United States District Court, W.D. Virginia, Harrisonburg Division
Elizabeth K. Dillon, United States District Judge
Owen F. Silvious, who is currently serving a term of
supervised release and being supervised by the United States
Probation Office in this district, recently filed a pro se
motion titled as a “Motion for Order Directing United
States Attorney to Stop Deducting Funds from my Social
Security Benefits.” (Dkt. No. 28.) The motion has been
fully briefed. Silvious has requested a hearing, the United
States opposes any hearing, and the court concludes that no
hearing on the motion is necessary. For the reasons discussed
herein, the motion will be denied.
restitution obligations in this criminal case are
significant. In 2005, he was convicted of five counts of mail
fraud and sentenced in the Eastern District of Wisconsin, and
the amended judgment in that case required that he pay
restitution in the amount of $1, 200, 447.70, as well as a
$500 special assessment. (Dkt. No. 1-2.) He has paid the
special assessment, but still owes a significant portion of
the restitution award. (Dkt. No. 21 (showing an outstanding
on the balance of the restitution only as of March 25, 2015,
in the amount of $681, 827.60).)
served his original term of imprisonment and was released to
serve his three-year term of supervised release. In March
2015, jurisdiction over the defendant was transferred to this
court. On May 15, 2015, the court entered a judgment revoking
Silvious's supervised release term after finding him
guilty of violating the terms of his release. The court
imposed a seven-month term of custody in the Bureau of
Prisons, to be followed by a supervised release term of
twenty-nine months, but otherwise left intact all aspects of
the original judgment, including Silvious's restitution
obligations. (Judgment, Dkt. No. 25.) Like the amended
judgment in his criminal case, this court's judgment
ordered that he pay $100 monthly while on supervision.
(Id. at 6.)
serving his seven-month sentence, Silvious was released from
custody and began his current supervised release term. In May
2016, the monthly amount of his payment was increased by the
court to $200, after Silvious and his probation officer
agreed to this amount and the probation officer requested the
change. (Dkt. No. 26; see also Motion 4, Dkt. No. 28
(noting that the $200 monthly payment was “mutually
agreed by Silvious and [his probation officer]”).)
Then, in May 2017, the United States, through its Treasury
Offset Program (TOP), began deducting from his monthly social
security benefits a monthly payment of $93.00, consisting of
$78.00 in payment toward restitution and a $15.00 fee. It is
this TOP deduction from his social security benefits that
Silvious challenges in his motion.
authorizes the Treasury Department “to collect non-tax
debts by withholding funds paid out by other federal
agencies.” Reeves, 526 F.3d at 738 n.3;
see 31 U.S.C. § 3716(a); 31 C.F.R. §
285.5. Pursuant to the TOP, any federal agency with a claim
against the debtor, after notifying the debtor that the debt
is subject to administrative offset and providing an
opportunity to dispute the debt or make arrangements to pay
it, may collect the debt by administrative offset.
See 31 U.S.C. § 3716(a), (c)(6). In order to do
so, the creditor agency must certify to Treasury that the
debt is eligible for collection by offset and that all due
process protections have been met. See 31 C.F.R.
§ 285.5(d)93)(ii), (d)(6). If properly certified, the
Treasury Department must administratively offset the debt.
See 31 U.S.C. § 3716 (c)(1)(A).
Johnson v. U.S. Dep't of Treasury, 300 F.
App'x 860, 862 (11th Cir. 2008) (footnotes omitted).
admits that “it is true that the United States Attorney
can have deductions made from [s]ocial [s]ecurity
benefits” to satisfy restitution obligations, but he
contends that the TOP offset against his social security
benefits is nonetheless improper for two independent reasons.
First, he argues that his debt was not delinquent for 180
days because he has been making regular payments on his
restitution obligations, and thus the prerequisites for
offset have not been satisfied. (Dkt. No. 28 at 3-4.) Second,
he claims that he did not receive any notice from the United
States Attorney for the Western District of Virginia and that
such notice is required before the offset can begin.
motion, he cites to, attaches, and relies on 31 U.S.C. §
3716(a) and 31 C.F.R. § 285.4(d) as requiring notice to
him. In pertinent part, that statute and regulation require
two types of notice. The first is a pre-offset notice, which
the United States Attorney's office was to give to
Silvious, informing him of the type of payment that would be
offset, among other information. 31 C.F.R. §
285.4(f)(1). The United States Attorney's office then had
to certify to the Department of the Treasury that “the
debt is past-due, legally enforceable, and that the creditor
agency has provided the debtor with notice and an opportunity
for a review in accordance with the provisions of 31 U.S.C.
§ 3716(a) and other applicable law.” Id.
The second type of notice is a post-offset notice, in which
the official conducting the offset must notify Silvious of
the occurrence of the offset. 31 C.F.R. § 285.4(f)(2).
United States filed a written response opposing
Silvious's motion. The United States contends that
Silvious was given notice of the offset on January 5, 2007,
by the Financial Litigation Unit in the Eastern District of
Wisconsin, and that he was placed in the TOP program 60 days
after that notice. The United States maintains that he was
properly placed in this program, that his current payments of
$200 are not a substitute for the TOP offset, and that his
recent financial statements show that “his financial
status is sufficient” to meet both obligations.
(Response 2, Dkt. No. 29.)
reply, Silvious disputes that he ever received pre-offset
notice and further disputes that he was placed in the TOP
program prior to 2017. He repeatedly accuses the United
States Attorney for the Western District of Virginia of
“intentionally and willfully” ...