United States District Court, D. Arizona
THE
HONORABLE ROSYLN O. SILVER, SENIOR UNITED STATES DISTRICT
JUDGE.
REPORT AND RECOMMENDATION
Michelle H. Burns United States Magistrate Judge.
This
matter comes before the Court upon consideration of
Plaintiff, the United States of America's Application for
Writ of Garnishment (Doc. 42), the Writ of Continuing
Garnishment and Notice of Post-Judgment Garnishment filed by
the Clerk of Court (Doc. 43), the Answer filed by Garnishee,
Absolute HCBS LLC (Doc. 46), an objection to garnishment and
Motion for Hearing, filed by Defendant, John Anthony Williams
(Docs. 49, 47[1]), and a Response to motion for hearing
filed by Plaintiff (Doc. 48). This matter was referred to
undersigned for garnishment proceedings on June 24, 2019
(Doc. 50). This Court has authority to conduct hearings and
issue reports and recommendations in post-judgment
proceedings pursuant to 28 U.S.C. §3008, and
Fed.R.Civ.P. 72.1(b).
Pursuant
to 28 U.S.C. §3205(b)(1), Plaintiff sought application
to issue a Writ of Garnishment upon a judgment entered
against Defendant in the amount of $450, 223.82[2]: the total
balance due on the judgment was $437, 083.25 as of May 14,
2019. (Doc. 42.) In its Answer, Garnishee avowed that
Defendant was employed by Garnishee on the date that the Writ
was served, and that Garnishee anticipated owing earnings to
Defendant after that date. (Doc. 46.) Garnishee calculated
the amount of earnings it would withhold during the period of
garnishment at $245.82 bi-weekly. (Id., at 3-4.)
Defendant does not contest the existence of the judgment, or
the amount owed, but claims financial hardship, asks that the
garnishment amount be reduced, and requests a hearing on the
garnishment. (Doc. 49.)
Plaintiff
contends that the garnishment is proper and Defendant is not
entitled to a hearing. (Doc. 48.) A criminal restitution
judgment can be enforced “in accordance with the
practices and procedures for the enforcement of a civil
judgment under Federal or State law.” 18 U.S.C.
§3613(a) (made applicable to restitution orders by 18
U.S.C. 3664(m)(1)(A)). The practices and procedures for
enforcement of a civil judgment under federal law are set
forth in the Federal Debt Collection Procedures Act of 1990,
28 U.S.C. §3001 et seq. A judgment debtor has the right
to a hearing on the garnishment under limited circumstances,
that are set forth in 28 U.S.C. §3202(d), which
provides:
By requesting, within 20 days after receiving the notice
described in section 3202(b), the court to hold a hearing,
the judgment debtor may move to quash the order granting such
remedy. The court that issued such order shall hold a hearing
on such motion as soon as practicable, or, if so requested by
the judgment debtor, within five days after receiving the
request or as soon thereafter as possible. The issues at such
hearing shall be limited-
(1) to the probable validity of any claim of
exemption by the judgment debtor;
(2) to compliance with any statutory requirement for
the issuance of the post judgment remedy granted;
and
(3) if the judgment is by default and only to the extent that
the Constitution or another law of the United States provides
a right to a hearing on the issue, 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. (emphasis added).
Defendant
does not provide any authority for why the wages garnished
should be exempt from the post-judgment remedy, nor does he
claim that the United States did not comply with any
statutory requirements relating to the garnishment.
Additionally, Defendant's restitution did not accrue as a
result of a default judgment. As such, he is not entitled to
a hearing. See, U.S. v. First Bank & Trust
East Texas, 477 F.Supp.2d 777, 782-83 (E.D.Tex. 2007)
(no hearing warranted, “as Defendant fails to raise an
issue for which a hearing under §3202(d) is statutorily
allowed.”); accord United States v. Taylor,
2015 WL 128160 *2, Nos. 1:14-MC-0055 AWI SKO, 1:03-CR-5161
AWI (E.D. Ca. Jan. 8, 2015).
In
accordance with the foregoing, IT IS HEREBY
RECOMMENDED that Defendant's objection to
garnishment and request for a hearing (Docs. 47, 49) be
DENIED.
IT
IS FURTHER RECOMMENDED that a final order of
continuing garnishment be entered that garnishes 25 percent
of Defendant's bi-weekly disposable earnings.
This
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should not be filed until entry of the District
Court's judgment. The parties shall have fourteen days
from the date of service of a copy of this recommendation
within which to file specific written objections with the
Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
6(a), 6(b) and 72. Thereafter, the parties have fourteen days
within which to file a response to the objections. Failure to
timely file objections to the Magistrate Judge's Report
and Recommendation may result in the acceptance of the Report
and Recommendation by the district court without further
review. See United States v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003). Failure to timely file
objections to any factual ...