United States v. Mayer

2010 DNH 205

• Court: District Court, D. New Hampshire
• Decided: December 3, 2010
• Docket: 04-CR-100-SM
• Status: Published

Opinion

United States v. Mayer 04-CR-100-SM 12/03/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, Government

v. Case No. 04-cr-100-l-SM Opinion No. 2010 DNH 205 Robert Maver, Defendant

O R D E R

Defendant, Robert Mayer, moves for a hearing at which he

hopes to contest the government's efforts to collect a debt owed

under a restitution order that was included as part of his

criminal sentence. Mayer was previously convicted of conspiracy

to defraud the United States, 18 U.S.C. § 371, and accepting

bribes as a public official, 18 U.S.C. § 201(b)(2). He was

ordered to pay restitution to the United States Department of

Veteran's Affairs in the amount of $419,400.

The government is seeking to collect that debt by offsetting

the amount owed, to the extent allowed by law, against

Defendant's Social Security and government retirement benefits.

The Treasury Offset Program (TOP), see 31 U.S.C. § 3716, subjects

to offset "all funds payable by the United States," 31 U.S.C.

§ 3701(a)(1), to an individual who owes delinquent federal debts,

unless the payment is exempted from offset by statute or regulation. Before referring a debt to the Treasury Department

for offset, however, the collecting agency (here, the Justice

Department) must provide the debtor with: 1) written notice of

the type and amount of the debt, the intention to collect through

administrative offset, and an explanation of the debtor's rights;

2) an opportunity to inspect and copy records relevant to the

debt claim; 3) an opportunity for agency review of the claim; and

4) an opportunity to negotiate an agreement to repay the amount

owed. 31 U.S.C. § 3716. Presumably, the government complied

with those requirements (defendant does not say otherwise).

This is not a case in which the government is attempting to

collect a debt owed a private party — Mayer's debt is owed to the

government. It is also plain that Mayer is not seeking

modification of a periodic payment order relative to his

restitution obligation (nor would that likely prove to be of much

use to him here, see e.g. United States v. Weissenbach, 2010 WL

2246177 (N.D.N.C. 2010)). Rather, Mayer seeks relief that is

available, as a practical matter, only from the collecting agency

— he seeks a less burdensome offset, or some favorable agreement

with respect to the government's lien on his real estate that

would allow him to access some of the equity in the property.

The collecting agency may offset less than the law permits, but

it is not required to do so. That is a matter of administrative

2 discretion, and the collecting agency is where Mayer must press

his request.

A criminal restitution order may be enforced "in accordance

with the practices and procedures for the enforcement of a civil

judgment under Federal law or State law." 18 U.S.C. § 3613(a)

and (f). The TOP is plainly an administrative practice and

procedure under federal law that, by its terms, is available as a

means to collect debts owed the United States. The procedure is

established by statute and administered under implementing

regulations, which provide due process to debtors against whom

offset is sought. While government counsel hyperbolically (and

incorrectly) argues that "the offset process is an administrative

process beyond the jurisdiction of this Court," still, defendant

must, in the first instance, seek administrative relief as

prescribed by the statute and implementing regulations. Judicial

review of administrative processes and decisions is available, of

course, but it is limited, and to obtain relief defendant would

generally be required to show arbitrary, capricious, or plainly

unlawful conduct on the part of the administrative decision­

makers .

Given the representations made by the government, it appears

that the applicable statutes and regulations have been (or are

3 being) fully complied with, and that defendant is unlikely to

have a valid claim to relief from the offsets sought under the

TOP. In any event, to the extent defendant is seeking relief

from the government's collection of his restitution debt under

the TOP, he has asserted no facts or legal authority that would

support a meritorious claim.

Conclusion

The motion for hearing (document no. 29) and motion for

appointment of counsel (document no. 28) are necessarily denied.

SO ORDERED.

Steven J.kMcAuliffe Chief Judge

December 3, 2010

cc: Robert M. Kinsella, AUSA Michael T. McCormack, AUSA Robert Mayer, pro se 4 Hidden Road Salem, NH 03079