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GARRETT v. HOFFMAN

November 2, 1977

JAMES M. GARRETT
v.
MARTIN HOFFMAN, Secretary of the United States Army; WILLIAM ANDREWS, Major General, Commander of the U.S. Army Finance and Accounting Center, R. J. WITHINGTON, Director, Retired Pay Operations, U.S. Army Finance and Accounting Center; and DEIRDRE STAER GARRETT



The opinion of the court was delivered by: LUONGO

 This case presents a constitutional challenge to 42 U.S.C. § 659 (Supp. V 1975), *fn1" which authorizes the garnishment of wages or other benefits due from the United States in order to satisfy "legal obligations to provide child support or make alimony payments." Plaintiff, James M. Garrett, a retired officer of the United States Army, brought this action against the Secretary of the Army and other Army officials (hereinafter referred to as "the federal defendants"), and against Deirdre S. Garrett, his ex-wife. The federal defendants have moved to dismiss the complaint for want of subject-matter jurisdiction. For the reasons hereafter stated, I conclude that dismissal of the complaint on the ground asserted is not warranted.

 The essential facts of this case are undisputed. James Garrett married Deirdre in 1945. In 1960, an Alabama court dissolved the marriage and awarded Deirdre alimony of two hundred dollars per month. In 1976 Deirdre, then a resident of Florida, brought an action against James in the Circuit Court of Pinellas County, Florida, which resulted in a default judgment that (1) established the Alabama divorce decree as a judgment of the Florida court, (2) ordered James to pay alimony of two hundred dollars per month to Deirdre, (3) found James to be in arrears on alimony payments of $18,240, and (4) ordered execution on the sum in arrears. The Florida court also issued a writ of garnishment *fn2" addressed to the United States Army. See 42 U.S.C. § 659 (Supp. V 1975).

 By reason of his years of service in the United States Army and in the United States Army Reserves, James Garrett receives "retired pay" of $477.54 per month. See 10 U.S.C. § 3889 (1970). On or about December 19, 1976, James received a letter from one of the federal defendants, R. J. Withington, Director of Retired Pay Operations for the Army, stating that James' retired pay for the month of December 1976 had been garnished by Deirdre and would be paid over to her, in care of her attorneys, pursuant to the writ of garnishment. James' retired pay for that month was in fact paid over in this manner. The letter also stated: "Future retired pay may be subject to collection if additional valid writs of garnishment are received." It appears from the record that James' retirement pay for March, 1977, has been or will be paid over to Deirdre pursuant to a second writ of garnishment.

  James Garrett filed the complaint in this case on January 14, 1977, seeking declaratory and injunctive relief. Jurisdiction is based on general federal question jurisdiction, 28 U.S.C. § 1331(a), and on the Mandamus Act, 28 U.S.C. § 1361. Plaintiff contends that 42 U.S.C. § 659, which waived the United States' sovereign immunity and allowed writs of garnishment to reach funds held by the United States, is unconstitutional as applied to him. Plaintiff resides in Pennsylvania, while his former wife, Deirdre, resides in Florida, and the Army's Finance and Accounting Center is located in Indiana. The challenged statute is silent as to where a multistate garnishment proceeding such as this one shall be deemed to take place and as to what law shall govern such a proceeding. In this case, the Florida court garnished all of James' retired pay for two months, although under Pennsylvania law that pay apparently would not have been subject to garnishment. See 42 P.S. § 886 (1966); Pa. R. Civ. P. 1271. Plaintiff argues that because the statute fails to address the choice-of-law problems created by multistate garnishment, it has deprived him of a federal entitlement in a manner so arbitrary as to violate the due process clause of the Fifth Amendment. Without further comment on this argument, I note only that it has sufficient substance to afford a basis for § 1331(a) jurisdiction as a claim that "arises under" the Constitution. See generally Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 822, 6 L. Ed. 204 (1824); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 379, 5 L. Ed. 257 (1821). See also Popple v. United States, 416 F. Supp. 1227 (S.D.N.Y. 1976).

 Because the ultimate disposition of this motion turns on the nature of the relief requested, I have set out in full plaintiff's prayer for relief. References therein to " 42 U.S.C. § 459" should be understood to refer to § 459 of the Social Security Act, 42 U.S.C. § 659 (Supp. V 1975), which is the provision at issue here.

 " RELIEF REQUESTED

 WHEREFORE, Plaintiff respectfully prays that this Court:

 
A. Assume jurisdiction in this case.
 
B. After notice and hearing, issue a preliminary and permanent injunction, enjoining Defendants Martin Hoffman, William Andrews and R. J. Withington, from reducing Plaintiff's retired pay pursuant to Title 42 U.S.C. § 459.
 
C. Declare Title 42 U.S.C. § 459 as unconstitutionally in violation of the Plaintiff's right to due process of law as guaranteed by the Fifth Amendment of the United States Constitution.
 
D. Declare that the garnishment taking place in the present case is taking place in Pennsylvania and that the exemptions from execution provided by Pennsylvania law should apply.
 
E. Declare that the garnishment issued by the Florida Court in the present case is invalid, and that Title 42 U.S.C. § 459 requires execution to issue in the state ...

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