The opinion
WOODROW WILSON JONES, Chief District Judge
(dissenting):
The plaintiffs challenge the statutory scheme of priorities provided in Section 203(a)(3) of the Social Security Act, 42 U.S.C.A., 403(a)(3), contending that it constitutes an invidious discrimination against the class of illegitimate children defined in Section 216(h)(3), 42 U.S.C. A., 416(h)(3). The majority strikes down the Congressional enactment as violative of the Due Process Clause of the Fifth Amendment on the grounds that it is unfair, that it has no rational, reasonable, or legitimate basis, and that it may be racially discriminatory since the plaintiffs contend that on a percentage basis there are more non-white than white illegitimate children. I respectfully dissent.
The facts are simple and are not in dispute. Charles E. Williams, an insured wage earner, had two families— one legitimate and the other illegitimate. The legal family consisted of a wife and two children who resided in Baltimore, Maryland. The other family, residing in Charlotte, North Carolina, was made up of one Mae Helen Livingston, with whom Williams was living at the time of his death in 1969, and two illegitimate children, the plaintiffs in this action. Immediately after his death the plaintiffs were awarded Social Security benefits effective June 9, 1969. In February 1970 the widow and the legitimate children filed for benefits and their claim was allowed. The plaintiffs were notified by the Secretary that the benefits allowed the legitimate children completely absorbed the “family maximum” of $158.70 per month so that their benefits pursuant to Section 216(h)(3) were no longer payable and would cease as of June 1, 1970. Plaintiffs requested a reconsideration but instituted this action before a determination of their request could be made.
I would not reach the constitutional issue, but instead would dismiss the three-judge court action and relegate the plaintiffs to their administrative remedies. In fact, the real issue involved in this cause has long since been determined in favor of the plaintiffs by administrative action. At the February 18, 1972 hearing before the three-judge court, counsel for plaintiffs announced that the two legitimate children were no longer eligible for benefits and that the plaintiffs had been reinstated and were then receiving the benefits which they seek in this action. Insofar as these plaintiffs are concerned, the action has therefore become moot. However, the majority finds that the plaintiffs’ claim for benefits during the period they were denied is still at issue. At most, this claim could amount to only a few hundred dollars since it is based upon the plaintiffs’ pro rata part of the “family maximum” of $158.70 per month from June 1, 1970 to February 1, 1972. Under no stretch of the imagination could such claim amount to $10,000 as alleged by the plaintiffs and determined by the majority.
If it becomes necessary to reach the constitutional issue it may be raised before and determined by a single federal judge after the administrative remedies have been exhausted. Section 205(g) and (h) of the Act, 42 U.S.C.A., 405(g) and (h) provides for judicial review of the decision of the Secretary on claims arising under Title II of the Act, irrespective of the amount in controversy. On such judicial review the hearing judge can determine the constitutional question. Flemming v. Nestor, 363 U.S. 603 , 80 S.Ct. 1367 , 4 L.Ed.2d 1435 , Parker v. Sec. HEW, 453 F.2d 850 (5th Cir. 1972), Garner v. Richardson, 333 F. Supp. 1191 (N.D.Cal.1971).
*553 This Act of Congress is not violative of the Due Process Clause of the Fifth Amendment. Congress is charged with the awesome duty of levying taxes upon the working people of our land to provide the trust funds from which benefits are paid, and to determine to whom, how, and in what amounts they will be paid. It must have wide latitude in making classifications, and the courts must uphold such selections' unless they are so arbitrary as to be totally devoid of a rational basis. We do not determine the fairness nor the wisdom of the scheme of benefits. Such power resides in the Congress, and we are not members of that body. As Justice Cardozo said in an early court test of the Act:
“Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II, it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here as often is with power, not with wisdom.” Helvering v. Davis, 301 U.S. 619, 644, 672 , 57 S.Ct. 904, 910 , 81 L.Ed. 1307 .
Congress in the exercise of its power has made a distinction between illegitimate and legitimate children in Social Security benefits, and the only question for this court is whether there is a rational basis for such classification.
For decades the law of our land has recognized and approved the legal distinction between legitimate and illegitimate children and between wives and concubines. The basis for such distinction has been to strengthen and preserve the family life of our nation which has contributed so much to our civilization. No one can say this is not a reasonable or rational basis for such distinction. The Fifth Circuit Court concluded in Parker v. Secretary, supra, that the act in question here was valid, and said:
“We conclude that the statute in question may be justified on the basis of the Congress giving precedence or priority to the legitimate children in the interest of strengthening and preserving family ties and as a part of the total scheme of the Act. This justification will be seen from the record here.”
Perhaps Justice Black answered all of the questions arising in this action when he said in Labine v. Vincent, 401 U.S. 532 , 91 S.Ct. 1017 , 28 L.Ed.2d 288 :
“* * * The Federal Constitution does not give this Court the power to overturn the State’s choice under the guise of constitutional interpretation because the Justices of this Court believe that they can provide better rules. Of course, it may be said that the rules adopted by the Louisiana Legislature ‘discriminate’ against illegitimates. But the rules also discriminate against collateral relations, as opposed to ascendants, and against ascendants, as opposed to descendants. Other rules determining property rights based on family status also ‘discriminate’ in favor of wives and against ‘concubines.’ The dissent attempts to distinguish these other ‘discriminations’ on the ground that they have a biological or social basis. There is no biological difference between a wife and a concubine nor does the Constitution require that there be such a difference before the State may assert its power to protect the wife and her children against the claims of a concubine and her children. The social difference between a wife and a concubine is analogous to the difference between a legitimate and an illegitimate child. One set of relationships is socially sanctioned, legally recognized, and gives rise to various rights and duties. The other set of relationships is illicit and beyond the recognition of the law. Similarly, the State does not need biological or social reasons for distinguishing between ascendants and descendants. Some of these discriminatory choices are perhaps more closely connected to our conceptions of social justice or the ways in which most dying men wish to dispose of their property than the Louisiana rules governing illegitimate children. It may be possible that *554 some of these choices are more ‘rational’ than the choices inherent in Louisiana’s categories of illegitimates. But the power to make rules to establish, protect, and strengthen family-life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the legislature of that State. Absent a specific constitutional guarantee, it is for that legislature, not the life-tenured judges of this Court, to select from among possible laws. We cannot say that Louisiana’s policy provides a perfect or even a desirable solution or the one we would have provided for the problem of the property fights of illegitimate children. Neither can we say that Louisiana does not have the power to make laws for distribution of property left within the State.”
The argument is made here that the father was living with and supporting the illegitimate plaintiffs and that the action of the Secretary in withholding their benefits and relegating them to take after the legitimate children constitutes an invidious discrimination, and that there is no reasonable or rational basis for such classification. No one would quarrel with the fairness of this argument, but we cannot strike down this statute on the basis of what we think is fair or wise. Originally, the plaintiffs would not have been entitled to benefits under the Act, but Congress has enlarged the survivors’ insurance program to provide benefits for Section 216(h)(3) children who were previously excluded from the program altogether. In doing so, Congress has attached conditions that in the event the “family maximum” benefits are exhausted, the legitimate children will take in preference to illegitimate children. On the basis of the law of the land, no court should say that such condition is so utterly lacking in a rational basis as to render this section violative of the Due Process Clause of the Fifth Amendment.
The plaintiffs cite and rely upon Levy v. Louisiana, 391 U.S. 68 , 88 S.Ct. 1509 , 20 L.Ed.2d 436 ; Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73 , 88 S.Ct. 1515 , 20 L.Ed.2d 441 , and Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 , 92 S.Ct. 1400 , 31 L.Ed.2d 768 in support of their position. In Levy , the court struck down a Louisiana statute which barred illegitimate children’s cause of action for the wrongful death of their mother, and in Glona , permitted the mother of an illegitimate child to recover for his wrongful death and struck down the Louisiana statute which prohibited such recovery. Weber extended the rationale of Levy and Glona to cover Workmen’s Compensation, and permitted dependent illegitimate children to share with dependent children in such proceeds.
After Levy and Glona were decided, the court in Labine v. Vincent, supra, upheld the Louisiana intestate succession laws which permitted an illegitimate child from sharing equally with legitimate children in their father’s estate. The court made it clear that Levy and Glona should not be read as broadly as the plaintiffs contend in this cause. Justice Black said in Labine: “Levy did not say and cannot fairly be read to say that a State can never treat an illegitimate child differently from legitimate offspring.” The court held in Labine that the Louisiana intestate succession statute had a rational basis in view of Louisiana’s interest in promoting family life and of directing the disposition of property left within the state. In Dandridge v. Williams, 397 U.S. 471 , 90 S. Ct. 1153 , 25 L.Ed.2d 491 , the court upheld the constitutional validity of a maximum family grant provision of a welfare statute which discriminated against large families in favor of smaller families. The court held:
“ ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U.S. 420, 426 , 81 S.Ct. 1101, 1105 , 6 L.Ed. 2d 393 .”
The court said further:
“In the area of economics and social welfare, a State does not violate the *555 Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ”
The distinction made by the court in these cases is whether there is a “rational basis” for the state and Congressional action. In Levy , Glona, and Weber the court found no rational basis for the classification or distinction made between legitimate and illegitimate children, while in Labine and Dandridge rational basis did exist for the discrimination and classification.
There is a rational basis for the Congressional action in distinguishing between legitimate and illegitimate children in the case at bar. I would, therefore, declare the Act valid, and dismiss the action.