We could not honor two Garnishment after Judgment agreements that were served in December 2013 and April 2014 after the plaintiff filed petitions to garnish the defendant’s monthly benefits.

The initial judgment was not stated to be for child support or alimony. Although the petitioner stated that the monies owed were due to child support, the judgment did not specify that this was the cause of the debt. This agreement does not constitute “legal process” under the Social Security Act in regard to garnishment for child support.

QUESTION PRESENTED

You asked whether the Social Security Administration (SSA or agency) should garnish a number holder’s benefits pursuant to a Petition for Writ of Garnishment (Petition) or an Amended Petition for Writ of Garnishment for Child Support Judgment (Amended Petition). In addition, you asked whether the agency should comply with two Garnishments after Judgment that direct the agency to appear before a Dallas district court and respond to questions about a number holder’s benefits.

ANSWER

We conclude that the agency may not garnish benefits in this case. Although in certain instances federal law permits a court to order garnishment of Social Security benefits to enforce an individual’s legal obligation to provide child support, we conclude that neither the Petition, the Amended Petition, nor the two Garnishments after Judgment satisfy the necessary legal requirements to permit the agency to garnish the number holder’s benefits. The Petition, Amended Petition, and both Garnishments after Judgment do not qualify as “legal process,” and the Garnishments after Judgment do not fall within the limited sovereign immunity waiver federal law provides for garnishment orders. Further, the Privacy Act and Routine Use Exception 22 do not permit disclosure of the requested information without the number holder’s written consent. Accordingly, we conclude that the agency cannot properly garnish the number holder’s benefits or disclose the requested information to the court at this time.

BACKGROUND

In February 2001, the 255th Judicial District Court in Dallas County, Texas (court), issued a Final Judgment in the case styled P~ v. R~, No. DF-80-00-00504 (2001 Judgment). The 2001 Judgment awarded Petitioner P~ the amount of $25,156.94, as well as attorney’s fees and costs in the amount of $4,030.00, against Respondent R~ (number holder). The 2001 Judgment did not state that the judgment was for alimony or child support. In December 2013, P~ filed a Petition with the court in which she stated that she believed the agency was indebted to or possessed non-exempt property belonging to the number holder. The Petition requested the Dallas District Clerk to issue a Garnishment after Judgment, which the district clerk issued in December 2013 and which ordered the agency to appear before the court and answer “what, if anything, the agency was indebted to the number holder.” A Dallas County Constable personally served the December 2013 Garnishment after Judgment on the agency’s Dallas North Field Office.

In April 2014, P~ filed an Amended Petition in which she attested that the 2001 Judgment was issued for child support arrearages against the number holder, and again requested the Dallas District Clerk to issue a Garnishment after Judgment, which the district clerk issued in April 2014 and which again ordered the agency to appear before the court and answer “what, if anything, the agency was indebted to the number holder.” The April 2014 Garnishment after Judgment was served on the agency’s Dallas North Field Office via certified mail, return receipt requested.^[1] The NH currently receives Title II benefits.

ANALYSIS

Overview of Federal Law Regarding Garnishment for Child Support

Generally, the Social Security Act (Act) precludes garnishment of benefits to satisfy legal obligations. Section 407(a), title 42 of the United States Code expressly provides that “[t]he right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process.” 42 U.S.C. §§ 407(a), 1383(d)(1); 20 C.F.R. § 404.1820(a). However, effective January 1, 1975, the United States consented to withholding certain benefits (including, e.g., Social Security benefits) to enforce an individual’s legal obligation to provide child support or alimony. See 42 U.S.C. § 659(a). Thus, courts may order, in certain instances, garnishment of Social Security benefits to enforce an individual’s legal obligation to provide child support. See 42 U.S.C. § 659(a), (h)(1)(A)(ii)(II); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b); Program Operations Manual System (POMS) General (GN) 02410.200A.

Although section 659(a) waives sovereign immunity in the context of withholding and garnishment to enforce a legal obligation to pay child support, this waiver is limited and only applies to “legal process” as section 659(i) defines that term. See, e.g, Lamerand v. Lamerand, 499 F.Supp. 1109, 1111 (C.D. Cal. 1980) (noting that section 659(a) waives sovereign immunity only for “legal process”). Courts strictly construe waivers of sovereign immunity, and ambiguities regarding the scope should be resolved in favor of the sovereign. See Lane v. Pena, 518 U.S. 187, 192 (1996) (“[A] waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.”).

The agency only withholds benefits for child support when it receives legal process issued to enforce an obligation to pay child support. See 42 U.S.C. § 659(a); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b). Legal process is defined as “any writ, order, summons, or other similar process in the nature of garnishment,” that is directed to a governmental entity and is issued by either (1) a court of competent jurisdiction, (2) an authorized official pursuant to an order of a court of competent jurisdiction or pursuant to state or local law, or (3) a state agency that is authorized to issue income withholding notices. 42 U.S.C. § 659(i)(5); accord 5 C.F.R. § 581.102(f). After receiving a garnishment order, the agency must review the order to determine whether garnishment is appropriate. See 42 U.S.C. § 659(a); POMS GN 02410.210A1.

We first analyze whether the agency may properly garnish pursuant to the Petition, the Amended Petition, or the corresponding December 2013 or April 2014 Garnishments after Judgment. The Petition and the corresponding December 2013 Garnishment after Judgment do not indicate that they were issued to enforce the number holder’s obligation to pay child support or alimony as they identified the 2001 Judgment as a “personal judgment.”^[2] See 42 U.S.C. § 659(a) 5 C.F.R. § 581.305(a)(3) (providing that an agency cannot comply with legal process that is not brought to enforce a legal obligation for child support or alimony). As such, we conclude that the agency may not garnish benefits pursuant to the Petition or the December 2013 Garnishment after Judgment. Nevertheless, we must analyze whether the agency may properly garnish the number holder’s benefits pursuant to the Amended Petition or the corresponding April 2014 Garnishment after Judgment.

We conclude that the agency may not garnish pursuant to the Amended Petition or the April 2014 Garnishment after Judgment. While both the Amended Petition and the corresponding April 2014 Garnishment after Judgment identify the 2001 Judgment as a child support judgment, we nevertheless conclude that neither constitute legal process and thus do not fit squarely within the limited sovereign immunity waiver section 659(a) provides. Section 659(i)(5) provides that the purpose of “legal process” is to “compel a governmental entity which holds moneys which are otherwise payable . . . to make a payment . . . to another party. . . .” 42 U.S.C. § 659(i)(5) (emphasis added). The Amended Petition and the April 2014 Garnishment after Judgment request that the agency appear before the court to answer what, “if anything,” the agency is indebted to the number holder, and command the agency not to pay any debts to the number holder. However, the Amended Petition and the April 2014 Garnishment after Judgment do not direct the agency to make a payment to another party. As such, the Amended Petition and the April 2014 Garnishment after Judgment do not qualify as “legal process” and therefore do not fall within Section 659(a)’s waiver of sovereign immunity for garnishment orders. See, e.g, Lamerand, 499 F.Supp. at 1111 (noting that section 659(a) waives sovereign immunity only for “legal process”); see also Vet. Aff. Op. Gen. Counsel Prec. 4-97, 1997 WL 34674459, at *2-4 (Jan. 22, 1997) (concluding that a support order did not constitute “legal process” for purposes of section 659(a) because the order was not issued for the purpose of compelling the Veteran’s Affairs to withhold payments or make payments to a third party and thus the Veteran’s Affairs had no authority to garnish). Because the Amended Petition and the April 2014 Garnishment after Judgment do not satisfy section 659(i)(5)’s definition of “legal process,” we conclude they do not fall within section 659(a)’s waiver of sovereign immunity. Therefore, the agency may not garnish the number holder’s benefits pursuant to the Amended Petition or the corresponding April 2014 Garnishment after Judgment.

Further, the Amended Petition and the April 2014 Garnishment after Judgment do not direct the agency to withhold a specified amount consistent with federal law. In cases involving support more than twelve weeks past due, garnishment cannot exceed fifty five percent of an individual’s disposable earnings per week, when an individual is supporting a spouse or dependent child, or sixty five percent if the individual is not supporting a spouse or dependent child. See 15 U.S.C. § 1673(b)(2)(A)-(B); accord 5 C.F.R. § 581.402(a)(1)-(2); POMS GN 02410.215A3. Here, the Amended Petition and the April 2014 Garnishment after Judgment do not instruct the agency to withhold a specific amount up to the maximum percentage allowed under federal law.^[3] Accordingly, the agency cannot garnish the number holder’s benefits pursuant to the Amended Petition or the corresponding April 2014 Garnishment after Judgment.

We next address the December 2013 and April 2014 Garnishments after Judgment that direct the agency to appear before the court and respond to questions about the number holder’s benefits. We note that Social Security records are covered by the Privacy Act. See 5 U.S.C. § 552a;^[4] POMS GN 03301.020B. Absent an applicable exception under the Privacy Act, we cannot properly disclose information without the individual’s written consent. See 5 U.S.C. § 552a(b); 20 C.F.R. § 401.100(a) (“Except as permitted by the Privacy Act and the regulations in this part . . . we will not disclose your records without your written consent.”); POMS GN 03301.099D. The Privacy Act allows disclosure of information maintained in a system of records without consent if such disclosure is pursuant to a published routine use exception. See 5 U.S.C. § 552a(b)(3); 20 C.F.R. § 401.150. Routine Use Exception 22 to the Master Beneficiary Record (System Number 60-0090) states that SSA may disclose information (other than tax return information):

22. To a party named in an order, process, or interrogatory, in accordance with section 459 of the Social Security Act, if a designee of the Agency is served with any such order, process, or interrogatory with respect to an individual's child support or alimony payment obligations.

Because we conclude that the December 2013 and April 2014 Garnishments after Judgment do not fall within section 659(a)’s limited waiver of sovereign immunity, Routine Use Exception 22 does not apply. Because no other exceptions apply, the Privacy Act does not permit the agency to disclose the requested information without the number holder’s written consent before the court and respond to questions about the number holder’s benefits, which we do not have in this case. Accordingly, the agency may not disclose the requested information to the court.

CONCLUSION

We conclude that the agency should not garnish the number holder’s benefits based on the Petition, the Amended Petition, or the December 2013 and April 2014 Garnishments after Judgment because they do not constitute “legal process” and therefore do not fall within section 659(a)’s waiver of sovereign immunity for garnishment orders. As such, Routine Use Exception 22 does not apply, and the Privacy Act does not permit the requested disclosure without the number holder’s consent.

Regional Chief Counsel, Region VI

By: ___________

Assistant Regional Counsel, Region VI

Effective September 1, 2011, Texas law changed to now permit a Texas state court to order income withholding of Social Security benefits for spousal maintenance. This change in the law is not retroactive.

The purpose of this memorandum is to respond to your request for a legal opinion asking whether the Social Security Administration (SSA) can comply with a Texas court order of income withholding of Social Security benefits for spousal maintenance. ^[5] You asked whether Texas law had changed since 2007, when we issued an opinion finding that SSA could not honor a Texas court order of income withholding of Social Security benefits for spousal maintenance. We conclude that, effective September 1, 2011, Texas law changed and now permits a Texas state court to order income withholding of a number holder’s Social Security benefits for spousal maintenance. However, as discussed further below, because the change in Texas law does not apply retroactively, SSA cannot honor the instant order for spousal maintenance.

BACKGROUND

On March 14, 2011, the 306th Judicial District Court in Galveston County, Texas issued an Order of Income Withholding for Spousal Maintenance in the divorce suit styled In the Matter of the Marriage of Lillie and Richard, No. 10FD1725. The Order directed Richard’s (number holder) employer to withhold a monthly sum from the number holder’s disposable earnings for spousal maintenance. ^[6] The number holder receives Title II retirement benefits. On June 30, 2011, the Clerk for the District Court of Galveston County, Texas mailed a copy of this Order to the Galveston Social Security Field Office. The cover sheet attached to the Order directed the Order to “Social Security.”

On August 3, 2007, we issued an opinion addressing whether SSA could honor a Texas order of income withholding for spousal maintenance. See OGC Memorandum regarding Order of Income Withholding for Spousal Maintenance, In the Matter of the Marriage of Earnestine and Leroy – REPLY (August 3, 2007). We interpreted Texas Family Code Ann. § 8.055 and determined that, under the law in 2007, Texas state law precluded such withholding. See id., p. 2. Thus, our August 2007 opinion concluded that SSA could not honor a Texas court’s order of income withholding for spousal maintenance. The instant opinion requests an update regarding whether Texas law has changed since we issued the August 2007 opinion and whether SSA may now honor a Texas court’s order of income withholding for spousal maintenance.

DISCUSSION

Generally, the Social Security Act (Act) precludes garnishment of benefits to satisfy legal obligations. Section 407(a), title 42, United States Code, expressly provides that “[t]he right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process.” 42 U.S.C. § 407(a); 42 U.S.C. § 1383(d)(1); 20 C.F.R. § 404.1820(a). However, effective January 1, 1975, the United States consented to withholding certain benefits (including, e.g., Social Security benefits) to enforce an individual’s legal obligation to provide child support or alimony. 42 U.S.C. § 659(a). Thus, subject to the following rules, courts may order garnishment of Social Security benefits to enforce an individual’s legal obligation to provide alimony. See 42 U.S.C. § 659(a), (h)(1)(A)(ii)(II); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b); Program Operations Manual System (POMS) GN 02410.200A. SSA will only withhold benefits for alimony when 1) it receives legal process that a court clearly issued to enforce an obligation to pay alimony; and 2) state law allows withholding of such benefits. 42 U.S.C. § 659(a); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b).

Legal process is defined as “any writ, order, summons, or other similar process in the nature of garnishment,” directed to a governmental entity, ^[7] and issued by either (1) a court of competent jurisdiction, (2) an authorized official pursuant to an order of a court of competent jurisdiction or pursuant to state or local law, or (3) a state agency that is authorized to issue income withholding notices. 42 U.S.C. § 659(i)(5); 5 C.F.R. § 581.102(f). Because a Texas court issued the March 14, 2011 Order, we look to Texas law to determine whether this order constitutes legal process. See 42 U.S.C. § 659(a).

Texas uses the term “spousal maintenance” instead of alimony to define an award of periodic payments from the future income of one spouse for the support of another spouse in a suit for the dissolution of a marriage. See Tex. Fam. Code Ann. § 8.001. Thus, an order to withhold income for “spousal maintenance” is an order issued to enforce an obligation to pay alimony. See Tex. Fam. Code Ann. § 8.051 (stating that, in a suit for dissolution of a marriage, a court may order spousal maintenance); see also Tex. Fam. Code Ann. § 8.101 (“a court may order that income be withheld from the disposable earnings of the obligor”). A Texas district court, a court of competent jurisdiction to issue such orders, issued the March 14, 2011 Order. Tex. Fam. Code Ann. § 1.002 (for the purposes of the family code, “court” means a district court). Accordingly, the March 14, 2011 Order constitutes legal process under the first prong of 42 U.S.C. § 659(a).

We next look to the second prong of 42 U.S.C. § 659(a), whether Texas state law allows withholding of a number holder’s Social Security benefits for spousal maintenance. As further discussed below, we conclude that, effective September 1, 2011, Texas state law permits withholding of Social Security benefits for spousal maintenance. However, the Texas Legislature specifically determined that the change in the law applies only to a proceeding for spousal maintenance that commenced “on or after the effective date” of this change, September 1, 2011. Thus, SSA can only honor a Texas order for income withholding if it stems from a proceeding for maintenance commenced after September 1, 2011.

Our analysis of Texas state law begins with section 8.055 of the Texas Family Code, which discusses the amount of maintenance a Texas court may order withheld to pay spousal maintenance. In August 2007, section 8.055 allowed a Texas court to order spousal maintenance requiring a number holder to pay the maximum of either a $2,500 lump sum or 20 percent of the number holder’s average monthly gross income. See Tex. Fam. Code Ann. § 8.055 (Vernon 2007). Section 8.055 defined “gross income” as those resources defined in Tex. Fam. Code § 154.062. See id at § 8.055(c) (2007). Section 154.062 addresses child support obligations and stated that the resources used to calculate an obligor’s child support liability included Social Security benefits. Tex. Fam. Code Ann. § 152.062(b) (Vernon 2007). However, section 8.055 also included a separate provision stating that “Social Security benefits and disability benefits . . . are excluded from maintenance.” See id. at § 8.055(c) (2007) (emphasis added). Thus, in 2007, the Texas Legislature included Social Security benefits in the definition of “gross income” to calculate the amount that could be withheld for spousal maintenance payments, but specifically excluded Social Security benefits from spousal maintenance. See id. at §§ 8.055(c), 152.062(b) (2007).

Although these provisions appear contradictory on their face, the Texas Legislature specifically directed that “Social Security benefits and disability benefits . . . are excluded from maintenance.” See id. at § 8.055(c) (2007). Thus, the plain language of the statute isolated Social Security benefits and specifically excluded them from “maintenance.” See id. ^[8] Accordingly, we determined in 2007 that Social Security benefits were specifically excluded from court-ordered spousal maintenance. See OGC Memorandum Regarding Order of Income Withholding for Spousal Maintenance, In the Matter of the Marriage of Earnestine and Leroy – REPLY (August 3, 2007).

Effective September 1, 2011, however, the Texas Legislature amended section 8.055 to include a separate definition of gross income used specifically for the purpose of calculating the amount of spousal maintenance a court may order, rather than relying on the child support provisions in section 154.062. Compare Tex. Fam. Code Ann. § 8.055 (Vernon 2011), Tex. Fam. Code Ann. §§ 8.055, 154.062 (Vernon 2007). Section 8.055 now states that gross income includes: all wage and salary income; interest, dividends, and royalty income; self-employment income; net rental income; and all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, unemployment benefits, interest income from notes, gifts and prizes, maintenance, and alimony. Id. at § 8.055(a-1)(1). The provision states that gross income does not include: return of principal or capital; accounts receivable; benefits paid in accordance with federal public assistance programs; benefits paid in accordance with the Temporary Assistance for Needy Families program; payments for foster care of a child; Department of Veterans Affairs service-connected disability compensation; supplemental security income (SSI), social security benefits, and disability benefits; or workers’ compensation benefits. See id. at § 8.055(a-1)(2) (emphasis added). Thus, while the statute excludes the calculation of a number holder’s gross income for purposes of determining the amount the number holder must pay in spousal maintenance, it does not forbid a court from ordering income withholding of a number holder’s Social Security benefits ^[9] for spousal maintenance. See id. ^[10] Accordingly, section 8.055 is now silent as to whether Social Security benefits are specifically withheld from all maintenance. If any prior ambiguity or contradiction existed, the Texas Legislature has now deleted the plain language of the statute upon which our previous opinion relied. Therefore, we conclude that, effective September 1, 2011, Texas state law permits income withholding of a number holder’s Social Security benefits for spousal maintenance.

However, we turn now to the question of whether the change in Texas law applies retroactively to the March 14, 2011 Order and conclude that it does not. The 2011 legislative bill amending the Texas Family Code specifically states that, with respect to Tex. Fam. Code Ann. § 8.055, “the changes in law made by this Act. . . apply only to a suit for dissolution of a marriage or proceeding for maintenance that was commenced on or after the effective date of this Act.” See H.R. 901, Ch. 486, Section 10A, 82nd Leg., Reg. Sess. (TX 2011). “A suit for dissolution of a marriage or a proceeding for maintenance commenced before the effective date of this Act is governed by the law in effect on the date the suit or proceeding was commenced, and the former law is continued in effect for that purpose.” See id.

Here, the instant proceeding for maintenance commenced before March 14, 2011, when the Galveston County Court issued the Order of Income Withholding for Spousal Maintenance. Thus, it must be governed by the previous version of Tex. Fam. Code Ann. § 8.055. See H.R. 901, Ch. 486, Section 10A, 82nd Leg., Reg. Sess. (TX 2011). As noted above and in our August 2007 opinion, the previous version of Tex. Fam. Code Ann. § 8.055 stated “Social Security benefits and disability benefits . . . are excluded from maintenance.” Tex. Fam. Code Ann. § 8.055(c) (2007). Based on this provision, we concluded that Texas state law prohibited income withholding of Social Security benefits for spousal maintenance. Accordingly, while Texas law changed effective September 1, 2011, the change does not apply to the March 14, 2011 Order discussed in this case. As the previous version of Section 8.055 still applies to the March 14, 2011 Order, the agency still cannot honor this order for income withholding. ^[11]

Finally, you asked if SSA could not honor the March 14, 2011 Order, that OGC provide suggested language to use to respond to the attorney and the court. We suggest the following response: In August 2007, SSA reviewed Tex. Fam. Code Ann. § 8.055 (Vernon 2007), which specifically stated that “Social Security benefits and disability benefits . . . are excluded from maintenance.” See id. at § 8.055(c). We concluded that the plain language of the statute isolated Social Security benefits and specifically excluded them from “maintenance.” See id. However, the Texas Legislature recently amended Tex. Fam. Code Ann. § 8.055 to exclude the language stating that “Social Security benefits and disability benefits . . . are excluded from maintenance.” Tex. Fam. Code Ann. § 8.055 (Vernon 2011). We agree that the Texas Legislature amended this provision and omitted the language upon which we previously relied. Therefore, effective September 1, 2011, Texas law changed and now permits a Texas state court to order income withholding of a number holder’s Social Security benefits for spousal maintenance.

However, the 2011 changes to Texas law do not apply retroactively. The 2011 legislative bill amending the Texas Family Code specifically states that, with respect to Tex. Fam. Code Ann. § 8.055, “the changes in law made by this Act. . . apply only to a suit for dissolution of a marriage or proceeding for maintenance that was commenced on or after the effective date of this Act.” See H.R. 901, Ch. 486, Section 10A, 82nd Leg., Reg. Sess. (TX 2011). “A suit for dissolution of a marriage or a proceeding for maintenance commenced before the effective date of this Act is governed by the law in effect on the date the suit or proceeding was commenced, and the former law is continued in effect for that purpose.” See id. Thus, the March 14, 2011 Order is still governed by the former version of Tex. Fam. Code Ann. § 8.055, which stated that “Social Security benefits and disability benefits . . . are excluded from maintenance.” See id. at § 8.055(c) (2007). Therefore, SSA cannot honor the March 14, 2011 order for income withholding. Rather, if properly served, SSA may honor a Texas court’s order of income withholding stemming from any proceeding for maintenance commenced after September 1, 2011.

CONCLUSION

We conclude that, effective September 1, 2011, while a court may not include an individual’s Social Security benefits in calculating his gross income, a court may order income withholding of a number holder’s Social Security benefits for spousal maintenance pursuant to a valid income withholding order. However, this change only applies to those proceedings for income withholding that commenced after September 1, 2011. Accordingly, the 2007 version of the Texas Family Code – and our August 2007 opinion – still governs the March 14, 2011 Order and all orders stemming from proceedings commenced prior to September 1, 2011. Thus, the agency cannot honor the March 14, 2011 Order of Income Withholding.

Very Truly Yours

Michael McGaughran

Regional Chief Counsel

By:__________________________

Nicole Dana

Assistant Regional Counsel