Your office has requested our assistance in reviewing a court order issued by the
South Dakota Sixth Judicial District Court, Tripp County, to determine whether the
order is contrary to Social Security Administration (SSA) regulations and policy.
The court order directs that "1/2 of the [survivor's] benefit received" on behalf
of Timothy D. M~, Jr. (Timmie) "be placed in a 529-account-educational-trust . . .
for Timmie's college or vocational education after high school." Currently, Charles
N~ is Timmie's representative payee. For the reasons set forth below, we believe the
court order violates section 207(a) of the Social Security Act (Act), 42 U.S.C. §
407(a). See Memorandum from Regional Chief Counsel, Denver, to Regional Commissioner, Denver,
Court Order Directing Use of Monthly Social Security Benefits - John A. H~ (Revised) (July 15, 2003).
Section 207(a) of the Act states:
The right of any person to any future payment under this subchapter shall not be transferable
or assignable, at law or in equity, and none of the moneys paid or payable or rights
existing under this subchapter shall be subject to execution, levy, attachment, garnishment,
or other legal process, or to the operation of any bankruptcy or insolvency law.
42 U.S.C. § 407(a). See also POMS GN 02410.001. "Under the Act, therefore, Social Security benefits and the associated rights under
the Social Security Act are generally neither assignable nor subject to legal process.
Indeed, section 207's broad bar against the use of any legal process to reach Social
Security benefits includes not only all claimants or creditors, but also states."
Memorandum from Regional Chief Counsel, Philadelphia, to Regional Commissioner, Philadelphia,
Pennsylvania Support Decree Assigning Social Security Payments - Rachel R. M~, SSN:
~(March 25, 1994) (citing Philpott v. Essex County Welfare Bd., 409 U.S. 413, 416-17 (1973)).
"Federal courts have generally interpreted section 207 broadly. Courts have upheld
the bar of section 207 when attempts have been made to alienate Social Security benefits
from both recipients and representative payees." Id. (citing Tidwell v. Schweiker, 677 F.2d 560, 566-68 (7th Cir. 1982) (holding that a consent form, which a state
psychiatric facility asked those seeking hospitalization to sign authorizing the facility
to reimburse itself for the cost of hospitalization from the Social Security benefits
of the individual, violated section 207); Woodall v. Bartolino, 700 F. Supp. 210, 219-20 (S.D. N.Y. 1983) (holding that court orders may not properly
be entered against Social Security benefits when they are managed by representative
payees in order to enforce the application of the benefits to the care and maintenance
of an institutionalized individual).
"Furthermore, it is well-established that the Federal Government, as sovereign, is
immune from suits in and the orders of state courts, unless the sovereign has consented
to submit itself to the jurisdiction of such court, which in the present case, it
has not." Memorandum from Regional Chief Counsel, Chicago, to Manager, Cleveland Downtown
Field Office, Charles C~, SSN ~, Advice About State Court Order to Appoint Representative Payee (October 4, 2002) (citing United States v. Sherwood, 312 U.S. 584 (1941)).
Moreover, if Mr. N~ "complies with the court's order, he may violate h[is] responsibilities
as a representative payee." Memorandum, Pennsylvania Support Decree, supra (citing 42 U.S.C. § 1383(a)(2)). "Under the regulations, a representative payee has
the responsibility to ensure [that Social Security] benefits are used only for the
use and benefit of the beneficiary in the manner he determines to be in the best
interests of the beneficiary." Id. (citing § 416.635); see also 20 C.F.R. § 404.2035. "In this case, it could be said that by complying with the
court order, [Mr. N~] has allowed h[is] rights and responsibilities as a representative
payee to be usurped: he is not making the decisions about the use of the funds,
but has turned them over to [the court] in accordance with the court order." Id.
In sum, section 207 of the Act is intended to protect the rights and benefits arising
under the Act "from all attempts to use legal process to alienate them, unless Congress
has specifically indicated otherwise." Id. We believe the court's order, which can be construed as assigning control of Timmie's
Social Security benefits to another, is violative of section 207 because it constitutes
legal process that seeks to affect rights arising under the Act. "Identifiable Social
Security benefits cannot be taken by judicial order, and in this case it appears that
they have been." Id. (citing Woodall, 700 F. Supp. at 221). Moreover, in the state court process used
here, the state court has taken upon itself the authority to decide who shall manage
the child's Social Security benefits, and how they shall be managed. However, Congress
has granted the power to make that selection exclusively to the Commissioner in section
205(j) of the Act, and the Commissioner's regulations and decisions issued thereunder
are clearly to be given deference. See Washington Dep't of Social and Health Servs. v. Guardianship Estate of Danny Keffeler, 123 S.Ct. 1017 (2003). Because the state court's actions are contrary to the controlling
Federal statute and the decision of the Commissioner issued thereunder, the state
court's attempt to assume such authority must fail under the Supremacy Clause of the
United States Constitution._11 .
As a matter of litigation policy, SSA does not get involved in section 207 issues
that arise after payment to the beneficiary has been completed. Therefore, if any
court action is to be taken at this time, Mr. Novotny, the person subject to the court's
order, through his attorney, should take it.
Yvette G. K~
Acting Regional Chief Counsel, Region VII
Allan D. B~
Assistant Regional Counsel
"The Supremacy Clause of the Constitution, Article VI, cl. 2, states that the 'Constitution,
and the laws of the United States which shall be made in Pursuance thereof . . . shall
be the supreme Law of the Land, and the Judges in every State shall be bound thereby,
anything in the Constitution or Laws of any State to the Contrary notwithstanding.'
The Supreme Court has recognized it 'is a seminal principle of our law that the constitution
and the laws made in pursuance thereof are supreme; that they control the constitution
and laws of the respective States and cannot be controlled by them.'" Memorandum from
OGC Policy and Legislation Division, to Office of Disability Division of Medical and
Vocational Policy, Issues Related to Disability Examiners Ordering Consultative Examinations
and Tests and Medical and Psychological Consultants Developing Cases for Disability
Determination Services (DDS) in Other States (August 21, 1998) (citing Hancock v. Train, 426 U.S. 167, 178 (1976) (internal quotation marks omitted).