and directly as possible. This opinion does not authorize
discrimination against men in any other context. It certainly
is not based on any notion that because men and women are
different, they can be treated differently.
The motion to dismiss is granted.
This cause is before the court on the government's motion to
dismiss the complaint. Hence the factual allegations of the
complaint are taken as true, and the plaintiff is entitled to
an opportunity to prove any set of facts which support the
substance of his complaint. Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The majority opinion
is based upon certain assumptions which may or may not prove to
be well-founded. Therefore I would deny the government's motion
to dismiss which was filed on November 12, 1973 and grant the
plaintiff an opportunity to proceed with further discovery on
the government's motion for summary judgment which was filed
subsequent to its motion to dismiss.
The gist of the complaint is that female retirees receive
more liberal benefits than males who retire under exactly the
same circumstances and that this violates the Fifth Amendment
to the United States Constitution. The majority opinion assumes
that the purpose of this differential in benefits is to
compensate females for the lower wages which they had
previously earned. There is no evidence in the record, however,
that these conditions have existed or that they have existed in
all levels or types of employment covered by the Social
Security Act. Equally importantly, there is no evidence in the
record that Congress adopted the distinction in order to
compensate for past discrimination.
It is possible that the differential in benefits may have
been adopted for reasons other than past discrimination,
including the impermissible motive of "romantic paternalism".
This latter rationale was apparently the basis of the Second
Circuit Court's decision on this issue in Gruenwald v. Gardner,
390 F.2d 591 (2nd Cir. 1968). However, the Supreme Court in
Frontiero v. Richardson, 411 U.S. 677 at 684, 93 S.Ct. 1764, 36
L.Ed.2d 583 (1973), has implicitly criticized this concept.
If the differential was not designed to remedy past
discrimination, then it must rest on some different rationale
than is contained in the majority opinion or it is arbitrary.
The record is silent on what the rationale might be, and the
plaintiff should be allowed to prove the absence of a rational
relationship between the discrepancy in rates and a legitimate
governmental interest after this issue is joined on the
The majority opinion also ignores the fact that old age
benefits under Title II of the Act are paid from a trust fund
which is supposedly maintained on an actuarial basis. Sec. 401
of Title 42, when originally enacted, appropriated an "`amount
sufficient as an annual premium' to provide for the required
payments [under this title] . . . `to be determined on a
reserve basis in accordance with accepted actuarial principles,
and based upon such tables of mortality as the Secretary of the
Treasury shall from time to time adopt . . .'" See Helvering v.
Davis, 301 U.S. 619 at 636, 57 S.Ct. 904, 906, 81 L. Ed. 1307
(1937). This means that beneficiaries who live to their life
expectancy may expect to receive benefits directly related to
the tax contributions which they and their employers have made,
and that the shares of one group should not be decreased in
order to provide compensation for alleged discrimination
against another group. Before we decide that Congress has
departed from the actuarial concept (although admittedly it has
abandoned maintaining a funded trust), we should examine the
of this Act and particularly of Secs. 401 and 402. The
difference in concept between old age benefits and payments to
families with dependent children (AFDC) distinguishes this case
from Ramirez v. Weinberger et al., 363 F. Supp. 105 (N.D.Ill.
1973), as that court expressly recognized.
The majority further assumes that Congress has abandoned the
different benefits between men and women as of 1975 because the
effects of discrimination will have been dissipated by then.
This involves a doubly unsupported assumption, first that wage
discrimination generally occurred against women in employments
covered by the Social Security Act and secondly that its
effects will disappear in 1975. If this is found not to have
occurred, will some court then find that Congress has
invidiously discriminated against women by removing the
differential in benefits before the reason for its existence
has been removed? And if discrimination against women has been
remedied, will a court hold that Congress can then use Social
Security benefits to compensate such minority groups as blacks
or convicted felons for the wage discriminations which they
have presumably suffered? There is no end to the problems which
can be foreseen if the complaint in this case is dismissed
without further examination.
The Social Security fund is still defined as a trust in Sec.
401 of the statute. When a genuine issue is raised, the trust
funds should not be diverted until the rights of all the
beneficiaries have been zealously examined. Particularly in
view of the admonition of at least 4 members of the Supreme
Court in Frontiero that "classifications based upon [sex] are
inherently suspect and must therefore be subjected to close
judicial scrutiny" (411 U.S. at 682 and 688, 93 S.Ct. at 1768),
I believe the motion to dismiss should be denied and the motion
for summary judgment be allowed to proceed.
McMILLEN, District Judge (dissenting).