440 U.S. 93 (1979), 77-1254, Vance v. Bradley

Docket Nº:No. 77-1254
Citation:440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171
Party Name:Vance v. Bradley
Case Date:February 22, 1979
Court:United States Supreme Court

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440 U.S. 93 (1979)

99 S.Ct. 939, 59 L.Ed.2d 171




No. 77-1254

United States Supreme Court

Feb. 22, 1979

Argued November 27, 1978




Section 632 of the Foreign Service Act of 1946, which requires persons covered by the Foreign Service retirement system to retire at age 60, though no mandatory retirement age is established for Civil Service employees, including those who serve abroad, held not to violate the equal protection component of the Due Process Clause of the Fifth Amendment. Pp. 95-112.

(a) The standard of rationality, rather than strict scrutiny, is to be used in determining whether this statute violates equal protection. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307. Pp. 96-97.

(b) Congress has recognized the distinctive requirements associated with the conduct of the country's foreign relations and has provided personnel policies for the Foreign Service, a relatively small, homogeneous, and particularly able corps, separate and apart from the Civil Service system. One of the differences, the earlier retirement age for Foreign Service officers specified in § 632, operates in conjunction with statutory "selection out" provisions as part of an integral plan to create

a correctly balanced [Foreign] Service that [was] constructed so that the size of the various classes would correspond with the distribution of the work load of the Service,

selection out operating primarily at the lower, and compulsory retirement at the higher, Foreign Service levels. Pp. 98-102.

(c) Section 632 also furthers the congressional purpose of removing from the Foreign Service those who are sufficiently old that they may be less dependable than younger persons in facing the rigors of overseas duty. Since Congress attached special importance to the high performance in the conduct of our foreign relations, it was rational to avoid the risks of having older employee in the Foreign Service engaged in such activity, while tolerating those risks involved when older Civil Service employees work abroad. Pp. 103-106.

(d) Another reason for not equating the situation with respect to Civil Service employees serving overseas with that of the Foreign Service is that about 60% of the relatively small group in the latter category serve in overseas posts at any one time, whereas only about 5% of Civil

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Service employees are in overseas service at any one time, and such service is mainly on a voluntary basis. Pp. 106-108.

(e) Even if the classification at issue here is to some extent both underinclusive and overinclusive, perfection is not required to satisfy equal protection standards, and such imperfection as exists can be rationally related to the secondary objective of legislative convenience. Pp. 108-109.

(f) Appellees have not satisfied the burden of demonstrating that Congress had no reasonable basis for believing that conditions overseas generally are more demanding than those in this country and that, at age 60 or before, many persons begin to decline. Pp. 109-112.

436 F.Supp. 134, reversed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, post, p. 112.

WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

The issue presented is whether Congress violates the equal protection component of the Fifth Amendment's Due Process Clause1 by requiring retirement at age 60 of federal employees

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covered by the Foreign Service retirement and disability system, but not those covered by the Civil Service retirement and disability system. A three-judge District Court was convened to hear this challenge to the constitutionality of a federal statute by appellees, a group of former and present participants in the Foreign Service retirement system. Treating the case as submitted on cross-motions for summary judgment, the District Court [99 S.Ct. 942] examined the affidavits and allegations presented by both sides, held the distinction invalid, and gave judgment for appellee. 436 F.Supp. 134 (D.C. 1977).2 We noted probable jurisdiction, 436 U.S. 903 (1978), and now reverse.


The statutory provision under attack, § 632 of the Foreign Service Act of 1946, 60 Stat. 1015, as amended, 22 U.S.C. § 1002, mandates the retirement at age 60 of participants in the Foreign Service retirement system.3 That system originally

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covered only Foreign Service officers in the State Department, but it has been expanded to include Foreign Service Reserve officers with unlimited tenure,4 career Foreign Service Staff officers and employees,5 Foreign Service Information officers and career staff in the International Communication Agency,6 and certain employees of the Agency for International Development.7 Unlike these employees, personnel covered by the Civil Service retirement system presently face no mandatory retirement age,8 and, when this suit was brought, were not required to retire until age 70.9

Appellees have not suggested that the statutory distinction between Foreign Service personnel over age 60 and other federal employees over that age10 burdens a suspect group or

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a fundamental interest; and in cases where these considerations are absent, courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws.11 The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process,12 and that judicial intervention is generally unwarranted no [99 S.Ct. 943] matter how unwisely we may think a political branch has acted. Thus, we will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational. The District Court and the parties are in agreement that whether § 632 violates equal protection should be determined under the standard stated in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), and similar cases; and thus that the section is valid if it is "rationally related to furthering a legitimate state interest." Id. at 312.

In arguing that § 632 easily satisfies this standard, the appellants submit that one of their legitimate and substantial goals is to recruit and train and to assure the professional competence, as well as the mental and physical reliability, of the corps of public servants who hold positions critical to our foreign relations, who more often than not serve overseas, frequently under difficult and demanding conditions, and who must be ready for such assignments at any time. Neither the District Court nor appellees dispute the validity of this goal.

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The appellants also submit that compulsory retirement at age 60 furthers this end in two principal ways: first, as an integral part of the personnel policies of the Service designed to create predictable promotion opportunities and, thus spur morale and stimulate superior performance in the ranks; second, by removing from the Service those who are sufficiently old that they may be less equipped or less ready than younger persons to face the rigors of overseas duty in the Foreign Service. The District Court rejected each of these latter submissions, and, in our view, erred in each instance.


At least since the enactment of the Rogers Act in 1924, which created the Foreign Service by reorganizing the diplomatic and consular services into a single entity, Congress has recognized the distinctive requirements associated with the conduct of the country's foreign relations, and has provided personnel policies for the Foreign Service separate and apart from the general Civil Service system. Among other differences, Foreign Service officers have been subject to an earlier retirement age than is true in the Civil Service.

Congress continued to give special attention to the Foreign Service when it passed the Foreign Service Act of 1946, 60 Stat. 999, which, with amendments, is still in effect. That Act reorganized the Foreign Service, provided it with a new personnel structure, and revised its retirement system. The intention was to produce a

disciplined and mobile corps of trained men . . . through entry at the bottom on the basis of competitive examination and advancement by merit to positions of command.

H.R.Rep. No. 2508, 79th Cong., 2d Sess., 1 (1946).13 In furtherance of "the fundamental career

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principle"14 that had earlier been established for the Service, id. at [99 S.Ct. 944] 5, Congress found that

[t]he promotion system must insure the rapid advancement of men of ability to positions of responsibility and the elimination of men who have reached their ceilings of performance.

Id. at 2-3. Thus, not only was initial selection to be on the basis of merit, but Foreign Service officers were also to be classified based on their individual abilities, and to be regularly examined for promotion by selection boards. Those officers failing to measure up to the performance expected for their class or who had failed to win promotion within an allotted time were "selected out." The aim was to stimulate superior performance and to retain only those capable of conducting themselves in this manner in widely different assignments around the world.

It was also in 1946 that the compulsory retirement age for most classes of Foreign Service officers was lowered from 65 to 60. This provision, § 632, was grouped with the selection-out sections of the Act.15 Together, these sections "prescribe the

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criteria as to length of service in classes which will determine whether officers are selected out...

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