agency's administrative costs incurred in executing legal process to which the agency is subject under this section shall be deducted from the amount withheld from the pay of the employee concerned pursuant to the legal process." Plaintiff's argument here is that DOD is welcome to deduct an administrative fee from the employee's pay, but it must not deduct the fee from the amount paid to the creditor, because that would violate § 5520a(b).
Plaintiff's interpretation of the statute cannot be squared with the plain meaning of the language Congress used. The statute commands that administrative costs be collected, not from the employee, but "from the amount withheld from the pay of the employee . . . ." Before the 1996 amendment, the statute provided that administrative costs could "be added to the garnishment." 5 U.S.C. § 5520a (1994) (emphasis added). The amendment changed the law, and Congress clearly intended the change. The Senate Report recites the purpose of the amendment to "shift the burden for paying administrative costs incurred incident to garnishment actions from the employee to the creditor." S. Rep. No. 112, 104th Cong., 1st Sess., 810 (1995).
Even if the language of this part of the statute is clear, plaintiff argues, requiring creditors to pay administrative costs is inconsistent with the agency's obligation to honor the garnishment "in the same manner and to the same extent as if the agency were a private person," 5 U.S.C. § 5520a(b) -- at least in the District of Columbia, where an employer is required to withhold and pay to the creditor a percentage of the employee's wages until the "attachment is wholly satisfied." D.C. Code § 16-573(a) & (a)(2). The argument is erroneous. Section 5520a(b) does subject the pay of federal employees to the legal process applicable to private employers under state law, see First Virginia Bank v. Randolph, 324 U.S. App. D.C. 29, 110 F.3d 75, 79 (D.C. Cir. 1997), but it also specifically provides that legal process to which an agency is subject must comply with all the provisions of § 5520a. One of those provisions is § 5520a(j)(2), which imposes administrative costs upon creditors.
Plaintiff next argues that DOD's regulation imposing a $ 75 fee is invalid for failure to follow notice and comment procedures. The answer to that argument is that an agency need not conduct notice and comment procedures in adopting interpretive rules unless notice and comment rulemaking is otherwise required by statute. 5 U.S.C. § 553(b) (1996). The DOD regulation here is not a legislative rule creating "new law, rights or duties," but is rather an interpretive rule that goes "to what the administrative officer thinks [the enabling statute] means." General Motors Corp. v. Ruckelshaus, 239 U.S. App. D.C. 408, 742 F.2d 1561, 1565 (D.C. Cir. 1984). Nor does the regulation "use wording consistent only with the invocation of its general rulemaking authority to extend its regulatory reach," another hallmark of a substantive rule. Syncor Int'l Corp. et al. v. Shalala, 326 U.S. App. D.C. 422, 127 F.3d 90, 95, 1997 U.S. App. LEXIS 29780 (D.C. Cir. 1997). Rather, DOD interpreted its powers under § 5520a(j)(2) and gave notice in the Federal Register on October 1, 1996 that an administrative fee of $ 75 would be charged to the creditor in a garnishment action. 61 Fed. Reg. 53722-02. The "new burdens" of which plaintiff complains were created not by DOD's notice, but by the statute, which DOD implemented. Notice and comment were not required.
Plaintiff also argues that only the Office of Personnel Management ("OPM"), and not the DOD, had authority to adopt regulations under § 5520a. That argument also fails. In accordance with the statute, the President delegated rulemaking authority to OPM. Executive Order No. 12897, 59 Fed. Reg. 5517 (Feb. 3, 1994). OPM then adopted 5 C.F.R. § 582.501, which ordered agency heads to issue rules under § 5520a that were "consistent with" any OPM rules. Accordingly, after Congress amended § 5520a(j) to allow agencies to charge administrative fees to creditors, DOD published its notice in the Federal Register, supra. Plaintiff does not refer to any regulation promulgated by OPM with which DOD's rule is inconsistent.
Finally, plaintiff suggests that the deduction of an administrative fee from the amount withheld from a federal employee's wages amounts to a taking without just compensation. Plaintiff's argument ignores two critical facts -- that garnishment was the means plaintiff chose for collecting its judgment, and that plaintiff received a service from the government in exchange for the fee. The federal government did nothing more than play the role of collection agent. See Randolph, 110 F.3d at 79-80 (citing Loftin v. Rush, 767 F.2d 800, 809 (11th Cir. 1985)).
* * * *
An appropriate order accompanies this memorandum.
United States District Judge
Dated: October 30, 1997
Upon consideration of the government's motion to reconsider, plaintiff's opposition, supplemental memoranda submitted by the parties, and the entire record, it is this 30th day of October, 1997,
ORDERED that government's motion to reconsider is granted. It is
FURTHER ORDERED that the Superior Court's order of March 17, 1997, is vacated and plaintiff's motion to compel compliance with the writ of attachment is denied. It is
FURTHER ORDERED that this case is dismissed.
United States District Judge