622 F2d 185 Smith v. Harris

622 F.2d 185

Jason Shem SMITH, by and through his Father and Next Friend,
Dr. Raymond F. Smith, Plaintiff-Appellant,
Patricia Roberts HARRIS, Secretary of Health and Human
Services, Defendant-Appellee.

No. 79-4069. Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

July 25, 1980.

Appeal from the United States District Court for the Eastern District of Texas; William M. Steger, Judge.

J. David Crisp, Texarkana, Tex., for plaintiff-appellant.

John W. Wojciechowski, Dept. of Health and Human Services, Baltimore, Md., for defendant-appellee.

Before BROWN, TJOFLAT and FRANK M. JOHNSON, Jr., Circuit Judges.


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Smith challenges the constitutionality of 42 U.S.C.A. Sec. 402(d)(8)'s denial of secondary Social Security benefits to a child unrelated to and adopted after Smith became eligible for primary benefits. The only argument which was not considered and rejected by Williams v. Califano, 566 F.2d 1044 (5th Cir.), cert. denied, 439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978), is that the then-decided decision in Jiminez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974), mandates a different result. For the reasons well-stated by Clayborne v. Califano, 603 F.2d 372 (2d Cir. 1979), Jiminez is entirely consistent with our decision in Williams. Even were we able to reconsider the decision of another panel of our Circuit,1 we would agree with the analysis and result of Williams, and with the further elaboration by the Second Circuit in Clayborne.




Fed.R.App.P. 34(a); 5th Cir. R. 18