Jobst v. Richardson

• Decision Date: 14 January 1974
• Docket Number: No. 20495-1.,20495-1.
• Citation: 368 F. Supp. 909
• Parties: John A. JOBST, Plaintiff, v. Elliot L. RICHARDSON, Secretary of Department of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Western District of Missouri

368 F. Supp. 909

John A. JOBST, Plaintiff, v. Elliot L. RICHARDSON, Secretary of Department of Health, Education and Welfare, Defendant.

No. 20495-1.

United States District Court, W. D. Missouri, W. D.

January 14, 1974.

J. D. Riffel, Legal Aid and Defender Society, Kansas City, Mo., for plaintiff.

Bert C. Hurn, U. S. Dist. Atty., Sheryle Randol, Asst. U. S. Dist. Atty., Caroline McB. French, Deputy Regional Atty., Dept. of H. E. & W. Region VII, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

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 insurance 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 protection of the laws in violation of the Due Process clause of the Fifth Amendment. He prays for reinstatement of his child's insurance benefits, invoking the Court's jurisdiction under 42 U.S.C. § 405(g); a judgment declaring 42 U.S.C. § 402(d)(1)(D) unconstitutional; and a permanent injunction restraining defendant from enforcing 42 U.S.C. § 402(d)(1)(D). We find and conclude that plaintiff is entitled 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, plaintiff 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 Division 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 termination was based upon the provisions of 42 U. S.C. §§ 402(d)(1) and (5), which provide for the termination 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 initial termination by the Administration and reinstated plaintiff's benefits for the following reason:

Termination on the basis of marriage is arbitrary and without any rational basis, and therefore, violates the equal protection and due process 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 examiner's decision on its own motion. On June 22, 1972, the Council reversed the hearing examiner's ruling, concluding that a "quasi-judicial federal administrative agency" has no authority to consider the Constitution of the United States when it administers the Social Security Act. (Tr. 7). The Appeals Council further determined that it would not ask for recovery of the over payments resulting from the hearing examiner's decision.

On August 18, 1972, plaintiff filed this action. The case was initially complicated by plaintiff's insistence that this case was one in which a three-judge court must be convened pursuant to 28 U.S.C. §§ 2242 and 2284. On May 11, 1973, we entered our memorandum 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 unconstitutional and that, therefore, the decision of the Appeals Council must be reversed.

III.

The statutory scheme relevant to the question presented 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 individual 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 entitled 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 ending with the month preceding whichever of the following 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 (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) . . . not be terminated by reason of such marriage . . .

The question presented is whether the Social Security Act's different treatment of various classes 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 further.

It is indisputable that while the Fifth Amendment contains no specific equal protection clause, equal 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 justification." Fleming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960); Bolling v. Sharpe, 347 U. S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

It is equally clear that the Social Security Act is subject to scrutiny under standards of equal protection. The United States Supreme Court in Richardson v. Belcher, 404 U.S. 78, 92 S. Ct. 254, 30 L.Ed.2d 231 (1971), citing with approval its earlier decision in Fleming 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, 92 S.Ct. at 257.

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, 87 S.Ct. 1817, 18 L. Ed.2d 1010 (1969), and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L. Ed. 1042 (1923). He then relies upon Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969), for the proposition that "any classification which serves to penalize the exercise of a constitutional right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional."

We maintain serious doubt whether plaintiff's strict standard argument may be said to be tenable in light of Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L.Ed.2d 491 (1970), and San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (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 Rodriguez, 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, 93 S.Ct. at 1297.

We need not reach the strict standard question, however, for we find and conclude that the classification in question is not "rationally based and free from invidious discrimination" Dandridge v. Williams, 397 U.S. at 487, 90 S.Ct. at 1162.

Defendant, at page 2 of its Supplemental Memorandum 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 entitlement 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 exception to this rule in

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