Jablon v. SECRETARY OF HEALTH, EDUCATION & WELF.

• Decision Date: 28 July 1975
• Docket Number: Civ. No. K-74-739.
• Citation: 399 F. Supp. 118
• Parties: Bette P. JABLON and Jacob C. Jablon, Individually and on behalf of all other persons similarly situated v. SECRETARY OF HEALTH, EDUCATION AND WELFARE.
• Court: U.S. District Court — District of Maryland

399 F. Supp. 118

Bette P. JABLON and Jacob C. Jablon, Individually and on behalf of all other persons similarly situated v.SECRETARY OF HEALTH, EDUCATION AND WELFARE.

Civ. No. K-74-739.

United States District Court, D. Maryland.

July 28, 1975.

COPYRIGHT MATERIAL OMITTED

Arnold Jablon, Jablon and Jablon, Baltimore, Md., Kathleen W. Peratis, American Civil Liberties Union Foundation, New York City, for plaintiff.

William Z. Elliott, Social Security Administration, Baltimore, Md., Jervis S. Finney, U. S. Atty., John W. Sheldon, Asst. U. S. Atty., Baltimore, Md., for defendant.

Before WINTER, Circuit Judge, and KAUFMAN and BLAIR, District Judges.

FRANK A. KAUFMAN, District Judge.

Plaintiffs Jacob and Bette Jablon, husband and wife, have instituted the within proceeding challenging the provisions of 42 U.S.C. § 402(c)(1)(C)¹ as repugnant to the Due Process Clause of the Fifth Amendment to the federal Constitution.²

Plaintiffs seek injunctive and declaratory relief against the continued application of 42 U.S.C. § 402(c)(1)(C) in such a manner as to deny Jacob Jablon a husband's insurance benefits, and also seek by way of damages such benefits, apparently dating from July 1973, which Jacob would have received but for the operation of that section.Plaintiffs do not seek any retroactive benefits or damages on behalf of anyone other than the named plaintiffs, but do seek, on behalf of the named plaintiffs and the members of a proposed Federal Civil Rule 23(b)(2) class, injunctive and declaratory relief.³

Defendant has moved to dismiss, or in the alternative for summary judgment, based upon the administrative record herein.Plaintiffs have filed a cross-motion for summary judgment.There are seemingly no controverted facts herein, but rather only legal issues which are appropriately ripe for determination within the above-described summary judgment context.⁴

JURISDICTION

Jurisdiction was initially asserted pursuant to 28 U.S.C. § 1331.However, the clear holding by the Supreme Court in Weinberger v. Salfi,___ U.S. ___, 95 S.Ct. 2457, 45 L.Ed.2d 522(1975), that 42 U.S.C. § 405(h) bars § 1331 jurisdiction, negates plaintiffs' § 1331 jurisdictional claim.However, Salfi teaches, and the Government has formally conceded in the light of Salfi, that jurisdiction is present in a case like this pursuant to 42 U.S.C. § 405(g) provided there has been an exhaustion of administrative remedies by a plaintiff and a final decision by the Secretary upon that plaintiff's claim.Accordingly, since Jacob Jablon has concededly exhausted his administrative remedies and the Secretary has made a final adverse decision as to his claim, jurisdiction is present as to Jacob Jablon's claim.Weinberger v. Salfi, supra at ___, 95 S. Ct. 2457;Weinberger v. Wiesenfeld,420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514(1975), in which, as Mr. Justice Rehnquist wrote in Salfi, supra at ___ n. 10, 95 S.Ct. at 2468, section 405(g) jurisdiction was similarly present, noting:

* * * In that case the Secretary stipulated that exhaustion would have been futile, and he did not make any contentions that Wiesenfeld had not complied with the requirements of § 405(g).* * *

Whether jurisdiction is present in this case as to Bette Jablon's claims under §§ 1331 or 405(g) or otherwise presents a question which need not be explored herein in view of this Court's conclusion, stated infra at p. 125 of this opinion, that there exists no need herein to reach Bette's claims upon the merits.

THREE-JUDGE COURT

The Government initially opposed formation of the within three-judge Court pursuant to 28 U.S.C. §§ 2282,2284 on the basis that no "substantial" federal question, as that term has been defined by such cases as Goosby v. Osser,409 U.S. 512, 518-19, 93 S. Ct. 854, 35 L.Ed.2d 36(1973), has been presented.The Supreme Court's recent opinion in Weinberger v. Wiesenfeld, supra, and this Court's within disposition of the merits of the substantive issue raised herein, require a clear, negative answer to that particular argument.However, the Government has also opposed formation of a three-judge Court on the ground that injunctive relief cannot properly issue inasmuch as plaintiffs' quests for relief are in essence only for damage and declaratory relief, and thus that the within action is not one to restrain the operation of a federal statute as is required by 28 U.S.C. § 2282.SeeFlemming v. Nestor,363 U.S. 603, 606-07, 80 S.Ct. 1367, 4 L.Ed.2d 1435(1960).While the Jablons have unequivocally stated a request for injunctive relief against further enforcement of the provisions of section 402(c)(1)(C), that government position may nevertheless well be correct in the light of Mr. Justice Rehnquist's comments in Salfi, supra at ___ n. 8, 95 S. Ct. at 2466, that the judicial review provisions of the Social Security Act which alone conferred federal jurisdiction in that case do not contain any

* * * suggestion that a reviewing court is empowered to enter an injunctive decree whose operation reaches beyond the particular applicants before the court.In view of our dispositions of the class action and constitutional issues in this case, the only significance of this problem goes to our own jurisdiction.If a § 405(g) court is not empowered to enjoin the operation of a federal statute, then a three-judge District Court was not required to hear this case, 28 U.S.C. § 2282, and we are without jurisdiction under 28 U.S.C. § 1253.However, whether or not the three-judge court was properly convened, that court did hold a federal statute unconstitutional in a civil action to which a federal agency and officers are parties.We thus have direct appellate jurisdiction under 28 U.S.C. § 1252.McLucas v. DeChamplain,421 U.S. 21, 95 S.Ct. 1365 at 1372, 43 L.Ed.2d 699(1975).

Herein, the only relief granted runs in favor of Jacob Jablon and is stated, in accordance with the above-quoted views expressed by Mr. Justice Rehnquist, solely in terms of a reversal of the Secretary's adverse final decision as to Jacob's claim and a remand to him directing him to grant Jacob Jablon's claim.Thus, since this Court has determined not to grant any injunctive relief herein, it could seemingly dissolve itself and permit this case to go forward as a single judge case.However, since all three judges of this Court have devoted a great deal of time to this case and are in complete accord as to its disposition — since, if this three-judge Court were dissolved, the writer of this opinion, as the judge to whom this case was originally assigned and who called for the convening of the three-judge Court, would be the single District Court judge handling this case and would file an opinion identical in all respects with this opinion — and since in any event the holding herein on the merits of the constitutional invalidity of a federal statute will seemingly confer direct appellate jurisdiction upon the Supreme Court regardless of whether this case is determined in this District Court by a single judge or by a statutory three-judge Court, this three-judge Court has determined not to dissolve itself.

FACTS

The facts, stipulated by the parties, disclose that the named plaintiffs, Jacob C. Jablon and Bette P. Jablon, are legally married; that Jacob Jablon was born on December 8, 1908; and that Bette Jablon was born on August 9, 1910.Bette Jablon filed an application for retirement insurance benefits on June 8, 1973, and became entitled to receive the same beginning with the month of July 1973.Jacob Jablon, not otherwise entitled to receive any old-age or disability insurance benefits, filed an application for husband's insurance benefits pursuant to 42 U.S.C. § 402(c).⁵Jacob's said application was initially denied on July 5, 1973 and denied upon reconsideration on August 16, 1973, for the reason that Jacob did not receive at least one-half of his support from his wife.Jacob at first requested an administrative hearing, but then waived a formal hearing because he had no additional evidence to present.The administrative law judge held that Jacob was not entitled to "husband's insurance benefits" because Jacob did not receive at least one-half of his support from his wife in accordance with 42 U.S.C. § 402(c)(1)(C) and regulations promulgated pursuant thereto.⁶Thereafter, noting Jacob's admission that he was not receiving at least one-half of his support from Bette, the Appeals Council of the Social Security Administration affirmed the administrative law judge's decision and adopted it as the final decision of the Secretary of HEW.The parties have expressly stipulated that:

Jacob C. Jablon has exhausted the administrative remedies available to him.The decision of the Secretary is supported by substantial evidence and, therefore, the constitutional claim for benefits is now ripe for judicial review.

SUBSTANTIVE MERITS

Pursuant to the provisions of 42 U.S. C. §§ 402(b) and (c),⁷ both male and female spouses of individuals seeking old-age or disability insurance benefits under Social Security law may, under certain enumerated circumstances, be entitled to receive benefits payable to them related to their spouses' past earnings.Those benefits are sometimes hereinafter referred to as "spousal benefits".While in most respects male and female spouses are made eligible for such spousal benefits on identical terms, a male spouse must, in accordance with the terms of section 402(c)(1)(C), demonstrate that he"was receiving at least one-half of his support" from his wage earning wife at the time his wife became eligible for old-age or disability insurance benefits,⁸ while a female spouse need in no case prove such dependency on her part.Accordingly, a 62 year old female who is not covered by Social Security or who, if she is so covered, receives an insurance benefit based upon a primary insurance amount less than half of that upon which her male spouse is entitled to receive benefits⁹ may...