SSR 75-24c: SECTIONS 205(g) and (h), 216(c)(5) and (e)(2) (42 U.S.C. 405(g) and (h), 416(c)(5) and (e)(2)) -- MOTHER'S AND CHILD'S INSURANCE BENEFITS -- RELATIONSHIP -- CONSTITUTIONALITY OF NINE-MONTH DURATION OF MARRIAGE REQUIREMENT -- FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

20 CFR 404.1104(e) and 404.1109(b)

SSR 75-24c

Weinberger v. Salfi, et al , _____ U.S. _____, 95 S.Ct. 2457

(1975)

Mr. Justice Rehnquist delivered the opinion of the Court.

Appellants, the Department of Health, Education, and Welfare, its

Secretary, the Social Security Administration and various of its

officials, appeal from a decision of the United States District Court for

the Northern District of California invalidating duration-of-relationship

Social Security eligibility requirements for surviving wives and

stepchildren of deceased wage earners. 373 F.Supp. 961 (1974).

That court concluded that it had jurisdiction of the action by virtue of

28 U.S.C. § 1331, and eventually certified the case as a class action. On

the merits, it concluded that the nine-months requirements of 42 U.S.C. §§

416(c)(5) and (e)(2) constituted "irrebutable presumptions" which were

constitutionally invalid under the authority of Cleveland Board of

Education v. LaFleur , 414 U.S. 632 (1974), Vlandis v. Kline ,

412 U.S. 441 (1973), and Stanley v. Illinois , 405 U.S. 645 (1972).

We hold that the District Court did not have jurisdiction of this action

28 U.S.C. § 1331, and that while it had jurisdiction of the claims of the

named appellees under the provisions of 42 U.S.C. § 405(g), it had no

jurisdiction over the claims asserted on behalf of unnamed class members.

We further decide that the District Court was wrong on the merits of the

constitutional question tendered by the named appellees.

I

id not have jurisdiction of this action

28 U.S.C. § 1331, and that while it had jurisdiction of the claims of the

named appellees under the provisions of 42 U.S.C. § 405(g), it had no

jurisdiction over the claims asserted on behalf of unnamed class members.

We further decide that the District Court was wrong on the merits of the

constitutional question tendered by the named appellees.

I

Appellee Salfi married the deceased wage earner, Londo L. Salfi, on May

27, 1972. Despite his alleged apparent good health at the time of the

marriage, he suffered a heart attack less than a month later, and died on

November 21, 1972, less than six months after the marriage. Appellee filed

applications for mother's insurance benefits for herself and child's

insurance benefits for her daughter by a previous marriage, Doreen

Kalnins. [1] These applications

were denied by the Social Security Administration, both initially and on

reconsideration at the regional level, solely on the basis of the

duration-of-relationship requirements of §§ 416(c)(5) and (e)(2), which

define "widow" and "child." The definitions exclude surviving wives and

stepchildren who had their respective relationships to a deceased wage

earner for less than nine months prior to his

death. [2]

The named appellees then filed this action, principally relying on 28

U.S.C. § 1331 for jurisdiction. They sought to represent the class of "all

widows and stepchildren of deceased wage earners who are denied widow's

[ sic ] and children's insurance benefits because the wage earner

died within nine months of his marriage to the applicant or (in case of a

stepchild) the applicant's mother." App., at 8. They alleged at least

partial exhaustion of remedies with regard to their personal claims, but

made no similar allegations with regard to other class members

deceased wage earners who are denied widow's

[ sic ] and children's insurance benefits because the wage earner

died within nine months of his marriage to the applicant or (in case of a

stepchild) the applicant's mother." App., at 8. They alleged at least

partial exhaustion of remedies with regard to their personal claims, but

made no similar allegations with regard to other class members. They

sought declaratory relief against the challenged statute, and injunctive

relief restraining appellants from denying mother's and child's benefits

on the basis of the statute. In addition to attorney's fees and costs,

they also sought "damages or sums due and owing equivalent to the amount

of benefits to which plaintiffs became entitled as of the date of said

entitlement." Id ., at 13.

A three-judge District Court heard the case on cross-motions for summary

judgment, and granted substantially all of the relief prayed for by

appellees. The District Court rendered a declaratory judgment holding the

challenged statute to be unconstitutional, certified a class consisting of

"all otherwise eligible surviving spouses and stepchildren . . .

heretofore disqualified from receipt of . . . benefits by operation" of

the duration-of-relationship requirements, enjoined appellants from

denying benefits on the basis of those requirements, and ordered them to

provide such benefits "from the time of original entitlement." 373

F.Supp., at 966. We noted probable jurisdiction of the Secretary's appeal

from that judgment. 419 U.S. 992 (1974).

tofore disqualified from receipt of . . . benefits by operation" of

the duration-of-relationship requirements, enjoined appellants from

denying benefits on the basis of those requirements, and ordered them to

provide such benefits "from the time of original entitlement." 373

F.Supp., at 966. We noted probable jurisdiction of the Secretary's appeal

from that judgment. 419 U.S. 992 (1974).

In addition to their basic contention that the duration-of-relationship

requirements meet constitutional muster, appellants present several

contentions bearing on the scope of the monetary relief awarded by the

District Court. They contend that the award if barred by sovereign

immunity insofar as it consists of retroactive benefits, that regardless

of sovereign immunity invalidation of the duration-of-relationship

requirements should be given prospective effect only, and that the

District Court did not properly handle certain class action issues.

Because we conclude that the duration-of-relationship requirements are

constitutional, we have no occasion to reach the retroactivity and class

action issues. We are confronted, however, by a serious question as to

whether the District Court had jurisdiction over this suit.

II

The third sentence of 42 U.S.C. § 405(h) provides:

On its face, this provision bars district court federal question

jurisdiction over suits, such as this one, which seek to recover Social

Security benefits. Yet it was § 1331 jurisdiction which appellees

successfully invoked in the District Court. That court considered this

provision, but concluded that it was inapplicable because it amounted to

no more than a codification of the doctrine of exhaustion of

administrative remedies. The District Court's reading of § 405(h) was, we

think, entirely too narrow.

recover Social

Security benefits. Yet it was § 1331 jurisdiction which appellees

successfully invoked in the District Court. That court considered this

provision, but concluded that it was inapplicable because it amounted to

no more than a codification of the doctrine of exhaustion of

administrative remedies. The District Court's reading of § 405(h) was, we

think, entirely too narrow.

That the third sentence of § 405(h) is more than a codified requirement

of administrative exhaustion is plain from its own language, which is

sweeping and direct and which states that no action shall be

brought under § 1331, not merely that only those actions shall be brought

in which administrative remedies have been exhausted. Moreover, if the

third sentence is construed to be nothing more than a requirement of

administrative exhaustion, it would be superfluous. This is because the

firs tow sentences of § 405(h), which appear in the

margin, [4] assure that

administrative exhausting will be required. Specifically, they prevent

review of decisions of the Secretary save as provided in the Act, which

provision is made in §

405(g). [5] The latter section

prescribes typical requirements for review of matters before an

administrative agency, including administrative

exhaustion. [6] Thus the District

Court's treatment of the third sentence of § 405(h) ignored not only that

sentence's plain language, but also relegated it to a function which is

already performed by other statutory provisions.

n is made in §

405(g). [5] The latter section

prescribes typical requirements for review of matters before an

administrative agency, including administrative

exhaustion. [6] Thus the District

Court's treatment of the third sentence of § 405(h) ignored not only that

sentence's plain language, but also relegated it to a function which is

already performed by other statutory provisions.

A somewhat more substantial argument that the third sentence of § 405(h)

does not deprive the District Court of federal question jurisdiction

relies on the fact that it only affects actions to recover on "any claim

arising under [Title II]" of the Social Security

Act. [7] The argument is that the

present action arises under the Constitution and not under Title II. It

would of course be fruitless to contend that appellees' claim is one which

does not arise under the Constitution, since their constitutional

arguments are critical to their complaint. But it is just as fruitless to

argue that this action does not also arise under the Social Security Act.

For not only is it Social Security benefits which appellees seek to

recover, but it is the Social Security Act which provides both the

standing and the substantive basis for the presentation of their

constitutional contentions. Appellees sought, and the District Court

granted, a judgment directing the Secretary to pay Social Security

benefits. To contend that such an action does not arise under the act

whose benefits are sought is to ignore both the language and the substance

of the complaint and judgment. This being so, the third sentence of §

405(h) precludes resort to federal question jurisdiction for the

adjudication of appellees' constitutional contentions.

It has also been argued that Johnson v. Robison , 415 U.S. 361

. To contend that such an action does not arise under the act

whose benefits are sought is to ignore both the language and the substance

of the complaint and judgment. This being so, the third sentence of §

405(h) precludes resort to federal question jurisdiction for the

adjudication of appellees' constitutional contentions.

It has also been argued that Johnson v. Robison , 415 U.S. 361

(1974), supports the proposition that appellees are not seeking to recover

on a claim arising under Title II. In that case we considered 38 U.S.C. §

221(a), which provides:

We were required to resolve whether this language precluded an attack on

the constitutionality of a statutory limitation. We concluded that it did

not, basically because such a limitation was not a "decision" of the

Administrator "on any question of law or fact"; indeed, the "decision" had

been made by Congress, not the Administrator, and the issue was one which

the Administrator considered to be beyond his jurisdiction. 415 U.S., at

367-368. Thus the question sought to be litigated was simply not within §

211(a)'s express language, and there was accordingly no basis for

concluding that congress sought to preclude review of the

constitutionality of veterans' legislation.

The language of § 405(h) is quite different. Its reach is not limited to

decisions of the Secretary on issues of law or fact. Rather, it extends to

any "action" seeking "to recover on any [Social Security] claim" --

irrespective of whether resort to judicial processes is necessitated by

discretionary decisions of the Secretary or by his nondiscretionary

application of allegedly unconstitutional statutory restrictions.

te different. Its reach is not limited to

decisions of the Secretary on issues of law or fact. Rather, it extends to

any "action" seeking "to recover on any [Social Security] claim" --

irrespective of whether resort to judicial processes is necessitated by

discretionary decisions of the Secretary or by his nondiscretionary

application of allegedly unconstitutional statutory restrictions.

There is another reason why Johnson v. Robison is inapposite. It

was expressly based at least in part on the fact that if § 221(a) reached

constitutional challenges to statutory limitations, then absolutely no

judicial consideration of the issue would be available. Not only would

such a restriction have been extraordinary, such that "clear and

convincing evidence" would be required before we would ascribe such intent

to Congress, id ., at 373, but it would have raised a serious

constitutional question of the validity of the statute as so construed. Id ., at 366-367. In the present case, as will be discussed below,

the Social Security Act itself provides jurisdiction for constitutional

challenges to its provisions. Thus the plain words of the third sentence

of § 405(h) do not preclude constitutional challenges. They simply require

that they be brought under jurisdictional grants contained in the Act, and

thus in conformity with the same standards which are applicable to

nonconstitutional claims arising under the Act. The result is not only of

unquestionable constitutionality, but it is also manifestly reasonable,

since it assures the Secretary the opportunity prior to constitutional

litigation to ascertain, for example, that the particular claims involved

are neither invalid for other reasons nor allowable under other provisions

of the Social Security Act.

constitutional claims arising under the Act. The result is not only of

unquestionable constitutionality, but it is also manifestly reasonable,

since it assures the Secretary the opportunity prior to constitutional

litigation to ascertain, for example, that the particular claims involved

are neither invalid for other reasons nor allowable under other provisions

of the Social Security Act.

As has been stated, the Social Security Act itself provides for district

court review of the Secretary's determinations. Title 42 U.S.C. § 405(g)

provides that [a]ny individual, after any final decision of the Secretary

made after a hearing to which he was a party, irrespective of the amount

in controversy, may obtain a review of such decision by a civil action

commenced within 60 days after the mailing to him of notice of such

decision. . . ." See n.5, supra . The question with which we must

now deal is whether this provision could serve as a jurisdictional basis

for the District Court's consideration of the present case. We conclude

that it provided jurisdiction only as to the named appellees and not as to

the unnamed members of the

class. [8]

Section 405(g) specifies the following requirements for judicial review:

(1) a final decision of the Secretary made after a hearing; (2)

commencement of a civil action within 60 days after the mailing of the

notice of such decision (or within such further time as the Secretary may

allow); and (3) filing of the action in an appropriate district court, in

general that of the plaintiff's residence or principal place of business.

The second and third of these requirements specify, respectively, a

statute of limitations and appropriate venue. As such, they are waivable

by the parties, and not having been timely raised below, see Fed. Rules

Civ. Proc. 8(c), 12(h)(1), need not be considered here

the action in an appropriate district court, in

general that of the plaintiff's residence or principal place of business.

The second and third of these requirements specify, respectively, a

statute of limitations and appropriate venue. As such, they are waivable

by the parties, and not having been timely raised below, see Fed. Rules

Civ. Proc. 8(c), 12(h)(1), need not be considered here. We interpret the

first requirement, however, to be central to the requisite grant of

subject matter jurisdiction the statute empowers district courts to review

a particular type of decision by the Secretary, that type being those

which are "final" and "made after a hearing."

In the present case, the complaint seeks review of the denial of benefits

based on the plain wording of a statute which is alleged to be

unconstitutional. That a denial on such grounds which are beyond the power

of the Secretary to affect, is nonetheless a decision of the Secretary for

these purposes has been heretofore established. Flemming v. Nestor ,

363 U.S. 603 (1960). As to class members, however, the complaint is

deficient in that it contains no allegations that they have even filed an

application with the Secretary, much less that he has rendered any

decision, final or otherwise, review of which is sought. The class thus

cannot satisfy the requirements for jurisdiction under 42 U.S.C. § 405(g).

Other sources of jurisdiction being foreclosed by § 405(h), the District

Court was without jurisdiction over so much of the complaint as concerns

the class, and it should have entered an appropriate order of

dismissal.

at he has rendered any

decision, final or otherwise, review of which is sought. The class thus

cannot satisfy the requirements for jurisdiction under 42 U.S.C. § 405(g).

Other sources of jurisdiction being foreclosed by § 405(h), the District

Court was without jurisdiction over so much of the complaint as concerns

the class, and it should have entered an appropriate order of

dismissal.

The jurisdictional issue with respect to the named appellees is somewhat

more difficult. In a paragraph entitled "Exhaustion of Remedies," the

complaint alleges that they fully presented their claims for benefits "to

their district Social Security Office and, upon denial, to the Regional

Office for reconsideration." It further alleges that they have no dispute

with the Regional Office's findings of fact or applications of statutory

law, and that the only issue is a matter of constitutional law which is

beyond the Secretary's competence. On their face these allegations with

regard to exhaustion fall short of meeting the literal requirement of §

405(g) that there have been a "final decision of the Secretary made after

a hearing." They also fall short of satisfying the Secretary's

regulations, which specify that the finality required for judicial review

is achieved only after the further steps of a hearing before an

administrative law judge and, possibly, consideration by the Appeals

Council. See 20 CFR §§ 404.916, 404.940, 404.951 (1974).

We have previously recognized that the doctrine of administrative

exhaustion should be applied with a regard for the particular

administrative scheme at issue. Parisi v. Davidson , 405 U.S. 34

view

is achieved only after the further steps of a hearing before an

administrative law judge and, possibly, consideration by the Appeals

Council. See 20 CFR §§ 404.916, 404.940, 404.951 (1974).

We have previously recognized that the doctrine of administrative

exhaustion should be applied with a regard for the particular

administrative scheme at issue. Parisi v. Davidson , 405 U.S. 34

(1972); McKart v. United States , 395 U.S. 185 (1969). Exhaustion is

generally required as a matter of preventing premature interference with

agency processes, so that the agency may function efficiently and so that

it may have an opportunity to correct its own errors, to afford the

parties and the courts the benefit of its experience and expertise, and to

compile a record which is adequate for judicial review. See e.g.,

McKart v. United states, id ., at 193-194. Plainly these purposes have

been served once the Secretary has satisfied himself that the only issue

is the constitutionality of a statutory requirement, a matter which is

beyond his jurisdiction to determine, and that the claim is neither

otherwise invalid nor cognizable under a different section of the Act.

Once a benefit applicant has presented his or her claim as sufficiently

high a level of review to satisfy the Secretary's administrative needs,

further exhaustion would not merely be futile for the applicant, but would

also be a commitment of administrative resources unsupported by any

administrative or judicial interest.

rwise invalid nor cognizable under a different section of the Act.

Once a benefit applicant has presented his or her claim as sufficiently

high a level of review to satisfy the Secretary's administrative needs,

further exhaustion would not merely be futile for the applicant, but would

also be a commitment of administrative resources unsupported by any

administrative or judicial interest.

The present case, of course, is significantly different from McKart in that a "final decision" is a statutorily specified

jurisdictional prerequisite. The requirement is, therefore, as we have

previously noted, something more than simply a codification of the

judicially developed doctrine of exhaustion, and may not be dispensed with

merely by a judicial conclusion of futility such as that made by the

District Court here. But it is equally true that the requirement of a

"final decision" contained in § 405(g) is not precisely analogous to the

more classical jurisdictional requirements contained in such sections of

Title 28 as 1331 and 1332. The term "final decision" is not only left

undefined by the Act, but its meaning is left to the Secretary to flesh

out by regulation. [9] Section

405( l ) of the Act accords the Secretary complete authority to

delegate his statutory duties to officers and employees of the Department

of Health, Education, and Welfare. The statutory scheme is thus one in

which the Secretary may specify such requirements for exhaustion as he

deems serve his own interests in effective and efficient administration.

While a court may not substitute its conclusion as to futility for the

contrary conclusion of the Secretary, we believe it would be inconsistent

with the congressional scheme to bar the Secretary from determining in

particular cases that full exhaustion of internal review procedures is not

necessary for a decision to be "final" within the language of § 405(g).

d efficient administration.

While a court may not substitute its conclusion as to futility for the

contrary conclusion of the Secretary, we believe it would be inconsistent

with the congressional scheme to bar the Secretary from determining in

particular cases that full exhaustion of internal review procedures is not

necessary for a decision to be "final" within the language of § 405(g).

Much the same may be said about the statutory requirement that the

Secretary's decision be made "after a hearing." Not only would a hearing

be futile and wasteful, once the Secretary has determined that the only

issue to be resolved is a matter of constitutional law concededly beyond

his competence to decide, but the Secretary may, of course, award benefits

without requiring a hearing. We do not understand the statute to prevent

him from similarly determining in favor of the applicant, without a

hearing, all issues with regard to eligibility save for one as to which he

considers a hearing to be useless.

In the present case the Secretary does not raise any challenge to the

sufficiency of the allegations of exhaustion in appellees' complaint. We

interpret this to be a determination by him that for the purposes of his

litigation the reconsideration determination is "final." The named

appellees thus satisfy the requirements for § 405(g) judicial review, and

we proceed to the merits of their

claim. [10]

III

the Secretary does not raise any challenge to the

sufficiency of the allegations of exhaustion in appellees' complaint. We

interpret this to be a determination by him that for the purposes of his

litigation the reconsideration determination is "final." The named

appellees thus satisfy the requirements for § 405(g) judicial review, and

we proceed to the merits of their

claim. [10]

III

The District Court relied on congressional history for the proposition

that the duration-of-relationship requirement was intended to prevent the

use of sham marriages to secure Social Security payments. As such,

concluded the court, "the requirement constitutes a presumption that

marriages like Mrs. Salfi's which did not precede the wage earner's death

by at least nine months, were entered into for the purpose of securing

Social Security benefits." 373 F.Supp., at 965. The presumption was

moreover, conclusive, because applicants were not afforded an opportunity

to disprove the presence of the illicit purpose. The court held that under

our decisions in Cleveland Board of Education v. LaFleur , 414 U.S.

632 (1974), Vlandis v. Kline , 412 U.S. 441 (1973), and Stanley

v. Illinois , 405 U.S. 645 (1972), the requirement was

unconstitutional, because it presumed a fact which was not necessarily or

universally true.

Our ultimate conclusion is that the District Court was wrong in holding

the duration-of-relationship requirement unconstitutional. Because we are

aware that our various holdings in related cases do not all sound

precisely the same note, we will explain ourselves at some length.

The standard for testing the validity of Congress' Social Security

classification was clearly stated in Flemming v. Nestor , 363 U.S.

603, 611 (1960):

rict Court was wrong in holding

the duration-of-relationship requirement unconstitutional. Because we are

aware that our various holdings in related cases do not all sound

precisely the same note, we will explain ourselves at some length.

The standard for testing the validity of Congress' Social Security

classification was clearly stated in Flemming v. Nestor , 363 U.S.

603, 611 (1960):

In Richardson v. Belcher , 404 U.S. 78 (1971), a portion of the

Social Security Act which required an otherwise entitled disability

claimant to be subjected to an "offset" by reason of his simultaneous

receipt of state workmen's compensation benefits was attacked as being

violative of the Due Process Clause of the Fifth Amendment. The claimant

in that case asserted that the provision was arbitrary in that it required

offsetting of a state workmen's compensation payment, but not of a similar

payment made by a private disability insurer. The Court said:

Two Terms earlier the Court had decided the case of Dandridge v.

Williams , 397 U.S. 471 (1970), in which it rejected a claim that

Maryland welfare legislation violated the Equal Protection Clause of the

Fourteenth Amendment. The Court had said:

The relation between the equal protection analysis of Dandridge and the Fifth Amendment due process analysis of Flemming v. Nestor and Richardson v. Belcher was described in the latter case in this

language:

These cases quite plainly lay down the government principle for disposing

of constitutional challenges to classifications in this type of social

welfare legislation. The District Court, however, chose to rely on Cleveland Board of Education v. LaFleur, supra; Vlandis v. Kline,

supra , and Stanley v. Illinois, supra . It characterized this

recent group of cases as dealing with "the appropriateness of conclusive

evidentiary presumptions." 373 F.Supp., at 965.

ng

of constitutional challenges to classifications in this type of social

welfare legislation. The District Court, however, chose to rely on Cleveland Board of Education v. LaFleur, supra; Vlandis v. Kline,

supra , and Stanley v. Illinois, supra . It characterized this

recent group of cases as dealing with "the appropriateness of conclusive

evidentiary presumptions." 373 F.Supp., at 965.

Stanley v. Illinois held that it was a denial of the equal

protection guaranteed by the Fourteenth Amendment for a State to deny a

hearing on parental fitness to an unwed father when such a hearing was

granted to all other parents whose custody of their children was

challenged. This Court referred to the fact that the "rights to conceive

and to raise one's children have been deemed 'essential,' Mayer v.

Nebraska , 262 U.S. 390, 399 (1923), 'basic civil rights of man,' Skinner v. Oklahoma , 316 U.S. 535, 541 (1942), and 'rights far more

precious . . . than property rights.' May v. Anderson , 345 U.S.

528, 533 (1953)." 405 U.S., at 651.

In Vlandis v. Kline , a statutory definition of "residents" for

purposes of fixing tuition to be paid by students in a state university

system was held invalid. The Court held that where Connecticut purported

to be concerned with residency, it might not at the same time deny to one

seeking to meet its test of residency the opportunity to show factors

clearly bearing on that issue. 412 U.S., at 452.

v. Kline , a statutory definition of "residents" for

purposes of fixing tuition to be paid by students in a state university

system was held invalid. The Court held that where Connecticut purported

to be concerned with residency, it might not at the same time deny to one

seeking to meet its test of residency the opportunity to show factors

clearly bearing on that issue. 412 U.S., at 452.

In LaFleur the Court held invalid, on the authority of Stanley and Vlandis , school board regulations requiring

pregnant school teachers to take unpaid maternity leave commencing five

months before the expected birth. The Court stated its long-standing

recognition "that freedom of personal choice in matters of marriage and

family life is one of the liberties protected by the Due Process Clause of

the Fourteenth Amendment," 414 U.S., at 639-640, and that "overly

restrictive maternity leave regulations can constitute a heavy burden on

the exercise of these protected freedoms." Id ., at 640.

We hold that these cases are not controlling on the issue before us now.

Unlike the claims involved in Stanley and LaFleur , a

noncontractural claim to receive funds from the public treasury enjoys no

constitutionally protected status, Dandridge v. Williams, supra ,

though of course Congress may not invidiously discriminate among such

claimants on the basis of a "bare congressional desire to harm a

politically unpopular group," U.S. Dept. of Agriculture v. Moreno ,

413 U.S. 528, 534 (1973), or on the basis of criteria which bear no

rational relation to a legitimate legislative goal. Jimenez v.

Weinberger , 417 U.S. 628, 636 (1974); U.S. Dept. of Agriculture v.

Murry , 413 U.S. 508, 513-514 (1973). Unlike the statutory scheme in Vlandis , 412 U.S., at 449, the Social Security Act does not purport

to speak in terms of the bona fides of the parties to a marriage, but then

make plainly relevant evidence of such bona fides inadmissible. As in Starns v. Malkerson , 326 F.Supp. 234 (Minn

Weinberger , 417 U.S. 628, 636 (1974); U.S. Dept. of Agriculture v.

Murry , 413 U.S. 508, 513-514 (1973). Unlike the statutory scheme in Vlandis , 412 U.S., at 449, the Social Security Act does not purport

to speak in terms of the bona fides of the parties to a marriage, but then

make plainly relevant evidence of such bona fides inadmissible. As in Starns v. Malkerson , 326 F.Supp. 234 (Minn. 1970), aff'd, 401 U.S.

985 (1971), the benefits here are available upon compliance with an

objective criterion, one which the legislature considered to bear a

sufficiently close nexus with underlying policy objectives to be used as

the test for eligibility. Like the plaintiffs in Starns , appellants

are completely free to present evidence that they meet the specified

requirements; failing in this effort, their only constitutional claim is

that the test they cannot meet is not so rationally related to a

legitimate legislative objective that it can be used to deprive them of

benefits available to those who do satisfy that test.

We think that the District Court's extension of the holdings of Stanley, Vlandis and LaFleur to the eligibility requirement

in issue here would turn the doctrine of those cases into a virtual engine

of destruction for countless legislative judgments which have heretofore

been thought wholly consistent with the Fifth and Fourteenth Amendments to

the Constitution. For example, the very Section of Title 42 which

authorizes an action such as this, § 405(g), requires that a claim be

filed within 60 days after administrative remedies are exhausted. It is

indisputable that this requirement places people who file heir claims more

than 60 days after exhaustion in a different "class" than people who file

their claims within the time limit. If we were to follow the District

Court's analysis, we would first try to ascertain the congressional

"purpose" behind the provision, and probably would conclude that it was to

prevent stale claims from being asserted in court

s requirement places people who file heir claims more

than 60 days after exhaustion in a different "class" than people who file

their claims within the time limit. If we were to follow the District

Court's analysis, we would first try to ascertain the congressional

"purpose" behind the provision, and probably would conclude that it was to

prevent stale claims from being asserted in court. We would then turn to

the question of whether such a flat cutoff provision was necessary to

protect the Secretary from stale claims, whether it would be possible to

make individualized determinations as to any prejudice suffered by the

Secretary as the result of an untimely filing, and whether or not an

individualized hearing on that issue should be required in each case. This

would represent a degree of judicial involvement in the legislative

function which we have eschewed except in the most unusual circumstances,

and which is quite unlike the judicial role mandated by Dandridge,

Belcher and Flemming v. Nestor , as well as by a host of cases

arising from legislative efforts to regulate private business

enterprises.

In Williamson v. Lee Optical Co ., 348 U.S. 483 (1955), the Court

dealt with a claim that the Equal Protection clause of the Fourteenth

Amendment was violated by an Oklahoma statute which subjected opticians to

a system of detailed regulation, but which exempted sellers of

ready-to-wear glasses. In sustaining the Statute the Court said:

efforts to regulate private business

enterprises.

In Williamson v. Lee Optical Co ., 348 U.S. 483 (1955), the Court

dealt with a claim that the Equal Protection clause of the Fourteenth

Amendment was violated by an Oklahoma statute which subjected opticians to

a system of detailed regulation, but which exempted sellers of

ready-to-wear glasses. In sustaining the Statute the Court said:

More recently, in Mourning v. Family Publications Service, Inc., 411

U.S. 356 (1973), the Court sustained the constitutionality of a regulation

promulgated under the Truth in Lending Act which made the Act's disclosure

provisions applicable whenever credit is offered to a consumer "for which

either a finance charge is or may be imposed or which pursuant to an

agreement, is or may be payable in more than four installments." Id.,

at 362. The regulation was challenged because it was said to conclusively

presume that payments made under an agreement providing for more than four

installments necessarily included a finance charge, when in fact that

might not be the case. The Court rejected the constitutional challenge in

this language:

If the Fifth and Fourteenth Amendments permit this latitude to

legislative decisions regulating the private sector of the economy, they

surely allow no less latitude in prescribing the conditions upon which

funds shall be dispensed from the public treasure. Dandridge v.

Williams, supra . With these principles in mind, we turn to consider

the statutory provisions which the District Court held invalid.

and Fourteenth Amendments permit this latitude to

legislative decisions regulating the private sector of the economy, they

surely allow no less latitude in prescribing the conditions upon which

funds shall be dispensed from the public treasure. Dandridge v.

Williams, supra . With these principles in mind, we turn to consider

the statutory provisions which the District Court held invalid.

Title 42 U.S.C. (Supp. III) § 402 is the basic congressional enactment

defining eligibility for old age survivors' insurance benefit payments,

and is divided into 23 lettered subsections. Subsection 402(g) is entitled

"Mother's insurance benefits," and primarily governs the claim of appellee

Salfi. Subsection 402(d) governs eligibility for child's insurance

benefits, and is the provision under which appellee Kalnins makes her

claim. These subsections, along with others in § 402, specify the types of

social risks for which protection is provided by what is basically a

statutory insurance policy.

A different insurance system, but similarly defined by statute and

operated by a governmental entity, was the subject of our consideration in Geduldig v. Aiello , 417 U.S. 484 (1974), and our disposition of

that case is instructive. We reversed the judgment of a district court

which had held that a California state disability insurance program was

invalid insofar as it failed to provide benefits for disabilities

associated with normal pregnancy. In our opinion we said:

governmental entity, was the subject of our consideration in Geduldig v. Aiello , 417 U.S. 484 (1974), and our disposition of

that case is instructive. We reversed the judgment of a district court

which had held that a California state disability insurance program was

invalid insofar as it failed to provide benefits for disabilities

associated with normal pregnancy. In our opinion we said:

The present case is somewhat different, since the Secretary principally

defends the duration-of-relationship requirement not as a reasonable

legislative decision to exclude a particular type of risk from coverage,

but instead as a method of assuring that payments are only made upon the

occurrence of events the risk of which is covered by the insurance

program. [11] Commercial

insurance policies have traditionally relied upon fixed, prophylactic

rules to protect against abuses which could expand liability beyond the

risks which are within the general concept of its coverage. For example,

life insurance policies often cover deaths by suicide, but not those

suicides which were contemplated when the policy was purchased. Frequently

the method chosen to contain liability within these conceptual bounds is a

strict rule that deaths by suicide are covered if, and only if, they occur

some fixed period of time after the policy is issued. See, e.g., 9

Couch, Cyclopedia of Insurance Law § 40.50 (2d Ed. 1962). While such a

limitation doubtless proves in particular cases to be "under-inclusive" or

"over-inclusive," in light of its presumed purpose, it is nonetheless a

widely accepted response to legitimate interests in administrative economy

and certainty of coverage for those who meet its terms. When the

Government chooses to follow this tradition in its own social insurance

programs, it does not come up against a constitutional stone wall. Rather,

it may rely on such rules so long as they comport with the standards of

legislative reasonableness enunciated in cases like Dandridge v

timate interests in administrative economy

and certainty of coverage for those who meet its terms. When the

Government chooses to follow this tradition in its own social insurance

programs, it does not come up against a constitutional stone wall. Rather,

it may rely on such rules so long as they comport with the standards of

legislative reasonableness enunciated in cases like Dandridge v.

Williams and Richardson v. Belcher .

Under those standards, the question raised is not whether a statutory

provision precisely filters out those, and only those, who are in the

factual position which generated the congressional concern reflected in

the statute. Such a rule would ban all prophylactic provisions, and would

be directly contrary to our holding in Mourning , supra. Nor is the

question whether the provision filters out a substantial part of the class

which caused congressional concern, or whether it filters out more members

of the class than nonmembers. The question is whether Congress, its

concern having been reasonably aroused by the possibility of an abuse

which it legitimately desired to avoid, could rationally have concluded

both that a particular limitation or qualification would protect against

its occurrence, and that the expense and other difficulties of individual

determinations justified the inherent imprecision of a prophylactic rule.

We conclude that the duration-of-relationship test meets this

constitutional standard.

an abuse

which it legitimately desired to avoid, could rationally have concluded

both that a particular limitation or qualification would protect against

its occurrence, and that the expense and other difficulties of individual

determinations justified the inherent imprecision of a prophylactic rule.

We conclude that the duration-of-relationship test meets this

constitutional standard.

The danger of persons entering a marriage relationship not to enjoy its

traditional benefits, but instead to enable one spouse to claim benefits

upon the anticipated early death of the wage earner, has been recognized

from the very beginning of the Social Security program. While no early

legislative history addresses itself specifically to the

duration-of-relationship requirement for mother's and child's benefits,

there were discussions of the analogous requirement for receipt of wife's

benefits under § 402(b). See 42 U.S.C. § 416(b), defining "wife." Dr. A.J.

Altmeyer, Chairman of the Social Security Board, noted that a five-year

requirement "should be strict enough to prevent marriage in anticipation

of larger benefit payments." Hearings on Social Security before the House

Comm. on Ways and Means, 76th Con., 1st Sess., 2297. Similarly, the

Advisory Council on Social Security stated:

The Advisory Council also stated, with regard to § 402(e) widow's

benefits which, like mother's benefits, depend on the § 416(c) definition

of "widow":

Similar concerns were reflected; in the House and Senate Reports on the

1946 amendment which reduced to three years the required duration of a

marriage for the purposes of an eligible "wife." It was stated:

ncil on Social Security stated:

The Advisory Council also stated, with regard to § 402(e) widow's

benefits which, like mother's benefits, depend on the § 416(c) definition

of "widow":

Similar concerns were reflected; in the House and Senate Reports on the

1946 amendment which reduced to three years the required duration of a

marriage for the purposes of an eligible "wife." It was stated:

Later amendments to the Act have been accompanied by discussions of the

duration-of-relationship requirements contained in the definitions of

"widow" and "child." Like the early history of analogous requirements,

they reflect congressional concern with the possibility of relationships

entered for the purpose of obtaining benefits. In 1967, when the

durational period was reduced from one year to nine months, the House

report stated:

When in 1971 Congress added the provisions of 42 U.S.C. (Supp. II) §

416(k)(2) (eliminating the nine-months requirement with respect to

remarriages of persons who had previously been married for more than nine

months), the House report observed that, "This duration-of-relationship

requirement is included in the law as a general precaution against the

payment of benefits where the marriage was undertaken to secure benefit

rights." H.R. Rep. No. 92-231, 92d Cong., 1st Sess., 55.

Undoubtedly the concerns reflected in this congressional material are

legitimate, involving as they do the integrity of both the Social Security

Trust Fund and the marriage relationship. It is also undoubtedly true that

the duration-of-relationship requirement operates to lessen the likelihood

of abuse through sham relationships entered in contemplation of imminent

death. We also think that Congress could rationally have concluded that

any imprecision from which it might suffer was justified by its ease and

certainty of operation.

rust Fund and the marriage relationship. It is also undoubtedly true that

the duration-of-relationship requirement operates to lessen the likelihood

of abuse through sham relationships entered in contemplation of imminent

death. We also think that Congress could rationally have concluded that

any imprecision from which it might suffer was justified by its ease and

certainty of operation.

We note initially that the requirement is effective only within a

somewhat narrow range of situations lacking certain characteristics which

might reasonably be thought to establish the genuineness of a marital

relationship which involves children (and thus the potential for mother's

and child's benefits). Even though a surviving wife has not been married

for a period of nine months immediately prior to her husband's death, she

is nonetheless within the definition of "widow" if she meets one of the

other disjunctive requirements of § 416(c). If she is the mother of her

late husband's son or daughter; if she legally adopted his son or daughter

while she was married to him and while such son or daughter was under the

age of 18; if he legally adopted her son or daughter under the same

circumstances; or if during their marriage, however short, they legally

adopted a child under the age of 18 -- in any of these circumstances the

surviving wife may claim widow's or mother's benefits even though she has

not been married to her husband for a full nine

months. [12] The common

denominator of these disjunctive requirements appears to us to be the

assumption of responsibilities normally associated with marriage, and we

think that Congress has treated them as alternative indicia of the

fact that the marriage was entered into for a reason other than the desire

to shortly acquire benefits

s

not been married to her husband for a full nine

months. [12] The common

denominator of these disjunctive requirements appears to us to be the

assumption of responsibilities normally associated with marriage, and we

think that Congress has treated them as alternative indicia of the

fact that the marriage was entered into for a reason other than the desire

to shortly acquire benefits. The marriages in which the widow must depend

on qualifying under the nine-months requirement are those in which none of

these other objective evidences of the assumption of marital

responsibilities are present.

Even so, § 416(c)(5) undoubtedly excludes some surviving wives who

married with no anticipation of shortly becoming widows, and it may be

that appellee Salfi is among them. It likewise may be true that the

requirement does not filter out every such claimant, if a wage earner

lingers longer than anticipated, or in the case of illnesses which can be

recognized as terminal more than nine months prior to death. But neither

of these facts necessarily renders the statutory scheme

unconstitutional.

While it is possible to debate the wisdom of excluding legitimate

claimants in order to discourage sham relationships, and of relying on a

rule which may not exclude some obviously sham arrangements, we think it

clear that Congress could rationally choose to adopt such a course. Large

numbers of people are eligible for these programs and are potentially

subject to inquiry as to the validity of their relationships to wage

earners. These people include not only the classes which appellees

represent, [13] but also

claimants in other programs for which the Social Security Act imposes

duration-of-relationship

requirements

rationally choose to adopt such a course. Large

numbers of people are eligible for these programs and are potentially

subject to inquiry as to the validity of their relationships to wage

earners. These people include not only the classes which appellees

represent, [13] but also

claimants in other programs for which the Social Security Act imposes

duration-of-relationship

requirements. [14] Not only

does the prophylactic approach thus obviate the necessity for large

numbers of individualized determinations, but it also protects large

numbers of claimants who satisfy the rule from the uncertainties and

delays of administrative inquiry into the circumstances of their

marriages. Nor is it all clear that individual determinations could

effectively filter out sham arrangements, since neither marital intent,

life expectancy nor knowledge of terminal illness has been shown by

appellees to be reliably

determinable. [15] Finally, the

very possibility of prevailing at a hearing could reasonably be expected

to encourage sham relationships.

The administrative difficulties of individual eligibility determinations

are without doubt matters which congress may consider when determining

whether to rely on rules which sweep more broadly than the evils with

which they seek to deal. In this sense, the duration-of-relationship

requirement represents nor merely a substantive policy determination that

benefits should be awarded only on the basis of genuine marital

relationships, but also a substantive policy determination that limited

resources would not be well spent in making individual determinations. It

is an expression of Congress' policy choice that the Social Security

system, and its millions of beneficiaries, would be best served by a

prophylactic rule which bars claims arising from the bulk of sham

marriages which are actually entered, which discourages such marriages

from ever taking place, and which is also objective and easily

administered.

making individual determinations. It

is an expression of Congress' policy choice that the Social Security

system, and its millions of beneficiaries, would be best served by a

prophylactic rule which bars claims arising from the bulk of sham

marriages which are actually entered, which discourages such marriages

from ever taking place, and which is also objective and easily

administered.

The Constitution does not preclude such policy choices as a price for

conducting programs for the distribution of social insurance benefits. Cf. Geduldig v. Aiello, supra , at 496. Unlike Criminal prosecutions, or

the custody proceedings at issue in Stanley v. Illinois , such

programs do not involve affirmative government action which seriously

curtails important liberties cognizable under the Constitution. There is

thus no basis for our requiring individualized determinations when

Congress can rationally conclude not only that generalized rules are

appropriate to its purposes and concerns, but also that the difficulties

of individual determinations outweigh the marginal increments in the

precise effectuation of congressional concern which they might be expected

to produce.

The judgment of the District Court is Reversed .

MR. JUSTICE DOUGLAS, dissenting.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting.

[1] Title 42 U.S.C. § 402(g)(1)

provides for benefits for the "widow" of an insured wage earner,

regardless of her age, if she had in her care a "child" of such wage

earner who is entitled to child's insurance benefits. Title 42 U.S.C. §

402(d) provides for benefits for the "child" of a deceased insured wage

earner who was dependent upon him at his death.

[2] Title 42 U.S.C. § 416(c)

provides in full:

C. § 402(g)(1)

provides for benefits for the "widow" of an insured wage earner,

regardless of her age, if she had in her care a "child" of such wage

earner who is entitled to child's insurance benefits. Title 42 U.S.C. §

402(d) provides for benefits for the "child" of a deceased insured wage

earner who was dependent upon him at his death.

[2] Title 42 U.S.C. § 416(c)

provides in full:

"(c) The term 'widow' (except when used in section 402(i) of this title)

means the surviving wife of an individual, but only if (1) she is the

mother of his son or daughter, (2) she legally adopted his son or

daughter, while she was married to him and while such son or daughter was

under the age of eighteen, (3) he legally adopted her son or daughter

while she was married to him and while such son or daughter was under the

age of eighteen, (4) she was married to him at the time both of them

legally adopted a child under the age of eighteen, (5) she was married to

him for a period of not less than nine months immediately prior to the day

on which he died, or (6) in the month prior to the month of her marriage

to him (A) she was entitled to, or on application therefor and attainment

of age 62 in such prior month would have been entitled to, benefits under

subsection (b), (e), or (h) of section 402 of this title, (B) she had

attained age eighteen and was entitled to, or on application therefor

would have been entitled to, benefits under subsection (d) of such section

(subject, however, to section 402(s) of this title), or (C) she was

entitled to, or upon application therefor and attainment of the required

age (if any) would have been entitled to, a widow's, child's (after

attainment of age 18), or parent's insurance annuity under section 228e of

Title 45."

It is undisputed that appellee Salfi cannot qualify as a "widow" by

satisfying conditions (1), (2), (3), (4), or (6).

Title 42 U.S.C. (Supp. II) § 416(e) provides in part:

to, or upon application therefor and attainment of the required

age (if any) would have been entitled to, a widow's, child's (after

attainment of age 18), or parent's insurance annuity under section 228e of

Title 45."

It is undisputed that appellee Salfi cannot qualify as a "widow" by

satisfying conditions (1), (2), (3), (4), or (6).

Title 42 U.S.C. (Supp. II) § 416(e) provides in part:

"(e) The term "child" means (1) the child or legally adopted child of an

individual, (2) a stepchild who has been such stepchild for not less than

one year immediately preceding the day on which application for child's

insurance benefits is filed or (if the insured individual is deceased) not

less than nine months immediately preceding the day on which such

individual died. . . ."

Prior to 1967, the required duration of relationship was a full year. The

reduction to nine months was accomplished in Pub. L. 90-248, §§ 156(a) and

(b), 81 Stat. 832, 866.

[3] The literal wording of this

section bars actions under § 41 of Title 28. At the time § 405(h) was

enacted, and prior to the 1948 recodification of Title 28, § 41 contained

all of that title's grants of jurisdiction to the United States district

courts, save for several special-purpose jurisdictional grants of no

relevance to the constitutionality of Social Security statutes.

[4] "Title 42 U.s.C. 405(h)

provides in full:

"Finality of Secretary's decision .

"The findings and decisions of the Secretary after a hearing shall be

binding upon all individuals who were parties to such hearing. No findings

of fact or decision of the Secretary shall be reviewed by any person,

tribunal, or governmental agency except as herein provided. No action

against the United States, the Secretary, or any officer or employee

thereof shall be brought under section 41 of Title 28 to recover on any

claim arising under this subchapter."

[5] "Title 42 U.S.C. 405(g)

provides:

"Judicial review.

No findings

of fact or decision of the Secretary shall be reviewed by any person,

tribunal, or governmental agency except as herein provided. No action

against the United States, the Secretary, or any officer or employee

thereof shall be brought under section 41 of Title 28 to recover on any

claim arising under this subchapter."

[5] "Title 42 U.S.C. 405(g)

provides:

"Judicial review.

"Any individual, after any final decision of the Secretary made after a

hearing to which he was a party, irrespective of the amount in

controversy, may obtain a review of such decision by a civil action

commenced within sixty days after the mailing to him of notice of such

decision or within such further time as the Secretary may allows. Such

action shall be brought in the district court of the United States for the

judicial district in which the plaintiff resides, or has his principal

place of business, or, if he does not reside or have his principal place

of business within any such judicial district, in the United States

District Court for the District of Columbia. As part of his answer the

Secretary shall file a certified copy of the transcript of the record

including the evidence upon which the findings and decisions complained of

are based. The court shall have power to enter, upon the pleadings and

transcript of the record, a judgment affirming, modifying, or reversing

the decision of the Secretary, with or without remanding the cause for a

rehearing

of his answer the

Secretary shall file a certified copy of the transcript of the record

including the evidence upon which the findings and decisions complained of

are based. The court shall have power to enter, upon the pleadings and

transcript of the record, a judgment affirming, modifying, or reversing

the decision of the Secretary, with or without remanding the cause for a

rehearing. The findings of the Secretary as to any fact, if supported by

substantial evidence, shall be conclusive, and where a claim has been

denied by the Secretary or a decision is rendered under subsection (b) of

this section which is adverse to an individual who was a party to the

hearing before the Secretary, because of failure of the claimant or such

individual to submit proof in conformity with any regulation prescribed

under subsection (a) of this section, the court shall review only the

question of conformity with such regulations and the validity of such

regulations. The court shall, on motion of the Secretary made before he

files his answer, remand the case to the Secretary for further action by

the Secretary, and may, at any time, on good cause shown, order additional

evidence to be taken before the Secretary, and the Secretary shall, after

the case is remanded, and after hearing such additional evidence if so

ordered, modify or affirm his findings of fact or its decision, or both,

and shall file with the court any such additional and modified findings of

fact and decision, and a transcript of the additional record and testimony

upon which is action in modifying or affirming was based. Such additional

or modified findings of fact and decision shall be reviewable only to the

extent provided for review of the original findings of fact and decision.

The judgment of the court shall be final except that it shall be subject

to review in the same manner as a judgment in other civil actions

ditional record and testimony

upon which is action in modifying or affirming was based. Such additional

or modified findings of fact and decision shall be reviewable only to the

extent provided for review of the original findings of fact and decision.

The judgment of the court shall be final except that it shall be subject

to review in the same manner as a judgment in other civil actions. Any

action instituted in accordance with this subsection shall survive

notwithstanding any change in the person occupying the office of Secretary

or any vacancy in such office."

[6] Nor can it be argued that

the third sentence of § 405(h) simply serves to prevent a by-pass of the §

405(g) requirements by filing a district court complaint alleging

entitlement prior to applying for benefits through administrative

channels. The entitlement sections of the Act specify the filing of an

application as a prerequisite to entitlement, so a court could not in any

event award benefits absent an application. See §§ 402(a) h. See also §

402(h))1). Once the application is filed, it is either approved, in which

event any suit for benefits should be mooted, or it is denied. Even if the

denial is nonfinal, it is fill a "decision of the Secretary" which, by

virtue of the second sentence of § 405(h), may not be reviewed save

pursuant to § 405(g).

Our Brother BRENNAN relies heavily, post, at 5-7, on a passage from a

Senate document entitled "Monograph of the Attorney General's Committee on

Administrative Procedure." Sen. Doc. 10, 77th Cong., 1st Sess., 39 (1941).

The basic monograph itself is described as "embodying the results of the

investigation made by the staff of said Committee relative to the

administrative practices and procedures of several agencies of the

government

, on a passage from a

Senate document entitled "Monograph of the Attorney General's Committee on

Administrative Procedure." Sen. Doc. 10, 77th Cong., 1st Sess., 39 (1941).

The basic monograph itself is described as "embodying the results of the

investigation made by the staff of said Committee relative to the

administrative practices and procedures of several agencies of the

government. "Following the text of the monograph is the "Appendix," which

in turn is described in a "foreword" as follows: "This statement,

developed from a report by the Bureau of Old-Age and Survivors Insurance

making certain recommendations for the Board's consideration, describes

the essential features of a hearing and review system which has been

authorized by the Board and which is designed to meet both the statutory

requirements and the social purposes of the old-age and survivors

insurance program. It has been developed during several months under the

leadership of Ralph F. Fuchs, professor of law, Washington University, St.

Louis, Mo., a consultant of this Bureau, by whom the Bureau's report, in

the main, was written." Id ., at 34. After the "Foreward" follows a

three-part report in somewhat smaller type, the second of which parts is

entitled "Considerations Affecting the Hearing and Review System." Within

this second part, appears the language which the dissenters characterize

as "the reading which the Social Security Board itself gave to the

provision soon after it went into effect." Post , at 5.

n." Id ., at 34. After the "Foreward" follows a

three-part report in somewhat smaller type, the second of which parts is

entitled "Considerations Affecting the Hearing and Review System." Within

this second part, appears the language which the dissenters characterize

as "the reading which the Social Security Board itself gave to the

provision soon after it went into effect." Post , at 5.

We have some doubts that the report of a consultant can be properly

characterized as incorporating the "reading which the Social Security

Board itself gave" to this provision. Even if the report as a whole is

stated to have been "approved" by the Board, there is no indication that

such approval extends beyond the report's broad-brush conceptualization of

"the essential features of a hearing and review system." In any event, we

do not agree that an administrative agency's general discussion of a

statute, occurring after its passage, and in a context which does not

require it to focus closely on the operative impact of a particular

provision, is either an important indicator of congressional intent, as

the dissent suggests, post , at 7, or an authoritative source for

the proposition that a provision serves a particular function. Finally,

even if the report is an accurate reading of the Act, its significance

goes only to whether the third sentence of § 405(h) serves a function in addition to that which we believe it serves; the possibility that

the District Court's interpretation renders the third sentence only

largely superfluous rather than totally so is not sufficient to disturb

our analysis of the role of that sentence in this case.

[7] Title II contains the

old-age, survivors and disability insurance programs codified at 42 U.S.C.

§ 401 et seq.

function in addition to that which we believe it serves; the possibility that

the District Court's interpretation renders the third sentence only

largely superfluous rather than totally so is not sufficient to disturb

our analysis of the role of that sentence in this case.

[7] Title II contains the

old-age, survivors and disability insurance programs codified at 42 U.S.C.

§ 401 et seq.

[8] Since § 405(h) is the basis

for district court jurisdiction, there is some question as to whether it

had authority to enjoin the operation of the duration-of-relationship

requirements. Section 405(h) accords authority to affirm, modify or

reverse a decision of the Secretary. It contains no suggestion that a

reviewing court is empowered to enter an injunctive decree whose operation

reaches beyond the particular applicants before the court. In view of our

dispositions of the class action and constitutional issues in this case,

the only significance of this problem goes to our own jurisdiction. If a §

405(g) court is not empowered to enjoin the operation of a federal

statute, then a three-judge District Court was not required to hear this

case, 28 U.S.C. § 2252, and we are without jurisdiction under 18 U.S.C. §

1253. However, whether or not the three-judge court was properly convened,

that court did hold a federal statute unconstitutional in a civil action

to which a federal agency and officers are parties. We thus have direct

appellate jurisdiction under 28 U.S.C. § 1232. McLucas v.

DeChamplain , slip op., at 8-9 (No. 73-1346, Apr. 15, 1975).

[9] Title 42 U.S.C. § 405(a):

on under 18 U.S.C. §

1253. However, whether or not the three-judge court was properly convened,

that court did hold a federal statute unconstitutional in a civil action

to which a federal agency and officers are parties. We thus have direct

appellate jurisdiction under 28 U.S.C. § 1232. McLucas v.

DeChamplain , slip op., at 8-9 (No. 73-1346, Apr. 15, 1975).

[9] Title 42 U.S.C. § 405(a):

"(a) The Secretary shall have full power and authority to make rules and

regulations and to establish procedures, not inconsistent with the

provisions of this subchapter, which are necessary or appropriate to carry

out such provisions, and shall adopt reasonable and proper rules and

regulations to regulate and provide for the nature and extent of the

proofs and evidence and the method of taking and furnishing the same in

order to establish the right to benefits hereunder."

[10] Section 405(g)

jurisdiction in Weinberger v. Wiesenfeld , 420 U.S. 00 (1975), was

similarly present. In that case the Secretary stipulated that exhaustion

would have been futile, and he did not make any contentions that

Wiesenfeld had not complied with the requirements of § 405(g), Id .,

at n.8.

[11] The Secretary also

briefly argues that the duration-of-relationship requirement rationally

serves the interest in providing benefits only for persons who are likely

to have become dependent upon the wage earner. Brief for Appellants 11-12.

In view of our conclusion with regard to his principal argument, we need

not consider this justification.

[12] Similarly, the natural or

adopted child of a deceased wage earner need not meet the nine-months

requirement. Sec 42 U.S.C. (Supp II) § 416(e)(1).

est in providing benefits only for persons who are likely

to have become dependent upon the wage earner. Brief for Appellants 11-12.

In view of our conclusion with regard to his principal argument, we need

not consider this justification.

[12] Similarly, the natural or

adopted child of a deceased wage earner need not meet the nine-months

requirement. Sec 42 U.S.C. (Supp II) § 416(e)(1).

[13] According to the Social

Security Administration, in calendar 1973 there were 125,000 applicants

for mother's benefits, 1,313,000 for child's benefits, and 403,000 for

widow's/widower's benefits. While these figures include large numbers of

persons who qualify on bases other than the duration of their relationship

with a wage earner, they also doubtlessly exclude persons who did not even

apply because of the durational restriction, or who were thereby dissuaded

from entering the relationship. A feel for the magnitude of the potential

for case-by-case determinations can also be developed by reference to the

Social Security Administration's estimate that judgment for the class

which the named appellants sought to represent would involve payments of

$30 million, assuming retroactivity to 1967. This figure does not reflect

payments in behalf of persons who met the objective nine-months

requirement, or who could not meet it and therefore either never applied

or never entered the relationship.

Social Security Administration's estimate that judgment for the class

which the named appellants sought to represent would involve payments of

$30 million, assuming retroactivity to 1967. This figure does not reflect

payments in behalf of persons who met the objective nine-months

requirement, or who could not meet it and therefore either never applied

or never entered the relationship.

[14] See U.S.C. §§ 416(b), (f)

and (g), defining "wife," "husband" and "widower." These various

definitions impose duration-of-relationship requirements with regard to

wife's benefits, 42 U.S.C. § 402(b), "husband's" benefits, 42 U.S.C. §

402(c), and "widower's" benefits, 42 U.S.C. § 402(f). In addition,

"widow's" benefits, 42 U.S.C. § 402(e), are available only to those women

who satisfy §416(c)'s definition of "widow." "Parent's" benefits, 42

U.S.C. § 402(h), are also subject to an objective eligibility requirement

which is similar to a duration-of-relationship requirement. Under 42

U.S.C. § 402(b)(3), stepparents and adopting parents may receive benefits

with respect to a deceased child who was providing at least half of their

support, but only if the marriage or adoption creating their relationship

occurred prior to the child's 16th birthday.

[15] Appellees do not contend

that marital intent or life expectancy can be entered in contemplation of

imminent death unless the wage earner's "terminal illness" was known, the

inquiry need go to farther than the issue of whether the parties to the

marriage knew of such an illness. They claim that applicants could

demonstrate the state of their knowledge by physicians' affidavits or

documentary medical evidence. These contentions are not, however,

supported by any factual rebuttals of the variety of difficulties which

Congress was entitled to expect to be encountered. See McGowan v.

Maryland , 366 U.S. 420, 426 (1961).

ies to the

marriage knew of such an illness. They claim that applicants could

demonstrate the state of their knowledge by physicians' affidavits or

documentary medical evidence. These contentions are not, however,

supported by any factual rebuttals of the variety of difficulties which

Congress was entitled to expect to be encountered. See McGowan v.

Maryland , 366 U.S. 420, 426 (1961).

For example, all evidence of "knowledge of terminal illness" would

ordinarily be under the control of applicants, which suggests that they

should bear the burden of proof. But this burden could be convincingly

carried only with respect to wage earners who happened to have had

physical examinations shortly before their weddings; on the other hand,

awarding benefits where the wage earner had not had an examination, and no

medical evidence was available, would encourage participants in sham

arrangements to conceal their own adverse medical evidence. Even when

adequate medical evidence was available there could easily be difficulties

in determining whether a wage earner's physical condition amounted to a

"terminal illness"; if that concept was restricted to conditions which

were virtually certain to result in an early death, benefits would

probably be too broadly available, since certainty of imminent death

rather than a mere high probability of it is not a prerequisite to a sham

relationship; yet inquiries into the degree of likelihood of death could

become very complex indeed.

d to a

"terminal illness"; if that concept was restricted to conditions which

were virtually certain to result in an early death, benefits would

probably be too broadly available, since certainty of imminent death

rather than a mere high probability of it is not a prerequisite to a sham

relationship; yet inquiries into the degree of likelihood of death could

become very complex indeed.

Additional problems with appellees' proposed test arise because it, like

the duration-of-relationship requirement, is not precisely related to the

objective of denying benefits which are sought on the basis of sham

relationships. In the first place, it presumably would be necessary to

limit the requirement of terminal illness inquiries to instances in which

death occurred within a specified period after marriage. It would also

appear to be necessary to set an outside limit on the length of the period

within which death was expected that would disqualify applicants (after

all, and paraphrasing Lord Keynes, in the long run we are all expected to

die). Yet there will always be persons on one side of such lines who are

seriously disadvantaged vis-á-vis persons on the other side. More

basically, appellees' test would clearly exclude persons who knew of a

wage earner's imminent death, but who entered their marriages for reasons

entirely unrelated to Social Security benefits, such as to fulfill the

promises of a long-standing engagement. Thus Appellees' proposed test

would be subject to exactly the same constitutional attacks which they

direct towards the test on which Congress chose to rely.

est would clearly exclude persons who knew of a

wage earner's imminent death, but who entered their marriages for reasons

entirely unrelated to Social Security benefits, such as to fulfill the

promises of a long-standing engagement. Thus Appellees' proposed test

would be subject to exactly the same constitutional attacks which they

direct towards the test on which Congress chose to rely.

Appellees point out that 42 U.S.C. (Supp. II) § 416(k) provides for

limited exceptions to the duration-of-relationship requirement, unless the

Secretary determines that at the time of the marriage the wage earner

"could not have reasonably been expected to live for nine months." They

argue that this represents Congress' recognition that case-by-case

consideration would not impose an inordinate administrative burden. The

argument is without merit. Section 416(k) expresses Congress' willingness

to accept case-by-case inquiries with regard to limited classes which bear

particular indices of genuineness (the section is available in cases of

accidental death, death in the line of military duty, and remarriages of

persons previously married for more than nine months). This says nothing

about the feasibility of making such inquiries in other circumstances,

much less the rationality of choosing not to do so.