COURT'S OPINION

LARRY WENTWORTH, Associate Justice:

This is an appeal from the Social Security Administration's denial of survivor's benefits for Ciichi Anson, the adopted child of a deceased wage-earner. On September 5, 2022, this came before the court on the parties' cross-motions for summary judgment. For the reasons that follow, the Social Security Administration's decision is hereby vacated and the matter remanded for further consideration.

I. PROCEDURAL AND FACTUAL BACKGROUND

Jayleen Charley Anson was born November 8, 1972. She married the plaintiff, Altrickson Anson on June 8, 1990. They had three children. They adopted a fourth, Ciichi Anson (born September 7, 2006), pursuant to Pohnpeian custom. This customary adoption was not confirmed by a Pohnpei Supreme Court decree; nor was there a court petition for an adoption under the Pohnpei statute. Jayleen Charley Anson passed away on May 4, 2020, at the age of 47. Before her death, she had been a wage-earner.

On July 16, 2020, surviving spouse Altrickson Anson applied to the FSM Social Security Administration for survivor's benefits for the adopted child, Ciichi Anson. This application included Jayleen Charley Anson's death certificate; her marriage certificate; Ciichi Anson's birth certificate; a June 26, 2020 Pohnpei Supreme Court order appointing Altrickson Anson as Ciichi Anson's legal guardian; a MiCare Insurance document showing coverage for Jayleen C. Anson's 13-year-old son Ciichi; a Moylan's Life Insurance form naming adopted son Ciichi Anson as an equal beneficiary of the deceased, Jayleen Anson; and a March 14, 2015 NetCare group life insurance enrollment form listing Ciichi Anson as a dependent.

On July 24, 2020, Social Security Administrator Alexander R. Narruhn denied the application because there had been no court petition by the deceased wage-earner for Ciichi Anson's adoption and no court decree confirming the adoption. For unknown reasons, Altrickson Anson was not served a copy of this denial until much later, after he had sought assistance of counsel. He appealed the Administrator's denial to the Social Security Board of Trustees on May 18, 2021. The Board heard the appeal on June 15, 2021. On September 3, 2021, Altrickson Anson requested a rehearing of the matter and submitted further documentary evidence consisting of a Pohnpei Supreme Court probate order for Jayleen Charley Anson's estate listing Ciichi Anson as her son and an heir; a Ciichi Anson report card from Nanpei Elementary School; and an application to Pohnpei Housing Authority requesting assistance and showing Ciichi Anson as a dependent.

On January 18, 2022, the Board of Trustees upheld the Administrator's denial of survivor's benefits because there was no evidence of adoption and because the FSM Code Title 53 indicates that the wage-earner must have signed a petition for court order of adoption. On February 17, 2022, Altrickson Anson filed a complaint and petition for judicial review in the FSM Supreme Court, asking that the Social Security decision be reviewed and reversed and alleging that his due process rights were violated by Social Security's failure to timely convey its decisions to him and by not conducting the requested rehearing with the new evidence, and further alleging that his equal protection rights were violated.

These facts are generally undisputed. Both sides move for summary judgment, each contending that, on these undisputed facts, they are entitled to judgment as a matter of law.

II. CROSS-MOTION STANDARD

Summary judgment is proper when, viewing the facts in the light most favorable to the party against whom judgment is sought, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. E.g., Mailo v. Chuuk Health Care Plan, 20 FSM R. 18, 22 (App. 2015); Congress v. Pacific Food & Servs., Inc., 17 FSM R. 542, 545 (App. 2011); Weno v. Stinnett, 9 FSM R. 200, 206 (App. 1999); Iriarte v. Etscheit, 8 FSM R. 231, 236 (App. 1998); Nahnken of Nett v. United States, 7 FSM R. 581, 586 (App. 1996). The rule is no different when there are cross-motions for summary judgment. Fuji Enterprises v. Amor, 23 FSM R. 130, 137 (Pon. 2021).

The summary judgment standard is not changed when the parties bring cross-motions for summary judgment, and each nonmovant will receive the benefit of favorable inferences. Id. Merely because the parties have filed cross-motions for summary judgment does not mean that summary judgment must be granted for one side or the other because each cross-motion will be independently examined on its own merit Id. Cross motions for summary judgment may both be denied. Isaac v. Weilbacher, 8 FSM R. 326, 337 (Pon. 1998). When cross-motions for summary judgment are filed simultaneously, or nearly so, the court will ordinarily consider the two motions at the same time, thereby applying the same standards to each motion, but even then the court must mull each motion separately, drawing inferences against each movant in turn and keeping in mind that separate summary judgment motions from each party are not an admission that no material facts remain at issue. Fuji Enterprises, 23 FSM R. at 138.

The plaintiff's summary judgment motion was filed as his opposition to the defendant's summary judgment motion, so the pending cross-motions for summary judgment were filed nearly simultaneously. The court will proceed on that basis.

III. JUDICIAL REVIEW OF SOCIAL SECURITY APPEAL

The FSM Supreme Court's review of a Social Security Board decision is highly deferential. Hadley v. FSM Social Sec. Admin., 21 FSM R. 420, 424 (App. 2018). "The findings of the Board as to the facts, if supported by competent, material, and substantial evidence, shall be conclusive," although the court "may order additional evidence to be taken by the Board" if either party asks for leave to adduce additional evidence and the court is satisfied that there are reasonable grounds for the failure to adduce the evidence earlier. 53 F.S.M.C. 708.

In this case, the only factual finding by the Board was that no confirmed petition for adoption of Ciichi Anson by the deceased wage-earner had been presented to the Social Security Administration. Based on this fact, both the Administrator and the Board reached the legal conclusion that Ciichi Anson did not qualify for dependent's benefits under 53 F.S.M.C. 803(1) as a surviving child because he did not meet definition of adopted child in 53 F.S.M.C. 603(4).

IV. ANALYSIS

A. Social Security's Summary Judgment Motion

Social Security does not dispute (at least for the purpose of its motion) the facts as alleged by the plaintiff. Social Security does not dispute that Altrickson Anson filed a complete application for Ciichi Anson. Nor does it attempt to refute the applicant's evidence that Ciichi Anson was dependent upon Jayleen Charley Anson, the deceased, currently insured wage-earner. Social Security claims Ciichi Anson does not meet the statute's definition of "child." Social Security denied survivor's benefits solely because no confirmed adoption petition by the wage earner was presented to it. Anson does not contend that one was presented or even that one exists. Social Security contends that 53 F.S.M.C. 603(4) requires a judgment in its favor as a matter of law.

1. Applicable Statutes

Section 803(1) provides that "[e]very surviving child who: (a) was dependent upon an individual who died fully insured or currently insured; and (b) has filed a complete application with the Social Security Administrator for survivor's insurance; shall be entitled to a surviving child's insurance benefit . . , ." Child is defined in 53 F.S.M.C. 603(4). Social Security contends that Ciichi Anson's circumstance does not meet the statute's definition of an adopted child entitled to survivor's benefits. That statutory definition is set out as follows:

"Child" shall include only the deceased individual's biological children and such adopted children whose confirmed petition for adoption by the wage earner has been presented to the Social Security Administration and who were adopted by the wage earner on or prior to the wage-earner's 55th birthday of the adopting parent, shall be a "child" for the purposes of this title unless, the Social Security Administrator makes a determination that, due to exceptional circumstances, the person shall be so entitled. In reaching a determination that exceptional circumstances apply, the Social Security Administrator shall satisfy himself or herself that future eligibility for social security benefits was not a significant factor in the decision to adopt and may consider any available, relevant information including, but not limited to:

(a) whether the adopted child's biological mother, and/or biological father were alive at the time the adoption took place;

(b) if one or both biological parents were alive at the time of adoption, whether one or both parents were acting or were capable of acting as a primary caregiver at that time;

(c) whether the adopting parent is a relative of the adopted child;

(d) whether, at the time the adoption took place, there were relatives, not including the adopting parents, who would have been appropriate guardians for the adopted child;

(e) whether the adopting parent was a primary caregiver for the adopted child at the time of adoption and continued in that role after the adoption took place;

(f) any other factor the Social Security Administrator considers relevant.

53 F.S.M.C. 603(4).

This statute is poorly drafted in its relevant part. But it is clear that it limits, with one exception, social security benefits for surviving adopted children to only those adopted children whose confirmed adoption petition has been presented to the Social Security Administration and who were adopted by the wage earner on or before the adopting wage-earner parent's 55th birthday. That one exception is when the Social Security Administrator determines that exceptional circumstances entitle the adopted child to survivor benefits.

2. Statutory Construction Canons

Since it is undisputed that there is no court-confirmed adoption petition for Ciichi Anson made by Jayleen Charley Anson, the court must confirm Social Security's denial of survivor's benefits unless the statutory exception for "exceptional circumstances" can be applied when there is no confirmed adoption petition.

FSM statutes are to be interpreted as Congress intended and a statute's words are the best indication of that intent. Fuji Enterprises v. Jacob, 21 FSM R. 355, 361-62 (App. 2017). It is unclear from the statutory language whether this exception applies just when the adopting parent was over 55 or if it also applies when a confirmed adoption petition was not, or could not, be presented. Social Security contends that the "exceptional circumstances" exception applies only to the phrase limiting coverage to adoptions before the adopting wage-earner's 55th birthday.

"Generally an exception is considered as a limitation only upon the matter which directly precedes it, but if a contrary intent or meaning is clearly indicated it will operate as a general limitation on all provisions of the act." 2A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47.11, at 165 (5th ed. 1992). "Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is 'the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.'" Id. § 47.33, at 270 (footnote omitted) (quoting In re Kurtzman's Estate, 396 P.2d 786, 7909 (Wash. 1964)); See also FSM v. Nifon, 14 FSM R. 309, 313 (Chk. 2006) (words and phrases that modify other words or phrases are positioned as closely as possible to the word or phrase they modify because referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent).

The last antecedent to the "unless . . . due to exceptional circumstances" is the phrase "shall be a 'child' for the purposes of this title," which leads to more confusion because, at a minimum, it may refer to "such adopted children" who were supposed to meet both criteria – a confirmed adoption petition and an adopting parent under the age of 55 – to be considered a child eligible for survivor's benefits. That would mean that the "exceptional circumstances" exception is available in the absence of strict compliance with either of the two criteria.

Stripped of all the dependent clauses, the relevant sentence reads "''Child' shall include only the deceased individual's biological children and such adopted children . . . shall be a 'child' for the purposes of this title . . . ." It is difficult to make grammatical sense of this. It has two main verbs – "shall include" and "shall be," making it sort of a run-on sentence.

If the pertinent sentence started with the phrase "Such adopted children whose . . ." that would make the phrase "shall be a 'child' for the purposes of this title," the operative independent clause in the sentence. Then the last antecedent would clearly be "adopted child," the subject of the sentence, as qualified by the two conditions of a confirmed adoption petition and adopting parent's age of under 55. The "exceptional circumstances" exception would then obviously apply to either of these two conditions.

If the court were to ignore or delete the "shall be a 'child' for the purposes of this title" phrase, finding that phrase to be meaningless surplusage (that is, a repetition of the "shall include" phrase at the sentence's start), then the last antecedent would clearly be the requirement that the adopting parent be under the age of 55 – the result that Social Security contends is correct. However, it is presumed that words included in a statute are not meaningless surplusage because it is an elementary rule of construction that effect must be given, if possible, to every word, clause, and sentence of a statute. Fuji Enterprises v. Jacob, 20 FSM R. 121, 125 (Pon. 2015). The court should therefore not take this approach unless there is no other path possible.

3. Legislative History

Since the court cannot treat the "shall be a 'child' for the purposes of this title" phrase as mere surplusage, the statute has a certain level of ambiguity. When the language of a statute is ambiguous, other sources, such as Congressional journals or the original version of the statute may be consulted to give an indication of Congressional intent. FSM Social Sec. Admin. v. Kingtex (FSM), Inc. (I), 7 FSM R. 280, 286 (Yap 1995); Bank of the FSM v. FSM, 6 FSM R. 5, 7 (Pon. 1993); FSM v. George, 2 FSM R. 88, 92 (Kos. 1985).

The current form of the relevant Subsection 603(4) language (with both a confirmed adoption petition and the adopting parent being under 55) first appeared on the statute books with the enactment of Public Law No. 15-73, § 1, 15th Cong., 2d Spec. Sess. (2009). The standing committee report that accompanied the bill that became Public Law No. 15-73 offers no guidance concerning Congress's intent. It merely states the new language to be inserted without giving any reasons why certain provisions are included or indicating how it would be applied. See SCREP No. 15-166, 15th Cong., at 7-8 (Dec. 2, 2008).

The previous version of 53 F.S.M.C. 603(4), as enacted in Public Law No. 14-86, § 1, is more illuminating. That statutory provision, in pertinent part, read:

"Child" shall include only the deceased individual's biological children and such adopted children whose confirmed petition for adoption by the wage earner has been presented to the Social Security Administration. Notwithstanding the purposes of this title unless, the Social Security Administrator makes a determination that, due to exceptional circumstances, the person shall be so entitled. In reaching a determination that exceptional circumstances apply, the Social Security Administrator shall satisfy himself or herself that future eligibility for social security benefits was not a significant factor in the decision to adopt and may consider any available, relevant information including, but not limited to:

(a) whether the adopted child's biological mother, and/or biological father were alive at the time the adoption took place;

(b) if one or both biological parents were alive at the time of adoption, whether one or both parents were acting or were capable of acting as a primary caregiver at that time;

(c) whether the adopting parent is a relative of the adopted child;

(d) whether, at the time the adoption took place, there were relatives, not including the adopting parents, who would have been appropriate guardians for the adopted child;

(e) whether the adopting parent was a primary caregiver for the adopted child at the time of adoption and continued in that role after the adoption took place;

(f) any other factor the Social Security Administrator considers relevant.

FSM Pub. L. No. 14-86, § 1, 14th Cong., 2d Spec. Sess. (2006) (codified at 53 F.S.M.C. 603(4)). As should be readily apparent when comparing the 2006 version with the current (2009) version (quoted supra part IV.A.1.) of Subsection 603(4), both contain an (identical) "exceptional circumstances" exception for adopted children, but the only qualifying condition to which that exception might apply in the 2006 version is the condition that a confirmed adoption petition be presented to the Social Security Administration. Note that the 2006 version even has the same, identically worded factors for the Social Security Administrator to consider (whether eligibility for benefits was a significant factor in the adoption decision and the §§ 603(4)(a)-(f) factors). The conclusion is inescapable – before 2009, the exceptional circumstances" exception applied only to the condition that a confirmed adoption petition had to be presented to the Social Security Administration.

There is no indication that Congress, when it amended Subsection 603(4) in 2009, intended that the "exceptional circumstances" exception would no longer apply to the confirmed-adoption-petition requirement and would thenceforth apply only to the newly added requirement that the adopting parent not be over 55 years old. This construction also follows the canon of statutory construction that an exception applies to the last antecedent. The last antecedent is the "shall be a 'child' for the purposes of this title" phrase, which necessarily includes both of the two qualifying requirements – confirmed adoption petition and adopting parent not over 55. The court must therefore conclude that the "exceptional circumstances" exception applies with equal force not only to the adopting-parent-not-over-55 requirement but also to the confirmed-adoption-petition requirement.

Altrickson Anson presented to Social Security sufficient evidence of Ciichi Anson's customary adoption by, and of his actual dependence on, the deceased adoptive parent that the Social Security Administrator should have taken the further step of determining whether the statutory "exceptional circumstances" exception applied. The Administrator made no such determination and denied the application solely on the ground that there was no confirmed adoption petition presented.

As just explained, that conclusion is erroneous in this case. The absence of a confirmed adoption petition does not automatically prevent a surviving adopted child from receiving survivor's benefits because "exceptional circumstances" may entitle such an adopted child to those benefits. Social Security is therefore not entitled to a judgment as a matter of law. Accordingly, its summary judgment motion is denied.

B. Altrickson Anson's Summary Judgment Motion

Altrickson Anson moves for summary judgment that not only is the Social Security decision legally erroneous but that he is also entitled as a matter of law to a judgment awarding surviving child benefits for Ciichi Anson. The court has just determined that the Social Security decision was made erroneously because the statutory "exceptional circumstances" exception was not considered in reaching the decision and therefore denied Social Security's summary judgment motion. Supra, part IV.A.3. The denial of Social Security's cross-motion for summary judgment does not mean that the Altrickson Anson's cross-motion will automatically be granted. Fuji Enterprises, 23 FSM R. at 137-38.

Altrickson Anson, relying on the doctrine of equitable adoption, contends that he has provided sufficient evidence of Ciichi Anson's actual dependency on the deceased wage-earner to even satisfy the evidence of dependency required under the Social Security regulations. He further contends that there is no genuine issue that Ciichi Anson should be entitled to surviving child benefits.

Drawing all possible inferences in the non-moving party's (Social Security's) favor, the court, applying all the factors in 53 F.S.M.C. 603(4), cannot say that Ciichi Anson must be entitled to a surviving child's benefits, although it seems quite likely. Altrickson Anson is, however, entitled to a partial summary judgment that, as a matter of law, the Social Security denial was reached in a legally erroneous manner because the "exceptional circumstances" exception was not considered or addressed.

The court hereby vacates the Social Security Board's final determination and remands the matter to the Social Security Administrator for him to determine whether "exceptional circumstances apply" in this case. Normally, a remand of a Social Security decision would return the matter to the Social Security Board of Trustees. 53 F.S.M.C. 208(4). Since the statute requires the Social Security Administrator to make the initial determination of whether "due to exceptional circumstances, the person is so entitled" to be considered an adopted child eligible for survivor's benefits, 53 F.S.M.C. 603(4), a remand to the Social Security Administrator seems more appropriate.

In making his or her determination, the Social Security Administrator must consider the required statutory factors – first, "satisfy himself or herself that future eligibility for social security benefits was not a significant factor in the decision to adopt" and then consider the factors in 53 F.S.M.C. 603(4)(a) through (f). The Administrator shall explain his or her reasoning. If, after the Administrator has made his or her determination, Altrickson Anson, if he is still aggrieved, may appeal that determination to the Social Security Board of Trustees, who shall apply the same factors in making its final decision.

The court further believes that a remand would be beneficial to the Social Security Administration because it would allow that administrative agency to develop a coherent administrative approach to the application of the "exceptional circumstances" exception.

V. CONCLUSION

NOW THEREFORE IT IS HEREBY ORDERED that the Social Security Administration's summary judgment motion is denied and that Altrickson Anson's summary judgment motion is granted in part. IT IS FURTHER ORDERED that the Social Security Board's final determination is vacated and that this matter is remanded to the Social Security Administrator for him or her to determine, once the Administrator is satisfied "that future eligibility for social security benefits was not a significant factor in the decision to adopt" Ciichi Anson, whether, using the factors in 53 F.S.M.C. 603(4)(a) through (f), whether "exceptional circumstances apply" in this case, making Ciichi Anson a person entitled to surviving child benefits. The Administrator shall explain his or her reasoning in applying those factors, and take such further action as is consistent with this order. This case is closed.

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