Jurisdictional Statement — Califano v. Jobst

J. 1

* FILED

DEC 9° 1976

No.

— — — — ene CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1976

76-860

F. DAviD MATHEWS, SECRETARY OF HEALTH,

EDUCATION, AND WELFARE, APPELLANT

V.

JOHN A. JOBST

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

JURISDICTIONAL STATEMENT

ROBERT H. BORK,

Solicitor General,

Rex E. Lee,

Assistant Attorney General,

STEPHEN L. URBANCZYK,

Assistant to the Solicitor General,

WILLIAM KANTER,

KAREN K. SIBGEL,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

Opinions below 1

Jurisdiction 1

Question presented 2

Constitutional and statutory provisions in-

volved 2

Statement * 3 3

The question is substantial 6

Conclusion | 15

Appendix A la

Appendix B 5a

Appendix C 18a

Appendix D 2la

Appendix E 23a

CITATIONS

Cases:

Mathews v. de Castro, No. 75-1197, de-

cided December 13, 1976 7,9,13

Mathews v. Lucas, No. 75-88, decided

June 29, 1976 7, 9, 10, 13

Weinberger v. Salfi, 422 U.S. 749 10, 13

Williamson v. Lee Optical Co., 348 U.S.

483 i 14

Constitution and statutes: Page

United States Constitution, Fifth Amend-

ment (Due Process Clause) 2, 5, 7, 9

Social Security Act, Title II, 49 Stat. 620,

as amended, 42 U.S.C. (and Supp. V)

401 et seg.:

Section 202, 42 U.S.C. (and Supp.

V) 402 n 2

Section 202 (b) (1) (C), 42 U.S.C.

(Supp. V) 402 (b) (1) (C) 6

Section 202 (b) (1) (H), 42 U.S.C.

(Supp. V) 402 (b) (0H) — 6

Section 202 (b) (3), 42 U.S.C. 402

(b) (3) — 6

Section 202(d), 42 U.S.C. (and

Supp. V) 402(d) | 3, 21a

Section 202 (d) (1) (B), 42 U.S.C.

(Supp. V) 402 (d) (1) (B) 3, 8, 21a

Section 202 (d) (1) (D), 42 U.S.C.

(Supp. V) 402 (d) (1) (D) — 1, 2, 3, 4, 6,

8, 22a

Section 202 (d) (5), 42 U.S.C. 402

(d) (5) 2, 3, 4, 6, 10, 11, 22a

Section 202 (e) (1), 42 U.S.C. (and

Supp. V) 402 (e) (1) ‘ 6

Section 202 (e) (1) (A), 42 U.S.C.

402 (e) (1) (A) 6

Section 202 (e) (3), 42 U.S.C. 402

(e) (3) 6

Section 202 (e) (4), 42 U.S.C. 402

(e) (4) 6

Section 202 (f) (1), 42 U.S.C. (and

Supp. V) 402 (f) (1) 6

Constitution and statutes—Continued Page

Section 202(f)(1)(A), 42 U.S.C.

402(f)(1)(A) 6

Section 202(f) (4), 42 U.S.C. 402 (f)

(4) — 6

Section 202 (f) (5), 42 U.S. C. (Supp.

V) 402(f)(5) — 6

Section 202 (g) (1), 42 U.S.C. (and

Supp. V) 402 (g) (1) 6

Section 202 (g) (1) (A), 42 U.S.C.

402 (8) (1) (A) 6

Section 202 (g) (3), 42 U.S.C. 402

(g) (3) — — |

Section 202(h) (1) (C), 42 U.S. C.

402 (h) () (C) 6

Section 202 (h) (4), 42 U.S.C. 402

(h) (4) — 6

Section 202(s) (2), 42 U.S.C. (Supp

V) 402 (s) (2) a F FT

Social Security Act, Title XVI, as added

by the Social Security Amendments of

1972, 86 Stat. 1329, 1465, and amend-

ed, 42 U.S.C. (Supp. V) 1381 et seg. 5,13

Section 1611, 42 U.S.C. Cn V)

2 N 14

53 Stat. 1364-1365 7

72 Stat. 1030 10

Miscellaneous:

Hearings on the Social Security Amend-

ments of 1939 before the House Com-

mittee on Ways and Means, 76th Cong. *

Ist Sess. (1939) 22 — 7

—

IV

Miscellaneous—Continued Page In the Supreme Court of the United States

H.R. Rep. No. 728, 76th Cong., Ist Sess. OCTOBER TERM, 1976

Te 7

H.R. Rep. No. 2288, 85th Cong., 2d Sess.

(1958) a 10

S. Rep. No. 2133, 84th Cong., 2d Sess. No.

(1956) 10 ,

F. DaVm MATHEWS, SECRETARY OF HEALTH,

EDUCATION, AND WELFARE, APPELLANT

V.

JOHN A. JOBST

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The opinion of the district court on remand (App.

A, infra, pp. la-4a) is not yet reported. The earlier

opinion of the district court (App. B, infra, pp. 5a-

| 17a) is reported at 368 F. Supp. 909.

JURISDICTION

The judgment of the district court, reinstating its

earlier judgment declaring Sections 202(d)(1)(D)

(1)

and 202(d)(5) of the Social Security Act unconsti-

tutional as applied to appellee, was entered on July

27, 1976 (App. E, infra, pp. 23a-24a). A notice of

appeal to this Court (App. C, infra, pp. 18a-20a)

was filed on August 24, 1976. On October 13, 1976,

Mr. Justice Blackmun extended the time for docket-

ing the appeal to and including November 22, 1976,

and on November 15, 1976, he further extended the

time to and including December 22, 1976. The ju-

risdiction of this Court is conferred by 28 U.S.C.

1252.

QUESTION PRESENTED

Whether Sections 202 (d) (1) (D), 202 (d) (5), and

202 (s) (2) of the Social Security Act, which provide

that secondary social security benefits received by a

disabled dependent child of an insured wage earner

shall terminate when the child marries an individual

who is not entitled to benefits under the Act, are

consistent with the Due Process Clause of the Fifth

Amendment.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Con-

stitution provides in pertinent part:

No persor shall be * * * deprived of * * *

property, without due process of law * * *.

The relevant provisions of Section 202 of the So-

cial Security Act, 49 Stat. 623, as amended, 42 U.S.C.

(and Supp. V) 402, are set forth in App. D, infra,

pp. 2la-22a.

3

STATEMENT

1. Under Section 202(d) of the Social Security

Act, 49 Stat. 623, as amended, 42 U.S.C. (and

Supp. V) 402(d), child’s insurance benefits are pro-

vided to the dependent children of wage earners who

receive old-age or disability benefits or who died fully

or currently insured under the Act. To be entitled

to child’s insurance benefits, the dependent child at

the time of his application must be unmarried and

either under 18 years of age (or a full time student

under age 22) or under a disability which began

before he attained age 22. Section 202(d)(1)(B)

of the Act, as aménded, 42 U.S.C. (Supp. V) 402

(d) (1) B).

Section 202 (d) (1) (D) of the Act, as amended, 42

U.S.C. (Supp. V) 402(d)(1)(D), provides that

child’s insurance benefits shall terminate when the

child marries. There is, however, a limited excep-

tion to this general provision for a disabled child

who marries an individual also entitled to one of

several categories of insurance benefits under the

Act. Sections 202(d)(5) and 202(s)(2) of the Act,

42 U.S.C. (and Supp. V) 402 (d) (5) and 402(s)

(2) But a disabled child who marries an individ-

‘Child’s insurance benefits, like the other categories of

benefits paid to members of the wage earner’s family under

Title II of the Act on the basis of the wage earner’s primary

social security account, are referred to as “secondary” insur-

ance benefits.

Section 202 (d) (5) on its face appears to state a general

rule applicable to all dependent children, but Section 202(s)

F e

4

ual who is not entitled to benefits under the Act

falls outside that exception; that disabled child’s

benefits, like those of nondisabled children, are ter-

minated by marriage.

2. Appellee John A. Jobst, who has been disabled

since birth from cerebral palsy, was awarded child’s

insurance benefits in 1957, at age 25, upon the death

of his father, who had been an insured wage earner

under the Act (Tr. 61). In 1970 appellee married

a person who likewise suffered from cerebral palsy

but who was not entitled to child’s insurance or any

other form of benefit under Title II of the Act (Tr.

36, 37). Because of this marriage, appellee’s child’s

insurance benefits were terminated by the Secretary

pursuant to Section 202(d)(1)(D) of the Act (Tr.

7; see Tr. 63).

After exhausting his administrative remedies, ap-

pellee instituted this action in the United States Dis-

trict Court for the Western District of Missouri to

review the Secretary’s termination of his benefits.

On January 14, 1974, the district court held that

Sections 202(d)(1)(D) and 202(d)(5) of the Act—

the termination provision and the limited exception

thereto—are unconstitutional “as applied to child’s

insurance beneficiaries who marry totally disabled

persons who do not receive child’s insurance benefits”

(App. B, infra, p. 17a). The court reasoned that

these statutory provisions violated the equal protec-

(2) narrows the application of that rule to dependent chil-

dren who are disabled.

tion principles that inhere in the Due Process Clause

of the Fifth Amendment because there was Ino

rational basis” for the statutorily created distine-

tion between beneficiaries who marry disabled per-

sons who do receive benefits and beneficiaries who

marry disabled persons who do not receive benefits”

(App. B, infra, p. 13a). The court declared the

statutory provisions unconstitutional and remanded

the case to the Secretary “with the * * * direction

that [appellee’s] claim be allowed” (App. B, infra,

p. 17a).

3. The Secretary appealed directly to this Court

(No. 73-1758). The jurisdictional statement pointed

out (pp. 7-8) that since January 1, 1974, appellee

and his wife had been receiving a monthly benefit of

$210 under the newly enacted program of Supple-

mental Security Income for the Aged, Blind, and Dis-

abled, Title XVI of the Social Security Act, as added

by the Social Security Amendments of 1972, 86 Stat.

1329, 42 U.S.C. (Supp. V) 1381 et seqg., and that

that amount was only approximately $20 per month

less than the combined amount appellee and his wife

would have received under both the child’s insurance

and the supplemental security income provisions of

the Act had appellee remained entitled to child’s in-

surance benefits. The change in appellee’s circum-

stances caused by the enactment of the supplemental

security income program was not a part of the record

before the district court when it had rendered its

decision. On October 15, 1974, this Court vacated

the judgment of the district court and remanded the

case for reconsideration in light of the new program.

419 U.S. 811-812.

On remand, the district court held that the supple-

mental security income program “simply had noth-

ing to do with the questions presented” in this case

(App. A, infra, p. 3a). The court therefore rein-

stated its original judgment of January 14, 1974,

holding Sections 202(d)(1)(D) and 202(d)(5) un-

constitutional as applied (App. A, infra, p. 4a).

THE QUESTION IS SUBSTANTIAL

This case presents an important question regard-

ing the constitutional validity of the system chosen

by Congress for allocating secondary benefits under

the Social Security Act. Several other secondary in-

surance benefits, in addition to child’s insurance

benefits, require as a condition of eligibility that the

beneficiary be unmarried (or an unremarried widow,

widower, or divorcee);* generally speaking, those

benefits are terminated when the beneficiary marries

or remarries.* For each of these benefit categories,

however, there is a limited exception in favor of

beneficiaries who marry individuals who themselves

are secondary beneficiaries under the Act.“ Thus,

* See Sections 202(b)(1)(C) (divorced wives), 202(e) (1)

(A) (widows), 202(f)(1)(A) (widowers), and 202(¢)(1)

(A) (surviving or divorced mothers).

*See Sections 202(b)(1)(H), 202(e) (1), 202 (f) (1), and

202 (g) (1). See also Section 202(h)(1)(C) (parents). But

see Sections 202 (e) (4) and 202 (f) (5).

In addition to the statutory provision involved in this

case, Section 202 (d) (5), see Sections 202 (b) (3), 202 (e) (3),

202 (f) (4), 202 (8) (3), and 202 (h) (4).

|

7

this case involves a principle that has general appli-

cability under the Social Security Act, even though

the district court’s opinion is directly concerned only

with child’s insurance benefits. Moreover, the hold-

ing that the exception to the general termination

rule is unconstitutionally narrow reflects a misunder-

standing of the rationale underlying the legislatively

chosen method of allocating secondary benefits and

rests upon a misapplication of the requirements of

the Due Process Clause.

1. When the child’s insurance provisions were

first adopted, there was no exception to the general

rule that benefits under those provisions terminate

when the child marries. 53 Stat. 1364-1365. This

general rule itself is rational. Child’s benefits, like

other forms of secondary insurance under the Act,

were established “to afford more adequate protection

to the family as a unit.” H.R. Rep. No. 728, 76th

Cong., Ist Sess. 7 (1939). See also Mathews v. de

Castro, No. 75-1197, decided December 13, 1976 (slip

op. 5). Benefits were provided to the wage-earner’s

dependent children as a means of replacing the sup-

port lost by those children as a consequence of the

wage-earner’s death, disability, or retirement. See

Mathews v. Lucas, No. 75-88, decided June 29, 1976

(slip op. 12).°

The provision of benefits on the basis of the wage-earner’s

social security account also was viewed as helping to preserve

the wage-eai rer’s role as a provider and to sustain the child's

sense of security in the family as a unit. Hearings on the

Social Security Amendments of 1939 before the House Com-

mittee on Ways and Means, 76th Cong., Ist Sess. 32-33 (1939).

e l! ̃¾%—ôͤ¹ , P ²̃

Normally, upon marrying a child departs from

“the family as a unit” and establishes a new family.

As a general matter, married children are consider-

ably less likely than unmarried ones to be dependent

on their parents for the provision of their essential

economic needs and are therefore correspondingly

less likely to be significantly affected, in terms of

support, by the continuing fact of the wage-earner’s

death, disability, or retirement. In short, in ordinary

circumstances marriage significantly reduces or ter-

minates the special need for support. Congress rea-

sonably determined that a child who marries removes

himself from the class of individuals for whom sec-

ondary benefits were designed, and it therefore pro-

vided that children lose their entitlement to child’s

insurance benefits at the time of marriage. Section

202(d)(1)(D) of the Act.’

In holding this statutory provision unconstitu-

tional as applied in the circumstances here, the dis-

trict court in essence disapproved of Congress’ extra-

polation from a general observation of human expe-

rience—that marriage normally results in the estab-

lishment of a new, self-sufficient household—to a

broad bar on the payment of benefits to most mar-

ried children of the wage-earner. The court’s analy-

sis rests upon the fact that some beneficiaries, them-

selves incapable of gainful employment, may

For the same reasons, Congress provided that a child

of a deceased, disabled, or retired wage-earner is eligible to

receive child’: insurance benefits only if he is unmarried at

the time his application for benefits is filed. Section 202

(d) (1) (B).

“marr[y] * * * person[s} who can not provide a

source of support” (App. B, infra, p. 14a) and that

such individuals would in fact remain dependent

upon the wage-earner, or the secondary benefits pay-

able on his account, for support. Yet a holding of

unconstitutionality based upon that particularized

concern contravenes the principle, which the court

recognized but did not apply, “that a classification

may not properly be held to violate equal protection

principles because it ‘is not made with mathematical

nicety or because in practice it results in some in-

equality’” (App. B, infra, pp. 12a-13a).

The district court’s approach would require Con-

gress to abandon the use of broad, experientially

based assumptions in the Social Security Act, in

favor of an individualized means test for determin-

ing continued eligibility for secondary benefits. But

such a result is not required by the Due Process

Clause. Congress may constitutionally allocate sec-

ondary social security benefits on the basis of an

individual’s membership in the primary beneficiary’s

family unit, and may deny or terminate benefits

when the individual separates from that unit. See

Mathews v. de Castro, supra. Furthermore, Con-

gress need not require a case-by-case determination

of actual dependency upon the wage-earner, but may

allocate benefits on the basis of the relative likeli-

hood of dependency. Mathews v. Lucas, supra.

That is what Congress has done in the case of

child’s insurance benefits. Congress has determined

that it is sufficiently probable that marriage termi-

— ß ß————————————ß—ß—ß—ß—ß—ß——ĩj—

10

nates the relationship of dependency to warrant ter-

mination of benefits upon marriage. Such general,

categorical assumptions about dependency and need

conduce to the efficient administration of the pro-

gram, and they afford a constitutionally permissible

basis upon which to allocate secondary social security

benefits. The assumption that married individuals

are not dependent upon their parents for essential

economic support, “though [it] may approximate,

rather than precisely mirror, the results that case-

by-case adjudication would show, [is] permissible

under the Fifth Amendment * * *.” Mathews v.

Lucas, supra (slip op. 13-14). See also Weinberger

v. Salfi, 422 U.S. 749.

2. In Section 292(d)(5) of the Act, Congress

has provided, for disabled children (see note 2,

supra), a limited exception to the general rule that

marriage causes a termination of child’s benefits.

That exception is part of a series of amendments to

the Act in 1958 in which Congress provided for the

continuation of certain secondary benefits when the

beneficiary marries an individual who also is entitled

to secondary benefits, 72 Stat. 1030 (see p. 6 and n.

5, supra). The purpose of these amendments is ex-

plained in the legislative history (H.R. Rep. No.

2288, 85th Cong., 2d Sess. 18 (1958)):

*Congress made a similar determination with respect to

age: benefits terminate when the child reaches age 18 (or

in the case of a student, age 22), except for disabled children,

who “are as dependent on their parents after attaining age

18 — .“ 8. Rep. No. 2133, 84th Cong., 2d Sess.

2 (1956).

11

When a secondary beneficiary marries, such

person’s benefit is terminated under present law.

[If the new spouse is also receiving a

secondary benefit, the benefits of both are ter-

minated and ordinarily neither beneficiary can

become entitled to any new benefits. Your com-

mittee’s bill would eliminate the hardship in

these cases by providing that marriage would

not terminate a benefit where a person receiving

mother’s, widow’s, widower’s, parent’s or child-

hood disability benefits marries a person receiv-

ing any of these benefits

This explanation confirms what is apparent from

the statutory language: in enacting a limited excep-

tion to the general marriage bar, Congress was spe-

cifically and exclusively concerned with the conse-

quences under the Act of a marriage between two

social security insurance beneficiaries. Congress rea-

sonably determined that a marriage between individ-

uals both receiving insurance benefits under the Act

would not ordinarily result in the elimination or re-

duction of the probable need of such individuals.

Congress therefore amended the Act to prevent the

substantial reduction in, or termination of, benefits

of families that could be presumed to be exclusively

dependent upon primary or secondary social security

insurance benefits for support.

In addition, Congress provided for the continuation of

child’s benefits when the disabled beneficiary marries a per-

son receiving old-age or disability benefits. See Section

202(d) (5). See also Section 202(g)(3) (mother’s benefits).

eS

12

The rationale of those amendments does not extend

to appellee’s case. Since appellee did not marry an-

other social security insurance beneficiary, his new

family was not presumptively exclusively dependent

upon primary or secondary insurance benefits for

support.

The district court ruled, however, that because ap-

pellee married another disabled individual, who in

fact was unable to support him, appellee’s need con-

tinued and therefore, as a constitutional matter, his

benefits also must continue. But there was a sound

basis for Congress’ decision to limit the exception to

the marriage bar to marriages between social secur-

ity insurance beneficiaries. The marriage between

such beneficiaries presents a unique and readily iden-

tifiable situation that Congress could easily treat

within the Act’s existing benefit structure.

Other marriages present a substantially different

problem. Within the narrow frame of reference pro-

vided by the social security insurance benefit pro-

gram, there is no way to identify in which of those

marriages the beneficiary’s need for support con-

tinues. If Congress sought to meet specific instances

of continued need, it would be forced to proceed in

either of two ways.

It could utilize broad presumptions, such as the

presumption that a beneficiary’s marriage to a wel-

fare recipient affords no occasion for a termination

of benefits. But such an approach would entail a

far more detailed inquiry into continuing, month-by-

13

month eligibility than is now necessary under the

insurance benefits program. Moreover, although in

our view presumptions are constitutionally permissi-

ble, they necessarily are only approximations and

therefore would fail to satisfy the district court’s

apparent requirement that benefits not be “denied

to a beneficiary who marries a person who can not

provide a source of support to the beneficiary” (App.

B, infra, pp. 13a-14a).

Alternatively, Congress could abandon the current

method of allocating benefits on the basis of broad

and easily applied presumptions, in favor of an indi-

vidualized means test similar to that used for the

allocation of welfare benefits. Such a change would

work a drastic alteration in the fundamental char-

acter of Title II, for until now those provisions have

“not purport[ed] to be general public assistance laws

that simply pay money to those who need it most.”

Mathews v. de Castro, supra (slip op. 5). The deci-

sions of this Court make plain that no such altera-

tion in Title II is constitutionally required. See, e. g.,

Mathews v. de Castro, supra; Mathews v. Lucas,

supra; Weinberger v. Salfi, supra.

3. Congress has enacted a supplemental security

income program, Title XVI of the Social Security

Act, 42 U.S.C. (Supp. V) 1381 et seg., under which

appellee and his spouse have been receiving benefits

each month since the program became effective in

January 1974 (Stip. pars. 3, 6). On remand, the

10 “Stip.” refers to the stipulation of facts on remand.

1 ̃ w'ʃñ .! — Ä —⁰ ; VT. —˙w-

14 15

district court held that the supplemental security in- CONCLUSION

come program “simply hals] nothing to do with the hould

questions presented” (App. A, infra, p. 3a). We be- Probable jurisdiction be ö

lieve that the provisions challenged here may be sus- Respectfully submitted.

tained as constitutional without reference to the ex-

istence of the supplemental security income program.

But, contrary to the district court’s holding, Title ay ~~ —

XVI does bear upon the issues presented here, for it

: | Rex E. Lee,

underscores the reasonableness of the allocation of Assistant Attorney Generel.

secondary social security benefits.”

Benefits under Title XVI are provided to aged, 1 . General.

blind, and disabled individuals whose income and | Wma KANTTrR,

other resources are below statutorily prescribed lev- | _ Karen K. Sagt.

els. Section 1611, as added by the Social Security | Attorneys.

Amendments of 1972, 86 Stat. 1466-1468, 42 U.S.C. | DECEMBER 1976.

(Supp. V) 1382. Unlike the secondary benefits pro-

visions of Title II, Title XVI is designed to allocate

assistance on the basis of individualized determina-

tions of need. Under this program, appellee and his

wife receive only marginally less in federal assist-

ance than they would have received had appellee’s

secondary child’s benefits been continued (see p. 5,

supra; Stip. pars. 3, 6, 13, 15). Congress has thus

responded to and provided for the needs of appellee |

and other similarly situated individuals in a reason- |

able manner.

It also further demonstrates that in this area of social |

welfare, Congress has acted in the time honored tradition of |

legislative reform by moving one step at a time to address

“the phase of the problem which seems most acute to the

legislative mind.” Williamson v. Lee Optical Co., 348 U.S.

483, 489.

ee F

la

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

No. 20495-1

JOHN A. JOBST, PLAINTIFF,

vs.

DAVID MATHEWS, Secretary of Health, Education

and Welfare, DEFENDANT

MEMORANDUM AND ORDER

The Supreme Court vacated the judgment of this

Court, entered for reasons stated in Jobst v. Rich-

ardson, (W.D. Mo. 1974) 368 F. Supp. 909, and

remanded this case “for reconsideration in light of

42 U.S.C. (Supp. II 1972) 1381, et seg. (86 Stat.

1329; Pub. L. No. 92-603 (Oct. 30, 1972).” Counsel

for the plaintiff thereafter requested that this Court

receive and consider evidence to be adduced by the

parties prior to consideration of the effect of 42

U.S.C. §§ 1381, et seqg., on Mr. Jobst’s claim for

Child’s Disability Benefits. After submission and

answer of interrogatories, the parties entered into a

stipulation of factual data and agreed that such

data should be considered by this Court on remand.

The case was thereafter fully briefed by both sides.

We have considered the undisputed factual circum-

stances and the briefs of the parties. We find and

as

2a

conclude that the judgment originally entered should

be and will be reinstated.

Although the Supplemental Security Income pro-

gram was enacted by 42 U.S.C. § 1381, et seg., on

October 30, 1972, to become effective January 1,

1974, the Secretary apparently did not consider that

that new legislation would have any impact upon the

questions presented to this Court at the time the case

was first here. Such question was never presented

to this Court and was apparently raised for the first

time in the Jurisdictional Statement filed in the Su-

preme Court in connection with the motion to dis-

miss or affirm.

The Secretary’s brief on remand argues that “the

recent enactment of additional remedial legislation

in the form of Title XVI of the Act (SSI) must

. . . be considered in analyzing the alleged discrim-

ination contained in Section 202(d)(5) for this latest

legislation by providing substantially equal cash bene-

fits to individuals in plaintiff’s situation modulates

even the alleged discrimination of Section 202(d)

(5).”

The first twenty pages of defendant’s brief on re-

mand, however, is basically a reiteration of argu-

ments which we rejected when the case was first

presented. On remand, it is argued in regard to the

narrow question presented by the Supreme Court’s

order that “an equal protection analysis of the chal-

lenged sections must consider the inter-relationship

of the challenged sections and evolution of the statu-

3a

tory scheme which has now been capped by Title

XVI.“

We have carefully examined the briefs of the

parties and studied the legislative history, such as

it is, in connection with all the various sections of

the United States Code involved in this case. We

find and conclude that the enactment of the Supple-

mental Security Income program, 42 U.S.C, §§ 1381,

et geg., does not relate to the purposes supporting the

Congressional enactment of the Child’s Insurance

Benefits Program, as originally enacted in 42 U.S.C.

§ 402(d). It is true, of course, that the accidental

application of SSI payments improved plaintiff’s pay-

ments to some degree. But under the judgment orig-

inally entered in this case, plaintiff would have a

claim of back benefits in an amount of $9,215.80.

We recognize that the Secretary maintains that this

amount should be reduced by at least $3,314.20. We

do not, at this time, get into the question of spe-

cific amounts.

We simply find and conclude that all action taken

by the Secretary in this case was taken before the

effective date of the Supplemental Security Income

legislation and that, as was the Secretary’s position

before this Court at all times until remand, 42 U.S.C.

88 1381, et seg., simply had nothing to do with the

questions presented.

We entertain the same view that the Court of Ap-

peals for the Sixth Circuit entertained in Fletcher

v. Hous. Auth. of Louisville, (6th Cir. 1975) 525

4a

F. 2d 532, when, upon reconsideration of a case re-

manded the same day as was this case for further

consideration in light of an amendment to the Na-

tional Housing Act of 1937, that court concluded in

Fletcher that the 1974 amendments to the National

Housing Act did not shed any light on the old Act

which would require a reversal of its earlier decision.

That court, as does this Court, remains convinced that

its prior holding was based on a correct interpreta-

tion of the legislation under actual consideration

and that its original judgment should be reinstated.

Accordingly, and for the reasons stated, it is

ORDERED that the judgment originally entered

in this case should be and the same is hereby re-

instated.

/s/ John W. Oliver

District Judge

Kansas City, Missouri

July 27, 1976

5a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

No. 20495-1

JOHN A. JOBST, PLAINTIFF

v.

ELLIOT L. RICHARDSON, SECRETARY OF DEPARTMENT

OF HEALTH, EDUCATION, AND WELFARE, DEFENDANT

MEMORANDUM AND ORDER

I

This case involves a challenge to a provision of

the Social Security Act, 42 U.S.C. § 402(d), which,

in effect, provides for child’s insurance benefits for

a child who marries a person who is eligible for

Social Security benefits but discontinues child’s in-

surance benefits for a child who marries a person

who is ineligible to receive Social Security benefits.

Plaintiff contends that that provision, which forced

the termination of his child’s insurance benefits, is

unconstitutional in that it denies him equal protec-

tion of the laws in violation of the Due Process clause

of the Fifth Amendment. He prays for reinstate-

ment of his child’s insurance benefits, invoking the

Court’s jurisdiction under 42 U.S.C. 5 405 (g); a

judgment declaring 42 U.S.C. 5 402 (d) (1) (D) un-

constitutional; and a permanent injunction restrain-

ing defendant from enforcing 42 U.S.C. § 402(d)

6a

(1)(D). We find and conclude that plaintiff is en-

titled to relief for reasons we shall state in detail.

II

On November 28, 1956, John A. Jobst, pursuant

to 42 U.S.C. § 402 (d), filed an application for child’s

insurance benefits based on the earnings record of his

father. The Social Security Administration found

that plaintiff had been disabled since birth because of

cerebral palsy and awarded him benefits to commence

January, 1957 (Tr. 61). In October, 1970, plain-

tiff advised the Social Security Administration that

he had married Sandra Lee, who also has cerebral

palsy and is permanently and totally disabled. (Tr.

36). Sandra Lee receives assistance from the Di-

vision of Welfare of the State of Missouri but does

not receive Social Security Benefits (Tr. 36, 37).

On November 11, 1970, plaintiff was advised that

his benefits would be terminated as of October, 1970,

because of his marriage (Tr. 63). That termina-

tion was based upon the provisions of 42 U.S.C.

§$§ 402 (d) (1) and (5), which provide for the termin-

ation of benefits to a disabled child beneficiary upon

the beneficiary's marriage unless the beneficiary’s

spouse is also entitled to Social Security benefits.

Plaintiff requested a hearing, which was held in

Kansas City, Missouri, on September 7, 1971 (Tr.

32, 33-45). The hearing examiner reversed the in-

itial termination by the Administration and rein-

stated plaintiff’s benefits for the following reason:

Ta

Termination on the basis of marriage is arbi-

trary and without any rational basis, and there-

fore, violates the equal protection and due proc-

ess clauses of the Constitution. Therefore, the

claimant is entitled to continue drawing child’s

insurance benefits (disability). (Tr. 27).

The Appeals Council reviewed the hearing exam-

iner’s decision on its own motion. On June 22, 1972,

the Council reversed the hearing examiner’s ruling,

concluding that a “quasi-judicial federal administra-

tive agency” has no authority to consider the Con-

stitution of the United States when it administers

the Social Security Act. (Tr. 7). The Appeals Coun-

cil further determined that it would not ask for

recovery of the cover payments resulting from the

hearing examiner’s decision.

On August 18, 1972, plaintiff filed this action. The

case was initially complicated by plaintiff’s insist-

ence that this case was one in which a three-judge

court must be convened pursuant to 28 U.S.C. 88 2242

and 2284. On May 11, 1973, we entered our memor-

andum and order denying plaintiff's application for

the convening of a three-judge court. The case now

pends on cross-motions for summary judgment.

We find and conclude that 42 U.S.C. § 402(d) (1)

(D) as modified by 42 U.S.C. § 402(d)(5) and as

applied by the Secretary to plaintiff is unconstitu-

tional and that, therefore, the decision of the Appeals

Council must be reversed.

a —í..ʃ—ᷣ.71DQ] U Ä A

8a

III

The statutory scheme relevant to the question pre-

sented provides in material part:

Title 42, Section 402, United States Code:

(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 in-

dividual 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

22, 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

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) until the month

of his death, at the beginning of such period

of disability or at the time he became en-

titled to such benefits,

shall be entitled to a child’s insurance benefit

for each month, beginning with the first month

9a

after August, 1950 in which such child becomes

so entitled to such insurance benefits and ending

with the month preceding whichever of the fol-

lowing first occurs—

(D) the month in which such child dies or

marries.

* * * * *

(5) In the case of a child who has attained

the age of eighteen and who marries—

(A) an individual entitled to benefits under

subsection (a), (b), (e), (f), (g), or (öh) of

this section or under section 423 (a) of this title,

or

(B) another individual who has attained the

age of eighteen and is entitled to benefits under

this subsection,

such child's entitlement to benefits under this

subsection shall, notwithstanding the provisions

of paragraph (1) . . not be terminated by rea-

son of such marriage,

The question presented is whether the Social Se-

eurity Aet's different treatment of various elasses of

child's insurance beneficiaries who marry violates the

standards of the equal protection of the law embodied

in the Due Process Clause of the Fifth Amendment.

Other issues raised by the defendant in its brief,

apparently in defense of what it thought would be

argued by plaintiff, have not been raised by plaintiff

and, therefore, there is no need to discuss them fur-

ther.

It is indisputable that while the Fifth Amendment

contains no specific equal protection clause, equal

-

10a

protection standards have been found to be present

in the due process clause of the Fifth Amendment if

the federal statute manifested a “patently arbitrary

classification, utterly lacking in rational justifica-

tion.” Flemming v. Nestor, 363 U.S. 603, 611 (1960) ;

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

It is equally clear that the Social Security Act is

subject to scrutiny under standards of equal protec-

tion. The United States Supreme Court in Richard-

son v. Belcher, 404 U.S. 78 (1971), citing with ap-

proval its earlier decision in Flemming v. Nestor,

supra, stated:

We have held that [the interest of a covered

employee under the [Social Security] Act is of

sufficient substance to fall within the protection

from arbitrary governmental action afforded by

the Due Process Clause.” [404 U.S. at 81].

Plaintiff argues that a strict equal protection

standard should be applied in this case. He urges

that the right to marry the person of one’s choice is

a fundamental right, citing Loving v. Virginia, 388

U.S. 1 (1969); and Meyer v. Nebraska, 262 U.S. 390

(1923). He then relies upon Shapiro v. Thompson,

394 U.S. 618, 634 (1969), for the proposition that

“any classification which serves to penalize the exer-

cise of a constitutional right, unless shown to be

necessary to promote a compelling governmental in-

terest, is unconstitutional.”

We maintain serious doubt whether plaintiff's

strict standard argument may be said to be tenable

lla

in light of Dandridge v. Williams, 397 U.S. 471

(1970), and San Antonio Independent School District

v. Rodriquez, 411 U.S. 1 (1972). Plaintiff attempts

to build upon language in Loving and Meyer, which

attests to the importance of marriage, to create a

new constitutional right. In Rodriquez, however, the

Supreme Court stated:

It is not the province of this Court to create

substantive constitutional rights in the name of

guaranteeing equal protection of the laws. [411

U.S. at 33].

We need not reach the strict standard question,

however, for we find and conclude that the classifica-

tion in question is not “rationally based and free

from invidious discrimination” [Dandridge v. Wil-

liams, 397 U.S. at 487].

Defendant, at page 2 of its Supplemental Memo-

randum of Law, cites what it argues was the motive

of Congress in drawing the classification of 42 U.S.C.

§ 402(d)(1)(D) and § 402 (d) (5):

The general rule providing that a married

child applicant does not qualify for benefits and

that a subsequent marriage will terminate en-

titlement is based on the general proposition that

a married individual becomes the dependent of

a spouse able to provide support. Herzberg v.

Finch, 321 F. Supp. 1367 (S.D. N.Y. 1971).

Accordingly, such beneficiary had no need of the

benefits previously received; thus, such benefits

could be terminated. It is submitted that there

is a rational basis for Congress to make an ex-

12a

ception to this rule in the case of a beneficiary

receiving benefits on the wage record of another

individual at the time of marriage who marries

another beneficiary who is also receiving bene-

fits on the wage record of another individual at

the time of marriage, because it is unlikely that

either of these beneficiaries would have any

source of support other than their benefits. Thus

Congress could assume—and it would be con-

sistent with the Act—that those beneficiaries

would not have a new source of support and

would have need of their benefits, and could ra-

tionally make an exception to the rule in their

case.

No Congressional history of the section of the Act

in question is cited by either party, but assuming

that this statement of Congressional intent is correct

we may accept defendant’s argument that such a

purpose could be said to constitute a rational basis

for the decision of Congress to discontinue benefits

to those child’s insurance beneficiaries who marry

individuals who are able to provide a source of sup-

port to the beneficiary other than his benefits.

To say that Congress could have enacted a consti-

zutionally valid statute is not to say that it did so.

We find and conclude that Congress did not draw 42

U.S.C. § 402 (d) (1) (D) and 5 402 (d) (5) in a man-

ner so that the result of the application of those pro-

visions in this case is consistent with what may have

been an effort to establish a rational classification.

We recognize, of course, that a classification may not

properly be held to violate equal protection principles

13a

because it is not made with mathematical nicety or

because in practice it results in some inequality.“

(Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61,

78 (1911)), or “because [it] may be unwise, im-

provident, or out of harmony with a particular school

ot thought” (Williamson v. Lee Optical Co., 348 U.S.

483, 488 (1955)). We must recognize, however, that

legislation must be drawn so that the distinctions

made have “some relevance to the purpose for which

the classification is made. Baxstrom v. Herold, 383

U.S. 107, 111 (1966).

The statute in question provides for the termina-

tion of the benefits of all child’s insurance benefi-

ciaries who marry persons who do not likewise re-

ceive child’s benefits, regardless of whether they have

a source of support other than their benefits. The

obvious effect of the statute is to create a distinction

between beneficiaries who marry disabled persons

who do receive benefits and beneficiaries who marry

disabled persons who do not receive benefits. The

benefits of the former class of beneficiaries must be

terminated, those of the latter class may not.

No rational basis for such a distinction has been

suggested nor, we conclude, does one exist. The dis-

tinction between the two classes of beneficiaries has

absolutely no relevance to the purpose for which the

general classifications in the statute were drawn. In-

deed, the statutory distinctions are antithectical to

that purpose; they result in situations similar to the

one here, in which benefits are denied to a beneficiary

l4a

who marries a person who can not provide a source

of support to the beneficiary.

IV

The Secretary attempts to sustain the constitu-

tionality of the statute as applied in this case by

arguing that the principal classification intended by

Congress—between beneficiaries who marry persons

who are entitled to benefits and those who marry

persons not entitled to benefits—which is intended to

provide benefits only to those who marry persons not

able to provide support, is not arbitrary and that,

therefore, an unusual application of the statute,

which results in an obviously unintended and unfair

result, does not render it unconstitutional. Defend-

ant ignores the fact, however, that the statutory lan-

guage creates a distinction other than the one which

is based upon a rational basis; that is, beneficiaries

who marry disabled persons who do receive child’s

benefits and beneficiaries who marry disabled per-

sons who do not receive child’s benefits.

In Stanley v. Secretary of Health, Education and

Welfare, 356 F. Supp. 793 (W.D. Mo. 1973), the

statute involved provided for child’s insurance bene-

fits for children who are adopted after a parent be-

comes entitled to old-age benefits if the child is a nat-

ural child or stepchild, but not if the child bears no

such relationship to the parent unless the following

requirements are met: (1) the child was legally

adopted before the end of the twenty-fourth month

15a

following the month in which the parent became en-

titled to old-age benefits; (2) the child had been re-

ceiving at least one-half of his support from the par-

ent for the year before the parent filed application

for insurance benefits; and (3) the adoption proceed-

ings were started in the month or before the month

that the parent filed application for old-age benefits

or the child was living with the parent in that month.

Chief Judge Becker recognized that the distinetion

was drawn with the purpose of preventing abuse of

the Social Security Act by people who would other-

wise adopt children solely to qualify them for bene-

fits” [356 F. Supp. at 8021].

In this case, however, the adopted parent was the

child’s grandfather in whose care the child had been

placed by the natural parents. The child was not the

natural child or stepchild of the adopted parent

though, and he did not meet the alternative require-

ments for benefits. Judge Becker concluded that the

statute, as applied in that case, vivlated equal pro-

tection principles:

heed

ial

Hit

111

11117

erate

eo

F

1

i

Eee

16a

In Stanley, as in this case, there may have been a

rational basis for the distinction created on the face

of the statute. The statute operated, however, to cre-

ate another distinction which was arbitrary and un-

related to the purpose of the statute.

The cases cited by defendant in support of his posi-

tion that the statute in question is constitutional do

not stand for that proposition. Neither Herzberg v.

Finch, 321 F. Supp. 1367 (S.D. N.Y. 1971 nor Jud-

kins v. Richardson, Civil No. 72-62 (D. Ore. 1972),

dealt with the question of the constitutionality of

§ 402(d)(1)(D) and § 402 (d) (5). In both cases the

courts were asked to effectuate the intent of Congress

and interpret the statute to permit continuation of

child’s insurance benefits to persons in the position of

plaintiff in this case. In both cases the court refused

to interpret the plain language of the statute, but

they did not pass on the constitutionality of the stat-

ute as applied in those cases and this case. The ques-

tion apparently was neither presented nor argued;

certainly it was not ruled.

We therefore find and conclude that 42 U.S.C.

§ 402(d)(1)(D) and § 402 (d) (5) are violative of

principles of equal protection as incorporated in the

Fifth Amendment to the Constitution as applied to

a beneficiary who marries a totally disabled person

who does not likewise receive child’s insurance bene-

fits.

For the reasons stated, it is

17a

Ordered (1) that 42 U.S.C. § 402(d)(1)(D) and

§ 402(d)(5) as applied to child’s insurance benfici-

aries who marry totally disabled persons who do not

receive child’s insurance benefits are hereby declared

unconstitutional. It is further

Ordered (2) that the motion of the defendant Sec-

retary of Health, Education and Welfare for sum-

mary judgment should be and the same is hereby

denied. It is further

Ordered (3) that the decision of the Secretary

should be and the same is hereby reversed. It is

further

Ordered (4) that plaintiff's motion for summary

judgment should be and the same is hereby granted

and that this case should be and the same is hereby

remanded for the sole purpose and with the express

direction that plaintiff’s claim be allowed.

JOHN W. OLIVER,

District Judge.

KANSAS City, Mo., January 14, 1974.

™ , |

18a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

[Filed August 24, 1976]

Civil No. 20495-1

JOHN A. JOBST, PLAINTIFF

*.

F. DAvID MATHEWS, Secretary of Department of

Health, Education & Welfare, DEFENDANT

NOTICE OF APPEAL

Notice is hereby given that the defendant hereby

appeals to the Supreme Court of the United States,

pursuant to 28 U.S.C. §§ 1252 and 2101 from the

judgment of a single judge of the District Court en-

tered in this action on July 27, 1976.

19a

Dated at Kansas City, Missouri, this 24th day of

August, 1976.

Bert C. HURN

United States Attorney

By /s/ J. Whitfield Moody

J. WHITFIELD Moopy

First Assistant

United States Attorney

(Member of the Bar of

the United States

Supreme Court)

OF COUNSEL

Tom Stout

Office of

General Counsel

Social Security

Administration

20a

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing No-

tice of Appeal was mailed this 24th day of August,

1976, to:

J. D. Riffel

Litigation Unit

Legal Aid and Defender Society

of Greater Kansas City

1029 Oak Street

Kansas City, Missouri 64106

/s/ J. Whitfield Moody

J. WHITFIELD Moopy

First Assistant

United States Attorney

WG

21a

APPENDIX D

Section 202 of the Social Security Act, 49 Stat.

623, as amended, 42 U.S.C. (and Supp. V) 402 pro-

vides in pertinent 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 in-

dividual 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 22, 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

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) until the month

of his death, at the beginning of such period

of disability or at the time he became en-

titled 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 entitled to such insurance benefits and end-

ing with the month preceding whichever of the

following first occurs—

(D) the month in which such child dies or

marries,

(5) In the ease of a child who has attained

the age of eighteen and who marries—

(A) an individual entitled te benefits under

subsection (a), (b), (e), (f), (g), or (h) of

this section or under section 423 (a) of this title,

or

(B) another individual who has attained the

age of eighteen and is entitled to benefits under

this subsection,

such child's entitlement to benefits under this

subsection shall, notwithstanding the provisions

of paragraph (1) of this subsection Dut subject

to subsection (s) of this section, not be termi-

nated by reason of such marriage; * * *

* * * * *

(s)(2) * * * [S]o much of subseetion ] * * *

(d)(5) * * * of this section as precedes the

semicolon, shall not apply in the case of any

child unless such child, at the time of the mar-

riage referred to therein, was under a disability

— ee ee ee

23a

APPENDIX E

JUDGMENT ON DECISION BY THE COURT CIV 32 (7-63)

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

Civil Action File No. 20495-1

JOHN A. JOBST, PLAINTIFF

vs.

DAVID MATHEWS, Secretary of Health, Education

and Welfare, DEFENDANT

JUDGMENT

This action came on for determination before the

Court, Honorable John W. Oliver, United States Dis-

trict Judge, presiding, and the issues having been

duly considered and a decision having been duly ren-

dered,

It is Ordered and Adjudged that the judgment

originally entered in this case should be and the same

is hereby reinstated.

Dated at Kansas City, Missouri, this 27th day of

July, 1976.

/s/ [Illegible}

Clerk of Court

Attest: A true copy

R. F. Connor, Clerk

U.S. District Court

Western District of Missouri

by /s/ IIllegible]

Deputy

„ ©. SOVERNBENT PetmTine orice; 1976 225196 31

a ůàmgñ