Bradley v. Vance: Revisiting Mandatory Age Retirement

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With Colton v. Clinton recently filed, I thought it might be interesting to revisit the landmark decision of Bradley v. Vance (1979).

Below is a quick summary of Bradley v. Vance 440 U.S. 93 (1979) from The Oyez Project. Reprinted below under Creative Commons under nc-sa/3.0:

Facts of the Case:

Section 632 of the Foreign Service Act of 1946 required that members of the Foreign Service retirement system retire at 60. No mandatory retirement age was specified for employees covered by the Civil Service retirement system. Holbrook Bradley, a member of the Foreign Service retirement system, challenged the statute in United States District Court for the District of Columbia and prevailed. The government appealed to the Supreme Court.

Question:

Did Section 632 of the Foreign Service Act of 1946 violate the Equal Protection component of the Due Process clause of the Fifth Amendment?

Conclusion:

No. In an 8-1 opinion written by Justice Byron R. White, the Court emphasized the distinction between the Civil Service and Foreign Service, and the "special attention" paid to the Foreign Service by Congress. The Court interpreted the purpose of Section 632 to be the encouragement of the "highest performance in the ranks of the Foreign Service by assuring that opportunities for promotion would be available," a legitimate interest that justified the distinction. The Court also recognized the possibility that service in the Foreign Service would be more rigorous than service in the Civil Service. Given that possibility, Congress had a "reasonable basis" for enacting the statute, satisfying the rationality standard set forth in Massachusetts Board of Retirement v. Murgia.

* * *

Fundamental Career Principle Justice White in the majority opinion of the Court cited the "the fundamental career principle” in the Service. This is from 101 Cong.Rec. 3554 (1955) where Rep. Richards states that "The Foreign Service is a career service that a man enters at the bottom and works his way up. When the Committee on Foreign Affairs wrote the Foreign Service Act of 1946 which the Congress adopted, that principle was stressed." Footnote in this case indicates that the Deputy Under Secretary of State Henderson also states that the State Department would also prefer to have entrance be through the junior level.

There is something off about this fundamental career principle. Although most people still enter the Service at the bottom, they are no longer just men anymore; and they are no longer just fresh out of college. More and more entrants have had other careers before the Foreign Service, so this career principle of starting everyone at the bottom undermines effective use of valuable talent. The fact that there is a large mid-level staffing gap also puts into question the wisdom and practicality of this still current practice.

Shrinking the top of the pyramid

The Court also notes that 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.”

Further it states that the retirement and selection-out provisions are part of an integral plan to create "a correctly balanced Service that [was] constructed so that the size of the various classes would correspond with the distribution of the work load of the Service."

In short, by selecting out and retiring more people, there will be less of them at the top of the pyramid, giving way to younger blood to assume positions at the top.

The wear and tear of Foreign Service

Another argument for the majority says that the Foreign Service involves extended overseas duty under difficult and often hazardous conditions, and that the wear and tear on members of this corps is such that there comes a time when these posts should be filled by younger persons. Mandatory retirement, it is said, minimizes the risk of less than superior performance by reason of poor health or loss of vitality. The Court noted the “common sense proposition that aging -- almost by definition -- inevitably wears us all down.”

In 1979, the Court looked back to a concern cited 55 years earlier:

"I call to the attention of the gentleman the fact that the kind of service which these men must render involves going to the Tropics; it involves very difficult and unsettling changes in the mode of life. The consensus of opinion was that the country was better off to retire them, as a general rule, at 65." 65 Cong.Rec. 7564-7565 (1924) (Rep. Rogers).

JUSTICE MARSHALL, in his dissenting opinion states:

The Court today finds a rational basis for the forced retirement of Foreign Service personnel at age 60, on a record devoid of evidence that persons of that age or older are less capable of performing their jobs than younger employees. I adhere to my view in Massachusetts Bd. of Retirement v. Murgia (1976), that mandatory retirement provisions warrant more than this minimal level of equal protection review. Because I believe that the statute at issue here cannot withstand closer scrutiny, I respectfully dissent.

Justice Marshall points out that “A person's interest in continued Government employment, although not "fundamental" as the law now stands, certainly ranks among the most important of his personal concerns that Government action would be likely to affect. This interest is of special significance to older employees, because "[o]nce terminated, the elderly cannot readily find alternative employment. The lack of work is not only economically damaging, but emotionally and physically draining. He also added that ample clinical evidence supports the conclusion that mandatory retirement poses a direct threat to the health and life expectancy of the retired person. . . ."

Justice Marshall says that in addition, mandatory retirement provisions warrant careful judicial attention because of the class on which the deprivation is imposed. To be sure, the elderly are not a "discrete and insular minorit[y] in need of "extraordinary protection from the majoritarian political process."

Additional items he cited in his dissenting opinion:

• The Government submitted no evidence that it has encountered age-related problems in connection with these or other civil servants aged 60 and over.

• AID often has its work performed on a contract basis by other agencies that do not have mandatory retirement provisions.

• The Court closes its eyes to appellees' evidence against the mandatory retirement provision and excuses the Government from producing evidence in support of it because Congress determined that the nomadic life of Foreign Service personnel would take its toll by the age of 60. This determination, the Court concludes, rested on the "common sense proposition that aging -- almost by definition -- inevitably wears us all down." The issue, however, is not whether persons between age 60 and 70 "wear down," but whether they are competent Foreign Service personnel. Absent any concrete evidence in the record that they are less able, or, indeed, any indication that Congress even considered such information when it enacted the statute, see n 6, supra, the Court is remitted to unsubstantiated assumptions concerning the competency of older workers for white-collar jobs.

• As the Foreign Service personnel system now operates, persons who do not measure up to Service standards are selected out, or terminated, after an annual review. Further, all Foreign Service employees are given biennial medical examinations, as well as special examinations when necessary, and are subject to medical selection out if they are not fit for duty. See Record 20. Under this scheme, then, the continued competence of appellants' personnel is periodically assessed. With such individualized procedures already in effect, the Government cannot realistically claim that prohibiting resort to age-based generalizations would jeopardize the quality of the Foreign Service.

• Even if mandatory retirement does ensure promotional opportunities for younger employees, it also deprives the Service of the talents of persons who it has admitted are, at least at the time of their retirement, "its best officers." S.Doc. No. 14, 90th Cong., 1st Sess., 118 (1967). In the absence of any evidence that employees aged 60 and over are less able, or that forced retirement does, in fact, boost productivity by enhancing recruitment and promotional opportunities, this proffered justification does not withstand analysis.

Do you think this precedent could be overturned? More later ...