FILED
NOT FOR PUBLICATION NOV 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
J. M. H-B., a minor, No. 09-55688
Plaintiff - Appellant, D.C. No. 2:07-cv-01764-PLA
v.
MEMORANDUM *
MICHAEL J. ASTRUE,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Paul L. Abrams, Magistrate Judge, Presiding
Submitted October 5, 2010 **
Pasadena, California
Before: FISHER and BYBEE, Circuit Judges, and STROM, District Judge.***
Plaintiff-Appellant J.M. H-B. appeals the district court’s decision affirming
the Social Security Commissioner’s (“the Commissioner”) denial of her
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lyle E. Strom, Senior U.S. District Judge for the
District of Nebraska, sitting by designation.
applications for surviving child’s insurance benefits and a lump-sum death
payment. Appellant argues that the district court erred in deferring to the
Administrative Law Judge’s (“ALJ”) interpretation of the relevant statutes and
regulations in denying her claim, and that her equal protection rights were violated.
Because we find that the Social Security Administration (“SSA”) has not addressed
the regulatory language at issue, we vacate and remand to the Social Security
Administration for a more adequate explanation.
Under the Social Security Act, a child may qualify for surviving child’s
insurance benefits by establishing the insured parent’s paternity through one of
several methods. Appellant argues she qualifies if either of the following two
methods is employed: (1) applying the state law on devolution of intestate
property of the insured’s domicile state at the time of death, 42 U.S.C. §
416(h)(2)(A), or (2) establishing paternity “before the death of such insured
individual” through a written acknowledgment of paternity by the insured, a court
decree, or a court order to pay support, 42 U.S.C. § 416(h)(3)(C)(i).
The plain text of § 416(h)(3)(C)(i) forecloses Appellant’s claims on the latter
ground because it explicitly requires that paternity be established “before the
death” of the insured parent. This means Appellant’s only route to benefits is
through § 416(h)(2)(A), which requires her to show a parental relationship existed
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under the relevant state laws, in this case, California Probate Code § 6453(b)(1).
This provision acknowledges paternity if a court order of paternity was entered
“during the father’s lifetime.” Appellant argues that a separate SSA regulation
added in 1998, 20 C.F.R. § 404.355(b)(2), eliminates the state law requirement that
the court order of paternity must be entered during the father’s lifetime. This
regulation provides that SSA “will not apply any State inheritance law requirement
that an action to establish paternity . . . be taken within a specified period of time
measured from the worker’s death or the child’s birth, or . . . have been started or
completed before the worker’s death.” 20 C.F.R. § 404.355(b)(2).
We will defer to an agency’s interpretation of its own regulation if it is not
“plainly erroneous or inconsistent with the regulation.” Thomas Jefferson Univ. v.
Shalala, 512 U.S. 504, 512 (1994). Here, the Commissioner argues that section
6453(b)(1)’s requirement that the father still be alive when paternity is declared is
unaffected by section 404.355(b)(2) because the latter only affects the statute of
limitations. This is a reasonable interpretation of the first clause of the first
sentence of section 404.355(b)(2). That portion of the regulation reads:
We will not apply any State inheritance law requirement that an action
to establish paternity must be taken within a specified period of time
measured from the worker's death or the child's birth . . . .
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20 C.F.R. § 404.355(b)(2) (emphasis added). The language—“within a specified
period of time”— directly addresses the statute of limitations issue.
The Commissioner’s argument, however, fails to address the second half of
the first sentence of section 404.355(b)(2). That portion of the regulation reads:
We will not apply any State inheritance law requirement . . . that an
action to establish paternity must have been started or completed
before the worker's death.
20 C.F.R. § 404.355(b)(2) (emphasis added). On its face, this language addresses
an issue separate from the statute of limitations issue. First, this second portion of
the sentence, unlike the first part of the sentence, does not contain language that
clearly refers to statutes of limitations, such as “within a specified period of time.”
Second, reading this portion of the sentence as referring to statutes of limitations
would render it superfluous because the first portion of the sentence already
addresses the statute of limitations issue directly. Reading this language as
addressing only state statutes of limitations is therefore inconsistent with the
language of the regulation.
Although the agency has not addressed the precise language identified
above, we hesitate to impose a construction without giving the agency an
opportunity to clarify its interpretation. We therefore remand this case back to the
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Commissioner to give the agency an opportunity to clarify its interpretation of 20
C.F.R. § 404.355(b)(2) in light of the regulatory language identified above.
Because we remand to the Social Security Administration for clarification of
its interpretation of 20 C.F.R. § 404.355(b)(2), we do not reach Appellant’s equal
protection claims.
Accordingly, we VACATE the Order of the district court and REMAND to
the district court with instructions to remand to the Commissioner for further
proceedings consistent with this disposition.
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