Letourneau Opinion on Petition for Mandamus to Require Three-Judge Panel

    NAACP Legal T3efer.se Fund
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AUG 5 g y iTED gTATES COURT OF APPEALS

P oe th e  S econd C ircuit

No. 1554—September Term, 1976.

(Submitted April 5, 1977 Decided July 28, 1977.)
Docket No. 77-3031

In re
B erthe  L etou rn eau ,

Petitioner,

B e f o r e  :
Oak es , Circuit Judge, and 

W y za n s k i* and  H olden , ## District Judges.

Petition for mandamus to require the United States 
District Court for the Southern District of New York, 
Kevin Thomas Duffy, Judge, to convene a three-judge 
district court to determine the constitutionality of 26 
U.S.C. § 1402(c)(2)(C) and 42 U.S.C. § 411(c) (2) (C). 

Remanded.

K alm an  F in k e l , J o h n  E. K ir k l in , J an et  M. 
Calvo, The Legal Aid Society, New York, 
N.Y., for Petitioner.

* Senior Judge of the United States District Court for the District of 
Massachusetts, sitting by designation.

** Chief Judge of the United States District Court for the District of 
Vermont, sitting by designation.

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R o b e r t  B. F isk e , J r ., United States Attorney 
for the Southern District of New York 
(Frederick P. Schaffer, Assistant United 
States Attorney, of counsel), for Respon­
dent.

Oak es , Circuit Judge:

Petitioner seeks a writ of mandamus, pursuant to 28 
U.S.C. § 1651, to require the United States District Court 
for the Southern District of New York, Kevin Thomas 
Duffy, Judge, to convene a three-judge district court to 
determine the constitutionality of 26 U.S.C. § 1402(c) (2) 
(C) and 42 U.S.C. § 411(c) (2)(C). The claim is that these 
statutes unconstitutionally deny Social Security benefits 
to aliens lawfully admitted for permanent residence in the 
United States who work for an international organization 
or foreign government instrumentality.1 Judge Duffy 
refused to convene a three-judge court, which may be 
convened only if the complaint “alleges a basis for equi­
table relief,” Idlewild Bon Voyage Liquor Corp., v. Epstein, 
370 U.S. 713, 715 (1962) (per curiam); Nieves v. Oswald, 
477 F.2d 1109, 1112 (2d Cir. 1973); see 28 U.S.C. § 2282. 
The judge concluded that here the relevant jurisdiction- 
conferring statute, 42 U.S.C. § 405(g),2 forbids issuance of

1 A  recent amendment to 28 U.S.C. § 2284 obviates the need for a 
three-judge court in future cases of this kind, but the amendment by 
its terms does not apply to suits commenced prior to the date o f its 
enactment (August 12, 1976). Pub. L. No. 94-381, $ 7, 90 Stat. 1119 
1120 (1976).

2 42 U.S.C. § 405(g) provides in relevant part:
Any individual, after any final decision of the Secretary made 

after a hearing to which he was a party, . . . may obtain a review 
of such decision by a civil action . . .  brought in the district court 
of the United States for the judicial district in which the plaintiff 
resides or has his principal, place of business . . . .  The court shall 
have power to enter, upon the pleadings and transcript of the record,

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an injunction against operation of the statutory scheme. 
This ruling is reviewable on a petition for mandamus. 
Gonzales v. Automatic Employees Credit Union, 419 U.S. 
90, 100 n.19 (1974). We hold that the district court’s 
construction of 42 U.S.C. § 405(g) is incorrect, and we 
therefore remand for consideration of the substantiality of 
petitioner’s constitutional claims.

The court below relied for its conclusion on a footnote in 
Weinberger v. Sal ft, 422 U.S. 749, 763 n.8 (1975), which 
in dictum may be read to state that § 405(g) does not 
affirmatively grant injunctive power to the federal courts.3 
At least one other district court has been persuaded by 
this footnote to hold that § 405(g) leaves it without in­
junctive power. Webster v. Secretary of H.E.W., 413 F. 
Supp. 127, 128 n.l (E.D.N.Y. 1976), rev’d on other grounds

a judgment affirming, modifying, or reversing the deeision of the 
Secretary, with or without remanding the cause for a rehearing. . . . 
The judgment of the court shall be final except that it shall be 
subject to review in the same manner as a judgment in other civil 
actions. . . .

3 The footnote reads in full:
Since 5 405(g) is the basis for district court jurisdiction, there 

is some question as to whether it had authority to enjoin the oper­
ation of the duration-of-relationship requirements. Section 405(g) 
accords authority to affirm, modify, or reverse a decision of the 
Secretary. It contains no suggestion that a reviewing court is 
empowered to enter an injunctive decree whose operation reaches 
beyond the particular applicants before the court. In view o f our 
dispositions of the class-action and constitutional issues in this case, 
the only significance of this problem goes to our own jurisdiction. 
I f  a 5 405(g) court is not empowered to enjoin the operation o f a 
federal statute, then a three-judge District Court was not required 
to hear this case, 28 U.S.C. 5 2282, and we are without jurisdiction 
under 28 U.8.C. 5 1253. However, whether or not the three-judge 
court was properly convened, that court did hold a federal statute 
unconstitutional in a civil action to which a federal agency and 
officers are parties. We thus have direet appellate jurisdiction under 
28 U.8.C. 5 1252. McLucas v. DeChamplain, 421 U.S. 21, 31-82 
(1975).

422 U.S. at 763 n.8.

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sub nom. Califano v. Webster, 45 U.S.L.W. 3630 (U.S. Mar. 
21, 1977) (per curiam). See also Slone v. Weinberger, 400 
F. Supp. 891, 894 (EJD. Ky. 1975).4 We believe, however, 
that the footnote, which is an observation and not a holding, 
and which does not examine the well-developed prohibition 
against inferring denial of remedial powers from ambig­
uous statutory language, leaves the ultimate issue open. 
See Norton v. Mathews, 427 U.S. 524, 533-34 (1976) 
(Stevens, </., dissenting).

Subject to due process limitations, Congress may grant 
jurisdiction over particular subject matter to the federal 
courts while withholding the power to give certain remedies. 
See Palmore v. United States, 11 U.S. 389, 400-02 (1973). 
See generally Hart, The Power of Congress to Limit the 
Jurisdiction of Federal Courts: An Exercise in Dialectic, 
66 Harv. L. Rev. 1362, 1366 (1953); Note, Congressional 
Power Over State and Federal Court Jurisdiction: The 
Hill-Burton and Trans-Alaska Pipeline Examples, 49 
N.Y.U.L. Rev. 131 (1974). When congressional intent is 
unclear, however, no diminution in the remedial powers of 
the federal courts may be inferred. Congress must speak 
clearly to interfere with the historic equitable powers of the 
courts it has created. Porter v. Warner Holding Co., 328 
U.S. 395, 398 (1946); Hecht Co. v. Bowles, 321 U.S. 321,

4 Respondent also claims that Jablon v. Secretary o f  HJS.W., 399 F. 
Supp. 118, 121 (D. Md. 1975) (three-judge eourt), supports its position 
and indeed forecloses the issue since it was summarily affirmed by the 
Supreme Court, 45 U.S.L.W. 3632 (U.S. Mar. 21, 1977). In Jablon, 
however, a three-judge court was in fact convened, and whether that 
court declined on the merits to issue an injunction or was persuaded 
by the Salfl footnote that it had no power to do so is left unclear in the 
opinion. Thus just what it was that the Supreme Court summarily 
affirmed is similarly unclear. Moreover, a summary affirmance, as the 
Supreme Court has recently reminded us, "  'affirmfs] the judgment but 
not necessarily the reasoning by which it was reached.’ ”  Mandel v. 
Bradley, 45 U.S.L.W. 4701, 4701 (U.S. June 16, 1977) (per curiam), 
quoting Fusari v. Steinberg, 419 U.S. 379, 391 (1975) (Burger, C.J., 
concurring).

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330 (1944); Brown v. Swann, 35 U.S. (10 Pet.) 497, 503 
(1836); Usery v. Local 639, International Brotherhood of 
Teamsters, 543 F.2d 369, 388 (D.C. Cir. 1976); Commodity 
Futures Trading Commission v. British American Com­
modity Options Corp., 422 F. Supp. 662, 664 (S.D.N.Y. 
1976).

Here, § 405(g) speaks expansively of what a district 
court may do—it may affirm, reverse or modify in any way 
the Secretary’s judgment—and is completely silent on any 
limitations on the court’s equitable powers. See note 2 
supra. In this absence of any affirmative limitation on 
historic district court powers, we may not infer that Con­
gress meant to circumscribe them. Accord, Johnson v. 
Mathews, 539 F.2d 1111, 1125 (8th Cir. 1976). See also 
Jimenez v. Weinberger, 523 F.2d 689, 694 (7th Cir. 1975), 
cert, denied, 427 U.S. 912 (1976).

While we therefore hold that § 405(g) does not bar 
issuance of an injunction, there remains the question 
whether petitioner’s constitutional claim is so insubstantial 
that a three-judge court nevertheless need not be convened, 
see Goosby v. Osser, 409 U.S. 512, 518 (1973). The court 
below did not consider this question, and we therefore 
remand for a consideration of the substantiality of peti­
tioner’s constitutional claims, particularly in light of 
Mathews v. Diaz, 426 U.S. 67 (1976), and Nyquist v. 
Mauclet, 45 U.S.L.W. 4655 (U.S. June 13, 1977). See also 
Fiallo v. Bell, 45 U.S.L.W. 4402 (U.S. Apr. 26, 1977).

Cause remanded.

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