Gentry v. United States, 312-74.

• Decision Date: 01 April 1977
• Docket Number: No. 312-74.,312-74.
• Parties: Gerald E. GENTRY v. The UNITED STATES.
• Court: U.S. Claims Court

551 F.2d 852

Gerald E. GENTRY v. The UNITED STATES.

No. 312-74.

United States Court of Claims.

April 1, 1977.

Richard A. Weinstock, Ventura, Cal., attorney of record, for plaintiff.

Donnie Hoover, Washington, D.C. with whom was Asst. Atty. Gen. Barbara A. Babcock, Washington, D.C., for defendant.

Before SKELTON, Judge Presiding, and NICHOLS and BENNETT, Judges.

ORDER

This case comes before the court on defendant's motion, filed January 18, 1977, for rehearing en banc pursuant to Rules 7(d) and 151. Upon consideration thereof, together with plaintiff's response in opposition thereto, without oral argument, by the seven active judges of the court (Chief Judge Cowen then sitting) as to the suggestion for rehearing en banc under Rule 7(d), the suggestion is denied. The case has further been considered by the panel listed above as to the motion for rehearing under Rule 151.

Defendant has raised two points in its brief accompanying its motion for rehearing which we find it appropriate to answer. First, defendant argues that the Supreme Court's decision in Mathews v. de Castro, 429 U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (decided December 13, 1976), announced one month after this court's opinion in the present case, is contrary to our previous opinion. In de Castro the Court sustained against constitutional challenge a provision of the Social Security Act which extends "wife's insurance benefits" to a married woman under age 62 who has a minor or dependent child in her care and whose husband retires or becomes disabled, but denies such benefits to a divorced woman under 62 having such a child in her care whose former husband retires or becomes disabled. The Court reasoned:

* * * Congress could have rationally assumed that divorced husbands and wives depend less on each other for financial and other support than do couples who stay married. * * * Divorced couples typically live separate lives. It was not irrational for Congress to recognize this basic fact * * *. 429 U.S. p. 187, 97 S.Ct. p. 436.

Defendant says that if Congress could constitutionally presume divorced wives less dependent on their former spouses than married wives on their present spouses, thus conferring benefits on the latter group while withholding them from the former, then Congress could also validly presume that illegitimate children who do not live with their annuitant fathers are less dependent on them than are those children who live with them, with the same results for the distribution of benefits. Thus, according to defendant, de Castro controls the present case, and defeats a recovery for plaintiff.

We think that defendant's analogy to de Castro is inapt. de Castro involved a distinction based on marital status, rather than birth status. Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974), which like the case at bar dealt with statutory distinctions implicating birth status, is much closer factually to this case. de Castro, which did not even mention Jimenez, is not rightly viewed as overruling the latter. Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976), decided just 6 months before de Castro, implicitly reaffirmed the validity of Jimenez when it distinguished its situation, where an illegitimate child was accorded the opportunity to establish dependency, from that which proved critical and fatal to the statute in Jimenez, where one subclass of illegitimates was forbidden to establish the dependency conclusively presumed to exist in others. We said in our previous opinion that, for all that appeared on the record before us, the child excluded from participation in survivor's benefits (such as plaintiff) was in the same situation as the included child. Our statement (546 F.2d at page 352) was practically a quote from Jimenez, supra, 417 U.S. at 637, 94 S.Ct. at 2502: "* * * for all that is shown in this record, the two subclasses of illegitimates stand on equal footing * * *; hence to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws * * *." There is no reason to believe that this is not still the law.

The Court in de Castro obviously did not view the class of divorced women as standing on the same footing with married women. However, as in Jimenez, defendant has shown us nothing to justify a conclusion that the members of the two subclasses in the present case, distinguished by statutory criteria implicating birth status, stand on different footing. While Congress and the Court might find from common experience that divorced wives are usually less dependent on former husbands than married wives are on their spouses, the application of such experience and reasoning to nonresident illegitimate children is by no means apparent. As plaintiff notes in its brief opposing rehearing, alimony for the divorced wife is frequently a matter for equitable relief, not always awarded, sustaining the view that divorced wives' dependence on the former husband is not the unwavering rule, but that probably the contrary is true. Child support, on the other hand, including support for the illegitimate child, is almost universally a legal requirement, attesting to the questionable validity of any assumption that some subset of illegitimates, those not residing with the annuitant, is invariably beyond the realm of financial support. The rationality of the legislative presumption of financial independence in de Castro is supported by the reasoning that the typical divorced wife can (not necessarily does) earn her own living, though this can hardly be carried over to the case of the illegitimate minor. We are not prepared to abandon our previous reliance on the Court's reasoning in cases involving discriminations against illegitimates in order to embrace defendant's invitation to rest our ruling on a factually inapt case involving quite a different variety of statutory distinction. We remain mindful of the Court's teaching in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768 (1972), that legislative distinctions implicating the illegitimate status of birth are subject to constitutional review in light of the admonition that "visiting this society's...