Gentry v. United States, 312-74.

• Decision Date: 17 November 1976
• Docket Number: No. 312-74.,312-74.
• Citation: 546 F.2d 343
• Parties: Gerald E. GENTRY, an infant over the age of 14 years, by Eunice Bradford, his guardian ad litem, v. The UNITED STATES.
• Court: U.S. Claims Court

546 F.2d 343

Gerald E. GENTRY, an infant over the age of 14 years, by Eunice Bradford, his guardian ad litem, v. The UNITED STATES.

No. 312-74.

United States Court of Claims.

November 17, 1976.

Richard A. Weinstock, Ventura, Cal., atty. of record, for plaintiff.

Donnie Hoover, Washington, D.C., with whom was Asst. Atty. Gen. Rex E. Lee, Washington, D.C., for defendant.

Before SKELTON, NICHOLS and BENNETT, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

BENNETT, Judge:

This case comes before the court on the parties' cross-motions for summary judgment on which we have received oral argument. Plaintiff, an illegitimate minor child, asks us by his guardian ad litem to award him benefits said to be due him under the Civil Service Retirement Act of 1930, as amended, 5 U.S.C. §§ 8331 et seq. (1970), as the survivor of his deceased father, a retired civilian welder for the Navy. The Civil Service Commission's (CSC) Bureau of Retirement, Insurance, and Occupational Health, without deciding whether the deceased civil servant annuitant was the natural father of plaintiff or recognized him as his child, denied plaintiff's claim to survivors' benefits under 5 U.S.C. § 8341(e) (1970) solely because he did not live in the deceased annuitant's home "in a regular parent-child relationship." The bureau reasoned that the Act (hereafter "annuity statute" or "statute") under which plaintiff claimed required him, as an illegitimate, to have lived with his father in order to be entitled to benefits. 5 U.S.C. § 8341(a)(3)(A)(ii) (1970). Plaintiff now answers that he did not live with his alleged father, but that the "live-with" requirement of the statute must be ignored because the requirement discriminates against illegitimates in violation of the Fifth Amendment to the Constitution and is therefore void, and that the remainder of the statute, read without the offending language, entitles him to survivors' benefits. To decide this matter, we must first consider our authority to resolve the case under the Tucker Act, as recently construed by the Supreme Court in United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (hereafter Testan).

I. Jurisdiction

Defendant says that we lack jurisdiction over this suit because it is not a claim for money presently due and owing, as prescribed by a statute or the Constitution. It bases this argument on Testan and Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002 (1967), in which it was held that (apart from claims based on contract or illegal exactions or retentions of money) this court can only render judgment for money when some law can, in itself, fairly be interpreted as prescribing a payment by the United States in the circumstances present.¹ Defendant argues that no such law exists in this case. The due process clause of the Fifth Amendment is clearly not such a law, nor do we know of any valid regulation promulgated pursuant to statute that prescribes the payment plaintiff asks. Defendant says that the annuity statute, since it expressly excludes plaintiff from its coverage by virtue of the live-with requirement, cannot be read to provide for the payment of benefits to plaintiff. Since plaintiff seeks to avoid this predicament and construct a mandate to pay from the annuity statute's language, he argues, as noted before, that we can order payment on the theory that the live-with language is void as unconstitutional, and that the remaining provisions of the statute specify the payment of his claimed benefits. Thus, we must decide whether we can disregard, on constitutional grounds, one provision of a statute, and render judgment on the provisions that remain standing (if severable).

Defendant advances two reasons for its view that this decision must be in the negative. First, it says the annuity statute, whether or not the live-with provision is unconstitutional, cannot be understood to require payment of benefits to a nonresident illegitimate child. Of course, this begs the question of severability, for only after inquiring into Congress' intent as to the whole statute can we respond to defendant's assertion.² Secondly, and more to the point, it argues that this court, before it can reach the conclusion that the remainder of the statute mandates payments to plaintiff, must first have declared the allegedly offensive language void as against the Fifth Amendment, but that this court may not, make such a declaratory judgment, citing United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969).

Defendant's second argument is inapt precisely because it misperceives the process of constitutional adjudication. Plaintiff has come before this court, not asking for a declaration of his rights as in King, but seeking money allegedly due him. The money claim is grounded, according to plaintiff, on the statute as it now exists — at least when read in light of the Fifth Amendment — and thus states a claim for money presently due, not requiring further action on anyone's part to create the entitlement thereto. This is exactly the kind of claim within our jurisdiction under Testan. The issue of the constitutional validity of the live-with requirement arises only incidentally, necessitating an answer by the court in the course of construing the annuity statute to determine whether payment is indeed owing to plaintiff. It is in this fashion that constitutional claims had arisen and been decided in the courts of the United States in the 140 years of their existence before the passage of the Declaratory Judgment Act in 1934, 28 U.S.C. § 2201 (1970). In United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946), the Supreme Court affirmed this court's judgment awarding back pay to federal employees whose salaries had been barred by Act of Congress, in effect discharging them from their jobs. The Court held the Act an unconstitutional bill of attainder, and said the award of pay would lie despite the fact that the Act, the very measure which appropriated funds to pay the employees' salaries, did not authorize payment but sought (unconstitutionally) to stop payment. The Act was construed to provide for paying their salaries, yet this could only be accomplished by reading out of the measure the constitutionally offensive language. The Court stated, 328 U.S. at 314, 66 S.Ct. at 1078, "respondents claimed that their discharge was unconstitutional; that they consequently rightfully continued to work for the Government and that the Government owes them compensation * * *. Congress has established the Court of Claims to try just such controversies." In the present case, plaintiff asks us to do no more than the Court in Lovett said that we could and must do — read the relevant statute and award whatever payment it grants, omitting from our interpretation of its effect any constitutionally void provision contained in it.

Defendant's notion about the sequence of events leading up to a judgment in plaintiff's favor — the reading of the statute barring plaintiff's claim, then the decision that the live-with requirement is unconstitutional, and finally a finding of entitlement based upon a "rewritten" statute — is not founded on any case or rule cited to us, nor is it compelled as a matter of logic. The truth is that this court is bound by oath to read and give effect to the statute, but to do so only with regard to that portion that is constitutional. It is well established that an unconstitutional enactment is void ab initio, Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1886), and that judges may not give effect to it. Younger v. Harris, 401 U.S. 37, 52, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). If this court reads and gives effect to all of a statute that it can without transgressing the oath of loyalty to the Constitution, which is what plaintiff asks, it is not issuing a declaratory judgment at any time, or otherwise acting prior to judgment to create the entitlement upon which the judgment is based.

While this court may and indeed must decide whether it can, consistent with the Constitution, give effect to the live-with requirement, in the course of ruling on plaintiff's entitlement under the annuity statute, we must first ask whether the allegedly offending language is severable from the remainder of the statute under which plaintiff claims. Obviously, for plaintiff's claim to succeed, the remaining provisions must be able to stand, giving rise to plaintiff's entitlement to benefits. If the live-with requirement is not separable from the other language of the statute, this court has no jurisdiction to grant recovery to plaintiff, whether the requirement is constitutional or not. If constitutional, the requirement bars plaintiff from the entitled classes, and he can point to no law that authorizes a payment of money to him. If unconstitutional and not separable, the legislative scheme authorizing payment falls, and there is no other law providing for the disbursement of such benefits. Because of the nature of this court's jurisdiction, we must depart from the usual practice of inquiring first into constitutionality and then into severability, and instead consider the latter first. In our view, we have jurisdiction because the allegedly offending requirement is severable from its statutory context.

The question of severability is answered by a practical inquiry into the legislature's intent on the internal relation of the various statutory provisions. "`Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law'." United States v. Jackson, 390 U.S. 570, 585, 88 S.Ct. 1209, 1218, 20 L.Ed.2d 138 (1968), quoting from Champlin Ref. Co. v. Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 76 L.Ed. 1062 (1932). That...