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December 11, 1973

Stephen Charles WIESENFELD, Individually and on behalf of all other persons similarly situated, Plaintiff,

Clarkson S. Fisher, District Judge.

The opinion of the court was delivered by: FISHER

In this action plaintiff alleges that a federal statute, 42 U.S.C. Section 402(g), *fn1" denies him equal protection because only widows and not widowers may collect social security benefits under this section. Plaintiff seeks declaratory and injunctive relief. This three-judge court has been convened pursuant to 28 U.S.C. Sections 2282 and 2284 to decide whether Section 402(g) creates sexual discrimination in violation of the equal protection component of the Due Process Clause of the Fifth Amendment. *fn2"

 Plaintiff moved for this suit to proceed as a class action pursuant to F.R. Civ. P. 23. Defendant moved to dissolve the court. Both parties have moved for summary judgment which seems appropriate because the material facts are not disputed. *fn3"


 Plaintiff Stephen C. Wiesenfield and Paula Wiesenfeld were married on November 15, 1970. Paula died in childbirth on June 5, 1972 leaving plaintiff with the responsibility for the care of his infant son, Jason.

 During the seven years immediately preceding her death, Paula Wiesenfeld was employed as a school teacher in Ann Arbor, Michigan, White Plains, New York and Edison, New Jersey. At all times during her employment, maximum contributions were deducted from her salary and paid to Social Security. During their marriage, Paula Wiesenfeld's earnings exceeded that of her husband. In 1970, Paula earned $9808; Stephen earned $3100. In 1971 Paula earned $10,686; Stephen $2188. In 1972 Paula earned $6836; Stephen $2475. From January, 1969 until October 31, 1972 Stephen was employed by Eval-u-metrics, a consulting firm for computer services and industrial engineering. From February 5, 1973 until September 14, 1973 plaintiff was employed by Cyphernetics in Springfield, New Jersey as a technical consultant at a monthly salary of $1,500. On September 14, 1973 plaintiff was dismissed from this position and is unemployed at this time. *fn4" Plaintiff has obtained a Bachelor and a Master of Science degree in mathematics as well as a Master's degree in Business Administration.

 In June, 1972 after his wife's death, plaintiff went to the Social Security Office in New Brunswick, New Jersey to apply for benefits. He obtained child's insurance benefits for his son under 42 U.S.C. Section 402(d). He was informed that he would not be entitled to any benefits under Section 402(g) because such benefits were payable only to women. *fn5" From June to September 1972, plaintiff received $206.90 per month on behalf of his son as child's insurance benefits. From October, 1972 to the present, these benefits have been $248.30 per month. Plaintiff did not seek any further relief from the Social Security Administrators. Indeed, as the defendant has stipulated, *fn6" it would have been futile for plaintiff to pursue any administrative remedy because Section 402(g) on its face granted benefits only to widows, thereby excluding men. Plaintiff then filed this suit on February 24, 1973.


 Even though defendant has stipulated that appeal through the administrative process would be futile, which eliminates 42 U.S.C. Section 405(h) *fn7" as a bar to this action, the defendant contends that no jurisdictional basis has been established by plaintiff. Plaintiff suggests two jurisdictional alternatives, 28 U.S.C. Section 1331 and 42 U.S.C. Section 405(g).

 Section 1331 requires an amount of at least $10,000 to be in controversy. Defendant contends that plaintiff's claim fails to meet this jurisdictional amount. The burden is upon the plaintiff to establish by a preponderance of the evidence that his claims exceed $10,000. Kvos, Inc. v. Associated Press, 299 U.S. 269, 277-278, 57 S. Ct. 197, 81 L. Ed. 183 (1936); Davis v. Shultz, 453 F.2d 497, 501 (3d Cir. 1971); Opelika Nursing Home, Inc. v. Richardson, 448 F.2d 658, 666 (5th Cir. 1971). If it appears to a legal certainty that plaintiff cannot recover the jurisdictional amount, the case must be dismissed. Plaintiff must prove that the legal impossibility of recovering $10,000 is not so certain as to negative his good faith in asserting the claim. Davis, supra at 501 and cases cited therein. The amount in controversy is measured as of the time when the action was filed. Smith v. Maryland Casualty Co., 292 F. Supp. 358, 359 (E.D. La. 1968). Events which occur subsequent to filing which reduce the amount recoverable below the statutory limit do not oust jurisdiction. St. Paul Mercury Indemnity Co. v. Red Cab Company, 303 U.S. 283, 288-290, 58 S. Ct. 586, 82 L. Ed. 845 (1939); Wade v. Rogala, 270 F.2d 280, 284 (3d Cir. 1959).

 The complaint in this suit was filed on February 24, 1973. According to plaintiff's testimony at his deposition, he began employment at Cyphernetics on February 5, 1973 at a salary of $1,500 per month. Plaintiff, then, even if the statute in question permitted men to receive benefits, would have been precluded from receiving any benefits by virtue of his employment under the other applicable statutes regulating the amounts of payments. *fn8" It is also evident that any possible benefits for the period from June 5, 1972 to February 5, 1973 would not even approach $10,000. *fn9"

 It would be a futile act for us to dismiss the complaint for lack of jurisdiction on the ground that the possibility of plaintiff losing his job was too speculative when apparently he is now unemployed. *fn11" Even if this Court were to accept defendant's arguments to dismiss the complaint based upon a consideration of the probabilities on February 24, such a dismissal might not prevent plaintiff from immediately filing another suit presenting the same claims. Given these circumstances dismissal upon these grounds would be no more than an empty formality which we decline to pursue.

 Jurisdiction may be established under Section 1331 if the value of the right which plaintiff seeks to protect exceeds $10,000. See generally, C. Wright, Law of the Federal Courts, Sec. 34 (2d ed. 1970); 1 J. Moore, Federal Practice, Para. 0.96 (2d ed. 1964). The allegation that a Congressional statute which provides certain monetary benefits to some classes of persons and not others in violation of the Fifth Amendment has been found sufficient to satisfy the requirements of Section 1331 even in the Social Security context. Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973); Williams v. Richardson, 347 F. Supp. 544, 548 (W.D.N.C. 1972). Both Frontiero and Williams imply that plaintiff need not wait until enough months have passed so that the total amount of the monthly benefits which might be received if plaintiff successfully demonstrates that he has been ...

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