Appendix — Norton v. Mathews

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APPENDIX

| Supreme Court, U. $.

AUG 20 1975

Iu the Supreme Court of the United States

OCTOBER TERM, 1975 .

No. 74-6212

GREGORY B. NORTON, JR., ET AL.,

Appellants,

—V.—

F, DAVID MATHEWS,

Secretary of Health, Education and Welfare,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

FILED MARCH 19, 1975

JURISDICTION POSTPONED JUNE 30, 1975

Ju the Supreme Court of the United States

OCTOBER TERM, 1975

| No. 74-6212

GREGORY B. NORTON, JR., ET AL.,

Appellants,

a <=

F. David MATHEWS,

Secretary of Health, Education and Welfare,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

INDEX

Page

Chronological List of Relevant Docket Entries ....................-.-- 1

Plaintiffs’ Complaint and Exhibits A & B .........-.-.-.--------- 3

Exhibit A: Social Security Hearing Examiner’s Deciison .... 12

Exhibit B: Action of Appeals Council on Request for Review.. 20

Opinion of District Court (single judge) ............---------ss 22

Judgment of District Court (single judge) ...........---.---0-+- 30

Opinion of District Court (three-judge) ............--.--.--:-eeseeeeeees 31

Judgment of District Court (three-judge) ............---.--.-.1-+00+ 59

Orders of Supreme Court in previous case of Norton V.

Weinberger, No. 73-5598 ...........---.-ccecsssececseseerenennenensnesnenenes 61

Attachments to Plaintiffs’ Memorandum on Remand from

the Supreme Court ............----.-:-::sssssssecssesesesetetensnenensnsnsnnnsennnenes 63

ii INDEX

Page

Opinion of District Court (three-judge); Dissent of One

I secscitatehpnapiencsbileteiiitheiitehil tah a ae 70

Judgment of District Court (three-judge) 0.000. 96

IEEE Te 22 a A ON ET RN 97

Order of the Supreme Court of the United States granting

motion for leave to proceed in forma pauperis .................... 98

Order of the Supreme Court of the United States tponin

jurisdiction to the hearing of the case on the pot eae a 99

CHRONOLOGICAL LIST OF RELEVANT DOCKET ENTRIES

August 6, 1971—Social Security Administration Hearing Ex-

aminer’s Decision rendered.

January 19, 1972—Action of Appeals Council on Request for

Review filed.

March 17, 1972—Plaintiffs’ Complaint filed.

March 17, 1972—Plaintiffs’ Application for Convening of

Three-Judge Court filed.

June 19, 1972—Plaintiffs’ Motion for Certification as a Class

Action filed.

June 21, 1972—Defendant’s Motion to Dismiss or, in the Al-

ternative, for Summary Judgment filed.

July 3, 1972—Plaintiffs’ Motion for Preliminary Injunction

and Summary Judgment filed.

December 22, 1972—Memorandum Opinion of District Court

(single judge) filed.

December 22, 1972—Judgment of District Court (single

judge) entering summary judgment for defendant on non-

constitutional issue filed.

December 22, 1972—Notification and Request for Designation

of Three-Judge Court filed.

December 29, 1972—Designation of Three-Judge Court filed.

March 23, 1973—Hearing held on all pending motions before

three-judge court.

September 14, 1973—Opinion of District Court (three judges)

filed.

September 27, 1973—Order of District Court (three judges)

granting motion of defendant for summary judgment and

denying motion of plaintiff for summary judgment filed.

October 5, 1973—Notice of Appeal of Plaintiffs to the Supreme

Court filed.

July 24, 1974—Attested copy of Order of the Supreme Court

vacating the judgment of the district court and remanding

for further consideration filed.

September 20, 1974—Hearing held before District Court

(three judges) regarding remand from Supreme Court.

February 28, 1975—Majority Opin.on of District Court (three

judges) and Dissenting Opinion filed.

February 28, 1975—Order of District Court (three judges)

filed, denying plaintiffs’ motion for summary judgment,

granting defendant’s motion for summary judgment, dis-

missing case, and entering judgment in favor of defendant.

March 17, 1975—Notice of Appeal of Plaintiffs to the Supreme

Court filed.

June 30, 1975—Orders of Supreme Court filed granting mo-

tion for leave to proceed in forma pauperis and postponing

further consideration of the question of jurisdiction.

ee ec

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. 72-271-B

GrecorY B. NorTON, JR., a minor, by his next friend,

MARIAN B. CHILES, 308 East Lorraine Avenue, Balti-

more, Maryland 21218, Individually and on behalf of

all others similarly situated, PLAINTIFFS

v8.

ELLIOT RICHARDSON, Secretary, Department of Health,

Education and Welfare, 330 Independence Avenue,

S.W., Washington, D. C. 20201, Serve by certified mail

pursuant to 28 U.S.C. § 1391(e), Individually and in

his official capacity, DEFENDANT

COMPLAINT

For Declaratory and Injunctive Relief

and Relief in the Nature of Mandamus

Introduction

In this complaint plaintiff, an illegitimate minor child

suing by his next of friend and on behalf of a class of

all similarly situated persons, seeks an order from this

court adjudging Section 216(h) (3) (A) (ii) of the Social

Security Act, 42 U.S.C. § 416(h) (3) (A) (ii), to be in-

valid in that it arbitrarily discriminates against illegiti-

mate children. Alternatively, plaintiff contends that he

has nevertheless met the statutory criteria of his section

and should be deemed eligible for child’s insurance bene-

fits under the Act.

The challenged statutory provision governs the dis-

persal of federal Social Security survivors insurance bene-

fits. It provides that certain illegitimate children must,

in addition to establishing their fathers’ paternity, prove

that their fathers contributed to their support or lived

with them, matter- not required by he Act to be met by

legitimate children. Because plainiff failed to establish

to the administrative tribual’s satisfaction that he was

supported by his father, he was ruled ineligible for child’s

insurance benefits.

In addition to his statutory argument, plaintiff and

his class contend that this discriminatory provision de-

nies them due process of law and equal protection of

the laws, as guaranteed by the Fifth Amendment to the

United States Constitution. They ask for declaratory

and injunctive relief and the issuance of an order in the

nature of mandamus against defendant, the Secretary

of Health, Education, and Welfare, requiring payment

of all monies due.

II.

Jurisdiction

Jurisdiction is conferred on this court by any of sev-

eral independent federal statutory bases:

1. Jurisdiction is conferred on this court by 28 U.S.C.

§ 1361 which grants this court original jurisdiction in

any action in the nature of mandamus to compel an offi-

cer of the United States or agency thereof to perform

a duty owed to the plaintiff.

2. Jurisdiction is alternatively conferred on this court

by 28 U.S.C. § 1331 which grants this court original

jurisdiction in a civil action raising a federal question

wherein the matter in controversy exceeds the sum or

value of $10,000, exclusive of interest and costs.

3. Jurisdiction is alternatively conferred on this court

by Section 205(g) of the Social Security Act, 42 U.S.C.

§ 405(g), which grants this court original jurisdiction

to review a final administrative decision by the Depart-

ment of Health, Education, and Welfare denying certain

benefits under the Social Security Act.

4. Jurisdiction is alternatively conferred on this court

by Section 10(a) of the Administrative Procedure Act,

5 U.S.C. §§ 701-4, which creates jurisdiction in this court

to review the final adverse action of the federal agency

involved in this complaint.

Ill.

Three-Judge Court

This is a proper case for determination by a three-

judge court pursuant to 28 U.S.C. §§ 2282 and 2284

since plaintiff seeks an injunction to restrain defendant,

a federal officer, from the enforcement, operation, and

execution of an Act of Congress on the grout! that it

is contrary to the Constitution of the United states.

IV.

Plaintiff

The named plaintiff, Gregory B. Norton, Jr., suing by

his next of friend and grandmother, Marian B. Chiles,

resides with Mrs. Chiles at 308 East Lorraine Avenue,

Baltimore, Maryland. Gregory Norton is presently eight

(8) years of age, having been born on February 10, 1964.

He and his guardian are residents of Maryland and citi-

zens of the United States.

Defendant

Defendant, Elliot Richardson, is the Secretary of the

Department of Health, Education, and Welfare of the

United States Government. He is charged under the So-

cial Security Act with the primary responsibility for the

administration of the Social Security Administration and

the execution of its laws, including 42 U.S.C. § 416(h)

(3) which is challenged herein as being in conflict with

the Constitution of the United States.

VI.

Class Action

The named plaintiff brings this action on his own be-

half and, pursuant to Fed. R. Civ. P. 28(a) and (b) (2),

on behalf of all other persons similarly situated. Plain-

tiffs’ class is composed of all persons otherwise eligible

for Social Security child’s insurance benefits but for that

fact that they are illegitimate by birth and are unable

to meet the eligibility requirements of 42 U.S.C. § 416

(h) (8) (A) (ii) relating to support and residence. This

class is so numerous that joinder of all members is im-

possible and impracticable. There are questions of law

and fact common to the class. The named plaintiffs will

fairly and adequately protect the interests of the class.

The defendant and his agents have acted on grounds

generally applicable to the class, thereby making appiv-

priate final injunctive and declaratory relief with re-

spect to the class as a whole.

VII.

Factual Allegations

1. Gregory B. Norton, Sr., the natural father of

plaintiff Gregory B. Norton, Jr., was born March 9, 1947.

2. Mr. Norton entered the United States Army on

February 28, 1965.

3. On May 19, 1966, Mr. Norton, at age nineteen

(19), was killed while on duty in Vietnam as a result

of a metallic fragment wound in his head that was in-

curred when a hostile booby trap detonated during mili-

tary operations.

4. Mr. Norton’s earnings while in the military serv-

ice were sufficient to entitle him to Social Security bene-

fit coverage under Title II of the Social Security Act.

5. Gregory B. Norton, Jr., the plaintiff, was born at

Johns Hopkins Hospital in Baltimore, Maryland on Feb-

ruary 10, 1964 to Laurie Marie Brown, then aged four-

teen (14), and Gregory B. Norton, Sr., then aged six-

teen (16).

6. Gregory’s parents were never married.

7. Since his birth, Gregory has been in the care of

Mrs. Marian B. Chiles, Laurie Marie Brown’s mother,

who presently resides at 308 East Lorraine Avenue, Balti-

more, Maryland.

8. Gregory, Jr., is his father’s only natural child.

Mr. Norton was never married.

9. Gregory Norton, Sr., orally admitted to being his

son’s father.

10. Prior to going into the Army, Mr. Norton was

an unemployed secondary school student who lived with

his parents. He accordingly was unable to contribute

a significant amount of money to his son’s support. He

did contribute a small amount of money, baby clothes,

and other infant equipment.

11. Mr. Norton did work briefly at a bowling alley

in 1964.

12. After Mr. Norton went irto the service he wrote

home for Gregory’s birth certificate and other items

needed for him to make out an allotment and insurance

for the child. The birth certificate was found in his

personal effects after his death. An allotment or in-

surance for the child was never made out.

13. Plaintiff’s grandmother, Mrs. Marian Chiles, on

September 2, 1969 filed an application on Gregory’s

behalf for child’s insurance benefits based on the earn-

ings of his deceased father. If granted, Gregory would

have been enttiled to a monthly benefit amount of $44.00.

14. This application was denied because the claimants

had failed to prove that Mr. Norton had been living with

or contributing to the support of his son, a requirement

for benefits set forth by Section 216(h) (3) (A) (ii) of

the Act.

15. Upon Mrs. Chiles’ request for reconsideration, this

original determination of ineligibility was affirmed on

May 14, 1970.

16. Mrs. Chiles next requested a formal hearing on

her application for child’s insurance benefits for Gregory.

The Social Security Administration hearing examiner

held in his opinion of August 6, 1971 that Gregory B.

Norton, Sr., was indeed the father of Gregory, Jr., but

that there was:

insufficient evidence that [he] ... “supported” Greg-

ory B. Norton, Jr. and the evidence indicates that

the wage earner did not, while in the service, ob-

tain an allotment of soldier’s pay for the purpose

of supporting the child....

Because the. hearing examiner also found that Mr. Nor-

ton had not lived with his son at the time of his death,

he ruled that the requirements of Section 216(h) (3) (A)

(ii) had not been met and that Gregory was therefore

not entitled to child’s insurance benefits. (See Exhibit

A, attached. )

17. Mrs. Chiles’ request for a review of this de-

cision was denied on January 19, 1972 by the Appeals

Council of the Social Security Administration. (See Ex-

hibit B, attached. )

18. If able to establish eligibility for child’s insurance

benefits, Gregory Norton, Jr., would now be receiving a

monthly sum of $70.40, the present minimum benefit

amount.

19. Gregory Norton, Jr., has been determined eligible

for and is now receiving Veterans Administration bene-

fits.

20. Gregory Norton, Jr., has at no time received any

Social Security child’s insurance benefits.

21. Because of defendant’s refusal to grant him bene-

fits, Gregory Norton, Jr., is presently suffering irrepar-

able harm. His damage exceeds $10,000, in sum or value,

exclusive of interest.

VIII.

First Cause of Action

1. The Social Security Act sets forth four ways in

which illegitimate children can qualify to receive their

deceased parent’s survivors insurance benefits. First, such

child is eligible if under the intestate succession law of

the state in which the child is domiciled, the child could

inherit the deceased’s personal property, 42 U.S.C. § 416

(h) (2)(A). Second, the child is eligible if his or her

parents “went through a marriage ceremony resulting

in a purported marriage between them which, but for a

legal impediment . . . would have been a valid marriage.”

42 U.S.C. § 416(h) (2)(B). Third, an illegitimate child

can qualify if the child’s paternity were established by a

OO mw ~ cee ee

written acknowledgment, court decree, or court support

order. 42 U.S.C. § 416(h) (3) (A) (i).

2. Not being able to meet any of these tests, plain-

tiff sought to qualify under the fourth, 42 U.S.C. § 416

(h) (3) (A) (ii), which requires establishing “by evidence

satisfactory to the Secretary” that the deceased wage

earner was:

the father of the applicant and was living with or

contributing to the support of the applicant at the

time such insured individual became entitled to bene-

fits or attained age 65, whichever first occurred; ...

3. Plaintiff contends that the proper application of

this statutory requirement to the facts of his case re-

quires a finding that he has met the Act’s requirements

and is eligible for child’s insurance benefits.

4. The Social Security Administration was accordingly

in error in holding that there is insufficient evidence to

establish plaintiff’s eligibility under the terms of § 416

(h) (3) (A) (ii). -

Second Cause of Action

1. The provisions of 42 U.S.C. § 416(h) (38) (A) (ii)

impose an extra condition of eligibility upon plaintiff’s

class of illegitimate children that is not required of other

children under the Act.

2. This subsection therefore creates two classes of in-

sured wage earners’ children: (1) those illegitimate

children who can qualify for benefits in no other way

than to rely on section 416(h) (3) (A) (ii) and who are

unable to meet the “living with” or “contributing to”

criteria and (2) those children, both legitimate and il-

legitimate, who are not required to prove that their

father lived with them or supported them and are there-

by able to receive child’s insurance benefits.

3. No adequate governmental justification exists for

this arbitrary scheme which discriminates against certain

illegitimate children. It accordingly is invalid as a de-

nial of equal protection of the laws as guaranteed by the

Fifth Amendment of the United States Constitution.

Third Cause of Action

1. By denying child’s insurance benefits to plaintiff

and his class, Section 216(h) (3) (A) (ii) of the Social

Security Act deprives them of valuable rights due to

actions of their parents over which these children have

no control.

2. This arbitrary and capricious denial of benefits

constitutes a denial of due process and accordingly is

unconstitutional under the Due Process Clause of the

Fifth Amendment of the United States Constitution.

XI.

Prayer for Relief

WHEREFORE, plaintiff respectfully pra

: ys, on behalf

of himself and all others similarly si

+ Ree aft all arly situated that this

1. Convene a three-judge court to hear this -

7“ e 7 U.S.C. §§ 2282 and 2284. podennota

. Certify this action as a class acti

~— . Civ. P. 23(c¢) (1). er

. Enter a final judgment pursuant to 28 U.S.C.

§§ 2201 and 2202, declaring Section 216(h) (3) (A) (ii)

of the Social Security Act invalid, insofar as it dis-

oe Bsa Le gen children, on the ground

at it is violative of the Fifth Amend j

a Constitution. sips

. Enter preliminary and permanent injunctions -

suant to Fed. R. Civ. P. 65 and a writ in the nA mel

of mandamus enjoining defendant, his successors in office

agents, employees, and all other persons in active concert

and participation with them from refusing to grant

plaintiff and his class child’s insurance benefits merely

because they are illegitimate and unable to establish

that their father lived with or supported them.

5. Order defendant, his successors in office, agents

and employees to notify promptly by first class mai] at

their last known address all persons who have been denied

ee ee

child’s insurance benefits due to Section 216(h) (3) (A)

(ii) that they are now eligible for such benefits and may

reapply.

6. Grant plaintiffs and all those similarly situated such

additional or alternative relief, including payment of all

monies wrongfully withheld, as may seem to this court

to be just and proper.

Respectfully submitted,

/s/ C. Christopher Brown

C. CHRISTOPHER BROWN

Law Reform Unit

Legal Aid Bureau, Inc.

341 North Calvert Street

Baltimore, Maryland 21202

Telephone: 685-1112

/s/ Michael Berman

MICHAEL BERMAN

Legal Aid Bureau, Inc.

$41 North Calvert Street

Baltimore, Maryland 21202

Telephone: 539-5340 ,

Attorneys for Plaintiffs

STATE OF MARYLAND, ss:

Marian B. Chiles, being duly sworn, does depose and

say that she is the next of friend of the named plaintiff

herein, that she has read the foregoing complaint and

knows the contents thereof, and that they are true to

the best of her knowledge and belief.

/s/ Marian B. Chiles

MARIAN B. CHILES

Subscribed and Sworn to before me this 15th day of

March, 1972.

/s/ William L. Fuller

Notary Public

My Commission Expires: July 1, 1974

EXHIBIT A

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

BUREAU OF HEARINGS AND APPEALS

NOTICE Of DECISION

PLEASE READ CAREFULLY

If you disagree, in whole or in part, with the enclosed

decision of the hearing examiner, you may request the

Appeals Council to review it. However, your request for

review must be filed within 60 days following the date

shown below.

You, or your representative, may file the request for

review at the nearest office of the Social Security Ad-

ministration, or you may file the request for review with

the hearing examiner, or with the Appeals Council.

Unless you file a timely request for review by the Appeals

Council, you may not obtain a court review of your case

under sections 205(g) and 1869(b) of the Social Secur-

ity Act.

This notice and enclosed copy of hearing examiner’s deci-

sion mailed to the claimant and representative Michael

Berman, Esq., 341 N. Calvert Street, Baltimore, Mary-

land 21202 on August 6, 1971.

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SocIAL SECURITY ADMINISTRATION

BUREAU OF HEARINGS AND APPEALS

HEARING EXAMINER’S DECISION

In the case of

Marion B. Chiles, Guardian

on behalf of Gregory B. Norton, Jr.

(Claimant)

Gregory B. Norton

(Wage Earner) (Leave blank if same as above)

Claim for

(Child’s Insurance Benefits)

Retirement Insurance Benefits

212-48-8660

(Social Security Number)

This case is before the undersigned Hearing Examiner

upon request for hearing filed by Marion B. Chiles,

guardian of Gregory B. Norton, Jr. The claimant is dis-

satisfied with the determination made by the Bureau of

Retirement and Survivors Insurance, Social Security Ad-

ministration, Department of Health, Education and Wel-

fare, disallowing Marion B. Chiles’ application for Child’s

Insurance Benefits for Gregory 4 Norton, Jr. After

appropriate notice, a hearing was held before the under-

signed Hearing Examiner on June 7, 1971, at Baltimore,

Maryland, with the claimant present and participating.

Claimant was represented by Michael Berman, Esq. Also

present and participating was Edward D. Green, a con-

tact representative for the Veterans Administration.

The claimant filed an application for Child’s Insurance

Benefits on behalf of Gregory B. Norton, Jr. on Septem-

ber 2, 1969. She was notified by letter dated October 22,

1969 that the requirement of the Social Security Act

that the father must have acknowledged in writing or

have been ordered by court to contribute to the childs

support or have been judicially declared to be the child’s

father and as living with the child or contributing to

his support, had not been met. Claimant requested re-

consideration by the Social Security Administration and

was thereafter notified by letter dated May 14, 1970 that

the original determination on her application for Child’s

Insurance Benefits was affirmed. The request for hear-

ing was filed on November 12, 1970.

Procedural Matters

An objection to the admission of Exhibit 17 was made

but that objection was overruled because Mrs. Chiles

was present, to testify to correct any errors which might

appear in that statement. There was an objection to

Exhibit 16 and the objection was granted and exhibit is

hereby removed because it amounts to an administrative

summary of the processing of this case. An objection

was raised to Exhibit 11 but it was also overruled be-

cause of the presence at the hearing of Mr. Green, the

Veterans Administration contact representative.

Statement of Issues and Applicable Law

The general issue before the Hearing Examiner is wheth-

er or not Gregory B. Norton, Jr. is entitled to surviving

Child’s Insurance Benefits on the earnings of the deceased

wage earner and whether the deceased wage earner was

the biological father of this child and that the child was

living with or being supported by the father at the time

of the father’s death. Section 216(h) (3) of the Act, as

here pertinent, provides that an illegitimate child under

certain conditions meets the definition of “child” even

though he neither has any inheritance rights from the

wage earner under the state laws nor is deemed to be

wage earner’s child by virtue of an invalid ceremonial

marriage.

Section 216(h)(3)(C) of the Social Security Act pro-

vides, as is pertinent here, that the applicant shall be

ae Ses em

determined to be the child of that individual if such

insured individual is shown by evidence satisfactory to

the Social Security Act to have been the father of the

applicant and such insured individual also was living

with or contributing to the support of the applicant at

the time of such wage earner’s death.

Summary of the Evidence

Gregory B. Norton was born March 9, 1947. He went

into the military service February 28, 1965 and died in

Viet Nam on May 19, 1966. Gregory B. Norton, Jr. was

born February 10, 1964 in Baltimore City at the Johns

Hopkins Hospital to Laurie Marie Brown (age 14) and

Gregory Bernard Norton (age 16). The original birth

certificate showed the name of the father of the child

to be Gregory B. Brown, but the name Brown was later

stricken out and the name Norton placed thereon. (Ex-

hibit 13)

The child Gregory B. Norton, Jr. has been in the care

of Marion B. Chiles, the mother of Laurie Brown, since

birth. Mrs. Chiles testified how before the birth of the

child, the father of the child, Gregory B. Norton, who

was unemployed and lived with his parents, admitted

being the father of the child which was to be born to

Laurie Brown. She indicated that no support was given

the first year but gifts of clothes and baby bottles, etc.

were yziven at the time of the birth. At the time of the

birth, Gregory was a student, age 16 and the mother of

the child was only 14. Mrs. Chiles testified that after

Gregory B. Norton went into the army he wrote home

for the birth certificate of the child and other things he

needed so that he could make out an allotment and insur-

ance for the child.

Edward D. Green, a Contact Representative of the Vet-

erans Administration, read into the record a number of

depositions which the Veterans Administration had pre-

viously taken. Essentially and briefly, the deposition of

Laurie Brown Edwards, the mother of the child, indicated

that at one time, claimant gave her $6 and some clothes.

He visited her at the hospital. She indicated that she

went to the State’s Attorney’s office in the Court House

about support for the child. They told her that when

Gregory B. Norton was home from the service, he should

come down for an interview. When Gregory B. Norton

came home, he never went down for the interview. As

to support of the child, she indicated Gregory B. Norton

did not make an allotment although he asked for the

birth certificate and it was sent to him but nothing came

of it. Mr. James Robertson was previously married to

Marion B. Chiles. He indicated Gregory Norton ad-

mitted being the father of the child and that Gregory

brought clothes, bottles, nipples, ete. Mrs. Maith, the

mother of Gregory B. Norton, said that he lived with

her before he went into the service and that the mother

of the child had not asked for help and that there was

no contact until after the death of her son. She did say

that her son said, “I am going to make out an allotment

for the baby.” The birth certificate was found in her

son’s personal affects. Mrs. Maith was the full beneficiary

of the insurance policy. The deposition of Mrs. Mary

Evans was also read and it indicated that she tried to

find the address of Gregory, Jr. and the mother of the

child so that she could contact them on behalf of Gregory

B. Norton so that he would have something to show to

the military that the child was his son.

An application for compensation for pension for Gregory

B. Norton, Jr. from the Veterans Administration dated

September 18, 1969, is part of the record. An adminis-

trative decision shows the Veterans Administration con-

clusion to be as follows:

“It is determined that the child, Gregory B. Norton,

Jr. is recognized by the Veterans Administration as

the illegitimate child of the veteran and is entitled

to death benefits based on the service of the veteran.”

(Exhibits 10, 11, & 12)

The certificate of live birth dated February 10, 1964,

shows a Gregory Bernard Norton, Jr. was born to Laurie

Marie Brown and Gregory Bernard Brown. The name

CO nn ome Te: ot hn, As Caliente ME

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Brown was replaced with Norton. A Health, Education,

and Welfare form shows that Gregory B. Norton last

worked at the Park Heights Bowling Alley in 1964 and

was in the Maryland Training School under a Maryland

State training program. (Exhibit 14)

Evaluation of the Evidence

The Hearing Examiner agrees with the Veterans Ad-

ministration administrative determination that there was

sufficient evidence to indicate that Gregory B. Norton is

the father of the child, Gregory B. Norton, Jr. The

child was born on February 10, 1964 and almost from

birth was in the care and custody of Marion B. Chiles.

Clearly the evidence indicates that the wage earner was

not “living with” either the mother of the child nor the

child. The crucial period in this case is the support from

the period of February 10, 1964, the birth of the child,

through May 19, 1966, the date of the wage earner’s

death. At best, there is evidence from Laurie Brown in

the form of a deposition that the wage earner gave $6

on two occasions and from other sources that he. gave

bottles, diapers, ete. at the time of the birth of the child.

Further, the Hearing Examiner understands full well

that the wage earner was a young boy and was not regu-

larly gainfully employed during that period with excep-

tion of one slight reference to some work at the bowling

lane. His earnings record shows that he earned $212.33

in 1964. There is insufficient objective evidence to indi-

cate that the wage earner “supported” the child prior to

going into the service. On February 28, 1965, approxi-

mately 1 year after the birth of the baby, claimant went

into the service. The Hearing Examiner acknowledges

that the wage earner in a letter asked for the birth cer-

tificate of the child and that record of birth was found

with his personal affects. No allotment of support was

made by Gregory B. Norton on behalf of Gregory B.

Norton, Jr. prior to that date of his death, May 19, 1966.

Further, the criteria of the Veterans Administration

which is different from the Social Security Administra-

ee Se ee

tion is not binding on the Social Security Administra-

tion. The Social Security Administration requires a proof

of relationship as well as dependency and/or support to

be established for Social Security benefits purposes. While

the administrative determination of the Veterans Ad-

ministration is not binding on the Social Security Ad-

ministration, the evidence they developed is supportive

of the Hearing Examiner’s decision that Gregory B. Nor-

ton is the father of the child in question but is insuffi-

cient to establish a “living with or support” requirement

of the Social Security Act.

Findings of Facts

The Hearing Examiner has considered all the evidence

in this case, and based upon the preponderance of the

credible evidence, makes the following specific findings:

1. That Gregory B. Norton is the father of Gregory

B. Norton, Jr., born February 10, 1964.

2. That prior to going into the service, there is in-

sufficient evidence that the wage earner, Gregory

B. Norton, “supported” Gregory B. Norton, Jr.

and the evidence indicates that the wage earner

did not, while in the service, obtain an allotment

of soldier’s pay for the purpose of supporting

the child aforementioned.

3. That Gregory B. Norton did not live with the

child at the time of the wage earner’s death so

as to meet the dependency requirements within

the meaning of Section 216(h)(3)(C) of the

Social Security Act.

Decision

It is the decision of the Hearing Examiner that Gregory

B. Norton, Jr. is the natural child of Gregory B. Norton,

the wage earner, within the meaning of the Section 216

(h) (8) of the Social Security Act, but there is insuffi-

cient evidence of record to establish that other require-

ments of the Social Security Act were met so as to entitle

SOD AE ACN A tO ES Nt oe

Gregory B. Norton, Jr. to benefits. Therefore, it is the

decision of the Hearing Examiner that the child is not

entitled to Child’s Insurance Benefits on the wage record

of Gregory B. Norton.

/s/ J. Robert Brown

J. ROBERT BROWN

Hearing Examiner

Bureau of Hearings and Appeals

707 N. Calvert St., Room 500

Baltimore, Maryland 21202

Date: August 6, 1971

ae! ee ae a ee

APPENDIX B

[SEAL }

DEPARTMENT OF HEALTH, EDUCATION, AND

WELFARE

SOCIAL SECURITY ADMINISTRATION

P.O. Box 2518, Washington, D.C. 20013

January 19, 1972

Refer To: HA-C Bureau of

212-48-8660 Hearing and Appeals

ACTION OF APPEALS COUNCIL ON

REQUEST FOR REVIEW

Mrs. Marion B. Chiles

0/b/o Gregory B. Norton

308 East Lorraine Avenue

Baltimore, Maryland 21218

Dear Mrs. Chiles:

Your request for review of the hearing examiner’s de-

cision has been carefully considered by the Appeals

Council. The Council’s consideration of your request has

included all the evidence in your case, the law and regula-

tions applicable to your claim, the hearing examiner’s

evaluation of the facts and the reasoning in his decision,

and your reasons for believing your claim should be

allowed.

The Appeals Council has concluded that the decision of

the hearing examiner is correct. Further action by the

Council would not, therefore, result in any change which

would be of advantage to you. Accordingly, the hearing

examiner’s decision stands as the final decision of the

Secretary in your case.

If you desire a review of the hearing examiner’s de-

cision by a court, you may commence a civil action in

the district court of the United States in the judicial

district in which you reside within sixty (60) days from

this date. See section 205(g) of the Social Security

Act, as amended (section 405(g), Title 42, United States

Code). If such action is commenced, the Secretary of

Health, Education, and Welfare is the proper defendant.

Sincerely yours,

Jackson C. Smith

Member, Appeals Council

ce:

Michael Berman, Esq.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. 72-271-B

GREGORY B. NORTON, JR, a minor, by his next friend,

Marian B. Chiles, Individually and on behalf of all

others similarly situated

Vv.

ELLIOT RICHARDSON, Secretary Department of Health,

Education and Welfare, Individually and in his official

capacity

C. Christopher Brown and Michael Berman, of Baltimore,

Maryland, for plaintiff.

Harlington Wood, Jr., Assistant Attorney General, Har-

land F. Leathers and Bruce E. Titus, of Washington,

D.C., George Beall, United States Attorney, and Jeffrey

White, Assistant United States Attorney, of Baltimore,

Maryland, for defendant.

Filed: December 22, 1972.

Blair, District Judge.

MEMORANDUM OPINION

This case involves an attempt by plaintiff, Gregory

B. Norton, Jr., to establish his right to receive child's

insurance benefits under the Social Security Act, 42 U.S.C.

$402(d) after the death of his father, Gregory B.

Norton, Sr. Benefits have been denied him by the Sec-

retary of Health, Education and Welfare who found that

he failed to meet the requirements of 42 U.S.C. § 416

(h) (3) (ec) Gi). This section requires that certain il-

legitimate children, to qualify under the Act as a child

of the deceased wage earner, must prove, in addition

to paternity, that they were living with or supported

by the wage earner on the date of his death. Although

Gregory proved he was the son of Gregory Norton, Sr.,

he failed to convince the Secretary that he had been

living with or supported by his father when his father

died. Two theories have been advanced in support of

Gregory’s right to receive benefits. The first is that the

Secretary’s decision rests on an incorrect interpretation

of § 416(h) (3) (c) (ii) and is in error.t The second and

alternative theory is that if the Secretary’s interpreta-

tion is correct, § 416(h) (3) (c) (ii) should be held un-

constitutional, its operation enjoined, and the Secretary

directed by mandamus-like writ to commence payments.’

Because the latter theory seeks an injunction against

the enforcement of a federal statute on constitutional

grounds, plaintiff has requested the convocation of a

three-judge court. Plaintiff also seeks certification of the

case as a class action and a preliminary injunction should

the issue of the constitutionality of § 416(h) (3) (c) (ii)

be reached.

Both sides have asked for summary disposition of the

case, the pertinent facts being agreed upon. Defendant

has moved for summary judgment or dismissal for

failure to state a cause of action; plaintiff has responded

with his own motion for summary judgment. As a pre

liminary matter, it must be determined which issues,

if any, may be resolved by a single judge and which

must be referred to a three-judge court for determina-

tion. Defendant contends that a three-judge court is not

required, there being no substantial constitutional issue,

and that judgment should be entered in favor of the

Secretary on both claims by this court sitting as a single

judge. Plaintiff counters that a three-judge court is

required unless this court in its single judge capacity

enters judgment in his favor, either because the Sec-

retary’s decision was wrong or the statute is unques-

tionably unconstitutional.

1 Jurisdiction for judicial review of the decisions of the Secretary

of H.E.W. is provided by 42 U.S.C. § 405(g).

2 Jurisdiction here is based on the general federal question pro-

vision of 28 U.S.C. § 1331 and on 28 U.S.C. § 1361, providing juris-

diction in mandamus actions against officers of the United States

or its agencies.

The review of a decision of the Secrtary of H.E.W.

is normally by a single judge court. Plaintiff is willing

for this court to review the Secrtary’s decision, but only

if judgment will be awarded plaintiff and asks that the

three-judge court decide the claim if judgment is not

to be for plaintiff. The court, however, disagrees with

plaintiff that the three-judge court should consider this

issue. The review of the Secretary’s decision, being an

alternative to deciding a constitutional question, must

be resolved before the constitutional claim is reached.

Wyman v. Rothstein, 398 U.S. 275 (1970). Although

the three-judge court would have pendent jurisdiction

over this claim,* the recent authority is that the single

judge, and not the three-judge court, should decide the

non-constitutional claim. In Rosado v. Wyman, 397 U.S.

397, 403 (1970), the Supreme Court indicated that the

preferred procedure for a three-judge court presented

with such a claim “may well have been to remand to the

single district judge for findings and determination of

the statutory claim rather than encumber the district

court, at a time when district court calendars are over-

burdened, by consuming the time of three federal judges

in a matter that was not required to be determined

by a three-judge court.” Three-judge courts after Rosado

have followed this suggestion and remanded the non-

constitutional claim to the single judge for decision

prior to their consideration of the constitutional issue.

Doe v. Gillman, 347 F. Supp. 483 (ND. lowa 1972);

Hubert v. Saucier, 347 F. Supp. 152 (N.D. Ga. 1972);

Linnane v. Betit, 331 F. Supp. 868 (D. Vermont 1971) ;

3 Turner V. Fouche, 396 U.S. 347, 354 (1970); Florida Lime and

Avocado Growers Vv. Jacobsen, 362 U.S. 73, 80-85 (1960); Zemel v.

Rusk, 381 U.S. 1, 5-7 (1965); Flast v. Cohen, 392 U.S. 83, 88-91

(1968) ; Sterling v. Constantin, 287 U.S. 378, 393-4 (1932). But,

cf. Perez v. Ledesma, 401 U.S. 83, 86-7 (1971) ; New York Central

Securities Corp. v. U.S., 287 U.S. 12, 28-29 (1932); Powell v. U.S.,

300 U.S. 276, 289-90 (1937); Pittsburgh & W.Va. Ry. Co. v. US.,

281 U.S. 479, 488 (1930); Hobson v. Hansen, 256 F.Supp. 18, 21

(D.C.Cir. 1969); Landry v. Daley, 280 F.Supp. 929, 937 (N.D.IIl.

1967) ; Jehovah’s Witnesses in State of Wash. v. King County Hosp.,

273 F.Supp. 488, 496-7 (W.D.Wash. 1967), aff'd. 390 U.S. 598

(1968).

— vo

Saddler Vv. Winstead, 327 F. Supp. 568 (N.D. Miss.

1971); Woolfolk v. Brown, 325 F. Supp. 1162 (E.D.

Va. 1971); Doe v. Hursch, 337 F. Supp. 614, 616 (D.

Minn. 1970). To this court there is no reason for the

single judge to first send the non-constitutional claim

to the three-judge court before deciding it. Bryant v.

Carlson, 444 F.2d 353 (9th Cir. 1971), cert. denied

404 U.S. 967 (1971); Kelly v. Illinois Bell Tel. Co.,

325 F.2d 148 (7th Cir. 1963) ; Chicago, Diluth & Georg-

ian Bay Transit Co. v. Nimms, 252 F.2d 317 (6th Cir.

1968); Doe v. Lavine, 347 F. Supp. 357 (S.D.N.Y.

1972) ; Connecticut Union of Welfare Employees v. White,

55 F.R.D. 481 (D.Conn. 1972). Contra Weintraub v.

Hanrahan, 435 F.2d 461 (7th Cir. 1970); Fort v. Daley,

431 F.2d 1128 (7th Cir. 1970). In fact, it would be

grossly inefficient to send a three-judge court a claim

which will only be sent immediately back. This in-

efficiency is especially apparent if the single judge’s

decision resolves the case, for there is then no need

to convene the three-judge court. See, e.g., Kelly v. Il-

linios Bell Tel. Co., 325 F.2d 148 (7th Cir. 1963); Doe

v. Lavine, 347 F. Supp. 357 (S.D.N.Y. 1972). Sending

all claims to the three-judge court requires that the three-

judges gather at least to remand, though they may never

be required again in the case. See, e.g., Doe v. Hursch,

337 F. Supp. 614 (D. Minn. 1970). Even if the three-

judge court is eventually required because of the single

judge’s decision, nothing would be more wasteful than

having two federal judges re-do the work one judge has

already completed when that work involves a claim not

required by statute to be decided by a three-judge court.

At a time when the burden of three-judge court proce-

dure rests heavily upon the federal judiciary, there is

little need to increase that burden with inefficiency. For

this reason, the review of the Secretary’s decision shall

be done by this court alone and shall not be sent to a

three-judge court.

In reviewing the Secretary’s decision, the court notes

that plaintiff does not contest the supporting facts upon

which the decision rests. Instead, plaintiff attacks the

conclusion drawn from these facts, contending that they

are sufficient to meet the requirement of § 416(h) (3) (¢)

(ii) that the deceased wage earner have lived with or

supported his illegitimate child on the date of his death.

The essential facts relevant to § 416(h) (3) (c) (il) can,

therefore, be briefly summarized. Gregory Norton, Jr.

was born out of wedlock in 1964 to Gregory Norton, Sr.,

then 16, and Lauri Marie Brown, then 14. Both Gregory

Norton, Sr. and Lauri Marie Brown were high school

students living at home. They never married, nor did

they ever live together. From the time of his birth to the

present, Gregory Norton, Jr. has lived with and been

under the care of his maternal grandmother, Mrs. Marion

B. Chiles. When Gregory Norton, Jr. was born, Gregory

Norton, Sr. apparently contributed $6.00 and some gifts

of clothing and other baby habiliments, but never ac-

tually undertook the support of the child, being an un-

employed student at the time. In February of 1965,

Gregory Norton, Sr. entered the Army. He had at this

point never lived with his son. On May 19, 1966, at

age 19, Gregory Norton, Sr. was killed while serving

in Vietnam. Prior to his death, Gregory Norton, Sr.

attempted to authorize a child’s military allotment which

would have provided the child with regular support.

Whether because of military red tape or some other

reason, on the date of his death he had failed to com-

plete the procedure which would have initiated the allot-

ment payments. While it appears evident that at some

point Gregory Norton, Sr. did intend to begin supporting

his son, it is undeniable that at the time of his death

support had yet to commence. :

mein does a maintain that § 416(h) (3) (ce) (ii)

was satisfied by a showing that Gregory Norton, Sr. was

living w'th his son on the date of his death. Being in

Vietnam, Gregory Norton, Sr. was obviously not living

with Gregory Norton, Jr. and there is absolutely no evi-

dence to suggest that Gregory Norton, Sr. ever attempted

or even intended to live with his illegitimate child. Plain-

tiff’s argument is that Gregory Norton, Sr.’s attempt to

support his son, though admittedly unsuccessful, was all

that had to be proven under a proper reading of the

statute for Gregory Norton, Jr. to qualify for benefits

and that, for this reason, the Secretary’s conclusion that

Gregory Norton, Jr. was not supported by his father on

the date of his death is not based on substantial evi-

dence * and is erroneous. What plaintiff argues is that

an applicant is not disqualified from receiving benefits

by § 416(h) (3) (c) (ii) if the deceased did all that could

reasonably be expected of him to live with or support

the child. In support of this proposition, plaintiff cites

numerous cases liberally interpreting § 416(h) (3) (c) (ii)

along this line. See Bridges v. Sec. of H.E.W., C.C.H.

Unemployment Insurance Reports, $16,480 (E.D.N.Y.

1971) ; Crisp v. Richardson, C.C.H. Unemployment Insur-

ance Reports, {| 16,612 (W.D.N.C. 1972) ; Mobley v. Rich-

ardson, C.C.H. Unemployment Insurance Reports, { 16,-

439 (W.D.N.C. 1971); Jackson v. Richardson, C.C.H.

Unemployment Insurance Reports, § 16,767 (S.D.W.Va.

1972); Wagner v. Finch, 413 F.2d 267 (5th Cir. 1969).

While tiis court agrees that the provisions of the So-

cial Security Act should be liberally construed in favor

of coverage, even a liberal construction of § 416(h) (3)

Jr. under the precedents plaintiff relies on. In each of

these cases, there had been some regular and continuous

“living with” or “support by” the wage earner which

for some unavoidable reason was interrupted on the date

of the wage earner’s death. For example, in Bridges v.

Secretary of H.E.W., C.C.H. Unemployment Insurance

Reports, 7 16,480 (E.D.N.Y. 1971) the wage earner had

been living with the mother and his illegitimate children

in New York and had supported them from his wages.

Tuberculosis first hospitalized him and then caused him

to spend large amounts of his time in North Carolina

caring for his health. He was forced to live on a Vet-

erans Administration pension. Despite all of this, he

regularly visited the mother and children. He died in

North Carolina four months after having spent Thanks-

*42 U.S.C. § 405(g) provides that the Secretary’s finding of any

fact—i.e. whether Gregory Norton, Jr. was supported by his father

on the date of his death—is conclusive if supported by “substan-

tial evidence.”

giving with the family. The court ruled that the separa-

tion was caused by circumstances beyond the wage earn-

er’s control and that his children would not, for this

reason, be barred from receiving benefits.

There is nothing in the record to indicate that Gregory

Norton, Sr. had regularly or continuously lived with or

supported his son and was prevented from so doing on

the date of his death by circumstances beyond his con-

trol. The only evidence of any support at all is the small

gifts provided when the baby was born and the attempt

to establish a military pay allotment. When faced with

evidence of only sporadic and insignificant contributions

of support, the court found in Johnson v. Finch, C.C.H.

Unemployment Insurance Reports, 7 16,646 (N.D.Tex.

1972) that the wage earner had not been supporting his

illegitimate child, as contemplated by the statute. It fol-

lows a fortiori that a single, insignificant contribution

does not qualify either. Although plaintiff argues that

Gregory Norton, Sr. had done all within his power to

support his illegitimate child, this is a conclusion the

court cannot reach. Gregory Norton, Sr. made no real

overture of support until he attempted to take out the

military pay allotment and evidence is lacking to sup-

port the diligence of his effort in that regard. All that

ean be said conclusively about his attempt to support

his son is that it failed and his support never began. An

unsuccessful attempt to do an act required by the Social

Security Act is not compliance. Moore v. Richardson, 345

F. Supp. 75 (W.D.Va. 1972). The Secretary’s decision

must, therefore, be affirmed.

Having found the Secretary’s decision to be correct,

the court must now consider plaintiff’s constitutional

claim. Plaintiff contends that § 416(h) (3) (ce) (ii) vio-

lates the equal protection guarantee implicit in the Fifth

Amendment of the Constitution by impermissibly dis-

criminating against a certain class of illegitimate chil-

dren. On the basis of the Supreme Court’s decision in

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164

(1972), the court is of the opinion that this claim raises

a substantial constitutional issue which must, under 28

U.S.C. § 2282, be resolved by a district court of three

judges. This court shall request the Chief Judge of this

Circuit to convene a three-judge court to decide the con-

stitutionality of the challenged statute. The request for

certification as a class action and for a preliminary in-

junction shall be referred to the three-judge court.

Accordingly, the Secretary is entitled to summary

judgment in his favor on the issue of whether his deci-

sion that Gregory Norton, Jr. was not entitled to child’s

insurance benefits was supported by substantial evidence.

/s/ C. Stanley Blair

C. STANLEY BLAIR

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. 72-271-B

GREGORY B. NorRTON, JR., a minor, by his next friend,

Marian B. Chiles, Individually and on behalf

of all others similarly situated

ELLIOT RICHARDSON, Secretary,

Department of Health, Education and Welfare,

Individually and in his official capacity

JUDGMENT

In accordance with the court’s opinion of even date

finding that the decision of the Secretary denying child’s

insurance benefits to the plaintiff was supported by sub-

stantial evidence, summary judgment on that issue is

hereby entered in favor of the Secretary this 22nd day

of December, 1972.

/s/ C. Stanley Blair

C. STANLEY BLAIR

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. 72-271-B

GREGORY B. NORTON, JR., a minor, by his next friend,

Marian B. Chiles, Individually and on behalf

of all others similarly situated

CASPAR WEINBERGER, Secretary,

Department of Health, Education and Welfare,

Individually and in his official capacity

C. Christopher Brown and Michael Berman, of Baltimore,

Maryland, for plaintiffs.

Harlington Wood, Jr., Assistant Attorney General, Har-

land F. Leathers and Bruce E. Titus, Attorneys, Depart-

ment of Justice, Washington, D. C.; George Beall, United

States Attorney for the District of Maryland, and Jeffrey

White, Assistant United States Attorney, of Baltimore,

Maryland, for defendant.

Before Winter, Circuit Judge, and Murray and Blair,

District Judges.

Filed: Sept. 14, 1973

OPINION

Blair, District Judge.

Gregory Norton, Jr., on behalf of himself and all others

similarly situated, challenges the constitutionality of

$ 216(h) (3) (C) (ii) of the Social Security Act, 42 U.S.C.

§ 416 (h) (3) (C) (ii) and seeks to restrain its enforce-

ment. This three judge court has been convened to decide

the constitutional question. The case is before the court

on cross-motions for summary judgment, the essential

facts not being in dispute.

To understand the issues involved, it is important at

the outset to examine the pertinent statutory framework.’

Under the Social Security Act, the child of a deceased

wage earner who was dependent on the wage earner at

the time of the wage earner’s death is entitled to child’s

insurance benefits. 42 U.S.C. § 402(d)(1)(C) (ii). A

legitimate child, being the wage earner’s offspring and

presumed dependent, automatically qualifies for benefits.

42 U.S.C. §§ 416(e) (1) and 402(d) (3) (A). An illegiti-

mate child also can receive benefits, but he or she must

first qualify under one of several alternative provisions.

An illegitimate child who could, under the intestacy law

of the wage earner’s domicile, inherit the wage earner’s

personality is eligible for benefits upon proof that the

wage earner was the parent and that at the time of

death, the wage earner lived with or contributed to the

support of the child. 42 U.S.C. §§ 416(h) (2) (A), 416

(e) (1), and 402(d) (3). An illegitimate who is the child

of a marriage invalid because of the existence of an im-

pediment when the marriage ceremony was performed

is entitled to receive benefits. 42 U.S.C. §§ 416(h) (2)

(B), 416(e) (1) and 402(d) (3). Or, an illegitimate may

qualify for benefits if it is shown that the wage earner

prior to his death either (1) had acknowledged in writ-

ing that the illegitimate child was his son or daughter,

(2) had been decreed by a court to be the father of the

illegitimate child, or (3) had been ordered by a court

to contribute to the support of the illegitimate child be-

cause he was the father. 42 U.S.C. §§ 416(h) (3) (C) (i),

416(e)(1) and 402(d) (3). Those illegitimate children

unable to provide a written acknowledgment, a paternity

decree, or a support order may still qualify for benefits

under 42 U.S.C. § 416(h) (3) (C) (ii), the challenged

provision, if the wage earner is shown by evidence satis-

factory to the Secretary to be the father and the wage

earner was living with or contributing to the support of

* The pertinent provisions are set out in an appendix. Emphasis

has been added to the language directly relevant to the court’s

explication of the statute.

the illegitimate child at the time of his death. 42 U.S.C.

$$ 416(h) (3) (C) (ii), 416(e) (1) and 402(d) (3).

Gregory Norton, Jr., an illegitimate child, sought

child’s insurance benefits after the death of his reputed

father, Gregory Norton, Sr. Not being able to provide a

written acknowledgment of paternity. and a paternity

decree or support order never having been obtained dur-

ing the lifetime of Gregory Norton, Sr., he was forced

to rely on § 416(h) (8) (C) (ii) to establish his right to

benefits. He was denied benefits by the Secretary of

H.E.W. after the appeal board affirmed the hearing ex-

aminer’s conclusion that he failed to meet the require-

ments of § 416(h) (3) (C) (ii). Although the hearing ex-

aminer found Gregory Norton, Jr. was the son of Greg-

ory Norton, Sr., he held that Gregory Norton, Sr. was

not living with or contributing to the support of his son

at the time of his death. Suit was thereafter filed on

Gregory Norton, Jr.’s behalf by his maternal grand-

mother, Marian B. Chiles, in the federal district court.

Alternative relief was prayed. Plaintiff asked the court

to either rule that the Secretary’s decision denying bene-

fits for failure to meet § 416(h) (3) (C) (ii)’s “living

with or support by” requirement was incorrect and that

Gregory Norton, Jr. had in fact qualified or, if the

Secretary’s decision was correct, to declare § 416 (h) (3)

constitutional, enjoin its further enforcement, and direct

the Secretary by mandamus-like writ to commence pay-

ments.

The single judge court, addressing the nonconstitu-

tional claim first, Wyman v. Rothstein, 398 U.S. 275,

276 (1970); Rosado v. Wyman, 397 U.S. 397, 403

(1970), found the Secretary’s decision was based on

“substantial evidence” and correct under the terms of

the statute. 42 U.S.C. §$405(g). The court then ex-

amined the constitutional claim, found it to be substan-

tial, and requested the convening of a statutory three

judge court to decide the constitutional question. See

Norton v. Richardson, 352 F.Supp. 596 (D.Md. 1972).

~~ oOo

Two preliminary points should be resolved before the

merits of the constitutional issue are reached.

Plaintiff, at the oral hearing, requested this court

to review the single judge’s ruling as to the correctness

of the Secretary’s decision.

Earlier, plaintiff had requested the single judge to

review the Secretary’s decision, although the request

was predicated on the condition that the single judge

find that the Secretary’s decision was not supported by

substantial evidence. The single judge proceeded to de-

cision of the question and concluded otherwise. Plain-

tiff now urges that the three-judge court has jurisdic-

tion to review the Secretary’s decision and indeed should

do so, because if it rules that the Secretary’s decision

was erroneous because not supported by substantial evi-

dence, the necessity of a decision on the constitutional

question would be avoided. Wyman v. Rothstein, 398

U.S. 275, 276 (1970); Rosado v. Wyman, 397 U.S. 397,

403 (1970).

The right of a single judge on his own motion to de-

cide nonconstitutional questions before asking that a

-three-judge court-be-convened..is the ~subject~ of .sqme, -

dispute between the circuits.* It is a power which has

been exercised, albeit in factual circumstances distin-

guishable from the case at bar. Manifestly, the writer

was satisfied that he possessed the power. The three-

judge court, however, takes no position on the correct-

ness of the writer’s views, because it is satisfied that

the single judge’s determination was correct. Stated

otherwise, the three-judge court finds it unnecessary to

determine if the single judge did or did not have au-

thority to decide nonconstitutional questions on his own

2 Compare Bryant v. Carleson, 444 F.2d 353, 358-59 (9th Cir.),

cert. denied, 404 U.S. 967 (1971); Kelley v. Illinois Bell Telephone

Co., 325 F.2d 148, 151 (7th Cir. 1963) ; Chicago, Duluth & Georgian

Bay Transit Co. v. Nims, 252 F.2d 317, 319 (6th Cir. 1958) ; Doe v.

Lavine, 347 F.Supp. 357, 359-60 (S.D.N.Y. 1972); Connecticut

Union of Welfare Employees v. White, 55 F.R.D. 481, 485 (D.Conn.

1972); with Weintraub v. Hanrahan, 435 F.2d 461, 463 (7th Cir.

1970) ; Fort v. Daley, 431 F.2d 1128, 1132 n. 4 (7th Cir. 1970).

motion because if the question of the substantiality of

the evidence to support the Secretary’s determination

were before it, it would arrive at the same result for

the reasons advanced by the single judge.

The other preliminary point requiring initial con-

sideration concerns plaintiff’s request that the case be

certified as a class action. The single judge deferred

ruling on this point until this court was convened.’

See, 352 F.Supp. at 601. Although the defendant has

opposed such certification, the court believes the request

is proper and should be granted. This action is clearly

one coming under Rule 23(b)(2) in that “the party

opposing the class has acted or refused to act on grounds

generally applicable to the class, thereby making appro-

priate final injunctive relief or corresponding declaratory

relief with respect to the class as a whole. .. .” More-

over, the court finds the prerequisites of Rule 23(a) to

have been met since “(1) the class is so numerous that

joinder of all members is impractical, (2) there are

questions of law or fact common to the class, (3) the

claims or defenses of the representative parties are

typical of the claims or defenses of the class, and (4)

the representative parties will fairly and adequately

protect the interests of the class... .” As réquired by

Rule 23(c), the court defines the plaintiff class in this

suit to include all of those persons otherwise eligible

for child’s insurance benefits under 42 U.S.C. § 402(d)

(1) but who eannot qualify for such child’s insurance

benefits solely because they cannot meet the requirement

of 42 U.S.C. § 416(h) (3) (C) (ii) that they be living

with or supported by their father on the date of his

death.

II.

The constitutional challenge plaintiff presents is that

42 U.S.C. § 416(h) (3) (C) (ii), as written, violates the

due process clause of the Fifth Amendment, which pro-

’ Plaintiff also requested a preliminary injunction, which request

was properly referred by the single judge to this court. 28 U.S.C.

§§ 2282, 2284(5). Because the court today considers final relief,

the preliminary injunction request is moot.

scribes irrational discrimination in federal legislative

classifications. United States Dept. of Agriculture V.

Moreno, 41 U.S.L.W. 5105 (June 25, 1973); United

States Dept. of Agriculture v. Murry, 41 U.S.L.W.

5099 (June 25, 1973); Frontiero v. Richardson, 41

U.S.L.W. 4609 (May 14. 1973); Richardson v. Belcher,

404 J.S. 78 (1971); Shapiro v. Thompson, 394 US.

618 (1969); Schneider v. Rusk, 377 U.S. 163 (1964);

Bolling v. Sharp, 347 U.S. 497 (1954). Plaintiff con-

tends that § 416(h) (3) (C) (ii) impermissibly discrim-

inates against a sub-class of illegitimate children who,

although they can prove their paternity, cannot qualify

for child’s insurance benefits because § 416(h) (3) (C)

(ii) requires that they be living with or supported by

their father on the date of his death. Plaintiff contends

the requirement of proof that the father lived with or

supported his illegitimate child is irrational and that

this court, by a declaration of unconstitutionality and

injunction, should excise the offending requirement from

§ 416(h) (3) (C) (ii) leaving the remainder of that sec-

tion so as to permit any illegitimate child who can prove

paternity able to qualify for child’s insurance benefits

if otherwise eligible.

Because the equal protection clause of the Fourteenth

Amendment prohibits irrational discrimination in state

legislative classifications, courts have utilized an equal

protection type of analysis in evaluating federal legisla-

tion under the due process clause of the Fifth Amend-

ment. E.g., United States Dept. of Agriculture v. Moreno,

41 U.S.L.W. 5105 (June 25, 1973); Frontiero v. Rich-

ardson, 41 U.C.L.W. 4609 (May 14, 1973); Richardson

v. Belcher, 404 U.S. 78 (1971). Before considering plain-

tiff’s claim, it is first necessary to decide what equal pro-

tection standard should apply. Plaintiff contends strict

scrutiny is appropriate; defendant, on the other hand,

argues for the rational basis test.

Traditionally, two equal protection approaches have

been used by the courts in evaluating legislation. Under

one approach, commonly referred to as the “rational

basis” test, a statute is evaluated to determine if it has

some conceivably valid aim, and if the classification util-

ized in any way furthers that end.‘ The statute is pre-

sumed valid and any proper and related means are suffi-

cient to uphold the statute against an equal protection

challenge. McGowan v. Maryland, 366 U.S. 420 (1961);

Two Guys from Allentown v. McGinley, 366 U.S. 582

(1961). Only statutes, aimed at an end beyond the

state’s power to legislate, or which are patently arbitrary

or lacking in rational justification are invalid under the

rational basis test. Turner v. Fouche, 396 U.S. 346

(1970) ; Slanner v. Oklahoma, 316 U.S. 5385 (1942). See

generally, Note, “Developments in the Law: Equal Pro-

tection”, 82 Harv.L.Rev. 1065 (1969). Under the second

approach, a legislative classification is evaluated to de-

termine if it is based upon suspect criteria or imposes

upon a fundamental, constitutionally secured right. If

so, it is “inherently suspect” and “strict scrutiny” will

be applied and the statute, no longer presumed constitu-

tional, will be invalid under the equal protection clause

unless it is directly related to a compelling governmental

interest. Statutes subject to strict scrutiny bear a heavy

burden of justification which few, if any, survive. In Re

Griffiths, 41 U.S.L.W. 5143 (June 25, 1973) ; Graham v.

Richardson, 403 U.S. 365 (1971); Shapiro v. Thompson,

394 U.S. 618 (1969); McLaughlin v. Florida, 379 U.S.

184 (1964). See generally, Note, “Developments in the

Law: Equal Protection”, supra. Because of the disparity

of results of the two approaches, many modern equal

protection controversies have focused on whether a funda-

mental right or suspect criteria was involved. If so, the

statute was usually held invalid; if not, the statute was

frequently upheld.

The current Supreme Court in utilizing the rational

basis test appears to now require legislation to have a

closer nexus to its purpose than was customarily de-

manded under the rational basis test in earlier cases.

Strict scrutiny, however, is still applied as a test when

classifications are suspect or fundamental constitutional

* Courts have often shown considerable imagination in this regard.

See, for example, Goesaert v. Cleary 335 U.S. 464 (1964); Kotch

v. River Port Pilot Comm’rs., 330 U.S. 552 (1947).

rights are implicated. Thus, while a suspect class or

fundamental right will still invoke strict scrutiny—~.g.,

In Re Griffiths, supra—the court, when dealing with

other classifications under the rational basis test, ap-

pears more willing to examine the relationship between

a statute’s means and ends than earlier courts and to

require that the relationship be substantial. The means,

it would seem, under the rational basis analysis, must

bear a direct and primary correlation to an actual statu-

tory goal or purpose. This new equal protection position

was lucidly discussed by Professor Gunther in “The Su-

preme Court 1971 Term”, 86 Harv.L.Rev. 1 (1972) and

has been recognized by the Fourth Circuit in Eslinger v.

Thomas, No. 72-1542 (4th Cir. March 28, 1973). See

also, Mr. Justice Rehnquist’s dissent in Weber v. Aetna

Casualty Co., 406 U.S. at 177 (1972).

Closely analyzing plaintiff’s claim—as was done in

San Antonio School District v. Rodriguez, 41 U.S.L.W.

4407 (March 21, 1973)—it is clear that this is not a

ease calling for the application of strict scrutiay. To

begin, no suspect class is here involved. No case has yet,

although there have been ample opportunities, held that

a classification based upon illegitimacy is per se suspect

as a classification involving status of birth. Moreover,

the class § 416(h) (3) (C) (ii) establishes is not cotermi-

nous with the class of illegitimates; rather, the class it

establishes is a specific sub-class of the group of illegiti-

mates as a whole, for it is clear that many illegitimates

ean qualify under § 416(h) (3) (C) (ii) and other provi-

sions in the Act. Jiminez v. Richardson, 353 F.Supp.

1356 (N.D.IIl. 1973). Strict scrutiny is thus not de-

manded because a suspect classification is at hand. And

neither is there a fundamental, constitutional right of

which § 416(h) (3) (C) (ii) deprives a class. It has been

repeatedly held by recent Supreme Court decisions that

there is no constitutional right to social welfare and

that strict scrutiny does not apply to welfare legislation.

Jefferson Vv. Hackney, 406 U.S. 535 (1972); Richardson

v. Belcher, 404 U.S. 78 (1971); Dandridge v. Williams,

397 U.S. 471 (1970).

While strict scrutiny does not apply, it would appear

this case calls for the application of the new rational

basis approach. Weber v. Aetna Casualty Co., 406 U.S.

164 (1972), perhaps the Supreme Court’s most defini-

tive pronouncement on the equal protection rights of

illegitimates, emphasized the new approach. See also, Mr.

Justice Rehnquist’s dissent, supra at 177. In accordance

with the direction of the Supreme Court’s latest equal

protection position, the court shall examine § 416 (h) (3)

a substantial relationship to the purpose of the Social

Security Act and is free of invidious discrimination.

Reed v. Reed, 404 U.S. 71 (1971); Eslinger v. Thomas,

No. 72-1542 (4th Cir. March 28, 1973).

Several Supreme Court decisions have considered laws

dealing with illegitimacy. It is within the framework of

these decisions that the examination of § 416(h) (3) (C)

(ii) must proceed. The first two cases—Levy v. Louisi-

ana, 391 U.S. 68 (1968) and Glona v. American Guar-

antee Co., 391 U.S. 73 (1968)—invalidated judicially

construed restrictions in the Louisiana wrongful death

statute which denied a right to recover on the basis of

illegitimacy. In Levy, the court ruled that Louisiana

could not prevent an illegitimate child from recovering

for the wrongful death of its mother solely because the

child was illegitimate where, had the child been legiti-

mate, a right of recovery would have been provided. The

court assumed the illegitimate child was dependent on its

deceased mother in the economic, biologic, and spiritual

sense and “in her death suffered wrong in the sense any

dependent would.” Rejecting the argument that the de-

nial of a right of recovery promoted the morals and

general welfare of the community by discouraging il-

legitimacy, the court found there was no sufficient reason

for permitting a tort-feasor to escape his wrong merely

because a child is illegitimate. The court, in concluding

the statute denied equal protection, underscored the lack

of any relationship between the legitimacy or illegitimacy

of the child and the wrong inflicted upon the mother.

Glona, the companion case to Levy, similarly declared

that the equal protection clause prevented Louisiana from

denying a mother a right to recover for the death of her

child because the child was illegitimate. Louisiana’s ar-

gument that its law discouraged sin was dismissed as

“far-fetched,” the court noting,

It would, indeed, be farfetched to assume that women

have illegitimate children so they can be compen-

sated in damages for their death. A law which

creates an open season on illegitimates in the area

of automobile accidents gives a windfall to tort-

feasors. But it hardly has a casual connection with

the “sin”, which is, we are told, the historic reason

for the creation of the disability. 391 U.S. at 75.

The court recognized the potential for fraudulent asser-

tions of motherhood, but noted that this was a problem

in burden of proof which had no application in cases

where the claimant is “plainly the mother.”

Labine v. Vincent, 401 U.S. 532 (1971), a 5 to 4

decision, affirmed Louisiana’s intestacy law which de-

nied illegitimates the right to inherit from their fathers

even though publicly acknowledged. The court found

Louisiana’s interest in regulating family life and the

disposition of property within its borders to provide

a rational basis for the statute sufficient to withstand

the equal protection challenge. The court distinguished

Levy and Glona with the observation that, since a father

could leave part of his property to a legitimated child

(i.e.—one who was publicly acknowledged) the state had

not erected an insurmountable barrier to the child’s

recovery, as was the case in the previous two decisions.

The court felt that Levy and Glona did not prevent a

state from ever treating illegitimates differently than

legitimates and that Louisiana’s disparity of treatment

in its intestacy laws was constitutionally permissible.

Later decisions appear to have eroded the vitality of

the majority’s opinion in Labine and indicate that the

minority view of the four dissenting judges, all of whom

are still on the Court, is more in line with the Court’s

current stance. The minority opinion, authored by Mr.

Justice Brennan, found the Louisiana intestate statute

to invidiously discriminate against illegitimates without

rational justification and that the classifications estab-

lished in the statute bore no intelligible or proper re-

lationship to the consequences flowing from it. Mr.

Justice Brennan noted that in Levy, an acknowledged

illegitimate could have recovered and that, therefore,

Levy did not involve an insurmountable barrier as the

majority supposed. Moreover, he opined that merely

because a discrimination fell short of providing an in-

surmountable barrier did not immunize it from the

Fourteenth Amendment. In considering Louisiana’s in-

terest in dealing with problems of proof and reducing

the opportunity for error, he stated that when formalities

such as a public acknowledgment had been complied with,

problems of proof abate.

When a father has formally acknowledged his child

or gone through any state authorized formality for

declaring paternity, or when there has been a court

judgment of paternity, there is no possible difficulty

of proof, and no opportunity for fraud or error.

This purported interest certainly can offer no jus-

tification for distinguishing between a formally ac-

knowledged illegitimate child and a legitimate one.

401 U.S. at 552.

He felt that Louisiana’s intestate statute was founded

on the state’s official policy of discrimination against

illegitimates in matters of succession and inheritance

and could not be justified as “a legislative judgment

about the probable wishes of the deceased or the desires

of most persons in similar situations.” He recognized

a contrary presumption when a father has made a public

acknowledgment, commenting that “logic and common

experience also suggest that a father who has publicly

acknowledged his illegitimate child will mot generally

intend to disinherit his child.” (emphasis original).

A key decision for this present case was rendered in

Weber v. Aetna Casualty Co., 406 U.S. 164 (1972),

where the court invalidated under the equal protection

clause a section of Louisiana’s workman’s compensation

statute which denied dependent, unacknowledged illegiti-

mate children the right to share equally with acknowl-

edged illegitimate and legitimate children. In Weber, the

deceased, Henry Clyde Stokes, died of injuries received

in his employment, leaving four legitimate children and

two illegitimate children by the woman he had been

living with since his wife’s commitment to a mental

institution. With the exception of one of the illegitimate

children, who was born posthumously, all of the children,

including the one illegitimate child, were living with

and supported by him at the time of his death. Under

the Louisiana law, unacknowledged illegitimate children

were entitled to benefits only to the extent such benefits

were not exhausted by the claims of the legitimate and

acknowledged illegitimate children. Henry Stokes’ illegi-

timate children were not acknowledged and could not be

acknowledged under Louisiana law due to Stokes’ still

existing marriage to his institutionally-committed wife.

Because of a large tort settlement against a third party

tort-feasor in favor of the legitimate children alone, the

workman’s compensation benefits were extinguished, with

the illegitimate children receiving neither part of the

settlement nor any workmen’s compensation benefits.

The court found the statute to lack a rational basis

for its discrimination, following as precedent its decision

in Levy which proscribed, in the court’s view, inequality

of treatment of dependent illegitimate children and dis-

tinguishing its earlier decision in Labine as reflecting

“the traditional deference to a state’s prerogative to

regulate at death the disposition of property within its

borders.” The court placed primary emphasis upon the

fact that, although dependency was a prerequisite to

anyone’s recovery, under the Louisiana workman’s com-

pensation statute, equal dependents were treated un-

equally.

So far as the record shows, the dependency and

natural affinity of the unacknowledged illegitimate

child for her father were as great as those of the

four legitimate children whom Louisiana law has al-

lowed to recover. The legitimate children and the

illegitimate child all lived in the home of the de-

ceased and were equally dependent upon him for

maintenance and support. ... The unacknowledged

illegitimate . . . is a dependent child, and as such,

is entitled to rights granted other dependent children.

(emphasis original). 406 U.S. at 169.

The court, again distinguishing Labine, pointed out that

Louisiana had erected an insurmountable barrier for the

illegitimates, since it was impossible for their fathers

to acknowledge them so they would receive equal benefits

under the statute. Rejecting the argument that the clas-

sification furthers Louisiana’s interest in family rela-

tionships, the court concluded that “(t]he inferior classi-

fication of dependent unacknowledged illegitimates bears,

in this instance, no significant relationship to those

recognized purposes of recovery which workman’s com-

pensation statutes commendably serve.”

The court, in arriving at its decision in Weber,

took particular effort to point out that its decision in

no way altered “the state interest in minimizing prob-

lems of proof. . . .” Louisiana’s statute, while making

dependency a prerequisite for recovery, also conclusively

presumed that dependency was present for those children

under 18 who were living with the parent at the time

of the injury. The court found no fault with limiting

recovery only to actual dependents and accepted the need

to draw arbitrary lines in response to problems of proof.

As the court wrote:

Finally, we are mindful that States have frequently

drawn arbitrary lines in workmen’s compensation

and wrongful death statutes to facilitate potentially

difficult problems of proof. Nothing in our decision

would impose on state court systems a greater bur-

den in this regard. By limiting recovery to de

pendents of the deceased, Louisiana substantially les-

sens the possible problems of locating illegitimate

children and of determining uncertain claims of

parenthood. Our decision fully respects Louisiana’s

choice on this matter. It will not expand claimants

for workmen’s compensation beyond those in a direct

blood and dependency relationship with the deceased

and avoids altogether diffuse questions of affection

and affinity which pose difficult probative problems.

Our ruling requires equality of treatment between

two classes of persons the genuineness of whose

claims the State might in any event be required to

determine. 406 U.S. at 174.

The court’s view on this point, as will be related further

on, is of crucial importance to this present case.

The next Supreme Court decisions on illegitimacy came

in summary affirmances of two three judge court cases

declaring unconstitutional §403(a) of the Social Se-

curity Act as a denial of Fifth Amendment due process.

Davis v. Richardson, 342 F.Supp. 588 (D. Conn.), af-

firmed, 409 U.S. 1069 (1972); Griffin v. Richardson,

346 F.Supp. 1226 (D. Md.), affirmed, 409 U.S. 1069

(1972). See also, Morris v. Richardson, 346 F.Supp. 494

(N.D. Ga. 1972), vacated on other grounds, 41 U.S.L.W.

3390 (January 15, 1973); Maracle v. Richardson, 348

F.Supp. 234 (S.D.N.Y. 1972); Williams v. Richardson,

347 F.Supp. 544 (W.D. N.C. 1972). Section 403(a) of

the Social Security Act limited the benefits § 416(h) (3)

children received to those that remained only after

other qualifying children received a full share out of a

maximum family allowance. Both Davis and Griffin

found this discrimination to lack a rational relationship

to the purpose of the Social Security Act. The courts

noted that the Social Security Act set up a class of

beneficiaries eligible for benefits but who were arbitrarily

denied full participation rights. They pointed to the

absence of proof problems resulting from the need of the

§ 416(h) (3) children to qualify initially and to the strong

probability of actual dependency which must have been

demonstrated to meet the requirements of § 416(h) (3).

The courts discounted the government’s argument that

$ 403(a) promoted family relationships and discouraged

illegitimacy and found that § 403(a) denied due process

of law.

The last Supreme Court decision instructive on this

question was Gomez v. Perez, 41 U.S.L.W. 4174 (January

17, 1973).° Texas, while granting legitimate children a

5 See also, Linda R.S. v. Richard D., 41 U.S.L.W. 4371 (March

5, 1973), an illegitimacy case which was dismissed for lack of

standing.

judicially enforceable right to support from their fathers,

denied the same to illegitimates. For this reason, the

Texas courts denied the plaintiff’s suit for support, al-

though plaintiff had established paternity to the court’s

satisfaction. Juxtaposing the right afforded legitimate

children with the denial of that right to illegitimate

children, the court found an “unmistakeable” violation

of equal protection rights. In the court’s words:

Under these decisions, a State may not invidiously

discriminate against illegitimate children by deny-

ing them substantial benefits accorded children gen-

erally. We therefore hold that once a State posits

a judicially enforceable right on behalf of children

to needed support from their natural fathers there

is no constitutionally sufficient justification for deny-

ing such an essential right to a child simply be-

cause her natural father has not married her mother.

For a State to do so is “illogical and unjust.” 41

U.S.L.W. at 4175.

While recognizing the “lurking problems with respect

to proof of paternity” and admitting that they “are not

to be lightly brushed aside,” the court held that “neither

can they be made into an impenetrable barrier that

works to shield otherwise invidious discrimination.”

Other Supreme Court cases, although not directly con-

cerned with illegitimacy, have dealt with the problem

of discrimination in social welfare legislation. The gen-

eral principle established by these decisions is that in-

vidious discrimination which is not rationally related to

the statute’s purpose is impermissible, United States

Dept. of Agriculture v. Murry, 41 U.S.L.W. 5099 (June

25, 1973) ; United States Dept. of Agriculture v. Moreno,

41 U.S.L.W. 5105 (June 25, 1973). However, the cases

recognize also that social welfare legislation cannot be

expected to be surgically precise in its classification

and the existence of some discrimination incidental to the

statute’s goal and the means used to achieve it will not

make the statute constitutionally infirm under either the

Fifth or Fourteenth Amendments. Jefferson v. Hackney,

406 U.S. 535 (1972); Richardson v. Belcher, 404 U.S.

78 (1971); Dandridge v. Williams, 397 U.S. 471 (1970).

What the Court stated in Dandridge, supra at 485, in

regard to equal protection:

In the area of economics and social welfare, a

State does not violate the Equal Protection Clause

merely because the classifications made by its laws

are imperfect. If the classification has some “rea-

sonable 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.”

it later reaffirmed in Richardson, supra at 84, for due

process :

We have no occasion, within our limited function

under the Constitution, to consider whether the

legitimate purposes of Congress might have been

better served by applying the same offset to re-

cipients of private insurance, or to judge for our-

selves whether the apprehensions of Congress were

justified by the facts. If the goals sought are

legitimate, and the classification adopted is rationally

related to the achievement of those goals, then the

action of Congress is not so arbitrary as to violate

the Due Process Clause of the Fifth Amendment.

The child’s insurance benefits provision of the Social

Security Act is founded on the dual concepts of parent-

age and dependency. To be eligible for benefits, a claim-

ant must be both the child of and dependent upon the

deceased wage earner. 42 U.S.C. § 402(d) (1). The pur-

pose of the Act, consistent with this dual concept, is to

replace the support lost to a child when the wage earner

dies. What must now be determined is whether § 416

(h) (3) (C) (ii)’s requirements bear a direct and sub-

stantial relationship to this purpose.

Plaintiff, not disputing the dependency focus, argues

that the Social Security Act does not require actual

dependency, but is satisfied by potential dependency.

What the benefits provided are intended to replace is

not actual support, but the loss of the right to support.

While this contention is facilitating to plaintiff’s posi-

tion, it is not, in this court’s opinion, consistent with

the Act’s purpose, intent, or requirements. In amend-

ing the Social Security Act to include § 416(h) (3), the

Senate Report described the Act as “a national program

that is intended to pay benefits to replace the support

lost by a child when his father .. . dies. . . .’ Senate

Report No. 404, 1965 U.S. Code Congressional and Ad-

ministrative News, p. 2050. The cases interpreting the

child’s insurance provisions have similarly concluded that

the Act is founded on actual dependency. Davis v. Rich-

ardson, 342 F.Supp. 588 (D. Conn.), affirmed, 409 U.S.

1069 (1972); Jiminez v. Richardson, 353 F.Supp. 1356

(N.D. Ill. 1973); Watts v. Veneman, 334 F.Supp. 482

(D. D.C. 1971), affirmed in part, reversed in part on

other grounds, 476 F.2d 529 (D.C.C. 1973). Moreover,

the mere fact that the provision plaintiff challenges re-

quires proof of actual dependency belies the conclusion

that the Act is directed to potential dependency.*

6 Plaintiff cites, in suport of his position that potential depend-

ency or the right to support are all that is required, a section of

House Senate Conference Committee Report on the 1965 Amend-

ment to the Social Security Act adding 42 U.S.C. § 416(h)(3), 111

Cong. Record 18387, which reads as follows:

A child would be paid benefits based on his father’s earnings

without regard to whther he has the status of a child under

State inheritance laws if the father was supporting the child

or hed a legal obligation to do so.

While the report speaks of paying benefits if “the father was sup-

porting the child or had a legal obligation to do so,” it was not

speaking of § 416(h)(3)(C)(ii) alone, but was also talking in

reference to §416(h)(3)(C)(i) which established the paternity

decree, court order, or written acknowledgment test. Illegitimates

who could establish claims under § 416(h) (3) (C)(i) would, in most

instances, legally be entitled to support from their fathers. Such

was not always the case with illegitimates unable to meet § 416(h)

(3)(C)(i)’s criteria. See, e.g., Gomez v. Perez, 41 U.S.L.W. 4174

(January 17, 1973). This legislative history does not, from this

court’s reading, establish that the Social Security Act is based on

potential, rather than actual, dependency. Rather, the report is de-

scriptive of the Act’s effect.

The whole thrust of § 416(h) (3) (C) (ii) is that of

determining both the biological connection and the de-

pendency required by the Act for benefits. The provision

requires some proof sufficient to the Secretary of actual

paternity. It then requires proof that the illegitimate

child whose paternity is proven establish either that he

or she actually was supported by the wage earner on the

date of his death or, alternatively, that he or she lived

with the wage earner on the date of his death, the pre-

sumption being that a wage earner’s children who live

with him are supported by him. Those children who prove

§ 416 (h) (3) (C) (ii)’s dual elements satisfy the Social

Security Act’s prerequisites of being the wage earner’s

child and dependent upon him, and, if otherwise quali-

fied, they share equally with all other qualified dependent

children of the deceased wage earner.

A statute can treat illegitimate children differently

than legitimate children as long as the distinction is

based upon rational grounds. Labine v. Vincent, 401 U.S.

532 (1971); cj. Weber v. Aetna Causalty Co., 406 U.S.

164 (1972); Levy v. Louisiana, 391 U.S. 68 (1968) ;

Glona v. American Guarantee Co., 391 U.S. 73 (1968).

It is not invidious discrimination to require § 416(h) (3)

nity and dependency when such is not required of legiti-

mates and those illegitimates qualifying under § 416 (h)

(2) (B) or § 416(h) (3) (C) (i). The parentage of legiti-

mate children is not in issue and it is clearly rational to

presume the overwhelming number of legitimate children

are actually dependent upon their parents for support.

Likewise, the parentage of the children of an invalid mar-

riage would not normally be in dispute and such children

would typically live in the wage earner’s home or be sup-

ported by him. Although the illegitimate § 416(h) (3)

§ 416 (h) (3) (C) (ii) children must, it is rational to afford

them the same presumptions as the legitimate children

or children of invalid marriages. For those with a pater-

nity decree or support order, a judicial tribunal will have

already addressed the parentage issue and resolved it for

the illegitimate child. When an order of support is en-

tered by a court, it is reasonable to assume compliance

occurred. A paternity decree, while not necessarily or-

dering support, would almost as strongly suggest sup-

port was subsequently obtained. Conceding that a written

acknowledgment lacks the imprimatur of a judicial pro-

ceeding, it too establishes the basis for a rational pre-

sumption. Men do not customarily affirm in writing their

responsibility for an illegitimate child unless the child is

more likely to provide it support than one who does not.

To presume the acknowledged child’s paternity and de-

pendency is rational.

Unlike the statute in Weber, which treated equal de-

pendents unequally, the Social Security Act now affords

full equality of treatment between dependent legitimates

and dependent illegitimates. It does not treat legitimate

children differently from illegitimate children; what it

does is treat differently those likely to be the dependent

children of the wage earner from those not as likely to be

by requiring further or substantiating proof from the

latter. That Congress has permitted some simplified, for-

malistic proof to suffice for the § 416(h) (3) (C) (i) il

legitimate children is not impermissible discrimination.

The dissent in Labine recognized the propriety of estab-

lishing formalities like an acknowledgment to surmount

problems of proof. In like manner, the Weber court, as

before mentioned, recognized that arbitrary lines as to

problems of proof occasionally must be made and empha-

sized that its decision fully respected the statutory choice

as long as those equally within the statute’s purpose were

not treated unequally under the statute.’

The Social Security Act has not placed impenetrable

barriers of proof before illegitimates who seek to qualify.

Labine v. Vincent, 401 U.S. 582 (1971); cf. Weber v.

Aetna Casualty Co., 406 U.S. 164 (1972). It provides in

7Other arbitrary lines having nothing to do with illegitimacy

are also perforce drawn in defining benefit entitlement consistent

with the Act’s purpose. For instance, a 19-year-old who was not a

full time student or disabled, although perhaps dependent, would

not be eligible for benefits. 42 U.S.C. §402(d) (1)(B). Nor would

a 16-year-old married child of the wage carner, no matter how de-

pendent, be able to obtain child’s insurance benefits. 42 U.S.C.

§ 402(d)(1)(B).

§ 416 (h) (3) (C) (i) alternative and simplified methods

of proof consistent with the Act’s purpose, and for those

unable to utilize the formalistic methods, it provides a

catch all provision—§ 416(h) (3) (C) (ii) —designated to

enable those the Act intended to cover to qualify. Under

the Social Security Act, an illigitimate child has a variety

of ways of demonstrating entitlement, none of which are

impervious to any illegitimate factually within the Act’s

intendment.

This is not a situation similar to Gomez Vv. Perez, 41

U.S.L.W. (January 17, 1973), where Texas law afforded

illegitimates no rights while affording rights to legiti-

mates. Here, the Social Security Act permits illegitimates

who can prove entitlement to receive benefits. The court

believes that the Supreme Court in Gomez would have

found no denial of equal protection had Texas law enabled

illegitimates to obtain paternal support to the same ex-

tent as legitimates provided they demonstrated their en-

titlement by proving their paternity to the court. Nor

does this court believe the Gomez court, which recognized

the “lurking problems with respect to proof of paternity,”

would have found a denial of equal protection in requiring

some illegitimates to prove their paternity before sup-

port was ordered when such was not required of legiti-

mates or certain illegitimates who had complied with sta-

tutorily defined formalities regarding the question of

proof.

Plaintiff’s problem—and the underlying reason for

his failure to qualify—is that the child’s insurance bene-

fits provisions of the Social Security Act were never in-

tended to cover Gregory Norton or the class he represents.

These provisions were designed, not to provide support a

child never had, but to replace support lost on the death

of the wage earner upon whom the child depended. This

choice was unquestionably one Congress, faced with finite

resources, could make. Jefferson v. Hackney, 406 U.S.

535 (1972); Richardson v. Belcher, 404 U.S. 78 (1971);

Dandridge v. Williams, 397 U.S. 471 (1970). Although

Gregory Norton, Jr. may well have been the child of

Gregory Norton, Sr., he was never supported by his

father. Because of this lack of dependency, he was never

intended by Congress to receive the wage benefits Greg-

ory Norton, Sr. may have earned. In short, he could not

comply with the dependency prerequisite in the Social

Security Act. And as the Court in Weber made clear, a

statute providing benefits to a deceased’s children can

make dependency a prerequisite to entitlement and there-

by solve potentially difficult problems of proof as long as

all dependents are treated equally.

What plaintiff would have the court do is excise the de-

pendency requirement from the statute and thereby permit

anyone to recover who can prove paternity.* Yet, as has

been said, the Constitution does not = ad of the

legislature, dependency being a permissible legislative cri-

ro Weber. v. Aetna Casualty Co, 496 U.S. 164

(1972). Whatever may be the wisdom or desirability of

providing a dole for all needy children, it is certain that

Congress has not done so with the Social Security Act

and this court, sitting as arbiter of a constitutional issue,

cannot legislate for Congress. The dependency require-

ment is but one of two prerequisites. Just as this court

cannot eliminate the parentage requirement for those

children who were dependent on the wage earner but who

were not the wage earner’s offspring, this court cannot

eliminate the dependency requirement for those children

who can prove their parentage but who were never de-

pendent on the wage earner. :

The lack of coverage for non-dependents in the Social

Security Act distinguishes the present case from Levy V.

Louisiana, 391 U.S. 68 (1968). The Supreme Court in

Levy, assuming the illegitimate child had the same affin-

ity for and dependency on its mother as any legitimate

child, pointed to the lack of any nexus between Louisi-

® Were the court inclined to agree with plaintiff, the relief re-

quested presents practical problems of its own. A court can excise

part of an unconstitutional statutory provision only when the re-

mainder will not alter the purpose, scope or operation of the statute

in a way the legislature never intended. United States v. Jackson,

390 U.S. 570, 585 (1968) ; Fowler v. Gage, 301 F.2d 775, 778 (1962) ;

Poe v. Menghini, 339 F.Supp. 986, 996 (D.C.Kan. 1971). To excise

the dependency requirement from § 416(h) (3) (C) Cii) would com-

pletely alter the purpose, scope and operation of the Social Security

Act. Yet if this provision were struck down in its entirety, plain-

tiff’s claim would be completely barred.

ana’s denial of a right of recovery for wrongful death

and the wrong inflicted the child on the death of its

mother. Such a nexus does exist in the denial of benefits

to Gregory Norton for, never having received support

from his father, there was no support for the Social

Security Act to replace. While the denial of recovery to

the illegitimate child in Levy lacked a connection to the

purpose of the wrongful death statute, the denial of bene-

fits to Gregory Norton directly emanates from the Social

Security Act’s raison d’etre. Moreover, in this present

case, no wrongdoer—i.e. tort-feasor—receives a windfall

from dscrimination against a hapless illegitimate who is

barred from seeking compensation for a wrong done him.

Rather, in this case, a class of children not dependent

seeks the right to share equally with those who are.

Those who never were supported by their wage earner

fathers seek a benefit at the potential expense of others

who were so supported.’

Moreover, past cases have demonstrated that, under

the view that the Social Security Act should be construed

to include rather than exclude, the dependency requirement

will be liberally interpreted to avoid fortuitous hardship.

In Weber, the Court noted that in its view, a posthumous

illegitimate child, albeit unable to exhibit comparable

dependency and affinity to a parent as could a child living

at the time of the parent’s death, should be treated the

same as a posthumous legitimate child. The Social] Secur-

ity Act would provide coverage to a posthumous legiti-

mate child and, under judicial construction, would simi-

larly provide benefits for posthumous illegitimate children

born into a household which the deceased wage earner

® While it is true the benefits in Gregory Norton’s case will never

be used if not for him, such would not always be the case, for the

maximum benefits are frequently exhausted without all eligible

children receiving a full entitlement. See, e.g., Griffin v. Richardson,

346 F.Supp. 1226 (D.Md. 1972) affirmed, 409 U.S. 1069 (1973) ;

Davis v. Richardson, 342 F.Supp. 588 (D.Conn. 1972), affirmed,

409 U.S. 1069 (1973). Although it may not be inequitable or un-

charitable to permit Gregory Norton to receive the benefits in pref-

erence to their lapsing, for the court do so so would, because of

the class action as of the case, if not by stare decisis alone, lay the

groundwork for future inequities.

was either living in or supporting at the time of his

death. This was the specific hulding of the Fifth Circuit

in Wagner v. Finch, 418 F.2d 267 (5th Cir. 1969). Other

courts along this same line have construed the living with

or support by requirement of § 416(h) (3) (C) (ii) liber-

ally in face of hardship, and have indicated that in the

proper case the arbitrary, although permissible, line drawn

that dependency exists at the time of death will not bar

an otherwise just claim. Jackson v. Richardson, CCH Un-

employment Insurance Reports, {16,767 (S.D.W.Va.

1972) ; Crisp v. Richardson, CCH Unemployment Insur-

ance Reports, {16,612 (W.D.N.C. 1972); Bridges Vv.

Sec. of HEW, CCH Unemployement Insurance Reports,

716,480 (E.D.N.Y. 1971); Mobley v. Richardson, CCH

Unemployement Insurance Reports, § 16,439 (W.D.N.C.

1971).

Those courts which have considered the question of

whether the Social Security Act can require proof of

dependency from illegitimates have found the require-

ment permissible.” Beaty v. Weinberger, No. 72-1356

(5th Cir., April 23, 1973) ; Perry v. Richardson, 440 F.2d

677 (6th Cir. 1971) ; Watts v. Venemam, 334 F.Supp. .482

(D.D.C. 1971), affirmed in part, reversed in part on

other grounds, 476 F.2d 529 (D.C.Cir. 1973). This court

also, for the reasons stated, concludes the dependency

requirements of § 416 (h) (3) (C) (ii) do not invidiously

discriminate against illegitimates or lack of rational re-

lation to the Social Security Act’s purpose or intent.

Section 416 (h) (3) (C) (ii) does not, therefore, violate the

due process clause of the Fifth Amendment.

Because of the court’s conclusion, summary judgment

for defendant shall be entered separately under Rule

58, Fed.R.Civ.P. Counsel for defendant, with notice to

counsel for plaintiff, shall submit a form of judgment

10In fact, in every lower court and Supreme Court case where

impermissible discrimination against illegitimates was invalidated,

with the exception of Gomez v. Perez, 41 U.S.L.W. 4174 (January

17, 1973), the illegitimates were either found or assumed by the

court to be actually dependent. The Gomez case is exceptional only

because it dealt with an illegitimate child’s right to become de-

pendent.

in accordance with this opinion. The Clerk is directed to

forward copies of this opinion to counsel.

/s/ Harrison L. Winter

HARRISON L. WINTER

United States Circuit Judge

/8/ Herbert F. Murray

HERBERT F’, MURRAY

United States District Judge

/8/ C. Stanley Blair

C. STANLEY BLAIR

United States District J udge

APPENDIX

42 U.S.C. § 402—Child’s insurance benefits

(d)(1) Every child (as defined in section 416(e) of

this title) of an individual entitled to old-age or disability

insurance benefits, or of an individual who dies a fully or

currently insured individual, if such child —

(A) has filed application for child’s insurance

benefits,

(B) at the time such application was filed was

unmarried and

(i) either had not attained the age of 18 or

was a full-time student and had not attained

the age of 22, or (ii) is under a disability (as

defined in section 423(d) of this title) which

began before he attained the age of 18, and

(i) if such individual is living, at the time

such application was filed,

(ii) if such individual has died, at the timé of

such death, or

(iii) if such individual had a period of dis-

ability which continued until he became entitled

to old-age or disability insurance benefits, or (if

he has died) until the month of his death, at

the beginning of such period of disability or at

the time he became entitled to such benefits,

shall be entitled to a child’s insurance benefit for each

month, beginning with the first month after August

1950 in which such child becomes so... .

(d) (3) A child shall be deemed dependent upon his

father or adopting father or his mother or adopting

mother at the time specified in paragraph (1)(C) of this

subsection unless, at such time, such indiivdual was not

living with or contributing to the support of such child

and—

(A) such child is neither the legitimate nor

adopted child of such individual, or

(B) such child has been adopted by some other

individual.

For purposes of this paragraph, a child deemed to be a

child of a fully or currently insured individual pursuant

to section 416(h)(2)(B) or section 416(h) (3) of this title

shall be deemed to be the legitimate child of such individ-

ual,

42 U.S.C. § 416—Additional definitions

For the purposes of this subchapter—

(e) The term “child” means (1) the child or legally

adopted child of an individual, and (2) a stepchild who

has been such stepchild for not less than one year immedi-

ately preceding the day on which application for child’s

insurance benefits is filed or (if the insured individual

is deceased) not less than nine months immediately pre-

ceding the day on which such individual died .. .

42 U.S.C. § 416 (h) (2)—Determination of family status

(A) In determining whether an applicant is the child

or parent of a fully or currently insured individual for

purposes of this subchapter, the Secretary shall apply such

law as would be applied in determining the devolution of

interstate personal property by the courts of the State in

which such insured individual is domiciled at the time

such applicant files application, or, if such insured in-

dividual is dead, by the courts of the State in which he

was domiciled at the time of his death, or, if such insured

individual is or was not so domiciled in any State, by the

courts of the District of Columbia. Applicants who ac-

cording to such law would have the same status relative

to taking interstate personal property as a child or par-

ent shall be deemed such.

(B) lf an applicant is a son or daughter of a fully

or currently insured individual but is not (and is not

deemed to be) the child of such insured individual under

subparagraph (A), such applicant shall nevertheless be

deemed to be the child of such insured individual if such

insured individual and the mother or father, as the case

may be, of such applicant went through a marriage cere

mony ing in a purported marriage between them

which, but for a legal impediment described in the last

sentence of paragraph (1)(B), would have been a valid

marriage.

42 U.S.C. §416(h) (1) (B) (last sentence)

. . » For purposes of this subparagraph, a legal impedi-

ment to the validity of a purported marriage includes

only an impediment (i) resulting from the lack of dis-

solution of a previous marriage or otherwise arising out

of such previous marriage or its dissolution, or (ii) re-

sulting from a defect in the procedure followed in con-

nection with such purported marriage.

42 U.S.C. § 416 (h)

(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 un-

der paragraph (2) of this subsection, shall nevertheless

be deemed to be the child of such insured individual if:

(i) such insured individual—

(I) had acknowledged in writing that the

applicant is his son or daughter,

(II) had been decreed by a court to be

the father of the applicant, or

(III) had been ordered by a court to

contribute to the support of the apolicant

because the applicant was his son or daugh-

ter,

and such acknowledgment, court decree, or court

order was made before the death of such insured

individual, or

(ii) such insured individual is shown by evi-

dence satisfactory to the Secretary to have been

the father of the applicant, and such insured in-

dividual was living with or contributing to the

support of the applicant at the time such in-

sured individual died.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. 72-271-B

GREGORY B. NORTON, JR, a minor, by his next friend,

Marian B. Chiles, Individually and on behalf of all

others similarly situated, PLAINTIFF

Vv.

CASPAR W. WEINBERGER, Secretary, Department of

Health, Education and Welfare, DEFENDANT

ORDER

This matter having come before the Court on De-

fendant’s Motion to Dismiss or, in the alternative, for

Summary Judgment and the Plaintiff’s Motion for Sum-

mary Judgment and the Court having considered the

pleadings and the briefs filed by the parties, and having

heard the argument of counsel, and being fully advised

in the premises, and the Court having concluded that

there is no disputed issue of material fact and that the

defendant is entitled to judgment as a matter of law,

it is hereby this 27th day of September 1973,

ORDERED that defendant’s Motion for Summary

Judgment be and is hereby granted and summary judg-

ment be and is hereby entered in defendant’s favor and

the action is dismissed and it is

FURTHER ORDERED that plaintiff’s motion for sum-

mary judgment is denied.

/3/ Harrison L. Winter

HARRISON L. WINTER

United States Circuit Judge

/8/ Herbert F. Murray

HERBERT F, MURRAY

United States District Judge

/s/ C. Stanley Blair

C. STANLEY BLAIR

United States District Judge

SUPREME COURT OF THE UNITED STATES

No. 73-5598

GREGORY NORTON, JR., a minor, etc., APPELLANT

Uv.

CASPAR W. WEINBERGER, Secretary of Health,

Education and Welfare

ON CONSIDERATION of the motion of the appellant

for leave to proceed herein in forma pauperis,

IT IS ORDERED by this Court that the said motion

be, and the same is hereby, granted.

June 24, 1974

SUPREME COURT OF THE UNITED STATES

No. 73-5598

GREGORY NORTON, JR., a minor, etc., APPELLANT

CASPAR W. WEINBERGER, Secretary of Health,

Education and Welfare

APPEAL from the United States District Court for the

District of Maryland.

THIS CAUSE having been submitted on the statement

of jurisdiction and motion to affirm,

ON CONSIDERATION WHEREOF, it is ordered and ad-

judged by this Court that the judgment of the said

United States District Court in this cause be, and the

same is hereby, vacated; and that this cause be, and the

same is hereby, remanded to the United States District

Court for the District of Maryland for further considera-

tion in light of Jimenez v. Weinberger, 417 U.S. ——

(1974).

June 24, 1974

ATTACHMENTS TO PLAINTIFFS’ MEMORANDUM ON

REMAND FROM THE SUPREME COURT

CITY SEEKING AID TO ENFORCE

SUPPORT-PAYMENT COLLECTION

(Jan. 11, 1971—M]

Non Support

By G. JEFFERSON PRICE 3d

The D’Alesandro administration will present a bill

to the City Council today which would authorize a

$90,000 grant to the Supreme Bench to help enforce

the collection of millions of dollars in court-ordered sup-

port payments by derelict parents and spouses.

The funds would be made available by the State

Department of Social Services and used by the Depart-

ment of Probation, which would force the collection of

the overdue payments on behalf of families now on the

state’s welfare rolls, according to Nicholas C. Mueller,

chairman of the State Board of Social Services.

Raleigh C. Hobson, the director of the State Social

Services Administration, estimated yesterday that there

is more than $10 million outstanding in uncollected

support payments.

Collection Rate Under 25 P.C.

Under the present system, he explained, the Supreme

Bench has been able to bring judgments against the

derelict parents and spouses, but there has been no one

responsible for enforcing the orders. The collection rate

is less than 25 per cent, he added.

Mr. Muller estimated that once the collection force of

about 10 persons is established, the court might be able

to force the collection of about $5 million in the first

year.

The money would be turned over to the state and

federal governments as a reimbursement for the amounts

they have paid in welfare to the families affected by the

non-payments. Three percent of the amount collected

would go to the city, Mr. Hobson said. Thus, he reasoned,

the program would support itself after the first year.

Although the expenditure involved is relatively small,

and it comes at-no initial cost to the city, the measure

is not expected to pass through the Council without some

strong opposition.

One of the most vocal opponents is expected to be

Mrs. Janet Hofman, the Council’s fiscal adviser, who

has fought the plan in the past.

First, she feels that there is a matter of principle

involved in that the Supreme Bench is a state responsi-

bility. The money, in effect, would be going from one

state agency to another, and she questions the necessity

of going through the Council for approval. Secondly,

she reasons, city’s having to pay for the measure could

result in the city’s having to pay for the collection force

out of its own budget if the state were to decide at some

time in the future that it would no longer finance the

project.

Charter Requirement

Mr. Hobson said yesterday that the transfer of funds

must be approved by the Council because of a require-

ment in the City Charter. Also, he said, the Supreme

Bench does not have the mechanism for paying the

salaries of the collection force. The Bench and the De-

partment of Social Services want the employees to be

part of the Department of Probation, whose salaries are

paid by the city, even though they are not subject to

the city’s civil-service requirements.

COMPUTER PUTS NONSUPPORT

AT $65 MILLION IN CITY

Divorce and The Courts

[Mar. 27, 1973—E]

By GEORGE HANST

A computer report indicates that men who are under

Baltimore court orders to support their wives and chil-

dren are behind in their payments by $65 million.

William L. Quirk, director of the Probation Depart-

ment of the Supreme Bench, admits the existence but

questions the accuracy of the figure produced by the

computer that monitors the 44,000 cases under his super-

vision.

May Have Ended

“It’s a machine figure,” Mr. Quirk said. “I don’t

know what it represents.”

Mr. Quirk explained that a man’s support obligations

may have been ended for some time, but unless someone

tells the Probation Department the computer continues

to accumulate arreages against him.

The director said there is “no clear way of saying

how much money is legitimately owed.” He added, how-

ever, that “it’s a lot.”

Mr. Quirk said the cases, some as old as 20 years,

would have to be processed and followed up individually

in order to obtain an acccurate figure of arreages.

Even then, part of the backlog would be uncollectible,

because some of the men are in prison or otherwise have

no money, he said.

Believed Uncollectible

Mr. Quirk said the cost of examining the arrearages

on a case-by-case basis would have to be measured against

the increased payments that such an investigation might

generate.

The director said he believes that a concentrated effort

would only reveal “dollars that aren’t there anyway”—

the uncollectible accounts.

Mr. Quirk has a staff of 33 to manage the 44,000

cases. The case load involves some 39,000 persons, but

many of them are under two or more separate court

orders, which accounts for the higher number of cases.

The director said he has pleaded for extra personnel

for 15 years but has been given no additional staff since

1967.

Improvement Hopes

“But the cases still keep coming,” he said.

“T know I’m doing the best I can with what I’ve got,”

Mr. Quirk said. “We hope to do better and develop ways

to do better.”

He said he expects a greater potential and more re-

sources when the department goes under the state proba-

tion system July 1.

Mr. Quirk said his department is making a “crash”

effort to keep on top of cases filed since September 15,

with moderate success.

Dunning Letter

“We don’t have the people to do it, it means something

else goes,” he said.

The department also is studying the effect of a dun-

ning letter sent to about 1,600 persons who have fallen

behind in payments, he said.

The department will evaluate what the effort did to

raise the level of payments and determine whether

another sample mailing can be managed.

The returns from the first mailing between February

22 and March 9 are inconclusive and illustrate the prob-

lem the department has in enforcing support orders,

Mr. Quirk said.

35 P.C. Undeliverable

Fully 35 per cent of the letters could not be delivered

because the addressee was unknown or had moved, Mr.

Quirk said.

Another 58 per cent had not responded to the letter

by March 20, he said.

“JT could dun everybody, then run for the hills,” Mr.

Quirk said, recalling the outcome of the arrearage no-

tices sent to 29,000 persons at one time in October,

1970.

Within two days, Mr. Quirk said, there was a line

of people all around the block, and the staff had to work

overtime for two weeks, but only 10 per cent of the

letters brought a response.

“If we got all of them in, the jail wouldn’t be big

enough, and the court would be tied up,” Mr. Quirk said.

He said that nonsupport “is not a critical area of the

law” to most observers.

Mr. Quirk said the person who fails to support his

family “is the worst offender, worse than the guy who

hits you over the head.”

The family deserter’s child “is the one who drops out

of school; his daughter gets pregnant, his boy is the one

who hits you over the head,” Mr. Quirk said.

“The fact that he pays (support) doesn’t help the

situation; the family is still broken,” he said.

Quicker Involvement

Mr. Quirk, an advocate of a family court system that

would put all domestic relations problems in one jurisdic-

tion, said the probation department should be involved

as soon as cases are instituted rather than later.

“A divorce order may come down today, saying the

support order is effective a month ago,” Mr. Quirk said.

The man “is in arrears from the beginning. He knows

he can’t pay, we know he can’t pay, but that’s what the

order says.”

Situations that change support obligations include the

death of the father, or the marriage of a dependent

teenager.

“The People we deal with are usually the last ones to

come and tell us if the situation changes,” Mr. Quirk

said.

Greater Liaison Urged

Judge Solomon Liss of the Supreme Bench initiated

a series of conferences over the past few months that

suggested greater liaison between agencies that have

an interest in enforcing support orders.

The meetings brought together representatives from

the state’s attorney’s office, the attorney general’s office,

the District Court, the sheriff’s office, the probation de-

partment, the Police Department, the city department of

social services, and the state Social Services Adminisra-

tion.

The agencies promised to exchange information to help

locate parents failing to pay support and recommended

jailing those who refuse to pay.

SUPPORT PAYMENTS INCREASE

Child Support—Baltimore

[Oct. 18, 1973—M]

By GEorGE J. HILTNER

A conference of social, domestic relations, probation

and prosecution officials was told yesterday that support

payments for children and wives increased by more than

$300,000 following a crackdown by Judge Meyer Cardin

last year.

The increase in receipts also resulted in the removal

of a number of welfare receipients from the rolls, ac-

cording to Lloyd A. Anderson, assistant director for in-

come maintenance of the city Department of Social

Services.

Judge Cardin found while sitting in the domestic re-

lations court that mothers receiving welfare payments

for themselves and their children often refused to ap-

r in court to prosecute their husbands or the fathers

of their children.

He threatened them with incarceration, and in one

instance sent a recalcitrant mother to jail for failing to

obey a court summons, the judge said.

When word reached the welfare community regard-

ing the judge’s actions, contributions from the fathers,

many of whom were actually living with their families,

began to increase and many of the recipients took them-

selves off relief rolls, the judge was told.

Mr. Anderson said contributions by fathers still are

on the increase, and an average of 15 welfare cases a

month are being dropped. Costs for medical care and

food stamps also are dropping as a result, he noted.

The conference was told further that a search of wel-

fare lists revealed that dating back to 1969 there were

8,667 men under court order who owed almost $20

million in support payments.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. 72-271-B

Grecory B. NorTON, JR., a minor, by his next friend,

Marian B. Chiles, Individually and on behalf of all

others similarly situated

CASPAR W. WEINBERGER, Secretary, Department of

Health, Education and Welfare, Individually and in

his official capacity

A Christopher Brown, of Baltimore, Maryland, for plain-

tiffs.

Carla A. Hills, Assistant Attorney General, Harland F.

Leathers and Bruce E. Titus, Attorneys, Department of

Justice, Washington, D.C.; George Beall, United States

Attorney for the District of Maryland, and Jeffrey White,

Assistant United States Attorney, of Baltimore, Mary-

land, for defendant.

Before Winter, Circuit Judge, and Murray and Blair,

District Judges.

Filed: February 28, 1975

OPINION

Blair, District Judge.

Our judgment in Norton v. Weinberger, 364 F. Supp.

1117 (D. Md. 1973)" was vacated and the case remanded

by the Supreme Court for reconsideration in light of

Jimenez V. Weinberger, 417 U.S. 628 (1974). Upon

reconsideration, aided by the briefs and arguments of

counsel, we are persuaded that Jimenez neither compels

nor justifies any change in our earlier opinion and judg-

1 See also Norton v. Richardson, 352 F. Supp. 594 (D.Md. 1972).

ment. We will review briefly the two decisions and

note our reasons for this conclusion.

Our Decision in Norton

Gregory Norton, although shown by evidence satisfactory

to the Secretary to be the child of a deceased insured in-

dividual, was denied benefits under 42 U.S.C., $§ 402(d)

(1), 402(d) (8), 416 (h) (3) (C) (ii) because it could not

be shown that prior to his death his father had lived with

or contributed to his support. Not being eligible for bene-

fits under any other provisions of the Act, Norton sought,

among other relief, a declaration of the unconstitutionality

fits to Norton because he was not dependent on his father

within the terms of the Act did not deny him equal pro-

tection of the laws as guaranteed by the due process clause

of the Fifth Amendment. While our earlier opinion in

Norton speaks for itself and need not be repeated here, a

few points should be noted.

First, on the issue of the constitutionality of the stat-

ute’s scheme for showing dependency, we refused to hold

that illegitimacy is a “suspect classification.” Thus, we

refused to apply a “strict scrutiny” or “compelling govern-

mental interest” standard in reviewing the Act. Rather,

we applied the type of equal protection analysis which the

Supreme Court discussed in Weber v. Aetna Casualty and

Surety Co., 406 U.S. 164 (1972).

Second, we rejected the plaintiff's suggestion that Con-

gress intended, by the child’s insurance benefits provisions,

to aid every child of a deceased individual. Instead, we

concluded that the primary purpose of the insurance pro-

visions was to aid dependent children. In the words of

concluded that it bore a rational and substantial relation-

ship to the principal goal of the Act.

The Supreme Court’s Decision in Jimenez

Eugenio and Alicia Jimenez were illegitimate children

conceived and born after their father became disabled.

From their birth, they lived with and were supported by

their father and he acknowledged them as his children.

Under Illinois law, however, they were not able to inherit

from their father and were classified as illegitimates be-

cause their parents never married. Since they were born

after the onset of their father’s disability—the event in-

sured against—he could not have acknowledged them, nor

have been ordered by a court to make support payments,

nor decreed by a court to be their father prior to his dis-

ability. Jimenez at 630-81. See § 416(h) (3) (B) (i). Simi-

larly, it was impossible for the children to demonstrate that

their disabled father lived with them or contributed to their

support at the time his disability began. See 416(h) (3)

(B) (ii). Dissimilarly, their older illegitimate sister was

eligible to receive benefits because she was conceived prior

to the father’s disability and had lived with him and re-

ceived his support at the requisite time. Jimenez at 630-

31. Thus, while the older sister was eligible to receive

benefits, the two after-born Jimenez children were unable

to satisfy any of the alternate prerequisites to receive

like treatment. See $$ 402(d) (3), 416(h) (2)(B), 416

(h) (3) (B).

In Jimenez, the Supreme Court took a very narrow ap-

proach. In an opinion by Chief Justice Burger, the Court

did not pose the issues in terms of discrimination between

legitimates and illegitimates, rather, it analyzed the plain-

tiffs’ challenge in terms of discrimination between certain

subclasses of illegitimates. Jimenez at 635-36. By taking

that approach, the Court had no reason to reach the ques-

tion of whether illegitimacy is a “suspect classification,”

and, it expressly refused to reach that issue. Id. at 631-32.

The Supreme Court focused its analysis upon the fact

that the Jimenez children were denied benefits solely be-

cause they were conceived and born after the onset of

their father’s disability. The Court began by determining

that “the primary purpose of the contested Social Security

scheme is to provide suport for dependents of a disabled

wage earner.” Jimenez at 633-34. In identifying that goal,

the Court rejected the argument that the Act’s purpose

was to aid only children who were dependent at the time

of the disabling injury. Jd. at 634-35. In the Court’s view,

Congress intended to aid all dependent children.

Having identified the primary purpose of the Act, the

Court noted that after-born illegitimate children were for

practical purposes divided into two subclasses. First, there

were those who could recover without proving actual de-

pendency prior to the disability, because they were pre-

sumed by the Act to be dependent at the requisite time.

Second, there were those after-born illegitimates who were

denied benefits, solely by reason of the timing of their

births, because they could not possibly demonstrate de-

pendency at the time their parent was disabled. Included

within the latter class were children who, like Eugenio

and Alicia Jimenez, were genuinely dependent upon their

disabled parent.

The conclusive exclusion of such after-born children,

the Court held, could not be justified solely on the basis

of a claimed desire to avoid spurious claims. Jimenez at

636-37. The Court wrote,

[T]he Act’s definition of these two subclasses of ille-

gitimates is “overinclusive” in that it benefits some

children who are legitimated, or entitled to inherit, or

illegitimated, solely because of a defect in the marriage

of their parents, but who are not dependent on their

disabled parent. Conversely, the Act is “ynder-inclu-

sive” in that it conclusively excludes some illegiti-

mates in appellants’ subclass who are, in fact, depend-

ent upon their disabled parent. Thus, for all that is

shown in this record, the two subclasses of illegiti-

mates stand on equal footing, and the potential for

spurious claims is the same as to both; hence to con-

clusively deny one subclass benefits presumptively

available to the other denies the former the equal pro-

tection of the law guaranteed by the due process pro-

visions of the Fifth Amendment.

Id. at 687.

On remand, the Court directed that the Jimenez children

were to be afforded an opportunity to demonstrate their

eligibility by showing “that [they] are the children of the

claimant, that they lived with the claimant all their lives,

that he has formally acknowledged them to be his children,

and that he has suppoted and cared for them since birth.”

Jimenez at 637-38.

The Act

Norton, like Jimenez, involves an attack upon the Social

Security Act’s scheme for providing benefits to children

of persons insured under the Act. Although Jimenez in-

volved disability benefits, while Norton involves survival

benefits, the basic mechanics are essentially similar and

involve either identical or parallel provisions of the act.

As they relate to Norton, we synthesize our understand-

of the pertinent provisions of the Act. The term “child”

means “the child or legally adopted child of an individual”

as well as certain stepchildren and grandchildren. § 416

(e).2 A child is entitled to benefits* if at the time of the

event insured against the child was “dependent” upon the

insured individual. § 402(d) (1). Legitimate and adopted

children are “deemed dependent”. § 402 (d) (3). Children of

marriages which are invalid for specified reasons, § 416

(h) (2) (B), and children who at specified times have been

(a) acknowledged in writing by the insured individual, or

(b) decreed by a court to be the child of an insured indi-

vidual, or (c) the beneficiary of an order of court direct-

ing the insured individual to provide support are deemed

to be the children of the insured individual, § 416(h) (3)

“deemed dependent.” § 402(d) (3).

As an alternate means of showing eligibility for benefits,

a child who at the time of the event insured against could

inherit personalty through intestate succession by the

laws of the insured’s state of domicile (with qualifications

not pertinent) is deemed to be the child of the insured

2 Further definition of “child” is provided by § 416(h)(2)-(3).

3 Throughout our discussion of entitlement to benefits, we assume

that the applicant child satisfies age, marital and filing require-

ments and has not been legally adopted by another.

‘ndividual from whom he could inherit. § 416(h) (2) (A).

However, by the provisions of § 402(d) (3), such a child is

not deemed legitimate and hence is not deemed dependent.

Thus, as we read these provisions of the Act (which ap-

pears to be contrary in part to the Supreme Court’s reading

to which we will address ourselves later), a child seeking

to show eligibility for benefits on the basis of the right to

intestate succession must also show that he was living with

or supported by thé insured individual. § 402 (d) (3).

Similarly, where a child cannot show eligibility under

any of the foregoing provisions, eligibility may be shown

by evidence satisfactory to the Secretary that the insured

individual was the father of the child and lived with or

contributed to the support of the child at the time of

death. §416(h) (3) (C) (ii). It is this provision that

Norton attacks.

The Effect of Jimenez Upon Our Prior Decision

At the outset, two points concerning Jimenez may be

easily stated. First, the Supreme Court did not use

Jimenez as a vehicle for holding that illegitimacy is a

“suspect classification” which requires “strict scrutiny”

analysis. Rather, the Supreme Court expressly refused to

reach that issue. Jimenez at 631-32. Thus, we see no rea-

son to alter our prior opinion in that respect. See Norton v.

Weinberger, 364 F. Supp. 1117, 1122 (D.Md. 1973).

Second, we do not read the Court’s opinion in Jimenez

to require any change in our previous conclusion that the

primary purpose of the Social Security Act is to aid chil-

dren who are actually dependent, as opposed to potentially

dependent. Indeed, if anything, the Supreme Court appears

to concur in our assessment of the statute’s goal. In

Jimenez, the Court stated in simple terms that “the prim-

ary purpose of the contested Social Security scheme is to

provide support for dependents of a disabled wage earner.”

Jimenez at 634. If, as plaintiff suggests, the Supreme Court

had meant that the primary purpose was to aid potential

dependents or to aid all children who have not been adopted

by third persons, we believe that it would have said so more

directly. Also, the Court would not have remanded for

proceedings to determine whether or not the disabled father

lived with or contributed to the support of the Jimenez

children. In any event, the plaintiff’s construction of con-

gressional intent would make utterly inexplicable the com-

plex provisions of the statutory scheme. Surely if Congress

had intended to aid all children regardless of dependency

it could have said so without devoting approximately 80

lines of the stztute’s text to defining who is deemed “de-

pendent.” See 42 U.S.C. §§ 402(d) (3), 416(h) (2) (B),

416(h) (3).

Turning from those specific points to the general con-

stitutional analysis by the Court, we find nothing which

would require us to change our prior decision. As we inter-

pret the Court’s opinion in Jimenez, the thrust of that opin-

ion was that Eugenio and Alicia Jimenez, and the members

of their class, could not be refused benefits without their

first being afforded a realistic opportunity to prove that

they were living with their parent or supported by him.

In other words, the Court did not hold that Eugenio and

Alicia were entitled to the same presumption of dependence

as is afforded to certain other children. Instead, it merely

ruled that, in light of the rest of the statutory scheme,

after-born children in Eugenio and Alicia’s class, may not

be required to prove the impossible, i.e., dependence prior to

their conception. See Jimenez at 636-38.

That general analysis by the Supreme Court in Jimenez

has no application to Norton for two reasons. In the first

place, unlike Eugenio and Alicia Jimenez, the plaintiff here

is not now, and never has been, dependent upon his father.

Thus, in contrast to the Jimenez children, Norton has not

been arbitrarily denied benefits despite actual dependency.

Norton was denied benefits because, in fact, he never was

dependent and because Congress never intended to aid

Norton’s class of nondependents.

In the second place, it is manifest that the narrow form

of discrimination which was dealt with in Jimenez—i.e.,

discrimination against certain after-born children—can-

not possibly arise in the context of survivors benefits. It

will be recalled that in Jimenez, the plaintiff children weve

in fact dependents at the time they applied for disability

benefits, but they were denied benefits because, as they were

after-conceived and after-born, they could not possibly

prove that their father was living with them or con-

tributing to their support at the time of the onset of his

disability. By contrast, in the context of death benefits, no

child is conclusively barred from recovering benefits solely

because of the timing of his birth. Each child has a real-

istic opportunity to prove dependency at the requisite time

for the obvious reason, that once deceased, the alleged

parent is not going to father any more children. Thus, in

the context of survivors benefits, only nondependents will

fail to recover. Even the hypothetical child who is con-

ceived prior to his father’s death, but who is born after-

wards, will recover if, at the time of his death, the father

was living with the then-pregnant mother or was con-

tributing to her support. See Wagner v. Finch, 413 F.2d

267 (5th Cir. 1964).* Accepting the rationale of the Fifth

Circuit in Wagner v. Finch, supra, not only do we view

Norton’s complaint as different from that of the Jimenez

children, we can perceive of no situation where a child of

a deceased insured could ever pose the problem raised in

Jimenez.

The statutory scheme for survivors benefits may be

“overinclusive” in that some nondependents can recover

benefits but it is not “underinclusive.” ° That is, although

there will, of course, be nondependent children who cannot

recover, there will be no dependent children who are unable

to prove dependency at the requisite time. Consequently,

+It is worth noting that in the Supreme Court’s opinion in

Jimenez, the Court wrote that Eugenio and Alicia’s older sister,

Magdalena, was entitled to benefits for her father’s disability “be-

cause she had been conceived before Jimenez became disabled... .”

Jimenez v. Weinberger, 417 U.S. 628, 631 (1974). (Emphasis

added). Since we know from the district court opinion that, in

fact, Magdalena had been born prior to her father’s injury, the

Supreme Court’s choice of the word “conceived” appears to signify

acceptance of the reasoning in Wagner v. Finch. See Jimenez v.

Richardson, 353 F.2d 1356, 1358-59 (N.D.IIl. 1973) (per curiam).

‘Norton, a nondependent child, cannot argue that the scheme

for benefits denies equal protection merely because the statute’s

categories enable some nondependent children to get a free ride.

The statute need not be perfectly drawn. It is enough that the

statute’s classifications are substantially and rationally related to

the Act’s permissible purpose, that it infringes on no suspect

classifications, and that no conclusive presumptions operate to ex-

clude arbitrarily those whom the statute is designed to aid.

the Supreme Court’s narrow equal protection analysis in

Jimenez—turning as it does upon the irrational exclusion

of certain after-born dependent illegitimates from the class

of dependent children generally—has no impact here nor

upon any child seeking survivors benefits.

Finally, while we do not believe that the Supreme

Court’s constitutional analysis in Jimenez requires us

to modify either the results or the analysis of our prior

opinion, another aspect of the Jimenez opinion requires

some additional comment. As indicated above, our prior

decision in this case was premised upon our conclusion

that the statutory scheme of classifications and pre

sumptions was substantially and rationally related to

the Act’s purpose to aid dependent children of deceased

wage earners. Accordingly, it is crucial that our un-

derstanding of the statute’s classifications and presump-

tions was correct. With that in mind we must deal

with a discrepancy between a narrow part of our in-

terpretation of the Act and a part of the Supreme Court’s

description of the Act in Jimenez. The difference arises

over whether or not an individual who has the status

of child under the laws of intestate succession in the

insured individual’s state of domicile is automatically

deemed dependent. While we thought not, Jimenez might

suggest otherwise. See §§ 402(d)(1), 402(d) (3), 416

(h) (2) (A). Compare Jimenez v. Weinberger, 417 U.S.

628, n.2 at 631, 635-36 (1974), with Norton v..Wein-

berger, 364 F. Supp. 1117, 1119 (D. Md. 1973).

Before discussing the discrepancy, we should note

that, as we read its opinion, the Court’s description of

the portion of the Act in question was in the nature

of general background. Therefore, it does not appear

to have been necessary to the Court’s conclusion that

the Act unconstitutionally denied the after-born Jimenez

children an effective opportunity to prove their depend-

ency. While we proceed with caution and deference, we

reiterate our belief that the part of the discussion in

Jimenez which we have noted was not essential to the

holding.

In analyzing this issue of statutory interpretation,

we have reviewed again the language of the Act. Fur-

thermore, we have searched the history of amendments

to the Act in order to trace the development of in-

surance benefits for children,* and we have read per-

tinent portions of the legislative history. After this

analysis, we have again returned to our earlier view

that a child of an insured individual is not deemed

“dependent” by the Act merely because he happens to

be eligible to inherit personalty under the laws of in-

testate succession in the insured’s state of domicile." In

our view, both the language of the Act and its history

support the conclusion that state laws of intestate suc-

cession are invoked by § 416(h)(2)(A) merely to pro-

vide the Secretary with a method for determining who

is a “child” of an insured individual and not for de-

termining who is a “dependent” child.

Treatment of this issue of statutory meaning is best

accomplished by quoting the relevant portions of the

statute. Section 402(d) (1), the basic recovery section,

provides in relevant part:

§ 402 (d) (1)

Every child (as defined in section 416(e) of this

title) of an individual entitled to old-age or dis-

ability insurance benefits, or of an individual who

dies a fully or currently insured individual, if such

child—

shall be entitled to a child’s insurance benefit... .

6 See Social Security Act Amendments of 1950, Ch. 809, §§ 202(d)

(1), 202(d)(%), 216(h)(1), 64 Stat. 483-84, 511 (1950); Social

Security Amendments of 1958, Pl. 85-840, § 205(d), 72 Stat. 1022

(1958) ; Social Security Amendments of 1960, Pl. 86-778, § 208 (b)-

(d), 74 Stat. 951 (1960); Old-Age, Survivors, and Disability In-

surance Amendments of 1965, Pl. 89-97, § 339(a)-(b), 79 Stat. 409

(1965).

’ This is significant to the ultimate result in Norton because, if

an individual were deemed dependent due to the unrelated circum-

stance that he is favorably treated under his state’s intestacy laws,

a significant question Would be raised about the rational basis for

the statutory scheme.

| OO

Thus, according to §402(d)(1), 4 “child” must be

“dependent” in order to be entitled to benefits.

In turn, §§ 416(e), 416(h) (2), and 416(h) (3) define

who is a “child” for purposes of distributing these in-

surance benefits. Section 416(e) provides an initial defi-

nition of the term “child” which, in addition to natural

and adopted children, reaches certain stepchildren and

grandchildren. For our purposes, it is enough to quote

the opening words of § 416(e): “The term ‘child’ means

(1) the child or legally adopted child of an indivi-

Gh wcs

As § 416(e) provides little guidance, one must turn to

§§ 416(h) (2) and (h)(3) for further explication of the

term “child.” Section 416(h) (2) (A) provides:

§ 416 (h) (2) (A)

In determining whether an applicant is the child

_.. of a fully or currently insured individual for

purposes of this subchapter, the Secretary shall apply

such law as would be applied in determining the

devolution of intestate personal property by the

courts of the State in which such insured individual

is domiciled at.the time such applicant files applica-

tion, or, if such insured individual is dead, by the

courts of the State in which he was domiciled at the

time of his death... . Applicants who according to

such law would have the same status relative to tak-

ing intestate personal property as a child . . . shall

be deemed such.

Continuing, the Act states

§ 416(h) (2) (B)

If an applicant is a son or daughter of a fully

or currently insured individual but is not (and is

not deemed to be) the child of such insured in-

dividual under subparagraph (A), such applicant

shall nevertheless be deemed to be the child of such

insured individual if such insured individual and the

mother or father, as the case may be, of such ap-

plicant went through a marriage ceremony result-

ing in a purported marriage between them which,

but for a legal impediment described in the last

sentence of paragraph (1)(B), would have been a

valid marriage.

Finally, it adds

§ 416(h) (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 in-

sured individual under paragraph (2) of this sub-

section, shall nevertheless be deemed to be the child

of such insured individual if:

(B) in the case of an insured individual en-

titled to disability insurance benefits...

(i) such insured individual—

(I) has acknowledged in writing that the

applicant is his son or daughter,

(II) has been decreed by a court to be

the father of the applicant, or

(III) has been ordered by a court to

contribute to the support of the applicant

because the applicant is his son or daughter,

and such acknowledgment, court decree, or court

order was made before such insured individual’s

most recent period of disability began; or

(ii) such insured individual is shown by evi-

dence satisfactory to the Secretary to be the

father of the applicant and was living with or

contributing to the support of that applicant

at the time such period of disability began;

(i) such insured individual—

(I) had acknowledged in writing that the

applicant is his son or daughter,

(IL) had been decreed by a court to be

the father of the applicant, or

(III) had been ordered by a court to con-

tribute to the support of the applicant be-

cause the applicant was his son or daughter,

and such acknowledgment, court decree, or court

order was made before the death of such in-

sured individual, or

(ii) such insured individual is shown by evi-

dence satisfactory to the Secretary to have been

the father of the applicant, and such insured in-

dividual was living with or contributing to the

support of the applicant at the time such in-

sured individual died.

It can be seen from the above-quoted sections that

only a “dependent” child recovers, § 402(d) (1), and it

can also be seen who meets the definition of “child,”

§§ 416(e), 416(h) (2)-(3). It is lastly necessary to de-

termine who is deemed by the Act to be “dependent.”

Section 402(d) (3) is the critical provision for defining

“dependent” :

§ 402 (d) (3)

A child shall be deemed dependent upon his father

or adopting father or his mother or adopting mother

at the time specified in paragraph (1) (C) of this

subsection unless, at such time, such individual was

not living with or contributing to the support of

such child and—

(A) such child is neither the legitimate nor

adopted child of such individual, or

(B) such child has been adopted by some

other individual.

For purposes of this paragraph, a child deemed to

be a child of a fully or currently insured individual

pursuant to section 416(h)(2)(B) or section 416

(h) (3) of this title shall be deemed to be the legiti-

mate child of such individual. (Emphasis added).

Translation of the awkward series of negatives in

the first sentence of § 402(d) (3) leads to a simpler basic

formula—a child is deemed dependent (a) if his insured

parent lived with him or contributed to his support or

(b) if he is the legitimate or adopted child of the in-

sured parent and he has not subsequently been adopted

by a third person. Nothing in the first sentence exempts

a child who can inherit under state intestacy laws from

showing that the insured parent was living with him or

contributing to his support.

Likewise, the second sentence of § 402(d) (3) does not

deem to be legitimate (and, therefore, dependent) a child

seeking to show eligibility under the intestate succession

language of §416(h)(2)(A). To the contrary, while

the second sentence of § 402(d) (3) (A) expressly deems

to be legitimate (and, therefore, dependent) children who

qualify under §§ 416(h) (2) (B) and 416(h) (3), no ref-

erence is made to individuals who meet the definition

of “child” under § 416(h) (2)(A). The omission of any

reference to § 416(h) (2) (A) is conspicuous and, more-

over, it is consistent with the evolution of these pro-

visions of the Act.* Thus, an applicant for benefits who

is a “child” under § 416(h)(2)(A) (ie, one who has

the status of a child under state intestacy laws), without

more, still has to prove that the parent was living with

or contributing to the support of such child.

On the basis of the above-quoted statutory language,

we do not think it necessary to modify our earlier

opinion with regard to our assessment of the rationality

of the statute’s classification scheme. Absent constitu-

tional infirmity, we hold no warrant to eviscerate a

congressionally enacted plan to provide benefits to chil-

dren of individuals insured under the Act. We perceive

no such infirmity.

8 See footnote 6, supra.

Conclusion

For the reasons stated above, we reaffirm our pre-

vious opinion and summary judgment will be entered

separately in favor of the defendant.

/s/ Herbert F. Murray

Herbert F. Murray

United States District Judge

/s/ C. Stanley Blair

C. Stanley Blair

United States District Judge

WINTER, Circuit Judge, dissenting:

I respectfully dissent. In my view the decision in

Jimenez v. Weinberger, 417 U.S. 628 (1974), requires

us to alter our decision in Norton v. Weinberger, 364

F.S. 1117 (D. Md. 1973), vacated and remanded, 417

U.S. —— (1974) (Norton I), and to hold that the

portion of the statute attacked denies ecual protection

of the laws and should be declared invalid. Since the

Secretary has found that the deceased wage earner,

Gregory B. Norton, Sr., was the father of the claimant,

I would remand the case to the Secretary with divections

to award the claimed survivor’s benefit:

I begin with an analysis of Jimenez, interspersed

with comments on how it supersedes our prior holding.

In Jimenez, the claimants, or applicants for disability

benefits, were the illegitimate children of a disabled wage

earner. They had been born after the onset of the wage

earner’s disability. The statutory scheme in Jimenez

provided that when a wage earner suffers “disability,”

defined elsewhere in the Act, his legitimate children,

under certain ages or under a disability themselves, are

entitled to benefits if, inter alia, they were dependent on

the disabled wage earner. § 202(d)(1) of the Act, 42

U.S.C. § 402(d) (1). Legitimate children. are deemed de-

pendent on the disabled wage earner irrespective of

whether they live with him or he contributes to their

support. § 202(d)(3) of the Act, 42 U.S.C. § 402(d)

(3). By certain of the provisions of § 216, 42 U.S.C.

$416, which bear a marked similarity to the other

provisions of § 216 which were considered in Norton I,

certain illegitimate children can also recover benefits,

i.e., illegitimate children entitled to inherit under the

intestacy laws of the state (42 U.S.C. § 416(h) (2) (A)),’

1In Jimenez, it is stated flatly that “[u]nder the statute it is

clear that illegitimate children born after the wage earner becomes

disabled qualify for benefits if state law permits them to inherit

from the wage earner, § 416(h)(2)(A).” 417 U.S. at 634. With

protestations of due deference and respect, the majority opinion

children not entitled to inherit only because of some

formal defect in their parents’ marriage (42 U.S.C. § 416

(h) (2) (B)), and illegitimate children if the wage earner’s

paternity has been established, prior to the beginning

of disability, by formal acknowledgment, court order for

support, or court decree of paternity (42 U.S.C. § 416

(h) (3) (B) (i). In the case of these classes of illegitimates

as well, the statute deems them dependent on the dis-

abled wage earner irrespective of whether they live

with him or he contributes to their support. If a claimant

undertakes to prove the statement inaccurate, as indeed it concedes

that it must in ordr to preserve its thesis that Gregory B. Norton,

Jr., has not been the subject of invidious discrimination. Majority

opinion, n. 7.

I think the Supreme Court’s statement accurate: § 402(d) (1)

requires, inter alia, that a “child,” to be entitled to a child’s in-

surance benefit, “dependent” upon the insured person entitled to an

old-age or disability insurance benefit. By § 402(d) (3), so far as

pertinent, a child is deemed dependent upon his father unless his

father was not living with or contributing to his support and the

child is neither the legitimate nor adopted child of the father. Sec-

tion 416(h) (2) (A), however, states that “[i]n determining whether

an applicant is the child . . . of a fully or currently insured individ-

ual... ,” the Secretary shall apply the law relating to the devolu-

tion of intestate property in which the insured individual is domi-

ciled. It then states, “[a]pplicants who according to such law would

have the same status... as a child . . . shall be deemed such.”

(Emphasis added.) The “child” that they are thus deemed to be is

defined in § 416(e) to mean “the child or legally adopted child of an

individual ... .”

I read the statutes together to mean that an illegitimate who

would inherit from his father under applicable state intestacy law

is to be deemed a “child,” and since he is deemed to be a “child,”

he is deemed dependent under § 402(d)(3). Even if he does not live

with his father or is not supported by his father, the child does not

fit into the exception in § 402(d) (3) for illegitimate or non-adopted

children, because, by §416(h)(2)(A), he is deemed to have the

status of a legitimate child who may inherit. The fact that § 402

(d)(3) makes special provision for illegitimates of the categories

defined in §§ 416(h) (2)(B) and 416(h) (3), but not § 416(h)(2)(A),

is not significant, because, again, § 416(h) (2)(A), as I read it, says

that illegitimates who can inherit under state intestacy law are

deemed to have the status of legitimate children (thus, rendering

any further special treatment unnecessary), while §§ 416(h)(2)

(B) and 416(h)(3) do not.

fits none of these categories, the claimant is still en-

titled to benefits if the claimant can demonstrate pa-

ternity in fact and that the wage earner was living with

or contributing to the support cf the claimant when

> = of disability began (42 U.S.C. § 416(h) (3)

) (ii).

In Jimenez, the latter provisions were under attack—

(a) that which required the birth of the child before

disability began, and (b) that which imposed the con-

dition of “living with” or “contributing to the support

of” the claimant disability of the wage-earner began—

even though paternity of the claimant had been estab-

lished by evidence satisfactory to the Secretary. Jimenez

held that the complete bar to after-born illegitimates de-

nied equal protection of the law.’ It gave strong and

clear indications that imposition of either of the alter-

natives of “living with” or “contributing to the support

of” was similarly invalid.

In arriving at its holding, the Court declined to pre-

scribe the quantum of proof which would be required to

sustain a discrimination among illegitimates in the con-

text of social security benefits.. The Court adopted, as

2In a suit of this nature between an individual and the federal

government, the constitutional guarantee at issue is the fifth amend-

ment and it, unlike the fourteenth amendment, contains no equal

protection clause. However, it is established that the guarantee of

equal protection of the laws is part of the concept of “due process”

which the federal government must afford. Schneider v. Rusk, 377

U.S. 163, 168 (1964; Bolling v. Sharp, 347 U.S. 497, 499 (1954).

’The Supreme Court declined to declare illegitimacy a “suspect

classification” requiring “strict scrutiny,” 417 U.S. at 631-32, be-

cause it found that the discrimination in Jimenez was unconstitu-

tional even under the somewhat looser and vaguer standard articu-

lated in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175-

76 (1972): “the classification is justified by no legitimate state

interest compelling or otherwise.” There are, however, numerous

indications in recent Supreme Court opinions that, in a proper case,

a majority of the Court would find that illegitimacy was a suspect

classification. See Frontiero v. Richardson, 411 U.S. 677, 686

(1973); San Antonio Independent School District v. Rodriguez,

411 U.S. 1, 60 (1973) (concurring opinion) ; Id. at 108 (dissenting

opinion) ; Sugarman v. Dougall, 413 U.S. 634, 657 (1973) (dissent-

ing opinion). I, too, see no need to decide the issue, because I

88.

basic, the premise that “the primary purpose of the con-

tested Social Security scheme is to provide support for

dependents of a disabled wage earner.” * 417 U.S. at 634.

Accordingly, it firmly and explicitly rejected the argu-

ment (on which Norton I is premised) that the “requi-

site economic dependency” within the purposes of the leg-

islation is limited to actual support received prior to the

event insured against, which, in Jimenez, meant prior to

disability. 417 U.S. at 634.° No such showing, the Court

would conclude that the discrimination presented here fails under

the Weber and Jimenez standards. I fear, however, that from the

language of the majority opinion, n. 5, that the majority harbors

notions that the “rationally related” test of Dandridge v. Williams,

397 U.S. 471 (1970), has some application to his case. I call atten-

tion that application of Dandridge was specifically rejected in

Jimenez. 417 U.S. at 632-34.

+ Citing the House-Senate Committee Conference Report on 1965

Amendments to the Social Security Act, 111 Cong. Rec. 18387

(July 27, 1965); and the Report of the Advisory Council on Social

Security, The Status of the Social Security Program and Recom-

mentdations for its Improvement, 67 (Washington, D.C., 1965).

These documents speak of the Act as providing benefits if the in-

sured father had an “obligation” or a “legal obligation” to support

the child. In Norton I, the importance of this language in assessing

the purposes of the Act was under-estimated. There, the Court said

ef that it is “descriptive of the Act’s effect.” 364 F.S. at 1127,

n. 6.

; * The language of the Court, apparently overlooked by the ma-

jority, could not be more specific:

The Secretary maintains that the Act denies benefits to...

[certain classes of illegitimates] because it is “likely” that

these illegitimates, as a class, will not possess the requisite eco-

nomic dependency on the wage earner which would entitle them

to recovery under the Act . .. . Under this view the Act’s pur-

pose would be to replace only that support enjoyed prior to the

onset of disability; .... We do not read the statute as sup-

porting that view of its purpose. (Emphasis supplied.)

417 U.S. at 634.

The court’s reliance in Norton I on this discredited view of the

purpose of the Act was expressed at several places in its previous

opinion. See, e.g.:

The purpose of the Act, consistent with this dual concept, is

to replace the support lost to a child when a wage earner dies.

364 F.S. at 1127.

pointed out, is required of either legitimate children or

any other class of illegitimates.* Indeed, even under

§ 416(h) (3) (B) (ii), a claimant can establish entitlement

to benefits without showing actual support if he can

demonstrate paternity and the fact he was living with

the wage earner prior to the period of disability. Fur-

thermore, the Court’s opinion rejected the Secretary’s

attempt to justify a requirement that illegitimates be

born before the wage earner’s death to entitle them to

benefits on the basis that such claimants are less “likely

to have the requisite economic dependency.” ‘ The Court

went further and stated that “[e]ven if children might

be rationally classified on the basis of whether they are

dependent on their disabled parent,” the statutory scheme

was both “under-inclusive” and “over-inclusive’—“deem-

ing dependent” in some instances those who are not, and

excluding in others those who are.’ Thus, the Court found

* It said:

Indeed, as we have noted, those i!legitimates statutorily deemed

dependent are entitled to benefits regardless of whether they

were living in, or had ever lived in, a dependent family setting

with their disabled parent.

417 U.S. at 637.

1417 U.S. at 634, 637. In Norton I, the Court stated that it was

“rational” for the statutory scheme to assume that the classes of

children “deemed dependent” were the recipients of actual support,

and likewise rational to require applicants in plaintiffs’ class to

prove that fact. 364 F.S. at 1128. Deference was granted to the

factual assumptions underlying the statutory scheme in reliance,

inter alia, on Dandridge v. Williams, 397 U.S. 471, 485 (1970). In

Jimenez, however, the Court held that the Dandridge reasoning was

inapplicable b

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