Appellants Brief — United States v. Clark

“Suprema Court, Us & >"

EILED

en eT

No. 78-1513 JUL. 3 1979

MICHAEL ele ; ‘ K IR... CLERK

rrr enecentepetentemety nme neamnmeasite

Gu the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, APPELLANT

Vv.

PATRICIA ILENE CLARK, GUARDIAN FOR

SHAWN D. CLARK AND TRICIA D. CLARK

ON APPEAL FROM THE

UNITED STATES COURT OF CLAIMS

BRIEF FOR THE UNITED STATES

WADE H. McCCREE, JR.

Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney

General

FRANK H, EASTERBROOK

Deputy Solicitor General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

Opinions 1 (1)

PU oe ee

Questions presented ~...............--..--..--0---seee--o-=

Constitutional and statutory provisions in-

WES sii a. dicate Bt aah

Summary of argument ..............-..-.---.ecee------

Argument:

I. This court has jurisdiction over this

UO a a el

A. There is no need to seek immediate

review of interlocutory decisions

concerning liability -.......................

B. The Court of Claims held an act

of Congress unconstitutional ........

II. The Court of Claims lacked jurisdiction

over this case because sovereign im-

munity bars any award of money dam-

POOL Ben Poe neci a mae onl Meo Ay cota a

III. The constitution does not prohibit Con-

gress’ decision that illegitimate children

must show that they were living with

the wage earner when he died in order

to qualify for survivors’ benefits ..........

A. Classifications based on illegitimacy

are not subject to strict scrutiny....

B. The classification is substantially

related to important statutory

goals

12

13

16

17

24

25

27

II Ill

; Cases—Continued Page

Argument—Continued rage Gentry v. United States, 546 F. 2d 348,

1. The Civil Service annuities for reh’g denied, 551 F. 2d 852 ................ 8, 17, 29,

survivors are designed to re- | 31,37

place support that may have

Glasgow Navigation Co. v. Munson S.S.

been lost by the wage-earner’s Lane, BIG Ce, CGF ccs a 16

CT nates sn dsinichiisaannscaipteaisamictil 27 Hagans v. Lavine, 415 U.S. 528 .............. 23

2. The lived-with requirement is Hamilton-Brown Shoe Co. v. Wolf Bros.

a rational indicator of probable Co., 240 US. 251 ree ee amare 15

diced oo So 31 International Ladies’ Garment Workers

Ra aga Union v. Donnelly Garment Co., 304

3. The statutory classification dis- BE ee Fea Co WL Ne Waa 17

courages spurious claims and : Jenkins v. United States Civil Service

facilitates efficient administra- Comm’n, 460 F. Supp. 611, appeal

THOM ....-...-seneeenseensesnsernnsenensnnersnees 34 pending, No. 79-1199 .............1scsssse-0-e- 20, 24

C. This court should respect the leg- Jimenez v. Weinberger, 417 U.S. 628....11, 27, 32.

islative accommodation of the com- Lalli v. Lalli, No. 77-1115 (Dee. 11,

peting interests cub decigteidababadehadaceucicae 37 1978) Hes badesauesensysayebedsanesas 25, 26, 27, 32, 33, 34, 35

; Liberty Mutual Ins. Co. v. Wetzel, 424

JORDIN. 5. .isniccteisinipsiccathanelonipeaiadiedninoamstelenen tess 39 se OL ae RS ee ER 13

CITATIONS Marconi Wireless Co. v. United States,

Pikes WRIT RING acs aieiicphs iasakeintlinuiate ees Meat o ce 15

Mathews v. DeCastro, 429 U.S. 181 ...... 25, 27, 34

American Foreign S.S. Co. v. Matise, 423 Mathews v. Lucas, 427 U.S. 495 ....11, 25, 26, 29,

LS Up | | NOU analer vsdiaese ear en ven E Aa 15 31, 38

Califano v. Aznavorian, No. 77-991 (Dee. | McLucas v. DeChamplain, 421 U.S. 21...... 14, 16

Rhy. ROCB) . cinicacsncnnscenacepawcnqaiunaaketaianncss 31 : Milliken v. Bradley, 483 U.S. 267 ............ 22

Califano v. Boles, No. 78-808 (June 27, | Myers v. Commissioners of Civil Service

1979) -scissnbedtiesenaneidlsiilin 27, 29, 31, 34, 37, 38 | Comm’n, Civ. No. 8682 (S.D. Ohio Aug.

Califano v. Goldfarb, 430 U.S. 191, aff’g, AEE 5 RRR ROME en RCA ARIC NR OP PION NES 24

B96 F. Supp. B08 .aescnnessccscvaossesseenene 23 | Nevada v. Hall, No. 77-1387 (Mar. 5,

Califano v. Jobst, 484 U.S. 47 ........ 27, 29, 31, 34 pT 4, BUONO BRR EMME OEE SOE eh OMOr a oO 19

Collard v. Pittsburgh, C., C. & St. L. Ry., | New York Transit Authority v. Beazer,

SOR US: BOE oi a ee 16 | No. 77-1427 (Mar. 21, 1979) -...0-..-.-.---. 34

Costello v. Wainwright, 430 U.S. 325........ 21 Oneida Indian Nation v. County of

Edelman v. Jordan, 415 U.S. 651 ............ 22 Oneida, 414 U.S. 661 21

IV

Cases-—Continued Page

Parham v. Hughes, No. 78-3 (Apr. 24,

DE sles ni siionnaiaestarinbanilielandaoseneiassios 25

Parish v. Maryland & Virginia Milk Pro-

ducers Ass’n, cert. denied, No. 78-1246

Gf ie Gg, SRE NLA MCI an oe ee 16

Philbrook v. Glodgett, 421 U.S. 707 ........ 19

Proctor v. United States, 448 F. Supp.

MI sedan atc chai cla aahicaldeadapibaietbcahoneh 6, 20, 24

Soriano v. United States, 352 U.S. 270.... 22

South Puerto Rico Sugar Co. Trading

Corp. v. United States, 334 F. 2d 622.. 21

Stone v. Powell, 428 U.S. 465 .................. 23

Tenny v. United States, 441 F. Supp. 224.. 24

Toledo Scale Co. v. Computing Scale Co.,

RE RRC OIE Seen Bee Ue 15

Trimble v. Gordon, 430 U.S. 762 ....25, 26, 33, 34

United States v. Alire, 73 U.S. (6 Wall.)

Disc tkG Cn caine naatsiclibeititinnsiecbdlesiniclaa vaca 18

United States v. Carlo Bianchi & Co., 373

TN I i a 15

United States v. King, 395 U.S. 1 ........ 18, 19, 22

United States v. Lovett, 328 U.S. 308...... 21

United States v. MacCollom, 426 U.S.

apy hE CREEPS SDS Dad ee SRO Oa 19

United States v. McDougall’s Administra-

ORs Se a OP iia a 20

United States v. Naftalin, No. 78-561

CORI SER STI nee recesteddaene 37

United States v. Raines, 362 U.S. 17 ...... 16

United States v. Sherwood, 312 U.S. 584.. 22

United States v. Testan, 424 U.S. 392...... 18, 19

United States v. Tucker Truck Lines, Inc.,

a SRS BRS SNSORREUINC Rear leo cr WOY Rayon 23

United States v. United States Fidelity &

Guaranty Co., 309 U.S. 506 .................- 19

oe rw rn

al

ew

: Vv

Cases—Contirued Page

Vance v. Bradley, No. ch 1254 (Feb. 22,

ROT cesoniabcidiecaietdetiicindbs Actes daaeh aie Todas 26

Victor Talking Machine Co. v. George,

105 F. 2d 697, cert. denied, 308 U.S.

Ss FRR Ina rd Can LS Mare EE EVA aA On 14-15

Visor v. United States, Civ. No. 9922(2)

(E.D. Mo. Feb. 12, 1955) 2.0... 28

Weber v. Aetna Casualty & Surety Co.,

MA AER: TY wshtbaisacethckcsdlatadsantnavesenobatonts 34

Webster v. Fall, 266 U.S. 507 ....0000000...... 23

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

aff’g, 367 F. Supp. 981 -.....00020.. 2. 23

Constitution and statutes:

United States Constitution

Fifth Amendment, Due _ Process

SONI Saag i ol ta 2,7, 23

Eleventh Amendment ........................ 23

Act of February 28, 1948, ch. 84, Sec-

om 22 G2 Stab. 66 wl 28

Civil Service Reform Act of 1978, Pub.

L. No. 95-454, 92 Stat. 1111 20.00. 6

Civil Service Retirement Act, 5 U.S.C.

8331 et seq.:

Rie Pi ok 5

Ais EEE sek 5

§ U.S.C. 8886-8341 .......................... 5

5 U.S.C. 8841 ou. ES ee OE Os 2-3, 7, 8,16

5 U.S.C. 8841 (a) (8) 2. 6, 19

5 U.S.C. 8841 (a) (3) (A) oo. 2

5 U.S.C. 8341(b) (e) eee 5

5 U.S.C. 8841 (e) eee cece 28

5 U.S.C. 8342 leineendabdchsadianacbbens 5, 35

VI

Constitution and statutes—Continued Page

rn, CE akin dada captnrccicaninnasuiboen 3-4

5 US BeaR CL) CS) cc anic,,. 5

6 US.) SOB) (2) iit 22, 36

DAE eile IY seis comes so resstinavqisndadloc 36

Civil Service Retirement Act Amendments

of 1966, Pub. L. No. 89-554, 80 Stat.

577, 5 U.S.C. (1970 ed.) 8341 (a) (38).. 29

Pub. L. No. 92-415, Section 1, 86 Stat.

RI aerate bcastcddicheia aust sedechansbineniAiccomnnsse 18

AR ORK y | COORNERSRGS: ATER BE GOs Sota ee 24

& USSG. C2068 0G.) S251} sn...2-0.. os. 28

5 U.S.C. (1958 ed.) 2260(d) .................... 29

25 U.S0y 2268. ois ek: 4,9, 10, 13, 14, 16, 17

“28 Ui8.0..:(1976: ed.) 1253" 5.205. 14

(St. Si AA NR A en OE ON NCOP ON 15

Rr a en 15

Be Sat UMN TIR DS cenasktgennciniorncivsenncdtraensevd 14

Be ts I oi cediaceskagsscscsesapdasevenunies 4-5, 7, 17-18

We MRAM OND teas ied cites Saisiedccdlccnsdancobapisaiwis case's 19

28 U.S.C. 2101 (a) ..... ETE OPER D WEE 13

Me AE ERD cirosniiediccpccshcninsasdideacinteninied 5

Miscellaneous:

Federal Personnel Manual Supp. 831-1,

subchapter S17-2(e) .............-.-.-ccccce--0- 6

The Federal Salary and Fringe Benefits

Act of 1966: Hearings on H.R. 14122

Before the Senate Comm. on Post Of-

fice and Civil Service, 89th Cong., 2d

NN SINE Pe hidhasiticittigichneticiagce wcntacdtekan 30

H.R. 2584, 96th Cong., 1st Sess. (1979)... 38

H.R. Rep. No. 2854, 84th Cong., 2d Sess.

ERNE scecehisaas ; i een 29

VII

Miscellaneous—Continued Page

H.R. Rep. No. 92-1023, 92d Cong., 2d

SO, CEPI, ccna cees tapas sthaetligeiacd 18

Joint Annual Report of the Director of the

Bureau of the Budget and the Chair-

man of the Civil Service Commission

and the Report of the Cabinet Commit-

tee on Federal Staff Retirement Sys-

tems, H.R. Doc. No. 402, 89th Cong., 2d

Ra: MON geste orke do iteensainyensropstdonistinsmsipcin'a 30, 31

Reorganization Plan No. 2 of 1978, 43

Fed. Reg. 36087 (1978) .......0..00.2000000... 6

S. 509, 96th Cong., Ist Sess. (1979) ........ 38

S. Rep. No. 1187, 89th Cong., 2d Sess.

CRO) aries ccpWolecenaltebdadabncealtdecss 31

S. Rep. No. 92-1066, 92d Cong., 2d Sess.

EU ID : peaiosncitbchinastclsvisisb om iiestsaoarwasbahienditiicy ea 18

R. Stern & E. Gressman, Supreme Court

Practice. (6th ed. 1078). ...:...2..............:. 14, 15

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1513

UNITED STATES OF AMERICA, APPELLANT

Vv.

PATRICIA ILENE CLARK, GUARDIAN FOR

SHAWN D. CLARK AND TRICIA D. CLARK

ON APPEAL FROM THE

UNITED STATES COURT OF CLAIMS

BRIEF FOR THE UNITED STATES

| OPINIONS BELOW

| The opinions of the Court of Claims (J.S. App.

la-7a) are not reported.

JURISDICTION

The final judgment of the Court of Claims (J.S.

App. 5a-7a) was entered on November 6, 1978. A

notice of appeal was filed on December 5, 1978 (J.S.

App. 8a). On January 29, 1979, the Chief Justice

(1)

J

2

extended the time for docketing the appeal to and

including April 4, 1979, and the appeal was docketed

on that date. On May 21, 1979, this Court post-

poned further consideration of its jurisdiction to

the hearing of the case on the merits. The jurisdic-

tion of this Court rests on 28 U.S.C. 1252. See pages

12-17, infra.

QUESTIONS PRESENTED

1. Whether this Court has jurisdiction over this

appeal.

2. Whether sovereign immunity bars the award of

retroactive monetary relief to persons denied benefits

under a statute later held unconstitutional.

8. Whether 5 U.S.C. 8341(a)(3)(A), a part of

the Civil Service Retirement Act, violates the Due

Process Clause of the Fifth Amendment by permit-

ting illegitimate children of a deceased federal em-

ployee to recover survivors’ annuities only if they

“lived with the employee * * * in a regular parent-

child relationship.”

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fifth Amendment to the Constitttion pro-

vides in pertinent part:

No person shall * * * be deprived of life,

liberty, or property, without due process of law

* * *

2. 5 U.S.C. 8341 provides in pertinent part:

(a) For the purpose of this section—

* * * * *

3

(3) “child”? means—

(A) an unmarried child under 18 years

of age, including (i) an adopted child, and

(ii) a stepchild or recognized natural child

who lived with the employee or Member in

a regular parent-child relationship * * *.

Eo * * * *

(e)(1) If an employee or Member dies * * *

and is survived by a spouse, each surviving child

: entitled to an annuity equal to the smallest

ot—

(A) 60 percent of the average pay of the

employee or Member divided by the number

of children;

(B) $900; or

(C) $2,700 divided by the number of

children.

+* + + * +

If the employee or Member is not survived by

a spouse, each surviving child is entitled to an

annuity equal to the smallest of—

(i) 75 percent of the average pay of the

employee or Member divided by the number

of children;

(ii) $1,080; or

(iii) $3,240 divided by the number of

children.

. 5 U.S.C. 8345 provides in pertinent part:

(a) Each annuity is stated as an annual

amount, one-twelfth of which, fixed at the near-

est dollar, constitutes the monthly rate payable

on the first business day of the month after the

month or other period for which it has accrued.

* * * * *

St Min 0h

(2) Notwithstanding any other provision

of this subchapter, other ,than this subsec-

tion, the monthly rate of annuity payable

under subsection (a) of this section to a

surviving child shall not be less than the

smallest primary insurance amount, includ-

ing any cost-of-living increase added to that

amount, authorized to be paid from time to

time under title II of the Social Security

Act, or three times such primary insurance

amount divided by the number of surviving

children entitled to an annuity, whichever is

the lesser.

4, 28 U.S.C. 1252 provides in pertinent part:

' Any party may appeal to the Supreme Court

from an interlocutory or final judgment, decree

or order of any court of the United States, * * *

holding an Act of Congress unconstitutional in

any civil action, suit, or proceeding to which the

United States or any of its agencies, or any of-

ficer or employee thereof, as such officer or em-

ployee, is a party.

. 28 U.S.C. 1491 provides in pertinent part:

The Court of Claims shall have jurisdiction to

render judgment upon any claim against the

United States founded either upon the Consti-

tution, or any Act of Congress, or any regulation

of an executive department, or upon any express

or implied contract with the United States, or

for liquidated or unliquidated damages in cases

not sounding in tort * * *. To provide an entire

remedy and to complete the relief afforded by

5

the judgment, the court may, as an incident of

and collateral to any such judgment, issue orders

directing restoration to office or position, place-

ment in appropriate duty or retirement status,

and correction of applicable records, and such

orders may be issued to any appropriate official

of the United States. In any case within its

jurisdiction, the court shall have the power to

remand appropriate matters to any administra-

tive or executive body or official with such direc-

tion as it may deem proper and just * * *.

STATEMENT

1. The Civil Service Retirement Act, 5 U.S.C.

8331 et seq., provides benefits to specified federal

civilian employees and Members of Congress. 5

U.S.C. 8331(1) and (2). These benefits include

retirement, disability, and survivors’ benefits (5

U.S.C. 8336-8341); in addition, a lump sum is paid

to a surviving beneficiary designated by the em-

ployee if he leaves no survivors entitled to an annuity

(5 U.S.C. 8342). Survivors’ annuities are paid to

the spouse and children of the deceased employee (5

U.S.C. 8341(b)(e)).* The statute provides that a

“child” is an unmarried child under 18 years of age,

“including” an adopted child and “a stepchild or

1 The size of the child’s annuity is equivalent to the lesser

of the current minimum primary insurance amount payable

under Social Security (see 42 U.S.C. 415(a)) or three times

that amount divided by the number of entitled children. 5

U.S.C. 8345 (f) (2). The lower ceilings provided by 5 U.S.C.

8341(e) have, in practical effect, been repealed by Section

8345 (f) (2).

6

recognized natural child who lived with the employee

or Member in a regular parent-child relationship” (5

U.S.C. 8341(a) (3) ).

The Civil Service Commission (now the Office of

Personnel Management (OPM) )* has interpreted this

statutory provision as meaning that a recognized

illegitimate child of a deceased employee is a statu-

tory “child” only if he was sharing a common roof

with the employee at the time of his death in cir-

cumstances that indicate a regular parent-child rela-

tionship, or that any interruption in this common

domicile at the time of death was expected to be tem-

porary. (A. 6-7). Federal Personnel Manual Supp.

831-1, subchapter S17-2(e). See also Proctor v.

United States, 448 F. Supp. 418, 421-422, 426 (D.D.C.

1977).

2. George G. Isaacson, a covered federal employee,

died in an automobile accident in August 1974. He

was unmarried, and he had designated his father

as the beneficiary entitled to the lump-sum payment

of his benefits. In September 1974 Patricia Clark

applied for children’s benefits for Shawn and Tricia

Clark, Isaacson’s illegitimate children. Their pa-

2 A person incapable of self-support by reason of a mental

or physical disability, or a student under 22, also may be a

“child” (5 U.S.C. 8341 (a) (3) ).

8 As a result of the Civil Service Reform Act of 1978, Pub.

L. No. 95-454, 92 Stat. 1111, and Reorganization Plan No. 2

of 1978, 48 Fed. Reg. 36037, the Civil Service Commission

was abolished effective January 1, 1979, aud its functions

were divided among several agencies. The Office of Personnel

Management assumed primary responsibility for the retire-

ment program for civil servants.

7

ternity was established by a state court decree dated

June 2, 1972, ordering Isaacson to contribute to

appellees’ support (Motion to Affirm App. la-4a).

The Civil Service Commission’s Bureau of Retire-

ment Insurance and Occupational Health (BRIOH)

denied the application for children’s benefits because

Shawn and Tricia were not living with Isaacson in

a parent-child relationship at the time of his death

(A. 4).4. The Commission’s Board of Appeals and

Review affirmed this decision, finding that “decedent

did not live in a parent-child relationship with the

Clark children from at least 1972 until the date of

his death in 1974” (A. 7). The Board noted the

contention that the statutory lived-with requirement

is unconstitutional, but it held that it is not empow-

ered to consider such arguments (A. 9).°

Appellees sought review of the decision in the Court

of Claims, invoking its jurisdiction under 28 U.S.C.

1491. They maintained that 5 U.S.C. 8341, as ap-

plied to deny benefits to illegitimate children because

they were not living with the decedent at the time of

his death, violated the equal protection component of

the Due Process Clause of the Fifth Amendment (A.

18).° In response to appellees’ motion fos summary

4A lump-sum payment accordingly was made to Isaacson’s

father, his designated beneficiary (A. 4).

5 The Board also rejected the contention that the state court

support order legitimated Shawn and Tricia by operation of

Montana state law (A. 7-9). Appellees have not pressed

that contention here (Motion to Affirm 5-6, 18-19).

6 Shawn and Tricia also contended that Isaacson had lived

with them “from and after the children’s respective births”

8

judgment the government conceded that Gentry v.

United States, 546 F.2d 343 (Ct. Cl. 1976), con-

trolled in that court the question whether the lived-

with requirement of Section 8341 is constitutional.’

It accordingly suggested that the case be remanded

so that the agency could consider whether Shawn and

Tricia were entitled to benefits under the holding of

Gentry (A. 23-24).°

The Court of Claims granted summary judgment

against the government, relying on its decision in

Gentry. It concluded that there was no need for a

remand to the agency; it stated that there was “no

dispute over the facts of parentage, recognition, and

support * * * [because] a prior, valid, judgment is

conclusive on these points” (J.S. App. 3a),° and it

(A. 12), had openly acknowledged them, and had complied

with the state court’s support order consistently until his

death (A. 17).

7 This response stated that the concession “is in no way to

be construed as a waiver of [the government’s] right to seek

a writ of certiorari” in this case (A. 23-24).

8’The United States also filed a contingent third party

claim against George Isaacson, decedent’s father and desig-

nated beneficiary, seeking the return of the lump-sum payment

made to him.

® The Court of Claims’ assertion is not supported by the

record. The Montana judgment is not “conclusive” on the

United States, which was not a party. And it does not show

that Isaacson in fact supported Shawn and Tricia. They

maintain that Isaacson contributed to their support in com-

pliance with the state court order (see, e.g., A. 13, 17; Motion

to Affirm 7, 18, 19), but neither the BRIOH nor the Appeals

Board considered whether their contentions are correct. No

agency has determined that Isaacson was paying the required

support, and the Court of Claims’ record is barren on that

matter.

9

remanded the case to the trial division for determi-

nation of the amount to be awarded (J.S. App.

3a-4a). .

The parties stipulated, “for the purpose of en-

abling the Court to render a final judgment” (A.

28), that the amount due each child on June 30,

1978, was $7,081.33, and that they are entitled to

be placed on the annuity rolls for continued payments

from that date. The Court of Claims entered its

final judgment on November 6, 1978, requiring the

Commission to pay vhe stipulated amounts and to

place Shawn and Tricia on its annuity rolls effective

June 30, 1978 (J.S. App. 5a-7a)."°

SUMMARY OF ARGUMENT

I

This Court may consider the questions presented,

despite the government’s decision not to appeal from

the interlocutory decision determining liability, in

accordance with the general rule that an appellate

court has jurisdiction to consider the entire case on

appeal from a final judgment. The fact that 28

U.S.C. 1252 permits the government to appeal from

interlocutory orders of the Court of Claims does not

10 Shawn and Tricia Clark accordingly have been receiving

annuities since June 30, 1978; each child currently receives

$187 a month.

The court also granted the government’s cross claim against

decedent’s father and entered judgment in favor of the

United States for $7,755.12, the lump sum previously paid

to him (J.S. App. 7a). Isaacson’s father has not sought re-

view of this judgment.

10

mean that it must do so, and the strong policy reasons

for discouraging piecemeal review support this

Court’s consistent refusal to read any such require-

ment into similar statutes permitting interlocutory

review. Moreover, the order below was one “holding

an Act of Congress unconstitutional” from whicha

direct appeal to this Court lies under 28 U.S.C. 1252.

The decision, requiring the payment of benefits to

Shawn and Tricia Clark, was necessar.iy based on

the holding that the statutory condition of entitle-

ment, which they could not meet, was unconstitu-

tional. It is not jurisdictionally. significant that the

court also reached that decision in an earlier case.

Nothing in 28 U.S.C. 1252 limits a direct appeal to

the first decision of a court holding a particular

statutory provision unconstitutional.

, II

The Court of Claims has jurisdiction over claims

against the United States founded on statutes or the

Constitution; it may enter judgments for money due

and provide appropriate ancillary relief. Because

Shawn and Tricia Clark had no statutory or consti-

tutional claim for money due, the court had no ancil-

’ lary jurisdiction to require the prospective payment

of benefits to them. The children’s annuity provision

of the Civil Service Retirement Act gave them no

statutory claim: indeed, the very reason the Court

of Claims held the provision unconstitutional was be-

cause it foreclosed their claims. No right to retro-

active benefits is accorded by any other provision of

11

the Civil Service Retirement Act or by the Tucker

Act. And the Constitution does not require or auth-

orize an award of money damages to remedy an un-

constitutional denial of benefits. In the absence of

any express authorization for such payments, the

doctrine of sovereign immunity forbids the award of

money in cases such as this. The Court of Claims

therefore should have dismissed the case for want of

jurisdiction even if the statute is unconstitutional.

Ill

The Court of Claims’ decision on the merits also is

incorrect. The requirement that illegitimate children

must show that they were living with the-wage-

earner when he died in order to qualify for survivors’

benefits bears an evident and substantial relationship

’ to appropriate statutory goals. This Court’s deci-

sions involving classifications based on illegitimacy

require no more. The Civil Service Act is a typical

social insurance system designed to replace support

lost by a wage-earner’s dependents when he dies or

retires; the classes of dependents most likely to have

lost support are defined by categorical rules, rather

than case-by-case adjudications of actual dependence.

The lived-with requirement for illegitimates is a

reasonable categorical rule: those illegitimate children

who can meet that requirement are substantially

more likely as a class to have lost support than the

illegitimate children who cannot. The statutory

classification is accordingly constitutional under the

rationale of Jimenez v. Weinberger, 417 U.S. 628

(1974), and Mathews v. Lucas, 427 U.S. 495 (1976).

12

In addition, the lived-with requirement serves a

reasonable statutory purpose by minimizing the diffi-

culty of establishing the paternity of illegitimate

children. The children who were living with the

wage-earner when he died will almost always be

readily identifiable; in contrast, an assertion that an

illegitimate was recognized by the decedent at some

‘time, and even received support from him, is more

difficult to evaluate and more likely to be raised after

the survivors entitled to an annuity have been initial-

ly determined. Thus, the lived-with requirement

facilitates the prompt and accurate determination of

entitlement to benefits.

ARGUMENT

I

THIS COURT HAS JURISDICTION OVER THIS

APPEAL

Appellees contend that this Court lacks jurisdiction

over this appeal. The Court postponed consideration

of this question to the hearing of the case on the

merits. The argument against jurisdiction has two

prongs: (1) that the government failed to take a

timely appeal from the Court of Claims’ order of

January 27, 1978, and thus lost its right to seek re-

view of the merits, retaining only a right to contest

the computation of liability; and (2) that neither

the January 27 order nor the final judgment of

November 6 is an order “holding an Act of Con-

13

gress unconstitutional” (28 U.S. 1252). Appellees

are wrong on both counts.

A. There Is No Need To Seek Immediate Review Of

Interlocutory Decisions Concerning Liability

The notice of appeal was filed on December 5, 1978

(J.S. App. 8a), 29 days after the Court of Claims

entered its final judgment in this case (J.S. App.

7a). The appeal accordingly is timely under 28

U.S.C. 2101(a)." Appellees contend however, that

this appeal is untimely because the government did

not appeal from the order of January 27, 1978, which

decided the liability issue.

The January 27 order unquestionably is interlocu-

tory. An order that decides matters of liability but

reserves questions of relief cannot be appealed from

a district court to a court of appeals. The strong

policy against piecemeal appellate review requires

the aggrieved party to wait until damages have been

computed before filing his appeal. Liberty Mutual

Ins. Co. v. Wetzel, 424 U.S. 737 (1976). The princi-

ples are much the same, we submit, when the. appeal

lies to this Court rather than to a court of appeals:

liability issues can be addressed on appeal once relief

has been entered.

It is true that 28 U.S.C. 1252, on which this ap-

peal is based, allows review of both interlocutory and

final orders declaring statutes unconstitutional. The

11The appeal was docketed on April 4, 1979, within the

extension of time granted by the Chief Justice. Appellees do

not maintain that the docketing of the appeal was untimely.

14

provision for review of interlocutory orders reflects

Congress’ concern that the United States be able to

obtain review at the earliest possible moment of

orders striking down statutes. See McLucas v. De-

Champlain, 421 U.S. 21, 31 (1975). But it does not

follow, from the fact that the statute permits appeals

of interlocutory orders, that it also requires immedi-

ate appeals on pain of forfeiture of all right to obtain

review in this Court.’* That would undermine the

purpose of Section 1252: to permit full and effective

review in this Court of decisions invalidating federal

statutes. If the United States chooses to wait for

a final judgment before filing an appeal—if it

chooses, in other words, to act in the way that private

litigants must act in ordinary civil litigation—that

is not a good reason for holding that it has lost ability

to obtain a decision on the merits.”

12 Appellees misinterpret McLucas as construing Section

1252 “to authorize and require” immediate review of inter-

locutory orders (Motion to Affirm 11). Instead, in explaining

why this Court’s jurisdiction under Section 1252 is not sub-

ject to the limitations on direct appeals to this Court under

28 U.S.C. (1979 ed.) 1253, the Court emphasized the broad

scope of review available under 1252 (421 U.S. at 31). See

also R. Stern & E. Gressman, Supreme Court Practice § 2.10

(5th ed. 1978).

138 The same is true for other statutes allowing interlocu-

tory appeals. 28 U.S.C. 1292(a) allows apeals from inter-

locutory orders entering, dissolving, or modifying preliminary

injunctions. Under appellees’ argument, any person who

failed to appeal from the entry of a preliminary injunction

would be barred from challenging the entry of a permanent

injunction that rested on the same legal grounds. But that

has never been the law. See Victor Talking Machine Co. v.

15

The rule that review of a final judgment entails

review of any interlocutory decisions on liability also

prevails under 28 U.S.C. 1255, which gives this Court

certiorari jurisdiction over both interlocutory and

final judgments of the Court of Claims. On petitions

for certiorari filed after the final judgment deter-

mining damages, this Court is free to consider the

validity of a previous order determining liability.

United States v. Carlo Bianchi & Co., 373 U.S. 709,

712 (1963); Marconi Wireless Co. v. United

States, 320 U.S. 1, 47 (19438). Cf. American Foreign

S.S. Co. v. Matise, 423 U.S. 150 (1975) (jurisdiction

based on 28 U.S.C. 1254); Toledo Scale Co. v. Com-

puting Scale Co., 261 U.S. 399, 418 (1923) (same) ;

R. Stern & E. Gressman, Supreme Court Practice

§$ 2.2 (5th ed. 1978) (collecting cases) .”

George, 105 F.2d 697 (3d Cir.), cert. denied, 308 U.S. 611

(1989) (collecting cases); cf. Hamilton-Brown Shoe Co. v.

Wolf Bros. Co., 240 U.S. 251, 257-259 (1916) (decision of

Court rests on grounds rejected by court of appeals in deci-

sion on interlocutory appeal, from which certiorari was de-

nied). It would do nothing but produce useless legal work to

require parties to appeal from preliminary injunctions when

they are content to wait for a final order.

14 Although the Court in Biancht considered the issues de-

cided by the interlocutory order on the government’s petition

from the final order, it did not discuss its jurisdiction to do so.

The jurisdiction issue was, however, specifically raised in

that case. Respondents challenged the timeliness of the gov-

ernment’s petition on grounds similar to those raised by

appellees here; the government responded to those objections

in its response to the brief in opposition (No. 529, October

Term, 1962).

15 The cases cited by appellees in support of their conten-

tion that this Court lacks jurisdiction because the govern-

16

B. The Court Of Claims Held An Act Of Congress

Unconstitutional

28 U.S.C. 1252 authorizes an appeal from “an

* * * order of [a] court of the United States * * *

holding an Act of Congress unconstitutional in [a]

civil action * * * to which the United States * * * is

a party.” The Court of Claims held an Act of Con-

gress unconstitutional, and thus this Court has juris-

diction under 28 U.S.C. 1252. The Court of Claims

recognized that Shawn and Tricia Clark do not meet

the statutory requirements for benefits. It neverthe-

less required that -benefits be paid, because, it held,

the rule that prevented the payment is unconstitu-

tional (J.S. App. 2a-3a). The court’s conclusion that

part of 5 U.S.C. 8341 is unconstitutional is the basis

for its order directing payment of benefits. Section

1252 is “properly invoked when the court below has

made [a] determination of unconstitutionality [that]

* * * forms the necessary predicate to the grant or

denial of * * * relief.” McLucas v. DeChamplain,

supra, 421 U.S. at 30; United States v. Raines, 362

U.S. 17, 20 (1960).

’ment did not appeal from the order determining liability

(Motion to Affirm 11) apparently all involve failures to seek

timely review of final orders. It is impossible to determine

from the Court’s per curiam opinions in Glasgow Navigation

Co. v. Munson S.S. Line, 246 U.S. 647 (1918), and Collard v.

Pittsburgh, C. C. & St. L. Ry., 246 U.S. 653 (1918), in what

way the Court’s jurisdictional requirements had not been

satisfied. Similarly, Parish v. Maryland & Virginia Milk Pro-

ducers Ass’n, cert. denied, No. 78-1246 (Mar. 19, 1979), was

simply an unexplained denial of certiorari.

17

Appellees argue, however, that Gentry v. United

States, 546 F.2d-343 (Ct. Cl. 1976), reh’g denied, 551

F.2d 852 (1977), rather than the instant case, held

the statute to be unconstitutional. But nothing in

Section 1252 indicates that this Court’s jurisdiction

is affected by the fact that a lower court relies on an

earlier decision in instructing the Executive Branch

to disregard a statute."* Appellees’ contention that

an appeal under Section 1252 lies only from the first

decision of any court holding a particular statute

unconstitutional is inconsistent with the plain lan-

guage of Section 1252, which permits an appeal from

an order of any court, not just the first court or the

first decision of a particular court. See International

Ladies’ Garment Workers Union v. Donnelly Gar-

ment Co., 304 U.S. 248, 249 (1938). Appellees cite

no precedent for their narrow reading of Section

1252, and we are aware of none.

II

THE COURT OF CLAIMS LACKED JURISDICTION

OVER THIS CASE BECAUSE SOVEREIGN IMMMU-

NITY BARS ANY AWARD OF MONEY DAMAGES

The Court of Claims has jurisdiction of “any claim

against the United States founded either upon the

Constitution, or any Act of Congress * * *.” 28

16 Similarly, this Court’s jurisdiction would not be affected

if the lower court said that the unconstitutionality of the

statute was an inevitable consequence of a decision of this

Court. Indeed, jurisdiction would be present even if the ap-

peal concerned a statute that this Court explicitly had held

unconstitutional in some earlier case.

18

U.S.C. 1491. “[T]he only judgments which the Court

of Claims [is] authorized to render against the gov-

ernment * * * are judgments for money found due

from the government to the petitioner.” United

States v. King, 395 U.S. 1, 3 (1969), quoting United

States v. Alire, 73 U.S. (6 Wall.) 573, 575 (1867).

Although the Court of Claims may “remand appro-

priate matters to any administrative * * * official

with such direction as it may deem proper and just,”

its power to do so is limited to “any case within its

jurisdiction” (28 U.S.C. 1491) and thus can be invoked

only if the case is one in which an award of money

is proper. United States v. Testan, 424 U.S. 392, 404

(1976). Accordingly, unless the court had jurisdic-

tion in this case to award a judgment for money, it

hod no jurisdiction to require the Commission to place

Shawn and Tricia Clark on the annuity roles. ;

The Court of Claims had no jurisdiction for two

reasons. First, there was no money due under the

Civil Service Retirement statute. To the contrary, it

was precisely because the statute does not allow the

payment that the court declared it to be unconsti-

tutional. Second, the Constitution itself neither re-

quires nor authorizes an award of money damages

as a remedy for any unconstitutionality there may

be in the statute. To the contrary, the doctrine of

‘7 The ancillary relief provision, added in 1972 (Pub. L.

No. 92-415, Section 1, 86 Stat. 652), is not authority for

ordering equitable relief incident to an improper award of

money damages. See S. Rep. No. 92-1066, 92d Cong., 2d Sess.

1-3 (1972); H.R. Rep. No. 92-1028, 92d Cong., 2d Sess. 2-3

(1972).

arenes

a es _

19

sovereign immunity forbids the award of money in

cases such as this and restricts a court to the award

of prospective injunctive relief—precisely the kind of

relief that the Court of Claims is not authorized to

grant. Consequently, even if the lived-with rule of

5 U.S.C. 8341(a) (8) is unconstitutional, the Court

of Claims was without jurisdiction.’* It should have

dismissed the suit or transferred it to a district court

under 28 U.S.C. 1506.

The United States is immune from a judicial order

to pay money as an accrued Jiability unless Congress

has unequivocally authorized such relief, United

States v. Testan, supra, 424 U.S. at 399; United

States v. King, supra, 395 U.S. at 4. There is no

such authorization here. By limiting the payment of

annuities to illegitimate children who lived with the

decedent, Congress expressly prohibited payment to

children such as Shawn and Tricia Clark, who cannot

satisfy that requirement. See United States v. Mac-

Collom, 426 U.S. 317, 321-323 (1976). If a court

18 Appellees assert (Motion to Affirm 16) that the govern-

ment waived its right to question the Court of Claims’ juris-

diction by failing to raise the question below. But, as this

Court noted in Philbrook v. Glodgett, 421 U.S. 707, 721

(1975), “we have repeatedly held that we must take note of

want of jurisdiction in the [court below] even though neither

party has raised the point.” Moreover, the Court of Claims’

jurisdiction “depends wholly upon the extent to which the

United States has waived its sovereign immunity to suit”

(United States v. King, supra, 395 U.S. at 4), and that waiver

can be made only by Congress, not by a failure to raise it in

litigation. United States v. United States Fidelity & Guaranty

Co., 309 U.S. 506, 513 (1940) (collecting cases) ; cf. Nevada

v. Hall, No. 77-1837 (Mar. 5, 1979), slip op. 4-6.

20

holds the lived-with requirement unconstitutional,

that removes the prohibition, but it does not create

a statutory authorization for payments. Cf. United

States v. McDougall’s Administrator, 121 U.S. 89, 98

(1887). The authorization for such an award would

have to be found in some statute other than the one

that prohibited the payment."

19 Appellees may argue that a statutory authorization is un-

necessary because the relief granted to them here is part of

the “prospective” application of the decision in Gentry. That

argument would be unpersuasive for several reasons.

First, the application of Gentry to this case is not “prospec-

tive” so far as appellees are concerned. The Court of Claims

did not enter a declaratory judgment or injunction in Gentry

and it had no authorization to do so. Appellees were not

parties in Gentry. Appellees seek an award of money as an

accrued liability. Although the holding on the merits in

Gentry (if correct) would supply a good reason to grant

appellees the relief they seek, it does not create statutory

authority to do so.

Second, appellees do not challenge any decision of an

agency that took place after Gentry was decided. The request

for benefits was denied in 1974; Gentry did not become final

until 1977. The denial of benefits thus did not violate any

rights appellees may have acquired derivatively through the

prospective application of Gentry. For this reason, an award

of benefits as an accrued liability also cannot be justified as

part of the enforcement of other judicial orders declaring the »

lived-with requirement unconstitutional. The injunction en-

tered against the lived-with rule on November 30, 1977, in

Proctor v. United States, 448 F. Supp. 418 (D.D.C.), does ‘not

apply to appellees because the case was not a class action.

And the judgment in a class action declaring the requirement

unconstitutional, Jenkins vy. United States Civil Service

Comm'n, 460 F. Supp. 611 (D.D.C. 1978), is on appeal. The

petition in this case was filed in the Court of Claims 18 months

before Jenkins was decided. Under the well-pleaded complaint

rule, the jurisdiction of a court must be determined by the

eee acme sees

21

The Tucker Act does not supply the necessary

legislative authorization. As this Court explained in

Testan, the Tucker Act “does not create any sub-

stantive right enforceable against the United States

for money damages” (424 U.S. at 398). Finding a

remedy in the Tucker Act would be especially in-

appropriate when the government has withheld bene-

fits in accordance with a statute.”

The general provisions of the Civil Service Retire-

ment Act also do not supply the necessary authority.

That Act contains no provision stating that, if a

allegations and theories of the complaint, not by subsequent

events. Costello v. Wainwright, 430 U.S. 8325 (1977) ; Oneida

Indian Nation v. County of Oneida, 414 U.S. 661 (1974).

20 The Court of Claims concluded in Gentry that its juris-

diction was confirmed by United States v. Lovett, 328 U.S. 303

(1946), which affirmed a judgment of the Court of Claims

awarding back pay to several federal employees despite an

appropriation statute prohibiting payment of salaries to them.

The court in Gentry concluded that there was an authoriza-

tion to award money in Lovett and in Gentry because a court

could “read the relevant statute and award whatever pay-

ment it grants, omitting from our interpretation of its effect

any constitutionally void provision contained in it” (546 F.2d

at 346). But in Lovett the employees had actually performed

the work for which they sought payment—their claim of en-

titlement was based on that work and on the authorization

statute allowing agencies to hire employees; it was not

based on the appropriation statute. The appropriation stat-

ute was relevant only as a bar to payments to which the

petitioners otherwise would have been entitled. Here, in con-

trast, appellees have no claim against the government that is

not based on the challenged statute. Cf. South Puerto Rico

Sugar Co. Trading Corp. v. United States, 334 F.2d 622, 626

(Ct. Cl. 1964).

22

portion of the statute forbidding payment is declared

invalid, then the payments sought are authorized and

retroactive payments are allowed. Instead, it pro-

vides only that “no benefit based on [the service of a

deceased employee or Member] shall be meng FF

unless an application therefor is received in the Civil

Service Commission within 30 years after the death

or other event which gives rise to title to the benefit.”

5 U.S.C. 8345(h) (2). It authorizes, in other words,

the belated payment of benefits provided for by law.

But it does not authorize the payment of money con-

trary to law.

This Court has stated repeatedly that waivers of

sovereign immunity “cannot be implied but must be

unequivocally expressed.” United States v. King,

supra, 395 U.S. at 4; United States v. Testan, supra,

424 US. at 399; United States v. Sherwood, 312 U.S.

584, 586 (1941); Soriano v. United States, 352 U.S.

270, 276 (1957). In light of this general principle,

the Civil Service Retirement Act should not be con-

strued to authorize retroactive payments to persons

to whom the statute explicitly denies benefits. Con-

gress simply has not provided for retroactive pay-

ments where claimants cannot establish statutory

eligibility for such payments. Cf. Edelman v. Jordan,

415 U.S. 651 (1974) (distinguishing between the

award of an accrued monetary liability for past

wrongs and prospective relief with monetary conse-

quences) ; Milliken v. Bradley, 433 U.S. 267, 288-290

(1977) (same).

+ 0 nnn ell

23

To be sure, this Court, without mentioning the

sovereign immunity problem, has occasionally ap-

proved the payment of benefits as an accrued liability

in the course of affirming decisiGhe that had invali-

dated Social Security provisions on constitutional

grounds. See, e.g., Califano v. Goldfarb, 430 U.S.

199 (1977), aff’g 396 F. Supp. 308 (E.D.N.Y. 1975) ;

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), aff’g

367 F. Supp. 981 (D.N.J. 1973). But because the

problem was not briefed, and the cases do not discuss

it, they do not preclude the Court from now holding

that retroactive relief is impermissible.” In recog-

nizing the states’ Eleventh Amendment immunity

from retroactive monetary relief in Edelman v. Jor-

dan, supra, the Court departed from four previous

cases (including one decided after plenary considera-

tion) that had approved such relief without explicitly

considering the Eleventh Amendment problem (415

U.S. at 670-671).

The lack of jurisdiction in the Court of Claims

does not mean that appellees have no remedy. They

may seek an injunction in a district court to require

OPM to put them on the annuity rolls. Congress has

waived sovereign immunity in suits seeking injunc-

21 See also Stoné v. Powell, 428 U.S. 465, 480-81 & nn.14, 15

(1976) ; Hagans v. Lavine, 415 U.S. 528, 533 n.56 (1974);

United States v. Tucker Truck Lines, Inc., 344 U.S. 33,

87-88 (1952); Webster v. Fall, 266 U.S. 507, 511 (1925)

(“Questions which merely lurk in the record, neither brought

to the attention of the court nor ruled upon, are not to be

considered as having been so decided as to constitute prece-

dents’’).

24

tions. 5 U.S.C. 702. Indeed, appellees may already

be members of the nationwide plaintiff class in

Jenkins v. United States Civil Service Comm’n, 460

F. Supp. 611 (D.D.C. 1978), appeal pending, No. 79-

1199 (D.C. Gir.), in which the district court held the

lived-with requirement unconstitutional and ordered

OPM to discontinue using it to deny annuities to class

members. Although the government is appealing that

decision, appellees may be entitled, as class members,

to whatever equitable relief finally is ordered in

Jenkins.

III

THE CONSTITUTION DOES NOT PROHIBIT CON-

GRESS’ DECISION THAT ILLEGITIMATE CHIL-

DREN MUST SHOW THAT THEY WERE LIVING

WITH THE WAGE EARNER WHEN HE DIED IN

ORDER TO QUALIFY FOR SURVIVORS’ BENEFITS

If the Court disagrees with our submission that the

Court of Claims lacked jurisdiction to pass on the

constitutionality of the statute, then it will be re-

quired to consider the merits of this case.** We argue

below that the lived-with requirement is constitu-

tional because it bears an evident and substantial

relationship to the goal of readily identifying the

22 Several other federal courts, like the Court of Claims,

have concluded that the lived-with requirement is unconstitu-

tional. Myers v. Commissioners of Civil Service Comm’n,

Civ. No. 8682 (S.D. Ohio Aug. 8, 1977); Proctor v. United

States, 448 F. Supp. 418 (D.D.C. 1977); Tenny v.. United

States, 441 F. Supp. 224 (E.D. Mo. 1977) ; Jenkins v. United

States Civil Service Comm’n, 460 F. Supp. 811 (D.D.C. 1978), °

appeal pending, No. 79-1199 (D.C. Cir.).

oot oe. tne MN aT

25

illegitimate children most likely to have been de-

pendent on the wage-earner.

A. Classifications Based On Illegitimacy Are Not Subject

To Strict Scrutiny

Several of this Court’s recent decisions suggest

that in evaluating statutory classifications based on

illegitimacy, a somewhat closer scrutiny than that

traditionally applied to laws regulating economie and

social conditions may be appropriate. See, e.g.,

Trimble v. Gordon, 430 U.S. 762, 767 (1977); Par-

ham v. Hughes, No. 78-8 (Apr. 24, 1979) (plurality

opinion). But see Mathews v. Lucas, 427 U.S. 495,

505 (1976). This Court has nevertheless declined

all invitations to subject such classifications to the

23 The Court in Lucas refused to treat illegitimacy as a

constitutionally suspect classification meriting the strict scru-

tiny applied to classifications based on race or national origin,

stating (427 U.S. at 505) that “we have had no difficulty in

finding the discrimination [against illegitimates] impermissi-

ble on less demanding standards than those advocated here.”

Although that language is consistent with the application of

an intermediate test for classifications involving illegitimacy,

the Court in Mathews v. DeCastro, 429 U.S. 181, 185 (1976) —

a case involving a neutral classification—referred to Lucas as

demonstrating “the standard by which legislation such as

this must be judged” (429 U.S. at 185). This plurality opin-

ion in Lalli v. Lalli, No. 77-1115 (Dec. 11, 1978), later cited

Lucas as applying an intermediate standard to classifications

involving illegitimacy (slip op. 5). Cf. Parham v. Hughes,

supra, plurality slip op. 4-6. The cases thus continue to sup-

port Mr. Justice Rehnquist’s observation in dissent in Trimble,

supra, 480 U.S. at 781, that “the unanswered question re-

mains as to the precise sort of scrutiny to which classifica-

tions based on illegitimacy will be subject.”

26

“strict” scrutiny required when “suspect” classifi-

cations are involved. See, e.g., Mathews v. Lucas,

supra, 427 U.S. at 505; Trimble v..Gordon, supra,

430 U.S. at 766-767; Lalli v. Lalli, No. 77-1115 (Dee.

11, 1978), plurality slip op. 5. Classifications based

on illegitimacy thus sometimes may be justified by

the practical need of legislators to make classifica-

tions that deal with broad groups of persons and

omit case-by-case decisionmaking. Lalli v. Lalli,

supra, plurality slip op. 13. Cf. Vance v. Bradley,

No. 77-1254 (Feb. 22, 1979), slip op. 14-15. As the

Court explained in Mathews v. Lucas, supra, 427

U.S. at 509-510 (citations omitted) :

In cases of strictest scrutiny, such approxima-

tions must be supported at least by a showing

that the Government’s dollar “lost”? to overin-

cluded benefit recipients is returned by a dollar

“saved”. in administrative expense avoided. Un-

der the standard of review appropriate here,

however, the materiality of the relation between

the statutory classifications and the likelihood of

dependency they assertedly reflect need not be

“scientifically substantiated.” Nor, in any case,

do we believe that Congress is required in this

realm of less than strictest scrutiny to weigh

the burdens of administrative inquiry solely in

terms of dollars ultimately “spent,” ignoring the

relative amounts devoted to administrative rath-

er than welfare uses. Finally, while the scrutiny

by which their showing is to be judged is not a

toothless one, the burden remains upon the [af-

fected parties] to demonstrate the insubstan-

tiality of that relation.

ee ee ee een ee

27

In sum, in cases involving statutory classifications

based on illegitimacy, the Court “does not focus on

the abstract ‘fairness’ of [the challenged] law, but

on whether the statute’s relation to the [govern-

mental] interests it is intended to promote is so

tenuous that it lacks the rationality contemplated by

the [Fifth] Amendment.” Laili v. Lalli, supra,

plurality slip op. 13. The question is simply whether

the statutory provisions concerning illegitimate chil-

dren “bear an evident and substantial relation to the

particular [federal] interests this statute is designed

to serve.” Id. at 8. In light of Lucas and Lalli, the

dea inn classification at issue here meets this test.

B. The Classification Is Substantially Related To Im-

portant Statutory Goals

1. The Civil Service annuities for survivors are de-

signed to replace support that may have been lost

by the wage-earner’s death

The Civil Service Retirement Act, like the Social

Security Act, is designed to replace support lost by

the wage-earner’s dependents when he dies. The

rule that benefits will be paid to the illegitimate

children of a wage-earner only if they lived with

him at his death furthers this statutory purpose by

providing a ready method of identifying those illegiti-

mate children most likely to have lost support.

24 See, e.g., Califano v. Boles, No. 78-808 (June 27, 1979),

slip op. 1, 7; Jimenez v. Weinberger, 417 U.S. 628, 634

(1974) ; Mathews v. DeCostro, 429 U.S. 181 (1976) ; Califano

v. Jobst, 484 U.S. 47 (1977).

28

The surviving child’s annuity was first enacted

in 1948 (Act of February 28, 1948, ch. 84, Section 11,

62 Stat. 55). It was payable to “an unmarried child,

including a dependent stepchild or an adopted child,

under the age of eighteen years, or such unmarried

child, who because of physical or mental disability is

incapable of self-support.” Children’s benefits thus

were paid only to those children most likely to have

been dependent on the wage-earner because of their

age or disability and their marital status. Moreover,

the amount of the annuity depended on whether

another parent survived, on the apparent theory that

a surviving parent would provide supplementary

support.”

Congress’ attention to the problem of replacing

lost support was evident in 1956, when it amended

the survivorship provisions after Visor v. United

States, Civ. No. 9922(2) (E.D. Mo. Feb. 12, 1955)

interpreted the Act as providing benefits to illegiti-

mate, as well as legitimate, children. The 1956

amendments elaborated on the earlier definition of

an entitled child to include “(1) an adopted child and

(2) a stepchild or recognized natural child who re-

ceived more than one-half his support from and lived

with the * * * employee in a regular parent-child

relationship” 5 U.S.C. (1958 ed.) 2251(j). Instead

of treating all illegitimate children as presumptively

dependent on the employee, Congress required a spe-

cific showing of dependence for illegitimate children,

as it previously had for stepchildren. In addition,

255 U.S.C. 8341 (e). See note 1, supra.

i Se a ee NY -—)

29

legitimate children with a surviving parent were re-

quired, as a condition of entitlement, to show that

they had received more than half their support from

the deceased civil servant (5 U.S.C. (1958 ed.)

2260(d)). See also H.R. Rep. No. 2854, 84th Cong.

2d Sess. 17-18 (1956).

As it often has done when dealing with pro-

grams that replace lost support,”’ Congress eventually

amended the statute to include more categorical rules,

replacing case-by-case determinations of dependence

with categories of eligibility that are likely (but not

certain) to reflect dependence. The Civil Service Re-

tirement Act was amended in this way in 1966. Pub.

L. No. 89-554, 80 Stat. 577, 5 U.S.C. (1970 ed.) 8341

(a) (3). The Court of Claims saw in this amend-

ment a disavowal of the original principle that bene-

fits are intended to replace lost support and the crea-

tion of a principle that all children are entitled to

benefits. Gentry v. United States, supra, 546 F.2d

at 348, 551 F.2d at 854-855. It was quite irrational,

the court thought, to deny to illegitimates the advan-

tages created by this new principle for the distribu-

tion of benefits. But the court erred in finding such

a new approach in the 1966 revisions. Cf. Califano

v. Boles, No. 78-808 (June 27, 1979), slip op. 7-12

(a similar reformation of another program did not

amount to abandoning emphasis on replacing lost

support).

26 See, e.g.. Califano v. Boles, No. 78-808 (June 27, 1979),

slip op. 9-12; Califano v. Jobst, supra, 434 U.S. at 57 n.16;

Mathews v. Lucas, supra, 427 U.S. at 507-509.

30

The process of amendments began with a message

from the President to Congress, transmitting the

Joint Annual Report of the Director of the Bureau

of the Budget and the Chairman of the Civil Service

Commission and the Report of the Cabinet Commit-

tee on Federal Staff Retirement Systems H.R. Doc.

No. 402, 89th Cong., 2d Sess. (1966); see The Fed-

eral Salary and Fringe Benefits Act of 1966: Hear-

ings on H.R. 14122 Before the Senate Comm. on

Post Office and Civil Service, 89th Cong., 2d Sess. 7

(1966). The Cabinet Committee report explains

that the half-support requirement had the prac-

tical effect of denying benefits to the surviving

children of most female civil servants, who typically

earned less than their husbands, and thus contributed

less than half of the support of their children. It

therefore recommended a change, whicn later was

enacted, precisely because “[r]etirement systems are

intended to cushion the effects of loss of income

through death * * *, [T]he preponderance of work-

ing wives * * * work because the family needs the

money, especially for the children. * * * In short,

the income of working mothers is significant for

support of children, but is inadequate to meet the

children’s dependency requirement when the mother

dies.” H.R. Doc. No. 402, 89th Cong., 2d Sess. App.

41 (1966). The requirement of a case-by-case show-

ing of dependence for illegitimate and step children

was likewise eliminated, because, if such children

were living with the deceased parent in a regular

parent-child relationship, “the benefits should be paid

a PS eee te Ow

31

as for any other child” (ibid.).%7 Congress enacted

the proposed changes without significant debate. The

statute thus was, and remains, one of the class of stat-

utes that provides “the wage earner and the depend-

ent members of his family with protection against

the hardship occasioned by his loss of earnings * * *.”

Califano v. Jobst, 484 U.S. 47, 52 (1977). It does

this, as most similar statutes do, by directing bene-

fits to the categories of persons that Congress thought

are most likely to have lost support and need its

replacement. The categorical lines are far from per-

fect; categorical lines always are. See Califano v.

Boles, supra, slip op. 2-8, 7-12; Califano v. Aznavor-

ian, No. 77-991 (Dec. 11, 1978), slip op. 5. But

the imperfections here are not unconstitutional.

2. The lived-with requirement is a rational indicator

of probable dependence

This Court held in Mathews v. Lucas, supra, 427

U.S. at 513-514, 516, that Congress, in dealing with

illegitimates, constitutionally may “tailor[] statutory

classifications in accord with its calculations of the

likelihood of actual support suggested by a narrow

set of objective and apparently reasonable indicators,”

even though the indicators may not be precisely ac-

27 The detailed explanation in the Cabinet Committee Re-

port, supra, explains the cryptic comment in the Senate Re-

port (S. Rep. No. 1187, 89th Cong., 2d Sess. 5 (1966)), on

which the Court of Claims relied in Gentry (551 F.2d 854-

855): “[T]he requirement that a child be dependent upon a

Federal-employee parent in order to receive a survivor an-

nuity [is eliminated to] * * * permit the children of a work-

ing mother to receive a survivor annuity in the event of her

death.”

32

curate. Accord, Lalli v. Lalli, supra, plurality slip op.

13-14. Moreover, the Court in Lucas evidently as-

sumed that a showing that a wage-earner’s illegiti-

mate child lived with him was equivalent to a show-

ing of that child’s dependence on the wage-earner

(427 U.S. at 498, 512-513). Although the Social

Security Act under consideration in Lucas provided

for other indicators of dependence,” the Court em-

phasized that “[t]o be sure, none of these statutory

criteria compels the extension of a presumption of

dependency. * * * [T]he constitutional question is not

whether such a presumption is required, but whether

it is permitted” (id. at 515). In the Civil Service Act

Congress chose to rely on a single indicator of de-

pendence—whether the illegitimate child lived with

the wage earner. The two are sufficiently well related

that the legislative choice is permissible.

The Court of Claims’ contrary conclusion in Gentry

apparently rested on its belief that Zucas turned on

the fact that the Social Security provision at issue

there permitted illegitimates to show dependence

through a means other than living with the wage-

earner. Where, as here, the method of qualifying

for benefits is more restricted, the court thought, the

method cannot be rationally related to the statutory

purpose of replacing lost support. The court relied

heavily on Jimenez v. Weinberger, 417 U.S. 628

(1974). It read that case as establishing that “bar-

ring a subclass of illegitimates from benefits, though

*8 Including a court order for child support—the indicator

on which appellees chiefly rely.

ee ee

ne ee ee nS

33

some members may be dependents, conflicts with the

overall aim of aiding dependents” (546 F.2d at 351-

352). The Court of Claims thus read Lucas and

Jimenez together as imposing a constitutional re-

quirement that illegitimate children be given the

opportunity to establish that they were in fact de-

pendent on the deceased employee.”

This Court’s subsequent decisions do not support

Gentry’s. interpretation of those cases. In Trimble v.

Gordon, supra, 430 U.S. at 770-771, the Court sug-

gested that a statute might constitutionally distin-

guish between legitimate and illegitimate children by

adopting “a middle ground between the extremes of

complete exclusion and case-by-case determination”

of the relevant characteristic (such as dependence).

And in Lalli v. Lalli, supra, the Court upheld a stat-

ute that adopted such a middle ground (plurality

slip op. 7). The Court explicitly recognized (id. at

12-13) that the use of categories necessarily will

deny valued goods to some illegitimate children who,

2° The statutory classifications involved in Jimenez defined

the circumstances in which a disabled wage-earner’s illegiti-

mate children, born after the onset of his disability, were en-

titled to Social Security benefits. The Court concluded that

those classifications could not constitutionally be used as indi-

cators of dependence because they bore no rational relation to .

its likelihood. After-born illegitimates entitled to inherit

under state law or legitimated by operation of state law were

not more likely to have been dependent than after-born illegiti-

mates whe lived with the wage earner, but only the former

could receive benefits. The assumption in the Civil Service

Retirement Act that illegitimate children who lived with the

wage-earner at the time of his death in normal parent-child

relationships are the single group of illegitimate children

most likely to have been dependent on him is not similarly

irrational.

34

under a case-by-case approach, could establish their

entitlement consistently with the broad statutory pur-

poses. But such incidental inequitable results do not

render a statute unconstitutional if the categories

themselves are rational. Califano v. Boles, supra,

slip op. 12-14; New York Transit Authority v.

Beazer, No. 77-1427 (Mar. 21, 1979), slip op.

20-24; Mathews v. DeCastro, 429 U.S. 181, 189

(1976) ; Califano v. Jobst, supra, 434 U.S. at 53.°°

3. The statutory classification discourages spurious

claims and facilitates efficient administration

The role of the lived-with rule in establishing de-

pendence is not the only source of support for the

statute. This Court also has recognized that the

difficulties of establishing the paternity of illegiti-

mate children may justify statutory distinctions. See,

e.g., Lalli v. Lalli, supra, plurality slip op. 9; Trim-

ble v. Gordon, supra, 430 U.S. at 770; Weber v.

Aetna Casualty & Surety Co., 406 U.S. 164, 174

(1972). The lived-with rule assists in overcoming

these difficulties in the administration of the Civil

Service Retirement Act.

80 The fact that legitimate children who did not live with

the decedent receive benefits, even though they may not have

been dependent, does not make the statute irrational because,

as a group, legitimate children (even those who do not live

with the wage-earner) are more likely to have been dependent

on him than the class of illegitimate children who did not live

with the wage-earner. Although the effect of the statutory

classification is to award payments to some legitimate chil-

dren who were not in fact dependent on the decedent, this

type of overinclusiveness is very similar to that found consti-

tutional in Mathews v. Lucas, supra.

35

The Act permits payments only to recognized il-

legitimate children. Unfortunately, however, evidence

relating to the decedent’s “recognition” of an illegiti-

mate child frequently may be ambiguous. It also easily

could be fabricated.** Evidence that the child was

living with the wage-earner at his death is less likely

to be ambiguous and is harder to fabricate. The

children who were living with the wage-earner at the

time of his death, like his legitimate children, almost

always will be readily identifiable. “Recognized’’ il-

legitimate children may be harder to identify. Thus

here, as in Lalli v. Lalli, the legislative classification

serves to minimize expense, inconvenience, delay and

uncertainty in the identification of the beneficiaries

(plurality slip op. 11-12).

The statutory scheme of the Civil Service Retire-

ment Act makes the prompt and certain identification

of eligible annuitants particularly important. The

lump sum death benefit is payable only if there are

no survivors entitled to an annuity (5 U.S.C. 8342).

Payment must be delayed if it is necessary to resolve

uncertainties about the entitlements of illegitimate

children. More significantly, if there are more than

three entitled children on one account, the size of

each child’s annuity depends on the number of other

children entitled on the same account.” Thus, subse-

81 The problem is not eliminated by the dependence require-

ment imposed by the Court of Claims, because it would also be

difficult to controvert a claim that the decedent made some

contributions to the claimant’s support.

82 See note 1, supra.

36

quent identification of eligible annuitants may require

the recoupment of payments previously made (see 5

U.S.C. 8346(b))* and often will result in the pros-

pective reduction of payments that previously identi-

fied survivors have come to rely on. Uncertainty in

the identification of eligible children may also delay

the start of payments or cause possibly-disputed sums

to be withheld.

The problem is exacerbated by the fact that an

eligible child may apply for his benefit as long as

30 years after he first becomes entitled to it, and he

will still receive benefits from the date of first entitle-

ment (5 U.S.C. 8345(h)(2)). It is obviously im-

portant to the effective administration of the Act to

minimize belated claims. A claim filed 30 years after

a government employee’s death, alleging that the

claimant is the recognized illegitimate child of the

employee, received support from him, and thus is

entitled to an accrved annuity, could pose real ad-

ministrative problems. Such a tardy claim not only

would be difficult to evaluate but also often would

require double payments, because it is unlikely that

recoupment of payments made long ago to previously-

identified survivors would be equitable (see 5 U.S.C.

8346 (b) ).

%8 For example, in this case Isaacson’s father was paid a

lump sum death benefit of $7,755.12, which he has been re-

quired to refund (note 10, supra).

a at oS EO Se cnn a He

37

C. This Court Should Respect The Legislative Accommo-

dation Of The Competing Interests

As the Court of Claims recognized (Gentry v.

United States, supra, 546 F.2d at 351), the legisla-

tive goal of aiding dependent children would be

served by awarding benefits to all illegitimate chil-

dren who were dependent in fact on the wage-earner.

The court thus thought that its invalidation of the

lived-with rule was more faithful to the statute’s

“purpose” than was the statute itself. But statutes

do not conflict with their own “purposes,” and a

court is not free to revise a statute because it thinks

it can devise a plan better attuned to assumed legis-

lative goals. It is often true that Congress seeks to.

achieve more than one goal through particular lan-

guage. Cf. United States v. Naftalin, No. 78-561

(May 21, 1979), slip op. 6. Any attempt to achieve

more of one of the goals may mean the achievement

of less of another; it will upset the legislative accom-

modation of interests. See Califano v. Boles, supra,

slip op. 2-4, 14-15. And so it is here.

The provision of assistance to all identifiable de-

pendent children of deceased civil servants-is not the

only, or even the primary, goal of the Civil Service

Retirement Act. The statute is designed to provide a

comprehensive basic retirement and survivor’s insur-

ance plan for civil servants, at a cost reasonable for

both the employee and employer. In determining the

scope of the children’s annuity program, Congress

considered its relation to the entire package of bene-

fits. Judgments concerning the particular classes of

children to be included, the size of annuities payable,

38

and the costs of administering the program are nec-

essarily related; improvement in one area requires a

compensating sacrifice in another (Califano v. Boles,

supra, slip op. 38, 14-15). The program devised

by Congress reflects both its decision concerning the

proper relationship among these considerations and

its decision “to concentrate limited funds where

the need is likely to be greatest” (id. at 15). The

judicial attribution of an overriding goal to Con-

gress, and the expansion of the class of entitled an-

nuitants “better” to serve that goal, necessarily re-

quires a reallocation of resources and thus distorts

the insurance package Congress selected, whether by

diminishing the protection afforded other annuitants,

by increasing the cost of the insurance, or by adding

to the difficulties of administration.

The balancing of the competing social interests is a

matter within the particular competence of the legis-

lature.“ He:ze, as in Mathews v. Lucas, supra, 427

U.S. at 515-516 (citations omitted) :

These matters of practical judgment and em-

pirical calculation are for Congress. * * * Our

role is simply to determine whether Congress’

assumptions are so inconsistent or insubstantial

34 Indeed, Congress is considering the desirability of expand-

ing the class of children entitled to Civil Service survivor’s

annuities to include people situated similarly to Shawn and

Tricia Clark. OPM has recommended legislation that would

eliminate the lived-with requirement. S. 509, 96th Cong., 1st

Sess. (1979) ; H.R. 2584, 96th Cong., Ist Sess. (1979). That

legislation has not yet been acted on by the responsible

committees.

ata IIIT

nha ihe it BS cant Fe abe tela Net set De dee oe ne aa

ale, ica: anion

39

as not to be reasonably supportive of its con-

clusions * * *. In the end, the precise accuracy

of Congress’ calculations is not a matter of spe-

cialized judicial competence; and we have no

basis to question their detail beyond the evident

consistency and substantiality. We cannot say

that these expectations are unfounded, or so

indiscriminate as to render the statute’s classifi-

cations baseless.

CONCLUSION

The judgment of the Court of Claims should be

reversed.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney

General

FRANK H. EASTERBROOK

Deputy Solicitor General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

JULY 1979

W U. S. GOVERNMENT PRINTING OFFICE; 1979 296217 20