364 F.Supp. 1117 (D.Md. 1973), Civ. 72-271, Norton v. Weinberger

Docket Nº:Civ. 72-271
Citation:364 F.Supp. 1117
Party Name:Norton v. Weinberger
Case Date:September 14, 1973
Court:United States District Courts, 4th Circuit, District of Maryland

Page 1117

364 F.Supp. 1117 (D.Md. 1973)

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


Caspar WEINBERGER, Secretary, Department of Health, Education and Welfare, Individually and in his official capacity.

Civ. No. 72-271-B.

United States District Court, D. Maryland.

Sept. 14, 1973

Page 1118

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

Harlington Wood, Jr., Asst. Atty. Gen., Harland F. Leathers and Bruce E. Titus, Attys., Dept. of Justice, Washington, D. C., George Beall, U. S. Atty. for the District of Maryland, and Jeffrey White, Asst. U. S. Atty., Baltimore, Md., for defendant.

Before WINTER, Circuit Judge, and MURRAY and BLAIR, District Judges.


BLAIR, District Judge.

Gregory Norton, Jr., on behalf of himself and all others similarly situated, challenges the constitutionality of § 216(h)(3)(C)(ii) of the Social Security Act, 42 U.S.C. § 416(h)(3)(C)(ii) and seeks to restrain its enforcement. This three judge court has been convened to decide the constitutional question. The

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case is before the court on cross-motions for summary judgment, the essential facts not being in dispute.

To understand the issues involved, it is important at the outset to examine the pertinent statutory framework. 1 Under the Social Security Act, the child of a deceased wage earner who was dependent on the wage earner at the time of the wage earner's death is entitled to child's insurance benefits. 42 U.S.C. § 402(d)(1)(C)(ii). A legitimate child, being the wage earner's offspring and presumed dependent, automatically qualifies for benefits. 42 U.S.C. §§ 416(e)(1) and 402(d)(3)(A). An illegitimate child also can receive benefits, but he or she must first qualify under one of several alternative provisions. An illegitimate child who could, under the intestacy law of the wage earner's domicile, inherit the wage earner's personalty is eligible for benefits upon proof that the wage earner was the parent and that at the time of death, the wage earner lived with or contributed to the support of the child. 42 U.S.C. §§ 416(h)(2)(A), 416(e)(1), and 402(d)(3). An illegitimate who is the child of a marriage invalid because of the existence of an impediment when the marriage ceremony was performed is entitled to receive benefits. 42 U.S.C. §§ 416(h)(2)(B), 416(e)(1) and 402(d)(3). Or, an illegitimate may qualify for benefits if it is shown that the wage earner prior to his death either (1) had acknowledged in writing that the illegitimate child was his son or daughter, (2) had been decreed by a court to be the father of the illegitimate child, or (3) had been ordered by a court to contribute to the support of the illegitimate child because he was the father. 42 U.S.C. §§ 416(h)(3)(C)(i), 416(e)(1) and 402(d)(3). Those illegitimate children unable to provide a written acknowledgment, a paternity decree, or a support order may still qualify for benefits under 42 U.S.C. § 416(h)(3)(C)(ii), the challenged provision, if the wage earner is shown by evidence satisfactory to the Secretary to be the father and the wage earner was living with or contributing to the support of the illegitimate child at the time of his death. 42 U.S.C. §§ 416(h)(3)(C)(ii), 416(e)(1) and 402(d)(3).

Gregory Norton, Jr., an illegitimate child, sought child's insurance benefits after the death of his reputed father, Gregory Norton, Sr. Not being able to provide a written acknowledgment of paternity, and a paternity decree or support order never having been obtained during the lifetime of Gregory Norton, Sr., he was forced to rely on § 416(h)(3)(C)(ii) to establish his right to benefits. He was denied benefits by the Secretary of H.E.W. after the appeal board affirmed the hearing examiner's conclusion that he failed to meet the requirements of § 416(h)(3)(C)(ii). Although the hearing examiner found Gregory Norton, Jr. was the son of Gregory Norton, Sr., he held that Gregory Norton, Sr. was not living with or contributing to the support of his son at the time of his death. Suit was thereafter filed on Gregory Norton, Jr.'s behalf by his maternal grandmother, Marian B. Chiles, in the federal district court. Alternative relief was prayed. Plaintiff asked the court to either rule that the Secretary's decision denying benefits for failure to meet § 416(h)(3)(C)(ii)'s "living with or support by" requirement was incorrect and that Gregory Norton, Jr. had in fact qualified or, if the Secretary's decision was correct, to declare § 416(h)(3)(C)(ii)'s "living with or support by" requirement unconstitutional, enjoin its further enforcement, and direct the Secretary by mandamus-like writ to commence payments.

The single judge court, addressing the nonconstitutional claim first, Wyman v. Rothstein, 398 U.S. 275, 276, 90 S.Ct. 1582, 26 L.Ed.2d 218 (1970); Rosado v. Wyman, 397 U.S. 397, 403, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), found the

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Secretary's decision was based on "substantial evidence" and correct under the terms of the statute. 42 U.S.C. § 405(g). The court then examined the constitutional claim, found it to be substantial, and requested the convening of a statutory three judge court to decide the constitutional question. See Norton v. Richardson, 352 F.Supp. 596 (D.Md.1972).


Two preliminary points should be resolved before the merits of the constitutional issue are reached.

Plaintiff, at the oral hearing, requested this court to review the single judge's ruling as to the correctness of the Secretary's decision.

Earlier, plaintiff had requested the single judge to review the Secretary's decision, although the request was predicated on the condition that the single judge find that the Secretary's decision was not supported by substantial evidence. The single judge proceeded to decision of the question and concluded otherwise. Plaintiff now urges that the three-judge court has jurisdiction to review the Secretary's decision and indeed should do so, because if it rules that the Secretary's decision was erroneous because not supported by substantial evidence, the necessity of a decision on the constitutional question would be avoided. Wyman v. Rothstein, 398 U.S. 275, 276, 90 S.Ct. 1582, 26 L.Ed. 218 (1970); Rosado v. Wyman, 397 U.S. 397, 403, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970).

The right of a single judge on his own motion to decide nonconstitutional questions before asking that a three-judge court be convened is the subject of some dispute between the circuits. 2 It is a power which has been exercised, albeit in factual circumstances distinguishable from the case at bar. Manifestly, the writer was satisfied that he possessed the power. The three-judge court, however, takes no position on the correctness of the writer's views, because it is satisfied that the single judge's determination was correct. Stated otherwise, the three-judge court finds it unnecessary to determine if the single judge did or did not have authority to decide nonconstitutional questions on his own motion because if the question of the substantiality of the evidence to support the Secretary's determination were before it, it would arrive at the same result for the reasons advanced by the single judge.

The other preliminary point requiring initial consideration concerns plaintiff's request that the case be certified as a class action. The single judge deferred ruling on this point until this court was convened. 3 See, 352 F.Supp. at 601. Although the defendant has opposed such certification, the court believes the request is proper and should be granted. This action is clearly one coming under Rule 23(b)(2) in that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole4)4B" B" Moreover, the court finds the prerequisites of Rule 23(a) to have been met since "(1) the class is so numerous that joinder of all members is impractical, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties

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are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class4)4B" B" As required by Rule 23(c), the court defines the plaintiff class in this suit to include all of those persons otherwise eligible for child's insurance benefits under 42 U.S.C. § 402(d)(1) but who cannot qualify for such child's insurance benefits solely because they cannot meet the requirement of 42 U.S.C. § 416(h)(3)(C)(ii) that they be living with or supported by their father on the date of his death.


The constitutional challenge plaintiff presents is that 42 U.S.C. § 416(h)(3)(C)(ii), as written, violates the due process clause of the Fifth Amendment, which proscribes irrational discrimination in federal legislative classifications. United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); United States Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Plaintiff contends that § 416(h)(3)(C)(ii) impermissibly discriminates against a sub-class of illegitimate children who, although they can prove their paternity, cannot qualify for child's insurance benefits because §...

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