PERRY v. RICHARDSON

Citation Codes

Equivalent Citations

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Docket Number

No. 20640.

Attorney(S)

Mitchell B. Goldberg, Cincinnati, Ohio, for appellant; Goldman, Cole Putnick, Cincinnati, Ohio, of counsel. Robert M. Feinson Dept. of Justice, Washington, D.C., for appellee; William D. Ruckelshaus, Asst. Atty. Gen., Kathryn H. Baldwin, Atty., Dept. of Justice, Washington, D.C., on brief; William W. Milligan, U.S. Atty., Cincinnati, Ohio.

Judges

Paul Charles Weick

Acts

The Public Health And Welfare — Social Security — Federal Old-Age, Survivors, And Disability Insurance Benefits — Additional Definitions

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Smart Summary

Factual and Procedural Background

The plaintiff-appellant, Anna Mae Perry, filed a claim for child's insurance benefits on behalf of an alleged illegitimate child of Thomas Bond, the deceased wage earner. The Secretary of Health, Education, and Welfare denied the claim on the basis that the child did not meet the eligibility requirements under Section 216(h)(3) of the Social Security Act. The District Court denied Perry's motion to remand the case and affirmed the Secretary's decision. The child was born in 1957 to Anna Mae Perry, who never lived with or married Thomas Bond. Bond married another woman in 1960 and died in 1966 without acknowledging paternity or providing support for the child. An evidentiary hearing was held where conflicting testimony was presented regarding support payments, with the Hearing Examiner crediting the testimony of Bond's wife that no support was given. The Appeals Council affirmed this finding.

Legal Issues Presented

Whether the child met the eligibility requirements for child's insurance benefits under Section 216(h)(3) of the Social Security Act.
Whether the District Court erred in denying the appellant's motion to remand based on the lack of legal representation during the administrative hearing.
Whether Section 216(h)(3) of the Social Security Act is unconstitutional for invidious discrimination against illegitimate children in violation of the Fifth Amendment.

Arguments of the Parties

Appellant's Arguments

The appellant contended that an attorney could have better cross-examined the wage earner's wife, which might have affected the outcome.
The appellant challenged the constitutionality of Section 216(h)(3) of the Social Security Act, arguing it discriminates against illegitimate children in violation of the Fifth Amendment.

Appellee's Arguments

The Secretary maintained that the child did not meet the statutory eligibility requirements due to lack of support and acknowledgment by the wage earner.
The Secretary argued that the appellant was properly informed of the right to counsel and that the appellant’s refusal to be represented did not warrant remand.
The Secretary asserted that the statutory classification was based on legitimate governmental interests and did not violate constitutional protections.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lane v. Gardner, 374 F.2d 612 (6th Cir. 1967)	Substantial evidence standard and deference to agency fact-finding and credibility determinations.	The court held that the Secretary's findings, supported by substantial evidence, are binding and that the assessment of witness credibility lies with the agency.
Webb v. Finch, 431 F.2d 1179 (6th Cir. 1970)	Right to counsel and significance of legal representation in administrative hearings.	The court distinguished Webb by noting that in the present case the claimant refused counsel and did not present additional evidence warranting remand.
Flemming v. Nestor, 363 U.S. 603 (1960)	Constitutional validity of classifications under the Social Security Act and Fifth Amendment due process analysis.	The court relied on Flemming to reject the claim that the statutory classification discriminating against illegitimate children was unconstitutional.
Dandridge v. Williams, 397 U.S. 471 (1970)	Equal protection principles under the Fourteenth Amendment.	Referenced for comparison on equal protection issues related to statutory classifications.
McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802 (1969)	Equal protection and classification under constitutional scrutiny.	Used as a comparative precedent regarding equal protection challenges.
McGowan v. Maryland, 366 U.S. 420 (1961)	Rational basis review of statutory classifications under equal protection.	Referenced to support the rational justification for the Social Security Act classification.

Court's Reasoning and Analysis

The court found substantial evidence supporting the Secretary’s factual findings, particularly the credibility determination favoring the testimony of the wage earner’s wife over conflicting statements. The court emphasized its obligation to defer to the agency’s assessment of witness credibility when supported by substantial evidence, citing Lane v. Gardner. Regarding the appellant's request for remand based on lack of counsel, the court noted that the appellant was informed of the right to counsel but chose to proceed without representation due to financial concerns. The court distinguished Webb v. Finch, where additional evidence and a refusal to accept counsel were not factors, concluding that no new evidence was offered here. Finally, the court addressed the constitutional challenge to Section 216(h)(3), rejecting the claim of invidious discrimination against illegitimate children because the classification had a legitimate governmental interest and was not arbitrary or irrational, consistent with the precedent in Flemming v. Nestor and related equal protection cases. The court also noted the constitutional claim was raised untimely and thus waived. Judge McCree dissented in part, believing the constitutional question was properly before the court and that remand was warranted for further consideration of counsel assistance.

Holding and Implications

The court affirmed the decision of the District Court. The Secretary’s denial of child's insurance benefits was upheld based on substantial evidence that the child did not meet eligibility requirements. The court held that the appellant’s refusal to be represented by counsel did not warrant remand and rejected the constitutional challenge to the statutory classification. The direct effect is that the appellant’s claim remains denied, and no new precedent altering the application of Section 216(h)(3) or the procedural rights of claimants in such hearings was established.

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Anna Mae PERRY, Plaintiff-Appellant, v. Elliott RICHARDSON, Secretary of Health, Education Welfare, Defendant-Appellee.

WEICK, Circuit Judge.

The Secretary denied the claim for child's insurance benefits filed in behalf of an alleged illegitimate child of Thomas Bond, the wage earner, on the ground that the child failed to meet the eligibility requirements in Section 216(h)(3) of the Social Security Act, as amended. 42 U.S.C. § 416(h)(3). The District Court denied claimant's motion to remand, and affirmed.

The illegitimate child was born on June 16, 1957, the daughter of Anna Mae Perry. Anna Mae Perry, however, never lived with, and was never married to, the wage earner Bond. The child always lived with Anna Mae Perry, her mother, who married Perry in 1962. Thomas Bond, the wage earner, married Janice Bond in 1960. He died in 1966. He had never acknowledged in writing the paternity of the child, nor claimed her as a dependent in his 1966 income tax return. There was no court order concerning either paternity or support.

An evidentiary hearing was conducted by the Trial Examiner, at which hearing Mrs. Perry testified and offered written statements of her mother, her husband, the wage earner's mother and brother, to the effect that the wage earner was supporting his child. There was contrary testimony and also written statements of the wife of the wage earner to the effect that the wage earner was not supporting the child. The wife testified that support payments could not have been made without her knowledge because she handled all of the finances. She produced all of the checks drawn on their joint bank account, which were all signed by her.

The Hearing Examiner, in reaching his decision, credited the testimony of the wage earner's wife. He took into account the interest of Mrs. Perry and of her witnesses in the outcome of the case, and the inconsistencies of their statements, and the evidence that some of them had been coached. He resolved the conflicting evidence against the claimant and found as a fact that the deceased wage earner was not contributing to the support of the child. The Appeals Council affirmed.

In our opinion there was substantial evidence to support the findings of fact of the Secretary. He resolved questions of credibility of the witnesses who appeared before him. His findings of fact, where supported by substantial evidence, are binding on us. Lane v. Gardner, 374 F.2d 612 (6th Cir. 1967).

The District Court did not err in denying appellant's motion to remand. Appellant was advised in writing in the notice of administrative hearing of her right to be represented by counsel, and that the Secretary would have to approve the amount of attorney's fees. At the hearing, the Hearing Examiner again informed her that she could be represented by counsel. She testified that she had conferred with two attorneys, but had no money of her own to pay attorney's fees, and that she did not want attorney's fees to be deducted from any award to the child. The Hearing Examiner could not force her to be represented by counsel.

There is no claim here that she has any additional evidence to offer if the case were remanded. Her only claim is that an attorney could have done a better job of cross-examining the deceased wage earner's wife than she [claimant] did.

Webb v. Finch, 431 F.2d 1179 (6th Cir. 1970), relied on by appellant, did not involve a refusal by claimant to have an attorney, and there were representations, not made here, of additional available evidence which might produce a different result.

Lastly, it is argued that Section 216(h)(3) of the Social Security Act is unconstitutional because it establishes a classification which invidiously discriminates against illegitimate children, in violation of the Fifth Amendment. This issue was raised for the first time in a motion filed in the District Court more than thirty days after the entry of final judgment. The motion was untimely. Rule 59(e) Fed.R.Civ.P. Rule 6(b) prevents enlargement of the time.

The claim of discrimination is without substance. Because of the difficulty in establishing the putative father of an illegitimate child, there was a legitimate basis for the classification provided by the Act. The classification was not patently arbitrary; it was not utterly lacking in rational justification. It did not violate the Fifth Amendment to the Constitution. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed. 2d 1345 (1960). As to the Fourteenth Amendment equal protection clause, compare Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

Judge McCree does not believe the constitutional question is properly before us, but if it is, he believes that the classification invidiously discriminates between legitimate and illegitimate children, both of whom are legally entitled to compel support by the biological father. He further agrees that the record supports the Secretary's finding, but he would remand because claimant was not clearly advised that she could obtain an attorney on a contingency fee basis and that the assistance of counsel to cross examine the wage earner's widow might have been of substantial assistance since the pivotal issue was the credibility of the witnesses. See Webb v. Finch, supra.

Affirmed.