Amen v. Astrue

Filing 42

MEMORANDUM OPINION- The Court finds that the SSA's decision should be affirmed and that Ms. Amen's amended complaint should be dismissed as to all claims of relief. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
MELISSA AMEN, Individually
and on behalf of her minor
child, K.L.A.,

)
)
)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of the Social
)
Security Administration,
)
)
Defendant.
)
______________________________)

4:10CV3216

MEMORANDUM OPINION

Pursuant to 42 U.S.C. § 405(g), this matter is before
the Court for review of the decision of defendant Commissioner of
the Social Security Administration (“SSA”) denying child’s
insurance benefits to the minor child K.L.A. and denying mother’s
insurance benefits to K.L.A.’s mother, Melissa Amen.

Upon

review, and considering recent decisions by the United States
Supreme Court, Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021
(2012), and the Nebraska Supreme Court, Amen ex rel. K.L.A. v.
Astrue, 284 Neb. 691, 822 N.W.2d 419 (2012), the Court finds the
SSA’s decision is supported by substantial evidence and should be
affirmed.
I.

Background and Procedural History.
Joshua Amen and Melissa Amen married on June 5, 2004.

Prior to their wedding, Mr. Amen was diagnosed with cancer.
Before beginning cancer treatment, Mr. Amen cryogenically

preserved his sperm at a sperm bank.

In October 2006, while Mr.

Amen’s cancer treatment was ongoing, Ms. Amen was undergoing a
fertility treatment cycle with Mr. Amen’s consent and support.
Mr. Amen passed away on November 24, 2006, while
domiciled in the State of Nebraska.

On December 1, 2006, after

Mr. Amen’s death, Ms. Amen underwent intrauterine insemination
using Mr. Amen’s previously cryopreserved sperm.

The procedure

was successful, and Ms. Amen gave birth to a child, K.L.A., on
August 14, 2007.

Mr. Amen is K.L.A.’s biological father.

On August 31, 2007, Ms. Amen applied to the SSA for
mother’s insurance benefits and surviving child’s insurance
benefits on behalf of K.L.A., based on Mr. Amen’s earnings
record.

The SSA denied the application initially and upon

reconsideration.
After an initial determination, Ms. Amen filed a
request for rehearing on April 13, 2009.

On February 26, 2010,

an Administrative Law Judge (“ALJ”) decided that K.L.A. was
entitled to child’s insurance benefits on Mr. Amen’s Social
Security record.
The SSA’s Appeals Council chose to review the ALJ’s
decision upon its own motion and reversed the ALJ’s decision.
The Appeals Council found that because K.L.A. does not have
inheritance rights in the wage earner’s estate under the laws of
the State of Nebraska, she is not a “child” of the wage earner,

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Mr. Amen, under the Social Security Act (the “Act”), and
therefore she is not entitled to child’s insurance benefits.
Ms. Amen filed this action to appeal the final decision
of the SSA.

After briefing by the parties, and at the suggestion

of the parties, this Court certified the following question of
Nebraska law to the Nebraska Supreme Court:
Can a child, conceived after her
biological father’s death through
intrauterine insemination using his
sperm, and born within nine months
of his death, inherit from him as
his surviving issue under Nebraska
intestacy law?
Amen ex rel. K.L.A. v. Astrue, 284 Neb. 691, 692, 822 N.W.2d 419,
420 (2012).

In response, the Nebraska Supreme Court held, “The

answer to the certified question is no, a child conceived after
her biological father’s death through intrauterine insemination
using the father’s sperm and born within 9 months of his death
cannot inherit from the father as his surviving issue under
Nebraska intestacy law.”

Amen, 284 Neb. at 697, 822 N.W.2d at

423 (the “Nebraska Amen decision”).
Following the Nebraska Amen decision, this Court issued
an order asking the parties to show cause as to why this case
should not be dismissed.

In her show cause submission (Filing

No. 36), Ms. Amen conceded that the Nebraska Amen decision led
her to “assent to the dismissal” of the first, second, third, and
eighth claims for relief as delineated in the amended complaint

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(Filing No. 13).

Ms. Amen contends that the fourth, fifth, and

sixth claims for relief, however, are constitutional claims that
survive the Nebraska Amen decision.1

The SSA filed a response,

agreeing with Ms. Amen that the Nebraska Amen decision did not
decide the constitutional issues, but also arguing that Capato
does decide them (Filing No. 41).
II.

Applicable Law.
Under the Act, in order to determine whether K.L.A. is

entitled to child insurance benefits,
the Commissioner of Social Security
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.
42 U.S.C. § 416(h)(2)(A).

This state-by-state scheme for federal

child insurance benefits was recently upheld by the United States
Supreme Court:

“[T]he law Congress enacted calls for resolution

of [plaintiff’s] application for child’s insurance benefits by
reference to state intestacy law.

We cannot replace that

reference by creating a uniform federal rule the statute’s text

1

The seventh claim for relief asks for a declaratory
judgment that whatever benefits received should be “retroactive
to K.L.A.’s date of birth” and so is dependent on the success of
at least one of the other claims (Filing No. 13, at 14, ¶ 90).
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scarcely supports.”

Astrue v. Capato ex rel. B.N.C., 132 S. Ct.

2021, 2034 (2012).
In addition, in response to an Equal Protection Clause
argument made by the Capato plaintiff, the United States Supreme
Court stated, “No showing has been made that posthumously
conceived children share the characteristics that prompted our
skepticism of classifications disadvantaging children of unwed
parents.

We therefore need not decide whether heightened

scrutiny would be appropriate were that the case.

Under

rational-basis review, the regime Congress adopted easily passes
inspection.”
III.

Id. at 2033 (footnote omitted).

Discussion.
In this case, Ms. Amen initially argued that K.L.A. is

a “child” of Mr. Amen under the plain language of the Act, and,
therefore, that she should receive child insurance benefits based
on Mr. Amen’s earned wages.

Considering the United States

Supreme Court’s decision in Capato and the Nebraska Supreme
Court’s answer to this Court’s certified question in the Nebraska
Amen decision, this Court must conclude that since K.L.A. cannot
inherit from Mr. Amen under the intestacy laws of the State of
Nebraska, then she cannot receive child insurance benefits under
the Act.
Second, Ms. Amen states that using the State of
Nebraska’s intestacy laws to determine federal child insurance
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benefits violates the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.

In her brief, Ms.

Amen argues,
[T]o the extent that children like
[K.L.A.] conceived after the
parent/wage earner’s death are
deemed by the Social Security
Administration, through
incorporation of Nebraska state law
or otherwise, ipso facto to be
“illegitimate” children who must
demonstrate their entitlement to
benefits through some means
different from or in addition to
what children who are not deemed
“illegitimate” (which is the
practical effect of the Appeals
Council’s ruling) are required to
establish, the government creates
an unconstitutional classification
based on illegitimacy.
(Filing No. 18, at 19-20).

In her show cause submission, Ms.

Amen reframed the argument in terms of describing K.L.A. as a
“posthumously conceived” child rather than an “illegitimate”
child.

Ms. Amen contends,
The blanket denial of benefits to
all posthumously conceived children
whose deceased parent last lived in
Nebraska violates the Equal
Protection Clause because it treats
posthumously conceived children
differently and less favorably than
similarly-situated children based
on a classification (conception of
indisputably biological children
after death of the wage earner)
which does not bear “a rational
relation to some legitimate end.”

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(Filing No. 36, at 4 (citing Romer v. Evans, 517 U.S. 620, 63[1]
(1996))).

Ms. Amen states that “constitutional claims were not

addressed by the United States Supreme Court decision in
[Capato], which merely reiterated the framework that social
security cases may be decided by applying state intestacy law”
(Filing No. 36, at 2).
Yet in Capato, cited above, the United States Supreme
Court clearly differentiated between illegitimate children
(“children of unwed parents”) and children in the same stance as
K.L.A.

Accordingly, this Court rejects the argument that K.L.A.

herself is effectively deemed illegitimate by the SSA’s decision.
Furthermore, as in Capato, Ms. Amen has not made a “showing . . .
that posthumously conceived children share the characteristics
that prompted our skepticism of classifications disadvantaging
children of unwed parents,” other than the very issue at hand.
Capato, 132 S. Ct. at 2033.

Because the United States Supreme

Court concluded that “[u]nder rational-basis review, the regime
Congress adopted easily passes inspection,” this Court must also
reject Ms. Amen’s argument that the SSA has acted
unconstitutionally with regard to the Equal Protection Clause.
Id.
Finally, Ms. Amen contends that the SSA’s decision has
deprived her of her “Substantive Due Process rights” and “the
privileges and immunities of citizenship guaranteed by the United

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States Constitution” (Filing No. 36, at 3).

In neither her

initial brief nor her show cause submission did Ms. Amen argue
either of these issues.
waived.

Thus the Court considers the issues

See NECivR 7.1(a)(1)(A).
Accordingly, the Court finds that the SSA’s decision

should be affirmed and that Ms. Amen’s amended complaint should
be dismissed as to all claims of relief.

A separate order will

be entered in accordance with this memorandum opinion.
DATED this 24th day of January, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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