Opinion
No. CR-09-50134-1-PHX-ROS
07-09-2019
United States of America Plaintiff, v. John Anthony Williams, Defendant, Absolute HCBS LLC, Garnishee.
REPORT AND RECOMMENDATION
TO THE HONORABLE ROSYLN O. SILVER, SENIOR UNITED STATES DISTRICT 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), 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).
Doc. 47 is redacted copy of Defendant's objection/request for hearing, filed by Plaintiff.
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: 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.)
A criminal restitution order was issued as part of Defendant's Judgment and sentencing on February 8, 2005, in the amount of $450,223.82 (Doc. 1-1 at 6).
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-
(emphasis added).(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.
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 determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.
DATED this 9th day of July, 2019.
/s/_________
Michelle H. Burns
United States Magistrate Judge