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April 8, 1994

GLORIA SISCO, on behalf of and for the children of DENISE BOISSEAU, Plaintiff,

The opinion of the court was delivered by: ALFRED M. WOLIN

 WOLIN, District Judge

 This matter comes before the Court on motion of defendant Secretary of Health and Human Services ("the Secretary") to dismiss plaintiff Gloria Sisco's ("Sisco") complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). Sisco moves on cross-motions, pursuant to Rule 12(c), for judgment on the pleadings, and in the alternative, pursuant to Rule 37(a)(2), to compel the production of documents. For the reasons which follow, the Court will grant the Secretary's motion to dismiss and deny Sisco's cross-motions.


 The theme of this case concerns every parents' nightmare: the unexplained disappearance of their child. It also reflects the faith and hope parents exhibit when it concerns the welfare of their children, and the consequences this belief can cause. The genesis of this action commenced with the disappearance of Sisco's daughter, Denise Boisseau, on April 28, 1988. Denise's four minor children came under the care of Sisco, who became their legal guardian. An investigation was conducted and two days later, on April 30, 1988, Denise's car was discovered in a wooded area in Hatfield, Massachusetts. There was no explanation, nor was there any evidence to suggest what had happened to Denise. On May 8, 1990, more than two years after her disappearance, the skeletal remains of Denise were located and positively identified in the same area where her car was found. A death certificate was subsequently issued on June 27, 1990, setting April 30, 1988 as the date of death.

 On September 12, 1990, Sisco filed an application for child's insurance benefits on behalf of the four children, pursuant to 42 U.S.C. § 402(d) and (j). On October 21, 1990, the Secretary notified Sisco that the children would be awarded child's insurance benefits as of March 1990, six months retroactive from the date of filing, and a lump sum death payment. On March 28, 1991, Sisco filed a request for reconsideration seeking additional retroactive benefits back to the confirmed date of Denise's death in April, 1988. On May 17, 1991, the Secretary affirmed its earlier decision.

 Sisco then requested an administrative hearing, which was held on November 15, 1991. She asserted that it would have been futile to file for benefits because it would have resulted in an almost certain denial of her claim because of the lack of requisite proof of Denise's death. However, on February 5, 1992, the administrative law judge found that a procedure was in place to preserve Sisco's claim for benefits, and that the law was specific and allowed no latitude, and thus ruled that the children were entitled to benefits starting in March 1990, but not retroactive to the date of Denise's death. On March 26, 1992, Sisco requested the Appeals Council review the decision and on January 19, 1993, the Appeals Council denied the request for review, and affirmed the administrative law judge's decision as the final decision of the Secretary.

 The complaint in the within action was filed on March 18, 1993. Sisco seeks review of the final decision of the Secretary that her grandchildren are entitled to benefits as of March 1990. Sisco contends the benefits should be awarded as of April 1988, the date of death of her daughter Denise.


 A. Standard of Review - Rule 12(b)(6)

 In considering the Secretary's motion to dismiss for failure to state a claim pursuant to 12(b)(6), the Court must limit its consideration to the facts alleged in the complaint. Biesenbach v. Guenther, 588 F.2d 400, 402 (3d Cir. 1978). Moreover, in its examination of the complaint, the Court is required to accept all of the allegations contained therein and all inferences arising therefrom as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984). If plaintiff can prove any set of facts in support of her claim that would entitle her to relief, her complaint should not be dismissed. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); D.P. Enterprises v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984).

 B. Criteria to Qualify for Benefits

 42 U.S.C. § 402(d) provides for the payment of child's insurance benefits to every child of an individual who dies fully or currently insured if the child files an application and meets certain other eligibility requirements. *fn1" 42 U.S.C. § 402(j)(1)(B) provides that child's insurance benefits may be paid ...

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