text:
    CALIFORNIA v. BRAESEKE
    No. A-636.
    Decided January 31, 1980
   Mr. Justice Rehnquist,

Circuit Justice.

Applicant, the State of California, has asked me to stay a judgment of the Supreme Court of California in which that court held that the State had not carried its burden of showing that respondent had waived the rights to which he is entitled under Miranda v. Arizona, 384 U. S. 436 (1966). The respondent, on the other hand, contends that the Supreme Court of California, which divided by a vote of 4-3 on the question, decided the question on a state-law ground.

If respondent is correct, that is the end of the matter. My own reading of the majority and dissenting opinions in the case leaves me in doubt, since the three dissenters 'concluded that “[t]here can be no doubt this twenty-year-old defendant knowingly and intelligently waived his Miranda protections.”

Within the past month we have summarily reversed a judgment of the Supreme Court of Louisiana, holding that it did not hold the State to a high enough standard of proof as to the waiver of a defendant’s “Miranda” rights. Tague v. Louisiana, ante, p. 469. On the other hand, last Term we twice reversed State Supreme Courts for imposing additional or stricter requirements than we thought were required by the Miranda decision as a matter of federal constitutional law. Fare v. Michael C., 442 U. S. 707 (1979); North Carolina v. Butler, 441 U. S. 369 (1979). In the latter case we said:

“The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As we unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” Id., at 373.

Obviously this Court cannot review all decisions of other courts which hold that the prosecution has or has not carried its burden of showing that a defendant waived his “Miranda” rights. But my reading of the opinion of the Supreme Court of California in this case makes me think that if it was decided on the basis of federal constitutional law, it comes extraordinarily close to the adoption of a rule that in no cases can waiver be inferred from the actions and words of the person interrogated. I believe that four Members of the Court are sufficiently likely to share this view that I shall grant the stay requested by the State pending referral of the matter to the next scheduled full Conference of the Court, at which time the Court will have the opportunity of deciding whether to continue the stay, pending the filing of a petition for certiorari by the State, in order to remand the case to the Supreme Court of California so that it may say whether its judgment was based “on an adequate and independent nonfederal ground.” California v. Krivda, 409 U. S. 33, 35 (1972).

The application for stay pending consideration by the full Court is accordingly granted.


source: Caselaw Access Project

author: Mr. Justice Rehnquist,

license: Public Domain

text:
    PORTLEY v. GROSSMAN, WARDEN, et al.
    No. A-638 (79-5885).
    Decided February 1, 1980
   Mr. Justice Rehnquist,

Circuit Justice.

The United States District Court for the Central District of California granted applicant’s petition for a writ of habeas corpus and released him from federal custody pending appeal in the Ninth Circuit. The Ninth Circuit reversed, denying the writ, and declined to issue an order staying its mandate pending review on certiorari in this Court. Applicant then filed this request for a stay of execution of the Ninth Circuit’s mandate, scheduled for issuance on February 11, 1980.

In April 1972, after pleading guilty to federal offenses, applicant was sentenced to serve six years in federal custody. Applicant was released on parole July 1, 1974. During his parole term, applicant was convicted of two separate offenses in state court. On June 20, 1978, the Parole Commission held a hearing and revoked applicant’s parole on the basis of the two convictions. The Commission applied its guidelines currently in force, 28 CFR § 2.21 (1978), in establishing applicant’s next presumptive parole date, indicating that a customary range of 34 to 44 months would be served before re-release.

Applicant filed a writ of habeas corpus in federal court, and the trial judge granted the writ, ordering the Parole Commission to reconsider and determine applicant’s parole eligibility under the standards for reparole in effect when the applicant was sentenced in April 1972. The Ninth Circuit reversed, relying on its decision in Rifai v. United States Parole Comm’n, 586 F. 2d 695 (1978), holding that the Parole Commission did not violate the constitutional prohibition against ex post jacto laws by failing to rely on the guidelines in effect at the time of sentencing, rather than at the time of parole eligibility.

When applicant was sentenced in April 1972, the statutes then in force provided that if an individual was found to have violated parole, “the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.” 18 U.S.C. § 4207 (1970 ed.). Now, as in 1972, the Commission’s determination to grant or deny parole is “committed to agency discretion.” 18 U. S. C. § 4218 (d). The administrative guidelines articulating the factors relied on by the Commission in making parole and reparole decisions have changed from those in effect at the time of applicant’s sentencing. But even assuming for purposes of this application that the Ex Post Facto Clause applies to parole in the manner it does to trial and sentence, the changes in issue are not impermissible, as applicant contends. In Dobbert v. Florida, 432 U. S. 282, 293 (1977), this Court held that the prohibition of ex post facto laws does not extend to every change of law that “may work to the disadvantage of a defendant.” It is intended to secure “substantial personal rights” from retroactive deprivation and does not “limit the legislative control of remedies and modes of procedure which do not affect matters of substance.” Ibid.

The guidelines operate only to provide a framework for the Commission’s exercise of its statutory discretion. The terms of the sentence originally imposed have in no way been altered. Applicant cannot be held in confinement beyond the term imposed by the judge, and at the time of his sentence he knew that parole violations would put him at risk of serving the balance of his sentence in federal custody. The guidelines, therefore, neither deprive applicant of any pre-existing right nor enhance the punishment imposed. The change in guidelines assisting the Commission in the exercise of its discretion is in the nature of a procedural change found permissible in Dobbert, supra.

Since I do not believe that applicant is being held in custody-in violation of the Constitution, I deny the application for a stay.


author: Mr. Justice Stewart

text:
    WHIRLPOOL CORP. v. MARSHALL, SECRETARY OF LABOR
    No. 78-1870.
    Argued January 9, 1980
    Decided February 26, 1980

      Stewart, J., delivered the opinion for a unanimous Court.

      Robert E. Mann argued the cause for petitioner. With him on the briefs were Ronald J. Hein, Jr., and Mark A. Lies II.

      Solicitor General McCree argued the cause for respondent. With him on the brief were Deputy Solicitor General Geller, Edwin S. Kneedler, Benjamin W. Mintz, and Dennis K. Kade.

         Robert T. Thompson, Stephen A. Bokat, and Stanley T. Kaleczyc filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed by Warren Spannaus, Attorney General, and Steven M. Gunn and Sharon L’Herault. Special Assistant Attorneys General, for the State of Minnesota; by J. Albert Woll, Elliott Bredhoff, John Fillion, George H. Cohen, Robert M. Weinberg, Laurence Gold, and George Kaujmann for the American Federation of Labor and Congress of Industrial Organizations et al.; and by Michael Churchill for the, Philadelphia Area Project on Occupational Safety and Health.

        Jeffrey B. Schwartz filed a brief for the American Public Health Association as amicus curiae.

   Mr. Justice Stewart

delivered the opinion of the Court.

The Occupational Safety and Health Act of 1970 (Act) prohibits an employer from discharging or discriminating against any employee who exercises “any right afforded by” the Act. The Secretary of Labor (Secretary) has promulgated a regulation providing that, among the rights that the Act so protects, is the right of an employee to choose not to perform his assigned task because of a reasonable apprehension of death or serious injury coupled with a reasonable belief that no less drastic alternative is available. The question presented in the case before us is whether this regulation is consistent with the Act.

"No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.”

I

The petitioner company maintains a manufacturing plant in Marion, Ohio, for the production of household appliances. Overhead conveyors transport appliance components throughout the plant. To protect employees from objects that occasionally fall from these conveyors, the petitioner has installed a horizontal wire-mesh guard screen approximately 20 feet above the plant floor. This mesh screen is welded to angle-iron frames suspended from the building’s structural steel skeleton.

'Maintenance employees of the petitioner spend several hours each week removing objects from the screen, replacing paper spread on the screen to catch grease drippings from the material on the conveyors, and performing occasional maintenance work on the conveyors themselves. To perform these duties, maintenance employees usually are able to stand on the iron frames, but sometimes find it necessary to step onto the steel mesh screen itself.

In 1973, the company began to install heavier wire in the screen because its safety had been drawn into question. Several employees had fallen partly through the old screen, and on one occasion an employee had fallen completely through to the plant floor below but had survived. A number of maintenance employees had reacted to these incidents by bringing the unsafe screen conditions to the attention of their foremen. The petitioner company’s contemporaneous safety instructions admonished employees to step only on the angle-iron frames.

On June 28, 1974, a maintenance employee fell to his death through the guard screen in an area where the newer, stronger mesh had not yet been installed. Following this incident, the petitioner effectuated some repairs and issued an order strictly forbidding maintenance employees from stepping on either the screens or the angle-iron supporting structure. An alternative but somewhat more cumbersome and less satisfactory method was developed for removing objects from the screen. This procedure required employees to stand on power-raised mobile platforms and use hooks to recover the material.

On July 7, 1974, two of the petitioner's maintenance employees, Virgil Deemer and Thomas Cornwell, met with the plant maintenance superintendent to voice their concern about the safety of the screen. The superintendent disagreed with their view, but permitted the two men to inspect the screen with their foreman and to point out dangerous areas needing repair. Unsatisfied with the petitioner's response to the results of this inspection, Deemer and Cornwell met on July 9 with the plant safety director. At that meeting, they requested the name, address, and telephone number of a representative of the local office of the Occupational Safety and Health Administration (OSHA). Although the safety director told the men that they “had better stop and think about what [they] were doing,” he furnished the men with the information they requested. Later that same day, Deemer contacted an official of the regional OSHA office and discussed the guard screen.

The next day, Deemer and Cornwell reported for the night shift at 10:45 p. m. Their foreman, after himself walking on some of the angle-iron frames, directed the two men to perform their usual maintenance duties on a section of the old screen. Claiming that the screen was unsafe, they refused to carry out this directive. The foreman then sent them to the personnel office, where they were ordered to punch out without working or being paid for the remaining six hours of the shift. The two men subsequently received written, reprimands, which were placed in their employment files.

A little over a month later, the Secretary filed suit in the United States District Court for the Northern District of Ohio, alleging that the petitioner’s actions against Deemer and Corn-well constituted discrimination in violation of § 11 (c)(1) of the Act. As relief, the complaint prayed, inter alia, that the petitioner be ordered to expunge from its personnel files all references to the reprimands issued to the two employees, and for a permanent injunction requiring the petitioner to compensate the two employees for the six hours of pay they had lost by reason of their disciplinary suspensions.

Following a bench trial, the District Court found that the regulation in question justified Deemer’s and Cornwell’s refusals to obey their foreman’s order on July 10, 1974. The court found that the two employees had “refused to perform the cleaning operation because of a genuine fear of death or serious bodily harm,” that the danger presented had been “real and not something which [had] existed only in the minds of the employees,” that the employees had acted in good faith, and that no reasonable alternative had realistically been open to them other than to refuse to work. The District Court nevertheless denied relief, holding that the Secretary’s regulation was inconsistent with the Act and therefore invalid. Usery v. Whirlpool Corp., 416 F. Supp. 30, 32-34.

The Court of Appeals for the Sixth Circuit reversed the District Court’s judgment. 593 F. 2d 715. Finding ample support in the record for the District Court’s factual determination that the actions of Deemer and Cornwell had been justified under the Secretary’s regulation, id., at 719, n. 5, the appellate court disagreed with the District Court’s conclusion that the regulation is invalid. Id., at 721-736. It accordingly remanded the case to the District Court for further proceedings. Id., at 736. We granted certiorari, 444 U. S. 823, because the decision of the Court of Appeals in this case conflicts with those of two other Courts of Appeals on the important question in issue. See Marshall v. Daniel Construction Co., 563 F. 2d 707 (CA5 1977); Marshall v. Certified Welding Corp., No. 77-2048 (CA10 Dec. 28, 1978). That question, as stated at the outset of this opinion, is whether the Secretary’s regulation authorizing employee “self-help” in some circumstances, 29 CFR § 1977.12 (b)(2) (1979), is permissible under the Act.

II

The Act itself creates an express mechanism for protecting workers from employment conditions believed to pose an emergent threat of death or serious injury. Upon receipt of an employee inspection request stating reasonable grounds to believe that an imminent danger is present in a workplace, OSHA must conduct an inspection. 29 U. S. C. § 657 (f)(1). In the event this inspection reveals workplace conditions or practices that “could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by” the Act, 29 U. S. C. § 662 (a), the OSHA inspector must inform the affected employees and the employer of the danger and notify them that he is recommending to the Secretary that injunctive relief be sought. § 662 (c). At this juncture, the Secretary can petition a federal court to restrain the conditions or practices giving rise to the imminent danger. By means of a temporary restraining order or preliminary injunction, the court may then require the employer to avoid, correct, or remove the danger or to prohibit employees from working in the area. § 662 (a).

To ensure that this process functions effectively, the Act expressly accords to every employee several rights, the exercise of which may not subject him to discharge or discrimination. An employee is given the right to inform OSHA of an imminently dangerous workplace condition or practice and request that OSHA inspect that condition or practice. 29 U. S. C. § 657 (f) (1) . He is given a limited right to assist the OSHA inspector in inspecting the workplace, §§ 657 (a)(2), (e), and (f)(2), and the right to aid a court in determining whether or not a risk of imminent danger in fact exists. See § 660 (c)(1). Finally, an affected employee is given the right to bring an action to compel the Secretary to seek injunctive relief if he believes the Secretary has wrongfully declined to do so. § 662 (d).

In the light of this detailed statutory scheme, the Secretary is obviously correct when he acknowledges in his regulation that, “as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace.” By providing for prompt notice to the employer of an inspector’s intention to seek an injunction against an imminently dangerous condition, the legislation obviously contemplates that the employer will normally respond by voluntarily and speedily eliminating the danger. And in the few instances where this does not occur, the legislative provisions authorizing prompt judicial action are designed to give employees full protection in most situations from the risk of injury or death resulting from an imminently dangerous condition at the worksite.

As this case illustrates, however, circumstances may sometimes exist in which the employee justifiably believes that the express statutory arrangement does not sufficiently protect him from death or serious injury. Such circumstances will probably not often occur, but such a situation may arise when (1) the employee is ordered by his employer to work under conditions that the employee reasonably believes pose an imminent risk of death or serious bodily injury, and (2) the employee has reason to believe that there is not sufficient time or opportunity either to seek effective redress from his employer or to apprise OSHA of the danger.

Nothing in the Act suggests that those few employees who have to face this dilemma must rely exclusively on the remedies expressly set forth in the Act at the risk of their own safety. But nothing in the-Act explicitly provides otherwise. Against this background of legislative silence, the Secretary has exercised his rulemaking power under 29 U. S. C. § 657 (g)(2) and has determined that, when an employee in good faith finds himself in such a predicament, he may refuse to expose himself to the dangerous condition, without being subjected to “subsequent discrimination” by the employer.

The question before us is whether this interpretative regulation constitutes a permissible gloss on the Act by the Secretary, in light of the Act’s language, structure, and legislative history. Our inquiry is informed by an awareness that the regulation is entitled to deference unless it can be said not to be a reasoned and supportable interpretation of the Act. Skidmore v. Swift & Co., 323 U. S. 134, 139-140. See Ford Motor Credit Co. v. Milhollin, 444 U. S. 555; Mourning v. Family Publications Service, Inc., 411 U. S. 356.

A

The regulation clearly conforms to the fundamental objective of the Act — to prevent occupational deaths and serious injuries. The Act, in its preamble, declares that its purpose and policy is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources. . . .” 29 U. S. C. § 651 (b). (Emphasis added.)

To accomplish this basic purpose, the legislation’s remedial orientation is prophylactic in nature. See Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U. S. 442, 444-445. The Act does not wait for an employee to die or become injured. It authorizes the promulgation of health and safety standards and the issuance of citations in the hope that these will act to prevent deaths or injuries from ever occurring. It would seem anomalous to construe an Act so directed and constructed as prohibiting an employee, with no other reasonable alternative, the freedom to withdraw from a workplace environment that he reasonably believes is highly dangerous.

Moreover, the Secretary’s regulation can be viewed as an appropriate aid to the full effectuation of the Act’s “general duty” clause. That clause provides that “[e]ach employer... .shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U. S. C. § 654 (a)(1). As the legislative history of this provision reflects it was intended itself to deter the occurrence of occupational deaths and serious injuries by placing on employers a mandatory obligation independent of the specific health and safety standards to be promulgated by the Secretary... Since.OSHA inspectors cannot be present around the clock in every workplace, the Secretary's regulation ensures that employees will in all circumstances enjoy the rights afforded them by the “general duty” clause.

The regulation thus on its face appears to further the overriding purpose of the Act, and rationally to complement its remedial scheme. In the absence of some contrary indication in the legislative history, the Secretary’s regulation must, therefore, be upheld, particularly when it is remembered that safety legislation is to be liberally construed to effectuate the congressional purpose. United States v. Bacto-Unidisk, 394 U. S. 784, 798; Lilly v. Grand Trunk R. Co., 317 U. S. 481, 486.

B

In urging reversal of the judgment before us, the petitioner relies primarily on two aspects of the Act’s legislative history.

1

Representative Daniels of New Jersey sponsored one of several House bills that led ultimately to the passage of the Act. As reported to the House by the Committee on Education and Labor, the Daniels bill contained a section that was soon dubbed the “strike with pay” provision. This section provided that employees could request an examination by the Department of Health, Education, and Welfare (HEW) of the toxicity of any materials in their workplace. If that examination revealed a workplace substance that had “potentially toxic or harmful effects in such concentration as used or found,” the employer was given 60 days to correct the potentially dangerous condition. Following the expiration of that period, the employer could not require that an employee be exposed to toxic concentrations of the substancé unless the employee was informed of the hazards and symptoms associated with the substance, the' employee was instructed in the proper precautions for dealing with the substance, and the employee was furnished with personal protective equipment. If these conditions were not met, an employee could “absent himself from such risk of harm for the period necessary to avoid such danger without loss of regular compensation for such period.”

This provision encountered stiff opposition in the House. Representative Steiger of Wisconsin introduced a substitute bill containing no “strike with pay” provision. In response, Representative Daniels offered a floor amendment that, among other things, deleted his bill's “strike with pay” provision. He suggested that employees instead be afforded the right to request an immediate OSHA inspection of the premises, a right which the Steiger bill did not provide. The House ultimately adopted the Steiger bill.

The bill that was reported to and, with a few amendments, passed by the Senate never contained a “strike with-pay” provision. It did, however, give employees the means by which they could request immediate Labor Department inspections. These two characteristics of the bill were underscored on the floor of the Senate by Senator Williams, the bill's sponsor.

After passage of the Williams bill by the Senate, it and the Steiger bill were submitted to a Conference Committee. There, the House acceded to the Senate bill’s inspection request provisions.

The petitioner reads into this legislative history a congressional intent incompatible with an administrative interpretation of the Act such as is embodied in the regulation at issue in this case. The petitioner argues that Congress’ overriding concern in rejecting the “strike with pay” provision was to. avoid giving employees a unilateral authority to walk off the job which they might abuse in order to intimidate or harass their employer. Congress deliberately chose instead, the petitioner maintains, to grant employees the power to request immediate administrative inspections of the workplace which could in appropriate cases lead to coercive judicial remedies. As the petitioner views the regulation, therefore, it gives to workers precisely what Congress determined to withhold from them.

We read the legislative history differently. Congress rejected a provision that did not concern itself at all with conditions posing real and immediate threats of death or severe injury. The remedy which the rejected provision furnished employees could have been invoked only after 60 days had passed following HEW’s inspection and notification that improperly high levels of toxic substances were present in the workplace. Had that inspection revealed employment conditions posing a threat of imminent and grave harm, the Secretary of Labor would presumably have requested, long before expiration of the 60-day period, a court injunction pursuant to other provisions of the Daniels bill. Consequently, in rejecting the Daniels bill’s “strike with pay” provision, Congress was not rejecting a legislative provision dealing with the highly perilous and fast-moving situations covered by the regulation now before us.

It is also important to emphasize that what primarily troubled Congress about the Daniels bill’s “strike with pay” provision was its requirement that employees be paid their regular salary after having properly invoked their right to refuse to work under the section. It is instructive that virtually every time the issue of an employee's right to absent himself from hazardous work was discussed in the legislative debates, it was in the context of the employee’s right to continue to receive his usual compensation.

When it rejected the “strike with pay” concept, therefore, Congress very clearly meant to reject a law unconditionally imposing upon employers an obligation to continue to pay their employees their regular paychecks when they absented themselves from work for reasons of safety. But the regulation at issue here does not require employers to pay workers who refuse to perform their assigned tasks in the face of imminent danger. It simply provides that in such cases the employer may not “discriminate” against the employees involved. An employer “discriminates” against an employee only when he treats that employee less favorably than he treats others similarly situated.

2

The second aspect of the Act’s legislative history upon which the petitioner relies is the rejection by Congress of provisions contained in both the Daniels and the Williams bills that would have given Labor Department officials, in imminent-danger situations, the power temporarily to shut down all or part of an employer’s plant. These provisions aroused considerable opposition in both Houses of Congress. The hostility engendered in the House of Representatives led Representative Daniels to delete his version of the provision in proposing amendments to his original bill. The Steiger bill that ultimately passed the House gave the Labor Department no such authority. The Williams bill, as approved by the Senate, did contain an administrative shutdown provision, but the Conference Committee rejected this aspect of the Senate bill.

The petitioner infers from these events a congressional will hostile to the regulation in question here. The regulation, the petitioner argues, provides employees with the very authority to shut down an employer’s plant that was expressly denied a more expert and objective United States Department of Labor.

As we read the pertinent legislative history, however, the petitioner misconceives the thrust of Congress’ concern. Those in Congress who prevented passage of the administrative shutdown provisions in the Daniels and Williams bills were opposed to the unilateral authority those provisions gave to federal officials, without any judicial safeguards, drastically to impair the operation of an employer’s business. Congressional opponents also feared that the provisions might jeopardize the Government’s otherwise neutral role in labor-management relations.

Neither of these congressional concerns is implicated by the regulation before us. The regulation accords no authority to Government officials. It simply permits private employees of a private employer to avoid workplace conditions that they believe pose grave dangers to their own safety. The employees have no power under the regulation to order their employer to correct the hazardous condition or to clear the dangerous workplace of others. Moreover, any employee who acts in reliance on the regulation runs the risk of discharge or reprimand in the event a court subsequently finds that he acted unreasonably or in bad faith. The regulation, therefore, does not remotely resemble the legislation that Congress rejected.

c

For these reasons we conclude that 29 CFR § 1977.12 (b) (2) (1979) was promulgated by the Secretary in the valid exercise of his authority under the Act. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

       84 Stat. 1590, as amended, 92 Stat. 183, 29 U. S. C. § 651 et seq. (1976 ed. and Supp. II).

       Section 11 (c)(1) of the Act, 84 Stat. 1603, 29 U. S. C. § 660 (c)(1), provides in full:

       The regulation, 29 CFR § 1977.12 (1979), provides in full:
      “(a) In’addition to protecting employees who file complaints, institute proceedings, or testify in .proceedings under or related to the Act, section 11 (c) also protects employees from discrimination occurring because of the exercise 'of any right afforded by this Act.’ Certain rights are explicitly provided in the Act; for example, there is a right to participate as a party in enforcement proceedings (sec. 10). Certain other rights exist by necessary implication. For example, employees may request information from the Occupational Safety and Health Administration; such requests would constitute the exercise of a right afforded by the Act. Likewise, employees interviewed by agents of the Secretary in the course of inspections or investigations could not subsequently be discriminated against because of their cooperation.
      “(b)(1) On the other hand, review of the Act and examination of the legislative history discloses that, as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act wiE ordinarily be corrected by the employer, once brought lo his attention. If corrections are not accomplished, or if there is dispute about the existence of a hazard, the employee wiE normally have opportunity to request inspection of the workplace pursuant to section 8 (f) of the Act, or to seek the assistance of other pubEc agencies which have responsibEity in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11 (c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.
      “(2) However, occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would' be protected • against subsequent discrimination. The condition causing the employee’s apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.”

       As a result of this fatality, the Secretary conducted an investigation that led to the issuance of a citation charging the company with maintaining an unsafe walking and working surface in violation of 29 U. S. C. § 654 (a)(1). The citation required immediate abatement of the hazard and proposed a $600 penalty. Nearly five years following the accident, the Occupational Safety and Health Review Commission affirmed the citation, but decided to permit the petitioner six months in which to correct the unsafe condition. Whirlpool Corp., 1979 CCH OSHD ¶ 23,552. A petition to review that decision is pending in the United States Court of Appeals for the District of Columbia Circuit.

       The record does not disclose the substance of this conversation beyond the fact that it concerned the safety of the guard screen.

       This order appears to have been in direct violation of the outstanding company directive that maintenance work was to be accomplished without stepping on the screen apparatus.

       Both employees apparently returned to work the following day without further incident.

       See n. 2, supra.

       See n. 3, supra.

       In its petition for certiorari, the petitioner did not cite this aspect of the Court of Appeals’ decision as raising a question for review. Accordingly, the issue of whether the regulation covers the particular circumstances of this ease is not before the Court. This Court’s Rule 23 (1) (c) ; General Pictures Co. v. Electric Co., 304 U. S. 175, 177-179.

       These usual enforcement procedures involve the issuance of citations and imposition of penalties. When an OSHA inspection reveals a violation of 29 U. S. C. § 654 or of any standard promulgated under the Act, the Secretary may issue a citation for the alleged violation, fix a reasonable time for the dangerous condition’s abatement, and propose a penalty. §§ 658 (a), 659 (a), 666. The employer may contest the citation and proposed penalty. §§ 659 (a), (c). Should he do so, the effective date of the abatement order is postponed until the completion of all administrative proceedings initiated in good faith. §§ 659 (b), 666 (d). Such proceedings may include a hearing before an administrative law judge and review by the Occupational Safety and Health Review Commission. §§ 659 (c), 661 (i).

       Such an order may continue pending the consummation of the Act’s normal enforcement proceedings. § 662 (b).

       Should the Secretary determine that “there are no reasonable grounds to believe that a violation or danger exists be shall notify the em-ployefe] ... of such determination.” § 657 (f)(1).

       See n. 3, supra.

       The petitioner has raised no issue concerning whether or not this regulation was promulgated in accordance with the procedural requirements of the Administrative Procedure Act (APA), 5 U. S. C. § 553. Thus, we accept the Secretary’s designation of the regulation as “interpretative,” and do not consider whether it qualifies as an “interpretative rule” within the meaning of the APA, 5 U. S. C. § 553 (b) (A).

       The Act’s legislative history contains numerous references to the Act’s preventive purpose and to the tragedy of each individual death or accident. See, e. g., S. Rep. No. 91-1282, p. 2 (1970) (hereinafter S. Rep.), Leg. Hist. 142; 116 Cong. Rec. 37628 (1970), Leg. Hist. 516-517 (Sen. Nelson); 116 Cong. Rec. 37628, 37630 (1970), Leg. Hist. 518, 522 (Sen. Cranston); 116 Cong. Rec. 37630 (1970), Leg. Hist. 522-523 (Sen. Randolph); H. R. Rep. No. 91-1291, pp. 14, 23 (1970) (hereinafter H. R. Rep.), Leg. Hist. 844, 853; 116 Cong. Rec. 38366 (1970), Leg. Hist. 978 (Rep. Young); 116 Cong. Rec. 38367-38368 (1970), Leg. Hist. 981 (Rep. Anderson); 116 Cong. Rec. 38386 (1970), Leg. Hist. 1031, 1032 (Rep. Dent); 116 Cong. Rec. 42203 (1970), Leg. Hist. 1210 (Rep. Daniels). As stated by Senator Yarborough, a sponsor of the Senate bill:
      “We are talking about people’s lives, not the indifference of some cost accountants. We are talking about assuring the men and women who work in our plants and factories that they will go home after a day’s work with their bodies intact.” 116 Cong. Rec. 37625 (1970), Leg. Hist. 510.
      House and Senate debates are reprinted, along with the House, Senate, and Conference Reports, in a one-volume Committee Print entitled Legislative History of the Occupational Safety and Health Act of 1970, Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess. (June 1971) (cited supra and hereafter as Leg. Hist.).

       See S. Rep. 9-10, Leg. Hist. 149-150; H. R. Rep. 21-22, Leg. Hist. 851-852.

       It is also worth noting that the Secretary’s interpretation of 29 U. S. C. § 660 (c)(1) conforms to the interpretation that Congress clearly wished the courts to give to the parallel antidiscrimination provision of the Federal Mine Safety and Health Act of 1977; 30 U. S. C. § 801 et seq. (1976 ed. and Supp. II). The legislative history of that provision, 30 U. S. C. §815 (c)(1) (1976 ed., Supp. II), establishes that Congress intended it to protect “the refusal to work in conditions which are believed to be unsafe or unhealthful.” S. Rep. No. 95-181, p. 35 (1977). See id., at 36; 123 Cong. Rec. 20043-20044 (1977) (remarks of Sen. Church, Sen. Williams, Sen. Javits).

       H. R. 16785, 91st Cong., 2d Sess. (1970), Leg. Hist. 893-976 (bill as reported to the House). See H. R. Rep., Leg. Hist. 831.

       Section 19(a)(5) of H. R. 16785, supra, Leg. Hist. 969-970 (as reported to the House floor) provided in relevant part:
      “The Secretary of Health, Education, and Welfare shall publish ... a list of all known or potentially toxic substances and the concentrations at which such toxicity is known to occur; and shall determine following a request by any employer or authorized representative of any group of employees whether any substance normally found in the working place has potentially toxic or harmful effects in such concentration as used or found; and shall submit such determination both to employers and affected employees as soon as possible. Within sixty days of such determination by the Secretary of Health, Education, and Welfare of potential toxicity of any substance, an employer shall not require any employee to be exposed to such substance designated above in toxic or greater concentrations unless it is accompanied by information, made available to employees, by label or other appropriate means, of the known hazards or toxic or long-term ill effects, the nature of the substance, and the signs, symptoms, emergency treatment and proper conditions and precautions of safe use, and personal protective equipment is supplied which allows established work procedures to be performed with such equipment, or unless such exposed employee may absent himself from such risk of harm for the period necessary to avoid such danger without loss of regular compensation for such period.”
      The Committee Report explained the provision as follows:
      “There is still a real danger that an employee may be economically coerced into self-exposure in order to earn his livelihood, so the bill allows an employee to absent himself from that specific danger for the period of its duration without loss of pay. . . . Nothing herein restricts the right of the employer, except as he is obligated under other agreements, to assign a worker to other non-prohibited work during this time. This should eliminate possible abuse by allowing the employer to avoid payment for work not performed.” H. R. Rep. 30, Leg. Hist. 860.

       H. R. 19200, 91st Cong., 2d Sess. (1970), Leg. Hist. 763-830 (bill as originally introduced). See H. Res. 1218, 91st Cong., 2d Sess. (1970), Leg. Hist. 977.

       116 Cong. Rec. 38376, 38377-38378, 38707 (1970), Leg. Hist. 1004, 1005, 1008-1009, 1071 (Rep. Daniels). See 116 Cong. Rec. 38369 (1970), Leg. Hist. 986 (Rep. Perkins). Representative Daniels explained to the House why he was proposing his amendment:
      “The provision on employees not losing pay was so generally misunderstood that we have decided to drop it. We have no provision for payment of employees who want to absent themselves from risk of harm; instead, we have this amendment which enables employees subject to a risk of harm to get the Secretary into the situation quickly. Instead of making provisions for employees when their employer is not providing a safe workplace, we have strengthened the enforcement by this amendment provision to try and minimize the amount that employees will be subject to the risk of harm.” 116 Cong. Rec. 38377-38378 (1970), Leg. Hist. 1009.

       116 Cong. Rec. 38715 (teller vote), 38723-38724 (rollcall vote) (1970), Leg. Hist. 1091, 1112-1115.
      Representative Daniels’ proposed amendments were never acted upon. His original bill was voted down in favor of the Steiger bill. See 116 Cong. Rec. 38704-38705 (1970), Leg. Hist. 1064 (the Chairman and Rep. Perkins); 116 Cong. Rec. 38707 (1970), Leg. Hist. 1072 (Rep. O’Hara).

       S. 2193, 91st Cong., 2d Sess. (1970), Leg. Hist. 204-295 (bill as reported to Senate by Senate Committee on Labor and Public Welfare). See S. Rep., Leg. Hist. 141.

       See S. 2193, supra, § 8 (f) (1), Leg. Hist. 252-253.

       “[D]espite some wide-spread contentions to the contrary, . . . the committee bill does not contain a so-called strike-with-pay provision. Rather than raising a possibility for endless disputes over whether employees were entitled to walk off the job with full pay, it was decided in committee to enhance the prospects of compliance by the employer through such means as giving the employees the right to request a special Labor Department investigation or inspection.” 116 Cong. Rec. 37326 (1970), Leg. Hist. 416.

       H. R. Conf. Rep. No. 91-1765, pp. 37-38 (1970), Leg. Hist. 1190-1191. See 29 U. S. C. §657 (f).

       See H. R. 16785, supra n. 19, § 12 (b), Leg. Hist. 956 (bill as reported to House).

       Congress’ concern necessarily was with the provision’s compensation requirement. The law then, as it does today, already afforded workers a right, under certain circumstances, to walk off their jobs when faced with hazardous conditions. See 116 Cong. Rec. 42208 (1970), Leg. Hist. 1223-1224 (Rep. Scherle) (reference to Taft-Hartley Act). Under Section 7 of the National Labor Relations Act, 29 U. S. C. § 157, employees have a protected right to strike over safety issues. See NLRB v. Washington Aluminum Co., 370 U. S. 9. Similarly, Section 502 of the Labor Management Relations Act, 29 U. S. C. § 143, provides that “the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees [shall not] be deemed a strike.” The effect of this section is to create an exception to a no-strike obligation in a collective-bargaining agreement. Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 385.
      The existence of these statutory rights also makes clear that the Secretary’s regulation does not conflict with the general pattern of federal labor legislation in the area of occupational safety and health. See also 29 CFR § 1977.18 (1979).

       See 116 Cong. Rec. 37326 (1970), Leg. Hist. 416 (Sen. Williams); 116 Cong. Rec. 38369 (1970), Leg. Hist. 986 (Rep. Perkins); 116 Cong. Rec. 38376, 38377-38378, 38707 (1970), Leg. Hist. 1005, 1009, 1071 (Rep. Daniels); 116 Cong. Rec. 38379 (1970), Leg. Hist. 1011 (Rep. Randall); 116 Cong. Rec. 38391 (1970), Leg. Hist. 1046 (Rep. Feighan); 116 Cong. Rec. 38714 (1970), Leg. Hist. 1089 (Rep. Horton).
      The petitioner cites two passages in the legislative debates that, at first blush, appear to suggest that Congress was also concerned with employee walkouts not accompanied by pay. One is a statement by Representative Cohelan, a supporter of the Daniels bill, that “a comprehensive occupational safety and health program . . . must permit the worker to leave his post whenever and wherever conditions exist that endanger his health or safety.” 116 Cong. Rec. 38375 (1970), Leg. Hist. 1001. The other is a statement by another Member that the Daniels bill did not authorize “strikes without pay.” 116 Cong. Rec. 38708 (1970), Leg. Hist. 1075. Read in context, however, it is clear that both statements were referring to the “strike with pay” provision contained in the Daniels bill.

       Deemer and Cornwell were clearly subjected to “discrimination” when the petitioner placed reprimands in their réspective employment files. Whether the two employees were also discriminated against when they were denied pay for the approximately six hours they did not work on July 10, 1974, is a question not now before us. The District Court dismissed the complaint without indicating what relief it thought would have been appropriate had it upheld the Secretary’s regulation. The Court of Appeals expressed no view concerning the limits of the relief to which the Secretary might ultimately be entitled. On remand, the District Court will reach this issue.

       The version contained in the Daniels bill would have authorized the Secretary to issue a shutdown order of no more than five days’ duration. See H. R. 16785, supra n. 19, § 12 (a), Leg. Hist. 955-956 (bill as reported to the House); H. R. Rep. 25, Leg. Hist. 855.
      As reported to the Senate, the version contained in the Williams bill limited the permissible duration of the administrative order to 72 hours and required that a Regional Director of the Labor Department concur in the order. S. 2193, supra n. 24, § 11 (b), Leg. Hist. 263-264. See S. Rep. 12-13, Leg. Hist. 152-153; S. Rep. 56-57, Leg. Hist. 195-196 (individual views of Sen. Javits). On the floor of the Senate, amendments were adopted that would have required the Labor Department official authorizing the inspector’s actions to be an official appointed with the advice and consent of the Senate and that would have mandated that the employer be given prior notice of the reasons for the shutdown. 116 Cong. Rec. 37621-37622 (1970), Leg. Hist. 499-500; 116 Cong. Rec. 37624-37625 (1970), Leg. Hist. 508-509. See S. 2193, supra n. 24, §12 (b), Leg. Hist. 562-563 (bill as passed by Senate).

       116 Cong. Rec. 38372, 38376, 38378, 38707 (1970), Leg. Hist. 993, 1005, 1009-1010, 1011, 1071 (Rep. Daniels). As Representative Daniels explained:
      “[B]usiness groups have expressed great fears about the potential for abuse. They believe that the power to shut down a plant should not be vested in an inspector. While there is no documentation for this fear, we recognize that it is very prevalent. The Courts have shown their capacity to respond quickly in emergency situations, and we believe that the availability of temporary restraining orders will be sufficient to deal with emergency situations. Under the Federal rules of civil procedure, these orders can be used ex parte. If the Secretary uses the authority that he is given efficiently and expeditiously, he should be able to get a court order within a matter of minutes rather than hours.” 116 Cong. Rec. 38378 (1970), Leg. Hist. 1009-1010.

       H. R. 19200, supra n. 21, § 12, Leg. Hist. 796-798.

       H. R. Conf. Rep. No. 91-1765, supra n. 27, at 40, Leg. Hist. 1193.

       See 116 Cong. Rec. 35607, 37602 (1970), Leg. Hist. 299, 452-453 (Sen. Saxbe); 116 Cong. Rec. 37338 (1970), Leg. Hist. 425 (Sen. Dominick) ; 116 Cong. Rec. 37602 (1970), Leg. Hist. 453-454 (Sen. Schweiker); 116 Cong. Rec. 41763 (1970), Leg. Hist. 1149 (Sen. Prouty); H. R. Rep. 55-57, Leg. Hist. 885-887 (minority report); 116 Cong. Rec. 38368 (1970), Leg. Hist. 983 (Rep. Anderson); 116 Cong. Rec. 38372, 38702 (1970), Leg. Hist. 992, 1058 (Rep. Steiger); 116 Cong. Rec. 38378-38379 (1970), Leg. Hist. 1011-1012 (Rep. Randall); 116 Cong. Rec. 38393 (1970), Leg. Hist. 1050 (Rep. Michel); 116 Cong. Rec. 38394 (1970), Leg. Hist. 1052 (Rep. Broomfield); 116 Cong. Rec. 38704 (1970), Leg. Hist. 1062 (Rep. Sikes); 116 Cong. Rec. 38713 (1970), Leg. Hist. 1087 (Rep. Robison); 116 Cong. Rec. 42203.(1970), Leg. Hist. 1210 (Rep. Daniels).

       See 116 Cong. Rec. 37346 (1970), Leg. Hist. 448 (Sen. Tower); H. R. Rep. 55-57, Leg. Hist. 885-887 (minority report); 116 Cong. Rec. 38393 (1970), Leg. Hist. 1050 (Rep. Michel). Some of these Members of Congress expressed particular fears over the possible pressures which might be brought to bear on an inspector during a strike.


author: Mr. Justice Marshall Mr. Justice Powell, Mr. Justice Rehnquist,

text:
    UNITED STATES v. CLARK, GUARDIAN
    No. 78-1513.
    Argued October 31, 1979
    Decided February 26, 1980
    Marshall, J., delivered the opinion of the Court, in which BrennaN, White, Blackmun, and Stevens, JJ., joined. Powell, J., filed an opinion concurring in the judgment, in which Burger, C. J., joined, post, p. 34. Rehnquist, J., filed a dissenting opinion, in which Stewart, J., joined, post, p. 36.

      Harriet S. Shapiro argued the cause for the United States. With her on the briefs were Solicitor General McCree, Acting Assistant Attorney General Schiffer, and Deputy Solicitor General Easterbrook.

      Edward L. Merrigan argued the cause and filed a brief for appellee.

         Toby S. Edelman, Edward C. King, and Bruce K. Miller filed a brief for Barbara Jenkins as amicus curiae urging affirmance.

   Mr. Justice Marshall

delivered the opinion of the Court.

This appeal presents the question whether illegitimate children of a federal civil service employee are entitled to survivors’ benefits under the Civil Service Retirement Act when the children once lived with the employee in a familial relationship, but were not living with the employee at the time of his death.

I

George Isaacson and the appellee Patricia Clark lived together from 1965 through 1971 without benefit of matrimony. They had two children, Shawn and Tricia Clark, born in 1968 and 1971, respectively, and the four lived together as a family. After the appellee and Isaacson separated, the appellee filed a state-court action in Montana seeking a determination of the paternity of the children. In June 1972, the Montana court issued a decree determining that Isaacson was the natural father of the children and ordering him to contribute to their support. Isaacson provided monthly support payments up to the time of his death in 1974.

At the time of. death, Isaacson was a federal employee covered by the Civil Service Retirement Act, 5 U. S. C. § 8331 et seq. The Act provides that each surviving child of a deceased federal employee is entitled to a survivors’ annuity. 5 U. S. C. § 8341 (e)(1). All legitimate and adopted children under 18 years of age qualify for these benefits, but stepchildren or “recognized natural” children under 18 may recover only if they “lived with the employee ... in a regular parent-child relationship.” 5 U. S. C. § 8341 (a)(3)(A). In September 1974, the Civil Service Commission’s Bureau of Retirement, Insurance, and Occupational Health denied the appellee’s application for such annuities for Shawn and Tricia. The Bureau held that 5 U. S. C. § 8341 (a) (3) (A) bars recovery for otherwise qualified children born out of wedlock who, like Shawn and Tricia, were not living with the employee at the time of his death. The Commission’s Board of Appeals and Review affirmed.

The appellee then filed this action in the Court of Claims on behalf of her children. She argued that 5 U. S. C. § 8341 (a)(3)(A) allows recovery where, as here, the recognized natural children had once lived with the employee in a parent-child relationship. Alternatively she contended that, if the Commission’s interpretation of 5 U. S. C. § 8341 (a) (3) (A) was correct, that provision violated the equal protection component of the Due Process Clause of the Fifth Amendment because it impermissibly discriminated against illegitimate children.

The Court of Claims granted the appellee’s motion for summary judgment. 218 Ct. Cl. 705, 590 F. 2d 343. Ignoring the statutory issue, the court granted relief on the authority of its earlier decision in Gentry v. United States, 212 Ct. Cl. 1, 546 F. 2d 343 (1976), rehearing denied, 212 Ct. Cl. 27, 551 F. 2d 852 (1977), which held that the “lived with” requirement of 5 U. S. C. § 8341 (a) (3) (A) unconstitutionally discriminated against illegitimate children. We postponed consideration of our jurisdiction pending hearing on the merits, 441 U. S. 960 (1979), and now affirm on the statutory ground presented to but not addressed by the Court of Claims.

II

The Civil Service Retirement Act provides survivors’ annuities to all legitimate children, but grants the same benefits to children born out' of wedlock only if they “lived with the employee ... in a regular parent-child relationship.” Such a classification based on illegitimacy is unconstitutional unless it bears “an evident and substantial relation to the particular .. . interests this statute is designed to serve.” Lalli v. Lalli, 439 U. S. 259, 268 (1978) (plurality opinion); see id., at 279 (Brennan, J., dissenting). See also Trimble v. Gordon, 430 U. S. 762, 767 (1977). The Government’s asserted justification for the classification — that it is an administratively convenient means of identifying children who actually were deprived of support by the employee’s death — is itself open to constitutional question, since the statute does not condition benefits to legitimate children on such a showing.

It is well settled that this Court will not pass on the constitutionality of an Act of Congress if a construction of the statute is fairly possible by which the question may be avoided.. E. g., Califano v. Yamasaki, 442 U. S. 682, 693 (1979); New York City Transit Authority v. Beazer, 440 U. S. 568, 582, and n. 22 (1979); Machinists v. Street, 367 U. S. 740, 749-750 (1961); Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944). Where both .a constitutional issue and an issue of statutory construction are raised, we are not, of course, foreclosed from .considering the statutory question merely because the lower court failed to address it. Califano v. Yamasaki, supra, at 693; University of California Regents v. Bakke, 438 U. S. 265, 328 (1978) (opinion of Brennan, White, Marshall, and Blackmun, JJ.); id., at 281 (opinion of Powell, J.); id., at 411-412 (opinion of Stevens, J.). Accordingly, we turn to the statute to determine whether resolution of the constitutional question is necessary to the disposition of this case.

Shawn and Tricia Clark were denied annuities on the ground that they did not meet the statutory requirement that they “lived with the employee ... in a regular parent-child relationship.” The appellee contended that her children did meet the requirement because they had lived with the decedent as a family from their birth through 1971. If the appellee’s construction of the statutory language is correct, the children are entitled to survivors’ annuities and decision of the constitutional question is unnecessary. The Civil Service Commission, however, has construed the “lived with” language to require that the children be living with the employee at the time of the employee’s death.

When the statutory language is considered on its face, the appellee’s reading is at least as plausible as that of the Government. Shawn and Tricia had “lived with” their father, and we believe those words would not ordinarily imply a temporal limitation. Moreover, Congress has demonstrated in other social welfare legislation that it knows how to restrict the class of eligible beneficiaries to those living with an individual at a particular time.

We can find nothing in the legislative history of the statute to indicate that appellee’s construction of the statute is out of harmony with the congressional intent. The original enactment in 1948 made an annuity payable to “an unmarried child, including a dependent stepchild or an adopted child, under the age of eighteen years, or such unmarried child who because of physical or mental disability is incapable of self-support.” Act of Feb. 28, 1948, § 11, 62 Stat. 55. The amount of the annuity depended on whether another parent survived. Although children born out of wedlock were not expressly included, the provision was seemingly broad enough to cover them. The Government argues that, in granting annuities to surviving children, Congress intended to provide funds to replace support lost by the wage earner’s dependents. The Government views the statutory scheme as designed to pay benefits only to those children Congress thought most likely to have been dependent on the wage earner, and to take account of the likelihood of supplementary support from the other parent. We note, however, that only stepchildren were required to show dependency.

In 1956, Congress amended the definition of an entitled child to include “an unmarried child, including (1) an adopted child, and (2) a stepchild or recognized natural child who received more than one-half his support from and lived with the . . . employee in a regular parent-child relationship.” Act of July 31, 1956, Title IV, § 1 (j), 70 Stat. 744. For the first time children born out of wedlock were explicitly included, but their eligibility was made subject both to the “lived with” requirement and to the dependency requirement originally applicable only to stepchildren.

The legislative history is devoid of any indication whether Congress intended that annuities could be recovered by all recognized natural children who had once lived with the employee in a familial relationship, or only by such children who were living with the employee at the time of death. Nor do the congressional materials illuminate the purpose of the “lived with” requirement. The Government defends the provision as a rational indicator of both dependency and parentage. An illegitimate child who lived with the natural parent, according to this view, is both more likely to have received support from the parent and more likely to be the true issue of that parent than is any illegitimate child who lived apart from the natural parent. It seems unlikely that Congress viewed the requirement as a means of ascertaining either dependency or parentage, however, since the statute also required the child to prove both that he had received more than one-half of his support from the deceased employee and that he was the employee’s “recognized natural child.” Those provisions speak directly to the concerns raised by the Government, and the additional requirement that the child must have lived with the parent would therefore .be superfluous regardless of whether it mandated that the child must have lived with the parent at the time of the parent’s death rather than at some other time.

The Government also urges that Congress intended the “lived with” requirement to serve as a means of thwarting fraudulent claims of dependency or parentage, and to promote efficient administration by facilitating the prompt identification of eligible annuitants. It is evident from the facts of this case, however, that the classification is not narrowly tailored as a means of furthering either goal. As we recognized in Jimenez v. Weinberger, 417 U. S. 628, 636 (1974), the prevention of fraud is a legitimate goal, but it does not necessarily follow “that the blanket and conclusive exclusion of [appellee’s] subclass of illegitimates is reasonably related to the prevention of spurious claims.” Thus, even if the “lived with” requirement is assumed to serve as a device to prevent fraud or to promote efficient administration, it raises serious equal protection problems that this Court must seek to avoid by adopting a saving statutory construction not at odds with fundamental legislative purposes.

In sum, the legislative history of the 1956 amendments provides no direct guidance on the purpose of the “lived with” provision or on whether it was intended to be restricted to children living with the parent at a particular time. The less restrictive construction proposed by the appellee appears fair and reasonable in light of the language, purpose, and history of the enactment, and it avoids a serious constitutional question. Before we conclude our inquiry, however, we must consider whether a 1966 amendment to the statute affected the children’s right to recovery.

Congress enacted the 1966 amendments to the Act upon the request of the Executive Branch’s Committee on Federal Staff Retirement Systems. One of these amendments removed the requirement that children must prove they received one-half of their support from the deceased employee in order to recover survivors’ annuities. Act of July 18, 1966, Title V, § 502, 80 Stat. 300. Congress deleted the dependency requirement in order to ensure recovery for the children of female civil servants, who typically earned less than their husbands and accordingly contributed less than half of the support of their children. Congress also deleted the requirement of proof of dependency for stepchildren and “recognized natural” children, but retained the “lived with” requirement for those claimants. The reason for retaining the requirement was not clearly explained in the Cabinet Committee report, which simply stated:

“Stepchildren and natural children are eligible for ben- . efits at present only when they have been dependent on the deceased parent and living with the parent in a regular parent-child relationship. The latter requirement should be retained; but, if it is fulfilled, the benefits should be paid as for any other child, without regard to the dependency requirement.” H. R. Doc. No. 402, 89th Cong., 2d Sess., 41 (1966).

The Government views the 1966 amendment as evidence that Congress intended the “lived with” requirement to serve as a convenient method of determining whether the child received support from the deceased employee. This proposition appears implausible, since in the same sentence the Committee recommended that if the “lived with” requirement were met benefits should be paid “as for any other child, without regard to the dependency requirement.” The Committee’s use of the word “retained” is a further indication that Congress did not intend the “lived with” provision to assume a new function previously performed by the dependency requirement. Moreover, the Government’s position again unnecessarily raises the equal protection question, because legitimate children and adopted children were not required to demonstrate that they had received support from the decedent. In the absence of any persuasive evidence to the contrary, therefore, we assume that Congress’ failure to alter the “lived with” requirement likewise failed to modify the purpose of that provision as envisioned by the Congress that enacted it.

We conclude that the “lived with” requirement is satisfied when a recognized natural child has lived with the deceased employee in a “regular parent-child relationship,” regardless of whether the child was living with the employee at the time of the employee’s death. Our consideration of the language and purpose of the statute and of the available legislative history convinces us that this construction is a fair and reasonable reading of the congressional enactment. Furthermore, the construction is necessary to avoid a serious constitutional question. By so holding, we do not believe that we are creating undue administrative difficulties for the Civil Service Commission. In this case, for example, the Commission relied on the Montana court’s paternity decree and affidavits concerning when the appellee’s children lived with the deceased employee. Similar documentary evidence would be equally probative of whether an illegitimate child claiming a survivors’ annuity had ever lived with the deceased employee in a regular parent-child relationship.

The judgment of the Court of Claims is

Affirmed.

Mr. Justice Powell,

with whom The Chief Justice joins, concurring in the judgment.

The question in this case is whether the illegitimate children of a federal employee, who lived with his children after their birth and had a legal obligation to contribute to their support until his death, are eligible to receive survivors’ benefits under the Civil Service Retirement Act, 5 U. S. C. § 8331 et seq. The statutory definition of “child” under that Act includes a “recognized natural child who lived with the employee ... in a regular parent-child relationship.” 5 U. S. C. § 8341 (a) (3) (A) (ii). Because I agree that these children satisfy the statutory definition, I concur in the judgment of the Court. I write separately because I do not believe that the Court’s broad construction of the “lived with” requirement is compatible with congressional intent or necessary to avoid constitutional difficulties.

The Court recognizes that the “lived with” requirement could serve governmental purposes by providing proof of either paternity or dependence. The Court concludes that the “lived with” requirement is not designed to prove paternity because the statute separately requires that an eligible illegitimate be a “recognized natural child.” Ante, at 30. I agree.

I cannot accept so easily the Court’s further-conclusion that the “lived with” requirement was not designed to prove dependency. Although the 1966 amendment demonstrates that the “lived with” requirement cannot be interpreted to demand that more than one-half of a child’s support come from the deceased parent, it does not demonstrate that Congress intended to eliminate entirely the dependency requirement. As a matter of statutory construction and common sense, the statement that an illegitimate who fulfills the “lived with” requirement need not meet an additional dependency requirement, ante, at 32, quoting H. R. Doc. No. 402, 89th Cong., 2d Sess., 41 (1966), indicates that Congress intended the “lived with” test to serve as the functional equivalent of a dependency requirement. The Court’s assumption to the contrary deprives the “lived with” requirement of any legislative purpose. Rather than construe a statutory provision to serve no identifiable congressional goal, I would conclude that Congress intended the “lived with” requirement to serve as a means through which illegitimate children may prove actual dependency on the deceased parent.

Congress may require illegitimate children to demonstrate actual dependency even though legitimate children are presumed to be dependent, Mathews v. Lucas, 427 U. S. 495, 507-509 (1976), so long as the means by which illegitimates must demonstrate such dependency are substantially related to achievement of the statutory goal. Lalli v. Lalli, 439 U. S. 259, 275-276 (1978) (opinion of Powell, J.); see Trimble v. Gordon, 430 U. S. 762, 770-773 (1977). The possible constitutional infirmity in the Government’s construction of the statute is its assumption that only illegitimates who “lived with” a parent at the time of his death were actually dependent. Such a requirement may be unconstitutionally restrictive because, as in this case, it would bar the claims of children who lived with their father for some part of their lives, and who received support from their father until his death.

The recognition of the children’s claim in this case clearly does not frustrate the congressional intent that only dependent illegitimate children receive survivors’ annuities. I therefore would hold that children who show a continuing relationship of dependency with their father, which includes living with him in the past and receiving support from him when they lived apart, satisfy the requirement of 5 U. S. C. § 8341 (a)(3)(A)(ii). I do not believe, however, that the Court needs to find the requirement satisfied no matter when the child lived with the deceased parent. In some circumstances proof of a domestic living situation at some far distant period in the child’s life may not demonstrate actual dependency. Accordingly, I would go no further than concluding that these children have satisfied the “lived with” requirement.

Mr. Justice Rehnquist,

with whom Mr. Justice Stewart joins, dissenting.

I am in full agreement with the Court that the statutory question should have been resolved in this case prior to any application of the constitutional issue decided by the Court of Claims in Gentry v. United States, 212 Ct. Cl. 1, 546 F. 2d 343 (1976). Nor do I disagree with the Court’s construction of the statute in issue. I dissent, however, because I believe that the Court should remand the case to the Court of Claims for consideration of the statutory claim in the first instance.

Federal courts should not, of course, resolve cases on the basis of constitutional questions when a nonconstitutional ground might be available. A federal court also may not award relief on the basis of a constitutional decision absent jurisdiction conferred by Congress. When a federal court violates either of these prudential or jurisdictional limitations, our standard practice is to remand the case for consideration of the statutory question. In Youakim v. Miller, 425 U. S. 231 (1976), this Court found that a constitutional holding of a lower court might possibly be avoided by the construction of statutory requirements. The Court remanded, finding that the statutory issue might be dispositive, “but that the claim should be aired first in the District Court. Vacating the judgment and remanding the case for this purpose will require the District Court first to decide the statutory issue, . . . and if appellants prevail on that question, it will be unnecessary for either the District Court or this Court to reach the equal protection issue at all.” Id., at 236. See also Wyman v. Rothstein, 398 U. S. 275 (1970); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U. S. 129 (1946). In Richardson v. Morris, 409 U. S. 464 (1973), the District Court decided a constitutional question under an erroneous assumption of Tucker Act jurisdiction, and this Court found it necessary to remand the case so that the District Court could determine what other permissible grounds of decision may have been open to it.

The Court of Claims in this case was wrong in resolving this case on the basis of its constitutional holding, both as a matter of prudential considerations as well as jurisdiction. See United States v. Testan, 424 U. S. 392, 397-398 (1976). While the Court of Claims did have jurisdiction to entertain the statutory question presented in this case, we should have permitted it the opportunity to exercise that jurisdiction. Only this Term, we remanded a case to the Court of Claims for consideration of an issue not resolved by that court. Hatzlachh Supply Co. v. United States, 444 U. S. 460 (1980). By remanding here, we would conform the disposition of this case to our ,customary practice which recognizes the usefulness of district and appellate court opinions on the questions ultimately reviewed here, as well as the need to reserve this Court’s plenary consideration for questions still warranting final decision here after decision by another court.

       On January 1, 1979, the Civil Service Commission was abolished, and the Office of Personnel Management assumed primary responsibility for the civil service retirement program. See Civil Service Reform Act of 1978, Pub. L. 95-454, 92 Stat. 1111; Reorg. Plan No. 2 of 1978, 3 CFR 323 (1979). For convenience, throughout this opinion we shall refer to the agency administering the retirement program as the Civil Service Commission.

       The appellee contends that this Court does not have jurisdiction to entertain this appeal. We disagree.
      By an order dated January 27, 1978, the Court of Claims held that the “lived with” requirement of 5 U. S. C. § 8341 (a) (3) (A) applicable to illegitimate children violated the equal protection component of the Due Process Clause of the Fifth Amendment. The court then resolved the issue of relief and entered final judgment on November 6, 1978. The Government filed its notice of appeal on December 5, 1978.
      The appeal statute relied upon by the Government, 28 U. S. C. § 1252, provides:
      “Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.” (Emphasis added.)
      The appellee first contends that the Government failed to file a timely notice of appeal because it did not appeal the January 27,1978, decision on the liability issue. Section 1252 would have allowed the Government to seek review of this interlocutory order declaring a federal statute unconstitutional, but its permissive language providing that any party “may appeal . . . from an interlocutory or final judgment” plainly did not require the Government to appeal before final judgment was entered. Cf. United States v. Carlo Bianchi & Co., 373 U. S. 709 (1963) (review of final judgment under 28 U. S. C. § 1255 entails review of any interlocutory decisions on liability); Marconi Wireless Telegraph Co. v. United States, 320 U. S. 1, 47-48 (1943) (same); American Foreign S. S. Co. v. Matise, 423 U. S. 150 (1975) (same rule when jurisdiction based on 28 U. S. C. § 1254); Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399, 418 (1923) (same).
      The appellee also argues that no appeal will lie under 28 U. S. C. § 1252 because the Court of Claims did not declare an Act of Congress unconstitutional. To the contrary, a determination that the “lived with” requirement of 5 U. S. C. § 8341 (a) (3) (A) was unconstitutional was a necessary predicate to the relief the Court of Claims granted to the appellee’s children, and this determination of unconstitutionality may be appealed under § 1252. McLucas v. DeChamplain, 421 U. S. 21, 30 (1975); United States v. Raines, 362 U. S. 17, 20 (1960). It is irrelevant that the Court of Claims reached this holding by relying on its earlier decision in Gentry v. United States, 212 Ct. Cl. 1, 546 F. 2d 343 (1976), rehearing denied, 212 Ct. Cl. 27, 551 F. 2d 852 (1977). An appeal under §1252 lies for any federal-court decision declaring an Act of Congress unconstitutional in a civil action in which the United States is a party, not just for the first such decision. Cf. Garment Workers v. Donnelly Garment Co., 304 U. S. 243, 249 (1938).

       The lower federal courts have uniformly held that the “lived with” requirement violates the equal protection component of the Due Process Clause of the Fifth Amendment. Gentry v. United States, supra; Jenkins v. U. S. Civil Service Comm’n, 460 F. Supp. 611 (DC 1978); Proctor v. United States, 448 F. Supp. 418 (DC 1977) (three-judge court); Tenny v. United States, 441 F. Supp. 224 (ED Mo. 1977); Myers v. Commissioners of Civil Service Comm’n, Civ. No. 8682 (SD Ohio, Aug. 8, 1977).

       See 45 U. S. C. § 231e (c) (1) (i) (Railroad Retirement Act benefits payable in certain circumstances to “the widow or widower of the deceased employee who was living with such employee at the time of such employee’s death”); 42 U. S. C. § 416 (e) (Social Security Act in part defines legally adopted child as a person who “was at the time of such individual’s death living in such individual’s household”); 42 U. S. C. § 416 (h) (3) (A) (ii) (Social Security Act’s definition of qualified child is met in part when “such insured individual is shown ... to be the father of the applicant and was living with or contributing to the support of the applicant at the time such insured individual became entitled to benefits or attained age 65, whichever first occurred”).

       See Visor v. United States, Civ. No. 9922 (2) (ED Mo., Feb. 12, 1955).

       By authorizing the payment of benefits to an “unmarried child who because of physical or mental disability is incapable of self-support,” Act of Feb. 28, 1948, 62 Stat. 55, Congress apparently intended that, though disabled children over 18 years of age had to show they were unable to support themselves, they did not have to show they were dependent on the deceased parent.

       The 1956 amendments also provided that a survivors’ annuity was payable to a legitimate child with a surviving parent only if the child proved that he had received more than one-half his support from the deceased employee. Act of July 31, 1956, amending Title IV, § 10(d), 70 Stat. 754.

       See S. Rep. No. 1187, 89th Cong., 2d Sess., 5 (1966); The Federal Salary and Fringe Benefits Act of 1966: Hearings on H. R. 14122 before the Senate Committee on Post Office and Civil Service, 89th Cong., 2d Sess., 7 (1966); Joint Annual Report of the Director of the Bureau of the Budget and the Chairman of the Civil Service Commission and the Report of the Cabinet Committee on Federal Staff Retirement Systems, H. R. Doc. No. 402, 89th Cong., 2d Sess., 41 (1966).

       Two Committees of Congress, in passing on requests for legislation by the Civil Service Commission, have referred to the “lived with” requirement as a “living with” requirement. S. Rep. No. 92-527, p. 1 (1971); S. Rep. No. 1070, 89th Cong., 2d Sess., 1 (1966). See also H. R. Rep. No. 92-811, p. 3 (1972); H. R. Rep. No. 33, 89th Cong., 1st Sess., 3 (1965). We read the Committees’ statements as nothing more than acknowledgments of the Commission’s interpretation of the requirement, which was made known to each Committee by letters from the Commission. S. Rep. No. 92-527, supra, at 2-3; S. Rep. No. 1070, supra, at 3-4. In any event, the views of some Congressmen as to the construction of a statute adopted years before by another Congress have “‘very little, if any, significance.’ ” United. States v. Southwestern Cable Co., 392 U. S. 157, 170 (1968) (quoting Rainwater v. United States, 356 U. S. 590, 593 (1958)).
      The 1966 recommendation of the Cabinet Committee on Federal Staff Retirement Systems referred to the “lived with” requirement as allowing benefits to recognized natural children “when they have been . . . living with, the parent in a regular parent-child relationship.” H. R. Doc. No. 402, 89th Cong., 2d Sess., 41 (1966). This language might appear to be inconsistent with our construction of the “lived with” requirement. The language was formulated by the Executive Branch, however, not by Congress, and at most simply reflects the Civil Service Commission’s interpretation of the statute.

       We recognize that the Civil Service Commission has interpreted the “lived with” requirement to be a “living with” requirement, although the Government does not inform us whether the agency interpretation was contemporaneous with the 1956 enactment. We do not disregard this evidence of the meaning of the statute. See, e. g., Batterton v. Francis, 432 U. S. 416, 425, n. 9 (1977). In view of our analysis of the statute and its legislative history, and considering the need to avoid unnecessary constitutional adjudication, however, the agency interpretation would not be decisive even if it were contemporaneous.

       Because we hold that the Civil Service Retirement Act expressly allows the appellee’s children to receive survivors’ annuities, there is no question that the Court of Claims below had both jurisdiction to entertain their claims and authority to grant recovery. See United States v. Testan, 424 U. S. 392, 397-398 (1976); Eastport S. S. Corp. v. United States, 178 Ct. Cl. 599, 606-607, 372 F. 2d 1002, 1007-1009 (1967). In light of our holding, we need not address the Government’s argument that the Court of Claims exceeded its jurisdiction when it declared 5 U. S. C. § 8341 (a)(3)(A)’s “lived with” requirement unconstitutional, severed that requirement from the statute, and awarded relief to the appellee’s children based on the remaining language in the statute. Cf. United States v. Testan, supra.

      1 believe that the Court errs in assuming that its broad interpretation of the “lived with” requirement will always avoid constitutional difficulty. The imposition of the “lived with” requirement as a test of actual dependency may be unconstitutional in a case in which a father had always supported, but never lived with, an illegitimate child.


author: Per Curiam.

text:
    MASSACHUSETTS v. MEEHAN
    No. 78-1874.
    Argued January 9, 1980
    Decided February 26, 1980

      Barbara A. H. Smith, Assistant Attorney General of Massachusetts, argued the cause for petitioner. With her on the briefs were Francis X. Bellotti, Attorney General, and Stephen R. Delinsky, Assistant Attorney General.

      David A. Mills argued the cause for respondent. With him on the brief was Walter J. Hurley.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.