George N. Allen v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE N. ALLEN,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 19-15987
D.C. No.
1:17-cv-00239-
DAD-JDP
OPINION
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted February 7, 2022
San Francisco, California
Filed May 24, 2022
Before: Kim McLane Wardlaw, Sandra S. Ikuta, and
Bridget S. Bade, Circuit Judges.
Opinion by Judge Ikuta

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ALLEN V. KIJAKAZI 2
SUMMARY*
Social Security
The panel affirmed the district court’s decision upholding
the Commissioner of Social Security’s determination that
claimant George Allen was ineligible for disability benefits
under the Social Security Act due to his confinement by court
order in Coalinga State Hospital pending his trial under
California’s Sexually Violent Predator Act (“SVPA”).
The SVPA authorizes the involuntary civil commitment
of an individual who is found to be a “sexually violent
predator.” Cal. Welf. & Inst. Code §§ 6600–09. The Social
Security Act provides that no monthly benefits shall be paid
to individuals who are confined at public expense, including
someone who “immediately upon completion of
confinement” for a criminal sexual offense “is confined in an
institution at public expense pursuant to a finding that the
individual is a sexually dangerous person or a sexual predator
or a similar finding.” 42 U.S.C. § 402(x)(1)(A)(iii).
At the time he received disability benefits, George Allen
was civilly confined at public expense by court order
pursuant to the SVPA after a probable cause hearing, but
before a full civil commitment trial. The panel held that
§ 402(x)(1)(A)(iii) applies to a person who is civilly confined
at a public expense pursuant to SVPA.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ALLEN V. KIJAKAZI 3
The panel concluded that the state trial court’s
confinement order in Allen’s case was pursuant to “a finding
that [Allen] is a sexually dangerous person or a sexual
predator or a similar finding” for purposes of
§ 402(x)(1)(A)(iii). Further, the state court made the requisite
finding that there was probable cause to believe that Allen
“will engage in sexually violent criminal conduct if released,”
and that “the sexually violent criminal conduct will be
predatory in nature.” This finding qualified as a finding that
Allen was a “sexually dangerous person or a sexual predator
or a similar finding” as required by § 402(x)(1)(A)(iii). The
state court’s finding was made after a hearing subject to
robust procedural protections, and Allen did not argue that the
procedure was constitutionally insufficient to detain Allen
pending a trial. The state court then issued a confinement
order based on this finding, which was sufficient for purposes
of § 402(x)(1)(A)(iii). Accordingly, the panel concluded that
the Commissioner did not err in concluding that Allen was
not eligible for benefits while civilly confined at state
expense.

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ALLEN V. KIJAKAZI 4
COUNSEL
Rylee Olm (argued), R. Adam Lauridsen, and Maya
Perelman, Keker Van Nest & Peters LLP, San Francisco,
California; for Plaintiff-Appellant.
Philip A. Scarborough (argued), Assistant United States
Attorney; McGregor W. Scott, United States Attorney;
United States Attorney’s Office, Sacramento, California; sfor
Defendant-Appellee.
OPINION
IKUTA, Circuit Judge:
The Social Security Act provides that “no monthly
benefits” shall be paid to individuals who are confined and
maintained at public expense, including any individual who
“immediately upon completion of confinement” for a criminal
sexual offense “is confined by court order in an institution at
public expense pursuant to a finding that the individual is a
sexually dangerous person or a sexual predator or a similar
finding.” 42 U.S.C. § 402(x)(1)(A)(iii).
This appeal raises the question whether
§ 402(x)(1)(A)(iii) applies to a person who was civilly
confined at public expense pursuant to California’s Sexually
Violent Predator Act (SVPA), Cal. Welf. & Inst. Code
§§ 6600–09, which authorizes a court to confine a person
pursuant to a finding that there is probable cause that the
person is a sexually violent person. See Cal. Welf. & Inst.
Code § 6602. We hold that § 402(x)(1)(A)(iii) authorizes the

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ALLEN V. KIJAKAZI 5
government to suspend payment of benefits to a person
confined pursuant to Cal. Welf. & Inst. Code § 6602.
I
George Allen was convicted of two counts of rape, see
Cal. Pen. Code § 261, in March 1995, and was sentenced to
a term of seventeen years. Eight years later, Allen was
scheduled to be released on parole. Before his release, the
state petitioned the trial court to order Allen civilly detained
pending further proceedings under the SVPA.
After a hearing at which Allen was present and
represented by appointed counsel, see Cal. Welf. & Inst. Code
§ 6601.5, the trial court found that “there is a strong
suspicion” that Allen had been convicted of two predicate
offenses under the SVPA, and that he “has a diagnosed
mental disorder that makes him a danger to the health and
safety of others; in that it is likely that he would engage in
sexually violent behavior if released from the jurisdiction of
the Department of Corrections.” The court ordered Allen
detained at Atascadero State Hospital pending a further
probable cause hearing under the SVPA. See id. § 6602.
The trial court subsequently held a probable cause hearing
required under the SVPA. See id. Allen was again present
and represented by counsel. After the state presented its case
and Allen moved to dismiss the petition, the court rejected
Allen’s motion and made the findings required to confine
Allen pending a civil commitment trial. Its order stated:
The Court finds that there is a strong
suspicion that the person named in the petition
George Allen:

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ALLEN V. KIJAKAZI 6
(1) Has been convicted of a qualifying
sexually violent offense,
(2) That the defendant suffers from a
diagnosable mental disorder,
(3) That the disorder makes it likely that they
will engage in sexually violent criminal
conducted if released . . . , and
(4) That the sexually violent criminal conduct
will be predatory in nature.
The court entered an order requiring Allen to “remain in
custody in a secure facility pending trial.”
In February 2012, while confined by court order in
Coalinga State Hospital pending his trial under the SVPA,
Allen applied for Social Security disability benefits. The
Social Security Administration (SSA) approved his
application, and Allen received benefits totaling $20,647
between March 2012 and April 2014.
In May 2014, the SSA notified Allen that these benefits
had been issued in error, and required him to refund the
benefits previously paid. Allen challenged that determination
and requested a hearing before an Administrative Law Judge
(ALJ). After a hearing, the ALJ determined that
§ 402(x)(1)(A)(iii) made Allen ineligible for benefits, and
ordered him to repay the $20,647 to the SSA.
In his decision, the ALJ rejected Allen’s argument that
§ 402(x)(1)(A)(iii) did not apply because he had not yet been
determined to be a sexually violent predator at a civil

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ALLEN V. KIJAKAZI 7
commitment trial. The ALJ reasoned that Allen had “already
been deemed [a sexually violent predator] civil detainee,” and
was confined in a state hospital. Further, the ALJ held that
even if Allen was not yet determined to be a sexually violent
predator when he received the benefits, Allen was overpaid
because he “remained in custody in a secure facility.” Allen
sought judicial review of the ALJ’s decision in the district
court.1 The district court concluded that Allen was not
eligible for disability benefits. Allen timely appealed.
II
We have jurisdiction under 28 U.S.C. § 1291. We review
the district court’s judgment upholding the Commissioner’s
denial of benefits de novo. Larson v. Saul, 967 F.3d 914, 922
(9th Cir. 2020), cert. denied, 142 S. Ct. 896 (2022). “We
must affirm the Commissioner’s decision if it is supported by
substantial evidence and if the Commissioner applied the
correct legal standards.” Holohan v. Massanari, 246 F.3d
1195, 1201 (9th Cir. 2001).
A
The Social Security Act makes monthly insurance
payments available to retired and disabled workers, and to the
survivors of deceased workers, to replace the loss of income.
42 U.S.C. §§ 402, 423. In 1980, the Act was amended to
preclude the payment of disability benefits to incarcerated
1 In February 2018, while Allen’s appeal was pending in the district
court, Allen’s civil commitment trial finally took place. The jury
unanimously found Allen a sexually violent predator beyond a reasonable
doubt. Following the verdict, the court ordered Allen civilly committed
for an indefinite period. See Cal. Welf & Inst. Code § 6604.

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ALLEN V. KIJAKAZI 8
felons. See Quinlivan v. Sullivan, 916 F.2d 524, 525 (9th Cir.
1990).2 The statute has since been amended to cover other
individuals confined in institutions at public expense. See,
e.g., 140 Cong. Rec. H11010-01, H11011, 1994 WL 553465;
145 Cong. Rec. H12174-03, H12187, 1999 WL 1041261. In
1999, Congress added § 402(x)(1)(A)(iii) to the Act, which
provides that “no monthly benefits” shall be paid to
individuals who are confined for specified reasons, including
any individual who:
immediately upon completion of confinement
[in a jail, prison, or other penal institution or
correctional facility] pursuant to conviction of
a criminal offense an element of which is
sexual activity, is confined by court order in
an institution at public expense pursuant to a
finding that the individual is a sexually
dangerous person or a sexual predator or a
similar finding.
42 U.S.C. § 402(x)(1)(A)(iii).
The question before us is whether this section applies to
a person who is civilly confined at public expense by court
order pursuant to the SVPA after a probable cause hearing,
but before a full civil commitment trial.
2 The Senate Report accompanying the bill explained that “[t]he
disability program exists to provide . . . income to those whose earnings
are cut off because they have suffered a severe disability. The need for
this continuing source of income is clearly absent in the case of an
individual who is being maintained at public expense in prison.” S.Rep.
No. 96-987, at 8 (1980), 1980 U.S.C.C.A.N. 4787.

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ALLEN V. KIJAKAZI 9
B
We begin by briefly outlining the SVPA scheme. The
SVPA authorizes the involuntary civil commitment of an
individual who is found to be a “sexually violent predator.”
Cal. Welf. & Inst. Code §§ 6600–09. The SVPA defines a
sexually violent predator as “a person who has been
convicted of a sexually violent offense against one or more
victims and who has a diagnosed mental disorder that makes
the person a danger to the health and safety of others in that
it is likely that he or she will engage in sexually violent
criminal behavior.” Id. § 6600(a)(1).
The statute sets forth “a complex administrative and
judicial process to determine whether an offender should be
civilly committed as an SVP,” the last step of which is a civil
trial. Cooley v. Superior Ct., 29 Cal. 4th 228, 244 (Cal.
2002), as modified (Jan. 15, 2003). Before a prisoner’s
scheduled release date, prison officials may refer a prisoner
suspected of being a sexually violent predator to evaluation,
including a mental health evaluation. Cal. Welf. & Inst. Code
§ 6601(a). If two mental health professionals “concur that the
person has a diagnosed mental disorder so that [he or she] is
likely to engage in acts of sexual violence without appropriate
treatment and custody,” prison officials “shall forward a
request for a petition for commitment” to the appropriate
county. Id. § 6601(d). The state district attorney or county
counsel may then file a petition for commitment with the state
trial court. Id. § 6601(i). If the judge determines that the
petition “states or contains sufficient facts that, if true, would
constitute probable cause to believe that the individual named
in the petition is likely to engage in sexually violent predatory
criminal behavior upon his or her release,” the judge “shall

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ALLEN V. KIJAKAZI 10
order that the person be detained in a secure facility until a
hearing can be completed.” Id. § 6601.5.
At the subsequent probable cause hearing, the trial court
“shall determine whether there is probable cause to believe
that the individual named in the petition is likely to engage in
sexually violent predatory criminal behavior upon his or her
release.” Id. § 6602(a). In this context, the phrase “likely to
engage in sexually violent predatory criminal behavior upon
his or her release” means that the person “presents a serious
and well-founded risk of committing sexually violent criminal
acts that will be of a predatory nature” if free in the
community. Cooley, 29 Cal. 4th at 236 (emphasis in
original). The individual named in the petition is entitled to
assistance of counsel at this hearing. Id. at 245 (citing Cal.
Welf. & Inst. Code § 6602(a)). The SVPA itself does not
delineate the procedure for the probable cause hearing, but
the California Supreme Court has held “that the hearing
includes cross-examination of any experts relied on by the
[state] and the presentation of oral and written evidence
bearing on probable cause.” Id. at 245 n.8. “The person
named in the petition is thus allowed to ‘challenge the
accuracy’ of the evaluations by experts who found that he or
she met the criteria for an SVP.” Id. The person may also
“call other witnesses who have relevant evidence to give
bearing on the issue of probable cause.” Id.
Under California law, “the probable cause determination,
like the ultimate determination to be made at trial,
encompasses all four of the elements contained in the
definition of an SVP.” See id. at 250. Specifically, the court
must make findings of a “statutorily defined diagnosed
mental disorder,” of “future dangerousness,” that “the future
acts of sexual violence will be predatory,” and that “the

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ALLEN V. KIJAKAZI 11
offender has been convicted of at least one qualifying
offense.” Id. at 248–49. “[A] determination of probable
cause by a superior court judge under the SVPA entails a
decision whether a reasonable person could entertain a strong
suspicion that the offender is an SVP.” Id. at 252 (partial
emphasis in original). In reaching this conclusion, the judge
“may weigh the evidence, resolve conflicts, and give or
withhold credence to particular witnesses.” Id. at 257. The
trial court “may not substitute its own personal belief as to the
ultimate determination to be made at trial for that of a
reasonable person evaluating the evidence.” Id. at 258.
If the trial court determines that there is probable cause,
“the judge shall order that the person remain in custody in a
secure facility until a trial is completed and shall order that a
trial be conducted to determine whether the person is, by
reason of a diagnosed mental disorder, a danger to the health
and safety of others in that the person is likely to engage in
acts of sexual violence upon his or her release from the
jurisdiction of the Department of Corrections or other secure
facility.” Id. at 245 (citing Cal. Welf. & Inst. Code
§ 6602(a)).
At the civil commitment trial, the jury is charged with
determining whether the individual is a sexually violent
predator as defined in § 6600(a)(1) beyond a reasonable
doubt. Cal. Welf. & Inst. Code § 6604. A jury verdict on the
issue must be unanimous. Id. § 6603(g).
III
We next turn to the question whether a finding that the
person named in a petition for confinement under the SVPA
“is likely to engage in sexually violent predatory criminal

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ALLEN V. KIJAKAZI 12
behavior upon his or her release” and “is likely to engage in
acts of sexual violence upon his or her release,” Cal. Welf. &
Inst. Code § 6602(a), qualifies as “a finding that the
individual is a sexually dangerous person or a sexual predator
or a similar finding” as required by § 402(x)(1)(A)(iii).
Allen argues that a finding under section 6602 does not so
qualify. His primary argument is that the use of the word “is”
in § 402(x)(1)(A)(iii) (which requires “a finding that the
individual is a sexually dangerous person” (emphasis added))
calls for a higher degree of certainty than probable cause.
Allen gives a number of reasons for this assertion. First, he
argues that a finding based on probable cause requires only a
likelihood that something will occur, whereas the word “is”
in § 402(x)(1)(A)(iii) connotes greater certainty and therefore
necessitates a finding beyond a reasonable doubt. In support
of this argument, he notes that a state court can make a
probable cause finding under the SVPA with less evidence
than would be required at trial. For instance, while a jury
must find four elements beyond a reasonable doubt in order
to conclude that an individual meets the definition of a
sexually violent predator, Allen argues that a trial court need
not find all four elements in order to make a probable cause
determination.3 In addition, Allen argues that an individual
at a probable cause hearing under the SVPA is deprived of
the procedural safeguards required at trial, such as the right
to trial by jury, a right to retain experts, and a right to all
relevant records and reports. Because a probable cause
finding that an individual is a sexually violent predator under
3 Contrary to Allen’s argument, the California Supreme Court has
determined that the probable cause hearing encompasses all four of these
elements. See supra Section II.B; see also Cooley, 29 Cal. 4th at 250.

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ALLEN V. KIJAKAZI 13
the SVPA cannot result in the certainty provided by a jury
trial, Allen claims, the probable cause finding does not result
in a finding that an individual “is” a sexually dangerous
person or a sexual predator.
We disagree that the use of the word “is” in
§ 402(x)(1)(A)(iii) requires a greater degree of certainty than
provided by the probable cause standard in section 6602.
First, § 402(x)(1)(A)(iii) itself does not require that the
requisite finding be made by a court or jury beyond a
reasonable doubt. Nor does the federal statute prescribe any
procedural requirements that must be followed in state civil
commitment proceedings.
Moreover, Allen’s claim that the word “is” requires
certainty fails when we consider the nature of the finding
required by § 402(x)(1)(A)(iii). A determination that an
individual is a “sexually dangerous person” or a “sexual
predator” is inherently forward-looking and therefore based
on a likelihood (or probability) of future activity. Under the
common usage of the terms in the federal statute in 1999,
when § 402(x) was amended to include them, the word
“dangerous” was defined as “likely to cause injury, pain,
etc.,” and “predator” was defined as a person “characterized
by plundering, robbing, or exploiting others.” Webster’s
New World College Dictionary, Fourth Edition (1999). In
other words, a finding that a person is sexually dangerous or
a sexual predator requires a prediction of future behavior,
based on evidence regarding the person’s past history and
character. Because there can be no certainty about a
prediction of future behavior, cf. D.C. v. Wesby, 138 S. Ct.

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ALLEN V. KIJAKAZI 14
577, 586 (2018), the finding required by § 402(x)(1)(A)(iii)
is consistent with section 6602’s probability-based standard.4
For the same reason, Allen’s reliance on a Second Circuit
case to support his statutory interpretation is misplaced. See
Clark v. Astrue, 602 F.3d 140, 147 (2d Cir. 2010). In Clark,
the Second Circuit interpreted statutory language that
prohibited the payment of monthly benefits to an individual
who “is violating a condition of probation or parole imposed
under Federal or State law.” 602 F.3d at 147 (citing
42 U.S.C. §§ 1382(e)(4)(A)(ii), 402(x)(1)(A)(v)). The
Second Circuit held that a court could generally not base a
conclusion that a “person is . . . violating a condition of
probation or parole” solely on the fact that an arrest warrant
based on probable cause had issued for such a violation. Id.
Clark reasoned that the federal statute incorporated the
general burden of proof for civil cases, and therefore a court
had to find that the violation of parole “is more likely than not
true.” Id. at 148. Allen argues that the same reasoning
should apply here: just as it was not enough for the
government to show probable cause that “the person . . . is
violating a condition of probation or parole,” it is not enough
to show probable cause that a person “is a sexually dangerous
person or a sexual predator.”
4 Our interpretation of these terms as future looking is further
supported by Congress’s subsequent definition of the term “sexually
dangerous person” to include “a person who . . . is sexually dangerous to
others,” which means “that the person suffers from a serious mental
illness, abnormality, or disorder as a result of which he would have serious
difficulty in refraining from sexually violent conduct or child molestation
if released.” 18 U.S.C. § 4247 (a)(5)–(6); see also United States v.
Comstock, 560 U.S. 126, 143 (2010) (recognizing Congress’s power to
civilly confine sexually violent individuals who “would pose an especially
high danger to the public if released”) (emphasis added).

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ALLEN V. KIJAKAZI 15
This argument fails because Clark involved a federal,
rather than a state standard. In Clark, the Second Circuit had
to determine the standard applicable to a federal agency’s
determination of a historical fact, that is, whether an
individual violated a condition of parole. See 602 F.3d at
147. A federal court could reasonably infer that Congress
intended the general civil standard to apply to a federal
agency’s determination of that statutory requirement. See
Herman & MacLean v. Huddleston, 459 U.S. 375, 389–90
(1983). By contrast, § 402(x)(1)(A)(iii) requires a federal
agency to determine whether a state court made a specified
prediction of future dangerousness. The burden of proof
required for the state court’s finding would be determined by
state law, subject only to constitutional due process
limitations. See, e.g., Kansas v. Hendricks, 521 U.S. 346, 360
(1997); see also Taylor v. San Diego, 800 F.3d 1164, 1173
(9th Cir. 2015). Absent clear direction in the federal statute,
there is no basis for inferring that state courts were required
to make a predictive finding by a specified burden of proof in
order for it to qualify as a finding for purposes of
§ 402(x)(1)(A)(iii).
By contrast, several textual clues tell us that
§ 402(x)(1)(A)(iii) includes findings made at a probable cause
proceeding such as those contemplated by the SVPA. First,
the federal statute’s requirement that the state court’s order be
made “immediately upon completion of confinement,”
§ 402(x)(1)(A)(iii), indicates that Congress sought to prohibit
benefit payments to individuals civilly confined (and
therefore living at public expense) shortly after the end of a
term of imprisonment. At the time § 402(x)(1)(A)(iii) was
enacted, many existing state confinement systems included a
scheme similar to California’s SVPA, where an individual
could be civilly confined based on probable cause pending

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ALLEN V. KIJAKAZI 16
trial on a petition for civil commitment.5 Because the process
for completing a full jury trial takes some time, a jury’s ruling
on civil commitment could not realistically be completed
“immediately upon completion” of a prisoner’s confinement.
Therefore, it is reasonable to conclude that an order made
“immediately upon completion of confinement” for purposes
of § 402(x)(1)(A)(iii) could be based on some preliminary
proceeding, such as a probable cause hearing.6
There is a second textual clue: § 402(x)(1)(A)(iii)
provides that a qualifying court order may be based on a
finding that is similar to a finding that the individual “is a
sexually dangerous person or a sexual predator.” The phrase
“or a similar finding,” see § 402(x)(1)(A)(iii), acknowledges
that states may adopt a range of different statutory schemes,
with different terminology and different procedures, in order
to make a finding that a sexually dangerous person should be
5 See Ariz. Rev. Stat. Ann. § 36-3705(A), (B); Fla. Stat. Ann.
§ 394.915(1), (2); 725 Ill. Comp. Stat. Ann. 207/15(c); Iowa Code Ann.
§ 229A.5(1)–(2); Kan. Stat. Ann. § 59-29a05(a)–(b); Mass. Gen. Laws
Ann. ch. 123A, § 12(c); Mo. Ann. Stat. § 632.489(1)–(2); N.J. Stat. Ann.
§ 30:4-27.28(g); N.D. Cent. Code §§ 25-03.3-08(1), 25-03.3-11; S.C.
Code Ann. § 44-48-80(A)–(B); Wash. Rev. Code Ann.
§ 71.09.040(1)–(2); Wis. Stat. Ann. § 980.04(1)–(2).
6 Allen argues that a better interpretation of “immediately” is that it
requires the chain of confinement to be unbroken between the completion
of the criminal sentence and the civil commitment trial. We reject this
interpretation, because it is contrary to the definition of “immediately,”
which means “without delay” or “at once.” See Webster’s New World
College Dictionary, Fourth Edition (1999). Under the natural reading of
§ 402(x)(1)(A)(iii), the court’s confinement order must occur “without
delay” after completion of the individual’s sentence. The statute does not
say that the court’s confinement order must occur without a break in
confinement.

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ALLEN V. KIJAKAZI 17
civilly committed. A finding of sexual dangerousness after
a probable cause hearing fits well within the requirement of
§ 402(x)(1)(A)(iii) that the person be “confined by court
order” pursuant to a finding similar to a finding that the
individual “is a sexually dangerous person or a sexual
predator.”
We disagree with Allen’s argument that the phrase “a
similar finding” refers solely to the label the state uses to
describe a sexually dangerous individual. Although we agree
that state schemes may refer to sexually violent predators
using terms other than “sexually dangerous person” or
“sexual predator,” the broad language in § 402(x)(1)(A)(iii)
permits different state procedures for making a finding as
well as different state terminology for the substantive finding.
Our interpretation of § 402(x)(1)(A)(iii) as allowing
flexibility regarding the type of state court order that meets its
requirement is consistent with the statute’s purpose to
preclude the payment of benefits to those confined at public
expense. See § 402(x)(1)(A). Nothing in the federal statute
suggests that Congress intended for individuals confined “at
public expense” to receive Social Security benefits merely
because the confinement order was based on a probable cause
finding. Just like an individual indefinitely confined at a state
hospital, an individual preliminarily confined at a state
hospital awaiting trial receives the same public benefits such
as state-funded food and housing. Thus, allowing states
leeway in prescribing the procedure, burden of proof, and
type of finding by which a sexually dangerous individual “is
confined by court order in an institution at public expense,”
furthers the purpose of the federal statute.

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ALLEN V. KIJAKAZI 18
We also reject Allen’s argument that a finding pursuant to
a probable cause hearing is insufficiently robust or lacks the
procedural safeguards to be an adequate finding under
§ 402(x)(1)(A)(iii). Any valid confinement order must be
issued pursuant to a procedure that meets constitutional
standards. See Hendricks, 521 U.S. at 360–61; Taylor, 800
F.3d at 1173. Allen does not suggest that the SVPA’s
probable cause hearing fails to meet that standard. And
indeed, as explained above, see supra at Section II.B, the
California Supreme Court has imposed many of the
substantive requirements and procedural safeguards that
Allen claims are missing from a probable cause hearing, see
Cooley, 29 Cal. 4th at 247–48.
Finally, we reject Allen’s argument that
§ 402(x)(1)(A)(iii) requires the state to prove that the person
is sexually dangerous beyond a reasonable doubt in order to
be consistent with § 402(x)(1)(A)(i), which triggers the
suspension of benefit payments to an individual who “is
confined in a jail, prison, or other penal institution or
correctional facility pursuant to his conviction of a criminal
offense.” According to Allen, because an individual covered
by § 402(x)(1)(A)(i) must be confined pursuant to a criminal
conviction based on a jury finding of guilt beyond a
reasonable doubt, § 402(x)(1)(A)(iii) must also require
confinement pursuant to a finding of sexual dangerousness
beyond a reasonable doubt. We disagree. Those two sections
of the statute operate independently of each other, and cover
different situations. Nothing in the text, structure, or purpose
of the statute supports Allen’s argument that the use of the
term “conviction” in § 402(x)(1)(A)(i) changes the meaning
of the term “finding” as used in § 402(x)(1)(A)(iii).

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ALLEN V. KIJAKAZI 19
In sum, § 402(x)(1)(A)(iii) does not itself prescribe any
procedural requirements or burdens of proof, but instead
provides leeway for different state approaches for the civil
confinement of sexually dangerous individuals. So long as a
state’s procedures are constitutionally sufficient to sustain an
order to confine or detain the individual, see, e.g., Hendricks,
521 U.S. at 360, the court order required by
§ 402(x)(1)(A)(iii) could be “pursuant to a finding” made at
a probable cause hearing under the SVPA.7
IV
In light of our interpretation of § 402(x)(1)(A)(iii), the
state trial court’s confinement order in Allen’s case was
pursuant to “a finding that [Allen] is a sexually dangerous
person or a sexual predator or a similar finding” for purposes
of § 402(x)(1)(A)(iii).
The state court made the requisite finding that there was
probable cause to believe that Allen “will engage in sexually
7 Our conclusion is further supported by the agency’s pre-litigation
guidance in its Program Operations Manual System (POMS),“an internal
agency document used by employees to process claims.” Carillo-Yeras
v. Astrue, 671 F.3d 731, 735 (9th Cir. 2011). The agency’s 2013 guidance
for California states that the suspension of benefits under § 402(x)(1)(A)
is appropriate for individuals, like Allen, who “remain[] in custody
through the time of the probable cause hearing” as well as “[d]uring the
period between the probable cause hearing and the trial.” PR 06805.006
California, PR 13-052 Suspension of Title II Benefits for Confined
Persons Identified as Sexually Dangerous Predators in California at n.8,
effective March 26, 2013, available at https://secure.ssa.gov/poms.nsf/l
nx/1506805006. In other words, the Commissioner interpreted
§ 402(x)(1)(A) as applying to an individual who is in custody pursuant to
a court order from a probable cause hearing under the SVPA.

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ALLEN V. KIJAKAZI 20
violent criminal conduct if released,” and that “the sexually
violent criminal conduct will be predatory in nature.” As we
have explained, supra Section III, this finding qualifies as a
finding that Allen is a “sexually dangerous person or a sexual
predator or a similar finding” as required by
§ 402(x)(1)(A)(iii). The state court’s finding was made after
a hearing subject to robust procedural protections, see Cooley,
29 Cal. 4th at 247–48, and Allen does not argue that the
procedure was constitutionally insufficient to detain Allen
pending a trial. The state court then issued a confinement
order based on this finding. This is sufficient for purposes of
§ 402(x)(1)(A)(iii). Accordingly, the Commissioner did not
err in concluding that Allen was not eligible for benefits
while civilly confined at state expense.
AFFIRMED.

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