June 28, 1979

79-46 MEMORANDUM OPINION FOR THE ACTING

COMMISSIONER, IMMIGRATION AND

NATURALIZATION SERVICE

Due Process—United States (as Creditor)—

Withholding Wages of Federal Employee (as

Debtor) in Satisfaction of Debt Allegedly Owed the

Government

This responds to your request for our guidance whether the Immigration and Naturalization Service (INS) must accord its employees a full 

evidentiary hearing before INS withholds, pursuant to 5 U.S.C. 

§ 5512(a),1 the wages of such employees in satisfaction of a debt allegedly 

owed the United States. In a conversation with your Office we were informed that more precisely the question is what kind of due process hearing is required. Before we prooeed with our legalanalysis and discussion it 

would be useful to delineate briefly the relevant factual situation. The INS 

believed that one of its employees was obligated to reimburse the Government for the loss of certain funds for which INS deemed her accountable. 

Based upon an investigation, INS decided that the employee was accountable for $2,175.00, funds found to be missing from a district office. Of 

that amount, $655.00 was recovered, thus leaving the amount unaccounted for at $1,520.00. The investigation concluded that the employee 

failed to follow adequate procedures to safeguard the funds.

The Federal Bureau of Investigation, by way of a separate investigation, 

concluded that the evidence was inconclusive and thus recommended 

against criminal prosecution. The INS, however, decided to recover the 

missing $1,520.00 by withholding from the employee’s pay a designated 

sum each pay period. We understand that it so advised the employee

1 That provision reads as follows:

The pay of an individual in arrears to the United States shall be withheld until he has accounted for and paid into the Treasury of the United States all sums for which he is liable. 

See 26 Op. A tt’y. Gen. 77 (1906).

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who responded by filing a Federal civil action seeking to enjoin INS from 

withholding any part of the pay. The U.S. Attorney handling the case advised INS that he believed case law requires a “ due process” hearing prior 

to administrative wage-withholding. Thereafter the Government and the 

employee stipulated that the case should be dismissed without prejudice 

and that INS, which had not yet withheld any pay, would accord the 

employee a fulll evidentiary hearing through its grievance procedures. 

While this stipulation moots your questions as to this particular case, you 

state that you seek guidance for future cases.

The Supreme Court in recent years has considered in a variety of circumstances what due process requirements apply where deprivation of 

property interests are involved. The case that is most relevant here is 

Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). That case dealt 

with hearing requirements involving garnishment of wages. The court considered a Wisconsin law allowing a garnishment to be instituted by the 

creditor’s lawyer by requesting the clerk of the state court to issue a summons. Service of the summons upon the garnishee (the employer) effectively froze the employee’s (the alleged debtor’s) wages.

The Court stated:

[The wages] may, it is true, be unfrozen if the trial of the main 

suit is ever had and the wage earner wins on the merits. But in the 

interim the wage earner is deprived of his enjoyment of earned 

wages without any opportunity to be heard and to tender any 

defense he may have, whether it be fraud or otherwise. [395 U.S. 

at 339.]

The Court noted that there may be extraordinary circumstances justifying 

a summary procedure, e.g., in order to protect the creditor against permanent loss. However, it found no such circumstances in the case.2 In analyzing the requirements of due process with respect to attachments and 

other like processes, the Court stressed the unique nature of wages—“ a 

specialized type of property presenting distinct problems in our economic 

system.” Id. at 340. The Court stated:

[A] prejudgment garnishment of the Wisconsin type may as a 

practical matter drive a wage-earning family to the wall. Where 

the taking of one’s property is so obvious, it needs no extended 

argument to conclude that absent notice and a prior hearing * * * this prejudgment garnishment procedure violates the 

fundamental principles of due process. [Id. at 341-342.]

Hence what the Government seeks is essentially a recoupment or a 

setoff. However, this does not distinguish it from garnishment since both 

may “ as a practical matter drive a wage-earning family to the wall.”

1 In the usual case there probably would be no extraordinary circumstances warranting 

such a summary procedure because the persons from whom the withholdings are to be made 

are Government employees who have a substantial interest in their jobs and are unlikely to 

abscond to avoid repayment.

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The Court’s evident concern was that wages should not be withheld 

without a due process hearing. This is because wages, in most cases, sustain the wage earner and his family from week to week and any deprivation thereof could have potentially severe consequences.3

It may be noted that 5 U.S.C. § 5512, the provision authorizing the 

withholding here, does not expressly provide for a hearing of any kind. 

The section speaks of an “ individual in arrears to the United States,” not 

of one suspected of being in arrears. But it does not deal with the due process requirement governing the determination of the individual’s liability. 

Accordingly, the process involved in the determination of liability must be 

considered apart from § 5512. Further, the Sniadach rule is constitutionally based and cannot be undermined by statute. It is well established 

that if at all possible a statute will be construed to avoid constitutional 

difficulties. Thus, where a provision entails depriving individuals of 

property rights but fails to expressly provide for notice and a hearing, 

it must be read as embodying the procedural rights implicit in the due 

process clause. Pan American World Airways, Inc. v. Marshall, 439 F. 

Supp. 487 (S.D.N.Y. 1977). By reading § 5512 as consistent with the due 

process clause it becomes clear that notice and a hearing are necessary 

before administrative withholding of a Federal employee’s pay can be 

effected.

Your precise question, as noted above, is whether a “ full evidentiary 

hearing” is required. Although Sniadach did not discuss in detail the hearing requirements needed for a wage-withholding, the Court did hold that 

an “ opportunity to be heard and to tender any defense” were required. Id.

at 339. It is our opinion that a hearing similar to that required in Goldberg

v. Kelly, 397 U.S. 254 (1970) (termination of welfare benefits) is necessary 

here, that is, a hearing closely approximating a judicial trial. The 

Goldberg hearing procedure was summarized in Mathews v. Eldridge, 424 

U.S. 319, 325 n. 5 (1976) as follows:

(1) “ timely and adequate notice detailing the reasons for a proposed [Government action]” ; (2) “ an effective opportunity * * * to defend by confronting any adverse witnesses 

and by presenting his own arguments and evidence orally” ;

(3) retained counsel, if desired; (4) an “ impartial” decisionmaker; (5) a decision resting “ solely on the legal rules and 

evidence adduced at the hearing” ; (6) a statement of reasons for 

the decision and the evidence relied on. 397 U.S., at 266-271.

1 Under the Wisconsin procedure, up to one-half of a debtor’s wages could be frozen 

under the garnishment procedure. Thus, an argument can be made that freezing or 

withholding a significantly lesser portion o f a person’s wages would not require the same 

level of due process protection. However, we believe that the better view is to consider any 

deprivation o f wages as substantial. Indeed, the Court in Sniadach did not appear to consider 

the potential severity o f the deprivation with respect to individual debtors. Rather, the focus 

was on the importance of wages as a general matter.

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The Court in Mathews stated that the dictates of due process generally 

require consideration of three distinct factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest 

through the procedures used, and the probable value, if any, of 

additional or substitute procedural safeguards; and finally, the 

Government’s interest, including the function involved and the 

fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Id. at 355.]

The private interest that may be adversely affected here by your agency’s 

action is potentially substantial. This is because wages are “ a specialized 

type of property presenting distinct problems in our economic system.” 

Sniadach, at 340.

Moreover, as we understand it, the proposed wage-withholding involved here would constitute the final agency action. Thus, unless the 

employee sought judicial review and prevailed, the administrative deprivation will deprive the employee of the withheld wages. This is unlike 

Goldberg v. Kelly and Mathews v. Eldridge, in that the official action in 

those cases was temporary and subject to further administrative review 

which afforded the claimant an evidentiary hearing much like that ordered 

in Goldberg.* Accordingly, the deprivation would be final insofar as 

agency action was concerned so that heightened solicitude for the private 

interest is required. See, North Georgia Finishing, Inc. v. Di-Chem, Inc.,

419 U.S. 601, 606 (1975), where the Court noted that “ the length or severity of a deprivation of use or possession [of property] would be another 

factor to weigh in determining the appropriate form of hearing * *

Concerning the second factor in Mathews, i.e., the value of additional 

procedural safeguards, it would seem that a wage-withholding hearing 

might frequently involve disputed factual issues and questions of credibility. Thus, the hearing must be structured so as to provide for their resolution. Mathews at 343-345. We do not know, of course, whether such 

issues will arise in a particular case.

Finally, the cost to the Government of a Goldberg-type evidentiary 

hearing probably would not result in a significant burden on the Government. The Court in Mathews noted that the cost to the Government of 

providing statutory benefits to ineligible recipients pending decision would 

not be insubstantial. 424 U.S. at 347. This concern would be inapplicable 

in wage-withholding actions because the employee is otherwise clearly entitled to his or her wages. Further, it seems unlikely that the costs of the 

hearings themselves would impose a significant burden on the Government.

4 While the welfare recipient in Goldberg was entitled to an evidentiary hearing, the 

primary issue was whether the hearing was required before the termination o f benefits or 

whether termination could be made subject to a subsequent evidentiary hearing. 397 U.S. at 

259-260.

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For these reasons, we believe that a Goldberg v. Kelly-type hearing is required in administrative wage withholdings.

Le o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

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