Bradley v. Vance

• Citation: 436 F. Supp. 134
• Decision Date: 28 June 1977
• Docket Number: Civ. A. No. 76-0085.
• Parties: Holbrook BRADLEY et al., Plaintiffs, v. Cyrus R. VANCE, Secretary of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

436 F. Supp. 134

Holbrook BRADLEY et al., Plaintiffs, v. Cyrus R. VANCE, Secretary of State, et al., Defendants.

Civ. A. No. 76-0085.

United States District Court, District of Columbia.

June 28, 1977.

Zona F. Hostetler, Washington, D. C., for plaintiffs.

John R. Dugan, Washington, D. C., for defendants.

Before ROBB, Circuit Judge, and GESELL and FLANNERY, District Judges.

MEMORANDUM

PER CURIAM.

This case presents the question whether statutorily required retirement at age sixty for those persons covered by the Foreign Service Retirement System ("Foreign Service personnel") violates the equal protection guarantees embodied in the Fifth Amendment.¹ Plaintiffs are Foreign Service Officers who were or will be forced into retirement at age sixty and an organization whose membership includes such officers. They seek declaratory and injunctive relief. This matter comes before the Court on defendants' motion to dismiss² or for summary judgment and plaintiffs' opposition thereto. At oral argument plaintiff cross-moved for summary judgment, but indicated that defendants could not prevail without supplementing the record. Defendants indicated a willingness for the case to be decided on the existing record. Following oral argument the parties were given an opportunity to submit additional evidence, and both sides did so.

Section 632 of the Foreign Service Act of 1946, as amended, 22 U.S.C. § 1002, mandates retirement at age sixty for certain employees of the State Department, the United States Information Agency ("USIA"), and the Agency for International Development ("AID").³ Generally, employees of the Federal Government need not retire at such an early age. Those employees covered by the Civil Service ("Civil Service personnel") do not face mandatory retirement until age seventy. 5 U.S.C. § 8335. Plaintiffs claim that Congress has drawn an unlawful distinction by setting a lower retirement age for Foreign Service personnel than for Civil Service personnel.⁴ Since neither "fundamental" rights nor "suspect" classes are involved here, the distinction between Civil Service and Foreign Service employees is proper if there is a rational basis to support it. San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Thus the simple issue presented here is whether the conditions of Foreign Service work are sufficiently different from the conditions of Civil Service work so that the earlier retirement age is rational. Cf. Murgia, supra at n. 8. The application of the "rational basis standard" does not require, though, judicial abdication. It simply means that the legislatively drawn distinction is presumptively valid, and that its challengers have a heavy burden in proving its invalidity. On the record established in this case, the early mandatory retirement age for Foreign Service personnel cannot survive even this most minimal scrutiny.

The Government presents two explanations for the retirement age distinction. It first says that the mandatory retirement age is rationally related to its interest in creating advancement opportunities for younger people. However, an interest in recruiting and promoting younger people solely because of their youth is inherently discriminatory and cannot provide a legitimate basis for the statutory scheme. Furthermore, there is no obvious reason why such a rationale would not equally apply to the Civil Service, and defendants have presented none.

The second rationale is that Foreign Service personnel, unlike Civil Service personnel, tend to work overseas and they face, therefore, unusual physical and psychological difficulties. Sixty year olds are said not to have the vitality necessary to carry out overseas assignments, particularly in "hardship posts," due to the inherent effects of ageing and the cumulative effects of a career spent in foreign lands. Furthermore, the Government contends that upon reaching age sixty people are more likely to need medical attention, which is often lacking in foreign posts.

The record compiled in this case conclusively establishes that Civil Service and other Government personnel work overseas in positions and locations comparable to those of Foreign Service personnel, without facing forced retirement at age 60. In 1976 there were over 58,000 American civilians working for the Government overseas. More than 38,000 were stationed in foreign countries, and about 20,000 were in the United States Trust Territories (e. g., Panama, Samoa, Wake Island).⁵ Only 4,787 of these Government employees faced mandatory retirement at age sixty. Thus, less than ten percent of the American civilians who work overseas for the Government are forced to retire at age sixty.⁶

Not only are there substantial numbers of Americans working abroad not subject to early retirement; many of these people have jobs similar to those of Foreign Service personnel. The Foreign Service organizations (State Department, USIA, AID) had 7,792 American civilian employees working abroad in November, 1976. However, many of these employees have Civil Service status and the right to work until age seventy. In fact, almost forty percent of the Americans who work overseas for the Foreign Service agencies are subject to Civil Service retirement. In addition, AID often has its work performed on a contract basis by employees of other departments or agencies such as the Department of Agriculture and the Corps of Engineers. These employees, of course, may work until seventy. AID also contracts with private United States organizations to carry out much of its actual technical work. Employees of these organizations are not required to retire at age sixty and quite commonly serve above that age. Nor is it true that Foreign Service personnel are unique in having to handle assignments to unusually difficult posts or "hardship" posts. Peace Corps volunteers (and AID contract personnel) are stationed almost exclusively in underdeveloped areas of the world. Furthermore, unlike Foreign Service personnel, they often live among the poorest segments of the local populace and face any adverse conditions that may exist. These assignments are obviously as taxing and strenuous as Foreign Service assignments. Yet, there is no upper age limit at all for Peace Corps volunteers. Affidavits indicate that many Peace Corps volunteers are, in fact, over age sixty, and that there has been no noticeable problem with medical services. Finally, it is clear that Civil Service personnel also work in "hardship posts".⁷ Thus plaintiffs have convincingly shown that reaching age sixty is itself no bar to Government employment overseas. The vast majority of Americans working abroad for the Government do not face early retirement, although their work may be similar in all relevant respects to that performed by Foreign Service personnel.

There remains, though, the Government contention that Foreign Service personnel are unique in that they spend significant portions of their careers abroad, and that this has a cumulative impact so that by age sixty they are generally incapable of effective service. In essence the Government says that while non-Foreign Service personnel serve abroad, they do not follow careers overseas. Plaintiffs, through discovery, attempted to...