Don and Janice Schafer married in 1992. Don died the next year. With the help of in vitro fertilization, however, Janice gave birth to W.M.S., Don Schafer’s biological child, a number of years later. Janice Schafer then applied on W.M.S.’s behalf for survivorship benefits under the Social Security Act.This opinion is at odds with Gillett-Netting v. Barnhart, 371 F.3d 593, 597 (9th Cir. 2004) and Capato ex rel. B.N.C. v. Comm’r of Soc. Sec., ___ F.3d ___, 2011 WL 9368 (3d Cir. Jan. 4, 2011). The issue is also pending before the 8th Circuit Court of Appeals at the moment in Beeler v. Astrue.
The Social Security Administration rejected W.M.S.’s claim. Because under its view natural children must be able to inherit from the decedent under state intestacy law or satisfy certain exceptions to that requirement in order to count as "children" under the Act, W.M.S. was not eligible for survivorship benefits. See 42 U.S.C. §§ 416(h)(2), (h)(3)(C). The district court agreed. On appeal, Schafer contends that undisputed natural children such as W.M.S. plainly fall within 42 U.S.C. § 416(e)(1)’s basic definition of "child," making their state intestacy rights irrelevant.
We shall affirm the judgment. The agency’s view best reflects the statute’s text, structure, and aim of providing benefits primarily to those who unexpectedly lose a wage earner’s support. And even if the agency’s interpretation were not the only reasonable one, it falls well within the range of permissible readings entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
This issue does not break down easily on liberal-conservative lines but we cannot completely dismiss that as an issue, especially when talking about the 4th Circuit Court of Appeals which has been highly ideological and right wing in recent years. The Shafer opinion was written by Judge Wilkinson and joined by Judge Agee. Judge Davis dissented. Wilkinson was appointed by President Reagan and Agee by George W. Bush. Davis was appointed by President Obama. A majority of the 4th Circuit's judges are now Democratic appointees. This is a dramatic change since President Obama took office.
I have not talked with the attorneys representing the mother and her child so what follows is just my speculation. I have to expect a motion for rehearing en banc, that is by all the judges on the Court. Rehearing en banc is uncommon but this is an uncommon case and the 4th Circuit is in transition. If the case is not reheard en banc or if it is reheard and the decision remains the same, I expect a petition for certiorari, that is a request that the Supreme Court hear the case. I would expect that petition for certiorari to be granted since the Courts of Appeals would be in disagreement on the issue and that normally gets a case heard at the Supreme Court.
4 comments:
I think it would be a travesty if the decision is reversed on this case. Survivor benefits are intended to ensure that the family of the deceased continues to be cared for after his death. A child that is conceived after his death does not seem to fall into the cateogory of a surviving child. The mother chose to conceive the child after the death of her husband and should have considered her ability to provide for that child. I am usually quite liberal on most cases but this is an attempt to take advantage of a situation that does not fit the intent of the law.
agreed.
With technology, children could be born decades after the father's death. As noted above, these are survivor's benefits. Just when was this child dependent on the father's income for support?
Agree. Consider Zsa Zsa Gabor's husband's announced plans for a surrogate mother to bear Zsa Zsa's child, even though she is 94 years old and has severe health issues. Query whether a child born in these circumstances should get social security benefits. This is not a child who needs to be insured against the loss of a parent with earnings capacity.
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