[18] HARLINGTON WOOD, Jr., Circuit Judge, dissenting.

The majority opinion follows the customary jurisdictional track for administrative review. I hesitate to take another route, but it seems to me that the good reasons for following that customary procedure laid out for the ordinary Board case are without substance in the circumstances of this particular case. There has been determined to be a constitutional flaw in the Board's statute. Based on that statute, however, the Board closed its front door to all applicants similarly situated. The majority is saying that nevertheless, each applicant, one by one, should have continued to knock on the Board's door even though it was demonstratively futile. Each day spent knocking was a sacrifice of benefits to which at least many of the applicants were entitled. Since the Board was so inhospitable to these claimants, no record to review was developed to which we could apply the ordinary standards of review and in the process be judicial beneficiaries of the Board's expertise. The ordinary review route therefore serves neither the review function of this court nor the interests of the parties even though the case by either route comes ultimately to this court. Issues are involved which can benefit in their development and consideration by a district court as happened in this case. In order to try to justify this judicial detour some expansion of the facts and circumstances set forth in the majority opinion is required.

This class action began as a constitutional challenge to the discriminatory treatment of male spouses of female railroad employees under the dependency provision of section 2(c)(3)(ii) of the Railroad Retirement Act of 1974 ("the Act"), 45 U.S.C. § 231a(c)(3)(ii). While the case was pending before the United States District Court for the Northern District of Illinois, the Supreme Court struck down the dependency provision. Railroad Retirement Board v. Kalina, 431 U.S. 909, 97 S.Ct. 2164, 53 L.Ed.2d 220 (1977), aff'g, 541 F.2d 1204 (6th Cir. 1976). The district court then ordered defendant Railroad Retirement Board ("the Board") to identify all spouses who would have been eligible for benefits under the Act, but for the dependency provision. The district court ordered the Board to pay the spouses the sums due regardless of whether the spouse had previously filed an application for benefits. The Board here challenges the jurisdiction of the district court and the scope of relief. I would affirm the district court's ruling with respect to its jurisdiction, but modify the scope of retroactive relief.

Albert Denberg applied on April 7, 1975, for spouse's benefits under the Act and was denied benefits because he did not meet the dependency requirement. Denberg did not pursue his administrative remedies. Instead, on March 5, 1976, plaintiffs Albert and Frances Brahna Denberg filed suit in the district court challenging section 2(c)(3) of the Act, 45 U.S.C. § 231a(c)(3), on the ground that it was unconstitutional in that it violated the due process and equal protection guarantees of the Fifth Amendment. Plaintiffs sought declaratory and injunctive relief and an award of retirement benefits to which they were allegedly entitled, but for the existence of section 231a(c)(3).

The Board moved to dismiss this case, arguing that plaintiffs failed to exhaust their administrative remedies. On November 30, 1976, the district court denied the motion. The court found that plaintiffs were not required to exhaust their administrative remedies and that the court had jurisdiction under 28 U.S.C. § 1337.

On May 25, 1978, the district court granted plaintiffs' pending motion to certify them as representatives of a class. The Denbergs sought relief on behalf of themselves and "All past, present and future spouses of retired female railroad employees who have been, are being or will be denied a spouse's annuity under the Act by virtue of 45 U.S.C. § 231a(c)(3)(ii)." Pursuant to Fed.R.Civ.P. 23, the court ordered notice of the class action to be sent to all retired female railroad employees entitled to an annuity under the Act, permitting them to withdraw from the class. Fed.R.Civ.P. 23(c)(2)(A).

On June 8, 1981, the district court granted summary judgment to plaintiffs. The district court held no true issue of retroactivity was presented and that sovereign immunity did not bar the requested relief. The district court ordered the Board to identify all spouses who would have been eligible for benefits between April 7, 1974, or the date on which the applicant became eligible for benefits (whichever was later) and August 15, 1981, but for the dependency provision. The Board was directed to pay them the sums due for that period, whether or not the spouse had previously filed an application for benefits with the Board.

The court stayed, pending appeal, that portion of its order requiring actual computation of benefits to each eligible individual. The usual agency function therefore yet remains to be fulfilled by the agency on each individual situation. Pursuant to the judgment order, however, the Board sent 36,564 notices to female employee annuitants and other potential beneficiaries under the class action and set October 15, 1981, as the deadline for filing claims. As of October 1, 1981, the Board had received 6,189 responses, for which 5,450 claimants were preliminarily determined eligible to receive some retroactive payment.

I. Jurisdiction

The Act provides that when the employee and "spouse" have met various eligibility requirements of age and length of service, the "spouse" shall be entitled to an annuity "if he or she has filed application therefor." 45 U.S.C. § 231a(c)(1). If the "spouse" is dissatisfied with the initial decision regarding his claim, he can appeal to the Bureau of Hearings and Appeals, 20 C.F.R. § 260.4 (1981), then to the Board, 20 C.F.R. § 260.6 (1981), and finally to the court of appeals, 45 U.S.C. § 231g, 355(f). In this case, after the plaintiffs received initial denial of their claim, they filed suit in the district court.

The district court exercised jurisdiction pursuant to 28 U.S.C. § 1337, which grants original jurisdiction to the district courts over "any civil action or proceeding arising under any Act of Congress regulating commerce. . . ." The district court recognized that "as a general rule a party seeking to challenge a decision of an administrative agency is denied access to the federal courts until he has exhausted his administrative remedies." It noted that the exhaustion requirement reflects a two-pronged policy of judicial economy and judicial respect for an independent branch of government. McKart v. United States, 395 U.S. 185, 194-95, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1979). The district court, however, held that the exhaustion doctrine did not bar the present action since the policy reasons for invoking the doctrine were not operative. Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975); Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973); K. Davis, Administrative Law of the Seventies § 20.04, at 458 (1976).

The majority holds that the district court should not have exercised jurisdiction. Although the majority finds that Denberg was not required to exhaust his administrative remedies, it states that Denberg should have pursued judicial review according to the administrative scheme set out in the Act. The majority reasons that since there is a special statutory review proceeding, it is exclusive. That statute, however, only comes into play after a "final decision of the Board" and "after all administrative remedies within the Board have been availed of and exhausted." The majority tries to take care of those requirements by stating, without citation, that the initial decision of the agency became the "final decision" from which judicial review could be sought. Thereby by passing the other usual administrative steps, it thus appears that even the majority would map out its own jurisdictional detour.

I agree, however, that exhaustion was not required in this case since none of the purposes of the doctrine would have been served by requiring plaintiffs to take their claims through the agency. See, e.g., Matter of Neavear, 674 F.2d 1201, 1203 (7th Cir. 1982); Continental Can Co. v. Marshall, 603 F.2d 590, 597 (7th Cir. 1979); Weyerhaeuser Co. v. Marshall, 592 F.2d 373, 376-77 (7th Cir. 1979); see also Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973). Moreover, courts and commentators have often asserted that administrative agencies do not have the power to pass upon constitutional challenges to statutes since only courts have authority to take action which runs counter to the expressed will of the legislative body. Moore v. City of East Cleveland, 431 U.S. 494, 526, 97 S.Ct. 1932, 1949, 52 L.Ed.2d 531 (1977) (Burger, J., dissenting); Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975); Johnson v. Robison, 415 U.S. 361, 368, 94 S.Ct. 1160, 1166, 39 L.Ed.2d 389 (1974); Buckeye Industries, Inc. v. Sec. of Labor, 587 F.2d 231, 235 (5th Cir. 1979); Spiegel, Inc. v. FTC, 540 F.2d 287, 294 (7th Cir. 1976); Finnerty v. Cowen, 508 F.2d 979, 982 (2d Cir. 1974); K. Davis, 1982 Supplement to Administrative Law Treatise § 20.14, at 286-87 [hereinafter cited as Davis Supplement]; Administrative Agencies, 90 Harv.L.Rev. 1682 (1977). But see Rosenthal Co. v. Bagley, 581 F.2d 1258 (7th Cir. 1978); Southern Pacific Transportation Co. v. Public Utilities Commission, 18 Cal.3d 308, 134 Cal.Rptr. 189, 556 P.2d 289 (1976).

The doctrine of exhaustion of administrative remedies provides "that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). But see Davis Supplement § 20.11, at 280 ("oft-repeated statement that administrative remedies must be exhausted is false about as often as it is true"). The doctrine must be applied with regard to the purposes that it is designed to serve, McKart, 395 U.S. at 193, 89 S.Ct. at 1662, and with regard to the particular administrative scheme, Salfi, 422 U.S. at 765, 95 S.Ct. at 2466. Specifically, the reasons for applying the doctrine are that (1) courts may never have to intervene if the complaining party allows the agency to discover and correct its own errors, (2) frequent and deliberate flaunting of administrative processes could weaken the effectiveness of the agency by encouraging people to ignore its procedures, see generally McKart, 395 U.S. at 193-95, 89 S.Ct. at 1662-63; Uniroyal, Inc. v. Marshall, 579 F.2d 1060 (7th Cir. 1978), and (3) judicial review may be hindered if litigants fail to allow the agency to compile a factual record, exercise its discretion, or apply its expertise. The doctrine is subject to numerous exceptions.

Courts have often held that legislative enactments are presumptively valid, until judicially declared otherwise, and that officials should act accordingly. Johnson v. Robison, 415 U.S. 361, 368, 94 S.Ct. 1160, 1166, 39 L.Ed.2d 389 (1974); Davies Warehouse Co. v. Bowles, 321 U.S. 144, 64 S.Ct. 474, 88 L.Ed. 635 (1944). But see Southern Pacific Transp., 134 Cal.Rptr. at 190-91 n. 2, 556 P.2d at 290-91 n. 2. In this case, Denberg informed the Board in his application of his belief that the statute was unconstitutional and the Board indicated that it intended to enforce the provision. Since the agency was bound to follow the statute, and appeared to have every intention of doing so, exhaustion would not have allowed the agency to "discover and correct its own error." A party need not exhaust administrative remedies if to do so would be futile. Porter County Chapter of Izaak Walton League, Inc. v. Costle, 571 F.2d 359, 363 (7th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 130 (1978); Wallace v. Lynn, 507 F.2d 1186 (D.C. Cir. 1974); Phillips v. Klassen, 502 F.2d 362 (D.C. Cir.), cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974).

Moreover, it is true that the premature judicial intervention in a dispute between an agency and an individual may usurp the "exercise of discretionary powers granted the agency by Congress." McKart, 395 U.S. at 194, 89 S.Ct. at 1663. Administrative agencies are created as separate entities and invested with certain powers and duties. The autonomy of the agency, however, is pertinent only where the function of the agency and the particular decision to be reviewed involve discretionary powers, or require application of special expertise. McKart, 395 U.S. at 194, 89 S.Ct. at 1663. Moreover, any harm to the agency's autonomy must be weighed against the validity of its decisionmaking powers and the equities of the case. Rosenthal, 581 F.2d at 1261 (recognizing need to weigh efficiency against countervailing considerations); Davis Supplement § 20.11, at 280 (recognizing "judicial inclination to decide exhaustion questions on the basis of the equities of whole cases").

Thirdly, in this case, there was no need for the agency to make a factual record, to exercise its discretion, or to apply its expertise since the agency relied on the unconstitutional statute and could not or would not attempt a constitutional determination of the statute under which it operated. At the time the district court determined whether it had jurisdiction, the underlying facts of this case were undisputed, and the only issue involved a pure question of law. Consequently, this court would not have been aided in its consideration of plaintiffs' claim by either the expertise or fact-finding facilities of the Board. Borden, Inc. v. FTC, 495 F.2d 785, 787 (7th Cir. 1974) ("It is well settled that . . . administrative remedies may be bypassed . . . if . . . the issue involved is a strictly legal one not involving the agency's expertise or any factual determinations. . . . "); Metcalf v. Swank, 444 F.2d 1353, 1356 (7th Cir. 1971) ("[T]he emerging rule would appear to be that since the administrative remedy cannot resolve the constitutional challenge, exhaustion will not be required unless the administrative action might make judicial determination of the constitutional question unnecessary." (citation omitted)).

While a more complete factual record developed by the agency may not have been helpful to the court of appeals, a careful consideration by the district court of the legal issue, as well as the appropriate relief to be granted, could be most helpful. These are the kind of questions that the agency is not competent to decide, but precisely the sort of issues that belong in a district court. If Denberg pursued the path suggested by the majority, this court would have had virtually no record and a constitutional question to face as a court of first impression. This is not the function of a court of review.

Moreover, Denberg properly raised a federal question "under any Act of Congress regulating commerce. . . ." Unlike the Social Security Act, the Railroad Retirement Act contains no express prohibition of jurisdiction under other statutory grants. Its provisions, like the remaining portions of the Social Security Act, do no more than state that administrative remedies shall first be exhausted before judicial review is undertaken. Such a statutory requirement of exhaustion, if not accompanied by statutory language or legislative history indicating a clear intent to proscribe all exceptions as in this case, simply reinforces the normal judicial reluctance to decide cases before administrative remedies have run their course.

Finally, to have required exhaustion in this case would have resulted in repetitious litigation. Instead of permitting a single suit on behalf of the 5,450 potential beneficiaries, an exhaustion requirement would have forced each of those individuals to file an administrative claim and possibly follow it with an appeal to the appropriate court of appeals, with a potential of 5,450 separate lawsuits although the problem would surely have been resolved before the extreme situation developed. I agree, however, with the majority's statement that the number of claims alone cannot confer jurisdiction on the district court. See Rosenthal, 581 F.2d at 1262. Here, on the other hand, a requirement that plaintiffs exhaust any additional formal procedures before the agency would have involved "a commitment of administrative resources unsupported by an administrative or judicial interest." Squillacote v. International Brotherhood of Teamsters, Local 344, 561 F.2d 31, 39 n. 19 (7th Cir. 1977), quoting, Salfi, 422 U.S. at 765-66, 95 S.Ct. at 2466-67.

In sum, I would affirm the district court's exercise of jurisdiction pursuant to 28 U.S.C. § 1337. It would have been futile for plaintiffs to have adhered to the administrative procedures and of no value to this court on review. To require the eligible class members to now pursue their claims before the Board will only serve to minimize the value of their claims because of other time limitations in the act on retroactive payments; members will not be able to recover benefits until the Board acts and appeals, if pursued, are exhausted. The eligible class members are now to be penalized because of an unconstitutional statute.

II. Scope of Relief

The majority contemplates that each plaintiff either reapply or apply for the first time to the Board for retroactive benefits and if their applications for relief are denied, appeal to this court under section 5(f). This provides little direction for the numerous class members who have already been notified that they are entitled to benefits. At a minimum, the majority should have remanded the case with instructions that the district court require notice to the class members of the disaster which now belatedly has befallen them and what recourse may remain available. If this situation raises some doubts in their minds about the effectiveness of this system it will be understandable.

In order to complete the picture as I see it, I consider some aspects of this case which the majority does not need to reach. However, I would, if we were to accept jurisdiction, tailor the scope of relief to some extent. Denberg, the class representative, filed his application on April 7, 1974, and would have been entitled to benefits from April 7, 1974, but for the operation of the unconstitutional dependency provision in the Act. After the Supreme Court struck down that provision, the district court defined class-wide relief according to the timetable for relief for the named plaintiff. The district court ordered that any spouse who was substantively eligible could apply for benefits in response to the lawsuit and obtain benefits as far back as April, 1974. The problem is not a continuing one as the Board "voluntarily" began granting spouse benefits to husbands, without regard to dependency, after the decision in Goldfarb.

The Board notes that the Act provides that annuity payments "shall begin with the month in which eligibility . . . was . . . acquired, but . . . not earlier than the first day of [the] twelfth month before the month in which the application . . . was filed (emphasis added). 45 U.S.C. § 231d(a). The Board narrowly concedes, that "it would have been proper for the district court . . . to allow back benefits for Mr. Denberg as of April of 1974 and similarly to allow back benefits for other applicants for one year prior to the date of their applications." Appellants' brief, at 16 n. 14. The Board, however, seeks to deny back payments to the individuals who never individually applied outside of this lawsuit. The Board argues that the award of such benefits is impermissible because a court may not award money damages against the United States in the absence of a statute waiving sovereign immunity. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Moreover, the Board contends that retroactive relief is not proper under the test established in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).

A. Sovereign Immunity

Wright v. Califano, 603 F.2d 666 (7th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980), involved entitlement to social security benefits that had been denied because of a dependency requirement which was similar to the provision in this case and was struck down in Califano v. Abbott, 430 U.S. 924, 97 S.Ct. 1540, 51 L.Ed.2d 768 (1977), aff'g, Abbott v. Weinberger, Civ. No. C-74-194 (N.D.Ohio, Feb. 11, 1976). The Social Security Act, like the Act here, provided for retroactive benefits for a period beginning twelve months prior to the date of application, if the applicant was otherwise eligible. 42 U.S.C. § 402(j)(1). In Wright, since the class included only those persons who had applied for and had been denied benefits, the court allowed back payments only for the 12-month period provided in the statute. Wright, 603 F.2d at 669, 671.

In Wright, the Secretary argued that spouse benefits under the Social Security Act could be awarded without regard to the dependency test only as of the date of Goldfarb. The government relied on both the equitable doctrines applicable to the retroactive application of Supreme Court decisions, as well as the doctrine of sovereign immunity. This court found that the Social Security Act should be applied in a class action pending at the time of Goldfarb as if the statute had never contained the dependency test. Moreover, this court rejected the Secretary's contention that the award of relief was barred by sovereign immunity.

There is no relevant distinction between this case and Wright. The complaint here was pending when Kalina was decided and the class certification relates back. Therefore, all members of the class were entitled to the benefit of Kalina. Moreover, like the court in Wright, 603 F.2d at 670, I find Testan to be "of little relevance." Unlike the plaintiffs in Testan, the plaintiffs in Wright were seeking a judicial determination reversing the Secretary's decision that they were ineligible for benefits under the Social Security Act at the time of their applications. Section 205(g) of that Act authorizes a district court to entertain such an action and expressly authorizes the court "to enter . . . a judgment . . . reversing the decision of the Secretary . . . ." 42 U.S.C. § 405(g).

In Wright, this court found that reversal of the Secretary's decision as to eligibility necessarily required the award of "retroactive" relief. Moreover, this court noted that the language of the Act was mandatory, allowing up to twelve months of benefits preceding the date of the application. Further, we relied on section 204, 42 U.S.C. § 404, which directs the Secretary to make proper adjustments in finding that Congress intended that a claimant receive the benefits to which he is entitled under the Act, including "retroactive" benefits. The "doctrine of sovereign immunity did not require more." 603 F.2d at 671-72.

This lawsuit is more like a judicial reversal of the Board's determination, as in Wright, than a civil suit for money damages. Plaintiffs here seek sums collected largely from the railroads and their employees and allocated specifically for the purpose of making these benefit payments. There is a distinction between money damage awards and the restoration of money improperly exacted or retained. Testan, 424 U.S. at 401, 96 S.Ct. at 954; Davis v. Romney, 490 F.2d 1360, 1371-72 (3d Cir. 1974); Griffin v. Harris, 480 F. Supp. 1072, 1074 (E.D.Pa. 1979).

Moreover, even if sovereign immunity would otherwise bar back payments, the Act contains a sufficient waiver of sovereign immunity. Testan, 424 U.S. at 400, 96 S.Ct. at 954. The Act mandates payment by providing that the spouse " shall . . . be entitled to a spouse's annuity . . . ." (emphasis added). The Act is restricted by the dependency provision, which was "in effect . . . read out of the Act" because of the decisions in Kalina and Goldfarb, see Gebbie v. United States Railroad Retirement Board, 631 F.2d 512, 515 (7th Cir. 1980), as well as by the substantive requirements and procedural condition that the claimants have applied for benefits. Finally, the Act waives any claim to sovereign immunity by expressly making the denial of an award of benefits subject to review in the courts. See Wright, 603 F.2d at 671 ("Reversal of the . . . decision . . . necessarily requires the award of `retroactive' relief").

The Board asserts that even if retroactive relief is not barred by sovereign immunity, it is inappropriate under the standards set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). As a general rule, decisions are applied retroactively. Cash v. Califano, 621 F.2d 626, 628 (4th Cir. 1980). The party seeking to have a court adopt a rule of nonretroactivity in a particular case has the burden of presenting the necessary equitable basis. In this case, the Board bears that burden.

In Chevron Oil Co., the Supreme Court presented an analytical framework to be used in determining whether a decision should not be afforded retroactive application:

In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed. . . . Second, it has been stressed that "we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." . . . Finally, we have weighed the inequity imposed by retroactive application, for "[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the `injustice or hardship' by a holding of nonretroactivity."

404 U.S. at 106-07, 92 S.Ct. at 355 (citations omitted). The application of these factors is not accomplished through a discrete reference to each separate factor, but by analysis of how they interact with one another. Cash, 621 F.2d at 629.

First, it is important to note that both this case and Kalina challenged the same provision of the Act, and that the Denbergs were in court before the Supreme Court affirmed Kalina, striking down the dependency clause. Kalina applied retroactively to permit the petitioner in that case to receive spouse benefits from one year before the date of his application. The only difference between this case and Kalina is that, here, plaintiffs reached the court of appeals through a different procedural path. Since I find that plaintiffs were properly in court, pursuant to 28 U.S.C. § 1337, at the time Kalina was decided, the plaintiffs in this case, as much as the petitioners in Kalina, should be entitled to retroactive relief. See Wright, 603 F.2d at 672 n. 17.

Using the factors outlined in Chevron Oil, the Board first claims that the substantive result in Goldfarb "was a departure in the law, not clearly foreshadowed by prior case law." The analysis does not center upon the Court's vote in a particular case, nor upon the general character of the law. The question to be addressed is whether past precedents paved the way for the result in Goldfarb or whether Goldfarb was a departure from an expected result. Cash, 621 F.2d at 630.

The results in Goldfarb and Kalina were foreshadowed by the earlier Supreme Court opinions in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), and Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975). Frontiero held unconstitutional a statute granting spouse benefits to all wives of armed services personnel, but requiring the husbands to prove actual dependency. Frontiero, 411 U.S. at 678-79, 93 S.Ct. at 1766, Weinberger held unconstitutional a Social Security program granting certain survivors benefits only to widows, excluding widowers; the Court found this gender-based distinction to be "indistinguishable from that invalidated in Frontiero," Weinberger, 420 U.S. at 642, 95 S.Ct. at 1230 and held that it discriminated against female wage earners by providing less protection for their survivors than for the survivors of male workers. As the court in Cash noted,

The Secretary [of HEW] cannot have been surprised by the result in Goldfarb. Since the opinions in Frontiero and Wiesenfeld were not themselves unanimous, the most the Secretary could have hoped for was a halt in a very clear trend. None of the retroactivity cases have turned on so tenuous a proposition. . . . Goldfarb clearly did not involve the reversal of an earlier decision, and, in light of Frontiero and Wiesenfeld, the issue presented in Goldfarb was not one of first impression.

Cash, 621 F.2d at 630-31. Thus, the first factor in the Chevron analysis weighs against the Board's position.

Second, the Board asserts that the retroactive relief ordered by the district court does not further the Act's purpose of compensating the needy for loss of the family's ability to depend on the former wage earner. Rather, it contends that the decision benefited only those who did not need spousal benefits because they had not lost the support of the family "breadwinner." The Board's argument is based upon an unsupported assumption of fact. Moreover, retroactive application furthers the constitutional rule that female wage earners should receive equal protection. "Retroactivity would simply insure that money paid into [the retirement fund] by a female wage earner would be available to her . . . spouse on the same terms as money earned and paid by a male wage earner is available to his spouse." Cash, 621 F.2d at 631.

Third, in determining whether substantial inequities will result from retroactive application, the Board claims that these benefits amount to a windfall and are not truly needed by the recipients. Moreover, it argues that the district court's order of back benefits will drain the Railroad Retirement Account and the expense would have to be met with funds earmarked for future benefits payments. The absence of dependency by the husband at the time his wife retires cannot be automatically equated with lack of need for supplementary income. While "[a] financial impact alone is an insufficient basis to mandate non-retroactivity," Cash, 621 F.2d at 632, our limitation on the class, see infra, should meet at least some of the Board's concerns. As in Kalina, 541 F.2d at 1210, the solvency of the fund is a matter to be taken up with the Congress. Rather than the benefits being a windfall for the applicant whose spouse made the contributions, it would instead be a windfall for the fund to be able to retain the contributions by reason of its unconstitutional statute.

In summary, the doctrine of sovereign immunity does not bar the relief requested. This case is no different than Wright insofar as Wright did not need to reach the Chevron test for retroactive application. In any event, even if Chevron applies, the reasoning of Cash, which rejected nonretroactive application of Goldfarb, indicates that Kalina should not be applied prospectively only.

B. Class Members

The class, as certified, included:

All past, present and future spouses of retired female railroad employees who have been, are being or will be denied a spouse's annuity under the Act by virtue of 45 U.S.C. § 231a(c)(3)(ii).

The parties challenge the scope of the district court's order awarding damages. Plaintiffs contend, and the district court seemed to envision, that all spouses of female retired annuitants, who were substantively entitled to benefits under the Act at any time after April 7, 1975, could recover back benefits as far back as April 7, 1974, regardless of whether they had ever applied for such benefits. In contrast, the Board contends that the class members, at most, are entitled to back benefits for only one year prior to the date of their application.

Although the members of this class shared a common question of law, Fed.R.Civ.P. 23(d)(2), each class member possessed an independent monetary claim. Pursuant to its judgment, the district court directed in its final order that the Board send out notices to female employee annuitants and other potential beneficiaries under the class action and set October 15, 1981, as the deadline for filing claims. This procedure is consistent with Rule 23(c)(4) which allows a class action to be maintained "with respect to particular issues," i.e., the constitutionality of the dependency requirement, and then in the same proceeding, to determine damages for the class members either individually or as sub-groups.

In this case, the class contains potentially four different groups which should be awarded varying relief. First, there are those individuals who failed to respond to the notice sent out pursuant to the district court's judgment. By setting a deadline of October 15, 1981, the district court presumably intended that only those individuals who responded would receive compensation for previously withheld annuities. In ordering this notice requirement, the district court was exercising its discretion to fashion equitable relief. The barring of recovery in this suit for those other class members who failed to respond has been recognized in several circuits as a reasonable tool for expediting the suit and managing the possible claims. See, e.g., Bing v. Roadway Express, Inc., 485 F.2d 441 (5th Cir. 1973); Foster v. City of Detroit, 405 F.2d 138 (6th Cir. 1968); see also Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D.Va. 1968). Therefore, any individual who did not respond to the court's notice by the deadline should be barred from recovery as a member of the class.

Second, there are the applicants who applied for the annuity prior to March 1, 1977, and were denied benefits by virtue of the dependency provision in the Act. To give effect to sections 5(a)(ii) and 2(c)(1) of the Act, the benefits awarded should be based on the date that the individual made application for such benefits. These applicants should be awarded benefits for the statutory period commencing twelve months prior to the date that actual application was made.

Third, there are the male spouses, who subsequent to the decision in Goldfarb and Kalina, applied for and were awarded spouse annuities beginning between March 1, 1977 and April 30, 1978, but were denied a full year's retroactive benefit pursuant to section 5(a)(ii) of the Act. These applicants should be awarded benefits for the period commencing twelve months prior to the date of their individual applications.

Fourth, plaintiffs' characterization of the class would allow husbands, who never applied for spouse annuities, but responded to this class action, to now make application and receive benefits retroactive as far back as one year prior to April 7, 1975. If this latter group were included to that extent, those spouses who sat on their rights, even after Goldfarb and Kalina made it clear that the dependency provision was unconstitutional, would now receive full benefits. Those individuals would collect payments contrary to the clear wording of the Act, which limits retroactive payments to twelve months prior to the time of application. 45 U.S.C. § 231a(c)(1). Moreover, such an award is contrary to the plain wording of the class certification. The class, as certified, included "All . . . spouses . . . who have been, are being or will be denied a spouse's annuity . . . ." (emphasis added). In a technical sense, no one can be sure that he has been denied a benefit if he has never applied for it.

Plaintiffs argue that excluding spouses who never applied for benefits, but who responded to the court's notice, would be inequitable. The argument is that, at least until the statute was rewritten, a husband who did not receive "at least one-half of his support from his wife," 45 U.S.C. § 231a(c)(3), was not a "spouse" within the meaning of the Act. Plaintiffs contend that since no member of the plaintiff class met the Act's definition of a "spouse," none were "among the persons to whom the filing provisions of the Act applied." As the plaintiffs point out. "[i]n the face of this statutory scheme, no one reading the Act prior to the Supreme Court's affirmance of Kalina [in 1977] could have believed that `non-spouses' such as plaintiffs were, on the one hand, ineligible for benefits because of their status and yet on the other hand bound to comply with the Act's application and review procedures, which applied only to `spouses.'"

This argument has some merit. What is unacceptable, however, is that these spouses never acted until they received notice from the district court in this case, informing them that the dependency provision was unconstitutional. In light of plaintiffs' argument, however, they should not be denied relief altogether.

The benefits accruing to this last group of spouses should be limited. First, an affirmative response to the district court's order should constitute a sufficient application for benefits under the Act. Therefore, the 6,189 spouses who responded to the notices should be treated as if they had applied for benefits as of the October 15, 1981, court deadline. Their retroactive benefits should, therefore, be limited to the twelve months prior to October 15, 1981. All other applicants should receive benefits from one year prior to the date of their application.

The overall result of this approach is not to be seen as having any undue impact on the Board. The Board must still examine and pass on the usual merits of each individual claim. Appeals from any individual determination would, presumably, be appealable to this court, after final agency action, not to the district court. That fits properly into the usual track for administrative review. The eligible class members would receive no more than the statute allows, without the unconstitutional provision, but many of those who did nothing more than respond to the district court's deadline notice would receive less than if they had acted more promptly. On the other hand, there is no justification whatsoever for awarding all members of the class, many of whom had previously shown no interest in pursuing their own applications, retroactive benefits back to the year before the named plaintiff filed his own individual claim as the trial court provided. The result of this remedy is a fair, balanced, and practical solution for the Board and the wronged claimants.

As I would therefore reverse in part and remand for further proceedings, I respectfully dissent.