MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, APPELLANT v. BUENTA M. OWENS, ET AL. No. 84-1905 In the Supreme Court of the United States October Term, 1984 On Appeal From the United States District Court for the Central District of California Jurisdictional Statement PARTIES TO THE PROCEEDINGS The appellant is Margaret M. Heckler, the Secretary of Health and Human Services. The named appellees are Buenta M. Owens and Kenneth R. Owens. The district court certified a class, represented by those named appellees, consisting of (App., infra, 31a): (A)ll persons who (1) were divorced from an individual who was covered under the Social Security Act and who predeceased the claimant; (2) remarried at age 60 or thereafter; and (3) have filed an application in accordance with the time frames described in Pub. L. No. 95-216, Section 336(c)(1) and (2); and (4) have been or will be denied survivor's benefits, as surviving divorced spouses, for any month after December, 1978, provided that such persons (A) applied for such benefits on or after August 20, 1982, or (B) applied for such benefits prior to that date and either (i) had not received an initial decision denying those benefits prior to that date or (ii) had received an initial decision denying those benefits prior to that date and their right to seek administrative or judicial review of the denial of their benefits had not expired as of August 20, 1982. TABLE OF CONTENTS Opinions below Jurisdiction Constitutional and statutory provisions involved Statement A. The statutory and regulatory framework 1. Substantive provisions 2. Procedural provisions B. The proceedings in this case The questions are substantial Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H Appendix I Appendix J Appendix K OPINIONS BELOW The December 23, 1983 order of the district court granting the Secretary's motion for summary judgment (App., infra, 1a-12a) and the August 28, 1984 order of the district court certifying the class (App., infra, 13a-28a) are unreported. The order of the district court holding the relevant provisions of the Social Security Act unconstitutional (App., infra, 30a-43a) also is unreported. JURISDICTION The judgment of the district court (App., infra, 44a-46a) was entered on December 20, 1984, and the order of the district court denying the Secretary's motion to alter or amend the judgment was entered on February 6, 1984 (App., infra, 47a). A notice of direct appeal to this Court was filed on March 7, 1985 (App., infra, 48a), and an amended notice of appeal was filed on March 9, 1985 (App., infra, 49a). By order dated April 30, 1985, Justice Rehnquist extended the time within which to docket the appeal to and including June 5, 1985. The jurisdiction of this Court is invoked under 28 U.S.C. 1252. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Due Process Clause of the Fifth Amendment and Sections 202(e)(1)(A), (e)(4), and (f)(1)(A) and (5), and 205(g) of the Social Security Act are reproduced at App., infra, 54a-57a. QUESTIONS PRESENTED 1. Whether provisions of the Social Security Act in effect between 1979 and 1983 that authorized payment of benefits to surviving widowed spouses, but not surviving divorced spouses, who remarried after age 60 violate the equal protection component of the Due Process Clause of the Fifth Amendment. 2. Whether, in this action for judicial review pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. 405(g), the district court properly certified a nationwide class that includes persons who did not exhaust their administrative remedies or who received a final decision of the Secretary denying their claims more than 60 days prior to the filing of this action. STATEMENT The Social Security Act was amended, effective January 1979, to permit a surviving widowed spouse who remarries after age 60 to receive monthly survivor's benefits based on the deceased spouse's earnings account. However, until January 1984, a surviving divorced spouse who remarries was not entitled to receive survivor's benefits based on the former spouse's account. The district court held that this distinction in effect from 1979 through 1983 was irrational and therefore violated the Due Process Clause of the Fifth Amendment, and it ordered relief in this action under 42 U.S.C. 405(g) to a nationwide class that includes individuals who did not exhaust their administrative remedies or seek judicial review within 60 days of receiving the final decision of the Secretary. A. THE STATUTORY AND REGULATORY FRAMEWORK 1. Substantive Provisions The statutory provisions at issue in this action were the product of a step-by-step evolution of provisions for survivor's benefits for spouses and former spouses under the Social Security Act. a. The Social Security Act, as enacted in 1935, provided only primary benefits for qualified wage earners. Ch. 531, Sections 201 et seq., 49 Stat. 622 et seq. In 1939, Section 202 of the Act was amended to provide secondary benefits for wives, dependent children, widows and surviving dependent parents. Ch. 666, Section 202, 53 Stat. 1363. The purpose of these amendments was to afford more adequate protection to the wage earner's family as a unit by furnishing benefits to family members who may have been dependent upon him. H.R. Rep. 728, 76th Cong., 1st Sess. 7 (1939); S. Rep. 734, 76th Cong., 1st Sess. 7-9, 11 (1939). See Califano v. Jobst, 434 U.S. 47, 52 (1977); Califano v. Goldfarb, 430 U.S. 199, 208-209, 213 (1977) (opinion of Brennan, J.). The Act as so amended provided that widows and other secondary beneficiaries would lose their entitlement to monthly benefits if they remarried. Section 202(e)(1)(A), 53 Stat. 1365; see also Section 202(c)(1) and (f)(1), 53 Stat. 1364, 1366. In 1950, Congress added Section 202(f) to the Act to provide survivor's benefits for widowers. Ch. 809, Section 101(a), 64 Stat. 482. /1/ As in the case of widows, widowers lost their entitlement to benefits upon remarriage. 64 Stat. 485 (Section 202(f)(1)(A). In 1958, however, Congress enacted an exception to this remarriage rule, providing that if a widow or widower married an individual who also was entitled to receive secondary benefits under the Act, he or she would not lose the entitlement to survivor's benefits. Section 202(e)(4)(A) and (f)(4) of the Act, as added by Pub. L. No. 85-840, Section 307(b) and (c), 72 Stat. 1031. Compare Califano v. Jobst, 434 U.S. 47, 51 (1977). b. In 1965, Congress amended Section 202(b) and (e) to permit a surviving divorced wife aged 60 or over to receive widow's benefits. However, unlike in the case of a widow, a surviving divorced wife could receive widow's benefits only if she had received support from the deceased wage earner and had been married to him for at least 20 years. Pub. L. No. 89-97, Section 308(b)(1), 79 Stat. 376-377. See also Section 216(d) of the Act, as added by Pub. L. No. 89-97, Section 308(c), 79 Stat. 377-378. /2/ As under the preexisting rule affecting widows, Congress provided that a surviving divorced wife could not receive widow's benefits if she remarried, unless she married a man receiving secondary benefits as a dependent widower or parent or as a disabled child aged 18 or over. Section 202(e)(3)(A), as amended and renumbered by Pub. L. No. 89-97, Section 308(b)(2), 79 Stat. 377. /3/ But at the same time, Congress relaxed the remarriage rule as it applied to widows and widowers. Congress provided that if a widow or widower, after reaching age 60, married an individual who was not entitled to benefits under the Act, he or she would not lose the entitlement to benefits, although the benefits would be reduced to 50% of the primary wage earner's benefit. Section 202(e)(4) and (f)(5) of the Act, as added by Pub. L. No. 89-97, Section 333(a)(1) and (b)(1), 79 Stat. 403 and 404. /4/ The requirement that the surviving divorced wife establish that she was supported by the deceased wage earner in order to receive widow's benefits subsequently was eliminated in 1972. Pub. L. No. 92-603, Section 114(b)(1), 86 Stat. 1348. See Califano v. Boles, 443 U.S. 282, 291-293 (1979). c. In 1977, Congress again amended the relevant provisions of the Social Security Act. It revised Section 202(e)(4) and (f)(5) of the Act to provide that, if a widow or widower remarries after attaining age 60, the marriage will be "deemed not to have occurred" for purposes of entitlement to survivor's benefits. Pub. L. No. 95-216, Section 336(a)(3) and (b)(3), 91 Stat. 1547. This amendment was effective for monthly benefits payable beginning in January 1979. Section 336(c)(1), 91 Stat. 1547. As a result, since 1979, a widow or widower has been entitled to unreduced survivor's benefit if he or she remarries after age 60. Congress also amended Section 216(d)(2) of the Act to reduce from 20 to 10 years the period during which a surviving divorced wife must have been married to the primary wage earner in order to be eligible for widow's benefits (Pub. L. No. 95-216, Section 337(a), 91 Stat. 1548), but it retained the provision in Section 202(e)(1)(A) that generally barred a surviving divorced wife from receiving benefits upon remarriage. Although Congress had permitted surviving divorced wives to receive widow's benefits in certain circumstances, it had not to this point expressly provided for surviving divorced husbands to receive widower's benefits. In 1980, this distinction was held unconstitutional. Ambrose v. Califano, (1980) Umempl. Ins. Rep. (CCH) Paragraph 17,702 (D. Ore.). The Solicitor General determined that an appeal would not be taken to this Court in Ambrose because the distinction could not be defended under this Court's decisions concerning discrimination on the basis of gender. 47 Fed. Reg. 12161 (1982). Accordingly, the Secretary promulgated regulations extending benefits to surviving divorced husbands on the same basis as they were provided by statute to surviving divorced wives. See ibid.; 20 C.F.R. 404.336. In 1983, as part of a general elimination of gender-based distinctions, Congress amended Section 202(f)(1) of the Act expressly to make surviving divorced husbands eligible for widowers' benefits. Pub. L. No. 98-21, Section 301(b)(1), 97 Stat. 111. d. Finally, in 1983, Congress amended the Act to provide that surviving divorced wives and husbands who remarry after age 60 may receive benefits in the same manner as widows and widowers. See Section 202(e)(3) and (f)(4) of the Act, as amended and redesignated by Pub. L. No. 98-21, Sections 131(a)(2), (a)(3)(A), (b)(2), (b)(3)(A) and (d)(1), 301(b)(4), 97 Stat. 92, 93, and 111. As a result, otherwise eligible members of the appellee class have been entitled to receive monthly widow's or widower's benefits since January 1984. 2. Procedural Provisions Claims for survivor's and other benefits under Title II of the Social Security Act are considered by the Secretary pursuant to special procedures prescribed by Congress and the Secretary. The principal statutory provision pertaining to administrative review is Section 205(b) of the Act, 42 U.S.C. 405(b), under which the Secretary "is directed to make findings of fact, and decisions as to the rights of any individual applying for a payment" under Title II. Section 205(b) further provides that if the individual is dissatisfied with the Secretary's preliminary "decision," the Secretary shall afford him a right to a hearing. Pursuant to her authority under Section 205(a) of the Act "to make rules and regulations and to establish procedures" (42 U.S.C. 405(a)), the Secretary has fleshed out these general statutory directives by establishing a four-step administrative procedure for review by the Social Security Administration (SSA) of claims for benefits: the initial determination (20 C.F.R. 404.902-404.904); de novo reconsideration (20 C.F.R. 404.907-404.921); an evidentiary hearing before an administrative law judge (ALJ) (20 C.F.R. 404.944-404.965); and discretionary review by the Appeals Council (20 C.F.R. 404.967-404.983). The Secretary's decision rendered at the initial determination, reconsideration, or ALJ hearing stage is expressly made "binding" on the claimant unless he seeks further administrative review within 60 days. 20 C.F.R. 404.905, 404.909(a)(1), 404.920, 404.933(b)(1), 404.955(a), 404.968(a)(1). "These four steps exhaust the claimant's administrative remedies. Thereafter, he may seek judicial review in federal district court." Heckler v. Day, No. 82-1371 (May 22, 1984), slip op. 3. Under Section 205(g) of the Act, 42 U.S.C. 405(g), the claimant, after the "final decision" of the Secretary made "after a hearing," may obtain judicial review of the final decision "by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow." If the claimant does not seek judicial review within 60 days of the Appeals Council's decision, the adverse Appeals Council's decision (or the ALJ's decision if the Appeals Council denied review) is expressly made "binding" on the claimant. 20 C.F.R. 404.955(b), 404.981. The Secretary has carved out only "one exception" to the exhaustion requirement. Heckler v. Ringer, No. 82-1772 (May 14, 1984), slip op. 2 & n.2. This exception is in the form of an expedited administrative appeals procedure, under which the Secretary will formally waive the requirement that the individual claimant fully exhaust his administrative remedies through the Appeals Council stage if the individual's claim for benefits has been denied at the reconsideration level, if he does not dispute the Secretary's findings of fact or interpretation or application of controlling law, and if the claimant alleges (and the Secretary agrees) that the only factor precluding an allowance of the claim is a statutory provision that the claimant contends is unconstitutional. In such a situation, a representative of the Secretary may enter into a formal agreement with the individual claimant deeming the reconsideration decision to be the Secretary's "final decision" for purposes of seeking judicial review pursuant to 42 U.S.C. 405(g). 20 C.F.R. 404.923-404.926. The claimant then has 60 days within which to seek judicial review. 20 C.F.R. 404.927. B. THE PROCEEDINGS IN THIS CASE 1. a. Appellee Buenta Owens was married to Russell Judd in 1937 and divorced from him in 1968. In 1978, at the age of 61, she married appellee Kenneth Owens. Judd died on June 19, 1982. On July 30, 1982, Buenta Owens applied for surviving divorced wife's benefits on the basis of Judd's earnings account. Her claim was denied. On October 19, 1982, Buenta Owens requested administrative reconsideration of that denial, contending that the statutory provision denying benefits because of her remarriage was unconstitutional. Her claim again was denied in a reconsideration determination dated December 7, 1982. App., infra, 1a, 13a-14a, 31a-32a; B.R. 2, 6-7, 9-10. /5/ Buenta Owens requested that her claim be considered under the expedited administrative appeals procedure provided by the Secretary's regulations, discussed above (see pages 6-7, supra). B.R. 9. The designated representative of the Secretary determined that it would be appropriate to use this procedure, and he entered into an agreement with her to that effect dated March 3, 1983 (App., infra, 50a-51a). The agreement states that Buenta Owens "accepts the factual determinations of the Secretary as contained in the reconsideration determination of December 7, 1982, on the wage record of Russell B. Judd"; that she also "accepts the Secretary's interpretation and application of the Social Security Act contained in the above-referenced reconsideration determination"; and that except for the statutory provisions whose constitutionality she challenges, "the right of the claimant to benefits has been established by the claimant" (id. at 50a). On this basis, the agreement provides that "(t)he above-referenced reconsideration determination represents the final decision of the Secretary"; that the agreement "constitutes a waiver by the claimant and the Secretary of the necessity to pursue the remaining steps of the administrative appeal process"; and that she has 60 days within which to file a civil action to raise the constitutional issue (id. at 50a-51a). Buenta Owens then filed the contemplated civil action in the United States District Court for the Central District of California on April 19, 1983, seeking to represent a nationwide class of surviving divorced spouses. Complaint Paragraph 6. b. Appellee Kenneth Owens was married to Dorothy L. Owens in 1934 and was divorced from her in 1978. He then married appellee Buenta Owens in 1978, when he was 60 years old. On July 15, 1982, Kenneth Owens applied for survivor's benefits based on the earnings account of his first wife, who had since died. His claim was denied at the initial determination stage and in a reconsideration decision dated May 12, 1983. He likewise requested to use the expedited administrative appeals procedure, and on November 23, 1983, a representative of the Secretary entered into an agreement with him under that procedure. App., infra, 14a, 32a, 52a-53a; K.R. 1-2, 14-18, 31, 34. On January 6, 1984, Kenneth Owens then filed suit in the United States District Court for the Central District of California, challenging the constitutionality of the statutory provisions. His class action subsequently was consolidated with that filed by his wife (App., infra, 13a, 15a). 2. a. In the action brought by Buenta Owens, the district court at first rejected appellees' constitutional challenge to the statutory provisions in an opinion dated December 23, 1983 -- before Kenneth Owens filed suit (App., infra, 1a-12a). The court rejected the contention that strict scrutiny of the challenged provisions was required because they created a "disincentive" to marry (id. at 5a-7a). The court explained that this Court has applied strict scrutiny only when the government "created substantial legal obstacles to entry into or exit from the marital state" (id. at 6a, citing Zablocki v. Redhail, 434 U.S. 374 (1978), and Boddie v. Connecticut, 401 U.S. 371 (1971)). By contrast, the district court observed, this Court has applied the rational basis standard in reviewing provisions of the Social Security Act that deny benefits to some persons, but not others, based upon their marital status (App., infra, 6a, citing Mathews v. De Castro, 429 U.S. 181 (1976), and Califano v. Jobst, 434 U.S. 47 (1977)). Applying the rational basis test, the court sustained the statutory distinction (App., infra, 7a-12a). It reasoned that, as in Califano v. Jobst, 434 U.S. at 57-58, Congress reasonably could decide to take one step at a time in removing the perceived hardship of the remarriage rule -- lifting it as to widowed spouses effective January 1979 and as to surviving divorced spouses effective January 1984 (App., infra, 10a-11a). b. Buenta Owens then filed a motion to alter or amend the judgment. While that motion was pending, the court, by order dated August 28, 1984, certified a nationwide class of surviving divorced spouses who remarried after age 60 and who were denied monthly benefits for any month after December 1978, provided that the claimant's application was filed on or after August 20, 1982 or the time within which to seek review of a decision denying his claim had not expired on that date (App., infra, 13a-28a; see id. at 28a, 44a). The district court acknowledged that 42 U.S.C. 405(g) was the exclusive source of jurisdiction over the suit and that, under Weinberger v. Salfi, 422 U.S. 749, 764 (1975), a class may be certified only if all of the members satisfy all of the requirements for judicial review set out in Section 405(g). Nevertheless, the court included in the class individuals who had not exhausted their administrative remedies or who had not sought judicial review within 60 days of the final decision denying their claims for benefits. Citing the Secretary's regulations under which appellees Buenta and Kenneth Owens had entered into an agreement with the Secretary waiving exhaustion with regard to their claims for benefits, the court held that the Secretary had waived exhaustion for all class members, without regard to whether the Secretary had entered into a comparable agreement with them (App., infra, 17a-18a). The court further held that a court in any event may excuse compliance with the exhaustion requirement on a class-wide basis where the constitutionality of a statutory provision is at issue (id. at 18a-19a). Similarly, the court treated the 60-day requirement as an ordinary statute of limitations and held that running of the 60-day period should be tolled retroactively as to all class members on a nationwide basis as of October 19, 1982, the date on which appellee Buenta Owens sought administrative reconsideration of the initial determination denying her claim for benefits (App., infra, 20a-21a). In the court's view, the filing of this "single administrative complaint" by Buenta Owens gave the Secretary adequate notice of the constitutional contention and an opportunity to evaluate its effects on similarly situated persons (id. at 21a). Accordingly, the court included in the class any individual who had a live claim for benefits pending administratively on or after August 20, 1982, which was 60 days before Buenta Owens requested reconsideration (id. at 22a) but more than eight months before she filed suit. c. After it certified a nationwide class, the court, by opinion and order dated October 5, 1984, reversed its prior ruling on the merits and held unconstitutional the challenged distinction between surviving widowed and divorced spouses (App., infra, 29a, 30a-43a). The court again acknowledged that "(t)he one step at a time argument has considerable allure in this instance because it literally describes Congress' actions here" (id. at 39a). But this time the court found that justification insufficient. The court explained that "Congress must have a rational basis for each step it takes" and that the statutory distinction "must stand or fall on whether Congress rationally might have assumed that widowed spouses are generally more dependent on income from the deceased wage earner than are surviving divorced spouses" (id. at 40a). The court expressly agreed with the Secretary that Congress rationally could so assume (id. at 42a). But the court nevertheless held that the challenged distinction was irrational because Congress chose to treat surviving widowed spouses and surviving divorced spouses the same upon the death of the primary wage earner, and there was, in the court's view, no "logical basis" to distinguish between them upon their subsequent remarriage (ibid.). The court therefore enjoined the Secretary from applying the challenged provisions to appellees Buenta and Kenneth Owens and other eligible class members, to pay retroactive benefits to them, and to determine and assure payment of survivor's benefits to other class members within 120 days (id. at 44a-46a). THE QUESTIONS ARE SUBSTANTIAL The district court has held several provisions of an Act of Congress unconstitutional. That holding is plainly wrong. This Court has made clear that Congress rationally could determine that divorced husbands and wives depend less on each other than do couples who remain married. Mathews v. De Castro, 429 U.S. 181, 188 (1976). As the district court in this case expressly acknowledged, Congress also rationally could determine that this difference continues after the death of the primary wage earner (App., infra, 42a). If this much is conceded, Congress surely can draw this same distinction in determining whether surviving spouses and former spouses should be entitled to benefits even after they remarry. Contrary to the district court's apparent belief, the fact that Congress, in its discretion, has chosen to treat widowed and certain divorced spouses in a similar manner for one purpose (their entitlement to survivor's benefits upon the death of the primary wage earner) does not mean that the two categories are constitutionally indistinguishable for all purposes or that Congress is somehow estopped from treating them differently as regards their entitlement to survivor's benefits upon remarriage. The particular statutory distinction appellees challenge existed only during one relatively brief portion of the extended period over which Congress has adjusted and expanded the respective eligibilities of spouses and former spouses to receive Social Security benefits. If the district court had limited the impact of its decision in this case by awarding benefits only to the two named appellees, it might have been appropriate for the Secretary to forego an appeal, because Congress now has eliminated the particular distinction the court invalidated. But rather than limiting its holding, the district court compounded its error by ordering relief to a nationwide class that includes numerous individuals who did not exhaust their administrative remedies or seek judicial review within 60 days, and who thereby effectively abandoned their individual claims for benefits. This holding is flatly inconsistent with the plain language of 42 U.S.C. 405(g), implementing regulations, and this Court's decisions. The district court's cavalier disregard of these explicit jurisdictional prerequisites unfortunately is typical of the approach by a number of lower courts in the face of this Court's clear pronouncements, most recently in Heckler v. Ringer, No. 82-1772 (May 14, 1984). The result has been substantial disruption of the orderly administrative review of claims for benefits under the vast Social Security program. These issues therefore independently warrant review. 1. The district court clearly erred in holding that the statutory distinction between surviving widowed spouses and surviving divorced spouses who remarry is unconstitutional. Indeed, that holding is foreclosed by this Court's decisions in Mathews v. De Castro, 429 U.S. 181 (1976), and Califano v. Jobst, 434 U.S. 47 (1977). a. The legal principles governing the resolution of this case are firmly settled. Where, as here, a statutory classification does not impinge on a fundamental right protected by the Constitution, /6/ the classification is unconstitutional only if "the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that (the Court) can only conclude that the legislature's actions were irrational." Vance v. Bradley, 440 U.S. 93, 97 (1979). See, e.g., Schweiker v. Wilson, 450 U.S. 221, 230 (1981); United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 177 (1980). This conclusion has particular force in the distribution of Social Security benefits, because "(g)overnmental decisions to spend money to improve the general public welfare in one way and not another are 'not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.'" Mathews v. De Castro, 429 U.S. at 185, quoting Helvering v. Davis, 301 U.S. 619, 640 (1937). b. In this case, the statutory classification plainly is the product of a careful "exercise of judgment" by Congress, not a "display of arbitrary power." Each of the factors on which the denial of benefits to appellees was based -- their divorce and their subsequent remarriage -- long has been utilized in determining eligibility for secondary benefits under the Social Security Act, and each has already been sustained by this Court as an independently sufficient basis for distinguishing between classes of potential beneficiaries. In Califano v. Jobst, supra, the Court held that the uniform rule prior to 1958, under which Social Security benefits payable to all secondary beneficiaries were terminated upon remarriage, was "unquestionably valid." 434 U.S. at 54. The Court in Jobst considered that rule in the context of the eligibility of a disabled person to receive child's benefits after remarriage, but the Court's observations are equally applicable here (id. at 53): Both tradition and common experience support the conclusion that marriage is an event which normally marks an important change in economic status. Traditionally, the event not only creates a new family with attendant new responsibilities, but also modifies the pre-existing relationships between the bride and groom and their respective families. Frequently, of course, financial independence and marriage do not go hand in hand. Nevertheless, there can be no question about the validity of the assumption that a married person is less likely to be dependent on his parents for support than one who is unmarried. Similarly, in the present context, Congress rationally could conclude that a surviving divorced spouse who remarries is less likely to be dependent on the resources of the former spouse than one who does not remarry. For this reason, Congress's decision to terminate a surviving divorced spouse's entitlement to benefits upon remarriage is, in itself, plainly rational. The district court did not dispute that Congress constitutionally may terminate a person's entitlement to secondary benefits upon remarriage. But the court held that Congress was foreclosed from doing so after 1979 with regard to surviving divorced spouses who remarry after reaching age 60 because Congress in 1979 permitted widowed spouses who remarry at that age to receive survivor's benefits. The court concluded that Congress could not rationally distinguish between widowed and surviving divorced spouses in this manner (App., infra, 42a). This holding ignores both the significance Congress long has placed on divorce as it affects eligibility for Social Security benefits and this Court's conclusion that it is constitutional for Congress to do so. In Mathews v. De Castro, supra, the Court unanimously sustained the constitutionality of provisions of the Social Security Act that provided for the payment of benefits to a married woman under age 62 whose husband retires or becomes disabled if she has a minor or other dependent child in her care, but not to a divorced woman. The Court explained (429 U.S. at 188): Divorce by its nature works a drastic change in the economic and personal relationship between a husband and wife. Ordinarily it means they will go their separate ways. Congress could have rationally assumed that divorced husbands and wives depend less on each other for financial and other support than do couples who stay married. See also Califano v. Boles, 443 U.S. 282, 289-293 (1979). This same rationale applies to the survivor's benefits at issue here. Congress rationally could determine that a divorced spouse in general would be less dependent upon the primary wage earner at the time of the latter's death than would a spouse who remained married to the wage earner until the time of his death. Thus, it seems clear that Congress constitutionally could have chosen to deny secondary benefits to all divorced and surviving divorced spouses. In fact, Congress did precisely that for the first 25 years of the Social Security program: although Congress provided benefits for wives and widows in 1939, it was not until 1965 that Congress provided parallel benefits for divorced wives and surviving divorced wives. See pages 2-3, supra. Even in 1965, Congress did not treat the two categories the same, and it has not done so to this day. Under the 1965 provisions, a divorced wife, unlike a wife or widow, could receive benefits only if she established that she had received substantial support from her former husband (a requirement that was not eliminated until 1972). In addition, although a surviving divorced wife lost her benefits if she remarried, a widow could continue to receive benefits (albeit reduced) if she married a man who was not entitled to benefits under the Act. Congress's elimination in 1977 of the remarriage rule for widows and widowers, but not for surviving divorced spouses, therefore did not introduce an unfamiliar distinction into the law. By the same token, Congress provided in 1965 that a divorced wife could receive secondary benefits only if she had been married to the principal wage earner for more than 20 years. See pages 2-3, supra. By contrast, the durational requirement for a husband, wife, widow or widower was far shorter, and now generally is no more than one year. See 42 U.S.C. 416(b), (c)(5), (f) and (g)(5). In sum, Differing treatment of divorced spouses and spouses who remained married is a consistent theme in the Social Security Act. /7/ Congress's drawing on that familiar distinction in 1979 (and before) as regards the eligibility for survivor's benefits upon remarriage therefore is manifestly not "utterly lacking in rational justification." Flemming v. Nestor, 363 U.S. 603, 611 (1960). Compare Fritz, 449 U.S. at 178 & n.11. c. The district court in fact expressly agreed with the Secretary that Congress rationally could assume that surviving divorced spouses are generally less dependent upon the resources of the deceased primary wage earner than are widowed spouses (App., infra. 42a). But the court held that because Congress had chosen to treat the two categories the same upon the death of the primary wage earner, it could not distinguish between them upon their subsequent remarriage. This reasoning is seriously flawed. As an initial matter, the district court was mistaken in its underlying premise that Congress in 1979 treated divorced spouses the same as spouses who remained married to the primary wage earner for purposes of determining eligibility for survivor's benefits upon the death of the wage earner. A divorced wife could receive survivor's benefits only if she had been married to the wage earner for 10 years; the durational requirement for a widow or widower was a year or less. Obviously, Congress did not view the two categories to be equally entitled to receive secondary benefits. In any event, the fact that Congress, in its discretion, elected to treat this narrow group of divorced wives in a manner similar to widows and widowers by making them eligible for survivor's benefits does not mean that Congress actually found them to be identically situated even in that setting. Far less does it render the two groups constitutionally indistinguishable or estop Congress from treating them differently for other purposes. In the present context, for example, Congress might well have believed that there were sufficient similarities between the two groups to warrant similar treatment upon the death of the primary wage earner, notwithstanding the existence of substantial differences as well, or that considerations of uniformity or ease of administration warranted similar treatment for that purpose. Such a judgment cannot constitutionally disable Congress from responding to the residual differences between the two groups in determining their continued entitlement to survivor's benefits upon remarriage. This conclusion is especially compelling when it is considered that Congress often must proceed one step at a time when expanding or adjusting benefits and entitlements under this "complex statutory scheme" (Califano v. Jobst, 434 U.S. at 52). Congress has done so in several respects that bear directly on this case. First, Congress often has delayed before conforming the entitlement of divorced spouses and surviving divorced spouses to that of wives, husbands, widows, and widowers. That delay may be explained by a belief that the latter have a stronger equitable claim to receive benefits that were originally intended for members of the wage earner's family than do persons for whom those family ties have been broken. Cf. United States Railroad Retirement Board v. Fritz, 449 U.S. at 178. Second, Congress has moved cautiously and incrementally in modifying the remarriage rule under the Social Security Act. See Califano v. Jobst, 434 U.S. at 54-57. As the district court acknowledged, the House version of the bill enacted in 1977 contained an "across-the-board elimination of the general remarriage rule, covering all secondary beneficiaries, including but not limited to widows and surviving divorced spouses"; this was a "broad change" that in its first year of operation alone would have created "an estimated 670,000 new beneficiaries at a cost of $1.3 billion in additional benefits" (App., infra, 3a-4a, citing H.R. Rep. 95-702, 95th Cong., 1st Sess. Pt. I at 47-48 (1977), id. Pt. II, at 73). No similar provision was contained in the Senate bill, and it is not surprising that it was deleted in Conference in favor of a more modest provision to repeal the remarriage rule only for widows and widowers. See H.R. Conf. Rep. 95-837, 95th Cong., 2d Sess. (1977). Congress presumably believed that widows and widowers had the strongest claim to receive benefits after remarriage, and it chose to "concentrate limited funds where the need is likely to be greatest" (Califano v. Boles, 443 U.S. at 296). As this Court observed in a nearly identical context (Califano v. Jobst, 434 U.S. at 57-58): Congress could reasonably take one firm step toward the goal of eliminating the hardship caused by the general marriage rule without accomplishing its entire objective in the same piece of legislation. Williamson v. Lee Optical Co., 348 U.S. 483, 489 ((1950)). Even if it might have been wiser to take a larger step, the step Congress did take was in the right direction and had no adverse impact on persons like the (appellees). Congress might well be deterred from taking measures to alleviate what it believes to be the greatest hardships or inequities in the Social Security Act and similar legislation if its decisions to proceed in this cautious fashion are invalidated because they do not go far enough. "The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely (the Court) may think a political branch has acted." Vance v. Bradley, 440 U.S. at 97. This faith in the democratic process was vindicated in the present case, because Congress enacted legislation to eliminate the distinction appellees' challenge almost 18 months before the district court declared the distinction unconstitutional. 2. The district court also clearly erred in its threshold certification of a class. As the district court itself recognized (App., infra, 15a-16a), in order for a class to be certified, each member of the proposed class must individually satisfy the requirements for judicial review set out in 42 U.S.C. 405(g). See Califano v. Yamasaki, 442 U.S. 682, 701 (1979); Weinberger v. Salfi, 422 U.S. 749, 764 (1975). Yet the court proceeded to certify a class in utter disregard of the explicit requirements in 42 U.S.C. 405(g) that each class member must have received a "final decision" of the Secretary on his own individual claim for benefits and may obtain judicial review only by filing a civil action within 60 days of that final decision. a. The Court held in Salfi that the meaning of the term "final decision" in 42 U.S.C. 405(g) "is left to the Secretary to flesh out by regulation" and that she may "specify such requirements for exhaustion as (s)he deems serve (her) own interests in effective and efficient administration" (422 U.S. at 766 & n.9). As the Court recognized, governing regulations specify that the finality required for judicial review is achieved only after the ALJ hearing and Appeals Council stages are completed (id. at 765). See 20 C.F.R. 404.900(a)(5). See also Heckler v. Ringer, slip op. 2. There is no allegation in the complaint in this case that the unnamed class members actually pursued their administrative remedies through the Appeals Council stage to obtain the requisite "final decision." The district court therefore "was without jurisdiction over so much of the complaint(s) as concern the class, and it should have entered an appropriate order of dismissal." Salfi, 422 U.S. at 764. Instead of ordering dismissal of the class claims, however, the court excused all of the unnamed class members from the exhaustion required by the Secretary's regulations based on the court's own view that exhaustion would be futile (App., infra, 18a-19a). The district court's action was flatly inconsistent with Salfi. There, the Court held that the requirement that the Secretary have made a "final decision" on the individual's claim for benefits is a "statutorily specified jurisdictional prerequisite" that "may not be dispensed with merely by a judicial conclusion of futility such as that made by the District Court here" (422 U.S. at 766 (emphasis added)). The Court did observe in Salfi that "(w)hile a court may not substitute its conclusion as to futility for the contrary conclusion of the Secretary, * * * it would be inconsistent with the congressional scheme to bar the Secretary from determining in particular cases that full exhaustion of internal review procedures is not necessary for a decision to be 'final' within the language of Section 405(g)." 422 U.S. at 766-767 (emphasis added). The Court concluded that the Secretary properly could make such a determination where she has satisfied herself that the only issue is the constitutionality of a statutory provision that bars payment (id. at 765, 767), that "the claim is neither otherwise invalid nor cognizable under a different section of the Act" (id. at 765), and that all other issues have been resolved in favor of the claimant without the need for a hearing (id. at 767). See also Heckler v. Ringer, slip op. 14-16 & nn.11 & 12. Contrary to the district court's conclusion (App., infra, 17a-18a), however, the Secretary in this case clearly did not make such a determination and accordingly did not waive the exhaustion requirement for each of the unnamed members of the class. Following the decision in Salfi, the Secretary promulgated the regulations discussed above that establish a procedure for waiving the exhaustion requirement in the circumstances identified in Salfi -- i.e., where the Secretary has determined that all other issues bearing on the individual's claim for benefits have been resolved and that the only issue barring payment is a statutory provision that the claimant contends is unconstitutional. Pursuant to this procedure, the Secretary entered into a formal agreement with appellees Buenta and Kenneth Owens stipulating to the existence of these conditions as regards their particular claims for benefits, and designating the respective reconsideration decisions denying those claims as the Secretary's "final decisions" for purposes of judicial review under 42 U.S.C. 405(g). But there is no allegation in the complaints that the Secretary has entered into a comparable agreement with any of the unnamed class members. In promulgating the regulations establishing the expedited appeals procedure, the Secretary explained that where the specified conditions have been satisfied, she could be confident that the particular claim for benefits had been presented at a sufficiently high level to afford the agency an opportunity to correct its errors; to have a complete record with respect to the facts, law, and possible alternative bases of entitlement; and to insure national uniformity. 40 Fed. Reg. 53385 (1975). Compare Salfi, 422 U.S. at 764. In such circumstances, the Secretary determined, further administrative review would be "clearly futile." Ibid. /8/ These procedures thus assure that the question of exhaustion of administrative remedies itself will be presented to and expressly ruled upon by the Secretary and that judicial review will be accelerated only on the basis of a specific finding by the Secretary that the particular claim involved need not be reviewed further administratively. The existence of this administrative procedure also guarantees that the claimant and the Secretary will have formally stipulated to the fact that further exhaustion may be dispensed with in the particular case prior to the claimant's filing of an action in court, thereby making it unnecessary for the parties to engage in the sort of wasteful litigation on the exhaustion question that has occurred in this case. The district court completely ignored the terms and purposes of the regulations establishing a procedure for expedited administrative appeals on a case-by-case basis. It instead erroneously cited to those regulations for the sweeping proposition, never endorsed by this Court, that the Secretary may be held to have waived exhaustion for all unnamed members of a nationwide class, even though the Secretary has not made the particularized determination required by those regulations (and contemplated by Salfi) that further exhaustion is unnecessary on each individual claim for benefits. Here, the Secretary has not stipulated that she has made a final decision for each class member, as she has for Buenta and Kenneth Owens, that the claimant previously was married for the requisite length of time to an insured wage earner, that the claimant has otherwise established his entitlement to benefits, and that the only remaining obstacle to payment is the statutory provision whose constitutionality cannot be resolved by the Secretary. b. The district court also included in the certified class any individual who happened to have had a claim for benefits pending before SSA on or after August 20, 1982, even though Buenta Owens did not file this class action until April 19, 1983, almost eight months later (App., infra, 19a-22a). This aspect of the class certification flies in the face of the requirement in 42 U.S.C. 405(g) that judicial review of the Secretary's "final decision" on any individual's claim for benefits must be sought by (or on behalf of) that individual "within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow." The Secretary has not exercised her express authority under 42 U.S.C. 405(g) to extend the 60-day period for any of the time-barred individuals the district court included in the class. Under regulations promulgated by the Secretary to implement this extension authority, each such claimant first must file a written request with SSA giving reasons why he did not seek judicial review within the time allowed. The filing time then will be extended for that claimant only if SSA determines that he has established "good cause" for missing the deadline. 20 C.F.R. 404.982, 404.911. There is no indication that any of the class members who received a "final decision" more than 60 days before this suit was filed ever requested the Secretary to extend the filing period under these regulations. The district court nevertheless excused these class members from the requirement that they seek judicial review within 60 days. The court did so based on its own view that the running of the 60-day period should be "tolled" on a nationwide basis from the date on which appellee Buenta Owens requested administrative reconsideration of her claim (App., infra, 21a-22a). In the court's view, Buenta Owens' request for reconsideration sufficiently put the Secretary on notice of the constitutional issue. This is a truly extraordinary notion that, if accepted by this Court, would create havoc in the orderly administration of the Social Security Act. It apparently would eliminate the filing deadline whenever a number of claims for benefits raise a common issue of law -- a routine occurrence in the administration of a program under which millions of claims for benefits are filed annually. And it would do so despite the fact that the individuals excused from meeting the 60-day requirement almost invariably would not have the slightest inkling that another claimant, perhaps at the other end of the country, had raised a similar legal issue in administrative proceedings on a wholly separate claim. This casual and haphazard approach to what Congress intended to be a firm filing deadline has no relation whatever to the congressional purpose of eliminating stale claims and establishing repose with respect to the thousands of individual benefit claims that are processed each month. Califano v. Sanders, 430 U.S. 99, 108 (1977). Compare United States v. Locke, No. 93-1394 (Apr. 1, 1985), slip op. 9; United States v. Boyle, No. 83-1266 (Jan. 9, 1985), slip op. 7-8. But whatever the merits in the abstract of the novel tolling rule suggested by the district court, it is clear that the court had no authority to impose it. /9/ "(T)he United States, as sovereign, 'is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Lehman v. Nakshian, 453 U.S. 156, 160 (1981), quoting United States v. Testan, 424 U.S. 392, 399 (1976), and United States v. Sherwood, 312 U.S. 584, 586 (1941). Consistent with these principles, the Court held in Salfi that the "final decision" requirement in 42 U.S.C. 405(g) is a "statutorily specified jurisdictional prerequisite" to suit. 422 U.S. at 766. The requirement that an action for judicial review be commenced within 60 days of the mailing of "such decision" (or such further time as the Secretary may allow) appears in the same sentence as the jurisdictional prerequisite of a "final decision," and it likewise is an explicit jurisdictional condition upon which Congress consented to suit under the Social Security Act. A court therefore has no authority to proceed where that 60-day requirement has not been met. Hyatt v. Heckler, 757 F.2d 1455, 1460-1461 (4th Cir. 1985); Hunt v. Schweiker, 685 F.2d 121 (4th Cir. 1982). /10/ Compare United States v. Kubrick, 444 U.S. 111, 117-118 (1979); Munro v. United States, 303 U.S. 36, 41 (1938); Finn v. United States, 123 U.S. 227, 232-233 (1887). Other courts, however, have reached a contrary conclusion, See, e.g., City of New York v. Heckler, 742 F.2d 729, 737-738 (2d Cir. 1984) (question "not free from doubt," but holding that 60-day requirement is not jurisdictional); Mental Health Ass'n v. Heckler, 720 F.2d 965, 973 n.19 (8th Cir. 1983). That conflict warrants resolution by this Court. Even if the 60-day requirement in 42 U.S.C. 405(g) were not regarded as a jurisdictional prerequisite in the strictest sense, /11/ that consequence would furnish no support for the district court's novel "tolling" rule in this case. Statutorily mandated limitations on the time within which a person may bring a suit against the government must be strictly construed, and the courts are not at liberty to fashion tolling rules that Congress has not prescribed. Soriano v. United States, 352 U.S. 270, 275-276 (1957). Indeed, in this case, the fact that Congress expressly vested in the Secretary, but not the courts, the authority to extend the 60-day filing period where circumstances warrant strongly indicates that Congress intended to foreclose the duplicative fashioning of tolling rules by the courts. Cf. United States v. Locke, slip op. 9 n.10. Governing regulations reinforce this conclusion, for they expressly provide that an individual forfeits his right to judicial review if he does not file within the 60-day period, unless he establishes "good cause" for the Secretary to extend that period. 20 C.F.R. 404.900(b), 404.987(a). The district court's holding on the 60-day issue also is directly contrary to this Court's ruling in Califano v. Sanders, supra. After the 60-day period has expired, the claimant may obtain further consideration of his claim only by requesting the Secretary to reopen the adverse administrative decision. See 20 C.F.R. 404.987-404.995. This Court held in Sanders that the Secretary's determination not to reopen an adverse decision that the claimant had allowed to become final and binding is not subject to judicial review. The Court explained that a contrary holding would "frustrate the congressional purpose, plainly evidenced in Section 205(g), to impose a 60-day limitation upon judicial review of the Secretary's final decision on the initial claim for benefits" -- a limitation that the Court regarded as an aspect of a "policy choice obviously designed to forestall repetitive or belated litigation of stale eligibility claims." 430 U.S. at 108. The nationwide tolling rule fashioned by the district court in this case would frustrate that congressional policy choice far more severely than would judicial review of the denial of an individual request to reopen, which the Court foreclosed in Sanders. c. The ruling by the district court on the exhaustion and 60-day requirements in 42 U.S.C. 405(g) has the effect in this case of requiring the Secretary to reopen numerous administrative decisions that the individual claimants involved allowed to become final and binding against them when they failed to seek further review in accordance with the requirements of the Act and implementing regulations. The Department of Health and Human Services estimates that there are approximately 1,000 such individuals. Other courts have ordered a similarly sweeping intrusion into the administration of the Social Security Act in class actions involving thousands of individuals who had abandoned their claims for benefits. See, e.g., City of New York v. Heckler, supra; Polaski v. Heckler, 751 F.2d 943 (8th Cir. 1984). These jurisdictional issues are of broad importance in the administration of the Social Security Act and independently warrant review by the Court. CONCLUSION Probable jurisdiction should be noted. Respectfully submitted. CHARLES FRIED Acting Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General EDWIN S. KNEEDLER Assistant to the Solicitor General WILLIAM KANTER CARLENE MCINTYRE Attorneys JUNE 1985 /1/ A widower was entitled to receive benefits only if he had previously received one-half of his support from his wife. In Califano v. Goldfarb, 430 U.S. 199 (1977), this Court held that the requirement that widowers, but now widows, show such support unconstitutionally discriminated on the basis of sex. Congress thereafter repealed the dependency requirement for widowers. Pub. L. No. 95-216, Section 334(d)(1), 91 Stat. 1545; 42 U.D.C. 402(f)(1). See Heckler v. Mathews, No. 82-1050 (Mar. 5, 1984), slip op. 2. /2/ Congress similarly amended Section 202(b) of the Act to make a divorced wife eligible for wife's benefits, subject to the same durational and support limitations. Pub. L. No. 89-97, Section 308(a), 79 Stat. 375-376. /3/ Although the survivor's benefits of a surviving divorced wife would terminate if she married a person receiving old-age benefits, she would become eligible for wife's benefits on her new husband's account. /4/ As originally enacted, the relevant age for widowers was 62. That age was reduced to 60 in 1972. Pub. L. No. 92-603, Section 107(a)(3), 86 Stat. 1343. "B.R." refers to the transcript of the administrative record on the claim of appellee Buenta Owens that was filed in district court pursuant to 42 U.S.C. 405(g). "K.R." refers to the transcript of the administrative record on the claim of appellee Kenneth 01029 X370000Owens. /6/ The district court correctly held that the statutory provisions denying survivor's benefits to divorced spouses who remarry do not impermissibly impinge on the exercise of a fundamental right to marry merely because they create a distinction on the basis of marital status (App., infra, 5a-7a, 36a-38a). In fact, this Court, applying the rational basis test, already has sustained the constitutionality of the general rule terminating entitlement to secondary Social Security benefits upon marriage, even though such provisions "may have an impact on a * * * beneficiary's desire to marry, and may make some suitors less welcome than others." Califano v. Jobst, 434 U.S. at 58. See also id. at 54. /7/ Nor is that differing treatment uniformly disadvantageous. Although the Act places a family maximum on the total of benefits paid on one wage earner's account at any one time, benefits paid to a divorced spouse or surviving divorced spouse are not subject to that maximum and do not count against the maximum as applied to other benefits paid on the account. 42 U.S.C. 403(a)(3)(C). /8/ In accordance with the Court's admonition in Salfi that "a court may not substitute its conclusion as to futility for the contrary conclusion of the Secretary" (422 U.S. at 766), the Secretary has specified that the denial of a claimant's request to pursue the expedited appeals procedure "will not be subject to the right to administrative or judicial review." 40 Fed. Reg. 53385 (1975). See 20 C.F.R. 404.902(k). /9/ The only appellate authority the district court cited for this novel "tolling" rule was the Ninth Circuit's decision in Heckler v. Lopez, 725 F.2d 1489, 1506-1507 (1984). See App., infra, 21a-22a. However, this Court unanimously granted a stay of the portion of the judgment in Lopez that asserted jurisdiction over the claims of class members who did not satisfy the 60-day filing requirement, Heckler v. Lopez, No. A-707 (Apr. 30, 1984), and the court of appeals' decision thereafter was vacated by this Court. Heckler v. Lopez, No. 84-115 (Dec. 10, 1984). The district court also relied on class action cases arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (App., infra, 21a-22a). That reliance was wholly misplaced. Under Title VII, it is not necessary for each class member to file a charge with the EEOC. Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975). Under the Social Security Act, on the other hand, each individual member of a class must file a claim for benefits. Weinberger v. Salfi, 422 U.S. at 764. When he does so, the time limitations and other requirements of the Act and implementing regulations apply to the ensuing administrative and judicial review of that individual claim and leave no room for the intrusion of tolling notions by a court. /10/ The holding in Hunt v. Schweiker, supra, that the 60-day requirement in 42 U.S.C. 405(g) is jurisdictional in nature was cited with approval in the extensive discussion of the requirements of 42 U.S.C. 405(g) in the Senate Report on the Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 Stat. 1794 et seq. See S. Rep. 98-466, 98th Cong., 2d Sess. 17 (1984). /11/ In Salfi, 422 U.S. at 763-764, and Mathews v. Eldridge, 424 U.S. 319, 328 n.9 (1976), the Court described the 60-day requirement as a "statute of limitations" that was waived by the Secretary because it was not raised in district court. However, these statements were dicta, because in each instance the claimant had sought judicial review within 60 days. App. (at 1, 9, 17-20), Weinberger v. Salfi, No. 74-214 (Oct. Term 1974); App. (at 1-3, 14), Mathews v. Eldridge, No. 74-204 (Oct. Term 1975). Moreover, in other circumstances, the Court has held that the congressionally imposed condition that a suit against the government be filed within a specified time period is not subject to waiver under the usual rules affecting the waiver of a statute of limitations defense. Munro v. United States, supra; Finn v. United States, supra. In any event, even if the 60-day requirement in 42 U.S.C. 405(g) is not "jurisdictional" in the sense that it is not waived even where it is not raised as a defense, a court is not free to excuse compliance with that requirement where, as here, it is invoked by the government in the trial court. APPENDIX