TN 2 (09-10)

PR 07110.043 Puerto Rico

A. PR 10-137 Alejandra V~-S~, Representative Payee, Puerto Rico

DATE: August 14, 2010

1. SYLLABUS

A court order issued by a local Puerto Rico court cannot determine who should be selected as Representative Payee for Social Security benefits. Only the Social Security Administration has the authority to designate, change and enforce the duties of a Representative Payee.

2. OPINION

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. t