Kalina v. Railroad Retirement Bd.

• Decision Date: 13 September 1976
• Docket Number: No. 75-2256,75-2256
• Citation: 541 F.2d 1204
• Parties: Anthony S. KALINA, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1204

541 F.2d 1204

Anthony S. KALINA, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.

No. 75-2256.

United States Court of Appeals,

Sixth Circuit.

Argued June 11, 1976.

Decided Sept. 13, 1976.

Charles M. Young, Sindell, Sindell, Stern & Guidubaldi, Cleveland, Ohio, for petitioner.

Dale G. Zimmerman, Gen. Counsel, Railroad Retirement Bd., Chicago, Ill., for respondent.

Before PECK and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McCREE, Circuit Judge.

This is a petition to review the Railroad Retirement Board's decision that Anthony Kalina is not entitled to a spouse's annuity under the Railroad Retirement Act of 1937, 45 U.S.C. §§ 228a 228z-1 because he did not establish that he was receiving at least one-half of his support from his wife on the date that her annuity as a retired railroad worker began. Petitioner challenged the constitutionality of section 2(f) of the Act, 45 U.S.C. § 228b(f)(ii), which defines the term "spouse," ¹ but the Board refused to consider his contention, stating that "(q)uestions of constitutionality are for the courts and not the administrative agencies to rule upon." Our jurisdiction is based upon 45 U.S.C. §§ 228k and 355(f).

We hold that § 228b(f)(ii) violates the equal protection component of the due process clause because it provides dissimilar treatment for men and women who are similarly situated, without a legally sufficient basis for the discrimination. Accordingly, petitioner Kalina is entitled to a spouse's annuity.

Petitioner's wife, Emilie Kalina, is a retired railroad employee who receives a retirement annuity pursuant to section 2(a)(1) of the Act, 45 U.S.C. § 228b(a)(1). According to her uncontroverted testimony before the Board, Mrs. Kalina began working in the railroad industry about 1920. She married petitioner in 1969, and began receiving her annuity in 1971, shortly after the last day on which she worked in the railroad industry. She was then about 70 years of age. In her application for her annuity, Mrs. Kalina listed her position as chief clerk. In answer to the question whether her husband was dependent upon her for more than one-half of his support, she answered "no."

In 1972, petitioner filed an application for a spouse's annuity. When the Bureau of Retirement Claims determined that petitioner was not entitled to an annuity, he appealed to the Railroad Board. The evidence before the Board indicated that for many years before his marriage, petitioner lived with Mrs. Kalina, who was a distant cousin and that Mrs. Kalina maintained the home and paid its expenses without any financial help from petitioner. Petitioner, who first came to this country in 1948, is a teacher. His employment has been irregular. The Board found that in the 12 months before Mrs. Kalina began receiving her annuity, her income was approximately $7,600; while during the same period, petitioner, who had found employment as a college teacher in another state, earned about $8,400. The Board determined that petitioner had not established that he was receiving over one-half of his support from Mrs. Kalina at the time her annuity began. Accordingly it concluded that he was not entitled to a spouse's annuity.

Section 2(f) of the Railroad Retirement Act provides that the term spouse for the purposes of spouse's annuity shall mean:

(i) . . . the wife or husband of a retired annuitant . . .; and (ii) in the case of a husband, was receiving at least one-half of his support from his wife at the time his wife's retirement annuity or pension began.

For the purpose of this appeal, petitioner does not contest the Board's determination that he was unable to prove that he received over one-half of his support from his wife at the time her annuity began. The issue before us is whether the equal protection component of the Fifth Amendment due process clause is violated by a provision requiring the spouse of a retired female railroad employee, but not the spouse of a retired male employee, to prove actual dependency in order to qualify for a spouse's annuity.

The parties have devoted much of their argument to the question whether sex is a suspect classification that requires strict scrutiny of the asserted justification for disparate treatment to avoid offending the equal protection and due process clauses. However, we find it unnecessary to reach this issue, because the Supreme Court's recent decisions in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) and Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) control this case.

In Frontiero, the Court considered 37 U.S.C. §§ 401, 403 and 10 U.S.C. §§ 1072 and 1076, which required a female member of the uniformed services who sought housing and medical benefits for her spouse to prove dependency in fact (i. e., that she contributed over one-half of her husband's support), although male members of the services were not required to prove that their wives were dependent in fact in order to obtain the same benefits. The Court held that this requirement violated the due process clause of the Fifth Amendment. Four members of the Court held that sex is an inherently suspect classification, like race, alienage, and national origin. Accordingly, they subjected the challenged discrimination to "close judicial scrutiny." The sole basis for the different treatment was the sex of the persons involved. The statute denied benefits to a female member who provided less than one-half of her spouse's support, although it granted benefits to a male member in the same circumstance. The government contended that this different treatment for men and women similarly situated was justified by "administrative convenience." However, as the plurality opinion observed, no evidence was submitted showing that this procedure was less costly than one requiring all service members to prove the dependency of their spouses. The plurality opinion held that the challenged statutes, by according different treatment to males and females similarly situated for the sole purpose of administrative convenience, violated due process, citing Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

Justice Stewart concurred in the judgment, stating only that he agreed "that the statutes before us work an invidious discrimination in violation of the Constitution. Reed v. Reed, 404 U.S. 71 (92 S.Ct. 251, 30 L.Ed.2d 225)" 411 U.S. 691, 93 S.Ct. 1772.

Justice Powell, with whom the Chief Justice and Justice Blackmun concurred, found it unnecessary to determine whether sex was a suspect classification. They stated that in their view Reed v. Reed abundantly supported the Court's decision. ²

More recently, in Schlesinger v. Ballard, 419 U.S. 498, 507, 95 S.Ct. 572, 577, 42 L.Ed.2d 610 (1975), the Court restated Frontiero :

In both Reed and Frontiero the challenged classifications based on sex were premised on overbroad generalizations that could not be tolerated under the Constitution. . . . In Frontiero, the assumption underlying the Federal Armed Services benefit statutes was that female spouses of servicemen would normally be dependent upon their husbands, while male spouses of servicewomen would not.

Later in the same year, the Supreme Court invalidated 42 U.S.C. § 402(g), which provided that Social Security survivors' benefits based on the earnings of a deceased husband and father were payable both to the couple's minor children and to the widow, although benefits based upon the earnings of a deceased wife and mother were payable only to the couple's minor children, and not to the widower. In Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) ³ the Court held that the

gender-based distinction made by § 402(g) is indistinguishable from that invalidated in Frontiero v. Richardson, 411 U.S. 677 (93 S.Ct. 1764, 36 L.Ed.2d 583) (1973). Frontiero involved statutes which provided the wife of a male serviceman with dependents' benefits but not the husband of a servicewoman unless she proved that she supplied more than one-half of her husband's support. The Court held that the statutory scheme violated the right to equal protection secured by the Fifth Amendment. Schlesinger v. Ballard, 419 U.S. 498 (95 S.Ct. 572, 42 L.Ed.2d 60) (1975), explained: "In . . . Frontiero the challenged (classification) based on sex (was) premised on overbroad generalizations that could not be tolerated under the Constitution. . . . (T) he assumption . . . was that female spouses of servicemen would normally be dependent upon their husbands, while male spouses of servicewomen would not." Id., at 507 (95 S.Ct. at 577). A virtually identical "archaic and overbroad" generalization, id., at 508 (95 S.Ct. 572), "not . . . tolerated under the Constitution" underlies the distinction drawn by § 402(g), namely, that male workers' earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families' support. (Footnote omitted.) 420 U.S. 642-643, 95 S.Ct. 1230.

The Court observed that although the assumption that men are more likely than women to be the primary supporters of their families "is not entirely without empirical support," nevertheless,

such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support. 420 U.S. 645, 95 S.Ct. 1232.

The Court rejected the argument that the noncontractual nature of Social Security benefits permitted Congress to provide a covered female employee with fewer benefits than it provided for a covered male. It also rejected the contention that the classification under attack was one "reasonably designed to compensate women beneficiaries as a group for the economic difficulties which still confront women who seek to support themselves and their families." 420 U.S. 648, 95 S.Ct. 1233. The...