancillary to

the decree of August 14, 1975. The writ sought to gar-

nish pay of the plaintiff in the amount of $4,100. It

was accompanied by a copy of the judgment in the Ala-

bama divorce case, which recited that Colonel Morton

was to pay $500 per month to Patricia Kay Morton “as

alimony for * * * [Patricia Kay Morton] and partial

support and maintenance for the * * * minor children.”

The writ was also accompanied by an affidavit executed

by Patricia Kay Morton, stating that the sum of $4,100

was due and owing “for ailmony and child support”

under the judgment dated August 14, 1975. (As of De-

cember 27, 1976, when these papers were received by

the Air Force Finance Office, the older Morton son was

not Only past ‘the age of 18, but he was also married.).

The Air Force promptly notified the plaintiff regard-

ing the receipt of the writ of garnishment. The plain-

tiff took the position before the Finance Office—on the

advice of an attorney in the Judge Advocate’s Off

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