UNITED STATES OF AMERICA, PETITIONER V. ALLAN WAYNE MORTON No. 83-916 In the Supreme Court of the United States October Term, 1983 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. Petition for a Writ of Certiorari to the United States Court of Appeals For the Federal Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutory and regulatory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-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 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 seq., and the pertinent parts of the implementing regulations, 5 C.F.R. Pt. 581, as amended by 48 Fed. Reg. 26279-26294 (1983), are set forth in Appendix D, infra, 98a-103a. QUESTION PRESENTED Whether, when the federal government, acting pursuant 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 reimbursement if it is later held that the state court lacked personal jurisdiction over the employee. STATEMENT 1. In 1974, Congress enacted 42 U.S.C. 659 (amended 1977), /1/ which partially waived the traditional sovereign immunity against writs garnishing the salaries of federal employees. /2/ 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, /3/ 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 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 /4/ that such service was insufficient. The Alabama court then entered a default judgment granting the divorce and ordering the payment of alimony and child support. To enforce that judgment, the court subsequently issued a writ of garnishment for respondent's federal pay. The Air Force Finance Office at Elmendorf 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 counsel, protested that his pay could not be garnished because he had not been served properly in the underlying state court proceeding. However, because the Alabama writ was "regular on its face," the Air Force honored the writ and began garnishing respondent'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 personam 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. 662(e)(1) as process "issued by * * * a court of competent jurisdiction," the court concluded (id. at 3a-11a) 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 Washington, 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, 11a-18a). /5/ 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 presumption 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 (id. at 21a-31a) 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, 33a-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 "substantial claim of jurisdictional irregularity" regardless 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 practical importance concerning the government's obligations when served with a facially valid writ of garnishment. The decision of the court of appeals holding that the government may be held liable in damages for honoring such a writ is contrary to the express 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 government 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 section and the regulations issued to carry out this section." 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 garnishment 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 government honors such a writ despite notice of "a claim of substantial jurisdictional irregularity," the government 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 underlying 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 omitted)) 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 presumption 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." 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 legislative history of the statute, or indeed from any other authority. Moreover, this rule cannot be reconciled either with the plain meaning of Section 659(f) or with the court of appeals' own interpretation of the term "legal 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 regarding the state court's in personam jurisdiction is immaterial. 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 competent jurisdiction," as the decision below held (App., infra, 8a-11a), then a garnishment writ issued by such a court is not "legal process" within the meaning 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 construed the phrase "court of competent jurisdiction" to mean personal, as well as subject matter, jurisdiction. "Competent jurisdiction" ususally means merely subject matter jurisdiction. See, e.g., 1 Restatement (Second) of Judgments 27-28 (1982) ("The term 'subject matter jurisdiction' * * * is also sometimes referred to as 'competence' or 'competency.'"); Restatement (Second) of Conflict of Laws Section 92 (1971); Restatement of Judgments Section 7 (1942); 2 J. Beale, The Conflict of Laws Section 432.3 at 1377 (1935) (The competence of a court means "jurisdiction to take up the matter under consideration."); 18 U.S.C. 2510(9) ("judge of competent jurisdiction" means judge with authority to enter a certain type of orders). This interpretation is also supported by the principle that a statute should be construed, where possible, so as to make its provisions consistent. See, e.g., Philbrook v. Glodgett, 421 U.S. 707, 713 (1975); Chemehuevi 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 Section 659(f)'s reference to "legal process regular on its face" with Section 662(e)(1)'s definition of "legal process," which requires issuance by "a court of competent jurisdiction." Unlike the lack of personal jurisdiction, the absence of subject matter jurisdiction is almost always detectable from the face of the process. /6/ Moreover, as the dissent below pointed out (App., infra, 21a-31a), the court of appeals' interpretation subjects the federal government to greater liability and administrative burdens than are borne by private 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 effects to the satisfaction of the plaintiff's demand is conclusive as between the garnishee and the defendant to the extent of such judgment, unless the defendant prosecutes to effect an appeal from such judgment * * *" (Ala. Code Section 6-6-461 (1977)). Cal. Civ. Proc. Code Section 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 provisions of this chapter (on garnishment) is not subject to any civil or criminal liability for such compliance unless the employer has actively participated in a fraud." Similarly, N.Y. Civ. Prac. Law Section 5209 (McKinney 1978) states: A person who, pursuant to an execution or order, 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 obligation to the judgment debtor to the extent of the payment or delivery. See also Ariz. Rev. Stat. Ann. Section 12-1592 (1982); Ark. Stat. Ann. Section 31-146 (repl. 1962); Ill. Ann. Stat. ch. 62, Section 44 (Smith-Hurd 1972); Ind. Code Ann. Section 34-1-11-29 (Burns 1973); Iowa Code Ann. Section 642.18 (West 1950); Md. Cts. & Jud. Proc. Code Ann. Section 11-601(a) (repl. 1980); Mass. Ann. Laws, ch. 246, Section 43 (Michie/Law Coop. 1974); Mo. Ann. Stat. Section 525.070 (Vernon 1953); N.H. Rev. Stat. Ann. Section 512.28 (repl. 1968); N.J. Stat. Ann. Section 2A: 17-53 (West 1952); N.D. Cent. Code Section 32-09.1-15 (repl. supp. 1983); Ohio Rev. Code Ann. Section 2716.21(D) (Page supp. 1982); Okla. Stat. Ann. tit. 12, Section 1233 (West 1961); Tenn. Code Ann. Section 29-7-117 (repl. 1980); Wash. Rev. Code Ann. Section 7.32.300 (1961). It seems quite unlikely that Congress intended to treat the government more harshly than private garnishees. Not only has the federal government traditionally been immune altogether from garnishment writs, but the administrative burden on the government, by far the nation's largest employer, would far exceed that of any private garnishee. /7/ 2. The court of appeals also gave insufficient deference 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, 380-381 (1969); Udall v. Tallman, 380 U.S. 1, 16 (1965). The Comptroller General has held that a military employee whose salary is garnished pursuant to a facially valid writ is not entitled to reimbursement even if the underlying judgment is set aside for lack of personal jurisdiction. /8/ And the implementing regulations issued by the Office of Personnel Management (see 5 C.F.R. Pt. 581), as amended by 48 Fed. Reg. 26279-26294 (1983)) provide that the federal government must comply with a garnishment writ except in certain enumerated circumstances, such as where there are jurisdictional defects apparent "on its face" or where the garnishment is not for alimony or child support (5 C.F.R. 581.305, as amended by 48 Fed. Reg. 26280-26281 (1983)). Doubts about in personam jurisdiction over the defendant/ employee in the underlying divorce proceedings are not mentioned as a ground for nonpayment. /9/ 3. The court of appeals' decision conflicts with Calhoun v. United States, 557 F.2d 401 (4th Cir.), cert. denied, 434 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 personal jurisdiction over him (557 F.2d at 402). Rejecting that argument, the Fourth Circuit observed (ibid.) that the divorce judgment was "facially valid" and added: Calhoun is assuredly in a better position to effectively 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 Calhoun's obligation to attack the judgment if he wished to avoid the deduction from his pay. /10/ 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 concluded (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 immunity to one narrow class of actions: enforcement of garnishment writs issued by state courts." /11/ The decision below also conflicts with the District of Columbia Circuit's recent decision in Rush v. United States Agency for International Development, No. 82-1853 (Apr. 26, 1983) (App., infra, 104a-107a). /12/ 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 applicable regulations. Thus, at least to the extent that Rush seeks reimbursement of funds previously garnished, he is barred by the statute from litigating those claims against AID or its administrator. 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 garnishment); Jizmerjian v. Department of the Air Force, 457 F. Supp. 820 (D.S.C. 1978), aff'd, 607 F.2d 1001 (4th Cir. 1979), cert. denied, 444 U.S. 1082 (1980); Cunningham v. Department of the Navy, 455 F. Supp. 1370 (D. Conn. 1978); Popple 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 expressed 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 children have the right to receive support from their fathers. * * * (E)nforcement of child support obligation is not an area of jurisprudence of which this country can be proud." Before the federal garnishment statute was enacted, there were two chief ways to enforce a child support or alimony award against a federal employee or serviceman (hereinafter "husband") living in another 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 litigate 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 payment, 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. /13/ Because of these and other problems, the Uniform Reciprocal Enforcement of Support Act (URESA) (9 U.L.A. 643 (1979)) was promulgated in 1950. URESA or compatible legislation has now been adopted by every state. /14/ Under URESA, the wife or children may file a complaint in their state of residence (Sections 13, 14). If the court finds that the complaint "sets forth facts from which it may be determined that the (husband) owes a duty of support," the court sends the complaint to the appropriate court in the husband's state (Section 17), where the local prosecutor represents the wife (Section 18) and seeks the issuance of a support order (Section 23). This procedure also proved ineffective. The Senate committee that added the garnishment statute observed (S. Rep. 1356, 93d Cong., 2d Sess. 43 (1974)): "Thousands of unserved child support warrants pile up in many jurisdictions and often traffic cases have a higher priority." The committee noted (id. at 43-44) 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 effective procedures for enforcing support awards, and the committee listed as among the principal flaws in procedures then available "the statutory barrier to collecting from military personnel and Federal employees, and the low priority given child support investigations by the understaffed district attorneys offices" (id. at 44; see also 120 Cong. Rec. 40323-40324 (1974). During the House debates on the garnishment 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 garnishment 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 garnishment writs, the committee stated (id. at 18): We recognize this is a drastic departure from anything we have had in the past; but we belive it is wrong for the United States to protect retired 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 particular 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. Ullman). The court of appeals' decision thwarts this carefully crafted scheme and frustrates Congress's clear intent concerning the enforcement of the alimony and child support obligations of federal and military employees and retirees. It also creates an unmanageable 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 decision on the question whether notice of a mere "nonfrivolous claim" would not also suffice (id. at 17a, n.12). We have been informed that the salaries of more than 13,000 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 employees 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 transferred, asserting a colorable claim of lack of in personam jurisdiction will not be difficult. As Judge Nies noted in dissent (App., infra, 42a-43a), "(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 supervisor 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 ascertain the relevant facts. If they rely on employees' allegations, employees will have little trouble establishing "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 jurisdictional 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 government to an extremely high standard. The government may not safely rely upon a state court's determination 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 despite 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 difficulty 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 garnishment writs. This will lead to needless friction between the federal government and state courts (see App., infra, 25a, 47a-52a (Nies, J., dissenting)), /15/ 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 /1/ Section 659 was originally enacted as part of the Social Services Amendments of 1974, Pub. L. No. 93-647, Section 101(a), 88 Stat. 2357. /2/ See FHA v. Burr, 309 U.S. 242, 244 (1940); Buchanan v. Alexander, 45 U.S. (4 How.) 19, 20 (1846). /3/ Tax Reduction and Simplification Act of 1977, Pub. L. No. 95-30, Title V, Section 501(a), 91 Stat. 157. /4/ Respondent was advised by an officer of the Air Force Judge Advocate General's office (App., infra, 3a-4a). /5/ 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 obligations" under Section 659(a), which waives sovereign immunity for garnishment writs "for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments" (emphasis added). /6/ 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 jurisdiction 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 support 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' interpretation of the phrase "legal obligation" would seemingly exclude judgments suffering any legal defect. /7/ We acknowledge that there is authority for the proposition that "a valid judgment against the defendant is essential to the validity of a judgment against the garnishee" (App., infra, 11a n.5). See Annot., 49 A.L.R. 1411 (1927); 6 Am. Jur. 2d Attachment and Garnishment Section 400 (1963) and cases cited; 38 C.J.S. Garnishment Sections 244 and 293(e) (1943) and cases cited. Many of these cases, however, appear to have been overruled by statutory enactments, and most concern prejudgment garnishment, where the garnishee had the duty to assert certain defenses that would be available to the defendant, including jurisdictional defects (see Sniadach v. Family Finance Corp., 395 U.S. 337, 344 (1969) (Black, J., dissenting). This obligation was important in pre-judgment garnishment because it was not always necessary for the plaintiff to give the defendant notice of the garnishment (see Sniadach, supra (declaring procedure unconstitutional)). /8/ In re Technical Sergeant Harry E. Mathews, USAF, File No. B-203668 (Comp. Gen. Dec. Feb. 2. 1982) (App., infra, 109a-112a). /9/ See also 5 C.F.R. 581.305(a)(6)(f), as added by 48 Fed. Reg. 26280 (1983) (App., infra, 102a-103a). /10/ 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 case. Section 659(f), however, immunizes the government from liability for honoring certain writs. We fail to see how Section 659(f) can possibly be interpreted as expanding the government's liability. Thus, Section 659(f) could not have changed the result in Calhoun. This conclusion is supported by the Senate report on the 1977 amendments to the garnishment statute, which stated (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 modifications, 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-31a), "(t)he Calhoun court did not exonerate 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 garnishment process." See also id. at 30a n.7. /11/ 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 distinguish 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-11a). However, since the decision in Overman was based on sovereign immunity, this distinction does not seem relevant to Overman's analysis. /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 Federal Circuit would reach the same result in Rush as did the District of Columbia Circuit. /13/ See Note, Counterclaims and Defenses under the Uniform Reciprocal Enforcement of Support Act, 15 Ga. L. Rev. 143, 144 (1980) (hereinafter cited as Note, Counterclaims and Defenses); Note, Interstate Enforcement of Support Obligations through Long Arm Statutes and URESA, 18 J. Family Law 537 (1979-1980). /14/ 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 Sections 30-43 (McKinney 1977)). /15/ 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 person." Post-judgment garnishment procedures frequently 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, Section 39(b) (Smith-Hurd 1972); Ohio Rev. Code Ann. Section 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 Sections 6-6-393, 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 defendant * * *" (id. at Section 6-6-454). Thus, as Judge Nies observed (App., infra, 25a), "(t)he United States could no more 'refuse to honor' the writ summoning the Government to the Alabama court than it could 'refuse to honor' the summons by the Court of Claims." Appendix Omitted