Gruenwald v. Gardner, 309
| Citation | 390 F.2d 591 |
| Decision Date | 06 March 1968 |
| Docket Number | No. 309,Docket 31798.,309 |
| Parties | Oskar GRUENWALD, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Julius C. Biervliet, New York City (Edward Q. Carr, Jr., New York City, on the brief), for appellant.
Howard L. Stevens, Asst. U. S. Atty., Eastern Dist. of New York (Joseph P. Hoey, U. S. Atty., Eastern Dist. of New York, on the brief), for appellee.
Before MEDINA, MOORE and ANDERSON, Circuit Judges.
After receiving notice of the old age assistance benefits awarded him in the amount of $80.50, pursuant to the provisions of the Social Security Act, the plaintiff requested reconsideration on the ground that Congress had established different and discriminatory criteria for the computation of benefits for men and women at age 62 as a result of the application of 42 U.S.C. § 415(b) (3). Because the plaintiff, a male, elected, as he was entitled to do, to have his benefit payments commence 36 months prior to his attaining his 65th birthday, his primary insurance of $100.60 was reduced by 20%. A female, with a history of equal earnings, retiring at age 62 would have had a primary insurance amount of $115.60 and would have been entitled to monthly payments of $92.50. The years of an individual's highest earnings are used in computing the "average monthly wage," § 415(b) (2) (B), which determines the primary insurance amount under § 415. The statute provides for the computation of a female wage earner's average monthly wage on the basis of three years less than that used in the computation for a male. § 415(b) (3) (A) and (C). This eliminates years of lower earnings and increases the average monthly wage and the primary insurance amount for the female.
The Appeals Council confirmed the computation of plaintiff's benefits and refused to apply the measure applicable to women under the same circumstances. The plaintiff then commenced this action pursuant to 42 U.S.C. § 405(g) to have the determination of the Hearing Examiner and Appeals Council reviewed and the 1961 Amendment to the Social Security Act, § 415(b) (2) (A)-(3) (A, C), declared unconstitutional. The District Court granted the defendant's motion for summary judgment from which the plaintiff has appealed.
The appellant concedes that women, as a class, earn less than men, that their economic opportunities in higher age groups are less,1 and that higher benefits will operate as an inducement for their earlier retirement, but disputes "the unequal treatment of two individuals solely because of sex" and argues that a "classification must rest upon a difference which is real * * *." Quaker City Cab Co. v. Com. of Pennsylvania, 277 U.S. 389, 406, 48 S.Ct. 553, 556, 72 L.Ed. 927 (1928) (dissenting opinion). Yet the "two sexes are not fungible," Ballard v. United States, 329 U.S. 187, 193, 67 S.Ct. 261 (1946), and special recognition and favored treatment can constitutionally be afforded women. See Hoyt v. Florida, 368 U.S. 57, 91 L.Ed. 181 (1961); Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908). It is only the "invidious discrimination" or the classification which is "patently arbitrary and utterly lacking in rational justification" which is barred by either the "due process" or "equal protection" clauses. Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960); Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955). A classification or regulation, on the other hand, "which is reasonable in relation to its subject and is adopted in the interests of the community is due process." West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S.Ct. 578, 582, 81 L.Ed. 703 (1937). See Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37, 48 S.Ct. 423, 72 L.Ed. 770 (1928); Taylor v. Brown, 137 F.2d 654, 660 (Emerg.Ct.App.), cert. denied, 320 U.S. 787, 64 S.Ct. 194, 88 L.Ed. 473 (1943).
There is here a reasonable relationship...
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...82 S.Ct. 159, 7 L.Ed.2d 118 (1961), home and family responsibilities were held to justify a jury duty exemption for women. Gruenwald v. Gardner, 390 F.2d 591 (2d Cir.), cert. denied sub nom. Gruenwald v. Cohen, 393 U.S. 982, 89 S.Ct. 456, 21 L.Ed.2d 445 (1968), upheld Social Security Act pr......
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