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October 11, 1977

Albert A. LEWIS, et al.

The opinion of the court was delivered by: HIGGINBOTHAM

HIGGINBOTHAM, District Judge:



 Plaintiff, a retired male railroad employee, claims that a former provision of the Railroad Retirement Act, 45 U.S.C. § 228b(a) (hereafter § 228b(a)), *fn1" violates the equal protection component of the Fifth Amendment and is invalid on the ground that it was superseded by Title VII of the Civil Rights Act of 1964. § 228b(a) permitted women with thirty years' service to retire at age sixty with full benefits; however, men with thirty years' service receive reduced benefits if they retired between their sixtieth and sixty-fifth birthdays. For the third time in four years a court has been asked to, within this very lawsuit, declare unconstitutional the statute in issue. Each time before plaintiff lost and at his third time at bat his fate is no better.

 Plaintiff instituted a class action seeking injunctive relief, retroactive and prospective retirement annuity benefits for those male employees with thirty years of service who received reduced annuities under § 228b(a). *fn2"

 On April 21, 1975 defendant's motion for summary judgment was granted by the district judge who held that the relevant provision of the Railroad Retirement Act did not unconstitutionally discriminate against retired male railroad employees, was not superseded by Title VII and that the plaintiff did not raise a sufficiently substantial issue to warrant the convening of a three-judge court. See Memorandum Opinion, Lewis v. Cohen, 443 F. Supp. 544 (E.D.Pa., filed 1977). *fn3" In an order and opinion filed March 5, 1976, the district court denied plaintiff's petition for reconsideration and vacation of the summary judgment. 417 F. Supp. 1047, 12 Fair Empl. Prac. Cas. (BNA) 575. An appeal was taken. In an unpublished opinion, the Court of the Appeals for the Third Circuit stated:

. . . In a careful 49 page opinion the district court denied reconsideration, and this appeal was taken.
However much we might incline towards the district court's view of the merits of this case, we cannot agree that the constitutional claim presented was "insubstantial" as that term has been defined by the Supreme Court. Goosby v. Osser, 409 U.S. 512, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973), reversing this court, 452 F.2d 39 (3d Cir. 1971), teaches that the lack of merit in a claim must be very clear indeed to warrant denial of a three-judge court when the case is otherwise within a three-judge court statute.

 Opinion filed January 21, 1977, Civil Action No. 76-1604. Consequently, the Court of Appeals vacated and remanded the case with directions that a three-judge court be convened. *fn4" Defendant's motion for summary judgment is now before the court for determination. In light of the Supreme Court's recent holding in Califano v. Webster, 430 U.S. 313, 97 S. Ct. 1192, 51 L. Ed. 2d 360 (1977), any doubt as to the validity of § 228b(a) is eliminated; and, therefore, defendant's motion for summary judgment must be again granted.


 Railroad Retirement Act

 The Railroad Retirement Act is similar to the Social Security Act in that they are both federally-administered contributory systems designed to protect the worker and, under some provisions, his family. See Kalina v. Railroad Retirement Board, 541 F.2d 1204, 1207, n. 3 (6th Cir. 1976), appeal, 431 U.S. 909, 97 S. Ct. 2164, 53 L. Ed. 2d 220, 45 U.S.L.W. 3590. There is an effort to keep the annuity benefits provided under the Railroad Retirement Act comparable to social security benefits. "Historically, whenever social security benefits have been increased, railroad retirement benefits have also been increased comparably." 1973 U.S. Congressional and Administrative News, p. 1617. Because of the similarity between these benefit systems, there is no reason to doubt the applicability of case law regarding the Social Security Act to claims against the Railroad Retirement Act. *fn5"


 Equal Protection Claim

 Plaintiff's ability to bring this claim under the Fifth Amendment is without question. The existence of an equal protection component to the Fifth Amendment's due process clause is well established. Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954); Mathews v. de Castro, 429 U.S. 181, 182, n. 1, 97 S. Ct. 431, 432, n. 1, 50 L. Ed. 2d 389 (1976).

 Plaintiff does not allege that § 228b(a) discriminates against women or has an adverse impact upon them. Thus, this case is not comparable to the circumstances of Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S. Ct. 1225, 43 L. Ed. 2d 514 (1975), or Califano v. Goldfarb, 430 U.S. at 208-09 n. 5, where the Court held certain provisions of the Social Security Act unconstitutional because they deprived female wage earners of the protections accorded to their male counterparts. However, plaintiff's action does come within the purview of Califano v. Webster, supra, in which the gender classification of the former § 215 of the Social Security Act, 42 U.S.C. § 415, provided, in effect, greater old-age benefits under the Social Security Act to retired females than to their male counterparts. After analyzing the provision under the standard of review applicable to gender classifications, which was most clearly articulated in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), the court held § 215 constitutional.

 The standard of review applicable here in determining if § 228b(a) is constitutional is whether the gender classification is substantially related to the achievement of important governmental objectives. Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct. 451, 457, 50 L. Ed. 2d 397 (1976). A gender-based classification enacted for the purpose of reducing the disparity between the economic conditions of men and women caused by the historic discrimination against women has been recognized as an important governmental objective capable of withstanding scrutiny under equal protection analysis. Califano v. Webster, supra; Schlesinger v. Ballard, 419 U.S. 498, 9 Fair Empl. Prac. Cas. (BNA) 33, 42 L. Ed. 2d 610, 95 S. Ct. 572 (1975); Kahn v. Shevin, 416 U.S. 351, 40 L. Ed. 2d 189, 94 S. Ct. 1734 (1974).

 Defendant claims that § 228b(a) was enacted to redress the effects of past discrimination against women. However, in determining whether an asserted compensatory purpose is not a "mere recitation of a benign compensatory purpose," Weinberger v. Wiesenfeld, 420 U.S. 636, 648, 43 L. Ed. 2d 514, 95 S. Ct. 1225 (1975), this court must inquire into the actual purpose underlying the sex-based classification presently at issue. In the ...

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