UNITED STATES of America
v.
Clifford E. CLAYTON.
Criminal Action No. 08-28.
United States District Court, E.D. Louisiana.
August 13, 2009.*828 Fred Patrick Harper, Jr., James R. Mann, U.S. Attorney's Office, New Orleans, LA, for United States of America.
ORDER AND REASONS
CARL J. BARBIER, District Judge.
Before the Court is Defendant Clifford Clayton's Opposition to Government's Motion to Execute Garnishment against Defendant's Assets in Contravention of Court's Judgment (Rec. Doc. 49), which challenges the Government's request for a writ of garnishment against the New Orleans Baton Rouge Steamship Pilots Association ("NOBRA") as to various amounts owed or prospectively payable to Clayton in satisfaction of the $533,727 balance of criminal restitution owed by Clayton under the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663 et seq.
PROCEDURAL HISTORY AND BACKGROUND FACTS
Clayton pled guilty to three misdemeanor counts for failure to file tax returns for the years 1999, 2000, and 2001. Subsequently, Clayton was sentenced to 18 months in prison, and was also ordered to pay a total of $608,727 in restitution to the Internal Revenue Service ("IRS"). The Court's Judgment and Commitment Order ("J & C") specifically provided as follows:
The payment of the restitution of $608,727.00, shall begin with a lump sum payment of $75,000.00, to be paid by APRIL 3, 2009, and to continue while defendant is incarcerated. Any unpaid balance upon release from incarceration shall be paid at a rate of $5,000.00 per month. The payment is subject to increase or decrease, depending on the defendant's ability to pay.
Rec. Doc. 29 at p. 4. The J & C also mandates that Clayton "shall pay any restitution... that remains unpaid at the commencement of the term of supervised." Id. at p. 3.
In accordance with the order of restitution, the Government moved for and was granted a writ of garnishment to NOBRA, among others, as Clayton's employer[1] at *829 the time of his conviction. NOBRA's initial garnishment answer indicated several amounts owed to Clayton, but did not distinguish whether those amounts were wages/earnings or retirement benefits. Accordingly, the Government requested that NOBRA amend its answer to specify the nature of the various amounts due. NOBRA's amended response indicated the following amounts due to Clayton: (1) $30,000 in lumpsum earnings while Clayton's retirement request was processed; (2) $685 monthly from June 2009-July 2010 as a pro rata share of initiation fees of other pilots; (3) $30,000-$31,500 monthly from June 2009December 2009 for accrued, unused sick leave; and (4) $15,000 $16,000 monthly from January 2010 for life for "retirement benefits paid from revenues generated by active pilots based on a daily rate." The Government instructed NOBRA to release to Clayton 75% of the first two categories pursuant to the garnishment limitations on "earnings" under the MVRA, Federal Debt Collection Procedures Act ("FDCPA") and Consumer Credit Protection Act ("CCPA"). Likewise, the Government requested a release of 75% of the third category to Clayton.[2] Finally, the Government requested 100% of the fourth categorypresent or anticipated retirement benefits.
Currently, after the $75,000 payment ordered by the Court at Clayton's sentencing, $533,727 remains owed under the Court's restitution order. Clayton self-surrendered to the Bureau of Prisons on May 5, 2009 as ordered in the J & C.
THE PARTIES' ARGUMENTS
Clayton argues that this Court's J & Cnot the statutory provisions relied on by the Governmentcontrol the course of Clayton's restitution obligations. In other words, because the Court's J & C allows *830 for $5,000 monthly paymentsand not an immediate payment of the entire restitution amount at onceClayton argues that the Government's attempts to garnish his retirement benefits when he has not yet defaulted on any of his monthly paymentsand after he has paid the initial $75,000 lump sum ordered by the Court is improper. Clayton cites the admittedly non-binding decision of the Northern District of Texas in United States v. Roush, 452 F. Supp. 2d 676 (N.D.Tex.2006). The defendant in Roush pled guilty to tax evasion and was ordered to pay restitution to the IRS as part of his sentence under a court-ordered payment schedule. Id. at 677-78. However, the Government sought to garnish the defendant's wife's bank accounts, arguing that it was not bound by the Court's payment schedule as issued in the criminal judgment, and further asserting that the restitution order was a judgment on which the Government could execute in full by means of garnishment at any time. Id. at 680. The Roush court summarized its holding after analyzing the various statutory provisionsmost importantly 18 U.S.C. § 3664[3]and the language of its criminal judgment and restitution order:
The government claims that at any time it can collect the full amount of restitution, without needing court approval; because that ability would be inconsistent with the judicial control over timing of restitution set forth in the statute, as well as the language in the judgment providing for a payment schedule, the Court grants [defendant's] motion to quash.
Id. at 677; see also United States v. Christ, 2007 WL 3252612 (N.D.Ill.2007) (citing Roush in holding that the Government could not execute on full amount of criminal fine in light of district court's order establishing a payment schedule). Additionally, Clayton cites the Fifth Circuit's decision in United States v. Ekong, 518 F.3d 285 (2007) for the proposition that a district court's criminal judgment is controlling vis-a-vis the Government's right to seek garnishment in satisfaction of the entire restitution amount. Specifically, Clayton argues that in affirming the grant of the Government's garnishment writs as to immediately distributable employer matching funds, the Fifth Circuit specifically noted that nothing in the language of the district court's criminal judgment precluded the requested garnishment. Id. at 286. As noted in the Government's briefing in Ekong, the district court's criminal judgment indicated that the defendant would have to pay at least $500 per month toward the restitution amount after his release from prison, and as such, the Government was not precluded from seeking more than that $500 amount via garnishment.
In light of these cases, Clayton argues that, because the Court's J & C ordered a specific monthly payment of $5,000, and because he is not in arrears on those payments, the Government cannot require him to pay more than that monthly amount by garnishing his retirement benefits and accrued sick leave pay.
As an additional note, Clayton points out that due to his conviction, he was brought before the Board of Examiners, which after a disciplinary hearing informed him that it would recommend to the Governor that his commission be revoked. Clayton contends that this move was "political" (as he argued at his sentencing) and had never previously been leveled against any pilot for mere misdemeanor convictions. In any *831 event, Clayton notes that if his commission had been revoked, he would have been left without income or health insurance, because without an active commission he could not have a fellow pilot stand his watches. As such, and because he could not afford to appeal the board's decision, Clayton was essentially forced to resign his commission and take inactive status, which would allow him to receive half his usual income and retain medical insurance. Once this request for inactive status is processed, Clayton will receive the income identified in item (4) of NOBRA's garnishment answer. Accordingly, the half-pay received as a result of his taking inactive status should be categorized as deferred income, as these amounts are intended to compensate him for monies earned by him while on active duty but paid to fellow pilots under the NOBRA "retirement/sick leave/vacation time" system.
As such, and in the alternative to his argument that the government is precluded from garnishing his NOBRA "retirement" benefits in light of the J & C, Clayton argues that his inactive "retirement" income is exempt from garnishment under 26 U.S.C. § 6334(a)(9), which exempts from levy "any amount payable to or received by an individual as wages or salary for personal services ... during any period, to the extent that the total of such amounts payable to or received by him during such period does not exceed the applicable exempt amount determined under subsection (d)." Clayton argues that because his "retirement" benefits are not from an employer's fund like a normal pension, and are instead simply deferred wages he earned while on active duty, those payments should be exempt from garnishment.
In response, the Government argues that the payment provisions of the J & C do not preclude the Government from seeking full and immediate payment of the restitution order by the aggressive means of garnishment. First, the Government asserts that Clayton misinterprets the J & C in his argument that the $75,000 lump sum payment and $5,000 post-incarceration monthly payment constitute a maximum possible payment under his restitution obligation. Rather, although the J & C does not specifically state that the entire amount is due immediately, the Government argues that the language of the J & C indicates that the full amount is immediately collectable. For example, the Government notes that the restitution repayment was to begin with the initial $75,000 lump sum payment "and continue while [Clayton] is incarcerated." Rec. Doc. 29 at p. 4. The Government argues that if the lump sum payment was intended to obviate any payments during the 18 month term of Clayton's imprisonment, then the quoted language would be superfluous. Additionally, the Government notes that the J & C further indicates that "any unpaid balance upon release from incarceration shall be paid at a rate of $5,000.00 per month." Id. (emphasis added). The Government contends that the use of the word "any" in the J & C suggests that the Court contemplated the possibility that Clayton might pay the full restitution amount while in prison, or that the full amount might be collected by other means. Finally, the Government points out that the terms of Clayton's supervised release indicate that he will pay any restitution "that remains unpaid" at the commencement of his release. Again, the Government argues that if the J & C payment schedule precluded accelerated collection efforts, there would be no need for the uncertain language in the supervised release terms regarding possibly unpaid amounts.
Further, even if Clayton's limiting interpretation of the J & C were correct, and the Court did intend to impose a strict *832 $5,000 per month payment schedule, the Government contends that the Fifth Circuit's decision in Ekonga case that Clayton acknowledgesactually precludes Clayton's argument. The Government notes that the district court's restitution order in Ekong included language similar to the J & C in this case:
If upon commencement of the term of supervised release, any part of the restitution remains unpaid, the defendant shall make payments on such unpaid balance beginning 60 days after release from custody at the rate of at least $500.00 per month until is [sic] paid in full.
Rec. Doc. 50 at p. 6 & Rec. Doc. 50-1, p. 6. The Fifth Circuit rejected the defendant's argument that this language precluded the Government from garnishing her retirement benefits while she was incarcerated. Ekong, 518 F.3d at 286. The court went on to point out that a restitution order under the MVRA can be enforced in the same manner as a civil judgment, and further noted that the Attorney General is required under the MVRA to enforce restitution orders "aggressively." Id. As such, the Ekong court held that nothing in the payment schedule in the district court's criminal judgment precluded the Government's collection efforts. Id. The Government argues that Ekong defeats Clayton's arguments directly, and further notes that the language in the J & C is even more encouraging of accelerated collection in light of the fact that it requires payments even during Clayton's incarceration and contemplates that there might not even be an unpaid balance at the commencement of Clayton's supervised release period.
The Government acknowledge's the contrary precedent in the Northern District of Texas's decision in Roush, but notes that it pre-dates Ekong. The Government also notes that while the Roush court distinguished its holding from other cases in which the restitution order specifically indicated that the restitution amount was "due and payable immediately," Ekong reached a contrary result based on language in a criminal judgment that itself did not indicate whether or not the restitution amount was immediately due. As such, the Government argues that Ekong found the lack of an "immediately due" provisionwhich was the foundation of the holding in Roushto be unimportant. As such, since the language in the J & C in this case and the language at issue in Ekong are similar, and since Ekong post-dates Roush, the Government contends that Ekong should govern this case. Alternatively, the Government suggests that the Court can simply amend the J & C to include an "immediately due" provision if the Court finds such language to be a necessity.
The Government notes that other courts have reached a similar conclusion as Ekong. For example, the Western District of Michigan in United States v. Miller imposed a term of imprisonment along with an order of restitution to be paid in an initial lump sum and subsequent quarterly installments during the term of imprisonment. 588 F. Supp. 2d 789 (W.D.Mich. 2008). The defendant in Miller objected to the Government's garnishment of his pension account during his incarceration, citing his compliance with the court's repayment scheduled. Id. at 790-92. The Miller court rejected this argument, citing Ekong as support. Id. at 796-97. See also, e.g., United States v. Hawkins, 392 F. Supp. 2d 757, 760 (W.D.Va.2005) (approving garnishment under restitution order despite defendant's currentness on monthly installments); United States v. Kuehler, 2006 WL 2981831 (D.Idaho Oct. 16, 2006) (noting that any court-established payment schedule cannot preclude the Government from levying on a defendant's property in satisfaction of a restitution order).
*833 In addition to this jurisprudential support for its position, the Government also presents a statutory argument in support of the present garnishments. First, the Government points out that the MVRA not only allows for restitution orders to be collected in the same way as a normal civil judgment, but also allows for victims to receive and record an abstract of the judgment as a lien against property owned by the defendant. 18 U.S.C. § 3664(m)(1)(B). The Government notes that some courts have observed that preventing the United States from enforcing a restitution order in the face of a court-ordered payment plan would not make any sense in light of this lien-creating provision, which otherwise allows a victim to execute against all property of the defendant. Hawkins, 392 F.Supp.2d at 759. Furthermore, in addition to emphasizing the Attorney General's obligation to "aggressively" collect restitution, the MVRA allows for such enforcement "by all ... available and reasonable means," including writs of garnishment under the FDCPA. 18 U.S.C. § 3664(m)(1)(A)(ii). Accordingly, if Congress had intended for the Government to be bound by court-ordered payment schedules, these enforcement methods provided in the MVRA would be superfluous. United States v. Lawrence, 538 F. Supp. 2d 1188, 1193 (D.S.D.2008). Next, the Government notes that payment schedules under the MVRA must take into account a defendant's assets, future earnings, and financial obligations, and thus may result in only minimal periodic payments. See 18 U.S.C. § 3664(f). However, liability for any such payments expires after a term of imprisonment plus twenty years. Id. at § 3613(b), (c). Thus, if the payment schedule were the only mechanism ensuring payment, it might result in only a fraction of the restitution being repaid. United States v. James, 312 F. Supp. 2d 802, 807 (E.D.Va.2004). This result would conflict with the purposes of the MVRA, and thus the Government argues that any court-imposed payment schedule cannot hamstring its right to execute on a defendant's property.
The Government additionally points out that, because Clayton is incarcerated, the provisions of § 3664(n) of the MVRA apply. This section provides that "[i]f a person obligated to provide restitution ... receives substantial resources from any source ... during a period of incarceration, such person shall be required to apply the value of such resources to any restitution ... still owed." 18 U.S.C. § 3664(n). The Government argues that if a court-imposed payment schedule were the only binding obligation for an imprisoned MVRA debtor, the debtor would be free to retain numerous sources of income (inheritances, dividends, etc.) free from seizure.
Finally, the Government notes that its position does not render court-imposed payment schedules irrelevant. Rather, the court-ordered schedule operates as an in personam judgment against the defendantsuch that failure to comply may result in default, revocation of supervised release, or contemptwhile the Government's enforcement options operate as in rem rights against the defendant's property.
As for Clayton's alternative argument, the Government notes that the § 6334(a)(9) exemption relied on by Clayton is specifically excluded from the list of exemptions from garnishment provided in 18 U.S.C. § 3613. Thus, since § 6334(a)(9) is specifically omitted from the list of incorporated tax-code exemptions to seizure of property for payment of criminal restitution, the Government argues that Clayton may not rely upon § 6334(a)(9) to contest the present garnishment.
Additionally, the Government points out that to the extent Clayton argues his "retirement" *834 benefits are exempt because they are more in the nature of wages/earnings, he seems to invoke the MVRA's incorporation of the CCPA. The CCPA provides that "the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed 25 per centum of his disposable earnings for that week." 15 U.S.C. § 1673(a)(1). Thus, if Clayton is correct that his "retirement" benefits are more akin to "earnings," then they would only be subject to a 25% garnishment. The CCPA 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." 15 U.S.C. § 1672(a). The Government notes this Court's decisions in United States v. De Cay, 2009 WL 36623 (E.D.La. Jan. 5, 2009) & 639 F. Supp. 2d 686 (E.D.La.2009), which held that pension benefits are not "earnings" under the CCPA, and thus should be subject to 100% garnishment. However, the Government acknowledges that De Cay is distinguishable on the ground that the pension benefits in that case were paid via a previously funded pension account, as opposed to the direct payment to Clayton in this case of half-salary without an intermediary retirement account. Nonetheless, the Government argues that the full 100% of Clayton's "retirement" benefits should be subject to garnishment. First, the Government notes that the CCPA definition of earnings hinges on payments for "personal services" rendered. As such, the "retirement" benefits paid to Clayton which admittedly will not and in fact cannot arise from any personal services rendered by Claytonshould not be deemed "earnings" for purposes of the CCPA. Additionally, the Government notes that some cases have focused on the use of the term "workweek" in the CCPA to hold that any retirement benefits paid other than on a weekly basis cannot constitute "earnings" under the CCPA definition. United States v. Belan, 2008 WL 2444496, *4 n. 4 (E.D.Mich. June 13, 2008). Likewise, the Government notes that the purpose of the 25% garnishment limit of the CCPA was to limit the frequent unemployment caused by weekly garnishments. As such, because Clayton will necessarily not be working in order to qualify for his "retirement" benefits, this purpose is inapplicable to him, and those benefits should be garnished to their full amount.
Finally, the Government responds to the schedule of monthly income and expenses attached to Clayton's objection, which ostensibly suggests an argument that the garnishment would pose an undue hardship for Clayton. First, the Government contends that this unsworn document is somewhat confusing. Specifically, Clayton lists $10,000 in taxes owed, but this would not constitute a recurring monthly expense. Second, there was no pre-sentence evidence regarding a $1,200 monthly expense for the support of an adult child. Finally, the Government notes that the PSR indicated that Clayton has substantial liquid assets, none of which are included in the schedule. At this point, the Government has offered Clayton's wife an opportunity to submit, under penalty of perjury, a sworn financial disclosure form to support any claim of hardship, but she has not yet done so. If and when she does, the Government would consider revisiting the hardship issue with the Claytons.
In reply, Clayton argues that if the payment schedule in the J & C is not applicable until after Clayton is released, as the Government contends, then the Court's detailed analysis and imposition of the payment schedule at sentencing would have been meaningless. As such, Clayton argues that the Government is bound by the *835 payment schedule and cannot proceed with the present garnishment. Likewise, Clayton argues that the Government's argument based on the 20 year limitation on restitution orders is a red herring, because at the presently ordered payment rate, Clayton's obligation will be complete in less than 9 years.
As for his alternative argument, Clayton argues that the 25% exemption provided in § 6334(a)(9) applies to both his "retirement" benefits and his accrued sick leave, both of which constituted income that he earned while working, despite the fact that he will receive the income after resigning his commission. Clayton notes the Government's concession that the sick leave pay is covered by the 25% exemption, but contends that there is no difference between the nature of the sick leave paymentswhich the Government now recognizes are covered by the § 6334(a)(9) exemptionand his "retirement" benefits, which the Government continues to argue are 100% garnishable.
Finally, Clayton contends that Ekong did not overrule Roush. Clayton reiterates that the Ekong decision was based on the fact that "there [was] nothing in the [criminal] judgment to the contrary" of the United States' collection efforts in that case. Ekong, 518 F.3d at 286. As such, Clayton reasserts that this holding indicates that a criminal judgment controls the Government's collection efforts, because otherwise the Fifth Circuit's reference to the criminal judgment would have been superfluous. Additionally, Clayton distinguishes the various cases cited by the Government, noting that all of those cases involved criminal judgments that specifically indicated that the restitution amounts were due either immediately upon sentencing or in at least minimum amounts. Clayton argues that the J & C in this case imposes neither of those mandates, and thus the payment schedule in the J & C should preclude the present garnishment.
DISCUSSION
A. The Enforcement Provisions of the MVRA Trump any Payment Schedule Included in the J & C
The Government is correct in its contention that the various enforcement mechanisms provided in the MVRA remain available even in the face of a payment schedule instituted by the district court in its criminal judgment. First of all, it should be noted that the J & C indicates that "[t]he [scheduled] payment is subject to increase or decrease, depending on the defendant's ability to pay." Rec. Doc. 29, p. 4. Thus, to the extent Clayton contends that the payment schedule set forth in the J & C is set in stone and thus precludes the present garnishment, the J & C expressly refutes that argument given the possibility of adjustments to the payment amount.
Likewise, the Fifth Circuit's decision in Ekong governs the instant case, despite Clayton's focus on the court's language regarding the fact that "there [was] nothing in the [criminal] judgment to the contrary." Although this language might command a different result in a case in which the criminal judgment expressly limits the Government's execution options,[4] the J & C in this case does not include any such limitation. While the J & C does set out a payment schedule, that schedule is adjustable. Furthermore, there is no language whatsoever in the J & C that in any way limits or precludes the Government's rights to enforce the restitution order under *836 the MVRA. As such, the Fifth Circuit's analysis in Ekong directly applies to the instant case:
[Defendant] contends that there was no justification for requiring immediate payment because the criminal judgment specified that restitution be paid in installments. This argument is without merit. "The [MVRA] provides the Government authority to enforce victim restitution orders in the same manner that it recovers fines and by all other available means" and, under 18 U.S.C. § 3613(a), it may collect "restitution `in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law,'" including the Federal Debt Collection Procedures Act of 1990. United States v. Phillips, 303 F.3d 548, 550-51 (5th Cir.2002). The attorney general is required by the MVRA to enforce victim restitution orders "aggressively." Id. at 551. There is nothing in the criminal judgment to the contrary.
Ekong, 518 F.3d at 286. As such, the Court agrees with the Government that Ekong governs the instant garnishment proceedings.
Furthermore, Clayton's argument regarding the lack of any "immediately payable" language in the J & C is unavailing. First of all, while neither the J & C nor the sentencing colloquy expressly indicated that restitution would be due immediately, the J & C does indicate that "payment of the restitution of $608,727.00 shall begin with a lump sum payment of $75,000.00 to be paid by April 3, 2009, and to continue while the defendant is incarcerated. Any unpaid balance upon release from incarceration shall be paid at a rate of $5,000.00 per month." Rec. Doc. 29, p. 4. This language clearly indicates that payment will commence immediately and continue through Clayton's incarceration. In fact, the language of the J & C clearly states that the monthly payment schedule on which Clayton relies for his arguments against garnishment does not even commence until his release from prison. As such, Clayton's arguments based on the payment schedule are unconvincing in the face of Ekong and the various statutory arguments set forth by the Government. Accordingly, Clayton's objection to the garnishment on these grounds should be overruled.
Furthermore, even if Ekong were not binding, to the extent that the Roush decision from the Northern District of Texas supports Clayton's position, the case is distinguishable. First, the criminal judgment in Roush specifically indicated that "`payment of the total criminal monetary penalties are [sic] due' per the [court imposed] schedule; [and thus] the Court construe[d] its judgment as imposing a restitution obligation that [was] due only as provided by the Schedule of Payments." Roush, 452 F.Supp.2d at 681. Alternatively, in this case, the J & C does not specifically indicate that the payment schedule is the sole means of collecting the restitution amount. Additionally, the Roush court noted that its decision was based in part on the fact that there was no indication as to whether the funds sought to be garnished by the Government were the same funds listed in the presentence report ("PSR"). Id. at n. 7. As such, the Roush court stated that allowing garnishment in light of the confusion regarding the identity of the funds would frustrate the Court's independent obligations under MVRA § 3664(f)(2), which requires a court to establish a payment schedule after consideration of the totality of the defendant's financial state. Id. There is no such confusion at issue in this case, and thus this basis for the Roush holding is inapplicable. Finally, the Roush court noted that the AO-245B form on which the Schedule of Payments was entered specifically differentiates between *837 amounts due immediately and amounts due as scheduled. Id. at n. 9. Additionally, the form provides a default provision that "[u]nless the court has expressly ordered otherwise, if [the] judgment imposes imprisonment, payment of criminal monetary penalties is due during imprisonment." Id. The Roush court noted that the form included in the defendant's criminal judgment expressly ordered that payment was not due during the defendant's imprisonment. Id. Thus, because the J & C in this case does expressly indicate that payment is due during imprisonment, Roush is inapplicable.[5]
B. Applicability of the 25% Garnishment Limit
Clayton argues alternatively that only 25% of his "retirement" benefits can be garnished, as they constitute "earnings" under 26 U.S.C. § 6334(a)(9) of the IRS Code.
The MVRA provides that a judgment of restitution may be enforced under the same statutory provisions that govern the enforcement of criminal fines. 18 U.S.C. § 3664(m)(1)(A)(I). The relevant provisions for enforcement of fines/restitution provide the following exceptions:
Notwithstanding any other Federal law... a judgment imposing a fine [and/or restitution] may be enforced against all property or rights to property of the person fined, except that
(1) property exempt from levy for taxes pursuant to section 6334(a)(1), (2), (3), (4), (5), (6), (7), (8), (10), and (12) of the Internal Revenue Code of 1986 shall be exempt from enforcement of the judgment under Federal law;
* * *
(3) the provisions of section 303 of the [CCPA] (15 U.S.C. 1673) shall apply to enforcement of the judgment under Federal law or State law.
18 U.S.C. § 3613 (emphasis added). Section 6334 of the IRS Code lists several specific categories of property that are exempt from tax levy, and as such are exempt from enforcement under the MVRA. 26 U.S.C. § 6334. However, conspicuously absent from the list of IRS Code exemptions is § 6334(a)(9)the very exemption on which Clayton relies to oppose the 100% garnishment of his "retirement" benefits. This section exempts from tax levy
[a]ny amount payable to or received by an individual as wages or salary for personal services, or as income derived from other sources, during any period, to the extent that the total of such amounts payable to or received by him during such period does not exceed the applicable exempt amount determined under subsection (d).
Id. Thus, to the extent Clayton argues that his "retirement" benefits are exempt from garnishment under the MVRA because they constitute "wages, salary, and other income" under § 6334(a)(9), the plain language of the MVRA's incorporation of § 6334 except for subsection (a)(9) defeats that position. Accordingly, Clayton's "retirement" benefits, to the extent they constitute "wages, salary, and other income" as Clayton himself arguesare clearly not exempt from full garnishment under the MVRA. As such, Clayton's objections on this ground should be overruled.
Although Clayton did not clearly argue the point, the Court will also address the possible argument that Clayton's "retirement" benefits constitute wages or earnings that should be partially exempt *838 from garnishment under the CCPA as incorporated by the MVRA. The CCPA provides in pertinent part that "[e]xcept as [otherwise provided] ... the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed... 25 per centum of his disposable earnings for that week." 15 U.S.C. § 1673. The CCPA 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." Id. at § 1672(a). While the Government argues that Clayton's "retirement" benefits may not constitute "earnings" for purposes of the CCPA, and thus should be fully garnishable, a much more simple reason exists to allow the full garnishment of those benefits. Specifically, § 1673(b) of the CCPAwhich provides exceptions to the exemptions enumerated in subsection (a), including the "earnings" exceptionspecifically indicates that "[t]he restrictions of subsection (a) of this section do not apply in the case of ... (C) any debt due for any State or Federal tax." 15 U.S.C. § 1673(b)(1)(C) (emphasis added). As such, even if Clayton's "retirement" benefits did constitute earnings under the CCPAwhich the Court does not decide those earnings would still be subject to full garnishment under § 1673(b)(1)(C), as incorporated by the MVRA. Accordingly, to the extent Clayton has argued for a 25% limitation on the garnishment of his "retirement" benefits, the argument fails in the face of § 1673(b)(1)(C), and his objection should be overruled.
With respect to the Government's implication of any possible hardship argument by Clayton, no relevant evidence is before the Court at this time, and thus the Court will not address the issue of hardship. Accordingly,
IT IS ORDERED that Clayton's Opposition to Government's Motion to Execute Garnishment against Defendant's Assets in Contravention of Court's Judgment (Rec.Doc.49) is hereby OVERRULED.
IT IS FURTHER ORDERED that the Government's request for entry of a final order of garnishment is GRANTED under 28 U.S.C. § 3205(c)(7).
IT IS FURTHER ORDERED that the garnishee, NOBRA, pay to the United States:
25% of $30,000 in Clayton's June earnings (i.e., $7,500);
25% of $685.00 monthly from June 2009July 2010 in Clayton's share of pilots' initiation fees ($2,400);
25% of $30,000 monthly from July December 2009 in Clayton's accrued unused sick leave ($45,000); and
100% of $15,000 monthly for life in Clayton's retirement payments.
Payments should continue until Clayton's restitution obligation is satisfied. Payments to United States as ordered above shall be made to the Clerk of Court, Eastern District of Louisiana, Financial Unit, Hale Boggs Federal Building, 500 Poydras St., New Orleans, LA 70130 and shall bear the name of Clifford Clayton and the case number included in the caption of this case.
NOTES
[1] According to Clayton, NOBRA is simply an administrative and financial clearing house for river pilots, who actually work as independent contractors and merely channel by mutual agreement all of their individual bills (issued in their own names) through NOBRA. NOBRA, in turn, forwards the individual bills to ships' agents for payments, which are sent directly to NOBRA. NOBRA then deducts its expenses and divides the rest among the pilots according to an agreed daily rate multiplied by the days a pilot is on the work schedule. As a result of this system, NOBRA does not actually generate income, make investments, or pay taxes; it merely distributes all money received from active pilots' billing to all pilotsactive and inactivein the year the money is received after deducting expenses such as sick leave, vacation, and retirement income from the active pilots' gross income.
Each pilot is entitled by agreement to 15 sick days and two weeks vacation per year. Additionally, a pilot who has worked at least 25 years may elect to become inactive and receive half pay. This elective half pay system constitutes the pilots' retirement benefits. Each active pilot works roughly the same number of days per year and receives a 1099 form at the end of the year, showing the value of shares disbursed to him during the year minus the NOBRA deductions (i.e. NOBRA overhead and deferred income payments to sick, vacationing, or retired pilots). An active pilot's 1099 form does not include the amounts deducted by NOBRA; however, the form does show payments made to a pilot for sick or vacation leave, and also shows payments made during retirement.
As a final note, active pilots can, by mutual agreement, "stand each others watch"that is, take over another pilot's schedule in return for an agreedupon split of the substituted pilot's income. Clayton notes that during the year prior to his sentencing, he had not stood his watches due to his treatment for serious medical conditions. As such, Clayton only received $180,000 of his usual $360,000 yearly salary.
[2] The Government notes that, although it initially intended to garnish the full 100% of Clayton's accrued sick leave benefits, further research revealed that only 25% could be garnished, and thus acquiesced to the 75% release to Clayton. Thus, while Clayton's memorandum indicates that NOBRA continues to withhold $12,000 in sick leave and retirement income payments per the Government's instruction, this is apparently no longer the case as indicated by the Government's response. As such, it appears that only Clayton's retirement benefits remain at issue.
[3] This section lays out the framework by which the Court determines the amount and terms of a criminal restitution order.
[4] It should be noted that, even if a district court's criminal judgment did attempt to limit the Government's execution options under the MVRA, it is unclear if such a limitation would be binding in the face of the statutory language.
[5] The Court further notes that, to the extent the lack of any "immediately payable" language in the J & C may support Clayton's arguments, the Court could simply amend the J & C to include a provision that the restitution amount is immediately payable.