Bowen v. Hackett, Civ. A. No. 5038

• Decision Date: 13 July 1973
• Docket Number: 5043.,Civ. A. No. 5038
• Parties: Mary BOWEN, Individually, as mother and next friend of Mark Bowen, a minor, and on behalf of all others similarly situated v. Mary C. HACKETT, Director of the Rhode Island Department of Employment Security. Sharon FERRI, Individually, as mother and next friend of Mark Ferri, a minor, and on behalf of all others similarly situated v. Mary C. HACKETT, Director of the Rhode Island Department of Employment Security.
• Court: U.S. District Court — District of Rhode Island

361 F. Supp. 854

Mary BOWEN, Individually, as mother and next friend of Mark Bowen, a minor, and on behalf of all others similarly situated v. Mary C. HACKETT, Director of the Rhode Island Department of Employment Security.

Sharon FERRI, Individually, as mother and next friend of Mark Ferri, a minor, and on behalf of all others similarly situated v. Mary C. HACKETT, Director of the Rhode Island Department of Employment Security.

Civ. A. Nos. 5038, 5043.

United States District Court, D. Rhode Island.

July 13, 1973.

Kenneth F. MacIver, Jr., John M. Roney of R. I. Legal Services, Inc., Providence, R. I., for plaintiffs.

W. Slater Allen, Jr., Asst. Atty. Gen., Providence, R. I., Louis Baruch Rubinstein and Charles H. McLaughlin, R. I. Dept. of Employment Security, Providence, R. I., for defendant.

OPINION

PETTINE, Chief Judge.

Disparities between the treatment of women and of men with regard to dependent's allowances under the Rhode Island unemployment compensation and temporary disability insurance laws are challenged here. Seeking equality of the sexes under the law, plaintiffs originally asked that the offending sections of the Rhode Island laws be declared unconstitutional and in violation of certain provisions of the Social Security Act, 42 U. S.C. § 503(a)(1); that injunctions issue against these sections of the Rhode Island statutes; that damages be awarded the named plaintiffs, with interest, costs, and attorneys fees; and for such other relief as this Court deems just.

Jurisdiction is present under 28 U.S. C. § 1343; causes of action are asserted under 42 U.S.C.A. § 1983. Because injunctions were sought against statutes of state-wide application, a three-judge court was convened pursuant to 28 U.S. C. §§ 2281 and 2284. Like constitutional challenges being presented to the unemployment compensation law and to the temporary disability insurance law, these two actions were ordered consolidated. It was certified as a class action under Fed.R.Civ.P. 23(b)(2).

Plaintiffs moved for a preliminary injunction and then for summary judgment. An evidentiary hearing was held before the three-judge court. At the hearing it was represented that the statutes in question have been recently amended and the challenged language has been deleted.¹ The parties agreed that the request for prospective injunctive relief is moot and plaintiffs dropped their request for an injunction against the enforcement of the statutes. The statutory requirements for a three-judge court no longer being present, an order was entered remanding the action to a single judge for determination. See Edelman v. Townsend, 412 U.S. 914, 93 S.Ct. 2733, 37 L.Ed.2d 141 (1973) (judgment of 3-judge court vacated, remanded for entry of fresh judgment from which timely appeal may be taken to court of appeals); and see Rosado v. Wyman, 397 U.S. 397, 403, 90 S.Ct. 1207, 25 L. Ed.2d 442 (1970).

Also at oral argument, counsel for plaintiffs stated that relief in the form of retroactive or back payments due to members of the class was sought.² It was also stated that plaintiffs do not seek punitive damages. Because declaratory judgment and retroactive payments are sought against the original statutes, the case is not moot.

Findings of Fact

Plaintiff Mary Bowen, a citizen of Rhode Island receives unemployment insurance benefits from the Rhode Island Department of Employment Security. She is divorced and has custody of the only child, Mark Bowen, a minor. Her ex-husband is under court order to pay $25.00 per week child support. Even with the support payments Mary Bowen provides more than fifty percent of Mark's support.

In making her application for unemployment compensation, plaintiff Bowen also sought a dependent's allowance for her son. Under R.I.G.L. § 28-44-6(C) (1956, 1968 Reenactment) an individual receiving unemployment benefits is entitled to a dependent's allowance of $5.00 for each of that individual's minor dependent children. Mary Bowen's application for the dependent's allowance for Mark was rejected pursuant to another portion of R.I.G.L. § 28-44-6(C), as set forth and italicized below:

"(C) Dependents' allowance. — An individual to whom benefits for total or partial unemployment are payable under this chapter with respect to any week, shall, in addition to the benefits payable under paragraphs (A) and (B) hereof, be paid with respect to each week, a dependents' allowance of five dollars ($5.00) for each of such individual's children, including adopted and stepchildren, who, at the beginning of the individual's benefit year, were under eighteen (18) years of age, and also for each child eighteen (18) years of age or over incapable of earning any wages because of mental or physical incapacity who is dependent upon him in law and in fact at the beginning of the individual's benefit year, but in no event shall the weekly total of such allowance exceed the sum of twenty dollars ($20.00); provided, however, where the individual making the claim is a woman, the dependency status of such children shall be established to the satisfaction of the director."

Mary Bowen's application for the dependency allowance was denied on the basis that as a woman she had to prove she totally supported her son and that she did not totally support Mark because she received support payments from her ex-husband.

Sharon Ferri, a citizen of Rhode Island, receives temporary disability insurance (T.D.I.) benefits from the Rhode Island Department of Employment Security. She is divorced and has custody of the only child, Mark Ferri, a minor. Although her ex-husband was under court order to pay $20.00 per week child support, these payments were infrequently made and are over $1,000.00 in arrears. The present support order requires him to pay $15.00 per week plus $2.00 per week toward the arrearage. He still fails to make most payments. Sharon Ferri provides more than fifty percent of her child's support.

In the course of applying for temporary disability benefits, Sharon Ferri also applied for a dependent's allowance for her son. Under R.I.G.L. § 28-41-5(C) (1956, 1968 Reenactment) an individual who receives unemployment benefits due to sickness (temporary disability benefits) is entitled to a dependent's allowance of $3.00 for each of that individual's minor dependent children. Sharon Ferri's application for the dependent's allowance was denied under another section of R.I.G.L. § 28-41-5(C), as set forth and italicized below:

"(C) Dependent Allowances. — An individual to whom benefits for unemployment due to sickness are payable under this chapter with respect to any week, shall, in addition to the benefits payable under paragraphs (A) and (B) hereof, be paid with respect to each week, a dependent's allowance of three dollars ($3.00) for each of such individual's children, including adopted and stepchildren, who, at the beginning of the individual's benefit year, were under eighteen (18) years of age, and also for each child eighteen (18) years of age or over, incapable of earning any wages because of mental or physical incapacity who is dependent upon him at law and in fact at the beginning of the individual's benefit year but in no event shall the weekly total of such allowance exceed the sum of twelve dollars ($12.00); provided, however, where the individual making the claim is a woman, the dependency status of such children shall be established to the satisfaction of the director; provided, further, however, that dependency status of the children of an individual whose benefit year has been established prior thereto and who is otherwise eligible shall be determined as of the first week for which he claims benefits subsequent to November 16, 1958."

Her claim for dependent's allowance was rejected because she was a woman and so had to prove that her child was dependent on her; she could not prove dependency to the satisfaction of the director because of the court order of child support.

Neither the unemployment insurance laws nor the temporary disability insurance laws define the statutory term "dependent . . . in fact." Under R.I. G.L. § 33-15-1, both parents are equally charged with the support of their minor children. Though not a necessary interpretation of the statute, the term "dependent . . . in fact" has been interpreted by defendant in the administrative practice of the D.E.S. to mean that a woman must prove that she provides total support for the child. It is the administrative practice of the D.E.S. not to require most male applicants to prove dependency; those who must prove dependency need only show that they contribute something to the support of the child.

Sharon Ferri unsuccessfully went through the administrative appeal procedure following denial of her claim. Mary Bowen did not go through the administrative appeal procedure. Both have challenged in this Court those portions of the unemployment and temporary disability laws that require women to prove dependency of children for whom they claim the dependency allowance increment to their benefits, and which do not impose a similar requirement on men. Plaintiffs assert that this disparity violates the Equal Protection Clause of the Fourteenth Amendment and the "when due" provisions of the Social Security Act, 42 U.S.C. § 503(a)(1).

Harold C. Walmsley, Chief of the Benefit Division of the Department of Employment Security, testified about the Department's prior procedures as to unemployment compensation dependency benefits. Applicants for unemployment compensation, both male and female, filled out an application form at an interview. The same form was used for both sexes and it contained questions about whether the applicant had dependents. The form also contained the following statement:

"Normally only the father may claim such dependents but where the mother has assumed total responsibility for the care of the children then the mother may claim such dependency allowances." (emphasis added)

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