QUESTION PRESENTED
You have requested an opinion on whether SSA must comply with a notice of lien-levy
issued by the Utah Office of Recovery Services (ORS) for past due support owed to
a child.
Short Answer
We do not believe that the notice of lien-levy against back benefits of this claimant1 should be honored because the notice is not expressly authorized by the modification
of the anti-assignment provision at 42 U.S.C. § 659 and accompanying regulations at
5 C.F.R. § 581 et seq.2 The notice, therefore, is beyond the income withholding permitted by those provisions,
is unlawful under the relevant portions of the Consumer Credit Protection Act §§ 1671-1677,
and is arguably impermissible under State law.
FACTS
The available facts in this case indicate that on March 30, 2004, ORS served a "Notice
of Lien-Levy" on the Social Security Office in Salt Lake City, Utah. The notice demanded
payment of $13,410.00 and $ 20,048.00 from Mr. D~ DIB for past due child support (Notice
of Lien-Levy from ORS, March 26, 2004).
Mr. D~ receives $772 in monthly DIB benefits. A garnishment for child support in the
amount of $90.00 is being withheld from his monthly benefits. This garnishment is
approximately 12% of his monthly benefits.
Federal Law
The Social Security Act prohibits alienation or assignment of benefits, such as execution,
levy, attachment or garnishment. See 42 U.S.C. § 407(a). However, there are two narrow exceptions to the anti-assignment
provision. First, Title II benefits are subject to withholding in accordance with
State laws enacted pursuant to subsections (a)(1) and (b) of 42 U.S.C. § 666 (2000),
and to any other "legal process," for the enforcement of alimony or child support
obligations. See id. § 659(a) (2000). Subsections (a)(1) and (b) of 42 U.S.C. § 666 do not mention any
procedure for collecting alimony or child support other than income withholding subject
to the percentage limitations of the Consumer Credit Protection Act (CCPA), codified
at 15 U.S.C. § 1673.3 "Legal process" is defined as "any writ, order, summons or similar process in the
nature of garnishment" issued by a court or administrative agency. See 42 U.S.C. § 659(i)(5)(A)(i) (emphasis added). The regulations at 5 C.F.R. § 581 et
seq., and POMS also do not authorize any form of Title II benefits assignment other
than income withholding in the nature of garnishment for the limited purposes stated.
Second, 26 U.S.C. §§ 6331 and 6334(c), permit the Internal Revenue Service to levy
upon Social Security benefits only for collection of Federal income taxes.
Utah State Law
Utah law permits garnishment of a debtor's earnings by ORS to enforce child support
obligations. See Utah Code Ann. § 62A-11-312.5(3)(a) (2004). A writ of garnishment in Utah cannot
seek more than 50% of a debtor's disposable income. See id. § 62A-11-316(4). Utah R. Civ. P. 64D(d)(vii) (2004) exempts Social Security benefits
from "earnings" subject to garnishment, except when sought to satisfy child support
obligations. However, notices of lien-levy, are treated separately from garnishments.
Utah Code Ann. § 62A-11-304.1(h)(i) (2004) permits ORS to secure assets to satisfy
past-due support by (i) intercepting or seizing periodic or lump sum payments from
(A) a state or local government agency, (B) judgments, settlements, and lotteries.
DISCUSSION
We do not believe that the Agency is obligated to pay the Utah ORS in accordance with
this notice of lien-levy. This notice is not expressly authorized by 42 U.S.C. §§
659 and 666 or the accompanying regulations at 5 C.F.R. § 581 et seq. and is beyond
income withholding permitted by those provisions. In addition, the notice of lien-levy
is unlawful under the relevant portions of the Consumer Credit Protection Act. Finally,
this notice is also arguably impermissible under State law.
As we discussed at length in the April 30, 2004 opinion, the modification of the anti-assignment
provision at 42 U.S.C. § 659 allows income withholding "in accordance with State law
enacted pursuant to subsections (a)(1) and (b) of section 666 of this title . . .
and to any other legal process brought, by a State agency administering a program
under a State plan approved under this part." See 42 U.S.C. § 659(a) (emphasis added). See Memorandum from RCC, Denver to AD VIII, Denver, State of Utah Notices of
Lien-Levy for Past Due Support, at 7-8 (April 30, 2004). Likewise, the regulations state that legal process must
be accomplished pursuant to State procedures in effect pursuant to subsections (a)(1)
and (b) of section 666 of Title 42. See 5 C.F.R. § 581.202(b). As mentioned previously, subsections (a)(1) and (b) of section
666 only mention income withholding subject to the limitations of the CCPA, and neither
the statute nor the regulations mention any other mechanism by which States or private
parties can seize Social Security benefits to satisfy child support obligations. See 42 U.S.C. § 666(a)(1), (b); 15 U.S.C. § 1673(b); see also 5 C.F.R. § 581 et seq. Income withholding permissible under section 659 must not
exceed the limits of section 1673(b) of the CCPA. See 42 U.S.C. § 666(b)(1). In this
notice, the amounts demanded exceed any limitations for income withholding.
Moreover, "any other legal process" is defined as any "writ, order, summons or similar
process in the nature of garnishment." See 42 U.S.C. § 659(i)(5)(A)(i) (emphasis added). For the following reasons, we do not
believe that the notices of lien-levy in each of these three cases are "in the nature
of garnishment." While garnishments and notices of lien-levy are both procedures by
which property of an obligor in possession of a third party is sought to satisfy child
support obligations, the similarities end there. See Utah Code Ann. §§ 62A-11-312.5, 62A-11-304.1(h)(i). A garnishment is the only method
the Utah statutes permit to seize "earnings," the definition of which expressly includes
Social Security benefits when sought for satisfaction of child support obligations.
Furthermore, as discussed above, a notice of lien-levy is a one time attempt to seize
specific property in its entirety, while garnishment is limited to 50% of the obligor's
disposable earnings, and when used to enforce child support can be "continuing" over
a period of time until the obligation is satisfied. See Utah Code Ann. §§ 62A-11-304.1(h)(i), 62A-11-316(4); see also Utah R. Civ. P. 64D(a)(iii), (d)(vii), (v), 69(b). Therefore, we do not believe that
this notice of lien-levy is "in the nature of garnishment," insofar as it seeks a
one-time seizure of the claimant's property.
Because the modification of the anti-assignment provision or waiver of sovereign immunity
does not authorize any other procedure other than those in the "nature of garnishment"
for income withholding of Social Security benefits subject to CCPA limitations in
order to satisfy child support obligations, and because the notices of lien-levy are
"not in the nature of garnishment," we believe that the Agency is not required to
honor them. No legal proceeding, including garnishment, may be brought against the
United States absent a waiver of sovereign immunity. See
Millard v. United States, 916 F.2d 1, 2 (Fed. Cir. 1990) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)).
This notice also may be an impermissible means of seizing Social Security benefits
under State law. As discussed above, under Utah law, ORS is authorized to "secure
assets to satisfy past-due support" by "intercepting or seizing periodic or lump-sum
payments" from "a state or local government agency, including unemployment compensation,
worker's compensation, and other benefits" and "judgments, settlements, and lotteries."
See Utah Code Ann. § 62A-11-304.1(h)(i). Social Security Title II benefits are not from
"a state or local government agency," nor are they a judgment, settlement or lottery.
In the case of this claimant, he receives a monthly benefit of $772 per month, which
cannot be classified as a "judgment, settlement or lottery." Therefore, this notice
of lien-levy against a monthly benefit is arguably also improper under Utah law.
Finally, even if the notice was valid, when the Agency fails to comply with legal
process for enforcement of child support, we have advised that the Agency is not liable
for money damages. See Memorandum from RCC, Seattle, to AD II, Seattle, Validity of Oregon Income Withholding
Order Against Past-Due Benefits, at 4 (July 3, 2003).
CONCLUSION
Accordingly, we advise that the Agency is not required to honor this notice because
it (a) is not expressly authorized by 42 U.S.C. §§ 659 and 666 or the accompanying
regulations at 5 C.F.R. § 581 et seq.; (b) violates the provisions of the Consumer
Credit Protection Act, 15 U.S.C. §§ 1671-1677; and (c) is arguably impermissible under
State law.
Deana R. E~-L~
Acting Regional Chief Counsel
By:__________________________
Laura R~-B~
Assistant Regional Counsel
1We previously advised in an opinion dated April 30, 2004, that we believe that a levy
can be considered "in the nature of garnishment" in some instances. Therefore, the
agency should not categorically reject "levies" for child support or alimony. Such
determinations must be made on a case by case basis. See Memorandum from RCC, Denver to AD VIII, Denver, State of Utah Notices of Lien-Levy
for Past Due Support, at 7-8 (April 30, 2004).
2All references to the United States Code (U.S.C.) and the Code of Federal Regulations
(C.F.R.) are to the 2000 and 2003 editions, respectively.
3Section 1673(b) states that the maximum part of the aggregate disposable earnings
(compensation paid for personal services including periodic payments pursuant to a
pension or retirement plan), subject to garnishment shall not exceed the following
limits: (1) 50%, where the individual is supporting a spouse or dependent child, other
than the spouse or child that is the subject of the garnishment order; (2) 55% where
the individual is not supporting such a spouse or dependent child and is 12 weeks
or more in arrears; (3) 60% where the person is not supporting a spouse or dependent
child; and (4) 65% where the person is not supporting a spouse or dependent child;
and (4) 65% where the person is not supporting a spouse or dependent child and is
12 weeks or more in arrears. See 15 U.S.C. § 1673(b).