UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

GEORGE N. ALLEN, No. 19-15987 Plaintiff-Appellant, D.C. No. v. 1:17-cv-00239- DAD-JDP KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee. 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 2 ALLEN V. KIJAKAZI

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. 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. 4 ALLEN V. KIJAKAZI

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