PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JANICE SCHAFER, Guardian Ad 

Litem for WMS, infant,

Plaintiff-Appellant,  No. 10-1500

v.

MICHAEL J. ASTRUE,

Defendant-Appellee. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, Senior District Judge.

(3:09-cv-00096-GCM-DSC)

Argued: January 28, 2011

Decided: April 12, 2011

Before WILKINSON, AGEE, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the

majority opinion, in which Judge Agee joined. Judge Davis

wrote a dissenting opinion.

COUNSEL

ARGUED: Kelsi Brown Corkran, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: George L. Fitzgerald, Charlotte, North Caro-
lina, for Appellant. Tony West, Assistant Attorney General,

William Kanter, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C.; Anne M. Tompkins, United

States Attorney, Charlotte, North Carolina; David Black, General Counsel, Karen Aviles, General Attorney, SOCIAL

SECURITY ADMINISTRATION, Baltimore, Maryland, for

Appellee.

OPINION

WILKINSON, Circuit Judge:

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.

See 42 U.S.C. § 402(d) et seq.

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.

2 SCHAFER v. ASTRUE
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984).

I.

The sad facts giving rise to this case are not in real dispute.

Janice and Don Schafer, Jr. were married in June 1992. Four

months later he was diagnosed with cancer and informed that

the chemotherapy he needed might render him sterile. In

December 1992 he deposited sperm samples with a long-term

storage facility, but in March 1993 he died of a heart attack.

At the time Don was domiciled in Virginia.

In April 1999 Janice Schafer conceived a child through in

vitro fertilization, and she gave birth to that child, W.M.S., on

January 13, 2000 in Texas.1 There is significant evidence that

W.M.S. is Don Schafer’s biological child, born almost seven

years after Don’s death. There is also evidence that Don

intended for Janice to use the stored semen to conceive a child

after his anticipated death, though he never expressed consent

in writing to be the legal father of a child resulting from posthumous in vitro fertilization. In 2001 a Texas court purported

to declare Don Schafer W.M.S.’s father. 

In 2004 Janice Schafer applied on W.M.S.’s behalf to the

Social Security Administration ("SSA") for surviving child

benefits under the Social Security Act ("the Act"), see 42

U.S.C. § 402(d). An administrative law judge initially

awarded W.M.S. benefits, but the SSA’s Appeals Council

reversed, reasoning that W.M.S. was not Don Schafer’s

"child" within the meaning of the Act because W.M.S. could

1Although the parties refer to W.M.S. as being conceived through artificial insemination in their briefs, claimant’s application for benefits states

that he was conceived through in vitro fertilization. While the two procedures are medically distinct, the specific type of assistive reproductive

technology utilized is immaterial to our analysis in this case. We therefore

use the terminology from the application. 

SCHAFER v. ASTRUE 3
not inherit from him under Virginia intestacy law. Janice

Schafer then sought review of the SSA’s decision in federal

district court, which upheld the SSA’s denial of benefits. She

now appeals.

II.

A.

Every child claiming survivorship benefits under the Act

must meet a series of requirements. Initially, the child or his

guardian must have filed an application. 42 U.S.C.

§ 402(d)(1)(A). The child must also fit certain substantive

criteria: he must be unmarried and either under certain age

limits or subject to a disability, id. § 402(d)(1)(B), and he

must have been "dependent upon such individual . . . at the

time of such [individual’s] death . . . ," id. § 402(d)(1)(C)(ii)

(internal subsection division omitted).2

Before even reaching these questions, however, an applicant must establish something more fundamental: that he is

the insured’s "child" within the meaning of the Act. The Act’s

basic grant of benefits provides that "[e]very child (as defined

in section 416(e) of this title) . . . of an individual who dies

a fully or currently insured individual . . . shall be entitled to

a child’s insurance benefit . . . ." Id. § 402(d)(1). As relevant

here, § 416(e) is sparse: "The term ‘child’ means (1) the child

or legally adopted child of an individual." Id. § 416(e)(1).

Section 416(e)(1), however, is not the only provision of the

Act that bears on the determination of child status. Section

416, titled "Additional definitions," also includes § 416(h),

labeled "Determination of family status." That provision

states:

2There is some question whether W.M.S. could satisfy

§ 402(d)(1)(C)(ii)’s dependency requirement, but because we agree with

the SSA that W.M.S. is not Don Schafer’s "child" under the Act we need

not resolve this issue. 

4 SCHAFER v. ASTRUE
In determining whether an applicant is the child . . .

of a fully or currently insured individual for purposes

of this subchapter, the Secretary shall apply such law

as would be applied in determining the devolution of

intestate personal property by the courts of the State

in which such insured individual . . . was domiciled

at the time of his death . . . . Applicants who according to such law would have the same status relative

to taking intestate personal property as a child . . .

shall be deemed such.

Id. § 416(h)(2)(A).

Section 416(h) also provides three additional gateways to

child status for those who cannot establish it through

§ 416(h)(2)(A)’s intestacy provision. First, an applicant who

"is a son or daughter of a fully or currently insured individual" but cannot inherit from that individual is deemed a child

if his parents went through a marriage ceremony that turned

out to be legally invalid. Id. § 416(h)(2)(B). Second, a child

who cannot inherit from a deceased insured individual under

state intestacy law is a "child" under the Act where prior to

death the decedent "had acknowledged [parentage] in writing," "had been decreed [the child’s parent] by a court," or

"had been ordered by a court to contribute to the support of

the applicant because the applicant was [the insured individual’s child]." Id. § 416(h)(3)(C)(i)(I)–(III) (internal subsection

divisions omitted). Third, a child who cannot inherit is

deemed a "child" if "such insured individual is shown by evidence satisfactory to the Secretary to have been the [parent]

of the applicant, and such insured individual was living with

or contributing to the support of the applicant at the time such

insured individual died." Id. § 416(h)(3)(C)(ii).

In addition, the Act gives the Commissioner of Social

Security rulemaking authority. See id. § 405(a).

SCHAFER v. ASTRUE 5
B.

This case turns on the relationship between the brief definition of "child" in § 416(e)(1) — which is part of the only definition referred to in § 402(d)(1)’s basic grant of benefits—and

§ 416(h)’s more specific provisions. On the SSA’s view,

§ 416(h) "provides the analytical framework that [it] must follow for determining whether a child is the insured’s child" for

purposes of § 416(e)(1)’s definition. Social Security Acquiescence Ruling 05-1(9), 70 Fed. Reg. 55,656, 55,657 (Sept. 22,

2005) ("Acquiescence Ruling"); see also 20 C.F.R.

§ 404.355(a) (using § 416(h)’s provisions as the only means

of establishing child status as a natural child). In keeping with

this view, the SSA has always required applicants claiming

natural child status—including the undisputed biological children of married parents—to pass through one of § 416(h)’s

pathways to secure that status. See, e.g., Old-Age, Disability,

Dependents’ and Survivors’ Insurance Benefits, 44 Fed. Reg.

34,479, 34,487 (June 15, 1979) (listing the same requirements

in an earlier version of 20 C.F.R. § 404.355 as part of a

restatement of the applicable regulations).

The SSA has also taken the view that posthumously conceived children such as W.M.S. can qualify as "children"

under the Act only through the state intestacy provision. See

Acquiescence Ruling, 70 Fed. Reg. at 55,657 ("[T]o meet the

definition of ‘child’ under the Act, an after-conceived child

must be able to inherit under State law."); Program Operations Manual System GN 00306.001(C)(1)(c), available at

https://secure.ssa.gov/poms.nsf/lnx/0200306001 (same).3 The

insured parent of such a child by definition died prior to the

3Although Schafer’s primary argument is that W.M.S.’s inheritance

rights are irrelevant to child status, she argues alternatively that W.M.S.

can inherit from Don Schafer under Virginia law. Because she does not

contend W.M.S. has child status under any of § 416(h)’s other provisions,

we need not address the SSA’s position that posthumously conceived children may only secure child status through § 416(h)(2)(A). 

6 SCHAFER v. ASTRUE
child’s conception, and therefore parentage could not have

been acknowledged or decreed prior to death, nor could the

applicant have been living with or receiving contributions

from the decedent when the decedent passed away.

On the SSA’s view, then, W.M.S. is entitled to benefits

only if he could inherit from Don Schafer under Virginia law.

But Virginia law does not recognize any "child born more

than ten months after the death of a parent" as that parent’s

child for intestacy purposes. Va. Code Ann. § 20-164 (tenmonth limitation); Va. Code Ann. § 64.1-5.1(2) (incorporating the provisions of Va. Code Ann. § 20-156 et seq. in determining the parentage of "a child resulting from assisted

conception"). W.M.S., however, was born almost seven years

after Don Schafer’s death. The SSA therefore denied

W.M.S.’s claim.

Schafer takes a very different view of the relationship

between § 416(e)(1) and § 416(h). Adopting the view of

Gillett-Netting v. Barnhart, 371 F.3d 593, 597 (9th Cir. 2004),

she argues that § 416(h)’s strictures do not apply to children

whose "parentage . . . is not disputed." After all, § 402(d)

refers explicitly to § 416(e), not § 416(h), in defining "child,"

and on her view § 416(e)(1)’s plain terms — "the child or

legally adopted child of such individual" — obviously cover

such children. See Weinberger v. Salfi, 422 U.S. 749, 781

n.12 (1975) (describing § 416(e)(1)’s reference to a "child" as

a reference to a "natural" child). It follows, she argues, that

W.M.S.’s ability to inherit from Don Schafer under Virginia

intestacy law is irrelevant to determining W.M.S.’s child status. Instead, as Don and Janice Schafer’s undisputed biological child, W.M.S. must only show that he meets the other

statutory conditions described above. See 42 U.S.C.

§ 402(d)(1)(A)–(C). The Third Circuit has recently joined

Gillett-Netting in accepting Schafer’s reading in posthumous

conception cases, see Capato ex rel. B.N.C. v. Comm’r of Soc.

Sec., ___ F.3d ___, 2011 WL 9368 (3d Cir. Jan. 4, 2011), and

the Eighth Circuit is currently facing the question, see Beeler

SCHAFER v. ASTRUE 7
v. Astrue, No. C09-0019 (N.D. Iowa Nov. 12, 2009), appeal

docketed, No. 10-1092.

III.

In deciding between these warring interpretations, it is

important to bear in mind the rules of engagement. We first

ask, at Chevron step one, whether "Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at

842. If so, the agency is not free to counter Congress’s command, and the courts must uphold faithful interpretations and

reject disobedient ones. But where "a statute is silent or

ambiguous with respect to the specific issue," a reviewing

court at Chevron step two asks "whether the agency’s answer

is based on a permissible construction of the statute." Id. at

843.

At first blush, Schafer’s proposed course—rejecting the

SSA’s interpretation at Chevron step one—is an alluring one.

After all, "the plain language of the statute" is "the most reliable indicator of Congressional intent," Soliman v. Gonzales,

419 F.3d 276, 281–82 (4th Cir. 2005), and the plain meaning

of "child" in § 416(e)(1) might seem necessarily to include the

biological children of those who, because of tragic circumstances, could only become parents after their death. But for

many reasons, we think this approach would be unsound. The

"traditional tools of statutory construction," Chevron, 467

U.S. at 843 n.9, demonstrate that Congress intended the SSA

to use state intestacy law, and even if it did not precisely

speak to the question, the SSA’s reasonable interpretation is

entitled to deference.

A.

We begin by examining the text of the Act. Section 416(e)

itself is notably brief: "The term ‘child’ means (1) the child

or legally adopted child of an individual . . . ." Although the

"child" portion of this language does aim at natural children,

8 SCHAFER v. ASTRUE
see Salfi, 422 U.S. at 781 n.12, other courts have noted that

"this definitional tautology . . . does not provide much guidance" as to how the SSA should go about making that child

status determination. Conlon ex rel. Conlon v. Heckler, 719

F.2d 788, 800 (5th Cir. 1983). 

This lack of guidance highlights the difficulty we have with

the position of our colleagues on the Third and Ninth Circuits.

Those courts have been willing to elevate the sparse definition

found in § 416(e)(1) and to completely de-emphasize the

more extensive definition found in § 416(h)(2)(A), thereby

treating Congress’s more comprehensive efforts as a mere

afterthought. In so doing, they have overlooked Congress’s

plain and explicit instruction on how the determination of

child status should be made: "In determining whether an

applicant is the child . . . of a fully or currently insured individual for purposes of this subchapter, the Secretary shall

apply such law as would be applied in determining the devolution of intestate personal property . . . ." 42 U.S.C.

§ 416(h)(2)(A) (emphasis added). The text in short could

hardly be more clear.

It would be startling if Congress had failed to provide

greater guidance on child status than that set forth in

§ 416(e)(1). The term "child" lies at the core of the Act’s benefit program, and until recent years proving biological parentage scientifically was next to impossible. See Jill Handley

Andersen, The Functioning Father: A Unified Approach to

Paternity Determinations, 30 J. Fam. L. 847, 852-53 & nn.36-

45 (1991-92) (tracing the evolution of biological paternity

testing). And though modern technology makes determining

biological parentage scientifically feasible, it also creates situations that illustrate the complexity of determining the meaning of "child" today. See Capato, 2011 WL 9368, at *5.

Imagine, for instance, a child born after one woman’s fertilized ovum was implanted in and carried to term by another

woman. It is unclear, as a linguistic matter, whether the child

is the birth mother’s "child," the biological mother’s "child,"

SCHAFER v. ASTRUE 9
or, somehow, both. In short, we think it very unlikely Congress would have left the SSA so utterly in the dark about

such a critical term.

Of course, Capato and Gillett-Netting contend that

§ 416(e)(1) provides plenty of guidance, insisting that because

"child" ordinarily means "natural child," § 416(e)(1) independently provides child status to those children whose "natural,

or biological" parentage is not "disputed." Gillett-Netting, 371

F.3d at 596, 597. But this cannot be right. To begin with, it

would attribute inconsistent views about child status to the

Congress. In § 416(h)(3)(C)(ii), Congress provided child status to a child who cannot inherit but who can prove both that

the insured was the child’s parent and that the insured was

"living with or contributing to" the child at the time of death.

But if undisputed biological parentage is enough under

§ 416(e)(1), it would have made no sense for Congress to

require those whose parentage was initially disputed but was

then resolved to prove something in addition to biological

parentage. Similarly, § 416(h)(2)(B) grants child status to a

non-inheriting child only if he or she "is the son or daughter

of [the] insured" — demonstrating that parentage is no longer

in dispute — and if his or her parents went through a legally

invalid marriage ceremony. Congress would not have

imposed an additional proof requirement on these undisputed

children if undisputed biological parentage sufficed under

§ 416(e)(1).

Sensing this difficulty of reading "child" to mean natural

child, Capato and Gillett-Netting alternatively hint that the

class of children independently provided child status by

§ 416(e)(1) is comprised of the undisputed biological children

of married parents. See Capato, 2011 WL 9368, at *3; GillettNetting, 371 F.3d at 596. This approach solves part of the

problem by "explaining" why out-of-wedlock children struggled to gain child status, but the solution comes at too high

a price. Both Gillett-Netting and Capato insist that the plain

English meaning of "child" in § 416(e)(1) drives their views.

10 SCHAFER v. ASTRUE
See Capato, 2011 WL 9368, at *3; Gillett-Netting, 371 F.3d

at 596. But whatever their legal rights may be, out-of-wedlock

children are indisputably the natural children of their biological parents under the ordinary English usage of the term.

Therefore, Capato and Gillett-Netting cannot state that

§ 416(e)(1) covers the children of only married couples without contradicting their earlier claim that § 416(e)(1)’s supposedly obvious usage of "child" meant all natural children.

It is clear, then, that § 416(e)(1) cannot provide all of the

answers. But there is no need for us to join Capato and

Gillett-Netting in crafting from whole cloth § 416(e)(1)’s

meaning without reference to the Act’s other provisions when

the plain text of those provisions offers all of the guidance

that is needed. Section 416(h)(2)(A) describes precisely how

one ought to determine the meaning of "child" under

§ 416(e)(1): "In determining whether an applicant is the child

. . . of a fully or currently insured individual for purposes of

this subchapter" — that is, for the purposes of federal oldage, survivors, and disability insurance benefits — "the Secretary shall apply such [state] law as would be applied in determining the devolution of intestate personal property . . . ." 42

U.S.C. § 416(h)(2)(A) (emphasis added). 

This language contains no textual suggestion that it is limited to disputed or out-of-wedlock children. Indeed, everything about it suggests the opposite: it speaks of applying state

intestacy law for purposes of the whole Act rather than for

purposes of determining child status in disputed parentage

cases, and it specifically addresses itself to the child status

determination that must take place in evaluating every benefits application.

Of course, the SSA’s interpretation might seem to create a

few textual puzzles of its own. If Congress intended all applicants to proceed through one of § 416(h)’s channels in claiming child status under § 416(e)(1), it could have referred to

that provision rather than § 416(e) in defining "child" for purSCHAFER v. ASTRUE 11
poses of § 402(d)’s basic grant of benefits. And if § 416(e)(1)

does not independently provide child status to even the undisputed biological child of married parents, Congress may have

been better off leaving it out of the statute, an outcome the

SSA’s interpretation might seem to reach.

These difficulties are more apparent than real. Consider

first the point about Congress’s reference to § 416(e), not

§ 416(h), in § 402(d)’s basic grant. As an initial matter, it is

not at all unusual for Congress to refer explicitly only to one

section even though some of that section’s terms are given

their full import by another, unmentioned section. See, e.g, 29

U.S.C. § 626(a) (granting the EEOC investigative authority

"in accordance with the powers and procedures provided" in

29 U.S.C. §§ 209 and 211, the first of which largely just

incorporates 15 U.S.C. §§ 49 and 50).

More importantly, on the SSA’s view § 416(e) still has

work to do even if § 416(h) provides the ultimate framework

for securing child status under § 416(e)(1). Section 416(e)(1)

clarifies that natural children and legally adopted children are

included, § 416(e)(2) includes certain stepchildren, and

§ 416(e)(3) includes some grandchildren and stepgrandchildren. See Conlon, 719 F.2d at 800 ("Section 416(e) primarily

places stepchildren and certain grandchildren within the definition of ‘child.’"). This inclusion importantly expands the

scope of the Act and distinguishes it from narrower benefits

programs. In Cleland v. Office of Personnel Management, 984

F.2d 1193, 1195 (Fed. Cir. 1993), for example, the court

rejected a federal employee’s grandchild’s claim to survivorship benefits under 5 U.S.C. § 8341(e)(2) and referred to

§ 416(e) in noting that "[w]hen Congress wishes to include

grandchildren within the meaning of ‘child’ for purposes of a

statute it knows how to do so." Thus, even if § 416(h) pulls

the laboring oar in defining "child" within the context of natural children, § 416(e) still plays an important role.

Nor is it particularly significant that § 416(e)(1) itself plays

a complementary role on SSA’s view. For one thing, it still

12 SCHAFER v. ASTRUE
contributes to § 416(e)’s overall purpose — cataloging the

kinds of children included as "children" under the Act—by

specifying that natural children and legally adopted children

are included. For another, it is not clear just how the SSA

could give "full meaning" to the statutory proposition that "a

‘child’ is a child" without help from neighboring provisions,

especially once one recognizes that giving it too exclusively

biological a meaning conflicts with § 416(h)(3)(C)(ii).

Considering all of the textual evidence, then, we think Congress plainly intended the SSA to apply the Act as the SSA

always has. The SSA’s view follows to the letter Congress’s

explicit and precise instruction as to how the agency should

determine child status under the Act. Moreover, the SSA’s

interpretation, rather than focusing myopically on a single

term, makes sense of the statute as a whole, see Soliman, 419

F.3d at 282, and recognizes that the "meaning . . . of certain

words or phrases may only become evident" when considered

in textual and historical context, FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 132 (2000). Whether one looks

at the instruction of § 416(h)(2)(A) individually or at the statute as a whole, the SSA’s view is dutiful and faithful to Congress’s intent.

B.

The Act’s history also suggests that the SSA is respecting

Congress’s wishes. See, e.g., Elm Grove Coal Co. v. Dir.,

O.W.C.P., 480 F.3d 278, 293-94 (4th Cir. 2007) (consulting

the history of Congress’s efforts at Chevron step one). We are

of course not the first court to look to the Act’s history in

determining its meaning. Gillett-Netting relied heavily on its

view that § 416(h)(2) and § 416(h)(3) "were added to the Act

to provide various ways in which children could be entitled to

benefits even if their parents were not married or their parentage was in dispute." Gillett-Netting, 371 F.3d at 596. As a

result, Gillett-Netting believed those provisions have no application to those who do not face such circumstances.

SCHAFER v. ASTRUE 13
But insofar as Gillett-Netting meant to suggest the intestacy

provision was not part of the original statutory framework, it

is simply wrong. The original version of the Act contained a

framework identical in fundamentals to the one on the books

today: a grant of benefits to every "child" as defined by one

provision of the Act, see Social Security Act Amendments of

1939, Pub. L. No. 76-379, § 202(c)(1), 53 Stat. 1360, 1364;

a definition of "child" in that section as "the child of an individual," id. § 209(k), 53 Stat. at 1377; and another definition

instructing the SSA to "apply such law as would be applied

in determining the devolution of intestate personal property"

under state law to "determin[e] whether an applicant is the . . .

child [of the insured]," id. § 209(m), 53 Stat. at 1378.

Although these provisions were altered and renumbered over

the years, the basic structure remained intact. That is, some

version of § 416(h)(2)(A) has always been part of the statutory scheme, weakening any inference that it is just a new

way for disputed children to gain child status.

Indeed, when considered in greater detail, the Act’s legislative history demonstrates that Congress understood

§ 416(h)(2)(A)’s intestacy provisions to be the backbone of

all child status determinations. The Senate Finance Committee’s Report to the 1965 Amendments, which added

§ 416(h)(3)(C), stated that "[u]nder present law, whether a

child meets the definition of a child for the purpose of getting

child’s insurance benefits . . . depends on the laws applied in

determining the devolution of intestate personal property

. . . ." S. Rep. No. 89-404, pt. 1, at 109 (1965), reprinted in

1965 U.S.C.C.A.N. 1943, 2049.

Congress’s belief in this regard was well-grounded: a great

deal of case law held that all those claiming child status had

to prove the ability to inherit under state law. See, e.g., Gainey

v. Flemming, 279 F.2d 56 (10th Cir. 1960) (affirming denial

of benefits to undisputed children of an invalid marriage

because the children could not inherit); Robles v. Folsom, 239

F.2d 562 (2d Cir. 1956) (Hand, J.) (affirming denial of bene14 SCHAFER v. ASTRUE
fits to an undisputed child who had always been supported by

his unmarried father because the child could not inherit);

Hobby v. Burke, 227 F.2d 932, 933 n.3 (5th Cir. 1956) (noting

that § 416(e)’s definition of "child" is "further defined" in

§ 416(h)’s intestacy provisions).

The 1965 Amendments themselves demonstrate Congress’s

continued acceptance of this basic framework. The Senate

Report noted the problem the framework created: children

whom Congress viewed as similarly situated were treated differently for child status purposes simply because state law

denied out-of-wedlock children inheritance rights. See S. Rep.

No. 89-404, 1965 U.S.C.C.A.N. 1943, at 2050. To fix the

problem, however, Congress did not change the received view

of the law and "clarify" that all undisputed children are "children" under § 416(e)(1). Instead, it worked within the framework of the background intestacy provision, adding

§ 416(h)(3)(C) so that child status could also exist where parentage was acknowledged, decreed, implicit in a contribution

order, or proven along with cohabitation or contribution. See

id.; McMillian ex rel. McMillian v. Heckler, 759 F.2d 1147,

1149–50 (4th Cir. 1985) (noting that § 416(h)(3)(C) provides

means for out-of-wedlock children to establish child status).

Indeed, § 416(h)(3) certainly sounds like an exception to a

general requirement: "An applicant who is the son or daughter

of a fully . . . insured individual, but who is not (and is not

deemed to be) the child of such insured individual under [the

state intestacy or legally invalid marriage provisions], shall

nevertheless be deemed to be the child of such insured individual" upon meeting one of § 416(h)(3)(C)’s conditions. 42

U.S.C. § 416(h)(3) (emphasis added).

The Act’s legislative history could hardly be clearer. Congress understood the Act’s framework as requiring all natural

children to pass through § 416(h) to claim child status, and it

drafted in keeping with this view in adding § 416(h)(3)(C).

SCHAFER v. ASTRUE 15
C.

The SSA’s interpretation also best comports with the Act’s

purposes. See, e.g., Elm Grove, 480 F.3d at 293 (looking to

the statute’s purpose at Chevron step one). The Act is not a

"welfare program generally benefiting needy persons," but

rather an effort to "provide the . . . dependent members of [a

wage earner’s] family with protection against the hardship

occasioned by his loss of earnings." Califano v. Jobst, 434

U.S. 47, 52 (1977); see also S. Rep. 89-404, 1965

U.S.C.C.A.N. 1943, at 2050 (describing survivorship benefits

as "a national program . . . intended to pay benefits to replace

the support lost by a child when his father . . . dies . . . .").

The Act thus creates a core beneficiary class: the children of

deceased wage earners who relied on those earners for support.

The Act’s child status provisions reflect this basic aim. For

instance, § 416(h)(3)(C)(ii) grants child status to those who

are proven to be the biological child of the insured provided

the insured was "living with or contributing to" the child at

the time of death. Similarly, § 416(h)(3)(C)(i), which grants

child status to those whose parentage is acknowledged,

decreed, or implicit in a contribution order, suggests similar

dependence on the wage earner because the acknowledgment

or decree must occur prior to the insured’s death and because

such acknowledgment or decree is likely to be accompanied

by financial outlays from the insured. Section 416(h)(2)(A) is

no different. As the Supreme Court has noted in assessing the

Act’s deemed dependency provisions, "where state intestacy

law provides that a child may take personal property from a

father’s estate, it may reasonably be thought that the child will

more likely be dependent during the parent’s life and at his

death." Mathews v. Lucas, 427 U.S. 495, 514 (1976).

The SSA’s interpretation, by tying natural child status

determinations to one of § 416(h)’s pathways, thus reflects the

Act’s basic aim of primarily helping those children who lost

16 SCHAFER v. ASTRUE
support after the unanticipated death of a parent. Posthumously conceived children, however, differ from members of

the core beneficiary class in two ways. First, they necessarily

could not have relied on the wage earner’s wages prior to his

death. Second, they generally come into being after it is clear

that one of the parents will not be able to support the child in

the ordinary way during the child’s lifetime, meaning that the

survivorship benefits would serve a purpose more akin to subsidizing the continuance of reproductive plans than to insuring

against unexpected losses.

These differences might have persuaded Congress to

exclude most posthumously conceived children from child

status under an updated version of the Act. But the current

statute, on the SSA’s interpretation, properly includes as children those posthumously conceived children whom state lawmakers conclude are similarly situated enough to more

traditionally conceived children that they deserve a share in

the decedent’s estate. In making this determination, state posthumous conception schemes often reflect the same concerns

animating the Act’s creation of the core beneficiary class,

thereby both protecting the Act’s chief intended aid recipients

and expanding child status to cover closely analogous cases.

Through heightened consent requirements, for example,

state posthumous conception laws ensure that child status and

inheritance rights go only to those whom the deceased parent

intended to support as a child. See, e.g., Va. Code Ann. § 20-

158(B) (generally requiring consent in writing to be the parent

of any child resulting from implantation after one’s death);

Colo. Rev. Stat. § 19-4-106(8) (same); Utah Code Ann.

§ 78B-15-707 (same). The time limitations often imposed on

posthumously conceived children’s inheritance rights similarly reflect the concerns underlying the Act by protecting the

estate for already existing children, the core intended beneficiaries of the Act. See, e.g., Va. Code Ann. § 20-164 (tenmonth limit); Cal. Prob. Code § 249.5(c) (two-year limit from

SCHAFER v. ASTRUE 17
acknowledged death); La. Rev. Stat. Ann. § 9:391.1(A)

(three-year limit). 

By contrast, Schafer’s interpretation contravenes the statute’s purpose by threatening the core beneficiary class. She

claims the Act provides child status to any undisputed biological child. But, as the Commissioner notes, the Act limits the

total benefits payable from one employment record. See 42

U.S.C. § 403(a)(1). As a result, where an additional child

claims benefits from a record, children already claiming from

it could see a reduction in their benefits. Though the additional benefits would generally stay in the same family, it

remains true that existing children, the Act’s core intended

beneficiaries, could receive proportionately less support. Congress designed the Act with those children in mind, and the

SSA’s interpretation best protects their interests.

D.

Our conclusion that Congress intended the SSA to use state

intestacy law as it does is buttressed by a good deal of case

law favoring the SSA’s view. For instance, Conlon squarely

held that all child status determinations must pass through

§ 416(h). The court noted that § 416(e)’s primary function is

to include some stepchildren and grandchildren within the

scope of the Act, not to fully define "child," and it pointed out

the difficulty in seeing § 416(e)(1)’s sparse language as the

Act’s main provision dealing with child status. See Conlon,

719 F.2d at 800. The court also reasoned that Congress did

not leave the SSA adrift; "[s]ection 416(e)(1) is . . . modified

by sections 416(h)(2) and (3) which provide the final words

on who is to be considered a child for purposes of section

416(e)(1)." Id. (emphasis added). That is, "because [the applicant did] not fit within the definition of a ‘child’ under either

section 416(h)(2)(A) or section 416(h)(3)(C)(i)(II), she would

not be considered a child under section 416(e)." Id.

Many cases also reflect the SSA’s view. For example,

many of the state supreme courts to consider the inheritance

18 SCHAFER v. ASTRUE
rights of posthumously conceived children did so only

because a federal district court certified the state law question

to them as dispositive of a benefits claim. See, e.g., Finley v.

Astrue, 270 S.W.3d 849 (Ark. 2008); Khabbaz ex rel. Eng v.

Comm’r, Soc. Sec. Admin., 930 A.2d 1180 (N.H. 2007);

Woodward v. Comm’r of Soc. Sec., 760 N.E.2d 257 (Mass.

2002).

Federal circuit courts have also accepted the SSA’s position. Recently the D.C. Circuit noted: 

The Act establishes the following procedure to determine whether an individual qualifies as a "child."

"Child" is defined [in § 416(e)], inter alia, as "the

child or legally adopted child of an individual." To

determine whether an applicant meets the Act’s definition of "child," the SSA must: "apply such law as

would be applied in determining the devolution of

intestate personal property . . . ." 

Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.C. Cir.

2005) (quoting 42 U.S.C. § 416(h)(2)(A)) (citation omitted).

Similarly, DeSonier v. Sullivan, 906 F.2d 228, 229–30 (6th

Cir. 1990), stated that "[t]he ALJ recognized that a claimant’s

relationship to a deceased wage earner is determined by

applying [state intestacy law]" and that "[d]etermination of a

claimant’s family status is made by applying the provisions of

42 U.S.C. § 416(h)."

None of these cases mention any restriction of § 416(h)’s

operation to cases involving disputed parentage. Although

many involve such circumstances, that fact is more attributable to the paucity of benefit denials where a legitimate biological child seeks benefits than to judicial disagreement with

the SSA’s long-held view; as the SSA has noted, every state

provides inheritance rights to such children. See Application

of State Law in Determining Child Relationship, 63 Fed. Reg.

57,590, 57,591 (Oct. 28, 1998). We think it unlikely that so

SCHAFER v. ASTRUE 19
many courts over so many years have been wrong, and obviously so, in their understanding of Congress’s intent.

E.

The text, legislative history, purpose, and prior judicial

approaches to the Act indicate that Congress wanted the SSA

to apply § 416(h) in determining child status. Schafer’s contrary view takes a single, sparse statutory word and makes it

the statute’s primary statement on the majority of survivorship

benefit applications. It relegates Congress’s most detailed and

comprehensive effort to define "child" under the Act to the

status of a fallback provision, one that only applies where parentage is "disputed." This limitation runs against the grain of

§ 416(h)’s text, § 416(h)(3)(C)’s history, and the SSA’s obvious need for congressional guidance. This seems a wrong

turn, but fortunately it is not one the statute compels us to

take. Indeed, the Act tells us to go in the other direction, the

one that the SSA has always followed.

IV.

The SSA’s position becomes even stronger considering the

administrative law context in which we find ourselves. Even

if one were to disagree that the Act dictates the SSA’s interpretation, the considerable evidence for the SSA’s view at

least demonstrates statutory ambiguity. To recapitulate,

§ 416(h)(2)(A)’s clear instruction and comprehensive

approach significantly undermines the view that § 402(d)’s

basic grant and § 416(e)(1)’s sparse definition independently

confer child status on undisputed children. Gillett-Netting and

Capato cannot offer an interpretation of § 416(e)(1) that

makes sense of § 416(h)(3)(C). The 1965 Amendments’ history indicates that Congress drafted them with the understanding that all child status determinations were made initially

through state intestacy law, calling into question Schafer’s

view that § 416(h)’s provisions are obviously just alternate

pathways. And the longstanding, ubiquitous judicial accep20 SCHAFER v. ASTRUE
tance of the SSA’s interpretation suggests it is far from unreasonable.

Given that the Act is at least ambiguous, the barrier to

Schafer’s challenge is steep. "[W]e may not disturb an agency

rule [at Chevron step two] unless it is ‘arbitrary or capricious

in substance, or manifestly contrary to the statute.’" Mayo

Found. for Med. Educ. & Research v. United States, 131 S.

Ct. 704, 711 (2011) (quoting Household Credit Servs., Inc. v.

Pfennig, 541 U.S. 232, 242 (2004)). Chevron deference of this

sort stands at the heart of modern administrative law. It

ensures that agency officials, who are subject to greater political accountability and possess greater relevant expertise than

judges, take the lead in implementing programs delegated to

their care. See Chevron, 467 U.S. at 865–66. The SSA’s interpretation easily passes muster under this deferential standard.

Of course, the same factors that led us to conclude above

that the SSA’s interpretation best respects Congress’s intent

demonstrate that the SSA’s resolution of any statutory

ambiguity is a permissible one. But there is more to be said

in favor of deferring to the SSA’s interpretation. Deferring

here affords Congress, the SSA, and the federal courts their

proper places in the modern regulatory scheme. 

Congress, of course, has the last word in determining the

scope of federal survivorship benefits. It is unlikely that Congress is unaware of the SSA’s longstanding interpretation of

the Act. Given the rapid rise of issues related to reproductive

technology, Congress would hardly be ignorant of the fact

that some children such as W.M.S. will not receive benefits

because of current state intestacy law. We are hesitant to

strike out ahead of Congress by addressing this increasingly

important issue through a novel interpretation of the Act.

Although Congress can change the Act regardless of what we

decide, we pay greater respect to its legislative primacy by

letting it forge the future path, especially where its previous

SCHAFER v. ASTRUE 21
enactments are at worst ambiguous and most likely prescribe

the approach the SSA is already taking.

Furthermore, upholding the SSA’s interpretation reflects

the basic division of labor between courts and agencies. It is

our duty to interpret and enforce statutes, not to update and

revise them in light of changing technological circumstances.

"Courts are not authorized to rewrite a statute because they

might deem its effects susceptible of improvement."

Badaracco v. Commissioner, 464 U.S. 386, 398 (1984). This

proscription against tinkering applies equally to ambiguous

statutes entrusted by Congress to an agency. Indeed, that is

the whole point of Chevron deference. The SSA has extensive

experience in administering the Act’s survivorship benefits

program, as well as the legal and practical ability to respond

more quickly to changing regulatory circumstances. See Nat’l

Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545

U.S. 967, 981–82 (2005). It also faces political checks from

Congress and the President, likely keeping its policymaking

within the bounds of the democratically acceptable. See Chevron, 467 U.S. at 865–66. In short, this is a case where courts

are well advised to leave the fine-tuning of statutory regimes

to others.

Moreover, this is not a case where an agency seeks to

aggrandize its regulatory powers by aggressively reinterpreting a statute. See, e.g., Brown & Williamson, 529 U.S. at 126,

145–46 (rejecting the FDA’s sudden attempt to regulate

tobacco products). Rather, the SSA seeks only to maintain its

long-held position, one that keeps primary responsibility for

determining child status in states’ hands. This approach

makes perfect sense. Section 416(h)(2)(A) suggests a strong

desire on Congress’s part to use state law in administering the

federal program, as do other provisions in the Act. See 42

U.S.C. § 416(h)(1)(A)(i)–(ii) (generally determining whether

an applicant is the "wife, husband, widow, or widower" of an

insured by reference to state family and intestacy law). The

Act also reflects a desire to work collaboratively with the

22 SCHAFER v. ASTRUE
states in providing benefits. See, e.g., id. § 421 (allowing

states to request the ability to determine disability status).

Congress’s efforts toward cooperative federalism here are

hardly surprising. Family and inheritance law fall squarely

within the states’ historic competence, see, e.g., Ankenbrandt

v. Richards, 504 U.S. 689, 703–04 (1992), and their input into

the federal benefits program can only redound to its advantage. Moreover, as Schafer’s case perfectly illustrates, these

areas of law are slippery ones, constantly requiring adjustments so as to account for changing technological and social

realities. The states have demonstrated a legislative willingness to account for the new biological world in which we find

ourselves, and we are loath to fault the SSA for maintaining

an interpretation that encourages an adaptive response from

deliberative, democratically-elected bodies in a complex and

evolving area.

Jettisoning the SSA’s approach would "short-circuit what

looks to be a prompt and considered" development of state

law. Dist. Attorney’s Office for the Third Judicial Dist. v.

Osborne, 129 S. Ct. 2308, 2322 (2009). It would also thrust

the federal courts into "a myriad of other issues," id. at 2323,

including policy-driven questions about the child status of

those born to surrogate mothers, those resulting from artificial

insemination of sperm from someone other than the mother’s

husband, and so on, see Capato, 2011 WL 9368, at *5. "The

elected governments of the States are actively confronting"

the challenges posed by modern reproductive technology.

Osborne, 129 S. Ct. at 2322. And "there is no reason to suppose that [federal courts’] answers to these questions would

be any better than those of state courts and legislatures, and

good reason to suspect the opposite." Id. at 2323.

Congress, on the SSA’s view, has created a scheme allowing the full resources of our federal system to be brought to

bear on the novel and complex issues posed by modern reproductive technology. In so doing it has ensured that those chilSCHAFER v. ASTRUE 23
dren whom state policymakers decide should stand in the

same shoes as more traditionally conceived children for inheritance purposes do so for the analogous purposes underlying

child status under the Act. We will not disturb this long-lived

effort at federal-state cooperation, especially where the SSA’s

construction of the Act seems not only permissible, but also

correct.4

V.

As is often the case when applying the law, our decision is

not without its costs. The tragedies of cancer and heart disease

pulled the Schafer family’s plans out from under them. While

modern medicine allowed Janice Schafer to partially fulfill

some of those plans years later, Virginia intestacy law, as

incorporated by the Act, does render survivorship benefits

unavailable here.

But if sad facts make hard cases, we cannot allow hard

cases to make bad law. Congress instructed the SSA to apply

the Act just as it always has. Its interpretation harmonizes the

Act as a whole, coheres with § 416(h)(2)(A)’s broad text, and

leaves ample work for § 402(d)(1)’s reference to § 416(e). It

comports with Congress’s background understanding of the

Act’s operation and with Congress’s aim of helping those

who unexpectedly lost a parent’s support. And it harnesses the

cooperative effort of state legislatures in confronting the

novel, complex, and contestable issues arising out of new

4Schafer also contends that the SSA’s interpretation violates the Equal

Protection Clause. Because the statute classifies on the basis of ability to

inherit under state intestacy law, it requires only rational basis review, see

City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985),

and it passes muster as rationally related to the government’s interests in

providing benefits primarily to children of deceased wage earners who

relied on those wage earners for support. See Lucas, 427 U.S. at 507–09;

Vernoff v. Astrue, 568 F.3d 1102, 1112 (9th Cir. 2009). Schafer also contends that W.M.S. can inherit under Virginia law, but we find no fault in

the district court’s rejection of that claim. 

24 SCHAFER v. ASTRUE
technology. And even if Congress did not explicitly dictate

the use of state intestacy law, the SSA’s interpretation is certainly a reasonable one. Chevron deference was made for circumstances like these, and we cannot invert well-established

administrative law doctrines simply to reach a certain result.5

The judgment of the district court is therefore affirmed.

AFFIRMED

DAVIS, Circuit Judge, dissenting:

The majority contends that "the plain text of th[e]se provisions offers all of the guidance that is needed," Maj. Op. at

11, and I agree. But where the majority believes that "Congress plainly intended" that 42 U.S.C. § 416(h)(2)’s definition

5For many of these same reasons, we are unpersuaded by our fine colleague’s dissent. It neglects the fact that (1) Congress has told us quite

clearly how to determine "whether an applicant is the child" in

§ 416(h)(2)(A); (2) that Congress has for years entrusted the SSA with

"full power and authority to make rules and regulations" in carrying out

these very provisions, see 42 U.S.C. § 405(a); (3) that the Supreme Court

has mandated deference to agencies even in ambiguous situations, not to

mention in situations such as this where the Act’s instructions are plain,

see Chevron, 467 U.S. at 843; (4) that Congress sought to harness the

states’ family law experience and updating prowess in an exercise of

cooperative federalism; (5) that the Act’s purpose was to protect those

who had depended on the deceased wage earner, a purpose threatened by

allowing unlimited posthumous access to the insured’s limited total benefits, see 42 U.S.C. § 403(a)(1); (6) that defining "child" as "biological

child" leaves the federal courts with a host of unanswered and unanswerable questions stemming from the numerous biological permutations

already possible; (7) that reading § 416(e)(1) as giving child status to all

biological children renders wholly superfluous Congress’s nuanced efforts

at providing child status for out-of-wedlock biological children in

§ 416(h)(3)(C); and (8) that avoiding this problem by reading § 416(e)(1)

as giving child status only to children born in wedlock contradicts that

term’s supposedly plain meaning and nakedly rewrites the Act. 

It is unlikely that a reading of the Act that has so many problems would

be the best one. It is unthinkable that it would be the only permissible one

under the Chevron decision. 

SCHAFER v. ASTRUE 25
of "child" control, id. at 13, I believe just the opposite: it

could not be more clear that Congress instructed us to apply

42 U.S.C. § 416(e) in this case. And even if § 416(h) were to

apply, proper consideration of § 416(h)(2)(B) would require

that we reverse the district court.

I.

This is not a case in which we must choose between two

competing statutory definitions, for here Congress has chosen

for us. The question before us is whether a posthumously conceived biological child is a "child" within the meaning of 42

U.S.C. § 402(d)(1), the provision guaranteeing benefits to a

deceased wage earner’s children. And § 402(d)(1) itself

begins, "Every child (as defined in section 416(e) of this title)

. . . ." (emphasis added). If that does not make Congress’s

choice clear enough, Congress went on to specifically apply

§ 416(h)(2)’s definition of "child" shortly after, in

§ 402(d)(3): "For purposes of this paragraph, a child deemed

to be a child of a fully or currently insured individual pursuant to section 416(h)(2)(B) or section 416(h)(3) of this title

shall be deemed to be the legitimate child of such individual."

(emphasis added). That is, Congress specifically invoked

§ 416(e) in the provision at issue and went on to specifically

invoke § 416(h) in a neighboring provision; it is difficult to

imagine how Congress could have more clearly indicated that

it understood the difference between the two definitions and

was deliberately choosing to apply § 416(e)’s broader definition to the right-granting provision.

The majority dismisses this point, claiming "it is not at all

unusual for Congress to refer explicitly only to one section

even though some of that section’s terms are given their full

import by another, unmentioned section." Maj. Op. at 12. It

cites only to 29 U.S.C. § 626(a), granting the Equal Employment Opportunity Commission investigative authority "in

accordance with the powers and procedures provided in sections 209 and 211 of this title," because § 209 itself merely

26 SCHAFER v. ASTRUE
empowers the EEOC to make use of investigatory powers

granted to the Federal Trade Commission by 15 U.S.C. §§ 49-

50. But § 209 specifically cites to the provisions it incorporates; here, the majority would ignore Congress’s express

directions and insert an implicit citation internal to § 416(e).

It is not clear to me how Congress’s decision not to recopy in

full the powers granted the FTC in title 15 of the Code when

granting these powers to the EEOC in title 42 is in any way

relevant. The question raised by the majority’s approach is

why we should ignore Congress’s explicit instruction that it

was using "child" in §402(d)(1) "as defined in section 416(e)

of this title" and instead look to a different definition in

§ 416(h), especially when Congress specifically cited to

§ 416(h)’s definition in a neighboring provision.

A.

The majority’s approach, while professing deference to the

plain meaning of the statute, does great violence to it. Subsection 416(e) begins, "The term ‘child’ means (1) the child or

legally adopted child of an individual . . . ." The majority

would demote the first words of § 416(e) from Congressional

instruction to irrelevant "tautology," rendering the first half of

the provision—"the child . . . of an individual"—a nullity.

Maj. Op. at 8-9

Dismissing as tautological a definition of "child" that

includes "the child . . . of an individual" appears to commend

itself to common sense, but it is sensible only if one overlooks

the purpose of statutory definitions. Often they function not

like dictionary entries, which set out the meaning of a word

by deconstructing it into component concepts, listing its connotations, or explaining its association to similar words, but

rather as support for a kind of legislative shorthand. Statutory

definitions allow drafters to avoid repeating cumbersome lists

filled with qualifications, as they can instead substitute a single word or phrase as an abbreviation. In this case, § 416(e)’s

dense, 521-word description of those who qualify for a surSCHAFER v. ASTRUE 27
viving child’s benefits (including "(2) a stepchild who has

been such stepchild for not less than one year immediately

preceding the day . . . (3) a person who is the grandchild or

stepgrandchild of an individual or his spouse, but only if . . .")

can be abbreviated throughout the subchapter as "child." 

If one rejects the majority’s claim of "tautology" as I do

and instead recognizes that Congress chose to include "the

child . . . of an individual" within the list of rights-holders,

one is left with a familiar situation: a court is asked to determine whether a given factual situation fits within the class

contemplated by the statute. That is, one must determine

whether a posthumously conceived child is "the child . . . of

an individual." Like any word, the word "child" comprises

both a core of relations it clearly encompasses and a hazy

periphery where the label becomes increasingly contested. Cf.

H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 606-07 (1958) (famously distinguishing "the hard core of standard instances or settled

meaning" from the "penumbra of debatable cases in which

[the term or rule] [is] neither obviously applicable nor obviously ruled out"). But a biological child birthed by its biological mother is clearly at the very core of the meaning of

"child." (Even the majority grudgingly concedes that Congress’s use of the word "child" here "does aim at natural children." Maj. Op. at 8.) The fact that appellant’s child was

conceived after his father’s death does nothing to undermine

the fact that, according to ordinary usage, her son is the

"child" of his biological father. For the reasons given by the

Third Circuit in Capato ex rel. B.N.C. v. Comm’r of Soc. Sec.,

___ F.3d ___, 2011 WL 9368 (3d Cir. Jan. 4, 2011), and the

Ninth Circuit in Gillett-Netting v. Barnhart, 371 F.3d 593 (9th

Cir. 2004), I would find that both the plain meaning of the

statute and the relevant legislative history instruct the Commissioner to include biological children within the meaning of

"child" as used in § 402(d)(1).

28 SCHAFER v. ASTRUE
B.

The majority justifies its reading of the statute by emphasizing § 416(e)’s "lack of guidance" and asserting that, as that

subsection "cannot provide all of the answers," one must turn

to § 416(h)(2)(A), which "describes precisely how one ought

to determine the meaning of ‘child’ under § 416(e)(1)." Maj.

Op. at 9, 11. The majority’s certainty appears rooted in an

instruction it quotes from § 416(h)(2)(A): "In determining

whether an applicant is the child . . . of a fully or currently

insured individual for purposes of this subchapter, the Commissioner of Social Security shall apply such [state] law as

would be applied in determining the devolution of intestate

personal property . . . ." Maj. Op. at 11 . Yet this quotation

is misleading in two respects.

1.

First, it fails to reproduce the second and final sentence of

§ 416(h)(2)(A), which reads, "Applicants who according to

such [state] law would have the same status relative to taking

intestate personal property as a child . . . shall be deemed

such." (emphasis added). That is, § 416(h)(2)(A) requires precisely the same interpretation of "child" that the majority fled

from in § 416(e)(1). One cannot reasonably compare a claimant’s status under intestacy to the status of "a child" until one

settles on the definition of "child." Thus it makes little sense

to abandon § 416(e)(1) on the ground that the word "child" is

vague in favor of § 416(h)(2)(A), which also requires an

extraneous definition of "child."

Moreover, this second sentence makes it pellucidly clear

that § 416(h)(2)(A) supplements, rather than replaces

§ 416(e)(1). If one finds that a claimant fits within the definition of the comparator "child," then obviously he or she will

have "the same status relative to taking intestate personal

property as a child." Thus, any "child" within the meaning of

§ 416(e)(1) must, as a straightforward matter of logic, satisfy

SCHAFER v. ASTRUE 29
§ 416(h)(2)(A). That this yields a strange result in a case like

this one, where the relevant state intestacy law treats different

classes of "children" differently and grants property to only

some of them, underscores the difficulties with the majority’s

attempt to cast § 416(h)(2)(A) in the role of deus ex machina.

As a supplementary provision that requires an independent

definition of "child" but provides no additional aid in constructing one, § 416(h)(2)(A) is not a helpful alternative to

§ 416(e)(1) for present purposes. Under either provision, one

must still wrestle with the definition of "child."

And it is for this reason that the majority’s attempt to subordinate § 416(e) to § 416(h)(2)(A) fails. Recognizing that

§ 416(e)’s inclusion of adopted children, stepchildren, grandchildren, and stepgrandchildren must have legal force— the

Commissioner’s regulations include them, see 20 C.F.R.

§§ 403.354, 356-59— the majority suggests that § 416(e)(1)

"clarifies that natural children and legally adopted children

are included," and likewise for sections (e)(2) and (e)(3) and

the other relations. Maj. Op. at 12. But if § 416(h) controls,

exactly where in the text of the provision do these other relations fit in? As the first sentence only refers to the "applicant,"

it must be in the second sentence, which requires the Commissioner to compare the applicant’s would-be status under

intestacy with the status of "a child." And this would undo the

majority’s construction, for it would simply reveal

§ 416(h)(2)(A) to be a supplement, not a replacement, for

§ 416(e): looking to § 416(e) for the definition of "child" in

§ 416(h)(2)(A)’s second sentence, each relation covered in

§ 416(e) would automatically pass, since in each case one

simply asks the redundant question of whether, say, a stepgrandchild inherits in the same manner as a stepgrandchild. If

§ 416(e) overrides the majority’s mistaken view of

§ 416(h)(2)(A) in the exotic case of stepgrandchildren— that

is, if one accepts the Commissioner’s position, as stated at 20

C.F.R. 404.358, and acknowledge that a stepgrandchild is

entitled to benefits regardless of his or her ability to take

30 SCHAFER v. ASTRUE
under a particular state’s intestacy law— it is not apparent

why the same would not be true in the case of a biological

child.

2.

There is still more to be said. The majority’s use of the

excerpt from § 416(h)(2)(A) is also misleading insofar as it

claims that, given the paragraph’s "shall apply such [state]

law" language, "[t]he text . . . could hardly be more clear"

about which provision applies. Maj. Op. at 9. That is, the

majority appears to read the provision’s mandatory language— "for the purposes of this subchapter . . . the Commissioner . . . shall apply such [state intestacy] law"— to mean

that § 416(h)(2)(A) is a requirement that all claimants must

meet. Yet, as the majority concedes earlier in the opinion,

§ 416(h) "also provides three additional gateways to child status for those who cannot establish it through § 416(h)(2)(A)’s

intestacy provision." Maj. Op. at 5. Thus § 416(h)(2)(A)’s

"shall apply" language is not to be read as "shall only apply";

rather, Congress is simply instructing the Commissioner to

follow the precise process of applying and comparing situations under state intestacy law, not restricting the Commissioner to look only at § 416(h)(2)(A).

The majority strains to cast § 416(h)(3), one of these alternative paths, as "an exception to a general requirement,"

emphasizing that the provision states that a "son or daughter"

who does not meet the requirements of § 416(h)(2)(A) or (B)

"shall nevertheless be deemed to be the child of such insured

individual." Maj. Op. at 15 (emphasis added by majority opinion). This is apparently meant to shield from attack the majority’s conclusion that Congress was drafting "within the

framework of the background intestacy provisions." Maj. Op.

at 15. The problem is that when Congress repeats this verbal

formula, which first appears in § 416(h)(2)(B), in § 416(h)(3),

paragraph (2)(B) is cited alongside paragraph (2)(A). And

paragraph (2)(B) has nothing to do with state intestacy law:

SCHAFER v. ASTRUE 31
it qualifies the "son or daughter" of parents who "went

through a marriage ceremony resulting in a purported marriage" that, "but for a legal impediment . . . would have been

a valid marriage."

Furthermore, Congress’s decision to label these provisions

as (2)(A) and (2)(B) undermines the majority’s suggestion

that (2)(A) was meant to have pride of place as the "backbone" of the definitional framework. Maj. Op. at 14. Rather,

it seems that when Congress instructed that the Commissioner

"shall apply" state intestacy law and then compare the result

to intestate takings of a "child," the mandatory language was

a means of instructing the Commissioner to follow a precise

process, not a way of implicitly undercutting § 416(e). Indeed,

I expect that if Congress were to draft language that gave primacy in defining "child" to a subpart within a subsection entitled "Determination of family status" over the entirety of a

subsection entitled "Children" (within § 416, the "Definitions"

section), such a command would not be left implicit. Cf. Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001)

(Congress does not "hide elephants in mouseholes").

Yet the majority disputes the conclusions that emerge from

the Third and Ninth Circuits’ reviews of legislative history,

which found that § 416(h) was meant to be additive— extending benefits to the children of unwed parents— rather than an

attempt to supplant and, in places, narrow the scope of benefits promised by § 416(e)’s definition of "child." See Maj. Op.

at 13-15. It quotes from the Senate Finance Committee’s

report on the 1965 amendments to the Social Security Act,

which expanded children’s survivorship benefits (immediately granting benefits to an estimated twenty thousand people) "without regard to whether he has the status of a child

under State inheritance laws." S. Rep. 89-404, pt. 1, at 14

(1965), as reprinted in 1965 U.S.C.C.A.N. 1943, 1958

(emphasis added). This reference, says the majority, demonstrates that § 416(h)(2)(a)’s intestacy provisions are "the

backbone of all child status determinations." Maj. Op. at 14.

32 SCHAFER v. ASTRUE
But it is far more likely that Congress was simply referring

back to the intestacy provisions because they were the first to

extend coverage beyond biological children. As the Commissioner has conceded, Congress believed that "all state laws . . .

provided for inheritance of marital children." Br. of Appellee,

at 33; see also 43 Fed. Reg. 57590, 57591 (1998) (finding that

"a ‘child of a valid marriage’ has inheritance rights under the

laws of all states"). The report’s reference to § 416(h)(2)(A)

is simply a reference to an expanded scope of survivorship

benefits reaching beyond marital children; not a suggestion

that paragraph (2)(A) was limiting benefits granted via

§ 416(e)’s "plain language" definition.

In the absence of any indication that the statutory framework is not as it seems, there is no reason to imagine that

§ 416(h) somehow usurps § 416(e), and thus we should not

second-guess Congress when it specifically cites to the definition of "child" in § 416(e) (and goes on to specifically cite to

the differing definitions in § 416(h) in a following provision).

The majority is correct that "[t]he text . . . could hardly be

more clear," but it misapprehends that meaning. When Congress states in § 402(d)(1), "Every child (as defined in section

416(e) of this title)," that is precisely where one should look

for a definition. (emphasis added).

C.

The majority invokes Chevron deference to the Commissioner’s regulations to bolster its case. See Maj. Op. at 8. Yet

even if the Commissioner can survive Chevron step one, his

interpretation fails at step two because it presupposes that

§ 416(h) supplements, rather than replaces, § 416(e), and thus

his refusal to recognize § 416(e)’s inclusion of biological children is not reasonable. The Commissioner, like the majority,

simply misapprehends the statutory language and, most

assuredly, the statutory purpose.

The Commissioner recognizes that § 416(e)’s list of beneficiaries controls; thus he provides in § 404.354, "You may be

SCHAFER v. ASTRUE 33
related to the insured person in one of several ways and be

entitled to benefits as his or her child, i.e., as a natural child,

legally adopted child, stepchild, grandchild, stepgrandchild, or

equitably adopted child." Sections 404.355-39 detail the

means by which one may establish these relationships. Yet

§ 416(h) makes no mention of stepchildren, grandchildren, or

stepgrandchildren; indeed no provision but § 416(e), accepted

as a definition for "child" in §402(d)(1), would authorize the

Commissioner to grant all of these individuals benefits.

As the statute grants the Commissioner rulemaking authority, 42 U.S.C. § 405(a), his regulations are "entitled to deference if they resolve [any] statutory ambiguity in a reasonable

manner." Coeur Ala., Inc. v. Se. Ala. Conservation Council,

129 S. Ct. 2458, 2469 (2009); see Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).

Though I believe that "Congress has directly spoken to the

precise question at issue" and that "the intent of Congress is

clear" on this point, Chevron, 467 U.S. at 842, given that

Congress specifically stated in § 402(d)(1) that it was using

the word "child" "as defined in section 416(e) of th[at] title,"

the Commissioner’s regulations would fail at Chevron step

two. The question is not whether the Commissioner’s results

are reasonable, but whether (assuming statutory ambiguity)

his construction of the statute is reasonable. As it would be

irrational to acknowledge § 416(e)’s force with respect to

every listed relation but one, the Commissioner’s position is

not entitled to deference here.

II.

And even if one did grant Chevron deference, agreeing to

ignore § 416(e) and apply only § 416(h)’s definition of

"child," appellant would be entitled to a reversal. Section

416(h)(2)(B) provides, 

[An] applicant shall . . . be deemed to be the child

of [an] insured individual if such insured individual

34 SCHAFER v. ASTRUE
and the mother or father, as the case may be, of such

applicant went through a marriage ceremony resulting in a purported marriage between them which, but

for a legal impediment described in the last sentence

of paragraph (1)(B), would have been a valid marriage.

The last sentence of paragraph (1)(B) specifies that these

"legal impediment[s]" include "the lack of dissolution of a

previous marriage" and "a defect in the procedure followed in

connection with such purported marriage."

It is undisputed that W.M.S.’s parents, Mr. and Mrs.

Schafer, were married in June 1992. If W.M.S. could show

that there was some technical defect in the marriage paperwork, then, even under the majority’s reading of the statute,

W.M.S. would qualify as a "child" under § 416(h)(2)(B). To

deny him benefits because his parents’ marriage was valid

would be bizarre. This provision again shows that Congress

intended to include children of a valid marriage in its definition of "child," for what possible purpose would Congress

have for covering children of a technically invalid marriage

but not those of legally valid ones?

To adopt such a reading of the statute would raise serious

constitutional questions. Indeed, appellant has brought an

equal protection challenge to such a construction of the statute. Though a non-suspect statutory distinction will survive an

equal protection challenge "if there is any reasonably conceivable state of facts that could provide a rational basis for the

classification," FCC v. Beach Commc’ns, Inc., 508 U.S. 307,

313 (1993), such a distinction between valid and technically

invalid marriages might well fail rational basis review.

Here the canon of constitutional avoidance fully applies.

When "choosing between competing plausible interpretations

of a statutory text," courts are to choose in accordance with

"the reasonable presumption that Congress did not intend the

SCHAFER v. ASTRUE 35
alternative which raises serious constitutional doubts." Clark

v. Martinez, 543 U.S. 371, 382 (2005). The simplest choice

here (and, I believe, the legally correct one) would be to give

effect to § 416(e)(1) and find that a biological child is, indeed,

"the child . . . of an individual." But even within the majority’s view that § 416(h) overrides § 416(e) there exists a plausible reading of § 416(h)(2)(B) that avoids an irrational

distinction favoring technically invalid marriages.

In particular, one might read § 416(h)(2)(B) to implicitly

include valid marriages. Under this view, paragraph (2)(B)

simply extends the benefits granted under paragraph (2)(A)—

a provision thought to include any "child of a valid marriage,"

43 Fed. Reg. 57590, 57591 (1998)— to the children of marriages that Congress believed ought to be considered valid for

its purposes.

Under this interpretation, any child of a marriage (who happened not to already qualify for benefits under paragraph

(2)(A)) would satisfy § 416(h)’s definition of "child," whether

or not a technicality undermined the marriage’s validity. One

would view the "but for" clause not as listing technical invalidity as a further requirement, but simply as excusing technical invalidity and extending benefits to reach the children of

such marriages. Manifestly, this was Congress’s intent, and in

fact the paragraph’s logical structure lends itself to such a

reading. As formal logic would have it, it is true of validly

married spouses that they "went through a marriage ceremony

resulting in a purported marriage between them which, but for

a legal impediment . . . , would have been a valid marriage."

42 U.S.C. § 416(h)(2)(B). The "but for" phrase simply

instructs the Commissioner to consider a hypothetical scenario (thus the following subjunctive, "would have been") in

which any technical defects are ignored; that is, in which marriages that fail on account of a technicality are made to look

identical to valid marriages. Though children of valid marriages need not avail themselves of Congress’s liberality,

they, too, would be covered by paragraph (2)(B).

36 SCHAFER v. ASTRUE
As § 416(h)(2)(B) is drafted in language logically applicable to valid marriages as well as technically invalid ones, and

as the coverage of such was clearly Congress’s intent, this is

at least a plausible reading of the provision. And since this

construction would avoid a serious constitutional question, it

is preferable to the majority’s reading, which would arbitrarily penalize the children of valid marriages because their parents’ marriage proceedings happened not to suffer from some

technical defect.

III.

In this case a husband, facing the prospect of sterility just

four months after marrying, voluntarily left behind his sperm

for a singular purpose: to produce a child with his wife. That

the two of them achieved their joint purpose because she did

exactly what they both contemplated provides scant justification to distort statutory meaning, structure, and purpose and

thereby disqualify their offspring from his federal statutory

entitlement. The majority is surely correct in its implied

lament that we live in a "brave new world," one in which the

law lags behind technology, as it ever has. But that truism has

never defined a "hard case." What must be recalled is that

judicial opinions, like the statutes they interpret, are not

merely words arranged on paper. They have real effects on

real people. 

Respectfully, I dissent. 

SCHAFER v. ASTRUE 37