Appeal from an opinion and order of the United States District Court for the Western District of New York, John T. Curtin, Judge, affirming the Secretary's determination that appellant was not entitled to surviving spouse's benefits. Reversed and remanded.
Kaufman, Oakes, and Cardamone, Circuit Judges.
The Social Security system provides primary benefits, based on one's own work, to retired workers who meet specified conditions. It also provides secondary benefits to the surviving dependents, often spouses, of deceased workers. The spouse benefit system, which is at the heart of this case, has been said to involve "essential arbitrariness," in that the provisions which make it up "incorporate no coherent rationale for entitlement."*fn1 One set of principles determines contribution and entitlement to primary benefits, while a completely different set determines entitlement to spousal benefits, making, in the words of one commentator, "serious arbitrariness . . . inescapable."*fn2
The arbitrariness that is implicated in this case involves the determination of which of successive surviving spouses (here widows) is entitled to secondary benefits based on the work record of the deceased. The basic test looks to the marital law of the state of the covered worker's domicile at the time of his death to ascertain which claimant is the legal widow, and thus entitled to benefits. Unfortunately, this approach does not fully promote either uniformity or nonarbitrariness. Some states, for example, recognize de facto marriages,*fn3 while others do not, a situation which would be likely to result in substantial injustice were entitlement to turn entirely on state law resolution of the question. In 1960 Congress responded to this problem by establishing a federal statutory test to provide benefits to persons who married in good faith unaware of legal impediments, such as a prior, undissolved marriage, to their marriage's validity.*fn4 This statute, which grants entitlements to such "good faith" spouses, also contains a proviso that no "legal" spouse qualify for benefits.*fn5 Thus, to sketch the basic statutory scheme, a second wife, such as appellant here, unaware that her husband was not divorced from his first wife, would be entitled to a widow's benefit upon her husband's death only if his first wife did not lay claim or was not entitled to those benefits.
This already complex portrait is further complicated when the surviving spouse is herself also entitled to primary, i.e., retired workers', benefits. If those primary benefits are greater than the spousal benefits, the statute provides that there is no entitlement to the secondary benefits.*fn6 In such a case, a second good faith or "deemed" wife is therefore entitled to surviving spouse's benefits. The truly hard case -- such as the one here before us -- involves the situation where the secondary spousal benefits to which the legal widow is entitled are greater than the primary benefits which she may claim. Does the entitlement of the first wife to even a minute portion of the available surviving spouse's benefits disentitle the second good faith spouse, or so-called deemed widow, to any and all such benefits?
Faced with that problem, this court in Rosenberg v. Richardson, 538 F.2d 487 (2d Cir. 1976), construed the operable statute to mean that the "second Mr. Rosenberg" (whose husband had previously obtained a Mexican divorce not recognized by New York law) was nevertheless entitled to her deemed widow's benefits. We also held in Rosenberg that the deemed widow's secondary benefits would be reduced by the amount payable to the legal widow, and that in no event could the total payments to widows exceed what could be paid to a single widow.
Rosenberg has been criticized by other courts,*fn7 has been said by a commentator to reach an "insupportable conclusion,"*fn8 and we are now asked by the Secretary to overrule it.*fn9 For reasons that we state below we decline to do so. Indeed, we believe the result reached in Rosenberg to be not only Solomonic but practical and we also believe its reasoning supportable by reference to the statutory structure and language, which, though by no means crystal clear, nevertheless evince a purpose served by our decision.
Our case is similar to but somewhat more complicated factually than Rosenberg. It is complicated further by an administrative muddle that is somewhat analogous to the muddled marital life that Samuel Capitano lived.
Sam Capitano evidently married Betty, nee Anna Jokubynas, on December 2, 1931, in Scranton, Pennsylvania. We say "evidently" because the name on her marriage certificate was "Petronella Jackaben." Betty furnished, however, an explanation for the name discrepancies that satisfied one of the administrative law judges who dealt with this matter in its rather lengthy traverse through the administrative process, so that it was "reasonable to infer" that it was Betty Capitano who actually married Sam on that day.
Sarah Sparacio married Sam Capitano in Pittston, Pennsylvania, on April 7, 1951. Whether that marriage was "in good faith," as she claims, or not, as the ALJ may have found (contrary to the Appeals Council's subsequent decision), is an issue both of fact and of law which we discuss below. For the moment suffice it to say that Sarah was known as Mrs. Capitano, was called "wife" by Sam (who called himself "your loving husband Cap"), paid for Sam's funeral, was "Wife & Beneficiary" of his life insurance, annually remembered the date of his death with rather moving newspaper notices, and bought a burial lot for the two of them. After Sam's death in January, 1970, Sarah quite naturally applied for and received widow's Social Security benefits. These benefits commenced in July, 1975.
Betty maintained during the administrative proceedings that she "never got a divorce and never even applied for a divorce" because she "did not want to give [Sam] the satisfaction of granting him a divorce so that he would be free to remarry." She also claimed that from the time Sam left her in the 1940s until after he died she was "unaware of his whereabouts." Betty claimed that she concluded ultimately that he must have moved to Buffalo, New York, where he had three sisters. Betty, whose account of her life with and without Sam occasionally stretches one's imagination and patience, nevertheless also stated that one of Sam's sisters with whom he was living had phoned her and told her that he was dying, that "I immediately went to Buffalo to the hospital to visit him" and that he "died while I was there and I attended the funeral." Somewhat incredibly, Betty also stated in writing that "the name Sarah never came up while I was at the funeral, I never heard of this 'Sarah.'"
Be that as it may, on December 7, 1977, Betty applied on the basis of her own earnings for primary retirement insurance benefits. Reluctantly, because she "did not like the idea of going on" Sam's work record, she also, some three weeks later, applied for widow's benefits, apparently at the behest of the Social Security people. It does not appear in the record exactly what prompted this application, since her own application for retirement benefits had already been approved (as of July, 1981, she was receiving $415 per month in primary benefits) and since it is not certain whether Betty receives any more money by virtue of the widow's benefit than she would receive by virtue of her own retirement benefits. Appellant's counsel believes that at most Betty receives an additional $17.40 per month. But regardless of how much or even whether or not Betty's fortunes improved, Sarah's suddenly plummeted. As a result of the approval of Betty's (i.e., the legal widow's) application for benefits, Sarah was held disentitled to ...