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.
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.
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,  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).
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
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.
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