Amicus Curiae Brief — United States, Petitioner v. Jose Luis Vaello Madero

Supreme Court briefJun 7, 2021

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No. 20-303

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------UNITED STATES OF AMERICA,

Petitioner,

JOSÉ LUIS VAELLO-MADERO,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

---------------------------------♦--------------------------------BRIEF OF THE INTERAMERICAN

INSTITUTE FOR CONSTITUTIONAL

RIGHTS AS AMICUS CURIAE

SUPPORTING NEITHER PARTY

---------------------------------♦--------------------------------MANUEL DEL VALLE COLÓN

Counsel of Record

INTERAMERICAN LAW SCHOOL

INTERAMERICAN INSTITUTE

FOR CONSTITUTIONAL RIGHTS

INTERAMERICAN LAW SCHOOL

Urb. Industrial

Calle Federico Costa # 170

Hato Rey, P.R. 00918-1303

787-751-1912

mdelvalle@juris.inter.edu

Counsel for Amicus Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

Whether Congress violated the equal-protection

component of the Due Process Clause of the Fifth

Amendment by establishing Supplemental Security

Income—a program that provides benefits to needy

aged, blind, and disabled individuals—in the 50 States

and the District of Columbia, and in the Northern

Mariana Islands pursuant to a negotiated covenant,

but not extending it to Puerto Rico.

TABLE OF CONTENTS

Page

Question Presented .............................................

Interest of the Amicus Curiae .............................

Introduction .........................................................

Argument .............................................................

The Puerto Rico Paradigm: Puerto Rico is

Not a Foreign Country ...............................

II.

José Luis Vaello-Madero qualified for SSI

benefits in the State of New York and is

entitled to continue receiving those benefits as he does not live in a foreign country.

His benefits should thus be reinstated; he

should be paid back benefits from his

termination date; and his alleged overpayment should be waived or annulled .......... 12

III.

The SSA Administrative Legal Framework for an Overpayment.......................... 14

IV.

José Luis Vaello-Madero has no standing

to bring the claim that Congress violated

the equal-protection component of the Due

Process Clause of the Fifth Amendment by

establishing Supplemental Security Income,

but not extending it to Puerto Rico and the

Supreme Court and the First Court of

Appeals lack subject matter jurisdiction to

hear this claim ........................................... 23

Conclusion............................................................ 26

iii

TABLE OF AUTHORITIES

Page

CASES

Arizona Christian School Tuition Org. v. Winn,

563 U.S. 125 (2011) .................................................24

Califano v. Gautier Torres, 435 U.S. 1 (1977) ...............6

Carney v. Adams, 592 U.S. ___, 141 S.Ct. 493

(2020) .......................................................................24

Clapper v. Amnesty Int’l USA, 568 U.S. 398

(2013) .......................................................................25

Commonwealth of Puerto Rico v. Sanchez Valle,

579 U.S. ___, 136 S.Ct. 1863 (2016) ..........................7

De Lima v. Bidwell, 182 U.S. 1 (1901) ............ 4, 8, 9, 18

Elk Grove United School Dist. v. Newdow, 542

U.S. 1 (2004) ............................................................24

Harris v. Rosario, 446 U.S. 651 (1980) .........................6

Huus v. New York & P[ue]rto Rico S.S. Co., 182

U.S. 392 (1901) ................................................ 4, 8, 18

Isabella Gonzale[z] v. Williams, 192 U.S. 1

(1904)................................................................ 4, 17

Lance v. Coffman, 549 U.S. 434 (2007) .......................25

Posnack v. Secretary of HHS, 631 F.Supp. 1012

(E.D.N.Y. 1986) ........................................................18

Texas v. Pennsylvania, 592 U.S. ___, 141 S.Ct.

1230 (2020) ..............................................................24

Thole v. U.S. Bank, 140 S.Ct. 1615 (2020) ..................24

United States of America v. José Luis VaelloMadero, 956 F.3d 12 (1st Cir. 2020) ........................13

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTION, STATUTES, AND RULES

U.S. Const:

Art. IV, § 3, Cl. 2

Territory Clause ........................................................8

Amend. V

Due Process Clause .................................................23

TREATY, STATUTES, & REGULATIONS

Treaty of Paris, 30 Stat. 1754; Treaty Series

343 ........................................................................ 7

Social Security Amendments of 1972, Ti. II,

§ 301, 86 Stat. 1465-1478 ........................ 3, 19, 20, 21

Title XVI of the Social Security Act, 42 U.S.C.

§ 1382................................................................... 3, 15

42 U.S.C. § 1382(a)(1) .................................................15

42 U.S.C. § 1382c(a)(1)(B)(I) .........................................3

42 U.S.C. § 1382c(e) ....................................................11

42 U.S.C. § 1382(f )(1) ..................................................15

42 U.S.C. § 1383(b) ......................................................19

20 C.F.R. § 404(b) ........................................................20

20 C.F.R. § 404.508 (1985) ..........................................20

20 C.F.R. § 404.509 (1985) ..........................................21

TABLE OF AUTHORITIES—Continued

Page

OTHER SOURCES

SSR 87-16c ...................................................... 18, 20, 22

POMS GN 00904.300 .................................................22

POMS GN 00303.120 .................................................12

POMS NL 00601.600 ..................................................13

POMS NL 00801.025 ............................................ 12, 18

POMS SI 02301.205 ............................................. 17, 26

Many Homes Still Without Roofs in Puerto Rico,

2 Years After María at https://www.nbcdfw.

com/news/national-international/puerto-ricosreconstruction-is-in-the-hands-of-organizations/

2020264/ ....................................................................3

SSA, Understanding Supplemental Security

Income (SSI) Eligibility Requirements at

https://www.ssa.gov/pubs/EN-05-1101.pdf

(August 2019) ..........................................................13

SSA OIG Audit Report, Controls to Prevent

Supplemental Security Income Payments to

Recipients Living in Foreign Countries at

https://oig.ssa.gov/controls-prevent-supplementalsecurity-income-payments-recipients-livingforeign-countries at https://oig.ssa.gov/sites/

default/files/audit/full/pdf/A-01-02-12013.pdf

(last visited June 2, 2021) .......................................17

SSA OIG report, The Adequacy of the Residency

Verification Process for the Supplemental

Security Income Program (A-06-96-62001),

May 1997 .................................................................10

TABLE OF AUTHORITIES—Continued

Page

Integrity of the SSI Program (A-01-02-22095) at

https://oig.ssa.gov/sites/default/files/audit/full/

pdf/A-01-02-22095.pdf .............................................10

SSI Eligibility Requirements pamphlet at

https://www.ssa.gov/ssi/text-understandingssi.htm (last visited April 7, 2020) .........................12

United States Census Report at https://www.

census.gov/quickfacts/loizamunicipiopuertorico

(last visited May 4, 2021) ..........................................3

In The

Supreme Court of the United States

---------------------------------♦---------------------------------

UNITED STATES OF AMERICA,

Petitioner,

JOSÉ LUIS VAELLO-MADERO,

Respondent.

---------------------------------♦---------------------------------

On Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

---------------------------------♦---------------------------------

BRIEF OF THE INTERAMERICAN

INSTITUTE FOR CONSTITUTIONAL

RIGHTS AS AMICUS CURIAE

SUPPORTING NEITHER PARTY

---------------------------------♦---------------------------------

INTEREST OF THE AMICUS CURIAE1

The Interamerican Institute for Constitutional

Rights respectfully submits this brief as amicus curiae

in support of neither party in that we support the

appellant in part and the appellee in part and on

grounds other than those in the judgment of the Court

Appeals for the First Circuit (hereinafter “First

The parties have consented to the filing of this rule as

per Rule 37.2(a). No party has made a monetary contribution

intended to fund the preparation or submission of the brief. This

brief was authored by the counsel of record.

Circuit”). The goal of the Institute is to promote the

ideal that Puerto Ricans throughout the United States

be afforded the rights provided to all American citizens

under the United States Constitution.

The Institute’s counsel of record was formerly the

Hearing Office Chief Administrative Law Judge of the

San Juan, Puerto Rico Office of Hearings Operations

of the Social Security Administration (hereinafter,

“SSA”), and as such he has a particular vantage point

on the Title XVI Supplemental Security Income

(hereinafter, “SSI”) program before the Court.

---------------------------------♦---------------------------------

INTRODUCTION

This case is a straightforward SSA overpayment

case which presents a misapplication of Social Security

policy in that the SSA has erroneously treated Puerto

Rico as a foreign country by defining Puerto Rico to be

outside of the United States. Hawaii, Alaska, and the

Northern Mariana Islands are all outside the continental United States, and all of them like New York

have SSI programs that benefit their domiciliaries like

José Luis Vaello-Madero and whose benefits are not

terminated when they travel to another part of the

United States for more than 30 consecutive days.

José Luis Vaello-Madero is poor and disabled. He

is a New York domiciliary, who was born in Puerto Rico,

and who qualified for SSI benefits because of his

disability and his low-income status. He traveled out

of New York to take care of his ailing wife. If he had

gone to take care of his ailing wife in Hawaii, Alaska,

or even the Northern Mariana Islands, he would have

continued to receive his SSI benefits (so long as he

remained poor and disabled), and this case would

never have made it to the U.S. Supreme Court. Instead,

he journeyed to Loiza, Puerto Rico to take care of his

ailing wife, where he lives under a blue tarp,2 having

lost his roof to Hurricane Maria.

More specifically, José Luis Vaello-Madero was

one of 198,601 SSI recipients in New York State.3 He

had moved to New York in 1985, and was a New York

domiciliary when he applied for SSI benefits in 2012.

He met the SSI income and assets limits along with

the requirement of U.S. citizenship. 42 U.S.C. § 1382;

42 U.S.C. § 1382c(a)(1)(B)(I). In July 2013, he traveled

from New York to Loiza, one of the poorest towns in

Puerto Rico, which in 2019 had a population of

24,553, and where 48.2% of the population lives in

poverty.4

“In the months after the hurricane hit, the Federal Emergency Management Agency (FEMA) distributed 125,981 tarps to

the island’s municipalities. At the same time the agency also

provided 59,469 blue roofs, which are temporary roofs professionally installed by the U.S. Army Corps of Engineers.” at

https://www.nbcdfw.com/news/national-international/puerto-ricosreconstruction-is-in-the-hands-of-organizations/2020264/ (last

visited May 27, 2021).

https://www.ssa.gov/policy/docs/statcomps/ssi_sc/2015/ny.html

(last visited April 9, 2021).

https://www.census.gov/quickfacts/loizamunicipiopuertorico

(last visited May 4, 2021).

In 2017, the town of Loiza suffered greatly from

Hurricane Maria, and in the case of José Luis VaelloMadero, Hurricane Maria took off his roof, forcing him

to replace it with a government-provided blue tarp. He

had come to Puerto Rico to take care of his ailing wife

and lived with her in poverty with the support of his

SSI benefits.

This Court addressed the issue of the mischaracterization of Puerto Rico as a foreign country in the

Puerto Rico paradigm trilogy of cases: Isabella

Gonzale[z] v. Williams, 192 U.S. 1 (1904); Huus v. New

York & P[ue]rto Rico S.S. Co., 182 U.S. 392 (1901); and

De Lima v. Bidwell, 182 U.S. 1 (1901).

In Isabella Gonzale[z] v. Williams, supra, a unanimous Supreme Court overruled the Immigration &

Naturalization Service determination that, Isabella

Gonzalez (her name was misspelt at Ellis Island and

has been corrected above), a resident of Puerto Rico

(acquired by the United States in 1898) was an alien,

and, therefore, needed to be deported back to Puerto

Rico.

The Supreme Court held then, and should reaffirm

now, that Puerto Rico is not a foreign country, and that

Puerto Rico like Hawaii and Alaska is not outside of

but part of the United States. This Court should hold

that as long as José Luis Vaello-Madero meets the

disability and low-income requirements for SSI benefits, he should continue to be deemed an SSI recipient,

have his alleged overpayment waived or annulled and

be paid back benefits from the date SSA terminated his

SSI benefits.

What José Luis Vaello-Madero does not represent

to this Court is someone who was a domiciliary of

Puerto Rico and because of that reason alone was

deemed ineligible for SSI benefits. He has no standing

to bring that claim having always been eligible for and

having been a recipient of SSI benefits because of his

New York domicile. The Court should reverse the First

Circuit because as José Luis Vaello-Madero had no

standing to bring the claim decided by the Court below,

the Court lacked subject matter jurisdiction on the

question whether the SSI program should or should

not be extended to the domiciliaries of Puerto Rico.

Since José Luis Vaello-Madero had no standing to

bring the case decided by the First Circuit, the First

Circuit’s reliance on 28 U.S.C. § 1345 is misplaced

since without standing there is no subject matter

jurisdiction.

For José Luis Vaello-Madero to have standing, he

would have had to have been a domiciliary of Puerto

Rico, not New York, and would have had to apply for

and been denied SSI benefits in Puerto Rico as a

result of a domicile in Puerto Rico. Instead, SSA’s New

York Division of Disability Determinations (hereinafter, “DDS”) granted his application for SSI benefits

because he was poor, disabled and a New York

domiciliary.

In this case, SSA’s New York DDS office had

already determined that José Luis Vaello-Madero was

eligible for the SSI benefits that give rise to the alleged

overpayment in this case, and his demand that the

alleged overpayment be either waived or annulled,

SSA pay him his back benefits, and his SSI benefits be

reinstated. All of those claims are tied to his New York

domiciliary status, and the proper claim he represents

is the mischaracterization of Puerto Rico as a foreign

country resulting in his loss of his New York

domiciliary-based SSI benefits and a demand from

SSA for an overpayment in the amount of $28,081

along with a termination of all of his SSI benefits.

Finally, Califano v. Gautier Torres, 435 U.S. 1

(1977) is inapposite to his alleged overpayment claim

since José Luis Vaello-Madero’s right to travel from

New York to Puerto Rico was never encumbered by

SSA’s misapplication of the foreign country rule to

Puerto Rico. Harris v. Rosario, 446 U.S. 651 (1980), is

also inapposite since the issue in Harris had to do with

lower level of reimbursement provided to Puerto Rico

under the Aid to Families with Dependent Children

Program, and not SSA’s treatment of Puerto Rico as a

foreign country and the misapplication of that SSA

rule to José Luis Vaello-Madero’s SSI benefits.

---------------------------------♦---------------------------------

ARGUMENT

The Puerto Rico Paradigm: Puerto Rico is

not a foreign country.

From the time Spain ceded Puerto Rico to the

United States, see Treaty of Paris, 30 Stat. 1754; Treaty

Series 343 (1898).5 Puerto Ricans have had to confront

American officials, who for one reason or another

believed that although acquired by the United States

in 1898 (and thus representing a single sovereign, see

Commonwealth of Puerto Rico v. Sanchez Valle, 579

U.S. ___, 136 S. Ct. 1863; 195 L. Ed. 2d 179 (2016)),

Puerto Rico was to be treated as a foreign country or

Puerto Ricans were to be treated as foreigners.

In Isabella Gonzale[z] v. Williams, supra, at 9-10,

Chief Justice Fuller explained that,

By the cession their allegiance became

due to the United States, which was in

possession and had assumed the government,

and they became entitled to its protection. The

nationality of the island became American

instead of Spanish, and, by the treaty,

Peninsulars, not deciding to preserve their

allegiance to Spain, were to be held to have

‘renounced it, and to have adopted the

nationality of the territory in which they may

reside.’

The United States Senate ratified the Treaty of Paris on

February 6, 1899. On March 2, 1899, Congress passed an act to

implement its treaty obligations, and the treaty was proclaimed,

after exchange of ratifications, on April 11, 1899. Isabella

Gonzale[z] v. Williams, supra, at 9-10.

Puerto Rico assumed an American nationality by

becoming an American territory within the meaning of

Article IV, Section 3, Clause 2 of the U.S. Constitution.

That made Puerto Rico a part of the United States in

a domestic sense and not a foreign country.

The ports of Puerto Rico ceased to be foreign ports.

In Huus v. New York & P[ue]rto Rico S.S. Co., 182 U.S.

392 (1901), a unanimous Supreme Court held that

Congress had nationalized all Puerto Rican vessels

transforming them into United States vessels,

admitting them to the benefits of the coasting trade, by

placing Puerto Rico “substantially upon the coast of

the Unites States, and vessels engaged in trade

between that island and the continent, as engaged in

the coasting trade.” Id. at 396. Hence, New York’s

pilotage laws did apply to the Ponce vessel. Id. at 397.

On the other hand, SSA’s treatment of Puerto Rico as

a foreign country seeks to displace Puerto Rico from

being part of the “coast of the United States.”

As part of this trilogy of cases, this Court held in

De Lima v. Bidwell, supra, that Puerto Rico was not a

foreign country within the meaning of the United

States tariff laws. In De Lima v. Bidwell, supra, the

Court made plain that “a country ceases to be foreign

the instant it becomes domestic,” which in the case of

Puerto Rico goes back to the Treaty of Paris. Id. at 197.

The Court refused “to acquiesce in this assumption

that a territory may be at the same time both foreign

and domestic.” Id. at 199. Thus, the Court held that

“with the ratification of the treaty of peace between the

United States and Spain, April 11, 1899, the island of

P[ue]rto Rico ceased to be a foreign country” within the

meaning of the federal tariff law known as the Dingley

Act. Id. at 201.

Given the consistent treatment by this Court of

Puerto Rico as part of the domestic territory of the

United States, it would be a complete turnaround to

accept SSA’s treatment of Puerto Rico as a foreign

country.

The First Circuit never discussed the genesis of

the policy in question, i.e., stopping the payments of

those who received SSI benefits like José Luis VaelloMadero but moved to a foreign country. The SSA Office

of Inspector General [hereinafter, “SSA OIG”] sheds

light on that policy as follows:

2. EFFORTS TO ENSURE ONLY

INDIVIDUALS RESIDING IN THE UNITED

STATES CLAIM SSI PAYMENTS

Since early in our existence as an OIG, we

have conducted numerous special investigative projects and audits to review U.S.

residency issues for SSI recipients. For example, in 1997, we conducted the Southwest

Tactical Operations Plan, a U.S.-Mexico

border pilot in El Paso, Texas. This project

identified 153 SSI recipients who were ineligible because they were not U.S. residents. Also,

in May 1997, we issued a report recommending procedural improvements for SSA—

including expanded use of private contractors

to conduct home visits of suspected

nonresidents. . . .

SSA’s Controls to Identify Nonresidents

Receiving SSI Payments

Section 1614(a)(1)(B) of the Social Security

Act requires that to be eligible for SSI

payments an individual must be a resident of

the United States. Additionally, section

1611(f ) of the Social Security Act states that

no individual shall be considered eligible for

SSI payments for any month throughout

which the individual is outside the United

States. This prohibition also applies to recipients in Puerto Rico and the Virgin Islands.

The only exemptions to collecting SSI payments while outside the United States are for:

•

certain students temporarily studying

abroad and

•

blind or disabled children of military

families stationed overseas.

Once SSI payments are suspended for being

outside the United States, SSI recipients

must be back in the United States for 30

consecutive days before SSI payments

resume. SSA has the following controls in

place to identify SSI recipients outside of the

United States: foreign address alert process

for concurrent beneficiaries and various

special projects or studies. (footnotes omitted)

SSA OIG report, The Adequacy of the

Residency Verification Process for the Supplemental Security Income Program (A-06-9662001), May 1997. Integrity of the SSI

Program (A-01-02-22095) at https://oig.ssa.

gov/sites/default/files/audit/full/pdf/A-01-0222095.pdf at 6-7.

The Social Security Administration’s policy was

that those SSI beneficiaries who were no longer

residents of the United States for more than 30 days

would lose their SSI benefits and upon return to the

United States had to wait 30 days to have their SSI

benefits restored.

The problem with SSA’s policy is that it seeks to

avoid the fact that José Luis Vaello-Madero traveled to

Puerto Rico, which is not a foreign country, and his stay

there continued to constitute residence within the

United States.

In sum, SSA’s policy of termination of benefits due

to foreign residence should not have applied to José

Luis Vaello-Madero as it is inconsistent with the

Puerto Rico paradigm that regardless of Puerto Rico’s

status, it is not a foreign country. That definitional

stasis is not altered by the ambiguity found at 42

U.S.C. § 1382c(e), where the statute defines the United

States in a geographical sense to mean the 50 States

and the District of Columbia, since in a geographical

sense neither Hawaii, nor Alaska, nor, subsequently,

the Mariana Islands, form part of the continental

United States. Such a statement is at odds with reality

and with more than one hundred years of consistent

jurisprudence sustained by this Court that Puerto Rico

is not a foreign country, and any action by the SSA to

the contrary in the case of José Luis Vaello-Madero is

a misapplication of its foreign country rule.

II.

José Luis Vaello-Madero qualified for SSI

benefits in the State of New York and is

entitled to continue receiving those benefits as he does not live in a foreign country.

His benefits should thus be reinstated; he

should be paid back benefits from his

termination date; and his alleged overpayment should be waived or annulled.

José Luis Vaello-Madero, a United States citizen,

see Program Operation Manual System [hereinafter,

“POMS”] GN 00303.120 A.2 at http://policy.ssa.gov/

poms.nsf/lnx/0200303120 https://secure.ssa.gov/apps10/

poms.nsf/lnx/0200303120 (last visited May 27, 2021),

who was domiciled in New York since 1985 started to

receive SSI payments in New York in 2012 as a qualified SSI recipient, who had a medically determinable

physical or mental impairment which “results in his

inability to do a substantial gainful activity and has

lasted or can be expected to last for a continuous

period of not less than 12 months.” See https://www.

ssa.gov/ssi/text-understanding-ssi.htm, SSI Eligibility

Requirements (last visited April 7, 2020).

As he was born in Puerto Rico, he was a Spanishspeaker, and SSA policy provides that he receive

agency notices in Spanish, see POMS NL 00801.025

A.2. at http://policy.ssa.gov/poms.nsf/lnx/0900801025,

which may not have occurred here. On July 27, 2016,

SSA sent José Luis Vaello-Madero a SSA form L8155U2, see https://secure.ssa.gov/apps10/poms.nsf/lnx/

0900803015 (An SSI “recipient must receive an

SSA-L8155 at least 10 days before SSA takes an

adverse action.”) (last visited May 27, 2021).

It appears that SSA may have not followed POMS

NL 00601.600 at https://secure.ssa.gov/apps10/poms.

nsf/lnx/0900601600 (last visited May 27, 2021) which

provides that Spanish-speaking claimants receive “a

Spanish-language notice. . . .” Id. Instead he was sent

a Notice of Planned Action in English advising him

that his SSI benefits were discontinued retroactively

to August 1, 2014 since he had been outside the United

States for 30 days or more—SSA’s foreign country rule.

United States of America v. José Luis Vaello-Madero,

956 F.3d 12, 15 (1st Cir. 2020).

As already noted, José Luis Vaello-Madero arrived

in Puerto Rico in July 2013, where he continued to

receive his SSI benefits until July 2016, when SSA

determined that by staying in Puerto Rico he became

ineligible for his SSI benefit. United States of America

v. José Luis Vaello-Madero, supra, 15-16.

José Luis Vaello-Madero became ineligible for his

SSI benefits since SSA found him to be “absent from

the country for a full calendar month or for 30

consecutive days or more.” See SSA, Understanding

Supplemental Security Income (SSI) Eligibility

Requirements at https://www.ssa.gov/pubs/EN-0511011.pdf at 15 (August 2019); U.S. v. José Luis VaelloMadero, supra, at 15-16.

In short, SSA acted contrary to the fact that José

Luis Vaello-Madero was not absent from the United

States for 30 days or more, since Puerto Rico is a part

of the United States and not a foreign country.

III. The SSA Administrative Legal Framework

for an Overpayment

The First Circuit decided this case without the

development of a complete administrative record, so

we do not know whether SSA properly informed the

Claimant by way of a Spanish language notice of his

rights and responsibilities, nor do we know if the

Claimant was aware of his right to request a waiver,

or even to have a hearing before an administrative law

judge. Given the nature of the claimant’s poverty an

administrative law judge may have found him entitled

to a waiver of the $28,081 in overpayment sought by

SSA as he was “without fault in connection with the

overpayment,” and any “recovery on account of such

overpayment in such case would defeat the purposes

of this subchapter, or be against equity and good

conscience.” What the administrative law judge

could not do is overrule the SSA’s foreign country rule

and thus reinstate José Luis Vaello-Madero’s SSI

benefits.

José Vaello-Madero’s specific claim arises from

SSA’s misapplication of the foreign country rule to

Puerto Rico and SSA’s attempt to recover $28,081 in

allegedly overpaid benefits paid to José Luis VaelloMadero who was then and is now disabled and who

qualified for those SSI benefits. His overpayment case

is a result of the SSA regulatory structure which relies

on the Social Security Statute and regulations, Social

Security Rulings (hereinafter, “SSR”), SSA’s POMS

which is the operational reference source used by SSA

staff to conduct SSA’s daily business along with

SSA’s regulations, interpretations, bulletins, and

publications.

As he was disabled and met the SSI income means

and limited assets tests, José Luis Vaello-Madero was

eligible for SSI benefits within the meaning of 42

U.S.C. § 1382(a)(1). José Luis Vaello-Madero continued

to be eligible so long as he was disabled, met the

income means and assets tests, and did not fall within

the exception set out at 42 U.S.C. § 1382(f )(1),

Title XVI of the Social Security Act, 42 U.S.C.

§ 1382(f )(1) provides that:

(f )(1) Notwithstanding any other provision

of this title, no individual (other than a child

described in section 1614(a)(1)(B)(ii)) shall be

considered an eligible individual for purposes

of this title for any month during all of which

such individual is outside the United States

(and no person shall be considered the eligible

spouse of an individual for purposes of this

title with respect to any month during all of

which such person is outside the United

States). For purposes of the preceding

sentence, after an individual has been outside

the United States for any period of 30

consecutive days, he shall be treated as

remaining outside the United States until he

has been in the United States for a period of

30 consecutive days.

The SSA has told SSI claimants in its official

publication that if they stay in Puerto Rico more than

30 consecutive days, SSA will consider them to have

left the United States, and thus they will lose their SSI

benefits, “What You Need to Know When You Get

Supplemental Security Income (SSI)” says that:

If you leave the United States

Leaving the United States means leaving the

50 states, the District of Columbia, or the

Northern Mariana Islands. Usually, if you

leave the United States for 30 days or more,

you can no longer get SSI.

If you move to Puerto Rico, you’re considered

to be outside the United States for SSI

purposes only. People who live in Puerto Rico

can’t get SSI.

If you plan to leave the United States, tell us

before you leave. We need to know the date

you plan to leave and the date you plan to

come back. Then, we can tell you if your SSI

will be affected.

After you have been outside the United States

for 30 or more days in a row, your SSI can’t

start again until you have been back in the

country for at least 30 straight days.

See https://www.ssa.gov/pubs/EN-05-11011.pdf at

15 (August 2019) On the other hand, were José Luis

Vaello-Madero to return to New York, he could have his

SSI benefits reinstated. See POMS SI 02301.205 at

https://secure.ssa.gov/apps10/poms.nsf/lnx/050230120

5 (suspension and reestablishing eligibility).

Similarly, as noted earlier, the SSA’s OIG’s Audit

Report for September 2002 entitled Controls to

Prevent Supplemental Security Income Payments to

Recipients Living in Foreign Countries states:

Section 1611(f ) of the Social Security Act

states that no individual shall be considered

eligible for SSI payments for any month

throughout which the individual is outside

the United States. This prohibition also

applies to recipients in Puerto Rico and the

Virgin Islands.

https://oig.ssa.gov/controls-prevent-supplementalsecurity-income-payments-recipients-livingforeign-countries at https://oig.ssa.gov/sites/

default/files/audit/full/pdf/A-01-02-12013.pdf

(last visited June 2, 2021)

The Inspector General’s report is crystal clear that

Puerto Rico (and the Virgin Islands) are treated no

different than a foreign country much like Isabella

Gonzalez was in 1904. The factual, historical, and legal

problem is that Puerto Rico is not a foreign country, but

is part of the maritime border of the United States.

As a matter of stasis at the definitional level, Puerto

Rico is a part of the United States, not outside its

jurisdiction, power, or territory. Accordingly, the Court

should overrule SSA’s misapplication of its foreign

country rule and reinstate José Luis Vaello-Madero’s

SSI benefits. See Isabella Gonzale[z] v. Williams, supra,

Huus v. New York & P[ue]rto Rico, supra,, and De Lima

v. Bidwell, supra (where this Court held that Puerto

Rico is not a foreign country—the Puerto Rico

paradigm).

Under SSA’s POMS, José Luis Vaello-Madero

should have received an SSA SSI Overpayment Notice

stating, “Attached is a letter in English about our

decision not to waive your SSI overpayment. This

means that you have to pay this money back,” See

POMS NL 00801.025 A.2. & C.1. & 2. (Spanish

Language Notices) at https://secure.ssa.gov/apps10/

poms.nsf/lnx/0900801025 (last visited April 7, 2021)

and would have been afforded a right to appeal within

60 days of receipt of the notice” and request a Case

Review, an Informal or a Formal Conference.” Id.

If José Luis Vaello-Madero had made such a

request and SSA determined it was correct in its

overpayment decision, he would have received a notice

stating that and informing him that he had 60 days

within which to request a hearing before an

Administrative Law Judge. Id.

Since this is an overpayment case, José Luis

Vaello-Madero was subject to the legal framework set

out in SSR 87-16c where SSA adopted the reasoning of

Judge Platt in Posnack v. Secretary of HHS, 631

F.Supp. 1012 (E.D.N.Y 1986) and adopted by SSA in

SSR 87-16c. In that case, Judge Platt relied on SSIrelated precedent to explain the nature of an SSI

overpayment:

For example, the recovery of overpaid Supplemental Security Income (“SSI”) benefits (Title

XVI) is governed by 42 U.S.C. § 1383(b), which

provides in part:

The Secretary (A) shall make such

provision as he finds appropriate in the

case of payment of more than the correct

amount of benefits with respect to an

individual with a view to avoiding

penalizing such individual or his eligible

spouse who was without fault in

connection with the overpayment, if

adjustment, or recovery on account of such

overpayment in such case would defeat

the purposes of this subchapter, or be

against equity and good conscience. . . .

(Emphasis added.)

In order to make a more informed decision,

the Court shall also draw upon case law which

interprets the recovery of SSI overpayments

under legislative and regulatory provisions

which are not inconsistent with Title II of the

Act. Cf. Harrison. Heckler, 746 F.2d 480, 482

(9th Cir. 1984 (Title XVI uses the same

approach for recovery of overpayments as

Title II).

In situations involving the recovery of

overpayments, such as those in this case, the

burden is on the plaintiff to show that he or

she qualifies for a waiver of recovery. Romero

v. Harris, 675 F.2d 1100, 1103 (10th Cir.

1982); Sierakowski v. Weinberger, 504 F.2d

831, 836 (6th Cir. 1974). The plaintiff,

therefore, must present evidence to satisfy at

least two of the three requirements of a

waiver of recovery: (1) that he or she was

without fault in receiving the overpayment

and either (2) that recovery of the overpayment would defeat the purpose of Title II

or (3) that recovery of the overpayment would

be against equity and good conscience.

Drawing from the SSA and its regulations, in SSR

87-16c, SSA sets out the legal framework for an

overpayment and defenses to it:

42 U.S.C. Section 404(b) provides:

In any case in which more than the correct

amount of payment has been made, there

shall be no adjustment of payments to, or

recovery by the United States from, any

person who is without fault if such adjustment or recovery would defeat the purpose of

this subchapter or would be against equity

and good conscience.

The Secretary has promulgated regulations

which interpret the meaning of the statutory

phrases: “defeat the purpose of ” and “against

equity and good conscience.” Defeating the

purpose of Title II is defined at 20 C.F.R.

§ 404.508 (1985):

General. “Defeat the purpose of title II,”

for purposes of this subpart, means defeat

the purpose of benefits under this title,

i.e., to deprive a person of income

required for ordinary and necessary

living expenses. This depends upon

whether the person has an income or

financial resources sufficient for more

than ordinary and necessary needs, or is

dependent upon all of his current benefits

for such needs.

***

(b) When adjustment or recovery will

defeat the purpose of title II. Adjustment

or recovery will defeat the purposes of

title II in (but is not limited to) situations

where the person from whom recovery is

sought needs substantially all of his

current income (including social security

monthly benefits) to meet current

ordinary and necessary living expenses.

Against equity and good conscience

is defined at 20 C.F.R. § 404.509

(1985):

“Against equity and good conscience”

means that adjustment or recovery of

an incorrect payment (under title II

or title XVIII) will be considered

inequitable if an individual, because

of a notice that such payment would

be made or by reason of the incorrect

payment, relinquished a valuable

right (examples (1) and (4)) or

changed his or her position for the

worse (examples (2) and (3)). In

reaching such a determination, the

individual’s financial circumstances

are irrelevant.

If José Luis Vaello-Madero had gone through the

administrative hearing process, he would have had

the burden to show that he qualified for a waiver of

the alleged overpayment based on being (1) without

fault in his receipt of the SSI benefits; (2) of the

overpayment action defeating the purposes of the

statute; or (3) that SSA’s overpayment action would be

against equity and good conscience. See SRR 87-16c.

José Luis Vaello-Madero never got to this stage of

the administrative process; either he was unaware of

a potential waiver or he was unaware of his right to

contest the overpayment administratively on one of

the above grounds. If he had raised any of these issues

before an Administrative Law Judge, given his poverty

status, he might have obtained a waiver for any of the

above reasons.

Needless to say that the legal framework that an

Administrative Law Judge would have had to consider

had José Luis Vaello-Madero demanded a hearing in

order to have a waiver defense adjudicated. But, no

Administrative Law Judge would be authorized to

correct the misapplication of SSA’s foreign-country

rule to José Luis Vaello-Madero—only this Court has

the authority to do justice in that regard.

As José Luis Vaello-Madero had traveled to Puerto

Rico while a New York SSI beneficiary, SSA’s Puerto

Rico field office became “responsible for such postentitlement (sic) items as overpayments. . . .” POMS

GN 00904.300 at https://secure.ssa.gov/apps10/poms.

nsf/lnx/0200904300 (SSI applications for individuals

who move to Puerto Rico or the U.S. Virgin Islands).

Thus, the Puerto Rico DDS was responsible for

preparing the administrative file in this matter. Id. It

is plain that Puerto Rico DDS applied SSA’s foreign

policy rule in terminating José Luis Vaello-Madero’s

SSI benefits.

IV. José Luis Vaello-Madero has no standing

to bring the claim that Congress violated

the equal-protection component of the Due

Process Clause of the Fifth Amendment by

establishing Supplemental Security Income,

but not extending it to Puerto Rico and the

Supreme Court and the First Court of

Appeals lack subject matter jurisdiction to

hear this claim

José Luis Vaello-Madero has no standing to raise

the claim that the failure of Congress to extend the SSI

program to Puerto Rico violates the equal-protection

component of the Due Process Clause of the Fifth

Amendment. To that extent, we agree with the

government that the First Circuit should not have

decided that claim, and José Luis Vaello-Madero’s lack

of standing deprives this court of subject matter

jurisdiction over the due process-equal protection

claim.

José Luis Vaello-Madero is not a Puerto Rico

domiciliary seeking to apply for SSI benefits under

Title XIV of the SSA. Accordingly, this is not a case of

exclusion, i.e., José Luis Vaello-Madero was not denied

the right to apply for or become eligible for SSA’s Title

XVI program of Supplemental Security Income. For

this reason, he has no standing to bring a claim before

this Court on behalf of or as an example of Puerto

Ricans who reside in Puerto Rico and who are not

statutorily entitled to participate in the SSI program.

To that extent the Supreme Court lacks and the First

Circuit lacked subject matter jurisdiction over the

claim whether individuals in Puerto Rico should be

eligible for Title XVI SSI benefits, since José Luis

Vaello-Madero was always a participant of the SSI

program. Texas v. Pennsylvania, 592 U.S. ___, 141 S.Ct.

1230 (2020); Arizona Christian School Tuition Org. v.

Winn, 563 U.S. 125 (2011).

Since he has participated in the SSI program since

2012, José Luis Vaello-Madero has not shown an injury

that affects him in a personal and individual way due

to a statutory exclusion since he was not excluded from

applying for or receiving SSI benefits in New York. Cf.

Thole v. U.S. Bank, 140 S.Ct. 1615 (2020) (plaintiffs had

no stake in the lawsuit, win or lose their benefits

remain unchanged). Here win or lose, José Luis VaelloMadero still has a right to have his SSI benefits

reinstated; he has never filed an application for SSI

benefits in Puerto Rico and thus presents no concrete

injury from the alleged statutory exclusion which form

the basis for the First Circuit’s opinion in this case.

Cf. Carney v. Adams, 592 U.S. ___, 141 S.Ct. 493 (2020)

(failure to apply for a judicial vacancy failed to show

personal, concrete, and imminent injury). Arizona

Christian School Tuition Org. v. Winn, 563 U.S. 125

(2011) (lack of personal injury); Elk Grove United

School Dist. v. Newdow, 542 U.S. 1 (2004) (lack of

prudential standing).

José Luis Vaello-Madero cannot manufacture

standing by contending that he is suffering a present

injury of potential ineligibility for a Title XVI claim in

Puerto Rico where he never filed his claim for SSI

benefits. He has a distinct claim which arises from his

New York SSI eligibility and the termination of those

benefits by SSA. Cf. Clapper v. Amnesty Int’l USA, 568

U.S. 398 (2013) (claimants could not manufacture

standing by choosing to make expenditures based on a

hypothetical future harm not currently impending).

José Luis Vaello-Madero has no personal stake in

the Court’s resolution of whether persons who are

domiciled in Puerto Rico are eligible for benefits under

Title XVI, and thus he has no right to bring a Title XVI

Social Security claim raising the issue of the possible

eligibility of Puerto Rico claimants, since his claim

derives exclusively from his domicile in New York. Cf.

Lance v. Coffman, 549 U.S. 434 (2007) (citizen had no

personal stake in an Election Clause claim).

On the other hand, José Luis Vaello-Madero was a

full participant of the SSI program having acquired

that status by his successful application for such

benefits in New York, and thus is subject to SSA’s rules

and regulations, including the obligation to repay any

amount the SSA found to constitute an overpayment.

He has suffered from the misapplication of SSA’s rule

that SSI beneficiaries may not receive SSI benefits if

they reside more than 30 days in a foreign country.

Given the misapplication of the foreign country rule

resulting in José Vaello-Madero’s alleged overpayment, this Court should hold that he is entitled to

reinstatement into the Title XVI program as an SSI

recipient, should continue receiving benefits like any

other SSI beneficiary who moved to Hawaii, Alaska, or

the Northern Mariana Islands, and should have his

overpayment waived or annulled, his SSI benefits

restored, and should be paid all back benefits due from

the date of the termination of his SSI benefits. See

POMS SI 02301.205 at https://secure.ssa.gov/apps10/

poms.nsf/lnx/0502301205 (suspension and reestablishing eligibility) (last visited May 27, 2021).

---------------------------------♦---------------------------------

CONCLUSION

For the reasons stated above, and those offered by

plaintiff-appellants, the Court should find that SSA

misapplied its foreign country rule in terminating Jose

Luis Vaello-Madero’s SSI benefits, order that his SSI

benefits be restored, that he be paid back benefits from

the date of SSA’s termination of his SSI benefits, and

have the $28,081 alleged overpayment either waived

or annulled.

The Court should also reverse the First Circuit

Court of Appeals on the question of extending SSI

benefits to Puerto Rico domiciliaries as José Luis

Vaello-Madero lacked standing to bring such a claim.

Respectfully submitted,

DATED: June 7, 2021

MANUEL DEL VALLE COLÓN

Counsel of Record

INTERAMERICAN LAW SCHOOL

INTERAMERICAN INSTITUTE FOR CONSTITUTIONAL RIGHTS

INTERAMERICAN LAW SCHOOL

Urb. Industrial

Calle Federico Costa # 170

Hato Rey, P.R. 00918-1303

787-751-1912

mdelvalle@juris.inter.edu

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.