TN 11 (04-12)
PR 04505.052 Virginia
A. PR 12-062 Termination of Withholding Pursuant to a Commonwealth of Virginia Garnishment Summons for Spousal Support - Reply William, SSN ~
DATE: February 24, 2012
Under Virginia State Code, garnishment withholding generally ends on the “return date” entered in the garnishment summons (order) for enforcement of child and spousal support. However, under statute (Virginia Code, Section 20-78.1), Virginia law may require garnishment to continue until the court modifies the order, or until an arrearage is satisfied.
QUESTION PRESENTED AND BRIEF ANSWERS
Question: On January 25, 2012, you asked whether the agency should cease withholding amounts from a Title II disability beneficiary’s benefits pursuant to a Virginia spousal support garnishment summons on a “return date” specified on the summons, or after the agency receives a subsequent order from the court terminating the withholding, consistent with agency guidance. You further asked us to consider orders to withhold amounts to enforce child support obligations in our opinion.
Answer: The agency generally should cease withholding pursuant to a Virginia garnishment summons on the hearing date specified on the summons (the “return date”), unless there is an indication that the summons directs withholding until the garnishment is modified by the issuing court or until a support arrearage is paid in full. A Virginia court may issue a garnishment summons to enforce spousal or child support judgments. Notably, in contrast to a Virginia garnishment summons, other means available in Virginia to enforce child or spousal support obligations, such as income deduction orders and income withholding orders, generally direct continued withholding until terminated by subsequent court or state Department of Social Services action.
Question: After your initial opinion request, the agency received a January 23, 2012 letter from the beneficiary’s attorney demanding repayment of amounts withheld in excess of the total judgment and costs listed on the garnishment summons, plus interest. You have asked us whether the agency is obligated to repay this amount to the spousal support debtor.
Answer: The agency should treat the amount withheld in excess of the total judgment and costs as an underpayment to the beneficiary, but is not authorized to pay interest on the underpaid amount.
In June 2008, the agency received a Commonwealth of Virginia garnishment summons dated June 25, 2008. The summons, signed by a deputy clerk of the Roanoke City Circuit Court, specified that William was a judgment debtor who owed $6,450 in judgment principal plus $64.50 in garnishment costs. The summons provided that the garnishee (the agency) should rely on a “TOTAL BALANCE DUE” of $6,514.50. The judgment creditor specified on the summons was Deborah, who we understand is William’s spouse or former spouse, and a checked box on the form indicated that the debt was for support. The summons specified a hearing date and time of December 15, 2008 at 9:30 AM.
The instructions on the summons directed the garnishee to take one of three actions: 1) file a written answer with the court, 2) deliver payment to the court, or 3) appear before the court on “the return date and time shown on the summons” to answer. The instructions further explained that the garnishee “shall withhold from the judgment debtor any sums of money to which the judgment debtor is or may be entitled to from you during the period between the date of service of this summons on you and the date for your appearance in court.” The instructions also explained that “[t]he maximum amount which may be garnished is the ‘TOTAL BALANCE DUE’ as shown on this summons.”
We understand that the agency has received no subsequent garnishment summonses or orders in this matter.
The agency commenced withholding from William’s Title II benefits in August 2008 at a rate of $368.00 per month. The agency increased withholding to $389.50 per month effective January 2009. The agency continued withholding amounts from William’s benefits through December 2011. We understand that the agency transmitted these amounts directly to Deborah and that Deborah was paid a total of $15,862 as a result of the garnishment.
On December 19, 2011, a Roanoke City Circuit Court deputy clerk sent a fax to the agency indicating that the return date of the garnishment summons had been December 15, 2008 and that the return date “is the deadline for any funds to be withheld from William’s money.” The deputy clerk’s fax further stated that Virginia Code section 16.1-99 provides that a garnishment can only run for a maximum of 180 days from the return date and “no funds are allowed to be withheld on the garnishment after the return date.”
In a letter dated January 23, 2011, an attorney representing William demanded that the agency pay $9,347.50 plus interest to William, reflecting the allegedly improperly garnishment amount. The letter alleges that the agency 1) improperly sent the garnished amounts to Deborah or her attorney, rather than the court, 2) improperly withheld amounts after the return date of the garnishment summons, December 15, 2008, and 3) improperly withheld more than the total balance due of $6,514.50.
A. The agency must honor valid state law process enforcing child support or alimony obligations against Title II benefits.
The Social Security Act (Act) generally protects Social Security benefits from assignment, levy, or garnishment. Social Security Act § 207, 42 U.S.C. § 407 (2011). Section 459 of the Act, however, provides that Title II benefit payments are subject to withholding to enforce an individual’s legal obligation to provide child support or alimony payments. Social Security Act § 459(a), (h)(1)(A)(ii)(I), 42 U.S.C. § 659(a), (h)(1)(A)(ii)(I) (2011); 5 C.F.R. § 581.101(a); 20 C.F.R. § 404.1820(b) (2011). Specifically, section 459(a) of the Act provides:
Notwithstanding any other provision of law (including section [207 of the Act] . . . ) . . . moneys . . . due from, or payable by, the United States . . . to any individual . . . shall be subject . . .  to withholding in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section [466 of the Act] and regulations of the Secretary under such subsections, and  to any other legal process . . . to enforce the legal obligation of the individual to provide child support or alimony.
“State laws enacted pursuant to subsections (a)(1) and (b) of section [466 of the Act]” refers to child support enforcement laws enacted to comply with federal child support enforcement mandates. Social Security Act § 466(a)(1), (b); 42 U.S.C. § 666(a)(1), (b) (2011). “Other legal process” includes writs, orders, summonses, or other similar processes in the nature of garnishment issued by state courts that direct an agency that owes money to an individual to make payment to another party to satisfy that individual’s legal obligation to provide child support or make alimony payments. See Social Security Act § 459(i)(5); 5 C.F.R. § 581.102(f). The term “moneys” includes periodic benefits, such as Title II disability benefits. Social Security Act § 459(h)(1)(A)(ii)(II); 5 C.F.R. § 581.102(c)(1).
Pursuant to this section of the Act, the agency generally is subject to the requirements of state law providing for the enforcement of child support or alimony orders as if it were a private employer. Social Security Act § 459(b), (i)(4); 5 C.F.R. § 581.305(a). The Act, however, specifically disclaims liability for garnishing payments pursuant to legal process that is regular on its face, if the garnished amount is paid in accordance with the Act’s provisions for garnishment and the accompanying regulations. Social Security Act § 459(f); 5 C.F.R. § 581.305(e)(1).
B. Virginia law provides for the enforcement of child and spousal support through garnishment, which generally ceases on the return date of the garnishment summons, as well as through other measures that generally continue until terminated by a court or state agency.
As noted above, the exception to the Act’s general prohibition on assignment, levy, or garnishment permits the withholding of benefits under 1) state law enacted pursuant to federal child support enforcement mandates, and 2) other legal process to enforce child support and alimony. Social Security Act § 459(a).
a. Withholding pursuant to a Virginia garnishment summons generally must cease on the return date of the summons; however, in certain circumstances the withholding of amounts from federal payments pursuant to a Virginia garnishment summons may continue until the garnishment is modified by the issuing court or until the support arrearage has been satisfied.
Other legal process for the enforcement of child support and alimony obligations in Virginia includes garnishment. VA. PRAC. FAMILY LAW § 10:26(a). Garnishment proceedings generally may commence when a party obtains a judgment for support payments in arrears and becomes a judgment creditor of the party obligated to make the support payments, who becomes the judgment debtor. Lynch v. Johnson, 196 Va. 516, 520, 84 S.E.2d 419, 421-22 (Va. 1954); VA. PRAC. FAMILY LAW § 10:26(a). In garnishment, the judgment creditor enforces the judgment against debt or property that is due to the judgment debtor from a third person, the garnishee. L~, 196 Va. at 520.
Garnishment in Virginia is a statutory proceeding governed by Virginia Code section 8.01-511, et seq. CRC, Ltd. v. Lloyd, 32 Va. Cir. 106, 1993 WL 946253, *3 (Va. Cir. Ct. Sep. 28, 1993) (unpublished). While all garnishments must generally follow the procedures set forth in Virginia Code section 8.01-511, garnishment withholding may extend beyond the return date in certain situations where the garnishee is the United States. VA. CODE ANN. §§ 8.01-511; 20-78.1(b) (West 2011).
i. Garnishment withholding pursuant to a standard garnishment summons ceases on the return date.
Virginia Code section 8.01-511 provides that a court clerk’s office may issue a garnishment summons. Garnishment summonses must conform to a specific format described in Virginia Code section 8.01-512.3. VA. CODE ANN. § 8.01-511. The form, as described in Virginia Code section 8.01512.3(a), must include certain notices to the garnishee, including that “[a]s garnishee, you shall withhold from the judgment debtor any sums of money to which the judgment debtor is or may be entitled from you during the period between the date of service of this summons on you and the date for your appearance in court.” The form also must include notice to the garnishee that the maximum balance the garnishee may withhold pursuant to the summons is the “Total Balance Due” and that in response to the summons the garnishee must 1) file a written answer with the court, 2) deliver payment to the court, or 3) appear before the court on the return date as shown on the summons to answer it. VA. CODE ANN. § 8.01-512.3(a) (West 2011). Virginia Code section 8.01-514 provides that a wage garnishment summons is returnable no later than 180 days after its issuance. Virginia Code section 8.01-520 provides that the garnishee may pay the amounts withheld to the clerk of the court prior to the return date of the summons.
ii. In certain circumstances where the United States is the garnishee, the garnishment withholding may continue until modified by the issuing court or until an arrearage is satisfied.
Notably, Virginia Code section 20-78.1 specifically provides for garnishment to enforce judgments for arrearages or orders or decrees of support for spouses or support and maintenance of children arising under certain state law provisions when the United States is the garnishee. See Brown v. Brown, No. CLCL03001168-00 (Va. Cir. Ct. Oct. 11, 2007) (unpublished) (discussing the garnishment withholding of Social Security benefits under this provision). This section provides that in these specified circumstances the standard garnishment procedures beginning at Virginia Code section 8.01-511 will apply except that any such garnishment “shall continue until modified by the issuing court, or in the case of an arrearage, until the sum or sums of money found to be in arrears are paid in full.” VA. CODE ANN. § 2078.1(b).
The extended garnishment time frames under Virginia Code section 2078.1, however, do not necessarily apply to every Virginia garnishment summons presented to the United States. In Butler v. Butler, the Virginia Supreme Court found that not all judgments for amounts that constitute alimony for the purpose of the exception to the Act’s prohibition on garnishment constitute “support for a spouse as provided in [Virginia] Code § 2078.1.” 221 Va. 1035, 1037-41, 277 S.E.2d 180, 181-84 (Va. 1981) (finding that a judgment for a voluntary property settlement arrearage that was incorporated into a divorce decree constituted alimony for the purpose of section 459 of the Act, but not an order or decree of support for a spouse under Virginia Code section 2078.1). Thus, there appear to be circumstances in which a support judgment could be enforced against payments by the United States through the standard garnishment procedures beginning at Virginia Code section 8.01-511, but to which the special withholding durations provided by Virginia Code section 20-78.1 would not apply.
iii. The agency should carefully review a Virginia garnishment summons and any accompanying documentation to determine whether withholding should cease on the return date, continue until modified by the court, or continue until the amount of support in arrears has been withheld.
As withholding pursuant to a Virginia garnishment summons may cease on the return date under the standard Virginia garnishment procedures, or may continue until modified by the issuing court or until the amount in arrears has been withheld under Virginia Code section 2078.1, we advise that the agency carefully review all Virginia garnishment summonses. If the agency receives a valid garnishment summons set forth on the standard state form with no modification to the standard instructions and no accompanying documentation ordering that withholding continue, the agency generally must withhold amounts from the identified beneficiary’s benefits only through the return date and not withhold amounts exceeding the total amount due as shown on the summons. VA. CODE ANN. § 8.01-512.3(a). In such an instance, the agency should transmit the withheld payments to the court that issued the order on or prior to the return date. Id.
If, however, the agency receives a garnishment summons that indicates that it was issued pursuant to Virginia Code section 2078.1 and/or that withholding should continue until the garnishment is modified by the issuing court or until an arrearage has been repaid, the agency should, as directed by the summons, commence withholding until the garnishment is modified by the issuing court or until the total balance due has been withheld. In addition to or in lieu of using the standard garnishment summons, a court also may direct ongoing withholding pursuant to Virginia Code section 20-78.1 in a document entitled “Continuing Garnishment Order.” See B~, No. CLCL03001168-00 at 1-2 (explaining that the court first issued a garnishment summons and then on the return date of the summons issued a “Continuing Garnishment Order”). The agency should honor any such order if it satisfies review pursuant to POMS section GN 02410.210.A.3.
If there are any questions as to the duration of a garnishment summons or regarding how payment should be transmitted, the agency should contact the office of the clerk who issued the summons for further clarification.
iv. In the situation at issue, withholding should have ceased on the return date or when an amount equal to the arrearage had been withheld.
In the situation at issue, there is no indication on the face of the garnishment summons that it was issued pursuant to Virginia Code section 20-78.1 or that withholding was intended to continue indefinitely or until the arrearage was paid in full. Likewise, we understand the agency received no accompanying or subsequent order indicating that withholding should continue beyond the return date. The December 19, 2011 fax from the Deputy Clerk does not suggest that the summons was issued pursuant to Virginia Code section 2078.1 and further explains that the agency was intended to withhold amounts from William’s benefits only through the return date, December 15, 2008. The position of William’s attorney, as set forth in his January 23, 2012 letter, is ambiguous. Although the attorney alleges that the agency erred in withholding amounts from William’s benefits beyond the return date, he demands only the difference between the total amount allegedly withheld and the total balance due on the summons.
Regardless of whether the garnishment summons was issued under the standard garnishment procedures set forth beginning in Virginia Code section 8.01-511 or the special time frames set forth in Virginia Code section 2078.1, the agency was not intended to withhold more than the total balance due of $6,514.50 from William’s benefits. VA. CODE ANN. §§ 8.01-511, 2078.1. Furthermore, Virginia’s garnishment statute directs that a garnishee answer the summons or deliver payment to the court. VA. CODE ANN. § 8.01512.3(a). Here, the agency instead made payments directly to the judgment creditor.
b. In contrast to the standard Virginia garnishment procedures, income deduction orders and income withholding orders generally continue until terminated by a court or state agency.
Responding to federal child support enforcement mandates, “Virginia has enacted broadened wage assignment or payroll deduction provisions,” in addition to garnishment. VA. PRAC. FAMILY LAW § 10:26(b) (2011). These measures include income deduction orders for child or spousal support that an employer (or here the agency) must honor until they are terminated by the issuing Court or the state Department of Social Services. VA. CODE ANN. §§ 20-79.1 (describing Virginia income deduction orders); 20-79.3(A)(7) (providing that an income deduction order remains in effect until further notice by order of the court or the Department is served); 63.21900 (West 2011) (defining “employer” as an income source and “income” to include social security benefits).
The state also grants its Department of Social Services the authority to issue administrative support orders directing the payment of child or child and spousal support by a noncustodial parent, which may provide for withholding of income by the noncustodial parent’s employer (or withholding of benefits by the agency with respect to noncustodial parents who are social security beneficiaries). VA. CODE ANN. § 63.2-1903A (West 2011). These administrative income withholding orders also must be honored until terminated by a court or the Department of Social Services. VA. CODE ANN. §§ 63.21923(C), 63.2-1924(C) (providing that a noncustodial parent’s employer will be issued an income withholding order that conforms to the requirements set forth for an income deduction order); 63.2-1923(E), 63.2-1923(F) (West 2011) (indicating that Department of Social Services is responsible for terminating or modifying income withholding orders). Further, Virginia has adopted the Uniform Interstate Family Support Act, which provides that employers (including the agency with respect to social security beneficiaries) must honor the income withholding orders of other states. VA. CODE ANN. § 2088.64 (West 2011).
Because the legal authority for withholding pursuant to income withholding or income deduction orders continues until terminated or modified by the court or state agency, the agency generally should not terminate withholding pursuant to these types of orders until it receives a valid notice of termination from a court or state agency.
C. The United States has not waived sovereign immunity with respect to liability for its compliance with garnishment orders; however, improperly garnished amounts constitute underpayments under the Act that are to be paid to the underpayee.
“Jurisdiction over any suit against the Government requires a clear statement from the United States waiving sovereign immunity . . . .” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003). “The terms of consent to be sued may not be inferred, but must be unequivocally expressed.” Id. Any waiver of sovereign immunity “must be construed strictly in favor of the sovereign and not enlarged beyond what the language requires.” McMellon v. United States, 387 F.3d 329, 340 (4th Cir. 2004) (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992)).
With section 459 of the Act, Congress “remov[ed] the Government’s immunity from a garnishment proceeding authorized under state law.” Morrison v. Morrison, 408 F. Supp. 315, 317 (N.D. Tex. 1976). Congress expressly constrained this waiver of sovereign immunity in section 459(f) of the Act, which provides:
Neither the United States . . . nor any disbursing officer shall be liable with respect to any payment made from moneys due or payable from the United States to any individual pursuant to legal process regular on its face, if the payment is made in accordance with this section and the regulations issued to carry out this section.
Although this language only expressly disclaims liability with respect to payments made in compliance with legal process that is “regular on its face” and carried out in accordance with the statute and its accompanying regulations, section 459 of the Act does not create a right of action for damages for failure to comply with a garnishment order. Jacobson v. United States, 29 A.3d 1103, 1108 (N.J. Super. App. Div. 2011). The section only waives sovereign immunity to the extent that it permits the United States to honor child and spousal support withholding orders. Id. “It is the Federal Government’s position that the support garnishment statute did not waive sovereign immunity in a manner that would make the Federal Government liable for damages as a result of failure to comply with legal process.” Processing Garnishment Orders for Child Support and Alimony and Commercial Garnishment of Federal Employees’ Pay, 62 Fed. Reg. 31,763, 31,763 (Jun. 11, 1997). In fact, an earlier iteration of the regulations under this section provided that “where a governmental entity negligently fails to comply with legal process, the United States shall be liable for the amount that the governmental entity would have paid, if the legal process had been properly honored.” 5 C.F.R. § 581.305(d) (1981). The agency responsible for promulgating these regulations, the Office of Personnel Management (OPM), subsequently removed this language. 5 C.F.R. § 581.305(d) (2011). In removing this language, OPM explained that the language imposing liability for negligent failure to comply was “incorrect as a matter of law” and removed at the request of the Justice Department. Processing Garnishment Orders, 62 Fed. Reg. at 31,763.
Although section 459 of the Act does not waive sovereign immunity and grant William a cause of action to challenge any failure in the agency’s compliance with the garnishment order, William has accrued an underpayment under the Act. Section 204(a)(1)(B)(i) of the Act provides that whenever less than the correct amount has been paid to a person under Title II, the agency shall pay the balance of the amount due to that person. Here, because the agency did not timely cease withholding amounts from William’s benefit, he was paid less than the correct amount. Furthermore, although the agency’s Program Operations Manual System (POMS) does not directly address this type of situation, it also suggests that William is due repayment. POMS section GN 02410.225.3.b provides that after the agency garnishes the benefits of the incorrect beneficiary, the agency should request refund of the incorrect payment from the garnishor and repay the garnished amounts that were withheld from the incorrect beneficiary. Here, the agency in effect garnished an “incorrect beneficiary” when it continued withholding amounts from William’s benefits after it had withheld the full amount of the total balance due on the garnishment summons, if not after the return date on the summons. The agency should credit William with an underpayment for the amount withheld from his benefits in excess of the total amount due specified on the summons.
The agency should credit William with an underpayment for the amount withheld from his benefits in excess of the total amount due specified on the summons. Although the total improper withholding may be higher if all withholding subsequent to the return date is considered, it is unclear whether Virginia Code section 20-78.1 applied here to extend the withholding period until the time at which the arrearage had been paid in full. Moreover, even William’s attorney seeks only the difference between the amount withheld and the total balance due specified on the garnishment summons.
The agency may not pay William interest on the amount withheld in excess of the total amount due. “It is well established that payment of interest by the federal government must be authorized by statute.” Arnesen v. Principi, 300 F.3d 1353, 1358 (Fed. Cir. 2002). Here, no provision of law permits the agency to pay interest on untimely paid benefits. Abulkhair v. Comm’r, No. 11–3314, 2011 WL 5290146, *2 (3d Cir. Nov. 3, 2011); see also Social Security Administration, Frequently Asked Questions No. 186 (Dec. 15, 2011).
We recommend that the agency carefully review all Virginia garnishment summonses and any accompanying orders to determine if they direct the agency to withhold until a return date, until an arrearage is paid in full, or until modified by the issuing court. The agency also should be aware that standard Virginia garnishment summonses direct that the withheld amounts be transmitted to the issuing court and not the support judgment creditor. Questions about the intent of a Virginia garnishment summons should be directed to the issuing clerk’s office or the Regional Chief Counsel.
Notably, in contrast to Virginia garnishment summonses, which may direct that withholding cease on a return date or when the amount of an arrearage has been withheld without further court action, Virginia income deduction orders and income withholding orders generally will not terminate in the absence of notice from a court or the state Department of Social Services.
In this situation, the agency improperly withheld amounts from William’s benefits. The improperly withheld amount is at least the amount withheld in excess of the total balance due specified on the garnishment summons. Although the agency retains sovereign immunity barring actions regarding its failure to comply with garnishment orders, the improperly withheld amount constitutes an underpayment to William under the Act. The agency, however, can pay no interest to William on this underpayment.
Nora R. Koch
Acting Regional Chief Counsel
Timothy F. Kennedy
Assistant Regional Counsel
The garnishment summons was prepared on a January 2007 edition of a standard Virginia judicial system form, form CC1486. A blank copy of this form is available at http://www.courts.state.va.us/forms/circuit/civil.html.
The standard Virginia garnishment summons form provides a box for the specification of a “Hearing Date and Time.” On the copy of this summons that the field office faxed to NDRed the word “Hearing” is obscured, so only the words “Date and Time” are visible.
Virginia’s judicial system provides fillable copies of garnishment summons forms that comply with the statutory requirements. The circuit court form, CC-1486, is available at http://www.courts.state.va.us/forms/circuit/civil.html. The district court form, DC-451, is available at http://www.courts.state.va.us/forms/district/civil.html.
In your request, you asked specifically about a similar Virginia Code section referenced by the deputy court clerk, Virginia Code section 16.1-99, which sets a time limit on the return date of a wage garnishment issued from Virginia general district courts. Virginia circuit courts, however, also can issue garnishment summons. The general garnishment procedures found in Virginia Code section 8.01-511, et seq., apply to both general district and circuit courts and generally dictate that withholding cease on the return date. See VA. CODE ANN. § 8.01-512.3(a). We therefore consider the application of the more generally applicable garnishment procedures, which are consistent with the deputy clerk’s assertions.
Available at http://valawyersweekly.com/wp-files/pdf/007-8-252.pdf. Virginia Code section 20-78.1 initially was enacted after the adoption of section 459 of the Act in order to clarify that the wages of federal employees could be garnished under Virginia garnishment procedures. Practice and Pleading, Twenty-First Annual Survey of Developments in Virginia Law, 1975-1976, 62 VA. L. REV. 1460, 1467 (1976); see also Virginia Code Commission, DIGEST OF THE ACTS OF THE VIRGINIA GENERAL ASSEMBLY AT THE 1999 SESSION 29-30 (1999), available at http://legis.state.va.us/codecomm/digest/1999/digest99.pdf (explaining a 1999 change that eliminated a 180 day limit on garnishments in this provision).
See Fairfax County Circuit Court, Garnishment Proceedings Guidelines & Instructions (Jul. 1, 2010), available at http://www.fairfaxcounty.gov/courts/circuit/pdf/CCR-G-10.pdf. These guidelines expressly provide that “Garnishments issued pursuant to §20-78.1 shall continue until modified by the issuing court, or in the case of an arrearage, until the sum or sums of money found to be in arrears are paid in full.”
Available at http://ssa-custhelp.ssa.gov/app/answers/detail/a_id/186/~/collecting-interest-on-back-benefit-checks.