Jurisdictional Statement — Mathews v. Lucas

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‘ Nie ? EDUCATION, AND WELFARE, APPELLANT

nae eas f! Dia

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shi alee ‘Rupy M. Lucas, Ef AL.

1

oaue ON APPEAL FROM THE UNITED STATES DISTRICT COURT

aes ' #OR THE DISTRICT OF RHODE ISLAND

Ao \ oe) SURISDICTIONAL STATEMENT

FS ‘OS ate CA aad Re Solicitor General,

Assistant Attorney General;

/. Wirn1aM KANTER,

hoe _RoBerT S. GREENSPAN,

pe ’ Attorneys, ~ =

i Department of Justice,

Washington, D.C. 20530

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No.

CASPAR W. WEINBERGER, SECRETARY OF HEALTH,

EDUCATION, AND WELFARE, APPELLANT

Vv.

Ruspy M. LUCAS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

JURISDICTIONAL STATEMENT

OPINION BELOW

The opinion of the district court (App. A, infra,

pp. la-27a) is not yet reported.

JURISDICTION

The order of the district court, holding uncon-

stitutional certain provisions of Sections 202(d) (3)

and 216(h) (3) (C) (ii) of the Social Security Act, 42

U.S.C. 402(4)(3) and 416(h) (3) (C) (ii), was en-

tered on March 21, 1975 (App. B, infra, pp. 28a-

29a). A notice of appeal to this Court was filed on

1The court’s order does not refer directly to the constitu-

tional issue, but that order is based upon the court’s decision,

(1)

April 15, 1975 (App. C, infra, p. 30a). On June 4,

1975, Mr. Justice Brennan extended the time for

docketing the appeal to and including July 14, 1975.

This Court’s jurisdiction is conferred by 28 U.S.C.

1252. Weinberger v. Salfi, No. 74-214, decided June

26, 1975, slip op. 11, n. 8.

QUESTION PRESENTED

Whether Sections 202(d)(3) and 216(h) (3) (C)

(ii) of the Social Security Act violate the Due Proc-

ess Clause of the Fifth Amendment insofar as they

condition certain illegitimate children’s receipt of

surviving child’s insurance benefits upon a showing

that a deceased male wage-earner was their father

and was, at the time of his death, living with them or

contributing to their support.

CONSTITUTIONAL PROVISION AND

STATUTES INVOLVED

The pertinent provisions of the Fifth Amendment

and the Social Security Act are set forth in Appendix

D, infra, pp. 3la-33a.

STATEMENT

1. This is an appeal from a decision of a single-

judge district court holding unconstitutional Sections

202(d)(8) and 216(h) (3) (C) (ii) of the Social Se-

curity Act, 42 U.S.C. 402(d) (3) and 416(h) (8) (C)

(ii). The constitutionality of these statutes is pres-

set forth in its opinion, that the statutory bar to the payment

of benefits to appellees was unconstitutional.

3

ently before the Court in Norton v. Weinberger, No.

74-6212, question of jurisdiction postponed until

hearing on the merits, June 30, 1975. We therefore

only briefly summarize the statutory scheme here.

Surviving child’s insurance benefits are payable to

children under the age of 18 (or, in the case of full-

time students, under the age of 22) who were depend-

ent upon a deceased wage-earner at the time of his

death. Section 202(d)(1)(C) of the Act.2 The Act

establishes a presumption of dependency in the case

of legitimate children who have not been adopted by

another individual. Section 202(d)(3) of the Act. A

similar presumption applies to illegitimate children

who satisfy certain statutory criteria.’

Children who are not within any of these cate-

gories, i.e., legitimate children who have been adopted

by another individual and other illegitimate children,

are not presumed to have been dependent upon their

deceased father. In order to receive surviving child’s

insurance benefits, such children must show that the

deceased wage-earner was their father and that, at

2 We describe the statutory scheme here only as it operates

upon the death of a male wage-earner, as that is the cir-

cumstance of this case.

’ Dependency is presumed in the case of an illegitimate

child (1) whose parents went through a marriage ceremony

that was rendered invalid by a non-obvious legal impediment

or (2) whose father (a) acknowledged his paternity in writ-

ing, (b) had been decreed by a court to be the child’s father or

(c) had been ordered by a court to support the child because

the child was his son or daughter. Sections 202(d) (3) and

216(h) (2) (B) and (h) (3) of the Act.

4

the time of his death, he had been living with them

or contributing to their support. Sections 202(d) (3)

and 216(h)(3)(C) (ii) of the Act.

2. Appellees are illegitimate children who applied

for surviving child’s insurance benefits on the earn-

ings account of their deceased father, Robert E.

Cuffee. The Secretary determined that appellees had

failed to demonstrate either that the statutory pre-

sumption of dependency was applicable in the facts

of their case (Tr. 43)* or that Cuffee had been con-

tributing to their support or living with them at the

time of his death (Tr. 45). The Secretary accord-

ingly denied their application for benefits (Tr. 4,

45).

Appellees then commenced this suit in the district

court pursuant to Section 205(g) of the Act, claim-

ing first that the Secretary’s decision was not sup-

ported by substantial evidence and, subsequently, that

Sections 202(d)(3) and 216(h)(3)(C) (ii) of the

Act violate the Fifth Amendment insofar as they

require illegitimate children to demonstrate depen-

dency without requiring a similar showing in the

case of legitimate children.’ The district court held

+“Tr.” refers to the transcript of the administrative pro-

ceedings.

° The district court initially held that the Secretary’s factual

determination that appellees did not meet the requirements of

the statute was supported by substantial evidence, but re-

manded the matter to the Secretary to determine whether

appellees were legitimate children under state law as the issue

of a valid common law marriage (App. A, infra, pp. 6a-8a).

After the Secretary determined that they were not, appellees

5

those statutory provisions unconstitutional (App. A,

infra, pp. la-27a) and ordered the payment of bene-

fits to appellees (App. B, infra, pp. 28a-29a).

THE QUESTION IS SUBSTANTIAL

The constitutionality of Sections 202(d)(3) and

216(h) (3) (C) (ii) is before the Court in Norton v.

Weinberger, supra. For the reasons stated by the

district court in that case, we believe that those pro-

visions are constitutional. Moreover, as we pointed

out in our memorandum filed in this Court as re-

spondent in that case, the issue is important to the

administration of the Social Security Act and is cur-

rently being litigated in several lower federal courts.

But if the constitutional issue presented here is re-

solved by this Court in Norton, plenary review of

this case will not be necessary.

sought reversal of the Secretary’s decision, and also challenged

for the first time the constitutionality of Sections 202(d) (3)

and 216(h) (3) (C) (ii) of the Act. The district court found

the Secretary’s determination concerning common law mar-

riage to be supported by substantial evidence (App. A, infra,

p. 9a)

* We are sending appellees a copy of that memorandum.

6

CONCLUSION

The appeal should be held pending this Court’s

disposition of Norton v. Weinberger.’

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

REX E. LEE,

Assistant Attorney General.

WILLIAM KANTER,

ROBERT S. GREENSPAN,

Attorneys.

JULY 1975.

‘In view of the fact that the question of jurisdiction in

Norton has been postponed until the hearing on the merits,

the Court alternatively may deem it appropriate to note

probable jurisdiction in this case, which does not appear to

raise the jurisdictional question posed by Norton (see Wein-

berger V. Salfi, supra, slip op. at 11, n. 8), and consolidate

the two cases for argument.

la

APPENDIX A

DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF RHODE ISLAND

C.A. No. 4845

Rusby M. Lucas and DarRIN E. Lucas, Infant Minors,

By Their Mother and Next Friend, BELMIRA LUCAS

v.

SECRETARY, DEPARTMENT OF HEALTH, EDUCATION

AND WELFARE, UNITED STATES OF AMERICA

OPINION

PETTINE, Chief Judge

This action is presently before the court to con-

sider the parties’ cross-motions for summary judg-

ment. The action was originally filed in 1972 to seek

review under 42 U.S.C. § 405(g) of the final deci-

sion of the Secretary of the Department of Health,

Education and Welfare (hereinafter “Secretary” )

denying plaintiffs surviving child’s benefits under the

Social Security Act as the children of a deceased wage

earner. 42 U.S.C. § 402(d).

STATUTORY SCHEME

On October 24, 1968, Belmira Lucas filed for Sur-

viving Child’s Insurance benefits on behalf of her

minor children Ruby Marie Lucas and Darin Ed-

ward Lucas, on the earnings record of Robert E.

2a

Cuffee, a deceased insured. The Social Security Act

(the “Act”), 42 U.S.C. § 402(d), details who is eli-

gible for such benefits and provides, in pertinent part:

“T§$ 402] Child’s Insurance Benefits

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

(e) of this title) . . . of an individual who dies

a fully or currently insured individual, if such

child—

(A) has filed application for child’s insurance

benefits, [and]

*- * *

(C) was dependent upon such individual—

(ii) if such individual has died, at the

time of such death,

*> *= *

shall be entitled to a child’s insurance benefit.”

Thus, in theory, in order to be eligible for surviv-

ing child’s benefits, an applicant must estabtish, first,

that he is the child of the deceased insured and, sec-

ond, that he was dependent upon the deceased in-

sured at the time of the latter’s death. The Act goes

on to define the term “child” in 42 U.S.C. § 416(e)

and (h). Subsection (e) provides that “child” in-

cludes a legitimate or legally adopted child of an

individual and certain step-children. In addition,

subsection (h) provides that certain biological chil-

dren of the deceased, although considered by law to

be illegitimate, also fall within the statutory defini-

8a

tion of “child”. These categories are described in the

following statutory provisions. Section 416(h) (2)

(A) of 42 U.S.C. provides that the statutory term

“child” includes a claimant who would take property

as a child under the laws of intestate succession of

the State of the deceased’s domicile at death. Section

416(h) (2) (B) provides that the statutory definition

of “child” also includes the biological child of a pur-

ported marriage which is invalid due to a non-obvious

legal impediment. Lastly, § 416(h)(3)(C) includes

within the statutory definition of “child” the son or

daughter of a deceased insured who:

“(42 U.S.C. § 416(h) (3) (C)(i)] (I) had ac-

knowledged 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 applicant because the ap-

plicant was his son or daughter,

and such acknowledgment, court decree, or court

order was made before the death of such in-

sured individual, or

(ii) such insured individual is shown by evi-

dence satisfactory to the Secretary to have been

the father of the applicant, and such insured in-

dividual was living with or contributing to the

support of the applicant at the time such in-

sured individual died.”

A claimant who has established that he meets the

statutory definition of “child” under 42 U.S.C. § 416

4a

(e) or (h) must next show that he meets the age

and marital requirements of 42 U.S.C. § 402(d) (1)

(B),’ and must show that he was “dependent” upon

the deceased insured pursuant to 42 U.S.C. § 402(d)

(1) (C) (ii). However, § 402(d) (3) conclusively pre-

sumes that the requisite dependency exists as to a

legitimate or adopted child of the insured, as defined

in § 416(e) and (h) (2) (A), and as to any claimant

who falls within one of the statutory definitions of

“child” provided in § 416(h)(2)(B) or §416(h).

(3).° Thus, the net operative effect of these provi-

sions, when read together, is to relieve all subclasses

of applicants for surviving child’s benefits, except

one, of the burden of demonstrating actual depend-

ency on, or indeed any monetary support by, the

deceased insured at the time of death. The only sub-

142 U.S.C. § 402(d) (1) (B) provides:

“(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 - * o *

(B) at the time such application was filed was un-

married 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 22.”

*The standards for determining dependency of a “step-

child”, which are not germane to the instant action, are pro-

vided in 42 U.S.C. § 402(d) (4). Any qualifications as to the

general operation of the Act which would be required to ac-

commodate the position of “stepchildren” under it are not

considered herein.

5a

class of applicants required to make a showing of

support is described in 42 U.S.C. § 416(h) (3) (C)

(ii) as the illegitimate child of the insured who does

not meet the provisions of either § 416(h)(2) or

§ 416(h) (3) (C) (i) and who was not living with the

insured at the time of his death. It would be fair

to say that in a comparison of all the subclasses of

illegitimate children defined by § 416(h), the child

defined by this last subclass represents that type of

illegitimate child with the least factual or legal in-

dicia of legitimacy or commonly recognized family

ties to the deceased insured.°

?In sum, the statutory classes of children recognized under

the Act (excluding “stepchildren”) may be broken down, in

the following order:

1. legitimate children of deceased insured, § 416(e).

a. legitimate, biological child

b. legally adopted child

2. illegitimate child with legal indicia of legitimacy.

a. by operation of the applicable laws of intestate suc-

cession § 416(h) (2) (A).

b. where the child is born of a seemingly valid mar-

riage invalidated by a non-obvious defect. § 416

(h) (2) (B).

c. where paternity of the child is formally acknowl-

edged by the deceased insured or formally estab-

lished in judicial procedings before the insured’s

death. § 416(h) (3) (C) (i).

3. illegitimate child with factual indicia of legitimacy.

Where the paternity and parental responsibility of the

child are factually demonstrated by the fact that, at

the time of death, the father was:

6a

PRIOR PROCEEDINGS

A review of the prior proceedings in this Court

demonstrates that the only issue remaining before

the Court is to determine whether 42 U.S.C. § 416

(h) (3) (C) (ii) violates the equal protection compo-

nent of the Due Process Clause of the Fifth Amend-

ment. Bolling v. Sharpe, 347 U.S. 497 (1954). See

also Frontiero v. Richardson, 411 U.S. 677, 680 n.5

(1973).

This action first came before a single judge to re-

view, under 42 U.S.C. § 405(g), the Secretary’s de-

nial of surviving child’s benefits to plaintiffs. In an

opinion and order rendered March 2, 1973, the author

herein reviewed the record and factual findings made

below. Ruling that the Secretary’s findings were

supported by substantial evidence, the Court accepted

as conclusive the following facts. 42 U.S.C. § 405(g).

Lucas v. Secretary, Department of Health, Educa-

tion and Welfare, C.A. #4845 (D.R.I. 3/2/73)

(hereinafter “Lucas I’). Robert Cuffee, the deceased

insured, lived with plaintiffs’ mother, Mrs. Belmira

Lucas, from 1948 to 1966. They never married. The

two minor plaintiffs, Ruby Marie Lucas and Darin

a. living with the child, or

b. contributing to the support of the child.

§ 416 (h) (3) (C) (ii).

4. illegitimate child. Where only paternity or maternity

is factually established, i.e., not eligible under any of

the above provisions.

7a

Edward Lucas, were born of this union. However,

the Secretary concluded that Cuffee had not acknowl-

edged his paternity in writing, nor had his paternity

or support obligations ever been the subject of a

judicial proceeding. As a result, the Court concluded

the minor plaintiffs did not meet the requirements of

42 U.S.C. § 416(h) (3) (C) (i) (1), (II), or (IID),

under which plaintiffs’ eligibility for the benefits

would have been automatic.

The Court next turned its attention to the question

of eligibility under § 416(h) (3) (C) (ii). The admin-

istrative hearing examiner found, and the Court

agreed, that no evidence had been presented to show

that Cuffee was living with the plaintiffs at the time

of his death. As to the question whether Cuffee had

been “contributing to the support of” his children,

the minor plaintiffs herein, the Court stated:

“The term ‘contributing to the support of’

means regular and substantial support, and is

not satisfied by occasional gifts and minor con-

tributions at irregular intervals. Turley v. Co-

hen, [325 F.Supp. 1067, 1070 (D.W.Va. 1970) ];

Hupp v. Celebrezze, 220 F.Supp. 463 (N.D. Iowa

1962); Corey v. Social Security Board, 62 F.

Supp. 458 (W.D.Ky. 1945). In reviewing the

administrative determination that Cuffee was

not contributing to the support of the plaintiffs,

this Court must consider whether such a deter-

mination is supported by substantial evidence.

In Laws v. Celebrezze, 368 F.2d 640 (4th Cir.

1966), the court defined ‘substantial evidence’ as

8a

‘, .. evidence which a reasoning mind would

accept as sufficient to support a particular

conclusion. It consists of more than a scin-

tilla of evidence, but may be somewhat less

than a preponderance.’

* . + * .

In any event, a conclusion that plaintiffs received

no support or just occasional irregular support

from the insured during the last year of his life

is supported by substantial evidence. The fact

that this Court might have assessed the evidence

and concluded differently is irrelevant. The find-

ing of defendant that Robert Cuffee was neither

living with nor contributing to the support of

the plaintiffs is affirmed.”

Id., slip op. at 8-10.

Although it concluded that plaintiffs were not

eligible under § 416(h)(3)(C) (ii), the Court re-

manded the case for an administrative determination

as to whether the plaintiffs were legitimate children

under Rhode Island law as the issue of a valid com-

mon law marriage. If so, the Court reasoned, each

plaintiff would have been entitled to take by intes-

tacy a child’s share of the personal property of their

father, whose domicile at death was Rhode Island,

and would thereby meet the eligibility requirements

for benefits under 42 U.S.C. §§ 402(d)(3) and 416

(h) (2) (A) despite the fact that plaintiffs had failed

to make a satisfactory showing of factual dependence

on Cuffee for support at the time of his death.

R.1.G.L. §§ 33-1-10, 33-1-1, and 15-8-21 (1956, 1969

Reenactment). Lucas I, slip op. at 11-16.

9a

On remand, the Secretary ruled that Belmira Lu-

cas and Robert Cuffee had never entered into a valid

common law marriage and that, as a result, their

children were not eligible for the benefits sought here-

in under 42 U.S.C. § 416(h)(2)(A). Pursuant to

42 U.S.C. § 405(g), plaintiffs once again sought re-

versal of the Secretary’s decision, on two grounds:

first, they claimed that the Secretary had erred in

his assessment of the evidence and applicable Rhode

Island law; and second, they claimed that 42 U.S.C.

§ 416(h) (3) (C) (ii) was unconstitutional because it

conditioned plaintiffs’ eligibility on proof of actual

dependency without requiring a similar showing of

legitimate surviving children. Plaintiffs thereupon

moved for summary judgment, seeking both to receive

the surviving child’s benefits denied them and to en-

join application of 42 U.S.C. § 416(h) (3) (C) (ii).

In an opinion and order rendered August 30, 1974,

Lucas v. Secretary, Department of Health, Educa-

tion and Welfare, C.A. No. 4845 (D.R.I.) (herein-

after “Lucas IJ’), the author herein, sitting as a

single judge, affirmed the Secretary’s finding that no

common law marriage had ever been contracted and .

that plaintiffs did not meet the eligibility test of 42

U.S.C. § 416(h)(2)(A). As to plaintiffs’ second

claim, the Court determined that since plaintiffs

sought to enjoin the operation of a federal statute

and had raised a substantial question as to its con-

stitutionality, a three-judge court was required to de-

termine that issue. 28 U.S.C. §§ 2282, 2284. Lucas

II, slip op. at 15-16. See Norton v. Richardson, 3.2

10a

F.Supp. 596, 598-599 (D.Md. 1972) (hereinafter

“Norton I’). See also Maracle v. Richardson, 348

F.Supp. 234 (W.D.N.Y. 1972); Davis v. Richardson,

342 F.Supp. 588 (D.Conn. 1972), aff'd, 409 U.S.

1069 (1972). A three-judge court was thereupon

convened. Plaintiffs renewed their motion for sum-

mary judgment, but did not reassert their earlier

request for an injunction against the enforcement of

42 U.S.C. § 416(h) (3) (C) (ii) generally. In Flem-

ming v. Nestor, 363 U.S. 603 (1960), the Supreme

Court held definitively that a single judge has juris-

diction to hear an action under 42 U.S.C. § 405(g)

which, although drawing the constitutionality of a

federal statute into question, does ‘“‘not seek affirma-

tively to interdict the operation of a_ statutory

scheme.” Jd. at 607-608. Cf. Davis v. Richardson,

supra at 589, 593. In view of the great disfavor

evinced by the Supreme Court toward unnecessary

reference of matters to three-jud.e courts, Hagans v.

Lavine, 415 U.S. 528, 543-544 (1974), see also Gon-

zalez v. Automatic Employees Credit Union, ——

US. , 43 U.S.L.W. 4025 (12/10/74), the Court

sought to clarify the apparent ambiguity as to the

relief sought. In a letter dated February 5, 1975,

counsel for the plaintiffs indicated that a reversal of

the Secretary’s decision alone was sought. In an order

entered February 20, 1975, the three-judge court dis-

solved itself and remanded the case for determination

by a single judge. There being no factual issues in

dispute, the matter is ripe for summary judgment.

Fed.R.Civ.P. 56.

lla

EQUAL PROTECTION

As is evident from the discussion of the statutory

scheme above, a claimant seeking surviving child’s

benefits as the illegitimate child of a deceased insured

must meet many more requirements to establish his

eligibility than does a legitimate child, who need only

establish paternity or maternity, or formal adoption.

A simple comparison may be useful. Assuming he

meets the age and marital requirements of 42 U.S.C.

§ 402(d)(1)(B), the legitimate child of a deceased

insured need only prove paternity and file for benefits

to establish eligibility. A similarly situated illegiti-

mate child, however, must do more than merely prove

paternity and file to establish eligibility. He must also

show that he could inherit as a child of his father’s

personalty under the intestacy law of the insured’s

domicile (42 U.S.C. § 416(h)(2)(A)), or that he

was the issue of a marriage invalidated by a non-

obvious legal impediment (42 U.S.C. § 416(h) (2)

(B)), or that he was formally acknowledged in writ-

ing by the insured as his child, or that paternity was

established in judicial proceedings before the insured’s

death (42 U.S.C. § 416(h)(3)(C)(i)), or that the

insured, at the time of his death, was either living

with claimant or contributing to his support. (42

U.S.C. § 416(h) (3) (C) (ii)). And, of course, if he

fails to establish that he meets any of these alterna-

tive tests, he will be denied the benefits sought.

Thus, only one subclass of illegitimate children will

ultimately be denied surviving child’s benefits under

12a

this scheme. But it would be entirely simplistic to

view these provisions as merely differentiating be-

tween various classes of illegitimates, i.e. those who

do in fact establish eligibility versus those who do not.

Contra Jimenez v. Richardson, 353 F.Supp. 1356

(N.D. Ill. 1973), rev’d sub nom., Jimenez v. Wein-

berger, 417 U.S. 628 (1974). Cf. Norton v. Wein-

berger, 364 F.Supp. 1117 (D.Md. 1973), vacated and

remanded, U.S. ——, 94 S.Ct. 3191 (1974)

(hereinafter “Norton II’). To the contrary, to be

eligible all claimants must establish the biological

parenthood of the insured. However, additional bur-

dens are imposed strictly on the basis of illegitimacy

of birth. In Frontiero vy. Richardson, supra, the

statutory scheme under attack produced a closely

analogous differential in treatment. There, a married

male member of the uniformed services was automat-

ically entitled to certain fringe benefits. A married

female member of the uniformed services was also

entitled to such benefits, but eligibility was also con-

ditioned upon a showing that her husband was ac-

tually dependent upon her. As in the case at bar,

this additional burden meant that one subclass of

married female service people would receive benefits

while another subclass (those whose husbands were

not factually dependent) would not. Yet the Court had

no trouble in recognizing that the challenged statute

discriminated on the basis of sex, and not simply be-

13a

tween two classes of women.‘ See also Jimenez v.

Weinberger, supra.

Plaintiffs herein claim that the differential treat-

ment embodied in the surviving child provisions of

the Act constitutes an invidious discrimination in

violation of the Due Process Clause of the Fifth

Amendment.

“(While the Fifth Amendment contains no

equal protection clause, it does forbid discrimina-

* Rejecting a similar argument advanced in Weber v. Aetna

Casualty & Surety Co., 406 U.S. 164 (1972), the Supreme

Court, per Justice Powell, stated at 169, 172:

“The court below sought to distinguish [Levy V.

Louisiana, 391 U.S. 68 (1968)] as involving a statute

which absolutely excluded all illegitimates from recovery,

whereas in the compensation statute in the instant case

acknowledged illegitimates may recover equally with

legitimate children and ‘the unacknowledged illegitimate

child is not denied a right to recover compensation, he

being merely relegated to a less favorable position as are

other dependent relatives such as parents... .’ Stokes V.

Aetna Casualty & Surety Co., 257 La. 424, 433-434, 242

So.2d 567, 570 (1970).

* * * * *

“We do not think Levy can be disposed of by such

finely carved distinctions. The Court in Levy was not so

much concerned with the tortfeasor going free as with the

equality of treatment under the statutory recovery

scheme. Here, as in Levy, there is impermissible discrim-

ination. An unacknowledged illegitimate child may suffer

as much from the loss of a parent as a child born within

wedlock or an illegitimate later acknowledged.

“|. It makes no difference that illegitimates are not

so absolutely or broadly barred here as in Levy; the dis-

crimination remains apparent.” (emphasis in original)

See also Davis V. Richardson, supra.

l4a

tion that is ‘so unjustifiable as to be violative

of due process.’” Schneider v. Rusk, 377 U.S.

163, 168 (1964), quoted in Frontiero v. Richard-

son, supra at 680, n.d,

A.

In reviewing a federal law challenged as discrim-

inatory, the Supreme Court has adopted those stand-

ards of review developed to test the constitutionality

of a state statute under the Equal Protection Clause

of the Fourteenth Amendment. See, e.g., United

States Department of Agriculture v. Moreno, 413

U.S. 528 (1973); Frontiero v. Richardson, supra;

Richardson v. Belcher, 404 U.S. 78 (1971), Cf.

O’Neill v. Dent, 364 F.Supp. 565, 578 (E.D.N.Y.

1973). These standards have traditionally been char-

acterized as a two-tiered approach.’ Where a classi-

>The question whether the Supreme Court has forged a

third middle-ground test for certain classifications, coined by

one circuit court as “strict rationality”, Berkelman v. San

Francisco Unified School Dist., 501 F.2d 1264, 1269 (9th Cir.

1974), or has revitalized the lower-rung “rational basis”

test into a meaningful standard of review, Women’s Libera-

tion Union of RJ. Vv. Israel, 379 F.Supp. 44, 49 (D.R.I. 1974)

and discussion infra, is the source of much debate and con-

fusion. See Gunther, The Supreme Court, 1971 Term—Fore-

word: In Search of Evolving Doctrine on a Changing Court:

A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 21

(1972). See also, Green V. Waterford Board of Education, 473

F.2d 629; Norton II, supra; Women’s Liberation v. Israel,

supra at 49-50. Indeed, on the basis of a very recent Supreme

Cour* decision, it might be argued that the higher-rung of the

Equal Protection ladder, the “strict scrutiny” test is also

being reshaped to the extent that one might speculate as to

the future breakdown of the rigid two-tier test and the

l5a

fication is based upon “suspect” criteria, Graham v.

Richardson, 403 U.S. 365 (1971), or impinges upon a

“fundamental” interest, Shapiro v. Thompson, 394

U.S. 618 (1968), it will be subjected to strict ju-

dicial scrutiny and declared invalid unless it is nar-

rowly tailored to fulfill a compelling governmental

interest. Memorial Hospital v. Maricopa County, 415

U.S. 250 (1974). Other classifications will be sub-

jected to a less demanding test to determine if they

“rest upon some ground of difference having a fair

and substantial relation to the object of the legisla-

tion,” Royster Guano Co. v. Virginia, 253 U.S. 412,

415 (1920), quoted in Reed v. Reed, 404 U.S. 71, 76

(1971). This Court had occasion to consider the

proper scope of review under the so-called “rational

basis” test in Women’s Liberation Union of Rhode

Island, Inc. v. Israel, 379 F.Supp. 44, 49-50 (D.R.I.

1974):

“A review of recent Supreme Court decisions

indicates that the highly deferential ‘rational

basis’ test applied by the Court in the 1960’s

is being reshaped into a meaningful standard of

review. The nature of the inquiry under this

emergence of a more fluid, sliding-scale approach to all equal

protection challenges. See Sosna v. lorva, —— U.S. ——, 43

U.S.L.W. 4125, 4133 (1975) (Marshall, J., dissenting). See

also Weber, supra at 173 (majority opinion) and 181 (Rehn-

quist, J., dissenting). Cf. San Antonio School District Vv.

Rodriguez, 411 U.S. 1, 98-110 (1973) (Marshall, J., dissent-

ing), Chicago Police Department v. Mosley, 408 U.S. 92

(1972). See generally Gunther, The Supreme Court, 1971

Term, supra at 17-18.

16a

‘invigorated’ test has been variously expressed

but certain salient features have emerged. First,

the Court will not speculate as to unexpressed

permissible state interests which may rationally

be furti.ered by a challenged classification, but

will confine its inquiry to articulated or obvious

objectives. LaFleur, [Board of Education v. La-

Fleur, 414 U.S. 632 (1974)] (Powell, J., con-

curring); San Antonio Independent School Dis-

trict v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct.

1278, 36 L.Ed. 2d 16 (1973); Green v. Water-

ford Board of Ed., supra. Second, the Court

will not accept factually unsupported assump-

tions to demonstrate the reasonableness of a

challenged classification. U.S. Dept. of Agri-

culture v. Moreno, 413 U.S. 528, 535, 93 S.Ct.

2821, 37 L.Ed.2d 782 (1973). ... Third, The

Court in a number of instances has abandoned

the highly deferential formulation of the “ra-

tional basis” test, such as that expressed in Mc-

Gowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct.

1101, 1105, 6 L.Ed.2d 393 (1961), that a classi-

fication must be sustained “if any state of facts

reasonably may be conceived to justify it’ and

now demands that the classification bear a sub-

stantial or significant relation to the objective

it is claimed to further. Reed, supra 404 U.S.

at 75-76, 92 S.Ct. 251.” (footnote omitted).

The first question before us, then, is to determine

the appropriate standard of review. Plaintiffs urge

that we hold classifications based on legitimacy of

birth to be “suspect” and subject the challenged pro-

vision to strict judicial scrutiny. They refer us to

the majority opinion in San Antonio Independent

17a

School District v. Rodriguez, 411 U.S. 1 (1973) (here-

inafter “Rodriguez’’), wherein the Court, per Justice

Powell, enumerated the “traditional indicia of sus-

pectness” thusly:

“(T]he class is . . . saddled with such disabili-

ties, or subjected to such a history of purpose-

ful unequal treatment, or relegated to such a

position of political powerlessness as to command

extraordinary protection from the majoritarian

political process.” Jd. at 28.

The Supreme Court’s own statements in a succes-

sion of cases requiring equality of treatment for il-

legitimate children ° demonstrate that the immutable

trait of illegitimacy bears all the “traditional indicia

of suspectness” set forth in Rodriguez, supra. In

* With only one exception, the Court in recent years has

consistenly struck down statutes as denying equal protection

of the laws, where the classification was based on illegitimacy

of birth. See Jimenez Vv. Weinberger, 417 U.S. 628, 94 S.Ct.

2496 (1974); Gomez v. Perez, 409 U.S. 535 (1973); Weber,

supra; Levy V. Louisiana, 391 U.S. 68 (1968); Glona v. Amer-

ican Guarantee Co., 391 U.S. 73 (1968). But see Labine v.

Vincent, 401 U.S. 532 (1971). The continued vitality of

Labine, a 5-4 decision rendered before Justices Powell and

Rehnquist were appointed to the Court, is somewhat open to

doubt. Since Labine was decided in 1971, Justice Stewart, who

joined the majority opinion therein, has stated that illegiti-

macy, “at least in some settings”, is a suspect classification.

Rodriguez, supra at 61. But see Eskra v. Morton, 380 F.Supp.

205, 214, 219 (W.D.Wis. 1974). Be that as it may, Labine is

clearly distinguishable from the instant case for the reasons

stated in Davis Vv. Richardson, supra at 592. See also Weber,

supra at 170. Cf. Miller v. Laird, 349 F.Supp. 1034, 1041

(D.D.C. 1972).

18a

todriguez, Justice Marshall commented on the second-

class status of illegitimate children:

“Status of birth, like the color of one’s skin, is

something which the individual cannot control,

and should generally be irrelevant in legislative

considerations. Yet illegitimacy has long been

stigmatized by our society.” Jd. at 109 (dis-

senting opinion).

In asking the question “[w]hy should the illegitimate

child be denied rights merely because of his birth out

of wedlock?”, Levy v. Louisiana, 391 U.S. 68, 71

(1968), the Court found it necessary to proclaim:

“We start from the premise that illegitimate

children are not ‘non-persons’. They are humans,

live, and have their being. They are clearly

‘persons’ within the meaning of the Equal Pro-

tection Clause of the Fourteenth Armendment.”

Id. at 70 (footnotes omitted).

Similarly in Weber v. Aetna Casualty & Surety Co.,

406 U.S. 164 (1972) (hereinafter “Weber’), the

Court explained the need for judicial sensitivity and

solicitude to classifications which disadvantage il-

legitimates :

_ “The status of illegitimacy has expressed

through the ages society’s condemnation of ir-

responsible liaisons beyond the bonds of mar-

riage. But visiting this condemnation on the

head of an infant is illogical and unjust. More-

over, imposing disabilities on the illegitimate

child is contrary to the basic concept of our sys-

tem that legal burdens should bear some rela-

ees et ee ee

see nt Veeeooee:

19a

tionship to individual responsibility or wrong-

doing. Obviously, no child is responsible for his

birth and penalizing the illegitimate child is an

ineffectual—as well as an unjust—way of de-

terring the parent. Courts are powerless to pre-

vent the social opprobrizm suffered by these

hapless children, but the Hyual Protection Clause

does enable us to strike down discriminatory

laws relating to status of birth where—as in

this case—the classification is justified by no

legitimate state interest, compelling or otherwise.

Id. at 175-176 (footnote omitted).

The standard of review applied in Weber is far

from clear. The Court first makes reference to the

minimum equal protection requirement “that a statu-

tory classification bear some rational relationship to

a legitimate state purpose”. Jd. at 172 (citations

omitted). The Court then states, however:

“Though the latitude given state economic and

social regulation is necessarily broad, when state

statutory classifications approach sensitive and

fundamental personal rights, this Court exer-

cises a stricter scrutiny, Brown v. Board of

Education, 347 U.S. 483 (1954); Harper v. Vir-

ginia Board of Elections, 383 U.S. 663 (1966).

The essential inquiry in all the foregoing cases

is, however, inevitably a dual one: What legiti-

mate state interest does the classification pro-

mote? What fundamental personal rights might

the classification endanger?”

Id. at 172-173 (emphasis added). See note 5,

supra.

20a

And only a few short paragraphs later, the Court

rejects the state interest therein advanced as “not

compelling”. Jd. at 173. Cf. Miller v. Laird, 349 F.

Supp. 1034, 1046 (D.D.C. 1972). Equally unclear

is the standard of review applied by the Court in its

per curiam decision in Gomez v. Perez, 409 U.S. 535

(1973), wherein the Court, after reviewing its deci-

sions in Levy v. Louisiana, supra, and Weber, supra,

simply stated:

“Under these decisions, a State may not invidi-

ously discriminate against illegitimate children

by denying them substantial benefits accorded

children generally. 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 suf-

ficient justification for denying such an essential

right to a child simply because its natural father

has not married its mother.” Gomez v. Perez,

supra at 538 (emphasis added).

See generally Eskra v. Morton, 380 F.Supp. 205, 216-

217 and n. 138 (W.D.Wis. 1974).

In view of the foregoing discussion and the fre-

quency with which illegitimate children have been

required to turn to the courts to seek equality of

treatment,’ this Court is propelled to the conclusion

* See n.6 supra. For lower court opinions, see, e.g., Beaty

v. Weinberger, 478 F.2d 300 (5th Cir. 1973) aff'd, —— US.

——, 94 S.Ct. 3190 (1974); Watts v. Veneman, 476 F.2d 529

(D.C.Cir. 1973), aff’g, 334 F.Supp. 482 (D.D.C. 1971); Norton

II, supra; Severance V. Weinberger, 362 F.Supp. 1348 (D.D.C.

1973); Miller v. Laird, supra at 1046 and n.107; Maracle v.

Se

2la

that illegitimacy should be treated as a “suspect”

classification. See Eskra v. Morton, supra at 215.

However, the Court is guided by the recent Supreme

Court decision of Jimenez v. Weinberger, supra at

631-632, 636, to refrain from reaching such a con-

clusion if the challenged classification cannot with-

stand a review under the less stringent “rational

basis” test* Cf. Women’s Liberation v. Israel, supra

at 49. We must therefore turn to that question first.

Richardson, supra; Griffin Vv. Richardson, 346 F.Supp. 1226

(D.Md. 1972), aff'd without opinion, 409 U.S. 1069; Davis v.

Richardson, supra.

* Although the foregoing analysis and conclusion must ulti-

mately be characterized as obiter dictum, the Court believes

that an extended discussion of the propriety of labelling

illegitimacy as “suspect” was warranted in this case in view

of the “close question” presented under the “rational basis”

test. Compare Adams V. Weinberger, No. 73-C-633, unre-

ported op. (E.D.N.Y. 11/25/74), and Norton II, supra, each

rejecting a constitutional challenge identical to the one at bar.

As discussed infra, the provisions under attack at first glance

appear to overcome the deficiencies deemed fatal by the

Supreme Court in Jimenez Vv. Weinberger, supra. As decisional

law on the status of illegitimate children increases and as leg-

islators grow more sensitive to constitutional demands in this

area, we see laws enacted, as in the case at bar, which in-

creasingly approach all that is constitutionally required to

survive review under the “rational basis” test. If the consti-

tutional threshold of the “rational basis” test had been met,

this Court has no doubt that review under the “strict scrutiny”

test would have been appropriate and would prove fatal to

the challenged classification. However, for reasons which

follow, the Court concludes that the statutory scheme does not

quite reach that threshold.

22a

B.

Keeping in mind the principles outlined ante at

——, slip. op. at 15-16, we must begin our inquiry

with an analysis of Jimenez v. Weinberger, supra,

the latest Supreme Court decision in this area. Plain-

tiffs in Jimenez were two illegitimate children of

Ramon Jimenez, a disabled wage-earner covered by

the Social Security Act. Since they were born after

the onset of their father’s disability, they were in-

eligible to receive child’s insurance benefits. Had they

been legitimate, or “legitimated” within the meaning

of 42 U.S.C. § 416(h) (2), plaintiffs would have been

entitled to the benefits, despite the fact that they

were born after Mr. Jimenez’s disability occurred.

To support this discrimination, the Secretary there,

as in the case at bar, claimed that it was designed

to prevent spufious claims. Although acknowledging

that the prevention of spurious claims was indeed a

legitimate governmental interest, the Court concluded

that the challenged classification was not reasonably

related to that purpose or the purposes of the Act

in general. The Court based its conclusions on the

fact that the classification was both “under-inclu-

sive,” “in that it conclusively excludes some illegiti-

mates in appellants’ subclass who are, in fact, de-

pendent upon their disabled parent” and “over-inclu-

sive,” “in that it benefits some children . . . who are

not dependent on their disabled parent.” Id. at 637.

Cf. Tussman and tenBroek, “The Equal Protection

of the Laws,” 37 Calif.L.Rev. 341 (1949). The Court

es ——

23a

reasoned that it could not serve the purpose of pre-

venting spurious claims to deny benefits to some chil-

dren who were in fact dependent nor to grant bene-

fits to some who were in fact not dependent. Ad-

dressing itself to plaintiffs’ particular situation, the

Court remanded the case to give them an opportunity

to establish factual dependency. Jimenez, supra at

636-638. In so doing, the Court in effect eliminated

the “under-inclusive”’ aspect of the statute.

The statute before this Court is not “under-inclu-

sive.” Section 416(h) (3) (C) (ii) provided plaintiffs

an opportunity to demonstrate their factual depend-

ency. They were unable to do so. However, an analy-

sis of the statutory scheme reveals that it is nonethe-

less “over-inclusive” in that some of the “children”

conclusively presumed dependent by 42 U.S.C. § 402

(d)(3) are not, thereby refuting the claim that the

classification is designed to prevent spurious claims.°

The Secretary virtually concedes as much by arguing:

® With all due respect to the court ruling in Norton II,

supra, this Court will not engage in far-reaching speculations

as to the degree of correlation between the various subclasses

of illegitimates and parental support, absent any statistical

bases. Id. at 1128. Accord Miller v. Laird, supra at 1044.

See Jimenez V. Weinberger, supra at 636-637. The facts of

the instant case suggest that the presumptions made in sup-

port of the instant classification are too facile. Here plaintiffs’

mother and Robert Cuffee lived! together and shared expenses

for 18 years, during which time the plaintiffs were born. For

the last two years of his life, Cuffee lived with his mother and

contributed to his children’s support on an infrequent basis.

Although it is undisputed that plaintiffs are Cuffee’s children,

they are nonetheless rendered ineligible by 42 U.S.C. § 416(h)

24a

“Under the Social Security Act the marriage of

the child’s parent is a significant act that estab-

lishes dependency or the right to support. Where

no marriage exists it is rational and equitable

for Congress to require some other significant

act in order to establish the right of the child to

support from the parent on whose account h ne-

fits are claimed.” Brief of Defendant in Re-

sponse to Brief of Amicus Curiae, pp. 2-3 (em-

phasis added).

The Secretary’s argument boils down to this: Con-

gress’ intention in delineating who is eligible for

child’s insurance benefits was not to provide a source

of income to replace one actually lost, but to provide

a source of income to those who, based on society’s

views of parental obligations, ought to receive sup-

port, whether they had in fact received it or not.

The key to the Secretary’s argument, as quoted above,

is the child’s “right to support”. The Secretary ar-

gues that Congress could and did conclude that it

could parcel out benefits on the basis of a parent’s

greater obligations to the offspring of a marriage

than to “those which he owes to the offspring of a

casual liaison.” * Defendant’s Brief, supra at 1. Cf.

(3) (C) (ii) simply because at the time of Cuffee’s death, he

was no longer part of the family unit. It takes little imagina-

tion to postulate the situation where, after several years of a

marriage, there is a separation and one spouse leaves the home.

Like Cuffee, that spouse does not in fact contribute to his or

her children’s support. Yet upon that spouse’s death, the

children are automatically entitled to surviving child’s benefits

if the parent was covered by the Act.

1° Though the Secretary raises this argument here, one can

hardly term an 18-year union a “casual liaison”.

—s

a

25a

Norton II, supra at 1127, n.6. Thus, once again we

are confronted with a legislative enactment which

visits “society’s condemnation of irresponsible liai-

sons beyond the bonds of marriage” on the head of

the child who is in no way responsible for the cir-

cumstances of his birth. Weber, supra at 175. The

statutory scheme unquestionably does further the in-

terest recited by the Secretary. It conditions eligi-

bility on the basis of Congress’ views as to who is

entitled to support and reflects society’s view that

legitimate and “legitimated” children are more en-

titled to support by or through a parent than are

illegitimate children. But this is not a legitimate

governmental interest, and thus cannot support the

challenged classification. Gomez v. Perez, supra. The

Secretary has failed to assert any other government

interest to support this classification. Therefore his

denial of benefits to the plaintiffs is reversed.

In concluding that 42 U.S.C. § 416(h) (3) (C) (ii)

is unconstitutional ingofar as it restricts eligibility

to those children whose fathers were contributing to

their support at death, the Court would point out

that the government’s legitimate interest in prevent-

ing spurious claims is not undermined.” The initial

11 Obviously, today’s ruling, if it were to be enforced gen-

erally, confers eligibility on some illegitimate children, not

previously eligible, who were not in fact dependent on the

deceased insured. Yet the Court cannot agree with the con-

clusion reached by the district court in Norton II, supra at

1129, n.8, that such a ruling would “alter the purpose, scope

or operation of the statute in a way the legislature never in-

tended.” (emphasis added) (citations omitted). The Norton

26a

burden of establishing biological parenthood may

prove insurmountable in many cases where the de-

ceased insured and purported father had never for-

mally acknowledged paternity, and was neither living

with the child nor contributing to his support. See

Miller v. Laird, supra at 1044 and n.95. Cf. Gomez

v. Perez, supra at 538; Weber, supra at 175.

The Court recognizes that the remand in Jimenez

v. Weinberger, supra, on the issue of factual depend-

ency appears to argue against the conclusion reached

today. However, two considerations lead this Court

to the opposite conclusion. First, on the record be-

fore the Supreme Court in Jimenez, there was no

question that the plaintiffs therein were in fact de-

pendent upon their disabled father. Thus, a ruling

narrowly tailored to provide them an opportunity to

demonstrate dependency would eliminate the injury

and, it may be argued, their standing to challenge

the “under-inclusiveness” of the provision as it re-

lated to illegitimate children deemed ineligible for

failure to demonstrate dependency. See Broadrick v.

Oklahoma, 413 U.S. 601, 610-611 (1973). Cf. Fron-

tiero v. Richardson, supra, especially at 691 (concur-

II court reached this conclusion on the premise that the Act’s

benefits are conferred only on those children who are actually

dependent. This Court, like the Supreme Court in Jimenez,

supra, decided after Norton II, has determined that the Act

already operates to qualify some children who are not in fact

dependent. Thus this decision would merely expand the class

of eligible children, without substantially altering the opera-

tion of the Act.

Cf. Norton II, supra at 1127, n.6.

27a

ring opinions of Stewart, J. and Powell, J.). Second,

if this were not so, it is difficult to divine the reason

behind the Supreme Court’s vacation and remand of

Norton II, supra, a challenge identical to plaintiffs’

herein, for reconsideration in light of its ruling in

Jimenez.”

Enter order accordingly.

/s/ Raymond J. Pettine

Chief Judge

February 25, 1975

22 The remand may be limited to the fact that the district

court in Norton II placed some reliance on the lower court

decision in Jimenez V. Richardson, supra, subsequently re-

versed by the Supreme Court. As the Court itself noted, in a

slightly different context, “[a]s frequently occurs in the case

of summary affirmance, [the basis for] the decision .. . is

somewhat opaque.” Gibson v. Berryhill, 411 U.S. 564, 576

(1973). Norton II is presently being reconsidered by the

three-judge district court in the District of Maryland.

28a

APPENDIX B

DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF RHODE ISLAND

C.A. No. 4845

Rusy M. Lucas and DARIN E. LUCAS, infant minors,

by their mother and next friend, BELMIRA LUCAS

v8.

SECRETARY, DEPARTMENT OF HEALTH, EDUCATION

AND WELFARE, UNITED STATES OF AMERICA

ORDER

The above cause came to be heard on Motion for

Summary Judgment by Chief Justice Raymond J.

Pettine and after submission of Memoranda of Law

and the rendering of a written decision on or about

February 25, 1975, it was ORDERED, ADJUDGED

and DECREED:

1. Plaintiff’s Motion for Summary Judgment is

granted.

2. The Administrative Decision of the Department

of Health, Education & Weifare for the United

States of America declaring Ruby M. Lucas and

Darin E. Lucas ineligible for surviving child’s bene-

fits under the Social Security Act as children of a

deceased wage earner, Robert Cuffee, Social Security

No. 039-12-1375, is reversed.

3. The Secretary of the Cepartment of Health,

Education & Welfare be and he is hereby ordered to

29a

pay Social Security benefits for said minor children

of the deceased wage earner in accordance with the

Social Security Act.

4. Plaintiffs are awarded the full benefits in ac-

cordance with the Social Security Act.

5. Defendant shall pay, from the total award,

Twenty-Five Per Cent (25%) of the past due bene-

fits, as fees, to plaintiffs’ counsel, Thomas W. Pearl-

man, it representing an agreed contingency fee and

the Court finds this to be a fair and reasonable fee

for work done.

By ORDER:

/s/ Frederick R. DeCesaris

Clerk

ENTER:

/s/ Raymond J. Pettine

Chief Judge

3/21/75

30a

APPENDIX C

IN THE

DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF RHODE ISLAND

Civil Action No. 4845

Rusy M. Lucas and DARIN E. LUCAS, infant minors,

by their mother and next friend, BELMIRA LUCAS

vs.

SECRETARY, DEPARTMENT OF HEALTH, EDUCATION

AND WELFARE, UNITED STATES OF AMERICA

NOTICE OF APPEAL

Notice is hereby given that the defendant hereby

appeals to the Supreme Court of the United States,

pursuant to Title 28, United States Code, Sections

1252 and 2101, from the judgment of the District

Court entered in this action on March 21, 1975.

Dated at Providence, Rhode Island, this 15th day of

April, 1975.

SECRETARY, DEPARTMENT OF HEALTH,

EDUCATION, AND WELFARE, UNITED

STATES OF AMERICA

By his Attorneys,

/s/ Lincoln C. Almond

LINCOLN C. ALMOND

United States Attorney

/s/ Everett C. Sammartino

EVERETT C. SAMMARTINO

Assistant U. 8. Attorney

3la

APPENDIX D

The Fifth Amendment to the United States Con-

stitution provides in pertinent part:

No person shall be * * * deprived of * * *

property, without due process of law * * *.

Section 202(d)(1) and (3) of the Social Security

Act, 42 U.S.C. 402(d)(1) and (3), provide in perti-

nent part:

(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 in-

surance 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 individ-

ual—

(i) if such individual is living, at

the time such application was filed,

(ii) if such individual has died, at

the time of such death, or

(iii) if such individual had a period

of disability which continued until he

became entitled to old-age or disability

insurance benefits, or (if he has died)

32a

until the month of his death, at the

beginning of such period of disability

or at the time he became entitled to

such benefits,

(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 para-

graph (1)(C) of this subsection unless, at such

time, such individual was not living with or con-

tributing to the support of such child and—

(A) such child is neither the legitimate

nor adopted child of such individual, or

(B) such child has been adopted by some

other individual.

For purposes of this paragraph, a child deemed

to be a child of a fully or currently insured in-

dividual 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 individual.

Section 216(h) (3) of the Social Security Act, 42

U.S.C. 416(h) (3), provides in pertinent part:

(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 under paragraph (2)

of this subsection, shall nevertheless be deemed

to be the child of such insured individual if:

* x * * *

(C) in the case of a deceased individ-

ual—

(i) such insured individual—

33a

(I) had acknowledged in writ-

ing that the applicant is his son

or daughter,

(II) had been decreed by a

court to be the father of the ap-

plicant, or

(III) had been ordered by a

court to contribute to the support

of the applicant because the appli-

cant was his son or daughter,

and such acknowledgment, court de-

cree, or court order was made before

the death of such insured individual, or

(ii) such insured individual is

shown by evidence satisfactory to the

Secretary to have been the father of

the applicant, and such insured indi-

vidual was living with or contributing

to the support of the applicant at the

time such insured individual died.

W ov. &. Goverment paintine orrice; 1975 seeces 1