Question Presented
You asked whether the Social Security Administration (SSA) can garnish a $25 miscellaneous
fee related to child support from Social Security recipients based on a Mississippi
Department of Human Services (Department) amended Order/Notice to Withhold Income
for Child Support, when SSA is not currently garnishing the recipients’ benefits for
the original child support payments.
Opinion
For the reasons set out below, SSA cannot withhold a $25 miscellaneous fee from Social
Security recipients based only on the Department’s Amended Order/Notice to Withhold
when SSA is not currently garnishing the recipients’ benefits for the original child
support payments.
Background
According to the information you provided us, the Department submitted three separate
orders purportedly amending prior child support orders to now require Social Security
to withhold $25.00 per month in miscellaneous fees and $5.00 per month in administrative
costs. These amended orders do not indicate the nature of the miscellaneous fees or
administrative costs and the amended orders do not include the original order, which
should indicate what child support the Department originally ordered withheld (and
by whom).
According to a report of contact dated March 10, 2011, Wally , the Division Director
of Mississippi Division of Child Support Services, a part of the Department, described
the miscellaneous fees:
Whenever a case is taken to court to establish paternity and/or get an order for child
support filing fees are paid to the Chancery Clerk of the particular county and if
a paternity test is ordered we also pay those fees. The non-custodial parent in 99%
of our cases is ordered to reimburse us along with attorney fees.
Number holder (NH) Louis , NH Willie, and NH Jimmie, all are receiving Social Security
benefits. However, according to the information provided, the accounts of these NHs
include no current or past child support withholding orders. The Department provided
the original withholding order along with an amended order for NH Willie. The Department
only provided the amended orders for NH Louis and NH Jimmie and the amended orders
do not indicate the date of the original order to withhold, the amount originally
ordered withheld, or the entity that should be withholding.
DISCUSSION
The United States Supreme Court in Philpot v. Essex County Welfare Board, 409 U.S. 413, 415-17 (1973), stated unequivocally that section 207 of the Social
Security Act (Act) imposes a broad bar against the use of any legal process to reach
Social Security benefits. Under this provision,
(a) The right of any person to any future payment under this title shall not be transferable
or assignable, at law or in equity, and none of the moneys paid or payable or rights
existing under this title shall be subject to execution, levy, attachment, garnishment,
or other legal process, or to the operation of any bankruptcy or insolvency law.
(b) No other provision of law, enacted before, on, or after the date of the enactment
of this section, may be construed to limit, supersede, or otherwise modify the provisions
of this section except to the extent that it does so by express reference to this
section.
Act § 207.
However, through section 459 of the Act, Congress specifically referenced section
207(a) to create an exception under which the Government consents to garnishment of
Social Security benefits to collect child support and alimony. More specifically,
section 459 states that with respect to a notice to withhold income to enforce an
obligation of an individual to provide child support or alimony, SSA “shall be subject
to the same requirements as would apply if the entity were a private person, except
as otherwise provided in this section.” Act § 459(b). The requirements to which SSA
is subject under § 459 include not only complying with the withholding requirements
of garnishment orders, but also with “any other legal process brought, by a State agency administering a program under a State plan approved under
this part or by an individual obligee, to enforce the legal obligation of the individual
to provide child support or alimony.” Act § 459(a) (emphasis added).
The term “legal process” is defined in § 459(i)(5)(A)(i) of the Act as any writ, order,
summons, or other similar process in the nature of garnishment issued by a court or
an administrative agency of competent jurisdiction in any state, territory, or possession
of the United States. Social Security benefits are subject to “legal process” brought
through a State court to enforce a legal obligation to provide child support or alimony.
See Policy Operations Manual System (POMS) GN 02410.200(B); see also Act § 466 (setting out statutorily prescribed procedures to increase the effectiveness
of child support enforcement). Legal process may include, but is not limited to, an
attachment, writ of execution, income execution order, or wage assignment. Id. The legal process may be issued by a court of competent jurisdiction, an authorized
official pursuant to a court order or State or local law, or a State agency authorized
to issue income withholding notices pursuant to State or local law. Id.
Pursuant to Mississippi law, the Department may issue administrative orders for withholding
and file the orders with the clerk of the court and provide a copy to the obligor
by regular mail. Miss. Code Ann. § 93-11-105(1), (2) (West 2010). The administrative
orders must direct that the payor withhold an amount equal to the order for the current
support obligation and direct payor to withhold an additional amount equal to twenty
percent of the current support obligation for payment of delinquency, if necessary.
Miss. Code Ann. § 93-11-105(3) (West 2010).
The Agency received orders of non-wage garnishment for withholding administrative
and miscellaneous fees related to each of the three NH’s noted above. These orders
to withhold from the Department meet SSA’s definition of “legal process” brought by
a State agency administering a program under a State plan to enforce NH’s legal obligation
to provide child support. See Act §§ 459(a), 466; POMS GN 02410.200(B). The orders, denoted as amended withholding orders, are legal process in the nature
of garnishment. See POMS GN 02410.200(B). However, while the amended orders are a legal process, none is necessarily sufficient
on its face for SSA to withhold benefits. Although the amended orders purport to withhold
for child support, the amended orders do not include a statement of the amount actually
owed for the care and maintenance of the child. In the information sent to SSA for
NH Louis and NH Jimmie, the amended orders only ask SSA to withhold an administrative
and miscellaneous fee. Because the orders do not reflect the amount of current child
support obligation currently due, they do not meet Mississippi or SSA’s statutory
requirements for withholding. See Act § 459(i)(2); Miss. Code Ann. § 93-11-105(3).
Further, none of the amended orders is valid on its face because the administrative
and miscellaneous fees do not appear to be part of the child support obligation. In
the case of NH Willie, the Department did include the original order when it submitted
the amended order to the agency asking the agency to withhold additional miscellaneous
and administrative fees from NH’s Social Security payments. SSA’s POMS GN 02410.200(D) defines child support as “periodic payment of funds for the support and maintenance
of a child(ren) subject to and in accordance with State or local law.” The POMS continues
that child support “may include attorney fees, interest, cash medical support and
court costs if they are expressly made recoverable under a garnishment order issued
by a court of competent jurisdiction in accordance with applicable State or local
law.” GN 02410.200(E). See also POMS PR 04015.012 (advising that the agency could withhold a statutory administrative fee from benefits
being garnished for child support).
SSA has not promulgated any regulations pursuant to § 459 of the Act related to whether
expenses and fees other than the actual money for the health and maintenance of the
child are included in the definition of child support and therefore also subject to
garnishment from Social Security benefits. The Office of Personnel Management (OPM)
has issued regulations related to the garnishment of child support (and related expenses)
from federal benefits. See 5 C.F.R. §§ 581.101, 581.102, 581.307 (2010). OPM’s regulations share similar language
with SSA’s POMS and provide some guidance on evaluating whether expenses other than
the actual child support amount may be considered in the definition of child support
for garnishment purposes.
OPM defined child support as the amount “required to be paid for the support and maintenance
of a child . . . which provides for monetary support, health care, arrearages or reimbursement,
and which may include other related costs and fees, interest and penalties, income
withholding, attorney’s fees, and other relief.” 5 C.F.R. § 581.102(d). OPM regulations
provide further instruction on when the other related costs should be garnished along
with the child support payments. The agency must determine: (1) that the legal process
provides for inclusion of attorney fees, interest, and/or court costs as (rather than
in addition to) child support; and (2) that the awarding of attorney fees, interest,
and/or court costs as child support must be within the authority of the State agency
that issued the legal process (that is, the order is not inconsistent with state or
local law). 5 C.F.R. § 581.307.
Mississippi law expressly allows withholding of additional amounts to cover other
expenses related to recovery of child support. The Department may withhold “additional
amounts to recover costs incurred through its efforts to secure the support order,
including, but not limited to, all filing fees, court costs, service of process fees,
mailing costs, birth certificate certification fee, genetic testing fees, [and] the
department’s attorney’s fees . . .” Miss. Code Ann. § 93-11-103(6) (West 2010). Thus,
an order for withholding of child support that also includes withholding for attorney
fees or court costs would not violate state law.
SSA can withhold other expenses included in a child support garnishment order. There
is a precedent opinion that indicated that the agency could withhold an administrative
fee of $1.50 authorized by a Georgia statute to cover the cost of processing and distributing
the collected child support payments. The precedent opinion cites to OPM regulations
including other related costs and fees in the definition of child support. See POMS PR 04015.012 (citing 5 C.F.R. § 581.102(d)(2007)). SSA could garnish social security benefits
to pay for the types of items Wally describes as the miscellaneous and administrative
fee requested from the Department, including the court filing fees, attorney fees,
and paternity testing fees.
In the cases here, however, the amended orders do not bring the miscellaneous and
administrative fees within the definition of child support. The agency does not have
the original withholding order on file for the three cases here and is not currently
garnishing any benefits for payment of child support. In NH Willie’s case, the Department
submitted the original order with the amended order to include the miscellaneous and
administrative fee, but the agency was not (and is not currently) withholding benefits
to pay the child support payments. While the amended order directs the agency to withhold
the additional miscellaneous fee, the original order (issued in 2007) is not directed
to the agency. The amended order gives no indication that the original order is still
in effect. Thus, it appears the administrative and miscellaneous fees are in addition
to, and not part of, the child support payments and the agency should not, therefore,
withhold these separate fees.
The agency similarly should not pay the miscellaneous and administrative fees on the
withholding orders for NH Jimmie and NH Louis. Without a withholding order for the
child support payments, the administrative and miscellaneous fees appear as though
they are in addition to, and not part of, the child support payments. Thus, using
OPM’s regulations as guidance, the fees would not meet the first requirement that
the legal process expressly provide for inclusion of attorney fees, interest, and/or
court costs as (rather than in addition to) child support. Therefore, the agency should
not garnish these NH’s payments solely to pay a miscellaneous and administrative fee.
Conclusion
In sum, the Amended Orders to Withhold issued by the Mississippi Department of Human
Services are not valid orders of garnishment for purposes of collecting administrative
and miscellaneous fees that are a part child support payments owed by the various
NHs.
Mary Ann. Sloan
Acting Regional Chief Counsel
By: ___________________________
Jennifer L. Patel
Assistant Regional Counsel