464 F.Supp. 408 (W.D.Tex. 1978), Civ. A. A-77-CA-104, Boles v. Califano

Docket Nº:Civ. A. A-77-CA-104
Citation:464 F.Supp. 408
Party Name:Boles v. Califano
Case Date:June 23, 1978
Court:United States District Courts, 5th Circuit, Southern District of Texas

Page 408

464 F.Supp. 408 (W.D.Tex. 1978)

Norman J. BOLES and Margaret Gonzales, and all others similarly situated



Civ. A. No. A-77-CA-104.

United States District Court, W.D. Texas

June 23, 1978

Page 409

Herbert Semmel, Washington, D.C., Regina Lynn Rogoff, Austin, Tex., for plaintiffs.

Barbara Allen Babcock, Asst. Atty. Gen., David J. Anderson, Dennis G. Linder, Mark F. Evens, Attys., Dept. of Justice, Washington, D.C., Jamie C. Boyd, U. S. Atty., Western Dist. of Tex., John E. Murphy, Asst. U. S. Atty., San Antonio, Tex., for defendant.


ROBERTS, District Judge.

This action has been brought by the plaintiffs, Margaret Gonzales and her son, Norman J. Boles, who seek Mother's Insurance Benefits pursuant to section 202(g) of the Social Security Act, 42 U.S.C. s 402(g). The plaintiff Gonzales is not the widow of the deceased wage earner, who died a fully insured individual for purposes of collecting old-age insurance benefits. The plaintiff son is the illegitimate child of the wage earner and he is presently receiving Child's Insurance Benefits under 42 U.S.C. s 402(d) on the account of his father. Plaintiffs challenge the constitutionality of Section 202(g)(1) of the Act, as amended, 42 U.S.C.

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s 402(g)(1) , which precludes entitlement to benefits to the mother of a child of a fully insured wage earner who never married that wage earner. Plaintiffs claim that the purpose behind the enactment of 42 U.S.C. s 402(g)(1) was the protection and care of minor children, and that by paying benefits to a mother with minor children in her care, the resulting benefit would in fact inure to the minor child. Therefore, if the mothers of illegitimate children are not permitted to obtain mother's insurance benefits, the result is not only a loss for them but a loss of benefits to illegitimate children solely because of their illegitimacy. Defendant, on the other hand, argues that the benefit is for the mother, and that the plaintiff child was not denied this benefit because of his illegitimate birth, but because his mother failed to qualify for such entitlement under valid statutory criteria. This Court believes Plaintiffs' characterization of the case is the more apt one and aligns itself with that line of cases which has overturned enactments which unfairly discriminate against children solely on the basis of their illegitimacy.

I. Statement of Facts

The determinative facts in this case are not in dispute; most of them appear in the administrative record filed as part of this case. The plaintiff, Margaret Gonzales, and the deceased wage earner, Norman W. Boles, though never married, lived together in Georgetown, Texas, continuously from February 1963 until sometime in 1966. As a result of this relationship, Norman J. Boles, the plaintiff, was born on October 29, 1964.

Norman W. Boles returned to Wilson County, Tennessee and married Nancy L. Boles in April 1967. The two lived together until the wage earner's death on October 10, 1971. During their marriage they had two sons, Johnny W. Boles, born on January 12, 1969, and Jessie R. Boles, born March 8, 1970. Nancy L. Boles applied for and was found entitled to, on her own behalf and on behalf of her two sons, mother's insurance benefits and children's insurance benefits under the account of Norman W. Boles. She and her sons began receiving those benefits in December 1971, effective from September 1971.

On January 15, 1973, Margaret Gonzales made application on her own behalf and on behalf of Norman J. Boles for mother's insurance benefits and child's insurance benefits under the account of Norman W. Boles. Both applications were denied initially on April 13, 1973. On January 24, 1974, Margaret Gonzales' application was denied following a reconsideration determination. However, subsequent to a reconsideration determination, the application for child's insurance benefits on behalf of Norman J. Boles, who had been acknowledged in writing by the wage earner, had been approved. In April 1974, the monthly benefits payable to Nancy L., Johnny W., and Jessie R. Boles were reduced, effective from January 1973, to compensate for the addition of Norman J. Boles to the account of Norman W. Boles. This reduction was required to keep the account within the family maximum as allowed under section 215 of the Social Security Act, 42 U.S.C. s 415. On November 15, 1974, an administrative law judge of the Bureau of Hearings and Appeals affirmed the decision denying mother's insurance benefits to Ms. Gonzales on the basis that she and the deceased wage earner had never been married. Review of that decision by the Appeals Council of the Bureau of Hearings and Appeals was requested by Ms. Gonzales on November 19, 1974.

On November 27, 1974, Plaintiffs filed an action in the United States District Court for the District of Columbia in which they sought convocation of a three-judge district court pursuant to the then current version of 28 U.S.C. s 2282. That Court, on September 15, 1975, ordered a change of venue to the United States District Court for the Western District of Texas. In Texas, Judge John R. Brown, on November 10, 1975, issued an order designating a three-judge court. The three-judge court action has been pending on the docket of this court as Civil Action No. A-75-CA-171. On April 13, 1977, the Appeals Council of the Bureau of Hearings and Appeals denied Plaintiffs' claim. On June 10, 1977, Plaintiffs filed the instant action, apparently fearing that there might be a jurisdictional defect in the three-judge court action. Cross-motions for summary judgment have been filed in the case.

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II. Preface to Legal Argument

The program of Social Security benefits for children of deceased wage earners includes Children's Insurance Benefits and Mother's Insurance Benefits. As the Court examines in more detail later, Mother's Insurance Benefits were intended as a benefit to the child. The Supreme Court expressly so held in Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), stating for example, that "s 402(g) was intended only to provide an opportunity for children to receive the personal attention of one parent, since mother's benefits are linked to children's benefits only so long as it is realistic to think that the children might need the parent at home." 420 U.S. at 650, n. 17, 95 S.Ct. at 1234. The legislative history also establishes that the purpose is to benefit the child. See infra.

In a line of twelve cases since 1968, the Supreme Court has repeatedly declared unconstitutional discrimination against illegitimate children and their mothers, particularly in cases involving social welfare benefits. The most recent case is Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), prohibiting discrimination against illegitimate children under intestate inheritance laws. The Trimble decision lists the eleven earlier cases. See 430 U.S. at 766, n. 11, 97 S.Ct. 1459.

Ten of the cases overturned discrimination against illegitimates. Only two of the twelve cases upheld any form of disparate treatment of illegitimate children. Those two cases were Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971) and Mathews v. Lucas, 427 U.S. 495, 97 S.Ct. 2755, 49 L.Ed.2d 651 (1976). Labine has been in essence overruled, or at least limited to its facts, by Trimble v. Gordon. See 430 U.S. at 767-68, n. 12 and 776, n. 17, 97 S.Ct. 1459. Mathews Has for all practical purposes been rendered moot by Trimble. See infra.

Four of the twelve cases expressly held unconstitutional discrimination against illegitimates in Social Security benefits. See infra. They require, in the Court's view, a similar holding here, where all illegitimate children are denied the benefits of Mother's Insurance Benefits while all legitimate children receive them, without regard in either case to whether the deceased father had even lived with or supported the children.

III. Mother's Insurance Benefits Are Intended as Benefits to the Child

The statute challenged herein, 42 U.S.C. s 402(g)(1), provides Mother's Insurance Benefits to allow the surviving child of a deceased worker to receive the care of its surviving parent, relieving at least to some extent the necessity of the surviving parent to leave the child and go to work. Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975). The three principal eligibility requirements for Mother's Insurance Benefits, so far as this case is concerned, are:

1) that the child be eligible for or receiving Children's Insurance Benefits;

2) that the child be in the care of its mother; and

3) that the mother of the child had been married to the deceased father, either at the time of his death or by an earlier marriage followed by a divorce.

The first two requirements have been met herein. Plaintiff Norman Boles is receiving Children's Insurance Benefits and is in the care of his mother, Plaintiff Gonzales. The third requirement, marriage of the mother to the father, deprives plaintiff Boles and all other illegitimate children of the benefits of Mother's Insurance Benefits.

In Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), the Supreme Court unanimously held that Mother's Insurance Benefits are for the benefit of the child. The Court stated at 420 U.S. at 648-49, 95 S.Ct. at 1233:

". . . s 402(g), linked as it is directly to responsibility for minor children, was intended to permit women to elect not to work and to devote themselves to the care of children. . . .

"That the purpose behind s 402(g) is to provide children deprived of one parent

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with the opportunity for the personal attention of the other could not be more clear in the legislative history."

The Court went on to explain that "(t)he whole structure of survivors' benefits...

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