The federal defendants here argue that this action "is in essence an attempt by plaintiff to invalidate and enjoin enforcement of the Florida judgment by resort to federal court." Government's Memorandum of Law at 4. Plaintiff responds to this by stating that he "does not here question the validity of the Florida judgment, or the garnishment proceedings." Plaintiff's Memorandum of Law at 8. Rather, he asserts, this lawsuit challenges only "the Federal defendants' actions in failing to pay the plaintiff retired pay to which he is entitled." Id. I cannot accept plaintiff's contention. An examination of the relief requested in his complaint makes it abundantly clear that plaintiff is ultimately attacking the Florida court's writs of garnishment. To begin with, plaintiff explicitly seeks a declaration "that the garnishment issued by the Florida court in the present case is invalid." Prayer for Relief, supra, para. E. Furthermore, a ruling in plaintiff's favor on the merits of his constitutional argument would entail the conclusion that the United States' consent to suit, expressed in 42 U.S.C. § 659, is invalid, and that the Florida writs could not reach plaintiff's retired pay while the United States still held the funds. See generally Williams v. Williams, 427 F. Supp. 557, 558 (D. Md. 1976); Applegate v. Applegate, 39 F. Supp. 887, 889-90 (E.D. Va. 1941); S. Rep. No. 93-1356, 93d Cong., 2d Sess. , reprinted in  U.S. Code Cong. & Admin. News 8133, 8157. Similarly, a declaration that § 659 is constitutional but that the garnishment process in this case is governed by Pennsylvania law would also mean that the Florida writs could not reach plaintiff's retired pay. See 42 P.S. § 886 (1966); Pa. R. Civ. P. 1271.
Plaintiff's request for a declaration that § 659 authorizes neither garnishment for attorney's fees
nor garnishment for alimony arrearages that arose prior to the enactment of § 659
presents a slightly different problem. Because plaintiff's retired pay accrues monthly and must be garnished by a new writ each month,
a declaratory judgment that some portion of the debt reduced to judgment could not be garnished would not diminish the force of either existing writ. Such a judgment would, however, create the potential for conflict should the Florida court later issue a writ that, when served, would raise the total amount garnished above the amount that, by the terms of the judgment, is authorized in this case under § 659. The avoidance of such potential conflicts is at least an implicit purpose of § 2283. See H. J. Heinz Co. v. Owens, 189 F.2d 505, 509 (9th Cir. 1951), cert. denied, 342 U.S. 905, 96 L. Ed. 677, 72 S. Ct. 294 (1952). Finally, the requested relief by way of injunction and writ of mandamus would also flout the prohibition of § 2283, inasmuch as a Florida writ, once served on the federal defendants, renders them liable to defendant Dierdre Garrett for plaintiff's accrued retired pay for the month in question. Fla. Stat. Ann. § 77.06(1) (West Supp. 1977); 3 Florida Jurisprudence § 112, at 277-78 (1955). Thus, an order requiring the federal defendants to remit plaintiff's retired pay to him would conflict with any writs of garnishment subsequently issued by the Florida court, and, if applicable retrospectively, would vitiate the earlier writs with which the federal defendants have already complied. In short, because the relief sought in this action would effectively set aside the Florida court's writs of garnishment, that relief is barred by § 2283. Accord, Wilson v. Withington, No. 76-61 (M.D. Pa. Jan. 13, 1977).
Several other arguments require brief discussion. First, the holding in Lynch v. Household Finance Corp., 405 U.S. 538, 31 L. Ed. 2d 424, 92 S. Ct. 1113 (1972), that § 2283 did not bar federal injunctive relief against the operation of the Connecticut garnishment statutes, may be thought to control this case. Lynch, however, dealt with Connecticut's distinctive pre-judgment garnishment procedure, which authorized a creditor's attorney "to garnish or attach property without any participation by a judge or clerk of the court." 405 U.S. at 555. The Court held that "[because] of the extrajudicial nature of Connecticut garnishment," an injunction restraining application of the state statute would not affect "proceedings in a State court" within the meaning of § 2283. Id. at 556. The writs involved in this case, however, were issued by a clerk of the Florida court pursuant to that state's post-judgment garnishment procedure. See generally Fla. Stat. Ann. § 77.03 (West Supp. 1977). Moreover, the blank form used for the writs requires the garnishee to file his answer with the court. Finally, Florida law provides: "The court to which a garnishment is returnable shall always be open for hearing motions to dissolve the garnishment." Fla. Stat. Ann. § 77.07(1) (West Supp. 1977). Because Lynch was explicitly premised on the "extrajudicial nature" of the Connecticut procedure, and because the Florida post-judgment procedure followed here is readily distinguishable from the Connecticut procedure involved in Lynch, I conclude that Lynch is not controlling here.
See also Trainor v. Hernandez, 431 U.S. 434, 445, 45 U.S.L.W. 4535, 4538, 52 L. Ed. 2d 486, 97 S. Ct. 1911 n.9 (1977) (Illinois attachment procedure a pending court proceeding within the Younger doctrine; Lynch distinguished).
Furthermore, plaintiff may not bypass § 2283 on the ground that he is attacking a state court writ rather than a state court judgment. The "strong and consistently recognized national policy to avoid . . . needless conflict or friction between state and federal courts" would be seriously undermined if the federal courts were empowered to interfere with the state courts' writs and other forms of process. See Lynch v. Household Finance Corp., 405 U.S. 538, 559-60, 31 L. Ed. 2d 424, 92 S. Ct. 1113 (1972) (White, J., dissenting). As interpreted by the Supreme Court, "proceedings in a State court" as used in § 2283 "includes all steps taken or which may be taken in the state court or by its officers from the institution to the close of the final process." Hill v. Martin, 296 U.S. 393, 403, 80 L. Ed. 293, 56 S. Ct. 278 (1935) (footnote omitted). I hold that the Florida writs of garnishment involved here fall squarely within this interpretation of § 2283. But cf. Lynch v. Household Finance Corp., 405 U.S. 538, 31 L. Ed. 2d 424, 92 S. Ct. 1113 (1972); n.13, supra.
There remain to be considered the three exceptions contained in § 2283. The Declaratory Judgment Act does not come within the "expressly authorized" exception. Maryland Cas. Co. v. Pacific Coal & Gas Co., 312 U.S. 270, 274, 61 S. Ct. 510, 85 L. Ed. 826 (1941) (by implication); Ballard v. Mutual Life Ins. Co., 109 F.2d 388, 390 (5th Cir. 1940); Rosenstiel v. Rosenstiel, 278 F. Supp. 794, 801 (S.D.N.Y. 1967); 1A Moore's Federal Practice P 0.220, at 2604 n.11 (2d ed. 1948). Contra, Pacific Fire Ins. Co. v. C. C. Anderson Co., 42 F. Supp. 917, 920 (D. Idaho 1942). See generally Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 97 S. Ct. 2881, 2886-92, 53 L. Ed. 2d 1009, 45 U.S.L.W. 4971, 4973-76 (1977); Mitchum v. Foster, 407 U.S. 225, 233-38, 32 L. Ed. 2d 705, 92 S. Ct. 2151 (1972). The relief sought by plaintiff is not "necessary in aid of" this court's jurisdiction, even assuming arguendo that the Florida court's writs served to deprive plaintiff of a constitutional right. As the Supreme Court stated in Atlantic Coast Line R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 296, 26 L. Ed. 2d 234, 90 S. Ct. 1739 (1970):
"Nor was an injunction necessary because the state court may have taken action which the federal court was certain was improper . . . Again, lower federal courts possess no power whatever to sit in direct review of state court decisions. If the union was adversely affected by the state court's decision, it was free to seek vindication of its federal right in the Florida appellate courts and ultimately, if necessary, in this Court."
See also Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 97 S. Ct. 2881, 2892-93, 53 L. Ed. 2d 1009, 45 U.S.L.W. 4971, 4976-77 (1977). Much the same may be said as to plaintiff Garrett.
Finally, § 2283 excepts injunctions issued "to protect or effectuate [the federal court's] judgments." Plaintiff would have me decide the merits of this case pursuant to the Declaratory Judgment Act and then issue an injunction to "protect or effectuate" those judgments. I decline to engage in the "circuitous nullification of Section 2283 through resort to the device of a declaratory judgment." Hartsville Theatres, Inc. v. Fox, 324 F. Supp. 258 (D.S.C. 1971). See also Samuels v. Mackell, 401 U.S. 66, 72, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971) (injunction issued to "protect or effectuate" prior declaratory judgment would be "clearly improper interference" with pending criminal proceeding). A litigant's prayer for declaratory relief should ordinarily be assessed under § 2283 on the understanding that if such relief is granted, an injunction may then be requested. Where, as here, the declaratory relief itself would violate § 2283, plaintiff's two-step argument presents little difficulty. Harder questions may arise in a case where only the subsequent injunction would run afoul of the policy expressed in § 2283, but I decide only the case before me.
Although the relief sought by plaintiff is barred by § 2283, it does not follow that this court lacks jurisdiction over the action. See, e.g., Hilliard v. Commonwealth of Pennsylvania, 438 F.2d 92, 94 (3d Cir. 1971); Golden Dawn Shops, Inc. v. Department of HUD, 333 F. Supp. 874, 877 n.2 (E.D. Pa. 1971). The Anti-Injunction Act is not jurisdictional,
notwithstanding the occasional decisions to the contrary.
Were I faced with a motion to dismiss the complaint for failure to state a claim upon which relief may be granted, Fed. R. Civ. P. 12(b)(6), I would in all likelihood grant the motion. Such a motion is not before me, however, and as § 2283 does not deprive this court of jurisdiction over the action, I must deny the federal defendants' motion to dismiss the complaint.
This 2nd day of November, 1977, it is
ORDERED that the Motion of the federal defendants, Martin Hoffman, et al, to dismiss the complaint for lack of subject-matter jurisdiction is DENIED.
ALFRED L. LUONGO / J.