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July 28, 1980

Harry NOVAK, Plaintiff,
Patricia HARRIS, Secretary of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: COSTANTINO


This is an action challenging the final determination of the Secretary of Health, Education and Welfare. The jurisdiction of this court is asserted pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g). Plaintiff, Harry Novak, seeks a reversal of the Secretary's decision to deny retroactive payment of Social Security widower's insurance benefits under the Act, as amended 42 U.S.C. § 402(f)(1).

 The two principal issues raised in this action are (1) whether the ruling of Califano v. Goldfarb, 430 U.S. 199, 97 S. Ct. 1021, 51 L. Ed. 2d 270 (1977) should be applied retroactively to permit the payment of widower's insurance benefits to plaintiff for the period prior to March, 1977 and (2) whether the award of retroactive benefits violates the sovereign immunity of the United States. After a careful consideration of the issues raised and the arguments of counsel, the court finds that plaintiff is entitled to judgment as a matter of law. The basis for this conclusion will be discussed seriatim.

 Statement of Facts

 On August 18, 1975 following the death of his wife, plaintiff, Harry Novak, applied for widower's insurance benefits. The Secretary denied plaintiff's initial application for failure to satisfy the dependency requirements of § 202(f)(1)(D), 42 U.S.C. § 402(f)(1)(D). Specifically, a widower seeking benefits under the Act must establish that at the time of his wife's death he was receiving at least one-half of his support from her. Harry Novak did not meet this requirement.

 On March 2, 1977 the Supreme Court in Califano v. Goldfarb, 430 U.S. 199, 97 S. Ct. 1021, 51 L. Ed. 2d 270 (1977), declared the dependency requirements of widower's insurance benefits as violative of the equal protection component of the Fifth Amendment. Plaintiff subsequently requested immediate, retroactive payment based upon the Goldfarb decision. Thereafter, Harry Novak was informed by the Secretary that as a result of Goldfarb, he would begin receiving widower's benefits as of March, 1977, but not prior thereto. Plaintiff requested a hearing on his claim for widower's benefits retroactive to the date of his original application. The claim was denied and the decision of the Administrative Law Judge which gave Goldfarb prospective effect only, was adopted by the Social Security Administration's Appeals Council as the final decision of the Secretary. Upon appeal of the Secretary's final decision, both the plaintiff and the Secretary filed motions for summary judgment.

 Conclusions of Law

 Retroactivity of Goldfarb

 The Constitution neither prohibits nor requires that changes in the law be applied retroactively. Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965). The appropriateness of applying a judicial decision retroactively entails a balancing of various factors, including the degree of hardship placed upon the litigants. Ordinarily, however, the function of a court, which is to decide disputes after they have arisen, requires that judicial decisions operate with retroactive effect. *fn1" Mishkin, The High Court, The Great Writ, and The Due Process of Time and Law, 79 Harv.L.Rev. 56, 60 (1965).

 A reading of Goldfarb indicates that the Supreme Court did not explicitly mandate its retroactive application. Silence on this issue would not create a presumption of nonretroactivity. In determining when awards should or should not be granted retroactive application, the guidelines set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971) are controlling. *fn2" Most significantly, the Court in Chevron Oil elucidated the following test:

In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see e.g., Hanover Shoe, Inc. v. United Shoe Machinery Corp., supra, 392 U.S. (481), at 496, 88 S. Ct. (2224), at 2233 (20 L. Ed. 2d 1231), or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see e.g., Allen v. State Board of Elections, supra, 393 U.S. (544), at 572, 89 S. Ct. (817), at 835 (22 L. Ed. 2d 1). Second, it has been stressed that "we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Linkletter v. Walker, supra, 381 U.S. (618), at 629, 85 S. Ct. (1731), at 1738 (14 L. Ed. 2d 601). Finally, we have weighed the inequity imposed by retroactive application, for "(w)here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the "injustice or hardship' by a holding of nonretroactivity." Cipriano v. City of Houma, supra, 395 U.S. (701), at 706, 89 S. Ct. (1897), at 1900 (23 L. Ed. 2d 647).

 404 U.S. at 106-107, 92 S. Ct. at 355.

 In applying the first element of the Chevron test, this court must decide whether the Goldfarb decision overruled clear past precedent or, in the alternative, decided an issue of first impression. The leading cases of Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) and Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S. Ct. 1225, 43 L. Ed. 2d 514 (1975) indicate that the unconstitutionality of statutory presumptions of dependency based solely on gender was established many months prior to Goldfarb. Indeed, the Supreme Court explicitly stated that Goldfarb presents precisely the situation faced in Frontiero and Wiesenfeld. 430 U.S. at 217, 97 S. Ct. at 1032. The Court found that:

The gender-based distinction drawn by § 402(f)(1)(D) burdening a widower but not a widow with the task of proving dependency upon the deceased spouse presents an equal protection question indistinguishable from that decided in Weinberger v. Wiesenfeld, supra. That decision and the decision in Frontiero v. Richardson, 411 U.S. 677 (93 S. Ct. 1764, 36 L. Ed. 2d 583) (1973), plainly ...

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