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United States v. Wayne Witham

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Before Lynch, Chief Judge, Boudin and Thompson, Circuit Judges.

This case raises a narrow but important question. In light of the Mandatory Victim Restitution Act of 1996 (MVRA), Pub. L. No. 104-132, §§ 201-211, may the United States meet its obligation to enforce an order of restitution to a private-party victim of a crime by use of the Federal Debt Collection Procedure Act (FDCPA), 28 U.S.C. §§ 3001-3308, including its garnishment procedure, § 3205?

In a decision that predated the applicability of the MVRA, United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997), this court held that the government could not use the FDCPA to enforce a private-victim restitution order because such restitution was not a debt “owing to the United States” under the FDCPA. See 28 U.S.C. §§ 3001(a), (c); 3002(3); Bongiorno, 106 F.3d at 1036-40; see also United States v. Rostoff, 164 F.3d 63, 69 (1st Cir. 1999); United States v. Timilty, 148 F.3d 1, 5 (1st Cir. 1998).

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