TN 5 (09-11)

PR 07110.016 Illinois

A. PR 11-142 MOS—Oneida Co Court Order Determining Capability

DATE: August 11, 2011

1. SYLLABUS

The Oneida County Court lacks jurisdiction over the Social Security Administration, a federal agency, and is prohibited under federal law from directing how Social Security benefits are to be managed. Only the Social Security Administration has the authority to decide whether a beneficiary should receive his or her benefits directly or through a representative payee, and no court can order you to obtain a representative payee.

2. OPINION

Pursuant to your request, we are providing suggested language that can be sent to Raeann M~, an SSI beneficiary, in response to an order issued by the Oneida County Court which requires her to obtain a representative payee. The body of our suggested letter incorporates our reasons for concluding that the Oneida County Court does not have authority to decide whether a Social Security representative payee should be appointed, as Congress has granted this power solely to SSA.

Donna L. C~

Regional Chief Counsel, Region V

By: _____________________

Cristine B~

Assistant Regional Counsel

SUGGESTED LETTER

Dear Raeann M~:

The Social Security Administration has received a Judicial Review of Permanency Plan dated January 13, 2011, by the Oneida County Department of Social Services regarding Trevor M~, your minor child. According to this document, in March 2010 the Oneida County Court issued an order which stated: “Ms. M~ shall have a representative payee handling her income.” The document also indicated that a show cause order was currently pending due to your noncompliance with some of the court-ordered requirements, including the order to obtain a representative payee. You informed us that the show cause hearing is scheduled for August 17, 2011.

In ordering you to obtain a representative payee, the Oneida County Court appears to be indirectly ordering the Social Security Administration to appoint a representative payee for you. The Oneida County Court, however, does not have jurisdiction over the Social Security Administration, a federal agency. It is well-established that the Federal government, as sovereign, is immune to suits in and the orders of courts, unless the sovereign has consented to submit itself to the jurisdiction of the court. See United States Const. Art. VI, cl. 2; Hercules Inc. v. United States, 516 U.S. 417, 422-23 (1996). Here, the Social Security Administration, a federal agency, has not relinquished its sovereignty and has not submitted to the jurisdiction of any state court.

Moreover, the court order conflicts with federal statutory and regulatory laws which govern the management of Social Security benefits and the appointment of representative payees. Specifically, under the Social Security Act, Social Security benefits are neither assignable nor subject to legal process, including court orders. See 42 U.S.C. § 407(a); Washington Dep’t of Social & Health Servs. v. Guardianship Estate of Danny K~, 537 U.S. 371, 385 (2003). Thus, the Oneida County Court does not have the authority to issue an order directing that Social Security benefits be paid to a representative payee.

In addition, the Social Security Act and its implementing regulations provide that the Social Security Administration has the sole power to determine whether to appoint a representative payee. See 42 U.S.C. § 405(j)(1)(A); 20 C.F.R. §§ 404.2001-404.2065, 416.601-416.665. Our regulations and rules explain how the Social Security Administration determines whether to pay a beneficiary directly or through a representative payee. Our policy is that every adult beneficiary has the right to manage his or her own benefits and is presumed to be capable of doing so, unless there is evidence to the contrary. See 20 C.F.R. §§ 404.2001, 404.2010, 404.2015, 416.601, 416.610, 416.615; Program Operations Manual System (POMS) GN 00502.010, https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502010, GN 00502.020, https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502020, GN 00502.060, https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502060. Accordingly, we appoint a representative payee only if we determine that the beneficiary is not able to manage his or her own benefits and that representative payment is in the best interest of the beneficiary. See id. The only exception, which is not present in your case, is that an adult beneficiary who is judged legally incompetent must receive benefits through a representative payee. See 20 C.F.R. §§ 404.2015(a), 416.615(a); POMS GN 00502.005, https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502005.

In your case, as we indicated in our letter dated January 7, 2011, to your attorney, Richard S~,