however, that even if the benign purpose of the 1958 Amendment encompasses this case,' legitimate reasons justify the limits that Congress placed on it. See Richardson v. Belcher, 404 U.S. 78. The exception, like the general rule itself, is simple to administer. It requires no individualized inquiry into degrees of hardship or need. 16 It avoids any necessity for periodic review of the beneficiaries' continued entitlement. In the cases to which the exception does apply, it is a reliable indicator of probable hardship. Since the test is one that may be applied without introducing any new concepts into the administration of the trust fund, Congress could reasonably take one firm step toward the goal of eliminating the hardship caused by the general marriage rule without accomplishing its entire objective in the same piece of legislation. Williamson v. Lee Optical Co., 348 U.S. 483, 489. Even if it might have been wiser to take a larger step, the step Congress did take was in the right direction and had no adverse impact on persons like the Jobsts.

It is true, as Mr. Jobst urges, that the limited exception may have an impact on a secondary beneficiary's desire to marry, and may make some suitors less welcome than others. But unless Congress should entirely repudiate marriage as a terminating event, that criticism will apply to any limited exception to the general rule. No one suggests that Congress was motivated by antagonism toward any class of marriages

(Cont.)

Court only granted relief for persons marrying a "totally disabled" spouse, its rationale would equally apply to any marriage of a secondary beneficiary to a needy nonbeneficiary.

"We note, however, that Congress could have rationally concluded that beneficiaries who marry other beneficiaries present a more compelling case for legislative relief than beneficiaries who marry needy nonbeneficiaries. Secondary beneficiaries who marry each other lose two sets of benefits and thus may suffer a greater loss than does a couple that sacrifices only one set of benefits.

In the very Act that created the exception for marriages between beneficiaries. Congress showed its reluctance to use individualized determinations in allocating Social Security benefits The 1958 Amendments abolished a requirement that disabled children over 18 prove their individual dependency on the wage earner to qualify for benefits Pub L. 85-840 §306, 72 Stat 1030. Congress concluded that these beneficiaries should be "deemed dependent" because "the older child who has been totally disabled since before age 18 is also likely to be dependent on his parents." HR Rep No 13549, 85th Cong, 2d Sess., 17.

"A logical application of Mr. Jobst's position would permit the Secretary to end benefits only after an individual determination of disability or need Congress, however, has sought to make Social Security payments independent of individual need, while establishing a separate program to serve those who are needy but ineligible for Social Security benefits. The Supplemental Security Income program is a federally funded welfare program administered through the Social Security Administraton Its purpose is plainly stated by H.R. Rep. No. 92-231, 92nd Cong., 1st Sess, 147:

"[S]ome people who because of age, disability, or blindness are not able to support themselves through work may receive relatively small social security benefits. Contributory social insurance therefore, must be complemented by an effective assistance program"

Mr. and Mrs. Jobst became eligible for the Supplemental Security Income Program as soon as it was instituted. On remand the parties stipulated that, based on the couple's need, they were receiving monthly payments only $20 less than the amount they would have been receiving if Mr. Jobst's child's benefits had been restored.

or marriage partners not encompassed by the exception. Congress' purpose was simply to remedy the particular injustice that occurred when two dependent individuals married and simultaneously lost their benefits.

We are satisfied that both the general rule and the 1958 exception are legitimate exercises of Congress' power to decide who will share in the benefits of the trust fund. The favored treatment of marriages between secondary beneficiaries does not violate the principle of equality embodied in the Due Process Clause of the Fifth Amendment.

The judment is reversed.

SECTION 202(d) (42 U.S.C. 402(d) ) — CHILD'S INSURANCE BENEFITSFELONIOUS HOMICIDE-EFFECT OF JURISDICTION BY JUVENILE COURT-MAINE

20 CFR 404.364

SSR 76-29

In the State of Maine, where the 15 year old son of the wage earner, accused of murdering his father, is dealt with totally within the framework of the juvenile court, HELD, he has not been finally convicted of intentionally and feloniously killing his father and is, therefore, eligible for benefits.

The issue posed is whether a homicide committed by a juvenile is considered by the State of Maine to be "felonious." The facts appear to be that the wage earner was found shot to death and later the same day his 15-year-old son was arrested and charged with the murder. An attorney was appointed for the boy. One week later, a hearing was held before a judge of the District Court, sitting as a juvenile court, pursuant to 15 M.R.S. Section 2551. At that time, the case was disposed of with the son not being bound over to the grand jury, as was possible under Maine law, the clear inference being that the juvenile court made its own adjudication of the youth's act. On the following day the wage earner's widow applied on behalf of the surviving children for benefits. The effect of the conviction for feloniously and intentionally killing a wage earner is expressly stated:

"A person who has been finally convicted by a court of competent jurisdiction of the felonious and intentional homicide of an insured individual shall not be entitled to monthly benefits or to the lump-sum death payments based on the earnings of such deceased individual and such felon shall be considered non-existent in determining the entitlement of other persons to monthly benefits or the lump-sum death payment based on the deceased individual's earnings." 20 C.F.R. 404.364.

Thus, if the son could be said to have been convicted of intentionally and feloniously murdering his father, he would not be entitled to any

benefits or be considered in any determination of the amount of benefits to which his mother and/or siblings are entitled. The mere fact that he killed the wage earner is not enough by itself to disqualify the child from receiving benefits; he must have been finally convicted for intentional and felonious homicide in order to be deemed ineligible to receive benefits. In those jurisdictions in which courts are empowered to treat juvenile murderers in a manner different from adults guilty of the same crime, adjudications by those courts are often deemed not to be criminal convictions. Where the juvenile court adjudication is viewed in such a manner, the child accused of parricide remains eligible for benefits.

Maine is one such State that allows a District Court judge sitting in a juvenile court session pursuant to 15 M.R.S. Section 2551, the option in certain instances, of treating a child that comes before the court as either a juvenile offender or binding that child over for a grand jury hearing and subsequent criminal proceeding. Where the latter course is decided upon, the judge must make a finding of probable cause and also find that the child is a dangerous person and a menace to the safety of the community. Only upon such findings may the judge then order the child to be bound over for the grand jury, thereby subjecting the child to standard criminal proceedings. 15 M.R.S. Section 2611, subs. 3.

If, however, the District Court judge employs the first option mentioned, that of dealing with the problem totally within the juvenile court framework, then the effect on status of the child accused of a crime quite naturally is altered. The judge would then make an adjudication of the commission of a juvenile offense, the effect of which will "... not operate in any manner, or to effect, a disqualification for public office, nor shall it be deemed to constitute a conviction of crime." 15 M.R.S. Section 2052 subs. 1.

Newspaper reports strongly suggest that the judge chose to treat the boy as a juvenile offender. According to the local newspaper, the judge, while extremely reluctant to discuss the case, did acknowledge that the boy was not bound over to the grand jury, that his case had remained within the framework of the juvenile court system. As such, 15 M.R.S. Section 2502 subs. 1, would then operate to bar any attempt to view whatever decision was reached by the District Court as a conviction for a felonious and intentional homicide. An award of benefits to wage earner's namesake would then be proper and in accordance with the regulations.

SECTIONS 202(d) and 205(a) (42 U.S.C. 402(d) and 405(a)) CHILD'S INSURANCE BENEFITS-EFFECT OF FINAL CONVICTION OF CHILD OVER AGE 14 OF FELONIOUS INTENTIONAL HOMICIDE-MISSOURI

20 CFR 404.364

SSR 79-1

In Missouri, where a child over the age of 14 is certified to stand trial as an adult for the murder of the deceased wage earner, she may be finally convicted of "felonious and intentional homicide" within the meaning of Social Security Regulations No. 4, section 404.364. Held, if the claimant is finally convicted, she cannot be entitled to surviving child's benefits.

The claimant, born November 19, 1960, was charged with the murder of her mother and the felonious assault of her father. Although 16 years old at the time of the crimes, the claimant was certified to stand trial in Missouri as an adult.

An application for Surviving Child's Insurance Benefits was filed for her on November 21, 1977. The question has been raised as to whether surviving child's benefits may be paid. More specifically, the question is whether a homicide conviction against the claimant would be considered "felonious."

Social Security Regulations No. 4, section 404.364 provides:

"A person who has been finally convicted by a court of competent jurisdiction of the felonious and intentional homicide of an insured individual shall not be entitled to monthly benefits or to the lump-sum death payment based on the earnings of such deceased individual and such felon shall be considered nonexistent in determining the entitlement of such persons to monthly benefits or the lump-sum death payment based on the deceased individual's earnings."

In Missouri a child under the age of 14 cannot be convicted of a felony. For children age 14 or older the Missouri code provides:

"In the discretion of the judge of the juvenile court, when any petition under sections 211.011 to 211.431 alleges that a child of the age of fourteen years or older has committed an offense which would be a felony if committed by an adult... the petition may be dismissed and such child or minor may be prosecuted under the general law, ..." §211.071, RS Mo 1969, V.A.M.S.

In the present case, the claimant was 16 at the time of the alleged offense. She was certified to stand trial as an adult. Therefore, pursuant to section 211.071 of the Missouri code, she is amenable to the provisions of Missouri's general criminal law.

In Missouri a conviction of murder in the second degree constitutes "felonious and intentional homicide" within the meaning of Social Security Regulations No. 4, section 404.364. A manslaughter conviction, however, may or may not be a "felonious and intentional homicide"

within the meaning of that regulation depending on whether the requisite intent has been established.

Accordingly, if the charges pending against the claimant result in a final conviction of a "felonious and intentional homicide" within the meaning of Regulations No. 4, §404.364, she cannot be entitled to surviving child's benefits.

SECTIONS 202(d) and 204(b) (42 U.S.C. 402(d) and 404(b))- CHILD'S INSURANCE BENEFITS-OVERPAYMENTS-CHILD OVER AGE 18 NO LONGER STUDENT

20 CFR 404.506 and 404.507

SSR 76-20c

MUNCE v. MATHEWS, 1A Unempl. Ins. Rep. #14,611 (S.D. Ohio 1976)

The child's insurance beneficiary born in January 1953 was graduated from high school in June 1972 and did not continue in school after that date. Knowing that entitlement to child's insurance benefits terminates when a beneficiary over age 18 is no longer a full-time student, the plaintiff continued to accept monthly benefit payments in the belief that notification of these events was unnecessary and that payments would terminate automatically. Held, in continuing to accept such payments with the knowledge that entitlement had ceased, plaintiff was not without fault in causing the overpayment of benefits and recovery of the overpayment may not be waived pursuant to section 204(b) of the Social Security Act.

DUNCAN, District Judge:

This is an action under the Social Security Act, 42 U.S.C. Section 405(g), for review of a final decision of the Secretary of Health, Education and Welfare refusing to waive repayment of an overpayment of social security benefits. This matter is before the Court on plaintiff's motion for summary judgment.

Since 1959, plaintiff and her children have been receiving survivor benefits under the Social Security Act. A child is entitled to benefits until he reaches the age of 18. If a child continues in regular school attendance, he is entitled to benefits from age 18 to age 22. Plaintiff's daughter, Alice M. Estep, was born January 1, 1953. In June, 1972, she graduated from high school. She did not thereafter attend school; thus, she became ineligible for further benefits in June, 1972. Neither plaintiff nor her daughter notified the Social Security Administration of the daughter's ineligibility. An overpayment of $1,255.70 resulted.

The administrative law judge made the following findings of fact which are fully supported by the record before the Secretary:

During the oral hearing, at which the appellant, Ruth K. Munce, and her attorney, James W. Brown, appeared and participated on October 18, 1974, Mrs. Munce testified that she