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Case Name:

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Date Filed:






                                                     No. 98-16893
                                                     D.C. No.
DAN E. GLICKMAN, Secretary of
Agriculture, in his official

Appeal from the United States District Court
for the District of Arizona
Robert C. Broomfield, District Judge, Presiding

Argued and Submitted
November 4, 1999--San Francisco, California

Filed July 17, 2000

Before: Procter Hug, Jr., Chief Judge,
Kim McLane Wardlaw, Circuit Judge, and
Barry Ted Moskowitz,* District Judge.

Opinion by Judge Wardlaw


*The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.


William E. Morris, Arizona Justice Institute, Tucson, Arizona,
for the plaintiff-appellant.

Deborah Ruth Kant, United States Department of Justice,
Civil Division, Washington, D.C., for the defendant-appellee.



WARDLAW, Circuit Judge:

Celia Aleman ("Aleman"), a 62-year-old permanent resi-
dent alien, appeals the district court's dismissal of her action
challenging a provision of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996, Pub. L. No.
104-193, 110 Stat. 2105 (1996) (the "Welfare Reform Act" or
the "Act"), the application of which denied her food stamps
from September of 1997 to November 1, 1998. We conclude


that, in determining a permanent resident alien's eligibility for
food stamps, the provision at issue, now codified at 8 U.S.C.
SS 1612(a)(2)(B) and 1645, does not irrationally differentiate
between marriages that end in divorce and those that end in
death. We therefore hold that the challenged provision does
not violate the equal protection component of the Due Process
Clause of the Fifth Amendment, and we accordingly affirm.


The Food Stamp Act of 1964, 7 U.S.C. S 2011 et seq.,
established a state-administered, federal program to supple-
ment the food purchasing power of low-income households.
See id. S 2011. Eligibility for participation in the program is
determined on a household rather than an individual basis, see
id. S 2014; 7 C.F.R. S 273.1, and the program is restricted to
households with net incomes below the federal poverty level
and resources below $2,000 or, if a household member is dis-
abled or age 60 or older, below $3,000, see 7 U.S.C.
S 2014(c); 7 C.F.R. S 273.8; 7 C.F.R.S 273.9. Once eligible,
households receive coupons that may then be used to pur-
chase food from approved retail stores. See 7 U.S.C.
S 2013(a).

The Welfare Reform Act significantly restricted the eligi-
bility of permanent resident aliens to receive food stamps. In
particular, the Act provides that, subject to certain enumerated
exceptions, a "qualified alien" is ineligible for food stamps, 8
U.S.C. S 1612(a)(1), and it defines "qualified alien" to include
"an alien who is lawfully admitted for permanent residence,"
id. S 1641(b)(1).

At issue in this case is the exception to this general pro-
hibition now codified at 8 U.S.C. S 1612(a)(2)(B) (the
"qualifying-quarters provision"). This exception provides that
food stamps remain available to a qualified alien who "is law-
fully admitted to the United States for permanent residence"
and who "has worked 40 qualifying quarters of coverage as


defined under Title II of the Social Security Act . . . or can
be credited with such quarters under [8 U.S.C.S 1645]." Id.
S 1612(a)(2)(B).1 Under 8 U.S.C. S 1645, "an alien shall be
credited with--(1) all of the qualifying quarters of coverage
. . . worked by a parent of such alien before the date on which
the alien attains age 18, and (2) all of the qualifying quarters
worked by a spouse of such alien during their marriage and
the alien remains married to such spouse or such spouse is
deceased." Id. S 1645. However,"[n]o such qualifying quarter
of coverage . . . may be credited to an alien . . . if the parent
or spouse (as the case may be) of such alien received any Fed-
eral means-tested public benefit . . . during the period for
which such qualifying quarter of coverage is credited." Id.2

Before the enactment of the Welfare Reform Act, Aleman
received food stamps as the sole member of her eligible
household. As "an alien who is lawfully admitted for perma-
nent residence," however, Aleman is a "qualified alien" under
the Act, and because she could not invoke any of the statutory
exceptions, the Arizona Department of Economic Security
(the "ADES") terminated Aleman's certification for food
stamps beginning in September of 1997.

In determining that Aleman no longer qualified for food
stamps, the ADES noted that she could not invoke the
qualifying-quarters provision. That is, although Aleman was
1 Forty qualifying quarters is equivalent to ten years. See 42 U.S.C.
S 413.
2 The programs included under the term "Federal means-tested public
benefit" are listed at 8 U.S.C. S 1613(c)(2). In the legislative history of the
Welfare Reform Act, "Federal means-tested public benefit" is defined as
"a public benefit (including cash, medical, housing, and food assistance
and social services) of the Federal Government in which the eligibility of
an individual, household, or family eligibility unit for benefits, or the
amount of such benefits, or both are determined on the basis of income,
resources, or financial need of the individual, household, or unit." H.R.
Conf. Rep. No. 104-725, at 381 (1996), reprinted in 1996 U.S.C.C.A.N.
2649, 2769 (internal quotation marks omitted).


married to Cosme Aleman ("Cosme") from June 6, 1956, to
May 8, 1975, and although Cosme worked 40 qualifying
quarters during their marriage, the marriage ended in divorce.
Thus, Aleman could not be credited with Cosme's quarters
under 8 U.S.C. S 1645. Neither could she qualify for food
stamps through her parents, who had not worked in covered
employment in the United States before Aleman reached the
age of 18. Consequently, Aleman, who had not worked 40
qualifying quarters herself, did not retain her eligibility for
food stamps under 8 U.S.C. S 1612(a)(2)(B).

On January 16, 1998, Aleman filed a complaint in the
United States District Court for the District of Arizona against
U.S. Secretary of Agriculture Daniel Glickman, in his official
capacity ("Secretary Glickman" or "government"), challeng-
ing the termination of her food stamps. She asserted that, in
determining eligibility for food stamps, the qualifying-
quarters provision of the Welfare Reform Act irrationally dis-
tinguishes between two otherwise identical classes of lawful
residents: (1) "[t]he disadvantaged class, of which plaintiff is
a member, all of whom are completely denied necessary
credit for quarters of covered employment worked by former
spouses during marriages that ended in divorce"; and (2)
"[t]he favored class, all of whom are [granted] full credit for
documented quarters of covered employment worked by for-
mer spouses, during marriages that ended in their deaths."
Aleman argued that this classification system violates the
equal protection component of the Due Process Clause of the
Fifth Amendment, and she prayed for declaratory and injunc-

tive relief.

Five months after Aleman filed her complaint, the Presi-
dent signed into law the Agricultural Research, Extension &
Education Reform Act of 1998, Pub. L. No. 105-185,SS 503-
508, 112 Stat. 523 (1998), (the "1998 amendments"). This
statute restored food-stamp eligibility for, inter alia,
"[d]isabled aliens lawfully residing in the United States on
August 22, 1996." 8 U.S.C. 1612(a)(2)(4). Because she meets


the statutory definition of "disabled," Aleman satisfied this
provision, and, on November 1, 1998, the effective date of the
1998 amendments, she regained her eligibility for food
stamps. Thus, after this date, Aleman's claims for prospective
relief became moot, and her only remaining claim was for a
retroactive award of food stamps for the period during which
her benefits were cut off, from September of 1997 to Novem-
ber 1, 1998. See Yang v. California Dep't of Soc. Servs., 183
F.3d 953, 957 (9th Cir. 1999); see also 7 U.S.C. S 2023(b)
(stating that "any food stamp allotments found to have been
wrongfully withheld shall be restored only for periods of not
more than one year prior to the date of the commencement of
[the judicial] action").

Secretary Glickman moved to dismiss Aleman's complaint
under Federal Rule of Civil Procedure 12(b)(6). The govern-
ment argued that Aleman could not state an equal protection
violation because the qualifying-quarters provision is sup-
ported by a rational basis.

On August 7, 1998, the district court granted the govern-
ment's motion. Consistent with Aleman's allegations, the dis-
trict court stated that the statutory classification at issue was
"between those marriages ending in divorce and those ending
in death." Because it determined that "no fundamental right
or suspect classification [was] involved," and because it found
that the challenged statute involved "Congress['s] plenary
power to regulate immigration and naturalization, " the district
court reviewed this classification under the rational basis
test. Applying this standard, it found "the provision [to be]
rationally related to the legitimate interests of promoting
self-sufficiency within a household, minimizing the welfare
dollars spent on non-citizens, and discouraging divorce."
Accordingly, the district court held that 8 U.S.C.
SS 1612(a)(2)(B) and 1645 did not violate the equal protec-
tion component of the Due Process Clause of the Fifth
Amendment, and it therefore dismissed Aleman's complaint
under Rule 12(b)(6). This appeal followed.



In resolving Aleman's equal protection challenge, we must
first determine what classification has been created by the
qualifying-quarters provision. See Attorney General of New
York v. Soto-Lopez, 476 U.S. 898, 906 n.6 (1986) (plurality
opinion); Memorial Hosp. v. Maricopa County, 415 U.S. 250,
253 (1973); San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 17 (1973); Dunn v. Blumstein, 405 U.S. 330, 335
(1972). We review de novo the district court's interpretation
of this statute. See Yang, 183 F.3d at 957.

The qualifying-quarters provision allows a permanent resi-
dent alien whose spouse has worked 40 qualifying quarters
"during their marriage and the alien remains married to such
spouse or such spouse is deceased," 8 U.S.C.S 1645, to
remain eligible for food stamps. See id.S 1612(a)(2)(B). In
interpreting this language, we hold, as did the district court,
that the relevant statutory classification is between (1) those
legal aliens, like Aleman, whose spouse had worked 40 quali-
fying quarters during a marriage that ended in divorce, and (2)
those legal aliens whose spouse had worked 40 qualifying
quarters during a marriage that ended in death. Under the
Welfare Reform Act, this second group of aliens (the wid-
owed spouses) is eligible for food stamps, but the first group
(the divorced spouses) is not.

In her brief,3 Aleman takes issue with this classification,
3 At oral argument, Aleman's counsel accepted the district court's (and
the government's) interpretation of the qualifying-quarters provision "for
the purposes of this argument." We must look beyond this concession,
however. "[W]hen an issue or claim is properly before the court, the court
is not limited to the particular legal theories advanced by the parties, but
rather retains the independent power to identify and apply the proper con-
struction of governing law." United States Nat'l Bank v. Independent Ins.
Agents of Am., Inc., 508 U.S. 439, 446 (1993) (quoting Kamen v. Kemper
Fin. Servs., Inc., 500 U.S. 90, 99 (1991)) (internal quotation marks omit-
ted). Accordingly, to determine the correct construction of this statute, we
will examine the argument raised in Aleman's brief.


arguing that "[t]he fact of [a worker-spouse's] death is wholly
sufficient, under [8 U.S.C. S 1645], to entitle [a permanent
resident alien] to credit for [the worker-spouse's] quarters of
covered employment during their marriage--regardless of
whether or not the marriage itself ended with the worker's
death." In other words, as Aleman's brief urges, the relevant
statutory classification created by the qualifying-quarters pro-
vision is actually between (1) those legal aliens (who are inel-
igible for food stamps and who include Aleman) whose
spouses worked 40 qualifying quarters during marriages that
ended in divorce and whose now ex-spouses are still alive,
and (2) those legal aliens (who are eligible for food stamps)
whose spouses worked 40 qualifying quarters during mar-
riages that ended in divorce and whose now ex-spouses are

We reject this interpretation because it conflicts with an
Act of Congress, with the Department of Agriculture's formal
regulations implementing the food-stamp program, and with
the Department's informal guidelines on the qualifying-
quarters provision. In specific, 1 U.S.C. S 7 provides that "[i]n
determining the meaning of any Act of Congress, . . . the
word `spouse' refers only to a person of the opposite sex who
is a husband or a wife." 1 U.S.C. S 7 (emphasis added). Simi-
larly, in 7 C.F.R. S 271.2, the Department of Agriculture
defines "spouse" in the present tense for the purposes of the
food-stamp program. See 7 C.F.R. S 271.2; see also Christen-
sen v. Harris County, 120 S. Ct. 1655, 1662 (2000) (noting
that under Chevron U.S.A. Inc. v. National Resources Defense
Council, Inc., 467 U.S. 837, 842-44 (1984),"a court must
give effect to an agency's regulation containing a reasonable
interpretation of an ambiguous statute"). Accordingly, under
the controlling definition of "spouse," the relevant statutory

language "such spouse is deceased," 8 U.S.C.S 1645, means,
more precisely, "such spouse is deceased and, at death, such
spouse was the alien's current spouse."


Moreover, in guidelines sent to the states, the Department
of Agriculture has expressly rejected the interpretation that
Aleman proposes in her brief. It has instead interpreted the
qualifying-quarters provision to mean that "[a ] former
spouse's quarters cannot be credited if the marriage ended,
unless by death." Food & Nutrition Serv., U.S. Dep't of
Agric., Cumulative Questions and Answers on Certification
and Work Issues in PRWORA (current as of July 1999) [here-
inafter USDA Guidelines].4 Although this agency enforce-
ment guideline "do[es] not warrant Chevron-style deference,"
Christensen, 120 S. Ct. at 1662, the Department of Agricul-
ture's interpretation of the statute is nonetheless "entitled to
respect," id. at 1663 (quoting Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944)) (internal quotation marks omitted); see
also Skidmore, 323 U.S. at 140 (holding that "the rulings,
interpretations and opinions of" an agency, "while not con-
trolling upon the courts by reason of their authority, do consti-
tute a body of experience and informed judgment to which

courts and litigants may properly resort for guidance"), and,
given the aforementioned definition of "spouse " that governs
here, it persuades us, see id. (noting that an agency's informal
interpretation of a statute possesses "power to persuade, if
lacking power to control").

We conclude that the relevant statutory classification here
presented is between (1) those permanent resident aliens
whose spouse had worked 40 qualifying quarters during a
marriage that ended in divorce, and who were therefore ineli-
gible for food stamps, and (2) those permanent resident aliens
whose spouse had worked 40 qualifying quarters during a
marriage that ended in death, and who were therefore eligible
for food stamps.
4 These guidelines are available at <



[1] Having resolved the preliminary issue of statutory inter-
pretation, we must next ascertain the appropriate level of scru-
tiny to employ in evaluating Aleman's equal protection
challenge. Because the federal statutory classification at issue
in this case discriminates among aliens in the distribution of
welfare benefits, we find that the Supreme Court's decision in
Mathews v. Diaz, 426 U.S. 67 (1976), controls our analysis,
and, accordingly, we hold that the classification is subject to
rational basis review. See id. at 82-83; see also Sudomir v.
McMahon, 767 F.2d 1456, 1464 (9th Cir. 1985) (holding that
"[f]ederal classifications distinguishing among groups of
aliens . . . are valid unless `wholly irrational.' " (quoting Diaz,
426 U.S. at 83)).

In Diaz, the Supreme Court upheld the constitutionality of
a provision of the Social Security Act that restricted aliens'
eligibility for the Medicare Part B medical-insurance program
based on their continuous residence in the United States for
five years and their admission to the country for permanent
residence. See Diaz, 426 U.S. at 69-70. There, as here, the
challenged legislation "discriminat[ed] within the class of
aliens[,] allowing benefits to some aliens but not to others."
Id. at 80. In evaluating this legislation, the Diaz Court empha-
sized that "the responsibility for regulating the relationship
between the United States and our alien visitors has been
committed to the political branches of the Federal Govern-
ment," and it therefore held that "a narrow standard of review
[applied to] decisions made by the Congress or the President
in the area of immigration and naturalization." Id. at 81-82.
Applying this narrow standard, the Court found that the statu-
tory classification at issue did not violate equal protection

because it was not "wholly irrational." Id. at 83. We have
since equated Diaz's "wholly irrational " standard with the
rational basis test. See United States v. Lopez-Flores, 63 F.3d
1468, 1473 (9th Cir. 1995) (stating that "judicial scrutiny of
[federal] alienage classifications is relaxed to a `rational basis'


standard") (citing Diaz, 426 U.S. at 83); Garberding v. INS,
30 F.3d 1187, 1190-91 (9th Cir. 1994) (holding that because
"there is no rational basis for treating Garberding differently,"
the INS's "singling her out for deportation is wholly irratio-
nal" under Diaz); Sudomir, 767 F.2d at 1464; see also City of
Chicago v. Shalala, 189 F.3d 598, 604 (7th Cir. 1999)
("Although the [Diaz] Court did not adopt explicitly the
`rational basis' standard of scrutiny, it in effect applied ratio-
nal basis review . . . ."), cert. denied, 120 S. Ct. 1530 (2000);
Rodriguez ex rel. Rodriguez v. United States, 169 F.3d 1342,
1347 (11th Cir. 1999) (noting that Diaz's "wholly irrational"
standard "is merely another way of stating the rational basis

When previously faced with a federal classification among
aliens in the distribution of welfare benefits, we found Diaz
dispositive as to the appropriate level of judicial review. See
Sudomir, 767 F.2d at 1464 (following Diaz  and applying the
rational basis test to an equal protection challenge to a provi-
sion of the Social Security Act that excluded asylum appli-
cants but not other legal aliens from participation in the Aid
to Families with Dependent Children (AFDC) program).
Moreover, although no court has previously addressed the
precise statutory classification at issue in this case, two cir-
cuits have applied Diaz's rational basis test to more general
equal protection attacks by legal aliens against the Welfare
Reform Act. See City of Chicago v. Shalala, 189 F.3d at 604
(concluding that "under Diaz, the provisions of the Welfare
Reform Act at issue in this case must be reviewed under ratio-
nal basis scrutiny"); Rodriguez, 169 F.3d at 1350 (holding
that "[Diaz] dictates that we apply rational basis scrutiny to

the classifications Congress has drawn in 8 U.S.C.S 1612");
see also Kiev v. Glickman, 991 F. Supp. 1090, 1099 (D. Minn.
1998) (applying the rational basis test to an equal protection
challenge brought by permanent resident aliens against 8
U.S.C. S 1612); Abreu v. Callahan, 971 F. Supp. 799, 815
(S.D.N.Y. 1997) (same).


Despite this authority, Aleman presents several arguments
why the standard of review articulated in Diaz  should not
apply. We reject each in turn.

First, Aleman contends that unlike in Diaz, where the clas-
sification among aliens "served the indispensable objective of
identifying [permanent resident aliens] whose ties to the
United States . . . were sufficiently like those of citizens," in
this case, "affinity with the United States . . . is not even
remotely an issue." This argument, however, "fails to address
the relevant issue." Rodriguez, 169 F.3d at 1348. As the Elev-
enth Circuit recently stated, "nothing in [ Diaz] indicates that
the Court meant to hold that the only statutes subject to ratio-
nal basis scrutiny are those that are based on the same distin-
guishing factor used in that statute, i.e., length of residency."

Relying on the Supreme Court's decisions in Plyler v. Doe,
457 U.S. 202 (1982), and Foley v. Connelie, 435 U.S. 291
(1978), Aleman also argues that because "food stamps . . . are
sufficiently critical to a needy, lawful resident's tolerable
existence in the United States . . . their denial to a discrete
class of long time, lawful residents . . . demands more than
[Diaz's] thoroughly deferential scrutiny." Plyler and Foley are
inapposite, however, because they involved state  classifica-
tions of aliens. See Plyler, 457 U.S. at 205, 225; Foley, 435
U.S. at 292, 294-95. As the Seventh Circuit noted in rejecting
a similar challenge to the Welfare Reform Act, "the Plyler
case involved a state law, and nothing in the Court's opinion
suggests that Diaz would not apply (or that heightened scru-
tiny would apply) if the law were federal." City of Chicago v.
Shalala, 189 F.3d at 605; accord Rodriguez , 169 F.3d at
1349-50 ("Nothing in Plyler even arguably suggests that a
heightened level of scrutiny would have applied if the chal-

lenged statute had been enacted by Congress . . . ."); Abreu,
971 F. Supp. at 813 (noting the same); see also Sudomir, 767
F.2d at 1466 (finding Plyler inapplicable to a federal classifi-
cation among aliens in the distribution of welfare benefits).


This same analysis applies to Foley. See Kiev, 991 F. Supp.
at 1098-99 (stating that such reliance on Foley  "ignores those
essential reasons that have distinguished state alienage classi-
fications from similar federal classifications"); Rodriguez v.
United States, 983 F. Supp. 1445, 1456-57 (S.D. Fla. 1998)
("Foley and Plyler acknowledge that a heightened standard of
review is applicable when state, rather than federal, alienage
laws are at issue."), aff'd, 169 F.3d 1342 (11th Cir. 1999).5

Furthermore, Aleman asserts that although Diaz 's rational
basis test applies to statutes enacted under Congress's plenary
power over immigration and naturalization, Diaz  does not
establish the appropriate level of scrutiny for the qualifying-
quarters provision, which is "unrelated to any incident of
alienage." Accord 1 Laurence H. Tribe, American Constitu-
tional Law, S 5-18, at 975 (3d ed. 2000) ("Outside the context
of entry, stay, and naturalization, congressional authority to
regulate the activities of aliens, and to draw lines both
between aliens and citizens and among aliens in the distribu-
tion of benefits, loses its clear connection to considerations of
national sovereignty and foreign policy; outside those limited
contexts courts should thus feel freer to limit congressional
power . . . ." (footnote omitted)). Although this argument may
have some logical merit, it is foreclosed by Diaz. See Kiev,
991 F. Supp. at 1096 ("Were this Court addressing the issue
on a `clean state,' such an argument may have merit . . . .

However, . . . the slate is not clean."); see also City of Chi-
5 In Moving Phones Partnership L.P. v. FCC, 998 F.2d 1051 (D.C. Cir.
1993), the D.C. Circuit appeared to indicate that, pursuant to Foley, it
would apply strict scrutiny to a federal statute that denied food stamps to
aliens. See id. at 1056 n.3. Because of the fundamental distinction between
state and federal alienage classifications, see Diaz, 426 U.S. at 84-85 (not-
ing that "equal protection analysis . . . involves significantly different con-
siderations [when] it concerns the relationship between aliens and the
States rather than between aliens and the Federal Government"), however,
this dicta by the Moving Phones court has not persuaded courts consider-
ing the Welfare Reform Act. See Kiev, 991 F. Supp. at 1099; Rodriguez,
983 F. Supp. at 1457. Neither does it persuade us.


cago v. Shalala, 189 F.3d at 604-05 (holding that "the Court's
analysis in Diaz makes clear that, for purposes of equal pro-
tection analysis, Congress' interest in regulating the relation-
ship between our alien visitors and the national government
ought not to be defined in such narrow terms as to preclude
application of the rational basis test in a case . .. involving
eligibility for government benefits"); Rodriguez, 169 F.3d at
1349 (noting that the Diaz Court "rejected [a] narrow view of
Congress' sovereign immigration power"). In fact, Diaz "spe-
cifically held that a statute discriminating among aliens in the
provision of Medicare, a form of welfare benefits, does lie
within Congress' power `in the area of immigration and natu-
ralization,' and for that reason is subject to rational basis scru-
tiny." Id. at 1349 (quoting Diaz, 426 U.S. at 82); accord City
of Chicago v. Shalala, 189 F.3d at 605 (pointing out that Diaz
"characteriz[ed] Congress' decision to restrict certain aliens'
eligibility for welfare benefits as a decision `in the area of

immigration and naturalization' "). Therefore, as to the appli-
cable level of scrutiny, we find it "impossible to distinguish
[the qualifying-quarters provision], which also discriminates
among aliens in the provision of welfare benefits, from the
statute at issue in [Diaz]." Rodriguez, 169 F.3d at 1349;
accord City of Chicago v. Shalala, 189 F.3d at 605.

Finally, Aleman argues that the qualifying-quarters provi-
sion infringes upon the fundamental right to marry and is
therefore subject to strict scrutiny analysis. See Zablocki v.
Redhail, 434 U.S. 374, 386-88 (1978) (holding that a statutory
classification that "interfere[s] directly and substantially with
the right to marry" "cannot be upheld unless it is supported
by sufficiently important state interests and is closely tailored
to effectuate only those interests"). Aleman urges that the pro-
vision impermissibly interferes with the marital relationship
by eliminating certain legal aliens' eligibility for food stamps
upon divorce, thus making the dissolution of these marriages
more expensive. See Boddie v. Connecticut, 401 U.S. 371,
376 (1971) (finding that a state law requiring the payment of
filing fees and court costs in order to receive a divorce


touched upon indigent individuals' fundamental right to
marry); see also Zablocki, 434 U.S. at 374 n.10 ("The denial
of access to the judicial forum in Boddie touched directly . . .
on the marital relationship and on the associational interests
that surround the establishment and dissolution of that rela-
tionship." (omission in original) (quoting United States v.
Kras, 409 U.S. 434, 444 (1973)) (internal quotation marks

We need not decide whether Diaz's rational basis test
would control in a case in which the statutory classification
actually infringed upon an alien's fundamental right to marry,
however, because the qualifying-quarters provision does not
"interfere directly and substantially with the right to marry."
Id. at 387 (noting that "reasonable regulations that do not sig-
nificantly interfere with decisions to enter into the marital
relationship may legitimately be imposed"). The Supreme
Court has previously reviewed equal protection challenges to
provisions of the Social Security Act that, like the qualifying-
quarters provision, discriminate on the basis of divorce in
their allocation of federal benefits, under the rational basis
standard. See Bowen v. Owens, 476 U.S. 340, 345-49 (1986)
(noting that a court should not disturb Congress's decision in
this context unless "the distinctions [it] made were arbitrary
or irrational"); Mathews v. de Castro, 429 U.S. 181, 185
(1976) (same); see also Zablocki, 434 U.S. at 387 n.12 (distin-

guishing Califano v. Jobst, 434 U.S. 47 (1977), another
social-security case in which the challenged statute discrimi-
nated on the basis of marital status, because "[t]he Social
Security provisions placed no direct legal obstacle in the path
of persons desiring to get married, and . . . there was no evi-
dence that the laws significantly discouraged, let alone made
`practically impossible,' any marriages"); cf. Sosna v. Iowa,
419 U.S. 393, 410 (1975) ("The operation of the filing fee in
Boddie served to exclude forever a certain segment of the
population from obtaining a divorce in the courts of Connecti-


Thus, in all relevant respects, Diaz is indistinguishable
from the present case. Because Diaz sets forth the applicable
standard of review, we now examine whether the classifica-
tion created by the qualifying-quarters provision is supported
by a rational basis.


[2] "[R]ational-basis review in equal protection analysis `is
not a license for courts to judge the wisdom, fairness, or logic
of legislative choices.' " Heller v. Doe , 509 U.S. 312, 319
(1993) (quoting FCC v. Beach Communications, Inc., 508
U.S. 307, 313 (1993)). Therefore, "a classification neither
involving fundamental rights nor proceeding along suspect
lines is accorded a strong presumption of validity " and must
be upheld "if there is a rational relationship between the dis-
parity of treatment and some legitimate governmental pur-
pose." Id. at 319-20. Furthermore, "a legislature that creates
these categories need not `actually articulate at any time the
purpose or rationale supporting its classification.' " Id. at 320
(quoting Nordlinger v. Hahn, 505 U.S. 1, 15 (1992)). Rather,
"a statutory classification . . . must be upheld against equal
protection challenge if there is any reasonably conceivable
state of facts that could provide a rational basis for the classi-
fication." Beach Communications, 508 U.S. at 313. In addi-

tion, the government "has no obligation to produce evidence
to sustain the rationality of a statutory classification"; "[t]he
burden is on the one attacking the legislative arrangement to
negative every conceivable basis which might support it."
Heller, 509 U.S. at 320. "Finally, courts are compelled under
rational-basis review to accept a legislature's generalizations
even when there is an imperfect fit between means and ends.
A classification does not fail rational-basis review because it
`is not made with mathematical nicety or because in practice
it results in some inequality.' " Id. at 321 (quoting Dandridge
v. Williams, 397 U.S. 471, 485 (1970)).

[3] To reiterate, the relevant statutory classification in this
case is between (1) those permanent resident aliens, like Ale-


man, whose spouse had worked 40 qualifying quarters during
a marriage that ended in divorce, and who were therefore inel-
igible for food stamps and (2) those permanent resident aliens
whose spouse had worked 40 qualifying quarters during a
marriage that ended in death, and who were therefore eligible
for food stamps. Although this classification is not a model of
legislative logic and, as in this case, can operate quite harshly
to deprive deserving persons of the means of subsistence, we
are compelled to conclude that it survives the exceedingly low
level of judicial scrutiny mandated by the rational basis test.


Although neither circuit confronted the particular classifi-
cation at issue in this case, both the Seventh and Eleventh Cir-
cuits have found a rational basis for 8 U.S.C. S 1612(a)(2)(B).
See City of Chicago v. Shalala, 189 F.3d at 609 & n.15;
Rodriguez, 169 F.3d at 1351. As both circuits explained, this
statutory provision "extend[s] benefits to aliens who have
made special contributions to this country," id.; accord Sha-
lala, 189 F.3d at 609, and "[i]t certainly is not irrational for
Congress to reward such service or to encourage other aliens
to make similar contributions in the future," id.; accord
Rodriguez, 169 F.3d at 1351. Building upon the reasoning of
these circuits, we hold that, although the distinction may
appear arbitrary, it is not irrational for Congress to reward
widowed aliens for these "special contributions, " while deny-
ing the same benefit to divorced aliens.

The Supreme Court has twice addressed statutory classifi-
cations that, like the classification at issue in this case, dis-
criminate against divorcees in the allocation of federal
benefits. On both occasions, the Court held that these classifi-
cations in the context of the Social Security Act survived the
rational basis standard of review.

First, in Mathews v. de Castro, 429 U.S. 181 (1976), the
Supreme Court examined a provision in the Social Security


Act that provided benefits to a married woman whose hus-
band retires or becomes disabled, but not to a divorced
woman whose former husband retires or becomes disabled.
See id. at 182-83. In upholding this distinction against an
equal protection challenge, the de Castro Court noted that
"[d]ivorce by its nature works a drastic change in the eco-
nomic and personal relationship between a husband and wife"
and that "divorced couples typically live separate lives." Id.
at 188-89. In the Court's words, "Congress could have ratio-
nally assumed that divorced husbands and wives depend less
on each other for financial and other support than do couples
who stay married." Id. at 188. Ten years later, in Bowen v.
Owens, 476 U.S. 340 (1986), the Supreme Court upheld a dis-
tinction in the Social Security Act that provided survivor's
benefits to a widowed spouse, but not to a similarly situated
divorced spouse. See id. at 341-42, 350. In doing so, the
Owens Court reiterated the reasoning of de Castro, stating
that "divorce normally reduces dependency on the wage earn-

er." Id. at 350.

Aleman attempts to distinguish de Castro and Owens. She
points out that "[u]nlike the Social Security Act, the Food
Stamp Act is, at bottom, exclusively concerned with the
urgent want of program beneficiaries." Indeed, the de Castro
Court itself stated that the aspects of the Social Security sys-
tem it was addressing "do not purport to be general public
assistance laws that simply pay money to those who need it
most." De Castro, 429 U.S. at 185. Moreover, the Supreme
Court recognized that different considerations might prevail
"in a case involving a constitutional attack on a statute that
gave monetary benefits to women based on their overall gen-
eral need." Id. at 187.

Despite Aleman's arguments, however, the qualifying-
quarters provision, as opposed to the food-stamp program
generally, is not strictly a need-based program. Rather, it, in
relevant part, grants food-stamp eligibility to one spouse
based on the past efforts of the other spouse. In this regard,


the qualifying-quarters provision is essentially indistinguish-
able from the statutes at issue in de Castro and Owens. To be
more precise, both de Castro and Owens  dealt with insurance
programs and the question whether a divorcee was entitled to
benefits earned by the past work of an ex-spouse. See Owens,
476 U.S. at 341-42, 349-50; de Castro, 429 U.S. at 182-83,
188-89. Here, we deal with what is, in all relevant respects,
an identical issue: whether Aleman, a divorcee, is entitled to
food-stamp eligibility based on her ex-husband's 40 quarters
of past work.6

[4] In sum, we agree with the Seventh and Eleventh Cir-
cuits that Congress could rationally enact the qualifying-
quarters provision as a reward to a legal alien for his past
work in this country. Moreover, as the Supreme Court held in
de Castro and Owens, Congress could rationally assume that
divorced spouses depend less on a wage-earning ex-spouse
than widowed spouses depend on a deceased spouse. There-
fore, it was not "wholly irrational" for Congress to deny the
reward of food stamp eligibility to divorcees, like Aleman,
6 There is, of course, one obvious difference between de Castro and
Owens and the present case. Unlike the legislation at issue in de Castro
and Owens, the qualifying-quarters provision discriminates on the basis of
alienage. That is, all else being equal, if Aleman were a United States citi-
zen, she would qualify for food stamps. This difference does not affect the
outcome of Aleman's case, however. See Diaz, 426 U.S. at 78 (noting that

"a host of constitutional and statutory provisions rest on the premise that
a legitimate distinction between citizens and aliens may justify attributes
and benefits for one class not accorded the other") & n.12 ("The whole of
Title 8 of the United States Code, regulating aliens and nationality, is
founded on the legitimacy of distinguishing between citizens and aliens."),
80 ("The fact that an Act of Congress treats aliens differently from citizens
does not in itself imply that such disparate treatment is `invidious.' "), 82
(finding "it . . . obvious that Congress has no constitutional duty to provide
all aliens with the welfare benefits provided to citizens"); City of Chicago
v. Shalala, 189 F.3d at 606 (noting that "Congress stated that the [Welfare
Reform] Act's provisions are intended to foster the legitimate governmen-
tal purpose of encouraging aliens' self-sufficiency"); Rodriguez, 169 F.3d
at 1351; see also 8 U.S.C. S 1601 (setting forth Congress's stated policy
reasons for enacting the Welfare Reform Act).


who have a separate financial and legal existence from those
the reward is supposed to benefit, the spouse who has worked
the 40 quarters.7


[5] We also conclude the qualifying-quarters provision is
rationally related to the legitimate governmental purpose of
limiting expenditures on public-benefit programs.

[6] In Diaz, the Supreme Court found that "maintaining . . .
fiscal integrity" was a legitimate purpose for Congress to pur-
sue in limiting the number of aliens eligible for Medicare ben-
efits. Diaz, 426 U.S. at 83 n.22; see also Rodriguez, 169 F.3d
at 1351 (explaining Diaz in this manner and upholding the
Welfare Reform Act, under Diaz, because it "is rationally
related to the legitimate purpose of achieving cost savings").
We have similarly held that "concern about the fiscal impact
of providing . . . benefits . . . is a legitimate government
objective." Sims v. Harris, 607 F.2d 1253, 1257 (9th Cir.
1979) (Kennedy, J.); see also City of Chicago v. Shalala, 189
F.3d at 607 ("[W]e cannot say that it was irrational for Con-
gress to decide to achieve its budget objectives by eliminating
aliens from these [federal benefit] programs."); Rodriguez,
169 F.3d at 1350-51 (noting the same).

[7] Providing food stamps to widowed aliens but not to
7 Aleman points out in her brief that a legal alien over the age of 18 can
claim credit for quarters worked by his parents before the alien reached
age 18, even if the now-adult alien leads a life completely independent of
his parents. See USDA Guidelines, supra (noting that "an alien of any
age" can claim credit for his parent's quarters before the alien reaches age
18). However, we do not find it "wholly irrational" for Congress to believe
that, as a class, children of any age are more dependent on their parents
than divorcees are on their ex-spouses. See Beach Communications, 508
U.S. at 313 (holding that "a statutory classification . . . must be upheld
against equal protection challenge if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification").


divorced aliens serves this cost-saving end. That is, under the
qualifying-quarters provision, when a marriage ends in death,
only one household, the surviving spouse's, remains eligible
for food stamps. Similarly, when a marriage ends in divorce,
only one household, the worker-spouse's, retains food-stamp
eligibility. Specifically, under the food-stamp program, one 2-
person household can receive a maximum monthly benefit of
$234.00, whereas two 1-person households can receive a
combined maximum monthly benefit of $254.00. See Food &
Nutrition Serv., U.S. Dep't of Agriculture, Allotment Chart
(effective from Oct. 1999 to Sept. 30, 2000).8 Congress thus
took the legitimate approach of tracking the qualifying-
quarter-earner's household to avoid duplicate expenditure of
resources, including administrative costs. If the government
departed from this approach and allowed divorcees like Ale-
man to keep their food-stamp eligibility, it would double the
number of potentially eligible households and thereby
increase the cost of the program. Therefore, all else being

equal, limiting the number of households potentially eligible
for food stamps, which the qualifying quarters provision does,
conserves government resources. See id.

"[T]he mere fact that a classification saves money because
it does not extend benefits to some people, by itself, does not
demonstrate the classification's rationality." Sims, 607 F.2d at
1257 n.4. As noted above, however, the distribution of food
stamps through the qualifying-quarters provision is a reward
to those aliens who have made "special contributions to the
United States." Rodriguez, 169 F.3d at 1351; accord City of
Chicago v. Shalala, 189 F.3d at 609. Certainly it is not irratio-
nal for Congress to determine it can save money by granting
only one reward of food stamps for each "special contribu-
tion," and, because food stamps are allocated on a household
basis, see, e.g., 7 U.S.C. S 2013 (authorizing "a food stamp
8 This information, listing the maximum monthly allotments that house-
holds of various sizes may receive under the food-stamp program, is avail-
able at <>


program under which . . . eligible households  within the State
shall be provided an opportunity to obtain a more nutritious
diet through the issuance to them of an allotment " (emphasis
added)), one reward of food stamps logically means providing
one household with food stamps. See id.; see also City of Chi-
cago v. Shalala, 189 F.3d at 608 ("Congress was entitled to
conclude that achieving savings by eliminating these benefits
to aliens was sufficiently compatible with the other policy
objectives that it sought to foster through this legislation.").
Because the classification in 8 U.S.C. SS 1612(a)(2)(B) and
1645 limits the number of food-stamp-eligible households in
this manner,9 it is rationally related to the legitimate congres-
sional purpose of achieving cost savings in the food-stamp pro-
9 As a practical matter, under the qualifying-quarters provision, more
than one household could gain food-stamp eligibility from the work of one

alien. For example, if a husband and wife live in separate households, the
government concedes that both households could be eligible for food
stamps. However, as the Supreme Court has repeatedly made clear,
"courts are compelled under rational-basis review to accept a legislature's
generalizations even when there is an imperfect fit between means and
ends." Heller, 509 U.S. at 321. Moreover, this statutory distinction
between divorced aliens and separated aliens can be justified under the
first rational basis discussed above. See infra  Part IV.A.
10 The district court also held that the qualifying-quarters provision was
rationally related to the legitimate purpose of "discouraging divorce." The
government does not raise this argument on appeal, and we do not rely on
"discouraging divorce" as a rational basis. Because one has a fundamental
right to marry, see Zablocki, 434 U.S. at 386, which includes the right to
divorce so that one can remarry, see Boddie, 401 U.S. at 376, a statute
whose only purpose is to hinder this right, even if it does not actually, in

its effect, "interfere directly and substantially with the right to marry,"
Zablocki, 434 U.S. at 387, would not be supported by a legitimate govern-
ment purpose. Cf. Planned Parenthood v. Casey , 505 U.S. 833, 877 (1992)
(opinion of O'Connor, Kennedy, and Souter, JJ.) ("A statute with this pur-
pose is invalid because the means chosen by the State to further the inter-
est in potential life must be calculated to inform the woman's free choice,
not to hinder it.").



For the foregoing reasons, we hold that the statutory classi-
fication at issue does not violate the equal protection compo-
nent of the Due Process Clause of the Fifth Amendment, and,
accordingly, the district court's dismissal under Federal Rule
of Civil Procedure 12(b)(6) is AFFIRMED.


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