APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Seitz, Chief Judge, Weis and Garth, Circuit Judges. Weis, Circuit Judge, concurring.
For the sixth time*fn1 in the Courts of Appeal, and for no less than the nineteenth*fn2 time in the District Courts, the government has sought to litigate the immunity of the United States Postal Service (USPS) to state garnishment proceedings. As Judge Weis discusses in his concurring opinion, Circuit-shopping by the government in quest of a favorable decision should not be allowed. However, much as we may agree with the views expressed in the concurring opinions of Judge Weis in this case and Judge Lay in May Department Stores Company v. Williamson, 549 F.2d 1147, 1149-50 (8th Cir. 1977) (Lay, J., concurring), we nevertheless prefer to consider the issue presented on its merits, and now hold that the Postal Service is not immune to garnishment. Accordingly, we affirm the order of the district court which granted Goodman's motion for summary judgment and denied USPS's motion to dismiss on the ground of sovereign immunity.
In October 1975, plaintiff Goodman's Furniture Company obtained a judgment for $545.56 in the Hudson County District Court of New Jersey against one, Thomas Straub, who was employed by USPS. Thereafter an execution issued against Straub's wages, requiring the Postal Service to deduct a percentage of Straub's weekly salary until the judgment was satisfied.
USPS refused to commence garnishment, claiming that as an arm of the sovereign it was immune from such process. Goodman's then filed suit in state court against the Postal Service pursuant to N.J.S. 2A:17-54*fn3 which action was thereafter removed by USPS to the United States District Court for the District of New Jersey.
After removal, USPS moved to dismiss the action asserting sovereign immunity and Goodman's in turn moved for summary judgment. On August 13, 1976 in an unpublished opinion, the district court after correctly noting that this Circuit had yet to decide whether USPS was protected from garnishment proceedings by the doctrine of sovereign immunity, considered the authorities in other districts and circuits and concluded that with respect to garnishment proceedings, the Postal Service stands in no different position than a private employer. Accordingly on September 7, 1976, the district court entered its order denying USPS's motion to dismiss and granting summary judgment in favor of Goodman's. That order also provided that USPS commence garnishment of Straub's wages pursuant to the order of the Hudson County District Court.*fn4 USPS's appeal followed.
The district court in holding that sovereign immunity did not protect the Postal Service from state garnishment proceedings cited to the Seventh Circuit's opinion in Standard Oil Division, American Oil Company v. Starks, 528 F.2d 201 (7th Cir. 1975). Standard Oil's analysis of the issue which was before that Court and which now confronts us, started with an examination of three Supreme Court opinions: Keifer & Keifer v. R.F.C., 306 U.S. 381, 83 L. Ed. 784, 59 S. Ct. 516 (1939), F.H.A. v. Burr, 309 U.S. 242, 84 L. Ed. 724, 60 S. Ct. 488 (1940), and R.F.C. v. Menihan Corp., 312 U.S. 81, 85 L. Ed. 595, 61 S. Ct. 485 (1941). The teaching distilled from these authorities, that Congress could . . . "by the laws creating independent agencies also waive whatever claim those agencies might make to the sovereign immunity enjoyed by the United States Government." 528 F.2d at 202, was then related by the courts in Standard Oil to the Postal Reorganization Act*fn5 and to the broad powers granted under that Act to USPS. The Seventh Circuit concluded that Congress had not extended sovereign immunity to USPS and that USPS's "sue and be sued" provision*fn6 did "embrace garnishment proceedings against the USPS,"*fn7 and could not "support the maintenance of sovereign immunity in . . . garnishment proceedings."*fn8
Standard Oil did not accept USPS's arguments that: (1) USPS is immune from suit because it has not been "launched into the commercial world" and because it [USPS] has been assigned an exclusively governmental function; and (2) to subject the Postal Service to garnishment proceedings for the possible debts of thousands of employees would be to impose a "grave interference with U.S. Postal Service's functions."*fn9 We too reject these arguments for much the same reasons that they were rejected by the Seventh Circuit.
The Seventh Circuit's conclusion that USPS was not immune from garnishment proceedings, was soon followed by the Eighth Circuit in May Department Stores Company v. Williamson, supra. Both Standard Oil and May Department Stores Company, after careful consideration of the contentions marshalled by USPS, answered the arguments tendered and each has concluded that garnishment against USPS is available to judgment creditors. We can add nothing to those discussions. Here, the Postal Service has cited us to no different arguments, no different legislative history, and to no different Congressional intent than the arguments, history and intent which it had previously urged upon our two sister circuits. Just as the Postal Service's contentions failed to impress those courts, so are we unimpressed by their restatement. We therefore join with the Seventh and Eighth Circuits in finding "no basis in law or policy for blocking [Goodman's] garnishment proceeding."*fn10 In so doing, we observe that Judge Lay's box score as reported in May Department Stores Company v. Williamson, 549 F.2d at 1150, and carried as "two and zero" (Standard Oil and May Department Stores), may now be updated to "three and zero."
The order of the district court, granting Goodman's motion for summary judgment and denying the Postal Service's motion to dismiss on the ground of ...