Murgia v. Commonwealth of Massachusetts Bd. of Retire.

• Decision Date: 31 May 1974
• Docket Number: Civ. A. No. 72-2083-T.
• Citation: 376 F. Supp. 753
• Parties: Robert D. MURGIA, Plaintiff, v. COMMONWEALTH OF MASSACHUSETTS BOARD OF RETIREMENT et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

376 F. Supp. 753

Robert D. MURGIA, Plaintiff, v. COMMONWEALTH OF MASSACHUSETTS BOARD OF RETIREMENT et al., Defendants.

Civ. A. No. 72-2083-T.

United States District Court, D. Massachusetts.

May 31, 1974.

Robert L. Wise, Wise & Wise, William F. Looney, Jr., Moulton, Looney, Mazzone, Falk & Markham, Robert D. City, Boston, Mass., for plaintiff.

Terence P. O'Malley, Robert Quinn, Atty. Gen. of Mass., Walter H. Mayo III, Asst. Atty. Gen., Boston, Mass., for defendants.

Before ALDRICH, Senior Circuit Judge, FREEDMAN and TAURO, District Judges.

OPINION

ALDRICH, Senior Circuit Judge.

Plaintiff, Robert D. Murgia, brings this three-judge district court action to declare unconstitutional, and to obtain injunctive relief against the enforcement of, Mass.G.L. c. 32 § 26(3). Pursuant to that statute plaintiff, a Lt. Colonel in the Uniformed Branch of the Massachusetts State Police, was involuntarily retired because, having completed over 20 years of service, he had reached age 50. He alleges that mandatory retirement at that age is a violation of his civil rights of due process and equal protection. He also alleges sex discrimination because under the law, although apparently not now in practice, women police officers may enlist after age 30, and thus automatically may serve beyond age 50.¹ We reach only one issue, that a classification based on age 50 alone lacks a rational basis in furthering any substantial state interest.

Until age 40 every officer is given a comprehensive physical examination every two years, and after age 40, every year. Failure to pass results in disability retirement unless the particular physical defect is waived by the Commissioner of Public Safety.² Plaintiff's standing is self-evident; the testimony is undisputed that at the time of his discharge he was in excellent physical health and capable of performing the duties of a state police officer, whether involving physical or psychological stress. At the same time, it is acknowledged that service in this branch is, or can be, arduous,³ and that high versatility is required, with few, if any, backwaters available for the partially superannuated. Lest there be misunderstanding, we do not fault the service in this respect; the state is entitled to maintain rigorous job requirements; nor do we understand plaintiff to contend otherwise.

Our first question could be the standard to apply in testing the constitutionality of the statute; whether, because plaintiff's right to employment may be a fundamental interest or because age might be a suspect classification, the burden is on the state to show a compelling interest, or whether, on the other hand, the burden is on the plaintiff to show a lack of rational basis. However, since we find that plaintiff has succeeded in this last, we need not proceed further. We hold that plaintiff has at least a recognizable interest in retaining his employment⁴ which the state cannot deny arbitrarily and irrationally, Drown v. Portsmouth School District, 1 Cir., 1971, 451 F.2d 1106, 1108; see Board of Regents v. Roth, 1972, 408 U.S. 564, 576-577, 92 S.Ct. 2701, 33 L.Ed.2d 548; Wieman v. Updegraff, 1952, 344 U.S. 183, 192, 73 S.Ct. 215, 97 L.Ed. 216, and we find that mandatory retirement of officers at 50 years of age bears no "fair and substantial relation to the object of the legislation," F. S. Royster Guano Co. v. Virginia, 1920, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989, quoted in Reed v. Reed, 1971, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225.

We dispose readily of certain of the state's contentions. Its argument that early retirement enhances the morale of the younger members, in a sense assumes the point. Of course, if there are only younger members, they are happier than the older members who are being eliminated. This does not add up on balance, but merely advances the time of ultimate unhappiness.⁵ The same can be said with respect to the alleged desirability of rapid promotion; the attractiveness of quick promotion must be weighed against the unattractiveness of early retirement. Furthermore, to the extent that the purpose of early retirement is said to be to empty higher ranking positions after they have been occupied by one person for a reasonable time, the cut-off at 50 years is of questionable consequence since it is unrelated to the period of time the retiree has occupied his last position.⁶ The alleged desirability of facilitating rapid promotion by early retirement, rather than a justification, will be seen on analysis to be age discrimination per se.

The only question requiring serious consideration is whether mandatory retirement at age 50 is rationally related to maintaining a vigorous, healthy personnel. Even plaintiff's experts concede that there is a general relationship between advancing age and decreasing physical ability to respond to the demands of the job. On the other hand, the state does not dispute their testimony that the relation between chronological age and functional age varies greatly from one individual to the next. Its response is that in matters of this sort it is administratively reasonable to select an arbitrary cut-off, and that irrationality is not established by the fact that certain individuals are disadvantaged thereby. Cf. Wickard v. Filburn, 1942, 317 U.S. 111, 129-130, 63 S.Ct. 82, 87 L.Ed. 122.

We fully accept the necessity of choosing arbitrary standards in certain, and indeed in many, situations. For example, in dealing with the immeasurable changes relating to the onset of maturity, legislatures may require a specific age for voting, Oregon v. Mitchell, 1970, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272, even though the particular age selected may seem indifferentiable from other ages in proximity to it. Id. at 294 (Stewart, J., concurring in part and dissenting in part); see id. at 243-246 (Brennan, White and Marshall, JJ., concurring in part and dissenting in part). See also, e. g., United States v. Duncan, 9 Cir., 1972, 456 F.2d 1401, 1405 (minimum age for jury service), vacated on other grounds, 409 U.S. 814, 93 S.Ct. 161, 34 L.Ed.2d 72; Smith v. United States, 9 Cir., 1970, 424 F.2d 267 (selective service age limitations); Scarangella v. Commissioner of Internal Revenue, 3 Cir., 1969, 418 F.2d 228 (classification of tax exemptions by age of dependent). But to say that a line may be drawn arbitrarily when there is no readily discernible breaking, or turning, point, does not mean that the line can be drawn anywhere at all. To satisfy minimal standards of rationality the line must be drawn within a range where fairness, or some appreciable state interest, exists, even if no specific point within that range is preferable to any other.

In the voting and other cases above cited, the legislature was concerned with a broad spectrum of the population where it would not be practicable to make individual determinations. Under such circumstances an arbitrary standard is called for, if not inevitable, and the only question must be whether the one selected is, in the large, reasonable. In the case at bar the situation is exactly the reverse. Individual testing is not impracticable but, rather, is already the order of the day. There is no suggestion that it is more burdensome to examine an officer at age 50 than it was at age 49. We must look, therefore, in another direction for reasonableness—is there, for example, a greater risk at the higher age that the test, or, more exactly, the prognosis based upon testing, will be less reliable?

In this connection we note the case of Air Line Pilots Ass'n, Int'l v....