*1 775 corpora had asserted on behalf of the tion, leaving considerably only a less at MORRIS, Marion P. Linda G. o/b/o making

tractive that in claim the settle Morris, Appellee, again ments the directors had breached v. duty. injunction requested their Secretary RICHARDSON, Elliot L. preserving thus directed at the sub Health, Welfare, Education and plaintiffs’ complaint stance of from de Appellant. Here, corporation. by the struction No. 71-1757. if even tling defendant succeed in should set Appeals, United States Court of many so with franchisees that Fourth Circuit. deny forced court will be class action Argued 6, status, Dec. plaintiff’s complaint 1971. remain will have, essence, untouched. As we in al 28, Decided Jan. ready legally pro noted, plaintiff no has right tected other to sue on behalf of settle; prefer who F.R.

franchisees 23(e), requiring approval

Civ.P. compromise a class dismissal non-approved

action, does not bar settle

ments with individual members which rights upon

have no effect others. of Kalodner, Eisenlohr, Cf. Webster v. Inc.

supra. with

Plaintiff concludes request

standard hold the or that if we unappealable,

der we should treat pe

appeal to file a as motion for leave

tition for make mandamus. We it, responses. treat

standard We will so deny it,

but was well will since the order range in

within the wide of discretion management of class actions neces

sarily judge by F. accorded the district 23(d). In in Donlon

R.Civ.P. As said

dustries, supra, Forte, F.2d Inc. v. 937, may do not—is

at “we not—indeed respect orders

sue mandamus with discretion,

resting in the district court’s extraordinary circum

save most remotely presented here.”

stances not 90, States, v.

See Will United 389 U.S. (1967); L.Ed.2d S.Ct. (2

Pfizer, Lord, Cir. Inc. v. 449 F.2d 119

1971). appeal

The motion to dismiss Treating

granted. appeal a re- as petition

quest leave to file a Judge, Bryan, mandamus, deny vacate it. we We V. Albert filed sented stay. *2 Kimmel, Atty., Dept, of Jus- Michael Atty. III, Gray, Asst. (L. Patrick tice Fleischer, Atty. Dept, of Gen., H. Walter Upton, S.

Justice, U. Warren W. brief) appellant. Atty., on the Madison, Va. Jr., Schlaegel, W. Lee E. ap- brief) Schlaegel, (Avis on the & pellee. BRYAN, BUTZ- WINTER Before Judges.

NER, Circuit PER CURIAM: security Plaintiff, recipient of social 1957, adopted disability since sought (3) con- granddaughter was decreed. in 1966 and his County local had no her imme- ceded insurance benefits for child’s diately pri- agency, public child-placement was decreed. vate, existing application and it is further conceded His under the then adop- Virginia requires require- law denied West statute was because *3 county in the adoption must be decreed oc- tions ment of the that the statute adoptive parents years reside. W. plaintiff the cur had where within two (1966). disability Va.Code 48-4-1 entitled to benefits § become met. the Securi- was not ty In 1968 Social II 821, Amendments of 81 Stat. effective, they and extended

became Security Amend- Prior to the Social after-adopt- child’s insurance benefits to adopted child of a re- ments of 1967 the disability ed children beneficiaries re- of eligible disability cipient was of benefits gardless adoption place of when the took only if he insurance benefits for child’s long other conditions of the so as the “legally adopted the . . . before was Plaintiff then sub- statute met. were beginning period of end the 24-month application mitted a second for child’s the the month [after month] with by denied insurance benefits. was [recipient dis- such of which individual ground Secretary that the the adoption on the ability entitled to became benefits] by supervised a had not been 202(d) ability insurance benefits.” § child-placement agency public private or (8) (D) Act, 402 of 42 the U.S.C.A. § statute, and amended, as as the Sec- the (8) (D). (d) re- The 1967Amendments retary’s regulation, required. added, provision as an this but tained ground sought qualification, that of in the alternative Plaintiff review district which, noting the child: court that under West Virginia adoption an must take law (E) legally adopted by in- such was

place county of the in the of residence dividual— plaintiff’s adopting parents that and (i) place adoption in an took which county public have a residence did of not public supervision under of the a or agency private placement center or or private child-placement agency, children, for tary’s concluded that Secre- the (ii) adoption by in an decreed court a regulation, defining the term jurisdiction competent of the within agency” “public child-placement not to States, United court, include a invalid and ordered was (iii) immediately preceding on a date granted, insurance to be child’s had which such individual continuous- appeal by F.Supp. the In this 335 year ly one resided for not less than Secretary, the condi- we conclude States; within the United not met and tions of the statute were (iv) prior aat time attainment regulations to the the statute and the age by of such child. We, therefore, were reverse. valid. 202(d)(8)(E) Act; of the § U.S.C.A.

I 402(d)(8)(E). § Secretary’s regulation, The adoption proceeding C.F.R. filed in The was 404.323, implements the Raleigh County In § statute. the of Criminal Court stating addition to several condi- (acting as the Juvenile Court of prescribed by (§ tions Virginia. County), the statute West On the same 404.323(a)(5)(iii)), “public day filed, proceeding it defines three was child-placement agency” govern- things (1) “any as the matter re- occurred: agency by mental authorized a for State ferred to the Town Policeman Whitesville, ., governmental agen- Virginia, or local West for investi- cy (2) component place gation report court, of to child either to the a and private adoption. hearing policeman in a home for was held which the at court; reported favorably adoption, also term does include a it for the and not investigator, not equal protec does include We see no denial of juvenile officer, governmental Virginia or other tion in this West ease. law agency solely appointed permit Virginia official or does West State De purpose conducting partment per of an investi- of Welfare to assume the gation care, pro- custody guardianship adoption manent for the court in an any ceeding governmental throughout child unless of- such state agency authority ficial or consent to the child in has the of the proceeding. place private adop- children in an W.Va.Code § homes (1966). Thus, 404.323(c)(1)) plaintiff’s (§ tion.” 49-3-1 had granddaughter relinquished by been her By Act, terms of § Department parents Welfare, it 202(d) (E), (8) after-adopted child of investigated suitability could have disability security a social insurance re grandparents parents adoptive her as *4 eligible cipient, in order to be child’s by adoption and consented her to her benefits, insurance must meet at least grandparents proceeding Ra in the in two The first that conditions. is the leigh County. cannot, therefore, It be adoption place supervi took under the argued provisions that the literal of the public private child-place sion of a or regulation or have statute the could not agency, ment and the is the second that met, and, therefore, stat been that the adoption by compe be decreed a court of regulation ute the discriminates jurisdiction tent within the United against adopted in children extending eligibility States. In for child Virginia. County, West beyond insurance children benefits to reasons, judgment For of these the adopted years those within two the district court adoptive eligible parents their became Reversed. disability benefits, Congress intend guard against two-step process ed a to eligibility by Judge BRYAN,

an abuse of liberalized ALBERT V. adoptions purpose for the sole of creat (dissenting): ing eligibility for child insurance bene I would affirm the decision of the Cong.Rec. By es 33196-7. fits.. tablishing Judge District on Field’s Court separate require the two Richardson, F.Supp. 1178 Morris v. ments, Congress evidenced no intention 1971). (S.D.W.Va. April 28, pe- In the permit requirements to one of the to regulation here, culiar circumstances the suffice for the the This was con other. unwarrantably seems me to be re- Hagler Finch, clusion reached in v. excluding arbitrary strictive in and the (9 1971), F.2d 45 Cir. where the suita statutory adopting court from the bility grandparents’ adoption of of their “public phrase child-placement agency”. grandchild investigated only by an was justify interpreta- The facts do that not examiner, adoption employee an of the tion of the statute in order to effectuate decreeing adoption, court where the and its terms. was, therefore, it held the was that child ineligible for child possibility insurance There no of abuse of was Act; agree. adoption under the and we fol the of this law because Secretary’s regulation lows that stat of the child occurred before the benefits ing legislation a not constitute does her foster available to were agency” “public child-placement Moreover, is in ac parent. much to it was too and, hence, any anticipate cord with the statute is val expect him such in- of id, firmity adoptive in the instant in status. the child’s accomplished case was in a manner require not out-of-the To him seek an eligible qualifies which child county agency as one law de- when State to receive child under insurance benefits be accom- manded 202(d)(8)(E) residence, county Act plished of the or the Secre § regulation. tary’s majority would also unreasonable. “relinquish” grandfather have thereafter endeav- to the State

child to me to be adopt her. This seems

or to beyond of the statute. exaction

well al., MASSIE, Jr.,

Joseph et Edward Appellants,

Stanley HENRY, of Board Chairman Haywood County, C., N. Education al., Appellees. et

No. 15325. Appeals, Court of

United States

Fourth Circuit. May 4,

Submitted on Briefs 1971.

Decided Feb.

Boreman, Judge, Senior Circuit

sented and filed an

George Daly, Jr., Charlotte, C., S. N. on appellants. brief for Ward, Jr., Morgan, Hallett S. C., Waynesville, Ward Brown, & on N. appellees. brief for HAYNSWORTH, Judge, Before Chief WINTER, and BOREMAN and Judges.