[Federal Register Volume 63, Number 234 (Monday, December 7, 1998)]
[Rules and Regulations]
[Pages 67403-67405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32311]
[[Page 67403]]
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POSTAL SERVICE
39 CFR Part 491
Garnishment of Postal Employee Salaries
AGENCY: Postal Service.
ACTION: Final rule.
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SUMMARY: These amended regulations implement the statutory provision
which provides that the pay of employees of the United States Postal
Service and the Postal Rate Commission will be subject to garnishment
orders.
EFFECTIVE DATE: January 6, 1999.
FOR FURTHER INFORMATION CONTACT: William B. Neel, Attorney, Law
Department Mid-Atlantic Office, (202) 314-6814.
SUPPLEMENTARY INFORMATION: On October 6, 1993, Congress enacted section
9 of Public Law 103-94 entitled, ``Garnishment of Federal Employees'
Pay.'' This law is a limited waiver of the Federal Government's
sovereign immunity to permit pay from an agency to an employee to be
garnished by federal, state and local legal process, subject to certain
limitations. Child support garnishment is already covered by other
federal law. On February 3, 1994, the President signed Executive Order
12897, which delegated responsibility to the Postal Service to issue
implementing regulations for its employees and for the employees of the
Postal Rate Commission. These regulations are amended in accordance
with this delegation of authority.
The Postal Service is amending its regulations implementing
garnishment withholding under Section 9 of Public Law 103-94. This
federal law supersedes state law with regard to a variety of issues in
garnishment. Accordingly, regardless of state law, legal process must
be in conformity with these regulations.
This waiver of immunity for the garnishment process confers
jurisdiction only over an employee's pay, and does not confer
jurisdiction over the Postal Service or the Postal Rate Commission as a
party to a lawsuit, nor does it waive immunity for the purpose of
orders to show cause or for penalties or sanctions such as default
judgments. In First Virginia Bank v. Randolph, 920 F.Supp. 213 (D.D.C.
1996), rev'd., No. 96-5205 (D.C. Cir. April 11, 1997) the Circuit Court
held that the Federal Government's waiver of sovereign immunity is
limited and the Federal Government cannot be held liable to pay money
damages for failure to comply with legal process. These regulations
embody language consistent with that holding.
List of Subjects in 39 CFR Part 491
Government employees, Postal Service, Wages.
For the reasons stated, in subchapter F of chapter I of title 39,
Code of Federal Regulations, part 491 is revised to read as follows:
PART 491--GARNISHMENT OF SALARIES OF EMPLOYEES OF THE POSTAL
SERVICE AND THE POSTAL RATE COMMISSION
Sec.
491.1 Authorized Agent to receive service.
491.2 Manner of service.
491.3 Sufficient legal form.
491.4 Identification of employees.
491.5 Costs.
491.6 Response to process.
491.7 Release of information.
491.8 Execution of process.
491.9 Restrictions on garnishment.
Authority: 5 U.S.C. 5520a; 39 U.S.C. 401; E.O.12897, 59 FR 5517,
3 CFR, 1994 Comp., p. 858.
Sec. 491.1 Authorized Agent to receive service.
Notwithstanding the designation, in Sec. 2.2 of this chapter, of
the General Counsel as agent for the receipt of legal process against
the Postal Service, the sole agent for service of garnishment process
directed to the pay of Postal Service employees and employees of the
Postal Rate Commission (``employees'') is the Manager, Payroll
Processing Branch, 2825 Lone Oak Parkway, Eagan, MN 55121-9650
(``Authorized Agent''). The Authorized Agent shall have sole authority
to receive service of legal process in the nature of garnishment
(hereinafter sometimes referred to as ``process'') arising under the
law of any state, territory, or possession, or the order of a court of
competent jurisdiction of any state, territory, or possession
(including any order for child support and alimony or bankruptcy). The
Authorized Agent may not receive or transmit service of process in a
private legal matter on behalf of an employee. No process shall be
effectively served until it is received by the Authorized Agent or his
designee. No other employee shall have the authority to accept service
of such process. Service of process in conformity with Rule 4(i) of the
Federal Rules of Civil Procedure (28 U.S.C. Appendix) is not waived for
any suit or action wherein the Postal Service, its officers, or
employees are parties. Any Order, issued in bankruptcy, for the
withholding of sums from pay due an employee and which is directed to
the Postal Service for handling outside the voluntary allotment
procedure, is legal process subject to the provisions of these
regulations.
Sec. 491.2 Manner of service.
Service of process on the Authorized Agent or his designee may be
made in person or by certified or registered mail, with return receipt
requested, at the address of the Authorized Agent. Service may also be
made on the Authorized Agent by means of any private delivery service
pursuant to its authority for the private carriage of letters under an
exception to the Private Express Statutes, 39 U.S.C. 601-606, provided
that the private delivery organization issues a receipt bearing the
name and address of both the addressee and sender, as well as the date
of delivery and the signature of the receiving agent. No garnishment is
effectively served until it is received by the Authorized Agent or his
designee regardless of the chosen mode of delivery. Process addressed
to, delivered to, or in any manner given to any employee, other than
the Authorized Agent or his designee, may, at the sole discretion of
the employee, be returned to the issuing court marked ``Not Effectively
Served.'' A copy of or reference to these regulations may be included.
Employees are not authorized to redirect or forward garnishment process
to the Authorized Agent. In the event that the address of the
Authorized Agent is changed, mail may be forwarded from his last
published address to his new official address until such time as these
regulations are amended to reflect the new address.
Sec. 491.3 Sufficient legal form.
No document purporting to garnish employee wages shall be deemed
sufficient unless it can be determined from the face of the document
that it is legal process in the nature of garnishment; that it is
issued by a court of competent jurisdiction or an authorized official
pursuant to an order of such a court or pursuant to federal, state or
local law, evidenced by a signature of the issuing person; and that it
contains the name of the garnished party, with his or her social
security number, orders the employing agency to withhold from pay a
specific amount of money, specifically describes the judgment of debt
or administrative action complete with statutory citation and contains
specific advice as to where to send the funds as they are periodically
withheld including the complete Zip Code (Zip + 4). When there is a
suggestion that the employee is under the jurisdiction of a bankruptcy
[[Page 67404]]
proceeding, the creditor must provide documentary evidence to prove
that his legal process is not in violation of the bankruptcy court's
jurisdiction before the creditor's garnishment may be processed.
Documents deficient in any of these respects may be returned to the
issuing court or authorized official inscribed ``Insufficient as to
legal form.''
Sec. 491.4 Identification of employees.
Garnishments must be accompanied by sufficient information to
permit prompt identification of the employee and the payments involved.
Garnishment of an employee whose name and social security number is
similar to but not identical with the name and social security number
on the garnishment will not be processed. An exact match of both name
and social security number is required in order to permit processing;
otherwise, the garnishment will be returned marked ``Insufficient
identifying information.'' Garnishments which are insufficient in
regard to identifying information will not be held pending receipt of
further information and must be served again when the proper
information is obtained.
Sec. 491.5 Costs.
The Postal Service's administrative costs in executing the
garnishment action shall be added to each garnishment and the costs
recovered shall be retained as offsetting collections. The Postal
Service reserves the right to redetermine the administrative cost of
any garnishment if, in administering any garnishment, extra costs
beyond those normally encountered are incurred, and add the extra cost
to each garnishment. The extra costs recovered shall be retained as
offsetting collections.
Sec. 491.6 Response to process.
(a) Within fifteen days after receipt of process that is sufficient
for legal form and contains sufficient information to identify the
employee, the Authorized Agent shall send written notice that
garnishment process has been served, together with a copy thereof, to
the affected employee at his or her duty station or last known address.
The Authorized Agent shall respond, in writing, to the garnishment or
interrogatories within thirty days of receipt of process. The
Authorized Agent may respond within a longer period of time as may be
prescribed by applicable state Law. Neither the Authorized Agent nor
any employee shall be required to respond in person to any garnishment
served according to the provisions of 5 U.S.C. 5520a and the
regulations in this section. A sufficient response to legal process
shall consist of any action of the Postal Service consistent with these
regulations. The action shall be considered to be given under penalty
of perjury and shall constitute a legally sufficient answer to any
garnishment. The Postal Service may, in its sole discretion, answer or
otherwise respond to documents purporting to be legal process which are
insufficient as to the manner of service, insufficient as to the
identification of the employee, insufficient as to legal form or
insufficient for any other reason.
(b) The requirements of paragraph (a) of this section are
illustrated by the following example:
Example: Each periodic check with the accompanying Financial
Institution Statement shall be considered to be a legally sufficient
answer. Where legal process has been processed but no money was
deducted, (for the reason of insufficient pay, prior garnishment in
force, etc.) the mailing label or other written response shall be a
sufficient answer. Where the Postal Service sends a check or mailing
label, no further action will be required (such as a cumulative
report or notarized statement.) Documents which are defective with
respect to service, lack of legal sufficiency, failure to properly
identify the employee, or other reason, do not require a response or
an answer but if the Postal Service chooses to act in any way, such
as to return the document, that act shall be a sufficient answer.
Sec. 491.7 Release of information.
(a) No employee whose duties include responding to interrogatories
to garnishments shall release information in response to a garnishment
until it is determined that sufficient information, as required in
Sec. 491.4, has been received in writing as part of the garnishment
legal process. The Authorized Agent may, at his or her sole discretion,
accept or initiate telephone or telefax inquiries concerning
garnishments. No other employee may release any information about
employees except in conformity with the Privacy Act of 1974, 5 U.S.C.
552a, and the regulations in 39 CFR Part 266, ``Privacy of
Information.''
(b) The Authorized Agent's response to legal process is sufficient
if it contains only that information not otherwise protected from
release by any federal statute including the Privacy Act. Neither the
Postal Service nor the Postal Rate Commission shall be required to
provide formal answers to interrogatories received prior to the receipt
of legal process. Employment verification may be obtained by accessing
the Postal Service's employment verification system by dialing 1-(800)
276-9850.
Sec. 491.8 Execution of process.
(a) All legal process in the nature of garnishment shall be date
and time stamped by the Authorized Agent when received for the purpose
of determining the order of receipt of process which is sufficient as
to legal form and contains sufficient information for identification of
the employee, the Authorized Agent's date and time stamp shall be
conclusive evidence. Child support and alimony garnishments will be
accorded priority over commercial garnishments under 5 U.S.C. 5520a as
provided in 5 U.S.C. 5520a(h)(2). Garnishments shall be executed
provided that the pay cycle is open for input or, if closed, will be
held until the next cycle. In no event shall the Postal Service be
required to vary its normal pay or disbursement cycles in order to
comply with legal process of any kind. Garnishments shall be
recalculated, if required, to fit within the normal postal pay cycles.
The Postal Service shall not be required to withhold pay and hold the
funds in escrow. The Postal Service, in its sole discretion, may
process more than one garnishment at a time within the restrictions on
garnishments in Section 491.9 of these regulations. The Postal Service
may, in its sole discretion, accept and hold for processing
garnishments received after the garnishment currently in force.
(b) The Postal Service will only accept and effectuate legal
process for a person who is currently employed. Upon cessation of
employment, process relating to that individual will be terminated and
not retained. The Postal Service shall not be required to establish an
escrow account to comply with legal process even if the applicable law
of the jurisdiction requires private employers to do so. Legal process
must state on its face that the Postal Service withhold up to a
specific total amount of money, the Postal Service will not calculate
interest, charges, or any variable in processing a garnishment. The
Postal Service may continue processing a garnishment if the garnishing
attorney provides the adjusted total including the additional money
owed, as determined from his calculation of the variable amounts. The
attorney is deemed to certify on his professional responsibility that
the calculations are correct and will indemnify the employee directly
for any errors. All garnishments of periodic pay may be effectuated in
accordance with the bi-weekly pay schedule. The Postal Service need not
vary its pay and disbursement cycles to accommodate withholding on any
other cycle.
(c) Neither the Postal Service, the Postal Rate Commission nor any
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disbursing officer shall be liable for any payment made from moneys due
from, or payable by the Postal Service or the Postal Rate Commission to
any individual pursuant to legal process regular on its face.
(d) The Postal Service, the Postal Rate Commission, any disbursing
officer or any other employee shall not be liable to pay money damages
for failure to comply with legal process.
Sec. 491.9 Restrictions on garnishment.
Garnishments under this section shall be subject to the
restrictions in 15 U.S.C. 1671-1677, including limits on the amounts
which can be withheld from an employee's pay and the priority of
garnishments.
Stanley F. Mires,
Chief Counsel, Legislative Division.
[FR Doc. 98-32311 Filed 12-4-98; 8:45 am]
BILLING CODE 7710-12-P
