352 F.Supp. 596 (D.Md. 1972), Civ. 72-271, Norton v. Richardson

Docket Nº:Civ. 72-271
Citation:352 F.Supp. 596
Party Name:Norton v. Richardson
Case Date:December 22, 1972
Court:United States District Courts, 4th Circuit, District of Maryland
 
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Page 596

352 F.Supp. 596 (D.Md. 1972)

Gregory B. NORTON, Jr., a minor, by his next friend, Marian B. Chiles, Individually and on behalf of all others similarly situated

v.

Elliot RICHARDSON, Secretary, Department of Health, Education and Welfare, Individually and in his official capacity.

Civ. No. 72-271-B.

United States District Court, D. Maryland.

Dec. 22, 1972

Page 597

C. Christopher Brown and Michael Berman, Baltimore, Md., for plaintiff.

Harlington Wood, Jr., Asst. Atty. Gen., Harland F. Leathers and Bruce E. Titus,

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Washington, D. C., George Beall, U. S. Atty., and Jeffrey White, Asst. U. S. Atty., Baltimore, Md., for defendant.

BLAIR, District Judge.

MEMORANDUM OPINION

This case involves an attempt by plaintiff, Gregory B. Norton, Jr., to establish his right to receive child's insurance benefits under the Social Security Act, 42 U.S.C. § 402(d) after the death of his father, Gregory B. Norton, Sr. Benefits have been denied him by the Secretary of Health, Education and Welfare who found that he failed to meet the requirements of 42 U.S.C. § 416(h)(3)(C)(ii). This section requires that certain illegitimate children, to qualify under the Act as a child of the deceased wage earner, must prove, in addition to paternity, that they were living with or supported by the wage earner on the date of his death. Although Gregory proved he was the son of Gregory Norton, Sr., he failed to convince the Secretary that he had been living with or supported by his father when his father died. Two theories have been advanced in support of Gregory's right to receive benefits. The first is that the Secretary's decision rests on an incorrect interpretation of § 416(h)(3)(C)(ii) and is in error. 1 The second and alternative theory is that if the Secretary's interpretation is correct, § 416(h)(3)(C)(ii) should be held unconstitutional, its operation enjoined, and the Secretary directed by mandamus-like writ to commence payments. 2 Because the latter theory seeks an injunction against the enforcement of a federal statute on constitutional grounds, plaintiff has requested the convocation of a three-judge court. Plaintiff also seeks certification of the case as a class action and a preliminary injunction should the issue of the constitutionality of § 416(h)(3)(C)(ii) be reached.

Both sides have asked for summary disposition of the case, the pertinent facts being agreed upon. Defendant has moved for summary judgment or dismissal for failure to state a cause of action; plaintiff has responded with his own motion for summary judgment. As a preliminary matter, it must be determined which issues, if any, may be resolved by a single judge and which must be referred to a three-judge court for determination. Defendant contends that a three-judge court is not required, there being no substantial constitutional issue, and that judgment should be entered in favor of the Secretary on both claims by this court sitting as a single judge. Plaintiff counters that a three-judge court is required unless this court in its single judge capacity enters judgment in his favor, either because the Secretary's decision was wrong or the statute is unquestionably unconstitutional.

The review of a decision of the Secretary of H.E.W. is normally by a single judge court. Plaintiff is willing for this court to review the Secretary's decision, but only if judgment will be awarded plaintiff and asks that the three-judge court decide the claim if judgment is not to be for plaintiff. The court, however, disagrees with plaintiff that the three-judge court should consider this issue. The review of the Secretary's decision, being an alternative to deciding a constitutional question, must be resolved before the constitutional claim is reached. Wyman v. Rothstein, 398 U.S. 275, 90 S.Ct. 1582, 26 L.Ed.2d 218 (1970). Although the three-judge court would have pendent jurisdiction over this claim, 3 the recent authority is

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that the single judge, and not the three-judge court, should decide the non-constitutional claim. In Rosado v. Wyman, 397 U.S. 397, 403, 90 S.Ct. 1207, 1213, 25 L.Ed.2d 442 (1970), the Supreme Court indicated that the preferred procedure for a three-judge court presented with such a claim "may well have been to remand to the single district judge for findings and determination of the statutory claim rather than encumber the district court, at a time when district court calendars are overburdened, by consuming the time of three federal judges in a matter that was not required to be determined by a three-judge court." Three-judge courts after Rosado have followed this suggestion and remanded the non-constitutional claim to the single judge for decision prior to their consideration of the constitutional issue. Doe v. Gillman, 347 F.Supp. 483 (N.D.Iowa 1972); Hubert v. Saucier, 347 F.Supp. 152 (N.D.Ga.1972); Linnane v. Betit, 331 F.Supp. 868 (D.Vermont 1971); Saddler v. Winstead, 327 F.Supp. 568 (N.D.Miss.1971); Woolfolk v. Brown, 325 F.Supp. 1162 (E.D.Va.1971); Doe v. Hursh, 337 F.Supp. 614, 616 (D.Minn.1970). To this court there is no reason for the single judge to first send the non-constitutional claim to the three-judge court before deciding it. Bryant v. Carleson, 444 F.2d 353 (9th Cir. 1971), cert. denied 404 U.S. 967, 92 S.Ct. 344, 30 L.Ed.2d 287 (1971); Kelly v. Illinois Bell Tel. Co., 325 F.2d 148 (7th Cir. 1963); Chicago, Duluth & Georgian Bay Transit Co. v. Nims, 252 F.2d 317 (6th Cir. 1958); Doe v. Lavine, 347 F.Supp. 357 (S.D.N.Y.1972); Connecticut Union of Welfare Employees v. White, 55 F.R.D. 481 (D.Conn.1972). Contra Weintraub v. Hanrahan, 435 F.2d 461 (7th Cir. 1970); Fort v. Daley, 431 F.2d 1128 (7th Cir. 1970). In fact, it would be grossly inefficient to send a three-judge court a claim which will only be sent immediately back. This inefficiency is especially apparent if the single judge's decision resolves the case, for there is then no need to convene the three-judge court. See, e. g., Kelly v. Illinois Bell Tel. Co., 325 F.2d 148 (7th Cir. 1963); Doe v. Lavine, 347 F.Supp. 357 (S.D.N.Y.1972). Sending all claims to the three-judge court requires that the three judges gather at least to remand, though they may never be required again in the case. See, e. g., Doe v. Hursh, 337 F.Supp. 614 (D.Minn.1970). Even if the three-judge court is eventually required because of the single judge's decision, nothing would be more wasteful than having two federal judges re-do the work one judge has...

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