Jones v. Schweiker

• Decision Date: 30 December 1981
• Docket Number: Nos. 81-1080,81-1132,s. 81-1080
• Citation: 668 F.2d 755
• Parties: Albert A. JONES, a minor child; Bridget Jones, a minor child, by their mother and next friend, Albertine Jones; Barbara L. Jones, Appellants, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Appellee. Marcia SIMMS, a minor by her next friend, Sheila Simms, Appellant, v. Richard S. SCHWEIKER, Secretary, Department of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 755

668 F.2d 755

Albert A. JONES, a minor child; Bridget Jones, a minor

child, by their mother and next friend, Albertine

Jones; Barbara L. Jones, Appellants, v. Richard S. SCHWEIKER, Secretary of Health and Human

Services, Appellee.

Marcia SIMMS, a minor by her next friend, Sheila Simms, Appellant, v. Richard S. SCHWEIKER, Secretary, Department of Health and Human Services, Appellee.

Nos. 81-1080, 81-1132.

United States Court of Appeals Fourth Circuit.

Argued June 2, 1981.

Decided Dec. 30, 1981.

Dennis W. Carroll, Baltimore, Md. (Eileen Franch, Administrative Law Center, Legal Aid Bureau, Inc., Baltimore, Md., on brief), for appellants.

Stanley Ericsson, Office of the Gen. Counsel, Dept. of Health and Human Services (Thomas S. Martin, Acting Asst. Atty. Gen., Washington, D. C., Russell T. Baker, Jr., U. S. Atty., Randolph W. Gaines, Chief of Litigation, Baltimore, Md., on brief), for appellee.

Before BRYAN, Senior Circuit Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

The Social Security Act provides monthly benefits to minor children of deceased Social Security wage earners, if they qualify, under the statutory definition, as dependents. ¹ Children whose parents were married to one another are automatically entitled to Surviving Child's benefits upon proof of paternity (or of maternity. The two cases here considered together concerned deceased wage-earning fathers.) Children whose parentage is not so formally established, however, must meet one or another additional test.

Two of the ways such sons and daughters can establish entitlement to the benefits are (a) by proving that their father was "contributing to (their) support" at the time of his death, 42 U.S.C. § 416(h)(3)(C)(ii), or (b) by establishing, "according to such law as would be applied in determining the devolution of intestate personal property by the Courts of the State in which (the wage earner) was domiciled at the time of his death," that they "would have the same status relative to taking intestate personal property as a (legitimate) child ...." 42 U.S.C. § 416(h)(2)(A). Those two ways are asserted by the claimants here. No contention is raised that, for purposes of § 416(h)(3)(C)(ii), the wage earners were living with the respective claimants.

The appellants are children who were denied surviving children's benefits under the Social Security Act after their respective fathers died. ² The Secretary made, in each case, a finding, not disputed on appeal, that the insured individual was, indeed, the father of the child or children. The fathers and mothers never married one another. The father never, in either case, gave written acknowledgment of paternity. The questions presented, therefore, are restricted to whether dependency has been established in the case of each child in either of the two ways asserted.

The two families of surviving children each contend that the Secretary's decision that their respective fathers were not contributing to their support at death was not supported by substantial evidence. In the alternative, they contend that the intestate succession statutes of both West Virginia and Mississippi are unconstitutional ³ as applied to illegitimate children, that the respective state courts would be bound so to find, and further to find that, for reasons of equal protection, they were consequently entitled to inherit by intestate succession, and that, therefore, the Secretary erred in not awarding benefits under § 416(h)(2)(A).

I.

First we take up the Secretary's determination in each case that the children's fathers were not contributing to their support at death.

Appellant Marcia Simms was born on March 5, 1972. Her parents, Sheila Simms and Talmadge Meadows, met in November 1970. Unfortunately, six to eight weeks after Marcia was conceived, Meadows was killed while on active duty in the military. ⁴ Subsequently, on August 26, 1977, Marcia's mother applied for surviving child's benefits. Although the administrative law judge determined that Meadows fathered Marcia, he also concluded that Meadows was not contributing to Marcia's support within the meaning of § 416(h)(3)(C)(ii). The determination is supported by substantial evidence. ⁵

Appellants Albert, Bridget and Barbara Jones are the children of Albertine Jones and Odes Watson. Although Watson was married to (but separated from) another woman, the Secretary specifically found that Watson was the father of the Jones children. Odes Watson died in Mississippi in 1975, and the children applied for benefits on August 26, 1976. Between 1959, when the first child was born, and 1972, when Watson suffered a disabling accident, the Secretary found that Watson's contributions to the children's support were sporadic and not in consideration of being regular support payments. Although we appreciate the strength of the testimony to the contrary, the Secretary's conclusion that Watson was not contributing to the support of the Jones children within the meaning of the Social Security Act is supported by substantial evidence and so we affirm that conclusion.

II.

We turn, therefore, to the contention that the Secretary erred as a matter of law when he refused benefits under 42 U.S.C. § 416(h)(2)(A). ⁶ Section 416(h)(2)(A) requires the Secretary to

apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State ... in which (the wage earner) ... was domiciled at the time of his death....

The applicable domiciles, the domiciles of the decedents, are West Virginia (Meadows) and Mississippi (Watson). Each state has a statute which precludes illegitimate children from inheriting from their father, unless certain legitimating or regularizing action has been taken. According to appellants, each statute is unconstitutional because it denies equal protection and, therefore, since each child would, as a consequence of the constitutional defect, be eligible to inherit from his or her father, the Secretary erred by not applying the law acknowledging the force of the constitutional imperative, and granting benefits. ⁷ Whether the West Virginia and Mississippi statutes are unconstitutional and whether their deficiencies would, on equal protection grounds, compel the equation of appellants to legitimate children in their respective states, for purposes of intestate succession are tangled questions. Their resolution would require a delicate balancing act applied to several Supreme Court decisions, rendered by a badly divided Court, with results apparently depending on extremely slight factual differences:

Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) (5-4); Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978) (5-4); Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971) (5-4).

We have no occasion, however, to climb out on that high wire for we are compelled to conclude that, even assuming that the West Virginia and Mississippi acts are unconstitutional in the way that appellants contend, nevertheless appellants do not satisfy the dependency requirement under the Social Security Act.

We are not unaware that at least three lower courts have followed a route which, once there has been a decision that the intestate succession act is unconstitutional as applied to excluded children of unwed parents, leads to an award of benefits on the theory that 42 U.S.C. § 416(h)(2)(A) has been satisfied. Allen v. Califano, 456 F.Supp. 168 (D.Md.1978) (intestacy statutes of Maryland and Pennsylvania); Ramon v. Califano, 493 F.Supp. 158 (W.D.Tex.1980) (Texas act); White v. Harris, 504 F.Supp. 153 (C.D.Ill.1980) (Missouri). ⁸ It was entirely reasonable for the district courts so to have concluded in view of the dictum in Mathews v. Lucas, 427 U.S. 495, 515 n.18, 96 S.Ct. 2755, 2767 n.18, 49 L.Ed.2d 651 (1976) stating that eligibility would be established under § 416(h)(2)(A) if the state intestacy succession act were held to be discriminatory, and, therefore, unconstitutional.

We find it inexplicable and inexcusable that the Government would not cite, even to attempt to distinguish, those three cases in its Brief. It is good luck, rather than management on the Government's part, that we have determined that the Supreme Court's dictum in Mathews v. Lucas does not, in fact, constitute the planks for the bridge's roadway which it, superficially, appears to do.

That is so because it must be taken into account that the question arises, in the instant case, not directly under a state intestate succession law, but rather under the Federal social security legislation. The Federal act has, in effect, incorporated each state statute by reference, pro tanto, in defining eligibility for benefits. Less than a year before Trimble v. Gordon was decided, on April 26, 1977, the Supreme Court on June 29, 1976 handed down Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). Membership in the Court did not change in the interval. Yet 6-3, the Court upheld treatment of a child born out of wedlock less favorably than those whose parents had regularized their relationships for purposes of determining whether they met the "dependency" requirements of the social security act. It was held to be proper, or at least not impermissibly discriminatory, to condition entitlement upon "dependency at the time of death." 427 U.S. at 507, 96 S.Ct. at 2763.

The justification was found to be administrative convenience, which took tangible form in "readily documented facts, such as legitimate birth, or existence of a support order or paternity decree, which could be relied upon to indicate the likelihood of continued actual dependency." Id. at 509, 96 S.Ct. at 2764. The Court opined:

Congress was able to avoid the burden and expense of specific case-by-case determination in the large number of cases where dependency is objectively probable. Such presumptions in aid of...