As questioned in this inquiry, under Utah State Law, proper service of a garnishment order may be accomplished by either hand-delivery or mail.

Garnishment is actionable regardless of whether it involves the Utah Office of Recovery Services (ORS).

The garnishment withholding amount is outlined in the serviced order.

Questions Presented and Short Answers

You requested a legal opinion regarding several issues raised by a writ of continuing garnishment for child support issued by a Utah state court. Specifically, you asked:

1. a. 

   Whether service was effective where the Social Security Administration (SSA) received the writ of garnishment via mail rather than in person?

   Yes, service may be accomplished by either hand-delivery or mail.

2. b. 

   Whether SSA can garnish wages for child support based on this writ of garnishment, where the action does not involve Utah’s Office of Recovery Services (ORS)?

   Yes, because SSA has been properly served with a facially-valid court order, the agency should complete the interrogatories attached to the writ.

3. c. 

   How should SSA determine the proper withholding amount?

   Interrogatory No. 4, attached to the writ, outlines the calculation the agency should perform to determine the amount of withholding.

Background

On April XX, 2018, the District Court for the Third Judicial District of Utah, Salt Lake County, issued a Writ of Continuing Garnishment for Child Support and Instructions against Social Security beneficiary D~. The District Court Clerk signed the writ electronically at the top of the first page. The writ, which was received via mail by the South Jordan field office on April 18, 2018 (with a postmark of April XX, 2018), states that the court has entered a judgment for $XX,XXX.XX against D~ for past-due child support. Writ ¶ 2.

The writ directs SSA to answer the interrogatories attached to the writ and (1) serve a copy of the answers on the judgment creditor’s attorney and (2) serve D~ with a copy of the writ, a copy of the interrogatory answers, a copy of the Notice of Garnishment and Exemptions form, and two copies of the Reply and Request for Hearing form. Writ ¶ 4. Attached to the writ is a form entitled “Garnishee’s Answers to Interrogatories for Writ of Continuing Garnishment for Child Support.” The writ instructs SSA not to release any amounts withheld until 21 calendar days after it serves the writ, the interrogatory answers, and the other required papers on D~. Writ ¶ 7(A). The writ provides that it is effective for one year after service on the agency or 120 calendar days after the date of expiration of an earlier writ, whichever is later. Writ ¶ 6.

D~ was previously subject to two separate garnishment orders from ORS, but ORS issued an order to stop garnishment in January 2016.

Analysis

1. The Writ Was Properly Served on SSA

Utah Rule of Civil Procedure 5(b)(3)(C) provides that service may be accomplished by mail. The agency was thus properly served. See also POMS GN 02410.205 (service of a garnishment order must be done in a manner prescribed by the applicable state law).

2. Because the Writ Is Facially Valid, SSA Should Complete the Interrogatories Served with the Writ

On its face, the writ comports with Utah law. See 42 U.S.C. § 659(a) (noting the agency will honor garnishment orders in accordance with state law). A court of competent jurisdiction issued the writ and it was properly served.^[1] The writ clearly indicates that it is to collect child support and it provides enough information (full name and the last four digits of the Social Security number) for the agency to identify the person whose benefit payments the writ will affect. See 5 C.F.R. § 581.203; POMS GN 02410.210(A)(1)(b).

Ordinarily, the agency will provide testimony—defined to include any sworn statement (written or oral)–only if permitted by 20 C.F.R. part 403, the agency’s Touhy regulations. 20 C.F.R. §§ 403.100, 403.110(h). Here, because the creditor seeks answers under oath to her interrogatories, she seeks “testimony,” which would ordinarily be governed by part 403. However, section 459 of the Act, 42 U.S.C. § 659, explicitly provides that “[n]otwithstanding any other provision of law,” the agency must, within 30 days of service, “withhold available sums in response to the order or process, or answer the interrogatory.” 42 U.S.C. § 659(c)(2)(C). Thus, not only is the agency permitted to respond to the garnishment interrogatories, it is required to so within 30 days.^[2] See also Utah R. Civ. P. 64D(g) (outlining garnishee’s responsibilities).

The Field Office questions whether, in honoring this writ, SSA would be disobeying the state’s previous order to stop garnishment as reflected in ORS’s 2016 order. We believe that concern does not provide a basis for failing to comply with the current writ. First, the agency has been served with a facially-valid court order to which, as noted above, SSA is statutorily obligated to respond. Second, as outlined in the Notice of Garnishment and Exemptions, there is a procedure for D~ to contest the garnishment if he believes the writ or interrogatory responses are improper or inaccurate. SSA would only be carrying out the writ—that is, actually releasing any amounts withheld—after D~ either failed to timely object or after additional instruction from the court following a hearing. See also Utah R. Civ. P. 64D(j) (noting that a garnishee who complies with a court’s order is generally released from liability).

3. SSA Should Determine the Proper Withholding Amount Based on Its Answer to Interrogatory No. 4, Which Calculates the Amount to Be Withheld

The writ instructs SSA to calculate how much it is required to withhold based on its response to the interrogatories. Writ ¶ 7(A); Interrogatory No. 4. As you noted in your opinion request, Utah limits withholding for child support to a maximum of 50% of disposable earnings.^[3] See Utah Code Ann. § 62A-11-316(4); Utah R. Civ. P. 64D(a). It appears that the agency has the necessary information to perform the calculation at Interrogatory No. 4, but, if that is not the case, the individual completing the interrogatory response should explain why they were unable to complete the calculation.

Conclusion

SSA must comply with the garnishment procedures set forth in the writ:

SSA must garnish D~’s monthly disability insurance benefits in compliance with Utah law. Further, the agency must respond to the interrogatories.

 

This particular notice of lien-levy issued by the state of Utah against back benefits of this claimant should not be honored because the notice is not expressly authorized by the modification of the anti-assignment provision at 42 U.S.C. § 659 and accompanying regulations at 5 C.F.R. § 581 et seq. The notice, therefore, is beyond the income withholding permitted by those provisions, is unlawful under the relevant portions of the Consumer Credit Protection Act (CCPA) 15 U.S.C. §§ 1671-1677, and is arguably impermissible under State law.

QUESTION PRESENTED

You have requested an opinion on whether SSA must comply with a notice of lien-levy issued by the Utah Office of Recovery Services (ORS) for past due child support.

Short Answer

We do not believe that the notice of lien-levy against back benefits of this claimant should be honored because the notice is not expressly authorized by the modification of the anti-assignment provision at 42 U.S.C. § 659 and accompanying regulations at 5 C.F.R. § 581 et seq. The notice, therefore, is beyond the income withholding permitted by those provisions, is unlawful under the relevant portions of the Consumer Credit Protection Act (CCPA) 15 U.S.C. §§ 1671-1677, and is arguably impermissible under State law.

Facts

The available facts in this case indicate that on August 25, 2004, ORS served a "Notice of Lien-Levy" on the Social Security Office in Salt Lake City, Utah. The notice demanded payment of $26,689.79 from Mr. J~ DIB for past due child support (Notice of Lien-Levy from ORS, August 25, 2004).

After an ALJ reversal, Mr. J~ past due benefits were released to him on July 23, 2004. At this time, Mr. J~ receives $623 each month in DIB, subject to his $67.00 Medicare premium, for a total monthly benefit of $556.00.

Federal Law

The Social Security Act prohibits alienation or assignment of benefits, such as execution, levy, attachment or garnishment. See 42 U.S.C. § 407(a). However, there are two narrow exceptions to the anti-assignment provision. First, Title II benefits are subject to withholding in accordance with State laws enacted pursuant to subsections (a)(1) and (b) of 42 U.S.C. § 666 (2000), and to any other "legal process" for the enforcement of alimony or child support obligations. See id. § 659(a). Subsections (a)(1) and (b) of 42 U.S.C. § 666 do not mention any procedure for collecting alimony or child support other than income withholding subject to the percentage limitations of the CCPA, codified at 15 U.S.C. § 1673. "Legal process" is defined as "any writ, order, summons or similar process in the nature of garnishment" issued by a court or administrative agency. See 42 U.S.C. § 659(i)(5)(A)(i) (emphasis added). The regulations at 5 C.F.R. § 581 et seq., and POMS also do not authorize any form of Title II benefits assignment other than income withholding in the nature of garnishment for the limited purposes stated.

Second, 26 U.S.C. §§ 6331 and 6334(c) permit the Internal Revenue Service to levy upon Social Security benefits only for collection of Federal income taxes.

Utah State Law

Utah law permits garnishment of a debtor's earnings by ORS to enforce child support obligations. See Utah Code Ann. § 62A-11-312.5(3)(a) (2004). A writ of garnishment in Utah cannot seek more than 50% of a debtor's disposable income. See id. § 62A-11-316(4). Utah R. Civ. P. 64D(d)(vii) (2004) exempts Social Security benefits from "earnings" subject to garnishment, except when sought to satisfy child support obligations. However, notices of lien-levy, are treated separately from garnishments. Utah Code Ann. § 62A-11-304.1(h)(i) (2004) permits ORS to secure assets to satisfy past-due support by (i) intercepting or seizing periodic or lump sum payments from (A) a state or local government agency, and (B) judgments, settlements, and lotteries.

DISCUSSION

We do not believe that the Agency is obligated to pay the Utah ORS in accordance with this notice of lien-levy. This notice is not expressly authorized by 42 U.S.C. §§ 659 and 666 or the accompanying regulations at 5 C.F.R. § 581 et seq., and is beyond income withholding permitted by those provisions. In addition, the notice of lien-levy is unlawful under the relevant portions of the CCPA. Finally, this notice is also arguably impermissible under State law.

The modification of the anti-assignment provision at 42 U.S.C. § 659 allows income withholding "in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 666 of this title . . . and to any other legal process brought[] by a State agency administering a program under a State plan approved under this part." See 42 U.S.C. § 659(a) (emphasis added); see also Memorandum, State of Utah Notices of Lien-Levy for Past Due Support, RCC Region VIII (R~-B~) to ARC, SSA, April 30, 2004. Likewise, the regulations state that legal process must be accomplished pursuant to State procedures in effect pursuant to subsections (a)(1) and (b) of section 666 of Title 42. See 5 C.F.R. § 581.202(b). As mentioned previously, subsections (a)(1) and (b) of section 666 only mention income withholding subject to the limitations of the CCPA, and neither the statute nor the regulations mention any other mechanism by which States or private parties can seize Social Security benefits to satisfy child support obligations. See 42 U.S.C. § 666(a)(1), (b); 15 U.S.C. § 1673(b); see also 5 C.F.R. § 581 et seq. Income withholding permissible under section 659 must not exceed the limits of section 1673(b) of the CCPA. See 42 U.S.C. § 666(b)(1). In this notice, the amount demanded, $26,689.72 exceed any limitations for income withholding.

Moreover, "any other legal process" is defined as any "writ, order, summons or similar process in the nature of garnishment." See 42 U.S.C. § 659(i)(5)(A)(i) (emphasis added). For the following reasons, we do not believe that the notices of lien-levy in this case is "in the nature of garnishment." While garnishments and notices of lien-levy are both procedures by which property of an obligor in possession of a third party is sought to satisfy child support obligations, the similarities end there. See Utah Code Ann. §§ 62A-11-312.5, 62A-11-304.1(h)(i). A garnishment is the only method the Utah statutes permit to seize "earnings," the definition of which expressly includes Social Security benefits when sought for satisfaction of child support obligations. Furthermore, as discussed above, a notice of lien-levy is a one-time attempt to seize specific property in its entirety, while garnishment is limited to 50% of the obligor's disposable earnings, and when used to enforce child support can be "continuing" over a period of time until the obligation is satisfied. See Utah Code Ann. §§ 62A-11-304.1(h)(i), 62A-11-316(4); see also Utah R. Civ. P. 64D(a)(iii), (d)(vii), (v), 69(b). Therefore, we do not believe that this notice of lien-levy is "in the nature of garnishment," insofar as it seeks a one-time seizure of the claimant's property.

Because the modification of the anti-assignment provision or waiver of sovereign immunity does not authorize any other procedure other than those in the "nature of garnishment" for income withholding of Social Security benefits, subject to CCPA limitations in order to satisfy child support obligations, and because the notice of lien-levy is "not in the nature of garnishment," we believe that the Agency is not required to honor it. No legal proceeding, including garnishment, may be brought against the United States absent a waiver of sovereign immunity. See Millard v. United States, 916 F.2d 1, 2 (Fed. Cir. 1990) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)).

This notice also may be an impermissible means of seizing Social Security benefits under State law. As discussed above, under Utah law, ORS is authorized to "secure assets to satisfy past-due support" by "intercepting or seizing periodic or lump-sum payments" from "a state or local government agency, including unemployment compensation, worker's compensation, and other benefits" and "judgments, settlements, and lotteries." See Utah Code Ann. § 62A-11-304.1(h)(i). Social Security Title II benefits are not from "a state or local government agency," nor are they a judgment, settlement or lottery. In the case of this claimant, he receives a monthly benefit of $772 per month, which cannot be classified as a "judgment, settlement or lottery." Therefore, this notice of lien-levy against a monthly benefit is arguably also improper under Utah law.

CONCLUSION

Accordingly, we advise that the Agency is not required to honor this notice because it (a) is not expressly authorized by 42 U.S.C. §§ 659 and 666 or the accompanying regulations at 5 C.F.R. § 581 et seq.; (b) violates the provisions of the CCPA, 15 U.S.C. §§ 1671-1677; and (c) is arguably impermissible under State law.

Deana R. E~-L~

Acting Regional Chief Counsel

By:__________________________

Laura R~-B~

Assistant Regional Counsel

The issue is whether SSA must comply with a notice of lien-levy issued by the State of Utah Office of Recovery Services (ORS) for past due support owed to a child.

SSA is authorized under Section 459 of the Act to garnish title II benefits subject to legal process brought by an individual in a State court for the enforcement of a legal obligation to provide child support. A legal process is any writ, order, summons or other similar process in the nature of garnishment. It may include, but is not limited to, an attachment, writ of execution, income execution order or wage assignment that is issued by a court of competent jurisdiction, including Indian tribal courts within any State, territory, or possession of the U.S. or the District of Columbia and is directed to a government agency.

Utah state law defines writs of garnishment and notices of lien-levy as two distinct procedures. Utah law permits garnishment of a debtor's earnings, including title II payments in child support cases. The amount of recovery is limited to 50 percent of a debtor's disposable income. Notices of lien-levy, however, permit ORS to satisfy past-due child support by intercepting or seizing periodic or lump-sum payments from only a state or local government agency.

In this case, SSA does not have to comply with the notice of lien-levy because Utah law does not permit interception of a lump-sum or periodic payment from a Federal agency. In addition, SSA cannot conclude that the notice of lien-levy was issued in the nature of a garnishment since Utah specifically defines garnishment as the means of enforcing child support from title II benefits and notices of lien-levy as a means of seizing assets such as lump-sum or periodic payments from state or local agencies to satisfy past-due child support.

QUESTION PRESENTED

You have requested an opinion on whether SSA must comply with a notice of lien-levy issued by the Utah Office of Recovery Services (ORS) for past due support owed to a child.

Short Answer

We do not believe that the notice of lien-levy against back benefits of this claimant¹ should be honored because the notice is not expressly authorized by the modification of the anti-assignment provision at 42 U.S.C. § 659 and accompanying regulations at 5 C.F.R. § 581 et seq.² The notice, therefore, is beyond the income withholding permitted by those provisions, is unlawful under the relevant portions of the Consumer Credit Protection Act §§ 1671-1677, and is arguably impermissible under State law.

FACTS

The available facts in this case indicate that on March 30, 2004, ORS served a "Notice of Lien-Levy" on the Social Security Office in Salt Lake City, Utah. The notice demanded payment of $13,410.00 and $ 20,048.00 from Mr. D~ DIB for past due child support (Notice of Lien-Levy from ORS, March 26, 2004).

Mr. D~ receives $772 in monthly DIB benefits. A garnishment for child support in the amount of $90.00 is being withheld from his monthly benefits. This garnishment is approximately 12% of his monthly benefits.

Federal Law

The Social Security Act prohibits alienation or assignment of benefits, such as execution, levy, attachment or garnishment. See 42 U.S.C. § 407(a). However, there are two narrow exceptions to the anti-assignment provision. First, Title II benefits are subject to withholding in accordance with State laws enacted pursuant to subsections (a)(1) and (b) of 42 U.S.C. § 666 (2000), and to any other "legal process," for the enforcement of alimony or child support obligations. See id. § 659(a) (2000). Subsections (a)(1) and (b) of 42 U.S.C. § 666 do not mention any procedure for collecting alimony or child support other than income withholding subject to the percentage limitations of the Consumer Credit Protection Act (CCPA), codified at 15 U.S.C. § 1673.³ "Legal process" is defined as "any writ, order, summons or similar process in the nature of garnishment" issued by a court or administrative agency. See 42 U.S.C. § 659(i)(5)(A)(i) (emphasis added). The regulations at 5 C.F.R. § 581 et seq., and POMS also do not authorize any form of Title II benefits assignment other than income withholding in the nature of garnishment for the limited purposes stated.

Second, 26 U.S.C. §§ 6331 and 6334(c), permit the Internal Revenue Service to levy upon Social Security benefits only for collection of Federal income taxes.

Utah State Law

Utah law permits garnishment of a debtor's earnings by ORS to enforce child support obligations. See Utah Code Ann. § 62A-11-312.5(3)(a) (2004). A writ of garnishment in Utah cannot seek more than 50% of a debtor's disposable income. See id. § 62A-11-316(4). Utah R. Civ. P. 64D(d)(vii) (2004) exempts Social Security benefits from "earnings" subject to garnishment, except when sought to satisfy child support obligations. However, notices of lien-levy, are treated separately from garnishments. Utah Code Ann. § 62A-11-304.1(h)(i) (2004) permits ORS to secure assets to satisfy past-due support by (i) intercepting or seizing periodic or lump sum payments from (A) a state or local government agency, (B) judgments, settlements, and lotteries.

DISCUSSION

We do not believe that the Agency is obligated to pay the Utah ORS in accordance with this notice of lien-levy. This notice is not expressly authorized by 42 U.S.C. §§ 659 and 666 or the accompanying regulations at 5 C.F.R. § 581 et seq. and is beyond income withholding permitted by those provisions. In addition, the notice of lien-levy is unlawful under the relevant portions of the Consumer Credit Protection Act. Finally, this notice is also arguably impermissible under State law.

As we discussed at length in the April 30, 2004 opinion, the modification of the anti-assignment provision at 42 U.S.C. § 659 allows income withholding "in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 666 of this title . . . and to any other legal process brought, by a State agency administering a program under a State plan approved under this part." See 42 U.S.C. § 659(a) (emphasis added). See Memorandum from RCC, Denver to AD VIII, Denver, State of Utah Notices of Lien-Levy for Past Due Support, at 7-8 (April 30, 2004). Likewise, the regulations state that legal process must be accomplished pursuant to State procedures in effect pursuant to subsections (a)(1) and (b) of section 666 of Title 42. See 5 C.F.R. § 581.202(b). As mentioned previously, subsections (a)(1) and (b) of section 666 only mention income withholding subject to the limitations of the CCPA, and neither the statute nor the regulations mention any other mechanism by which States or private parties can seize Social Security benefits to satisfy child support obligations. See 42 U.S.C. § 666(a)(1), (b); 15 U.S.C. § 1673(b); see also 5 C.F.R. § 581 et seq. Income withholding permissible under section 659 must not exceed the limits of section 1673(b) of the CCPA. See 42 U.S.C. § 666(b)(1). In this notice, the amounts demanded exceed any limitations for income withholding.

Moreover, "any other legal process" is defined as any "writ, order, summons or similar process in the nature of garnishment." See 42 U.S.C. § 659(i)(5)(A)(i) (emphasis added). For the following reasons, we do not believe that the notices of lien-levy in each of these three cases are "in the nature of garnishment." While garnishments and notices of lien-levy are both procedures by which property of an obligor in possession of a third party is sought to satisfy child support obligations, the similarities end there. See Utah Code Ann. §§ 62A-11-312.5, 62A-11-304.1(h)(i). A garnishment is the only method the Utah statutes permit to seize "earnings," the definition of which expressly includes Social Security benefits when sought for satisfaction of child support obligations. Furthermore, as discussed above, a notice of lien-levy is a one time attempt to seize specific property in its entirety, while garnishment is limited to 50% of the obligor's disposable earnings, and when used to enforce child support can be "continuing" over a period of time until the obligation is satisfied. See Utah Code Ann. §§ 62A-11-304.1(h)(i), 62A-11-316(4); see also Utah R. Civ. P. 64D(a)(iii), (d)(vii), (v), 69(b). Therefore, we do not believe that this notice of lien-levy is "in the nature of garnishment," insofar as it seeks a one-time seizure of the claimant's property.

Because the modification of the anti-assignment provision or waiver of sovereign immunity does not authorize any other procedure other than those in the "nature of garnishment" for income withholding of Social Security benefits subject to CCPA limitations in order to satisfy child support obligations, and because the notices of lien-levy are "not in the nature of garnishment," we believe that the Agency is not required to honor them. No legal proceeding, including garnishment, may be brought against the United States absent a waiver of sovereign immunity. See Millard v. United States, 916 F.2d 1, 2 (Fed. Cir. 1990) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)).

This notice also may be an impermissible means of seizing Social Security benefits under State law. As discussed above, under Utah law, ORS is authorized to "secure assets to satisfy past-due support" by "intercepting or seizing periodic or lump-sum payments" from "a state or local government agency, including unemployment compensation, worker's compensation, and other benefits" and "judgments, settlements, and lotteries." See Utah Code Ann. § 62A-11-304.1(h)(i). Social Security Title II benefits are not from "a state or local government agency," nor are they a judgment, settlement or lottery. In the case of this claimant, he receives a monthly benefit of $772 per month, which cannot be classified as a "judgment, settlement or lottery." Therefore, this notice of lien-levy against a monthly benefit is arguably also improper under Utah law.

Finally, even if the notice was valid, when the Agency fails to comply with legal process for enforcement of child support, we have advised that the Agency is not liable for money damages. See Memorandum from RCC, Seattle, to AD II, Seattle, Validity of Oregon Income Withholding Order Against Past-Due Benefits, at 4 (July 3, 2003).

CONCLUSION

Accordingly, we advise that the Agency is not required to honor this notice because it (a) is not expressly authorized by 42 U.S.C. §§ 659 and 666 or the accompanying regulations at 5 C.F.R. § 581 et seq.; (b) violates the provisions of the Consumer Credit Protection Act, 15 U.S.C. §§ 1671-1677; and (c) is arguably impermissible under State law.

Deana R. E~-L~

Acting Regional Chief Counsel

By:__________________________

Laura R~-B~

Assistant Regional Counsel

¹We previously advised in an opinion dated April 30, 2004, that we believe that a levy can be considered "in the nature of garnishment" in some instances. Therefore, the agency should not categorically reject "levies" for child support or alimony. Such determinations must be made on a case by case basis. See Memorandum from RCC, Denver to AD VIII, Denver, State of Utah Notices of Lien-Levy for Past Due Support, at 7-8 (April 30, 2004).

²All references to the United States Code (U.S.C.) and the Code of Federal Regulations (C.F.R.) are to the 2000 and 2003 editions, respectively.

³Section 1673(b) states that the maximum part of the aggregate disposable earnings (compensation paid for personal services including periodic payments pursuant to a pension or retirement plan), subject to garnishment shall not exceed the following limits: (1) 50%, where the individual is supporting a spouse or dependent child, other than the spouse or child that is the subject of the garnishment order; (2) 55% where the individual is not supporting such a spouse or dependent child and is 12 weeks or more in arrears; (3) 60% where the person is not supporting a spouse or dependent child; and (4) 65% where the person is not supporting a spouse or dependent child; and (4) 65% where the person is not supporting a spouse or dependent child and is 12 weeks or more in arrears. See 15 U.S.C. § 1673(b).