You have asked for a legal opinion regarding whether the Social Security Administration
                  (SSA) may withhold Title II retirement benefits and Title XVI Supplemental Security
                  Income (SSI) benefits to satisfy a restitution order entered as part of the individual's
                  criminal sentence.
               
               FACTUAL BACKGROUND
               A criminal investigation established that Jimmy V~ helped at least thirty individuals
                  fraudulently obtain benefits under Title II and Title XVI of the Social Security Act.
                  Mr. V~ pled guilty to Conspiracy to Defraud the United States, Mail Fraud, and Aiding
                  and Abetting. He was not receiving benefits himself. He was ordered to pay restitution
                  in the amount of $767,215.68 to SSA.
               
               After serving a five-year prison sentence, he began a three-year term of supervised
                  release. He recently applied for Title II retirement benefits and SSI benefits as
                  an aged individual with an ineligible spouse. The Tacoma, Washington Field Office
                  determined that he is potentially eligible for a Title II benefits in the amount of
                  $418.00 a month, and SSI benefits in the amount of $269.20 a month.
               
               DISCUSSION
               SSA cannot use the overpayment provisions of the Social Security Act to collect monies
                  owed under the restitution order. However, with the assistance of the U.S. Attorney
                  General, Mr. V~'s Title II benefits may be levied to satisfy the restitution order.
                  Because Mr. V~ was convicted before 1996, however, SSI benefits may not be levied.
               
               The Overpayment Provisions
               Title II and Title XVI of the Social Security Act allow for the recovery of overpayments
                  made to an individual through adjustments and reductions in any future benefits that
                  an individual may receive. 42 U.S.C.A. §§ 404, 1383(b)(1)(A)-(B). The regulations
                  define an overpayment as a payment(s) made to an individual in excess of the amount
                  due to that individual under the Act. See 20 C.F.R. §§ 404.501, 416.537 (1998). Although the Program Operations Manual System
                  (POMS) addresses the recovery of overpayments after a fraud conviction, the POMS address
                  the issue solely in the context of an individual convicted of fraud regarding his
                  own benefits.  See POMS GN 02201.55. Therefore, the POMS are based on the regulatory definition of overpayment
                  that only allows the Commissioner to withhold an individual's current benefits, for
                  the overpayment of past benefits to that individual. Id. This interpretation is also supported by the legislative history of the Social Security
                  Act and its amendments. Congress has consistently discussed the recovery of overpayments
                  from an individual, only in relation to overpayments made to the same individual.
                  See, e.g., S. REP. NO. 81-836 (1949); CONF. REP. NO. 89-97 (1965); CONF. REP. NO. 90-1030 (1967);
                  H.R. REP. NO. 92-231 (1971).
               
               Mr. V~ never received an overpayment as contemplated by the Social Security Act's
                  overpayment provisions. 42 U.S.C.A. §§ 404, 1383(b)(1)(A)-(B). Rather, he fraudulently
                  assisted others in receiving overpayments. While the restitution order requires Mr.
                  V~ to repay SSA for the overpayments made to those other people, SSA must follow normal
                  procedures for the enforcement of restitution orders set forth in Title 18 of the
                  United States Code. SSA may not use the overpayment provisions of the Social Security
                  Act.
               
               The Levy Process
               At the time of Mr. V~'s conviction, a court could properly order restitution upon
                  a conviction of a crime specified in Title 18 of the United States Code. See 18 U.S.C.A.
                  § 3663 (1994), the Victim and Witness Protection Act (VWPA). Mr. V~ was convicted
                  of violations of 18 U.S.C.A. §§ 371 and 1341 and, therefore, the restitution order
                  was within the authority of the court. 18 U.S.C.A. § 3663.
               
               Restitution must be made to a victim of an offense, and courts have determined that
                  SSA, as well as other government agencies may be considered a victim under the VWPA.
                  See United States v.
                     Martin, 128 F.3d 1188, 1190-1192 (7th Cir. 1997); United
                     States v. Streebing, 987 F.2d 368, 374 (6th Cir. 1993). Therefore, Mr. V~ was properly directed to make
                  restitution to SSA.
               
               An order of restitution may be enforced by the United States in the same manner provided
                  for the collection and payment of fines set forth in subchapter B of chapter 229 of
                  title 18, in the same manner as a judgment in a civil action. A victim may also enforce
                  a restitution order in the same manner as a judgment in a civil action. See 18 U.S.C.A. § 3664(h)(1)-(2). Subchapter B of chapter 229, codified at 18 U.S.C.A.
                  §§ 3611-3615, imposes "a lien in favor of the United States” that arises at the time
                  of judgment and may be enforced “upon all the property belonging to the person fined.”
                  18 U.S.C.A. § 3613; see
                     also United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993). The lien expires twenty (20) years after entry
                  of judgment, or upon the death of the defendant. 18 U.S.C.A. § 3613(b).
               
               The U.S. Attorney General is responsible for enforcing the lien through the levy provisions
                  of the Internal Revenue Code. 18 U.S.C.A. §§ 3612(c) and 3613(c). The Internal Revenue
                  Code permits the Attorney General to levy Mr. V~'s property, but expressly exempts
                  SSI benefits from the categories of property subject to levy. 26 U.S.C.A. § 6334(a)(11)(A).
               
               The anti-assignment provision in section 207 of the Social Security Act, 42 U.S.C.
                  § 407, does not prevent enforcement of the restitution order against Mr. V~'s Title
                  II benefits. Section 207 of the Act provides that “the right of any person to any
                  future payment shall not be transferable or assignable, at law or in equity. . .,“nor
                  “subject to execution, levy, attachment, garnishment, or other legal process . . .
                  .” 42 U.S.C.A. § 407. The anti-assignment provision is very strict and provides further
                  that “no other provision of law, enacted before, on, or after the date of the enactment
                  of this section [the section was enacted August 10, 1939, P.L. 76-379, §207], 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.” 42 U.S.C.A. § 407 (emphasis added). Fortunately, the relevant Internal Revenue Code
                  provisions contain an express reference to section 207 of the Act. 26 U.S.C.A. § 6334(c).
                  That section provides that:
               
               [n]otwithstanding any other law of the United States (including section 207 of the
                  Social Security Act), no property or rights to property shall be exempt from levy
                  other than the property specifically made exempt by subsection (a). 26 U.S.C.A. §
                  6334(c). Therefore, the Attorney General may levy Mr. V~'s Title II benefits to satisfy
                  the restitution order.
               
               Case precedent supports the proposition that Title II benefits are subject to levy
                  pursuant to the Internal Revenue Code. In
                     Bonetti v. Department of the Treasury, No. 90 C 2394, 1990 WL 155619 (S.D.N.Y. Oct. 12, 1990), the plaintiffs, a retired
                  couple, challenged a levy of Title II benefits to collect a tax deficiency owed by
                  the husband's former corporation. They argued that the Title II benefits were exempt
                  from levy. The Federal district court held that “[s]ection 6334(c) expressly provides
                  that Social Security funds are not exempt from levy.” Id. at *1. Likewise, in Cleveland v. Secretary of Health and Human
                     Services, No. 93 C 0994, 1993 WL 321755 (N.D. Ill. Aug. 19, 1993), the plaintiff claimed that
                  his Title II benefits were not subject to levy. In dismissing the suit for lack of
                  subject matter jurisdiction, the Federal district court commented that Title II benefits
                  are subject to levy for unpaid taxes pursuant to 26 U.S.C. § 6334(c). Id. at *3-4.
               
               Ms. Anastasia B~, an Assistant U.S. Attorney in the Financial Litigation Unit in the
                  United States Attorney's Office for the Western District of Washington, has indicated
                  that she will assist SSA in the levy process. On SSA's behalf, we are submitting a
                  letter to her to begin the levy process.
               
               Lucille G. M~
 Acting Regional Chief Counsel
               
               By:__________________________
 Norman M. B~
 Assistant Regional Counsel