In this decision, we use the word "allocation" and related terms to refer only to situations in which a party seeks a transfer of Social Security benefit funds from a representative payee to someone other than the designated beneficiary. This case does not require us to decide whether it would be consistent with our decision in C.G.A. v. State, 824 P.2d 1364 (Alaska 1992), for an Alaska court to exercise jurisdiction to order a representative payee to transfer funds back to the beneficiary if the representative payee has misused those funds and/or committed fraud. Cf. Jahnke v. Jahnke, 526 N.W.2d 159, 163 (Iowa 1994).

¶ 34. The preemption cases cited by the dissent, in contrast, do not involve child support calculations that take into account the effect of derivative or other benefits on the needs and obligations of the respective parents, but rather involve more direct attempts by courts to assign such benefits. In Guardianship of Smith, 2011 ME 51, 17 A.3d 136, the trial court ordered father, as representative payee with respect to the disabled child's Supplemental Security Income benefits, to place a portion of the benefits in an account to which mother had limited access. Likewise, in C.G.A. v. State, 824 P.2d 1364 (Alaska 1992), the Alaska Supreme Court reversed a trial court order requiring representative payee mother pay the monthly Social Security derivative benefit to the state, which had custody of the minor child. ¶ 35. Finally, in Brevard v. Brevard, 74 N.C.App. 484, 328 S.E.2d 789 (1985), the North Carolina Court of Appeals ruled that the trial court could not require noncustodial father who received a derivative benefit as representative payee to pay mother the derivative benefit received to date less sums expended by father for the minor child's medical expenses; however, that court also noted that the courts of North Carolina were free to “enter a child support order after making the findings required under [the state's] statutes, and hold the defendant responsible to pay the amount he has been found capable of paying.”

Given the criminal penalty for misuse of funds, some courts have inferred a fiduciary relationship between beneficiary and representative payee, although the statute and implementing regulations do not say as much. See, e.g., Garvey v. Worcester Housing Auth., 629 F.2d 691 (1st Cir. 1980), cert. denied, 450 U.S. 925 (1981); Bradley v. Austin, 841 F.2d 1288 (6th Cir. 1988); C.G.A. v. State, 824 P.2d 1364 (Alaska 1992); In re Estate of Merritt, 272 Ill. App.3d 1017, 651 N.E.2d 680 (1995); Rice v. Perales, 156 Misc.2d 631, 594 N.Y.S.2d 962 (Sup.Ct.), aff'd, 193 A.D.2d 1135, 599 N.Y.S.2d 211 (1993).

See, e.g., Nebraska Dep't of Health Human Servs. Fin. Support v. Wilson, 613 N.W.2d 12 (Neb. 2000); Park Hope Nursing Home, Inc. v. Eckelberger, 185 Misc.2d 617, 713 N.Y.S.2d 918 (N.Y.Sup.Ct. 2000); E.W. v. Hall, 260 Kan. 99, 917 P.2d 854 (Kan. 1996). The third case relied on by appellee is C.G.A. v. State, 824 P.2d 1364, 1369 (Alaska 1992). In C.G.A., the recipient of social security benefits was a minor.

Walker v. State, Dep't of Corr., 421 P.3d 74, 79 n.17 (Alaska 2018) (emphasis in original). See C.G.A. v. State, 824 P.2d 1364, 1370 (Alaska 1992) ("Primary jurisdiction is a doctrine of common law, wholly court-made, that is designed to guide a court in determining whether and when it should refrain from or postpone the exercise of its own jurisdiction so that an agency may first answer some question presented." (quoting 4 KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE, § 22:1, 81 (2d ed. 1983))).

Mason, 280 F.3d at 793. See also C.G.A. v. Alaska, 824 P.2d 1364, 1369 (Alaska 1992) ("[S]o long as the state agency performs its duties as representative payee and spends the funds only on authorized expenses, it would not violate the prohibition on attachment found in section 407(a)'s ban on attachment."). Not only did the plaintiffs lack a clearly established right prior to Keffeler to have Tennessee conserve their Social Security benefits without using any of those monies for their current maintenance, they have no such right at all now that the Supreme Court has issued its decision on the matter.

More generally, several courts have held that the doctrine of federal preemption precludes state courts from exercising jurisdiction to direct a representative payee's disposition of derivative social security funds. E.g., C.G.A. v. State, 824 P.2d 1364, 1367 (Alaska 1992); In re Guardianship of Smith, 2011 ME 51, ¶¶ 13–14, 17 A.3d 136; see LaMothe, 193 Vt. at 426–27, 70 A.3d 977 (Dooley, J., concurring in part and dissenting in part) (discussing cases). But see Hamilton v. Reynolds, 5 N.E.3d 1053, 1061 (Ohio App.2013) (without discussing § 407, court orders nonobligor to reimburse duplicative child support at rate of $500 per month); Orr v. Orr, 871 S.W.2d 695 (Tenn.App.1993) (not discussing § 407 and permitting, with little explanation, credit for a lump-sum payment of SSDI benefits); Rathbone v. Corse, 2015 VT 73, ¶ 19, ––– Vt. ––––, ––– A.3d. –––– (2015) (not discussing § 407 but holding that “[a]llowing reimbursement for payments during the pendency of an application would encourage obligor parents to continue support payments as they await the outcome of their SSDI applications”).

See 20 C.F.R. § 404.2045(a) ("After the representative payee has used benefit payments consistent with the guidelines in this subpart (see § 404.2040 regarding use of benefits), any remaining amount shall be conserved or invested on behalf of the beneficiary.").See C.G.A. v. State, 824 P.2d 1364, 1367 (Alaska 1992) (noting that the State may not order a noncustodial payee parent to pay over a child's Social Security benefits to a custodial parent, even if the payee parent was inappropriately spending the beneficiary's funds, because federal law provides a remedy when an appointed payee abuses her fiduciary duty). In addition, under Alaska Civil Rule 90.3, child support is not income. As Mindy correctly characterizes it: "Here the payments are received because of the death of Ashley's father and come to Ashley, through Mindy, as a substitute for his child support.

The critical issue presented by the Department's assignment of error, then, is whether the county court's order, in response to the motion made by Compau, constituted "legal process" within the meaning of §§ 407 and 231m(a). Authority from federal and state courts indicates that § 407 does not apply to voluntary payments made by a recipient of Social Security benefits. See, e.g., Johnson v. Wing, 178 F.3d 611 (2d Cir. 1999), cert. denied 528 U.S. 1162, 120 S.Ct. 1177, 145 L.Ed.2d 1085 (2000); Fetterusso v. State of N.Y., 898 F.2d 322 (2d Cir. 1990); Moore v. Colautti, 483 F. Supp. 357 (E.D.Pa. 1979), affirmed 633 F.2d 210 (3d Cir. 1980); C.G.A. v. State, 824 P.2d 1364 (Alaska 1992); Tunnicliff v. Com., Dept. of Public Welfare, 483 Pa. 275, 396 A.2d 1168 (1978); Russo v. Russo, 1 Conn. App. 604, 474 A.2d 473 (1984); French v Dep't of Soc Serv, 92 Mich. App. 701, 285 N.W.2d 427 (1979). But see U.S. v. Univ. Hosp. of State Univ. of New York, 575 F. Supp. 607 (E.D.N.Y. 1983), affirmed 729 F.2d 144 (2d Cir. 1984).

The Brevard court speculated that the plaintiff might have an administrative remedy through the SSA or that the SSA might invoke 18 U.S.C. § 641, a criminal statute directed against stealing public money, property, or records. Id; see also C.G.A. v. State, 824 P.2d 1364, 1367 (Alaska 1992) (finding that the existence of a federal remedy preempts state jurisdiction). However, as discussed above, the SSA does not provide a means by which a beneficiary may recover misappropriated funds from a representative payee, in the absence of negligence by the SSA. Consequently, a finding of preemption would result in no available remedy for a beneficiary who has been the victim of misuse of funds by a representative payee.