plaintiff also claims in her brief that Novella's testimony "tends to confirm this possibility." Novella testified, in part, that "[Henry] was generally on the road all the time a trucking."

The plaintiff's notion is no more than wishful thinking. Supporting the Secretary's conclusion that Henry resided only in Tennessee and Illinois. Novella testified that after Henry abandoned her and the five children in 1938 or 1939, he stayed in Tennessee for about a year, worked at the Clifton Weldons and then moved to Chicago. Mary herself testified that when she first met Henry in 1940 he was living with his sister and brother-in-law, the Weldons, in Martin, Tennessee. Mary's other testimony, regarding the time Henry was incarcerated for failure to make separate maintenance payments to Novella, also placed Henry in Dresden, Tennessee in the 1938-40 period.

The only evidence that the plaintiff has cited us in the record to show that Henry could have possibly resided in a place other than Tennessee and Illinois is testimony from Mary who stated that in his employment as a trucker he traveled for long periods of time into Michigan and Louisiana. An examination of her testimony in the record reveals, however, that Mary saw Henry "maybe once a week, maybe once a month" when he traveled into those states. The relevant time period: the initial months after they met in 1940. By the plaintiff's own admission, Henry at that time was a resident of Tennessee.

The plaintiff's position is based upon sheer speculation and conjecture. Henry was not a wanderer like Aeneas, Ulysses or Gulliver. There was no missing, unexplained or mysterious two-year void in Henry's life between 1938-40. He was simply a truck driver and, like many interstate haulers, he may have been home only on the weekends.

We have carefully and thoroughly examined the record as a whole, and we, like the district court, conclude that the Secretary's findings are supported by substantial evidence.

The Secretary argues in his appeal that the district court erred in allowing Mary Davis widow's insurance benefits in accordance with the formula devised by the Court of Appeals in Rosenberg v. Richardson, 538 F.2d 487 (2d Cir. 1976). In urging a reversal of the district court, the Secretary attacks the applicability of Rosenberg to these facts. He further contends that the formula directly contravenes the congressional intent and statutory language, extends beyond a liberal construct of the Act, and, in creating a class of beneficiaries specifically excluded by Congress from entitlement, establishes a precedent which endangers the integrity of the Social Security Trust Fund. The plaintiff responds claiming that the Rosenberg formula properly interprets the statute in accordance with a broad construction of the Act designed to effectuate humanitarian purposes and that the court order does not harm the trust fund. We agree with the Secretary.10

"In accordance with Circuit Rule 16(e), this opinion has been circulated among the active members of this court. A majority does not favor rehearing in banc. Judge Luther M. Swygert voted to rehear the issue in banc.

We stated earlier that the explicit language of Section 416(h) (1) (B) provides that the deemed spouse provision does not operate if a legal widow under Section 416(h) (1) (A) "is or has been entitled to a benefit." 42 U.S.C. § 416(h) (1) (B). The legislative history surrounding the amendment, although sparse, is instructive in resolving the conflict between the entitlement of a deemed spouse upon the entitlement of a legal spouse. The House Ways and Means Committee reported unequivocally: "An applicant who went through a marriage ceremony with an insured individual will not be deemed to be the . . . widow . . . of that insured individual if another person is or has been entitled to... widow's benefits based on the insured individual's earnings and the other person has the status of ... widow . . . of the insured individual at the time the application for benefits is filed." H. Rep. No. 1799, 86th Cong., 2d Sess., reprinted in [1960] U.S. Code Cong. & Ad. News 3608, 3684. Favoring the legal widow over the deemed widow, the Congress also included a mechanism for terminating the payments to a deemed widow once the legal widow made a formal application for widow's benefits. 42 U.S.C. § 416(h) (1) (B). Again the legislative history gives us guidance: "The benefits of a person who has been deemed to be a ... widow... under the provisions of the new subparagraph will end if (and with payment for the month before the month in which) the Secretary certifies that benefits are payable to a person who was validly married to the insured individual." H. Rep. No. 1799, 86th Cong., 2d Sess., reprinted in [1960] U.S. Code Cong. & Ad. News 3608, 3684. A plain and fair reading of Section 416(h) (1) (B) leaves no room for question, doubt or ambiguity. Congress decided that there can be no deemed spouse receiving widow's benefits if the legal widow is entitled to the benefits. 42 U.S.C. § 416(h) (1) (B); see Woodson v. Califano, 455 F. Supp. 457 (S.D. Tex. 1978); McGuire v. Califano, 440 F. Supp. 1031 (D. Neb. 1977). In the present case we have already affirmed the Secretary's determination that Novella Davis is Henry's legal widow. Mary, therefore, is precluded from receiving benefits.

Following Rosenberg v. Richardson, supra, the district court awarded Mary back benefits and widow's benefits. In Rosenberg, Max Rosenberg and Celia Beck were married in 1920 in New York City. Thirteen years later Max, dissatisfied with the marriage, procured a Mexican divorce by mail. Celia eventually found employment, never remarried and saw little of Max after the divorce. Two years after his Mexican divorce Max married Frieda Silverstein in 1935 in a Connecticut civil ceremony. Max and Frieda, both New York domiciliaries, celebrated their marriage in Connecticut because a lawyer advised them that the neighboring state recognized the effectiveness of Max's Mexican divorce from Celia, thereby rendering the subsequent marriage valid. For the next 36 years Max and Frieda lived together as husband and wife. While Frieda was a housewife responsible for raising the couple's two children, Max, an electrician, supported the family and for many years his salary included a tax deduction to the Social Security fund.

After Max's death in 1971 both Frieda and Celia, who had had no communications with Max for the last 20 years of his life, applied for widow's benefits. The Secretary ruled in 1971 that, since New York

courts would consider Max's ex parte Mexican divorce ineffective in dissolving his marriage with Celia, Celia was Max's widow. After a hearing in 1973 the administrative law judge found that Max and Frieda's marriage was entered in good faith and all other requirements of the deemed spouse provision were satisfied. See 42 U.S.C. § 416(h) (1) (B). However, the judge held that Frieda, who had been receiving widow's benefits, could no longer receive payments because Celia had been certified as Max's legal widow.

The maximum widow's benefit payable on Max's account was $165.20 monthly. By virtue of her personal retirement account Celia was already receiving $163.80 per month. Thus, pursuant to the operation of 42 U.S.C. § 402(k) (3) (A), Celia's estimated widow's benefit, $165.20, was reduced to an amount equal to her present retirement payments, $163.80. Accordingly, Celia was entitled to an increased monthly benefit of $1.40.

Reversing the district court's grant of the government's motion for judgment on the pleadings, the Second Circuit stated that "we cannot agree that Congress intended a 'deemed' widow in Frieda's position to forfeit all benefits merely because an infinitestimal fraction of the full widow's benefit that Max paid for from his hard earned wages was required to go his 'legal widow.'" Rosenberg v. Richardson, 538 F.2d at 490. The Court of Appeals outlined general principles of statutory interpretation and reasoned that the result-Celia was entitled to $1.40 and Frieda was allowed $163.80 as the residual balance of the full widow's benefit-was consonant with a liberal construction of the insurance program of the Social Security Act, Max's expectation that the benefiting widow would be Frieda, and the language of the Act.

We conclude that Mary Davis, unlike Frieda Rosenberg, must receive nothing. There are numerous, sharp and crucial factual distinctions between the cases. The case before us does not involve "an inadvertent and unforeseen error" - poor legal advice- and the "extraordinary circumstances" which dominate the Rosenberg opinion." The critical fac

11 The Court of Appeals noted the "extraordinary circumstances" of the case:

It is therefore difficult to understand why the Government has, in this case, spent seven years and untold thousands of dollars in administrative and legal fees in a seemingly rigid and arbitrary attempt to deprive Frieda Rosenberg of the modest Social Security widow's benefits Max Rosenberg paid for and wished her to receive.

We should observe at the outset, that the Government concedes that Max and Frieda lived together as man and wife for thirty-six years, from the time of their marriage in 1935 to Max's death in 1971. Nor is it disputed that their wedding was undertaken in good faith reliance upon legal advice that Max's Mexican divorce from his former wife, Celia Rosenberg, would be recognized as valid. Because the lawyer's advice seems to have been in error, Celia Roseberg, as Max's "legal" widow, has been permitted to augment her own old age insurance benefits by the insignificant sum of $1.40 per month. Yet, Max Rosenberg sacrified a significant portion of his weekly paychecks over decades of employment to build a widow's benefit fund of $165.20 per month for Frieda, the woman he regarded for thirty-six years as his lawful wife. It is not consistent with the beneficent spirit of the Social Security Act that the Treasury should confiscate this entire fund, intended to serve as a means of support for a 69-year-old woman, merely because an inadvertent and unforeseen error allowed another, under the extraordinary circumstances present here, to have a claim on less than 1% of the fund. We cannot agree with the Secretary that the payment of $1.40 a month to Celia must cause Frieda to forfeit the entire $165.20 to the Treasury as a windfall.

538 F.2d at 488.

tor which compelled that court to divide the benefits between the legal and deemed widows was the fact that the first wife Celia, the legal widow, could only benefit by $1.40 or by less than 1% of the widow's benefit. In great contrast Novella, the legal widow and first wife of Henry, may enjoy a large $217.00 increase in overall benefits and receive more than 57% of the payable widow's benefit.

Even if the factual chasm that separates the cases were not so wide, we would part company with the reasoning of the Second Circuit. Although there is a place for the liberal construction of some laws, there is little room here. No legislative history, statutory language or case law under Section 416(h) (1) (B) suggest that any strength should be accorded an insured individual's expectations in a clash with state law. In fact the Supreme Court has cautioned that an employee's noncontractual interest in the Social Security system, financed by tax contributions, cannot be analogized to the contractual rights in a private insurance plan based on premium payments. Flemming v. Nestor, 363 U.S. 603, 610 (1960). We are similarly unconvinced by the rationale, essential to the Court of Appeals' conclusion, which asserts that the legislative history "leaves no room for doubt" that Congress intended to terminate a deemed widow's benefits only if the legal widow could receive the "full benefit." Rosenberg at 491. The legislative history which is cited, H. Rep. No. 1799, 86th Cong., 2d Sess., reprinted in [1960] U.S. Code Cong. & Ad. News 3608, 3684, lends little, if any, support for the assertion, and such an interpretation ignores the plain meaning of 42 U.S.C. §§ 402(k) (3) (A) and 416(h) (1) (B).12 See also Martin, Social Security Benefits for Spouses, 63 Cornell L. Rev. 789, 819 (1978) (Rosenberg decision is "unsupportable"). The Congress, recognizing that persons may have entitlement to multiple benefits, enacted Section 402(k) (3) (A) to establish a maximum level of benefits. See footnote 8. There is no authority that persuades us that Congress intended to suspend the operation of the statute for a new category, the deemed spouse. We are convinced that there can be no deemed spouse receiving benefits if the legal widow is entitled to the payment, 42 U.S.C. § 416(h) (1) (B), as we cannot close our eyes to clear congressional intendment. The Congress declined to command the Social Security Administration to pay widow's insurance benefits to two widows, and so must we. In some ways this is a disturbing and inequitable result. We understand the desire of the district court to work out a division of the payments. It may not have been a bad solution, but we do not believe it to be good law.

12

12The Rosenberg opinion mistakenly suggested that 42 U.S.C. § 402(k) (3) (A) allows the Treasury to "confiscate" a "windfall." The actual recipient of the remainder, after the widow's benefit payable on the deceased husband's account is reduced by the amount a widow receives on her own earnings account, is the Social Security Trust Fund which must pay the benefits and expenses of the program. See Flemming v. Nestor, 363 U.S. 603, 609 (1960).

The finding by the Secretary, affirmed by the district court, that under Illinois law Novella Davis is the legal widow is affirmed. The order by the district court awarding Mary Davis widow's insurance benefits is reversed.

AFFIRMED IN PART, REVERSED IN PART.

SECTION_216(h) (1) (42 U.S.C. 416(h)(1)) RELATIONSHIP-VALIDITY OF MARRIAGE - PUTATIVE MARRIAGE IN COLORADO

20 C.F.R. 404.1101

SSR 80-2

The claimant married the worker on September 23, 1976, and lived with him until he died on July 13, 1977, in Denver, Colorado. When she filed her application for mother's benefits, the claimant indicated that her husband had previously been married in December 1968. She submitted papers showing that this marriage had ended in divorce on April 13, 1971 in Denver, Colorado. The claimant, however, was unaware, until after her husband's death, that he had also been married under a different name in 1959 and that this marriage had apparently never terminated. As required by Colorado statute, the claimant had a good faith belief in the existence of a valid marriage between herself and the worker at its inception and continuing until his death; and she cohabited with him during this time. Held, the claimant is the worker's putative spouse under Colorado law.

A question has been raised as to whether a putative marriage can be established between the claimant and the worker, who used one name when he married his first wife and a different name when he married his second and third wives. This issue must be resolved because the claimant has filed an application for mother's benefits on the worker's earnings record. One of the requirements for entitlement to mother's benefits is that the claimant be the worker's widow. If a putative marriage can be established between the worker and the claimant under Colorado law, the claimant will qualify as the worker's widow.

The worker lived in Texas between 1959 and 1963. He married his first wife in 1959 and they separated in late 1963. Three children were born of this marriage. A search of divorce records in Texas and New Mexico failed to uncover a decree terminating the marriage of the worker and his first wife.

The double identity of the worker has been attested to by the sister of the worker's first wife. In about 1967, she learned that the worker had left his first wife and their children without any express intent of returning. In about 1973, the sister moved to Denver, Colorado. After taking up residence there, she met the worker by coincidence. Although he identified himself under the name he used when he married his second and third wives, he admitted that he used to live with her sister as her husband.

The worker married his second wife in December 1968. She obtained a divorce from him in the Denver, Colorado District Court on April 13, 1971. The worker then married the claimant on September 23, 1976. He died in Denver some ten months later on July 13, 1977.