Silbowitz v. SECRETARY OF HEALTH, EDUCATION & WELF.

• Decision Date: 20 June 1975
• Docket Number: No. 74-924-Civ-CF,74-925-Civ-CF.,74-924-Civ-CF
• Citation: 397 F. Supp. 862
• Parties: Hyman G. SILBOWITZ and Shirley H. Silbowitz, Plaintiffs, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant. Hyman G. SILBOWITZ, Plaintiff, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.
• Court: U.S. District Court — Southern District of Florida

397 F. Supp. 862

Hyman G. SILBOWITZ and Shirley H. Silbowitz, Plaintiffs, v.SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.

Hyman G. SILBOWITZ, Plaintiff, v.SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.

Nos. 74-924-Civ-CF, 74-925-Civ-CF.

United States District Court, S. D. Florida.

June 20, 1975.

COPYRIGHT MATERIAL OMITTED

Bruce S. Rogow, Miami, Fla., for plaintiffs.

William Z. Elliott, Social Security Div., Washington, D. C., Robert W. Rust, U. S. Atty., Robert L. Andrews, Asst. U. S. Atty., Miami, Fla., for defendant.

OPINION AND FINAL JUDGMENT GRANTING SUMMARY JUDGMENT TO PLAINTIFFS

FULTON, Chief Judge.

These consolidated cases are before the Court on cross-motions for summary judgment.The plaintiff in No. 74-925, Hyman G. Silbowitz, seeks review of an administrative denial of Social Security benefits, alleging that the denial was based upon an unconstitutional provision of the Social Security Act, Section 202 (c)(1)(C);42 U.S.C. § 402 (c)(1)(C).In No. 74-924, Hyman G. Silbowitz and his wife, Shirley, jointly seek to declare unconstitutional the same statutory provision.Both suits claim that the provision violates the equal protection guarantees of the Fifth Amendment.

The provision in question requires that a husband seeking Social Security insurance benefits through his wife's benefits must show that he received at least one-half of his support from her.However, a woman is entitled to Wife's insurance benefits of one-half the primary amount received by her husband, without any need to show support.Social Security Act Section 202(b)(1) and (2);42 U.S.C. § 402 (b)(1) and (2).The statutory scheme therefore creates a one-sided dependency test based upon gender which results in the granting of benefits to non-dependent women while withholding them from non-dependent men.

It is that statutory scheme which the plaintiffs attack.They argue that the discrimination is based solely upon sex, is not justified by any compelling state interest and lacks even a rational basis.

For the reasons set forth below, the Court finds that no rational basis does exist for the statutory discrimination and enters this final judgment granting summary judgment to the plaintiffs.

JURISDICTION

The parties have stipulated, and the Court finds, that jurisdiction in No. 74-925, the action to review the Social Security decision is based upon 42 U.S.C. § 405(g).In No. 74-924, the action brought by Mr. and Mrs. Silbowitz, the parties stipulated and the Court finds that jurisdiction rests upon 28 U.S.C. §§ 1331,1346(a)(2)and1361.A single judge has authority to hear and decide these cases because the parties seek only to declare unconstitutional, not enjoin, a statute of the United States.Kennedy v. Mendoza-Martinez,372 U.S. 144, 153-155, 83 S.Ct. 554, 9 L.Ed.2d 644(1963).

FINDINGS OF FACT

The material facts are undisputed and are the same in both cases.On March 13, 1968, Shirley H. Silbowitz applied for Retirement Insurance Benefits under the Social Security Act.In June, 1968, she was granted benefits, based upon her prior Social Security contributions.Her initial award was $49.80 per month By April, 1975, it had grown to $91.70 per month.

Hyman G. Silbowitz retired from Federal Government employment in 1969.During the course of his employment he was not covered by the Social Security Act.On May 23, 1973, he applied for Husbands insurance benefits under 42 U.S.C. § 402(c)(1).He met all of the requirements for Husbands insurance benefits except that he admittedly was not receiving at least one-half of his support from his wife at time she became entitled to retirement benefits.That pre-requisite is set forth in 42 U.S.C. § 402 (c)(1)(C).The relevant portion of the statutory scheme states:

Husband's insurance benefits

(c)(1) The huband (as defined in section 416(f) of this title) of an individual entitled to old-age or disability insurance benefits, if such husband —

(A) has filed application for husband's insurance benefits,

(B) has attained age of 62,

(C) was receiving at least one-half of his support, as determined in accordance with regulations prescribed by the Secretary, from such individual —

* * * * * *

(ii) . . . at the time she became entitled to such benefits,

* * * * * *

shall be entitled to a husband's insurance benefit for each month, beginning with the first month after August 1950 in which he becomes so entitled to such insurance benefits.

Because of Mr. Silbowitz's failure to meet the dependency requirement his application for Husband's insurance benefits was denied.He prosecuted an unsuccessful appeal through the Social Security Administrative processes and then instituted the within actions.

CONCLUSIONS OF LAW

Equal protection claims under the Fifth Amendment are decided in the same way that Fourteenth Amendment equal protection claims are resolved.Weinberger v. Wiesenfeld,420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514(March 19, 1975).If sex is a "suspect classification," then the statutory scheme can be justified only if the Government shows a compelling interest for the gender based classification.Cf.Graham v. Richardson,403 U.S. 365, 372, 91 S.Ct. 1848, 29 L.Ed.2d 534(1971).If it is not a suspect classification, then the test is whether there is a rational basis for the distinction.Jefferson v. Hackney,406 U.S. 535, 546, 92 S.Ct. 1724, 32 L.Ed.2d 285(1972).

In Frontiero v. Richardson,411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583(1973), four Justices agreed that a classification similar to the one at issue here is "inherently suspect and must therefore be subjected to close judicial scrutiny."411 U.S. at 682, 93 S.Ct. at 1768.Justice Stewart found the discrimination to be "invidious"411 U.S. at 691, 93 S. Ct. 1764 and the Chief Justice and Justices Powell and Blackmun found it unnecessary to go beyond a rational basis test in determining that the challenged statutes were unconstitutional.411 U.S. at 691-692, 93 S.Ct. 1764.Since a majority of the Supreme Court has not unequivocally made sex a "suspect" classification, this Court will not do so but will instead adhere to the more traditional standard of rational basis.Under that test, as applied by the Supreme Court in Weinberger v. Wiesenfeld,420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514(March, 1975), which struck down a companion provision to the one sub judice,the Court finds § 402(c)(1)(C) to be violative of the Fifth Amendment.

Shirley Silbowitz worked and contributed a portion of her earnings to Social Security payments.The purpose of those payments, indeed the major purpose of the Social Security Act, is to assure contributors and their families a tolerable standard of living in their old age.Weinberger v. Wiesenfeld,647 U. S. ___, 95 S.Ct. at 1233 n.14.Thus Mrs. Silbowitz's contributions were buying protection for her family: herself and her husband.Had it been Mr. Silbowitz who was buying that protection, his wife would have been entitled to a payment of an additional one-half of his primary benefit, whether or not she was dependent upon him for more than one-half of her support.The additional requirement of support imposed by § 402(c)(1)(C) upon Mr. Silbowitz results in a diminution of the family benefits based solely upon the sex of the applicant.It makes the Social Security benefits purchased by women less valuable than those purchased by men.In Wiesenfeldthe Court, contending with a companion section of the Act which provided benefits to widows and not widowers with minor children, said:

Section 402(g) clearly operates as did the statutes invalidated by our judgment in Frontiero, to deprive women of protection for their families which men receive as a result of their employment. . . .In this case social security taxes were deducted from Paula's salary during the years in which she worked.Thus she not only failed to receive for her family the same protection which a similarly situated male worker would have received, but she was also deprived of her own earnings in order to contribute to the fund out of which benefits would be paid to others.Since the Constitution forbids the gender-based differentiation premised upon assumptions as to dependency made in the statutes before us in Frontiero,the Constitution also forbids the gender based differentiation that results in the efforts of women workers required to pay social security taxes producing less protection for their families than is produced by the efforts of men.Id.,95 S.Ct. at 1232.

Those statements have equal application to the Silbowitzs' claims.In Frontiero v. Richardson,411 U.S. 677, 93 S. Ct. 1764, 36 L.Ed.2d 583(1973) certain statutes gave the wife of a male serviceman automatic dependent's benefits.A husband of a servicewoman could receive those benefits only if she proved that she provided more than one-half of her husband's support.Wiesenfeld set forth the Supreme Court's response to that classification:

The Court held that the statutory scheme violated the right to equal protection secured by the Fifth Amendment.Schlesinger v. Ballard,419 U. S. 498, 95 S.Ct. 572 at 572, 42 L.Ed. 2d 610(1975) explained: "In * * * Frontiero the challenged classification based on sex was premised on overbroad generalizations that could not be tolerated under the Constitution . . . The assumption . . was that female spouses of servicemen would normally be dependent upon their husbands, while male spouses of servicewomen would not."419 U.S. at 507, 95 S.Ct. at 577.

Id.420 U.S. 643, 95 S.Ct. at 1230-1231.

The Court went on to call the similar generalization made by § 402(g)"archaic and overbroad" and pointed out:

. . . that in view of the large percentage of married women working (41.5% in 1971) the presumption of complete dependency of wives upon husbands has little relationship to present reality.In the same vein, Taylor v. Louisiana,419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690(1975) observed

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