B-183433, NOVEMBER 28, 1975, 55 COMP.GEN. 517

B-183433, NOVEMBER 28, 1975, 55 COMP.GEN. 517

GARNISHMENT - FEDERAL FUNDS - STATE LAWS STATE OF WASHINGTON SOUGHT TO GARNISH PAY OF AIR FORCE CIVILIAN EMPLOYEE TO COLLECT CHILD SUPPORT UNDER AUTHORITY OF SECTION 459 OF PUBLIC LAW 93- 647 BY MEANS OF ADMINISTRATIVE GARNISHMENT ORDER SERVED ON AIR FORCE FINANCE OFFICER. AIR FORCE REFUSED TO EFFECT GARNISHMENT ON GROUND THAT ADMINISTRATIVE ORDER WAS NOT "LEGAL PROCESS" WITHIN MEANING OF STATUTE. IN LIGHT OF PURPOSE OF STATUTE AND LACK OF ANY LIMITING LANGUAGE, WE BELIEVE "LEGAL PROCESS" IS SUFFICIENTLY BROAD TO PERMIT GARNISHMENT BY ADMINISTRATIVE ORDER UNDER THE WASHINGTON PROCEDURE. GENERAL ACCOUNTING OFFICE WOULD NOT OBJECT TO AIR FORCE PAYMENTS UNDER STATE ADMINISTRATIVE ORDER.

IN THE MATTER OF THE STATE OF WASHINGTON - GARNISHMENT OF FEDERAL EMPLOYEE'S COMPENSATION, NOVEMBER 28, 1975:

THIS MATTER IS BEFORE US BASED UPON A PETITION SUBMITTED BY THE STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, THROUGH ITS CHIEF OF THE OFFICE OF SUPPORT ENFORCEMENT, REQUESTING THAT THE COMPTROLLER GENERAL DIRECT AND AUTHORIZE THE DEPARTMENT OF DEFENSE TO HONOR A STATE ADMINISTRATIVE ORDER THAT WAS SERVED UPON THE ASSISTANT FINANCE OFFICER, FAIRCHILD AIR FORCE BASE, WASHINGTON, ON JANUARY 27, 1975. THE ORDER TO WITHHOLD AND DELIVER SOUGHT TO GARNISH THE WAGES OF A CIVILIAN EMPLOYEE OF THE AIR FORCE, UNDER THE AUTHORITY OF SECTION 459 OF PUBLIC LAW 93-647, JANUARY 4, 1975, 88 STAT. 2337, 2357 (SOCIAL SERVICES AMENDMENTS OF 1974), 42 U.S.C. 659. THE GARNISHMENT WAS NOT EFFECTED BECAUSE THE AIR FORCE INTERPRETED THE TERM "LEGAL PROCESS" IN SECTION 459 TO MEAN ONLY GARNISHMENT ORDERS ISSUED BY A COURT AND NOT ADMINISTRATIVE ORDERS. THE ISSUE PRESENTED THEREFORE IS WHETHER THE TERM "LEGAL PROCESS" IN SECTION 459 INCLUDES ADMINISTRATIVE GARNISHMENT ORDERS.

BY A DECREE OF DIVORCE RENDERED JANUARY 15, 1970, BY THE SUPERIOR COURT OF WASHINGTON FOR SPOKANE COUNTY, THE CIVILIAN EMPLOYEE AND HIS WIFE WERE DIVORCED. UNDER THE TERMS OF THAT DECREE, THE WIFE WAS GRANTED CARE, CUSTODY, AND CONTROL OF THE THREE MINOR CHILDREN BORN OF THE MARRIAGE, AND THE EMPLOYEE WAS ORDERED TO PAY $50 PER MONTH FOR THE SUPPORT OF EACH OF THE CHILDREN DURING THEIR MINORITY. SUBSEQUENT TO THE SUBMISSION OF THE INITIAL PETITION, WE RECEIVED FURTHER INFORMATION FROM THE STATE OF WASHINGTON WHICH INDICATED THAT, ON FEBRUARY 3, 1970, IN THE JUSTICE COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF SPOKANE, THE EMPLOYEE PLEADED GUILTY TO TWO COUNTS OF NONSUPPORT, AND THAT THE TOTAL SUPPORT PAYMENTS MADE BY HIM THROUGH APRIL 8, 1975, WERE $760. AT SOME TIME FOLLOWING THE DIVORCE - THE EXACT DATE IS NOT IN THE RECORD - THE FORMER WIFE BEGAN COLLECTING AID TO FAMILIES WITH DEPARTMENT CHILDREN (AFDC) FROM THE STATE OF WASHINGTON FOR THE THREE CHILDREN BECAUSE OF THE EMPLOYEE'S FAILURE TO MAKE SUPPORT PAYMENTS.

UNDER THE REVISED CODE OF WASHINGTON ANNOTATED (RCWA) 74.20A.030, PAYMENT OF AFDC FOR THE BENEFIT OF ANY DEPENDENT CHILDREN CREATES A DEBT DUE AND OWING TO THE WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES BY THE PARENT OR PARENTS RESPONSIBLE FOR THE SUPPORT OF THE CHILDREN IN AN AMOUNT EQUAL TO THE AFDC PAYMENTS, BUT LIMITED BY THE TERMS OF ANY COURT ORDER PROVIDING FOR SUCH SUPPORT. THAT SECTION FURTHER PROVIDES THAT THE STATE SHALL BE SUBROGRATED TO THE RIGHTS OF THE CHILDREN OR THE PERSON HAVING CUSTODY OF THE CHILDREN, AND THE STATE MAY MAINTAIN ANY SUPPORT ACTION OR EXECUTE ANY ADMINISTRATIVE REMEDY IN ORDER TO OBTAIN REIMBURSEMENT OF AFDC PAYMENTS THAT WERE MADE. THE SECRETARY OF THE WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES MAY PURSUE THE STATE'S RIGHTS BY ISSUING A "NOTICE OF SUPPORT DEBT ACCRUED AND/OR ACCRUING" UNDER RCWA 74.20A.040. TWENTY DAYS AFTER THE NOTICE OF DEBT HAS BEEN SERVED ON THE PARENT AGAINST WHOM THE COURT ORDER FOR SUPPORT IS DIRECTED, THE SECRETARY MAY TAKE ACTION TO COLLECT THE MONIES DUE BY LIEN AND FORECLOSURE, OR DISTRAINT, SEIZURE AND SALE, OR AN "ORDER TO WITHHOLD AND DELIVER."

UNDER RCWA 74.20A.080 THE SECRETARY IS AUTHORIZED TO SERVE AN "ORDER TO WITHHOLD AND DELVER," ON ANY PERSON WHOM HE HAS REASON TO BELIEVE IS IN POSSESSION OF ANY PROPERTY, INCLUDING WAGES, OF THE ALLEGED DEBTOR. THIS ORDER MUST ALSO BE SERVED UPON THE DEBTOR. IN EFFECT, THE "ORDER TO WITHHOLD AND DELIVER," CAN ACT AS AN ORDER GARNISHING THE WAGES OR SALARY OF THE ALLEGED DEBTOR. IF THE PERSON SERVED FAILS TO COMPLY WITH THE "ORDER TO WITHHOLD AND DELIVER," HE MAY BE SUBJECT TO CIVIL LIABILITY, UNDER RCWA 74.20A.100, IN THE FORM OF A FINE EQUAL IN AMOUNT TO THE SUPPORT DEBT OWED, PLUS INTEREST AND ATTORNEY'S FEES.

ACCORDING TO THE PETITION AND SUPPLEMENTAL MATERIALS SUBMITTED TO US, THE STATE OF WASHINGTON SERVED THE EMPLOYEE WITH A NOTICE OF DEBT ON SEPTEMBER 20, 1974. WHEN HE FAILED TO EITHER SATISFY THE DEBT OR RAISE THE APPROPRIATE DEFENSES, THE STATE SERVED A "NOTICE TO WITHHOLD AND DELIVER," ON THE ASSISTANT FINANCE OFFICER, FAIRCHILD AIR FORCE BASE, WASHINGTON, ON JANUARY 27, 1975. THE ORDER WAS "RETURNED WITHOUT ACTION," ON FEBRUARY 14, 1975. IN THE MEMORANDUM RETURNING THE ORDER, THE CHIEF, ACCOUNTING AND FINANCE BRANCH, FAIRCHILD AIR FORCE BASE, STATED THAT IT WAS THE OPINION OF THE HEADQUARTERS, UNITED STATES AIR FORCE, THAT THE PROCEDURES FOLLOWED BY THE STATE DID NOT AMOUNT TO "LEGAL PROCESS" WITHIN THE MEANING OF SECTION 459 OF PUBLIC LAW 934647, AND HENCE THAT THE AIR FORCE HAD NO STATUTORY AUTHORITY THAT WOULD ENABLE IT TO COMPLY WITH THE ORDER. THE MEMORANDUM FURTHER STATED THAT, AS DIRECTED BY HIGHER HEADQUARTERS, ONLY GARNISHMENTS ISSUED BY APPROPRIATE COURTS COULD BE HONORED.

FOLLOWING THIS REFUSAL TO GARNISH THE EMPLOYEE'S SALARY, THE STATE OF WASHINGTON SUBMITTED ITS PETITION REQUESTING THAT WE DIRECT THE AIR FORCE TO EFFECTUATE THE GARNISHMENT. WE SOLICITED THE VIEWS OF THE DEPARTMENT OF DEFENSE (DOD) AND THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) REGARDING THE ISSUES RAISED BY THE STATE'S PETITION. THOSE VIEWS WILL BE DISCUSSED BELOW, WHEREVER APPROPRIATE.

THE ONLY AUTHORITY CURRENTLY AVAILABLE THAT SANCTIONS OR PERMITS THE GARNISHMENT OF THE SALARY OR WAGES OF FEDERAL EMPLOYEES IS SECTION 459 OF PUBLIC LAW 93-647, SUPRA, WHICH PROVIDES THAT:

CONSENT BY THE UNITED STATES TO GARNISHMENT AND SIMILAR PROCEEDINGS FOR ENFORCEMENT OF CHILD SUPPORT AND ALIMONY OBLIGATIONS

SEC. 459. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EFFECTIVE JANUARY 1, 1975, MONEYS (THE ENTITLEMENT TO WHICH IS BASED UPON REMUNERATION FOR EMPLOYMENT) DUE FROM, OR PAYABLE BY, THE UNITED STATES (INCLUDING ANY AGENCY OR INSTRUMENTALITY THEREOF AND ANY WHOLLY OWNED FEDERAL CORPORATION) TO ANY INDIVIDUAL, INCLUDING MEMBERS OF THE ARMED SERVICES, SHALL BE SUBJECT, IN LIKE MANNER AND TO THE SAME EXTENT AS IF THE UNITED STATES WERE A PRIVATE PERSON, TO LEGAL PROCESS BROUGHT FOR THE ENFORCEMENT, AGAINST SUCH INDIVIDUAL OF HIS LEGAL OBLIGATIONS TO PROVIDE CHILD SUPPORT OR MAKE ALIMONY PAYMENTS.

NO FEDERAL LAW OF GARNISHMENT IS CREATED, NOR IS ANY FEDERAL COURT GIVEN JURISDICTION TO HEAR OR DECIDE GARNISHMENT CASES. THE ONLY THING THAT SECTION 459 DOES IS TO REMOVE, IN VERY LIMITED CIRCUMSTANCES, THE PREVIOUSLY EXISTING BAR THAT PREVENTED GARNISHMENT OF FEDERAL EMPLOYEES' SALARIES. IN EFFECT, SECTION 459 PROVIDES THAT, IN CASES WHERE COLLECTION OF CHILD SUPPORT AND ALIMONY IS SOUGHT THROUGH GARNISHMENT, FEDERAL EMPLOYERS AND EMPLOYEES WILL BE TREATED, UNDER THE LAWS OF EACH PARTICULAR STATE, AS IF THEY WERE PRIVATE EMPLOYERS AND EMPLOYEES. SECTION 459 REQUIRES THAT A PERSON SEEKING GARNISHMENT FOLLOW THE GARNISHMENT LAWS AND PROCEDURES OF THE PARTICULAR STATE, AND PROVIDES THAT, FOR THE LIMITED GARNISHMENT PURPOSES, THE UNITED STATES WILL BE SUBJECT TO THE JURISDICTION OF STATE COURTS WHEN NECESSARY UNDER THAT STATE'S GARNISHMENT LAWS.

IN THE INSTANT CASE GARNISHMENT IS SOUGHT NOT BY AN INDIVIDUAL, BUT BY THE STATE SEEKING TO RECOVER PAYMENTS MADE UNDER AN AFDC PROGRAM. PROPERLY APPRECIATE THE RELATIONSHIP OF THE STATE OF WASHINGTON'S ACTIONS AND GARNISHMENT UNDER SECTION 459, IT IS APPROPRIATE TO EXAMINE THE CHILD SUPPORT ENFORCEMENT PROGRAM AS IT WAS MODIFIED BY PART B OF PUBLIC LAW 93- 647. PART B IS ENTITLED "CHILD SUPPORT PROGRAMS," AND AMENDS THE SOCIAL SECURITY ACT BY ADDING SECTIONS 452 THROUGH 460 (42 U.S.C. 651-660), AND BY MAKING VARIOUS OTHER AMENDMENTS IN FURTHERANCE OF THE GOALS ENUNCIATED IN THE NEWLY ADDED SECTIONS. A READING OF PART B MAKES IT APPARENT THAT THE OVERALL GOAL OF THE AMENDMENTS IS TO INCREASE THE COLLECTION OF CHILD SUPPORT PAYMENTS FROM ABSENT PARENTS WHO HAVE THE LEGAL OBLIGATION AND THE MEANS TO MAKE THESE PAYMENTS. THE PROGRAM IS NOT RESTRICTED TO AFDC CASES, OR TO INDIVIDUAL NON WELFARE RELATED EFFORTS. IN THE SAME VEIN, THERE IS NO RESTRICTION, IN SECTION 459, OR GARNISHMENT EITHER BY STATES PROCEEDING UNDER ASSIGNMENTS OF SUPPORT RIGHTS, OR BY INDIVIDUALS ENFORCING LEGAL OBLIGATIONS FOR SUPPORT.

PART B OF PUBLIC LAW 93-647 ADDED SUBSECTION (26) TO SECTION 402(A) OF THE SOCIAL SECURITY ACT. THAT SUBSECTION REQUIRES THAT EACH APPLICANT FOR OR RECIPIENT OF AFDC ASSIGN TO THE STATE ANY SUPPORT RIGHTS FROM ANY OTHER PERSON, THAT HE OR SHE HAS IN THEIR OWN BEHALF OR IN BEHALF OF ANY OTHER FAMILY MEMBER FOR WHOM THE APPLICATION IS MADE. SECTION 456 OF PUBLIC LAW 93-647 (42 U.S.C. 656) PROVIDES, IN PERTINENT PART, THAT:

(A) THE SUPPORT RIGHTS ASSIGNED TO THE STATE UNDER SECTION 402(A)(26) SHALL CONSTITUTE AN OBLIGATION OWED TO SUCH STATE BY THE INDIVIDUAL RESPONSIBLE FOR PROVIDING SUCH SUPPORT. SUCH OBLIGATION SHALL BE DEEMED FOR COLLECTION PURPOSES TO BE COLLECTIBLE UNDER ALL APPLICABLE STATE AND LOCAL PROCESSES.

(1) THE AMOUNT OF SUCH OBLIGATION SHALL BE--

(A) THE AMOUNT SPECIFIED IN A COURT ORDER WHICH COVERS THE ASSIGNED SUPPORT RIGHTS, OR * * * .

THESE TWO SECTIONS FORM THE FUNCTIONAL EQUIVALENT OF RCWA 74.20A.030 WHICH, BY OPERATION OF LAW, CREATES A DEBT DUE AND OWING TO THE STATE WHEN AFDC PAYMENTS ARE MADE. IT IS WORTH NOTING THAT THE CHILD SUPPORT ENFORCEMENT PROGRAM CREATED BY CHAPTER 74.20A OF RCWA WAS IN EXISTENCE PRIOR TO THE PASSAGE OF PUBLIC LAW 93-647, AND THAT, IN THE SENATE COMMITTEE ON FINANCE REPORT ON H.R. 17045 (WHICH BECAME PUBLIC LAW 93 647), S. REPORT NO. 1356, 93RD CONG., 2D SESS. (1974), AT PAGE 46, WASHINGTON IS LISTED AS ONE OF THE STATES WITH THE BEST PROGRAMS FOR THE COLLECTION OF CHILD SUPPORT. ON THE SAME PAGE THE REPORT ALSO STATED THAT:

IN VIEW OF THE FACT THAT MOST STATES HAVE NOT IMPLEMENTED IN A MEANINGFUL WAY THE PROVISIONS OF PRESENT LAW RELATING TO BE ENFORCEMENT OF CHILD SUPPORT AND ESTABLISHMENT OF PATERNITY, THE COMMITTEE BELIEVES THAT NEW AND STRONGER LEGISLATIVE ACTION IS REQUIRED IN THIS AREA WHICH WILL CREATE A MECHANISM TO REQUIRE COMPLIANCE WITH THE LAW. THE MAJOR ELEMENTS OF THIS PROPOSAL HAVE BEEN ADAPTED FROM THOSE STATES WHICH HAVE BEEN THE MOST SUCCESSFUL IN ESTABLISHING EFFECTIVE PROGRAMS OF CHILD SUPPORT AND ESTABLISHMENT OF PATERNITY.

THUS, THE COMMITTEE ON FINANCE WAS FAMILIAR WITH THE WASHINGTON SUPPORT ENFORCEMENT PROGRAM, FOUND IT TO BE A GOOD PROGRAM, AND CONSCIOUSLY ADAPTED PORTIONS OF IT WHEN DRAFTING PUBLIC LAW 93-647.

SECTION 456 OF PUBLIC LAW 93-647 QUOTED ABOVE, STATES THAT A CHILD SUPPORT DEBT ASSIGNED TO A STATE IS "COLLECTIBLE UNDER ALL APPLICABLE STATE AND LOCAL PROCESSES." IN THE STATE OF WASHINGTON ONE OF THE PROCESSES AVAILABLE IS THE ORDER TO WITHHOLD AND DELIVER - AN ADMINISTRATIVE GARNISHMENT PROCESS, WHICH IS ENFORCEABLE AGAINST ALL PRIVATE EMPLOYERS AND EMPLOYEES. TO EXCLUDE THE UNITED STATES GOVERNMENT FROM THE COVERAGE UNDER THIS PROCEDURE, ON THE GROUNDS THAT IT DOES NOT CONSTITUTE "LEGAL PROCESS," WOULD BE TO PLACE THE GOVERNMENT IN A CLASS SEPARATE AND APART FROM PRIVATE EMPLOYERS, EVEN THOUGH SECTION 459 STATES THAT THE GOVERNMENT SHALL BE TREATED AS IF IT WERE A PRIVATE PERSON.

IN ITS REPLY TO OUR REQUEST FOR COMMENTS, THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE DECLINED TO CHARACTERIZE OR DEFINE THE PHRASE "LEGAL PROCESS," DEFERRING TO THE DEPARTMENT OF JUSTICE. ON THE OTHER HAND, THE DEPARTMENT OF DEFENSE'S REPLY STATES THAT "LEGAL PROCESS" SHOULD BE CONSTRUED TO INCLUDE ONLY PROCESS ISSUED BY A STATE OR FEDERAL COURT OF COMPETENT JURISDICTION. THE DOD REPLY STATES THAT THE TERM "LEGAL PROCESS" IS NOT DEFINED IN SECTION 459 OR IN PUBLIC LAW 93 647 AS A WHOLE, NOR IS IT SPECIFICALLY DEFINED IN THE LEGISLATIVE HISTORY, AND THAT THE TERM IS GENERALLY UNDERSTOOD TO MEAN AN ORDER OR OTHER PROCESS ISSUED BY A COURT, CITING BLACK'S LAW DICTIONARY 4TH ED., WEST PUBLISHING CO., ST. PAUL, MINN. 1968, P. 1370 AND 72 C.J.S. PROCESS, SEC. 1.C. (1955).

HOWEVER, 72 C.J.S. PROCESS, SEC. 1.A.(1) PP. 981-982 (1955), DISCUSSES "PROCESS" AS FOLLOWS:

"PROCESS" AND "WRIT" OR "WRITS" ARE SYNONYMOUS IN THE SENSE THAT EVERY WRIT IS A PROCESS, AND IN A NARROW SENSE OF THE TERM "PROCESS" IS LIMITED TO JUDICIAL WRITS IN AN ACTION, OR AT LEAST TO WRITS OR WRITINGS ISSUED FROM OR OUT OF A COURT, UNDER THE SEAL THEREOF AND RETURNABLE THERETO, BUT IT IS NOT ALWAYS NECESSARY TO CONSTRUE THE TERM SO STRICTLY AS TO LIMIT IT TO A WRIT ISSUED BY A COURT IN THE EXERCISE OF ITS ORDINARY JURISDICTION. THE TERM IS SOMETIMES DEFINED AS A WRIT OR OTHER FORMAL WRITING ISSUED BY AUTHORITY OF LAW OR BY SOME COURT, BODY, OR OFFICIAL HAVING AUTHORITY TO ISSUE IT; AND IT IS FREQUENTLY USED TO DESIGNATE A MEANS, BY WRIT OR OTHERWISE, OF ACQUIRING JURISDICTION OF DEFENDANT OR HIS PROPERTY, OR OF BRINGING DEFENDANT INTO, OR COMPELLING HIM TO APPEAR IN, COURT TO ANSWER. (FOOTNOTES OMITTED.)

THE ADMINISTRATIVE ORDER USED HEREIN BY THE STATE OF WASHINGTON FALLS WITHIN THE BROADER DEFINITION OF "PROCESS" STATED ABOVE. THE NEXT ARGUMENT MADE BY DOD IS BASED UPON THE TITLE OF SECTION 459, "GARNISHMENT AND SIMILAR PROCEEDINGS FOR THE ENFORCEMENT OF CHILD SUPPORT AND ALIMONY OBLIGATIONS." IT IS THEIR CONTENTION THAT, SINCE GARNISHMENT AND SIMILAR STATE PROCEDURES ARE GENERALLY ANCILLARY OR AUXILIARY JUDICIAL PROCEEDINGS, THE CONGRESS INTENDED TO RESTRICT THE APPLICATION OF THE SECTION ONLY TO JUDICIALLY GRANTED PROCESS.

WE CANNOT AGREE. IT IS TRUE THAT THE REMEDY OF GARNISHMENT IS GENERALLY USED TO ENFORCE OR COLLECT JUDGMENT DEBTS AND THAT, IN THE PAST, GARNISHMENT, AND ALL OF THE EQUIVALENT BUT VARIOUSLY NAMED PROCEDURES, WERE ENFORCED AND EFFECTUATED ONLY THROUGH THE COURTS. HOWEVER, WASHINGTON AND SEVERAL OTHER STATES HAVE DEVELOPED NEW PROCEDURES TO MEET THE SPECIFIC NEEDS OF COLLECTION OF CHILD SUPPORT IN AFDC CASES, APPARENTLY IN AN ATTEMPT TO AVOID THE DELAY GENERALLY EXISTENT IN THE CIVIL COURTS, AND TO GIVE THESE COLLECTION EFFORTS A HIGHER PRIORITY AND STATUS THAN THEY MIGHT OTHERWISE HAVE WHEN MIXED IN WITH THE GENERAL RUN OF CIVIL LITIGATION. WE UNDERSTAND THAT VIRGINIA AND GEORGIA HAVE ENACTED PROCEDURES SIMILAR TO WASHINGTON'S. OUR READING OF THE TITLE OF SECTION 459 IS THAT IT IS MEANT TO INCLUDE GARNISHMENT AND SIMILAR PROCEDURES WHETHER THEY ARE JUDICIALLY ENFORCED OR ENFORCED BY NEWLY EMERGING ADMINISTRATIVE PROCEDURES DESIGNED TO MEET CHANGING NEEDS.

FINALLY, THE DEFENSE DEPARTMENT CONTENDS THE LEGISLATIVE HISTORY OF SECTION 459 INDICATES AN INTENT TO SUBJECT THE UNITED STATES ONLY TO JUDICIAL PROCEEDINGS. THE DOD STATES THAT THE REASON FOR PROHIBITING GARNISHMENT OF FEDERAL EMPLOYEES' WAGES WAS THAT THE UNITED STATES, AS SOVEREIGN, WAS IMMUNE FROM LAWSUITS TO WHICH IT HAD NOT CONSENTED. THEREFORE, DOD ARGUES, THE WAIVER OF IMMUNITY GRANTED BY SECTION 459 WAS INTENDED TO APPLY ONLY TO "SUITS" AND TO GARNISHMENT ORDERS ISSUED BY COURTS.

AGAIN WE CANNOT AGREE. WHEN THE CASES BARRING GARNISHMENT OF FEDERAL EMPLOYEES WERE DECIDED, ADMINISTRATIVE PROCEDURES, SUCH AS WASHINGTON'S, HAD NOT YET BEEN DEVELOPED. IF THEY HAD BEEN DEVELOPED, IT IS PROBABLE THAT THE COURTS WOULD HAVE HELD THAT THE UNITED STATES WAS EQUALLY IMMUNE TO GARNISHMENT PROCESS FROM ADMINISTRATIVE BODIES.

IN SUPPORT OF ITS POSITION, DOD REFERS TO A COLLOQUY BETWEEN REPRESENTATIVES ULLMAN AND KAZEN ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES DURING THE DEBATE ON THE CONFERENCE REPORT ON H.R. 17045 (WHICH BECAME PUBLIC LAW 93-647), IN SUPPORT OF THE PROPOSITION THAT SECTION 459 WAS INTENDED TO APPLY ONLY TO COURT ORDERS FOR GARNISHMENT. MR. ULLMAN WAS THE FLOOR MANAGER FOR THE CONFERENCE REPORT. WE HAVE SET OUT BELOW THAT PORTION OF THE COLLOQUY RELIED ON BY DOD (WHICH HAS BEEN UNDERSCORED), AND THE SURROUNDING EXCHANGES, SO THAT THE DISCUSSION MAY BE CONSIDERED IN CONTEXT:

MR. ULLMAN. WE ARE TALKING ABOUT THE SITUATION WHERE THE UNITED STATES IS PAYING OUT MONEY FOR CHILD SUPPORT BECAUSE THE MAN HAS DESERTED HIS FAMILY AND HAS REFUSED TO LIVE UP TO HIS RESPONSIBILITY UNDER AN OUTSTANDING COURT ORDER TO SUPPORT THAT FAMILY.

THIS IS A CASE WHICH THE GENTLEMAN REFERRED TO AS RUNAWAY FATHERS. SEEMS TO ME THAT WE IN THIS CONGRESS SHOULD BEGIN TO FACE UP TO OUR RESPONSIBILITIES.

MR. KAZEN. MR. SPEAKER, I AGREE WITH THE GENTLEMAN THAT WE SHOULD BEGIN TO DO IT. BUT I THINK WE OUGHT TO EXPLORE THIS. THERE ARE MANY UNANSWERED QUESTIONS ON PROCEDURES. MANY, MANY TIMES THERE ARE EX PARTE APPLICATIONS FOR SUPPORT AND THE COURT GRANTS IT WITHOUT THE DEFENDANT EVEN BEING IN COURT.

IS THE FEDERAL GOVERNMENT GOING TO BE SUBJECT TO STATE COURT ORDERS? HOW IS IT GOING TO BE ENFORCED? OR IS THAT MOTHER OF THE CHILDREN GOING TO HAVE TO GO INTO FEDERAL COURT?

MR. ULLMAN. IT IS BASED ON THE STATE COURT ORDER FOR CHILD SUPPORT. HAVE PROVIDED THAT THE SECRETARY CAN ALLOW ENTRY INTO THE FEDERAL COURTS IN SOME INSTANCES ONLY WHEN IT CANNOT BE PROPERLY TAKEN CARE OF UNDER THE STATE COURT ORDER.

MR. KAZEN. IN OTHER WORDS, WHAT THE GENTLEMAN IS SAYING IS THE FEDERAL GOVERNMENT GOING TO BE SUBJECT TO STATE COURT ORDERS, SO FAR AS GARNISHMENT IS CONCERNED?

MR. ULLMAN. WE JUST SIMPLY HAVE FOUND NO BETTER WAY TO DO IT. IF A FATHER HAS RUN AWAY FROM HIS FAMILY AND HIS OBLIGATIONS, THERE IS THE PROBLEM THAT WE HAVE BEEN TRYING TO FACE UP TO FOR A LONG TIME BUT HAVE NOT, AS TO HOW WE CAN GET TO THAT FATHER TO MAKE HIM LIVE UP TO HIS OBLIGATIONS.

MR. KAZEN. I AGREE WITH THE ULTIMATE RESULTS THAT THE GENTLEMAN WANTS TO ACCOMPLISH BY THE PROVISIONS OF THIS BILL. MY ARGUMENT IS WITH THE PROCEDURE AND THE INEQUITIES THAT ARE GOING TO BE COMING UP UNLESS WE VERY DEFINITELY FOLLOW A VERY DEFINITE TYPE OF LEGAL PROCEDURE, WHICH CANNOT BE DONE BY THE ENACTMENT OF THIS PROVISION.

MR. ULLMAN. THE FATHER CAN GO BACK TO THE COURT, HE HAS ACCESS TO THE COURT IN A LEGAL PROCEDURE, IN ORDER TO TAKE CARE OF SUCH CIRCUMSTANCES. BUT THIS IS THE ONLY PROVISION WE HAVE BEEN ABLE TO WORK OUT THAT WOULD IN ANY WAY BE EFFECTIVE.

MR. ST GERMAIN. MR. SPEAKER, WILL THE GENTLEMAN YIELD?

MR. ULLMAN: I YIELD TO THE GENTLEMAN FROM RHODE ISLAND.

MR. ST GERMAIN. MR. SPEAKER, THE MEMBER OF THE COMMITTEE ON WAYS AND MEANS JUST MENTIONED THE FIGURE OF $2 BILLION THAT IT IS NOW COSTING FOR CHILD SUPPORT AS A RESULT OF RUNAWAY FATHERS AND WE MUST RETURN RUNAWAY FATHERS BECAUSE ALIMONY IS INCLUDED. THERE IS NO PROVISION HERE WHICH REQUIRES GARNISHMENT THEN HAS TO BE PROVEN THAT THAT CHILD IS BEING SUPPORTED BY SOME OTHER FUND, IS THERE?

MR. ULLMAN. THE FACT OF THE MATTER IS --

MR. ST GERMAIN. NO. I THINK THAT STATEMENT WAS ERRONEOUS. MR. CHAIRMAN.

MR. ULLMAN. THE FACT OF THE MATTER IS, OF COURSE, THAT THIS IS A FACT IN ALMOST EVERY INSTANCE. THERE IS NOTHING IN THE BILL THAT SAYS THAT THAT HAS TO BE DONE.

MR. ST GERMAIN. ESSENTIALLY, THE MOTHER OR THE WIFE GOES INTO THE STATE COURT AND GETS A JUDGMENT, AND THEN PROCEEDS ON THE JUDGMENT, ON THE EXECUTION OF SAME, AND PROCEEDS WITH THE GARNISHMENT; IS THAT NOT CORRECT?

MR. ULLMAN. THE GENTLEMAN IS CORRECT.

MR. ST. GERMAIN. AND THERE ARE NO OTHER CONDITIONS PRECEDENT?

MR. ULLMAN. THE GARNISHMENT IS ON THE BASIS OF THE COURT ORDER OR DECISION. IT IS ON THE BASIS OF THE COURT ORDER OR BY TRIAL BY THE COURT IN THE CASE OF A FATHER OR MOTHER FAILING TO LIVE UP TO HIS OR HER OBLIGATIONS.

MR. ST GERMAIN. THAT IS RIGHT. OR WITH ALIMONY?

MR. ULLMAN. THAT IS RIGHT, WITH ALIMONY.

MR. ECKHARDT. MR. SPEAKER, WILL THE GENTLEMAN YIELD?

MR. ULLMAN. I YIELD TO THE GENTLEMAN FROM TEXAS.

MR. ECKHARDT. MR. SPEAKER, I WISH TO PURSUE BRIEFLY THE QUESTION WHICH THE GENTLEMAN FROM TEXAS (MR. KAZEN) RAISED.

IN TEXAS, WE DO NOT HAVE GARNISHMENT OF WAGES, SO THIS WOULD BE INGRAINING THE FEDERAL LAW ON EXISTING STATE LAW. UNDER CIRCUMSTANCES LIKE THAT I WOULD THINK THE CASE WOULD BE REMOVABLE TO THE FEDERAL COURT AS A MATTER OF RIGHT.

IS THAT WHAT THE GENTLEMAN FEELS WOULD RESULT? CAN THESE CASES ALL BE REMOVED TO FEDERAL COURTS?

MR. ULLMAN. NO. THE GARNISHMENT PROVISION PLACES THE U.S. GOVERNMENT IN THE SAME POSITION AS A PRIVATE EMPLOYER. NONSUPPORT CASES CAN BE CERTIFIED TO THE FEDERAL COURTS ONLY BY THE SECRETARY OF HEW WHO MUST FIND THAT USE OF THE FEDERAL COURTS IS THE ONLY REASONABLE WAY TO ENFORCE A COURT ORDER. IN THE SITUATION THE GENTLEMAN CITES, THERE WOULD BE NO COURT ORDER ON WHICH TO BASE SUCH A FINDING. CONG. REC., VOL. 120, NO. 180, P. H 12586 (DECEMBER 20, 1974).

WHEN THIS PORTION OF THE HOUSE DEBATE IS REVIEWED, IT APPEARS THAT THE TERM "COURT ORDER" IS USED IN TWO CONTEXTS. FIRST AND PREDOMINANTLY, IT DESCRIBES AN ORDER ISSUED BY A STATE COURT REQUIRING AN INDIVIDUAL TO PAY CHILD SUPPORT OR ALIMONY. SECONDARILY, THE TERM IS USED TO REFER TO ORDERS ISSUED IN GARNISHMENT PROCEEDINGS. IN THE ABSENCE OF ANY EVIDENCE OF INTENT TO EXCLUDE ADMINISTRATIVE ORDERS FROM THE SCOPE OF SECTION 459, WE DO NOT BELIEVE THAT THE FAILURE TO MENTION ADMINISTRATIVE GARNISHMENT PROCEDURES DURING THE FLOOR DEBATE IS FATAL TO THE BROADER DEFINITION OF "LEGAL PROCESS."

WE ALSO REQUESTED THAT DOD AND HEW PROVIDE US WITH THEIR VIEWS REGARDING THE RELATIONSHIP OF GARNISHMENT UNDER SECTION 459 AND THE REMAINDER OF THE SUPPORT ENFORCEMENT PROGRAM UNDER PUBLIC LAW 93-647. IN THE OPINION OF HEW, NOTHING IN SECTION 459 WOULD PRECLUDE THE STATE OF WASHINGTON FROM USING SECTION 459, " * * * IF IT COULD OTHERWISE ENFORCE A SUBROGATED RIGHT TO SUCH PAYMENTS WERE * * * IN THE PRIVATE SECTOR." THE RESPONSE OF DOD ACKNOWLEDGED THAT A STATE COULD USE THE SECTION 459 GARNISHMENT PROCEDURE TO COLLECT ASSIGNED OR SUBROGATED SUPPORT PAYMENTS. WE BELIEVE THAT THAT IS THE CORRECT READING OF THE STATUTE. AS NOTED ABOVE, SECTION 456 OF PUBLIC LAW 93-647 STATES THAT ASSIGNED SUPPORT RIGHTS SHALL BE COLLECTIBLE "UNDER ALL APPLICABLE STATE AND LOCAL PROCESSES." CERTAINLY GARNISHMENT, WHETHER JUDICIALLY OR ADMINISTRATIVELY HANDLED, IS A PROCEDURE THAT IS AVAILABLE IN MOST STATES FOR COLLECTION PURPOSES.

IN SUMMARY, IT IS CLEAR THAT THE GENERAL INTENT OF PART B OF PUBLIC LAW 930647 IS TO MAXIMIZE THE COLLECTION OF CHILD SUPPORT PAYMENTS FROM ABSENT PARENTS AND THAT GARNISHMENT UNDER SECTION 459 PROVIDES ONE MEANS TOWARD ACCOMPLISHING THAT GOAL. THE QUESTIONED PHRASE "LEGAL PROCESS" AS USED IN SECTION 459 IS NOT DEFINED EITHER IN THAT SECTION, IN THE REMAINDER OF THE ACT, OR IN THE LEGISLATIVE HISTORY. WE CONCLUDE THAT THE PHRASE ITSELF HAS NO SINGLE, FIXED, INTRINSIC MEANING, AND THAT ITS MEANING CAN BE FOUND ONLY BY REVIEWING THE ENTIRE ACT AND LEGISLATIVE HISTORY.

SINCE THE PURPOSE OF SECTION 459 IS TO FACILITATE THE GENERAL PURPOSE OF THE ACT TO AID THE ENFORCEMENT OF CHILD SUPPORT AND ALIMONY OBLIGATIONS AGAINST ABSENT PARENTS BY MAKING THE WAGES OF FEDERAL EMPLOYEES SUBJECT TO LEGAL PROCESS AS IF THE UNITED STATES WERE A PRIVATE PERSON, AND SINCE THE CONGRESS USED THE TERM "LEGAL PROCESS" RATHER THAN "JUDICIAL PROCESS," WE INTERPRET "LEGAL PROCESS" AS USED IN SECTION 459 TO INCLUDE BOTH JUDICIAL ORDERS AND ADMINISTRATIVE ORDERS AUTHORIZED OR SANCTIONED BY STATUTE. FIND NOTHING IN PUBLIC LAW 93 647 OR ITS HISTORY TO SHOW THAT THE NARROW DEFINITION OF "PROCESS ISSUED BY A COURT" IS THE APPROPRIATE DEFINITION.

WE BELIEVE THAT THE FAVORABLE COMMENTS CONCERNING THE SUPPORT ENFORCEMENT PROGRAM DEVISED BY THE STATE OF WASHINGTON CONTAINED IN THE REPORT OF THE SENATE COMMITTEE ON FINANCE ARE STRONG INDICIA THAT THE CONGRESS DID NOT INTEND TO BAR WASHINGTON FROM USING ADMINISTRATIVE PROCESS FOR GARNISHMENT WHEN FEDERAL EMPLOYEES FAIL TO PAY CHILD SUPPORT. THE NARROW DEFINITION OF "LEGAL PROCESS" WOULD MAKE SECTION 459 INTERNALLY INCONSISTENT IN THAT THE SECTION MANDATES THAT THE UNITED STATES BE TREATED AS IF IT WERE A PRIVATE PERSON, BUT THE ELIMINATION OF THE USE OF ADMINISTRATIVE GARNISHMENT AGAINST FEDERAL EMPLOYEES WOULD BE TREATING THE UNITED STATES DIFFERENTLY THAN PRIVATE PERSONS SINCE ADMINISTRATIVE GARNISHMENT ORDERS IN WASHINGTON ARE ENFORCEABLE AGAINST PRIVATE PERSONS.

THE UNITED STATES POSTAL SERVICE HAS REACHED THE SAME CONCLUSION WITH RESPECT TO POSTAL EMPLOYEES. BY LETTER DATED MAY 27, 1975, FROM THE REGIONAL COUNSEL, WESTERN REGION, OF THE UNITED STATES POSTAL SERVICE, TO THE OFFICE OF SUPPORT ENFORCEMENT, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, STATE OF WASHINGTON, THE POSTAL SERVICE STATES THAT IT WILL HONOR ORDERS TO WITHHOLD AND DELIVER THAT ARE SERVED UPON IT BY THE STATE. THE LETTER STATES THAT SUCH ORDERS ISSUED BY THE DEPARTMENT UNDER THE REVISED CODE OF WASHINGTON "CONSTITUTE LEGAL PROCESS AS SPECIFIED IN SECTION 459 OF TITLE IV OF THE SOCIAL SECURITY ACT AS AMENDED BY PUBLIC LAW 93-647 SO AS TO REQUIRE THE COMPLIANCE OF THE UNITED STATES POSTAL SERVICE WITH SUCH ORDERS AND ASSIGNMENTS. * * * "

IN ITS REPORT, THE DEFENSE DEPARTMENT ALSO REFERS TO THE CASE OF DANIEL J. DIXON, ET AL. V. SIDNEY E. SMITH, CIVIL ACTION NO. 81772-C2 (WESTERN DISTRICT OF WASHINGTON). THE DEPARTMENT'S UNDERSTANDING WAS THAT THE COURT HAD DECLARED RCWA 74.20A.080, AUTHORIZING THE USE OF THE ORDER TO WITHHOLD AND DELIVER, TO BE "INOPERABLE." WE HAVE REVIEWED COPIES OF THE DISTRICT COURTS JUDGMENT AS WELL AS THE MEMORANDUM ON APPEAL ISSUED BY THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, NO. 73-3246, JUNE 5, 1975. THE DISTRICT COURT'S JUDGMENT MAKES IT CLEAR THAT THE PROCEDURE UNDER ATTACK WAS ONE CREATED BY A STATUTE WHICH WAS AMENDED IN 1973, AND THE ONLY PORTION OF THAT STATUTE THAT WAS UNDER ATTACK WAS THE PROCEDURE FOR DETERMINING THE AMOUNT OF SUPPORT PAYABLE WHEN THERE WAS NO EXISTING COURT ORDER REQUIRING SUPPORT. ON APPEAL, THE COURT OF APPEALS REMANDED THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS, PRIMARILY FOR A DETERMINATION AS TO THE APPROPRIATENESS OF CONVENING A THREE JUDGE COURT PURSUANT TO 28 U.S.C. 2281 AND 2284 (1970).

THE COURT'S RULING DOES NOT APPLY TO THE PROCEDURE FOLLOWED IN THIS EMPLOYEE'S CASE, SINCE IN HIS CASE, THERE IS AN EXISTING COURT ORDER REQUIRING SUPPORT. NOTHING IN EITHER DECISION INVALIDATES THE PROCEDURE USED HERE.

ACCORDINGLY, WE BELIEVE THAT THE AIR FORCE IS AUTHORIZED TO HONOR THE ORDER TO WITHHOLD AND DELIVER WITH RESPECT TO THE EMPLOYEE AND WE WOULD RAISE NO LEGAL OBJECTION TO THE GARNISHMENT OF HIS SALARY UNDER THE ABOVE CIRCUMSTANCES, PROVIDED THAT ALL OF THE PROCEDURAL REQUIREMENTS OF THE STATE STATUTE HAVE BEEN SATISFIED.