The opinion of the court was delivered by: BRYAN
FREDERICK van PELT BRYAN, District Judge:
This is an action under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare which denied mother's benefits to plaintiff Carmen Collins and child's benefits to the infant plaintiff Deborah Collins. All parties have moved for summary judgment pursuant to Rule 56(a), (b), F.R.Civ.P., on the record before the Secretary.
In order to qualify for mother's benefits an applicant must establish that she is the wage earner's "widow" and that she has in her care the wage earner's "child." 42 U.S.C. § 402(g).
Section 216(h)(1)(A) of the Act, 42 U.S.C. § 416(h)(1)(A), provides:
"An applicant is the * * * widow * * * of a fully or currently insured individual for purposes of this subchapter if * * * the courts of the State in which [such insured individual] was domiciled at the time of death * * * would find that such applicant and such insured individual were validly married * * * at the time he died. If such courts would not find that such applicant and such insured individual were validly married at such time, such applicant shall, nevertheless be deemed to be the * * * widow * * * of such insured individual if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a * * * widow * * * of such insured individual."
Similar tests are provided to determine whether an infant claimant is a "child" entitled to benefits under the Act. 42 U.S.C. § 416(h)(2); 20 C.F.R. § 404.1101 (1965).
There is no dispute that New York was the domicile of the wage earner William Collins (William) at the time of his death on April 25, 1959. For some ten years prior to his death William and plaintiff Carmen Collins (Carmen) had lived together as man and wife, though without ceremonial marriage. Plaintiff Deborah Collins (Deborah), now nine years old, was born of that union and lived with her father and mother; she now lives with her mother.
A decree of the Surrogate's Court, New York County, dated August 26, 1959, adjudged that Carmen was the "wife" and "widow" of William, and as such was entitled, under New York law, to the household furniture in their home. The decree, entered in a contested proceeding, was predicated upon evidence that William "held respondent [Carmen] out to be his wife" and that "on many occasions during a several year period" Carmen and William "had lived together as husband and wife in the State of Ohio" where common law marriages may be contracted.
The basic question posed in this case concerns the meaning and intent of provisions of the Social Security Act which rely upon state law to prescribe standards for determining the familial status of applicants for benefits. What effect is the Social Security Administration required to give to adjudications of such status by the courts of the state? There has been a great deal of confused thinking on this question.
In the case at bar the trial examiner held a hearing at which the decree of the New York Surrogate's Court adjudging that Carmen was William's "wife" and "widow" was introduced. Because the Social Security Administration was not a party to the proceedings before the Surrogate, the examiner concluded that the New York decree was not binding upon the Administration and was of no force and effect on the issue of Carmen's marital status. He therefore considered the entire issue de novo on the evidence adduced before him.
On that evidence he found that Carmen had failed to establish a valid common law marriage with William in Ohio.
He therefore held that Carmen was not William's widow under New York law, which gives effect to common law marriages only if valid under the laws of another state where the parties resided. See Shea v. Shea, 294 N.Y. 909, 63 N.E.2d 113 (1945). Accordingly, he rejected Carmen's application for benefits for herself and child's benefits for Deborah.
The examiner's decision was affirmed by the Appeals Council and became the decision of the Secretary.
There is authority for the proposition that a state probate decree declaring a claimant to be the widow of the deceased has neither a res judicata nor a collateral estoppel effect as to the Secretary where he was not party to the state proceedings. E.g., Miller v. Ribicoff, 198 F. Supp. 819 (E.D.Mich.1961); Marek v. Flemming, 192 F. Supp. 528 (S.D.Tex.), vacated per curiam on consent, 295 F.2d 691 (5 Cir. 1961); Patten v. Flemming, CCH Unempl.Ins.Rep. Para. 8985 (D.Conn.1960); cf. Nigro v. Hobby, 120 F. Supp. 16 (D.Neb.1954). Compare Briggs v. United States, 90 F. Supp. 135, 116 Ct.Cl. 638 (1950).
I have no quarrel with these cases if they are confined to principles of res judicata or collateral estoppel. The United States generally is not bound by earlier litigation unless it was represented by a delegate with authority to appear on behalf of its interests. E.g., Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-403, 60 S. Ct. 907, 84 L. Ed. 1263 (1940); Fennell v. United States, 67 F.2d 768 (5 Cir. 1933). Moreover, a party contesting a state probate proceeding ordinarily does not have interests of "substantial identity" with the Secretary so as to include him within rules of res judicata or collateral estoppel under traditional notions of privity. ...