FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2016-2000

TULPE B. ROBERT, on behalf of minor children,	)				
SALIK B. ROBERT and ELMON B. ROBERT,		)
)
Plaintiff,				)
)
vs.						)
)
FEDERATED STATES OF MICRONESIA SOCIAL	)
SECURITY ADMINISTRATION, and FSM SOCIAL	)
SECURITY BOARD OF TRUSTEES,			)
)
Defendants.				)
_____________________________________________	)

ORDER OF REMAND TO THE FSM SOCIAL SECURITY BOARD OF TRUSTEES FOR FURTHER FINDINGS

	Beauleen Carl-Worswick
	Associate Justice

	Hearing:  April 11, 2017
	Decided:  April 12, 2018

APPEARANCES:

For the Plaintiff:	Canney Palsis, Esq.
Directing Attorney
Micronesian Legal Services Corporation
P.O. Box 38
Tofol, Kosrae FM 96944

For the Defendants:	Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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	HEADNOTES

Civil Procedure  Summary Judgment  Grounds
A summary judgment motion that is well grounded in fact and law will be granted if the moving party demonstrates that there are no questions of material fact and that the moving party is entitled to judgment as a matter of law.  Robert v. FSM Social Sec. Admin., 21 FSM R. 490, 492 (Kos. 2018).

Administrative Law  Judicial Review; Social Security

An appeal under 53 F.S.M.C. 708 to the FSM Supreme Court trial division from a Social Security Board final order is on the record except if the aggrieved person shows that there were reasonable grounds for failure to adduce the evidence in the Board hearing.  When no showing is made of a reasonable failure to elicit evidence, the question that remains is whether the Board’s final order rests on findings of fact that are supported by competent, material, and substantial evidence.  If so, then the findings of fact are conclusive, and the trial court’s disposition of the appeal on the record is final, subject to review by the Supreme Court appellate division.  Robert v. FSM Social Sec. Admin., 21 FSM R. 490, 492 (Kos. 2018).

Administrative Law  Administrative Procedures Act; Administrative Law  Judicial Review; Social Security
On an appeal from an FSM administrative agency, the court, under the Administrative Procedures Act, must hold unlawful and set aside agency actions and decisions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; or contrary to constitutional right, power, privilege, or immunity; or without substantial compliance with the procedures required by law.  This applies to all agency action unless Congress by law provides otherwise, and it applies to the Social Security Administration appeals because the Social Security Act does not provide otherwise.  Robert v. FSM Social Sec. Admin., 21 FSM R. 490, 492-93 (Kos. 2018).

Domestic Relations  Adoption; Social Security  Claims and Benefits
An adopted child applying for benefits under the FSM Social Security system must complete an application and show dependency on the insured.  Robert v. FSM Social Sec. Admin., 21 FSM R. 490, 493 (Kos. 2018).

Domestic Relations  Adoption; Social Security  Claims and Benefits
A valid claim for Social Security benefits as an adopted child requires proof of adoption and of the adopted child’s dependency on the wage earner.  Robert v. FSM Social Sec. Admin., 21 FSM R. 490, 493 (Kos. 2018).

Domestic Relations  Adoption; Social Security  Claims and Benefits
Social Security has the regulatory authority to request additional proof of dependency and the claimant is required to submit such proof since actual dependency upon the adoptive parent is a prerequisite for an adopted minor to receive surviving child Social Security benefits after the adoptive parent’s death.  Robert v. FSM Social Sec. Admin., 21 FSM R. 490, 493-94 (Kos. 2018).

Domestic Relations  Adoption; Social Security  Claims and Benefits
When the immunization records that listed the children’s natural mothers did not support the benefits claim because it did not show the children’s dependency on the adoptive parents; when no additional evidence was submitted after the hearing for the court to consider; and when the census records show the adopted children in the same household as the wage-earner adoptive parent and his daughters, the natural mothers, the court will remand the matter to the Board to determine whether the children were dependent on the wage-earner’s disability payments; whether the children’s mothers were employed at the time; and whether dependency would be presumed if the child lived with the adoptive parents.  Robert v. FSM Social Sec. Admin., 21 FSM R. 490, 494-95 (Kos. 2018).

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	COURT’S OPINION

BEAULEEN CARL-WORSWICK, Associate Justice:

	I.  Background

The Summons and Complaint in this matter was filed on March 29, 2016 by the plaintiff, Tulpe Robert (herein "Robert").  An Answer was entered by the defendants, FSM Social Security Administration (herein "FSMSSA") and FSM Social Security Board of Trustees (herein the "Board") on April 13, 2016.

A Motion for Summary Judgment was filed by the FSMSSA, on June 30, 2016, and an opposition was entered by Robert on August 12, 2016.  The FSMSSA entered a reply on September 9, 2016.

A telephonic hearing on the pending motions was held on April 11, 2017.  Canney Palsis, Esq., of the Micronesian Legal Services Corporation, appeared on behalf of the plaintiff.  The FSMSSA was represented by Steven V. Finnen.  After considering the oral arguments presented during the hearing, and after reviewing the filings in this matter, this matter is remanded back to the Board for further findings.

	II.  Facts

Tulpe Robert was married to Burney Robert, who was a wage earner and contributor to the FSM Social Security program.  Tulpe and Burney Robert adopted their natural grandsons Eimon Robert, born on May 26, 2009, and Salik Robert, born on August 14, 2009.1  These adoptions were customary and confirmed by decree from the Kosrae State Court on January 29, 2010.  Burney Robert passed away on March 9, 2012.

An application to receive benefits as surviving children of Burney Robert was filed on January 6, 2014 by Tulpe Robert on behalf of Salik and Eimon Robert.  On January 29, 2016, after an administrative hearing, the Board entered a decision denying Robert’s claim.

Following the denial, the complaint in this matter was filed on March 29, 2016.  The plaintiff’s complaint sets forth two (2) causes of action: violation of 53 F.S.M.C. 803(1)(a) based on dependency, and civil rights violation under 11 F.S.M.C. 701(3).

	III.  Standard of Review

A motion for summary judgment is well grounded in fact and law and shall be granted when the moving party demonstrates that there are no questions of material fact and that the moving party is entitled to judgment as a matter of law.  FSM Civ. R. 56(c); Kyowa Sipping Co. v. Wade, 7 FSM R. 93, 95 (Pon. 1995); Kihara Real Estate v. Estate of Nanpei, 6 FSM R. 48, 52 (Pon. 1993).

An appeal under 53 F.S.M.C. 708 to the FSM Supreme Court trial division from a Social Security Board final order is on the record except when a person aggrieved by such an order makes a showing that there were reasonable grounds for failure to adduce the evidence in the hearing before the Board or its authorized representatives.  In that event, the party may apply to the court for leave to adduce additional material evidence.  When no such showing is made of a reasonable failure to elicit evidence, the question that remains is whether the Board’s final order rests on findings of fact that are supported by competent, material, and substantial evidence.  If the court so concludes, then the findings of fact are conclusive.  The trial court’s disposition of the appeal on the record is final, subject to review by the Supreme Court appellate division.  Clarence v. FSM Social Sec. Admin., 13 FSM R. 150, 152 (Kos. 2005).

On an appeal from an FSM administrative agency, the court, under the Administrative Procedures Act, must hold unlawful and set aside agency actions and decisions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; or contrary to constitutional right, power, privilege, or immunity; or without substantial compliance with the procedures required by law.  These Administrative Procedures Act provisions apply to all agency action unless Congress by law provides otherwise and it applies to the Social Security Administration appeals because no part of the Social Security Act provides otherwise.  Alokoa v. FSM Social Sec. Admin., 16 FSM R. 271, 276 (Kos. 2009).

	IV.  Discussion

Pursuant to 53 F.S.M.C. 803(1):  an adopted child applying for benefits under the FSM Social Security system must complete an application and show dependency on the insured.2  A valid claim for Social Security benefits as an adopted child requires proof of adoption and of dependency of the adopted child on the wage earner.  Neth v. FSM Social Sec. Admin., 20 FSM R. 362, 368 (Pon. 2016).

The FSMSSA claims that no evidence of dependency was produced to support Robert’s claim for survivor’s insurance.  Def.’s Mot. for Summ. J. at 7.  In response, the plaintiff argues two (2) points.  First, although immunization records submitted by plaintiff has the signatures of the natural mothers of the adopted children, it is inadequate to disprove economic dependency.  Pl.’s Opp’n to Mot. for Summ. J. at 3.

Second, Robert points to a 2010 census survey conducted by the Office of SBOC (Statistic, Budget, Overseas Development, and Compact Management), where Burney Robert, his natural daughters (mothers of the adopted children), and the adopted children were all living in the same household.  Robert contends that the survey, when applied to Kosrae custom and tradition, supports dependency of the adopted children on Burney Robert.  Id. at 3-4.

Immunization forms

Under § 100.22(a) of the FSM Social Security Regulations, as amended in 2012, allows the FSMSSA to request evidence of dependency upon application for benefits.3  On August 29, 2014 the FSMSSA issued a letter requesting that additional evidence be produced for the Board to consider.4

Social Security has the regulatory authority to request additional proof of dependency and the claimant is required to submit such proof.  Actual dependency upon the adoptive parent is a prerequisite for an adopted minor to receive surviving child Social Security benefits after the adoptive parent’s death.  Neth, 20 FSM R. at 370-71.

Immunization records were produced, however, the names of Salome and Lerine Robert were listed as the mothers of Salik and Eimon Robert.  The plaintiff argues that these records are inconclusive, and are signed as to form.  Pl.’s Opp’n to Mot. for Summ. J. at 3.

Here, the immunization records were submitted by the plaintiff.  If the records were in fact inconclusive, other forms of proof could have been submitted to support Robert’s claim for dependency.  The plaintiff could have also applied to the Court to adduce additional evidence that was not introduced in the hearing to support their argument pursuant to 53 F.S.M.C. 708, however, this was not done.5

Accordingly, the Court finds that the submission of the Immunization records do not support Robert’s claim for child benefits because the records do not show dependency of the children on the adoptive parents.  Further, no additional evidence was submitted after the hearing for the Court to consider.

Census Report

A census by the Office of SBOC (Statistics, Budget, Overseas Development, and Compact Management) was conducted in 2010 which indicated that the members of Burney Robert’s household included Salome and Lerine Robert, as well as Salik and Eimon Robert.  The plaintiff argues that because the children lived in the same household as the wage earner, this was proof of dependency.  Robert further claims that under Kosraen custom and tradition, individuals who attain the age of 18 may still reside with their parents.  Pl.’s Opp’n to Mot. for Summ. J. at 3-4.

The FSMSSA contends the fact that the children lived with the wage earner does not show dependency because there was no separation from the natural parent to show dependency on the adoptive parents.  The defendant further argues that the children could not have been dependent on Burney Robert because he was disabled in 2008, and Salik and Eimon were born in 2009.  Def.’s Mot. for Summ. J. at 4.

In Alokoa v. FSM Social Sec. Admin., 16 FSM R. 271 (Kos. 2009), the court remanded the matter back to the Board to rule on the merits of the application for surviving children benefits.  Id. at 277.  As a matter of guidance to the parties, if, on remand, it is determined that the father and mother lived in the same household as the grandfather and grandmother and that the father’s income was greater than the grandfather’s and the father contributed to the support of the household, Social Security would be completely justified in finding that there was no dependency by the grandsons upon the grandfather.  Id.

The Court will remand this matter back to the Board to determine the following issues:  1) Were Salik and Eimon Robert dependent on Burney Robert’s disability benefits?  2) Were Salome and Lerine Robert employed at the time they were residing in the household of Burney Robert?  3) Pursuant to FSM SSA Regulations § 100.22, isn’t dependency assumed if the adopted child resides in the same household as the wage earner?6 In the alternative, the parties may confer and stipulate to these issues.

	V.  Conclusion

This matter is remanded back to the Board to determine the issues as stated above.  The parties may also confer and stipulate to these issues.  A Status Conference will be held within ninety (90) days of entry of this Order, where the parties will provide an update to the court on this matter.  The court will consider the Defendant’s Motion for Summary Judgment once the Board has submitted its supplemental findings.

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