SSR 84-21c: SECTIONS 205(g) AND 211(a)(5)(A) OF THE SOCIAL SECURITY ACT (42 U.S.C. 405(g) AND 411(a)(5)(A)); 28 U.S.C. 1291 AND 1252 -- JUDICIAL REVIEW -- SUPREME COURT DIRECT REVIEW OF DISTRICT COURT DECISIONS -- CONSTITUTIONALITY OF A STATUTE IN ISSUE

20 CFR 404.900(a)(5) and 404.1086

SSR 84-21c

Heckler v. Edwards, _____ U.S. _____, 104 S.Ct. 1532 (1984)

MARSHALL, Supreme Court Justice:

This case raises an issue concerning this court's mandatory jurisdiction.

Federal courts of appeals have jurisdiction over appeals from all final

decisions of district courts, "except where a direct review may be had in

the Supreme Court." 28 U.S.C. § 1291. Section 1252 of Title 28 provides

for such a direct appeal from a United States court's judgment, in a civil

proceeding to which the Government is a party, holding that an Act of

Congress is unconstitutional. The issue before us is whether the Court of

appeals properly dismissed for lack of jurisdiction the Secretary's appeal

from a proceeding in which a federal statute was declared

unconstitutional, but in which the Government challenged only the district

court's remedy.

I

[ Basis for Direct Appeal ]

Respondent filed this suit against the Secretary of Health and Human

Services in the United States District Court for the Northern District of

California in October 1980. On behalf of a nationwide class of Social

Security applicants and recipients, respondent challenged the

constitutionality of § 211(a)(5)(A) of the Social Security Act, 42 U.S.C.

§ 411(a)(5)(A), which established a gender-based presumption concerning

the allocation of income from family businesses in community property

states. [1] In pretrial

proceedings, the Secretary argued that the constitutional ruling sought by

the class was unnecessary because the Secretary acquiesced in judicial

precedents holding the challenged provision

unconstitutional. [2] Indeed,

shortly after respondent's complaint was filed, the Attorney General

formally notified Congress that the Executive would not defend the

constitutionality of the

section. [3] The District Court

nevertheless rejected the Secretary's claim of mootness, and granted

respondent's motion for summary

judgment

icial

precedents holding the challenged provision

unconstitutional. [2] Indeed,

shortly after respondent's complaint was filed, the Attorney General

formally notified Congress that the Executive would not defend the

constitutionality of the

section. [3] The District Court

nevertheless rejected the Secretary's claim of mootness, and granted

respondent's motion for summary

judgment. [4] According to the

Court, although the Secretary "essentially conceded the

unconstitutionality of § 411(a)(5)(A)," a ruling on the merits was

necessary because the Department was still applying the challenged

statutory section. [5]

Having held the statute unconstitutional, the district court turned to

the issue of relief. The unconstitutional provision had provided that all

gross income and deductions derived from a nonpartnership trade or

business in community property jurisdictions should be attributed to the

husband unless the wife could establish that she exercised substantially

all of the management and control of the business, in which case all

income would be treated as the wife's. Having struck down this gender-

based presumption, the court found the respondent class entitled to an

allocation of co-proprietor income between the spouses' earnings accounts

on the basis of the relative amount of labor contributed by each. Finding

that retroactive application of its holding was appropriate under the

tests of Chevron Oil Co. v. Huson , 404 U.S. 97, 106-107 (1971), the

court found that class members "are entitled to a recomputation of their

earnings records, extending back to the beginning of Social Security if

necessary." Edwards v. Schweiker , No. C-80-3959 (ND Cal., Jan. 22,

1982). The court entered judgment March 23, 1982.

ctive application of its holding was appropriate under the

tests of Chevron Oil Co. v. Huson , 404 U.S. 97, 106-107 (1971), the

court found that class members "are entitled to a recomputation of their

earnings records, extending back to the beginning of Social Security if

necessary." Edwards v. Schweiker , No. C-80-3959 (ND Cal., Jan. 22,

1982). The court entered judgment March 23, 1982.

The following week the Secretary filed a notice of appeal to the United

States Court of Appeals for the Ninth

Circuit. [6] In its docketing

statement, filed on May 5, 1982, the Secretary listed only matters

concerning the remedy ordered by the district court, noting that the

Government conceded the unconstitutionality of the

statute. [7] Respondents filed a

motion to dismiss the Secretary's appeal, contending that the Court of

Appeals did not have jurisdiction under 28 U.S.C. § 1291 "where a direct

review may be had in the Supreme Court." Respondents argued that the

Secretary had such a right to direct review to the Supreme Court under 28

U.S.C. § 1252, because the District Court had held a statute

unconstitutional in a civil action to which a United States officer was a

party. In a one sentence order dated July 27, 1982, the Court of Appeals

for the Ninth Circuit granted respondents' motion to dismiss for lack of

jurisdiction, citing Donovan v. Richland County Assn. for Retarded

Citizens , 454 U.S. 389 (1982) ( per curiam ). The Secretary

timely filed a petition for certiorari to the Ninth Circuit seeking our

review of this dismissal. Because the petition raised an important

question concerning this Court's mandatory docket, we granted certiorari.

_____ U.S. _____ (1983). We conclude that a party does not have a right to

direct review in the Supreme Court under 28 U.S.C. § 1252 unless the

holding of federal statutory unconstitutionality is in issue. We therefore

vacate and remand for reinstatement of the appeal.

II

[ Constitutional Issue ]

sed an important

question concerning this Court's mandatory docket, we granted certiorari.

_____ U.S. _____ (1983). We conclude that a party does not have a right to

direct review in the Supreme Court under 28 U.S.C. § 1252 unless the

holding of federal statutory unconstitutionality is in issue. We therefore

vacate and remand for reinstatement of the appeal.

II

[ Constitutional Issue ]

In the normal course, a party dissatisfied with the judgment of a United

States District Court must first appeal to the Court of Appeals, and may

then petition for a writ of certiorari in the Supreme Court. Recourse to

the Court of Appeals is a matter of right, 28 U.S.C. § 1291; writs of

certiorari are granted at the discretion of the Supreme Court, § 1254(a).

The general rule of discretionary Supreme Court review is not without

exceptions. Although this court's mandatory jurisdiction has been

minimized through legislation such as the Judge's Bill of

1925 [8] and the 1976 repeal of

most of the Three Judge District Court

Act, [9] Congress has identified

a narrow group of cases that merit the immediate and mandatory attention

of this Court. Section 1252 is such a direct appeal provision.

When a party has a right to pursue a direct appeal to this Court under §

1252, the normal route for appellate review is blocked, and a court of

appeals is without jurisdiction. Donovan v. Richland County Assn. for

Retarded Citizens, supra , at 389-390. Thus, the consequence of an

erroneous choice of forum can be to preclude any court's review, because

by the time a party discovers its error, appeal to the correct forum may

be untimely. To avoid that consequence, litigants ought to be able to

apply a clear test to determine whether, as an exception to the general

rule of appellate review, they must perfect an appeal directly to the

Supreme Court

onsequence of an

erroneous choice of forum can be to preclude any court's review, because

by the time a party discovers its error, appeal to the correct forum may

be untimely. To avoid that consequence, litigants ought to be able to

apply a clear test to determine whether, as an exception to the general

rule of appellate review, they must perfect an appeal directly to the

Supreme Court. Such a test, of course, must be crafted "with precision and

with fidelity to the terms by which Congress has expressed its wishes" in

the jurisdictional statute. Cheng Fan Kwok v. INS , 392 U.S. 206,

212 (1968).

The Secretary and respondent offer different tests. Respondent's position

is that when the "literal requirements of § 1252 are satisfied," only the

Supreme Court has jurisdiction. Williams v. Zbaraz , 448 U.S. 358,

366 (1980); see also INS v. Chadha , _____ U.S. _____, _____ (1983)

("express requisites for an appeal under § 1252 . . . have been met").

Section 1252 establishes four prerequisites for a direct appeal to the

Supreme Court: the order appealed from must issue from an enumerated

court; the United States or an agency or officer must be a party; the

proceeding must be civil; and the order must hold an Act of Congress

unconstitutional. Those prerequisites are met in the present case.

Therefore, respondent argues, the Secretary's sole avenue for appellate

review of the judgment was by direct appeal to this Court. Because the

Secretary did not file a notice of appeal to this Court within 30 days of

the district court's order, 28 U.S.C. § 2101(a), respondent contends that

the Secretary has lost her right to appellate review of any aspect of the

district court's orders.

Therefore, respondent argues, the Secretary's sole avenue for appellate

review of the judgment was by direct appeal to this Court. Because the

Secretary did not file a notice of appeal to this Court within 30 days of

the district court's order, 28 U.S.C. § 2101(a), respondent contends that

the Secretary has lost her right to appellate review of any aspect of the

district court's orders.

The Secretary claims that direct review under § 1252 is available only

when the correctness of the constitutional holding is at issue. She argues

that a close examination of the statute and its enactment supports the

conclusion that the constitutional holding must be raised on appeal, and

not merely decided below, before a party must invoke direct review by the

Supreme Court. Under this reading, the Secretary sought review in the

proper forum because she challenged the scope of the District Court's

remedy and not the correctness of its constitutional ruling. Indeed, by

the Secretary's reasoning, had she filed an appeal in this Court, we would

have dismissed for lack of jurisdiction.

[ Statutory Language ]

To articulate a test to resolve the present dispute and to provide

guidance for litigants and courts in future cases, we begin with the

language and structure of the statute itself.

A literal reading of § 1252 tells us that parties have a right to direct

appeal from a "judgment, decree or order," and not merely a right to

direct appeal of a court's "holding any Act of congress unconstitutional."

Under the literal language, a party not contesting the constitutional

holding would seem to be required to proceed directly to this court for

review of other aspects of the court's judgment. That literal reading

gains support from the fact that congress has not limited our review under

§ 1252 to the federal constitutional issue, but has mandated that when we

have properly asserted jurisdiction under § 1252, the whole case is to

come before us. [10]

ional

holding would seem to be required to proceed directly to this court for

review of other aspects of the court's judgment. That literal reading

gains support from the fact that congress has not limited our review under

§ 1252 to the federal constitutional issue, but has mandated that when we

have properly asserted jurisdiction under § 1252, the whole case is to

come before us. [10]

Section 1252, however, presents a case in which "to give the surface

literal meaning to a jurisdictional provision . . . would not be

consistent with the 'sense of the thing' and would confer unto this Court

a jurisdiction beyond what 'naturally and properly belongs to

it.'" [11] When Congress

created the exceptional right to bypass the court of appeals, it directly

linked that right to a lower court's invalidation of an Act of Congress.

Although it is in the nature of cases and controversies that the court's

judgment may address not only the issue of statutory constitutionality,

but other issues as well, such attorney's fees, remedy, or related state

law claims, the natural sense of the jurisdictional provision is that the

holding of statutory unconstitutionality, not these other issues, is what

Congress wished this Court to review in the first instance. Thus, the

sense of the statute and the literal language are at loggerheads.

The structure of § 1252 helps resolve this tension, and leads us towards

the common-sense view that the constitutional holding must be at issue for

direct review in this Court to lie. The first paragraph of § 1252 grants

the right of direct appeal from the judgment holding an Act of congress

unconstitutional; the second paragraph brings before us the whole case,

including appeals filed before and after the constitutional

appeal. [12] The clear

implication of the second paragraph is that parties may have properly

lodged appeals in other courts prior to a § 1252 filing

he first paragraph of § 1252 grants

the right of direct appeal from the judgment holding an Act of congress

unconstitutional; the second paragraph brings before us the whole case,

including appeals filed before and after the constitutional

appeal. [12] The clear

implication of the second paragraph is that parties may have properly

lodged appeals in other courts prior to a § 1252 filing. Only after a

party has filed a notice of direct appeal pursuant to § 1252 must all

other appeals and cross appeals in the case be taken here. the necessary

corollary is that in the absence of such notice, other appeals in the case

will follow the normal route for appellate review. The conclusion inherent

in the structure of § 1252 is that not all appeals in a case in which an

Act of congress has been held unconstitutional must be taken directly to

this court. Because direct review is linked to a court's holding a federal

statute unconstitutional, the logical test of which appeals from a

judgment must be brought directly to this court and which, standing alone,

must follow the normal route of appellate review, is whether the issue on

appeal is the holding of statutory unconstitutionality.

The history of the enactment of § 1252's statutory

predecessor [13] also guides us

to a conclusion that Congress considered the jurisdictional predicate for

mandatory direct review by the Supreme Court to be appeal from the

constitutional holding. [14] Three interrelated justifications for expediting final determinations of

the constitutionality of federal statutes recur in discussions of the

direct appeal provision. First, when a federal judge strikes down an act

of a coequal branch of government, the decision implicates separation of

powers, [15] not only through

the original exercise of judicial review, but also through this Court's

exercise of discretion to hear such a case

ing final determinations of

the constitutionality of federal statutes recur in discussions of the

direct appeal provision. First, when a federal judge strikes down an act

of a coequal branch of government, the decision implicates separation of

powers, [15] not only through

the original exercise of judicial review, but also through this Court's

exercise of discretion to hear such a case. By mandating direct review,

Congress asserted its prerogative to define a category of important cases

that the Court is not free to

ignore. [16] Second, Congress

justified imposing mandatory jurisdiction on the Supreme Court because of

the need for certainty and uniformity in federal government when an Act

may have been declared unconstitutional. It is significant that the first

paragraph of section 1252 authorizes a direct appeal to this court only in

civil actions "to which the United States or any of its agencies, or any

officer or employee thereof, . . . is a party"; no direct appeal lies if

there are only non-federal parties to the suit. That language reveals a

congressional purpose to assure an expeditious means of affirming or

removing the restraint on the federal government's administration of the

law when it would be bound by a holding that the law in question is

unconstitutional. [17]

Finally, Congress expressed its sense that declarations of

unconstitutionality have ramifications beyond the interests of litigants

in the particular case. For this reason, the predecessor statute created

the right of intervention by the Attorney General in cases between private

parties when the constitutionality of an Act of congress was drawn into

question, [18] as well as the

right to direct appeal from a holding of unconstitutionality

s of

unconstitutionality have ramifications beyond the interests of litigants

in the particular case. For this reason, the predecessor statute created

the right of intervention by the Attorney General in cases between private

parties when the constitutionality of an Act of congress was drawn into

question, [18] as well as the

right to direct appeal from a holding of unconstitutionality. The Senate

Report emphasized that the "decision on the constitutional question may

affect the public at marge, may be in respect of matters which by the

Constitution are entrusted to the care of the Nation, and concerning which

the Nation owes a duty to all the citizens of securing to them their

common rights." S. Rep. No. 996, 75th Cong., 1st Sess. 4

(1937). [19]

The first two of these concerns are not implicated in cases in which the

Government concedes statutory unconstitutionality by its decision not to

appeal that aspect of the district court's judgment. Such cases raise no

separation of powers issue, nor do they implicate the need for certainty

and uniformity in the administration of federal law. In the present case,

for example, the Attorney General, charged with enforcing federal laws,

informed the Congress that it agreed with the courts that the challenged

provision in the Social Security Act was

unconstitutional. [20] Furthermore, prior to seeking review of the district court's judgment, the

Secretary had agreed not to enforce the statute anywhere and the district

court's remedial order was in effect nationwide. The decision not to raise

the issue of statutory unconstitutionality on appeal obviously was

intended to bind the Secretary in her nationwide administration of the

Social Security Act. When the court and the affected agency reach the same

conclusion, there is no need to resort to direct review under 28 U.S.C. §

1252 in an effort to remove the binding effect on the Executive Branch's

administration of the law.

e

the issue of statutory unconstitutionality on appeal obviously was

intended to bind the Secretary in her nationwide administration of the

Social Security Act. When the court and the affected agency reach the same

conclusion, there is no need to resort to direct review under 28 U.S.C. §

1252 in an effort to remove the binding effect on the Executive Branch's

administration of the law.

The only justification for exerting mandatory jurisdiction in such cases

might be the considerable ramifications of district court orders; here,

for example, the district court's remedy provided retroactive relief for a

nation-wide class. We do not believe that serious consequences alone can

support the exercise of our § 1252 jurisdiction. Congress did not enact an

open-ended "impact" test for determining which cases should come to this

Court for direct review. Although remedial aspects of a case are

important, the touchstone of direct appeal under § 1252 is not a party's

or our own judgment of the significance of a decision. We exercise that

judgment under our discretion to rant certiorari in any civil or criminal

case before, as well as after, rendition of judgment. 28 U.S.C. § 1254(1);

Supreme Court Rule 18. In § 1252, Congress mandated direct review not

simply for decisions with impact, but rather for decisions whose impact

was predicated upon a potentially incorrect exercise of judicial review.

See, supra , nn. 15-16.

judgment under our discretion to rant certiorari in any civil or criminal

case before, as well as after, rendition of judgment. 28 U.S.C. § 1254(1);

Supreme Court Rule 18. In § 1252, Congress mandated direct review not

simply for decisions with impact, but rather for decisions whose impact

was predicated upon a potentially incorrect exercise of judicial review.

See, supra , nn. 15-16.

Not only are Congress's justifications for creating an expedited method

of direct review not present in cases such as this, but a construction of

§ 1252 that would require us to review collateral issued coming to us as

independent matters, rather than as pendent to the holding of statutory

unconstitutionality, would undermine the effectiveness of the direct

appeal provision. If we were to adopt respondent's construction of the

language, this Court would be required to give precedence to issues

outside the congressional definition of public importance. We would, for

example, be obliged to crowd our docket with appeals concerned solely with

attorney's fee awards or pendent claims arising under state law -- matters

that would typically fail to meet our criteria for discretionary review.

See Supreme Court Rule 17. Appeals of this sort would almost certainly be

better handled by the courts of appeals, which is where they will lie

under the interpretation of § 1252 that we adopt today.

III

[ Legislative History ]

solely with

attorney's fee awards or pendent claims arising under state law -- matters

that would typically fail to meet our criteria for discretionary review.

See Supreme Court Rule 17. Appeals of this sort would almost certainly be

better handled by the courts of appeals, which is where they will lie

under the interpretation of § 1252 that we adopt today.

III

[ Legislative History ]

We conclude, therefore, that section 1252 does not warrant a construction

that would require appeals raising only issues other than statutory

unconstitutionality to be taken directly to this Court. If the four

prerequisites to direct appeal pursuant to 28 U.S.C. § 1252 are met, and a

party seeks review of the court's holding that an Act of Congress is

unconstitutional, that party should file a notice of appeal to the Supreme

Court. If a party does not contest the holding of statutory

unconstitutionality, and seeks review only of another portion of the

court's judgment, the party should file a notice of appeal to the

appropriate court of appeals. Although the formal prerequisites to direct

appeal under § 1252 were met in the present case, the Secretary did not

contest the holding of statutory unconstitutionality. Therefore, the

Secretary's appeal belonged in the first instance in the court of appeals,

which should not have dismissed the appeal for lack of jurisdiction. The

judgment of the court of appeals is therefore vacated and the cause is

remanded for reinstatement of the Secretary's appeal.

It is so ordered .

case, the Secretary did not

contest the holding of statutory unconstitutionality. Therefore, the

Secretary's appeal belonged in the first instance in the court of appeals,

which should not have dismissed the appeal for lack of jurisdiction. The

judgment of the court of appeals is therefore vacated and the cause is

remanded for reinstatement of the Secretary's appeal.

It is so ordered .

[1] The district court certified

a class of "[a]ll applicants for or recipients of Old Age, Survivors and

Disability Insurance benefits, 42 U.S.C. § 401 et seq ., on their

own accounts as wage earners whose applications have been denied or for

whom the monthly benefit amount has been reduced due to the omission from

their earnings records f income earned while married and operating a trade

or business in a community property state, as required by 42 U.S.C. §

411(a)(5)(A)." Edwards v. Schweiker , No. C-80-3959 (ND Cal., May

22, 1981). The class was further limited to members who received a final

decision from the Secretary within the 60 days prior to the filing of the

lawsuit or at any time thereafter. Edwards v. Schweiker , No.

C-80-3959 (ND Cal., Mar. 19, 1982).

[2] In the latter half of 1980,

several courts held that the statutory presumption violated the Equal

Protection element of the Due Process Clause. Hester v. Harris , 631

F.2d 53, 55-56 (CA-5 1980); Carrasco v. Secretary , 628 F.2d 624,

627-631 (CA-1 1980); Becker v. Harris , 493 F. Supp. 991, 994-996

(ED Cal. 1980). These courts remanded to the Secretary to formulate new

standards for crediting self-employment income in community property

states. 631 F.2d, at 56-57; 628 F.2d, at 631; 493 F. Supp., at 997.

of the Due Process Clause. Hester v. Harris , 631

F.2d 53, 55-56 (CA-5 1980); Carrasco v. Secretary , 628 F.2d 624,

627-631 (CA-1 1980); Becker v. Harris , 493 F. Supp. 991, 994-996

(ED Cal. 1980). These courts remanded to the Secretary to formulate new

standards for crediting self-employment income in community property

states. 631 F.2d, at 56-57; 628 F.2d, at 631; 493 F. Supp., at 997.

Although the Government had argued that Section 211(a)(5)(A) is merely an

eligibility requirement, not a constitutionally- suspect classification

based on gender, the Solicitor General later concluded that the statutory

presumption could not be defended under the standards announced by this

Court in Califano v. Westcott , 443 U.S. 76 (1979) (provision that

rests on stereotypical gender presumptions without more, violates due

process), and Califano v. Goldfarb , 430 U.S. 199 (1977)

(classification by gender must serve and be substantially related to

important governmental objectives).

[3] Executive Communication

4772, 126 Cong. Rec. S14343 (Nov. 12, 1980) (notice that Solicitor General

would not take an appeal from the district court's holding in Becker v.

Harris, supra ); Executive Communication 5587, 126 Cong. Rec. H10562

(daily ed. Nov. 12, 1980) (same). Congress has required the Attorney

General to notify both Houses of Congress in any case in which the

Attorney General considers an enacted law, at issue in the case, to be

unconstitutional. See 28 U.S.C. § 519 note (Supp. V)

take an appeal from the district court's holding in Becker v.

Harris, supra ); Executive Communication 5587, 126 Cong. Rec. H10562

(daily ed. Nov. 12, 1980) (same). Congress has required the Attorney

General to notify both Houses of Congress in any case in which the

Attorney General considers an enacted law, at issue in the case, to be

unconstitutional. See 28 U.S.C. § 519 note (Supp. V)

In July of 1981, the agency's concession that section 211(a)(5)(A) of the

Act is unconstitutional was published as Social Security Ruling 81-17c, at

40 (cum. ed. 1981) (acquiescing in Becker v. Harris, supra ). "Once

published, a ruling is binding on all components of the Social Security

Administration in accordance with [20 CFR Part 422]. Rulings do not have

the force and effect of the law or regulations but are to be relied upon

as precedents in determining other cases where the facts are basically the

same. A ruling may be superseded, modified, or revoked by later

legislation, regulations, court decisions or rulings." Id ., at

iii.

Neither Congress nor the agency had modified the statute or implementing

regulations at the time this case was argued.

[4] Edwards v. Schweiker ,

No. C-80-3959 (ND Cal., Mar. 19, 1981). Petitioner did not file an appeal

challenging the ruling that the statute was unconstitutional. The

jurisdictional statute at issue in this case permits, but does not

require, an interlocutory appeal from a holding of unconstitutionality. 28

U.S.C. § 1252; see United States v. Clark , 455 U.S. 23, 26-27 n.2

was argued.

[4] Edwards v. Schweiker ,

No. C-80-3959 (ND Cal., Mar. 19, 1981). Petitioner did not file an appeal

challenging the ruling that the statute was unconstitutional. The

jurisdictional statute at issue in this case permits, but does not

require, an interlocutory appeal from a holding of unconstitutionality. 28

U.S.C. § 1252; see United States v. Clark , 455 U.S. 23, 26-27 n.2

(1980) (Government need not appeal before final judgment is entered).

[5] Edwards v. Schweiker ,

No. C-80-3959, slip op. n.2 (ND Cal., Jan. 22, 1982) (referring

to Order of May 22, 1981).

[6] The Notice of Appeal from

the judgment of March 23, 1982, does not state the ground of appeal, nor

is it its function to do so. See Fed. Rule App. Proc. 3(c).

[7] The relevant portion of the

Docketing Statement provided:

"H. Brief Description of Nature of Action and Result Below:

Plaintiffs challenged the constitutionality of 42 U.S.C. 411(a)(5)(A),

which requires that where both the husband and wife worked in a family

business in a community property State, all of the self-employment income

must be allocated to the husband. The government conceded the statute's

unconstitutionality, and the remaining issues concerned relief, in

particular, the standard to apply in place of the invalid statutory

standard. The district court certified a class action, and ordered that

the Secretary recompute benefits on the principle that the self-employment

income of the business be split between husband and wife on the basis of

their relative amounts of labor.

"I. Issues to be raised on Appeal:

ining issues concerned relief, in

particular, the standard to apply in place of the invalid statutory

standard. The district court certified a class action, and ordered that

the Secretary recompute benefits on the principle that the self-employment

income of the business be split between husband and wife on the basis of

their relative amounts of labor.

"I. Issues to be raised on Appeal:

The issues on appeal may include: (1) whether the district court's

standard based on relative amount of labor should be applied rather than

the Secretary's standard based on where there was a true partnership

between the spouses; (2) whether it was error to apply the new rule to

earnings records dating back to the beginning of the self-employment

program; (3) whether it was error to require that no individual lose

benefits as a result of the recomputation required under the order; and

(4) whether the notice that the court required be sent to potential class

members is appropriate."

[8] Act of Feb. 13, 1925, 43

Stat. 936. See Gonzales v. Automatic Employees Credit Union , 419

U.S. 90, 98, and n. 16 (1980).

[9] Act of Aug. 12, 1976, Pub.

L. No. 94-381, §§ 1, 2, 90 Stat. 1119 (repealing 28 U.S.C.§§ 2281-2282

(1970), amending id . §§ 2284, 2403). For a discussion of classes of

cases that have been removed from the Court's mandatory jurisdiction since

1971, see Tushnet, The Mandatory Jurisdiction of the Supreme Court -- Some

Recent Developments, 46 U. Cinn. L. Rev. 347, 359 (1977).

[10] Cf. 28 U.S.C. § 1254(2)

(party may appeal a court of appeals invalidation of a State statute on

federal grounds, but review on appeal "shall be restricted to the Federal

questions presented").

[11] Florida Lime Growers

v. Jacobsen , 362 U.S. 73, 94 (1960) (Frankfurter, J., dissenting)

(quoting American Security & Trust Co. v. District of Columbia ,

224 U.S. 491, 495 (1912)).

7).

[10] Cf. 28 U.S.C. § 1254(2)

(party may appeal a court of appeals invalidation of a State statute on

federal grounds, but review on appeal "shall be restricted to the Federal

questions presented").

[11] Florida Lime Growers

v. Jacobsen , 362 U.S. 73, 94 (1960) (Frankfurter, J., dissenting)

(quoting American Security & Trust Co. v. District of Columbia ,

224 U.S. 491, 495 (1912)).

[12] For cases discussing our

jurisdiction over the whole case when a direct appeal is properly filed

pursuant to 28 U.S.C. § 1252, see United States v. American Friends

Service Committee , 419 U.S. 7, 12 n.7 (1974) (per curiam); United

States v. Raines , 362 U.S. 17, 27 n.7 (1960). When we consider the

whole case, we are not only implementing Congress's jurisdictional intent

expressed in paragraph two of 28 U.S.C. § 1252. We are also exercising

judicial discretion to administer our caseload to secure the just, speedy,

and inexpensive determination of actions. Fed. Rule Civ. Proc. 1. But

neither paragraph two of § 1252 nor our principle of case management

should come into lay unless we have established first that the Court has

appellate jurisdiction.

[13] Act of Aug. 24, 1937, ch.

754, § 2, 50 Stat. 752, provided:

"In any suit or proceeding in any court of the United States to which the

United States or any agency thereof, or any officer or employee thereof,

as such officer or employee, is a party, or in which the United States has

intervened and become a party, and in which the decision is against the

constitutionality of any Act of Congress, an appeal may be taken directly

to the Supreme Court of the United States by the United States or any

other party. . . ."

the

United States or any agency thereof, or any officer or employee thereof,

as such officer or employee, is a party, or in which the United States has

intervened and become a party, and in which the decision is against the

constitutionality of any Act of Congress, an appeal may be taken directly

to the Supreme Court of the United States by the United States or any

other party. . . ."

As in the current version, appeal could be taken from an interlocutory or

final judgment, decree or order. Congress mandated that such appeals

"shall be heard by the Supreme Court of the United States at the earliest

possible time and shall take precedence over all other matters not of a

like character." Ibid. The whole thrust of the bill was its focus

on the special importance of lower court invalidations of federal

statutes.

[14] Floor debate affirms that

Congress understood that the predicate to direct appeal was that a party

would seek review of the holding that a statute was unconstitutional. The

bill's sponsor, Representative Sumners, explicated the section to mean

that the Government "may appeal directly to the Supreme Court in order to

expedite the determination of the constitutional question." 81 Cong. Rec.

3272 (1937); see also id ., at 3260 (remarks of Rep. Sumners) (case

would come up to Court just on question of constitutionality); id .,

at 3257 (remarks of Rep. Michener) (bill affects only constitutional

questions); id ., at 3256 (remarks of Rep. Brewster) (bill

eliminates delays in determining constitutional question). The sponsor

emphasized the "good, practical common sense" in having "just as little

delay between the enactment of Congress and the determination [of its

constitutionality] as can be arranged." Id ., at 3268 (remarks of

Rep. Sumners).

) (bill affects only constitutional

questions); id ., at 3256 (remarks of Rep. Brewster) (bill

eliminates delays in determining constitutional question). The sponsor

emphasized the "good, practical common sense" in having "just as little

delay between the enactment of Congress and the determination [of its

constitutionality] as can be arranged." Id ., at 3268 (remarks of

Rep. Sumners).

[15] The impetus in the

mid-1930's to establish expedited appeal of holdings of statutory

unconstitutionality was courts' response to much of the New Deal

legislation, such as enjoining operation of the newly-created Tennessee

Valley Authority. See, e.g., Appeals from Federal Courts, Hearings before

the Sen. Comm. on the Judiciary on S. 2176, 74th Cong., 1st Sess., 13-16

(1935).

[16] As then Senator Hugo L.

Black, sponsor in the 74th Congress of a bill for direct appeal from

injunctions preventing the effectuation of Acts of Congress explained:

"I see no reason why . . . we should not say to the Supreme Court, . . .

It is not for you to determine whether you will take the case or not.

Those who are charged primarily with enforcing the law in this country are

bound to be in closer contact with the necessity for a speedy decision

than you are in your court room, and they have determined that this is a

case of such great national moment and importance that it must be decided

at once." Id ., at 20.

One commentator suggests that the existence and current definition of

Section 1252 mandatory jurisdiction rests on a policy of separation of

powers. Tushnet, 46 Cinn. L. Rev., 15 358-365. Congressional enactment of

mandatory jurisdiction provisions incorporates what the author refers to

as the "importance" standard. Thus, the impact of a ruling regarding a

statute is recognized as having particularly broad impact.

at the existence and current definition of

Section 1252 mandatory jurisdiction rests on a policy of separation of

powers. Tushnet, 46 Cinn. L. Rev., 15 358-365. Congressional enactment of

mandatory jurisdiction provisions incorporates what the author refers to

as the "importance" standard. Thus, the impact of a ruling regarding a

statute is recognized as having particularly broad impact.

[17] See, e.g. McLucas v.

DeChamplain , 421 U.S. 21, 31 (1975) (§ 1252 language permits appeal

where the Government has participated in litigation "and thus will be

bound by a holding of unconstitutionality").

[18] The 1937 Act provided for

notice to the Attorney General of private litigation "whenever the

constitutionality of any Act of Congress affecting the public interest is

drawn in question," and intervention by the United States as of right "for

presentation of evidence . . . and argument upon the question of the

constitutionality of such Act." Act of Aug. 24, 1937, ch. 754, 50 Stat.

751. The current version of this portion of the original bill appears at

28 U.S.C. § 2403(a).

[19] See also 81 Cong. Rec.

3268 (1937) (remarks of Rep. Michener) ("if," "when," and "[w]here the

constitutionality [of Acts of Congress] is questioned, more than the

rights of individual litigants in the suit are involved. The rights of all

the people who might be affected by the laws are involved, and in these

days time is of the essence in many of these important cases coming before

the Supreme Court."); id ., at 3265 (remarks of Rep. Fred M. Vinson)

(When the constitutionality of an Act of Congress has been drawn into

question, that question "affects not only the litigants in the particular

case, but it affects many others. It ought to be decided right in the

public interest.")

nd in these

days time is of the essence in many of these important cases coming before

the Supreme Court."); id ., at 3265 (remarks of Rep. Fred M. Vinson)

(When the constitutionality of an Act of Congress has been drawn into

question, that question "affects not only the litigants in the particular

case, but it affects many others. It ought to be decided right in the

public interest.")

[20] See note 4, supra .

Such concurrence of views between the Executive Branch and the Judiciary

does not necessarily preclude a case or controversy over the

constitutionality of a federal statute. In INS v. Chadddha , _____

U.S. _____ (1983), for example, the agency and the private party agreed

that a federal provision was unconstitutional. Congress, however, had

intervened as a party, and contested the holding. The constitutionality of

the one-house legislative veto was therefore squarely presented on direct

appeal to this court. But that is not the situation in the present

case.