Mason v. Lister

Decision Date04 November 1977
Docket NumberNo. 77-1688,77-1688
Parties17 Fair Empl.Prac.Cas. 292, 15 Empl. Prac. Dec. P 7929 Curtis C. MASON, Plaintiff-Appellant, v. Jack R. LISTER, Personnel Officer, Johnson Space Center, National Aeronautics and Space Administration, Defendant-Appellee. Summary Calendar. *
CourtU.S. Court of Appeals — Fifth Circuit

Curtis C. Mason, pro se.

James R. Gough, U. S. Atty., R. Burton Ballanfant, Asst. U. S. Atty., Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before THORNBERRY, RONEY and HILL, Circuit Judges.

RONEY, Circuit Judge:

Plaintiff, a 46-year-old federal employee with 21 years of government service, sought to retire with an annuity under the Federal Employees Early Retirement Act, 5 U.S.C.A. § 8336. Because that statute requires employees under age 50 to have 25 years' service before claiming an annuity, plaintiff's request was denied. He then brought the instant suit claiming that the federal retirement provisions violated, and were impliedly repealed by, the Age Discrimination in Employment Act, 29 U.S.C.A. §§ 621 et seq., and were void under the Due Process Clause of the Fifth Amendment. The trial court granted the defendant personnel officer's motion for summary judgment. We affirm.

Plaintiff is an employee of the Johnson Space Center in Houston, Texas, a federal facility administered by N.A.S.A. Because of substantial personnel cutbacks at the N.A.S.A. Flight Center in Huntsville, Alabama, the Civil Service Commission determined that the agency was undergoing a major reduction in force (RIF) during the period December 11, 1974 through February 28, 1975, thus activating the early retirement provisions of 5 U.S.C.A. § 8336(d)(2) (1977 Supp.). The statute is designed to encourage more senior employees to leave the work force of an agency voluntarily at an earlier than usual age to minimize the necessity of laying off younger employees during a period of staff reduction. The statute states:

An employee who is separated from the service . . . voluntarily, during a period when the agency in which he is employed is undergoing a major reduction in force, as determined by the Commission, . . . after completing 25 years of service or after becoming 50 years of age and completing 20 years of service is entitled to an annuity.

When plaintiff sought to claim benefits under this statute during the two and half months that it applied to his agency he was under 50 but had over 20 years of service. After the defendant informed him of his ineligibility he launched the instant attack on the statute.

Plaintiff first claims that he is entitled to a default judgment. After defendant's motion to dismiss was denied, the defendant filed no further pleadings for over five weeks, despite Fed.R.Civ.P. 12(a)(1), requiring a response within 10 days after the denial of a pre-answer motion. Generally, the entry of default judgment is committed to the discretion of the district judge. Wright & Miller, Federal Practice and Procedure, Civil § 2685. "(W) hen the government's default is due to a failure to plead . . . the court typically either will refuse to enter a default or, if a default is entered, it will be set aside." (footnotes omitted). Id., Civil § 2702 at p. 355. Furthermore, under Fed.R.Civ.P. 55(e) "(n)o judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." Since the government responded to the motion for default judgment promptly, indicating that it had not abandoned the litigation, and since the district court ultimately found plaintiff's claim unable to withstand summary judgment, the refusal to enter the default was not an abuse of discretion.

Plaintiff's initial attack on the merits is his claim that the retirement scheme here under scrutiny conflicts with the Age Discrimination in Employment Act (ADEA). That Act requires all personnel action affecting federal employees to be free of discrimination based on age. 29 U.S.C.A. § 633a. Since the age discrimination law was enacted in 1974, while the early retirement statute was enacted in 1973, plaintiff contends that ADEA must prevail.

Although it makes age discrimination illegal, ADEA provides elsewhere that "(i)t shall not be unlawful for an employer . . . to observe the terms of . . . any bona fide employee benefit plan such as a retirement . . . plan which is not a subterfuge to evade the purposes of this chapter." 29 U.S.C.A. § 623(f). As plaintiff points out, this provision does not apply to the federal government because the government is excluded from the relevant definition of "employer," found in 29 U.S.C.A. § 630(b). Nonetheless, the legislative history makes it clear that Congress intended the federal government to have both the same obligations and flexibility as do private employers. See, e. g., H.R.Rep.No.913, 93d Cong., 2d Sess. (1974) reprinted in (1974) U.S.Code Cong. & Admin.News, p. 2850. This naturally includes the right to administer legitimate retirement programs. See Bradley v. Kissinger, 418 F.Supp. 64 (D.D.C.1976).

Thus the ADEA itself exempts conduct by the government as an employer pursuant to a bona fide retirement plan unless the plan is designed as a subterfuge to evade the purposes of the Act. Here, the retirement scheme established under 5 U.S.C.A. § 8332(d)(2) could not be a subterfuge because it is strictly optional with the employees. It does not give the government the power to forcibly retire older workers, and thus does not conflict with the Congressional goal of promoting "employment of older persons based on their ability rather than age." 29 U.S.C.A. § 621. This Court has also previously noted that where a retirement scheme predates ADEA, as does the instant program, it is highly unlikely that the plan is a subterfuge to evade the Act. Brennan v. Taft Broadcasting Co., 500 F.2d 212 (5th Cir. 1974). But see McMann v. United Air Lines, 542 F.2d 217 (4th Cir. 1976), cert. granted, 429 U.S. 1090, 97 S.Ct. 1098, 51 L.Ed.2d 535 (1977). Thus we find no conflict between the Federal Employees Early Retirement Act and ADEA, and reject the statutory challenge.

As an alternate course of attack plaintiff claims that the retirement scheme under consideration violates the equal protection component of the Fifth Amendment Due Process Clause. "Under traditional equal protection analysis, a legislative classification must be sustained if the classification itself is rationally related to a legitimate governmental interest." U. S. Department of Agriculture v. Moreno, 413 U.S. 528, 533, 93 S.Ct. 2821, 37...

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