Skorychenko v. Tompkins

Filing 74

ORDER denying 71 Motion for assignment order. Signed by Chief Judge Barbara B. Crabb on 1/11/10. (elc),(ps) Modified on 1/22/2010 (llj/t).

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IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------L U D M Y L A SKORYCHENKO, Plaintiff, 0 8 - cv -6 2 6 - b b c v. ER N E ST F. TOMPKINS, D efendan t. --------------------------------------------O n September 28, 2009, I granted plaintiff Ludmyla Skorychenko's motion for sum m ary judgment in this case, finding that there were no genuine issues of material fact that would prevent plaintiff from enforcing the provisions of an I-864 affidavit of support in which defendant Ernest Tompkins agreed to maintain plaintiff at an income of at least 125 percent of the federal poverty guidelines. On November 18, 2009, the clerk of court entered judgment in favor of plaintiff in the amount of $10,948.60. Now before the court is plaintiff's "motion for assignment order," dkt. #71, in which she asks the court to assign defendan t's future tax refunds to her to satisfy the judgment he owes her. In essence, plaintiff is asking this court to order the Internal Revenue Service to garnish defendant's tax refunds and turn over to plaintiff any refund amount that defendant would receive. Because O P IN IO N and ORDER 1 this court does not have the authority to direct the Internal Revenue Service to garnish future tax refunds, this motion will be denied. The doctrine of sovereign immunity protects the United States from suit by judgment cr edito rs seeking to garnish or attach property within the federal government's control. N eu kirch en v. Wood County Head Start, Inc., 53 F.3d 809, 812 (7th Cir. 1995) (explaining th at sovereign immunity prevents judgment creditor from attaching property under control o f federal government without government's consent); see also Millard v. United States, 916 F .2 d 1, 3 (Fed. Cir. 1990) ("No legal proceeding, including garnishment, may be brought against the United States absent a waiver of its sovereign immunity."); Omega Accounts S ervicin g Corp. v. Koller, 503 F. Supp. 149, 152 (D.C. Md. 1980); Exchange National Bank v. Daniel Hale Williams University, 473 F. Supp. 656, 657 (D.C. Ill. 1979). The United S tates has waived its sovereign immunity to garnishment proceedings to enforce child support and alimony payments. 42 U.S.C. 659; 28 U.S.C. 6402. However, plaintiff has pointed to no authority, and I have found none, suggesting that the United States has w aived its sovereign immunity to attachment or garnishment proceedings for parties attem pting to collect on money owed under an I-864 affidavit of support. I conclude, therefore, that plaintiff may not enforce her judgment through an assignment of defendant's future tax returns. T h e proper way for plaintiff to enforce her judgment is found in Fed. R. Civ. P. 69. 2 U nd er Rule 69, "[a] money judgment is enforced by a writ of execution," and the procedures on execution "must accord with the procedure of the state where the court is located . . . ." W iscon sin's procedures for execution are found in Wis. Stat. 815.01-815.35. Thus, if plaintiff wishes to enforce the money judgment in this court, she may file a motion for writ of execution in accordance with these procedures. Also, plaintiff has written a letter to the court, dkt. #72, asking whether the court s en t copies of the judgment in this case to "the district attorney's office, or WI Support C ollection s Trust Fund, or another government agency charged with support enforcement." The answer to plaintiff's question is no. The court has provided a certified copy of the judgm ent to plaintiff, dkt. #70. It is her responsibility to submit a copy of the judgment to an y agency she believes should have one. ORDER IT IS ORDERED that plaintiff Ludmyla Skorychenko's "motion for assignment o rder," dkt. #71, is DENIED. E n tered this 11t h day of January, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge 3

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