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NITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
ROSITA S. JAVIER, APPELLANT v. COMMISSIONER OF SOCIAL SECURITY, APPELLEE
366 U.S. App. D.C. 48; 407 F.3d 1244; 2005 U.S. App. LEXIS 9210; 104 Soc.
Sec. Rep. Service 251
No. 03-5153
November 4, 2004, Argued
May 20, 2005, Decided
PRIOR HISTORY: [*1] Appeal from the United States District Court for the
District of Columbia. (No. 00cv01433).
COUNSEL: Lorane F. Hebert, appointed by the court, argued the cause as
amicus curiae in support of the appellant. Patricia A. Brannan was on brief.
Rosita S. Javier, Pro se, was on brief for the Appellant.
Fred E. Haynes, Assistant United States Attorney, argued the cause for
appellee. Kenneth L. Wainstein, United States Attorney, Michael J. Ryan,
Assistant United States Attorney, and Daniel Y. Balsam, Attorney, Social
Security Administration, were on brief. R. Craig Lawrence, Assistant United
States Attorney, entered an appearance.
JUDGES: Before: HENDERSON and ROGERS, Circuit Judges, and WILLIAMS, Senior
Circuit Judge. Opinion for the court filed by Circuit Judge HENDERSON.
OPINION
HENDERSON Circuit Judge: Alfonso T. Javier was a naturalized United States
citizen who lived in his native country, the Philippines, from the late
1970s until his death on July 17, 2004. Based on his long-time employment in
the United States, Javier qualified as an insured individual and received
retirement benefits under the Social Security Act, 42 U.S.C. 401 et seq.
[*2] (Act). In addition, his wife and two sons received Social Security
benefits for many years until the Social Security Administration (SSA or
Administration) terminated the benefits in 1996. This appeal results from
the decision of the SSA to terminate Javier's wife's and children's benefits
on the basis of blood tests demonstrating that Javier was not the children's
biological father. Both the administrative law judge and the district court
upheld the SSA's action. Because the parties do not contest that the Act's
choice of law provision dictates the application of Philippine law, under
which the SSA lacks standing to challenge Javier's paternity, we now reverse
in part.
I.
Alfonso Javier was born in the Philippines on January 19, 1904 and became a
naturalized United States citizen on March 20, 1943. Javier began receiving
Social Security benefits in 1970. He later returned to the Philippines and,
in October 1977, he married Rosita Suguitan (Mrs. Javier). The dispute
between Javier and the SSA centers on Mrs. Javier's delivery of three
children, ostensibly the offspring of Javier, between 1983 and 1986. Allen
S. Javier was born October 25, 1983. On June 26, 1984, Mrs. Javier applied
[*3] for "wife's insurance benefits," 42 U.S.C. 402(b), and "child's
insurance benefits," id. 402(d), on behalf of Allen. SSA conducted a brief
investigation to confirm the Javiers' claim for benefits and ascertained
that Allen was living in the Javiers' custody. SSA authorized Social
Security benefits for Mrs. Javier and Allen, effective November 1983. Philip
G. Javier was born September 17, 1984 and on December 19, 1984, Mrs. Javier
applied for "child's insurance benefits," id., on Philip's behalf. An SSA
field examiner determined that the child was entitled to benefits, effective
October 1984. In response to an anonymous letter questioning Javier's
paternity of the two boys, the SSA conducted another investigation in June
1985. This investigation, which included a visit to the Javiers' home,
interviews with neighbors and a review of Mrs. Javier's hospital records,
again resulted in a favorable determination of Javier's paternity.
Mrs. Javier then gave birth to a daughter, Felrosh Ann, on December 5, 1986.
Javier was 82 years old at the time of Felrosh Ann's birth. The Javiers
applied for citizenship on behalf of Felrosh Ann on September 18, 1989. The
[*4] United States Department of State, which had previously issued a
Certification of Birth Abroad of a Citizen of the United States of America
both to Allen and to Philip, launched an investigation into the paternity of
all three children. Each member of the family submitted to a blood test,
with surprising results. Javier was determined not to be the father of any
of the children. Mrs. Javier was eliminated as the biological mother of
Allen but the tests demonstrated a 91.6 per cent probability of maternity
with respect to Philip and Felrosh Ann.
The State Department relied on the results of the blood tests to deny
Felrosh Ann's application for citizenship and to revoke Allen's and Philip's
citizenship. For reasons not explained in the record, the results were not
forwarded to the SSA until November 29, 1995. The SSA reopened its paternity
investigation in March 1996 and terminated Mrs. Javier's, Allen's and
Philip's benefits in April of that year. The SSA sought $ 26,315.30 in
"overpayment" from Mrs. Javier, Letter from SSA to Rosita S. Javier (May 24,
1996), $ 29,633.30 from Allen, Letter from SSA to Rosita S. Javier for Allen
S. Javier (May 24, 1996), and $ 29,486 from Philip, Letter [*5] from SSA
to Rosita S. Javier for Philip G. Javier (May 24, 1996). Javier allowed the
SSA to garnish $ 300 per month from his benefits to help repay the amount
owed. Javier also sought reconsideration of his wife's and sons' eligibility
for benefits, which was denied by the SSA.
Javier then sought and received a hearing before an Administrative Law Judge
(ALJ). The ALJ interpreted the Social Security Act to require the
application of the law of the insured's domicile in determining whether an
applicant for benefits constitutes "the child of a fully or currently
insured individual" under the Act. 42 U.S.C. 416(h)(2)(A). The ALJ found
that neither Allen nor Philip qualified as a "'child' of the wage earner
under the laws of the Philippines," which law, the ALJ concluded, permits a
child's paternity to "be impugned" if "it is proved that for biological or
other scientific reasons, the child could not have been that of the
husband." Philippines Family Code Art. 166 (Article 166). Javier sought
judicial review of the ALJ's decision in the district court under 42 U.S.C.
405(g). The district court affirmed the ALJ, adopting his legal analysis
[*6] with respect to the choice of law rule mandated by the Social Security
Act and his conclusion that Article 166 provided a legal basis for the
termination of Mrs. Javier's and the children's benefits. Javier v. Comm'r
of Soc. Sec., No. 00-1433 (D.D.C. June 6, 2002) (Mem. Op.) at 6-7.
Javier filed a "Motion for Reconsideration, or, in the Alternative, Motion
for Formal Appeal" in district court on July 19, 2002. The court interpreted
the motion as one made under FED. R. CIV. P. Rule 60(b), and denied it on
August 21, 2002. In a subsequent order on January 10, 2003, the district
court vacated in part its August 21 order, ordering Javier's Motion for
Formal Appeal to be docketed as of the date of filing. Thus, Javier's appeal
was timely filed and is properly before us.
II.
The Social Security Act guarantees benefits to "every child" of an "insured
individual" under the Act. 42 U.S.C. 402(d)(1). The Act also provides
spousal benefits to the mother of a qualified child. See id. 402(b)(1)(B).
The Act establishes the following procedure to determine whether an
individual qualifies as a "child." "Child"
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