You requested a legal opinion as to whether you should withhold a portion of an underpayment
                  due on the account of Willie E. N~, a deceased number holder (NH), in order to satisfy
                  an Indiana child support garnishment order against the NH. For the reasons discussed
                  below, we conclude that an underpayment due when the underpaid individual is deceased
                  is subject to garnishment for child support under § 459(a) of the Social Security
                  Act (Act). Moreover, at least one of the child support garnishment orders in this
                  case met all of the requirements for SSA to comply with the order. The garnishment
                  amount, however, is restricted under applicable Indiana law. Therefore, SSA should
                  withhold a portion of the NH’s underpayment in accordance with § 459(a) of the Act
                  and Indiana law and pay it to the appropriate party for child support purposes. The
                  remaining amount should be disbursed according to the hierarchy set forth in § 204(d)
                  of the Act.
               
               BACKGROUND
               In September 2006, the NH filed a claim for Title II benefits.
               In November 2007, the Vanderburgh County (Indiana) Child Support Division issued an
                  Order/Notice to Withhold Income for Child Support to SSA. The order showed the NH
                  as the obligor and Elizabeth Y~, the mother of the NH’s child, as the obligee. The
                  order also showed that the NH owed child support arrearages totaling $7,065.20.
               
               The NH died in February 2009 in Indiana.
               In April 2009, SSA received a One-Time Order/Notice-Lump Sum Payment for a total child
                  support arrearage of $7,065.20.
               
               In June 2009, an ALJ issued a favorable decision on the NH’s claim, finding that the
                  NH became disabled in August 2006. SSA then assessed an underpayment on the NH’s account;
                  the underpayment has not yet been disbursed.
               
               DISCUSSION
               I. Underpayments Due When an Individual is Deceased  are Subject to Garnishment to Pay
                     Child Support Obligations Owed by  the Deceased Individual
               When a beneficiary has died before receiving a Title II underpayment and SSA has been
                  served with a garnishment order, there are two statutory provisions on point that
                  call for different methods of disbursing the underpayment. First, § 204(d) of the
                  Act directs SSA to pay any underpayment due a deceased individual to certain survivors
                  of the individual according to a specific hierarchy. See  also 20 C.F.R. § 404.503(b); POMS GN 02301.030. Second, § 459(a) of the Act provides that, not withstanding any other provision
                  of law, Title II benefits due from, or payable by, the United States to an individual
                  are subject to withholding and any other legal process to enforce a legal obligation
                  to provide child support or alimony in accordance with state law. See also 5 C.F.R. § 581.101(a); 20 C.F.R. § 404.1820(b); POMS GN 02410.200(A). This latter provision does not specifically address the situation where the individual
                  is deceased and has an underpayment on his account. Thus, the question is whether
                  SSA should: (1) pay the underpaid amount to the appropriate survivor(s) pursuant to
                  § 204(d) without garnishing any portion of the underpayment, or (2) withhold the underpayment
                  and pay it to the appropriate party for child support purposes, pursuant to § 459(a),
                  and disburse any remainder in accordance with § 204(d).
               
               The Office of Program Law (OPL) has previously considered this question and advised
                  that there is legal support for withholding an underpayment to honor a garnishment
                  order when the underpaid individual is deceased. See OPL, Withholding an Underpayment  After the Beneficiary’s Death, State of Michigan Garnishment
                     Order (March 1, 2004) (discussing regulations, POMS, case law, and legislative history
                  of § 459). Specifically, OPL reasoned that § 459(a) takes priority, notwithstanding
                  § 204(d), whenever money is due from, or payable by, the United States to an individual.
                  OPL went on to conclude that an underpayment due when an individual is deceased should
                  be considered money due to the deceased individual, not to his survivors, and thus
                  subject to garnishment under § 459(a).Thus, [1] we consider the underpayment in this case as being due to the deceased NH, and not
                  his survivors. Accordingly, SSA may withhold the underpayment for purposes of satisfying
                  the garnishment orders pursuant to § 459(a), provided that the orders meet certain
                  requirements, as discussed below.
               
               II. The 2007 Indiana Garnishment Order Constitutes  “Legal Process” that, on its Face,
                     Conforms to the Laws  of the Issuing Jurisdiction
               Under the Act, SSA is required to comply with legal process to enforce an individual’s
                  support obligations, the same as if SSA were a private person. See Section 459(b) of the Act; see also 5 C.F.R. §§ 581.101(b), 581.305(a). “Legal process” is defined as “any writ, order,
                  summons, notice to withhold income pursuant to [Section 466 of the Act], or other
                  similar process in the nature of garnishment” which is issued by (1) a court of competent
                  jurisdiction (domestic or foreign), (2) an authorized official pursuant to a court
                  order or pursuant to state or local law, or (3) a State agency authorized to issue
                  income withholding notices pursuant to State or local law or pursuant to Section 466(b)
                  of the Act; and is directed to a governmental entity to compel it to make a payment,
                  from moneys otherwise payable to an individual, to another party in order to satisfy
                  the individual’s legal obligation to provide child support or alimony. See Section 459(i)(5) of the Act; 5 C.F.R. § 581.102(f); POMS GN
                     
                     02410.200(B). In addition, the legal process must, on its face, conform to the laws of the
                  issuing jurisdiction. See 5 C.F.R. § 581.305(a)(1); POMS GN 02410.210(A)(3)(b).[2]
               Here, SSA received two garnishment orders. The Vanderburgh County (Indiana) Child
                  Support Division issued an Order/Notice to Withhold Income for Child Support dated
                  November 14, 2007, which we reviewed. You indicated that SSA also received a One-Time
                  Order/Notice-Lump Sum Payment dated April 2, 2009, but we were not provided a copy
                  of such order. As long as the November 2007 order was valid, it is not necessary to
                  also review the April 2009 order, which appears to be duplicative. In Indiana, an
                  income withholding order remains in effect until a child support obligation is paid
                  in full. See Ind. Code § 31-16-15-2.6. Thus, the November 2007 order was in effect when the NH’s
                  underpayment became “payable” (i.e., when the ALJ awarded benefits in the NH’s claim) in June 2009.
               
               Based on our review, the November 2007 order appears to satisfy all of the requirements
                  for “legal process.” Under Indiana law, a Title IV-D (child support enforcement) agency
                  is authorized to issue income withholding orders. See Ind. Code §§ 31-16-15-0.5(b), 31-16-15-2.5. The Indiana Child Support Bureau is charged
                  with administering the Title IV-D program, and under a cooperative agreement, local
                  county prosecutor’s offices perform child support enforcement responsibilities. See Indiana Dept. of Child Services, Child Support: About Ushttp://www.in.gov/dcs/2429.htm, (last visited April 14, 2011). Accordingly, in this case the November 2007 order
                  was issued by the Vanderburgh County Prosecutor’s Office, Child Support Division.
                  See Vanderburgh Prosecuting Attorney, Child Support Division, http://www.vanderburghprosecutor.org/wps-html/ChildSupport/ (last visited April 14, 2011).
               
               In addition, the order was directed to SSA to make payment to the state’s collection
                  unit in order to satisfy the NH’s child support arrearages.
               
               We believe that the November 2007 order also satisfies the requirement that it, “on
                  its face, conform to the laws of the jurisdiction from which it was issued.” 5 C.F.R.
                  § 581.305(a)(1). Although this phrase is not defined in the regulations, there is
                  a similar phrase in the Act and implementing regulations that the government is relieved
                  from liability for complying with legal process which is “regular on its face.” See Section 459(f)(1) of the Act; 5 C.F.R. § 581.305(e)(1). In United  States v. Morton, 467 U.S. 822 (1984), the U.S. Supreme Court treated the two phrases as interchangeable.
                  See id. at 834-46. As such, the inquiry whether legal process “conforms on its face” is
                  essentially similar to the inquiry whether legal process is “regular on its face.”
                  As for the level of scrutiny required by these terms, the Court noted:
               
               Whether a process 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.
               
               Id. at 829 n.10 (internal quotations and citation omitted). Other cases considering
                  the level of scrutiny required for “regular on its face” also suggest that it is superficial,
                  and that no inquiry is required beyond the face of the document. See Millard v. U.S., 16 Cl. Ct. 485, 488-89 (Cl. Ct. 1989), judgment affirmed, 916 F.2d 1 (Fed.Cir. 1990) (“the question is whether the order shows anything on
                  its face that provides reasonable notice that it was issued without authority of law”);
                  Trimble v. U.S. Social Security, 369 Fed.Appx. 27, 2010 WL 764050, at *4-*5 (11th Cir. 2010).
               
               Here, the November 2007 order was on a regular form established by the Indiana Child
                  Support Bureau. In addition, the order stated the names of the obligor, obligee, and
                  income payor; the basis for the action being taken (i.e., an order for child support from the state of Indiana); and the amount being sought
                  in arrearages. It was dated and signed by an attorney from the Vanderburgh County
                  Prosecutor’s Office, Child Support Division, who had authority under Indiana law to
                  issue income withholding orders. In short, there was nothing on the face of the order
                  indicating that it had been issued without authority of law. See Morton, 467 U.S. at 825, 836 (implicitly agreeing with trial court’s conclusion that garnishment
                  order was “regular on its face” because it was on the regular form used by the state
                  courts); Millard, 16 Cl. Ct. at 489 (order was “regular on its face” where it recited names of the
                  parties, basis for the action being taken, and amounts to be withheld; and bore seal
                  of the issuing court, stamped signature of judge, and attestation by clerk of the
                  court). Thus, we conclude that the November 2007 order was legal process that, on
                  its face, conformed to the laws of the issuing jurisdiction. Accordingly, SSA should
                  comply with the order to the extent indicated in the next section.
               
               III. The Underpayment is Subject to the Garnishment  Limits Prescribed by Indiana Law 
               The Consumer Credit Protection Act (CCPA) limits the percentage of an individual’s
                  aggregate disposable earnings that is subject to garnishment to enforce a support
                  order. See 15 U.S.C. § 1673(b)(2); see also 5 C.F.R. § 581.402(a); POMS 02410.215(A)(3). In Kokoszka v. Bedford, 417 U.S. 642 (1974), the U.S. Supreme Court held that the term “disposable earnings”
                  was limited to “periodic payments of compensation needed to support the wage earner
                  and his family on a week-to-week, month-to-month basis,” and did not include a tax
                  refund. Id. at 651. Although our case deals with a lump-sum Title II underpayment instead of
                  a lump-sum tax refund, we believe the same rationale applies. See Mem. from Reg. Chief Counsel, Chicago, to Asst. Reg. Comm’r-MOS, Michigan--Garnishment of Underpayment to Deceased Title II Beneficiary’s  Account--Child
                     Support (March 10, 2010). Therefore, we conclude that the CCPA’s restrictions on the amount
                  subject to garnishment do not apply to lump-sum Title II underpayments.
               
               Since the NH’s underpayment is not subject to the CCPA, it is garnishable in its entirety
                  under federal law. However, in the absence of controlling federal law concerning a
                  subject matter, states may enact their own laws concerning that subject matter without
                  running afoul of the Supremacy Clause, U.S. Const. Art. VI, cl. 2. In other words,
                  since the CCPA does not cover lump-sum payments, states are free to enact their own
                  laws restricting the garnishment of lump-sum payments. And in any event, the CCPA
                  does not preempt state garnishment laws that are more restrictive, i.e., result in a smaller amount garnished. See 15 U.S.C. § 1677; see also Evans v. Evans, 429 F.Supp. 580, 582 (W.D. Okl. 1976); Hodgson v. Hamilton Mun.  Ct., 349 F.Supp. 1125, 1133 (S.D. Ohio 1972). Thus, we must turn to applicable state
                  law to determine whether there are any state limits on the garnishment of lump-sum
                  payments.
               
               According to the POMS, when considering any state limits on garnishment, SSA applies
                  the law of the state where the beneficiary resides. See POMS GN 02410.215(A)(3). Here, the NH was living in Indiana at the time of his death, so Indiana law
                  applies. Indiana law provides that if an obligor is entitled to a lump-sum payment
                  and owes child support arrearages, the income payor must withhold either (1) the amount
                  in arrears, or (2) the amount of support the obligor is required to pay each week
                  multiplied by the number of weeks represented by the lump-sum payment, whichever is
                  less, up to the maximum permitted under 15 U.S.C. § 1673(b). See Ind. Code § 31-16-15-19. Where, as here, the original support ordered is 12 or more
                  weeks in arrears, the maximum permitted under 15 U.S.C. § 1673(b) is 55% of the underpayment
                  (if the NH was supporting a spouse or dependent child at the time of his death) or
                  65% of the underpayment (if the NH was not supporting a spouse or dependent child
                  at the time of his death). See 15 U.S.C. § 1673(b)(2). Accordingly, SSA should withhold a portion of the NH’s underpayment
                  in accordance with Indiana law, and distribute the remainder according to the hierarchy
                  set forth in § 204(d) of the Act.
               
               CONCLUSION
               For the reasons discussed above, we conclude that SSA should comply with the November
                  2007 garnishment order and withhold a portion of the NH’s underpayment, as limited
                  by applicable Indiana law.
               
               Donna L. C~
               Regional Chief Counsel, Region V
               By:_____________________
               Cristine B~