Appeal from a decision of the Railroad Retirement Board denying petitioners' application for a residual lump-sum death benefit payable under the Railroad Retirement Act.
Oakes and Winter, Circuit Judges and Clarie, District Judge*fn* .
Petitioners Leon S. Dolata and Robert A. Dolata seek review of a decision of the Railroad Retirement Board ("Board") denying them a residual lump-sum death benefit payable to them as survivors of their brother, Michael R. Dolata, under Section 6(c)(1)(v) of the Railroad Retirement Act, 45 U.S.C. § 231e(c)(1)(v) (1982).
We reverse and remand with directions to award them the benefit. BACKGROUND
The pertinent facts of this case are not in dispute. Leon S. Dolata and Robert A. Dolata are the only siblings and, except for a natural child, the only close relatives of Michael R. Dolata. In 1959, Elizabeth Marie Dolata was born of Michael Dolata's marriage to Marianne Elizabeth Ptak. Michael and Marianne were divorced in 1965. On January 13, 1970, an order of adoption was entered in the Erie County, New York Surrogate's Court, under which Elizabeth was adopted by her natural mother and her new husband, Charles F. Fraresso. Under New York law, N.Y. Dom. Rel. L. § 117 (McKinney 1977), that adoption terminated the legal relationship of parent and child between Michael Dolata and Elizabeth Fraresso.
Michael Dolata, who was a railroad employee insured under the Railroad Retirement Act, died on December 4, 1979, leaving a lump-sum death benefit to be paid under Section 6(c) of the Railroad Retirement Act, 45 U.S.C. § 231e(c). He left no surviving widow, parent, grandchild, or grandparent. Elizabeth Fraresso applied for the lump-sum benefit on June 1, 1981, and the petitioners applied for the same benefit on November 23, 1981. The Bureau of Retirement Claims paid Elizabeth the benefit and denied the petitioners' claim. On May 16, 1983, petitioners filed an appeal of their claim to the Board's appeals referee who denied it by memorandum opinion. Petitioners then exhausted all further administrative remedies and sought review in this court pursuant to 45 U.S.C. § 231g and § 355(f). DISCUSSION
This appeal thus raises a pure question of law. Since no spouse, grandchild, or parent survived Michael Dolata, it is clear that under Section 6 of the Railroad Retirement Act, 45 U.S.C. § 231e(c), the Dolata brothers would be entitled to the benefit if there is no legal child.*fn1 The Railroad Retirement Act adopts the provisions of the Social Security Act for purposes of determining whether an applicant is the child of a deceased employee,*fn2 which in turn provides that the question is to be governed by the law of the state where the employee was domiciled at the time of his death.*fn3 Michael Dolata died while domiciled in New York. New York Domestic Relations Law § 117 provides that adoption terminates the right of a natural child to take from his natural parent in intestate (interstate) succession: S 117 Effect of Adoption
1. After the making of an order of adoption the natural parents of the adoptive child shall be relieved of all parental duties toward and of all responsibilities for and shall have no rights over such adoptive child or to his property by descent or succession, except as hereinafter stated.
The rights of an adoptive child to inheritance and succession from and through his natural parents shall terminate upon the making of the order of adoption except as hereinafter provided. . . .
2. This section shall apply only to the intestate descent and distribution of real and personal property and shall not affect the right of any child to distribution of property under the will of his natural parents . . . or under any inter vivos instrument heretofore or hereafter executed by such natural parent. . . or kindred.
See also In re Bielinski v. Herman Ungerman, Inc., 103 A.D.2d 73, 479 N.Y.S.2d 585 (1984). However, New York law simultaneously confers on the child the right to take in intestate succession from his or her adoptive parent. N.Y. Dom. Rel. Law § 117.
In affirming the award to Elizabeth Fraresso, the Board did not apply New York State law but relied instead on the so-called "deemed child" provisions of the Social Security Act. Those provisions, entitled "Qualification of Children Not Qualified Under State Law," were enacted in 1965, as part of a series of extensive amendments to the Social Security Act. The deemed child amendment provides:
(3) An applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2) of this subsection, shall nevertheless be ...