*1 Re- Justice, Force Task ministration 83, (1967); Da- 64, port: Corrections WILLIAMS, Appellant, 128, (1969). vis, Discretionary Justice institution’s Chief Clas- Finally, the RICHARDSON, Parole, Warden, L. Elliot sification and will be aided in of Prisons the Bureau Welfare, Appellee. recommenda- their review of affirmative they Special tions of Offender status 1017, 74-1622. Docket No. reasons for action are aware of the Appeals, taken. Inasmuch as the Chief of Classi- Circuit. Second of Prisons reviewed fication and Bureau designations as a matter of course such 9, June Submitted States, 1974, su- until Catalano v. United 26, 1975. Sept. Decided 349, pra, F.Supp. at these essentials meaningful clearly review are far from onerous.

Whatever additional burden must be by prison

borne administrators as a re- safeguards procedural

sult of the here insignificant.

specified Special is Of- represent “comparatively

fenders small population inmate

proportion of special manage- presents prison

[which] problems, requires special han- Policy of Prisons

dling.” Bureau State 30, 1974). (April Only

ment 7900.47 Danbury 800 inmates F.C.I. were States,

so classified. Catalano United roughly

supra, at 352. And 23,500

500 of the inmates in the federal

penal system designated in 1974 were

Special Offenders.20

Affirmed. 1967, parole prisoners New officials our York State conduct- number of affected 20. The_ 11,000 compared parole hearings). with cases ed than ruling more minuscule when McDonnell, requested be extend also Wolff 418 U.S. at would the relief in which system. (in 1973, prison prisoners S.Ct. 2963 offi- in a federal ed to all correctional 19,000 hearings, F.2d cials conducted misconduct e.g., v. Oswald, Menechino 1,173 2,023 denied, parole hearings, 1970), (2d revocation 400 U.S. cert. 409-10 probation hearings). (in revocation 91 S.Ct. L.Ed.2d 635 *2 Stewart, Atty. Asst. U. S. I. Carl D. N. Atty., E. Trager, U. S. (David G. Atty., Bergman, B. Asst. U. S. Y., Paul brief), appellee. for on the FEINBERG, and VAN OAKES Before GRAAFEILAND, Judges. Circuit OAKES, Judge: Circuit involves the entitlement appeal This benefits under Sec- to insurance a child Act, 202(d) Security Social de- 402(d).1 That entitlement is § U.S.C. of the infant as a on the status pendent wage earner un- of the deceased “child” Act, 216(e) U.S.C. der here, wage earner James 416(e).2 The § Williams, the law of was foreclosed domicile, legal- Virginia, from West his here, grandson infant his adopting the ly Lee Williams. waiting period months’ requires a six may be even adoption proceedings fore initiated,3 and James Williams died two A grandson his was born. after months held, however, that hearing examiner “equitably adopted” un- the infant Virginia by of West the law der may hence that he grandfather, 216(e) legally to be the under § deemed of the earner.4 The adopted child Appeals of the Security Council Social Administration, specifying without talking whether it was about the West Schatz, Y., Lynbrook, B. George N. for “equitable adoption,” law of re- appellant. spouse 402(d) provides: after such individual’s death but § 1. (A) proceedings if (1) Every (as defined in Section child been instituted child had such individual 416(e) title) of an individual . . of this before or such child was fully currently individ- who dies a or insured surviving such individual’s ual, if such child . spouse (i) before the end of two upon (C) dependent such individual was' day on which such individual died . died, (ii) at the time of individual such shall be entitled to 48-4-l(b) provides: . . such death 3. 14 W.Va.Code § benefit. child’s insurance petition No for an shall be made presented sought Security or until after the child 2. Section 416(e), provides: shall have lived in the home of U.S.C. adopting parent parents period for a (e) child or means term “child” of six months. legally child of individual (1), adoptive per- 4. The . . of clause For grandmother, was be deemed as of the date of death infant’s held son shall entitled to individual, legally adopted be the mother’s benefits. This entitlement of an turns on questions presented person concerning the same such individual if such child of child’s benefits. of such individual’s death at the time legal- household and in such individual’s ly adopted surviving such individual’s waiting months’ mandatory period six and denied hearing examiner versed filing petitions of all prior to the can be on the basis that “[t]here legal adoption. sufficient without could have of time so that lapse thereafter, Shortly March applicable legally adopted been died of a cerebral hem- *3 earner’s wage law before the state orrhage. With funds, resultant lack of - Appeals also held The Council death.” Williams, Lillian his wife and Wendell’s Lilli- grandmother, that the the fact that grandmother, could pursue not Williams, child three adopt did adoption procedures until more than two was im- after her husband’s death years years her after husband’s death. The made no mention of the It material. legal adoption proceedings pursued were was finding that she hearing examiner’s to completion November years two so within the to do unable 216(e)(l)(B)(i) of to in Section referred Secretary argues The that under Sec- 416(e)(l)(B)(i), be- 42 U.S.C. § 216(e)(1), note 2 funds, unemployed no was she had cause Wendell, could not be “deemed” to be defray expenses to unable and legally James Williams’ adopted child Virginia proceeding.5 West meaning of subparagraph (A) petition Ap- to review Appellant’s “proceedings since for the adoption of ruling by the Council was denied peals the child” had not been by “instituted District before his death. The [James Williams] York, District of Walter New Eastern Secretary also maintains that subpara- Bruchhausen, Judge, without discussion graph of Section 216(e)(1) ap- cannot points, on the it legal basis that ply here Wendell since was not “legally by substantial evidence. supported adopted by surviving [James Williams’] reverse. We spouse” before end of years two aft- er his death. The Secretary further ar- simple, The facts are compelling and gues there could that be no “equitable dispute. in The infant was born on adoption” James by Williams under, e. 29, 1958, January and Lillian Celebrezze, g., Davis v. 239 F.Supp, 608 home, Virginia West Williams’ son of (S.D.W.Va.1965), since West Virginia law 14-year-old unmarried, their and some- imposes a waiting period six-month be- institutionalized daughter, times Geral- adoption proceedings fore can be com- The child has lived his dine. with menced, 48-4-l(b), 14 W.Va. Code § all his life parents and at all times he “equitable adoption” the law of may ap- supported treated and financially by ply only if the in question could as if he were them their The child. doc- legally have been effected. Spiegel v. him, who delivered tor other Flemming, (N.D. 188-89 family, members and friends all 1960). Here legal Ohio corroborated immediate and constant could have been effected James Wil- of the grandparents intention to adopt his during liams lifetime since his death age because of his Wendell mother’s prior expiration occurred to the Indeed, impairments. mental when waiting period. six months’ old, was less than two months Wendell grandparents respectable arguments went to local While court- commence each of contrary to the first proceedings, house and third made,6 advised points may were we need Virginia’s but not decide appellant, case is here And Meadows 5. The because Lillian Williams, (S.D.W.Va.1972), moved to New Davis York. (S.D.W.Va.1965), generous clearly requisite reading 6. Under a there intent of the Social Se- and con- Act, might part curity argued “proceed- it duct on James Williams’ essential to that call “equitable adoption” ings” grandfather play. were commenced the doctrine into by going his death Under view the fore the West this disentitlement seeking necessary papers. brought waiting period the six-month file the about undisputed raise, requires it evidence for here is clear they the issues equitable adoption that an that the conclusion enough under by Lillian under West Vir Williams, appellant and the of Wendell place. law did take After Wen equitably ginia did grandmother, child’s statutorily required six months of James’, dell’s two after home, in the is to earner’s say, July there was no equity concept impediment under West law to by the recognized both legal adoption by grand Wendell’s allowing bene- purpose of courts mother, Lillian and thus no im with compliance statu- strict absent fits to the occurrence of pediment Broussard v. Wein requirements. tory adoption. Spiegel Flemming, su 1974) (eq- 499 F.2d berger, pra. child entitled uitably adopted *4 parties The acts and conduct of the benefits); insurance Security Act life Geraldine, here, daughter her Lillian and Secretary of v. mother, provide 14-year-old req- the the and 1970) (equitably “clear, strong, satisfactory evi- uisite adopted child entitled to that it was the intention dence” of both benefits); disability insurance Davis mutual, adopting the and real in Celebrezze, supra, F.Supp. 239 at 610 — 11 unwritten, though agreement that Lilli- adopted child entitled to child (equitably adopt an Williams Wendell. See Mead- benefits). insurance Richardson, supra. ows v. The hearing child, 216(e)(1)(B) the Under Section examiner found that Wendell, the “le- may be deemed to be [subsequent to the birth of the child wage child” the earner gally child, . the mother of the Ger- adopt- child was if “such Williams, and the claimant aldine years Williams within two by Lillian ed” agreed wage among the earner them- questions The for us of James’ that because of the youth selves of the equitable there was an whether are child, mother of the and her mental grandmother, by the adoption impairments that in the best interest years within two of the death wage child the earner and the husband, earner, wage the under of her claimant would this child as equi- law and whether an own. their spouse within two adoption table 216(e) require- satisfies Section Although hearing examiner focused ments. findings upon in his the agreement be- parties tween before the wage earn- adoption doctrine is equitable er’s evidence is that Virgin tradition in West an established same and intentions Richardson, F.Supp. 347 265 ia: Smith grandmother prevailed mother and six Meadows v. Richard (S.D.W.Va.1972); months after the birth of the child (S.D.W.Va.1972); 154 son, F.Supp. 347 clear, continuing, constitute unchal- F.Supp. Pittsenbarger lenged evidence of an adoption Slaughter (S.D.W.Va.1972); at that time. Between the time of the Gardner, F.Supp. (S.D.W.Va. earner’s death wage and the ultimate Celebrezze, le- 1968); supra. Davis prevent equity regarding wage should not from as H.R.Rep.No.544, earner’s lifetime. See Cong., 52; that which should be S.Rep.No.744, done done. This would 90th 1st Sess. 90th regards payable as Cong., hold true at least Cong. 1st Sess. U.S.Code & Adm. January, nonbinding, News, 1967, p. if en- Spiegel 2834. But cf. v. Flem lightening, view of ming, (N.D.Ohio the General Counsel of 1960) (trial opinion legislative commenced, adoption is based on the legal HEW. His adoption but sub Amendments, history pertaining ject adjustment), to the 1968 to and see Davis v. Cele Pub.L.No.90-248, 150a, 156(b), brezze, supra, §§ which added at 613. subparagraph (A) alternative where adoption proceedings were commenced in the November, original Act which added adoption in and in- language gal hearing, subparagraph relating until the date to deed wage by the grandmother with earner’s solely surviving spouse lived does not discuss whether supported wholly by was “le- mother; gally adopted” never he was even informed intended to encom- pass adoptive mother all relationships natural was Geraldine. that his which efficacy Davis v. comple- state law As in designed prescribe proceedings prior tion of the manner in November, 1961, prevented which the “only relationship is created.7 Con- gress well, taking place earlier knows full however,' how to money pay spell out what it costs means when lack of it wants to require adoption . . . proceedings 202(d)(8), it did 611-12. 402(d)(8),8 or in the 1972 amendments question remaining decision, to the first sentence of then, is whether Congress intended in which a grandchild treat as a child if 216(e)(1)(B) to require that a “legally after the death of [the to be adopted by [the grandparent] by grandparent’s] [the sur- surviving spouse,” be earner’s] viving spouse in that was in formal court proceedings aby decreed competent jurisdic- two-year period provi- of that tion within the United States.” 42 U.S.C. *5 sion, it is or whether sufficient that the 416(e)(3)(B) (emphasis § added).9 The locality recognize law of the concept phrase “legally adopted” as used in Sec- adoption part of as a of its tion which we are construing law, that and equi- child be carries no such modifying phrase specify- adopted, tably proceed- without formal ing that proceedings are ings, two-year period. We required. From this it could well be de- interpretation latter take the light duced that term “legally adopted,” policies remedial underlying the itself, by incorporates no mandatory no- whole, see, a as to Act as which g., e. tion proceedings, of formal and can in- Richardson, v. Norton 352 F.Supp. 596 clude children who have a legal obtained (D.Md.1972); Finch, Branch v. adoptive status through the doctrine of (D.Kan.1970). equitable adoption. legislative history of the Act re- little specific veals of an body moment There is entire of case law problem interpreted narrow of the phrase construction we which has “child” Report here. Senate it in the of appears as first clause S.Rep.No.2388, supported by any accompany being 7. not H.R. child was other person, spouse quoted Cong. adopts in 1958 and if the U.S.Code & worker’s Admin.News p. at states: the child within 2 after the worker dies. adopted (3) an Benefits for child after the death worker’s 402(d)(8)(D) provides eligibility 8. 42 § U.S.C. adoptable An child as a memoer of only to for certain benefits children who are family supported by is, and a worker’s him “legally adopted by eligible] [an individual in point purposes view of of of competent a an decreed court of security program, just social as much in jurisdiction within the United States.” replacement support of need the child passing It is of interest here to note that received from the worker had as is the certainly of the effective date of the 1972 If own child. after the worker’s worker’s amendment, payable for months after surviving spouse adopts death December, Wendell would to all intents should, for receiving child purposes qualify grandchild as James’ benefits, insurance child’s treated as an decree since a formal had been entered and his adopted child of deceased worker. The Geraldine, regular making committee-approved provides pay- bill support contributions to his at the time of to a child in of benefits such cases if satisfying require- James’ thus the other time of the worker’s death the child was ment of the amendment. household, of the worker’s member respect sentence same in 202(d)(8)(D), first —“The 402(d)(8)(D), means the child or legally ‘child’ term not surprisingly, however, of an individual” —to in- child since that statute specifically adopted child. equitably requires, an Under note 8 clude that the child be term “child” “legally view bare includes this ... adoptive relationship having in an decreed

one court of compe- jurisdiction tent the United efficacy law.10 under state e.g., States.” v. Weinberger, supra; Broussard Health, Secretary v. Education Smith case, however, In our unlike in Craig Welfare, supra; v. Richard- Smith, “legally the term adopted” is Richardson, v. son, Meadows su- supra; by any prerequisite not cabined of for- Richardson, 362 F.Supp. Hall pra. Cf. proceedings. mal To the contrary, Sec- (S.D.Tex.1973) (equitably adopted 216(e)(1)(B) merely requires tion that the benefits); to retirement entitled child “adopted child” be Richardson, Holman surviving spouse” such individual’s with- (equitably adopted (E.D.Tex.1970) two years following in the the insured’s benefits). age to old But cf. entitled As we believe the court in Craig (5th 438 F.2d 120 Glaze realized, the remedial purposes of Sec- 1971) (no contractual relationship); Cir. 216 do not support a niggardly con- Hayes of the term “legally struction adopted” 1969) 216(e)(1), as used in Section see Craig v. parents); natural (no consent Rader Finch, supra, 425 F.2d at note 10 325 (E.D.Ky. supra.11 express Absent some indication 1966). On their face these cases would congressional intent impose support a seem to construction of the requirements procedural on the breadth “legally adopted child” to include term, of that we do not believe that an adopted, is, equitably in the one le- equitable adoption, which given full relationship of a gal child under the law law, legal effect under state should be *6 The difficulty of the state. these cases legal adoption denied status as a however, is that some present, of them purposes of 216(e)(1)(B). Section Had have construed “legally Congress meant to burden access to ben- appears as it adopted” elsewhere in the efits for children under that sec- Security Act in the narrow Social sense by requiring tion adherence to some for- completed formal adoption proce- of a proceeding, mal court it would have used Finch, Craig 425 (5th dure. F.2d 1005 language explicit less than it used in 1970), gave such a Cir. construction to 202(d)(8), 42 402(d)(8), Section U.S.C. § 202(d)(9)(B), what was then Section rely- in the 1972 or amendments to the first ing upon congressional contemplation of of clause Section 216 even in or. recognized by law in “proceedings” Sec- 216(e)(1)(A), where initiation “pro- of 202(d)(8). n.4, 425 F.2d at 1007 tion ceedings” required. Secretary Health, 216(e)(1)(B) 1008-09. Smith of stands without reference to Welfare, any Education does the decree compe- court of usually This been done in the context of scope This section has said been to limit the of determining satisfy whether the child 216(e). would Craig the term “child” in Section Finch, 1005, law inheritance (5th the state 216(h)(2)(A), test of Section 1970). 425 F.2d Cir. 416(h)(2)(A): 42 U.S.C. § Circuit, 11. The Fifth in Glaze v. determining applicant whether an In is the 120, (5th 1971), 438 F.2d Cir. has even fully currently child or insured questioned propriety limiting of the term subchapter, individual for of this “legally adopted” involving to cases Secretary apply shall such law as would proceedings itself, where the statute then Sec- determining applied in devolution of 202(d)(9), requirement tion proceedings. refers to a of such personal property intestate the courts go We need not so far to find . of the State in which insured [the eligible 216(e)(1)(B) Wendell under Section was domiciled at the time of his individual] this case. death . non-statutory completion adopt. or to the of Er jurisdiction tent Erlanger, langer v. 102 Misc. two-year period.12 within the proceedings (Sup.Ct.), aff’d without opin N.Y.S. reasons, we conclude that these For ion, App.Div. N.Y.S. 1084 requirement 1918); (1st Dep’t. Besch v. Murphy, 190 grandmother adopted” 539, 544, 59 A.2d (1948); Md. meaning within Note, Equitable Adoption: They Took when, was fulfilled Him Into Their Home And Called Him provision, time limit of that two-year Fred, (1972). 58 Va.L.Rev. fully legal and adoption became en- appellant alive, long So it is law under forceable that, unlikely in matters unrelated to the equitable adoption. Ac- the doctrine Act, Security Social Courts of West qualifies cordingly, Wendell under Sec- would treated her the benefits there made prior son as her available. statutory culmination pro- to the district We reverse and remand ceedings. The doctrine of equitable judg- to enter court with instructions would have come into play, if awarding benefits accordance all, only appellant’s opinion. with this My my endorsement of brothers’ defi- GRAAFEILAND, Judge VAN Circuit equitable adoption nition of is therefore (concurring): usage solely limited to its framework Social Security Act holding

Because our accords with the peculiar facts and under of this purposes of the case. Security remedial must, however, I express I concur. my greatly expanded concern over

concept “equitable of the doctrine of

adoption” emerging which is as a result and similar Social Security

of this deci- g., e. Broussard v. sions. Weinber (5th 1974); 499 F.2d 969 Cir.

ger, KOPET, Appellant, Samuel 1970).

Traditionally, the doctrine of has served as the basis for ESQUIRE COMPANY et REALTY property rights against a claim al., Appellees. *7 adopter, estate of a deceased would-be No. Docket 75-7047. and an not been during the legally enforceable lifetime of Appeals, adoptive parent. The relationship of Second Circuit. closely and child is a personal Sept. 1975. Argued one; and, rule, general as a equity will a to create not enforce contract such a Sept. Decided Where, relationship. as in West Virgin- ia, statutory there exists scheme of itself

adoption, precludes the statute compelling performance ply adoptions 12. Some 216(e)(1)(B). cases referred to Section under Section 216(h)(2)(A), 416(h)(2)(A), adopted by surviving spouse as limit- Since children U.$.C. scope ing 216(e) by imposi- obviously of Section its the insured’s death can “inheritability” qualify insured, of an test for children as an who intestate heir of the re- apply solely upon 216(h)(2)(A) for benefits under that section. We liance lieve, however, inheritability eligibility test of define the limits of would render 216(h)(2)(A) ap- meaningless. does not and cannot