B-200232, SEP 30, 1980

B-200232, SEP 30, 1980

SUBJECT:

IRENE T. TANK V. MAJOR GENERAL GEORGE LYNCH, ET AL., U.S.D.C. S.D. TEXAS, CIVIL ACTION NO. H-80-1776

ALICE DANIEL, DEPARTMENT OF JUSTICE:

ENCLOSED IS A SUMMONS AND AN APPLICATION FOR A WRIT OF MANDAMUS CONCERNING THE ABOVE-ENTITLED MATTER WHICH WE RECEIVED IN THE MAIL ON AUGUST 29, 1980. ELMER B. STAATS, WHO HEADS OUR OFFICE IN HIS POSITION AS COMPTROLLER GENERAL OF THE UNITED STATES, IS NAMED AS ONE OF THE DEFENDANTS. PURSUANT TO 28 U.S.C. 516, WE ARE REQUESTING THAT THE DEPARTMENT OF JUSTICE REPRESENT MR. STAATS IN THE MATTER.

IN HER APPLICATION FOR A WRIT OF MANDAMUS, THE PLAINTIFF INDICATES THAT SHE WAS GRANTED A DIVORCE BY A COURT OF THE STATE OF TEXAS ON DECEMBER 4, 1973, AND THAT THE STATE COURT AWARDED HER COMMUNITY PROPERTY IN AN AMOUNT EQUAL TO 40 PERCENT OF HER FORMER HUSBAND'S AIR FORCE MILITARY RETIRED PAY. IN AN ATTEMPT TO ENFORCE THE COMMUNITY PROPERTY JUDGMENT, SHE INITIATED A GARNISHMENT ACTION IN THE STATE COURT AGAINST THE AIR FORCE IN 1977. THE STATE COURT ISSUED ORDERS ON DECEMBER 2, 1977, AND MARCH 9, 1978, DIRECTING THE AIR FORCE ACCOUNTING AND FINANCE CENTER TO PAY DIRECTLY TO THE PLAINTIFF AN AMOUNT EQUAL TO 40 PERCENT OF HER EX- HUSBAND'S MILITARY RETIRED PAY. HOWEVER, AIR FORCE ACCOUNTING OFFICERS HAVE DECLINED TO MAKE ANY PAYMENT TO THE PLAINTIFF, SINCE THEY HAVE CONCLUDED ON THE BASIS OF RULINGS OF THE COMPTROLLER GENERAL IN SIMILAR CASES THAT THE GARNISHMENT ORDERS ARE INVALID. IN THE PRESENT ACTION BROUGHT IN THE FEDERAL DISTRICT COURT, THE PLAINTIFF SEEKS A WRIT OF MANDAMUS TO COMPEL THE COMPTROLLER GENERAL TO AUTHORIZE AIR FORCE ACCOUNTING OFFICERS TO MAKE PAYMENT TO HER IN ACCORDANCE WITH THE GARNISHMENT ORDERS ISSUED BY THE STATE COURT.

WE HAVE NO INFORMATION CONCERNING THE FACTS OF THIS PARTICULAR CASE OTHER THAN THE ALLEGATIONS OF FACT CONTAINED IN THE PLAINTIFF'S APPLICATION FOR A WRIT OF MANDAMUS. HOWEVER, IT IS OUR VIEW BASED ON THOSE ALLEGATIONS THAT THE CONCERNED AIR FORCE ACCOUNTING OFFICERS ACTED PROPERLY IN DECLINING TO MAKE ANY PAYMENT TO THE PLAINTIFF UNDER THE GARNISHMENT ORDERS ISSUED BY THE STATE COURT. IN THAT CONNECTION, THE PLAIN LANGUAGE OF THE APPLICABLE FEDERAL STATUTES AUTHORIZES GARNISHMENT ONLY FOR "CHILD SUPPORT" OR "ALIMONY PAYMENTS," AND SPECIFICALLY PRECLUDES GARNISHMENT TO EFFECT "ANY PAYMENT OR TRANSFER OF PROPERTY OR ITS VALUE BY AN INDIVIDUAL TO HIS SPOUSE OR FORMER SPOUSE IN COMPLIANCE WITH ANY COMMUNITY PROPERTY SETTLEMENT, EQUITABLE DISTRIBUTION OF PROPERTY, OR OTHER DIVISION OF PROPERTY BETWEEN SPOUSES OR FORMER SPOUSES." SEE 42 U.S.C. 659 AND 662(C). HENCE, THE COMPTROLLER GENERAL AND ALSO THE UNITED STATES SUPREME COURT HAVE RULED IN CASES OF THIS NATURE THAT GARNISHMENT ORDERS ISSUED BY STATE COURTS TO FEDERAL AGENCIES UNDER THOSE FEDERAL STATUTES ARE INVALID TO THE EXTENT THAT THE ORDERS PURPORT TO EFFECT A COMMUNITY PROPERTY AWARD. SEE 57 COMP.GEN. 420 (1978); AND COMPARE HISQUIERDO V. HISQUIERDO, 439 U.S. 572, 587 (1979).

NEVERTHELESS, WE ALSO NOTE THAT THE APPLICATION FOR A WRIT OF MANDAMUS FILED IN THE PRESENT CASE IS NEARLY IDENTICAL TO THE APPLICATION IN THE CASE OF JEANNE L. WILHELM V. LIEUTENANT COLONEL PETER W. KRASKA, ET AL., U.S.D.C. S.D. TEXAS, CIVIL ACTION NO. H-78 1661, WHICH WAS FILED IN THE SAME FEDERAL DISTRICT COURT IN AUGUST 1978 AND WHICH PRODUCED A NEGOTIATED SETTLEMENT FAVORABLE TO MS. WILHELM IN JULY 1979. THAT SETTLEMENT WAS MADE ON THE BASES THAT IT WOULD "SAVE THE EXPENSE AND INCONVENIENCE OF TRIAL," AND THAT THE APPLICABLE FEDERAL STATUTES MIGHT BE AMENDED AT SOME FUTURE TIME. SINCE THE ISSUE HAS BEEN RAISED AGAIN AND SINCE IT APPEARS THAT THE GOVERNMENT HAS A STRONG ARGUMENT AGAINST PAYMENT, IT WOULD SEEM PREFERABLE TO LITIGATE THIS CASE IN ORDER TO SETTLE THE ISSUES INVOLVED IN THE EVENT SIMILAR CASES ARISE. FOR YOUR FURTHER INFORMATION, WE ARE ALSO ENCLOSING COPIES OF THE PERTINENT DOCUMENTS CONTAINED IN OUR FILE CONCERNING THE WILHELM CASE.

WE ARE SENDING COPIES OF THIS LETTER AND THE ENCLOSED DOCUMENTATION TO THE UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF TEXAS AND TO THE COMMANDER OF THE AIR FORCE ACCOUNTING AND FINANCE CENTER.

THE ATTORNEY IN OUR OFFICE ASSIGNED PRIMARY RESPONSIBILITY FOR THIS MATTER IS DON GURITZ, WHO MAY BE REACHED BY TELEPHONE AT (202) 275 5422.

PLEASE KEEP US ADVISED OF THE PROGRESS OF THIS CASE.