Appendix — Jimenez v. Weinberger

SUMMARY OF EVIDENCE

It appears that the claimant, Ramon Jimenez, has con-

tinually been in a disability status since April 1, 1963,

the time of original onset of his disability. For infor-

mational purposes it should be stated that the daughter,

Magdalena, one of the illegitimate children, was deter-

mined to be in an entitlement status for the reason. that

she was born on August 13, 1963, shortly before the

claimant, her father, became entitled to disability in-

surance benefits, in October, 1963, and she was not only

acknowledged by the wage earner as his child but she was

also, presumably, dependent upon. the wage earner at the

time he became entitled to disability insurance benefits.

In an interview of March 18, 1965, Elizabeth Hernandez,

said that she and Ramon Jimenez have been living to-

gether about three years; that he has not divorced his

wife, Filomena, who lives in Puerto Rico; that she, Eliza-

beth Hernandez, and Ramon Jimenez, the claimant here-

in, are the parents of Magdalena, Eugenio and Alicia Jim-

enez.—In an interview of October 2, 1969, claimant stat-

ed that he and Elizabeth Hernandez began living together

some time in 1961.—In his application dated August 21,

1969 claimant stated that he had always supported said

three children.—In an interview of October 2, 1969 claim-

ant stated that he had never lived anywhere else with

Elizabeth Hernandez except in the State of Illinois; that

he has been supporting their children since their birth.

In his request for reconsideration which he filed on March

18, 1970, régarding his son Eugenio and his daughter

Alicia, claimant stated that he did recognize these chil-

dren in writing at the time prior to the beginning of

his period of disability.

In the notice of reconsideration determination to the

claimant dated May 5, 1970, it was stated in part as

follows:

“We have also considered the Amendments to the

Social Security Act which provided various alterna-

tive tests which may qualify the children. Under

these provisions, the child can qualify for benefits if

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7

the father (1) acknowledges the child in writing or

(2) decreed by a court to contribute to the child’s

support or (3) is shown by satisfactory evidence

to be the child’s father and living with or con-

tributing to the child’s support.

The Law requires that the acknowledgement, court

decree, contributions or living with, must have been

established at the time your disability began. A

period of disability was established for you on April

1, 1963. The children were both born after this date

and could not have been dependent on you even

though you acknowledged them.”

The aforesaid language of the notice of May 5, 1970 is

borne out by the statutory provisions hereinabove cited.

Thus, the son Eugenio, born on January 18, 1965, and the

daughter, Alicia, born on February 24, 1968, born to

Elizabeth Hernandez and fathered by the wage earner,

cannot be eligible for entitlement to social security bene-

fits, neither of them having been in being before or on

October 1, 1963, when the wage earner first became en-

titled to disability insurance benefits.

It appears from the evidence of record that Magda-

lena, born on August 13, 1963, before the wage earner

became entitled to disability insurance benefits, was eli-

gible for entitlement purposes and that recently she was

awarded benefits within the “maximum family benefit”

clause as set forth in section 403(a) of the Act, herein

before set forth. In this connection, claimant’s counsel

cites the case of Monica Jordan, by Carolyn Coleman,

U.S.D.C., District of New Jersey, opinion filed on Janu-

ary 27, 1970 by Raynier J. Wortendyke, Jr. (J). In

said case it is stated, in substance that Section 403 (h)

(3) creates one class, i.e., children. In said court decision

it is further stated that the class born in-wedlock and

those who were born out-of-wedlock, but acknowledged

by the wage earner as his offspring, are both in the

benefitted class. The inference drawn by claimant’s coun-

sel is that Magdalena, as early as August 13, 1963, the

date of her birth, although born out-of-wedlock, was

nevertheless entitled to a part of the maximum family

Pe ___

8

benefits, if indeed, the maximum family benefit should

not have been enlarged so as to accommodate Magdalena

and any and all children born out-of-wedlock which the

wage earner might have produced or in the future will

produce.

The Hearing Examiner is mindful of the rule of law

which jealously guards the rights of innocent children

against the transgressions of their parents. Yet the case

of Jordan v.s. Finch is diametrically opposed to the clear

and unequivocal wording of the statute.

FINDINGS OF THE HEARING EXAMINER

1. Eugenio, the son of the wage earner, born on January

18, 1965, and Alicia, the daughter of the wage earner,

born on February 24, 1968, were not in being and

thus could not have been dependent upon the wage

earner as of October 1, 1963 when he was first en-

titled to disability insurance benefits.

2. Within the meaning of the Social Security Act, said

son and daughter were not the children nor deemed to

be the children of the wage earner.

8. Magdalena, the daughter of the wage earner, born

on August 18, 1963, was and is in an entitlement

status, but she is entitled to child’s insurance benefits

only under the provisions of Section 203(a) (403 (a)

of the Social Security Act.

DECISION

In accordance with the foregoing findings, it is the de

cision of the Hearing Examiner that the Administrative

determination as to Eugenio, Alicia and Magdalena, is

affirmed.

/s/ Thomas M. Walsh

THOMAS M. WALSH

Hearing Examiner

Date: December 11, 1970

_

9

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

Baltimore, Maryland 21241

[SEAL]

REFER TO: 305-30-8719

WHEN WRITING TO:

SOCIAL SECURITY OFFICE

2306 W. Lawrence Ave.

Chicago, Ill. 60625

January 7, 1970

Ramon C. Jimenez

3556 N. Wilton

Chicago, Ill. 60657 “

This notice refers to your claim for benefits under the

Social Security Act for Alicia and Eugenio Jimenez.

We cannot pay child’s benefits-on your claim because a

requirement of the social security law is not met. That

requirement is that the father had acknowledged the

child in writing or had been ordered by a court to

contribute to the child’s support or had been judicially

decreed to be the child’s father before the period of dis-

ability began or it has been otherwise established that

he is the child’s father and was living with or con-

tributing to the support of the child at the time his

period of disability began.

If you believe that this determination is not correct,

you may request that your case be reexamined. If you

want this reconsideration, you must request it not later

than 6 months from the date of this notice. You may

make any such request through your social security office.

If additional evidence is available, you should submit

it with your request. Please read the enclosed leaflet

for a full explanation of your right to question the de-

termination made on your claim.

bd

a

10

If you have any questions about your claim, you should

get in touch with your social security office. If you call

in person, please take this notice with you.

Sincerely yours,

/s/ ¥. H. Sheel

F. H. SHEEL

Director, Division of

Evaluation and

Authorization

Bureau of Disability

Insurance

Enclosure:

SSI-58

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11

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

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

[SEAL ]

BUREAU OF

HEARINGS AND APPEALS

HA:C

REFER TO: 305-30-8719

April 16, 1971

ACTION OF APPEALS COUNCIL ON REQUEST FOR REVIEW

Mr. Ramon Jimenez

3556 North Witton Avenue

Chicago, Illinois 60657

Dear Mr. Jimenez:

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

sion has been carefully considered by the Appeals Council.

The Council’s consideration of your request has included

all the evidence in your case, the law and regulations

applicable to your claim, the hearing examiner’s evalua-

tion of the facts and the reasoning in his decision, and

your reasons for believing your claim should be allowed.

Evidence in addition to that which was before the hear-

ing examiner has been received by the Appeals Council.

The Appeals Council has concluded that the decision of

the hearing examiner is correct. Further action by the

Council would not, therefore, result in any change which

would be of advantage to you. Accordingly, the hearing

examiner’s decision stands as the final decision of the

Secretary in your case.

If you desire a review of the hearing examiner’s decision

by a court, you may commence a civil action in the district

court of the United States in the judicial district in

which you reside within sixty (60) days from this date.

See section 205(g) of the Social Security Act, as amended

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12

(section 405(g), Title 42, United States Code). If such

action is commenced, the Secretary of Health, Education,

and Welfare is the proper defendant.

Sincerely yours,

/s/ Jackson C. Smith

JACKSON C. SMITH

Member, Appeals Council

/s/ John T. Allen

JOHN T. ALLEN

Member, Appeals Council

ee: Jane G. Stevens

Attorney at Law

—

13

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Civil Action No: 7- C 1436

MAGDALENA JIMENEZ, by RAMON JIMENEZ, her father and

next friend, individually and on behalf of all others

similarly situated, and EUGENIO JIMENEZ and ALICIA

JIMENEZ, by RAMON JIMENEZ, their father and next

friend, individually and on behalf of all other similarly

situated, PLAINTIFFS

—vs—

ELLIOT RICHARDSON, Secretary of Health, Education and

Welfare, DEFENDANT

COMPLAINT

COUNT I

1: This is an action in the Judicial District in which

Plaintiff resides to review a decision of the Secretary of

Health, Education and Welfare. The Jurisdiction of this

Court is based on 42 U.S.C. §405(g).

2: Plaintiff MAGDALENA JIMENEZ is a minor child

of wage earner RAMON JIMENEZ: she is a citizen of

the United States, and resides with her father in Chicago,

Cook County, Illinois.

3: Plaintiff MAGDALENA JIMENEZ brings this action

individually and as a class action, pursuant to Rule 23

of the Federal Rules of Civil Procedure, on behalf of all

“claimants” for child’s Social Security insurance benefits

who are born out of wedlock, whose legitimate siblings re-

ceive or will receive at any time the total maximum family

benefit to the total or partial exclusion of the illegitimate

claimant.

The persons in this case are so numerous as to make

joinder of all members unpracticable and there are ques-

tions of law common to all members of the class. The claims

—

14

of the individual Plaintiff are typical of the claims of the

class, and the individual Plaintiff will fairly and adequately

_ protect the interest of the class.

Separate actions by individual members of the class

would create the risk of inconsistent adjudications that

would establish incompatible standards of conduct for the

defendant.

4: On August 21, 1969, RAMON JIMENEZ properly

filed an application for child’s insurance benefits on be-

half of his three illegitimate children, including MAGDA-

LENA JIMENEZ as provided by Section 202(d) of the

Social Security Act (42 U.S.C. 402(d) ).

5: On January 7, 1970, the Social Security Administra-

tion declared MAGDALENA entitled to child’s insurance

benefits as of August, 1968, but denied her rights to receive

monthly benefits at that time. On March 18, 1970, Mr.

Jimenez duly requested reconsideration. The Social Se-

curity Administration affirmed the decision and on June

30, 1970, Mr. Jimenez filed a request for a hearing.

6: After a hearing on November 18, 1970, Hearing Ex-

aminer Thomas M. Walsh, in a decision dated December

11, 1970, affirmed the denial of present equal benefits to

MAGDALENA. A copy of this decision is attached hereto

as “Exhibit A”. On January 4, 1971, Mr. Jimenez re-

quested a Review of the Hearing Examiner’s Action.

7: The Appeals Council of the Social Security Adminis-

tration denied Mr. Jimenez’s request for review on April

16, 1971, thereby establishing the hearing examiner’s de-

cision as the final decision of the Secretary of Health, Ed-

ucation and Welfare.

8: This action for review of that final decision is com-

menced within the sixty (60) day period prescribed for

such appeals.

9: RAMON JIMENEZ was awarded disability insurance

benefits in October 1963, for a disability status that has

existed since April, 1963. At that time auxiliary benefits

were also awarded to Mr. Jimenez’s wife, FILOMENA,

and to their minor children, from whom Mr. Jimenez had

15

been separated for more than two years. Since his sep-

aration, he has lived with ELIZABETH HERNANDEZ

who bore him three children out of wedlock, including

MAGDALENA, one of the Plaintiffs herein, born August

13, 19638. RAMON JIMENEZ openly acknowledged MAG-

DALENA as his child. She has lived with her father since

her birth; and has always been dependent on him for her

support. Magdalena’s dependence on her father has always

been as great or greater than that of her legitimate sib-

lings. Because Mr. Jimenez is disabled, MAGDALENA is

presently supoprted by grants made to her father by the

Cook County Department of Public Aid.

10: The Secretary’s decision denying present benefits to

MAGDALENA deprives MAGDALENA of that due

process of law guaranteed to her by the Fifth Amendment

to the Constitution of the United States because it is based

on Section 203(a) of the Social Security Act (42 U.S.C.

'§ 403(a)), which section is unconstitutional because it un-

reasonably and arbitrarily and without relation to the

purposes of the Social Security Act denies MAGDALENA

and all other members of the class shares of their parents’

Social Security benefits equal to those granted to their

legitimate siblings and even to any siblirigs who are born

after an invalid ceremonial marriage between their par-

ents, even though her needs are as great or greater than

the needs of those siblings, solely on the basis of conduct

of her parents which was beyond her control.

WHEREFORE, Plaintiff, MAGDALENA JIMENEZ

prays that this Court:

1: Reverse the decision of the Secretary of Health, Edu-

cation and Welfare denying present benefits to Plaintiff

MAGDALENA JIMENEZ.

2: Direct the Defendant to pay to Plaintiff MAGDA-

LENA JIMENEZ benefits equal to those paid each child of

the wage earner RAMON JIMENEZ, and to pay Plaintiff

retroactive equal benefits due to her since the date on which

she became eligible,

83: Declare § 203(2) of the Social Security Act (42 U.S.C.

§ 403(a)) unconstitutional in so far as it denies to chil-

16

dren, as defined by § 216(H) (3) (42 U.S.C. § 416H) (3)

equal shares in their family’s benefits.

4: Enjoin the Defendant, his agents and employees

from denying equal social security benefits to any mem-

ber of the class. —

COUNT II

1: This is an action in the Judicial District in which

Plaintiffs reside to review a decision of the Secretary of

Health, Education and Welfare. The Jurisdiction of this

Court is based on 42 U.S.C. § 405(g).

2: Plaintiffs EUGENIO and ALICIA JIMENEZ are

citizens of the United States; they are minor children of

wage earner RAMON JIMENEZ, and reside with him in

Chicago, Cook County, Illinois.

3: Plaintiffs EUGENIO and ALICIA JIMENEZ bring

this action individually and as a class action, pursuant to

Rule 23 of the Federal Rules of Civil Procedure on be-

half of all claimants for child’s social security insurance

benefits, who are born out of wedlock after their fathers

have become entitled to receive Social Security insurance

benefits by reason of old age, disability, or death. The

persons in this class are so numerous as to make joinder

of all members unpracticable and there are questions of

law common to all member of the class. The claims of the

individual Plaintiff are typical of the claims of the class,

and the individual Plaintiff will fairly and adequately pro-

tect the interest of the class. Separate actions by individual

members of the class would create the risk of inconsistent

adjudications that would establish incompatible standards

of conduct for the Defendant.

4: On August 21, 1969 RAMON JIMENEZ properly

filed an application for child’s insurance benefits on behalf

of his children including, EUGENIO and ALICIA JIME-

NEZ, as provided by Section 202(d) of the Social Security

Act (42 U.S.C. § 402(d)).

5: Mr. Jimenez’s claim for benefits for EUGENIO and

———————

_

17

ALICIA was denied January 7, 1970, and on March 18,

1970, he duly requested reconsideration of that denial.

May 5, 1970, the Social Security Administration affirmed

the initial denial of benefits to EUGENIO and ALICIA, on

the ground that the children had been born out of wed-

lock, after the beginning of Mr. Jimenez’s period of dis-

ability. On June 30, 1970, Mr. Jimenez filed a request for

a hearing.

6: After a hearing on November 18, 1970, Hearing Ex-

aminer Thomas M. Walsh, in a decision dated December

11, 1970, affirmed the denial of all benefits to EUGENIO

and ALICIA. A copy of this decision is attached hereto

as “Exhibit A”. On January 4, 1971, Mr. Jimenez re-

quested a Review of the Hearing Examiner’s Action.

7: Plaintiffs reallege paragraphs 7 and 8 of Count I and

incorporate them herein by reference.

8: RAMON JIMENEZ was awarded disability insurance

benefits in October 1963 for a period of disability that

began April 1, 1963. In October, 1963 auxiliary benefits

were also awarded to RAMON JIMENEZ’s wife, from

whom he had been separated for several years, and to their

minor children. Beginning approximately in 1961, RA-

MON JIMENEZ had lived with ELIZABETH HERNAN-

DEZ who bore him three children, including EUGENIO

JIMENEZ, born on January 18, 1965 and ALICIA JIM-

ENEZ, born on February 24, 1968; the Plaintiffs herein.

EUGENIO and ALICIA have lived with RAMON JIM-

ENEZ all their lives; Mr. Jimenez openly acknowledges

them as his children and has always made a home for them;

they have always been dependent on him for their support.

Their dependence on their father has always been as great

or greater than that of their legitimate siblings. Because

Mr. Jimenez is disabled, EUGENIO and ALICIA are

presently supported by grants made to their father by the

Cook County Department of Public Aid.

9: The Secretary’s decision denying benefits to EUGENIO

and ALICIA JIMENEZ deprives them of the due process

of law guaranteed to them by the Fifth Amendment of

the Constitution of the United States because it is based

18

on Section 216th) (3) of the Social Security Act (42 U.S.C.

§ 416(h) (3) which Section is unconstitutional because it

unreasonably and arbitrarily and without relation to the

purposes of the Social Security Act denies Social Security

benefits to EUGENIO and ALICIA and to all other mem-

bers of the class regardless of their needs, solely on the

basis of conduct of their parents which was completely

beyond their control.

WHEREFORE, Plaintiffs pray that this Court:

je Reverse the decision of the Secretary denying the

claims of EUGENIO and ALICIA JIMENEZ for child’s

insurance benefits ;

2- Direct the Defendant to pay to EUGENIO and

ALICIA benefits equal to those paid each child of the wage

earner RAMON JIMENEZ; and to pay them all retro

active benefits due to them from the date of their claims;

3: Declare unconstitutional Section 216(h) (3) of the

Social Security Act (42 U.S.C. 416(h) (3)) in so far as it

denied Social Security benefits to illegitimate children born

after their parents become disabled or otherwise entitled to

receive Social Security insurance ;

4: Enjoin the Defendant, his agents and employees, from

denying Social Security benefits to any members of the

class, and

5: Grant all such other relief as the Court deems just

and proper.

JANE G. STEVENS

Attorney for Plaintiffs

LEGAL AID BUREAU

1413 West 18th Street

Chicago, Illinois 60608

421-1900

(Certificate of service omitted in printing)

19

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 71 C 1436

* MAGDALENA JIMENEZ, by RAMON JIMENEZ, her father

and next friend, et al., PLAINTIFFS

v8.

- ELLIOT RICHARDSON, Secretary of Health, Education,

and Welfare, DEFENDANT

ANSWER

Now comes the defendant, UNITED STATES OF

AMERICA, by WILLIAM J. BAUER, United States At-

torney for the Northern District of Illinois, and in answer

to the complaint states as follows:

COUNT I

1. Defendant admits the allegations contained in para-

graph 1 of Count I of, plaintiff’s complaint.

2. Defendant admits the allegations contained in para-

graph 2 of Count I of plaintiff’s complaint.

3. Defendant denies the allegations contained in para-

graph 3 of Count I of plaintiff’s complaint and affirmatively

asserts that under the applicable provisions of the Social

Security Act plaintiff is not entitled to bring this action

as a class action.

4. Defendant admits the allegations contained in para-

graph 4 of Count I of plaintiff’s complaint.

5. Defendant admits the allegations cotnained in para-

graph 5 of County I of plaintiff’s complaint but states

that the request for a hearing was filed on July 30, 1970.

6. Defendant admits the allegations contained in para-.

graph 6 of Count I of plaintiff’s complaint but states that

the hearing was held on November 16, 1970. |

20

7. Defendant admits the allegations contained in para-

graph 7 of Count I of plaintiff's complaint.

8. Defendant admits the allegations contained in para-

graph 8 of Count I of plaintiff's complaint.

9. Defendant lacks sufficient knowledge on which to

form a belief as to the truth of the allegations contained

in paragraph 9 of Count I of plaintiff’s complaint.

10. Defendant denies the allegations contained in para-

graph 10 of Count I of plaintiff’s complaint.

=

COUNT Il

1. Defendant admits the allegations contained in para-

graph 1 of Count II of plaintiff’s complaint.

29. Defendant admits the allegations contained in para-

graph 2 of Count II of plaintiff's complaint.

3. Defendant denies the allegations contained in para-

graph 3 of Count II of plaintiff’s complaint and affirma-

tively asserts that under the applicable provisions of the

Social Security Act plaintiff is not entitled to bring this

action as a class action.

4. Defendant admits the allegations contained in para-

graph 4 of Count II of plaintiff’s complaint.

5. Defendant admits the allegations contained in para-

graph 5 of Count II of plaintiffs complaint but states

that the request for a hearing was filed on July 30, 1970.

6. Defendant admits the allegations contained in para-

graph 6 of Count II of plaintiff’s complaint but states that

the hearing was held on November 16, 1970.

7. Defendant admits the allegations contained in para-

graph 7 of Count II of plaintiff’s complaint.

8 Defendant lacks sufficient knowledge on which to

form a belief as to the truth of the allegations contained in

paragraph 8 of Count II of plaintiff's complaint.

9. Defendant denies the allegations contained in para-

graph 9 of Count II of plaintiff’s complaint.

FURTHER ANSWERING the allegations contained in

Count I and Count II of plaintiff's complaint defendant

affirmatively asserts that plaintiffs are not entitled to the

relief for which they pray under the applicable provisions

of the Social Security Act, that plaintiffs are not entitled to

21

bring this action as a class action, that plaintiffs are not

entitled to an injunction or a declaratory judgment, under

the terms of the Social Security Act, and that the decision

denying plaintiffs’ application for relief is correct and in

accord with applicable law and regulations.

FURTHER ANSWERING defendant affirmatively as-

serts that the findings of fact of the Secretary of Health,

Education and Welfare are supported by substantial evi-

dence and are conclusive; and in support of such affirma-

tive assertion and in accordance with the provisions of

Title 42, United States Code, Section 405(g), the defend-

ant files herein as a part of the answer a certified copy

of the transcript of the record including the evidence upon

which the findings and decisions complained of are based.

WHEREFORE, the defendant prays that this Court

affirm the decision of the'Secretary of the Department of

Health, Education and Welfare, which.decision was made

in accordance with applicable statutes and regulations of

the Social Security Act, and a ingly prays for judg-

ment dismissing the complaint with costs awarded to the

defendant together with such other and further relief as

this Court may deem just and proper.

WILLIAM J. BAUER

United States Attorney

MGE :dma

(Certificate of Service Omitted in Printing)

22

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 71 C 1436

MAGDALENA JIMENEZ, by RAMON JIMENEZ, her father and

next friend, individually and on behalf of all others

similarly situated, and EUGENIO JIMENEZ and ALICIA

JIMENEZ, by RAMON JIMENEZ, their father and next

friend, individually and on behalf of all other similarly

situated, PLAINTIFFS

vs.

ELLIOT RICHARDSON, Secretary of Health, Education

and Welfare, DEFENDANT

No. 71 C 2628

RoBIN BOOKER, by FRANCINE BOOKER, her mother

and next friend, PLAINTIFF

vs.

ELLIOT RICHARDSON, Secretary of Health, Education

and Welfare, DEFENDANT

MEMORANDUM OPINION AND JUDGMENT ORDER

These consolidated cases challenge the constitution-

ality of two sections of the Social Security Act inasmuch

as they discriminate against a particular class of illegiti-

mate children. A three-judge panel has heard plaintiffs’

claims, jurisdiction for which is based upon 42 US.C.

§$405(g) (1970). For the reasons stated below, this

court grants defendant’s motion for summary judgment

and dismisses both cases.

Social Security benefits may be obtained on behalf of

the children of an insured individual entitled to dis-

ability or death benefits under the Act. 42 U.S.C. § 402

23

(d) (1970). In determining whether an applicant is

the child of an insured, 42 U.S.C. § 416(h) establishes

three independent tests. First, an applicant is the child

of an insured if he can inherit the insured’s personal

property under the law of intestate succession of the

state of the insured’s domicile. 42 U.S.C. § 416(h) (2)

(A) (1970). Second, an applicant is the child of an in-

sured if his parents went through a marriage ceremony

that resulted in a purported, but nevertheless invalid,

marriage. The invalidity must have been caused by a

defect in the marriage procedure or by the failure of one

of the parents to dissolve a prior marriage. 42 US.C.

§416(h) (2)(B) (1970). The third statutory definition

of child encompasses those of the insured’s issue who do

not come within the first two provisions. An applicant

for benefits is a child under 42 U.S.C. §416(h) (3) (B)

if before the commencement of the insured’s period of

disability (1) he made an written acknowledgement that

the applicant is his child, or (2) a court decree established

the insured’s paternity of the applicant, or (3) a court

has ordered the insured to support the applicant be-

cause of paternity, or (4) if the Secretary finds sufficient

evidence that the insured is the parent of the applicant

and contributed to his support when the disability began.

It is the treatment of this third class of children that is

challenged in the instant case.

As noted above, 42 U.S.C. § 416(h) (3) (B) requires

that the applicant be a child of the insured when his

disability began. Ramon Jimenez has three illegitimate

children, Magdalena, Alicia and Ramon, Jr. Because

Alicia and Ramon, Jr. were born after their father became

disabled, they are not considered his children under § 416

(h) (3) (B) and may not claim benefits under the Act,

even though Ramon, Sr. has supported and acknowledged

them as his own. The situation of Magdalena Jimenez

and Robin Booker is different from that of Alicia and

Ramon, Jr. in that both of these illegitimate children

were born to their parents before the disability com-

menced. However, they were not entitled to receive bene-

fits because their families exceeded the maximum benefit

limitations of 42 U.S.C. §403(a) (1970). Although

24

the validity of § 403(a) was originally a substantial part

of these lawsuits, the Supreme Court recently affirmed

two three-judge court rulings which held § 403(a) uncon-

stitutional.! Since we have no reason to believe that the

Social Security Administration will fail to comply with

those decisions,? a controversy no longer exists between

defendant and plaintiffs Robin Booker and Magdalena

Jimenez. Hence, their complaints are dismissed as moot

and the subsequent scope of this opinion shall be limited

to the constitutionality of § 416(h) (3) (B).

Prior to 1965, children who presently come within the

§ 416(h) (3) (B) definition of children were entirely ex-

cluded from receiving any benefits under the Act, even

though the Act thereby discriminated between different

classes of illegitimates.* In 1965, Public Law 89-97 add-

ed paragraph (3) to subsection (h) of $416 and for

the first time an entire category of illegitimate children

became entitled to receive benefits through a parent's

Social Security account, subject to the now challenged

restriction that the event which triggered a child’s en-

titlement (e.g., court decree or written acknowledgment)

must occur before the onset of the insured’s disability.

It is clear that, both before and after the amendment,

the statute does not simply discriminate against all ille-

gitimate children, for a child could be born out of wed-

1 Griffin v. Richardson, Par. 16,759 CCH Unemployment Insur-

ance Reports (D.Md. July 16, 1972), aff'd, 72-655, 41 U.S.L.W. 3340,

December 18, 1972; Davis v. Richardson, 342 F.Supp. 588 (D.Conn.

1972), aff'd, 72-241, 41 U.S.L.W. 3340, December 18, 1972. Accord,

Maracle v. Richardson, 41 U.S.L.W. 2197 (D.D.N.Y. September 21,

1972) ; Morris v. Richardson, 41 U.S.L.W. 2061 (N.D.Ga. July 20,

1972).

2 Prior to the Supreme Court’s disposition of the cases cited in

note 1, supra, the Social Security Administration stated that it

would refrain from following § 403(a) pending appeal of the de-

cisions declaring it unconstitutional. SSA Program Circular No.

199, September 29, 1972.

3 This exclusion was consistently upheld by the courts, although

the precise question of its constitutionality does not appear to have

been raised. E.g., Warrenberger Vv. Folsom, 239 F.2d 846 (3d Cir.

1956) ; Robles v. Folsom, 239 F.2d 562 (2d Cir. 1956), cert. denied,

353 U.S. 960 (1957).

25

lock and hence illegitimate, yet nevertheless qualify under

the first two statutory definitions of “child” contained in

§416(h) (2) (A) and (B). Thus, the statute effectively

creates two categories of illegitimates and treats each

differently.

Defendant urges us to uphold the constitutionality of

this restriction because it is a reasonable means of pre-

venting spurious claims. Plaintiffs assert that this re-

striction is an unconstitutional denial of due process be-

cause it is not rationally related to the objectives of the

Social Security Act and because there are less restrictive

alternatives available to prevent spurious claims. In con-

sidering these arguments, this court may not substitute

its judgment of social policy for that of the legislature,

but rather must consider whether Congress has the power

to discriminate between classes of illegitimates as it has

done in the Social Security Act. Dandridge v. Williams,

397 U.S. 471, 486 (1970) .*

The power of Congress to discriminate is limited by the

due process clause of the fifth amendment, which includes

the principle of equal protection when a federal statute

discriminates in an invidious manner or deprives persons

of their fundamental constitutional rights. Richardson

v. Belcher, 404 U.S. 78, 81 (1971) ; Shapiro v. Thompson,

394 U.S. 618, 641-42 (1969) ; Bolling v. Sharpe, 347 US.

497, 499 (1954). In analyzing an alleged denial of

equal protection, the Supreme Court has utilized basically

two tests depending on the type of interest involved. See

generally Developments in the Law EQUAL PROTEC-

TION, 82 Harv. L. Rev. 1065 (1969). The traditional

test consists of a two-part inquiry that first identifies the

4 As the Court states in Flemming v. Nestor, 363 U.S. 630, 611

(1961): “In judging the permissibility of the cut-off provisions

of §202(n) [of the Social Security Act] .. ., it is not within our

authority to determine whether the Congressional judgment ex-

pressed in that section is sound or equitable, or whether it comports

well or ill with the purposes of the Act. ‘Whether wisdom or un-

wisdom resides in the scheme of benefits set forth in Title II, it is

not for us to say. The answer to such inquiries must come from

Congress, not the courts. Our concern here, as often, is with

power, not with wisdom.” Helvering v. Davis, [301 U.S. 619

(1937) ] at 644.”

26

purposes or objectives of a legislative scheme and then

asks whether the challenged discrimination bears a ra-

tional relationship to one of those purposes. Moreover,

the purpose need not have been a main objective of the

statute or even one that the leigslators had in mind when

they passed it. Flemming V. Nestor, 363 U.S. 608, 612

(1960). The second test, that of the compelling state

interest, is not applicable in this case because the Supreme

Court has held that a challenged discrimination involv-

ing public welfare benefits must stand if it is “rationally

based and free from invidious discrimination.” Dandridge

v. Williams, supra at 487 (1970). Accord, Jefferson V.

Hackney, 406 U.S. 585 (1972); Richardson v. Belcher,

supra; Flemming v. Nestor, supra. Therefore, inasmuch

as § 416(h) (3) affects an interest in welfare benefits, it

must be considered valid unless it is shown to be irra-

tional and invidious.

However, in addition to asserting an interest in public

welfare benefits, plaintiffs also assert an independent

constitutional right to be free from a classification based

solely upon their status at birth. They claim that this

classification is subject to the compelling state. interest

test commonly found in racial discrimination cases such

as Bolling v. Sharpe, supra. But, an examination of

recent Supreme Court decisions on the rights of illegiti-

mates convinces us that no such standard is applicable

to a legislative classification based on legitimacy at birth

and that this interest is also subject to the traditional

rational relationship test. Weber v. Aetna Casualty &

Surety Co., 406 U.S. 164 (1972); Labine v. Vincent,

401 U.S. 532 (1971); Glona Vv. American Guarantee &

Liability Ins. Co., 391 U.S. 73 (1968) ; Levy v. Louisiana,

391 U.S. 68 (1968). Furthermore, the fact that § 416

5 As indicated at note 1, supra, it is unconstitutional to dis-

criminate against children falling within § 416(h) (3) (B) by elimi-

nating their benefits in the manner prescribed by § 403(a). In three

out of the four cases cited in note 1 the courts reached that result

by aplying the traditional rational relationship test. In Griffin V.

Richardson, supra, the court held that §403(a) was unconstitu-

tional under either the traditional standard or the compelling state

interest test. Thus, our reliance upon the traditional test seems

well-placed, despite the fact that our holding vindicates the consti-

tutionality of the discrimination in this notably different context.

27

(h) (3) (B) does not apply to all illegitimate children but

only to a well-defined category of them distinguishes

this case from those just cited and from the Court’s

recent decision in Gomez v. Perez, 41 U.S.L.W. 4174 (Jan.

17, 1973), suggesting that factors other than illegitimacy

might account for the discrimination here.

The Social Security Administration has asserted that

the prevention of spurious claims is a factor that ra-

tionally supports the distinction made in § 416(h) (3)

(B) because the purpose of the Act is to replace the sup-

port lost by a child when his father becomes disabled.

Watts v. Veneman, 334 F.Supp. 482, 486 (D.D.C. 1971).

Accord, Hagler v. Finch, 451 F.2d 45 (9th Cir. 1971),

cert. denied, 405 U.S. 1071 (1972); Perry v. Richardson,

445 F.2d 677 (6th Cir. 1971). We agree. In the letters

filed with this court subsequent to oral argument, the

Administration cited examples which make it clear to us

that, given the knowledge of the Act’s provisions absent

§ 416(h) (3) (B), an insured would have both the oppor-

tunity and the financial temptation to file a spurious

claim after his disability began. Thus, an insured’s

cash payments on account of his disability or old age

can be increased by as much as one-half his individual

entitlement, if he is able to claim one child as his depend-

ent. To the unscrupulous person, all that prevents him

from realizing such a gain is the mere formality of a

spurious acknowledgement of paternity or a collusive

paternity suit with the mother of an illegitimate child

who is herself desirous or in need of the additional cash.

Since a child’s benefits are paid to the parent having

custody of the child as “representative payee,” the prin-

cipals to such a scheme would have no trouble in realizing

the fruits of their illegal venture. Moreover, collusive

paternity suits and fraudulent acknowledgements of pa-

ternity would be extremely difficult to detect whether

the Administration continued to rely upon its present

procedures or was forced by this lawsuit to seek alterna-

tives to § 416(h) (3) (B).®

*The practical difficulties of proof in these situations have not

escaped judicial attention. See e.g., Jerry Vogel Music Co. Vv.

Edward B. Marks Music Corp., 425 F.2d 834, 836 n.4 (2d Cir. 1969).

28

On the other hand, the requirement that § 416 (h) (3)

(B) children be born before the onset of their parent’s

disability is based on the very simple, self-evident assump-

tion that a person with nothing to gain from a spurious

acknowledgement of paternity is not as likely to do so

as one who could thereby increase his monthly income by

one-half. Indeed, the probability is slight that an insured

would make a spurious acknowledgment in anticipation

of becoming disabled sometime in the future.

To this plaintiffs reply that the inter-personal conse-

quences of such an acknowledgement are sufficient to dis-

courage all but a few spurious claims and that the hard-

ships befalling children like Alicia Jimenez and Ramon

Jimenez, Jr. outweigh the adverse effects of a few fraudu-

lent claims. They do not dispute the fact that the pre-

vention of such abuse is a valid reason to discriminate,

Hagler v. Finch, supra, but rather assert that there are

less restrictive means of accomplishing this objective.

However, even if such measures existed, their use is not

constitutionally mandated under traditional notion of

equal protection. Moreover, although plaintiffs assert that

more restrictive regulations and internal administrative

procedures could reduce such claims, they have not told

us just how the Social Security Administration is to

detect a collusive paternity suit or fraudulent acknoweldg-

ment of paternity. Surely the parties to the collusion,

who are in pari delicto, have little incentive to come

forward and confess the error of their ways. And it

would truly be the exceptional father who, having sired

a child out of wedlock, would subsequently come forward,

acknowledge his real paternity, and seek to have his

child removed from the rolls of public welfare.

In sum, it must be remembered that plaintiffs bear

the burden of proving § 416(h) (3) (B) to be an irrational

means of preventing spurious claims. At best they have

merely asserted that there are better ways to do so. That

these plaintiffs may in fact be the children of Ramon

Jimenez, Sr. suggests that it might have been more be-

nevolent for Congress to allow them to share in these

benefits. However, the question before us is one of con-

gressional power and not wisdom. Having found § 416

29

(h) (3) (B) to be rational, we cannot second guess con-

gressional wisdom even as applied to these particular

facts. Since neither this nor any other court should

alter a legislative judgment until convinced that Congress

lacks the power to do what it has done, § 416(h) (3) (B)

should be considered a valid exercise of legislative judg-

ment until there exists convincing proof to the contrary.

Case dismissed.

/s/ Richard B. Austin

Honorable RICHARD B. AUSTIN

United States District Court

/s/ Bernard M. Decker

Honorable BERNARD M. DECKER

United States District Court

DATED: JANUARY 30, 1973

30 e

No. 71-C-1436, 71-C-2628

FAIRCHILD, Circuit Judge (dissenting). I respect-

fully dissent from the dismissal of the claims of Eugenio

and Alicia ‘Jimenez (the children born after Ramon’s

disability began). Legitimate children born after the

beginning of disability, and otherwise qualified, would

receive benefits, as would children born before the be-

ginning of disability, whether legitimate or illegitimate.

But no matter how clearly it can be shown that Eugenio

and Alicia are the dependent children of Ramon, the

I believe this exclusion of a class of dependent children

from social security benefits effected by 42 U.S.C. § 416

(h) (2) and (3) to be constitutionally impermissible dis-

crimination.

Recent decisions of the Supreme Court make it clear

that statutory compensation schemes may not, in award-

ing benefits, prefer one class of dependent children over

another according to their status of birth. Weber v. Aet-

na Casualty & Surety Co. 406 U.S. 164 (1972) ; Richard-

son V. Davis, 41 L.W. 3345 (1972), affirming Davis Vv.

Richardson, 342 FSupp. 588 (1972); Richardson v. Grif-

fin, 41 L.W. 3345 (1972); affirming Griffin v. Richard

son, | 16,759 CCH Unemployment Insurance Reports (D.

Md., July 16, 1972). Significantly, the Court was not

unmindful in these cases that children born out of wedlock

presented difficult problems of proof as to actual depend-

ency. In Weber, the Court indicated that they would re-

spect a state’s method of determining the genuineness of

individual claims. However, the Court made it clear that

once dependency was established, the Constitution re

quired that all dependents—whether legitimate or illegiti-

mate—must be treated equally. 406 U.S. at 175.

_

31

In a very, recent decision invalidating state discrimina-

tion against illegitimate children in a system designed

to provide for the needs of children generally, the Su-

Court said: “We recognize the lurking problems

with respect to proof of paternity. Those problems are

not to be lightly brushed aside, but neither can they be

made into an impenetrable barrier that works to shield

otherwise invidious discrimination.” Gomez V. Perez, ——

US. ——, 41 L.W. 4174, 4175, January 17, 1973.

The sole justification offered for the total exclusion of

a class of dependent children’ is that there may reason-

ably be thought to be a greater likelihood of plausible

ious claims among applicants born after the event

which triggers entitlement of an alleged father to bene-

2

While I would agree that the need to guard against

fraudulent claims is surely a valid legislative goal, I can-

not agree that a total exclusion of a class of “elaims,—

some of which will be demonstrably valid,—is a reason-

able means of achieving that goal.

1As the majority opinion makes clear, eligibility for social

security children’s benefits is not statutorily defined simply accord-

ing to the status and time of birth. Nevertheless, I believe, in oper-

ation, §416(h)(2) and (3), excludes from eligibility virtually all

children of an insured individual who are born out of wedlock

after the entitling event. It has never been suggested by the Secre-

tary that even a significant percentage of this class will be able

to establish their eligibility under § 416(h)(2)(A) and (B).

?This proposition is itself subject to question. Assuming that

paternal acknowledgement is required, a number of factors must

coalesce in producing a spurious but plausible claim. The insured

individual must be willing to falsify in the face of criminal penal-

ties and the societal and interpersonal condemnation to which he will

be exposed. He must be willing to expose himself to legal obligations

of support. The child’s birth and the mother’s situation must be

consistent with the paternity asserted. And the mother must be

willing to falsify. On the other hand, advances in the ability to

exclude paternity as a result of blood tests greatly increase the

possibility of dectecting spurious claims. Studies suggests that if

a sufficient number of blood typing tests are utilized, “the average

chance of obtaining an exclusion may eventually reach 80 to 90 per

cent.” Kramer, Illegitimacy: Law and Social Policy, Chapter 4,

Part H, sub-part (i); Blood Typing (1971), pp. 123-127.

\

Carrington v. Rash, 380 U.S. 89, 92-97 (1965) estab-

lishes the principle that a statutory classification which

totally excludes a class of persons from important bene-

fits denies equal protection when less drastic means are

available to effectuate the interest purportedly promoted

by the classification. I think this principle is applicable

In the context of a statutory compensation scheme,

total exclusion of a class of dependent children is

It is my opinion that insofar as portions of § 416(h)

(3) constitute a requirement that an applicant be borne

before the beginning of disability of an insured who is

alleged to be the applicant’s father, they are discrimina-

tory and invalid. I would enjoin application of this re

quirement to plaintiff Eugenio and Alicia and others simi-

larly situated.

I join Judge Austin and Judge Decker in the decision

with respect to Magdalena Jimenez and Robin Booker.

33

SUPREME COURT OF THE UNITED STATES

No. 72-6609

EUGENIO AND ALICIA JIMENEZ, ETC., APPELLANTS

Vv.

CASPAR W. WEINBERGER, Secretary of Health, Education

and Welfare

ON CONSIDERATION of the motion of the appellants

for leave to proceed herein in forma pauperis,

IT IS ORDERED by this Court that the said motion

be, and the same is hereby, granted.

December 3, 1973

SUPREME COURT OF THE UNITED STATES

No. 72-6609

EUGENIO AND ALICIA JIMENEZ, ETC., APPELLANTS

Vv.

CASPAR W. WEINBERGER, Secretary of Health, Education

and Welfare

APPEAL from the United States District Court for

the Northern District of Illinois.

The statement of jurisdiction in this case having been

submitted and considered by the Court, probable juris-

diction is noted.

December 3, 1973

ov. 8. COvERmmEnT peimtine orrice; 1974 530232 15)