In this Jones Act death case the decedent's mother, Mrs. Eva Fontenot, sought to intervene in the District Court claiming that she, not an alleged daughter, was the exclusive beneficiary. Mrs. Fontenot now seeks review of that Court's judgment denying intervention on the ground that the daughter, not the mother, was the sole claimant.1 The contest here is limited to determining which of these is the statutory claimant.

Since status as beneficiary depends on whether the alleged daughter is a child of decedent, the precise questions presented are (1) whether the meaning of the term 'children' in 45 U.S.C.A. 51, which is incorporated into the Jones Act by 46 U.S.C.A. 688,2 is to be determined by state law (as the District Court held), and (2) if the answer to the first question is in the affirmative, whether the plaintiff here is a 'child' of the decedent Louisiana principles. We hold that state law is determinative and that plaintiff is a 'child' of decedent under Louisiana law. Consequently, the dismissal of the intervention must be affirmed.

Before passing on the substantive merits it is appropriate to discuss in some detail the procedure employed by this Court in disposing of this case. Acting under our recently promulgated Rule 18,3 the Court has judicially determined that oral argument is not required and accordingly has placed this case on the Summary Calendar. As this procedure is being used more and more, we feel that the bench and bar are entitled to a fuller exposition of it than might be discernible from the empowering Rules (see note 3, supra).

The Summary Calendar procedure is part of a program ordained by the Fifth Circuit Judicial Council,4 in an effort to meet the constantly increasing demands on the Court as dockets explode beyond even the increased capacity of expanding Judge power. This is by no means a problem of the Fifth Circuit alone. Across the nation Courts of Appeals share with the Fifth the need for exercising judicial inventiveness to increase productivity and expedite disposition without sacrificing the quality demanded both by statute and fundamental concepts of due process.5

The project in essence is a presubmission consideration for preliminary classification of each case for calendaring purposes. Empowered by Fifth Circuit Rule 17, the Court has established four main classifications. The first covers cases so lacking in merit as to be frivolous and subject to dismissal or affirmance without more. The second comprises cases in which oral argument is not required and which then go on the Summary Calendar for disposition on briefs and record without oral argument.6 This leaves those cases in which oral argument is deemed required or helpful, the third group covering those in which limited (15 min.) argument is thought adequate, and the fourth, those meriting up to the full time (30 min.) allowed by FRAP 34 or fixed by the presiding Judge of the panel hearing oral argument.

The important thing is that this screening is a judicial one preformed by Judges, not the Clerk or other non-judicial staff. It is done through a series of statding panels of three Judges, made up of Active Fifth Circuit Judges only. Cases are not submitted to a screening panel until all briefs are in or the allowable FRAP time has expired. When cases are ripe for screening they are submitted to the screening panels at rnadom, without reference to subject matter, state of origin, or any other criteria.

As an added safeguard against even the remote possibility of oral argument being denied by a single Judge, the procedure calls for unanimous panel action to put the case on the Summary Calendar. Carrying it a step further, if after placing it on the Summary Calendar, any member of the panel has doubts or unresolved differences with the proposed opinion, the case is automatically removed and reclassified for full or limited argument. In other words, the classification of the case and its disposition must be unanimous. This demands informed, individual action by each panel member which will always equal, if it does not exceed, that required for an orally argued case. It bears emphasis also that prior to the release of the Court's decision a written notice under Rule 18 (not 3, supra) is given to counsel or the parties that the case is placed on the Summary Calendar. Also, in every Summary Calendar case an opinion, per curiam or signed, is published and given the same distribution and handling as cases orally argued. Consequently, both for orally argued7 and Summary Calendar cases advance notice is given.

The extent to which this procedure has been an effective administrative tool, and more important, how even-handed has been its use is revealed by the statistics covering the initial period of some 80 days8 (Dec. 15, 1968-March 5, 1969). Evenhandedness is especially significant since our actual experience refutes the apprehension which may be held in some quarters that it would be the indigent and those without counsel9 whose cases would be put on the Summary Calendar. The obverse was that litigants with counsel and elaborate expensive briefs would receive oral argument. But it has not worked that way at all. In the first place pro se habeas and 2255 cases comprised but a small number (21) out of the total screened (313). Next, disposed of without oral argument as ordinarily in the past (note 9, supra), they account for less than 23% Of the Summary Calendar classification in contrast to over 50% Of civil cases running the gamut of diversity, private civil, Labor Board, civil rights, admiralty, etc.10 And in the context of the total number of cases screened

/8/ (CHART OMITTED) one of the 93 classed as frivolous-- represents a substantial part.¹¹ Finally, the increase in productivity, especially in terms of time under submission, is reflected by the more than 46 printed, published opinions out of the 93 cases placed on the Summary Calendar12 in this brief period.

This is one of those cases in which the facts present an unusual variation on a familiar melody. Edward Fontenot, the decedent, and Patricia LeBouef were married on October 13, 1959, but they only remained together for about one month. After they separated in November 1959, they never again lived together. At some time in late 1960 or early 1961, Patricia Fontenot began living with Allen Murphy. On December 29, 1961, while still married to Fontenot, Patricia gave birth to a daugther, Romona Gail. Not until May 15, 1962, did Patricia obtain a divorce from Edward Fontenot.

Subsequently, in November 1966, Edward Fontenot was killed in an explosion at sea. In July 1967, Patricia Murphy, as administratrix of Fontenot's estate, filed suit for wrongful death, alleging that Edward Fontenot was the father of her daughter Romona Gail. About one year later, Eva C. Fontenot, the surviving dependent mother of the decedent, sought to intervene in this proceeding or to be designated as the real party in interest on the ground that the decedent had left no widow or children and that she was the sole surviving and dependent parent and therefore the only beneficiary under the Jones Act.13

In the areas of wrongful death and federal insurance, there are many federal cases dealing with the rights of children deemed illegitimate under state law. The factual twist in the instant case is that although long separation of the mother from Fontenot at least allows inferences about the child's parentage, she is considered to be his legitimate child under state law14 and now seeks to assert a federal right afforded to the decedent's 'children' by the Jones Act.15 If she is determined to be his child for purposes of the Jones Act, she will recover to the exclusion of the decedent's sole surviving parent.16

As stated above, the first question is whether state or federal law should be applied to determine the meaning of the term 'children' in 45 U.S.C.A. 51. In a leading case pertinent to this question, Seaboard Airline Ry. v. Kenney, 1916, 240 U.S. 489, 36 S. Ct. 458, 60 L. Ed. 762, the Supreme Court considered particularly the definition of the term 'next of kin' as used in 51. The Court there stated:

'There can be now no question that the act of Congress in so far as it deals with the subjects to which it relates is paramount and exclusive. It is therefore not disputable that recovery under the act can be had alone in the mode and by and for the persons or class of persons in whose favor the law creates and bestows a right of action. * * * But this is irrelevant, since the controversy concerns only the meaning of the act, which it is conceded, when rightly interpreted, is entitled to exclusive operation.

'Plainly the statute contains no definition of who are to constitute the next of kin to whom a right of recovery is granted. But, as speaking generally under our dual system of government, who are next of kin is determined by the legislation of the various states to whose authority that subject is normally committed, it would seem to be clear that the absence of a definition in the act of Congress plainly indicates the purpose of Congress to leave the determination of that question to the state law. But, it is urged, as next of kin was a term well known at common law, it is to be presumed that the words were used as having their common-law significance, and therefore as excluding all persons not included in the term under the common law; meaning, of course, the law of England as it existed at the time of the separation from the mother country. Leaving aside the misapplication of the rule of construction relied upon, it is obvious that the contention amounts to saying that Congress, by the mere statement of a class, that is, next of kin, without defining whom the class embraces, must be assumed to have overthrown the local law of the states, and substituted another law for it; when conceding that, there was power in Congress to do so, it is clear that no such extreme result could possibly be attributed to the act of Congress without express and unambiguous provisions rendering such conclusion provisions The truth of this view will be made at once additionally apparent by considering the far-reaching consequence of the proposition, since, if it be well founded, it would apply equally to the other requirements of the statute,-- to the provisions as to the surviving widow, the husband and children, and to parents, thus, for the purposes of the enforcement of the act, overthrowing the legislation of the states on subjects of the most intimate domestic character, and substituting for it the common law as stereotyped at the time of the separation. The argument that such result must have been intended, since it is to be assumed that Congress contemplated uniformity, that is, that the next of kin entititled to take under the statute should be uniformly applied in all the states, after all comes to saying that it must be assumed that Congress intended to create a uniformity on one subject by producing discord and want of uniformity as to many others.' 240 U.S. at 493-494, 36 S.Ct. at 460, 60 L. Ed. at 765-766.17

The term 'next of kin' is not the only relationship described in 51, however, for the statute sets out other classes of beneficiaries: 'surviving widow or husband,' 'children,' 'parents'. See note 13 supra. In the view of this Court, it would be incongruous to refer to state law in defining one of the statutory terms but to ignore it in defining another of the parallel, comparable terms. Thus Kenny, standing alone, provides strong support for the proposition that state law should be used to determine the meaning of the term 'children' in 51.

The Kenney case is not a solitary sentinel, however, for there are many lower court cases involving the problem of defining 'child' under federal law. Overwhelmingly, whelmingly, courts declare that in construing the terms 'child' or 'children' in a federal statute, a court should look to state law.18

In Ellis v. Henderson, 5 Cir., 1953, 204 F.2d 173, cert. denied, 346 U.S. 873, 74 S. Ct. 123, 98 L. Ed. 381, this Circuit had occasion to consider the meaning of the term 'child' as used in 9 of the Longshoremen's and Harbor Workers' compensation Act, 33 U.S.C.A. 909. The facts in Ellis are strikingly similar to those of the instant case. The plaintiffs there were illegitimate children whose natural father co-habited with, but was not married to, their mother. The decedent was their mother's lawful husband, and the issue was whether the plaintiffs could be deemed 'children' of the decedent for purposes of the Act.

This Court, while noting that 'insofar as the definition in the federal statute is complete in itself it controls,' recognized that the definition there did not cover the factual situation presented. The Court then reasoned that the problem of determining the meaning of the word 'child' in the Act was similar to that faced by the Supreme Court in defining 'next of kin' in the Kenney case. Consequently, the Court turned to louisiana law-- in fact, the same provisions as those involved in the instant case-- and held that each of the children was a 'child' of the decedent, since the decedent legally had made himself their 'father' because he had failed to disavow paternity of his wife's children within the time allowed by law.

Merely to round out the decisional picture we acknowledge that the Second Circuit case of Middleton v. Luckenbach S.S. Co., 2 Cir., 1934, 70 F.2d 326, cert. denied, 293 U.S. 577, 55 S. Ct. 89, 79 L. Ed. 674, perhaps suggests a contrary result. The Middleton Court found it necessary, however, to distinguish Kenney on the ground that in Kenney the accident had occurred and the suit had been brought in North Carolina, and the transaction had had a substantial contact with that particluar state. In Middleton, not only did the accident take place upon the high seas, but the victims and their survivors were not even citizens of this country. Moreover, in Middleton the Court pointed out that the Act with which it was concerned (the Death on the High Seas Act), unlike the FELA involved in Kenney, did not provide for concurrent state and federal jurisdiction. In contrast, the instant case involves the Jones Act, which-- like the FELA-- provides for concurrent jurisdiction. In this respect, then, the case before us is more like Kenney than Middleton.19 Whether middleton is really at odds with our view we need not decide, for if it is we decline to follow it.

Since state law is determinative, the question now becomes the status of the minor child under Louisiana law. Under the Louisiana Civil Code, the husband of the mother is presumed to be the father of all children conceived by her during the marriage. La.Civ.Code Art. 184. The Louisiana Supreme Court has described this presumption known in the 'strongest presumption known in the law'. Feazel v. Feazel, 1952, 222 La. 113, 62 So. 2d 119. Therefore, Romona Gail is presumed to be the lawful child of Edward Fontenot in spite of all the asserted physical evidence to the contrary.

As the presumption of legitimacy is clearly applicable here, we come then, to the question of determining its conclusiveness on the parties before the Court. The Civil Code provides generally that in cases in which the presumption is subject to attack, the presumed father, if he intends to dispute legitimacy, must institute an action to disavow paternity (en desaveu) within a prescribed period after the child is born or after he discovers its existence.20 Likewise, if the husband dies without having disputed legitimacy, his heirs are given a short time to make objection to the status of the child.21 In the instant case, however, neither Edward Fontenot nor his mother resorted to the procedure afforded by statute.

Throughout a long line of decisions the Louisiana Courts have applied these statutory provisions stringently. it is now beyond dispute that if the husband fails to bring a statutory action to disavow, the right to challenge the legitimacy of the children born during marriage becomes extinct. E.g., Evans v. Roberson, 1933, 176 La. 280, 145 So. 539. Likewise, a Louisiana Court of Appeal has stated, '* * * as against heirs of a deceased, where no action to disavow paternity was brought by the deceased during his lifetime nor by the heirs during the two months following the death, the presumption of paternity becomes conclusive.' Jenkins v. Aetna Cas. & Sur. Co., La.App., 1935, 158 So. 217, 219 (holding that third persons, too, are bound by the presumption). Accordingly, since neither Edward Fontenot nor his mother (and heir), Mrs. Eva Fontenot, instituted the requisite statutory procedures, under state law Romona Gail is conclusively presumed to be the child of Edward Fintenot. As his child, she is the statutory beneficiary under the Jones Act and is entitled to whatever recovery might be had for his death.

Affirmed.

RULES OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the interest of docket control, the chief judge may from time to time, in his discretion, appoint a panel or panels to review pending cases for appropriate assignment or disposition under Rules 18, 19 or 20 any other rule of this court.

(a) Whenever the court, sua sponte or on suggestion of a party, concludes that a case is of such character as not to justify oral argument, the case may be placed on the summary calendar.

(b) A separate summary calendar will be maintained for those cases to be considered without oral argument. Cases will be placed on the summary calendar by the clerk, pursuant to directions from the court.

(c) Notice in writing shall be given to the parties or their counsel of the transfer of the case to the summary calendar.

Within fifteen days after the appeal has been docketed in this court, the appellee may file a motion to dismiss or a motion to affirm. Where appropriate, a motion to affirm may be united in the alternative with a motion to dismiss. The fifteen day provision may be waived by the court on proper showing of reasonable excuse for delay in filing a motion to dismiss or affirm, upon such terms and conditions as the court may prescribe, or such waiver may be granted sua sponte on the part of the court.

(a) The court will receive a motion to dismiss any appeal on the ground that the appeal is not within the jurisdiction of this court.

(b) The court will receive a motion to affirm the judgement sought to be reviewed on the ground that it is manifest that the questions on which the decision of the cause dependa are so unsubstantial as not to need further argument.

The motion to dismiss or affirm shall be filed with the clerk in conformity with Rule 27 of the Federal Rules of Appellate Procedure.

The appellant shall have ten days from the date of receipt of the motion to dismiss or affirm within which to file a response opposing the motion. Such response may be typewritten and four copies, with proof of service, shall be filed with the clerk. Upon the filing of such response, or the expiration of the time allowed therefor, or express waiver of the right to file, the record on appeal, motion and response shall be distributed by the clerk to the court for its consideration.

After consideration of the papers distributed pursuant to the foregoing paragraph the court will enter an appeopriate order.

The time for filing briefs pursuant to Rule 31 of the Federal Rules of Appellate Procedure shall not be tolled or extended by the filing of a motion to dismiss or affirm.

If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rules 18 and 19.