United States District Court, E.D. California
DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE
TO THIS ACTION, FINDINGS AND RECOMMENDATIONS RECOMMENDING
GRANTING REQUEST FOR FINAL ORDER OF GARNISHMENT, ORDER
REQUIRING THE GOVERNMENT TO SERVE A COPY OF THE FINDINGS AND
RECOMMENDATIONS (ECF NO. 7)
pending before the Court is the United States'
application pursuant to Section 3205(c)(7) of the Federal
Debt Collection Procedure Act (“FDCPA”) 28 U.S.C.
§ 3001, et seq., for a final order garnishing
the disposable wages, earnings, commissions, and bonuses of
Defendant and Judgment Debtor Jason Wilson
(“Defendant”). The matter was referred to the
undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Rule 302(c)(7).
November 30, 2015, after pleading guilty to a single count of
aggravated identity theft in violation of 18 U.S.C. §
1028A, Defendant was sentenced in the criminal case
United States v. Jason Wilson, no.
1:14-cr-00187-DAD-BAM, and ordered to pay a special
assessment of $100.00, and restitution in the amount of $87,
836.42. United States v. Jason Wilson, no.
1:14-cr-00187-DAD-BAM, (ECF Nos. 31, 32). On July 18, 2018,
the criminal case was reassigned to District Judge Dale A.
Drozd. Id., (ECF Nos. 33, 34.)
collect the restitution owed by Defendant, on October 7,
2019, the Government filed an application for a writ of
continuing garnishment of the wages of Defendant through the
Garnishee Key Safety Systems, Inc. (“Garnishee”).
(ECF No. 1.) On October 8, 2019, the Government filed a
certificate of service demonstrating the Garnishee was served
with the application for a writ of continuing garnishment and
associated materials. (ECF No. 2.) On October 8, 2019, the
Clerk of the Court issued the writ of continuing garnishment.
(ECF No. 3.) On October 21, 2019, the Government filed a
certificate of service demonstrating the Defendant was served
with (1) the application for writ of continuing garnishment;
(2) the issued writ of continuing garnishment; (3) the
clerk's notice of instructions to judgment debtor re:
writ of continuing garnishment; (4) instructions to judgment
debtor re: objecting to the answer of garnishee; (5) judgment
debtor's request for hearing form; (6) instructions to
defendant/judgment debtor on how to claim exemptions and
claim for exemption form; (7) a notice of availability of a
magistrate judge to exercise jurisdiction and appeal
instructions; and (8) a consent or decline jurisdiction of a
United States magistrate judge form. (ECF No. 4.)
October 14, 2019, Defendant was served with the
acknowledgement of service and answer of the Garnishee, and
on October 21, 2019, the acknowledgement of service and
answer of the Garnishee was filed with the Court. (ECF No.
5.) In the filed answer, the Garnishee confirms that: (1)
Defendant is an employee of the Garnishee; (2)
Defendant's pay period is weekly; (3) the last pay period
began on September 30, 2019, and ended October 6, 2019; (4)
the amount of disposable earnings for the latest pay period
was $885.18, though varies depending on hours worked; (5)
Defendant contributes 4% of earnings to an employee sponsored
retirement fund per pay period; (6) the Garnishee contributes
3% of earnings toward a company sponsored retirement account
per pay period; (7) there is no prior wage garnishment
against Defendant presently in effect under a court order;
and (8) Garnishee denies holding any earning nor expects to
hold any earnings in the future that are subject to the writ
of continuing garnishment. (ECF No. 5 at 1-2.) On October 21,
2019, Defendant was served with the clerk's notice of
instructions to judgment debtor re: writ of continuing
garnishment. (ECF No. 6.)
November 22, 2019, the Government filed the instant request
for findings and recommendations for a final garnishment
order. (ECF No.7.) The Court, having reviewed its files and
the application, recommends that the request be granted for
the reasons explained below.
FDCPA “sets forth the ‘exclusive civil procedures
for the United States . . . to recover a judgment on . . . an
amount that is owing to the United States on account of . . .
restitution.' ” United States v. Mays, 430
F.3d 963, 965 (9th Cir. 2005) (quoting 28 U.S.C. §§
3001(a)(1), 3002(3)(B) (alterations in original)). The
Mandatory Victims Restitution Act (“MVRA”) made
restitution mandatory for certain crimes, including “an
offense against property under this title . . . including any
offense committed by fraud or deceit.” 18 U.S.C.
§§ 3663A(a)(1), 3663A(c)(1)(A)(ii). Identity theft
under 18 U.S.C. § 1028A, the crime Defendant was
convicted of, is a qualifying crime under the MVRA making
restitution mandatory. United States v. Cohan, 798
F.3d 84, 89 (2d Cir. 2015); United States v.
Thomsen, 830 F.3d 1049, 1065 (9th Cir. 2016)
(recognizing with approval that the Second Circuit has held
that convictions on charges of identity theft in violation of
18 U.S.C. § 1028A fall under the purview of 18 §
3663A(c)(1)(A)(ii)) (citing Cohan, 798 F.3d at 89).
MVRA provides that the United States may enforce a judgment
imposing a fine, which includes restitution, in accordance
with the practices and procedures for enforcing a civil
judgment under the FDCPA. Mays, 430 F.3d at 965
& n.2. The FDCPA provides that “[a] court may issue
a writ of garnishment against property (including nonexempt
disposable earnings) in which the debtor has a substantial
nonexempt interest and which is in the possession, custody,
or control of a person other than the debtor, in order to
satisfy the judgment against the debtor.” 28 U.S.C.
§ 3205(a). The FDCPA defines “earnings” as
“compensation paid or payable for personal services,
whether denominated as wages, salary, commission, bonus, or
otherwise, and includes periodic payments pursuant to a
pension or retirement program.” 28 U.S.C. §
3002(6). “Disposable earnings” is defined as
“that part of earnings remaining after all deductions
required by law have been withheld.” 28 U.S.C. §
3002(5). “Nonexempt disposable earnings” is
defined as “25 percent of disposable earnings, subject
to section 303 of the Consumer Credit Protection Act.”
28 U.S.C. § 3002(9). The Consumer Credit Protection Act
provides that “the maximum part of the aggregate
disposable earnings of an individual for any workweek which
is subjected to garnishment may not exceed (1) 25 per centum
of his disposable earnings for that week, or (2) the amount
by which his disposable earnings for that week exceed thirty
times the Federal minimum hourly wage . . . in effect at the
time the earnings are payable, whichever is less.” 15
U.S.C. § 1673(a).
the FDCPA, the government is required to provide the judgment
debtor with notice of the commencement of garnishment
proceedings. 28 U.S.C. § 3202(b)-(c). The judgment
debtor has twenty days after receipt of the notice to request
a hearing, at which the judgment debtor may move to quash any
order granting the garnishment. 28 U.S.C. § 3202(b). If
a garnishment hearing is held, it is limited to the issues
of: (1) “the probable validity of any claim of
exemption by the judgment debtor;” (2)
“compliance with any statutory requirement for the
issuance of the postjudgment remedy granted; and (3) if the
judgment is by default . . . to—(A) the probable
validity of the claim for the debt which is merged in the
judgment; and (B) the existence of good cause for setting
aside such judgment.” 28 U.S.C. § 3202(d).
other things, the documents served to Defendant on October
21, 2019, advised him of his rights to claim exemptions to
garnishment, to object to the Garnishee's acknowledgement
of service and the Garnishee's answer, and to request a
hearing. (ECF No. 4.) Specifically, Defendant was advised
that he had twenty (20) days from the date he received the
Garnishee's answer to claim exemptions or request a
hearing in opposition as required by 28 U.S.C. §
3202(d). (ECF No. 4-3.) Defendant has not filed any
opposition to this garnishment proceeding, has not claimed
exemptions, has not objected to the answer, and has not
requested a hearing. The time to do so has expired.
to the FDCPA, “[a]fter the garnishee files an answer
and if no hearing is requested within the required time
period, the court shall promptly enter an order directing the
garnishee as to the disposition of the judgment debtor's
nonexempt interest in such property.” 28 U.S.C. §
3205(c)(7). Accordingly, the Court recommends that the
Government's application for a final garnishment order be
ORDER AND ...