QUESTION PRESENTED
If the Social Security Administration (SSA or agency) determines that an individual
acting as representative payee for her biological daughter is misusing funds, can
the agency select a new payee even though a court in the Commonwealth of Puerto Rico
ordered this individual to remain as payee because she retains the “patria potestad”
or authority as parent?
OPINION
Yes, SSA may select a new representative payee if the individual is misusing funds,
regardless of whether a Commonwealth court orders SSA to select that person as representative
payee because that court lacks the authority to order SSA, a federal agency, to select
a specific representative payee.
BACKGROUND
In 2001, Social Services in Puerto Rico removed Alejandra V~-S~, a minor child, from
her biological mother, Maria S~’s custody due to her emotional abuse of the child.
SSA then appointed V~-S~’s custodial mother, Maria C~, as her representative payee.
In 2005, S~ requested that a Commonwealth court name her as the representative payee
for V~-S~’s SSA benefits. SSA had suspended V~-S~’s benefits from December 2005, through
June 2006. However, the Commonwealth court ordered that S~ be named as representative
payee when SSA reinstated benefits in June 2006. The court found that because S~ retained
the “patria potestad” (authority as a parent), she was the only individual who could manage her daughter’s
money, even though she lacked physical custody.
In October 2007, the court prohibited S~ from any contact with V~-S~. Between, October
2009 and August 2010, S~ sent only $850.00 of her benefits to V~-S~.
SSA’s District Office in Aguadilla, Puerto Rico asked S~ to visit the office in order
to investigate her alleged misuse of V~-S~’s benefits.
ANALYSIS
Federal regulations state that if SSA determines that a representative payee misused
benefit payments or did not use benefit payments on behalf of the beneficiary, SSA
will terminate payment of benefits to the representative payee and find a new payee
or pay the individual directly. See 20 C.F.R. § 404.2050. Therefore, if SSA determines that S~ misused V~-S~’s benefits,
the agency will terminate S~ as representative payee.
However, in 2005, a Commonwealth court ordered that S~ was the only individual who
could serve as representative payee because she had retained authority as a parent.
Thus, SSA regulations, which mandate the agency terminate S~ as representative payee
if she misused V~-S~’s benefits, seem in conflict with the court’s holding that under
the Civil Code of the Commonwealth of Puerto Rico, S~ is the sole individual who can
manage V~-S~’s benefit payments.[1]
The Supremacy Clause of the United States Constitution states that any state law that
would interfere with or is contrary to federal law will not stand. [2] Courts have found implied conflict pre-emption where it is impossible for a private
party to comply with both state and Federal requirements or where state law stands
as an obstacle to the accomplishment and execution of the full purposes and objectives
of Congress. See Perez v. Campbell, 402 U.S. 637, 651-52 (1971). Consequently, if the Civil Code for the Commonwealth
of Puerto Rico conflicts with SSA regulations governing who may serve as a representative
payee then, as federal law, SSA’s regulations would prevail.
Moreover, a Commonwealth court lacks any authority to compel the Social Security Administration,
a Federal agency, to retain S~ as representative payee. Under the doctrine of Federal
sovereign immunity, the United States is immune from suit, except as it consents to
be sued. United States v. Sherwood, 312 U.S. 584, 586 (1941). Furthermore, waiver of immunity “cannot be implied but
must be unequivocably expressed.” United States v. Testan, 424 U.S. 392, 399, (1976). The terms of the United States’ consent to be sued define
a court's jurisdiction to entertain such a suit. United States v. Sherwood, 312 U.S. at 586. Significantly, Federal courts have held that, absent a waiver of
sovereign immunity, state courts lack authority to compel federal agencies or officials
to take a prescribed action. See Commonwealth of Puerto Rico v. the United States, 490 F.3d 50, 61 n.6 (1st Cir. 2007)(a state court may not enforce a subpoena against
the Federal government due to Federal sovereign immunity). Accordingly, an order from
the Commonwealth court cannot compel SSA to retain S~ as representative payee for
S~-V~.
This review is limited because a copy of the Commonwealth court’s opinion is not available.
Therefore, this opinion’s analysis presumes that the Commonwealth court’s interpretation
of state law conflicts with SSA’s authority to remove a representative payee who is
misusing a beneficiary’s funds.
The supremacy clause declares that the Constitution and the laws of the United States
are the supreme law of the land and that judges in every state are bound thereby,
notwithstanding, the constitution or laws of any state to the contrary. U.S. Const.
art. VI, cl. 2.
CONCLUSION
A Commonwealth court lacks the authority to order SSA, a Federal agency, to select
a specific representative payee.
Stephen P. C~
Regional Chief Counsel
By___________
Michelle L. C~
Assistant Regional Counsel