# Appellants Brief — United States v. Clark

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellants Brief
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 23

## Text

“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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0097%3A05. Public record. Not legal advice.