No. 96-7526 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 KARLA ANN HOLT ON BEHALF OF BILLY D. GIPSON, PETITIONER v. SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General WILLIAM KANTER FRANK A. ROSENFELD Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the court of appeals correctly held that Petitioner failed to establish that her son was entitled to inherit the property of the deceased wage earner under Arkansas law, because petitioner failed to bring an action to establish paternity as required by Arkansas law. 2. Whether the court of appeals abused its discretion in declining to reach petitioner's constitutional challenge to the Arkansas interstate succession statute, on the ground that petitioner had not preserved the issue in the district court. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-7526 KARLA ANN HOLT ON BEHALF OF BILLY D. GIPSON, PETITIONER v. SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. B) is unreported. The orders of the district court (Pet. App. C), the Appeals Council of the Department of Health and Human Services (Pet. App. D), and the administrative law judge (Pet. App. E) are also unreported. JURISDICTION The judgment of the court of appeals was entered on August 7, 1996. A petition for rehearing was denied on October 16, 1996. The petition for a writ of certiorari was filed on January 14, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT 1. Under the Social Security Act, unmarried minor children of a deceased individual who was insured under the Act may re- ceive survivor's benefits if they were "dependent upon such in- dividual" prior to his death. 42 U.S.C. 402(d) (1) (C). A child who is legitimate or legally adopted by the insured is deemed dependent and thus is entitled to benefits. 42 U.S.C. 402 (d) (3) An illegitimate child can establish dependency by several means. First, the child may show that the insured was his parent and was living with the child or contributing to his or her support at the time of the insured's death. 42 U.S.C. 416(h) (3) (C) (ii). Second, the child may show that his or her parents went through a purported marriage ceremony, but that their marriage was invalid because of a legal impediment. 42 U.S.C. 416(h)(2) (B). Third, the child may show that the insured, prior to his death, had (a) acknowledged the child as his son or daughter in writing, (b) been decreed by a court to be the child's parent, or (c) been ordered by a court to contribute to the support of the child on the basis of parenthood. 42 U.S.C. 416(h)(3)(C)(i). Section 402(d) (3) provides that any child who meets the tests in Sections 416(h) (2) (B) and 416(h) (3) "shall be deemed to be the legitimate child of such individual. " In addition, an illegitimate child can qualify for benefits without meeting any of the foregoing tests for showing dependency if the child is entitled to inherit personal property under "such law as would be applied in determining the devolution of intes- ---------------------------------------- Page Break ---------------------------------------- 3 tate personal property by the courts of the State in which [the] insured individual * * * was domiciled at the time of his death." 42 U.S.C. 416(h) (2) (A). An illegitimate child who meets the standard of Section 416(h) (2) (A) is deemed to be legitimate and therefore dependent. See Mathews v. Lucas, 427 U.S. 495, 514-515 n.17 (1976); see also Jimenez v. Weinberqer 417 U.S. 628, 631 n.2 (1974) . Under the Arkansas intestate succession statute, Ark. Code Ann. 28-9-209, an illegitimate child may inherit from his father if "a court of competent jurisdiction has established the paternity of the child," l. and "an action is commenced or claim asserted against the estate of the father in a court of competent jurisdiction within one hundred eighty (180) days of the death of the father. " Ark. Code Ann. 28-9-209(d). 2. Charles B. Darter, Jr., a wage-earner insured under the Social Security Act, died in 1990 in an automobile accident while domiciled in Arkansas. Petitioner filed an application for social security survivor's benefits on behalf of her son, Billy D. Gipson, who was born in 1985, and was allegedly the son of Darter. Pet. App. E1-E2. The administrative law judge (ALJ) ___________________(footnotes) 1 In addition to the establishment of paternity by a court of competent jurisdiction under Ark. Code Ann. 28-9-209(d) (1) , Arkansas law specifies five other conditions in which an illegitimate child may inherit property: the man acknowledged paternity in writing; the man's name appears with his consent on the birth certificate; the parents intermarry before the child's birth; an apparent marriage of the parents was invalid; or the putative father is obligated to support the child under a written voluntary promise or by court order. Ark. Code Ann. 28-9-209(d)(2)-(5). ---------------------------------------- Page Break ---------------------------------------- 4 granted petitioner benefits. Id. at E3-E4. The ALJ acknowledged that Ark. Code Ann. 28-9-209 required that an action be "commenced within 180 days of the father's death and statutory conditions evidencing paternity are satisfied." Pet. App. E2. The ALJ concluded that "[t]his action was commenced within that [180-day] time frame in the only forum where the father has any estate, namely Social Security benefits." Ibid. The ALJ also cited Zahradnik v. Sullivan, 966 F.2d 355 (8th Cir. 1992), in which the court interpreted Oregon law to permit paternity and heirship to be established in a proceeding under the Social Security Act, without first filing a predicate action in state court. Id. at 357-358. Based on the testimony of petitioner and blood tests that "indicate a 96.32% probability that Bobby Darter is the claimant's father," the ALJ granted petitioner survivor benefits. Pet. App. E2-E3. On its own motion, the Appeals Council of the Department of Health and Human Services reversed the ALJ's decision. Pet. App. D1-D5. It concluded that, unlike the Oregon statute at issue in Zahradnik, "[there is no comparable provision in the Arkansas statute that permits the Secretary to stand in place of an Arkansas court and make a paternity determination where the State court could not do so because the requirement that a court action must have been commenced within 180 days of death was not met." Pet. App. D3. Because petitioner "filed no claim against the estate of [Darter] with the time limit," the Appeals council concluded that petitioners son "would not be entitled to inherit ---------------------------------------- Page Break ---------------------------------------- 5 property from [Darter's] estate pursuant to Ark. Code. Ann. section 28-9-209(d)," and thus was not entitled to survivor benefits under 42 U.S.C. 416(h) (2) (A). Pet. App. D3. The Appeals Council also held that petitioner did not qualify for benefits under 42 U.S.C. 216(h) (2) (B) or (3) (C) (i), because [n]o marriage took place between [petitioner] and the wage earner and [paternity] was not established before his death in a written acknowledgement, a court decree of paternity or a decree for child support." Pet. App. D3. Finally, the Appeals Council held that petitioner was not entitled to benefits under I 42 U.S.C. 416(h) (3) (C) (ii). Although the Appeals Council noted that " [t]he results of the genetic marker tests support the allegation that the wage earner was [the] biological father," the Appeals Council found that "there is no evidence that [Darter] was making regular, substantial contributions toward [his putative son's] ordinary living expense or that he was living with [his putative son] at the time he died." Pet. App. D4. 3. The district court, with a magistrate judge presiding upon the parties' consent, affirmed the decision of the Appeals Council. Pet. App. C1-C9. The court concluded that "[t]he record does not establish that a claim was asserted by [petitioner] against the estate of Charles Darter in a court of competent jurisdiction within 180 days of Darter's death in accordance with the requirements of Ark. Code Ann. 28-9-209(d) (1987). " Pet. App. C6. Accordingly, the court found that petitioner's son "does not have inheritance rights under Arkansas ---------------------------------------- Page Break ---------------------------------------- 6 law. " Ibid. The court also upheld the Appeals Council's determination that petitioner's son did not quality for benefits under 42 U.S.C. 416(h) (2) (b), (h) (3) (C) (i) or (h) (3) (C) (ii) . Pet. App. C6-C8. In an unpublished per curiam decision, the court of appeals affirmed. Pet. App. B1-B4. The court held that " the ALJ was not competent to adjudicate paternity under Arkansas law." Pet. App. B2 . The court reasoned that state law allows an illegitimate child to inherit property from his father "provided that 'a court of competent jurisdiction has established paternity of the child.' " Id. at B3 (quoting Ark. Code Ann. 26-9-209(d) (1)) . The court then explained that the "Arkansas Chancery Court was the court of competent jurisdiction in which [petitioner] should have brought a paternity action after Darter's death. Ibid (citing In re Estate of F.C., 900 S.W. 2d 200, 200-20 (Ark. 1995) ). Thus , the court concluded that "petitioner has not established paternity in Arkansas court or otherwise shown that [her son] is entitled to inherit Darter's personal property under Arkansas law. " Ibid. The court also concluded that petitioner had not satisfied any of the alternative tests for benefits under the Act. Ibid. Finally, the court "decline[d] to reach [petitioner's] due process and equal protection challenge to Ark. Code Ann. 28-9-209(d), because the issue was not sufficiently raised below." Pet. App. B4. ---------------------------------------- Page Break ---------------------------------------- 7 ARGUMENT 1. Petitioner argues (Pet. 7-9) that the court of appeals' conflicts with the Arkansas state court decisions of In re Estate of F.C., supra, and Henry v. Johnson, 730 S.W.2d 495 (Ark. 1987) on the question of whether, under Arkansas law, the Arkansas Chancery Court is the only court in which a paternity action may be brought. The resolution of that state law issue does not warrant this Court's review. Brockett v. Spokane Arcades, Inc. , 472 U.S. 500 (1985) (noting general deference to courts of appeals' interpretation of state law) ; see also Pembaur v. City of Cincinnati, 475 U.S. 469, 484-485 n.13 (1986) (same); Bishop v. Wood 426 U.S. 341, 345-347 (1976) (same). 2. In any event, petitioner's contention is without merit. The Arkansas Supreme Court held in In re Estate of F.C. that "Section 28-9-209(d) (1) clearly contemplates that even where the illegitimate child is attempting to inherit property from his father, the probate court cannot establish paternity -- a court of competent jurisdiction must do so. " 900 S.W.2d at 201. The court explained that while "[t]he probate court has jurisdiction over the administration, settlement, and distribution of estates of decedents and the determination of heirship," the [C]hancery court * * * has concurrent jurisdiction with the juvenile division of chancery court in cases and matters relating to ___________________(footnotes) 2 Cf. Salve Regina College v. Russell, 499 us. 225, 235 n.3 (1991) (describing "several cases. in which this Court declined to review de novo questions of state law" as resting on "the manner in which this Court chooses to expend its limited resources"). ---------------------------------------- Page Break ---------------------------------------- 8 paternity." Ibid. (citing Ark. Code Ann. 9-10-101 (Repl. 1993), 16-13-304(b) (Repl. 1994) and Ark. Const. amend. 67). 3. Relying on In re Estate of F.C. and the requirement under Section 28-9-209(d) (1) that "a court of competant jurisdiction has established the paternity of the paternity of the child," the court of appeals correctly held that " the ALJ was not competent to adjudicate paternity under Arkansas law, because Arkansas does not have a statute * * * which allow[s] the ALJ to adjudicate paternity * * * ." Pet. App. B2. Because petitioner did not establish paternity in Arkansas court or otherwise demonstrate that her son is entitled to inherit Darter's personal property under Arkansas law, petitioner is not entitled to survivor benefits under 42 U.S.C. 416 (h) (2) (A). 4. Pet. App. B2. Because petitioner did not establish in Arkansas court or otherwise demonstrate that her son benefits, which cannot be adjudicated in state probate court, " 2. Petitioner also challenges (Pet. 11-12) the constitutionality of Ark. Code Ann. ___________________(footnotes) 3 Contrary to petitioner's suggestion (Pet. 8-9), the decision in Henry v. Johnson, 730 S.W. 2d 495 (Ark. 1987), did not hold that the state probate court has jurisdiction to adjudicate paternity. That decision held that although Arkansas law at that time provided that "matters relating to bastardy must be brought in the county courts," an illegitimate child may bring an action to establish heirship in probate court. Id. at 496. 4 Petitioner also argues that Fulton v. Harris, 658 F.2d 641 (8th Cir. 1981), supports her contention that "ALJ's have determined paternity after the death of the wage earner under the Social Security Act." Pet. 9. In Fulton, however, the court of appeals noted that the ALJ had determined that the wage-earner was the claimant's father under 42 U.S.C. 402(d) (1) (C) (ii). 658 F.2d at 642. Moreover, the decision in Fulton did not examine Ark. Code Ann. 28-9-209(d), but a prior Arkansas statute that was held to be unconstitutional. 658 F.2d at 643. ---------------------------------------- Page Break ---------------------------------------- 9 claimants "cannot possibly satisfy [section -28-9-209 (d)] which requires that an illegitimate child commence an action or assert a claim against the decedent's estate within 180 days of death. " Pet. 12. As the court of appeals correctly held (Pet. App. B4) , however, petitioner waived that contention by failing to preserve it in the district court. This Court in Singleton v. Wulff, 428 U.S. 106, 120-21 (1976) , explained that "[i]t is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below, " and that the question of whether to make any exception to that rule "is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases." In the present case, the court-of appeals did not abuse its discretion in declining-to address petitioner's constitutional challenge to the Arkansas statute. Petitioner, who was represented by counsel, filed a two-page brief in the district court that did not raise or address the constitutionality of the Arkansas intestate succession statute, even though the Appeals Council had flagged the constitutional issue by pointing out that "the constitutionality of the 180 day requirement [under Section 29-9-209(d)] has been upheld by the Arkansas Supreme Court." Pet. App. D3 (citing Boatman v. Dawkins, 743 S.W.2d 800 (Ark. 1988)). Thus , it cannot be said that "injustice might otherwise result" from the failure to allow petitioner to raise the issue before the court of appeals. Singleton, 428 U.S. at 121 (quoting Hormel v. Helvering, 312 U.S. ---------------------------------------- Page Break ---------------------------------------- 552, 557 (1941)). Nor can it be said the resolution of the issue is "beyond any doubt. " Singlenton, 428 U.S. at 121 Because petitioner waived the constitutional issue below, and the court of appeals therefore did not pass upon the issue in its unpublished ruling, review by this Court is unwarranted. In any event, Ark. Code Ann. 28-9-209 (d) constitutionally requires an illegitimate child to establish the right to intestate succession within 180 days of the death of the putative father. In Trimb1e v. Gordon, 430 U.S. 762 (1977), this court struck down a state statute that completely barred illegitimate children from inheriting from their natural fathers when the father died intestate. The Court recognized (id. at 770-771), however, that States providing a legal framework for the inheritance rights of illegitimate children have some flexibility to choose "a middle ground between the extremes of complete exclusion and case-by-case determination of paternity." The Court also specifically "reaffirmed] th[e] view" that "judicial deference is appropriate when the challenged statute involves the substantial state interest in providing for the stability of . . . land titles and in the prompt and definitive determination of the valid ownership of property left by decedents." Id. at 767 n.12 (internal quotation marks omitted) . The Court applied that principle one year after its decision in Trimble, when it upheld a New York statute that required paternity to be established during the life of the putative father. See Lalli v. Lalli, 439 U.S. 259 (1978). Speaking for ---------------------------------------- Page Break ---------------------------------------- 11 the controlling plurality, Justice Powell, who had authored Trimble, concluded that the New York rule substantially advanced the important state purpose "to provide for. the just and orderly disposition of property at death," 439 U.S. at 268, by assuring that all potential claimants to an estate can be timely served with process and by preventing spurious claims that can be difficult to disprove after the putative father's death, id. at 268-271. Justice Powell also recognized that a State's use of categorical rules will sometimes deny valued goods to some illegitimate children who, under a case-by-case approach, might establish their entitlement consistently with the broad statutory purposes. Indeed, the Court upheld the New York scheme on the ground that, as a general matter, it substantially served important state interests, even though those interests were not served in some cases, since "few statutory classifications are entirely free from the criticism that they sometimes produce in- equitable results." 439 U.S. at 273 (plurality opinion). 5. In Mills v. Habluetzel, 456 U.S. 91 (1982) , the Court invalidated a Texas statute that required illegitimate children to identify their natural father within one year following their birth. See also Pickett v. Brown, 462 U.S. 1 (1983) (invalidating Tennessee's requirement that paternity be established within two years following the birth of the ___________________(footnotes) 5 Then-Justice Rehnquist and Justice Blackmun would have upheld the New York statute on an even more deferential standard, thus providing the majority for the judgment of the Court. Lalli, 439 U.S. at 276-277. ---------------------------------------- Page Break ---------------------------------------- 12 illegitimate child) ; Clark v. Jeter, 486 U.S. 456 (1988) (invalidating Pennsylvania's requirement that paternity be established within six years following the birth of the illegitimate child because the law was not sufficiently linked to Pennsylvania's interest in limiting the time to file paternity actions). 6. Nothing in Mills, Pickett, and Clark, however, casts doubt on the continuing vitality of Lalli. Those cases involved pro- ceedings in which illegitimate children sought support from the putative fathers, but were barred by state statutes of limitations (ranging from one year to six years from the child's birth) that effectively shielded living fathers from their support obligations. This case, however, unlike Mills and its progeny, involves a limitation tied to the death of the putative father, not the birth of the child. Accordingly, none of those cases involved the State's interest in widing up estates swiftly i.e., the interest that supported the result in Lalli -- nor ___________________(footnotes) 6 Two decisions of the Eleventh Circuit have held that the Secretary, in determining eligibility for survivor benefits, unconstitutionally applied state intestacy laws requiring paternity to be established during the father's lifetime. See Daniels v. Sullivan, 979 F.2d 1516, 1521 (1992) (illegitimate child in Georgia was two years and five months' old at time of father's death); Handley v. Schweiker, 697 F.2d 999, 1005 (1983) (illegitimate child in Alabama was four months old at time of father's death). In this case, however, petitioner challenges only the operation of the state statutory-scheme governing the filing of paternity actions in state court; she does not challenge the constitutionality of the Social Security Act as applied to her claim for benefits. Nor is there a conflict among the courts of appeals on that issue. Moreover, this, Court declined to grant review of that constitutional issue in a case from the Seventh Circuit in which it was properly presented. See Haas v. Chater, cert. denied, No. 96-602 (Feb. 18, 1997). ---------------------------------------- Page Break ---------------------------------------- 13 did they confront the peculiar dangers of staleness and fraud that arise when the putative father no-longer can effectively controvert the mother's allegation. Here, the Arkansas statute grants the illegitimate child more time than the statute upheld in Lalli -- "within 180 days of the death of the- father." Ark. Code Ann. 28-9-209(d). Even if petitioner is correct (Pet. 12) that Arkansas law prohibited her from bringing an action against the wage-earner after his death because he had no estate, this case would not be an appropriate vehicle in which to review the constitutionality of the Arkansas statute. Neither court below addressed the construction of Arkansas law on which petitioner's constitutional claim is premised. Moreover, petitioner does not contend that she attempted but was prohibited from establishing heirship under Section 28-9-209(d), or that she attempted to bring a paternity action in chancery court. 7. ___________________(footnotes) 7 Arkansas statutes impose no time limit, from the date of the child's birth, in which a paternity action may be brought. Ark. Code Ann. 9-10-101, 16-13-304(b); cf. In re Estate of F.C 900 S.W.2d at 202 (declining to reach "the issue of whether a paternity action survives the death of the putative father") . ---------------------------------------- Page Break ---------------------------------------- 14 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General WILLIAM KANTER FRANK A. ROSENFELD Attorneys MARCH 1997