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July 2, 1973

Bradford Malcolm SEVERANCE
Caspar W. WEINBERGER, Secretary of Health, Education and Welfare

The opinion of the court was delivered by: ROBINSON

This is an action for declaratory and injunctive relief challenging the constitutionality of Section 216(h)(3)(A) of the Social Security Act, 42 U.S.C. § 416(h)(3)(A), for alleged discrimination against illegitimate children. Plaintiffs also challenge on the same grounds Section 316 of Title 19, District of Columbia Code, as incorporated by reference in Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A). Jurisdiction is premised on 28 U.S.C. §§ 1331, 1343(4) and 1361. *fn1" A three-judge Court was convened pursuant to 28 U.S.C. § 2282. Defendant's Motion to Dismiss and Motion to Dissolve the three-judge Court were previously denied. Presently before the Court are Plaintiffs' Motion for Summary Judgment and Defendant's Motion for Judgment on the Pleadings.

Plaintiff has also moved for the substitution of Caspar Weinberger as Defendant, for Elliot L. Richardson, and for certification of the case as a class action. Jacqueline D. Severance, John T. Severance, and Lance O. Severance, by their next friend, Malcolm B. Severance, have moved to intervene as Plaintiffs in this action. The motions for substitution and intervention will be granted. The motion to certify a class action will be denied.


 Malcolm B. Severance, the wage earner on whose account applications for Social Security benefits were made in this case, was born on April 3, 1898. In 1921 Malcolm Severance married Anna Severance, with whom he lived until 1946, when they separated. There is no indication that this marriage was ever terminated by death or divorce. Plaintiff Bradford Severance was born to Malcolm and Delores Tyson (Severance) on November 7, 1965. His father and mother were not married, there being the outstanding bar of Malcolm Severance's prior undissolved marriage. Malcolm Severance began dating Delores Tyson in late 1962. In 1963, she became pregnant by him and on January 22, 1964, gave birth to their first child, Jacqueline. Mr. Severance had reached age 65 in April 1963. Soon after Jacqueline's birth, Delores Tyson moved in with Malcolm Severance. She began using the name Severance and became known in the community as the wife of Malcolm B. Severance. Mr. Severance and Miss Tyson lived together from February 1964 until June 1972. During that time they had three additional children: Bradford M. Severance, the original Plaintiff herein, John T. Severance, born September 27, 1967; and Lance O. Severance, born May 19, 1969.

 The four children have lived with Malcolm B. Severance since birth. On the present record it is not contested that he has acknowledged them to be his children, both orally and in writing, and has provided full support to them since birth.

 Malcolm Severance reached age 65 on April 3, 1963. He remained employed for five years thereafter, *fn2" however, and began receiving monthly social security retirement payments only in November 1968. When applications for children's benefits were made, they were denied because none of the Severance children meets the definition of "child" contained in Section 216(h)(2-3) of the Social Security Act, 42 U.S.C. § 416(h)(2-3).2A

 Section 216(h)(2)(A) of the Social Security Act provides that for the purpose of determining eligibility for children's benefits under the Act, the Secretary may look to local law on the devolution of personal property of an intestate decedent. Those eligible to take such property as children are to be deemed eligible for children's benefits under the Social Security Act. In the District of Columbia the applicable local law is found at 19 D.C. Code § 316, which extends the intestate rights of an illegitimate child to take from the estate of his mother. There is no such provision extending rights to take from the estate of his father and therefore the common law bar to such taking controls. *fn3" Section 216(h)(2) was the original provision in the Social Security Act for children's benefits *fn4" and for many years was the only avenue for such eligibility.

 In 1965 Congress amended the Act by adding Subsection (h)(3)(A-C). *fn5" These provisions were intended to broaden the class of eligible children and to provide an alternative to reliance solely on the varying provisions of state intestacy laws. *fn6" Subsection (h)(3)(A) provides for claims of children of wage-earners receiving old-age benefits. Subsections (h)(3)(B) and (C) provide for children claiming under disabled and deceased wage-earners, respectively. *fn7"

 Subsection (h)(3)(A) *fn8" provides that a "son or daughter" not otherwise eligible as a "child" for benefits on the account of a wage-earner receiving old-age benefits shall nevertheless be deemed to be eligible for benefits if the wage-earner --

(i) . . .
"(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 acknowledgement, court decree, or court order was made not less than one year before such insured individual became entitled to ...

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