390 F.Supp. 1084 (D.Md. 1975), Civ. 72-271, Norton v. Weinberger

Docket Nº:Civ. 72-271
Citation:390 F.Supp. 1084
Party Name:Norton v. Weinberger
Case Date:February 28, 1975
Court:United States District Courts, 4th Circuit, District of Maryland

Page 1084

390 F.Supp. 1084 (D.Md. 1975)

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


Caspar W. 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.

Feb. 28, 1975

Page 1085

C. Christopher Brown, Baltimore, Md., for plaintiffs.

Carla A. Hills, Asst. Atty. Gen., New York City, Harland F. Leathers and Bruce E. Titus, Attys., Dept. of Justice, Washington, D.C., George Beall, U.S. Atty., D. Md., and Jeffrey White, Asst. U.S. Atty., Baltimore, Md., for defendant.

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


BLAIR, District Judge.

Our judgment in Norton v. Weinberger, 364 F.Supp. 1117 (D.Md.1973) 1 was vacated and the case remanded by the Supreme Court for reconsideration in light of Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974). Upon reconsideration, aided by the briefs and arguments of counsel, we are persuaded that Jimenez neither compels nor justifies any change in our earlier opinion and judgment. We will review briefly the two decisions and note our reasons for this conclusion.

Our Decision in Norton

Gregory Norton, although shown by evidence satisfactory to the Secretary to be the child of a deceased insured individual, was denied benefits under 42 U.S.C. §§ 402(d)(1), 402(d)(3), 416(h)(3)(C)(ii) because it could not be shown that prior to his death his father had lived with or contributed to his support. Nor being eligible for benefits under any other provisions of the Act, Norton sought, among other relief, a declaration of the unconstitutionality of § 416(h) (3)(C)(ii). We held that the denial of benefits to Norton because he was not dependent on his father within the terms of the Act did not deny him equal protection of the laws as guaranteed by the due process clause of the Fifth Amendment. While our earlier opinion in Norton speaks for itself and need not be repeated here, a few points should be noted.

First, on the issue of the constitutionality of the statute's scheme for showing dependency, we refused to hold that illegitimacy is a 'suspect classification.' Thus, we refused to apply a 'strict scrutiny' or 'compelling governmental interest' standard in reviewing the Act. Rather, we applied the type of equal protection analysis which the Supreme Court discussed in Weber v. Aetna Casualty and Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).

Second, we rejected the plaintiff's suggestion that Congress intended, by the child's insurance benefits provisions, to aid every child of a deceased individual. Instead, we concluded that the primary purpose of the insurance provisions was to aid dependent children. In

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the words of the Senate Report accompanying the 1965 Amendments, the insurance program was 'intended to pay benefits to replace the support lost by a child when his father retires, dies, or becomes disabled.' S.Rep. No. 404, 89th Cong. 1st Sess. (1965), 1965 Code Cong. & Admin.News, pp. 1943, 2050.

Third, after determining that the primary purpose of the Act was to replace support lost by a child, we analyzed the statutory scheme of categories and presumptions and concluded that it bore a rational and substantial relationship to the principal goal of the Act.

The Supreme Court's Decision in Jimenez

Eugenio and Alicia Jimenez were illegitimate children conceived and born after their father became disabled. From their birth, they lived with and were supported by their father and he acknowledged them as his children. Under Illinois law, however, they were not able to inherit from their father and were classified as illegitimates because their parents never married. Since they were born after the onset of their father's disability-- the event insured against-- he could not have acknowledged them, nor have been ordered by a court to make support payments, nor decreed by a court to be their father prior to his disability. Jimenez, 417 U.S. at 630-31, 94 S.Ct. 2496. See § 416(h)(3)(B) (i). Similarly, it was impossible for the children to demonstrate that their disabled father lived with them or contributed to their support at the time his disability began. See 416(h)(3)(B)(ii). Dissimilarly, their older illegitimate sister was eligible to receive benefits because she was conceived prior to the father's disability and had lived with him and received his support at the requisite time. Jimenez at 630-31, 94 S.Ct. 2496. Thus, while the older sister was eligible to receive benefits, the two after-born Jimenez children were unable to satisfy and of the alternate prerequisites to receive like treatment. See §§ 402(d)(3), 416(h)(2)(B), 416(h)(3)(B).

In Jimenez, the Supreme Court took a very narrow approach. In an opinion by Chief Justice Burger, the Court did not pose the issues in terms of discrimination between legitimates and illegitimates, rather, it analyzed the plaintiffs' challenge in terms of discrimination between certain subclasses of illegitimates. Jimenez at 635-36, 94 S.Ct. 2496. By taking that approach, the Court had no reason to reach the question of whether illegitimacy is a 'suspect classification,' and, it expressly refused to reach that issue. Id. at 631-32, 94 S.Ct. 2496.

The Supreme Court focused its analysis upon the fact that the Jimenez children were denied benefits solely because they were conceived and born after the onset of their father's disability. The Court began by determining that 'the primary purpose of the contested Social Security scheme is to provide support for dependents of a disabled wage earner.' Jimenez at 633-34, 94 S.Ct. at 2500. In identifying that goal, the Court rejected the argument that the Act's purpose was to aid only children who were dependent at the time of the disabling injury. Id. at 634-35, 94 S.Ct. 2496. In the Court's view, Congress intended to aid all dependent children.

Having identified the primary purpose of the Act, the Court noted that after-born illegitimate children were for practical purposes divided into two sub-classes. First, there were those who could recover without proving actual dependency prior to the disability, because they were presumed by the Act to be dependent at the requisite time. Second, there were those after-born illegitimates who were denied benefits, solely by reason of the timing of their births, because they could not possibly demonstrate dependency at the time their parent was disabled. Included within the latter class were children who, like Eugenio and Alicia Jimenez, were genuinely dependent upon their disabled parent.

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The conclusive exclusion of such after-born children, the Court held, could not be justified solely on the basis of a claimed desire to avoid spurious claims. Jimenez at 636-37, 94 S.Ct. 2496. The Court wrote,

The Act's definition of these two subclasses of illegitimates is 'over-inclusive' in that it benefits some children who are legitimated, or entitled to inherit, or illegitimate solely because of a defect in the marriage of their parents, but who are not dependent on their disabled parent. Conversely, the Act is 'under-inclusive' in that it conclusively excludes some illegitimates in appellants' subclass who are, in fact, dependent upon their disabled parent. Thus, for all that is shown in this record, the two subclasses of illegitimates stand on equal footing, and the potential for spurious claims is the same as to both; hence to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the law guaranteed by the due process provisions of the Fifth Amendment.

Id. at 637, 94 S.Ct. at 2502.

On remand, the Court directed that the Jimenez children were to be afforded an opportunity to demonstrate their eligibility by showing 'that (they) are the children of the claimant, that they lived with the claimant all their lives, that he has formally acknowledged them to be his children, and that he has supported and cared for them since birth. Jimenez at 637-38, 94 S.Ct. at 2502.

The Act

Norton, like Jimenez, involves an attack upon the Social Security Act's scheme for providing benefits to children of persons insured under the Act. Although Jimenez involved disability benefits, while Norton involves survival benefits, the basic mechanics are essentially similar and involve either identical or parallel provisions of the act.

As they relate to Norton, we synthesize our understanding of the pertinent provisions of the Act. The term 'child' means 'the child or legally adopted child of an individual' as well as certain stepchildren and grandchildren. § 416(e). 2 A child is entitled to benefits 3 if at the time of the event insured against the child was 'dependent' upon the insured individual. § 402(d) (1). Legitimate and adopted children are 'deemed dependent'. § 402(d)(3). Children of marriages which are invalid for specified reasons, § 416(h)(2)(B), and children who at specified times have been (a) acknowledged in writing by the insured individual, or (b) decreed by a court to be the child of an insured individual, or (c) the beneficiary of an order of court directing the insured individual to provide support are deemed to be the children of the insured individual, § 416(h)(3)(C)(i), and are also 'deemed legitimate' and thereby 'deemed dependent.' § 402(d)(3).

As an alternate means of showing eligibility for benefits, a child who at the time of the event insured against could inherit personalty through intestate succession by the laws of the insured's state of domicile (with qualifications not pertinent) is deemed to be...

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