holding that the question of a legal interpretation “arises only incidentally, necessitating an answer by the court in the course of construing the [relevant] statute to determine whether payments is indeed owing to plaintiff”
How later courts described this case
- holding that the question of a legal interpretation “arises only incidentally, necessitating an answer by the court in the course of construing the [relevant] statute to determine whether payments is indeed owing to plaintiff”
- explaining that the court must “read the relevant statute and award whatever payment it grants, omitting from our interpretation of its effect any constitutionally void provision contained in it”
- illegitimate child suing to recover deceased civil servant’s benefits claimed statutory requirement that such a child must live with the annuitant was unconstitutional
- "Our authority to issue a declaratory judgment is limited.... We are authorized to do so only where 'it is tied and subordinate to a monetary award.' "
Written by the judges who cited it.
Distinguished
Distinguished by Annuity Transfers, Ltd. v. United States, 86 Fed. Cl. 173 (2009)
Gentry is distinguishable from the instant case on its facts.
The opinion
Skelton, Judge,
concurring in the result:
I do not think it is necessary to hold that 5 U.S.C. § 8341 (a) (3) (A) (ii) (1970) is unconstitutional in order to obtain the result reached by the majority in this case. That section of the statute provides as follows:
§ 8341. Survivor annuities.
(a) For the purpose of this section—
(3) “child” means—
(A) * * * (ii) a stepchild or recognized natural child who lived with the employee or Member in a regular parent-child relationship;
It is logical to assume that by enacting; this part of the statute relating to a stepchild and an illegitimate child, the Congress was establishing a test or method by which two facts could be proven or determined, namely, (1) that the deceased employee was actually the parent or step-parent of the child, thereby eliminating spurious claims of a child not related to the employee, and (2) that the child was dependent upon the employee for support. The Congress obviously concluded that if a stepchild or illegitimate child was living with an employee, a presumption was created that the two above-mentioned conditions or requirements have been established, although the statute does not say so. Therefore, it is a question of how the live-with portion of the statute should be read and interpreted. It would be a rare cáse indeed and an almost unheard of situation if a child lives with an employee *26 when the child is not related in any way to the employee and the employee is not supporting the child. A natural conclusion is that the live-with portion of the statute was inserted as a means of proving paternity and dependency.
Congress did not apply the live-with requirement to a legitimate child of an employee, as it can be assumed and presumed that an employee will support his natural child whether the child lives with the employee or not.
The statute should not be read nor interpreted as an absolute bar to annuity benefits for a stepchild or illegitimate child of an employee who cannot meet the live-with test, but should be read and interpreted so as to allow such a child to prove paternity and dependency in some other way. The majority is allowing such proof to be made in the instant case, but only after holding the live-with portion of the statute unconstitutional.
It is not necessary to hold any part of the statute unconstitutional in order to allow the plaintiff in this case to prove paternity and dependency at a trial in the manner correctly ordered by the majority. The statute should be read and interpreted so as to allow such proof if the live-with proof cannot be supplied.
There is a well-established rule that, if possible, a statute should be interpreted in such a way that it will be constitutional and valid rather than unconstitutional and invalid. This rule was aptly stated by the Supreme Court in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) as follows:
* * * The cardinal principle of statutory construction is to save and not to destroy. We have repeatedly held that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. * * * [Id. at 30.]
See also, Federal Trade Comm’n v. American Tobacco Co., 264 U.S. 298, 307 (1924); Panama R.R. Co. v. Johnson, 264 U.S. 375, 390 (1924); Missouri Pacific R.R. Co. v. Boone, 270 U.S. 466, 472 (1926); Blodgett v. Holden, 275 U.S. 142, 148 (1927); Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 346 (1928); and 16 C.J.S. Constitutional Law § 98 at 357-58 (1956).
*27 I would follow this rule and reach the same result as that reached by the majority without holding the live-with portion of the statute unconstitutional. For that reason, I concur with the result stated in the majority opinion.
551 F. 2d 852