United States District Court, D. Colorado
ORDER DENYING REQUEST FOR RELEASE OF FUNDS
E. Blackburn Judge
matter before me is defendant's Letter
[#115],  filed March 30, 2017, requesting the court
release certain funds to her. I construe this motion as a
motion to quash the writs of garnishment issued in favor of
the government in this case. As thus construed, I deny the
facts of this case are set forth in the United
States' Amended Memorandum in Support of Its Writ for
Garnishment [#120], filed April 20, 2017, which I
incorporate herein by reference. As part of her decree of
dissolution of marriage (see id., Exh. 2), defendant
became entitled to funds held in her former husband's
retirement accounts. Because defendant still owes more than
$65, 000 in restitution as a result of her plea of guilty in
this case, the government applied for writs to garnish these
funds in partial satisfaction of the obligation ([## 107
&109], filed February 27, 2017). The clerk issued the
writs ([## 108 & 100, filed February 27, 2017), and the
garnishees filed answers ([#111], filed March 13, 2017 &
[#112], filed March 22, 2017).By her motion, plaintiff claims
these funds represent back child support owed her and
requests they be released to her, less $5, 000 to be put
toward her restitution obligation.
United States may enforce a judgment imposing a fine in
accordance with the practices and procedures for the
enforcement of a civil judgment under Federal law or State
law.” 18 U.S.C.A. § 3613(a). See also 18
U.S.C. § 3664(m)(1)(A)(i) (“An order of
restitution may be enforced by the United States[.]”).
“These provisions allow the government to enforce an
order of restitution as if it were a lien or civil judgment
in favor of the United States.” United States v.
Martinez, 812 F.3d 1200, 1202 (10th Cir.
2015) (internal quotation marks omitted). “Among the
government's enforcement tools is the writ of
garnishment, ” as provided by the Fair Debt Collection
Practices Act (“FDCPA”), 28 U.S.C. §§
3001- 3308. Id. (citing 18 U.S.C. § 3205(a)).
See also 18 U.S.C. § 3001(a)(1) (in general,
FDCPA “provides the exclusive civil procedures for the
United States to recover a judgment on a debt”);
United States v. Phillips, 303 F.3d 548, 550-51
(5th Cir. 2002) (“The federal law that
provides the practices and procedures for the enforcement of
a civil judgment is the FDCPA.”), cert.
denied, 123 S.Ct. 1253 (2003).
the writ of garnishment is issued ex parte, the
debtor is entitled to a copy of the application and the order
granting it, as well as notice of her right to request a
hearing. 18 U.S.C. § 3004. See also 18 U.S.C.
§ 3202 (prescribing form of notice and procedures for
service, and setting forth debtor's right to a hearing).
Within 20 days of receipt of the notice, the debtor may move
to quash the writ. 18 U.S.C. § 3202(d).
motion, however, is both procedurally and substantively
deficient. Procedurally, her motion is time-barred. Notice of
the writs was mailed to defendant on the day they issued,
February 27, 2017. (See [#108-1] & [#110-1].)
Receipt is presumed within five days of mailing. See
Marquez v. New Mexico, 214 Fed.Appx. 855, 856
(10th Cir. Jan. 31, 2007); Witt v. Roadway
Express, 136 F.3d 1424, 1429-30 (10th Cir.),
cert. denied, 119 S.Ct. 188 (1998). Defendant's
motion therefore was due no later than March 24, 2017. The
motion, however, is dated March 27, 2017, and was docketed on
March 30, 2017. It therefore is untimely, and subject to
denial on that basis alone.
and substantively, the issues the court may consider in
determining whether to quash a writ of garnishment are
limited by statute. See 18 U.S.C. §
3202(d)(1)-(3). Of these, only one - “the probable
validity of any claim of exemption by the judgment
debtor” - is implicated here. Defendant, however, has
not established a valid claim of exemption.
limited exceptions, a restitution order may be
“enforced against all property and rights to property
of the person fined.” 18 U.S.C. § 3613(a). Because
restitution orders are to be satisfied in the same manner as
tax liabilities, see 18 U.S.C. § 3613(c);
United States v. Golden, 2010 WL 5141706 at *2 (W.D.
Okla. Dec. 13, 2010), “exemptions available in a
federal court garnishment action seeking collection of
restitution are limited to those in the Internal Revenue
Code, ” Golden, 2010 WL 5141706 at *2 (citing
United States v. Novak, 476 F.3d 1041, 1053
(9th Cir. 2007), and Phillips, 303 F.3d
at 550-51). Funds held in retirement accounts are not
tax-exempt and therefore are subject to garnishment. See
United States v. DeCay, 620 F.3d 534, 541
(5th Cir. 2010) (collecting cases); United
States v. Irving, 452 F.3d 110, 126 (2ndCir.
2003); United States v. Novak, 476 F.3d 1041, 1053
(9th Cir. 2007) (en banc); United States v.
James, 312 F.Supp.2d 802, 806 (E.D. Va. 2004)
(collecting cases).That the subject funds a held in retirement
accounts, therefore, does not exempt them from garnishment.
court-ordered payments for the support of a minor child are
exempt from garnishment, see 26
U.S.C. § 6334(a)(8),  the record does not support
defendant's unsubstantiated claim that she is owed back
child support. (See Gov't Amend. Resp.
App., Exh. 2 at 2 (showing no money owed to
defendant by her ex-husband for child support arrears).) Nor
was the decree of dissolution of marriage entered prior to
the date of the restitution order.
See 26 U.S.C. § 6334(a)(8)
(exempting from levy only judgments for child support
“entered prior to the date of levy”).
See also United States v. Corso,
2016 WL 3349213 at *4 (D. Conn. June 14, 2016).
section 6334(a)(8) exempts from levy only “salary,
wages, and other income.” Under the principle of
statutory construction known as ejusdem generis,
“where general words follow specific words in a
statutory enumeration, the general words are construed to
embrace only objects similar in nature to those objects
enumerated by the preceding specific words.” Woods
v. Simpson, 46 F.3d 21, 23 (6thCir. 1995)
(citation and internal quotation marks omitted). Thus,
retirement and pension benefits - which are not typically
paid out in regular installments, and certainly not in this
case - have been found not to constitute “other
income” for purposes of section 6334(a)(8). See
United States v. Grigsby, 2015 WL 471248 at *2 (D. Kan.
Feb. 4, 2015). See also United States v. Centennial
Savings Bank, 499 U.S. 573, 582-83, 111 S.Ct. 1512,
1518-19, 113 L.Ed.2d 608 (1991) (tax exemptions are to be
narrowly construed); Woods, 46 F.3d at 24 (noting
related section 6334(d) exempts specified amounts for
“wages, salary, and other income” defined as
payments received weekly or during any applicable pay period
or other fiscal period).
IT IS ORDERED that defendant's
Letter [#115], filed March 30, 2017,
construed as a motion to quash the writs of garnishment
issued in favor of the government in this case, is denied.
 “[#115]” is an example of
the convention I use to identify the docket number assigned
to a specific paper by the court's case management and
electronic case filing system (CM/ECF). I use ...