Opposition Brief — Absher v. United States

rerwerewwrrs were eek

(y) yay: Gupreme Court, Us.

By L EILLED

No. 86-1312 :

r — APR 9-967

“JOSEPH F. SPANTOL, JR.

K

E

Inu the Supreme Court of the

OCTOBER TERM, 1986

CHARLES ROGER ABSHER, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

GREGORY C. SISK

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Ais Ft

”

’

°

a

e

\

\ :

: t

Z :

\

. s

—s ~e

7

’ :

A 2 © = z

Z

1

| "

‘

: : |

Kin :

\ 2 |

;

2

“

‘

as : :

é.

\

3 {

.

;

‘ :

/

aa G

° |

se |

4 ¢ be ie 3 | :

g

, : ?

. |

A | |

| .

| ‘

a

. ! 3

“ : i |

re 3

2

\

x :

QUESTION PRESENTED

Whether disabled veterans who have retired from the

uniformed services are denied equal protection because

they are not permitted to receive both full retirement pay

and full veterans disability benefits, whereas retirees under

the civil service system are not required to waive a portion

of their civil service annuity in order to receive veterans

disability benefits.

(I)

TABLE OF CONTENTS

Page

SE noc as pcweassebeecae va eei et evee+s l

ES SE a a a a Cee a near I

Statutory provisions involved .................20.- l

eee Baka bd Ck 6 kN 5 6 6p A668 6 oe ROS BREE S 2

cca cc ed sha s AO00 S05 ic 61 RN OOS Cowwes 4

i ee eae keene eu bans hes oh ae 6S 0s 9

TABLE OF AUTHORITIES

Cases:

Bowen v. Owens, No. 84-1905 ,

a eer eee eee eT eee ee 4

City of Cleburne v. Cleburne Living Center,

Inc., No. 84-468 (July 1, 1985) ............. 4,7

Flemming v. Nestor, 363 U.S. 603

ee aos he bbe heads bowee ee 4,5

Mathews v. DeCastro, 429 U.S. 181

ea eg kk os 0d ek abe bbawe 4

McCarty v. McCarty, 453 U.S. 210

ETE EES TE: EE a a a 7

Plyler v. Doe, 457 U.S. 202 .

RUT USE Te a eae: ore oe 4

Richardson v. Belcher, 404 U.S. 78

eee cee waa eat coencenes 4

San Antonio Independent School Dist. v.

Se 6 re 7

United States Railroad Retirement Board v.

Preis, S09 U.S. TGS (ISSR) owns cece sccae 4,5,7,9

(111)

IV

Page

Cases—Continued:

Vance v. Bradley, 440 U.S. 93

FUSPOR c0b 0sssbsbscusewunaeeaT riers es 4-5, 7

Weinberger v. Salfi, 422 U.S. 749

SR nr er oy Pr a te 4

Constitution, statutes and regulations: Ps

U.S. Const. :

P,P Pee re rae ee Tre 3

Amend. XIV (Equal Protection

= ee a eee Pr eee 4,7

Act of Mar. 3, 1891, ch. 548, § 1,

SE Ee ee ee eee 2

Act of May 27, 1944, ch. 209, 58 Stat.

RE rT eee CT eT EET TTEe 2

Federal Employees’ Retirement System Act of

1986, Pub. L. No. 99-335, 100 Stat. 514

et seq. :

§ 101(a):

100 Stat. 523 (to be codified at |

PF eae I iii e tons 4s cdeeaeee 6

100 Stat. 523, 536-537 (to be

codified at 5 U.S.C. 8411(c)(1)(B),

2) |) ) ee eee 6

Fa EEE acs taencastndedaewance as 6

Pa EE hie 65-0 0-0 bd Nn d bed Mo dEE OSS OO 6

2 ee ED 6-5b 20 o5 ew ceed ncwehanaces 6

pk oe ee eeeerrrorry reer rer rer 5

Page

Constitution, statutes and regulations—Continued:

> Uae GE Be. BEEP SRM) sic ciccckdawecses 6

$US:C-8336(a) ...... 6

I ooo so rs vnc ceeud nein 6

SAN es ei siovcncke essa deeae 6

ee ee ae Pre a ree 2, 5-6

es i a ay als wands 5-6

10 U.S.C. (& Supp. Ill) 6321 et seg. .........05- 2

OO oe aa a ous 6

Re Ab as Serer i eisnies 6

gts we OF errr rere err er ry ere 2,6

re ie ia ands is) aces vinden 6

14 U.S.C. (& Supp. III) 288-294 ............... 2

MUAE Se ci i as 6

rubles © 5... Serpe enna 2

66 01 I oi ik sb cvciceniviccis 6

ik foe | ee ere 2

TEP tae Se er ety 2

14 UB ls TO a Bocce cee 2

SE id hs ves crea deeees 2

es ee hice 2

Se a aso eo bales ae 2

ie ee ae ae me

USC Ge. TS od koe 2

Vi

Page

Constitution, statutes and regulations—Continued:

38 U.S.C. (& Supp. IIT) 301 ef seg. ..........5-. 2

38 U.S.C. (@ Supp. UT) S14 ow cc cccccccccccces 2

SB US Sir rere ccccchsnstasosecssesssece 2

Fe UES. BIRO cesccccevccccesssccvcetape 2, 3,9

TE UBL. SIGE) cc cccvccccccsccesssccsess l

BS UBS SOD che cccececicccicectecnens 1,2,3,9

BB UB. FRR co ccccccccnccavccsceseecse l

42 U.S.C. (@& Supp. TH) 212 2... cccccccscdccees 2

42 U.S.C. (& Supp. IIT) 212(a) ............4-4-. 6

Pat ee errr er rr rrr TT rr 6

Army Reg. :

Reg. 30-19, App. B (July 1,

SN en.6decedad nes dees ktnocnenesedues 6

Reg. 215-2, ch. 2 (Mar. 6,

Pn dc ibisitaades ins es 0keese be eenes 6

Reg. 60-20, YF 2-9 (Aug. 1,

8 SCPE E PCT TT LEN TELE OTe Tee 6

Reg. 40-3, FF 4-11 (Feb. 15

SED a as vane bkes detacschsaupneecepen’ 6

Miscellaneous:

21 Cong. Rec. (1890):

Ol TPE ce cccccccccasnnesseniesenece 8

SE EY. 60.06 6s.00ccsccesavceucouned’ 8

22 Cong. Rec. (1891):

i BO isa. choosecsscececcsumaaeeaneens 8

Vil

Page

Miscellaneous— Continued:

H.R. 722, 95th Cong., Ist Sess.

PE pac GdaeabOCPENEEES R64 e Sceccecaeues 9

H.R. 823, 96th Cong., Ist Sess.

2 RPE re pg ag SOU OTTTTT TT 9

H.R. 2141, 97th Cong., Ist Sess.

CRED ccdeddvedto neue subs he's 00000 bcbekeees 9

H.R. 517, 97th Cong., Ist Sess.

EARS eo er ey pone

H.R. 325, 98th Cong., Ist Sess.

SRE CRaGACAD EU OEPEN eR bos ceccbedeeeaseus 9

H.R. 468, 98th Cong., Ist Sess.

dice eek Eee cabins thet ones s6s460% 9

H.R. 867, 99th Cong., Ist Sess.

EE Had Kone SawESUASURS Occ cévcccccoseses 9

H.R. 1366, 99th Cong., Ist Sess.

CRUSE scastivcné S REN neaeeneees haasee 9

Office of the Actuary, Defense Manpower

Data Center, FY 1983 Defense Statistical

Report on the Military Retirement

GG Soc desc cccceseciccdcccctccese ©

S. 1907, 96th Cong., Ist Sess.

CR buck dined se ewkGedbesscccccenvcesncasus 9

In the Supreme Court of the United States

OCTOBER TERM, 1986

e No. 86-1312

CHARLES ROGER ABSHER, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-5Sa) is

reported at 805 F.2d 1025. The opinion of the Claims Court

(Pet. App. 6a-15a) is reported at 9 Cl. Ct. 223.

JURISDICTION

The judgment of the court of appeals was entered on

November 14, 1986. The petition for a writ of certiorari was

filed on February 10, 1987. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

38 U.S.C. 3104(a)(1) (misidentified as 38 U.S.C.

3704(a)(1)) and 38 U.S.C. 3105 are reprinted at Pet. 2.

(1)

2

STATEMENT

1. Veterans who have served in the uniformed services

for a period of twenty years or more are generally entitled to

retirement pay from their respective services. See 10 U.S.C.

3911 et seq. (Army); 10 U.S.C. (& Supp. III) 6321 et seq.

(Navy and Marines); 10 U.S.C. 8911 et seq. (Air Force); 14

U.S.C. (& Supp. II]) 288-294, 14 U.S.C. (Supp. IID) 353-

355, 362, 421, 423-424 (Coast Guard); 33 U.S.C. (Supp. IIT)

853g, 33 U.S.C. 853k, 853/, 33 U.S.C. (& Supp. III) 8530

(National Oceanographic and Atmospheric Administra-

tion); 42 U.S.C. (& Supp. III) 212 (Public Health Service).

Retirement pay is taxed as ordinary income. Veterans with

a service-related disability may also qualify for disability

compensation and pensions administered by the Veterans

Administration (VA). 38 U.S.C. (& Supp. III) 301 et seq.

These VA benefits vary according to the degree of the

disability, without regard to rank or length of service (38

U.S.C. (& Supp. III) 314). They are exempt from taxation

(38 U.S.C. 3101; 26 U.S.C. 104(a)(4)).

Retired veterans may not, however, receive both full

retirement pay-and disability benefits (38 U.S.C. 3104).

Such dual payments have been expressly prohibited since

1891, originally by a flat ban on retirees receiving any

disability benefits at all (Act of Mar. 3, 1891, ch. 548, § 1, 26

Stat. 1082). Starting in 1944, however, Congress permitted

retirees to waive an amount of retirement pay equal to the

amount they are eligible to receive in disability benefits, Act

of May 27, 1944, ch. 209, 58 Stat. 230 et seq. (currently

codified at 38 U.S.C. 3105), so that retirees may receive the

full benefit of the tax-exempt status of their disability

benefits.

2. Petitioners are 2,048 disabled military retirees. They

challenged the constitutionality of 38 U.S.C. 3104 and 3105

in the Claims Court, contending that the ban on dual com-

pensation and its accompanying waiver requirement violate

3

the equal protection component of the Fifth Amendment

because civil service retirees who also qualify for VA dis-

ability benefits are not required to waive a portion of their

civil service annuities in order to receive the VA benefits.

Petitioners sought the amount of back retirement pay they

had waived during the six years preceding the filing of their

complaint.

The Claims Court (Pet. App. 6a-15a) granted summary

judgment for the United States. The court held that the

prohibition on dual compensation in 38 U.S.C. 3104 and

the waiver provision of 38 U.S.C. 3105 together serve the

legitimate objectives of limiting public spending and plac-

ing a ceiling on the amount of compensation received as a

result of uniformed service (Pet. App. 12a-13a). Moreover,

the court held, Congress has pursued these objectives in a

rational manner. The court rejected petitioners’ contention

that there is no rational distinction between military retirees

and other federal employees who are not required to waive

their annuities in order to receive VA disability benefits (id.

at 13a-14a). Pointing to the “preferential treatment deserved-

ly provided retirees of the uniformed services”—including

the young age at which military personnel can retire and

numerous “commissary, recreational, travel and health

benefits in addition to their retired pay”—the court con-

cluded that these special benefits provided “a rational basis

for limiting the amount of compensation [petitioners]

receive” (ibid.). Putting the point another way, the court

held that “(t]he special benefits accorded retirees of the

uniformed services are such that this class of individuals is

not situated similarly to other groups that are not required

to waive retirement pay to receive tax-free VA benefits” (id.

at 14a).

The court of appeals affirmed (Pet. App. la-Sa). It agreed

with the Claims Court that the legislative decision to limit

the compensation received by uniformed services retirees,

4

while permitting them to take full advantage of the tax-

exempt VA disability benefits, is “the type of balance Con-

gress is entitled to strike” (id. at 4a). And the court found

the differences between civil service retirement and military

retirement more than sufficient to explain the disparate

treatment of the two groups of retirees. The court con-

cluded that “[t]he balance [Congress] has thus struck is not

only rational, it also bears a demonstrably fair and substan-

tial relation to legitimate legislative objectives” (id. at Sa).

ARGUMENT

The decision of the court of appeals is correct. It does not

conflict with any decision of this Court or of any other court

of appeals. To the contrary, it is consistent with a long line

of decisions rejecting attempts to use the Equal Protection

Clause to obtain greater benefits than Congress has chosen

to provide under a particular program. E.g., Bowen v.

Owens, No. 84-1905 (May 19, 1986); United States Rail-

road Retirement Board vy. Fritz, 449 U.S. 166 (1980):

Mathews v. DeCastro, 429 U.S. 181 (1976); Weinberger v.

Salfi, 422 U.S. 749 (1975); Richardson v. Belcher, 404 U.S.

78 (1971); Flemming v. Nestor, 363 U.S. 603 (1960). No

further review is warranted.

1. To establish a denial of equal protection, a plaintiff

group must make a two-part showing. First, it must show

disparate treatment: it must identify a similarly situated

group and show that it is being treated less favorably than

that group. City of Cleburne v. Cleburne Living Center,

Inc., No. 84-468 (July 1, 1985), slip op. 6; Plyler v. Doe, 457

U.S. 202, 216 (1982). Second, it must show that there is no

justification for the disparity; where, as here, no “suspect

classification” or “fundamental interest” is involved, the

test is whether the difference in treatment “is so unrelated to

the achievement of any combination of legitimate purposes

that [the Court] can only conclude that the legislature’s

actions were irrational.” Vance v. Bradley, 440 U.S. 93, 97

ee ce

2

(1979). See also United States Railroad Retirement Board

v. Fritz, 449 U.S. at 174-176; Flemming v. Nestor, 363 U.S.

at 611.

2. Petitioner’s showing here falls far short. The bundle of

retirement benefits for uniformed service personnel evolved

separately, and differs in many respects, from the bundle of

benefits for civil service personnel. Military retirement

benefits are tailored to Congress’s perception of what is

needed to attract qualified personnel, to ensure dedicated

service and an orderly pattern of promotion, and to provide

suitably for retirement. Cf. Vance v. Bradley, 440 U.S. at

109 (“The Foreign Service retirement system and the Civil

Service retirement system are packages of benefits, require-

ments, and restrictions serving many different purposes.”).

Petitioners offer no reason whatever to conclude that mil-

itary and civil service personnel must be treated identically,

or that each group is constitutionally entitled to the benefit

of any provision enjoyed by the other. Cf. id. at 98-102

(rejecting equal protection challenge to mandatory retire-

ment age in Foreign Service).

a. The dual benefits provision cannot be viewed in isola-

tion. The military retirement system differs in numerous

respects from the civil service retirement system, offering

substantial advantages to military personnel that are not

enjoyed by their counterparts in the civil service. Three

examples will illustrate. First, uniformed services personnel

make no contribution to any retirement fund. Civil service

personnel, by contrast, must make regular contributions to

their retirement fund of up to 7% of their salaries. 5 U.S.C.

8334(a)(1).! Second, uniformed services personnel gener-

ally may retire after 20 years of servite, regardless of age. 10

1A disabled veteran who enters the civil service does not evade the

employee-contribution requirement. If he wishes civil service retire-

ment credit for his years of military service he usually must (a) forfeit

any uniformed services retired pay to which he would otherwise be

6

U.S.C. 3911, 3914 (Army); 10 U.S.C. 6323, 6327 (Navy and

Marines); 10 U.S.C. 8911, 8914 (Air Force); 14 U.S.C. 291,

14 U.S.C. (Supp. III) 355 (Coast Guard); 33 U.S.C. 853/

(National Oceanographic and Atmospheric Administra-

tion); 42 U.S.C. (& Supp. III) 212(a) (Public Health Ser-

vice). The average age of enlisted personnel at retirement is

42, and officers on average retire at 46 (Pet. App. 14a; Office

of the Actuary, Defense Manpower Data Center, FY 1983

Defense Statistical Report on the Military Retirement Sys-

tem 91 (1984)). Civil service personnel, by contrast, must

generally wait until age 62 to retire and receive benefits. 5

U.S.C. 8338(a).2 Third, in addition to retired pay, uni-

formed service retirees also receive commissary, recrea-

tional, travel, and health benefits not available to civil

service retirees. See, e.g., Army Reg. 40-3, 4 4-11 (Feb. 15,

1985) (medical services); id. at 60-20, JY 2-9 (Aug. 1, 1984) |

(exchange privileges); id. at 30-19, App. B (July 1, 1980)

(commissary privileges); id. at 215-2, ch. 2 (Mar. 6, 1984)

(recreational privileges).

b. Congress, weighing the needs of the military services,

established a package of retirement benefits to meet those

needs. Differences between that package and the benefits

afforded to other government personnel do not violate the

entitled, 5 U.S.C. 8332(c)(2); Pub. L. No. 99-335, § 101(a), 100 Stat. 523

(to be codified at 5 U.S.C. 8411(c)(2)), and (b) make a contribution to

the civil service retirement fund of either 7% or 3% for each year of

military service performed after December 31, 1956, depending upon

whether he is subject to the Civil Service Retirement System (5 U.S.C.

8332(c)(1)(B) and (j)(2}(A); 5 U.S.C. (& Supp. II]) 8334(j); 5 C.F.R.

831.301(b)), or the new Federal Employees’ Retirement System (Pub.

L. No. 99-335, $ 101(a), 100 Stat. 523, 536-537 (to be codified at 5

U.S.C. 8411(c)(1)(B), 8422(e))).

?There are, however, special provisions that permit a civil service

employee with 30 years of service to retire at age 55 (5 U.S.C. 8336(a)),

or with 20 years of service at age 60 (5 U.S.C. 8336(b)).

7

Equal Protection Clause unless “natently arbitrary or irra-

tional.” United States Railroad Retirement Board v. Fritz,

449 U.S. at 177; see Vance v. Bradley, 440 U.S. at 96-97;

San Antonio Independent School Dist. v. Rodriguez, 411

U.S. 1, 40 (1973); City of Cleburne v. Cleburne Living

Center, Inc., slip op. 6.

For example, in Vance v. Bradley, supra, a group of

Foreign Service employees challenged a requirement that

they retire at age 60 as a violation of equal protection

because civil service employees are not subject to the same

requirement. This Court noted that the age limit could not

be struck down on this ground unless the cap was shown not

to be rationally related “to the achievement of any combina-

tion of legitimate purposes.” 440 U.S. at 97. The Court

found that the objectives of stimulating superior perfor-

mance in the Foreign Service by assuring that opportunities

for promotion are available, and ensuring that Foreign

Service personnel are up to the rigors of overseas duty,

provide ample justification for having a mandatory retire-

ment age in the Foreign Service.

Similarly, a retirement system for the uniformed services

that requires no employee contributions and permits early

retirement but does not allow dual payments clearly bears a

rational relationship to the needs of the uniformed services.

As this Court explained in McCarty v. McCarty, 453 U.S.

210, 212-213 (1981) (footnotes and citations omitted):

The impetus for [the enactment of a military retire-

ment system during the Civil War] was the need to

encourage or force the retirement of officers who were

not fit for wartime duty. Thus, from its inception, the

military nondisability retirement system has been “as

much a personnel management tool as an income

maintenance method,” the system was and is designed

not only to provide for retired officers, but also to

ensure a “young and vigorous” military force, to create

8

an orderly pattern of promotion, and to serve as a

recruiting and re-enlistment inducement.

In keeping with these purposes, Congress has crafted a

retirement program for members of the uniformed services

that imposes no burden on current income and that encour-

ages both enlistment and early retirement by permitting

retirement after 20 years of service with a lifetime annuity

and substantial post-retirement in-kind benefits. In this

way, the needs for “a ‘young and vigorous’ military force

[and] an orderly pattern of promotion” are served. Having

crafted such a package of retirement benefits for uniformed

service employees, Congress obviously could decide to save

money and keep benefits at what it thought an appropriate

level by denying a pro tanto portion of retirement pay to

uniformed service retirees who are also receiving VA dis-

ability benefits, without at the same time denying dual

benefits to civil service retirees, whose retirement fund

comes in part from their own mandatory contributions and

who will generally have been required to serve to a greater

age. To hold otherwise would expose virtually every provi-

sion for compensation or benefits to any class of govern-

ment employees—and much else besides—to judicial scru-

tiny for comparability to some other provision affecting

some other class.

The debates on the ban on dual compensation evinced a

concern with the rising cost of military pensions and a belief

that dual compensation was excessive and improper. 21

Cong. Rec. 8507-8508, 8509-8522 (1890); 22 Cong. Rec.

134, 2191-2192 (1891). These were legitimate concerns then

and they are legitimate concerns now, especially when

viewed in light of the various special advantages of military

retirement.

Congress could, of course, have provided more gener-

ously for uniformed service retirees. In just the past ten

years, in fact, more than twenty bills have been introduced

9

to amend 38 U.S.C. 3104 and 3105, but none has been

enacted. See, e.g., H.R. 867, 99th Cong., Ist Sess. (1985);

H.R. 1366, 99th Cong., Ist Sess. (1985); H.R. 325, 98th

Cong., Ist Sess. (1983); H.R. 468, 98th Cong., Ist Sess.

(1983); S. 783, 97th Cong., Ist Sess. (1981); H.R. 517, 97th

Cong., Ist Sess. (1981); H.R. 2141, 97th Cong., Ist Sess.

(1981); S. 1907, 96th Cong., Ist Sess. (1979); H.R. 823, 96th

Cong., Ist Sess. (1979); H.R. 722, 95th Cong., Ist Sess.

(1977). See also Pet. App. 14a-15a. As this Court said in

rejecting a similar attempt to win in this Court what a group

of retirees had failed to win in Congress, “[t]o be sure, [the

retiree] lost a political battle in which he had a strong

interest, but this is neither the first nor the last time that

such a result will occur in the legislative forum.” United

States Railroad Retirement Board v. Fritz,449 U.S. at 179.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

GrReEGorY C. SISK

Attorney

APRIL 1987