Alberta E. Burns, on Behalf of Herself and All Others Similarly Situated v. United States Railroad Retirement Board

701 F.2d 193, 226 U.S. App. D.C. 182, 1983 U.S. App. LEXIS 30185

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 25, 1983
• Docket: 81-2293
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting opinion filed by Circuit Judge MacKINNON.

GINSBURG, Circuit Judge:

Petitioner, Alberta Burns, is a retiree who ranks within a special and dwindling category of social insurance recipients. She is a dual beneficiary. She receives primary benefits, on her own account, as a retired worker covered under the Social Security Act (SSA). She also receives derivative benefits as the surviving spouse of a worker covered under the Railroad Retirement Act (RRA).¹ The SSA requires the reduction of a recipient’s benefits by one dollar for every two dollars of income the recipient earns in excess of a statutorily defined exempt amount. 42 U.S.C. § 403(b). The RRA incorporates the SSA excess earnings provision by reference. 45 U.S.C. § 231a(g)(2).² If the two fifty percent offset provisions, the one in the SSA and one in the RRA, are separately applied to each of the benefits a dual beneficiary receives, income earned in excess of the exempt amount³ will yield, in total, a one hundred percent or a dollar-for-dollar offset.⁴

In 1974, petitioner Burns earned $3800. The exempt amount that year was $2400. Thus, her excess earnings amounted to $1400. She reported her 1974 earnings to the Social Security Administration (Administration) and that agency deducted $744 from her social security benefits in 1976.⁵ Two years later, the Railroad Retirement Board (Board) offset $700 against petitioner Burns’s 1978 railroad retirement benefits to account for her excess earnings of $1400 in 1974. AR at 31-34. Burns unsuccessfully contested the Board’s action through administrative channels. In re Alberta E. Burns, Railroad Retirement Act Claims Appeal Docket No. 1883. As authorized by 45 U.S.C. §§ 231g, 355(f), she now petitions this court to review the Board’s December 11, 1980, decision rejecting her claim for recovery of the $700 deducted from her 1978 benefits.

Burns sought to proceed here on behalf of a class. Our decision denying her motion for an order certifying the class and granting the Board’s motion to dismiss the class element of the petition appears in a companion opinion. See Burns v. United States Railroad Retirement Board, 701 F.2d 189 (D.C.Cir.1983).

Initially, Burns challenges the Board’s offset as contrary to the intent of Congress. If the Board correctly applied its governing statute, she argues alternately, the resulting dual offset is unconstitutional because it contravenes the equal protection principle. Finally, she urges that even if her statutory interpretation and constitutional arguments fail, the Board acted impermissi-bly in rejecting her request for waiver of the $700 recovery.

Petitioner Burns maintains principally that separate and independent excess earnings offsets by the Administration and the Board leave a dual beneficiary without any fruit from her labors; the dollar-for-dollar offset, she emphasizes, removes all incentive to earn more than the exempt amount. But the laws that entitle her to dual benefits, on their face, also exact dual offsets. Because we do not believe a court is at liberty to excise either offset or to require the Administration and Board to coordinate deductions, each taking away less than its governing statute authorizes, we cannot embrace Burns’s statutory construction or constitutional arguments. Nonetheless, we disagree with the Board’s disposition of this case. For the reasons stated in part III of this opinion, we reverse the determination that petitioner Burns was “at fault” in causing the Board to overpay her $700, and instruct the Board to decide on remand whether recovery of the overpayment should be waived under the RRA’s “purpose of [the Act]” or “equity or good conscience” standard. See 45 U.S.C. § 231i(c) (Board shall not recover overpayment to individual who is “without fault” if recovery “would be contrary to the purpose of [the Act] ... or would be against equity or good conscience”).

I. The Earned Income Offset Provisions and Their Application to Dual Beneficiaries

The Social Security Act provides that “[deductions ... shall be made from any payment or payments under this sub-chapter to which an individual is entitled ... if for such month he is charged with excess earnings, under the provisions of subsection (f) of this section,” 42 U.S.C. § 403(b); subsection (f), in turn, states that “an individual’s excess earnings for a taxable year shall be 50 per centum of his earnings for such year in excess of [the exempt amount],” 42 U.S.C. § 403(f)(3). The Railroad Retirement Act, since 1954, has incorporated the SSA offset provision by reference. Social Security Amendments of 1954, Pub.L. No. 83-761, § 401(d), 68 Stat. 1052,1098. The RRA thus states that “[deductions ... shall be made from any payments to which a survivor is entitled ... if for such month such survivor would be charged with excess earnings under section 403(f) of Title 42 .... ” 45 U.S.C. § 231a(g)(2).

Petitioner Burns acknowledges the literal meaning of these texts; she recognizes that “both Acts provide for an offset.” Brief for Petitioner at 18. She argues, however, that the court should reject “narrow, overly-literal interpretation which contradicts the Congressional intent and purpose underlying the enactment of these statutory provisions.” Id. at 19. But a statute “as complex as the Social Security Act,” Dissent at 212, reflects many legislative concerns and purposes. It oversimplifies, we believe, to ascribe a sole purpose to the statutory scheme at issue here.

The vast majority of retirees covered under the SSA or the RRA receive only one federal social insurance benefit. See supra note 1. No doubt Congress had these single benefit retirees in view in 1972 when it revised the SSA’s excess earnings formula (and, by reference, the RRA’s) to reduce all benefit deductions from dollar-for-dollar to one dollar for every two. Social Security Amendments of 1972, Pub.L. No. 92-603, § 105(a)(3), 86 Stat. 1329, 1341; see supra note 4. The evidence is indeed “overwhelming” that Congress reduced the offset to encourage social security beneficiaries to work. See Dissent at 209-210, 213-214. However, there is no evidence that Congress envisioned but one offset for the retiree who receives two federal social insurance benefits. Rather, it appears that in 1972, the year the fifty percent formula was spread across the board,⁶ as in preceding years, Congress did not advert specifically to the dual beneficiary’s situation when it legislated offsets for earned income. See Dissent at 212.⁷

Based on the “solicitude” Congress showed for gainfully-employed social security annuitants, cf. Dissent at 211-212, Burns urges that the work incentive purpose motivating the 1972 offset reduction should exclude an excess earnings toll greater than fifty percent for single and dual beneficiaries alike. But the provisions Congress put in place in the two statutes express the opposite. It is treacherous to brush aside the literal meaning of those provisions and, by riveting attention on work incentive, avoid forthright recognition of another concern on the mind of Congress. That concern relates to the appropriateness of allowing a retiree to collect two federal social insurance benefits. See supra note 1.

Congress initially prohibited RRA surviv- or annuitants from simultaneously receiving social security benefits; that restriction was repealed in 1955.⁸ In 1951, the RRA was amended to eliminate dual benefits for employee annuitants; that amendment was repealed in 1954.⁹ See D. Schreiber, Legislative History of the Railroad Retirement and Railroad Unemployment Insurance Systems 390-92 (1978) (detailed account of shifting legislative positions on allowance of multiple benefits under RRA). Payment of these dual benefits “threatened the railroad retirement system with bankruptcy by the year 1981,” United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 169, 101 S.Ct. 453, 456, 66 L.Ed.2d .368 (1980), and “prompt[ed] Congress [in 1974] to completely revise the Railroad Retirement Act to gradually eliminate dual benefits.” Dissent at 204 n. 2. See supra note 1.

In light of the ambivalence of Congress regarding allowance of dual benefits, and the legislature’s ultimate rejection of them, we do not venture to guess how Congress would have responded had it been asked the question this case poses in 1955, when dual benefits were allowed to persons situated as is petitioner Burns, or in 1972, when the excess earnings offsets were reduced across the board to fifty percent.¹⁰ We note only that it can not be said with any secure support that Congress would have replied, “Yes, individuals who receive two benefits, like individuals who receive only one, should be subject to but one offset for nonexempt earnings.”¹¹ While we offer no speculation as to what solution the legislature would have adopted had it specifically adverted to this case, we point out that on at least two occasions, information was placed before Congress concerning the double offset contested here.

First, in a 1972 report to the House Committee on Interstate and Foreign Commerce, the Commission on Railroad Retirement, established by Congress in 1970 to recommend changes in the financially troubled system, described the RRA’s then effective “survivor beneficiaries earnings test” as

equivalent to the social security earnings test — which reduces the beneficiary’s annuity by one dollar for every two earned between [the applicable amounts], thereafter on a dollar-for-dollar basis. Dual beneficiaries are, of course, subject to the various social security work clauses on their dual benefits.

H.R.Doc. No. 350, 92d Cong., 2d Sess. 385 (1972) (emphasis supplied). Second, in 1976, a bill introduced in the House of Representatives proposed “amending] the Railroad Retirement Act of 1974 to provide that amounts of excess earnings with which a social security benefit is charged shall not be used in making deductions from widows’ benefits under the railroad retirement system.” H.R. 14153, 94th Cong., 2d Sess. (1976). The proposed amendment would have achieved through legislation what petitioner Bums asks the court to order. We agree with Burns that introduction of this bill does not indicate legislative acquiescence in the Administration’s and Board’s position that dual benefits attract dual offsets, see Dissent at 210 n. 19, but the proposal does suggest that at least some members of Congress were cognizant of the agencies’ position.¹²

Since we cannot divine the lawmakers’ will with respect to the special and only category of retirees the instant petition describes — recipients of dual benefits — we return to the scheme Congress adopted. Cf. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980) (“Absent a clearly expressed legislative intention to the contrary, [statutory] language must ordinarily be regarded as conclusive.”). The RRA authorizes petitioner Burns to retain her social security benefit in full while collecting her railroad retirement annuity in full. See supra note 7. Each Act calls for an identical earned income offset against benefits under that Act. Literal application of each offset provision is not readily labeled “eccentric,” “absurd,” or “unreasonable.” But cf. Dissent at 206-208 & nn. 11-13. Congress might well have considered a double offset a fitting match for a double benefit. The second offset for the dual beneficiary ameliorates the disparity in benefits received by similarly situated surviving spouses (persons covered by social insurance both on their own account and as spouses of covered workers), most of whom qualify for only one benefit. See supra note 1. In addition, dual recoup-ments, when a dual beneficiary’s earned income exceeds the exempt amount, accord with the discrete character Congress still orders for the railroad retirement and social security funds. Further, there is nothing inherently arbitrary about a dollar-for-dollar offset; Congress could reasonably conclude that retired persons who earn income do not have the need fully retired persons have for replacement of pre-retirement income. In sum, while the wisdom of a dual or dollar-for-dollar offset is indeed debatable, “we think it clear that Congress could rationally choose to adopt such a course.” Weinberger v. Salfi, 422 U.S. 749, 781, 95 S.Ct. 2457, 2474, 45 L.Ed.2d 522 (1975).

We note finally that even if we agreed with petitioner Burns that Congress unquestionably would have specified a fifty percent solution had it focused on her situation, we would find her petition problematic. At bottom, her statutory construction argument invites the court to order adjustments of the kind appropriately left to legislative determination. Cf. Califano v. Westcott, 443 U.S. 76, 91-93, 99 S.Ct. 2655, 2664-65, 61 L.Ed.2d 382 (1979). Questions such as these arise: Should one or the other of the two offset provisions be excised for persons situated as Burns is? Which offset, if either, would Congress have eliminated? Burns suggests, as one possible solution, a sequential rather than a simultaneous offset: first, an offset of fifty percent of her 1974 earnings over $2400 against her social security benefits, then a further offset of fifty percent against her railroad retirement benefits in the event she earned over $4800. Brief for Petitioner at 31-32. She proposes as the preferable solution forfeiture of fifty percent of her excess earnings “to the two agencies.” Id. at 32.

The precise adjustment appropriate to bring the offset provisions in line with what petitioner Burns sees as the sole design of Congress is not immediately apparent. Her invitation for court-ordered amendment of one or both of the implicated statutory subsections involves “fine tuning” the judiciary should not undertake, “definitional and policy questions” judges are ill-equipped to resolve. Compare Califano v. Westcott, supra, 443 U.S. at 92, 93, 99 S.Ct. at 2664, 2665, with id. at 95 & n. 1, 99 S.Ct. at 2666 & n. 1 (Powell, J., dissenting). She cites no precedent in support of judicially-directed revision of legislation of the character in which she would have the court indulge.¹³

In sum, despite the appeal of petitioner Burns’s position, we are persuaded that hers is “a legislative, and not a legal, argument.” Schweiker v. Wilson, 450 U.S. 221, 238, 101 S.Ct. 1074, 1084, 67 L.Ed.2d 186 (1981).

II. The constitutionality op DUAL OFFSETS

• Petitioner Burns asserts that separate fifty percent excess earnings offsets exacted by the Administration and the Board violate the equal protection component of the Fifth Amendment’s due process clause. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975). What we have said concerning the rationality of dual offsets as a match for dual benefits essentially disposes of her Constitution-based argument. See supra pp. 198-199.

The discrimination against dual beneficiaries alleged here does not rest on a characteristic, such as race or sex, triggering strict or heightened judicial scrutiny. Cf. Wen-gler v. Druggists Mutual Insurance Co., 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980) (workers’ compensation scheme’s gender-based discrimination violates equal protection); Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977) (gender-based discrimination in social security program violates equal protection). Rather, as Burns acknowledges, social legislation of this sort, when no suspect or near-suspect classification is involved, attracts a “significant presumption” of constitutionality. Brief for Petitioner at 38. See Schweiker v. Wilson, supra, 450 U.S. at 230, 101 S.Ct. at 1080. Plausible reasons support dual offsets when a federal social insurance recipient is allowed dual benefits. See supra pp. 198-199. The “rational basis” criterion applicable here requires no more. See United States Railroad Retirement Board v. Fritz, supra, 449 U.S. at 179, 101 S.Ct. at 461 (“Where ... there are plausible reasons for Congress’ action, our inquiry is at an end. It is, of course, ‘constitutionally irrelevant whether this reasoning in fact underlay the legislative decision,’ [citation omitted] because this Court has never insisted that a legislative body articulate its reasons for enacting a statute.”). Sympathy for the circumstances of a complainant, or a belief that the legislation reviewed advances unsound policy, does not permit a court to deviate from this highly deferential standard. See, e.g., Califano v. Boles, 443 U.S. 282, 99 S.Ct. 2767, 61 L.Ed.2d 541 (1979); Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228 (1977); Mathews v. De Castro, 429 U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976). See also Yost v. Schweiker, 545 F.Supp. 591 (D.S.D.1982) (citing Fritz as controlling precedent and upholding SSA provision dictating that spouse divorced after marriage of 42 years is disqualified from receiving benefits under both SSA and RRA).

III. Petitioner’s request to waive recovery OF THE ASSERTED OVERPAYMENT

In 1978, the Board fully recouped the asserted $700 overpayment attributed to petitioner Burns’s 1974 earnings above the $2400 exempt amount. Thereafter, upon obtaining legal assistance, Burns petitioned the Board to waive recovery under section 10(c) of the Railroad Retirement Act, which provides, in pertinent part:

There shall be no recovery in any case in which more than the correct amount of annuities or other benefits has been paid ... to an individual ... who, in the judgment of the Board, is without fault when, in the judgment of the Board, recovery would be contrary to the purpose of [the Act] ... or would be against equity or good conscience.

45 U.S.C. § 231i(c).¹⁴ The Board denied the waiver request;¹⁵ it ruled that, because petitioner Burns did not report her 1974 earnings to the Board (although she did report them to the Social Security Administration), she was “at fault in causing the overpayment,” AR at 4, therefore she was ineligible for a waiver. We conclude that the Board’s attribution of fault to Burns is not supported by substantial evidence.¹⁶ Accordingly, we vacate the order here on review and remand the case to the Board with instructions to grant the waiver request if the Board determines, in accordance with section 10(c), that recoupment from petitioner Burns is not impelled by the purpose of the Act or by equity or good conscience. See, e.g., Hays v. Finch, 306 F.Supp. 115 (W.D.Pa.1969).

A. The fault attribution

The Board acted to recoup benefits paid to Burns precisely because she reported her 1974 earnings: her report to the Social Security Administration caused that agency to recoup $744 by suspending her social security benefits for more than two months in 1976;¹⁷ when the Administration reported those same earnings to the Board, it in turn recouped $700 two years later by suspending her survivor’s annuity for four and one half months. AR at 31-34. In reviewing the Board’s attribution of fault to petitioner Burns we proceed from the undisputed fact that she did not conceal her earnings.¹⁸ Instead, she timely and accurately reported her earnings to the Social Security Administration, the government agency responsible for administration of her primary social insurance benefit.¹⁹ Cf. Rini v. Harris, 615 F.2d 625 (5th Cir.1980) (fault lies with agency, not with recipient, when agency fails to provide clear, timely information concerning benefit entitlement).

The Board maintains, however, that Burns was at fault because she failed to twice report her earnings. She should have known, the Board contends, that the RRA required an offset for excess earnings separate from the social security offset, and a filing separate from the report she made to the Administration. To support its view of what Burns should have known and its consequent fault determination, the Board points to two considerations. First, in 1969, when Burns filed her application for a survivor’s annuity under the RRA, she received a pamphlet instructing her, inter alia, to report earnings over the exempt amount. See Brief for Respondent App. B.²⁰ At that time, she signed a printed form certifying that the pamphlet’s contents had been explained to her and that she understood she must tell the Board of her earnings in excess of the exempt amount. See AR at 22. Second, in 1973, she was informed of a $26 RRA survivor’s annuity overpayment occasioned by her excess earnings, see AR at 29; according to the Board, the 1973 notice should have alerted her to the need to report her 1974 earnings to both agencies.

Turning first to the Board’s 1973 recoupment of $26 based on petitioner Burns’s receipt one year of $53.60 in annual earnings over the exempt limit,²¹ the asserted alert to Burns is not readily discerned. Nothing in the record indicates any corresponding SSA recoupment. Nor does the 1973 overpayment notice refer to any default on Burns’s part in failing to report earnings to the Board. AR at 29.²² In short, this evidence of an alerting circumstance adequate to justify the Board’s fault finding appears highly insubstantial.

While the pamphlet Burns received in 1969 did inform her of the fifty percent offset applicable under the RRA, it did not explain that the offset operated twice against a person in her situation. Rather, it simply conveyed that she would lose one dollar in benefits for every two dollars of yearly earnings above the statutory ceiling.²³ The Social Security Administration was no more enlightening. Indeed, after petitioner Burns reported her 1974 earnings to the Administration, the responsive overpayment notice she received informed her: “You will never have more than $1 in benefits withheld for each $2 of earnings above [the exempt level].” AR at 36.

Petitioner Burns stated in her waiver request that although she received the “handbook” from the Board, she did not read it. AR at 45. She noted the small type “difficult to read for the elderly.” AR at 12.²⁴ And she stressed that all the information the Administration and Board gave her appeared “the same as to reporting requirements and withholding $1 for every $2.” Id. She understood that the two benefits schemes were “coordinated with and by the Social Security Administration and the Railroad Retirement Board”; therefore, she “assumed that reporting her earnings to either government agency” satisfied her obligation to report. Id. Most pointedly, she said, “I never thought I would be charged twice for going over the limit and lose all that money I had earned or I would not have worked past the limit.” AR at 45.

This court has divided on the question whether, under the governing statutes, Burns could “be charged twice for going over the limit,” thereby “los[ing] all [the] money she had earned.” In light of the division on the court, it is all the more difficult to charge her with fault for her understanding of the advice she received from the Administration and the Board concerning benefit offsets for excess earnings.²⁵ Cf. Hays v. Finch, supra, 306 F.Supp. at 120 (holding plaintiff not at fault in accepting a lump sum social security benefit a second time, observing that the agency’s fault finding “might be appropriate if plaintiff were an accountant”). In sum, on the record this case presents, the Board’s denial of a waiver to petitioner Burns on the ground that she was at fault is not tenable.

B. The remaining waiver criteria

Since the Board held Burns at fault, it did not reach the further questions whether recoupment would conflict with the purpose of the Act or with equity or good conscience. See 45 U.S.C. § 231i(c). As to those standards, Board regulations, 20 C.F.R. § 255.12, list among factors meriting consideration at the time of a proposed recoupment:²⁶

(d) The extent to which the individual is dependent upon the current payment of his annuity or pension for the necessities of life.

Similarly, Social Security Act regulations governing waivers provide that recoupment would “defeat the purposes of [the Act]” in

situations where the person from whom recovery is sought needs substantially all of his current income (including social security monthly benefits) to meet current ordinary and necessary living expenses.

20 C.F.R. § 404.508(b).'

Judged by “hardship” considerations of this nature,²⁷ petitioner Burns’s waiver request would appear compelling. At the time of recoupment, she was 74 years old and living entirely on her own social security benefits and her railroad survivor’s annuity.²⁸ Her total monthly income from these benefits was $570, her monthly living expenses, $417.50. See AR at 44. The amount withheld by the Board for four and one half months constituted close to 25% of her monthly income. And the recoupment meant that she had labored for no monetary gain, although that was hardly her intention. See AR at 45.

The “hardship” waiver criteria, however, were not addressed by the Board, and the question is one for initial administrative determination subject to court review. We therefore remand this case to the Board for expeditious determination whether, in view of petitioner Burns’s satisfaction of the “without fault” criterion, waiver of reeov-ery would be consonant with the Act’s purpose or with equity or good conscience.

Reversed and remanded.

1 . When both spouses are covered as primary beneficiaries under the SSA, dual benefits are not available. Petitioner Burns, had her spouse engaged in employment covered by the SSA rather than the RRA, would not have been entitled to payments exceeding the amount due under her own account or the amount due derivatively under her husband’s account. In effect, she could obtain the higher of the two benefits (her own primary benefit or a derivative benefit as surviving spouse of a covered worker), but she could not receive both. See 42 U.S.C. § 402(k)(3)(A). See generally Blumberg, Adult Derivative Benefíts in Social Security, 32 Stan.L.Rev. 233, 240-41 (1980); Martin, Social Security Benefits for Spouses, 63 Cornell L.Rev. 789, 795-801 (1978); Note, Women and Social Security: Seizing the Moment for Change, 70 Geo.L.J. 1563, 1568, 1571-73 (1982).

Phase out of dual benefits for RRA annuitants commenced in 1974. See United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 168-70, 101 S.Ct. 453, 455-57, 66 L.Ed.2d 368 (1980). In 1981, Congress accelerated the phase out. Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, § 1119(d)(2), (h)(4), 95 Stat. 633, 635-36; see S.Rep. 139, 97th Cong., 1st Sess. 914-15, reprinted in 1981 U.S. Code Cong. & Ad.News 396, 938-39 (dual benefits for RRA survivor annuitants eliminated except for recipients whose entitlement was determined prior to August 13, 1981).

2 . RRA citations in this opinion, unless otherwise stated, are to the Railroad Retirement Act of 1974, which became effective January 1, 1975. Pub.L. No. 93-445, 88 Stat. 1305 (1975) (codified at 45 U.S.C. § 231 et seq.). For the year involved in this case, 1974, the Railroad Retirement Act of 1937 remained in effect. The excess earnings provision in the 1937 Act, 45 U.S.C. § 228e(i)(l)(ii), was carried over to the 1974 Act virtually unchanged. See 45 U.S.C. § 231a(g)(2).

3 . The RRA offset provision originally applied to earnings in excess of $25 per month. Act of July 31, 1946, Pub.L. No. 79-572, § 213, 60 Stat. 722, 731. The exempt amount was raised to $50 per month in 1951, Act of Oct. 30, 1951, Pub.L. No. 82-234, § 20, 65 Stat. 683, 687, and to $75 per month in 1952, Act of July 18, 1952, Pub.L. No. 82-590, § 6(d)(2), 66 Stat. 767, 777.

Since 1954, the RRA has incorporated by reference the SSA definition of excess earnings. In that year, the SSA monthly limitation was replaced by an annual earnings limit of $1200. Social Security Amendments of 1954, Pub.L. No. 83-761, § 103(d)(2), 68 Stat. 1052, 1073.

From 1960 to 1972, a two-part definition of excess earnings applied. See infra note 4. In 1974, the year involved in this case, a beneficiary under the RRA or the SSA could earn up to $2400 a year without losing any benefits. See Social Security Amendments of 1972, Pub.L. No. 92-603, § 105(a)(3), 86 Stat. 1329, 1341. In 1977, Congress amended the SSA to provide for annual incremental increases in the exempt earnings amount; by 1982 a beneficiary could retain without any offset $6000 in earnings. Social Security Amendments of 1977, Pub.L. No. 95-216, § 301(c)(1), 91 Stat. 1509, 1530.

4 . Between 1946 and 1960, a recipient of an RRA survivor’s annuity would lose a dollar in benefits for every dollar earned over the exempt amount, in effect a 100% offset. In 1960, Congress amended the SSA, and by reference the RRA, to provide that, on earnings between $1200 and $1500 per year, benefit recipients would lose only one dollar for every two dollars earned, a 50% offset. Social Security Amendments of 1960, Pub.L. No. 86-778, § 211(e), 74 Stat. 924, 956. Earnings in excess of $1500 remained subject to a 100% offset against benefits. Thereafter, Congress repeatedly raised both the exempt amount, see supra note 3, and the level of earnings subject to the 50% offset, see Social Security Amendments of 1961, Pub.L. No. 87-64, § 108, 75 Stat. 131, 140 (50% applicable to earnings between $1200 and $1700); Social Security Amendments of 1965, Pub.L. No. 89-97, § 310, 79 Stat. 286, 380 (50% applicable to earnings between $1500 and $2700); Social Security Amendments of 1967, Pub.L. No. 90-248, § 107, 81 Stat. 821, 834 (50% applicable to earnings between $1680 and $2880). In 1972, Congress extended the 50% offset to all earnings in excess of the statutory exempt amount. Social Security Amendments of 1972, Pub.L. No. 92-603, § 105, 86 Stat. 1329, 1341.

The court questioned counsel for the Board at oral argument concerning the agencies’ practice with respect to dual beneficiaries during the years when a 100% offset applied to all or part of income earned in excess of the exempt amount:

Q: What’s your answer to that question [whether dual beneficiaries in fact lost two dollars in benefits for each.dollar of excess earnings]?

A: The answer is that before the fifty cents on the dollar, there would have been a dollar taken out on one side and a dollar taken out on the other side.

Q: Your answer to the question is, when social security had a 100% offset and when railroad retirement had a 100% offset, a woman in Mrs. Burns’s position would be subject to a 200% offset?

A: No, she would keep working until she lost her benefits on both sides.

Q: Yes, but, for every dollar that she earned over the earnings limit, two dollars would come out of benefits?

A: That’s correct, that’s correct.

Of course, in no event would a dual beneficiary stand to lose more than the amount of her social insurance benefits.

5 . The recoupment notice sent to petitioner Burns by the Administration listed her 1974 earnings as $3888 (apparently an $88 overstatement), placing her $1488 over the $2400 exempt amount then effective, and yielding $744 as the benefit offset. Administrative Record (AR) at 35-36.

6 . From 1960 until 1972, the 50% formula applied to a first tier of earnings above the exempt amount. See supra note 4.

7 . The Railroad Retirement Act of 1937 originally provided a lump sum death benefit, but no monthly annuity, for survivors. Act of June 24, 1937, Pub.L. No. 75-162, § 5, 50 Stat. 307, 312. In 1946 survivors’ annuities were introduced, but an individual situated as is petitioner Burns could not receive payments in excess of the amount authorized for the higher of the two benefits. She could receive only her own primary social security benefit and the amount, if any, by which her derivative railroad retirement annuity exceeded her social security benefit. Act of July 31, 1946, Pub.L. No. 79-572; § 213, 60 Stat. 722, 729-30. Dual entitlement to both a primary SSA benefit and a derivative RRA benefit, without offsetting one against the other, was first authorized in 1955. Act of Aug. 12, 1955, Pub.L. No. 84-383, § 2, 69 Stat. 715, 716 (repealing 45 U.S.C. § 228e(g)(2) (1952)).

The excess earnings offset evolved separately. It has figured in the RRA since 1946, Act of July 31, 1946, supra, 60 Stat. at 731, and was cast in its current shape, incorporating by reference the excess earnings provision of the SSA, in 1954. Social Security Amendments of 1954, Pub.L. No. 83-761, § 401(d), 68 Stat. 1052, 1098. See Dissent at 205 n. 4.

8 . See Act of July 31, 1946, Pub.L. No. 79-572, § 213, 60 Stat. 722, 731, repealed by Act of Aug. 12, 1955, Pub.L. No. 84-383, § 2, 69 Stat. 715, 716. The Act of July 31, 1946, supra, also provided that an RRA survivor’s annuity would be reduced by the amount of the beneficiary’s primary RRA annuity. This dual benefit restriction was eliminated in 1954. Act of Aug. 31, 1954, Pub.L. No. 83-746, § 10, 68 Stat. 1038, 1039.

9 . See Act of Oct. 30, 1951, Pub.L. No. 82-234, § 18, 65 Stat. 683, 686, repealed by Act of June 16, 1954, Pub.L. No. 83-398, 68 Stat. 250.

10 . See supra note 4.

11 . Cass v. United States, 417 U.S. 72, 94 S.Ct. 2167, 40 L.Ed.2d 668 (1974), is hardly an “identical” case. See Dissent at 208-209 nn. 14, 15. The Court there dealt with conflicting express provisions in the same statute. The same is true of Bahre v. Hogbloom, 162 Conn. 549, 295 A.2d 547 (1972), featured in Dissent at 214 n. 31. Here, by contrast, there is no clash of express provisions; there is, rather, a silence, a circumstance “never contemplated by the legislature.” Id. at 212. Nor is Freeman v. Harris, 625 F.2d 1303 (5th Cir.1980), cited in Dissent at 214, a precedent closely in point. The offset in that case was unrelated to earned income, the Secretary’s policy regarding workers with three statutory entitlements left them with fewer benefits than they would have received if they held only two entitlements, and the policy thwarted the overriding purpose of Congress to render state workers’ compensation programs the prime providers of benefits.

12 . This case is not the first nor the only current court challenge to the agencies’ literal reading of the offset provisions. A case similar to this one is sub judice. Linquist v. Schweiker, No. 80-0698-CV-W (W.D.Mo. filed July 31, 1980). See Bums v. United States Railroad Retirement Bd., at 192 n. 11 (D.C.Cir.1983). For an earlier effort, see Finnerty v. Cowan, 508 F.2d 979 (2d Cir.1974), on remand, No. 73-CV-206 (N.D. N.Y.1976) (district court upheld against constitutional challenge dual offsets for dual beneficiaries).

13 . When courts do adjust statutes because a constitutional infirmity makes the task unavoidable, they choose between straightforward extension and invalidation. Because judges in such cases act only provisionally, they use primary colors and do not attempt shading in adjusting the legislature’s design. See Califano v. Westcott, supra.

The solution the Dissent proposes leaves it not to the legislature, but to the Administration and the Board “to coordinate their reduction of benefits for excess earnings.” Dissent at 213 n. 30. As demonstrated by this case, the Dissent notes, id., the two agencies share information regarding beneficiaries’ reports of excess earnings. But sharing information differs markedly from agreeing not to use the offset formula directed by each agency’s governing statute and cooperating to replace the statutory formula with another of the agencies’ making, one that will yield smaller returns to the funds the agencies administer. If the adjustments in question are not within the judicial province to devise, the task is not properly delegated by the court to executive agencies.

14 . For other benefit statutes specifying the same standards for recoupment waiver see 10 U.S.C. §§ 1442, 1453 (service member’s family annuity and survivor’s benefits); 42 U.S.C. § 1383(b) (supplemental security income) (also allowing waiver if de minimis recovery would “impede efficient or effective administration” of the statute); 42 U.S.C. § 1395gg(c) (Medicare). Some statutes do not refer to the purpose of the legislation but simply authorize waiver of recoupment absent fault on the recipient’s part, and if not inconsistent with equity and good conscience. E.g., 5 U.S.C. § 8346(b) (federal pension); 38 U.S.C. § 3102(a) (veterans’ benefits). Others specify, in addition to an equity/good conscience standard, a further criterion such as “[not] against the public interest,” e.g., 5 U.S.C. § 5922(b)(2) (foreign station allowances), 5 U.S.C. § 4108(c) (civil service training expenses), or “in the best interest of the United States,” e.g., 10 U.S.C. § 2774(a) (military pay).

15 . Burns’s waiver request was rejected at three agency levels, first by the Bureau of Retirement Claims, AR at 46, next by the Appeals Referee, AR at 15, and finally by the Board, AR at 3.

16 . See Williams v. United States Railroad Retirement Bd., 585 F.2d 341, 343 (8th Cir. 1978) (per curiam) (interpreting 45 U.S.C. § 355(f) “supported by evidence” standard to mean “substantial evidence”).

17 . See supra note 5.

18 . Cf., e.g., Minton v. Celebrezze, 318 F.2d 429 (7th Cir.1963) (wife not bona fide employee; imputing to husband income listed as wife’s brought husband over the statutory ceiling); Gray v. Weinberger, 397 F.Supp. 304 (W.D.Va.1975) (recipient failed to disclose part-time employment on benefits application and thereafter failed to notify agency of gainful employment by completing and returning information cards mailed with disability checks).

The record includes two annual earnings reports Bums filed with the Board, one in 1970, the other in 1971, the first years she received benefits under the RRA. AR at 25, 27. There is no indication whether the Board, on its own initiative, supplied Bums with reporting forms for these or later years. Burns represented on both forms that she did not anticipate earning more than the exempt amount in the years the reports were filed. Although the Bureau of Retirement Claims and the Appeals Referee cited these reports, AR at 47, 16, reference to them is conspicuously absent from the Board’s decision. We are persuaded, as perhaps the Board was, of their minimal probative value.

19 . In 1974, according to the Board, Bums received approximately $275 per month in social security benefits based on her own earnings record and approximately $137 per month in survivor’s benefits under the RRA. Brief for Respondent at 8-9.

20 . The pamphlet, out-of-date when given to Burns, stated that the Board “must withhold $1 of your annuity benefits for every $2 of yearly earnings over $1,500 and up to $2,700 and $1 of benefits for every $1 you earn over $2,700.” Brief for Respondent App. B. In 1969, when Burns received the pamphlet, the applicable amounts were, respectively, $1680 and $2880. Social Security Amendments of 1967, Pub.L. No. 90-248, § 107, 81 Stat. 821, 834 (1968). As indicated supra note 4, 1972 amendments to the SSA eliminated the dollar-for-dollar offset then applicable once income reached the specified level, and made all excess earnings subject to 50% offset against benefits. This change became applicable automatically under the RRA. See supra note 3.

21 . The 1973 notice makes no reference to the year of the earnings, see AR at 29, but both the Bureau of Retirement Claims, AR at 47, and the Board, AR at 4, attributed the overpayment to excess earnings in 1970. But cf. Brief for Respondent at 35 (asserting 1973 overpayment notice related to earnings in 1972).

22 . In her statement to the Board, petitioner Burns said she had no recollection of the 1973 overpayment recovery. AR at 12.

23 . In contrast to the pamphlet Burns received in 1969, the pamphlet employed by the Board since 1978 does alert dual beneficiaries that offsets for excess earnings apply twice:

If you are under age 72 and are applying for a survivor annuity, filing for a social security benefit may DECREASE the total benefit payable to your family if you expect to work and earn more than the ANNUAL EARNINGS EXEMPT AMOUNT. This is because both your railroad retirement annuity and social security benefit are reduced for earnings above the annual exempt amount.

Brief for Respondent at 32 n. 9 (capitalization in original, emphasis supplied).

24 . Cf. Gray Panthers v. Schweiker, 652 F.2d 146, 169 (D.C.Cir.1980) (“Congress ... has repeatedly recognized that the elderly, as a group, are less able than the general populace to deal effectively with legal notices and written registration requirements .... ”).

25 . It is not clear whether the Board believed that Burns’s very “entitle[ment] to a social security benefit in 1970” constituted fair warning that she was exposed to a “double deduction.” See AR at 4. The divided views of this court on whether the statutes call for a “double deduction” are indication enough that absent explicit notice that the offset would operate twice and that one report would not do, Burns should not be charged with fault for causing the overpayment by failing to report twice.

26 . See Hays v. Finch, supra, 306 F.Supp. at 120 (financial condition inquiry should be directed to time of benefit suspension, not time of overpayment).

27 . See AR at 42 (Director of Retirement Claims indicates as the relevant inquiry whether “[r]ecovery would cause a hardship to the annuitant”).

28 . See Shannon v. United States Civil Serv. Comm’n, 444 F.Supp. 354, 363 (N.D.Cal.1977), aff’d in part, rev’d in part, 621 F.2d 1030 (9th Cir.1980):

[T]he loss occasioned by recoupment should not be minimized. The deprivation of a significant portion of fixed income can be a substantial loss indeed. Retired individuals living on fixed income frequently can ill afford even a moderate temporary decrease in their disposable income.

Cf. Henry v. Weinberger, 371 F.Supp. 854, 856 (E.D.Mo.1973) (equity and good conscience not violated by recovery from individual “neither largely nor solely dependent on Social Security benefits for the necessities of life”).