Morris v. Richardson

• Citation: 346 F. Supp. 494
• Decision Date: 20 July 1972
• Docket Number: Civ. A. No. 15706,15733.
• Parties: Deborah MORRIS et al., Plaintiffs, v. Elliot L. RICHARDSON, In his Official Capacity as Secretary of Health, Education and Welfare, Defendant. Michelle GAY, An Infant by Her Mother and Next Friend, Joan B. Gay, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. Elliot L. RICHARDSON, In his Official Capacity as Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Northern District of Georgia

346 F. Supp. 494

Deborah MORRIS et al., Plaintiffs, v. Elliot L. RICHARDSON, In his Official Capacity as Secretary of Health, Education and Welfare, Defendant.

Michelle GAY, An Infant by Her Mother and Next Friend, Joan B. Gay, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. Elliot L. RICHARDSON, In his Official Capacity as Secretary of Health, Education and Welfare, Defendant.

Civ. A. Nos. 15706, 15733.

United States District Court, N. D. Georgia, Atlanta Division.

July 20, 1972.

David A. Webster, David G. Crockett, Jay E. Loeb, Atlanta Legal Aid, Atlanta, Ga., for plaintiffs.

John W. Stokes, Jr., U. S. Atty., N. D. of Georgia (Stanley Baum and Julian Longley, Asst. U. S. Attys.), Atlanta, Ga., Paul Merlin, Chief of Litigation (Henry Eigles, Atty.), Social Security Div., Office of General Counsel, Dept. of HEW, Washington, D. C., for defendant.

Before MORGAN, Circuit Judge, and MOYE and FREEMAN, District Judges.

OPINION

MOYE, District Judge:

This suit challenges the constitutionality of a provision of the Social Security Act, 42 U.S.C. § 403(a), which disqualifies certain illegitimate children from sharing equally with their half-siblings in survivors' benefits on the death of their wage-earner parent. The complaint, brought as a class action under Rule 23(a) and (b) (2) of the Federal Rules of Civil Procedure, seeks declaratory and injunctive relief against the continued enforcement of this provision of the law and recovery of social security benefits improperly withheld from the plaintiffs since July of 1971.

PROCEDURAL QUESTIONS

Although plaintiffs alleged jurisdiction under a variety of federal statutes,¹ jurisdiction is proper under 28 U.S.C. § 1346(a) (2) which confers original jurisdiction on the federal district courts over "any other excepting certain tax cases civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress . . . ." The Social Security Act, however, expressly prohibits judicial review² until after a final decision of the Secretary which must be made subsequent to a hearing at which the litigant is a party.³ Thus, the question becomes not whether 28 U.S.C. confers jurisdiction, but whether jurisdiction is precluded by these sections of the Social Security Act.

Although 42 U.S.C. § 405 specifically precludes judicial review until the Secretary of HEW has issued a final decision, its purpose is only to delay judicial review until (1) findings of fact are made by the Secretary or (2) the Secretary has had an opportunity to correct a lower level administrative error. The case at bar presents neither of these problems since there are no factual issues in dispute and the Secretary is bound by 42 U.S.C. § 403(a) to deny these illegitimate children equal shares in the survivors' benefits of their deceased father. The only remaining issue is the constitutionality of § 403(a). That issue is not proper for agency review and is a question that has been especially reserved for the courts. Thus, exhaustion of administrative remedies not only would prove fruitless but also be inappropriate. Faced with the same question concerning exhaustion of administrative remedies under § 405(h), Judge Wyzanski stated for a three-judge court in Gainville v. Richardson:

"Plaintiff Aims is not debarred from seeking judicial relief by the general doctrine that he must first exhaust his administrative remedies, nor by the more specific provisions of § 205(h) of the Social Security Act, 42 U.S.C. § 405(h). The general doctrine is inapplicable because here plaintiff claims that the statutory provision permitting deduction is unconstitutional. Where a plaintiff attacks the constitutionality of the statute under which an administrative agency acts, and attack does not turn upon a factual determination requiring administrative expertise, the doctrine of exhaustion of administrative remedies does not apply. Public Utilities Commission of Cal. v. United States, 355 U.S. 534, 539, 78 S.Ct. 446, 2 L.Ed.2d 470; Oestereich v. Selective Service Board, 393 U.S. 233, 242, 89 S.Ct. 414, 21 L.Ed.2d 402."

Gainville v. Richardson, 319 F.Supp. 16, 18 (D.Mass.1970). The questions of jurisdiction and exhaustion of administrative remedies in the case at bar are exactly the same as those in Gainville. Accordingly, this Court concurs with Judge Wyzanski's excellently reasoned opinion in Gainville and holds that exhaustion of administrative remedies is inapplicable in the case at bar.⁴

THE MERITS

The essential facts appear to be undisputed. Under the applicable provisions of the Social Security Act, the minor Morris plaintiffs have been deprived of social security survivor benefits from the account of their deceased father because they are his illegitimate children. Under the Social Security Act these illegitimate children qualify for social security survivor benefits⁵ but they are prohibited from sharing the benefits equally with the decedent's legitimate children.⁶ On December 17, 1967, their father, Solomon Rogers, executed an acknowledgment of paternity and declared he was paying $50 per month toward support plus clothing expenses for the minor plaintiffs in this suit. Solomon Rogers died in March, 1971. Subsequent to his death, Carrie Morris, as mother of his illegitimate children who are plaintiffs in this suit, filed for survivors' benefits under the Social Security Act. The plaintiffs received survivors' benefits from Solomon Rogers's account until July of 1971, when the district office of the Social Security Administration informed them that the legitimate children of Solomon Rogers had applied for survivors' benefits and that plaintiffs were now eligible for residual benefits which would be paid only after satisfaction of the legitimate children's claim.

The Act gives them only residual benefits as follows. The statute sets a "family maximum" for survivors' benefits, the amount of which depends upon the wage earner's work history.⁷ Within that "family maximum," each eligible survivor may receive an "individual maximum." But if the total of the individual maxima would exceed the family maximum, each survivor gets a pro rata share.⁸ However, illegitimate children who are eligible for the benefits solely as a result of § 416(h) (3) are not entitled to pro rata sharing. Even though they are certified eligible, they are deemed not to exist for purposes of sharing in survivors' benefits on the first round of calculations pursuant to § 403(a). Ignoring these illegitimate children, every other beneficiary on the account receives his individual maximum, or, if the family maximum would be exceeded, his pro rata share. Then, and only then, if there are any benefits left in the account, may these illegitimate children split the residue.⁹

The Social Security Act sections which form the background for plaintiffs' claim of unconstitutionality are the sections of the Act which define a "child." Congress has established three tests for determining whether an individual is a "child" of the wage-earner. Under 42 U.S.C. § 416(h) (2) (A), an individual is deemed a "child" for social security purposes if he had the right as a child to inherit the worker's intestate personal property under applicable state laws. Section 416(h) (2) (B) confers the status of "child" on individuals whose parents went through a marriage ceremony which proved to be invalid as a result of a procedural defect or legal impediment connected with a prior marriage. The third method, § 416(h) (3), which Congress added in 1965, considerably broadened the definition of "child" by deeming an individual to be a "child" of the wage-earner if (1) the deceased wage-earner had acknowledged paternity of the applicant in writing; or (2) a court had decreed the wage-earner to be the father of the applicant; or (3) a court had ordered the wage-earner to contribute to the applicant's support; or (4) paternity was established by satisfactory evidence and the father was either living with the child or contributing to the child's support. Section 416(h) (3) expressed the intent of Congress¹⁰ to broaden the definition of "child" so as to encompass almost all dependent children whose fathers were known. The irony of § 403(a) is that illegitimate children who qualify for benefits under the first two sections of the Act¹¹ are allowed to share equally with the wage earner's legitimate children while the illegitimate children qualifying solely under § 416(h) (3) are deemed by § 403(a) as less-deserving and get only the residue.

The following example from the facts of the case at bar paints a vivid picture of the effects of § 403(a). Under the statutory scheme, plaintiff Morris, an illegitimate child, receives only $21.60 per month while her father's legitimate children each receive $142.20 per month. If legitimate and illegitimate children shared on a pro rata basis each child would receive $74.80. Meanwhile, plaintiff Gay, an illegitimate child of another wage-earner, receives zero benefits from her father's account because the "residual" benefits have been eaten up by her four legitimate half-siblings and their mother. Absent the alleged discriminatory exclusion, her recalculated pro rata share would be $31 per month. Thus, § 403(a) renders certain illegitimate beneficiaries either totally or partially ineligible for social security survivors' benefits.

Plaintiffs claim the limited benefits available under the Act should be apportioned equally among legitimate and illegitimate children of the deceased wage earner and that denial of equal participation in the benefits is unconstitutionally discriminatory. This Court agrees.

Section 203(a) of the Social Security Act, 42 U.S.C. § 403(a), unconstitutionally discriminates against illegitimate children eligible solely under 42 U. S.C. § 416(h) (3) vis-a-vis other illegitimate children granted an equal share of survivors'...