Burke v. United States

• Decision Date: 20 June 1973
• Docket Number: No. 71-2807.,71-2807.
• Citation: 480 F.2d 279
• Parties: James A. BURKE, and on behalf of all others similarly situated, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

480 F.2d 279 (1973)

James A. BURKE, and on behalf of all others similarly situated, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.

No. 71-2807.

United States Court of Appeals, Ninth Circuit.

June 20, 1973.

James A. Burke, pro. per.

James L. Browning, Jr., U. S. Atty., Richard F. Locke, Asst. U. S. Atty., San Francisco, Cal., for defendants-appellees.

Before CHAMBERS, TRASK and WALLACE, Circuit Judges.

PER CURIAM:

Appellant challenges the constitutionality of 38 U.S.C. § 1795 which limits the amount of aggregate benefits a person may receive under two or more veterans' assistance laws.¹ Appellant had received benefits under the War Orphans' & Widows' Educational Assistance Act, 38 U.S.C. § 1700 et seq., (chapter 35) of $110 per month for a total of 31¼ months and thereafter applied for benefits under the Veterans' Educational Assistance Act, 38 U.S.C. § 1651 et seq., (chapter 34) which provides for a possible maximum entitlement of 36 months of benefits. With the 31¼ months under chapter 35, the benefits would have aggregated 67¼ months. Under 38 U.S.C. § 1795, supra, he was limited to a maximum aggregate of 48 months under both chapters. It is this limitation of which he complains. He contends that it violates his right to equal protection of the laws as well as his rights guaranteed by the due process clause. The district court found otherwise and dismissed the action. We affirm.

Two procedural issues were raised by a request for a three-judge court and for a class action. Both requests were denied and we believe properly. In order that a three-judge court be convened pursuant to 28 U.S.C. § 2282 et seq. the federal question must be a substantial one. California Water Service Co. v. Redding, 304 U.S. 252, 254, 58 S.Ct. 865, 82 L.Ed. 1323 (1938); Howfield, Inc. v. United States, 409 F. 2d 694, 697 (9th Cir. 1969); Carlough v. Finch, 309 F.Supp. 1025, 1027 (S.D. Fla. 1969). The appellant has failed to establish this as we shall presently show. The request for a class action becomes moot when the merits are determined against the appellant and we do not pass on that issue.

To determine whether a statute violates the Equal Protection Clause, we first examine three criteria:

"The character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification." Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972).

Appellant asserts that he is classified differently from other eligible veterans because he is a war orphan, having lost his father as a combat casualty in 1945. Thus a limitation of benefits is imposed upon him which is not imposed upon others, in that he does not receive the maximum benefits under chapter 34 (Veterans' Educational Assistance) although he does receive an aggregate benefit in excess of the total allowable chapter 34 benefits. The governmental interests served by the classification appear to be prompted by considerations of economy, budget and legislative judgment as to what is desirable and proper under the circumstances. No more explicit legislative history has been cited.²

Both appellant and appellee agree that the test to be applied to the classification for the purpose of determining its validity is whether it is arbitrary and without rational justification. In a slightly different context, that of termination of Social Security benefits, the Court said in Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L. Ed.2d 1435 (1960):

"The interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause. In judging the permissibility of the cut-off provisions of § 202(n) from this standpoint, it is not within our authority to determine whether the Congressional judgment expressed in that section is sound or equitable, or whether it comports well or ill with the purposes of the Act. `Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II, it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom.\' Helvering v. Davis, supra, 301 U.S. 619 at 644 57 S.Ct. 904, at 910, 81 L.Ed. 1307. Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification."

Appellant relies upon Shapiro v. Thompson, 394 U.S. 618, 633, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), to support his contention that a classification based upon a "financial saving alone" will not justify an otherwise invidious classification. The classification which was invidious in Shapiro was one based upon length of residence in order to qualify for welfare benefits. The reason a residence...