IN THE UNITED STATES DISTRICT COURT Y FOR THE EASTERN DISTRICT O by sge21080

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									                                IN THE UNITED STATES DISTRICT COURT                                                                        Y.
                               FOR THE EASTERN DISTRICT OF LOUISIANA


NANCY YOUNG HART, on her own behalf,                                            as                 X
guardian of her minor       child JUDITH                                      CHRISTINE            :
HART, and as Administratrix       of the                                      ESTATE-of            J
EDWARD W. HART, JR.,                                                                               .
                                                                                                   .

                                          Plaintiff,

vs.
                                                                                                   .
SHIRLEY CHATER, Commissioner            of Social                                                  :           Civ. Action
Security;     M.J. FOSTER; Governor          of the                                                :           No. 94-3944
State     of Louisiana;      and RICHARD IEYOUB I                                                              Section    N
Attorney     General    of the State      of Louis iana;                                           :           Magistrate                 5
in their     official     capacities,     and their
employees,       agents   and successors,                                                          :
                                                                                                   :
                                          Defendants.                                              :


                          PLAINTIFF'S    MEMORANDUM OF LAW IN SUPPORT
                                 OF HER MOTION TO VOLUNTARILY
                                   DISMISS ALL CLAIMS AGAINST
                                  DEFENDANTS FOSTER AND IEYOUB

           Pursuant            to      Rule       41(a)(2)               of      the       Federal             Rules           of        Civil

Procedure,             Plaintiff             respectfully                submits           this        Memorandum              of Law in

support          of      her        Motion        to      Dismiss              without            prejudice                her      claims

against          Defendants             Foster1          and      Ieyoub             ("state       defendants").                         State

defendants             have        effectively            conceded             plaintiff's               state         claims.                See

Memorandum             Filed         on Behalf           of      State         Defendants,              M.J.          "Mike"        Foster

and    Attorney             General            Richard           P.      Ieyoub,           in     Support             of      Motion             to
Dismiss          [hereinafter                 "State      Defendants'                   Second         Motion          to Dismiss"]

at    5;       State      Defendants'                  Memorandum               in      Opposition               to        Plaintiff's

Motion         for     Summary          Judgment            at    1.          In addition,              due      to        a change              in

federal              defendant's                 legal           position                since           the          most          recent

           1
          Counsel    for state   defendants      note that    M.J.                                                Foster      is now
the   Governor     of Louisiana.      Accordingly,      plaintiffs                                                     substitute
Governor    Foster    for Edwin Edwards     as a defendant         in                                             this    action.
                                                                                                                        . .




I




    administrative                          review                of          this           case,              -see           infra,                the           state
    defendants'                participation                           in this            action             is no longer                       necessary             for

    purposes             of    resolving                   the         claims          against                the      federal                  defendants.

                                                            Statement                 of        the     Case

                Plaintiff                 initially                filed             this            action         on December                         12,        1994.

    On February                10,         1995,           state         defendants                    moved           to      dismiss               the       action

    against            them,        alleging                lack         of     subject               matter           jurisdiction                        over       the

    claims            and      immunity                 under            the          11th            Amendment;                    in      addition,                 the
    state           defendants              urged           this         court            not         to exercise                   its         discretion                 to

    take            supplemental                  jurisdiction                        of        the       state               claims.                See           State
    Defendants'                Memorandum                       of Law Filed                    in     Support              of Motion                to Dismiss

    [hereinafter                    "State            Defendants'                     First            Motion           to          Dismiss"].2                     This
    Court            continued               without               date              consideration                      of           this          motion             and

    plaintiff's                Motion             for           Summary              Judgment                on August                    24,      1995.

                On February                   10,          1996,             State          Defendants                      filed           an       additional
    Memorandum                in     Support                of     their             Motion             to      Dismiss,                   realleging                 the

    11th      Amendment                  and supplemental                            jurisdiction                   grounds                 of their               prior

    Memorandum.                    See State                Defendants'                     Second            Motion            to Dismiss                    at     2-3.
    In      addition,                state            defendants                      further                alleged                 that          no      case            or

    controversy                existed                against                them because                     all      action               taken          by state

    officials                 had         been             in      favor              of          a     finding                 of          Judith             Hart's

    legitimacy.                    Id.       at       5.

                State         defendants                    have         also             filed          both          a Motion                   for         Summary

    Judgment,               and a Memorandum                            in     Opposition                     to Plaintiff's                         Motion           for

                2
                       The federal                     defendant   also  filed  a Motion   to Dismiss    on
    February             16, 1995,                    which    she has now withdrawn.      See Defendant
    Chater's            Cross-Motion                     for Summary Judgment    at 7 n.3.

                                                                                      2
Summary           Judgment.                       In     this          latter           document,                 state            defendants                     claim
that      "Judith                 Christine               Hart          has been                recognized                as being                 legitimate

by     various                   state          officials."                           State            Defendants'                       Memorandum                   in
Opposition                   to      Plaintiff's                       Motion            for         Summary             Judgment                    at      1;     -see

also      id.          at        2 ("state                officials                 have          so      far        recognized                      the          minor

plaintiff's                      legitimacy").

          Defendant                  Chater              has         filed         a Response                to the             State           Defendants'

Motion          to Dismiss                   at        2, conceding                     that       the       state            defendants                   are       not
necessary               parties                to       the        resolution                  of plaintiff's                          federal             claims.

See Response                      of Defendant                       Chater         to the           State         Defendants'                        Motion          to

Dismiss.

          Based               on         the            representations                           of         the          state               and          federal
defendants                  in      their           most           recent          papers,              on the           morning                of        February

21,      1996,              counsel               for         plaintiff                 contacted                 counsel                 for        the          state
defendants                   to       discuss                  a      stipulated                  voluntary                    dismissal                     of      the

claims           against                 them          pursuant               to    Fed.          R.      Civ.          P.         41(a)        (1).              As of
the     filing              of      this        Motion,               plaintiff's                    counsel             has           had no response

to     this       offer.                 As a consequence,                               plaintiff                 is         filing            the        instant

Motion           for        voluntary                   dismissal.

I.        Defendant      Chater    Has Changed         Her                                                   Position.               as to Whether
          Consideration         of  the   Constitutionality                                                                   of      State  Law is
          Appropriate      in Determining        Eligibility                                                            for         Social  Security
          Survivors     Benefits.

          When Nancy                       Hart          originally                     filed          her        claim             to        enjoin              state

defendants                   from          enforcing                  Louisiana                  laws        to     bar            a declaration                      of

legitimate                   filiation                    of         her        daughter                 Judith               Hart            to       her         late

husband            Edward                  Hart,              Jr.,           and        for        Social               Security                   survivor's
benefits,               defendant                      Shirley               Chater            was      unclear                as        to     whether              the

                                                                                    3
Social              Security             Administration                             has        the         authority                  to     determine                  the

constitutionality                              of          state              law        as      it         is      incorporated                             into       the
federal                Social                 Security                      Act          by           operation                     of        42             U.S.C            §
416 (h) (2)            (A) .        See Decision                          of Appeals                  Council,                 at     12 (declining                      to

decide               the          Question                      of          whether                  the          Commissioner                           has          such
authority);                  Lawrence               v.          Chater,              1995 U.S.                  App.      LEXIS             3351             (4th     Cir.
1995)          (holding                that         unconstitutionality                                     of      state             intestate                     scheme

did      not        bar      application                         of     that         law        to determine                        eligibility                      under

Social              Security              Act),             cert.              qranted,                    judgment                 vacated                  and      case

remanded,                  116      S.        Ct.        604            (1996);            Parsons                for          Bryant              v.        Health           &
Human Services,                          762 F.2d                    1188         (4th        Cir.         1985);           Jones            v.         Schweiker,
668      F.2d          755         (4th        Cir.             1981),             vacated              on other                    qrounds,                 460 U.S.
1077          (1983),             on      remand,                     712      F.2d            924         (4th         Cir.          1983);                 see      also
Plaintiff's                  Memorandum                     of         Law in            Opposition                 to Defendants'                             Motions

to      Dismiss             at     6-8         (noting                  "substantial                       doubt"          as to whether                             state
law      issues             could         be resolved                          by        the         Commissioner).                               In     the         above
cases          and others,                    the      Commissioner                            took        the      position                  that            "even      if
a state               intestacy                 statute                  is       unconstitutional,                                  the          illegitimate
child          is     not         entitled                 to         benefits."                     Parsons,              762            F.2d          at     1190.
          It         was         based         on        this            uncertainty                       in      the         law         that          plaintiff

joined          state             defendants                     as necessary                        parties             to         the      determination

of        her              federal                  claim,                     insofar                     as       it      encompasses                                 the
                                                                                                                                   _'
constitutionality                             of Louisiana's                             intestate                 succession     scheme.                              See
Plaintiff's                  Memorandum                     of         Law in            Opposition                 to Defendants'                             Motions

to      Dismiss              at      9-11.                  It         was        plaintiff's                      belief                  that          the         state
defendants'                  presence                 in         the        action         would                ensure          an adjudication                          of


                                                                                     4
the         state           law       questions                      that      are          incorporated                       into          the      federal

statute,              regardless                    of      the         position                 taken           by     the      Commissioner                       in

this        action.

             In separate                litigation,                         defendant              Chater              has since             changed           her

position,                   and         now              "interprets                       the           Social               Security                Act           as
 'requir[ing]                      a determination,                            at        least           in      some circumstances,                                of
whether             the      state           intestacy                  statute             is         constitutional.'"                            Lawrence
v.     Chater,              116 S. Ct.                604,           605      (1996)              (quoting             Brief          for     Respondent

Chater).                The Supreme                      Court          further             noted              that      the     Social             Security

Administration                       intends              to         apply       this            "new statutory                       interpretation
. . . in             future           cases          nationwide."                          Id.         at      610.       Finally,                 defendant
Chater,              in       her           Cross-Motion                        for         Summary                   Judgment,                implicitly
assumes              that            this           Court              has          the          authority                to          determine                the
constitutionality                            of      the         Louisiana                 intestate                   succession                  scheme       as

it     is        incorporated                     into           the         Social             Security               Act.           See          Defendant
Chater's              Cross-Motion                        for         Summary              Judgment               at     11-24.               Because           of
this        change           of position,                       it     now appears                     certain           that         the      this        Court
has         jurisdiction                       to          determine                      the           constitutionality                             of       the
application                   of      Louisiana                      laws      as         they          are       incorporated                      into       the

Social              Security                Act,           without                  the          participation                        of       the          state
defendants.

II.         State      Defendants                          Have   Conceded                              that          Judith            Hart          is       the
            Leqitimate       Heir                    of     Edward Hart,/-3r.

            In      their          Motion            to     Dismiss,                 the         State          defendants                  concede          that
Judith           Hart         is      the         legitimate                  heir          of         Edward          Hart,          Jr.           As state
defendants                  note,           "state          public             officials                    who have            taken         any action
regarding                   plaintiff                     related                   to          this            matter            have              affirmed
                                                                                    5
                                                        ‘,
                                                                                                                                -‘.


.   t.




         paternity."                       State             Defendants'                     Memorandum                  in      Support                 of     Motion          to
         Dismiss           at        5 (emphasis                        added).              Similarly,                 as noted                    above,        in    state

         defendants'                      Memorandum                      in      Opposition                     to      Plaintiff's                          Motion        for
         Summary               Judgment,                they             aver         that           "Judith            Christine                    Hart        has       been
         recognized                  as being                 legitimate                    by various                  state              officials."                  State
         Defendants'                      Memorandum                      in      Opposition                     to      Plaintiff's                          Motion        for

         Summary           Judgment                at         1;        see also              id.        at     2 ("state                    officials             have         so
         far         recognized                     the                 minor              plaintiff's                    legitimacy").                                 State
         Defendants                  further                 note         that         a Louisiana                     District                   Court         Judge       has

         adopted           an order                 in            which         Judith              is        named       the              legitimate             heir          of

         Edward          Hart         and that                    the     Louisiana                  State        Bureau               of Vital               Statistics

         issued           a      birth             certificate                         to       Judith                indicating                     that        Judith's

         father           is     Edward            Hart,                Jr.        Id.

                     Because              plaintiff's                          only         claim           against             state               defendants              was
         for      just         such         a declaration,                            see       Second            Amended                  Complaint             at     ¶ 67,
         the      state          defendants                       have         conceded               the       ultimate                   relief           sought.             As

         a condition                  for      dismissing                       her        claims             against         the            state          defendants,

         plaintiff               seeks         only               an order                 enjoining              defendants                      from        opposing            a

         judgment               of        possession                      recognizing                     Judith           Hart              as      Edward            Hart's

         heir.             In        the       alternative,                            plaintiff                  seeks                a     stipulation                   from
         defendants                  to     the      same effect.

                     Finally,                because                     the          state              defendants                    have           conceded              the
         ultimate               relief              sought,                    plaintiff                   seeks          a           voluntary                dismissal
         without           assessment                        of     costs             or      fees        to     either               party.




                                                                                               6
                                                  Conclusion
         For      the    above        reasons,         plaintiff            respectfully         requests        that
this      court         grant         her     motion         for     voluntary             dismissal        on    the

conditions          outlined           in   her   accompanying               motion.

Dated:       February           23,    1996

                                                                   Respectfully            submitted,




                                                                   WILLIAM E. RITTENBERG
                                                                   (La. Bar #11287)
                                                                   715 Girod    St.,   Ste. 200
                                                                   New Orleans,      LA 70130
                                                                   (504) 524-5555



                                                                        ,     1

                                                                   DItiCURTIS
                                                                   KATHRYN KOLBERT
                                                                   Center    for Reproductive
                                                                       Law and Policy
                                                                   120 Wall Street,       18th          Floor
                                                                   New York,     NY 10005
                                                                   (212) 514-5534

								
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