Kohr v. Weinberger, Civ. A. No. 73-1698.

• Decision Date: 26 July 1974
• Docket Number: Civ. A. No. 73-1698.
• Citation: 378 F. Supp. 1299
• Parties: Paul KOHR, on behalf of himself and all others similarly situated, Plaintiff, v. Caspar W. WEINBERGER, Individually and as Secretary of the Department of Health, Education and Welfare, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

378 F. Supp. 1299

Paul KOHR, on behalf of himself and all others similarly situated, Plaintiff, v. Caspar W. WEINBERGER, Individually and as Secretary of the Department of Health, Education and Welfare, et al., Defendants.

Civ. A. No. 73-1698.

United States District Court, E. D. Pennsylvania.

July 26, 1974.

Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Philadelphia, Pa., Frank L. Dell'Acqua, Chief of Litigation, James C. Pyles, Atty., Social Security Div., Dept. of Health, Education and Welfare, Washington, D.C., for defendants.

David A. Scholl, Annette Hearing Sullivan, Chester, Pa., for plaintiffs.

Before VAN DUSEN, Circuit Judge, and HIGGINBOTHAM and FOGEL, District Judges.

OPINION

FOGEL, District Judge.

This action, brought by plaintiff Paul Kohr on behalf of himself and similarly situated male recipients of social security benefits, challenges the constitutionality of § 215(b)(3) of the Social Security Act, 42 U.S.C. § 415(b)(3), because that provision accords females receiving social security payments under the terms of that subsection more favorable benefit computation than their male counterparts.

A three judge court was constituted pursuant to 28 U.S.C. §§ 2282, 2284. All relevant facts have been stipulated, and the case can be decided on the cross motions for summary judgment filed by the parties. Oral argument was heard, and extensive briefs were filed with respect to the jurisdiction of this Court as well as the substantive merits of the controversy.

We conclude that plaintiff has satisfied the relevant jurisdictional requirements, but that relief on the merits must be denied.

We deal first with defendants' contention that this Court lacks jurisdiction over the subject matter of the action because plaintiff has failed to exhaust his administrative remedies.

Plaintiff filed an application for retirement insurance benefits on November 1, 1971, listing his date of birth as February 10, 1910. The Social Security Administration determined that he was entitled to a monthly retirement benefit of $162.50, effective in February of 1972, based upon the primary insurance amount of $203.10; the monthly benefit amount was subsequently increased to $163.60, based upon a primary insurance amount of $204.50, effective in February of 1972, and to $198.00, based upon a primary insurance amount of $245.40, effective in September of 1972. Plaintiff filed a formal request for reconsideration on June 8, 1972, claiming that he should have been awarded benefits equal to those paid to women similarly situated. The reconsideration decision, dated July 14, 1972, reaffirmed the initial determination of benefits, and informed plaintiff that, under the applicable regulations, he could request a hearing within six months from the date of that decision. Plaintiff did not request such a hearing, but instead filed the instant action in July of 1973.¹

Plaintiff concedes that he did not exhaust all administrative remedies then available to him, but he contends that, under the circumstances presented in this case, further proceedings within the Social Security Administration would have been futile.

Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), provides as follows, in pertinent part:

(g) Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. * * *

Section 205(h) further provides:

* * * No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 41 of Title 28 to recover on any claim arising under this subchapter. Section 41 of Title 28 has been superseded by 28 U.S.C. § 1331 et seq.

We do not agree that the requirement of a "final decision . . . made after a hearing" is a bar to plaintiff's cause of action in the instant case; we hold that this Court has jurisdiction under § 205(g) of the Social Security Act. Williams v. Richardson, 347 F.Supp. 544, 548 (W.D.N.C.1972). The futility of further pursuit of administrative remedies is clear from an examination of the reconsideration determination of July 14, 1972. Even though plaintiff's claim was based upon the alleged discriminatory treatment accorded to him in contrast to that accorded to a woman in like circumstances, this constitutional issue is not even discussed in the reconsideration determination; that document merely restates the benefits computation formula found in the pertinent statute and regulations, and confirms the arithmetic correctness of the computation. Plaintiff did not allege that the benefits determination was based upon an erroneous view of the facts; instead he attacked the statutory framework and the regulations promulgated pursuant thereto on constitutional grounds. Hence, the reconsideration determination was simply not responsive to the core of plaintiff's claim. Further pursuit of administrative remedies would unquestionably have been similarly unproductive since the agency would not strike down as unconstitutional a portion of the Act it is bound to administer.² Gainville v. Richardson, 319 F.Supp. 16, 18 (D.Mass. 1970); Williams v. Richardson, supra, 347 F.Supp. at 548; Wiesenfeld v. Secretary of Health, Education & Welfare, 367 F.Supp. 981, 985 (D.N.J.1973).³

We now turn to the merits of plaintiff's claim. At issue is the benefits computation formula mandated by § 215(b)(3) of the Act, which permits a woman to use three fewer "elapsed years" to compute her "benefit computation years" than would a similarly situated man. The effect of this provision is to eliminate years of lower earnings in the computation of the "average monthly wage", from which the "primary insurance amount" is determined. In the present case, plaintiff would have received $205.00 in actual cash benefits per month had he been a woman, $7.00 per month more than he in fact receives. It is this discrepancy which plaintiff maintains is in violation of the due process clause of the Fifth Amendment, in that it unconstitutionally discriminates against him because he is a male.⁴

The precise issue presented in this case has been decided by three different federal courts during the last six years, each of which has sustained the constitutionality of § 215(b)(3).

In Gruenwald v. Gardner, 390 F.2d 591 (2d Cir. 1968), cert. den. sub nom. Gruenwald v. Cohen, 393 U.S. 982, 89 S. Ct. 456, 21 L.Ed.2d 445, the Court of Appeals for the Second Circuit upheld § 215(b)(3) on the basis of the "rational justification" test enunciated in Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), and Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). The Court concluded that there was a "reasonable relationship between the objective sought by the classification, which is to reduce the disparity between the economic and physical capabilities of a man and a woman—and the means used to achieve that objective in affording to women more favorable benefit computations." Gruenwald, supra, 390 F.2d at 592.⁵

Subsequent to the decision in Gruenwald, the Supreme Court in two decisions cast some doubt on the continuing applicability of the "rational justification" test in cases where the alleged discrimination is based on sex. In Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L. Ed.2d 225 (1971), the Court seemed to adopt a somewhat stricter test, requiring that the classification be "reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike", 404 U.S. at 76, 92 S.Ct. at 254, citing Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920). Then, in Frontiero v. Richardson, supra, four members of the Court concluded that classifications based on sex were "inherently suspect", and would require "close judicial scrutiny". It is significant to note that, even in the plurality opinion, Gruenwald was cited with apparent approval:

"It should be noted that the statutes challenged in Frontiero are not in any sense designed to rectify the effects of past discrimination against women. See Gruenwald v. Gardner, 390 F.2d 591 (CA2 1968), cert. denied, 393 U.S. 982, 89 S.Ct. 456, 21 L. Ed.2d 445 (1968) * * *. On the contrary, these statutes seize upon a group—women—who have historically suffered discrimination in employment, and rely on the effects of this past discrimination as a justification for heaping on additional economic disadvantages. * * *" Frontiero, supra, 411 U.S. at 689, n.22, 93 S.Ct. at 1771.

Both of the courts which have considered the constitutionality of § 215(b)(3) since the decision in Frontiero have determined that the holding in Gruenwald if not its exact language, has remained viable. McEvoy v. Weinberger, No. 72-1727-Civ-JE (S.D.Fla., August 28, 1973); Polelle v. Secretary of Health, Education & Welfare, No. 73C774 (N.D. Ill., 1974) (3 judge court). Each decision relied upon the effect of the statute to rectify past discrimination against women, in contrast to the legislation attacked in Frontiero, which heaped additional economic disadvantages on women. The Court in McEvoy also found a compelling governmental interest, which presumably would satisfy the strict scrutiny requirement of the plurality in Frontiero, in the reduction of economic disparity between the sexes; the Court in Polelle, in a more limited holding, found that reduction of economic disparity between the sexes which is the result of past or present discrimination provides a compelling...