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KOHR v. WEINBERGER

July 26, 1974

PAUL KOHR, on behalf of himself and all others similarly situated, PLAINTIFF
v.
CASPAR W. WEINBERGER, Individually and as SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE; THE UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE; THE UNITED STATES OF AMERICA; and EDMOND J. SABATINI, individually and as REGIONAL REPRESENTATIVE OF THE SOCIAL SECURITY ADMINISTRATION OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, DEFENDANTS



The opinion of the court was delivered by: FOGEL

This action, brought by plaintiff Paul Kohr on behalf of himself and similarly situated male recipients of social security benefits, challenges the constitutionality of § 215(b) (3) of the Social Security Act, 42 U.S.C. § 415(b) (3), because that provision accords females receiving social security payments under the terms of that subsection more favorable benefit computation than their male counterparts.

A three judge court was constituted pursuant to 28 U.S.C. §§ 2282, 2284. All relevant facts have been stipulated, and the case can be decided on the cross motions for summary judgment filed by the parties. Oral argument was heard, and extensive briefs were filed with respect to the jurisdiction of this Court as well as the substantive merits of the controversy.

 We conclude that plaintiff has satisfied the relevant jurisdictional requirements, but that relief on the merits must be denied.

 We deal first with defendants' contention that this Court lacks jurisdiction over the subject matter of the action because plaintiff has failed to exhaust his administrative remedies.

 Plaintiff concedes that he did not exhaust all administrative remedies then available to him, but he contends that, under the circumstances presented in this case, further proceedings within the Social Security Administration would have been futile.

 Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), provides as follows, in pertinent part:

 
(g) Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. * * *

 Section 205(h) further provides:

 
* * * No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under Section 41 of Title 28 to recover on any claim arising under this sub-chapter. [Section 41 of Title 28 has been superseded by 28 U.S.C. § 1331 et seq.]

 We do not agree that the requirement of a "final decision . . . made after a hearing" is a bar to plaintiff's cause of action in the instant case; we hold that this Court has jurisdiction under § 205(g) of the Social Security Act. Williams v. Richardson, 347 F. Supp. 544, 548 (W.D.N.C. 1972). The futility of further pursuit of administrative remedies is clear from an examination of the reconsideration determination of July 14, 1972. Even though plaintiff's claim was based upon the alleged discriminatory treatment accorded to him in contrast to that accorded to a woman in like circumstances, this constitutional issue is not even discussed in the reconsideration determination; that document merely restates the benefits computation formula found in the pertinent statute and regulations, and confirms the arithmetic correctness of the computation. Plaintiff did not allege that the benefits determination was based upon an erroneous view of the facts; instead he attacked the statutory framework and the regulations promulgated pursuant thereto on constitutional grounds. Hence, the reconsideration determination was simply not responsive to the core of plaintiff's claim. Further pursuit of administrative remedies would unquestionably have been similarly unproductive since the agency would not strike down as unconstitutional a portion of the Act it is bound to administer. *fn2" Gainville v. Richardson, 319 F. Supp. 16, 18 (D. Mass. 1970); Williams v. Richardson, supra, at 548; Wiesenfeld v. Secretary of Health, Education & Welfare, 367 F. Supp. 981, 985 (D.N.J. 1973). *fn3"

 We now turn to the merits of plaintiff's claim. At issue is the benefits computation formula mandated by § 215(b) (3) of the Act, which permits a woman to use three fewer "elapsed years" to compute her "benefit computation years" than would a similarly situated man. The effect of this provision is to eliminate years of lower earnings in the computation of the "average monthly wage", from which the "primary insurance amount" is determined. In the present case, plaintiff would have received $205.00 in actual cash benefits per month had he been a woman, $7.00 per month more than he in fact receives. It is this discrepancy which plaintiff maintains is in violation of the due process clause of the Fifth Amendment, in that it unconstitutionally discriminates against him because he is a male. *fn4"

 The precise issue presented in this case has been decided by three different federal courts during the last six years, each of which has sustained ...


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