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Peggy Brady for Kenneth Brady v. Sullivan

decided.*fn**: September 29, 1989.

PEGGY BRADY FOR KENNETH BRADY, PLAINTIFF-APPELLANT,
v.
LOUIS W. SULLIVAN, M.D.,*FN* SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 85 C 5544--Ann Claire Williams, Judge.

Wood, Jr., Coffey and Flaum, Circuit Judges.

Author: Per Curiam

After a long procedural history, this appeal arises from the dismissal, on the basis of jurisdiction, of Kenneth Brady's claim for surviving child benefits under Title II of the Social Security Act.*fn1 We affirm.

I. FACTUAL BACKGROUND

On June 16, 1969, Kenneth Brady ("Brady"), through Peggy Brady, applied for child's social security benefits on the earnings of his deceased putative father, John Brady.*fn2 Brady claims to be John's illegitimate son, born of an affair between John and Betty Dixon, their babysitter. John's wife Peggy claimed to have discovered the affair when she returned home early one night in 1966. Although Peggy was distraught when she first learned of the affair, she and John later agreed, it is claimed, to adopt the child claimed to have been born of that affair. John Brady died on September 21, 1966; Kenneth was born on October 21, 1966.

Soon after Kenneth's birth, Peggy Brady claims to have retained attorney Joseph Meid to arrange for his adoption, paying Meid $1,000 in exchange for his agreement to coordinate the delivery of the baby to Peggy. The baby's transfer did not take place through customary means, however. Meid apparently obtained baby Kenneth from his mother (whom Meid claims was Betty Dixon) and personally handed him over to Peggy Brady in a restaurant parking lot. Although Meid agreed to obtain the baby's birth certificate and to process the adoption papers, he never did so and Peggy Brady never saw him again.

The Social Security Administration denied Brady's claim on May 10, 1974, on the basis that his relationship to the wage earner had not been established. Brady requested reconsideration, submitting affidavits from Peggy Brady attesting to Kenneth's parentage and from the chaplain who had counseled Peggy Brady at the time she learned of her husband's affair with Dixon. After a hearing, an Administrative Law Judge (ALJ) denied Brady's claim. The ALJ determined that no reliable evidence existed to substantiate Kenneth's paternity claim. The Appeals Council upheld the decision on September 7, 1976.

Brady filed a second application in April 1979; this application and his subsequent request for reconsideration were denied as duplicative of the first. Brady then submitted new evidence to support his right to benefits as John's natural child consisting of an affidavit from Joseph Meid, the attorney who purportedly arranged for the baby's transfer from Dixon to Peggy Brady. Brady also attached a copy of an Order of Intestacy and Determination of Heirs entered by the Maricopa County, Arizona Superior Court (entitling him to inherit intestate personal property from John Brady) and a copy of an adoption certificate for Kenneth obtained by Peggy Brady on December 3, 1979. The ALJ held that the new evidence was not material and again dismissed the claim. The Appeals Council affirmed the denial in October 1980. Brady petitioned for court review but the action was dismissed for want of jurisdiction.

In the meantime, a class action suit was brought in the United States District Court for the Northern District of Illinois on behalf of illegitimate children who had been denied surviving child benefits. The suit, Boatman v. Schweiker, No. 78 C 299 (unpublished order) (" Boatman I "), alleged that the Secretary improperly applied its regulations against the class members.*fn3 The parties settled the suit in October 1981 and submitted an agreement to the court ("the Boatman Agreement"); the court's entry states that the case was dismissed under Fed.R.Civ.P. 41(a).

In the Boatman Agreement, the Secretary agreed to treat any applicant who qualified as a "child" under section 416(h)(2)(A) as "dependent" for purposes of the Act, thus entitling them to collect benefits. The Secretary agreed to contact those individuals who had been denied benefits on the record earnings of their putative parents.

In July 1982, in accordance with the Boatman Agreement, the Secretary reopened Brady's request for benefits. The Secretary examined Brady's application to determine whether he had demonstrated actual dependency or whether, under 42 U.S.C. § 416(h)(2)(A), state law established his right to inherit intestate personal property from John Brady. Finding nothing improper in its previous determination, the Secretary again denied Brady's claim.

Brady appealed to the ALJ. At the ensuing hearing, Peggy Brady testified about Kenneth's origins and presented photographs which she felt revealed the resemblance between Kenneth and John Brady. Documentary evidence was submitted, including Kenneth's baptismal certificate, the Arizona court order, the adoption decree of Kenneth Brady by Peggy Brady, Meid's affidavit, and a copy of a death certificate for a Betty Guthrie (allegedly Betty Dixon) who died on April 11, 1977.

The ALJ concluded that Brady could not be considered a child of John Brady within the meaning of 42 U.S.C. § 416(h)(3) because there was no evidence that Betty Dixon had been dependent upon John Brady at the time of his death. To determine whether he qualified under 42 U.S.C. § 416 (h)(2)(A),*fn4 the ALJ applied the law of Arizona, where John Brady was domiciled at the time of his death. The ALJ stated that the Arizona court decree could not be considered conclusive unless four conditions were satisfied:

1) an issue in a claim for social security benefits previously had been determined by a State court of competent jurisdiction; 2) this issue was genuinely contested before the State court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution of [the] State ...


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