# Appendix — Norton v. Mathews > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0638%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1976 - **Citation:** 427 U.S. 524 ## Text ith & we a 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 "a 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 1 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. 2 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 3 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 I. 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 4 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. 5 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. V. 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- 6 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. 7 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- 8 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 9 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. 10 X. 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 11 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 12 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. 13 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 14 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 15 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. 16 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 ee Wee knee a 17 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 18 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 19 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 20 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 ee 21 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. 22 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., 23 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. 24 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 25 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 26 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 27 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) (c) (ii) would not extend coverage to Gregory Norton, 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.” 28 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 29 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 30 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 v. 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 31 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 v. 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. 32 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. 33 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) (C) (ii)’s “living with or support by” requirement un- 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 34 I. 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). 35 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. 36 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- 37 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). 38 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). 39 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) (C) (ii) under the rational basis test to see if it bears 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 40 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 41 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- 42 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 48 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. 44 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. 45 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. 46 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. 47 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. 48 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) (C) (ii) children to establish the dual elements of pater- 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) (C) (i) children need not offer proof to the extent the § 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 49 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). 50 § 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 51 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. 52 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. 53 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. 54 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 (C) was dependent upon such individual (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— 56 (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 57 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: (C) in the case of a deceased individual— (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 58 (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 60 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 61 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 62 SUPREME COURT OF THE UNITED STATES No. 73-5598 GREGORY NORTON, JR., a minor, etc., APPELLANT v. 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. 64 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. 65 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. 66 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. 67 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. 68 “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. 69 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. 70 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 v. 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). 71 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0638%3A2. Public record. Not legal advice.