| United States. Railroad Retirement Board v. Fritz
(No. 79-870)
Reversed. |
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| Syllabus
| Opinion
[ Rehnquist ] | Concurrence
[ Stevens ] | Dissent
[ Brennan ] |
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United States. Railroad Retirement Board v. Fritz
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Appellee Gerhard Fritz represents a class of retired former railroad employees who were statutorily entitled to Railroad Retirement and Social Security benefits, including an overlap herein called the "earned dual benefit," until enactment of [p183] the Railroad Retirement Act of 1974, which divested them of their entitlement to the earned dual benefit. The Act did not affect the entitlements of other railroad employees with equal service in railroad and nonrailroad jobs, who can be distinguished from appellee class only because they worked at least one day for, or retained a "current connection" with, a railroad in 1974.
The only question in this case is whether the equal protection component of the Fifth Amendment [n1] bars Congress from allocating pension benefits in this manner. The answer to this question turns in large part on the way in which the strictures of equal protection are conceived by this Court. See Morey v. Doud, 354 U.S. 457, 472 (1957) (Frankfurter, J., dissenting). The parties agree that the legal standard applicable to this case is the "rational basis" test. The District Court applied this standard below, see Conclusion of Law No. 7, reprinted at App. to Juris.Statement 28a. The Court today purports to apply this standard, but in actuality fails to scrutinize the challenged classification in the manner established by our governing precedents. I suggest that the mode of analysis employed by the Court in this case virtually immunizes social and economic legislative classifications from judicial review.
I
A legislative classification may be upheld only if it bears a rational relationship to a legitimate state purpose. Vance v. Bradley, 440 U.S. 93, 97 (1979); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312 (1976) (per curiam); New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam). Perhaps the clearest statement of this Court's present approach to "rational basis" scrutiny may be found in Johnson v. Robison, 415 U.S. 361 (1974). In considering the constitutionality of limitations on the availability of educational [p184] benefits under the Veterans' Readjustment Benefits Act of 1966, eight Members of this Court agreed that
our analysis of the classification proceeds on the basis that, although an individual's right to equal protection of the laws
does not deny . . . the power to treat different classes of persons in different ways[;] . . . [it denies] the power to legislate that different treatment be accorded the persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification "must 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."
Id. at 374-375 (quoting Reed v. Reed, 404 U.S. 71, 75-76 (1970), which, in turn, was quoting F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)) (ellipses and brackets in original) (emphasis supplied) .
The enactments of Congress are entitled to a presumption of constitutionality, and the burden rests on those challenging a legislative classification to demonstrate that it does not bear the "fair and substantial relation to the object of the legislation," ibid., required under the Constitution. Mathews v. Lucas, 427 U.S. 495, 510 (1976).
Nonetheless, the rational basis standard "is not a toothless one," ibid., and will not be satisfied by flimsy or implausible justifications for the legislative classification, proffered after the fact by Government attorneys. See, e.g., Jimenez v. Weinberger, 417 U.S. 628 (1974); United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973); United States Dept. of Agriculture v. Murry, 413 U.S. 508 (1973); James v. Strange, 407 U.S. 128 (1972). When faced with a challenge to a legislative classification under the rational basis test, the court should ask, first, what the purposes of the statute are, and, second, whether the classification is rationally related to achievement of those purposes. [p185]
II
The purposes of the Railroad Retirement Act of 1974 are clear, because Congress has commendably stated them in the House and Senate Reports accompanying the Act. A section of the Reports is entitled "Principal Purpose of the Bill." It notes generally that "[t]he bill provides for a complete restructuring of the Railroad Retirement Act of 1937, and will place it on a sound financial basis," [n2] and then states:
Persons who already have vested rights under both the Railroad Retirement and the Social Security systems will in the future be permitted to receive benefits computed under both systems, just as is true under existing law.
H.R.Rep. No. 93-1345, pp. 1, 2 (1974); S.Rep. No. 93-1163, pp. 1, 2 (1974). [n3] Moreover, Congress explained that this purpose was based on considerations of fairness and the legitimate expectations of the retirees:
[A]ny plan to eliminate these dual benefits should include protection of the equities of existing beneficiaries [p186] and employees with claims upon such benefits. Dual beneficiaries cannot fairly be criticized, since they have merely secured the benefits to which they are entitled under existing law. That is why their equities should be preserved.
H.R. No. 93-1345, at 11; S.Rep. No. 93-1163, at 11.
Thus, a "principal purpose" of the Railroad Retirement Act of 1974, as explicitly stated by Congress, was to preserve the vested earned benefits of retirees who had already qualified for them. The classification at issue here, which deprives some retirees of vested dual benefits that they had earned prior to 1974, directly conflicts with Congress' stated purpose. As such, the classification is not only rationally unrelated to the congressional purpose; it is inimical to it.
III
The Court today avoids the conclusion that § 231b(h) must be invalidated by deviating in three ways from traditional rational basis analysis. First, the Court adopts a tautological approach to statutory purpose, thereby avoiding the necessity for evaluating the relationship between the challenged classification and the legislative purpose. Second, it disregards the actual stated purpose of Congress in favor of a justification which was never suggested by any Representative or Senator, and which in fact conflicts with the stated congressional purpose. Third, it upholds the classification without any analysis of its rational relationship to the identified purpose.
A
The Court states that "the plain language of [45 U.S.C.] § 231b(h) marks the beginning and end of our inquiry." Ante at 176. This statement is strange indeed, for the "plain language" of the statute can tell us only what the classification is; it can tell us nothing about the purpose of the classification, let alone the relationship between the classification [p187] and that purpose. Since § 231b(h) deprives the members of appellee class of their vested earned dual benefits, the Court apparently assumes that Congress must have intended that result. But by presuming purpose from result, the Court reduces analysis to tautology. It may always be said that Congress intended to do what it in fact did. If that were the extent of our analysis, we would find every statute, no matter how arbitrary or irrational, perfectly tailored to achieve its purpose. But equal protection scrutiny under the rational basis test requires the courts first to deduce the independent objectives of the statute, usually from statements of purpose and other evidence in the statute and legislative history, and second to analyze whether the challenged classification rationally furthers achievement of those objectives. The Court's tautological approach will not suffice.
B
The Court analyzes the rationality of § 231b(h) in terms of a justification suggested by Government attorneys, but never adopted by Congress. The Court states that it is "‘constitutionally irrelevant whether this reasoning in fact underlay the legislative decision.'" Ante at 179 (quoting Flemming v. Nestor, 363 U.S. 603, 612 (1960)). In fact, however, equal protection analysis has evolved substantially on this question since Flemming was decided. Over the past 10 years, this Court has frequently recognized that the actual purposes of Congress, rather than the post hoc justifications offered by Government attorneys, must be the primary basis for analysis under the rational basis test. In Weinberger v. Wiesenfeld, 420 U.S. 636, 648, n. 16 (1975), we said:
This Court need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation.
(Citing cases.) [p188]
Thus, in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17 (1973), this Court stated that a challenged classification will pass muster under "rational basis" scrutiny only if it "rationally furthers some legitimate, articulated state purpose" (emphasis added), and in Massachusetts Board of Retirement v. Muria, 427 U.S. at 314, we stated that such a classification will be sustained only if it "rationally furthers the purposes identified by the State." (Emphasis added.) Moreover, in Johnson v. Robison, 415 U.S. at 381-382, we upheld a classification on the finding that "[t]hese quantitative and qualitative distinctions, expressly recognize by Congress, form a rational basis for Congress' classification. . . ." (Emphasis added.) See also Califano v. Goldfarb, 430 U.S. 199, 212-213 (1977).
From these cases and others, it is clear that this Court will no longer sustain a challenged classification under the rational basis test merely because Government attorneys can suggest a "conceivable basis" upon which it might be thought rational. The standard we have applied is properly deferential to the Legislative Branch: where Congress has articulated a legitimate governmental objective, and the challenged classification rationally furthers that objective, we must sustain the provision. In other cases, however, the courts must probe more deeply. Where Congress has expressly stated the purpose of a piece of legislation, but where the challenged classification is either irrelevant to or counter to that purpose, we must view any post hoc justifications proffered by Government attorneys with skepticism. A challenged classification may be sustained only if it is rationally related to achievement of an actual legitimate governmental purpose.
The Court argues that Congress chose to discriminate against appellee for reasons of equity, stating that
Congress could properly conclude that persons who had actually acquired statutory entitlement to windfall benefits while still employed in the railroad industry had a greater equitable [p189] claim to those benefits than the members of appellee's class who were no longer in railroad employment when they became eligible for dual benefits. [n4]
Ante at 178. This statement turns Congress' assessment of the equities on its head. As I have shown, [n5] Congress expressed the view that it would be inequitable to deprive any retirees of any portion of the benefits they had been promised and that they had earned under prior law. See also H.R.Rep. No. 93-1345, pp. 4, 11 (1974); S.Rep. No. 91163, pp. 4, 11 (1974); 120 Cong.Rec. 35613 (1974) (statement of Rep. Hudnut); id. at 35614 (statement of Rep. Shuster); id. at 35615 (statement of Rep. Morgan). The Court is unable to cite even one statement in the legislative history by a Representative or Senator that makes the equitable judgment it imputes to Congress. In the entire legislative history of the Act, the only persons to state that the equities justified eliminating appellee's earned dual benefits were representatives of railroad management and labor, whose self-serving interest in bringing about this result destroys any basis for attaching weight to their statements. [n6]
The factual findings of the District Court concerning the development of § 231b(h), amply supported by the legislative history, are revealing on this point. [n7] In 1970, Congress [p190] established a Commission to investigate the actuarial soundness of the Railroad Retirement system and to make recommendations for its reform. See Pub.L. 91-377, 84 Stat. 791. The Commission was composed of one railroad management representative, one railroad labor representative, and three public representatives. The Commission submitted a report in 1972 recommending, inter alia, that railroad retirees in the future no longer be permitted to earn full Railroad Retirement and Social Security benefits without offset. The Commission insisted, however, that
[i]ndividuals who have vested rights to social security benefits by virtue of permanently or fully insured status, but cannot exercise them because they are not at retirement age under railroad retirement, should be guaranteed an equivalent right in dollar terms to the staff tier portion of their benefits, including vested dual benefits. . . .
Commission on Railroad Retirement, The Railroad Retirement System: Its Coming Crisis, H.R. Doc. No. 92350, p. 368 (1972).
After receiving the Commission report, Congress asked railroad management and labor representatives to negotiate and submit a bill to restructure the Railroad Retirement system, which should "take into account the specific recommendations of the Commission on Railroad Retirement." Pub.L. 93-69, § 107, 87 Stat. 165. The members of this Joint Labor-Management Negotiating Committee were not appointed by public officials, nor did they represent the interests of the appellee class, who were no longer active railroaders or union members. [n8] [p191]
In an initial proposed restructuring of the system, the Joint Committee devised a means whereby the system deficit could be completely eliminated without depriving retirees of vested earned benefits. See Finding of Fact No. 43, reprinted at App. to Juris.Statement 12a. However, labor representatives demanded that benefits be increased for their current members, the cost to be offset by divesting the appellee class of a portion of the benefits they had earned under prior law. See Findings of Fact Nos. 39, 40, 44, reprinted id. at 11a-12a. As the District Court found:
Essentially, the railroad labor negotiators traded off the plaintiff class of beneficiaries to achieve added benefits for their current employees, even though doing so violated the basic Congressional purposes of the negotiations. Furthermore, by sacrificing the plaintiff class, the railroad labor unions breached the duty of fair representation they owed to the plaintiff class, which duty resulted from the labor unions' purported representation of the plaintiff class' interests in the [Joint Committee] negotiations.
Finding of Fact No. 44, reprinted id. at 12a-13a.
Congress conducted hearings to consider the Joint Committee's recommendations, but never directed its attention to their effect on persons in appellee class' situation. In fact, the Joint Committee negotiators and Railroad Retirement Board members who testified at congressional hearings perpetuated the inaccurate impression that all retirees with earned vested dual benefits under prior law would retain their benefits unchanged. For example, Mr. William H. Dempsey, chairman of the management negotiators on the Joint [p192] Committee and principal witness at the hearings, told the committee:
[P]rotection [will] be accorded to people who are on the rolls now receiving dual benefits and those who are vested under both systems as of January 1, 1975, the idea of the Commission being, and we agree with this, that these individuals had a right to rely upon the law as it existed when they were working. They have made their contributions. They have relied upon the law. They . . . should be protected.
Restructuring of the Railroad Retirement System: Hearings on H.R. 15301 before the House Committee on Interstate and Foreign Commerce, 93d Cong., 2d Sess., 214 (1974). Accord, id. at 190 (statement of Mr. Dempsey); id. at 194 (statement of Mr. Dempsey); id. at 204 (statement of Rep. Dingell); id. at 213-214 (statement of Mr. Dempsey); id. at 242 (statement of Mr. Dempsey); id. at 248 (statement of Mr. James L. Cowen, Chairman of the Railroad Retirement Board); id. at 249 (statement of Mr. Cowen); id. at 335 (statements of Messrs. Neil P. Speirs and Wythe D. Quarles, Jr., members of the Railroad Retirement Board); id. at 351 (statement of Mr. Speirs).
Most striking is the following colloquy between Representative Dingell and Mr. Dempsey:
Mr. DINGELL. Who is going to be adversely affected? Somebody has to get it in the neck on this. Who is going to be that lucky fellow?
Mr. DEMPSEY. Well, I don't think so really. I think this is the situation in which every one wins. Let me explain.
Mr. DINGELL. Mr. Dempsey, I see some sleight of hand here, but I don't see how it is happening. I applaud it, but I would like to understand it. My problem is that you are going to go to a realistic system that is going [p193] to cost less but pay more in benefits. Now if you have accomplished this, I suggest we should put you in charge of the social security system.
Id. at 199, 201.
The Act was passed in the form drafted by the Joint Committee, without any amendment relevant to this case. [n9]
Of course, a misstatement or several misstatements by witnesses before Congress would not ordinarily lead us to conclude that Congress misapprehended what it was doing. In this instance, however, where complex legislation was drafted by outside parties and Congress relied on them to explain it, where the misstatements are frequent and unrebutted, and where no Member of Congress can be found to have stated the effect of the classification correctly, we are entitled to suspect that Congress may have been misled. As the District Court found:
At no time during the hearings did Congress even give a hint that it understood that the bill by its language eliminated an earned benefit of plaintiff's class.
Finding of Fact No. 63, reprinted at App. to Juris.Statement 22a.
Therefore, I do not think that this classification was rationally related to an actual governmental purpose.
C
The third way in which the Court has deviated from the principles of rational basis scrutiny is its failure to analyze [p194] whether the challenged classification is genuinely related to the purpose identified by the Court. Having suggested that "equitable considerations" underlay the challenged classification -- in direct contradiction to Congress' evaluation of those considerations, and in the face of evidence that the classification was the product of private negotiation by interested parties, inadequately examined and understood by Congress -- the Court proceeds to accept that suggestion without further analysis.
An unadorned claim of "equitable" considerations is, of course, difficult to assess. It seems to me that, before a court may accept a litigant's assertion of "equity," it must inquire what principles of equity or fairness might genuinely support such a judgment. But apparently the Court does not demand such inquiry, for it has failed to address any equitable considerations that might be relevant to the challenged classification.
In my view, the following considerations are of greatest relevance to the equities of this case: (1) contribution to the system; (2) reasonable expectation and reliance; (3) need; and (4) character of service to the railroad industry. With respect to each of these considerations, I would conclude that the members of appellee class have as great an equitable claim to their earned dual benefits as do their more favored coworkers, who remain entitled to their earned dual benefits under § 231b(h).
Contribution to the system. The members of the appellee class worked in the railroad industry for more than 10 but fewer than 25 years, and also worked in nonrailroad jobs for the required number of years for vesting under Social Security -- usually 40 quarters. During that time, they contributed to both the Railroad Retirement and Social Security systems, and met all requirements of the law for the vesting of benefits under those systems. In this respect, they are identical to their more favored coworkers, who contributed no more of their earnings to the systems than did appellee [p195] class. On the basis of contributions to the systems, therefore, there is no reason for this discrimination.
Reasonable expectation and reliance. Throughout their working lives, the members of appellee class were assured that they would receive retirement benefits in accordance with the terms of the law as it then stood. See Finding of Fact No. 70, reprinted at App. to Juris.Statement 25a. No less than their more favored coworkers, they chose career paths and made calculations for their retirement based on these assurances. For Congress to change its rules and strip them of these benefits at the time of their retirement seems decidedly inequitable. As the District Court found:
The class' reliance on the earned railroad retirement benefit and on the anticipated receipt of full dual benefits is clear from the evidence adduced herein.
* * * *
Equally clear from the evidence is the fact that the class' reliance has been to the class' detriment. Class members have been forced to alter substantially their mode of retirement living due to the drastic reduction of Railroad Retirement benefits worked by the 1974 Act. This point was confirmed in the [Joint Committee] negotiations shortly prior to the sending of its report to Congress in April, 1974:
Mr. Dempsey: . . . The benefit [dual benefit] is one that, if we were starting out, we would not have at all. So theoretically we would urge that it be out completely as of January 1, 1975. But we cannot do that -- we have people who are relying on benefits, not responsible for them, but merely working for them under the rules as they stood.
Findings of Fact Nos. 70, 71, reprinted id. at 25a-26a. In fact, this reliance was one of the principal reasons Congress resolved not to disturb the vested earned dual benefits of retirees. [n10] [p196]
Need. The appellee class is composed of fixed-income elderly people, no longer capable of reentering the workforce to reacquire benefits once earned but now lost. The average loss to the class members is about $88 per month, no small element in the monthly budget. The record provides no reason to suppose that members of the appellee class are any less likely to be in need than are their coworkers.
Character of service to the railroad industry. Members of the appellee class worked at least 10 years for the railroad industry by 1974, and many of them worked as long as 24 years. Their duration of railroad employment -- surely the best measure of their service to the industry -- was equal to that of their coworkers. In fact, some members of the class worked over twice as long in the railroad industry as did some of those who retained their rights to a dual benefit. Finding of Fact No. 60, reprinted id. at 21a-22a. Admittedly, the members of the appellee class retired from railroad work prior to 1974, but the record shows that many left railroad work involuntarily, not because of a lack of commitment to the industry. Finding of Fact No. 72, reprinted id. at 26a. Moreover, since one purpose of the Railroad Retirement system was to encourage railroad workers to retire early, so as to create positions for younger workers, Hisquierdo v. Hisquierdo, 439 U.S. 572, 573-574 (1979), it is hardly fair to fault the appellee class now for having done so.
Even if I were able to accept the notion that Congress considered it equitable to deprive a class of railroad retirees of a portion of their vested earned benefits because they no longer worked for the railroad, I would still consider the means adopted in § 231b(h) irrational. [n11] Under this provision, a [p197] retiree is favored by retention of his full vested earned benefits if he had worked so much as one day for a railroad in 1974. This is a plainly capricious basis for distinguishing among retirees, every one of whom had worked in the industry for at least 10 years: the fortuity of one day of employment in a particular year should not govern entitlement to benefits earned over a lifetime. [n12]
I therefore conclude that the Government's proffered justification of "equitable considerations," accepted without question by the Court, cannot be defended. Rather, as the legislative history repeatedly states, equity and fairness demand that the members of appellee class, like their coworkers, retain the vested dual benefits they earned prior to 1974. A conscientious application of rational basis scrutiny demands, therefore, that § 231b(h) be invalidated.
IV
Equal protection rationality analysis does not empower the courts to second-guess the wisdom of legislative classifications. On this, we are agreed, and have been for over 40 years. On the other hand, we are not powerless to probe beneath claims by Government attorneys concerning the means and ends of [p198] Congress. Otherwise, we would defer not to the considered judgment of Congress, but to the arguments of litigators. The instant case serves as an example of the unfortunate consequence of such misplaced deference. Because the Court is willing to accept a tautological analysis of congressional purpose, an assertion of "equitable" considerations contrary to the expressed judgment of Congress, and a classification patently unrelated to achievement of the identified purpose, it succeeds in effectuating neither equity nor congressional intent.
I respectfully dissent.
1. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n. 2 (1975).
2. Of course, the legitimate governmental interest in restoring the Railroad Retirement system to fiscal soundness does not, in itself, serve to support the challenged classification in this case. At issue is why Congress discriminated among two classes of railroad retirees. The overall interest in saving money is irrelevant to this discrimination.
3. Several pages later, the Reports again make clear that persons with vested rights to earned dual benefits would retain them:
It must be recognized that the bill actually takes benefits away from certain railroad employees -- those who have not already qualified for Social Security benefits.
H.R.Rep. No. 93-1345, at 6; S.Rep. No. 931163, at 7.
Only in technical discussions and in the section-by-section analyses do the Reports reflect the actual consequences of the Act on the appellee class. See H.R.Rep. No. 93-1345, at 12, 390; S.Rep. No. 93-1163, at 12, 38-39.
The administration also understood the Act to preserve rights to vested earned dual benefits. See H.R.Rep. No. 93-1345, at 81-82 (supplemental report from the Office of Management and Budget).
4. The Court's quoted justification fails on its face to support the challenged classification. Despite the Court's apparent belief to the contrary, some members of the appellee class did "actually acquir[e] statutory entitlement" to dual benefits while still employed in the railroad industry, see ante at 178, but nevertheless were deprived of a portion of those benefits. See § 231b(h)(2). Under the Court's own reasoning, therefore, these persons were arbitrarily and impermissibly treated.
5. See supra at 185-186.
6. See discussion following, infra.
7. The Court does not claim that the District Court's factual findings were clearly erroneous, though it does state its disagreement with one lower court conclusion. See ante at 179. Therefore, the factual findings of the District Court govern the litigation in this Court, and, in any event, are amply supported by the record.
8. The use of a Joint Labor-Management Negotiating Committee to draft legislation concerning the Railroad Retirement system was not novel. In fact, such a committee drafted the original Railroad Retirement Act of 1937 and several amending Acts since then. See Hisquierdo v. Hisquierdo, 439 U.S. 572, 574, n. 3 (1979); Railroad Retirement Act -- Supplemental Benefits, Hearings on H.R. 17285 before the Subcommittee on Commerce and Finance of the House Committee on Interstate and Foreign Commerce, 89th Cong., 2d Sess., 2-3 (1966); Railroad Retirement, Hearings on H.R. 1362 before the House Committee on Interstate and Foreign Commerce, 79th Cong., 1st Sess., 448 (1945); Commission on Railroad Retirement, The Railroad Retirement System: Its Coming Crisis, H.R. Doc. No. 92-350, p. 147 (1972).
9. Congress' unfortunate tendency to pass Railroad Retirement legislation drafted by labor and management representatives without adequate scrutiny was criticized by the Commission on Railroad Retirement in its 1972 report:
The historical record shows that past policy formulation has not always abided by the key criteria of equity and sound financing. Generally, the major provisions of the system have been the product of negotiations between railway labor and the carriers in a bargaining process often reflecting conflicts or the exercise of power in an industry which directly affects the public welfare. The results of this bargaining process have, at times, been less than fully screened by the Federal Government before they were ratified by Congressional action and given Presidential approval.
H.R. Doc. No. 9250, supra, at 147.
10. Cf. Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 374 (1980) (one of Congress' central purposes in passing the Employee Retirement Income Security Act was "to prevent the ‘great personal tragedy' suffered by employees whose vested benefits are not paid when pension plans are terminated" (footnote omitted)).
11. Contrary to the Court's suggestion, this is not a "line-drawing" case, where the Congress must make a division at some point along an admittedly rationally conceived continuum. See ante at 179. Here, Congress has isolated a particular class of retirees on the basis of a distinction that is utterly irrelevant to any actual or legitimate governmental purpose.
12. The wholly arbitrary nature of this classification is highlighted by an analysis of the exception in § 231(h)(2). Under this subsection, some members of the appellee class are entitled to retain a portion of their earned dual benefit, albeit at a reduced level, while the others are divested of the dual benefit altogether. The basis for this added twist is the timing of their qualification for Railroad Retirement and Social Security. Those who qualified for Social Security first retain a portion of their dual benefit; those who qualified for Railroad Retirement first do not. Needless to say, the retirees had no notice at the time that the timing of qualification would make any difference to their entitlement to benefits. This kind of after-the-fact shifting of the rules for retirement benefits has not been justified, and cannot be justified.
