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January 20, 1977

MICHAEL A. BREW suing by his next friend ANTHONY C. BREW
F. DAVID MATHEWS Secretary of Health, Education and Welfare

The opinion of the court was delivered by: VANARTSDALEN

Defendant, the Secretary of Health, Education and Welfare (HEW), has moved to dissolve the three judge court convened pursuant to 28 U.S.C. § 2282 and § 2284. The motion will be granted.

 Plaintiff applied for disability insurance benefits under provisions of the Social Security Act. HEW, by final action, denied the claim. Plaintiff appealed to the district court pursuant to section 205(g) of the Act, 42 U.S.C. § 405(g). The appeal alleges that sections 202(d)(1)(C)(i), (iii) and (d)(8) of the Social Security Act, 42 U.S.C. §§ 402(d)(1)(C)(i), (iii) and (d)(8), as interpreted by HEW, create an unconstitutional classification that arbitrarily precludes claimant from benefits. A motion was made by plaintiff to convene a three judge court. The relief sought was a declaratory judgment and an injunction prohibiting enforcement of the challenged provisions of the statute.

 Section 205(g) of the Social Security Act provides for review by a district court of final administrative action concerning claims for benefits under the Social Security Act. On review a district court "shall have the power to enter upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). Section 205(h) provides, inter alia, that "no finding of fact or decision of the Secretary shall be reviewed by any person, tribunal or governmental agency except as herein provided." Simply stated, HEW contends that the above quoted exclusive remedies provided in sections 205(g) and 205(h) of the Act preclude the district court from granting any equitable relief, and therefore a three judge court is without jurisdiction to restrain and enjoin the Secretary from enforcing any provision of the Act, even if such provision is unconstitutional. HEW argues that a single judge of a district court can grant complete relief to a claimant by reversing the final decision of the Secretary and awarding benefits, if the court determines that the challenged provisions of the Act, as interpreted by the Secretary, constitute an unconstitutional classification.

 In determining the present motion, this court is faced with what the Supreme Court has stated are "difficult and perhaps close jurisdictional arguments" *fn1" that involve "complicated questions of legislative intent and a statutory provision, 42 U.S.C. § 405(h), which has baffled district courts and courts of appeals for years . . . ." *fn2" Nevertheless by reason of the Act of August 12, 1976, Pub. L. 94-381, which repealed 28 U.S.C. § 2282 and substantially amended 28 U.S.C. § 2284 whereby three judge courts are no longer required whenever an Act of Congress is challenged on constitutional grounds, the present decision will be of little legal significance or precedential value.

 Anthony Brew became entitled to disability benefits under the Social Security Act in March of 1969. Michael Brew, a minor, was adopted by Anthony Brew on June 11, 1973. Application on behalf of Michael Brew for benefits as a dependent child of Anthony Brew was denied by final administrative action, and the present appeal with a request for convening the three judge court was filed. The challenged sections of the Social Security Act, as interpreted by HEW, allow a so-called post-disability adopted child to qualify for benefits only if the child has been living with and receiving at least one-half of his or her support from the adoptive parent for a period of one year immediately preceding the date of such parent's disability benefits entitlement. Plaintiff's substantive constitutional argument contends that the statute creates a wholly arbitrary and invalid classification as between those post-disability adopted children who have been living with and supported by the adoptive parent prior to disability entitlement, and those who have not.

 Plaintiff contends that the rationale of Jimenez v. Weinberger, 417 U.S. 628, 41 L. Ed. 2d 363, 94 S. Ct. 2496 (1974), controls the jurisdictional, procedural and substantive issues of this case. The Supreme Court noted probable jurisdiction, 414 U.S. 1061, 38 L. Ed. 2d 363, 94 S. Ct. 567 (1973), from a three judge district court decision upholding the constitutionality of the Social Security Act's various classifications of illegitimate children. Without mention of the jurisdictional problem, the Supreme Court held that the challenged provisions created unconstitutional categories, and remanded the case to the lower court to determine if the claimant factually qualified for benefits under the Supreme Court's guidelines.

 In Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975), also relied upon by the defendant, a widow and her child were denied social security survivors benefits for failure to qualify under the nine month "duration-of-relationship" requirement of the Social Security Act. A three judge court held that the Act was unconstitutional both as to the named plaintiffs and to a class composed of all persons similarly disqualified. Jurisdiction was claimed under 28 U.S.C. § 1331. *fn3" The Supreme Court held that class action relief, at least as to claimants who had not exhausted administrative remedies, was precluded; that there was no "federal question" jurisdiction under 28 U.S.C. § 1331; and on the merits that the classification was constitutional.

 The significance of Salfi to the present jurisdictional issue is stated at 422 U.S. at 763, 95 S. Ct. 2457, 45 L. Ed. 2d 522 n.8:

Since § 405 (g) is the basis for district court jurisdiction, there is some question as to whether it had authority to enjoin the operation of the duration-of-relationship requirements. Section 405 (g) accords authority to affirm, modify, or reverse a decision of the Secretary. It contains no suggestion that a reviewing court is empowered to enter an injunctive decree whose operation reaches beyond the particular applicants before the court. In view of our dispositions of the class-action and constitutional issues in this case, the only significance of this problem goes to our own jurisdiction. If a § 405 (g) court is not empowered to enjoin the operation of a federal statute, then a three-judge District Court was not required to hear this case, 28 U.S.C. § 2282, and we are without jurisdiction under 28 U.S.C. § 1253. However, whether or not the three-judge court was properly convened, that court did hold a federal statute unconstitutional in a civil action to which a federal agency and officers are parties. We thus have direct appellate jurisdiction under 28 U.S.C. § 1252. McLucas v. DeChamplain, 421 U.S. 21, 31-32, 95 S. Ct. 1365, 43 L. Ed. 2d 699 (1975).

 Thus, despite defendant's argument to the contrary, Salfi does not determine the issue as to whether a three judge court was properly convened in this case.

 Norton v. Mathews, 427 U.S. 524, 96 S. Ct. 2771, 49 L. Ed. 2d 672 (1976), seemingly could not skirt the issue, because there a three judge district court had upheld the validity of Social Security Act classifications of illegitimate children. Thus, direct appeal under 28 U.S.C. § 1252 was not available as it was in Salfi. Appellate jurisdiction, therefore, could derive only from a duly convened three judge court under 28 U.S.C. § 1253, which of necessity required subject matter jurisdiction in the three judge district court. Again, however, the issue though recognized was avoided. 427 U.S. 524, 530 & n.7, 96 S. Ct. 2771, 49 L. Ed. 2d 672. The Court held that Mathews v. Lucas, 427 U.S. 495, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976), decided the same day, settled the issue on the merits in favor of the constitutionality of the challenged provision. Therefore, irrespective of whether the three judge court had proper jurisdiction, the Court ruled that there would be "no point" in a remand for procedural improprieties.

 The opinion concludes as follows:

Making the assumption, then, without deciding, that our jurisdiction in this case is established, we affirm the judgment in favor of the Secretary on the basis ...

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