Garnishment Under the Child Support Enforcement Act of Compensation Payable by the Department of Veterans Affairs

Garnishment Under the Child Support Enforcement Act of Compensation Payable by the Department of Veterans Affairs

Disability or other com pensation paid to a veteran by the Department o f Veterans Affairs is subject to garnishment under the Child Support Enforcem ent Act when, in ord er to receive such com pensation, the veteran has waived receipt o f all o f the military retired pay to which he or she w ould otherwise be entitled.

December 19, 1989

M e m o r a n d u m O p in io n for t h e G e n e r a l C o u n sel D epartm ent of V e t e r a n s A f f a ir s

This responds to your Department’s letter of December 14, 1988 to the Attorney General,1 which has been referred to us pursuant to 28 C.F.R. § 0.25(a) for reply. You have asked for our advice whether disability or other compensation paid to a veteran by the Department o f Veterans Affairs (“DVA”) is subject to garnishment under the Child Support Enforcement Act, 42 U.S.C. §§ 651-669, when, in order to receive such compensation, the veteran has waived receipt of all o f the military retired pay to which he or she would otherwise be entitled. For the reasons that follow, we believe that disability or other compensation paid to a veteran in such circumstances is subject to garnishment.

I. Background

Many veterans who are entitled to receive DVA compensation are also entitled to military retired pay.2 In order to receive DVA compensation, however, a veteran who is receiving retired pay must waive receipt o f “so much of such person’s retired or retirement pay as is equal in amount to such [DVA] pension or compensation.” 38 U.S.C. § 3105; see also id. § 3104 (prohibiting duplication o f benefits). As the Supreme Court recent­ ly observed, “waivers o f retirement pay are common” among veterans

1Letter for the Attorney General, from Thomas K. Tumage, Administrator o f Veterans Affairs (D ec 14, 1988) ( “Tumage Letter”). 2Of the “nearly 2 2 million veterans rated by the VA as having service-connected disabilities ... nearly 20 percent, some 435,000, are military retirees.” T\image Letter at 1.

who are entitled to receive DVA disability benefits, “ [b]ecause disability benefits are exempt from federal, state and local taxation.” Mansell v. Mansell, 490 U.S. 581, 583 (1989). The DVA’s general anti-garnishment statute provides in pertinent part:

Payments o f benefits due or to become due under any law administered by the Veterans’ Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a bene­ ficiary shall be exempt from taxation, shall be exempt from the claim o f creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.

38 U.S.C. § 3101(a). Thus, veterans’ benefits are generally not subject to garnishment. In 1975, Congress passed the Child Support Enforcement Act, which creates an exception to the anti-garnishment provisions o f 38 U.S.C. § 3101(a) for the purpose of enforcing veterans’ family support obligations. Section 659 o f the Child Support Enforcement Act provides in part:

Notwithstanding any other provision o f law (including section 407 o f this title), effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District o f Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members o f the armed services, shall be subject, in like manner and to the same extent as if the United States or the District o f Columbia were a private person, to legal process brought for the enforcement, against such individual o f his legal obligations to provide child support or make alimony payments.

42 U.S.C. § 659(a).³ Section 662(f)(2) o f the Act, however, exempts certain governmental payments to veterans from garnishment for child support, including

any payments by the [DVA] as compensation for a service- connected disability or death, except any compensation paid by the [DVA] to a former member of the Armed

Forces who is in receipt of retired or retainer pay i f such former member has waived a portion o f his retired pay in order to receive such compensation ....

Id. § 662(f)(2) (emphasis added). Thus, “any compensation” paid by the DVA in cases where the recipient “is in receipt o f retired or retainer pay” and has waived “a portion o f his retired pay in order to receive such com ­ pensation” is subject to garnishment for the purpose o f making child sup­ port or alimony payments. The DVA is o f the view that the plain language o f section 662(f)(2) pre­ cludes garnishment when a veteran has waived all o f his or her retired pay in order to receive DVA compensation. In 1983, at the DVA’s request, the Office o f Personnel Management (“OPM”) amended its regulation interpreting 42 U.S.C. § 662(f)(2) to adopt the DVA’s construction o f the statute. See 48 Fed. Reg. 26,279 (1983).4 Courts have reached conflicting conclusions concerning the validity o f the DVA’s interpretation o f 42 U.S.C. § 662(f)(2). Some courts have held that a literal construction o f the statute supports the interpretation that garnishment is not available when a veteran has waived all o f his or her retired pay in order to receive DVA compensation. See, e.g., Sanchez Dieppa v. Rodriguez Pereira, 580 F. Supp. 735 (D.P.R. 1984). Other courts have held that this construction fosters anomalous results, and is incon­ sistent with Congress’ intent in enacting the statute. See, e.g., United States v. Murray, 282 S.E.2d 372 (Ga. Ct. App. 1981).

II. Discussion

In our view, 42 U.S.C. § 662(f)(2) should be interpreted as permitting garnishment o f DVA compensation even when a veteran has waived all of his or her retired pay in order to receive such compensation. The statu­ tory language allows this construction without strain. Moreover, Congress’ purpose in permitting garnishment of DVA compensation paid in lieu o f retired pay is far better served by permitting such garnishment regardless o f whether the DVA compensation exceeds the retired pay entitlement.

4As amended, the interpretive regulation provides- Any payments by the Veterans Administration as compensation for a service-connected disability or death, except any compensation paid by the Veterans Admimstration to a former member o f the Armed Forces who is in receipt o f retired or retainer pay if such former mem­ ber has waived a portion o f his/her retired pay in order to receive such compensation. In this case, only that part o f the Veterans Administration payment which is in lieu o f the waived retired/retainer pay is subject to garnishment Payments o f disability compensation by the Veterans Administration to an individual whose entitlement to disability compensation is greater than his/her entitlement to retired pay, and who has waived all of his/her retired pay in favor of disability compensation, are not subject to garnishment or other attach­ ment under this part 5 C.F.R. § 581.103(c)(4)(iv) (emphasis added).

Section 662(f)(2) subjects DVA compensation to garnishment when “a former member of the Armed Forces who is in receipt of retired or retain­ er pay ... has waived a portion o f his retired pay in order to receive such compensation.” 42 U.S.C. § 662(f)(2) (emphasis added). In excluding dis­ ability compensation from garnishment whenever a veteran “has waived all o f his/her retired pay in favor of disability compensation,” 5 C.F.R. § 581.103(c)(4)(iv) (emphasis added), OPM’s interpretive regulation tracks a common definition o f the word “portion.”5However, we do not agree that section 662(f)(2) “is sufficiently clear on its face to obviate the need for statutory construction.” T\image Letter at 5. As used in the statute, a “por­ tion” could reasonably mean “any amount greater than zero.” The term is frequently used in this sense in other statutes. For exam­ ple, 18 U.S.C. § 648, which prescribes criminal penalties for embezzle­ ment, prohibits any “officer or other person charged by any Act of Congress with the safe-keeping of the public moneys” from “loan[ing], us[ing], or converging] to his own use ... any portion o f the public moneys intrusted to him for safe-keeping.” Similarly, 18 U.S.C. § 653 pro­ hibits any “disbursing officer o f the United States” from, inter alia, “trans­ ferring], or apply[ing], any portion of the public money intrusted to him” for “any purpose not prescribed by law.” Notwithstanding the use o f the word “portion,” a defendant could not successfully defend a charge of embezzlement on the grounds that he embezzled all, and not part, o f the public money entrusted to him.6 Accordingly, we do not think that the use o f the word “portion” in 42 U.S.C. § 662(f)(2) compels the DVA’s interpre­ tation o f the statute.7 Because the language of the statute is not unambiguous, we turn to the legislative history for guidance. See, e.g., Blum v. Stenson, 465 U.S. 886, 896 (1984); United States v. American Trucking Ass’ns, Inc., 310 U.S. 534, 543-44 (1940). Although that history is rather sparse, it is bereft of any indication that Congress intended to exempt veterans from their sup­ port obligations if they waive all retired pay in favor o f DVA compensa­ tion. Rather, Congress’ principal purpose was to prevent federal civilian and military employees from evading their support obligations by augmenting the means by which those obligations can be enforced. In

5See, e.g., Railroad Yardmasters of America v. Hams, 721 F2d 1332, 1346 n.l (D.C. Cir 1983) (Wald, J , dissenting) ( “In usual parlance, portion means ‘a: a part o f a whole ... b: a limited amount or quanti­ ty ’ Webster’s Third New Int’l Dictionary 1768 (1976)." (ellipsis in original)). 6See also 28 U.S.C. § 994(i)(2) (directing United States Sentencing Commission to prescribe sentenc­ ing guidelines providing a substantial term o f imprisonment for a defendant who “committed the offense as part o f a pattern o f criminal conduct from which he derived a substantial portion o f his income "). 7 Furthermore, the language o f the statute also fails to support the DVA’s argument that a veteran who has waived all o f his or her retired or retainer pay is no longer “in receipt o r retired or retainer pay with­ in the meaning o f section 662(f)(2) Tumage Letter at 5. The words “in receipt o f retired or retainer pay” in the statute merely recite the necessary predicate for a waiver, i e , no veteran can waive his or her retired pay unless he or she is “in receipt” o f such pay

discussing the original 1975 legislation, the Senate Committee on Finance commented on the garnishment provisions as follows:

The Committee bill would specifically provide that the wages o f Federal employees, including military personnel, would be subject to garnishment in support and alimony cases. In addition, annuities and other payments under Federal programs in which entitlement is based on employ­ ment would also be subject to attachment for support and alimony payments.

S. Rep. No. 1356, 93d Cong., 2d Sess.'54 (1974). Section 662(f)(2) was added to the Act as part o f a package of clarify­ ing amendments that were passed in 1977. The explanatory discussion of the clarifying amendments states in part:

Although the intent o f the Congress would appear to be clear from ... [the language in S. Rep. No. 1356, supra], questions as to the applicability o f the statute to social insurance and retirement statutes have arisen. Other ques­ tions as to the kinds of remuneration which are covered by the statute ... have also been raised. To remove the possi­ bility of confusion, the amendment adds a definition of “remuneration for employment” which covers compensa­ tion paid or payable for personal services o f an individual, whether as wages, salary, commission, bonus, [or] pay .... It excludes any payment as compensation for death under any Federal program, any payment under any program established to provide “black lung” benefits, any payment by the [DVA] as pension, or any payment by the Veterans’ Administration as compensation for service-connected dis­ ability or death. Such exclusion, however, does not apply to any compensation paid by the [DVA] to aformer member of the armed forces who is in receipt of retired or retain­ er pay i f such former member has waived a portion o f his retired pay in order to receive such compensation.

123 Cong. Rec. 12,913 (1977) (emphasis added). The purpose o f the 1977 amendments was thus to clarify which cate­ gories of payments were subject to garnishment and which were not, and DVA compensation received in lieu o f retired pay was clearly one type o f payment that Congress considered appropriate for garnishment. Although Congress used the word “portion” in describing the effect o f section 662(f)(2), there is nothing to indicate that Congress attached a narrow meaning to its use in this context.

Indeed, the narrow interpretation adopted by the DVA does not ration­ ally advance any conceivable legislative purpose that Congress had in permitting garnishment of benefits paid in lieu of retired pay.⁸ Congress permitted garnishment in these circumstances because it recognized that a veteran waiving retired pay to obtain DVA compensation is merely sub­ stituting one form o f income for another, and that the latter income should thus be subject to garnishment to the same extent as the former. In light o f this understanding, it should not be relevant how much of one’s claim to retired pay one waives. There is therefore simply no logical rea­ son that a veteran who has waived 99% o f his retired pay in order to receive DVA compensation should be subject to garnishment, while a vet­ eran who has waived 100% of his retired pay should not. This is particu­ larly so in light o f the fact that, because DVA compensation is not taxed, the net after-tax income on a dollar-for-dollar basis of veterans whose DVA compensation exceeds their waived retired pay is actually greater than that o f veterans whose DVA compensation does not exceed their waived retired pay.⁹ In reaching this conclusion, w e recognize that, “[i]n analyzing whether Congress has waived the immunity of the United States, we must construe waivers strictly in favor of the sovereign and not enlarge the waiver, ‘“beyond what the language requires.’”” Library of Congress v. Shaw, 478 U.S. 310, 318 (1986) (citations omitted). However, this rule does not obvi­ ate the need to consider congressional intent when a statutory provision admits o f conflicting interpretations, and Congress’ intent can be reason­ ably discerned. See, e.g., Berman v. Schweiker, 713 F.2d 1290, 1301 (7th Cir. 1983) (“[W]here Congress by statute has waived sovereign immunity and has demonstrated a clear legislative intent with respect to the broad remedial purpose o f the Act, ... each section of the Act must be accorded an interpretation that is consonant with the legislative purpose o f the

entire Act.”). Here, consideration of the legislative history o f the Act and the practical effect o f the DVA’s construction o f section 662(f)(2) per­ suades us that Congress did not intend to relieve veterans o f their support obligations whenever their DVA compensation exceeds their retired pay.

III. Conclusion

For the foregoing reasons, we conclude that 42 U.S.C. § 662(f)(2) should be construed to permit the garnishment of DVA compensation received in lieu of military retired pay even when a veteran has waived all of his or her retired pay in order to receive such compensation. We further recommend that 5 C.F.R. § 581.103(c)(4)(iv) be amended accordingly.

JOHN O. McGINNIS Deputy Assistant Attorney General Office o f Legal Counsel

Footnotes

[3] This provision “was intended to create a limited waiver o f sovereign immunity so that state courts could issue valid orders directed against agencies o f the United States Government attaching funds in the possession o f those agencies.” Rose v Rose, 481 U S. 619, 635 (1987).

[8] The DVA offers no reason why Congress might have intended to exempt veterans who have waived all o f their retired pay in order to receive disability benefits from the requirements o f the Child Support Enforcement Act See Tumage Letter at 5 ( “F or whatever reason, Congress intended to prohibit garnish­ ment where retired pay is waived in toto . . ")

[9] Our conclusion is not in any way inconsistent with the congressional policy underlying the DVA’s anti- gamishment statute, 38 U S C. § 3101(a). In Rose v Rose, 481 U S 619, 630-34 (1987), the Supreme Court considered whether section 3101(a) preempted the jurisdiction o f a state court to hold a veteran in con­ tempt for failing to pay child support from his veterans’ benefits. In concluding that it did not, the Court reasoned: Veterans’s disability benefits compensate for impaired earning capacity, and are intended to “provide reasonable and adequate compensation for disabled veterans and their fami­ lie s ” ... Congress clearly intended veterans’ disability benefits to be used, in part, for the sup­ port o f veterans’ dependents Rose v Rose, 481 U.S. at 630-31 (citations and footnote omitted). Since the purpose o f DVA compensation is to provide for the security o f both veterans and their fami­ lies, the policy considerations underlying section 3101(a) would not be frustrated by construing section 662(f)(2) to permit the garnishment o f DVA compensation that is received in lieu o f retired pay, regard­ less o f whether the recipients have waived all o f their entitlement to retired pay in order to receive such compensation.