MARK W. BENNETT, District Judge.
On November 10, 2004, an Information was filed against defendant Joyce Ashcraft charging her with making a false statement to the United States Department of Housing and Urban Development, in violation of 18 U.S.C. § 1001, making a false statement on a social security application, in violation of 18 U.S.C. § 1001, identity theft, in violation of 18 U.S.C. § 1029(a)(2), and bank fraud, in violation of 18 U.S.C. § 1344. On November 16, 2004, Ashcraft pleaded guilty to all four counts of the Information and on May 5, 2005, the Honorable Linda R. Reade sentenced defendant Ashcraft to a 108 month term of imprisonment to be followed by 60 months of supervised release. Defendant Ashcraft was also ordered to pay a $400 special assessment and $134,310.62 in restitution to 73 victims.
On February 9, 2012, Principal Life Insurance Company ("Principal") was served with a Writ of Continuing Garnishment, pursuant to 28 U.S.C. § 3205, by the prosecution seeking to garnish payments defendant Ashcraft has been receiving while incarcerated from her former employer's long term disability policy. On March 12, 2012, defendant Ashcraft filed her pro se Objection to Garnishment (docket no. 75). In her objection, defendant Ashcraft disputes the amount of her disability payments that may be garnished under the Consumer Credit Protection Act ("CCPA"), 15 U.S.C. § 1672(a). On March 28, 2012, the prosecution filed its response to defendant Ashcraft's objection. The prosecution argues that the disability payments are not subject to a payment limitation found in the CCPA because they are not earnings as defined by the CCPA.
Defendant Ashcraft's pro se Objection to Garnishment was referred to United States Magistrate Judge Jon S. Scoles, pursuant to 28 U.S.C. § 636(b). On April 10, 2012, Judge Scoles conducted a hearing on Ashcraft's objection. On April 24, 2012, Judge Scoles filed a Report and Recommendation in which he recommends that defendant Ashcraft's Objection to Garnishment be denied. In his Report and Recommendation, Judge Scoles concluded that defendant Aschraft's disability benefits are "property" rather than "earnings" under the CCPA and the Federal Debt Collection Procedure Act ("FDCPA"), 28 U.S.C. § 3002 et seq. Judge Scoles further concluded that as property, the disability benefits are not subject to the garnishment restrictions found in 15 U.S.C. § 1673(a) and not exempt from garnishment as "workmen's compensation" benefits. Therefore, Judge Scoles recommended that defendant Ashcraft's objection be denied.
On May 10, 2012, and May 11, 2012, defendant Ashcraft filed an objection to Judge Scoles's Report and Recommendation. The prosecution has not filed a response to defendant Ashcraft's objections. I, therefore, undertake the necessary review of Judge Scoles's recommended disposition of defendant Ashcraft's Objection to Garnishment.
In his Report and Recommendation, Judge Scoles found the following facts:
Report and Recommendation at 2-3. Upon review of the record, I adopt all of Judge Scoles's factual findings.
I review the magistrate judge's report and recommendation pursuant to the statutory standards found in 28 U.S.C. § 636(b)(1):
28 U.S.C. § 636(b)(1) (2006); see Fed. R. Civ. P. 72(b) (stating identical requirements); N.D. IA. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate judge but not articulating any standards to review the magistrate judge's report and recommendation). While examining these statutory standards, the United States Supreme Court explained:
Thomas v. Arn, 474 U.S. 140, 154 (1985). Thus, a district court may review de novo any issue in a magistrate judge's report and recommendation at any time. Id. If a party files an objection to the magistrate judge's report and recommendation, however, the district court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). In the absence of an objection, the district court is not required "to give any more consideration to the magistrate's report than the court considers appropriate." Thomas, 474 U.S. at 150.
De novo review, of course, is nondeferential and generally allows a reviewing court to make an "independent review" of the entire matter. Salve Regina College v. Russell, 499 U.S. 225, 238 (1991) (noting also that "[w]hen de novo review is compelled, no form of appellate deference is acceptable"); see Doe v. Chao, 540 U.S. 614, 620-19 (2004) (noting de novo review is "distinct from any form of deferential review"). The de novo review of a magistrate judge's report and recommendation, however, only means a district court "`give[s] fresh consideration to those issues to which specific objection has been made.'" United States v. Raddatz, 447 U.S. 667, 675 (1980) (quoting H.R. Rep. No. 94-1609, at 3, reprinted in 1976 U.S.C.C.A.N. 6162, 6163 (discussing how certain amendments affect 28 U.S.C. § 636(b))). Thus, while de novo review generally entails review of an entire matter, in the context of § 636 a district court's required de novo review is limited to "de novo determination[s]" of only "those portions" or "specified proposed findings" to which objections have been made. 28 U.S.C. § 636(b)(1); see Thomas, 474 U.S. at 154 ("Any party that desires plenary consideration by the Article III judge of any issue need only ask." (emphasis added)). Consequently, the Eighth Circuit Court of Appeals has indicated de novo review would only be required if objections were "specific enough to trigger de novo review." Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989). Despite this "specificity" requirement to trigger de novo review, the Eighth Circuit Court of Appeals has "emphasized the necessity . . . of retention by the district court of substantial control over the ultimate disposition of matters referred to a magistrate." Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). As a result, the Eighth Circuit has been willing to "liberally construe[]" otherwise general pro se objections to require a de novo review of all "alleged errors," see Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995), and to conclude that general objections require "full de novo review" if the record is concise, Belk, 15 F.3d at 815 ("Therefore, even had petitioner's objections lacked specificity, a de novo review would still have been appropriate given such a concise record."). Even if the reviewing court must construe objections liberally to require de novo review, it is clear to me that there is a distinction between making an objection and making no objection at all. See Coop. Fin. Assoc., Inc. v. Garst, 917 F.Supp. 1356, 1373 (N.D. Iowa 1996) ("The court finds that the distinction between a flawed effort to bring objections to the district court's attention and no effort to make such objections is appropriate."). Therefore, I will strive to provide de novo review of all issues that might be addressed by any objection, whether general or specific, but will not feel compelled to give de novo review to matters to which no objection at all has been made.
In the absence of any objection, the Eighth Circuit Court of Appeals has indicated a district court should review a magistrate judge's report and recommendation under a clearly erroneous standard of review. See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting when no objections are filed and the time for filing objections has expired, "[the district court judge] would only have to review the findings of the magistrate judge for clear error"); Taylor v. Farrier, 910 F.2d 518, 520 (8th Cir. 1990) (noting the advisory committee's note to Fed. R. Civ. P. 72(b) indicates "when no timely objection is filed the court need only satisfy itself that there is no clear error on the face of the record"); Branch, 886 F.2d at 1046 (contrasting de novo review with "clearly erroneous standard" of review, and recognizing de novo review was required because objections were filed). I am unaware of any case that has described the clearly erroneous standard of review in the context of a district court's review of a magistrate judge's report and recommendation to which no objection has been filed. In other contexts, however, the Supreme Court has stated the "foremost" principle under this standard of review "is that `[a] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Thus, the clearly erroneous standard of review is deferential, see Dixon v. Crete Medical Clinic, P.C., 498 F.3D 837, 847 (8th Cir. 2007) (noting a finding is not clearly erroneous even if another view is supported by the evidence), but a district court may still reject the magistrate judge's report and recommendation when the district court is "left with a definite and firm conviction that a mistake has been committed," U.S. Gypsum Co., 333 U.S. at 395.
Even though some "lesser review" than de novo is not "positively require[d]" by statute, Thomas, 474 U.S. at 150, Eighth Circuit precedent leads me to believe that a clearly erroneous standard of review should generally be used as the baseline standard to review all findings in a magistrate judge's report and recommendation that are not objected to or when the parties fail to file any timely objections, see Grinder, 73 F.3d at 795; Taylor, 910 F.2d at 520; Branch, 886 F.2d at 1046; see also Fed. R. Civ. P. 72(b) advisory committee's note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation."). In the context of the review of a magistrate judge's report and recommendation, I believe one further caveat is necessary: a district court always remains free to render its own decision under de novo review, regardless of whether it feels a mistake has been committed. See Thomas, 474 U.S. at 153-54. Thus, while a clearly erroneous standard of review is deferential and the minimum standard appropriate in this context, it is not mandatory, and I may choose to apply a less deferential standard.
As noted above, defendant Ashcraft has filed objections to Judge Scoles's Report and Recommendation. I, therefore, undertake the necessary review of Judge Scoles's recommended disposition of defendant Ashcraft's Objection to Garnishment.
Defendant Ashcraft objects to Judge Scoles's conclusion that her disability benefits are not earnings. She argues that because her disability benefits are paid to her because she is unable to work, the disability benefits are paid in lieu of her wages and constitute earnings for the purposes of CCPA. Ashcraft further argues that her disability benefits may not be garnished due to the CCPA's limits on garnishment.
The Mandatory Victims Restitution Act ("MVRA") requires restitution for certain crimes, "including any offense committed by fraud or deceit," 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii), and authorizes the United States to enforce a restitution order in accordance with its civil enforcement powers.
One enforcement procedure authorized by the FDCPA is a writ of garnishment. 28 U.S.C. § 3205(b)(1). The FDCPA authorizes a court to issue a writ of garnishment "against property (including nonexempt disposable earnings) in which the debtor has a substantial nonexempt interest and which is in the possession, custody, or control of a person other than the debtor, in order to satisfy the judgment against the debtor." 28 U.S.C. § 3205(a) (emphasis added). Ashcraft, as the party seeking to quash the garnishment order, bears the burden to show that an exemption to garnishment applies. 28 U.S.C. § 3205(c)(5); United States v. Novak, 476 F.3d 1041, 1064 (9th Cir. 2007); United States v. Sawaf, 74 F.3d 119, 121 (6th Cir. 1996).
Under the FDCPA, "earnings" is defined 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. 28 U.S.C. § 3002(6).
Therefore, for the reasons discussed above, I, upon a de novo review of the record, accept Judge Scoles's Report and Recommendation and
15 U.S.C. § 1673(a).
