Moss v. Secretary of Health, Ed. and Welfare, No. 74-721-Civ-T-H.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtRONEY, Circuit , and HODGES and REED
Citation408 F. Supp. 403
PartiesWilliam C. MOSS and Lenore R. Moss, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.
Decision Date15 January 1976
Docket NumberNo. 74-721-Civ-T-H.

408 F. Supp. 403

William C. MOSS and Lenore R. Moss, Individually and on behalf of all other persons similarly situated, Plaintiffs,
v.
SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.

No. 74-721-Civ-T-H.

United States District Court, M. D. Florida, Tampa Division.

January 15, 1976.


408 F. Supp. 404
COPYRIGHT MATERIAL OMITTED
408 F. Supp. 405
COPYRIGHT MATERIAL OMITTED
408 F. Supp. 406
Larry Helm Spalding, Sarasota, Fla., for plaintiffs

John L. Briggs, U. S. Atty., Jacksonville, Fla., Terry A. Smiljanich, Asst. U. S. Atty., Tampa, Fla., William Z. Elliott, Dept. of Justice, Washington, D. C., for defendant.

Before RONEY, Circuit Judge, and HODGES and REED, District Judges.

ORDER

HODGES, District Judge.

Plaintiffs, William and Lenore Moss, husband and wife, challenge for themselves and members of their class the constitutionality of § 202(c) of the Social Security Act,1 and seek to restrain its enforcement. Due to the nature of the action a three-judge district court was convened. 28 U.S.C. § 2282. The case was heard upon cross motions for summary judgment and upon the Secretary's motion for dissolution of the three-judge court.2

Subsequent to the convening of this three-judge court, the Supreme Court made a definitive pronouncement of the jurisdictional basis for district court review of Social Security actions in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Therefore, before proceeding to the merits the Court must determine whether Salfi requires that this Court be dissolved.3

In Salfi the plaintiffs challenged various sections of the Social Security Act,4 arguing that they contravened the due process clause of the Fifth Amendment. Predicating its jurisdiction on 28 U.S.C.

408 F. Supp. 407
§ 1331, a three-judge court granted injunctive relief in favor of the plaintiffs and the class they represented. On appeal, the Supreme Court reversed the district court's jurisdictional finding. The suit could not be maintained under 28 U.S.C. § 1331 because it was an "`action' seeking `to recover on a Social Security claim,'" and thus withdrawn from federal question jurisdiction by § 205(h) of the Social Security Act, 42 U.S.C. § 405(h). 95 S.Ct. at 2464-65. Consequently, the sole basis for the district court's jurisdiction was 42 U.S.C. § 405(g), the jurisdictional grant contained in the Social Security Act; and because § 405(g) makes an adverse determination by the Secretary a prerequisite to suit, the Supreme Court also held that the district court's jurisdiction extended only to the named plaintiffs and not to members of their class. Id. at 2465-2466

Since the Court is unable to find any meaningful distinction between this action and Salfi, jurisdiction must be predicated solely on 42 U.S.C. § 405(g). It follows that a three-judge court is proper only if the jurisdictional grant of § 405(g), which limits the Court to "affirming, modifying, or reversing the decision of the Secretary," can be construed to permit the Court to issue "an interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution," the relief required to trigger application of 28 U.S.C. § 2282.5 Further, since Salfi mandates that any relief which this court might afford could extend only to Mr. Moss, the precise question is whether 28 U.S.C. § 2282 contemplates injunctive relief6 that benefits only the named plaintiff.

With respect to this question the decision in Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960) is dispositive. In that case the plaintiff challenged the constitutionality of § 202(n) of the Social Security Act, 42 U.S.C. § 402(n), but did not seek relief for anyone other than himself. Jurisdiction in the district court was predicated on 42 U.S.C. § 405(g). In response to the question of whether the case should have been decided by a three-judge court, the Supreme Court answered in the negative because the decision would not interdict the operation of an entire statutory scheme. 363 U.S. at 607-608. 80 S.Ct. at 1370-1371.

Thus, taken together, Salfi and Flemming mandate the conclusion that this cause is not appropriate for disposition by a three-judge court. Salfi restricts the scope of the decision to the named Plaintiff, Mr. Moss, and Flemming teaches that relief of such limited scope, even if granted on the basis of constitutional infirmity, does not require a three-judge district court.

As a practical matter, by limiting the Court's jurisdiction to the named Plaintiff, Salfi has effectively converted Mr. Moss's injunctive prayer into a request for declaratory relief, see Escofil v. Commissioner, 376 F.Supp. 521, 523 (E.D.Pa. 1974); and it is clear that a three-judge court is not required to grant a declaratory judgment. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); Sellers v. Board of Regents, 432 F.2d 493, 498 (9th Cir. 1970), cert. denied, 401 U.S. 981, 91 S.Ct. 1194, 28 L.Ed.2d 333 (1971). Moreover, this action does not present the risk that prompted Congress to adopt the threejudge

408 F. Supp. 408
court mechanism which was "enacted to prevent a single federal judge from being able to paralyze totally the operation of an entire statutory scheme . . . by issuance of a broad injunctive order." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154, 83 S.Ct. 554, 560, 9 L.Ed.2d 644 (1963)

The case thus merits application of the general rule that 28 U.S.C. § 2282 is to be narrowly construed so as to avoid employing the special and extraordinary procedures incident to a three-judge court, with their attendant burdens on the Federal Judicial system, for a purpose other than the one they were enacted to serve. See Mitchell v. Donovan, 398 U.S. 427, 431, 90 S.Ct. 1763, 1765, 26 L.Ed.2d 378 (1970); Goldstein v. Cox, 396 U.S. 471, 478, 90 S.Ct. 671, 675, 24 L.Ed.2d 663 (1970); Phillips v. United States, 312 U.S. 246, 250-251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941); Escofil v. Commissioner, 376 F.Supp. 521, 523 (E.D. Pa.1974); Rosa v. Gill, 309 F.Supp. 1332, 1335-1336 (D.P.R.1969). Accordingly, it is

Ordered and adjudged that Defendant's motion to dissolve the three-judge court is hereby granted, and the cause is remanded to the convening district judge for decision on the merits.

CROSS-MOTIONS FOR SUMMARY JUDGMENT

HODGES, District Judge.

Although a three-judge court was convened pursuant to 28 U.S.C. § 2282 et seq., that Court has now been dissolved for lack of jurisdiction. The case remains pending, however, and is now ripe for decision on the parties' cross motions for summary judgment.1

Plaintiffs, William and Lenore Moss, both of whom are over 65 years of age, have been married since 1935. Lenore Moss is a fully insured individual under the Social Security Act and has been receiving old age insurance benefits since 1972. As a federal government employee William Moss paid no Social Security tax and accrued no Social Security benefits in his own right. He applied in 1973 for the derivative "husband's benefits" provided by § 202(c) of the Social Security Act, 42 U.S.C. § 402(c), but his claim was denied at all administrative levels for failure to meet the support or dependency requirement of § 202(c)(1)(C)

THE STATUTORY SCHEME

Section 202(c) of the Act, 42 U.S.C. § 402(c), provides derivative "husband's benefits" to a male claimant who can prove, among other things, that he has received at least one-half of his support from his wife during certain specified periods of time. Section 202(b) of the Act, 42 U.S.C. § 402(b), the parallel provision governing "wife's benefits," contains no support or dependency requirement. Thus, a man who satisfies all the prerequisites of § 202(c) except the support requirement is denied derivative benefits while an identically situated woman receives them. Conversely, under the same circumstances, the maximum potential return generated by Social Security contributions is greater for covered male workers than for their identically situated female counterparts.

THE CLAIM

Plaintiffs assert that the due process clause of the Fifth Amendment protects against a denial by the federal government of equal protection under law, and that the foregoing statutory scheme contravenes this equal protection guarantee because the gender-based distinction made by the statute does not bear a sufficiently close nexus to any valid governmental interest. They ask the Court to remedy this defect by "requiring application of 42 U.S.C. § 402(b) and (c) in a nondiscriminatory manner," suggesting

408 F. Supp. 409
that appropriate relief would be to enjoin the Secretary from denying "husband's benefits" for failure to meet the support requirement of § 202(c)(1)(C), and to order payment of benefits to Mr. Moss

CONSTITUTIONALITY OF THE STATUTORY SCHEME

The parties have expended an enormous amount of effort debating the proper standard to be applied in judging the constitutionality of this legislative classification. Weaving his way through numerous Supreme Court decisions,2 the Secretary urges that the traditional "rational basis" test should be employed. Plaintiffs, on the other hand, take the position that the Secretary must show a "compelling state interest" in support of the statute because sex is a "suspect" classification. However, the only Supreme Court authority for Plaintiffs' conclusion is a four-justice plurality opinion in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); and in a later decision a majority of the Court indicated that they have not as yet found sex to be a "suspect" basis for legislative classification.3

Hesitant to take a step which the Supreme Court has not, the Court is of the view that something less than the "compelling state interest" test should be applied in this case. In determining the proper standard,...

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6 practice notes
  • Tomarchio v. Greenwich Tp.
    • United States
    • United States State Supreme Court (New Jersey)
    • November 3, 1977
    ...Silbowitz, 397 F.Supp. 862 (S.D.Fla.1975), aff'd 430 U.S. 924, 97 S.Ct. 1539, 51 L.Ed.2d 768 (1977). See also, Moss v. Secretary of HEW, 408 F.Supp. 403 (M.D.Fla.1976); Coffin v. Califano, 400 F.Supp. 953 (D.D.C.1975), app. dism., 430 U.S. 924, 97 S.Ct. 1539, 51 L.Ed.2d 789 (1977); Hau v. C......
  • Kalina v. Railroad Retirement Bd., No. 75-2256
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 13, 1976
    ...3375, 3386; Jablon v. Secretary of H.E.W., 399 F.Supp. 118 (D.Md.1975), U.S.App. pending, 44 U.S.L.W. 3364; Moss v. Secretary of H.E.W., 408 F.Supp. 403 (M.D.Fla.1976). Section 402(c)(1)(C) provides that a husband of an individual entitled to old age or disability insurance is entitled to "......
  • Lewis v. Cohen, No. 73-2876.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 5, 1976
    ...designed to rectify — past economic discrimination against female wage earners. See Moss v. Secretary of Health, Education and Welfare, 408 F.Supp. 403 (M.D.Fla. 1976). Such an "indirect adverse impact" on women is not created by § 228b of the Railroad Retirement I regard the court's findin......
  • Marriage of Nizenkoff, In re
    • United States
    • California Court of Appeals
    • December 21, 1976
    ...Docket No. 75--699, argued October 5, 1976; 45 U.S. Law Week 3276; Moss v. Secretary of Health, Ed. and Welfare (USDC, Fla.1976) 408 F.Supp. 403). 9 In re Marriage of Milhan, 13 Cal.3d 129, 117 Cal.Rptr. 809, 528 P.2d 1145, involved a military policy similar to a National Service Life Insur......
  • Request a trial to view additional results
6 cases
  • Tomarchio v. Greenwich Tp.
    • United States
    • United States State Supreme Court (New Jersey)
    • November 3, 1977
    ...Silbowitz, 397 F.Supp. 862 (S.D.Fla.1975), aff'd 430 U.S. 924, 97 S.Ct. 1539, 51 L.Ed.2d 768 (1977). See also, Moss v. Secretary of HEW, 408 F.Supp. 403 (M.D.Fla.1976); Coffin v. Califano, 400 F.Supp. 953 (D.D.C.1975), app. dism., 430 U.S. 924, 97 S.Ct. 1539, 51 L.Ed.2d 789 (1977); Hau v. C......
  • Kalina v. Railroad Retirement Bd., No. 75-2256
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 13, 1976
    ...3375, 3386; Jablon v. Secretary of H.E.W., 399 F.Supp. 118 (D.Md.1975), U.S.App. pending, 44 U.S.L.W. 3364; Moss v. Secretary of H.E.W., 408 F.Supp. 403 (M.D.Fla.1976). Section 402(c)(1)(C) provides that a husband of an individual entitled to old age or disability insurance is entitled to "......
  • Lewis v. Cohen, No. 73-2876.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 5, 1976
    ...designed to rectify — past economic discrimination against female wage earners. See Moss v. Secretary of Health, Education and Welfare, 408 F.Supp. 403 (M.D.Fla. 1976). Such an "indirect adverse impact" on women is not created by § 228b of the Railroad Retirement I regard the court's findin......
  • Marriage of Nizenkoff, In re
    • United States
    • California Court of Appeals
    • December 21, 1976
    ...Docket No. 75--699, argued October 5, 1976; 45 U.S. Law Week 3276; Moss v. Secretary of Health, Ed. and Welfare (USDC, Fla.1976) 408 F.Supp. 403). 9 In re Marriage of Milhan, 13 Cal.3d 129, 117 Cal.Rptr. 809, 528 P.2d 1145, involved a military policy similar to a National Service Life Insur......
  • Request a trial to view additional results

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