B-203668, FEBRUARY 2, 1982, 61 COMP.GEN. 229

B-203668, FEBRUARY 2, 1982, 61 COMP.GEN. 229

PAY - WITHHOLDING - DEBT COLLECTION - ALIMONY AND CHILD SUPPORT - GARNISHMENT ORDER OVERTURNED - RECLAIM DENIED THE AIR FORCE, WHICH HAD BEEN COMPLYING WITH A FLORIDA STATE COURT ORDER GARNISHING THE PAY OF ONE OF ITS MEMBERS FROM JUNE 1976 THROUGH MAY 1980 FOR CHILD SUPPORT, INCURRED NO OBLIGATION TO REIMBURSE THE MEMBER WHEN THE GARNISHMENT WAS LATER SET ASIDE BY THE COURT. THE ORIGINAL COURT ORDER WAS REVIEWED BY THE AIR FORCE WHICH FOUND IT APPEARED VALID ON ITS FACE. THEREFORE, PURSUANT TO 42 U.S.C. 659, THE AIR FORCE WAS REQUIRED TO COMPLY WITH IT, AND BY DOING SO INCURRED NO LIABILITY. ALSO, 42 U.S.C. 659(F) (SUPP. III. 1979) CURRENTLY PROVIDES THAT NO AGENCY OR DISBURSING OFFICER WILL BE HELD LIABLE FOR MAKING PAYMENTS WHEN THE LEGAL PROCESS APPEARS VALID ON ITS FACE.

MATTER OF: TECHNICAL SERGEANT HARRY E. MATHEWS, USAF, FEBRUARY 2, 1982:

THIS ACTION IS IN RESPONSE TO AN APPEAL BY TECHNICAL SERGEANT HARRY E. MATHEWS, USAF, OF OUR CLAIMS GROUP'S DISALLOWANCE OF HIS CLAIM FOR REIMBURSEMENT OF AMOUNTS WITHHELD FROM HIS PAY AND FOR OTHER EXPENSES HE INCURRED PURSUANT TO THE GARNISHMENT OF HIS AIR FORCE PAY DURING THE PERIOD JUNE 1976 THROUGH MAY 1980. THE PAY SERGEANT MATHEWS IS CLAIMING WAS WITHHELD BY THE DEPARTMENT OF THE AIR FORCE PURSUANT TO AN ORDER FOR CHILD SUPPORT ISSUED BY A FLORIDA CIRCUIT COURT IN MARCH 1976. THERE IS NO AUTHORITY TO REIMBURSE THE CLAIMANT FOR PAY GARNISHED UNDER AN ORDER WHICH, AT THE TIME THE PAY WAS GARNISHED, WAS VALID ON ITS FACE, NOR IS THERE AUTHORITY TO REIMBURSE HIM FOR OTHER EXPENSES HE INCURRED IN CONNECTION WITH THE GARNISHMENT.

IN 1976, WHILE SERGEANT MATHEWS WAS ASSIGNED OVERSEAS, HE RECEIVED NOTICE THAT, DUE TO A LAWSUIT BROUGHT AGAINST HIM IN FLORIDA FOR CHILD SUPPORT, A FLORIDA STATE COURT HAD ISSUED A GARNISHMENT ORDER AGAINST HIS PAY. UNDER THE ORDER HIS PAY WAS TO BE GARNISHED UNTIL DECEMBER 1992, AND AN ARREARAGE OF $1,150 WAS ALSO TO BE COLLECTED. THE AIR FORCE DETERMINED THAT THE ORDER WAS VALID ON ITS FACE AND BEGAN COMPLYING WITH IT BY WITHHOLDING THE REQUIRED AMOUNTS FROM HIS PAY. CONTENDING THAT HE HAD NO PRIOR NOTICE OF THE LAWSUIT, AND THAT IT WAS BASED ON FRAUD, SERGEANT MATHEWS SOUGHT HELP FROM THE GOVERNMENT TO CHALLENGE THE ORDER. HOWEVER, SINCE IT WAS PRIMARILY A PRIVATE MATTER, THE AIR FORCE ADVISED HIM TO SEEK CIVILIAN COUNSEL TO CHALLENGE THE ORDER IN THE FLORIDA COURTS.

SERGEANT MATHEWS CONTENDS THAT HE ENCOUNTERED DIFFICULTY IN SECURING CIVILIAN COUNSEL. HE ALSO STATES THAT THE HEARING DATE ON HIS MOTION FOR RELIEF FROM JUDGMENT WAS POSTPONED SEVERAL TIMES AND THAT, FOR AN EXTENDED PERIOD OF TIME, HIS FILE WAS MISSING FROM THE APPROPRIATE COURT, CAUSING FURTHER DELAY. THROUGHOUT THIS TIME, PAYMENTS OF $151.57 A MONTH PLUS $50 A MONTH IN PAYMENT OF THE ARREARAGE WERE GARNISHED FROM HIS PAY.

IN MAY 1980, HE WAS HEARD IN THE FLORIDA COURT ON A MOTION FOR RELIEF FROM JUDGMENT, AND BY ORDER DATED MAY 20, 1980, A JUDGE OF THE CIRCUIT COURT FOR THE ELEVENTH JUDICIAL CIRCUIT, DADE COUNTY, FLORIDA, ORDERED THE GARNISHMENT SET ASIDE. ON THE BASIS THAT THIS ORDER INDICATES THAT THE GARNISHMENT SHOULD NEVER HAVE TAKEN PLACE, SERGEANT MATHEWS FILED A CLAIM WITH THE AIR FORCE FOR REIMBURSEMENT OF THE AMOUNT PAID DURING THE PERIOD JUNE 1976 THROUGH MAY 1980 AS WELL AS OTHER EXPENSES HE INDICATES AROSE OUT OF THE MATTER. THE AIR FORCE ACCOUNTING AND FINANCE CENTER, NOTING THAT IT FOUND NO BASIS FOR REIMBURSEMENT, SENT THE CLAIM TO OUR CLAIMS GROUP WHICH DISALLOWED IT ON SEPTEMBER 2, 1980.

THE ISSUE IN THIS CASE IS WHETHER THE GOVERNMENT IS AUTHORIZED TO REIMBURSE A SERVICE MEMBER FOR MONEY GARNISHED FROM HIS PAY PURSUANT TO A STATE COURT ORDER TO WHICH THE GOVERNMENT IS SUBJECTED UNDER 42 U.S.C. 659, WHEN THE ORDER HAS BEEN OVERTURNED. THE ORDER IN THIS CASE WAS SET ASIDE PRESUMABLY DUE TO INSUFFICIENT PERSONAL JURISDICTION BY THE COURT OVER THE MEMBER.

UNDER THE PROVISIONS OF 42 U.S.C. 659 (SUPP. III, 1979) THE GOVERNMENT HAS WAIVED ITS SOVEREIGN IMMUNITY FOR THE LIMITED PURPOSE OF SUBJECTING ITSELF TO STATE ACTIONS TO GARNISH THE PAY OF ITS EMPLOYEES AND MEMBERS OF THE ARMED FORCES BUT ONLY WHEN GARNISHMENT IS TO PROVIDE CHILD SUPPORT AND ALIMONY. WHEN THE AIR FORCE WAS SERVED WITH A GARNISHMENT ORDER VALID ON ITS FACE IT WAS REQUIRED TO COMPLY WITH IT, AND THE GOVERNMENT INCURRED NO LIABILITY TO SERGEANT MATHEWS IN DOING SO. THUS, WHERE AN ORDER APPEARS REGULAR ON ITS FACE, THE GOVERNMENT MUST GARNISH WAGES TO MAKE PAYMENT, AND IN FACT, MAY BE HELD LIABLE IF IT FAILS TO DO SO.SEE 56 COMP.GEN. 592(1977). SEE ALSO 42 U.S.C. 659(F) WHICH SPECIFICALLY PROVIDES THAT NEITHER THE UNITED STATES, ANY DISBURSING OFFICER, NOR GOVERNMENTAL ENTITY IS LIABLE FOR PAYMENTS MADE UNDER THIS AUTHORITY "PURSUANT TO LEGAL PROCESS REGULAR ON ITS FACE."

THE INQUIRY INTO WHETHER AN ORDER IS VALID ON ITS FACE IS AN EXAMINATION OF THE PROCEDURAL ASPECTS OF THE LEGAL PROCESS INVOLVED, NOT THE SUBSTANTIVE ISSUES. 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. AETNA INSURANCE CO. V. BLUMENTHAL, 29 A.2D 751, 754 (CONN. 1943).

AS IS INDICATED ABOVE, WHEN THE AIR FORCE RECEIVED THE GARNISHMENT ORDER, THEY REVIEWED IT AND FOUND IT VALID ON ITS FACE AND IN CONFORMITY WITH THE FLORIDA LAW. SERGEANT MATHEWS HAS NOT SHOWN THAT THAT FINDING WAS INCORRECT. INSTEAD, HE ARGUED THAT THE ORDER WAS INVALID BECAUSE IT WAS OBTAINED BY FRAUD, AND THAT HE HAD NOT BEEN PROPERLY SERVED IN THE ORIGINAL COURT ACTION AGAINST HIM. AS THE AIR FORCE ADVISED HIM, THESE WERE MATTERS FOR HIM TO LITIGATE IN THE COURTS AND NOT FOR THE AIR FORCE TO DECIDE. THAT IS, THEY WERE NOT CHALLENGES TO THE FACIAL VALIDITY OF THE GARNISHMENT ORDER. WHILE THE ORDER WAS SET ASIDE IN 1980, IT WAS VALID AT THE TIME PAYMENT WAS BEING MADE UNDER IT, AND THE GOVERNMENT HAD A DUTY TO COMPLY WITH IT UNTIL THE COURT MODIFIED IT. THERE IS NO AUTHORITY FOR REIMBURSEMENT OF THE AMOUNTS WITHHELD FROM SERGEANT MATHEWS' PAY, NOR IS THERE AUTHORITY TO REIMBURSE HIM FOR THE LEGAL AND OTHER EXPENSES HE CLAIMS HE INCURRED IN HAVING THE ORDER OVERTURNED.

ACCORDINGLY, THE DISALLOWANCE OF THE CLAIM IS SUSTAINED.