                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 02 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



J. M. H-B., a minor,                             No. 09-55688

              Plaintiff - Appellant,             D.C. No. 2:07-cv-01764-PLA

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE,

              Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                    Paul L. Abrams, Magistrate Judge, Presiding

                            Submitted October 5, 2010 **
                               Pasadena, California

Before: FISHER and BYBEE, Circuit Judges, and STROM, District Judge.***

       Plaintiff-Appellant J.M. H-B. appeals the district court’s decision affirming

the Social Security Commissioner’s (“the Commissioner”) denial of her


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Lyle E. Strom, Senior U.S. District Judge for the
District of Nebraska, sitting by designation.
applications for surviving child’s insurance benefits and a lump-sum death

payment. Appellant argues that the district court erred in deferring to the

Administrative Law Judge’s (“ALJ”) interpretation of the relevant statutes and

regulations in denying her claim, and that her equal protection rights were violated.

Because we find that the Social Security Administration (“SSA”) has not addressed

the regulatory language at issue, we vacate and remand to the Social Security

Administration for a more adequate explanation.

      Under the Social Security Act, a child may qualify for surviving child’s

insurance benefits by establishing the insured parent’s paternity through one of

several methods. Appellant argues she qualifies if either of the following two

methods is employed: (1) applying the state law on devolution of intestate

property of the insured’s domicile state at the time of death, 42 U.S.C. §

416(h)(2)(A), or (2) establishing paternity “before the death of such insured

individual” through a written acknowledgment of paternity by the insured, a court

decree, or a court order to pay support, 42 U.S.C. § 416(h)(3)(C)(i).

      The plain text of § 416(h)(3)(C)(i) forecloses Appellant’s claims on the latter

ground because it explicitly requires that paternity be established “before the

death” of the insured parent. This means Appellant’s only route to benefits is

through § 416(h)(2)(A), which requires her to show a parental relationship existed


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under the relevant state laws, in this case, California Probate Code § 6453(b)(1).

This provision acknowledges paternity if a court order of paternity was entered

“during the father’s lifetime.” Appellant argues that a separate SSA regulation

added in 1998, 20 C.F.R. § 404.355(b)(2), eliminates the state law requirement that

the court order of paternity must be entered during the father’s lifetime. This

regulation provides that SSA “will not apply any State inheritance law requirement

that an action to establish paternity . . . be taken within a specified period of time

measured from the worker’s death or the child’s birth, or . . . have been started or

completed before the worker’s death.” 20 C.F.R. § 404.355(b)(2).

      We will defer to an agency’s interpretation of its own regulation if it is not

“plainly erroneous or inconsistent with the regulation.” Thomas Jefferson Univ. v.

Shalala, 512 U.S. 504, 512 (1994). Here, the Commissioner argues that section

6453(b)(1)’s requirement that the father still be alive when paternity is declared is

unaffected by section 404.355(b)(2) because the latter only affects the statute of

limitations. This is a reasonable interpretation of the first clause of the first

sentence of section 404.355(b)(2). That portion of the regulation reads:

      We will not apply any State inheritance law requirement that an action
      to establish paternity must be taken within a specified period of time
      measured from the worker's death or the child's birth . . . .




                                            3
20 C.F.R. § 404.355(b)(2) (emphasis added). The language—“within a specified

period of time”— directly addresses the statute of limitations issue.

       The Commissioner’s argument, however, fails to address the second half of

the first sentence of section 404.355(b)(2). That portion of the regulation reads:

      We will not apply any State inheritance law requirement . . . that an
      action to establish paternity must have been started or completed
      before the worker's death.

20 C.F.R. § 404.355(b)(2) (emphasis added). On its face, this language addresses

an issue separate from the statute of limitations issue. First, this second portion of

the sentence, unlike the first part of the sentence, does not contain language that

clearly refers to statutes of limitations, such as “within a specified period of time.”

Second, reading this portion of the sentence as referring to statutes of limitations

would render it superfluous because the first portion of the sentence already

addresses the statute of limitations issue directly. Reading this language as

addressing only state statutes of limitations is therefore inconsistent with the

language of the regulation.

      Although the agency has not addressed the precise language identified

above, we hesitate to impose a construction without giving the agency an

opportunity to clarify its interpretation. We therefore remand this case back to the




                                           4
Commissioner to give the agency an opportunity to clarify its interpretation of 20

C.F.R. § 404.355(b)(2) in light of the regulatory language identified above.

      Because we remand to the Social Security Administration for clarification of

its interpretation of 20 C.F.R. § 404.355(b)(2), we do not reach Appellant’s equal

protection claims.

      Accordingly, we VACATE the Order of the district court and REMAND to

the district court with instructions to remand to the Commissioner for further

proceedings consistent with this disposition.




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