The opinion of the court was delivered by: ROBERTSON
This case raises an important question about the interplay between D.C. garnishment law and a new federal statutory provision, 5 U.S.C. § 5520a(j)(2) (1996), that allows the government to exact fees for the administration of garnishment.
Because of the procedural posture in which the question arises, however, it is first necessary to address an unusual jurisdictional issue.
The relief plaintiff seeks is an order compelling the Department of Defense's compliance with a District of Columbia writ of attachment. Plaintiff filed its original motion to compel in the Superior Court of the District of Columbia. On March 17, 1997, the Superior Court granted the motion. The Department of Defense then removed under 28 U.S.C. § 1442(a)(1), and moved to vacate the Superior Court's order. Plaintiff, agreeing that the question raised by the pleadings should be decided by a federal court, conceded that portion of DOD's motion filed in this court which sought to vacate the Superior Court's order. No motion to vacate the judgment was filed in Superior Court, however.
The use of § 1442 to remove a case that has proceeded to judgment in state court is an untried practice and is the subject of no reported cases.
The plain language of § 1442 closely resembles the FIRREA language granting removal powers to the FDIC and RTC and does not distinguish cases that have proceeded to judgment from cases that have not. There is no question of Congress' power to grant this sort of removal jurisdiction, since Congress can grant federal removal jurisdiction over state court cases that are still on appeal, see Martin v Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 349, 4 L. Ed. 97 (1816); Gaines v. Fuentes, 92 U.S. 10, 18, 23 L. Ed. 524 (1876); Tennessee v. Davis, 100 U.S. 257, 269, 25 L. Ed. 648 (1880). As for the intent of Congress, the legislative history of § 1442 does not exclude and is in fact consistent with allowing post-judgment removals. The statute was first enacted in 1815 to help federal customs agents enforce federal trade embargos, and since then Congress has enacted several other versions of the federal officer removal statute to protect federal officials and policies from misapplication (and nonapplication) in state courts. See, e.g., Act of March 3, 1863, ch. 80, 12 Stat. 755, 756 (1863); Act of Mary 11, 1866, ch. 80, 14 Stat. 446 (1866); Cong. Globe, 37th Cong., 3d Sess. 535-37 (1862). The most recent enactment, the 1996 amendment of § 1442, expanded removal jurisdiction by allowing agencies, and not only federal officers, to remove. Pub. L. 104-317, 110 Stat. 3850 (1996).
It appears, accordingly, that DOD's removal of this action was lawful, and that the subject matter jurisdiction of this court has been properly invoked. Further, because the plaintiff has conceded vacation of the Superior Court's order, this court is free to examine the issues presented by this case without regard to the strictures of Fed. R. Civ. P. 59(e).
On June 14, 1996, plaintiff obtained a judgment against defendant Willa Kynard in District of Columbia Superior Court for $ 5,210. Thereafter, plaintiff filed a writ of attachment in Superior Court for $ 5,222.74, the unsatisfied balance of the judgment plus costs, and served it on the Department of Defense ("DOD"), Kynard's employer. DOD, relying upon § 5520a(j)(2) and its own regulations, notified plaintiff by letter dated December 4, 1996, that it would deduct an administrative fee of $ 75 from the total amount due in the garnishment action. Plaintiff objected and moved to compel compliance with the writ. On March 17, 1997, the Superior Court ruled that DOD could not deduct its administrative fee from payments forwarded to the creditor. DOD's removal followed.
Plaintiff's interpretation of the statute cannot be squared with the plain meaning of the language Congress used. The statute commands that administrative costs be collected, not from the employee, but "from the amount withheld from the pay of the employee . . . ." Before the 1996 amendment, the statute provided that administrative costs could "be added to the garnishment." 5 U.S.C. § 5520a (1994) (emphasis added). The amendment changed the law, and Congress clearly intended the change. The Senate Report recites the purpose of the amendment to "shift the burden for paying ...