Frontiero v. Laird

• Decision Date: 14 June 1971
• Docket Number: Civ. A. No. 3232-N.
• Citation: 327 F. Supp. 580
• Parties: Sharron A. FRONTIERO and Joseph Frontiero, Plaintiffs, v. Melvin R. LAIRD, as Secretary of Defense, his successors and assigns, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

327 F. Supp. 580

Sharron A. FRONTIERO and Joseph Frontiero, Plaintiffs, v. Melvin R. LAIRD, as Secretary of Defense, his successors and assigns, et al., Defendants.

Civ. A. No. 3232-N.

United States District Court, M. D. Alabama, N. D.

June 14, 1971.

J. J. Levin, Jr., Levin & Dees, Montgomery, Ala., for plaintiffs.

L. Patrick Gray, III, Asst. Atty. Gen., Harland F. Leathers and Jeffrey F. Axelrad, Attys., Civ. Div., U. S. Dept. of Justice, Washington, D. C., Ira DeMent, U. S. Atty., and F. E. Leonard, Jr., Asst. U. S. Atty., U. S. Dept. of Justice, Montgomery, Ala., for defendants.

Before RIVES, Circuit Judge, and JOHNSON and McFADDEN, District Judges.

OPINION

ON MOTION TO DISSOLVE THREE-JUDGE COURT

PER CURIAM:

In support of their motion to dissolve the three-judge court, the defendants make two arguments: (1) that it is impossible for an injunction to issue here; (2) that the constitutional question presented is insubstantial.

I. Can injunctive relief be granted for plaintiffs?

A three-judge district court is not required where a federal statute cannot be put under an equity decree, where there can be no interdiction of a statutory scheme. Flemming v. Nestor, 1960, 363 U.S. 603, 80 S.Ct. 1367, 4 L. Ed.2d 1435; International Ladies' Garment Workers' Union v. Donnelly Garment Co., 1938, 304 U.S. 243, 58 S.Ct. 875, 82 L.Ed. 1316.

Plaintiffs' opposition brief does a convincing job in distinguishing the cases relied on by defendants in support of their contention that no injunctive relief can possibly issue in this case.

In Flemming v. Nestor, supra and Gruenwald v. Gardner, 2 Cir. 1968, 390 F.2d 591, parts of the Social Security Act were challenged but no injunctive relief was sought. (In Gruenwald, declaratory relief was sought.) Plaintiffs argue that the review statute of the Social Security Act does not allow for injunctions nor class actions. This seems correct.

42 U.S.C. § 405 creates the structure under which social security benefit claims are to be handled. Section 405(h) makes the review provided by section 405(g) exclusive. The latter section permits judicial review of the Secretary's findings, and it is difficult to see how a class action could arise when only determinations of individual cases are reviewable. Furthermore, the judiciary's power to review is limited by the following sentence: "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 * * *." This language seems not to allow for injunctive relief.

International Ladies' Garment Workers Union v. Donnelly Co., supra and Petersen v. Clark, N.D.Cal.1968, 285 F.Supp. 693, stand for the rule that a plaintiff may not anticipate a defense in his pleadings. If he seeks an injunction against a statute which he feels the defendant will raise as a defense, the law is clear that the anticipated defense is mere surplusage, and does not call for the impaneling of a three-judge court.

There are some statutes which the courts are powerless to enjoin. The social security cases discussed above furnish one example where there may be no authorization to hear prayers for injunctive relief. Another example is the statutory prohibition from hearing challenges to the selective service law prior to induction.

In Petersen v. Clark, supra, Peterson challenged the constitutionality of 50 U. S.C. App. § 460(b)(3) which prohibits pre-induction judicial review of his selective service classification. The court's opinion dissolving the three-judge court followed International Ladies' Garment Workers Union v. Donnelly Co., supra, in holding that the plaintiff was raising the constitutional issue as an anticipated defense, but also felt Flemming v. Noster, supra, was controlling in that no federal statute would be put under an equity decree. If the court were to hold 50 U.S.C. App. § 460(b)(3) unconstitutional, it would merely give the court jurisdiction; no injunction would be issued.

The statutes which the plaintiffs here challenge do appear subject to be enjoined.

10 U.S.C. § 1072:

"In section 1071-1085 of this title:

* * * * * *

"(2) `Dependent,' with respect to a member of or former member of a uniformed service, means— "(A) the wife;

* * * * * *

"(C) the husband, if he is in fact dependent on the member or former member for over one-half of his support."

37 U.S.C. § 401:

"In this chapter, `dependent,' with respect to a member of a uniformed service, means—

"(1) his spouse;

"(2) his unmarried legitimate child (including a stepchild, or an adopted child, who is in fact dependent on the member) who either—

"(A) is under 21 years of age; or

"(B) is incapable of self-support because of a mental or physical incapacity, and in fact dependent on the member for over one-half of his support; and

"(3) his parent (including a stepparent or parent by adoption, and any person, including a former stepparent, who has stood in loco parentis to the member at any time for a continuous period of at least five years before he became 21 years of age) who is in fact dependent on the member for over one-half of his support and actually resides in the member's household.

However, a person is not a dependent of a female member unless he is in fact dependent on her for over one-half of his

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