# Jurisdictional Statement — Califano v. Jobst > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1690%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1977 - **Citation:** 434 U.S. 47 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1690%3A1. Public record. Not legal advice.