Lead Opinion
Judge Lynch concurs in the judgment and in the opinion of the Court and files a separate concurring opinion.
Plaintiff-Appellant Sharon MacNeil (“MacNeil”) conceived twins via in vitro fertilization eleven years after her husband, the donor spouse, died. After the children — A.T.M. and C.E.M. — were born, MacNeil filed applications for child’s survivors’ benefits, based on her husband’s earnings history, with the Social Security Administration (“SSA”). As relevant here, the SSA has interpreted the governing statute — in an interpretation upheld by the Supreme Court — to treat an individual as a child of the decedent-insured, and thus potentially eligible for survivors’ benefits, if that individual would inherit from the decedent under the intestacy law of the state in which the insured was domiciled. An Administrative Law Judge (“ALJ”) de
MacNeil then filed suit in the United States District Court for the Northern District of New York challenging this determination, and the district court affirmed the agency’s view. We agree with the district court that, under the applicable provisions of New York’s Estates, Powers and Trusts Law (“EPTL”) in effect at and prior to the time of the agency’s final decision, A.T.M. and C.E.M. were not entitled to inherit from the decedent in intestacy. In the absence of any showing of other grounds for eligibility for child’s survivors’ benefits under the Social Security Act, we affirm the judgment of the district court.
BACKGROUND
I. Factual Background
Sharon and Eric MacNeil were married on October 1,1994, a year after they graduated from college. Several months into their marriage, Eric was diagnosed with non-Hodgkin’s lymphoma at the age of 23. The couple, knowing that the cancer might be terminal or that treatment might render Eric sterile, decided to bank Eric’s sperm. Eric died intestate on May 24, 1996, at age 24. In June 2007, eleven years after Eric’s death, Sharon underwent in vitro fertilization using the stored sperm. She gave birth to twins, A.T.M. and C.E.M., on February 14, 2008.
II. Procedural History
On October 8, 2009, MacNeil filed separate applications for child’s survivors’ benefits for her twins with the SSA, based upon the wage earnings of their deceased father. The SSA denied these applications, and MacNeil then sought a hearing before an ALJ. The only question presented before the ALJ was a legal one: whether A.T.M, and C.E.M. qualified as “children]” under the Social Security Act. The ALJ concluded that, though it was uncontested that the twins were biologically Eric MacNeil’s children, they were not entitled to inherit under the applicable provisions of New York intestacy law because they were conceived after Eric’s death. As a result, on February 14, 2013, the ALJ issued two separate and identical decisions denying MacNeil’s applications for each of her children. The SSA’s Appeals Council denied MacNeil’s paired petitions for review.
On November 18, 2014, MacNeil filed suit against the Commissioner of the SSA in the United States District Court for the Northern District of New York, seeking review of the agency’s final determination under 42 U.S.C. § 405(g). The magistrate judge (Hummel, M.J.) issued a Report & Recommendation (“R&R”) proposing that the SSA’s denial of benefits be affirmed. The district court (Sharpe, J.) adopted the R&R in full and dismissed MacNeil’s complaint. On June 24, 2016, MacNeil timely appealed.
DISCUSSION
When reviewing a final decision of the Commissioner in a Social Security benefits case, this Court examines the administrative record de novo to determine, as relevant here, whether the SSA applied the correct legal standard. See Pollard v. Halter,
The Sociai Security Act affords “a monthly benefit for designated surviving family members of - a deceased insured wage earner,” including children of the deceased. Astrue v. Capoto ex rel. B.N.C.,
Under its internal regulations, the SSA applies the version of state law most beneficial to the applicant, looking to “the version of State law that was in effect at the time the insured died, or any version of State law in effect from the first month for which [the applicant] could be entitled to benefits up until [the] final decision on [the] application.” 20 ' ' C.F.R. § 404.355(b)(4). In adjudicating the merits of the applications filed on A.T.M. "and C.E.M,’s behalf, the ALJ invoked the version of the EPTL- in effect at the time of his decision in 2013, and -the parties agree that this version of the EPTL properly applies to this case. ,
II
The parties’ arguments on appeal center on two -sections -of. New York’s EPTL. Section 4-1.1 provides the general rules for distribution of property “not disposed of by will” via intestacy. See EPTL § 4-l.i (“The property of a decedent not disposed of by will.shall be distributed as provided in ⅛⅛ section.”). As relevant here, subsection (a) of Section 4-1.1 sets out the basic rules for allocating a decedent’s property “[i]f a. decedent is survived by” various relatives including the “spouse,” “issue,” “parents,” and “grandparents.”
The second section, Section 4-1.2, governs the circumstances under which “non-marital children” are considered legitimate issue under the provisions of intestacy law. Under this' provision, a “non-marital child is the legitimate' child of his mother so that he and his issue inherit from his mother and from his maternal kindred,” just as a marital child does. Id. § 4-1.2(a)(l). A non-marital child can also be the legitimate
The agency argues that Section 4-l.l(c), which specifically provides for distribution of an intestate’s property to children conceived before the decedent’s- death who are born thereafter, by implication excludes those children conceived after the decedent’s death. MacNeil argues, in contrast, that her twins are entitled to inherit as “non-marital children” under Section 4-1.2 because Eric’s biological paternity has been clearly established by genetic testing. In her view, Section 4-l.l(c) does not prevent posthumously conceived children from inheriting via intestacy because the subsection does not expressly state that only distributees conceived before the decedent’s death are entitled to inherit. Moreover, she argues, Section 4-1.2, which provides in relevant part that “[a] non-marital child is the legitimate child of his father so that he ... inherit[s] ... if paternity has been established by clear and convincing evidence,” such as “evidence derived from a genetic marker test,” is applicable by its terms. Id. § 4-1.2(a)(2)(C)(i).
“The .starting point of statutory interpretation is, of course, plain meaning,” People v. Owusu,
As we have explained, Section 4-1.1 provides the general rules for intestate distribution. Section 4-1.1’s first subsection delineates the hierarchy for distributing the estate to the class of individuals “sur-viv[ing]” the decedent. EPTL.§ 4-1.1(a)(1) (“If a decedent is survived by: (1) A spouse and issue....” (emphasis added)). Survive, when used as a transitive verb, means “[t]o live longer than; [or] outlive.” American Heritage Dictionary, of the English Language 1743 (4th ed. 2000). More specifically, Black’s Law Dictionary defines “surviving” as “[rjemaining alive; living beyond the happening of an event so as to entitle one to a distribution of property or income.” Black’s- Law Dictionary 1675 (10th ed. 2010). That language necessarily limits the class of distributees because the only individuals who could “live longer than” the decedent or “remain alive” after his death are those already alive at the time of the decedent’s passing. . .
MacNeil argues that requisite statutory authorization for inheritance by genetic children conceived after — even long after — the death of the decedent is found in Section 4-1.2. Under her proposed interpretation, pursuant to Section 4-1.2, .a man’s genetic child may always inherit regardless of the timing and circumstances of conception, so long as paternity is clearly established by genetic testing. That argument misreads Section 4-1.2, which, by its terms, supplies an expansive definition of child legitimacy but nowhere indicates that it is meant to expand the class of distributees entitled to take from the estate of an intestate decedent temporally. In other words, whereas, as the ALJ recognized, Section 4-l.l(c) explicitly operates as an exception to “an otherwise clear demarcation between the rights of those born during the decedent’s lifetime and the rights of those who [we]re not” by expanding the class of distributees born during the decedent’s lifetime to encompass those born after his death, so long as conceived while he lived, see Admin. Rec. 21, 30, Section 4-1.2 does no such thing. That provision does not say that a child born after the death of the genetic father may inherit in intestacy, but instead provides the circumstances under which “[a] non-marital child is the legitimate child of his father,” including, among others, when “clear and convincing evidence” of genetic paternity exists. EPTL § 4-1.2. Particularly set against the clear language of Section 4-l.l(c), which explicitly provides for expansion of the class of distributees based on time of conception, Section 4 — 1.2(a)(2) cannot reasonably be read to similarly expand the class.
In effect, MacNeil seeks to isolate one of Section 4-1.2’s several mechanisms for establishing paternity and to have this sub-provision serve as the general intestate distribution rule for children born after a genetic father has passed away, relegating Section 4 — 1.1(c) to a provision that governs in the narrow case in which paternity cannot be clearly established. There is no reason, however, why a distribution rule drastically expanding the class of distribu-tees to include children conceived after the death of their genetic father would be buried in a subparagraph to Section 4-1.2 when the statute explicitly provides (narrowly) for such a temporal expansion in Section 4 — 1.1(c), the preceding section. Nor is it clear why, under MacNeil’s interpretation of Section 4-1.2, the child of an intestate father who is conceived after his death may establish genetic paternity (and so, on her theory, inherit), without affording any such mechanism for establishing the genetic maternity for a child born after the death of a woman.
Our view of the proper interpretation of Sections 4-l.l(c) and 4-1.2(a)(2) also coheres with the background rules underlying the EPTL. It is a very longstanding rule of New York law that an estate’s’ distributees are properly determined as of the time of the decedent’s death. See In re Bump’s Will,
In addition, though we recognize the hazards of using later-adopted law to construe the meaning of an earlier enacted provision, see Pension Benefit Guar. Corp. v. LTV Corp.,
Finally, MacNeil fails to address the impact that her interpretation of Section 4-1.2 would have on the interpretation of other provisions of the EPTL. See, e.g., EPTL §§ 2-1.3 (addressing dispositions to adopted and posthumous children as members of a class); 5-3.2 (concerning the effect of the birth of a child after the execution of a will); 5-4.5 (concerning the rights of family members resulting from wrongful acts causing the decedent’s death). For example, Section 5-3.2(b) defines an “after-born child” as a “child of the testator born during the testator’s lifetime or in gestation at the time of the testator’s death.” The provision goes on to state that, for purposes of the section, “a non-marital child ... shall be considered an after-born child ... where paternity is established pursuant to [Sjection 4-1.2.” Id. § 5-3.2(b) (emphasis added). The most natural reading of this definitional provision (as with our interpretation of the interaction between Sections 4-l.l(e) and 4-1.2) is that a non-marital child is thus also' included in the class of after-born children — who are children born “during the testator’s lifetime or in gestation at the time of, the testator’s death” — so long as paternity can be established under the rules provided in Section 4.1-2.
But, under MacNeil’s reading, Section 4-1.2 operates to permit a genetic child born long after his or her father’s death to inherit. Under this view, the definition provided in Section 5-3.2(b) descends into logical impossibility: an “after-born child” is both a “child of the testator born during the testator’s lifetime or in gestation at the time of the testator’s death” and a child born long after the testator has passed away.
⅜ ⅜ ⅜
In Capoto, the Supreme Court- observed that the Social Security Act was designed specifically to “provide dependent' members of a Wage earner’s family with protection against the hardship occasioned by the loss of the insured’s earnings” — a specific hardship to which those conceived after the death of the wage earner, and thus never reliant on his support, are not subject.
Notes
. The factual background presented here is derived from undisputed facts from the administrative record of the agency proceedings, as filed by the SSA in the district court.
. For instance, this subsection provides that if a decedent is survived by a spouse and issue, $50,000 and one-half of the residue goes to the spouse with the balance to the issue, whereas in the case of a decedent who is survived by one or both parents, no spouse and no issue, the whple goes to the surviving parent or parents, EPTL § 4-1.1(a).
. The differential effect of MacNeil’s reading of Section 4-1.2 on men and women is obvious. Under her reading, a man’s genetic children are entitled to inherit in intestacy no matter how long after the man’s death they are bom, whereas no clear statutory mechanism exists in that section that would permit a woman’s genetic children to secure the same entitlement. (Whether some other mechanism might exist for establishing genetic ma
. As an aside, dicta in Capato align with our interpretation of Section 4-1.1(c). There, the Supreme Court recognized that "[¡Intestacy laws in a number of States ... do provide for inheritance by posthumously conceived children," Capato,
. Though MacNeil requests that we ask the New York Court of Appeals to resolve whether posthumously conceived children may inherit in intestacy and the SSA does not oppose certification, we see no reason to certify in this case. First, "certification is not proper" where "there is no split of authority [on a question] and 'sufficient precedents exist for us to make a determination,” Schoenefeld v. New York,
. And if MacNeil would argue that Section 4-1,2 operates differently when incorporated into Section 5-3.2(b) than it does in the intestacy- context, she fails to either provide any textual evidence in support of that proposition or answer the further question -why, in the absence of statutory language indicating otherwise, Section 4-1.2 should operate differently in these two contexts.
Concurrence Opinion
concurring:
I concur fully in Judge Livingston’s thorough and detailed opinion, which accurately explains the law governing this case. As the panel opinion demonstrates, the denial of the MacNeil children’s application for survivors’ benefits follows inexorably from two clear legal rules: First, the Social Security Act defines eligible children by reference to state intestacy law. And second, New York intestacy law does not now, and never has, permitted intestate inheritance by children conceived long after the death of a parent. I write separately only to note some additional facts about the case, and to suggest that Congress may wish to take up the unique problem it poses.
First, the facts. The claimant children are the product of a combination of a moving romantic connection and modern reproductive technology. As the panel opinion describes, Sharon MacNeil married her college sweetheart not long after their graduation. Shortly thereafter, Eric MacNeil was diagnosed with a dangerous cancer. The couple were deeply committed to each other, however, and discussed their hopes for having children together. They determined to preserve Eric’s sperm, against the possibility that his cancer treatment would either fail, or, if it succeeded in saving his life, render him infertile. When Eric learned that his death was inevitable, he gave his wife permission to use the preserved sperm if she decided to have his children after his death, and took what limited steps were in his power to provide some financial support to his wife and to any children of his that she might bear, including making them the beneficiaries of a life insurance policy. Eric Mac-Neil died at twenty-four, barely a year and a half into his marriage.
Needless to say, in the wake of her young husband’s death, dealing with her grief, struggling with limited financial resources, and enduring the loss of both of her parents in the next few years, for some time Sharon MacNeil felt unable to undergo the expensive and difficult process of in vitro fertilization or to raise children as a single parent. Instead, she returned to school, obtained an advanced degree, and went to work. But her desire to have children — her late husband’s children — remained with her over years of struggle and saving. Eleven years after Eric’s death, Sharon began the process of in vitro fertilization of her eggs with Eric’s sperm and implantation of the resulting embryos. The procedure was successful: Sharon became pregnant, carried two babies to term, and gave birth to the twins whose claims are before the Court.
The MacNeils’ story, though commenced in sadness, is one of love, commitment, and determination. It is also a story of modern scientific accomplishment. Although the possibilities opened up by assisted reproductive technology are by now well established and even familiar, they would have been utterly unimaginable to the drafters of the Social Security Act in the depths of the Great Depression over 80 years ago.
Second, the suggestion. As noted, the Congress that adopted the Social Security
The rise of scientifically-assisted reproduction technologies may, however, have opened a fissure between the policies of the Social Security Act and those of intestate succession in the small category of cases like the present one. As the panel opinion discusses, New York has recently changed its inheritance laws to confer succession rights on posthumously conceived children under limited circumstances, and in particular only when such children are born within a relatively short period after the death of the intestate parent. Imposing a strict time-limit is an eminently practical decision in the inheritance context. As the Court notes, estates cannot be held open indefinitely (delaying distribution to existing heirs and incurring administrative expenses) against the possibility of the birth of additional heirs years in the future, nor is it practical to distribute an estate to existing heirs but reclaim the assets and unscramble the distributions through further litigation years later at the behest of after-born heirs. But those considerations are not relevant to the functioning of the Social Security Act.
The panel opinion notes another policy that may dovetail with those concerns, however. Citing the Supreme Court’s opinion in Astrue v. Capato,
That is perhaps a reasonable view. Certainly the original drafters of the Act were concerned about children who did enjoy a parent’s financial support for some period of time (or, in the “pregnant widow” scenario, were at least conceived with that expectation), and then were deprived of that support by the parent’s untimely death. But again, Congress had no occasion at the time to think of children in the situation of the MacNeil twins.
It is perhaps unduly narrow, however, to consider that children such as the claimants here are somehow not financially burdened by the death of their biological father, simply because it occurred long before they were born. Surely, if Eric MacNeil had lived, his children would have benefitted from his earning power. And equally surely, the existing children are in a less secure financial position than they would be if their father were alive to con
Of course, I ám iñ no position to assess whether doing so would be good or bad policy. It is the role of Congress, and not of the courts, to study the situation, assess the costs and benefits of providing such coverage, and weigh the complexities of dealing with any program to provide for posthumously conceived children (how would such children be defined, independently of state intestate succession law? how would the biological children of married parents like Eric MacNeil be distinguished from the biological offspring of an insured donor to a sperm' bank? would it matter if the children were born into a two-parent household and adopted by the surviving parent’s spouse?). Perhaps it would be reasonable to leave the law unchanged, adhering to the advantage of a clear and simple rule that provides for the originally intended class of orphaned children, rather than to attempt to create a more complicated program for the relatively few (but increasing number of) children in the situation of the present claimants, I do not have any settled view about whether it would be practical or desirable social or fiscal policy to provide a special rule for posthumously conceived' children — and if I did, It would not be my role to promote ¾ and there would be little reason for Congress to attend to it.
But I do know that there is no evidence that Congress has ever considered or addressed, the new possibilities created by assisted reproductive technology in this context, and I think, it is a mistake to pretend that anything in the original intentions of Congress in adopting the Social Security. Act tells, us what the long-deceased drafters of the Act would have thought about this case, or what a present or future Congress would conclude if it studied the question, Moreover, it is tolerably clear to me that this is an instance in which there are entirely sound reasons for states to utilize restrictive rules in the context of intestacy, which reasons diverge from the considerations relevant to the sound administration of the Social Security Act. It would therefore make sense, I think, for the Social Security Administration, and members of the relevant congressional committees and their staffs, to devote some thought to the issue.
In the present -case, however, we can only apply the law as it was written, and
. Of course, the social security system is, in fact, a "trust fund financed, in large part,-by taxes levied on the wage earners who are, the primary beneficiaries of the fund,” rather than a traditional form of insurance. See Califano v. Jobst,