BACKGROUND
This memorandum responds to your July 27, 2012, written request for an opinion regarding
the possible assignment of benefits involving deceased number-holder James. Jeffrey,
the son of the decedent, James stood to inherit an underpayment from SSA in the amount
of $4,766.10. However, the Connecticut IV-D agency [1] filed a lien for overdue child support against Jeffrey ’ inheritance. On March 20,
2012, the Connecticut Probate Court ordered SSA to pay $4,516.10 to the Connecticut
IV-D agency, finding that the underpayment was part of the inheritance, and thus,
subject to the lien. You asked whether the March 20, 2012, order from the Connecticut
Probate Court satisfies the criteria of POMS GN 02410.210. This question, in turn, requires an evaluation of two sub-issues: (1) whether the
order is clearly to enforce, modify, or terminate an obligation to pay child support
or alimony; and (2) whether the order “on its face” conforms to the laws of the issuing
jurisdiction. As explained below, the order is clearly to enforce an obligation to
pay child support, and the order does, “on its face,” conform to the laws of the issuing
jurisdiction. Accordingly, the order satisfies the criteria of POMS GN 02410.210.
Discussion
The Social Security Act generally precludes the assignment, attachment, or garnishment
of money paid or payable pursuant to Title II of the Act. See 42 U.S.C. § 407(a). However, an exception exists for money due or payable to an individual
when a state agency administering a Part IV-D program[2] seeks withholding of payment to enforce the legal obligation of the individual to
provide child support. See 42 U.S.C. § 659(a). The United States is relieved from liability for payment to any
individual “pursuant to legal process regular on its face” if the payment is made
in accordance with the requirements of 42 U.S.C. § 659 and the regulations issued
to carry out section 659. See 42 U.S.C. § 659(f)(1). “Legal process” is defined in pertinent part as “any writ,
order, summons, or other similar process in the nature of garnishment (A) which is
issued by (i) a court or an administrative agency of competent jurisdiction in any
State, territory, or possession of the United States… (B) which is directed to, and
the purpose of which is to compel, a governmental entity which holds moneys which
are otherwise payable to an individual to make a payment from the moneys to another
party in order to satisfy a legal obligation of the individual to provide child support
or make alimony payments.” 42 U.S.C. § 659(i)(5). The implementing regulations require
federal agencies to comply with such legal process unless “[i]t does not, on its face,
conform to the laws of the jurisdiction from which it was issued…”. See 5 C.F.R. § 581.305(a)(1). [3]
The Agency’s procedures for processing garnishment orders are set forth at POMS GN 02410.210. As relevant here, the policy instructs that the garnishment order should be reviewed
to determine “if the order is clearly to enforce, modify, or terminate an obligation
to pay child support or alimony.” See POMS GN 02410.210.A.3.a. Assuming the order is clearly to enforce, modify, or terminate an obligation
to pay child support or alimony, the order must be assessed to determine whether the
order “‘on its face’ conforms to the laws of the issuing jurisdiction.” See POMS GN 02410.210A.3.b.
A. The Probate Court Order is Clearly to Enforce an Obligation to Pay Child Support.
The Probate Court order of March 20, 2012, states that the “State of Connecticut IV-D
Agency (Department of Social Services’ Bureau of Child Support Enforcement) previously
filed a lien for overdue child support against Jeffrey ’ inheritance herein, which
inheritance would include the prospective payment from the Social Security Administration.
It is Ordered and Decreed that the Social Security Administration shall pay the remaining
$4,516.10 of said $4,766.10 to the State of Connecticut IV-D Agency…”. The order clearly
states that SSA is to make payment to enforce a lien that the Connecticut IV-D agency
obtained for overdue child support. Thus, the order satisfies the first prong of POMS
GN 02410.210.A.3.
B. The Probate Court Order “On its Face” Conforms to the Laws of Connecticut.
To satisfy the requirements of POMS GN 02410.210A.3.b, the order must conform, “on its face” to the laws of Connecticut. The Supreme Court
has provided significant guidance on the meaning of the phrase “on its face” in this
context. See U.S. v. Morton, 467 U.S. 822 (1984). In the M~ case, the U.S. Air Force complied with a duly served writ of garnishment issued by
an Alabama state court, ordering that the wages of an Air Force colonel be garnished
to satisfy court ordered alimony and child support. M~, 467 U.S. at 824. Colonel M~ sued the federal government to recover the garnished wages, arguing that since he
was stationed in Alaska at the time the garnishment order was issued, the Alabama
state court did not have personal jurisdiction over him, and thus, the writ of garnishment
did not constitute “legal process valid on its face.” Id. at 825-27. The Court unanimously rejected the argument that the government had a duty
to inquire into whether the court issuing the garnishment order had personal jurisdiction
over the obligor who owed past due child support. See M~, 467 U.S. at 828-36. The Court cited with approval an opinion by the Comptroller
General that explained:
The inquiry into whether an order is valid on its face is an examination of the procedural
aspects of the legal process involved, not the substantive issues. Whether a procedure
conforms or is regular ‘on its face’ means just that. Facial validity of a writ need
not be determined ‘upon the basis of scrutiny by a trained legal mind,’ nor is facial
validity to be judged in light of facts outside the writ’s provisions which the person
executing the writ may know. M~, 467 U.S. at 829 n.10 (quoting In re M~, 61 Comp. Gen. 229, 230-231 (1982)).
The Supreme Court did explain that to be valid, the order would need to be issued
by a court “with subject-matter jurisdiction to issue such orders.” M~, 467 U.S. at 836. The U.S. Court of Claims provided additional guidance on the necessary
inquiry to determine whether an order is valid “on its face.” See Millard v. U.S., 16 Cl. Ct. 485, 489 (Cl. Ct. 1989), aff’d 916 F.2d 1 (Fed. Cir. 1990), cert denied
500 U.S. 916 (1991). As the M~ court explained, “‘regular on its face,’ means nothing more than what it says: legal
process whose validity, facially judged, appears to evidence a legitimate exercise
of jurisdiction on the part of the issuing authority. Assessed against this standard
then, the question is not whether there are infirmities underlying the garnishment
order, … rather, the question is whether the order shows anything on its face that
provides reasonable notice that it was issued without authority of law.” M~, 16 Cl. Ct. at 489. As explained below, the Probate Court’s order does not show anything
on its face that provides reasonable notice that it was issued without authority of
law. Id. Thus, the order “on its face” complies with the law of the issuing jurisdiction,
satisfying the requirements of POMS GN 02410.210.3.b.
The Probate Court order of March 20, 2012, dictates that SSA is to pay the State of
Connecticut IV-D agency to enforce a lien filed by the IV-D agency (the Bureau of
Child Support Enforcement). In Connecticut, probate courts are courts of limited jurisdiction,
and have authority only as provided by statute. See In re Adoption of Baby Z., 724 A.2d 1035, 1042-46 (Conn. 1999). The Probate Court has the power to determine
title or rights of possession in any property that constitutes a decedent’s estate,
and to make any lawful orders or decrees to carry into effect the power and jurisdiction
conferred on the probate courts by the laws of Connecticut. See Conn. Gen. Stat. Ann.
§ 45a-98(a)(3), (7). The Probate Court explained in its order that SSA owed an underpayment
of $4,766.10 to the estate of James , and that this overpayment was part of the inheritance
of the decedent’s son, Jeffrey . Further, the Probate Court explained that the State
of Connecticut IV-D agency had obtained a lien for overdue child support against Jeffrey
’s inheritance. The Probate Court therefore ordered that SSA pay $4,516.10 of the
$4,766.10 to the State of Connecticut IV-D agency. As the Probate Court had the power
to determine rights of possession to the property that was part of the decedent’s
estate, and to make any lawful orders or decrees to carry that power into effect,
the order, on its face, was valid. See Conn. Gen. Stat. Ann. § 45a-98(a)(3), (7); M~, 467 U.S. at 836; M~, 16 Cl. Ct. at 489.
One might argue that the Probate Court’s order was facially invalid, because as a
court of limited authority, the Probate Court lacked jurisdiction to issue a child
support order. This interpretation would emphasize that the statutory grant of jurisdictional
authority for the probate courts does not authorize the probate courts to address
or issue child support orders. See Conn. Gen. Stat. Ann. § 45a-98. Thus, the validity of the order would turn on whether
the Probate Court issued the order under the statutory provision authorizing the Probate
Court to make any lawful orders or decrees to carry its power into effect. See Conn. Gen. Stat. Ann. § 45a-98. The Probate Court explained in its order that the
Bureau of Child Support Enforcement had previously filed a lien for overdue child
support against Jeffrey ’ inheritance. However, the mere filing of the lien does not
vest the Probate Court with authority to order assignment of the underpayment to the
State of Connecticut. Connecticut law provides that payment of past due child support
may be enforced by a lien obtained by the state on any property that a person owing
past-due child support has an interest in when several procedures are satisfied. [4] See Conn. Gen. Stat. Ann. § 52-362d(a). The face of the Probate Court’s order is silent
as to whether the IV-D agency performed the final step necessary to obtain payment
of the lien. Arguably, this could support a finding that the order was not valid “on
its face.”
However, such an interpretation would contravene the Supreme Court’s guidance in M~
that the “‘[f]acial validity of a writ need not be determined ‘upon the basis of scrutiny
by a trained legal mind,’ nor is facial validity to be judged in light of facts outside
the writ’s provisions which the person executing the writ may know.’” See M~, 467 U.S. at 829 n.10 (quoting M~, 61 Comp. Gen. at 230-31). This interpretation would require investigation into facts
outside of the order’s provisions, as well as scrutiny by a trained legal mind. The
M~ decision as well as the M~ decision indicate that such a probing search is unnecessary.
See id.; M~, 16 Cl. Ct. at 489 (“the question is not whether there are infirmities underlying
the garnishment order… rather, the question is whether the order shows anything on
its face that provides reasonable notice that it was issued without authority of law”).
Here, the Probate Court had subject matter jurisdiction to issue orders determining
rights of possession to the property that was part of the decedent’s estate and to
make any lawful orders or decrees to carry that power into effect. See Conn. Gen. Stat. Ann. § 45a-98(a)(3), (7). Further, the IV-D agency had power to
collect the property subject to the lien. Conn. Gen. Stat. Ann. § 52-362d. The Probate
Court’s order of March 20, 2012, conforms to the laws of Connecticut “on its face.”
Because the Probate Court’s order is clearly an order to enforce an obligation to
pay child support, and conforms to the laws of Connecticut “on its face,” the Probate
Court’s order of March 20, 2012, satisfies the criteria of POMS GN 02410.210.