Brown v. Bowen

• Decision Date: 10 June 1988
• Docket Number: No. 87-2501,87-2501
• Citation: 847 F.2d 342
• Parties: , Unempl.Ins.Rep. CCH 17990.3 Lucy BROWN, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 342

847 F.2d 342

21 Soc.Sec.Rep.Ser. 572, Unempl.Ins.Rep. CCH 17990.3

Lucy BROWN, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services Defendant-Appellee.

No. 87-2501.

United States Court of Appeals Seventh Circuit.

Argued April 6, 1988.

Decided May 12, 1988.

Rehearing and Rehearing En Banc Denied June 10, 1988.

Dorinda Budlow, Frederick J. Daley, Ltd., Chicago, Ill., for plaintiff-appellant.

Barbara M. King, Office of Gen. Counsel, Dept. of Health & Human Services, Chicago, Ill., for defendant-appellee.

Before POSNER, FLAUM, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

The Social Security Act establishes many ways for children to recover benefits on their father's account. See Trammell v. Bowen, 819 F.2d 167, 168 (7th Cir.1987). After Frank Jones died in 1983, Lucy Brown filed an application for benefits on behalf of Atlanda, Frank, and Amber Brown, who she said were Frank Jones's children, born between 1969 and 1972. Lucy Brown sought to establish eligibility under 42 U.S.C. Sec. 416(h)(2)(A), which provides that children eligible to inherit property from the insured person under the intestate succession laws of the state where they live (Illinois, in this case) may receive benefits on his account. See Schaefer v. Heckler, 792 F.2d 81 (7th Cir.1986). Illinois law provides that a person may take by intestate succession only if he establishes by "clear and convincing evidence" that he is the child of the decedent. Ill.Rev.Stat. ch. 110 1/2 p 2-2(h).

The Secretary commenced paying benefits promptly after Lucy Brown applied for them but concluded after a year that the evidence of paternity was insufficient; he sought to recover the $16,542 paid out so far. An administrative law judge heard the case on cross-applications: the Secretary wanted the money back, and Lucy Brown wanted an order confirming her right to benefits. The ALJ denied both requests, concluding that Brown had not established by clear and convincing evidence that Frank Jones was the children's father, but that she had "enough evidence to justify her action in filing for children's benefits" to make her "without fault", and so entitled to keep the money under 42 U.S.C. Sec. 404(b). The Appeals Council let this decision stand. The district judge granted summary judgment to the Secretary on Lucy Brown's petition for review, holding that substantial evidence lay behind the decision. Plaintiff thinks this irrational. How could the ALJ both find that she had enough evidence to escape repayment and conclude that the children are not Frank Jones's? She believes, too, that the ALJ committed an error of law by assuming that only written evidence may be "clear and convincing". Plaintiff believes that she has plenty of uncontradicted evidence and that the three children are entitled to benefits as a matter of law.

Lucy Brown testified in the administrative hearing that she met Frank Jones in 1969 and was intimate with him occasionally until 1973, when she became a Jehovah's Witness and saw him no more. During those years, Lucy stated, she had sexual relations with no one else. Atlanda, Frank, and Amber Brown testified that they knew Frank Jones as their father, that they saw him occasionally until his death and called him "daddy", that he gave them small presents and acknowledged them openly as his children on chance meetings at the grocery store or in the schoolyard, and that he sometimes came to their house. (This is in some tension with Lucy's testimony that Frank was excluded from the Brown household after 1973.) John Brown and Velma Garnett, two of the elder siblings of Atlanda, Frank, and Amber, testified that they knew during 1969-73 that Frank Jones was seeing their mother and that Jones visited the family once or twice a month after 1973; John added that when he met Jones on the street, Jones would inquire after the three. John recalled one Christmas morning when Jones visited the Brown house and played the role of paterfamilias, trying to inveigle little Frank to talk into the tape recorder Jones had brought. The Browns produced some snapshots of the family at a picnic with a man they identified as Frank Jones.

The Brown household received welfare payments throughout this period. When Atlanda was born, Lucy informed her welfare caseworker but did not (initially) seek an increase in benefits, stating that Frank Jones would provide for the child. Lucy said that Frank acknowledged his role and during 1970 accompanied her to the welfare office and filled out some papers promising to pay $10 per week for Atlanda. Neither Lucy nor the welfare officials could find those papers. This process was repeated for the next child, but in February 1972 Atlanda and Frank Brown were added to the welfare rolls. Forms for all three children have a space for the father's signature; each signature line is blank. A form filled out by the welfare agency in 1972 noted that Lucy named Frank as the father, but that Frank was not to be contacted at his home. It is common ground that if Frank Jones ever contributed anything to the children's support, he stopped in 1975. (Before then, Lucy Brown testified, she occasionally visited Jones at work to pick up cash when she needed it.) No judicial order of support was sought, and Jones never acknowledged the children in writing. Their birth certificates do not give a father.

The caution not to contact Jones at home may have been prudent, because he was married to Thelma Jones--and had been since 1941. Thelma testified that she had never heard of Lucy Brown or her children. Thelma painted Frank as a good husband and provider who gambled with money he made from extra plumbing jobs and sometimes stayed out all night on Friday or Saturday but who was otherwise reliable. She allowed that Frank would not have told her of any affair he may have had, but added: "He would tell me about everything, ... and so that ... I say I don't see how Frank could keep that a secret...." Thelma's testimony was corroborated by two neighbors and friends of the Jones family, who testified that they too had never heard of or seen Lucy Brown.

The administrative law judge laid out this evidence and wrote:

[T]he evidence of parentage comes solely from the testimony of the mother Lucy Brown, the three children who claim benefits on the record of Frank Jones, Lucy Brown's eldest daughter Velma Garnett, and John Brown, a son of Lucy. No documentary or other clear and convincing evidence has been submitted to corroborate their testimony. The birth certificates make no reference to Frank Jones as the father.... The records which have been submitted by Public Aid do not contains [sic] any acknowledgement of paternity by the wage earner. Accordingly the Administrative Law Judge must find that the evidence of record the Public Aid records plus the testimony of Lucy Brown and her children is insufficient to establish parentage under Illinois law.

Plaintiff reads this as requiring a written acknowledgement, or at least documentary evidence, in order to establish paternity, which would be an error of state law. On top of that, plaintiff says, the ALJ had no good reason to reject the uncontradicted evidence; the only reason he might have had, lack of credibility, he did not invoke--and could not very well have invoked in light of his conclusion that Lucy Brown had enough evidence to be "without fault" in collecting $16,542. If she was lying, Lucy observes, she was at fault, and if she was not lying, she and the children are entitled to benefits.

Evidence may be clear and convincing although not...