earner becomes disabled.' Social Security Amendments of 1958, Pub. L. No. 85-840, § 205(b) (1), 72 Stat. 1021. Both the House and Senate committee reports accompanying the proposed legislation explained that the purpose of the monthly payments was to give "recognition to the problems confronting families whose bread-winners" stop work. The focus was specifically on "adequate protection for [the husband's] family," and the reports mentioned the high medical expenses often associated with disability and the possibility that the wife might have to forego work in order to care for her disabled husband. H. R. Rep. No. 2288, 85th Cong., 2d Sess., 12-13 (1958); S. Rep. No. 2388, 85th Cong., 2d Sess., 10-11 (1958).

In view of the legislative purpose, it is hardly surprising that the congressional judgment evidently was a different one with respect to divorced women. Divorce by its nature works a drastic change in the economic and personal relationship between a husband and wife. Ordinarily it means that they will go their separate ways. Congress could have rationally assumed that divorced husbands and wives depend less on each other for financial and other support than do couples who stay married. The problems that a divorced wife may encounter when her former husband becomes old or disabled may well differ in kind and degree from those that a woman married to a retired or disabled husband must face. For instance, a divorced wife need not forego work in order to stay at home to care for her disabled husband. She may not feel the pinch of the extra expenses accompanying her former husband's old age or disability. In short, divorced couples typically live separate lives. It was not irrational for Congress to recognize this basic fact in deciding to defer monthly payments to divorced wives of retired or disabled wage earners until they reach the age of 62.

This is not to say that a husband's old age or disability may never affect his divorced wife. Many women receive alimony or child-support after divorce that their former husbands might not be able to pay when they stop work. But even for this group-which does not include the appellee in the present case-Congress was not constitutionally obligated to use the Social Security Act to subsidize support payments. It could rationally decide that the problems created for divorced women re

"Wife's insurance benefits" first became part of the Social Security Act in 1939. Amendments enacted that year provided for monthly payments to wives 65 years or older whose husbands were entitled to old-age benefits. Social Security Amendments of 1939, § 201, 53 Stat. 1362. In 1950 Congress dropped the age requirement for women with retired husbands and entitled children in their care. Social Security Amendments of 1950, § 101(a), 64 Stat. 483. In 1958 Congress extended similar benefits to wives of any age who had entitled children and disabled husbands. Social Security Amendments of 1958, Pub. L. No. 85-840, § 205(b)(1), 72 Stat. 1021. While the legislative history of the 1950 amendments is sparse, the congressional purpose presumably was to recognize a family need created when the husband reaches old age and stops working. Certainly the sole purpose could not have been to allow the wife to remain at home to take care of the child, as the appellee suggests, because the presence of the retired husband at home ordinarily would ensure parental supervision. Similarly, when Congress provided benefits in 1958 to wives with disabled husbands, it had purposes beyond the mere encouragement of the wife to stay home and take care of the children. See H. R. Rep. No. 2288, 85th Cong., 2d Sess., 1213 (1958); S. Rep. No. 2388, 85th Cong., 2d Sess., 10-11 (1958).

mained less pressing than those faced by women who continue to live with their husbands.

In any event, the constitutional question “is not whether a statutory provision precisely filters out those, and only those, who are in the factual position which generated the congressional concern reflected in the statute." Weinberger v. Salfi, 422 U. S. 749, 777. We conclude, accordingly, that the statutory classifications involved in this case are not of such an order as to infringe upon the Due Process Clause of the Fifth Amendment.

The judgments is reversed.

HUSBAND'S INSURANCE BENEFITS

It is so ordered.

(PPS-41)

SSR 79-36

TITLE II-IMPLEMENTING THE DISTRICT COURT DECISION IN OLIVER VS. CALIFANO TO PAY DIVORCED HUSBANDS' BENEFITS PURPOSE: To state policy permitting the payment of monthly benefits to divorced husbands, a new category of beneficiary.

CITATIONS (AUTHORITY): The U.S. District Court decision-Oliver vs. Califano, in the Northern District of California, June 24, 1977, Civil Action No. C-76-2397 SC; Sections 202(b) and 216(d) (1) of the Social Security Act; Regulations No. 4, sections 404.331-404.333.

PERTINENT HISTORY: The Social Security Act provides for wife's benefit payments for the divorced wife of a retired or disabled worker entitled to benefits, if she meets certain requirements. There is no provision in the Act for paying benefits to the divorced husband of a retired or disabled worker.

On June 24, 1977, the U.S. District Court, in Oliver vs. Califano, ruled that the law is discriminatory in paying divorced wives' benefits and not paying divorced husbands' benefits, citing the Wiesenfeld and Goldfarb Supreme Court decisions. Since the Oliver decision was not appealed, it must be implemented. Therefore, the court decision establishes divorced husbands as a new type of beneficiary, with requirements for entitlement which parallel those that apply to divorced wives.

POLICY STATEMENT: A divorced husband is defined as a man who was married to the female wage earner for 20 years (10 years for entitlement after 1978) immediately before the date the divorce became effective. To qualify for benefits, the claimant must be the divorced husband of a worker entitled to retirement or disability benefits, file an application,

be unmarried, have attained age 62, and not be entitled to a Retirement Insurance Benefit (RIB) or Disability Insurance Benefit (DIB) based on a Primary Insurance Amount (PIA) which equals or exceeds one-half the PIA of his former wife.

A divorced husband's benefits end if he dies, his former wife dies or her entitlement to DIB or RIB ends, he marries someone other than his former wife (except if he marries a woman entitled to widow's, parent's, or childhood disability benefits), or he becomes entitled to a RIB or DIB based on a PIA which equals or exceeds 1⁄2 the PIA of his former wife. EFFECTIVE DATE: Since this change results from the operation of the class action order in the Oliver case, individuals whose claims were denied after August 28, 1976, and individuals who file an application after that date, will, if the other conditions of entitlement are met, be eligible for the 12 months preceding the month in which the application is filed.

FURTHER INFORMATION: Final regulations covering these policies were published in the Federal Register on June 15, 1979, at 44 FR 34479. CROSS REFERENCES: Claims Manual sections T265-T275.

SECTION 202(c) (2) (42 U.S.C. 402(c) (2)) HUSBAND'S INSURANCE BENEFITS-GOVERNMENT

PENSION

OFFSET-CONSTITUTION

ALITY

20 CFR 404.408a

SSR 80-28c

Duffy v. Harris, U.S.D.C. New Mexico, Civ. No. 79-386 (10/23/79)

The plaintiff applied for husband's insurance benefits in January 1978. The Social Security Administration determined, however, that such a benefit was not payable to the plaintiff because, under 42 U.S.C. 402(c) (2), it was totally offset by the amount of his monthly Federal government pension. Held, the plaintiff does not qualify for the exception to the offset provision contained in section 334(g) of Public Law 95-216 because there is no evidence to show that he met the one-half support requirement in 42 U.S.C. 402(c) as it was in effect and being administered in January 1977. Further held, the government pension offset provision and its exception do not violate the Due Process and Equal Protection requirements of the Fifth Amendment to the Constitution.

PAYNE, District Judge:

Plaintiff brings this action seeking judicial review of the final decision of the Secretary which determined that the husband's insurance benefits plaintiff is entitled to under the Social Security Act, 42 U.S.C. § 401 et seq., must be totally offset by his civil service pension.

Plaintiff's wife, Betty Duffy, became entitled to retirement insurance benefits under the Social Security Act effective January 1976. In July of 1977, the month in which he attained the age of sixty-two, plaintiff called a district office of the Social Security Administration to inquire about the filing of an application for husband's insurance benefits under §202(c) of the Social Security Act (hereinafter referred to as "the Act"), 42 U.S.C. §402(c). At that time, plaintiff's son was entitled to child's insurance benefits as a student on the earnings record of his mother. Hence, plaintiff was advised that if he filed and became entitled to husband's insurance benefits, the family would receive a smaller amount than it would if he deferred filing until the child's entitlement ended. The child's entitlement ended effective January of 1978 and plaintiff filed an application for husband's insurance benefits on January 10, 1978. In connection with his application, plaintiff informed the Social Security Administration that he was receiving a civil service pension as a result of his employment with the Department of Defense.

On March 16, 1978, the Social Security Administration made an initial determination that although plaintiff was entitled to a husband's insurance benefit, the amount of his monthly benefit must be reduced by the amount of his federal government pension. Hence, the husband's benefit of $75.80 per month was not payable since the plaintiff's monthly Civil Service pension (approximately $14,000 per annum) far exceeded the monthly husband's benefits. Upon reconsideration the initial determination was affirmed. Plaintiff then requested a hearing. At the hearing, plaintiff testified that a claims representative advised him to file after December of 1977 so that the benefits his son was receiving would not be reduced. He further testified that the claims representative who rendered the advice appeared to have acted in good faith. Plaintiff agreed with his representative's assertion that he did not file an application for benefits in July of 1977 because he was relying upon the Administration for guidance.

On November 2, 1978, a hearing decision unfavorable to plaintiff was rendered. The decision was affirmed upon review by the Appeals Council and became the final decision of the Secretary.

Since plaintiff did not file an application for husband's insurance benefits until January of 1978, he clearly falls within the offset provision of 42 U.S.C. §402(c) (2), which requires that plaintiff's husband's insurance benefits be offset against his Civil Service pension. The issues before this Court, therefore, are:

'Effective July 1977, plaintiff's wife was entitled to $148.80 per month and his son was entitled to $90.90 per month. If plaintiff had filed an application and become entitled to husband's insurance benefits effective July 1977, he would have been entitled to $34.20 per month and the benefits payable to his son would have been reduced to $45.50 per month. The amount payable to his wife would not have been affected. Thus, plaintiff's entitlement in July 1977 would have caused a net loss of $11.20 per month to the family overall and would have caused his son's benefit to be reduced from $90.90 per month to $45.50 per month. Sections 202(q) and 203 of the Act.

1. Whether the plaintiff falls within the exception to the offset
provision contained in §334(g) of Public Law 95-216 (Dec. 20,
1977); and

2. Whether the offset provision itself, assuming plaintiff is not
excepted by §334(g) of Public Law 95-216, is constitutional.

Plaintiff would qualify for the exception to the offset provision contained in §334(g) of Public Law 95-216, only if he were to satisfy the onehalf support requirement contained in the former 42 U.S.C. §402(c), as it was administered in January 1977. Here, the record shows no evidence that the one-half support requirement has been met. Accordingly, plaintiff cannot qualify for the exception and is subject to the offset provision in 42 U.S.C. §402(c) (2), as amended December 20, 1977.

The offset provision in 42 U.S.C. §402(c) (2) and the exception thereto in §334(g) of Public Law 95-216 satisfy the Due Process and Equal Protection requirements of the Fifth Amendment if the classifications therein are not patently arbitrary and bear a rational relationship to a legitimate governmental interest. Frontiero v. Richardson, 411 U.S. 677, 633 (1973); Bolling v. Sharpe, 347 U.S. 497, 499 (1964); Schneider v. Rusk, 377 U.S. 163, 168 (1964); Shapiro v. Thompson, 394 U.S. 618, 642 (1969); see also, Dandridge v. Williams, 397 U.S. 471, 485 (1970); Richardson v. Belcher, 404 U.S. 78, 81, 84 (1971); Weinberger v. Salfi, 422 U.S. 749, 768, 769 (1976); Jefferson v. Hackney, 406 U.S. 636, 546 (1972); McGowan v. Maryland, 366 U.S. 420, 426 (1961). The Court has examined the entire record, including the briefs and arguments of both counsel, and concludes, as did the Secretary, that the provisions in question are rationally calculated to avoid windfall benefits which would have otherwise been payable to government pensioners because of the affect of Califano v. Goldfarb, 430 U.S. 199 (1977) upon the Social Security Act as it existed before December 20, 1977. Moreover, the Court concludes that this statutory effort was neither arbitrary nor capricious. Accordingly the defendant's motion to affirm will be granted in a separate order.

IT IS BY THE COURT ORDERED that the final decision of the Secretary of Health, Education and Welfare in the above entitled cause be, and it is hereby affirmed and that plaintiff's complaint be, and it is hereby dismissed.