# Polelle v. Secretary of Health, Education & Welfare > District Court, N.D. Illinois · April 19, 1974 · 386 F. Supp. 443 URL: https://www.frixlaw.com/law-library/cases/9751969 ## Case - **Full name:** Michael v. POLELLE, on Behalf of Himself Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE OF the UNITED STATES of America, Defendant - **Court:** District Court, N.D. Illinois - **Decided:** April 19, 1974 - **Citations:** 386 F. Supp. 443; 1974 U.S. Dist. LEXIS 8897 - **Precedential status:** Published - **Opinion:** Dissent by McMILLEN - **Judges:** Cummings, Marovitz, McMillen - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9751969 ## Opinion text McMILLEN, District Judge (dissenting). This cause is before the court on the government’s motion to dismiss the complaint. Hence the factual allegations of the complaint are taken as true, and the plaintiff is entitled to an opportunity to prove any set of facts which support the substance of his complaint. Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957). The majority opinion is based upon certain assumptions which may or may not prove to be well-founded. Therefore I would deny the government’s motion to dismiss which was filed on November 12, 1973 and grant the plaintiff an opportunity to proceed with further discovery on the government’s motion for summary judgment which was filed subsequent to its motion to dismiss. The gist of the complaint is that female retirees receive more liberal benefits than males who retire under exactly, the same circumstances and that this violates the Fifth Amendment to the United States Constitution. The majority opinion assumes that the purpose of this differential in benefits is to compensate females for the lower wages which they had previously earned. There is no evidence in the record, however, that these conditions have existed or that they have existed in all levels or types of employment covered by the Social Security Act. Equally importantly, there is no evidence in the record that Congress adopted the distinction in ordér to compensate for past discrimination. It is possible that the differential in benefits may have been adopted for reasons other than past discrimination, including the impermissible motive of “romantic paternalism”. This latter rationale was apparently the basis of the Second Circuit Court’s decision on this issue in Gruenwald v. Gardner, 390 F.2d 591 (2nd Cir. 1968). However, the Supreme Court in Frontiero v. Richardson, 411 U.S. 677 at 684 , 93 S.Ct. 1764 , 36 L.Ed.2d 583 (1973), has implicitly criticized this concept. If the differential was not designed to remedy past discrimination, then it must rest on some different rationale than is contained in the majority opinion or it is arbitrary. The record is silent on what the rationale might be, and the plaintiff should be allowed to prove the absence of a rational relationship between the discrepancy in rates and a legitimate governmental interest after this issue is joined on the pleadings. The majority opinion also ignores the fact that old age benefits under Title II of the Act are paid from a trust fund which is supposedly maintained on an actuarial basis. Sec. 401 of Title 42, when originally enacted, appropriated an “ ‘amount sufficient as an annual premium’ to provide for the required payments [under this title] ... ‘to be determined on a reserve basis in accordance with accepted actuarial principles, and based upon such tables of mortality as the Secretary of the Treasury shall from time to time adopt . . . ’ ” See Helvering v. Davis, 301 U.S. 619 at 636 , 57 S.Ct. 904, 906 , 81 L.Ed. 1307 (1937). This means that beneficiaries who live to their life expectancy may expect to receive benefits directly related to the tax contributions which they and their employers have made, and that the shares of one group should not be decreased in order to provide compensation for alleged discrimination against another group. Before we decide that Congress has departed from the actuarial concept (although admittedly it has abandoned maintaining a funded trust), we should examine the legislative histo *449 ry of this Act and particularly of Secs. 401 and 402. The difference in concept between old age benefits and payments to families with dependent children (AFDC) distinguishes this case from Ramirez v. Weinberger et al., 363 F. Supp. 105 (N.D.Ill.1973), as that court expressly recognized. The majority further assumes that Congress has abandoned the different benefits between men and women as of 1975 because the effects of discrimination will have been dissipated by then. This involves a doubly unsupported assumption, first that wage discrimination generally occurred against women in employments covered by the Social Security Act and secondly that its effects will disappear in 1975. If this is found not to have occurred, will some court then find that Congress has invidiously discriminated against women by removing the differential in benefits before the reason for its existence has been removed? And if discrimination against women has been remedied, will a court hold that Congress can then use Social Security benefits to compensate such minority groups as blacks or convicted felons for the wage discriminations which they have presumably suffered? There is no end to the problems which can be foreseen if the complaint in this case is dismissed without further examination. The Social Security fund is still defined as a trust in Sec. 401 of the statute. When a genuine issue is raised, the trust funds should not be diverted until the rights of all the beneficiaries have been zealously examined. Particularly in view of the admonition of at least 4 members of the Supreme Court in Frontiero that “classifications based upon [sex] are inherently suspect and must therefore be subjected to close judicial scrutiny” ( 411 U.S. at 682 and 688, 93 S.Ct. at 1768 ), I believe the motion to dismiss should be denied and the motion for summary judgment be allowed to proceed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9751969. Public record. Not legal advice.