NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                ___________________

                      No. 10-2027
                  ___________________

               KAREN K. CAPATO, o/b/o
                   B.N.C., K.N.C.,

                                  Appellant

                             v.

         COMMISSIONER SOCIAL SECURITY

                      ____________

      On Appeal from the United States District Court
                 for the District of New Jersey
      District Judge: Honorable Dennis M. Cavanaugh
                    Case No. 2-08-cv-05405

                   Argued July 1, 2013

                      ____________

Before: CHAGARES, VANASKIE, and BARRY Circuit Judges.

                   (Filed: July 24, 2013)

                      ____________

                        OPINION
                      ____________
Paul W. Hughes, Esq. [Argued]
Mayer Brown
1999 K Street, N.W.
Washington, DC 20006

Charles A. Rothfield, Esq.
Mayer Brown
1999 K Street, N.W.
Washington, DC 20006

Bernard A. Kuttner, Esq.
Kuttner Law Offices
24 Lackawanna Plaza
Millburn, NJ 07041

      Counsel for Appellant

Helen L. Gilbert, Esq. [Argued]
United States Department of Justice
Appellate Section
Room 7261
950 Pennsylvania Avenue, N.W.
Washington, DC 20530


Christopher J. Brackett, Esq.
Social Security Administration
Office of General Counsel
701 Fifth Avenue
Suite 2900, M/S 901
Seattle, WA 98104

Rebecca H. Estelle, Esq.
Social Security Administration
Office of General Counsel - Region II
Room 3904
26 Federal Plaza
New York, NY 10278




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Ellen E. Sovern, Esq.
Social Security Administration
Office of General Counsel - Region II
Room 3904
26 Federal Plaza
New York, NY 10278


Michael S. Raab, Esq.
United States Department of Justice
Civil Division
Room 7237
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

       Counsel for Appellee

                                      ____________

                                        OPINION
                                      ____________

CHAGARES, Circuit Judge.

       In 2010, Karen Capato filed an appeal challenging the District Court’s decision

affirming the denial of social security benefits to her twin children (the “twins”)

following the death of her husband, Robert Nicholas Capato (“Nick”). We vacated the

District Court’s determination in part, but the Supreme Court reversed our decision and

remanded the case for further review. We will now affirm the District Court’s decision.

                                             I.

       The factual and procedural history of this case was recounted in detail by the

Supreme Court in its recent opinion remanding this case to our Court. See Astrue v.

Capato ex rel. B.N.C., 

, 2025-27 (2012). The Supreme Court instructed

that “the law Congress enacted calls for resolution of Karen Capato’s application for [the

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twins’] insurance benefits by reference to state intestacy law.”1 

we

will address two questions. First, we must determine which state’s law to apply. Second,

we must decide whether that state’s intestacy law would allow the twins to receive

benefits.

                                             II.2

                                             A.

       To determine which state’s law applies, we ask where Nick was domiciled at the

time of his death. The Government argues that the administrative law judge (“ALJ”) and

District Court were correct to conclude that Nick was domiciled in Florida, where he

lived for about three years immediately preceding his death. Capato argues that Nick was

domiciled in Washington, the state where he was born and lived the majority of his life.

Our decision turns on whether the ALJ’s decision was “supported by substantial

evidence.” Hartranft v. Apfel, 

, 360 (3d Cir. 1999).

       “[D]omicile is established by an objective physical presence in the state or

territory coupled with a subjective intention to remain there indefinitely.” Washington v.

Hovensa LLC, 

, 344 (3d Cir. 2011). Intent to remain must be analyzed at

the time of arrival in a new place: if a person is shown to have doubts about remaining in

a new location after his arrival, those doubts are not relevant unless they indicate there




1
  Under the law, a person is entitled to benefits if he or she is a “child” as defined by 42
U.S.C. § 416(e). See 42 U.S.C. § 402(d)(1).
2
  We have jurisdiction pursuant to 28 U.S.C. § 1291, and the District Court was granted
jurisdiction by 42 U.S.C. 405(g).
                                              4
was never an original intent to stay. Gallagher v. Philadelphia Transp. Co., 

,

546 (3d Cir. 1950).

       There was sufficient evidence for the ALJ to conclude Nick was domiciled in

Florida. Nick’s business interests in Florida and the fact that his will was written under

Florida law provide some indication of his intent, and his actual residence in Florida was

prima facie evidence that Florida was his domicile. See Krasnov v. Dinan, 

, 1300 (3d Cir. 1972). And while all the testimony concerning the Capatos’ intent to

move to New Jersey was credited, the ALJ was free to decide that that evidence did not

establish that Nick had a definite plan to leave Florida at the time he arrived from

Colorado.

                                             B.

       Because Nick was domiciled in Florida at the time of his death, we must “apply

such law as would be applied in determining the devolution of intestate personal property

by the courts of” Florida. 42 U.S.C. § 416(h)(2)(A). Under Florida intestacy law, “[a]

child conceived from the eggs or sperm of a person or persons who died before the

transfer of their eggs, sperm, or preembryos to a woman’s body shall not be eligible for a

claim against the decedent’s estate unless the child has been provided for by the

decedent’s will.” Fla. Stat. Ann. § 742.17(4). Capato’s arguments to the contrary

notwithstanding, § 742.17(4) clearly prevents recovery for the twins.

                                             III.

       For these reasons, we will affirm the District Court’s conclusion that the twins are

not entitled to benefits under the Social Security Act.

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VANASKIE, Circuit Judge, concurring.

       The results we reach in this case – that there is substantial evidence supporting the

determination that Nick Capato was domiciled in Florida at the time of his passing, and

that, as a consequence of this determination, the children of Nick and Karen Capato

conceived after his passing are not entitled to Social Security survivor’s benefits – are

correct legally, and so I must concur. But the denial of survivor’s benefits to Nick and

Karen Capato’s twins strikes me as grossly unfair.

       The manifest unfairness of this case is the unfortunate consequence of legislation

that was enacted generations before scientific and technological advances made it

possible for couples like the Capatos to provide for a family even in the tragic

circumstance of a death-sentence diagnosis of the wage earner. In 1939, when Congress

first enacted legislation to provide for survivor benefits to the children of a wage earner,

Congress was compelled to address the issue of who in fact was a child of the deceased

wage earner for children born outside of wedlock when paternity and parentage status

was not ascertainable with certainty. This concern for providing survivor benefits to

children conceived and born outside a traditional marriage remained the focus of

congressional attention in the 1960s, when section 216(h) of the Social Security Act, 42

U.S.C. § 416(h), was last amended by “extending benefits to the children of unwed

parents.” Schafer v. Astrue, 

, 67 (4th Cir. 2011) (Davis, J., dissenting). As

explained in McMillian ex rel. McMillian v. Heckler, 

(4th Cir. 1985):

       Until 1965, § 416(h)(2) provided the sole means by which illegitimates
       could establish entitlement to benefits as dependent children, with §
                                              1
       (h)(2)(A) the primary vehicle. Under that provision, an illegitimate
       claimant could establish entitlement to benefits by proving his entitlement
       to inherit from the insured wage earner as a “child” under the intestate
       succession law of the state of the insured’s domicile. In 1965, § (h)(3)(C)
       was added specifically to provide other means by which entitlement might
       be established.
       Under the state inheritance law provisions of § 416(h)(2)(A), a claimant
       born in wedlock who sought to establish entitlement to benefits as the
       illegitimate child of another than his mother’s husband was and is perforce
       confronted with any presumption of in-wedlock parentage integral to the
       state’s inheritance law. That element of state law is necessarily included in
       the general congressional incorporation of state inheritance law into §
       416(h)(2)(A).
       But when § 416(h)(3)(C) was added in 1965 to provide supplementary and
       alternative means of proving entitlement by illegitimates, it did not
       expressly or by implication incorporate any element of state law respecting
       parentage, inheritance rights or any other matter of possible relevance to
       dependent child status. So far as the text of § 416(h)(3)(C) is concerned, all
       questions of its interpretation and application are referable solely to federal
       law.

omitted).

       Thus, the combination of sections 416(h)(2) and (h)(3)(C) assure that any child of

a deceased wage earner born outside a traditional marriage while the wage earner is

living has an opportunity, under a nationwide system, to receive benefits that are

intended to “replace the support that the child would have received from [the deceased

parent] had the [parent] not died.” Jones ex rel. Jones v. Chater, 

, 514 (7th

Cir. 1996). Such children are entitled to survivor benefits either if they qualify as heirs

of the deceased parent under the intestate laws of the state where the parent was

domiciled at the time of his or her death, see 42 U.S.C. § 416(h)(2)(A), or, if not so

qualified, by satisfying one of several nationally-applicable criteria. See 

       Children conceived after the death of a parent, a consequence of scientific

advances “not within the imagination, much less contemplation, of Congress when the

relevant [legislative provisions] came to be,” Capato ex rel. B.N.C. v. Comm’r of Social

Security, 

, 627 (3d Cir. 2011), rev’d, 

(2012), however, are

relegated to the intestacy laws of the several states. Unlike “out-of-wedlock” children

born before the death of the deceased wage earner, “after-conceived” children have no

alternative way to establish entitlement to survivor benefits. This means that some after-

conceived children will receive survivor benefits because their parents were domiciled in

states that recognize after-conceived children as heirs of their parents under their intestate

laws, while others will be denied benefits solely because the intestate laws of the state

where the wage earner passed away did not recognize his or her after-conceived children

as heirs. And so we have a nationwide benefits program in which some after-conceived

children of wage earners are treated as the children of their biological parents, while other

after-conceived children are not regarded as the children of their biological parents. This

strikes me as manifestly unfair.

       Nick Capato was a fully-insured individual in a nationwide system that provides

benefits to the children of fully-insured individuals. His offspring, whether conceived

before or after his passing, should be entitled to the same treatment for survivor benefits

that every other child born in the United States receives. There is no dispute that Nick

Capato desired to provide for a family notwithstanding being stricken by a fatal disease.

As it turned out, he was living in the wrong state when he died to assure that his after-

                                              3
conceived children would receive the benefits of a national program into which he paid

his fair share.

       Where, as here, the record is clear as to the relationship between the claimant and

the wage earner, eligibility for benefits in a nationwide program should not turn on the

vagaries of the laws enacted by state legislators to address the completely separate matter

of intestacy rights. Only Congress has the authority to remedy this situation. In 1965,

Congress took action to remedy the inequity of relegating entitlement to survivor benefits

to state intestacy laws by providing alternative means to qualify for such benefits. I write

separately in this case to urge that Congress take appropriate action now to correct the

injustice resulting from application of legislative provisions that could not have

contemplated this “new world” in which a father or mother may provide for a family

even after his or her death. Until Congress does so, courts will be constrained to sustain

manifestly unfair results that deny survivor benefits based solely upon the domicile of the

wage earner.




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