# Jimenez v. Richardson > District Court, N.D. Illinois · January 30, 1973 · 353 F. Supp. 1356 URL: https://www.frixlaw.com/law-library/cases/9756676 ## Case - **Full name:** Magdalena JIMENEZ, by Ramon Jimenez, Her Father and Next Friend, Individually and on Behalf of All Others Similarly Situated, Et Al., Plaintiffs, v. Elliot RICHARDSON, Secretary of Health, Education and Welfare, Defendant; Robin BOOKER, by Francine Booker, Her Mother and Next Friend, Plaintiff, v. Elliot RICHARDSON, Secretary of Health, Education and Welfare, Defendant - **Court:** District Court, N.D. Illinois - **Decided:** January 30, 1973 - **Citations:** 353 F. Supp. 1356; 1973 U.S. Dist. LEXIS 15141 - **Precedential status:** Published - **Opinion:** Dissent by Fairchild - **Judges:** Fairchild, Austin, Decker - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed by Jimenez v. Weinberger, 417 U.S. 628 (1974). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9756676 ## Opinion text FAIRCHILD, Circuit Judge (dissenting). I respectfully dissent from the dismissal of the claims of Eugenio and Alicia Jimenez (the children born after Ramon’s disability began). Legitimate children born after the beginning of disability, and otherwise qualified, would receive benefits, as would children born before the beginning of disability, whether legitimate or illegitimate. But no matter how clearly it can be shown that Eugenio and Alicia are the dependent children of Ramon, the statute excludes them from benefits which it grants to legitimate children otherwise similarly situated. I realize that a child who is unable to establish paternity with the certainty we accord to a child born to a married mother may properly be required to supply proof achieving a particular level of certainty, but this statutory exclusion is absolute, without regard to the certainty with which paternity might be proved. I believe this exclusion of a class of dependent children from social security benefits effected by 42 U.S.C. § 416 (h)(2) and (3) to be constitutionally impermissible discrimination. Recent decisions of the Supreme Court make it clear that statutory compensation schemes may not, in awarding benefits, prefer one class of dependent children over another according to their status of birth. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 , 92 S.Ct. 1400 , 31 L.Ed.2d 768 (1972); Richardson v. Davis, 409 U.S. 678 , 93 S.Ct. 678 , 34 L.Ed.2d 659 (1972), affirming Davis v. Richardson, 342 F.Supp. 588 (1972); Richardson v. Griffin, 409 U.S. 1069 , 93 S.Ct. 689 , 34 L.Ed.2d 660 (1972), affirming Griffin v. Richardson, 346 F.Supp. 1226 (D.Md., 1972). Significantly, the Court was not unmindful .in these cases that children born out of wedlock presented difficult problems of proof as to actual dependency. In Weber , the Court indicated that would respect a state’s method of determining the genuineness of individual claims. However, the Court made it clear that once dependency was established, the Constitution required that all dependents— whether legitimate or illegitimate — must be treated equally. 406 U.S. at 175 , 92 S.Ct. 1400 . In a very recent decision invalidating state discrimination against illegitimate children in a system designed to provide for the needs of children generally, the Supreme Court said: “We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.” Gomez v. Perez, - U.S. -, 93 S.Ct. 872, 875 , 35 L.Ed.2d 56, 1973 . The sole justification offered for the total exclusion of a class of dependent children 1 is that there may reasonably be thought to be a greater likelihood of plausible spurious claims among appli *1363 cants born after the event which triggers entitlement of an alleged father to benefits. 2 While I would agree that the need to guard against fraudulent claims is surely a valid legislative goal, I cannot agree that a total exclusion of a class of claims — some of which will be demonstrably valid — is a reasonable means of achieving that goal. Carrington v. Rash, 380 U.S. 89, 92-97 , 85 S.Ct. 775 , 13 L.Ed.2d 675 (1965) establishes the principle that a statutory classification which totally excludes a class of persons from important benefits denies equal protection when less drastic means are available to effectuate the interest purportedly promoted by the classification. I think this principle is applicable here. In the context of a statutory compensation scheme, the total exclusion of a class of dependent children is simply too drastic a means to cope with the problem of spurious claims. It is my opinion that insofar as portions of § 416(h)(3) constitute a requirement that an applicant be born before the beginning of disability of an insured who is alleged to be the applicant’s father, they are discriminatory and invalid. I would enjoin application of this requirement to plaintiff Eugenio and Alicia and others similarly situated. I join Judge Austin and Judge Decker in the decision with respect to Magdalena Jimenez and Robin Booker. . As the majority opinion makes clear, eligibility for social security children’s benefits is not statutorily defined simply according to the status and time of birth. Nevertheless, I believe, in operation, § 416(h)(2) and (3), excludes from eligibility virtually all children of an insured ' individual wlio are born out of wedlock after the entitling event. It has never been suggested by the Secretary that even a significant percentage of this class will be able to establish their eligibility under § 416(h)(2)(A) and (B). . This proposition is itself subject to question. Assuming that paternal acknowledgement is required, a number of factors must coalesce in producing a spurious but plausible claim. The insured individual must be willing to falsify in the face of criminal penalties and the societal and interpersonal condemnation to which lie will be exposed. He must be willing to expose himself to legal obligations of support. The child’s birth and the mother’s situation must be consistent with the paternity asserted. And the mother must be willing to falsify. On the other hand, advances in the ability to exclude paternity as a result of blood tests greatly increase the possibility of detecting spurious claims. Studies suggest that if a sufficient number of blood typing tests are utilized, “the average chance of obtaining an exclusion may eventually reach 80 to 90 per cent.” Kramer, Illegitimacy: Law and Social Policy, Chapter 4, Part H, sub-part (i) ; Blood Typing (1971), pp. 123-127. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9756676. Public record. Not legal advice.