20 CFR 404.374(a)
Ramon Murga v. Secretary, U.S.D.C., D. of P.R., Civ. No. 351-70 (12/30/71) (CCH, U.I.R., Fed. Para. 16,524)
CANCIO, Chief Judge: In the case the plaintiff challenges the constitutionality of Section 228 of the Social Security Act, 42 U.S.C. 428, as it is applicable to residents of the Commonwealth of Puerto Rico. The defendant has filed a motion to dismiss the action. Upon filing of memoranda of law by both parties the court is fully advised on the premises and as much as I would like to be wrong, I cannot grant the remedy sought in this case. The applicable law does not allow me to act differently and therefore defendant's motion to dismiss is ruled to be well taken.
The law applicable to this case is the following:
Section 228 of the Act, 42 U.S.C. 428 which in its pertinent parts reads:
* * * * * * *
Section 205(g) of the Social Security Act, 42 U.S.C. 405(g), which sets for the scope of judicial review in Title II matters reads in pertinent part as follows:
Jurisdiction of the court thus set out in section 205(g) is limited thereto and made exclusive by section 205(h) of the Act, 42 U.S.C. 405(h) as follows:
The failure of the plaintiff to allege that he filed an application with the Social Security Administration for benefits under section 228 supra will necessarily preclude a claim thereunder. Section 228(a)(4), supra requires the filing of an "application for benefits under this section."
The filing of an application is a prerequisite requirement to establish entitlement to benefits under Title II of the Social Security Act. Ewing v. Risher, 176 F.2d 641 (10 Cir., 1949); Coy v. Folsom, 228 F.2d 276 (3 Cir., 1955); Ray v. Gardner, 387 F.2d 162 (4 Cir., 1967); McNally v. Flemming, 183 F.Supp. 309 (D. N.J., 1960); Flamm v. Ribicoff, 203 F.Supp. 507 (S.D.N.Y., 1961).
Thus, in Ewing v. Risher, supra, the court pointed out that "rights" under Title II of the Social Security Act are "creative rights" unknown to the common law and that only upon compliance with the conditions prescribed by Congress can an individual be entitled to its benefits. One of the conditions (indicated above) is the "filing of an application." The court accordingly concluded that there could be no entitlement to benefits where the prescribed condition of filing of an application had not been met. In referring to the particular section under which the claim in that case was filed and which like section 228 required as a condition of entitlement the filing of an application, the court said (p. 644):
And as to the remedial nature of the Act, the court further stated (p. 644):
Similarly, in Ray v. Gardner, supra, the court held in pertinent part as follows:
And it is further clear, assuming, arguendo, that where benefits are otherwise payable under section 228 if an application is filed therefore, still, benefits are effective beginning only with the month in which all conditions contained therein have been met. Thus a claimant filing an application for benefits under section 228 "shall * * * be entitled to a benefit under this section for each month beginning with the first month after September 1966 in which he becomes entitled to such benefits * * *." (Emphasis supplied.) Consequently, inasmuch as entitlement cannot be established until a claimant files an application, benefits under section 228 are not payable retroactively for any period prior to the filing of an application and the plaintiff's claim for accrued benefits alleged to be owing to him on this base alone would be precluded. Comparably, in Borysuk v. Ewing, 96 F.Supp. 779 (D.C. N.J., 1951), it was held that an applicant cannot become entitled to benefits until he has filed an application therefore and that when it is filed, retroactivity obtains only as expressly provided by the Act.
Compare, too, Craig v. Finch, 416 F.2d 721 (5 Cir., 1969), cert. den. 397 U.S. 953 (1970); Meadows v. Cohen, 409 F.2d 750 (5 Cir., 1969); Sangster v. Gardner, 374 F.2d 498 (6 Cir., 1967).
Thus, aside from other factors pertinent to a claim for benefits under section 228 of the Act, the plaintiff does not have a viable claim for benefits in the absence of having filed an application therefor.
The plaintiff further alleges that the Constitution of the United States extends to the Commonwealth of Puerto Rico as it does to the 50 States and District of Columbia of the United States. This is not so.
In discussing whether the constitutional right to trial by jury operates for United States citizens in a proceeding of a judicial nature conducted by the United States in a foreign country, the Supreme Court in 1891 states in Ross v. McIntyre, 140 U.S. 453 that "By the Constitution, a government is ordained and established 'for the United States of America' and not for countries outside their limits," and that constitutional guarantees apply only to citizens and others within the United States, or who are brought here for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad." (Emphasis supplied.) Only by specific legislation of Congress will domestic laws and constitutional guarantees be extended as exterritorially, Blackmer v. U.S., 284 U.S. 421 (1932); Publ v. U.S., 376 F.2d 194 (10 Cir., 1967). When Congress does intend its domestic law to operate in foreign countries, this is effected on the ground that the sovereign has inherent jurisdiction over its citizenship wherever they may be. Steele v. Bulova, 344 P.S. 280 (1952.)
Although the Commonwealth of Puerto Rico is not a foreign nation, nevertheless it does not have the status of a State of the United States to which the Constitution extends by its own force. By reason of its status as a Commonwealth, domestic laws of the United States and constitutional guarantees operate only insofar as the Congress intends for it to do so. This was explicitly held by the Supreme Court Balzac v. People of Puerto Rico, 258 U.S. 298 (1922), in which the Court followed its prior holding as to the Philippine Islands (then a territory of the United States) in Dorr v. U.S., 195 U.S. 138 (1904). Similarly, this court's jurisdiction rests, not as an Article III Court under the Constitution, but as a court created by virtue of the power given to Congress by Article IV, section 3, cl. 2 of the Constitution to make all needful rules and regulations respecting territory belonging to the United States. Munoz v. Porto Rico Ry. Light and Power Co., 83 F. 262 (1 Cir., 1936).
Under the Organic Act of 1917, 39 Stat. 951, citizens of Puerto Rico became citizens of the United States, and were thereby enabled to move into the continental United States and become residents of any State and there to enjoy every right of any other citizen of the United States, civil, social and political. Nevertheless, the Organic Act did not incorporate Puerto Rico into the Union as a State to which the Constitution by its own force is extended. Thus at page 309 in Balzac, the court stated:
In like manner, section 228 supra, confers benefits on all who meet its conditions for entitlement providing that they reside in one of the 50 States of the District of Columbia. This provision applies equally to all citizens of the United States, whether or not they be of Puerto Rican origin; a citizen from the continental United States who takes up residence in the Commonwealth of Puerto Rico will not receive benefits under section 228 just as other residents of Puerto Rico are precluded.
With regard to the plaintiff's assertion that since section 228 applies to residents of the continental United States, it must apply equally to residents of Puerto Rico, let it be said that in Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770 (1901), the Supreme Court passed upon the territorial status of Puerto Rico while deciding a comparable question: whether Puerto Rico comes under the Internal Revenue Laws of the continental United States absent explicit enactment of the Congress. In holding that duties may be imposed on imports from Puerto Rico into the continental United States (similar to imports from a foreign country), the Supreme Court reviewed the history of plenary congressional power over acquired territories of the United States beginning with the Louisiana purchase. The Court concluded:
And the Court held that as the Commonwealth of Puerto Rico was not a State of the Union, duties on imports therefrom could be imposed. See also Hoover and Allison Co. v. Evatt, 324 U.S. 652 (1945).
The question here, then, regarding section 228, does not go to whether the plaintiff has been denied Fifth Amendment guarantees, e.g., due process (and equal protection insofar as it may be contained therein) or whether Congress has created a reasonable classification of persons to be paid benefits thereunder, since the Constitution does not extend by its own force to the Commonwealth of Puerto Rico. Cf. Flemming v. Nestor, 363 U.S. 603 (1960); Gruenwald v. Gardner, 390 F.2d 591 (Cir., 1968), cert. den. 393 U.S. 732, 782 (1968); Leeson v. Celebrezze, 225 F.Supp. 528 (E.D. N.Y., 1936). The question in this case is solely one of exercise of congressional plenary power: Whether the Congress has intended the provisions of section 228 to be applicable in the Commonwealth of Puerto Rico. Thus, in American Banana Co. v. United Fruit Co., 213 U.S. 374 (1909) it was held that the Congress did not intend anti-trust legislation to extend to Acts by American Nationals in foreign countries, whereas in People of Puerto Rico v. Shell Co., 302 U.S. 253 (1937) the Supreme Court held that the Sherman Act of 1808 was applicable in Puerto Rico, though later acquired by the United States by Treaty of Paris in 1898, because of the use of the word "territory" in the legislation. See, also, Vermilya Brown Co. v. Cornell, 335 U.S. 337 (1948) wherein the Court held that "possessions" of the United States to which the Wage Hour Act applied included military bases leased in foreign countries.
The history of the various enactments of the provisions contained in Title II of the Social Security Act as regards their applicability to the Commonwealth of Puerto Rico is equally enlightening. Section 1101(a)(2) of the original Social Security Act, P.L. 74-271, enacted August 14, 1935, provided that the term "United States", when used for legislation to apply in geographical areas, was defined to include the States, Alaska, Hawaii and the District of Columbia; the Act, accordingly, did not then extend to Puerto Rico. It was not until 1950 that the Congress extended the provisions of Title II of the Social Security Act to the people of Puerto Rico. Thus section 107 of the Social Security Amendments of 1950 (P.L. 81-734 enacted August 28, 1950) enacted the then existing section 219 of Title II providing for extension of Title II provisions upon a certificate by the Governor of Puerto Rico to the President of the United States that the legislature of Puerto Rico has so resolved its desire therefore by a concurrent resolution. Section 210(i) of the Act, enacted by section 104 of the 1950 Amendments, further defined the term "United States" to include Puerto Rico after the effective date of extension of the Title II provisions to Puerto Rico. And Section 103 of the Social Security Amendments of 1960 (P.L. 86-778, enacted September 13, 1960) revised the definition of section 210(i) of the Act to include Guam and American Samoa within the term "United States" and thus similarly extended the provisions of Title II to those territories of the United States.
It is thus apparent that for more than 35 years since the social security programs were enacted, the provisions thereof have been extended to Puerto Rico only insofar as explicitly enacted by the Congress. The intent of Congress in providing for payment of benefits under section 228 supra is clear; benefits thereunder are limited only to those who reside in the 50 States or District of Columbia. Section 228 of the Act was enacted by section 302(a), P.L. 89-368 enacted March 15, 1966, as an amendment to the Tax Adjustment Act of 1966. In its original form as introduced and passed on the floor of the Senate the amendment was drafted to extend to residents of the United States, as that term was defined in section 210(i) of the Act, and thus included Puerto Rico. Cong. Record, Vol. 112, Part 4, 89th Cong., 2nd Sess., pp. 5289-5301. However, in conference of the two Houses of Congress, the legislation was redrafted in form as presently contained in section 228 of the Act, which, as noted above, limits its applicability to the 50 States and District of Columbia. H.R. Rept. No. 1323, 89th Cong., 2nd Sess.; Cong. Record, Vol. 112, Part 5, pp. 5788-5801.
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