Hurvich v. Califano, C-77-2478 SW.

• Decision Date: 15 September 1978
• Docket Number: No. C-77-2478 SW.,C-77-2478 SW.
• Court: U.S. District Court — Northern District of California
• Parties: Fred HURVICH, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Defendant.

457 F. Supp. 760

Fred HURVICH, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Defendant.

No. C-77-2478 SW.

United States District Court, N. D. California.

September 15, 1978.

Law Offices of Kruger, McTaggart, McQuaid & Bedford, A Law Corp., J. Dennis McQuaid, Ignacio, Cal., for plaintiff.

G. William Hunter, U. S. Atty., William T. McGivern, Jr., Asst. U. S. Atty., Civ. Div., San Francisco, Cal., for defendant.

MEMORANDUM OPINION AND ORDER

SPENCER WILLIAMS, District Judge.

The parties are before the court on cross motions for summary judgment. After careful consideration of the issues raised and arguments of counsel, the court finds there is no triable issue of fact and that plaintiff is entitled to judgment as a matter of law.

BACKGROUND

The undisputed facts before the court show that plaintiff Fred Hurvich is the widower of Laura Hurvich, who died on November 6, 1969. When Mrs. Hurvich died she was an insured wage earner under the Social Security Act.

On December 29, 1969 Mr. Hurvich filed applications for a lump-sum death benefit and for child's insurance benefits, both of which were subsequently awarded. At the time of applying for these benefits, Mr. Hurvich stated he wished to apply for mother's insurance benefits, as he was caring for his child and fulfilling the role normally filled by a mother. Section 402(g) of Title 42 of the United States Code provided for such mother's benefits. An employee of the Social Security Administration told Mr. Hurvich that he could not apply for these benefits.

On March 19, 1975 the Supreme Court in Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514, affirmed a lower court's determination that the gender-based distinction in § 402(g) violated the right to equal protection secured by the due process clause of the Fifth Amendment. The different treatment accorded men and women by § 402(b) was found to discriminate impermissibly against female wage earners by affording them less protection for their survivors than that given to male wage earners.

The Social Security Administration responded to the Supreme Court's ruling by promulgating 20 C.F.R. § 404.335(a) (1977) which provides that a widower of a woman who died fully or currently insured is entitled to father's insurance benefits, such benefits to begin no earlier than the first month after February, 1975. On May 15, 1975, the Administration accepted from Mr. Hurvich a formal application for father's insurance benefits, and on June 10, 1975, Mr. Hurvich was awarded these benefits. The Administration established the date of entitlement as March, 1975.

On October 27, 1975 Mr. Hurvich sought an earlier entitlement date. The Social Security Administration reaffirmed the February, 1975 date, as did the Administrative Law Judge from whom Mr. Hurvich subsequently received a hearing. Thereafter, Mr. Hurvich obtained a review by the Appeals Council of the Social Security Administration, which upheld the hearing officer's decision.

The issue before this court is whether the ruling of Weinberger v. Wiesenfeld, striking down the gender-based distinction in § 402(g), should be applied retroactively to entitle Mr. Hurvich to father's benefits for the period between December, 1969, and March, 1975.

STANDARDS FOR NONRETROACTIVITY

The Constitution neither prohibits nor requires that changes in the law be applied retroactively. Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). The standards for deciding whether or not a decision in a non-criminal context should be made retroactive have been set forth by the Supreme Court in a three-part test. This test analyzes the factors upon which a finding of nonretroactivity can be based:

In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed, . . .. Second, it has been stressed that "we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." . . . Finally, we have weighed the inequity imposed by retroactive application, for "where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the `injustice or hardship' by a holding of nonretroactivity." . . . Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). (citations omitted.)

The preliminary finding necessary to support a determination of nonretroactivity is that the decision must establish a new principle of law by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. To decide whether the Wiesenfeld decision did either of these things, the court must look to pre-Wiesenfeld cases dealing with gender-based distinctions.

Mr. Hurvich is correct in arguing that the result in Wiesenfeld was foreshadowed by Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). The Court there found an invidious discrimination in statutes that presumed spouses of male members of the armed services to be dependents for the purpose of obtaining increased quarters allowances and increased medical and dental benefits, but required spouses of female members to prove they were in fact dependent for over one-half of their support in order to obtain the same benefits. Mr. Hurvich supports his argument by referring to the following language in Wiesenfeld: "The gender-based distinction made by § 402(g) is indistinguishable from that invalidated in Frontiero." 420 U.S. at 642, 95 S.Ct. at 1230. In the Court's view, the statutes under review in both cases tried to give support to the family through the use of an "archaic and overbroad generalization, . . . that male workers' earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families' support." 420 U.S. at 643, 95 S.Ct. at 1230-1231.

Foreshadowing of Wiesenfeld also is seen in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), where the Court found a violation of equal protection in a provision of a state probate code that gave preference to men over women for appointment as administrator of a decedent's estate. This statute was invalidated on equal protection grounds because it provided — as did § 402(g) — dissimilar treatment for men and women who were similarly situated.

The foreshadowing previously described, however, is dimmed by decisions of the Supreme Court upholding certain genderbased distinctions found to be benign. In Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), the Court found no equal protection violation in a state property tax exemption given to widows but not to widowers. The statute was upheld as being "reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden." 416 U.S. at 355, 94 S.Ct. at 1737. Similarly, in Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), the Court upheld statutes granting a longer period of tenure to female naval officers than to male naval officers. This different treatment was found to be rationally related to the congressional goal of providing women officers — who because they were women had restrictions placed on their participation in combat and sea duty — with fair career advancement opportunities.

The litigants in the present case might have believed before the Wiesenfeld decision that the gender-based distinction of § 402(g) giving special benefits to widows but not to widowers, was like the statutory schemes in Kahn and Schlesinger; that is, that the distinction was permissibly based upon the goal of compensating women for certain gender-based disadvantages. Although Frontiero and Reed foreshadowed the Court's conclusion that the gender-based classification of § 402(g) was invidious rather than benign, because it operated "to deprive women of protection for their families which men receive as a result of their employment," Wiesenfeld, 420 U.S. at 645, 95 S.Ct. at 1232, the conclusion most certainly had not been "clearly" foreshadowed.

The fact that Wiesenfeld was not clearly foreshadowed suggests that it established a new principle of law. Moreover, since 1939 the § 402(g) limitation of benefits to mothers had been a clear precedent on which the Social Security Administration was entitled to rely. Although this gender-based distinction may have been rendered suspect by decisions such as Frontiero and Reed, the Administration had a duty to enforce the statute as written. Wiesenfeld, therefore, established a new principle of law by overruling a clear past precedent.

The government argues that a satisfaction of this first part of the Chevron test would, without more, support a finding of non-retroactivity. However, as this court observed in a previous opinion, to deny retroactive relief a decision must establish a new principle of law; if it does, the court must then decide whether retroactive application will further the purpose of the rule in question, and whether inequity will be caused by such retroactivity. Shannon v. United States Civil Service Commission, 444 F.Supp. 354, 370 (N.D.Cal.1977). The conclusion that Wiesenfeld...