TN 16 (01-14)

PR 04505.027 Mississippi

A. PR 11-109 Garnishment of Social Security Benefits for Payment of Miscellaneous and Administrative Fees related to Child Support – Mississippi Division of Child Support Services

DATE: May 20, 2011

1. SYLLABUS

The Office of General Counsel has stated that the Amended Orders to Withhold issued by the Mississippi Department of Human Services are not valid orders of garnishment for the collection of administrative and miscellaneous fees that are a part child support payments owed by the various number holders. SSA should not comply with these orders.

2. OPINION

Question Presented

You asked whether the Social Security Administration (SSA) can garnish a $25 miscellaneous fee related to child support from Social Security recipients based on a Mississippi Department of Human Services (Department) amended Order/Notice to Withhold Income for Child Support, when SSA is not currently garnishing the recipients’ benefits for the original child support payments.

Opinion

For the reasons set out below, SSA cannot withhold a $25 miscellaneous fee from Social Security recipients based only on the Department’s Amended Order/Notice to Withhold when SSA is not currently garnishing the recipients’ benefits for the original child support payments.

Background

According to the information you provided us, the Department submitted three separate orders purportedly amending prior child support orders to now require Social Security to withhold $25.00 per month in miscellaneous fees and $5.00 per month in administrative costs. These amended orders do not indicate the nature of the miscellaneous fees or administrative costs and the amended orders do not include the original order, which should indicate what child support the Department originally ordered withheld (and by whom).

According to a report of contact dated March 10, 2011, Wally , the Division Director of Mississippi Division of Child Support Services, a part of the Department, described the miscellaneous fees:

Whenever a case is taken to court to establish paternity and/or get an order for child support filing fees are paid to the Chancery Clerk of the particular county and if a paternity test is ordered we also pay those fees. The non-custodial parent in 99% of our cases is ordered to reimburse us along with attorney fees.

Number holder (NH) Louis , NH Willie, and NH Jimmie, all are receiving Social Security benefits. However, according to the information provided, the accounts of these NHs include no current or past child support withholding orders. The Department provided the original withholding order along with an amended order for NH Willie. The Department only provided the amended orders for NH Louis and NH Jimmie and the amended orders do not indicate the date of the original order to withhold, the amount originally ordered withheld, or the entity that should be withholding.

DISCUSSION

The United States Supreme Court in Philpot v. Essex County Welfare Board, 409 U.S. 413, 415-17 (1973), stated unequivocally that section 207 of the Social Security Act (Act) imposes a broad bar against the use of any legal process to reach Social Security benefits. Under this provision,

(a) The 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, or to the operation of any bankruptcy or insolvency law.

(b) No other provision of law, enacted before, on, or after the date of the enactment of this section, 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.

Act § 207.

However, through section 459 of the Act, Congress specifically referenced section 207(a) to create an exception under which the Government consents to garnishment of Social Security benefits to collect child support and alimony. More specifically, section 459 states that with respect to a notice to withhold income to enforce an obligation of an individual to provide child support or alimony, SSA “shall be subject to the same requirements as would apply if the entity were a private person, except as otherwise provided in this section.” Act § 459(b). The requirements to which SSA is subject under § 459 include not only complying with the withholding requirements of garnishment orders, but also with “any other legal process brought, by a State agency administering a program under a State plan approved under this part or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony.” Act § 459(a) (emphasis added).

The term “legal process” is defined in § 459(i)(5)(A)(i) of the Act as any writ, order, summons, or other similar process in the nature of garnishment issued by a court or an administrative agency of competent jurisdiction in any state, territory, or possession of the United States. Social Security benefits are subject to “legal process” brought through a State court to enforce a legal obligation to provide child support or alimony. See Policy Operations Manual System (POMS) GN 02410.200(B); see also Act § 466 (setting out statutorily prescribed procedures to increase the effectiveness of child support enforcement). Legal process may include, but is not limited to, an attachment, writ of execution, income execution order, or wage assignment. Id. The legal process may be issued by a court of competent jurisdiction, an authorized official pursuant to a court order or State or local law, or a State agency authorized to issue income withholding notices pursuant to State or local law. Id.

Pursuant to Mississippi law, the Department may issue administrative orders for withholding and file the orders with the clerk of the court and provide a copy to the obligor by regular mail. Miss. Code Ann. § 93-11-105(1), (2) (West 2010). The administrative orders must direct that the payor withhold an amount equal to the order for the current support obligation and direct payor to withhold an additional amount equal to twenty percent of the current support obligation for payment of delinquency, if necessary. Miss. Code Ann. § 93-11-105(3) (West 2010).

The Agency received orders of non-wage garnishment for withholding administrative and miscellaneous fees related to each of the three NH’s noted above. These orders to withhold from the Department meet SSA’s definition of “legal process” brought by a State agency administering a program under a State plan to enforce NH’s legal obligation to provide child support. See Act §§ 459(a), 466; POMS GN 02410.200(B). The orders, denoted as amended withholding orders, are legal process in the nature of garnishment. See POMS GN 02410.200(B). However, while the amended orders are a legal process, none is necessarily sufficient on its face for SSA to withhold benefits. Although the amended orders purport to withhold for child support, the amended orders do not include a statement of the amount actually owed for the care and maintenance of the child. In the information sent to SSA for NH Louis and NH Jimmie, the amended orders only ask SSA to withhold an administrative and miscellaneous fee. Because the orders do not reflect the amount of current child support obligation currently due, they do not meet Mississippi or SSA’s statutory requirements for withholding. See Act § 459(i)(2); Miss. Code Ann. § 93-11-105(3).

Further, none of the amended orders is valid on its face because the administrative and miscellaneous fees do not appear to be part of the child support obligation. In the case of NH Willie, the Department did include the original order when it submitted the amended order to the agency asking the agency to withhold additional miscellaneous and administrative fees from NH’s Social Security payments. SSA’s POMS GN 02410.200(D) defines child support as “periodic payment of funds for the support and maintenance of a child(ren) subject to and in accordance with State or local law.” The POMS continues that child support “may include attorney fees, interest, cash medical support and court costs if they are expressly made recoverable under a garnishment order issued by a court of competent jurisdiction in accordance with applicable State or local law.” GN 02410.200(E). See also POMS PR 04015.012 (advising that the agency could withhold a statutory administrative fee from benefits being garnished for child support).

SSA has not promulgated any regulations pursuant to § 459 of the Act related to whether expenses and fees other than the actual money for the health and maintenance of the child are included in the definition of child support and therefore also subject to garnishment from Social Security benefits. The Office of Personnel Management (OPM) has issued regulations related to the garnishment of child support (and related expenses) from federal benefits. See 5 C.F.R. §§ 581.101, 581.102, 581.307 (2010). OPM’s regulations share similar language with SSA’s POMS and provide some guidance on evaluating whether expenses other than the actual child support amount may be considered in the definition of child support for garnishment purposes.

OPM defined child support as the amount “required to be paid for the support and maintenance of a child . . . which provides for monetary support, health care, arrearages or reimbursement, and which may include other related costs and fees, interest and penalties, income withholding, attorney’s fees, and other relief.” 5 C.F.R. § 581.102(d). OPM regulations provide further instruction on when the other related costs should be garnished along with the child support payments. The agency must determine: (1) that the legal process provides for inclusion of attorney fees, interest, and/or court costs as (rather than in addition to) child support; and (2) that the awarding of attorney fees, interest, and/or court costs as child support must be within the authority of the State agency that issued the legal process (that is, the order is not inconsistent with state or local law). 5 C.F.R. § 581.307.

Mississippi law expressly allows withholding of additional amounts to cover other expenses related to recovery of child support. The Department may withhold “additional amounts to recover costs incurred through its efforts to secure the support order, including, but not limited to, all filing fees, court costs, service of process fees, mailing costs, birth certificate certification fee, genetic testing fees, [and] the department’s attorney’s fees . . .” Miss. Code Ann. § 93-11-103(6) (West 2010). Thus, an order for withholding of child support that also includes withholding for attorney fees or court costs would not violate state law.

SSA can withhold other expenses included in a child support garnishment order. There is a precedent opinion that indicated that the agency could withhold an administrative fee of $1.50 authorized by a Georgia statute to cover the cost of processing and distributing the collected child support payments. The precedent opinion cites to OPM regulations including other related costs and fees in the definition of child support. See POMS PR 04015.012 (citing 5 C.F.R. § 581.102(d)(2007)). SSA could garnish social security benefits to pay for the types of items Wally describes as the miscellaneous and administrative fee requested from the Department, including the court filing fees, attorney fees, and paternity testing fees.

In the cases here, however, the amended orders do not bring the miscellaneous and administrative fees within the definition of child support. The agency does not have the original withholding order on file for the three cases here and is not currently garnishing any benefits for payment of child support. In NH Willie’s case, the Department submitted the original order with the amended order to include the miscellaneous and administrative fee, but the agency was not (and is not currently) withholding benefits to pay the child support payments. While the amended order directs the agency to withhold the additional miscellaneous fee, the original order (issued in 2007) is not directed to the agency. The amended order gives no indication that the original order is still in effect. Thus, it appears the administrative and miscellaneous fees are in addition to, and not part of, the child support payments and the agency should not, therefore, withhold these separate fees.

The agency similarly should not pay the miscellaneous and a