DECISION AND ORDER
"From time immemorial, the law of the sea has requiredshipowners to ensure the maintenance and cure of seamen who fallill or become injured while in service of the ship." LeBlanc v.B.G.T. Corp., 992 F.2d 394, 396 (1st Cir. 1993). And in moremodern times it is not uncommon that a seaman receivingmaintenance and cure from a shipowner may be so severely injuredthat he also becomes entitled to disability benefits under theSocial Security Act of 1965. By being "disabled" under the SocialSecurity Act, a seaman becomes eligible for Medicare, whichcovers (at least in part) the same medical obligations theshipowner is required to pay as part of its maintenance and cureobligation. Accordingly, in such circumstances, a seaman has twopotential sources available for coverage of his financialobligations. The question presented is whether Medicare supplantsmaintenance and cure as the payor of first resort when a seamanbecomes Medicare eligible.
This tragic case involves a young seaman, James Avery ("Avery"or "Claimant"), who was injured on August 11, 2001 while workingon the Petitioner's vessel when it was docked in Newport, RhodeIsland1 Before the Court is RJF InternationalCorporation's ("RJF" or "Petitioner") Motion to TerminateMaintenance and Cure Benefits. RJF contends that it no longer isobligated to provide Avery with "cure" due to his entitlement toMedicare benefits. RJF primarily relies on the Second Circuit'sdecision in Moran Towing & Transp. Co. v. Lombas, 58 F.3d 24(2d Cir. 1995), which held that an injured seaman's eligibilityfor free medical treatment under Medicare satisfies a vesselowner's obligation to furnish cure. This is a matter of firstimpression in this Circuit.
On March 19, 2004, the Court heard oral argument on RJF'smotion.2 The parties submitted post-hearing briefsrelating to the interpretation of several complex statutoryschemes at issue in this case. For the reasons discussed below,the Court denies the petition of RJF.
For the complete background of the facts relating to thisMotion, the reader is directed to the Court's published decisionin RJF I. See 261 F. Supp.2d 101 (D.R.I. 2003), aff'd354 F.3d 104 (1st Cir. 2004). For purposes of this Motion, abrief précis will suffice:
On August 11, 2001, Avery was a seaman working on the M/VReflections, a vessel owned by Petitioner. While the vessel wasdocked at Bannister's Wharf in Newport Harbor, Avery fell fromthe ship, struck his head on a dock, and then fell into thewater. As a result of the accident, Avery suffered severe braininjuries, for which he has been treated at numerous healthcarefacilities. Avery has not reached a state of maximum medicalrecovery, id. at 106, and is currently receiving variousoutpatient services to assist in his recovery.
On February 1, 2004, Avery became eligible for benefits underParts A and B of the Medicare Program, which entitle him to amonthly payment of $510 in Social Security benefits, from which aMedicare Part B monthly premium of $66.60 is deducted.
"Cure" refers to the shipowner's obligation to providehealth-care expenses incurred during the period of the injuredseaman's recovery. LeBlanc, 992 F.2d at 397 (citing Aguilar v.Standard Oil Co., 318 U.S. 724, 730 (1943)). A seaman'sentitlement to cure is, for the most part, automatic upon fallinginjured or ill. "The right attaches `largely without regard tofault; a seaman may forfeit his entitlement only by engaging ingross misconduct.'" Ferrara v. A. & V. Fishing, Inc.,99 F.3d 449, 454 (1st Cir. 1996) (quoting LeBlanc, 992 F.2d at397). An injured seaman's right to cure continues until he hasreached the point of "maximum medical recovery." In re RJF, 354F.3d at 107 (citing Vaughan v. Atkinson, 369 U.S. 527, 531(1962)).
The United States administers the Medicare program,42 U.S.C. § 1395 et seq., through the Department of Health and HumanServices ("HHS"). Medicare is health insurance for the elderlyand disabled, and is funded by contributions through payrolldeductions (commonly known as "FICA"). When an individual becomeseligible for Medicare, contributions to the Medicare programcontinue through co-payments, deductibles, and premiums. Medicareis divided into two parts ("Medicare Part A" and "Medicare PartB"), which differ in terms of their benefits, eligibility, andadministration. Medicare Part A, 42 U.S.C. § 1395c et seq.,provides for the payment of inpatient hospital and relatedpost-hospital benefits on behalf of eligible individuals. Part Abenefits are available to individuals age 65 and older whoreceive Social Security or railroad retirement benefits, and toindividuals under age 65 who have been receiving Social Securitydisability benefits for 24 months. 42 U.S.C. § 1395c. Part Abenefits are also available to individuals age 65 and older whohave not earned the necessary work credits for Social Securityretirement benefits by making voluntary monthly premiums.42 U.S.C. § 1395i-2. Part A payments are made from the FederalHospital Insurance Trust Fund, 42 U.S.C. § 1395i, which isfinanced by hospital insurance taxes paid by employers,employees, and the self-employed, as well as by voluntary monthlypremiums.
Medicare Part B, 42 U.S.C. § 1395j et seq., is thesupplemental medical insurance program, which covers physicians'services and various ancillary health care expenses. Part Bbenefits are available to individuals eligible for Part Acoverage who choose to enroll in the supplemental program and paymonthly premiums. 42 U.S.C. § 1395p and 1395r. The benefits arepaid from a separate trust fund, the Federal SupplementaryMedical Insurance Trust Fund, 42 U.S.C. § 1395t, which isfinanced by the premiums paid by enrollees, together withmatching government contributions. 42 U.S.C. § 1395w.
Originally, Medicare was the primary source of payment for themedical expenses of all of its beneficiaries, with one exception— where payment had been or could reasonably be expected to havebeen made by a workers' compensation law or plan.42 U.S.C. § 1395y(b)(1). However, as Medicare expenditures rose dramatically,Congress looked to private insurance to cover a greater share ofmedical services. See H.R. Rep. No. 96-1167, 96th Cong., 2dSess. 389, reprinted in 1980 U.S.C.C.A.N. 5752. In 1980,Congress passed the Omnibus Budget Reconciliation Act, whichcontained the Medicare Secondary Payer ("MSP") provisions. Theintention of the MSP statute was to reduce Medicare spending, aswell as insure the financial integrity of the Medicare program.See P.L. No. 96-499, § 953; P.L. No. 97-35, § 2146; P.L. No.97-248, § 116; P.L. No. 98-369, § 2301; P.L. No. 99-272, § 9201;and P.L. No. 99-509, § 9319; see generally United States v.Baxter Int'l., Inc., 345 F.3d 866, 874 (11th Cir. 2003)(noting that the MSP is a collection of statutory provisionscodified during the 1980s with the intention of reducing federalhealth care costs). In general, the MSP shifts the responsibilityfor making primary payment for the services provided to Medicarebeneficiaries from Medicare to other health care payors.
In pertinent part, the MSP statute, in its current form,provides as follows: (A) In general Payment under this subchapter may not be made, except as provided in subparagraph (B), with respect to any item or service to the extent that — . . . . (ii) payment has been made or can reasonably be expected to be made promptly (as determined in accordance with regulations) under a workmen's compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance. In this subsection, the term "primary plan" means . . . a workmen's compensation law or plan, an automobile or liability insurance policy or plan (including a self-insured plan) or no fault insurance, to the extent that clause (ii) applies.42 U.S.C. § 1395y(b)(2). The MSP also allows HHS to recoverpayments made by Medicare when it turns out that the service inquestion has been or should have been covered by a primary plan.42 U.S.C. § 1395y(b)(2)(B)(iii) (providing the United States adirect right of action to recover a conditional Medicare paymentfrom any entity that is or was responsible for paying for theservice under a primary plan). The United States is entitled todouble damages when a primary plan fails to reimburse Medicarefor its conditional payments. 42 U.S.C. § 1395y(b)(2)(B)(iii).
As explained in Cochran v. U.S. Health Care Financing Admin.,291 F.3d 775, 777 (11th Cir. 2002): [I]f payment for covered services has been or is reasonably expected to be made by someone else, Medicare does not have to pay. In order to accommodate its beneficiaries, however, Medicare does make conditional payments for covered services, even when another source may be obligated to pay. . . .The purpose of the MSP is "to keep the government from paying amedical bill where it is clear an insurance company will payinstead." Fanning v. United States, 346 F.3d 386, 389 (3d Cir.2003).
HHS has promulgated regulations implementing the MSP statute,42 C.F.R. § 411.20 et seq., which, inter alia, providethat Medicare pays secondary to a third party payor such as aninsurance plan or workmen's compensation law "even if State lawor the third party payer states that its benefits are secondaryto Medicare benefits or otherwise limits its payments to Medicarebeneficiaries." 42 C.F.R. § 411.32(a)(1).
The Petitioner contends that Avery's eligibility for Medicareterminates its cure obligation. The Petitioner attempts to bringMedicare under the umbrella of the general rule that, under thedoctrine of maintenance and cure, a shipowner will not berequired to pay for medical care that is furnished at no expenseto the injured seaman. See, e.g., Johnson v. United States,333 U.S. 46, 50 (1948) (seaman not entitled to maintenance andcure for support and care provided by his parents); Shaw v. OhioRiver Co., 526 F.2d 193, 201 (3d Cir. 1975) (shipowner has noobligation to provide cure for payments made to seaman under anemployer-funded Blue Cross health insurance plan); Brown v.Aggie & Millie, Inc., 485 F.2d 1293, 1296 (5th Cir. 1973)(seaman not entitled to maintenance and cure for time spent inpublic hospital); Bavaro v. Grand Victoria Casino, No. 97 C7921, 2001 WL 289782, at *7 (N.D. Ill. Mar. 15, 2001) (collectingcases). The Petitioner argues that Avery's eligibility forMedicare, an alleged type of cost-free medical treatment, barshim from an entitlement to cure payments. Avery and HHS asserttwo defenses to the Petitioner's argument: (1) Medicare is not"free" and therefore does not end RJF's obligation to providecure payments; and (2) even if Medicare amounts to "free" medicaltreatment under maritime common law, the MSP statute bars HHSfrom providing Medicare payments when other payors (in this case,RJF or its insurer) are obligated to make payments.
To appreciate fully the period of time in a seaman'srecuperative period that may be at issue, it is important toconsider the scope of the overlap between cure and Medicare. Aseaman automatically becomes entitled to maintenance and cure atthe time of injury. See Ferrara, 99 F.3d at 454. From thatpoint, cure continues until the seaman has reached "maximummedical recovery." See RJF, 354 F.3d at 106. In circumstanceswhere a seaman is deemed "disabled" under the Social Security Actdue to his injuries, he will become eligible for Medicare after awaiting period of twenty-five months. See 42 U.S.C. § 426(b);42 C.F.R. § 406.12(a). During that waiting period, a seaman whohas not reached maximum medical recovery is entitled to curepayments. It is not until the expiration of the waiting periodthat the cure and Medicare entitlements overlap. Moreover, once aseaman who is entitled to Medicare reaches maximum medicalrecovery, he will have to rely solely on Medicare because theshipowner's cure obligation is satisfied. Therefore, the disputein this case focuses upon the period of time between theexpiration of Medicare's twenty-five month waiting period (thepoint at which a seaman becomes eligible for Medicare), and theseaman's subsequent attainment of maximum medical recovery. Thisperiod of time will vary on a case-by-case basis. In the presentcase, the Claimant's entitlement to Medicare commenced inFebruary 2004 and is continuing.
In support of its contention that Medicare is cost-free medicaltreatment, the Petitioner urges this Court to adopt the reasoningof the Second Circuit in Moran. In Moran, the seaman, Lombas,suffered injuries to his neck and spine while working on atugboat in Staten Island, New York. Moran, the seaman's employer,timely provided maintenance and cure payments for varioustreatments, including surgery. Sometime later, due to the extentof his injuries, Lombas began receiving Social Securitydisability benefits and subsequently became eligible forMedicare. When physicians recommended that Lombas undergoadditional surgery, Lombas discovered that his surgeon would notaccept Medicare as payment for the medical services. Lombas thencontacted Moran, insisting that his employer — pursuant to itscure obligation — cover the expense of the surgery. Moran refusedto cover the expense and informed Lombas that he had to choose asurgeon that accepted Medicare since Moran's obligation toprovide cure had been satisfied by his eligibility for Medicare.The district court ruled that a seaman's eligibility forMedicare, as the functional equivalent of the treatment onceprovided to seamen in Public Health Service Hospitals, endedMoran's obligation to provide cure. See Moran Towing & Transp.Co. v. Lombas, 843 F. Supp. 885, 887 (S.D.N.Y. 1994).
On appeal, the Second Circuit affirmed. The court adopted thereasoning of the district court and held that the availability ofMedicare, like the availability of treatment at a Public HealthService Hospital, satisfied a shipowner's cure obligation.
As [the district court] noted, for a period in the history of the doctrine of maintenance and cure, seamen were able to receive virtually cost-free treatment in the United States Public Health Service marine hospitals, and `the caselaw made it clear that the availability of such cost-free `cure' satisfied the shipowner's contractual obligation to provide cure.'Moran, 58 F.3d at 25 (citation omitted).3 The courtthen found "`no reasoned distinction . . . in law or policy'between Medicare and the provision of health care through thepublic hospitals to the extent that Medicare-covered treatment ispaid for by the government." Id. at 26. The Moran holding hassince been adopted by other district courts. See, e.g.,Toulson v. Ampro Fisheries, Inc., 872 F. Supp. 271 (E.D. Va.1995); Blige v. M/V Geechee Girl, 180 F. Supp.2d 1349 (S.D.Ga. 2001).
Avery and HHS argue that the reasoning in Moran is flawedbecause Medicare is not free to beneficiaries, and therefore isdistinguishable from the cost-free medical services once renderedby the PHS Program. Unlike the PHS Program, which was financedentirely by general tax revenues, Medicare is funded by therecipients of the medical care. Medicare Part A is fundedentirely by the hospital insurance taxes paid by current andfuture beneficiaries, as well as monthly premiums paid by somecurrent beneficiaries. There are no contributions made toMedicare Part A from general tax revenues. See42 U.S.C. § 1395i(a). Medicare Part B recipients are required to pay monthlypremiums for their coverage. See 42 U.S.C. § 1395w.
Accordingly, Avery and HHS argue that since Medicare is fundeddirectly by employees and beneficiaries, it is more analogous tobenefits provided under a private medical or disability insurancepolicy, which several courts have held do not satisfy ashipowner's cure obligation. In Gauthier v. Crosby Marine Serv.,Inc., 752 F.2d 1085 (5th Cir. 1985), the Fifth Circuit heldthat a seaman's eligibility for benefits under a private healthinsurance policy did not relieve the shipowner of its duty toprovide cure. Id. at 1090. The Fifth Circuit reasoned that,while a shipowner is not obligated to pay for services providedto a seaman by "the charity of others or the public at large,"the seaman in Gauthier "had incurred expenses because he alonepaid the medical insurance premiums." Id. Similarly, in GypsumCarrier, Inc. v. Handelsman, 307 F.2d 525 (9th Cir. 1962),the Ninth Circuit determined that an award for maintenance andcure would not be reduced by the benefits paid to a seaman undera state disability program. The Court noted that the disabilitypayments came from a fund "created largely by the contributionsof the beneficiaries" and, therefore, were "indistinguishablefrom benefits which might be received from disability insuranceprivately procured by the injured individual." Id. at 537.
Practically speaking, the question of whether Medicare providescost-free medical care (and therefore is the functionalequivalent of the PHS Program) becomes a policy question: shouldthe economic burden of the medical care for an injured, disabledseaman who is eligible for Medicare rest upon the shipowner(and/or his insurer), or upon the Medicare system? Either way,the costs of care are passed on to large segments of society. Forexample, when Medicare covers the seaman's medical payments thatexceed the premiums and co-payments that have been contributed,the cost of this excess burden is passed on to the Medicareparticipants. If a shipowner must continue to provide curepayments, and is covered by liability insurance for curepayments, the cost of such payments is no doubt passed on in theform of higher insurance premiums for all insureds. The questionof which class of participants in our economy should bear theeconomic burden of a catastrophic case is better left toCongress, and not the courts.
Even if this Court were to adopt Moran's reasoning and holdthat Medicare truly is cost-free and therefore the functionalequivalent of the PHS Program, the MSP statute would prevent RJFfrom shifting the burden of shouldering Avery's medical care tothe Medicare system. As stated supra at 6-7, the MSP providesthat Medicare may not pay for a medical service for which paymenthas been made or can reasonably be expected to be made under a"primary plan." 42 U.S.C. § 1395y(b)(2)(A)(ii). The MSP defines aprimary plan to include a "liability insurance policy or plan(including a self-insured plan)" and a "workmen's compensationlaw or plan." Id. Accordingly, under the MSP and regulationspromulgated thereunder, Medicare is barred from providingpayments to eligible beneficiaries when a primary plan isobligated to cover the same medical expenses — in other words,Medicare must be the secondary payor in those circumstances.
Avery and HHS contend that the MSP bars Medicare from makingpayments resulting from medical care for Avery's injuries for tworeasons. First, because maintenance and cure is the admiraltyanalog to state and federal workmen's compensation law, which isclearly covered by the MSP, Medicare is barred from makingpayments. Second, RJF is insured by a $10,000,000 "Yacht"insurance policy that provides coverage for "bodily injury loss,"which is a "liability insurance policy or plan" under the MSPstatute.
With respect to the workmen's compensation argument, Averydirects the Court to a number of cases that refer to cure asanalogous to workmen's compensation. See, e.g., Reyes v. DeltaDallas Alpha Corp., 199 F.3d 626, 629 (2d Cir. 1999)(analogizing maintenance and cure to workers' compensation);Guevara v. Maritime Overseas Corp., 34 F.3d 1279, 1284 (5thCir. 1994) (referring to maintenance and cure as "[e]ssentially aform of workers' compensation-like employee benefit"); LeBlanc,992 F.2d at 400 (referring to workmen's compensation law as"closely related" to maintenance and cure); Alrayashi v. RougeSteel Co., 702 F. Supp. 1334, 1338 (E.D. Mich. 1989) ("An actionfor maintenance and cure is general maritime law's equivalent ofworkmen's compensation."); In re Falcon Workover Co., No. CIV.A. 98-0005, CIV. A. 98-1443, 1999 WL 243657, at *5 (E.D. La.April 21, 1999); Kelly v. Bass Enter. Prod. Co., 17 F. Supp.2d 591,599 (E.D. La. 1998) (noting that "[t]he seaman . . . has aclaim for maintenance and cure — in many ways the equivalent ofworkers compensation"); Etu v. Farleigh Dickinson Univ. WestIndies Lab., Inc., 635 F. Supp. 290, 294 (D.V.I. 1986) (statingthat "[m]aintenance and cure is similar to workmen'scompensation").
All of these cases rely heavily on analogy. HHS' ownregulations, however, define "workers' compensation plan" toinclude "the workers' compensation plans of the 50 States, theDistrict of Columbia, American Samoa, Guam, Puerto Rico, and theVirgin Islands, as well as the systems provided under the FederalEmployees' Compensation Act and the Longshoremen's and HarborWorkers' Compensation Act." 42 C.F.R. § 411.40(a). The doctrineof maintenance and cure is conspicuously absent from this list.HHS could easily have included the doctrine within the definitionbut chose not to do so. Furthermore, the analogy betweenworkmen's compensation law and the maritime doctrine ofmaintenance and cure, as represented in the citations to theafore-mentioned case law, over simplifies matters. In LeBlanc,the First Circuit recognized this problem when it drew acomparison between workmen's compensation law and the doctrine ofmaintenance and cure, but noted that "an injured seaman'sentitlement to maintenance and cure is widely thought to impose`a broader liability than that imposed by modern workmen'scompensation statutes.'" 992 F.2d at 400 (quoting Aguilar, 318U.S. at 732). Moreover, a leading admiralty treatise has taken aview different from the cases cited by the Claimant with respectto the similarities between maintenance and cure and workmen'scompensation.
Maintenance and cure as a seaman's remedy has little resemblance to the statutory remedies and procedures of the workmen's compensation laws, either State or Federal. . . . Maintenance and cure under the general maritime law is far more liberal in its application than are most of the present workmen's compensation acts.Martin J. Norris, The Law of Seamen § 26:40, at 103-04 (4thed. 1985). Workmen's compensation, for example, typicallyrequires that the injured employee suffer a work-related injuryin order to recover, whereas maintenance and cure has no suchrequirement. Additionally, maintenance and cure is a "strictliability" type of obligation for the shipowner and must beprovided automatically and immediately upon a seaman's injury,whereas, with workmen's compensation, the comparative fault ofthe employee is relevant to an award. Accordingly, although theCourt finds the Petitioner's argument well-reasoned in manyrespects, it is leery of reading the doctrine of cure into theMSP statute. The Court is particularly hesitant to interpret thestatute in such a manner when the case can be resolved on othergrounds.
Avery and HHS' argument that RJF's yacht insurance policy barsMedicare from making payments resulting from Avery's injuries,because it is a "liability insurance policy or plan" under theMSP, is a stronger one. Under the MSP statute, "liabilityinsurance" is defined as insurance (including a self-insured plan) that provides payment based on legal liability for injury or illness or damage to property. It includes, but is not limited to, automobile liability insurance, uninsured motorist insurance, underinsured motorist insurance, homeowners' liability insurance, malpractice insurance, product liability insurance, and general casualty insurance.42 C.F.R. § 411.50(b)(2003) (emphasis added). It is unclear fromthe text of the statute, and the regulations promulgatedthereunder, whether the types of liability insurance itemized in42 C.F.R. § 411.50(b) refer to policies purchased by the Medicarebeneficiary, or whether they also include liability policies thatinsure an entity or individual that has caused harm to thebeneficiary. However, considering the overall purpose of the MSPstatute — to reduce Medicare spending and ensure its financialintegrity — this Court finds it more likely that Congressintended the MSP to apply to all kinds of liability insurancepolicies that may cover a Medicare beneficiary's medicalexpenses. This is supported by the fact that, if the MSP wereconstrued so as to apply only to liability insurance purchased bythe beneficiary, then many of the types of liability insurancelisted in 42 C.F.R. § 411.50(b) would frequently be inapplicable.For example, automobile insurance, homeowners' liabilityinsurance, malpractice insurance, product liability insurance,and general casualty insurance are all types of insurance thatare predominately purchased by an insured to protect againstliability for injuries that happen to others, not to themselves(such as with healthcare insurance). These principles, consideredin light of the Medicare cost-saving purpose of the MSP, persuadethe Court that RJF's yacht insurance policy is the type ofliability insurance policy covered by the MSP. Consequently, thisCourt holds that the MSP statute bars the Petitioner fromshifting the financial burden of its cure obligation for Avery'smedical expenses to the Medicare system.
For the foregoing reasons, the Petitioner's Motion to TerminateAvery's Maintenance and Cure Benefits Because of His Eligibilityfor Medicare is DENIED.
IT IS SO ORDERED.
1. This is the second motion to terminate maintenance and curebenefits brought by the Petitioner in this case. In the firstmotion, RJF contended that Avery had reached the point of"maximum medical recovery" and was therefore no longer entitledto the benefits under existing First Circuit case law. This Courtdisagreed and found in favor of Avery. In re RJF Int'l Corp.,261 F. Supp.2d 101 (D.R.I. 2003) ("RJF I"). RJF then appealedthe denial of its motion to the First Circuit, which affirmed thedecision of this Court. See In re RJF Int'l Corp.,354 F.3d 104 (1st Cir. 2004). On appeal, RJF argued that itsmaintenance and cure obligation should be curtailed because Averywas eligible for Medicare, but the court did not countenance theargument because it was not properly raised in this Court. Seeid. at 107-08.
2. Because of the implications of RJF's argument on theMedicare system, the Court permitted the uncontested joinder ofthe U.S. Department of Health and Human Services as a partypursuant to Rules 19, 20, and 21 of the Federal Rules of CivilProcedure.
3. Created in 1798, the Public Health Service HospitalsProgram (the "PHS Program") was operated as a federally financedmedical care system for merchant seaman. The original purpose ofthe program was to protect the United States from communicablediseases that could be brought into the country from foreignports at a time when there were few medical facilities inAmerican port cities. See S. Rep. No. 97-139, 97th Cong.,1st Sess. 880, reprinted in 1981 U.S.C.C.A.N. 903.Through the years, the program was expanded to cover all merchantseamen from tugboat operators and fishermen to oceangoing seamen.In 1981, Congress disbanded the PHS Program to cut federalexpenditures, because American port cities now have ample medicalfacilities, and because the hospitals were under-utilized. SeeOmnibus Budget Reconciliation Act of 1981, Pub. Law. No. 97-35, §987 (1981). During the existence of the PHS Program, ashipowner's duty to provide cure could be discharged "by theissuing of a master's certificate carrying admittance to a publichospital. . . ." Kossick v. United Fruit Co., 365 U.S. 731, 737(1961).