motion to afirm — CALIFANO, JR. v. JABLON (No. 75-739)

Supreme Court, U.S

_.ED

IN THE

Supreme Cowt of the United

Ocrosper Term, 1975

DEC 23 1975

ates

MICHAEL RODAK, JR., CLERK

>

No. 75-739

F. Davin Maruews, Secretary of Health,

Education, and Welfare,

Appellant,

—V.—

Bette P. JaBLon and Jacos C. Jason,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

<>

No. 75-791

F. Daviw Matuews, Secretary of Health,

Education, and Welfare,

Appellant,

—Vi—

Epear D. Corry,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO AFFIRM

Ruts Baper GrinspurG

Metvin L. Wuir

KaTHLEEN WiLLert PeEratis

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

Attorneys for Appellees

2

-

PAGE

IN I i iN 2

RE eR Sa en Pe ee 2

Gueetions Preseutes......... a cssssecoeee 3

aT en a a 4

a a 11

APPENDIX

TABLE OF AUTHORITIES

Cases:

Brandt v. Hickle, 427 F.2d 53,

B.S UU Re 5

Frontiero v. Richardson, 411

ee Senn 5,11

Reed v. Reed, 404 U.S. 71 (1971)------ 5

Stanton v. Stanton, 421 U.S. 7

ED Ne ee NOAA TTNe eee m 5

Weinberger v. Salfi, U.S.

__, 95 8. Ct. 24687 (1975) ........ 9, 10

Weinberger v. Wiesenfeld, 420

FA) 8) Sa 4,

ii

PAGE

Federal Statutes:

SS EE a 2,3.

IS: CU i 3,10

Other Authorities:

Department of Health, Education,

and Welfare, Social Security

Handbook (4th ed. 1969)... 6,7,8

IN THE

SUPREME COURT OF THE UNITED STATES

OcToBer Term, 1975

No. 75-739

F. David Mathews,

Secretary of Health, Education, and Welfare,

Appellant,

-YV.=

Bette P. Jablon and Jacob C. Jablon,

Appellees.

On Appeal from the United States District

Court for the District of Maryland

No. 75-791

F. David Mathews,

Secretary of Health, Education, and Welfare,

Appellant,

-V.=

Edgar D. Coffin,

Appellee.

On Appeal from the United States District

Court for the District of Columbia

2

MOTION TO AFFIRM

The opinion of the district court in

No. 75-739 is reported at 399 F. Supp. 118

(D. Md. 1975), and is reproduced in the

Jurisdictional Statement in No. 75-739 at

la-33a, and in the Jurisdictional Statement

in No. 75-727 at 2a-48a. The opinions and

orders in No. 75-791 are reported at 400

F. Supp. 953 (D.D.C. 1975), and are repro-

duced in the Jurisdictional Statement in

No. 75-791 at la-l6a, and in the Jurisdic-

tional Statement in No. 75-765 at la-l7a.

STATEMENT

Six appeals arising out of four dis-

trict court decisions, each decision involv-

ing substantially the same constitutional

question, have been docketed in this Court.

These appeals are: Mathews v. Goldfarb (E.D.

N.Y.), No. 75-699; Mathews v. Silbowitz (S.D.

Fla.), No. 75-712; Jablon v. Secretary of Health,

Education, and Wetfare, No. 75-727, and Mathews

v. Jablon, (D. Md.), No. 75-739; Coffin v.

Secretary of Health, Education, and Welfare (D.D.C.),

No. 75-765, and Mathews v. Coffin, No. 75-791.

Each of the four district courts held uncon-

stitutional portions of 42 U.S.C. §402 that

discriminate explicitly on the basis of

gender.! Appellant, Secretary of Health,

Education, and Welfare, appeals from all

four determinations. (Nos. 699, 712, 739,

and 791.) In two of these cases, Jablon and

Coffin, appeals have also been docketed by

plaintiffs below. (Nos. 727 and 765.)

1 Goldfarb is reported at 396 F. Supp. 308 (E.D.N.Y.

1975); Silbowitz, at 397 F. Supp. 862 (S.D. Fla. 1975).

3

These appeals challenge the denial of demands

by plaintiffs Jablon and Coffin for injunc-

tive relief.?

Husband's insurance benefits are at

issue in Silbowitz and Jablon, widower's

insurance benefits in Goldfarb, both hus-

band's and widower's insurance benefits in

Coffin.

QUESTIONS PRESENTED

In Nos. 739 (Jablon) and 791 (Coffin):

Whether 42 U.S.C. §402(b), (c)(1)(C),

(e), (£)(1)(D), which authorizes social

security benefits for a spouse on a male

insured individual's earnings record with-

out regard to dependency, but conditions

benefits for the spouse of a female insured

individual on proof of dependency, discriminates

They present the question:

Whether 42 U.S.C. §405(g) prohibits

the federal courts from enjoining

the operation of a provision of the

Social Security Act held to be un-

constitutional.

A similar question has been presented in Norton v.

Weinberger, No. 74-6212. In Norton, the focus of

the issue is this Court's appellate jurisdiction

under 28 U.S.C. §1253. In Jablon and Coffin, where

jurisdiction as to the Secretary's appeals is sup-

plied by 28 U.S.C. §1252, the question relates most

importantly to the remedy the district court may

grant to prevent unconstitutional action by a fed-

eral official.

4

on the basis of gender in violation of the

fifth amendment to the Constitution. 3

In No. 791 (Coffin):

Whether the district court had juris-

diction to determine the entitlement of

the spouse of a female insured individual

to old-age and survivor benefits, where

the spouse filed an application prescribed

by the Social Security Administration "for

any insurance benefits payable to [him]

under the Title II of the Social Security

Act" and his multiple requests for a more

specific application were denied.

ARGUMENT

l

Jabkon and Coffin, like Goldfarb and Silbo-

witz, present the same gender discrimination-

equal protection issue: whether overt, lump

gender classification is a permissible means

to determine benefits due on the earnings

record of an individual insured under social

security. Appellees Jablon and Coffin

therefore adopt here the arguments set forth

in the Motion to Affirm in Goldfarb. 4 To sum-

marize:>

3 The same constitutional question is raised in

Goldfarb, No. 699, and Silbowitz, No. 712, Supra.

4 The same attorneys represent Leon Goldfarb,

Bette and Jacob Jablon, and Edgar Coffin.

5 Weinberger v. Wiesenfeld, 420 U.S. 636, at

654-55 (1975) (Powell, J. concurring opinion).

5

The statutory scheme .. . imper-

missibly discriminates against a

female wage earner because it

provides her family less protec-

tion than it provides the family

of a male wage earner, even

though the family needs may be

identical.

The gender differentiations now in question

are not rationally distinguishable from

those struck down in Weinberger v. Wiesenfeld,

420 U.S. 636 (1975), and Frontiero v. Richard-

4on, 411 U.S. 677 (1973). Based on this

Court's precedent from Reed v. Reed, 404 U.S.

71 (1971), through Stanton v. Stanton, 421

U.S. 7 (1975), the courts below found "in-

escapable" the conclusign that "the statu-

tory classification at issue here must be

invalidated."6 Plenary review is not

warranted in light of the unequivocal

instruction this Court has already provided:

line drawing by gender is invidious when it

devalues the woman's efforts in the economic

sector. /

I]

Far from presenting a “substantial

question," the "specific application" issue

interjected by the Secretary in No. 791

(Coffin) is wholly devoid of merit and

"hardly worthy of our great government."

See Brandt v. Hickle, 427 F.2d 53, 57 (9th

6 Jurisdictional Statement [hereinafter J.S.]

No. 791, at 8a; see J.S. No. 739, at 26a.

U Wiesenfeld, supra, 420 U.S. at 645.

6

Cir. 1970). For in September 1970, appellee

Edgar D. Coffin filed an application pre-

scribed by the Social Security Administra-

tion for "all types of social security bene-

fits." That application is appended to the

Secretary's Jurisdictional Statement at 23a.

It is an application sufficient to “alert

the Secretary" (J.S. No. 791 at 6) that the

claimant seeks all benefits he may be

accorded on the insured's earnings record.

The Social Security Administration has so

declared. Department of Health, Education,

and Welfare, Social Securi*y Handbook

§§ 1510, 1511, at 252 (4th ed. 1969).

1. Edgar Coffin sought old-age and

survivor benefits as the spouse of an

insured wage earner through multiple inqui-

ries and requests in 1970, 1971 and 1972,

to federal officials, from Social Security

field officers up to the Social Security

Commissioner. In response to his inquiries,

Edgar Coffin was clearly informed he was in-

eligible for spousal benefits and could not

apply specifically for such benefits. His

detailed attestation to this effect, pre-

sented to the court below, is set out in

the Appendix at la-5a.8

8 Of the six exhibits to the December 8, 1973

Coffin Affidavit, only the last (letter dated May 15,

1972 from Robert M. Ball, then Commissioner of

Social Security) has been reproduced in the appendix.

The tenor of the other exhibits is indicated in the

Affidavit.

At the hearing on the parties’ cross motions for

summary judgment before the three-judge court, held

October 24, 1974, attorney for Edgar Coffin called

7

2. Edgar Coffin did promptly file the

only application ever furnished him prior

to judgment in the court below. The form

he was furnished, which he filed soon after

his wife's death in 1970, contained the reci-

tation, authorized and framed by the Social

Security Administration: "I hereby apply

for the lump-sum death payment and for any

insurance benefits payable to me under Title

II of the Social Security Act, as amended."

(J.S. No. 791 at 23a.)% That application

included the inquiry critical to his entitle-

ment to spousal benefits under his wife's

account, but wholly irrelevant to his

entitlement to the lump-sum death payment:

the court's attention to the Coffin Affidavit, Coffin's

1970 application for a lump-sum death payment (J.S.

No. 791, at 23a), and Coffin's Statement pursuant to

Local Rule 1-9(g). Coffin's attorney then pointed

out that Edgar Coffin was present in the courtroom

and could be examined by the Secretary's attorney

should that attorney wish to dispute in any respect

the fact contentions sworn to by Edgar D. Coffin.

See Transcript, October 24, 1974 hearing. Mr. Coffin

was not examined then, nor did the Secretary seek to

depose him at any other time.

9 The basis on which the Secretary now seeks to

render "inoperative" the government's representation

on an official form (J.S. No. 791, at 6) is not

apparent. On another day, his Department informed

the American public that the: recitation means exactly

what it says. See Department of Health, Education,

and Welfare, Social Security Handbook §§ 1510, 1511,

at 252 (4th Ed. 1969)(set out in the text below at

Pp. 8-9).

8

Question 15: If you are the widower,

were you receiving at least one-half

of your support from your wife at

the time of her death?

Edgar Coffin's Response: No.

(J.S. No. 791, at 24a.)19

3. "[Flor the use of people who want

a detailed ex. ation of the Federal retire-

ment, survivors, disability and health

insurance programs, so that they may under-

stand how these programs operate," the

Department of Health, Education, and Welfare

has published a manual, Social Security

Handbook (4th ed. 1969) (quotation from

Preface at iii). That Handbook states (at

252):

§1510. EACH APPLICATION FORM CLEARLY SHOWS

THE EXTENT TO WHICH IT MAY BE USED AS AN

* APPLICATION FOR BENEFITS. For example,

the present applications for entitlement

to hospital insurance protection, for

monthly benefits, or for the lump-sum

death payment may be applications for all

benefits that a claimant may be entitled

to on any social security earnings record.

(Emphasis supplied.)

§1511 . .. . As §1510 explains, any of

these forms can constitute an application

10 Since the support test is wholly irrelevant to

lump-sum payment entitlement, it is impossible to

fathom what purpose Question 15 has other than "to

alert the Secretary" (J.S. No. 791, at 6) to quali-

fication of the applicant for spousal insurance

benefits.

9

for any or all types of social security

benefits; but it is preferable to file

the specific form designed for claiming

the type of benefit meant to be claimed... .

Among the forms listed in §151ll as an appli-

cation “for any and all types of social

security benefits" is: "SSA-8 Application

for Lump-Sum Death Payment," the very form

Mr. Coffin filed. (J.S. No. 791, at 23a.)

While Mr. Coffin failed in his efforts to

file the "preferable" application, he did

file an application the Department of Health,

Education, and Welfare itself describes as

sufficient to constitute a claim for spousal

benefits.

4. In September, 1975, following final

judgment in the court below, Edgar Coffin

was furnished the “specific applications"

earlier denied to him. On September 17, 1975,

Mr. Coffin filed an “application for husband's

insurance benefits" and an “application for

widower's insurance benefits." The Social

Security Administration "has processed Mr.

Coffin's claim and has certified him for

payment." 11

5. In the court below, the Secretary

assessed the relevance of Weinberger v. Salt,

U.S. , 95 S. Ct. 2457 (1975), dif-

ferently. Although Sal{i was decided on

June 26, 1975, no effort was made by the

11 Letter dated November 28, 1975 from William Z.

Elliott, Attorney, Department of Health, Education,

and Welfare, Office of the Secretary, Baltimore, Md.

21235, to Kathleen Peratis, Director, Women's Rights

Project, American Civil Liberties Union.

10

Secretary to call that decision to the

attention of the district court prior to

July 14, 1975, the date of the district

court's initial Order. Thereafter, on

July 24, 1975, the Secretary did rely on

Sal{i, but did not invoke that authority to

assert any lack of jurisdiction in the dis-

trict court under §405(g).12 On the con-

trary, the Secretary sought alteration of

the judgment "recasting it in terms of 42

U.S.C. §405(g)."13

In sum, Edgar Coffin assiduously sought

to turn square corners in dealing with his

Government and might reasonably expect that

his Government would not attempt to run

circles around him. Though twice denied

12 Section 205(g) of the Social Security Act

(J.S. No. 791, at 6) appears in U.S.C. as 42 U.S.C.

§405(g).

13 Not a word in "the Secretary's [July 24, 1975]

motion for reconsideration in light of Weinberger

v. Salgi" (J.S. No. 791, at 5) is addressed to Mr.

Coffin's "failure to apply specifically" for

spousal benefits. Rather, that motion requested

the court to withdraw the July 14, 1975 order for

injunctive relief and to order only "that the deci-

sion of the Secretary not to grant plaintiff hus-

bands [sic] or widowers [sic] benefits pursuant to

42 U.S.C. §§ 402(c) and (f£) on the basis of his

application for all benefits payable under Title II

of the Social Security Act be, and it is, reversed

- + « « " Proposed Order accompanying the Secre-

tary's July 24, 1975 motion. The "motion for re-

consideration" thus reflected an awareness of the

sufficiency of the lump-sum death payment applica-

tion curiously and conspicuously absent from the

Jurisdictional Statement in No. 791.

ll

the vaunted "specific application" at Social

Security field offices (see Appendix at 3a-4a),

he continued his efforts to claim benefits

through recourse to the administrator under

the Social Security Act until he was unequiv-

ocally informed by the then Commissioner of

Social Security himself that "Mr. Coffin is

not entitled to widower's benefits." (Appen-

dix at 7a.) Under the circumstances, and

in light of 1) the application Edgar Coffin

did file in 1970, an application the Depart-

ment of tlealth, Education, and Welfare has

described to the public as constituting a

claim for “any or all types of social

security benefits," and 2) the "specific

applications" Edgar Coffin has now filed,

which the Social Security Administration has

processed and certified for payment, the

jurisdictional impediment raised by the Sec-

retary is utterly lacking in substartiality.

IT]

In his Jurisdictional Statements, the

Secretary asks this Court to "hold" his

appeals in Jablon and Coffin pending disposi-

tion of Goldfarb and Silbowitz. In the event

of plenary review of the constitutional

question, coherent, complete adjudication

of the matter in controversy would not be

served by the Secretary's recommendation.

Because both sides have appealed in Jablon

and Coffin, these two cases merit priority

attention.

CONCLUSION

The gender lines in these cases,

Frontiero and Wiesenfeld are so “closely

12

analogous" /“ they cannot be distinguished

on any principled basis. Because the Con-

stitution "forbids the gender-based differ-

entiation that results in the efforts of

women workers required to pay social security

taxes producing less protection for their

families than is produced by the efforts of

men," Wiesenfeld, 420 U.S. at 645, the deci-

sions below should be summarily affirmed

to the extent they hold unconstitutional

the statutory classification herein. The

Secretary's claim of a jurisdictional

hindrance in No. 791 should be summarily

dismissed, and the appeals in Nos. 727 and

765 should be accorded plenary review.

Respectfully submitted.

RUTH BADER GINSBURG

MELVIN L. WULF

KATHLEEN WILLERT PERATIS

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

Attorneys for Appellees

December, 1975

14 The Solicitor General so characterized them in

Brief for the Appellant at 22, Weinberger v. Wiedsen-

feld,