[Federal Register Volume 70, Number 183 (Thursday, September 22, 2005)]
[Notices]
[Pages 55656-55657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18920]


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SOCIAL SECURITY ADMINISTRATION


Social Security Acquiescence Ruling 05-1(9); Gillett-Netting v. 
Barnhart; Application of State Law and the Social Security Act in 
Determining Eligibility for a Child Conceived By Artificial Means After 
an Insured Individual's Death--Title II of the Social Security Act

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Acquiescence Ruling.

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SUMMARY: In accordance with 20 CFR 402.35(b)(2), the Commissioner of 
Social Security gives notice of Social Security Acquiescence Ruling 05-
1(9).

EFFECTIVE DATE: September 22, 2005.

FOR FURTHER INFORMATION CONTACT: Karen Aviles, Office of the General 
Counsel, Social Security Administration, 6401 Security Boulevard, 
Baltimore, MD 21235-6401, (410) 965-3457, or TTY (800) 966-5609.

SUPPLEMENTARY INFORMATION: We are publishing this acquiescence ruling 
in accordance with 20 CFR 402.35(b)(2).
    An acquiescence ruling explains how we will apply a holding in a 
decision of a United States Court of Appeals that we determine 
conflicts with our interpretation of a provision of the Social Security 
Act (Act) or regulations when the Government has decided not to seek 
further review of that decision or is unsuccessful on further review.
    We will apply the holding of the court of appeals' decision as 
explained in this acquiescence ruling to claims at all levels of 
administrative review within the Ninth Circuit. This acquiescence 
ruling will apply to all determinations or decisions made on or after 
September 22, 2005. If we made a determination or decision on your 
application for benefits between June 9, 2004, the date of the court of 
appeals' decision, and September 22, 2005, the effective date of this 
acquiescence ruling, you may request application of the acquiescence 
ruling to the prior determination or decision. You must demonstrate, 
pursuant to 20 CFR 404.985(b)(2), that application of this acquiescence 
ruling could change our prior determination or decision in your claim.
    Additionally, when we received this precedential court of appeals' 
decision and determined that an acquiescence ruling might be required, 
we began to identify those claims that were pending before us within 
the circuit that might be subject to readjudication should we decide to 
issue an acquiescence ruling. Because an acquiescence ruling is 
required, we will send a notice to those individuals whose claims may 
be affected by the acquiescence ruling. The notice will provide 
information about this ruling and the right to request readjudication 
under it. It is not necessary for an individual to receive a notice in 
order to request application of this acquiescence ruling to the prior 
determination or decision on his or her claim.
    If this acquiescence ruling is later rescinded as obsolete, we will 
publish a notice in the Federal Register to that effect as provided for 
in 20 CFR 404.985(e). If we decide to relitigate the issue covered by 
this acquiescence ruling as provided for by 20 CFR 404.985(c), we will 
publish a notice in the Federal Register stating that we will apply our 
interpretation of the Act or regulations involved and explaining why we 
have decided to relitigate the issue.

(Catalog of Federal Domestic Assistance, Program Nos. 96.001 Social 
Security--Disability Insurance; 96.002 Social Security--Retirement 
Insurance; 96.004 Social Security--Survivors Insurance)

    Dated: August 24, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.

Acquiescence Ruling 05-1(9)

    Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004), reh'g 
denied (9th Cir. Dec. 14, 2004)--Applicability of State Law and the 
Social Security Act in Determining Whether a Child Conceived By 
Artificial Means after an Insured Person's Death is Eligible for 
Child's Insurance Benefits--Title II of the Social Security Act.
    Issues: Whether a child conceived by artificial means after the 
death of the insured is a ``child'' for purposes of child's insurance 
benefits under section 202(d)(1) of the Social Security Act (Act) 
solely because he or she is the biological child of the insured. 
Whether such child can be deemed dependent on the deceased insured 
individual under section 202(d)(3) of the Act \1\ because he is 
considered legitimate under State law.
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    \1\ Section 202(d)(3) provides, in pertinent part, that ``A 
child shall be deemed dependent upon his father or adopting father 
or his mother or adopting mother at the time specified in paragraph 
(1)(C) of this subsection. * * * [A] child deemed to be a child of a 
fully or currently insured individual pursuant to section 
216(h)(2)(B) or section 216(h)(3) * * * shall be deemed to be the 
legitimate child of such individual,'' and therefore presumptively 
dependent.
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    Statute/Regulation/Ruling Citation: Sections 202(d)(3), 216(e) and 
(h) of the Social Security Act (42 U.S.C. 402(d)(3), 416(e) and (h)); 
20 CFR 404.355.
    Circuit: Ninth (Alaska, Arizona, California, Guam, Hawaii, Idaho, 
Montana, Nevada, Northern Mariana Islands, Oregon, Washington).
    Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004), reh'g 
denied (9th Cir. Dec. 14, 2004).
    Applicability of Ruling: This ruling applies to determinations or 
decisions at all administrative levels, i.e., initial, reconsideration, 
Administrative Law Judge (ALJ) hearing, and Appeals Council.
    Description of Case: On August 19, 1996, Rhonda Gillett-Netting 
filed applications for child's insurance benefits on behalf of her twin 
children as survivors of the insured, Robert Netting. The twins, born 
18 months after the insured's death, were conceived through in-vitro 
fertilization using sperm that the insured had frozen and stored before 
he died. The Social Security Administration (Agency) denied the claims, 
finding that neither twin met the statutory definition of ``child'' and 
that neither twin was dependent on the father at the time of his death 
as required by the Act. The district court upheld the Agency's 
decision. After the district court denied the plaintiff's motion for 
reconsideration, Gillett-Netting filed an appeal with the Court of 
Appeals for the Ninth Circuit.
    Holding: On appeal, the Ninth Circuit reversed the decision of the 
district court and held that the twins were entitled to benefits 
because, as the insured's biological children, they met

[[Page 55657]]

the ``child'' definition of the statute. Finding that there was no 
dispute about the twins' parentage, the court held that section 
216(h)(2), (3) of the Act had ``no relevance to the issue before [it]'' 
and thus there was no need to consult State inheritance law. The court 
concluded that the twins were deemed dependent upon the insured under 
section 202(d)(3) of the Act because under Arizona law, they were his 
``legitimate'' children. Under Arizona law, ``[e]very child is the 
legitimate child of its natural parents and is entitled to support and 
education as if born in lawful wedlock.'' \2\ The court reasoned that 
because the insured was married to the mother of the twins and was the 
twins' biological father, the twins are legitimate under State law.
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    \2\ Ariz. Rev. Stat. Sec.  8-601 (1975).
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Statement as to How Gillett-Netting Differs From SSA's Interpretation 
of the Social Security Act

    We determine that an individual may be eligible for child's 
insurance benefits under section 202(d)(1) of the Act if he is the 
``child'' of an insured individual as defined in section 216(e) and was 
dependent on the insured at the time of his death under section 
202(d)(3). Section 216(e)(1) defines a ``child'' as ``the child or 
legally adopted child of an individual.'' Section 216(h) provides the 
analytical framework that we must follow for determining whether a 
child is the insured's child for the purposes of section 216(e). 
Section 216(h)(2)(A) directs us to ``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 is domiciled * * * 
at the time of his death * * *'' (See also 20 CFR 404.355(a)(1)). A 
child who cannot inherit personal property from the deceased insured 
individual under State intestacy law may nonetheless be eligible for 
child's insurance benefits under limited circumstances under sections 
216(h)(2)(B) and (3)(C); these circumstances do not apply to an after-
conceived child. (See also 20 CFR 404.355(a)).\3\ Consequently, to meet 
the definition of ``child'' under the Act, an after-conceived child 
must be able to inherit under State law.
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    \3\ An applicant will be deemed a ``child'' under section 
216(e)(1) if he or she is the biological child of the insured and 
his or her parents went through a marriage ceremony that would have 
been valid but for a legal impediment. See section 216(h)(2)(B) of 
the Act; 20 CFR 404.355(a)(2). An applicant will also be considered 
a ``child'' if: (1) the insured had, before his death, acknowledged 
parentage in writing, been decreed a parent by a court, or been 
ordered to pay child support; or (2) there is satisfactory evidence 
that the deceased insured is the biological parent of the applicant 
and the insured was, at the time of his death, living with the 
applicant or contributing to his support. See section 216(h)(3)(C) 
of the Act; 20 CFR 404.355(a)(3)-(4). These additional tests for 
eligibility require action by the insured during the lifetime of the 
child.
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    If the individual satisfies the definition of ``child'' under 
section 216(e), the child must also show he or she ``was dependent 
upon'' the insured individual ``at the time of [the insured's] death'' 
in order to be eligible for benefits under section 202(d)(1)(C)(ii). 
Under section 202(d)(3), a ``legitimate'' child is ``deemed dependent'' 
upon the insured individual at the time of his death unless the child 
has been adopted by someone else. A child who satisfies the 
requirements of section 216(h)(2), (3) is deemed legitimate for 
purposes of section 202(d)(3) and, therefore, deemed dependent. Section 
202(d)(3); Social Security Ruling 77-2c. Other children, though, must 
establish that they were living with their father at the time of his 
death or that he was contributing to their support in order to be found 
dependent under section 202(d)(3).
    The Ninth Circuit in Gillett-Netting held that the twins 
established ``child'' status under the Act solely because they are the 
biological children of the insured. The court found that section 216(h) 
did not apply unless a child's parentage is disputed. The court also 
found that, under Arizona law, an insured individual's biological child 
conceived by artificial means after the death of the insured would be 
considered ``natural'' if the parents were married at the time of the 
insured's death. Further, the court concluded that every child in 
Arizona is the legitimate child of his natural parents. As a result, 
the Ninth Circuit deemed the twins dependent on the insured under 
section 202(d)(3) because it considered them to be legitimate under 
Arizona law. The court concluded that the twins were eligible for 
child's benefits under section 202(d) of the Act.

Explanation of How SSA Will Apply the Gillett-Netting Decision Within 
the Circuit

    This ruling applies only to cases involving an applicant for 
surviving child's benefits who applies on the earnings record of a 
person who, at the time of death, had his permanent home in Alaska, 
Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern 
Mariana Islands, Oregon, and Washington. While the court based its 
dependency determination on State law, it ruled that State law was 
irrelevant for determining ``child'' status if parentage was not in 
dispute.
    In a claim for survivor's benefits, we will determine that a 
biological child of an insured individual who was conceived by 
artificial means after the insured's death is the insured's ``child'' 
for purposes of the Act. We will not apply section 216(h) of the Act in 
determining the child's status. In addition, if such child is 
considered legitimate under State law, we will consider the child to be 
the insured's ``legitimate'' child and thus deemed dependent upon the 
insured for purposes of section 202(d)(3) of the Act. All of the States 
and jurisdictions within the Ninth Circuit, except Guam, have 
eliminated distinctions between legitimate and illegitimate children. 
These States allow all children the same rights which flow between 
parents and their children, regardless of the parents' marital status. 
A child acquires these rights if he establishes that an individual is 
his parent under State family law provisions. Accordingly, if all other 
requirements are met, adjudicators will consider such child entitled to 
child's benefits under section 202(d).

[FR Doc. 05-18920 Filed 9-21-05; 8:45 am]
BILLING CODE 4191-02-P