Norton v. Weinberger

390 F. Supp. 1084, 1975 U.S. Dist. LEXIS 13577

• Court: District Court, D. Maryland
• Decided: February 28, 1975
• Docket: Civ. 72-271-B
• Status: Published

Opinions

OPINION

BLAIR, District Judge.

Our judgment in Norton v. Weinberger, 364 F.Supp. 1117 (D.Md.1973) ¹ was vacated and the ease remanded by the Supreme Court for reconsideration in light of Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974). Upon reconsideration, aided by the briefs and arguments of counsel, we are persuaded that Jimenez neither compels nor justifies any change in our earlier opinion and judgment. We will review briefly the two decisions and note our reasons for this conclusion.

Our Decision in Norton

Gregory Norton, although shown by evidence satisfactory to the Secretary to be the child of a deceased insured individual, was denied benefits under 42 U.S.C., §§ 402(d)(1), 402(d)(3), 416(h) (3) (C) (ii) because it could not be shown that prior to his death his father had lived with or contributed to his support. Not being eligible for benefits under any other provisions of the Act, Norton sought, among other relief, a declaration of the unconstitutionality of § 416(h) (3) (C)(ii). We held that the denial of benefits to Norton because he was not dependent on his father within the terms of the Act did not deny him equal protection of the laws as guaranteed by the due process clause of the Fifth Amendment. While our earlier opinion in Norton speaks for itself and need not be repeated here, a few points should be noted.

First, on the issue of the constitutionality of the statute’s scheme for showing dependency, we refused to hold that illegitimacy is a “suspect classification.” Thus, we refused to apply a “strict scrutiny” or “compelling governmental interest” standard in reviewing the Act. Rather, we applied the type of equal protection analysis which the Supreme Court discussed in Weber v. Aetna Casualty and Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).

Second, we rejected the plaintiff’s suggestion that Congress intended, by the child’s insurance benefits provisions, to aid every child of a deceased individual. Instead, we concluded that the primary purpose of the insurance provisions was to aid dependent children. In the words of the Senate Report accompanying the 1965 Amendments, the insurance program was “intended to pay benefits to replace the support lost by a child when his father retires, dies, or becomes disabled.” S.Rep. No. 404, 89th Cong. 1st Sess. (1965), 1965 Code Cong. & Admin.News, pp. 1943, 2050.

Third, after determining that the primary purpose of the Act was to replace support lost by a child, we analyzed the statutory scheme of categories and presumptions and concluded that it bore a rational and substantial relationship to the principal goal of the Act.

The Supreme Court’s Decision in Jimenez

Eugenio and Alicia Jimenez were illegitimate children conceived and born after their father became disabled. From their birth, they lived with and were supported by their father and he acknowledged them as his children. Under Illinois law, however, they were not able to inherit from their father and were classified as illegitimates because their parents never married. Since they were born after the onset of their father’s disability — the event insured against — he could not have acknowledged them, nor have been ordered by a court to make support payments, nor decreed by a court to be their father prior to his disability. Jimenez, 417 U.S. at 630-31, 94 S.Ct. 2496. See § 416 (h)(3)(B)(i). Similarly, it was impossible for the children to demonstrate that their disabled father lived with them or contributed to their support at the time his disability began. See 416(h)(3)(B)(ii). Dissimilarly, their older illegitimate sister was eligible to receive benefits because she was conceived prior to the father’s disability and had lived with him and received his support at the requisite time. Jimenez at 630-31, 94 S.Ct. 2496. Thus, while the older sister was eligible to receive benefits, the two after-born Jimenez children were unable to satisfy any of the alternate prerequisites to receive like treatment. See §§ 402(d)(3), 416(h) (2)(B), 416(h)(3)(B).

In Jimenez, the Supreme Court took a very narrow approach. In an opinion by Chief Justice Burger, the Court did not pose the issues in terms of discrimination between legitimates and illegitimates, rather, it analyzed the plaintiffs’ challenge in terms of discrimination between certain subclasses of illegitimates. Jimenez at 635-36, 94 S.Ct. 2496. By taking that approach, the Court had no reason to reach the question of whether illegitimacy is a “suspect classification,” and, it expressly refused to reach that issue. Id. at 631-32, 94 S.Ct. 2496.

The Supreme Court focused its analysis upon the fact that the Jimenez children were denied benefits solely because they were conceived and born after the onset of their father’s disability. The Court began by determining that “the primary purpose of the contested Social Security scheme is to provide support for dependents of a disabled wage earner.” Jimenez at 633-34, 94 S.Ct. at 2500. In identifying that goal, the Court rejected the argument that the Act’s purpose was to aid only children who were dependent at the time of the disabling injury. Id. at 634-35, 94 S.Ct. 2496. In the Court’s view, Congress intended to aid all dependent children.

Having identified the primary purpose of the Act, the Court noted that after-born illegitimate children were for practical purposes divided into two subclasses. First, there were those who could recover without proving actual dependency prior to the disability, because they were presumed by the Act to be dependent at the requisite time. Second, there were those after-born illegitimates who were denied benefits, solely by reason of the timing of their births, because they could not possibly demonstrate dependency at the time their parent was disabled. Included within the latter class were children who, like Eugenio and Alicia Jimenez, were genuinely dependent upon their disabled parent.

The conclusive exclusion of such after-born children, the Court held, could not be justified solely on the basis of a claimed desire to avoid spurious claims. Jimenez at 636-37, 94 S.Ct. 2496. The Court wrote,

[T]he Act’s definition of these two subclasses of illegitimates is “over-inclusive” in that it benefits some children who are legitimated, or entitled to inherit, or illegitimate solely because of a defect in the marriage of their parents, but who are not dependent on their disabled parent. Conversely, the Act is “under-inclusive” in that it conclusively excludes some illegitimates in appellants’ subclass who are, in fact, dependent upon their disabled parent. Thus, for all that is shown in this record, the two subclasses of illegitimates stand on equal footing, and the potential for spurious claims is the same as to both; hence to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the law guaranteed by the due process provisions of the Fifth Amendment.

Id. at 637, 94 S.Ct. at 2502.

On remand, the Court directed that the Jimenez children were to be afforded an opportunity to demonstrate their eligibility by showing “that [they] are the children of the claimant, that they lived with the claimant all their lives, that he has formally acknowledged them to be his children, and that he has supported and cared for them since birth.” Jimenez at 637-38, 94 S.Ct. at 2502.

The Act

Norton, like Jimenez, involves an attack upon the Social Security Act’s scheme for providing benefits to children of persons insured under the Act. Although Jimenez involved disability benefits, while Norton involves survival benefits, the basic mechanics are essentially similar and involve either identical or parallel provisions of the act.

As they relate to Norton, we synthesize our understanding of the pertinent provisions of the Act. The term “child” means “the child or legally adopted child of an individual” as well as certain stepchildren and grandchildren. § 416(e).² A child is entitled to benefits ³ if at the time of the event insured against the child was “dependent” upon the insured individual. § 402(d)(1). Legitimate and adopted children are “deemed dependent”. § 402(d)(3). Children of marriages which are invalid for specified reasons, § 416(h)(2)(B), and children who at specified times have been (a) acknowledged in writing by the insured individual, or (b) decreed by a court to be the child of an insured individual, or (c) the beneficiary of an order of court directing the insured individual to provide support are deemed to be the children of the insured individual, § 416(h) (3) (C) (i), and are also “deemed legitimate” and thereby “deemed dependent.” § 402(d)(3).

As an alternate means of showing eligibility for benefits, a child who at the time of the event insured against could inherit personalty through intestate succession by the laws of the insured’s state of domicile (with qualifications not pertinent) is deemed to be the child of the insured individual from whom he could inherit. § 416(h)(2)(A). However, by the provisions of § 402(d)(3), such a child is not deemed legitimate and hence is not deemed dependent. Thus, as we read these provisions of the Act (which appears to be contrary in part to the Supreme Court’s reading to which we will address ourselves later), a child seeking to show eligibility for benefits on the basis of the right to intestate succession must also show that he was living with or supported by the insured individual. § 402(d)(3).

Similarly, where a child cannot show eligibility under any of the foregoing provisions, eligibility may be shown by evidence satisfactory to the Secretary that the insured individual was the father of the child and lived with or contributed to the support of the child at the time of death. § 416(h) (3) (C) (ii). It is this provision that Norton attacks.

The Effect of Jiminez Upon Our Prior Decision

At the outset, two points concerning Jimenez may be easily stated. First, the Supreme Court did not use Jimenez as a vehicle for holding that illegitimacy is a “suspect classification” which requires “strict scrutiny” analysis. Rather, the Supreme Court expressly refused to reach that issue. Jimenez, 417 U.S. at 631-32, 94 S.Ct. 2496. Thus, we see no reason to alter our prior opinion in that respect. See Norton v. Weinberger, 364 F.Supp. 1117, 1122 (D.Md.1973).

Second, we do not read the Court’s opinion in Jimenez to require any change in our previous conclusion that the primary purpose of the Social Security Act is to aid children who are actually dependent, as opposed to potentially dependent. Indeed, if anything, the Supreme Court appears to concur in our assessment of the statute’s goal. In Jimenez, the Court stated in simple terms that “the primary purpose of the contested Social Security scheme is to provide support for dependents of a disabled wage earner.” Jimenez, 417 U.S. at 634, 94 S.Ct. at 2500. If, as plaintiff suggests, the Supreme Court had meant that the primary purpose was to aid potential dependents or to aid all children who have not been adopted by third persons, we believe that it would have said so more directly. Also, the Court would not have remanded for proceedings to determine whether or not the disabled father lived with or contributed to the support of the Jimenez children. In any event, the plaintiff’s construction of congressional intent would make utterly inexplicable the complex provisions of the statutory scheme. • Surely if Congress had intended to aid all children regardless of dependency it could have said so without devoting approximately 80 lines of the statute’s text to defining who is deemed “dependent.” See 42 U.S.C. §§ 402(d)(3), 416(h)(2)(B), 416(h)(3).

Turning from those specific points to the general constitutional analysis by the Court, we find nothing which would require us to change our prior decision. As we interpret the Court’s opinion in Jimenez, the thrust of that opinion was that Eugenio and Alicia Jimenez, and the members of their class, could not be refused benefits without their first being afforded a realistic opportunity to prove that they were living with their parent or supported by him. In other words, the Court did not hold that Eugenio and Alicia were entitled to the same presumption of dependence as is afforded to certain other children. Instead, it merely ruled that, in light of the rest of the statutory scheme, after-born children in Eugenio and Alicia’s class, may not be required to prove the impossible, i.e., dependence prior to their conception. See Jimenez at 636-38, 94 S.Ct. 2496.

That general analysis by the Supreme Court in Jimenez has no application to Norton for two reasons. In the first place, unlike Eugenio and Alicia Jimenez, the plaintiff here is not now, and never has been, dependent upon his father. Thus, in contrast to the Jimenez children, Norton has not been arbitrarily denied benefits despite actual dependency. Norton was denied benefits because, in fact, he never was dependent and because Congress never intended to aid Norton’s class of nondependents.

In the second place, it is manifest that the narrow form of discrimination which was dealt with in Jimenez — i.e., discrimination against certain after-born children — cannot possibly arise in the context of survivors benefits. It will be recalled that in Jimenez, the plaintiff children were in fact dependents at the time they applied for disability benefits, but they were denied benefits because, as they were after-conceived and after-born, they could not possibly prove that their father was living with them or contributing to their support at the time of the onset of his disability. By contrast, in the context of death benefits, no child is conclusively barred from recovering benefits solely because of the timing of his birth. Each child has a realistic opportunity to prove dependency at the requisite time for the obvious reason, that once deceased, the alleged parent is not going to father any more children. Thus, in the context of survivors benefits, only nondependents will fail to recover. Even the hypothetical child who is conceived prior to his father’s death, but who is born after-wards, will recover if, at the time of his death, the father was living with the then-pregnant mother or was contributing to her support. See Wagner v. Finch, 413 F.2d 267 (5th Cir. 1967) ⁴ Accepting the rationale of the Fifth Circuit in Wagner v. Finch, supra, not only do we view Norton’s complaint as different from that of the Jimenez children, we can perceive of no situation where a child of a deceased insured could ever pose the problem raised in Jimenez.

The statutory scheme for survivors benefits may be “overinclusive” in that some nondependents can recover benefits but it is not “underinclusive.” ⁵ That is, although there will, of course, be nondependent children who cannot recover, there will be no dependent children who are unable to prove dependency at the requisite time. Consequently, the Supreme Court’s narrow equal protection analysis in Jimenez — turning as it does upon the irrational exclusion of certain after-born dependent illegitimates from the class of dependent children generally —has no impact here nor upon any child seeking survivors benefits.

Finally, while we do not believe that the Supreme Court’s constitutional analysis in Jimenez requires us to modify either the results or the analysis of our prior opinion, another aspect of the Jimenez opinion requires some additional comment. As indicated above, our prior decision in this case was premised upon our conclusion that the statutory scheme of classifications and presumptions was substantially and rationally related to the Act’s purpose to aid dependent children of deceased wage earners. Accordingly, it is crucial that our understanding of the statute’s classifications and presumptions was correct. With that in mind we must deal with a discrepancy between a narrow part of our interpretation of the Act and a part of the Supreme Court’s description of the Act in Jimenez. The difference arises over whether or not an individual who has the status of child under the laws of intestate succession in the insured individual’s state of domicile is automatically deemed dependent. While we thought not, Jimenez might suggest otherwise. See §§ 402(d)(1), 402(d)(3), 416(h)(2) (A). Compare Jimenez v. Weinberger, 417 U.S. 628, n.2 at 631, 635-36, 94 S.Ct. , 41 L.Ed.2d 363 (1974), with Norton v. Weinberger, 364 F.Supp. 1117, 1119 (D.Md.1973).

Before discussing the discrepancy, we should note that, as we read its opinion, the Court’s description of the portion of the Act in question was in the nature of general background. Therefore, it does not appear to have been necessary to the Court’s conclusion that the Act unconstitutionally denied the after-born Jimenez children an effective opportunity to prove their dependency. While we proceed with caution and deference, we reiterate our belief that the part of the discussion in Jimenez, which we have noted was not essential to the holding.

In analyzing this issue of statutory interpretation, we have reviewed again the language of the Act. Furthermore, we have searched the history of amendments to the Act in order to trace the development of insurance benefits for children,⁶ and we have read pertinent portions of the legislative history. After this analysis, we have again returned to our earlier view that a child of an insured individual is not deemed “dependent” by the Act merely because he happens to be eligible to inherit personalty under the laws of intestate succession in the insured’s state of domicile.⁷ In our view, both the language of the Act and its history support the conclusion that state laws of intestate succession are invoked by § 416(h)(2)(A) merely to provide the Secretary with a method for determining who is a “child” of an insured individual and not for determining who is a “dependent” child.

Treatment of this issue of statutory meaning is best accomplished by quoting the relevant portions of the statute. Section 402(d)(1), the basic recovery section, provides in relevant part:

§ 402(d)(1)

Every child (as defined in section 416(e) of this title) of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, if such child—

(C) was dependent upon such individual—

shall be entitled to a child’s insurance benefit ....

Thus, according to § 402(d)(1), a “child” must be “dependent” in order to be entitled to benefits.

In turn, §§ 416(e), 416(h)(2), and 416(h)(3) define who is a “child” for purposes of distributing these insurance benefits. Section 416(e) provides an initial definition of the term “child” which, in addition to natural and adopted children, reaches certain stepchildren and grandchildren. For our purposes, it is enough to quote the opening words of § 416(e): “The term ‘child’ means (1) the child or legally adopted child of an individual . . . .”

As § 416(e) provides little guidance, one must turn to §§ 416(h)(2) and (h) (3) for further explication of the term “child.” Section 416(h)(2)(A) provides:

§ 416(h)(2)(A)

In determining whether an applicant is the child . . . of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death . . Applicants who according to such law would have the same status relative to taking intestate personal property as a child . . . shall be deemed such.

Continuing, the Act states

§ 416(h)(2)(B)

If an applicant is a son or daughter of a fully or currently insured individual but is not (and is not deemed to be) the child of such insured individual under subparagraph (A) , such applicant shall nevertheless be deemed to be the child of such insured individual if such insured individual and the mother or father, as the case may be, of such applicant went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment described in the last sentence of paragraph (1)(B), would have been a valid marriage.

Finally, it adds

§ 416(h)(3)

An applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2) of this subsection, shall nevertheless be deemed to be the child of such insured individual if:

(B) in the case of an insured individual entitled to disability insurance benefits . . .—

(i) such insured individual—

(I) has acknowledged in writing that the applicant is his son or daughter,

(II) has been decreed by a court to be the father of the applicant, or

(III) has been ordered by a court to contribute to the support of the applicant because the applicant is his son or daughter,

and such acknowledgment, court decree, or court order was made before such insured individual’s most recent period of disability began; or

(ii) such insured individual is shown by evidence satisfactory to the Secretary to be the father of the applicant and was living with or contributing to the support of that applicant at the time such period of disability began;

(C) in the case of a deceased individual—

(i) such insured individual—

(I) had acknowledged in writing that the applicant is his son or daughter,

(II) had been decreed by a court to be the father of the applicant, or

(III) had been ordered by a court to contribute to the support of the applicant because the applicant was his son or daughter,

and such acknowledgment, court decree, or court order was made before the death of such insured individual, or

(ii) such insured individual is shown by evidence satisfactory to the Secretary to have been the father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.

It can be seen from the above-quoted sections that only a “dependent” child recovers, § 402(d) (1), and it can also be seen who meets the definition of “child,” §§ 416(e), 416(h)(2)-(3). It is lastly necessary to determine who is deemed by the Act to be “dependent.” Section 402(d)(3) is the critical provision for defining “dependent”:

§ 402(d)(3)

A child shall be deemed dependent upon his father or adopting father or his mother or adopting mother at the time specified in paragraph (1) (C) of this subsection unless, at such time, such individual was not living with or contributing to the support of such child and—

(A) such child is neither the legitimate nor adopted child of such individual, or

(B) such child has been adopted by some other individual.

For purposes of this paragraph, a child deemed to be a child of a fully or currently insured individual pursuant to section 416(h)(2)(B) or section 416(h)(3) of this title shall be deemed to be the legitimate child of such individual. (Emphasis added).

Translation of the awkward series of negatives in the first sentence of § 402(d) (3) leads to a simpler basic formula — a child is deemed dependent (a) if his insured parent lived with him or contributed to his support or (b) if he is the legitimate or adopted child of the insured parent and he has not subsequently been adopted by a third person. Nothing in the first sentence exempts a child who can inherit under state intestacy laws from showing that the insured parent was living with him or contributing to his support.

Likewise, the second sentence of § 402(d)(3) does not deem to be legitimate (and, therefore, dependent) a child seeking to show eligibility under the intestate succession language of § 416(h)(2)(A). To the contrary, while the second sentence of § 402(d)(3)(A) expressly deems to be legitimate (and, therefore, dependent) children who qualify under §§ 416(h)(2)(B) and 416 (h)(3), no reference is made to individuals who meet the definition of “child” under § 416(h)(2)(A). The omission of any reference to § 416(h) (2) (A) is conspicuous and, moreover, it is consistent with the evolution of these provisions of the Act.⁸ Thus, an applicant for benefits who is a “child” under § 416(h)(2)(A) (i. e., one who has the status of a child under state intestacy laws), without more, still has to prove that the parent was living with or contributing to the support of such child.

On the basis of the above-quoted statutory language, we do not think it necessary to modify our earlier opinion with regard to our assessment of the rationality of the statute’s classification scheme. Absent constitutional infirmity, we hold no warrant to eviscerate a congressionally enacted plan to provide benefits to children of individuals insured under the Act. We perceive no such infirmity.

Conclusion

For the reasons stated above, we reaffirm our previous opinion and summary judgment will be entered separately in favor of the defendant.

1 . See also Norton v. Richardson, 352 F.Supp. 596 (D.Md.1972).

2 . Further definition of “child” is provided by § 416(h) (2)-(3).

3 . Throughout our discussion of entitlement to benefits, we assume that the applicant child satisfies age, marital and filing requirements and has not been legally adopted by another.

4 . It is worth noting that in the Supreme Court’s opinion in Jimenez, the Court wrote that Eugenio and Alicia’s older sister, Magdalena, was entitled to benefits for her father’s disability “because she had been conceived before Jimenez became disabled . . . .” Jimenez v. Weinberger, 417 U.S. 628, 631 (1974). (Emphasis added). Since we know from the district court opinion that, in fact, Magdalena had been torn prior to her father’s injury, the Supreme Court’s choice of the word “conceived” appears to signify acceptance of the reasoning in Wagner v. Finch. See Jimenez v. Richardson, 353 F.Supp. 1356, 1358-59 (N.D.Ill.1973) (per curiam).

5 . Norton, a nondependent child, cannot argue that the scheme for benefits denies equal protection merely because the statute’s categories enable some nondependent children to get a free ride. The statute need not be perfectly drawn. It is enough that the statute’s classifications are substantially and rationally related to the Act’s permissible purpose, that it infringes on no suspect classifications, and that no conclusive presumptions operate to exclude arbitrarily those whom the statute is designed to aid.

6 . See Social Security Act Amendments of 1950, Ch. 809, §§ 202(d)(1), 202(d)(3), 216(h) (1), 64 Stat. 483-84, 511 (1950) ; Social Security Amendments of 1958, P.L. 85-840, § 205(d), 72 Stat. 1022 (1958) ; Social Security Amendments of 1960, P.L. 86-778, § 208(b)-(d), 74 Stat. 951 (1960); Old-Age, Survivors, and Disability Insurance Amendments of 1965, P.L. 89-97, § 339(a)-(b), 79 Stat. 409 (1965).

7 . This is significant to the ultimate result in Norton because, if an individual were deemed dependent due to the unrelated circumstance that he is favorably treated under his state’s intestacy laws, a significant question would be raised about the rational basis for the statutory scheme.

8 . See footnote 6, supra.