United States v. Clark – Oral Argument – October 31, 1979

Media for United States v. Clark

Audio Transcription for Opinion Announcement – February 26, 1980 in United States v. Clark

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Warren E. Burger:

We’ll hear arguments first this morning in United States against Clark.

Mrs. Shapiro, you may proceed whenever you’re ready.

Harriet S. Shapiro:

Mr. Chief Justice, and may it please the Court.

This case is here on appeal by the Government from a judgment of Court of Claims, requiring a payment of survivorship benefits to two illegitimate children of a deceased federal employee.

The Court of Claims found the children were entitled to payment even though they weren’t — could not meet the eligibility requirements of the Civil Service Retirement Act.

It relied upon its decision in a previous case in in which it concluded that the statutory requirement denied equal protection to illegitimate children.

The Government contends here first that the Court of Claims had no jurisdiction to award benefits in this case and second, that in any event, the statutory requirement is constitutional.

George Isaacson was a federal employee when he was killed in an automobile accident in 1974.

He was unmarried, but he was survived by two illegitimate children, Shawn and Tricia Clark, who are represented by the appellee here.

Isaacson had recognized them and was subject to a court order requiring him to make monthly payments for their support.

Although he had lived with them for a few years, he had stopped living with them more than two years before his death.

The Clark children applied for benefits under the Civil Service Retirement Act.

That Act provides for the payment of monthly benefits to the surviving children of covered federal employees.

The statute defines a child to include adopted children, as well as, stepchildren and recognized natural children who lived with a wage earner in a regular parent-child relationship.

The Civil Service Commission and the Office of Personnel Management which is a successor of this Commission have consistently interpreted the statute as denying benefits to stepchildren and to illegitimate children who were not living with the employee when he died.

Since the Clark children —

Harry A. Blackmun:

Mrs. Shapiro?

Harriet S. Shapiro:

Yes.

Harry A. Blackmun:

You say that though, haven’t they proposed the elimination of the “lived with” requirement?

Harriet S. Shapiro:

There is a proposal that was passed by the House last week, a Bill.

Harry A. Blackmun:

But doesn’t that come from the Commission?

Harriet S. Shapiro:

Yes.

The Commission proposed this statute which would amend the Act to make payments to dependent children, but would provide that either a child who lived with or who received contributions from the employee would be considered dependent.

John Paul Stevens:

Mrs. Shapiro, when you say that the Act is consistently been construed to require that the “lived with” requirement be met at the time of the death of the wage earner.

How many examples would there be in the reported materials that we could look at in some way or another of cases in which there was a lived with at some prior time, but not at the day the death, would there be other cases like this?

Harriet S. Shapiro:

I don’t believe there are significant numbers.

I am not sure —

John Paul Stevens:

I just don’t have any feel for how often this problem arises?

Harriet S. Shapiro:

It’s a consistent administrative interpretation.

John Paul Stevens:

But does that mean twice or a hundred times, would we know?

Harriet S. Shapiro:

As far as —

John Paul Stevens:

Or once maybe just this case, wasn’t it?

Harriet S. Shapiro:

No.

I know that it’s a more —

John Paul Stevens:

I know normally they do things as of the date to death, but I’m just wondering how often it really a significant that the target —

Harriet S. Shapiro:

I’m not sure that it has been litigated before, but the —

Harry A. Blackmun:

I think what bothers me is your use of the word “consistent” because if the Commission in now behind this proposed legislation, they’re receding from what may have been a consistent position, aren’t they?

Harriet S. Shapiro:

The legislation is based on the Court decisions.

It’s not that they have made an administrative determination.

William H. Rehnquist:

The Commission interpret the Act as passed by Congress or just make recommendations for changing?

Harriet S. Shapiro:

Well, the Commission, it interprets it in an administrative act in paying benefits.

The Clark children sued in the Court of Claims under the Tucker Act, challenging both the Commission’s interpretation of the Act and its constitutionality as so interpreted.

They argued first that they were entitled to benefits under the Act because they had once lived with Isaacson.

Alternatively, they argued that the Act as interpreted by the Commission denied them equal protection because they could not qualify for benefits by proving that they were actually dependent on their father.

After this suit was filed, but before it was decided by the Court of Claims, that court decided another case challenging the “lived with” requirement in the Civil Service Retirement Act, that case was Gentry versus United States.

Gentry involved a child who had never lived with the federal employee, and the court in that case found that the statutory requirement was unconstitutional.

So when it decided this case, the Court of Claims followed Gentry.

The Government didn’t seek to ask — didn’t ask this Court to review this decision in Gentry because we lost track of it after the Court of Claims remanded the case for further findings by the Commission.

We learned of the entry of the final judgment only a few days before our time to petition for certiorari expired and substantially after the time for a note on appeal.

By that time, we knew that the Clark case and others were coming along and that the Commission was working on legislation.

In November of 1977, the District Court for the District of Columbia decided Proctor versus United States and enjoined the Commission from applying a “lived with” requirement to illegitimate children.

So, the Commission began paying benefits under that order from and after December 1, 1977.

Finally, in the only class action so far, Jenkins versus the Office of Personnel Management, the District Court for the District of Columbia ordered the Office of Personnel Management to pay benefits retroactively to February 1972.

That order imposed a much heavier burden on the resources of the retirement fund.

That factor, plus the importance of the retroactivity question for other federal benefit programs has led to our decision to seek review in this Court in this case.

I propose to focus today on the question of whether the Court of Claims had jurisdiction to decide this case.

William J. Brennan, Jr.:

Do I understand Mrs. Shapiro that the Clark children are now for the reasons you gave us, receiving benefits?

Harriet S. Shapiro:

They are receiving benefits under the decision of the Court of Claims.

They have not received the lump sum that would take them from the time their father died up till the time the stipulation for the entry of judgment was entered, but they are currently receiving $187.00 a month.

I intend to rely primarily on of our briefs for the issues raised by the appellee concerning this Court’s jurisdiction and the correctness of the agency’s interpretation of the Act.

Harriet S. Shapiro:

I would like to discuss the jurisdiction of the Court of Claims and I have a few comments to add towards the discussion in our brief on the merits.

Harry A. Blackmun:

Somewhere along the line, have you discussed the appellee’s suggestion that “lived with” may be applied to some period other than at the time of death?

Harriet S. Shapiro:

Well, our argument on that really is fairly simple.

The purpose of the statute is to replace the support that was lost when the wage earner died, and the “lived with” requirement as interpreted by the agency and is that the time when the support was lost was at the wage earner’s death for children who are living with the wage earner at that time.

If they stopped living with the wage earner as the Clark children did several years previously, that is the point at which the statute assumes the support was lost.

Warren E. Burger:

What if they never lived with the father, but he arranged for them to be somewhere else and paid for all their living?

Harriet S. Shapiro:

Well then, they are not qualified under the statute because they were not living within in a regular parent-child relationship when he died or —

Warren E. Burger:

So that the support factor vanishes under that language?

Harriet S. Shapiro:

Well, the theory behind the statute is that for illegitimate children, the easiest and simplest and most accurate way of determining whether there was support is by simply looking to see whether they were living with the wage earner.

Warren E. Burger:

Well, on the contrary, if the man can show canceled checks over the period of 10 years, tax deduction every year for support, then that would be pretty good evidence, wouldn’t it?

Harriet S. Shapiro:

It would be an alternative way of proving that the —

Warren E. Burger:

The support factor?

Harriet S. Shapiro:

Yes.

Warren E. Burger:

As distinguished from the “lived with” factor?

Harriet S. Shapiro:

That’s right, but the congressional judgment was that as this current Court has frequently recognized, the classifications may be minimally inaccurate in some situations.

You don’t focus on the facts of the individual collocation look to see whether the classification for the general universe is reasonable.

Warren E. Burger:

Theoretically, they could live with the father without receiving any support from whom with a grandmother paying the father for all their care?

Harriet S. Shapiro:

It certainly is theoretically possible.

The congressional judgment was that in the usual case, the illegitimate child who is living with his father is the one who is most likely to be supported and that’s the situation in which payments are to be made and that these other unusual situations fall outside the statute.

Byron R. White:

What about legitimate children?

Harriet S. Shapiro:

Legitimate children are deemed to have been supported whether or not they’re living with the wage earner.

Warren E. Burger:

Or whether or not they are in fact supported?

Harriet S. Shapiro:

Right.

The statute as the statute in Lucas is somewhat over inclusive for legitimate children.

Byron R. White:

What do you suggest the Congress is attempting to do to avoid that the problems of the proof in individual cases?

Harriet S. Shapiro:

They provided for a “lived with” requirement that isn’t —

Byron R. White:

Why?

Harriet S. Shapiro:

Act, because it’s an accurate indicator of support in generality of the cases.

Byron R. White:

In the generality, but, so the only advantage was to avoid individualizing cases?

Harriet S. Shapiro:

That’s right.

Harriet S. Shapiro:

And the census report that we cited in our reply brief indicates that in fact, it’s an accurate indicator in all, but 4% of the cases.

Byron R. White:

Well, there’s the 4%.

Harriet S. Shapiro:

There’s the 4%.

Byron R. White:

And you just don’t think that it is necessary in legitimacy cases to individualize?

Harriet S. Shapiro:

That’s what we get from reading Lalli in combination with Lucas and Jimenez is that, although the statute may be somewhat unjust in individual cases, as long as it’s finally tuned and substantially related it’s constitutional.

Warren E. Burger:

But it isn’t finely-tuned with respect to this one category of children, is it?

Harriet S. Shapiro:

At most, there are 4% of the total universe and that’s a finely-tuned statute.

John Paul Stevens:

That 4% figure, I think is somewhat misleading, isn’t it?

Does that include the children who’ve been acknowledged by the illegitimate father?

Harriet S. Shapiro:

Yes, it includes —

John Paul Stevens:

I mean, it isn’t limited to that is what I mean.

That’s all illegitimate children, isn’t it?

Harriet S. Shapiro:

That’s —

John Paul Stevens:

And where the statute already excludes illegitimate children who have not been acknowledged by their father, and the only relevance statistic and the additional requirement of “lived with” would be those who have not only lived with their parent, but also had been acknowledged, and your figure doesn’t take that into account at all.

There’s 4% of all illegitimate children is what you’re lived with or never married mothers.

Harriet S. Shapiro:

Right.

John Paul Stevens:

But isn’t the universe cut down to those who’ve been acknowledged by their father, by the statute?

Harriet S. Shapiro:

But even so, there’s no more than 4% of any illegitimate children who are receiving support — payments from their father.

So that —

John Paul Stevens:

I just don’t see how that’s relevant to the “lived with” requirement.

Now, if you struck the “lived with” requirement out entirely, you still have the 4% figure?

Harriet S. Shapiro:

That may mean that the “lived with” requirement is somewhat over inclusive.

John Paul Stevens:

And probably didn’t — well, may I ask you this on the “lived with” requirement.

Is the congressional judgment that — is it your theory that the congressional judgment, if you have a child, an illegitimate child who was acknowledged by his father and lived with the father for a particular of time and then stopped living with him, that it’s reasonable to assume that the father then discontinued support because he did in this case?

Is there any example that we know of anywhere where a father both acknowledged the child, lived with him for a substantial period of time and left and then stop supporting them?

It seems to me the law would not permit him to stop supporting.

Harriet S. Shapiro:

Well, —

John Paul Stevens:

Under that said affair and how could Congress have reasonably assumed that he would then just walk away from the child and no further obligation?

Harriet S. Shapiro:

Well, whether or not there was a court order that it doesn’t necessarily follow that he complied with it —

John Paul Stevens:

But which is the more probable?

John Paul Stevens:

That you have both a formal acknowledgment and a family relationship, and then the father abandons the child.

Wouldn’t there normally be — and he continues to earn money, he’s got a job and is paying, the Government job in this case, and then you would think then, the Congress reasonably thought that in the normal run of cases he would stop providing any support for the child.

The only case we know about is this one which it didn’t happen.

Harriet S. Shapiro:

Well, that’s the congressional judging.

John Paul Stevens:

Do you think that Congress actually made that judgment?

See, they make a contrary judgment, if you construe the statute to mean “lived with” at anytime, but that’s critical to your case, for your construction of the statute, if Congress really thought that?

Harriet S. Shapiro:

That’s correct, and this is the construction that the agency is following —

John Paul Stevens:

It does exist and it followed in at least one case.

And didn’t the Court of Claims also construe the statute that way, the Gentry case in holding it unconstitutional?

Harriet S. Shapiro:

No.

In the Gentry case, that issue was not involved because the Gentry children, they had not lived with their father at all.

Potter Stewart:

Ever, ever?

Harriet S. Shapiro:

Yes.

Potter Stewart:

But by implication, I suppose they did it here, didn’t they?

Harriet S. Shapiro:

Well here, they didn’t — they followed Gentry —

Potter Stewart:

I mean, they wouldn’t have held it unconstitutional if they construed the statute as in the ways suggested by my brother Stevens’ question?

Harriet S. Shapiro:

That’s, that’s true.

Potter Stewart:

Correct?

Harriet S. Shapiro:

That’s true.

This case is not is not a statutory construction case.

Potter Stewart:

It’s a constitutional.

Harriet S. Shapiro:

It’s a constitutional.

Potter Stewart:

Right and they wouldn’t certainly logic wouldn’t have held it unconstitutional had they construed the statute?

Harriet S. Shapiro:

That’s true.

Potter Stewart:

The other way?

Harriet S. Shapiro:

Yes.

Warren E. Burger:

What would be the situation of an illegitimate child whose father having acknowledged as here was a military officer or foreign service officer moving from one place to another all over the world, and so he arrange to have the children and when they were in there teens for example to be in private schools in the school year and summer camps in the summer?

Harriet S. Shapiro:

That would be considered to be living with in a normal parent-child relationship.

It’s not —

Warren E. Burger:

It would be?

Harriet S. Shapiro:

Yes, it would be.

It’s not that they have to be under the same house.

Warren E. Burger:

That’s not consistent.

Harriet S. Shapiro:

Under same roof.

Warren E. Burger:

That’s not consistent with the answer you gave me earlier.

You said in the hypothetical case of the man who paid their support, but had to move somewhere, there would be out?

Harriet S. Shapiro:

Well, if the situation is that they are in school or in summer camp or in other situation that’s similar to what happens was in normal parent-child relationship.

Warren E. Burger:

Do you know whether there are any administrative decisions that would be consistent with your answer in these cases?

Harriet S. Shapiro:

I’m not aware of any that go along this line.

Warren E. Burger:

I got the impression from your earlier discussion that “lived with” meant precise to that lived with in the normal, I thought you said normal and ordinary parent-child relationship?

Harriet S. Shapiro:

Well, I don’t think that sending a child to school with the intent that on summer vacations or when it’s feasible, they will resume the normal relationship of living together in the same house is inconsistent with living within the normal parent-child relationship.

It’s —

William H. Rehnquist:

And all we’re dealing with is children under 18 years of age here, are we not?

Harriet S. Shapiro:

Yes.

William H. Rehnquist:

It is not the question about 30-year-old child —

Harriet S. Shapiro:

Oh, no.

William H. Rehnquist:

— who might have lived with for 18 years and then simply became emancipated?

Harriet S. Shapiro:

No, no, no.

And the statute does have a provision as a Social Security Act does for children over 18 who are in school or students.

They are continued — benefits continued until they reach 22, I believe it is.

But, the point is that what the Act is looking for is an indication that this is a normal family relationship that these children are being treated as children usually are.

They go to school, they go to camp or — but they are still children in the family.

Warren E. Burger:

If the people in these hypothetical situations where treated that way, then they are making an individualized judgment and not a rigid categorical judgment?

If they’re going behind the “lived with” requirement and considering the evidence that the father is really paying for their support, but doesn’t want to maintain or can’t maintain a home?

Harriet S. Shapiro:

Well, I think —

Warren E. Burger:

A familial home.

Harriet S. Shapiro:

You’ve got two different situations.

The situation that I thought you were referring to originally is a situation in which the child is living either in a foster home or in some other situation —

Warren E. Burger:

Let’s say, living with his grandmother and that the father is paying abundantly for support.

Harriet S. Shapiro:

With no intent that they ever going to resume living together —

Warren E. Burger:

Just exactly what I have told you?

Harriet S. Shapiro:

Well, in that case, that does not sound to me, again, this is something for the agency but it does not sound to me like the normal parent-child relationship.

In contrast to the situation where you’re sending a child to school or sending him to camp and when he is through with that, he comes home.

There are two are distinct situations.

Byron R. White:

Well, would you say that — say that there is an acknowledged illegitimate child living with the father at the time of his death, but he has been supporting the child, does that — is that — would that be construed to be a regular parent-child relationship?

Harriet S. Shapiro:

If he is living with him, yes.

Byron R. White:

Well, he is not supporting him.

Harriet S. Shapiro:

Well —

Byron R. White:

He is just living with him.

As a matter of fact, he is not supporting himself?

Harriet S. Shapiro:

Well, that is what the statute — the statute does not specifically says support, but the statute says —

Byron R. White:

It says regular parent-child relationship.

Harriet S. Shapiro:

Yes, but —

Byron R. White:

What do you mean by that?

Harriet S. Shapiro:

That refers to the living with.

Byron R. White:

It must assume — so it is not open to the Government to deny benefits on the ground that the father isn’t actually supporting the child?

Harriet S. Shapiro:

Not if he is living in the same household with him or this is other situation.

The Tucker Act gives the Court of Claims jurisdiction over a claim against the United States founded on the Constitution or an Act of Congress.

There must be money already due to plaintiff from the Government before the Court of Claims has jurisdiction.

If it has jurisdiction because money is due, the Court of Claims may also grant perspective relief, but only as an ancillary remedy.

This means that the Court of Claims here could properly order the government to put Shawn and Tricia Clark on the Civil Service annuity rolls only if they had accrued claim based on some statute or on the Constitution against the Government for money already due them, and they did not.

The Court of Claims believed that the children’s claim for accrued benefits was based on the Civil Service Retirement Act read in the light of the Constitution, but that makes an unconstitutional intent to deny benefits into an intent to grant benefits.

Whether or not the statutory denial of benefits to the illegitimate children who are not living with the wage earner is constitutional, that denial is what Congress enacted and only Congress and not a Court can change it into a statutory direction to pay benefits.

A Court can decide that “lived with” requirement unconstitutionally discriminates against illegitimate children.

So that the Act can no longer be enforced as written.

And if a District Court reaches that conclusion, it can enjoin the agency from continuing to make the unconstitutional discrimination required by the Act.

But of course, that’s an independent injunction power that the Court of Claims doesn’t have.

John Paul Stevens:

What would that mean Mrs. Shapiro?

There just don’t be anymore child’s benefits?

Harriet S. Shapiro:

Well, that’s one alternative.

John Paul Stevens:

Well, that’s the alternative that you recommend.

Pay no more child’s benefits until the statute is made constitutional?

Harriet S. Shapiro:

No, that’s — if a suit in the Court of Claims — our submission is that the Court of Claims is the wrong court in which to be presenting this claim.

John Paul Stevens:

It had no jurisdiction?

Harriet S. Shapiro:

It had no jurisdiction because there was no accrued claim —

Potter Stewart:

Because jurisdiction is for claims for money based upon the constitutionary statute?

Harriet S. Shapiro:

Exactly.

John Paul Stevens:

But your position is that the plaintiff should then go to another forum and get an injunction against paying any child benefits to anybody, that’s what would have to be done if the statute —

Harriet S. Shapiro:

In fact, that the —

John Paul Stevens:

You think that is what Congress would have wanted in this situation?

Harriet S. Shapiro:

In this particular situation —

John Paul Stevens:

That upholds child’s benefits.

Harriet S. Shapiro:

These, for the Clark children are presumably part of the Jenkins class and the Jenkins case is in the District Court. [Voice overlap]

John Paul Stevens:

But you argued there, do you — does the Government argue there that all child’s benefits should cease until Congress remedies the situation?

Harriet S. Shapiro:

No.

What we are arguing in Jenkins is that the benefits have been paid since December 1, 1977 under the Proctor decision.

John Paul Stevens:

Without statutory authority occurring [Voice Overlap]

Harriet S. Shapiro:

Well, that’s right.

That is no —

John Paul Stevens:

But your argument there, I take it then, is that no benefits should be paid?

Harriet S. Shapiro:

The argument there is that no benefits should be paid before December 1, 1977.

John Paul Stevens:

But why even currently?

What’s the statutory authority for current benefits?

Harriet S. Shapiro:

Well, it is not a statutory authority.

That’s the standard doctrine of severability.

As I said, when a Court finds that the denial of benefits is — the discriminatory treatment is unconstitutional then it can as an alternative to holding that no benefits are payable.

It can direct that benefits be paid either to all children.

Well, in this situation, you could have either benefits paid to all legitimate children who meet the “lived with” requirement, that is you apply the qualification equally to all children.

John Paul Stevens:

Well, take, assume these plaintiffs were not in the Court of Claims, but were in the Federal District Court and assume they win on the merits, what remedy would be appropriate in the Government’s view?

Harriet S. Shapiro:

If these children were in the District Court?

John Paul Stevens:

Yes.

Harriet S. Shapiro:

Well, then the Court would have two alternatives and we would not argue that the “lived with” requirement should be applied to all children.

We would agree that it would be appropriate under the injunction power to require payment to these children even though they could not meet the statutory requirement.

Potter Stewart:

But the Court would have the alternative of say, of enjoining any payments to any children at all?

Harriet S. Shapiro:

Any payments —

Potter Stewart:

That alternative was illustrated on the case last term in which Justice Powell disagreed with the holding of the Court?

Harriet S. Shapiro:

I believe that’s —

William H. Rehnquist:

Mrs. Shapiro, we have had a number of cases you can almost learn who has been Secretary of HEW from the case as Weinberger, Matthews, Califano, etcetera and many of them have involved challenges to congressional limitations on payments to illegitimate children.

Have any of them up to now ever been brought in the Court of Claims?

Harriet S. Shapiro:

I don’t believe so.

I don’t think they have.

Warren E. Burger:

Assume a three-judge Courts perhaps all of them, I am not sure?

Harriet S. Shapiro:

Yes.

I am not sure that all of them.

Byron R. White:

In answering Mr. Justice Stevens, in what remedy would be available in District Court, you said, the Court would have a choice and it could order the payment of benefits, how about back benefits?

Harriet S. Shapiro:

No, that is the same — that is barred by sovereign immunity and that’s the same argument in the District Court.

It is not a jurisdictional argument because the District Court does have the jurisdiction to issue.

Byron R. White:

I understand, but you say that even if the District Court decided that you’ve been incorrectly construing the Act —

Harriet S. Shapiro:

That’s right.

Byron R. White:

— and that you should have been paying these benefits the entire time.

The District Court could not enter a judgment for past benefits.

Harriet S. Shapiro:

Precisely.

Byron R. White:

Because as you construed the Act, Congress has not waived sovereign immunity to that extent?

Harriet S. Shapiro:

That’s exactly right, yes.

That the waiver of sovereign immunity under 5 U.S.C. 702 extends only to injunctions for the future requirement.

Byron R. White:

Is there some authority for that?

Is that —

Harriet S. Shapiro:

This is what we —

Byron R. White:

In fact that the Court of Claims disagrees with you.

Harriet S. Shapiro:

Well, we retest this Court’s decision in Testan; Edelman v. Jordan certainly suggests that result.

Warren E. Burger:

On your hypothesis responding to Mr. Justice White, the only remedy then to enforce the judgment of the Court of Claims would be to get a private bill in the Congress?

Harriet S. Shapiro:

For retroactive benefits.

The Court of Claims, as I say, is the wrong court, but if you had a decision in a District Court, you could get future payments but for retroactive payments, it’s only Congress whether it’s a private bill or it’s an amendment of the statute saying that they intend to have it be paid retroactively.

Warren E. Burger:

At times, the Court of Claims in — not in these situations, but in some where back payments were involved, having their opinions recommended that the Congress make up an active private bill, have they not?

Harriet S. Shapiro:

I am not sure.

Perhaps, but that is certainly would be an alternative.

Warren E. Burger:

It was established as an arm of Congress, of course, originally?

Harriet S. Shapiro:

I see my time is up.

Warren E. Burger:

Mr. Merrigan.

Edward L. Merrigan:

Mr. Chief Justice, may it please the Court.

With just a brief word about the facts Your Honors, and I think the Court fully understands this case from the questions such you propounded to the Government.

The two federal employees involved in this case, one was the father, Mr. Isaacson; the other was the lady involved, Ms. Patricia Aileen Clark, both worked for the Veterans Administration at Fort Harrison, Montana and they commenced to live together in 1965 and early 1966.

And during the period of time they lived together, they had two children, Shawn Clark and Tricia Clark and they continued to live together with the children in a regular husband-wife, parent-child relationship for the world to know, through 1971.

In 1971, Mr. Isaacson moved out of the common dwelling and Mrs. Clark brought a paternity action in the Court in Montana.

Mr. Isaacson while alive appeared in that case, was represented by counsel.

The Court entered a paternity order against Mr. Isaacson which specifically declared him to be the father of these two children.

Then by stipulation and judgment of the Court, he was ordered to pay $5,000.00 representing the back support payments he owed the children for the time he had moved out of the house.

He then stipulated and was ordered by the Court to $120.00 a month for their future support.

He then stipulated and was ordered by the Court to make them the beneficiaries of two life insurance policies, one in New York Life Insurance Company policy and the other is Federal Government Employees Group policy.

He made all of the support payments to the children forward to his death not directly, but by deductions or allotments out of his federal salary up to the time of his death in 1974 in an automobile accident.

Warren E. Burger:

So, would you say that he was doing what was suggested in some of the hypothetical questions that is he was providing support for them without providing a familial home for them?

Edward L. Merrigan:

He did everything for the children except to [Attempt to Laughter] marry the mother and continued to actually live with them physically until the date of his death from about 1972 to 1974.

He was a father in every sense of the word by court order, by support payments, by living with them for long period of time and the Government in this case in its reply brief concedes that there is no need under the “lived with” requirement of the statute for a permanent “living with.”

The Government concedes that it can be a temporary or a periodic separation in that relationship without breaking the chain supposedly.

This has never been judicially declared, but the Government concedes it in its reply brief.

Potter Stewart:

But the difference in opinion between you is that the “lived with” has to be at the time of the death?

Edward L. Merrigan:

Well, I think if you construe the statute itself —

Potter Stewart:

Did the Government said, or did it say not?

Edward L. Merrigan:

Mr. Justice Stewart, you construe the —

Potter Stewart:

Well, isn’t that —

Edward L. Merrigan:

That’s the difference.

Potter Stewart:

Have I directly identified the difference of opinion?

Edward L. Merrigan:

When we sued in the Court of Claims, we specifically asked the Court to award a judgment here based on an Act of Congress with the “lived with” requirement in the law because we say that it says “lived with”, it does not say “live with” or “living with” in the statute.

It says “lived with” and here the Court and the Government and everybody involved concedes that they lived with and that there was that [Attempt to Laughter] open to the word “lived with” in the past.

I think that the problem that we run into in this case is the construction given to the statute by the Civil Service Commission which says —

Potter Stewart:

Well, then by the Court of Claims?

Edward L. Merrigan:

Well, not really by the Court of Claims.

Potter Stewart:

How could they have held it unconstitutional, had they not construed it the way the Government does?

Edward L. Merrigan:

Well, I think that the statute was declared unconstitutional in Gentry.

There is no long discussion of the constitutionality in our case because they simply adopt the Gentry.

Potter Stewart:

I know there is no long discussion on it, but as a matter of logic, how could they have it?

Edward L. Merrigan:

They simply held that the “lived with” requirement, as I am trying to point, Your Honor, in a moment, is simply a total bar to any recovery for illegitimates in 90% of the cases by the very term illegitimate, [Attempt to Laughter] meaning that the father and mother are not married.

In more than 90% of the cases, the father is either married to somebody else, or he is a bachelor who does not want to marry the mother and is therefore living somewhere else and so if you can’t meet the “lived with” requirement with the father, are you totally barred from benefits at all?

So —

Potter Stewart:

So, but you’re not arguing that your clients can meet the “lived with” requirement?

Edward L. Merrigan:

We say that in this case, truly, jurisdiction in this case I think, this case should be settled in our judgment if we can propose to the Court that if you looked at the statute and construed that they had lived with for the period of time that we just referred to, that there was the support, that they did meet the requirement of the statute, and therefore, the Court of Claims clearly had jurisdiction because we are suing on an Act of Congress where including the “lived with” requirement and therefore they are entitled to judgment on this 28 U.S.C. 1491.

Byron R. White:

You’re seeking the support of judgment on a different ground than the Court of Claims gave you judgment?

Edward L. Merrigan:

I say that this Court could if it wanted to avoid the constitutional question in this case say that the statute properly construed, should have grant a judgment here without reaching the constitutional question.

William H. Rehnquist:

What if the father had lived with the child for the first three months of its life and then not lived with it for the subsequent 17 years, nine months of its life and the child was 18 at the time of the father’s death?

Edward L. Merrigan:

When you start these types of requirements in the statute, obviously, as you change the facts, it gets even worse, it gets better.

William H. Rehnquist:

Yes, isn’t that just why Congress has to draw a line?

Edward L. Merrigan:

Well, Congress did not draw the line at “lived with” or “living with”.

The amendment that is now proposed in Congress today talks in terms of living with meaning —

William H. Rehnquist:

But what were the — no one has any claim under an amendment that is proposed in Congress today, did it?

Edward L. Merrigan:

I do not say that we are relying on the amendment that is proposed today.

The statute today speaks in terms of “lived with.”

The amendment proposed in Congress today is talking in terms of “living with” meaning —

Byron R. White:

But the agency construction is of the present language is “living with?”

Edward L. Merrigan:

“Living with,” I think they have changed the Act of Congress.

And what I am trying to say to you, Your Honors, is that if we wanted to avoid the constitutional issue in this case, as we originally sued in our petition of the Court of Claims, is that these children, truly in this case, meet the statutory requirements.

Edward L. Merrigan:

And if that be true, everything that Mrs. Shapiro said this morning about the jurisdiction of the Court of Claims automatically falls because we are suing on an Act of Congress.

Byron R. White:

But wasn’t your — wasn’t — did the Court of Claims reject your construction of the statute in Gentry?

Edward L. Merrigan:

No, Your Honor.

Byron R. White:

I know you weren’t in Gentry but was that issue before you were on it?

Edward L. Merrigan:

No, Your Honor, It was not because the children never lived with their parent in Gentry.

What happened is by the time —

Byron R. White:

But the Court of Claims, in affect then in this case, rejected your statutory claim?

Edward L. Merrigan:

No, the Court of Claims did not pass on it, Your Honor.

What happened is, we moved for summary judgment.

Byron R. White:

What makes you think it didn’t enter a judgment?

Edward L. Merrigan:

Well, what I think happened in our case, Your Honor, is this.

Between the time we filed our petition in the Court of Claims and the time they rendered summary judgment, this statute had been declared unconstitutional five times.

William H. Rehnquist:

Are you suggesting that any federal court has the authority to reach a constitutional issue without first passing on a necessarily included statutory question?

Edward L. Merrigan:

I think in this case, if Your Honors will look at the judgment in this case, which is of course in the appendix, what happened is the Court of Claims had previously ruled a “lived with” provision to be unconstitutional.

And therefore, rather than reach — rather than re-construe or apply the provision in our case, they deemed it to have been declared unconstitutional in the past.

Byron R. White:

Any way here?

Warren E. Burger:

But doesn’t that mean they were adopting the Gentry approach?

Edward L. Merrigan:

I think they – there’s no question but that the Court of Claims in our case ruled that the statute was unconstitutional.

I am suggesting too, Your Honors, that we have been swept under the facts of this case if you construed the statute to mean “lived with” to cover the facts of our case, that we meet the terms of the statute without the constitutional issue being raised.

And if that be true, there’s no question, but that the Court of Claims had jurisdiction under 28 U.S.C. 1491.

There’s no question that this Court would not have jurisdiction under 1252 of Title 28 because of course, there is no constitutional issue raised if you would decide this case on that basis.

But I am not trying to avoid the constitutional issue because when you move on to that issue in this case, the “lived with” requirement which is the only test as to whether or not an illegitimate child can recover for all practical purposes is a total bar to almost all illegitimates because what it means in most cases is an illegitimate child is the child of a mother and father who are not married, in more than 90% of the cases do not live together.

Under the laws of most states, the mother has custody of the child.

In most cases, the father is either living with another wife or living as a bachelor who does not want to live with the other woman who had the child and so the poor child is left [Laughter Attempt] without a father, without the ability to lived with, without the ability to meet the test in any circumstance.

So, by making the “lived with” requirement alone, the test is the equivalent of striking most illegitimates’ ability to recover under the statute at all and I think that is what made five courts in the federal system, two of them three-judge courts declare the statute uniformly unconstitutional.

Some of the questions, Your Honors have asked, make it clear.

A federal employee for example who did want to live with the child, who is assigned to Saudi Arabia in his government job, would be over there, the child would be here with the mother, not eligible.

A Government employee who has no home, who travels all the time, the child lives with the mother, no ability for the child to recover the benefits.

In other cases, where the parents lived together for a long period of time, 10 years, 12 years, and then the father suddenly moves out in spat with the mother, no ability for the child to recover because he can’t show he was physically living with the child at the moment of death.

Now, the Government says, children can protect themselves against that, that they can insist that they lived with the father.

Edward L. Merrigan:

Well, here is a three-year old child, a six-year old child.

“Mother, I insist on living with my father to protect my federal annuity” or “Father, I insist on you letting me move in with you to protect my federal annuity.”

That’s what the Government is asking us to do in this case.

Your Honors, as far as the statute itself is clearly enacted by Congress to protect dependents who are looking to the deceased employee for support.

In this case, we have the order of a Montana Court decreeing support.

We have the support being made throughout the employee’s life right up to his death through allotments out of his federal salary.

So, there is no guess work on the part of the Government as to whether he was supporting the children, it came from his salary.

Then we have the father in the life insurance policy, the federal group life insurance policy paying after death for the support of the children and yet they have been denied the benefits in this case on the ground that they simply did not physically lived with him at the moment of death.

The Government says, perhaps spurious claims are prevented by this sort of a statute.

Well, let’s take the case that is so well-known today of young women moving in with a federal employee, let’s say, bringing in a small child that she had from some other relationship and then the federal employee dies, so the mother says, “chance for our federal annuity.”

This child was the federal employee’s child.

We were living with him at the time of his death and therefore, I want the annuity.

Under the statute, that is all she’d have to say, if she is willing to lie because then she could show they were living together in regular parent-child relationship.

Potter Stewart:

She has to prove the father acknowledge the child?

Edward L. Merrigan:

No.

Not under the statute.

Potter Stewart:

Well, she does have to prove that the child or children were the father — the issue of the father.

Edward L. Merrigan:

Well, the children —

Potter Stewart:

But you say that can be proved by her perjury?

Edward L. Merrigan:

It could be proved spuriously.

That’s the only suggestion I am making, Your Honor.

I am not trying to say that this sort of claim should be set-up but I think the statute promotes it.

John Paul Stevens:

What about the word “recognized stepchild” or “recognized natural child,” doesn’t that mean recognized by the natural father?

Edward L. Merrigan:

Recognized, right.

John Paul Stevens:

I could assume that it did, yes.

So, that in your hypothetical case, the women would not recover it?

Edward L. Merrigan:

The woman could recover on other grants because adopted children or stepchildren could be included in the same “lived with” requirement.

But I say — all I am trying to say, Your Honor, is it opens the door for spurious claims on the ground that children that were not really the children of that particular father were living with him at the time of death and the mother then can fabricate a claim around it.

All I am trying to say is — I am not trying to say this should be allowed, I am not trying to say that that spurious claim is a sound claim, but what I am trying to say is that this particular type of statute promotes that particular type of claim.

William H. Rehnquist:

But she would have to perjure herself both as to the question whether the father was the actual father and as to whether he recognized the child.

Edward L. Merrigan:

Well, Your Honor, I think that is true.

William H. Rehnquist:

I mean, presumably, there are an of a lot of lawsuits you can imagine that could go of on an unjust result as a result of perjury which wasn’t detected by the finder of fact.

Edward L. Merrigan:

I raised the possibility only because one of the defenses for this statute is that it was enacted to protect the Government rather against spurious claims.

Warren E. Burger:

You don’t need a broad holding here to support your position.

All you need is that a child who has been legally recognized by a Court here finding —

Edward L. Merrigan:

No question, Your Honor, no question.

I think we fit in this particular case every requirement that could possibly be made for an illegitimate child.

There was the living together.

There was the parent-child relationship.

There was the decree of the Montana Court and there was the support payments not only through death, but after death through the insurance.

Lewis F. Powell, Jr.:

How does the commission construe the word “recognized?”

Does it require some formal act of recognition by the father or by Court?

How does it construe it?

Edward L. Merrigan:

I truly don’t know that, Your Honor because —

Lewis F. Powell, Jr.:

But in all of these hypotheticals you give, the recognition is rather important, isn’t it?

Edward L. Merrigan:

Well, it’s rather important.

I would —

Lewis F. Powell, Jr.:

You have an easy case, but you have been arguing with a rather broad brush, I suggest?

Edward L. Merrigan:

The word recognition, of course, I think is clear cut in any case where you have an order affiliation.

Lewis F. Powell, Jr.:

It’s clear cut here, yes.

Edward L. Merrigan:

Such as you have in Montana.

Lewis F. Powell, Jr.:

Yes.

But this example you gave of moving in and dying, and the wife coming along and saying what you say he said?

Edward L. Merrigan:

I want you to understand, Your Honor, that that idea did not only originated with me.

It was discussed in Proctor decision, it was discussed in the Gentry decision that this thing could happen.

Lewis F. Powell, Jr.:

But all you are saying today is that there must be a court order, so far as you are concerned?

Edward L. Merrigan:

Certainly, there should be it.

When there is a court order that there can be further doubt.

I think the other thing is that showing of actual support that he contributed to support And what the Government is now proposing to Congress, and it is already passed the House and is well along in the Senate is that there be a “living with” as opposed to “lived with” and that there be a showing that he contributed to the support of the child prior to death.

I suggest to you that that’s going to require a rather case-by-case determination.

Edward L. Merrigan:

It is not exactly the uniform presentation that would usually be required under these other statutes.

So, Your Honors, where I think we find ourselves in this case is this.

Here we have five Federal Courts in the past that have uniformly held the present statute to be unconstitutional and as a result, all of the children in those cases are now recognized to receive their benefits under the statute.

On the right, we have the agency itself seeking an amendment to the law that will protect all children in the future that may be the law before this Court acts in this case.

So, we find ourselves right in the middle of the law as it has been interpreted by other Federal Courts uniformly in the past and as Congress is changing it in the future.

And we urge this Court for all of the reasons I have stated, either to uphold the Court of Claims decision on the constitutional issue or to construe this statute or and avoid the constitutional issue to say that under the facts of this case has conceded on the record by the Government, these children would be entitled to judgment under the statute, even with the unconstitutional provision in it.

On the jurisdiction of the Court of Claims just briefly, there is no question but that the Court of Claims under Section 1491 of Title 28 has clear cut jurisdiction over any claim based on an Act of Congress.

It has clear cut jurisdiction on any claim based on the Constitution of the United States.

What the Court of Claims rule in Gentry is that this particular provision is a relatively minor provision of the statute which was enacted by Congress to provide support to children of the deceased federal employees.

It was severable provision, it severed that provision, and with that severed provision out, then it granted judgment based on that Act of Congress and I urge the Court that that is correct.

Potter Stewart:

But you need a track on it.

That’s not the Act of Congress legislated?

Edward L. Merrigan:

Well, Your Honor, the Court of Claims has jurisdiction to render judgments on the Constitution as well as on the —

Potter Stewart:

Yes, because nothing in the Constitution that —

William H. Rehnquist:

It was founded on the Constitution —

Potter Stewart:

Nothing on the Constitution that entitles your plans to prepayment of any kind, for anything?

Edward L. Merrigan:

Well, the claim based on the Constitution here would be that they are entitled to judgment [Attempt to Laughter] under the statute as interpreted in the Court on the Fifth Amendment.

Potter Stewart:

But not as enactment?

William H. Rehnquist:

Do you think the Constitution would require the Treasury to draw a check to your clients without any Act of Congress in establishing a Social Security System?

Edward L. Merrigan:

No, I don’t think that’s true at all, Your Honor.

I think that what —

William H. Rehnquist:

How can you say, this is a claim founded on the Constitution?

Edward L. Merrigan:

I say that this is a claim founded on the Act of Congress with the power of the Court of Claims to sever an unconstitutional provision from that statute.

In the Testan case, for example, Your Honor which is the case that was referred to by Mrs. Shapiro, in that case, there was a claim by federal employees that they had been misclassified by the Civil Service Commission.

Moreover, there was no statute that gave them any right of recovery based on the misclassification of position, and therefore, there was no statute.

Here the judgment of the Court of Claims is firmly grounded on the very statute Congress passed.

William H. Rehnquist:

But you say they had declared that it was unconstitutional in order to get to it?

Edward L. Merrigan:

Not the whole statute, Your Honor.

William H. Rehnquist:

If, well but apart — this is a large statute.

They had to declare one section of the statute unconstitutional?

Edward L. Merrigan:

They declared a tiny sentence in this statute.

William H. Rehnquist:

Well, a section of the statute —

Edward L. Merrigan:

A section of the statute.

William H. Rehnquist:

— of which there was bore on your client’s rights.

Edward L. Merrigan:

That’s correct, but what I am trying to say to you, Your Honor, then that they then pegged their decision very firmly on an Act of Congress with the voided provision out of it.

And I think that they do have the right because they do have the power to consider a claim based on the Constitution as well as Acts of Congress to look at an Act of Congress, to declare a section which is clearly violative of the Fifth Amendment void and then to grant a judgment against the United States founded on that Act of Congress.

Harry A. Blackmun:

Mr. Merrigan, is it correct to say that your argument comes down to whether the statute is severable, whether that section is severable and if it is, then you say, jurisdictional question is resolved?

Edward L. Merrigan:

I think that’s correct.

Byron R. White:

That was the Court of Claims’ argument in Gentry?

Edward L. Merrigan:

That is entirely correct, Mr. Justice White.

Byron R. White:

Without being able to say in any prior authority to that effect?

Edward L. Merrigan:

I think the Court of Claims did cite some authorities [Attempt to Laughter] to that effect, although it escapes my mind at the moment.

Byron R. White:

Yes, I may have.

William H. Rehnquist:

The Court of Claims certainly has had a propensity throughout its life to try to expand its jurisdiction, hasn’t it?

Edward L. Merrigan:

Well, I hope we won’t find this case as the limiting factor on that propensity but —

Byron R. White:

May I ask you, do you recall Judge Skelton’s concurring position?

Edward L. Merrigan:

I do recall it, Your Honor.

Byron R. White:

Did you present that position in your case or not?

Edward L. Merrigan:

We relied on Gentry totally, as well the concurring opinion of Judge Skelton.

Byron R. White:

So you said, not only should the statute be construed to award benefits when the “living with” had occurred any time, but you have also argued that the statute should be construed to permit proof of support in any case?

Edward L. Merrigan:

Yes, Your Honor.

Byron R. White:

And because the Court of Claims apparently rejected that position in Gentry, but you represented it — you presented it in your case anyway?

Edward L. Merrigan:

We did.

We relied totally on the Gentry decision and in fact, I think what happened in our case is the Court of Claims looking at five straight federal decisions on the subject did not reach the construction of the statute as we urged on it.

It simply ruled on the constitutional issue.

Thank you, Your Honor.

Potter Stewart:

Mr. Merrigan, you have not addressed orally, unless I missed it to the question of sovereign immunity with respect to the back payments.

Edward L. Merrigan:

Your Honor, clearly, the statute itself provides for payments from the moment of death of the federal employee.

The Act was passed for that purpose.

The Congress intended the Act for that purpose.

Edward L. Merrigan:

There was no withholding of sovereign immunity on the liability of the Federal Government for such payments and the only way that sovereign immunity comes into this is a claim that like in Testan where there was no statute at all, therefore, there is sovereign immunity claim of no ability of the Court of Claims to judge it.

What we are trying to say here is that the provision was severable.

There is an Act of Congress.

There is a direction of the Congress that they be paid back to the date of death.

Can you imagine, construing this — the law in such a fashion that we have nowhere to go to collect a true debt of the United States —

Potter Stewart:

Well, that’s what sovereign immunity means.

You have no where to go if the only person who would otherwise be liable to you is the sovereign and he inserts his immunity, that is exactly what sovereign immunity means?

Edward L. Merrigan:

And that usually arises in the case where there is no statute passed by the Congress authorizing the payment of the debt of the United States and here, there is a clear cut debt of the United States running back to the very day that the employee died.

Byron R. White:

And otherwise, the Government will come in and say, “Of course, you are within the class that was intended to be benefited by the statute and we owe you the money, but you just cannot sue for it.”

Edward L. Merrigan:

I think that’s generally correct and by the way —

Byron R. White:

You mean that would be the position.

Edward L. Merrigan:

That would be it.

And by the way, with that Your Honor, we would then be scooped into a class if I don’t know how many employees, some of whom have completely different positions than we have on all of the facts.

In other words, here we have a showing of support.

We have a showing of “lived with” and so forth and so on.

A class would be so general that we may fall with the class.

And even under the new [Laughter Attempt] statute, we may somehow fall with the class and so, I think that the Gentry decision is a sound decision.

I think it treated the question of sovereign immunity.

It treated the question of the Court’s jurisdiction correctly and we urge the Court to affirm us.

And I think what we are really here about is an appeal from Gentry which the Government never took.

The Government never took any appeal from any of the other decisions in the past up to this one.

And I think that we are now trying to carry on our shoulders all of the claims [Attempt to Laughter] that go the all way back to Gentry.

Potter Stewart:

This lawsuit wasn’t brought as a class action?

Edward L. Merrigan:

No, Your Honor.

It was not.

Potter Stewart:

Always an individual action.

Edward L. Merrigan:

Always an individual action.

Thank you very much.

Warren E. Burger:

Thank you counsel.

The case is submitted.