Jurisdictional Statement — Massachusetts Bd. of Retirement v. Murgia

Octoser Term, 1974

COMMONWEALTH OF MASSACHUSETTS BOARD OF

RETIREMENT; ROBERT Q. CRANE, ANGELO

AMATO and J. JOSEPH MALONEY, JR., as They

are Members of the COMMONWEALTH OF

MASSACHUSETTS BOARD OF RETIREMENT;

JAMES W. CALLANAN, Executive Secretary of the

COMMONWEALTH OF MASSACHUSETTS BOARD

OF RETIREMENT; and JOHN F. KEHOE, JR.,

COMMISSIONER OF PUBLIC SAFETY of the

COMMONWEALTH OF MASSACHUSETTS,

Appellants,

v.

ROBERT D. MURGIA,

Appellee.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

JURISDICTIONAL STATEMENT

Francis X. BELLOTTI

Attorney General

James P. Krernan

Assistant Attorney General

Terence P. O’MALLEy

Assistant Attorney General

373 State House

Boston, Massachusetts 02133

(617) 727-2216

Attorneys for Appellants

i

TABLE OF CONTENTS

Page

, ̃ ͤ . eee. 2

eee eee eee coped 2

rr. ee ed ee e ebe 4

SP r 4

Tue Question Is SUBSTANTIAL .............000-0ees 5

6 11

APPENDIX

Memorandum and Order, July 21,1972 ............... 12

ebene 20

Memorandum and Order of the Court of Appeals 2¹

rinnen. e. eee ee eee eee 22

Opinion, December 12, 1974 ....... cc cccccccccceces 30

ee eee ee e 35

Notice of Appeal, December 23, 1974 ................ 36

TABLE OF CITATIONS

CASES

Air Line Pilots Ass’n., Int l. v. Quesada, 276 F.2d 892

(2nd Cir. 1960), cert. denied, 366 U.S. 962 (1961). 10

Allen v. State Bd. of Elections, 393 U.S. 544 (1969) 3

Anderson v. Martin, 375 U.S. 399 (1964) ............. 3

Armstrong v. Howell, 371 F. Supp. 48 (D. Neb. 1974)... 10

Chicago v. Sturges, 222 U.S. 313 (1911) .............. 6

ii

Page

Cleveland Bd. of Education v. LaFleur, 414 U.S. 632

...es ee essen sbs 8

Gonzalez v. Automatic Employees Credit Union, 43

U.S. L. W. 4025 (U.S. Dec. 10, 1974)))))))) 3

Hodgson v. Greyhound Lines, Inc., 499 F. 2d 859 (7th

Cir. 1974), 43 U.S. L. W. 3404 (U.S. Jan. 20, 1975). 7

McGowan v. Maryland, 366 U. S. 420 (1961) ........... 8

Mcllvaine v. Pennsylvania, 6 Pa. Cmlwth. 505, 296 A.2d

630 (1972), af d, 454 Pa. 129, 309 A.2d 801 (1973). .6, 10

Oregon v. Mitchell, 400 U.S. 112 (1970) .............. 10

Paul v. United States, 371 U.S. 245 (1963) ............ 3

Retail Clerks Union, Local 770 . Retail Clerks Int l.

As n., 359 F. Supp. 1285 (C.D. Cal. 1973) ....... 10

San Antonio Independent School District v. Rodriquez,

rr... 6

Scarangella v. Commissioner, 418 F.2d 228 (3rd Cir.

ET -sedhokessskeneped weanenins ednianedsicnes 10

Schlesinger v. Ballard, 43 U.S.L.W. 4158 (U.S. Jan. 15,

1777 ³· AAA ⁰˙ A 9

Smith v. United States, 424 F. 2d 267 (9th Cir. 1970) 10

Thomas v. Pate, 493 F.2d 151 (7th Cir. 1974) 10

United States v. Duncan, 456 F.2d 1401 (9th Cir. 1972),

vacated, 409 U.S. 814 (1972) ...... ccc eececvccce 10

United States v. Georgia Pub. Serv. Comm n., 371 U.S.

r K beurdasananesae 3

Village of Belle Terre v. Boraas, 416 U.S. 1 (19744) 7

Weisbrod v. Lynn, Civil No. 2465-72 (D.C, Oct. 11, 1974) 10

Weiss v. Walsh, 324 F. Supp. 75 (S. D. N. v.), af d, 461

F. 2d 846 (2nd Cir. 1972), cert. denied, 409 U.S. 1129

r 6cnbeesendeiahand elves 10

Srarurxs

Page

reer. ee eee eee eee 3

eee. 2

eee eee eee eee eee 2

IL 2

eee. Ae eaeedseouee 2,4

Lr 2,4

GB UGG. GIBEB oc ccccccccccccvcccccccvcceccccccccs 2

Mass. Ann. Laws, ch. 22,99 ũꝶ 99999 6

Mass. Ann. Laws, ch. 22, G 9 444. 6

Mass. Ann. Laws, ch. 32, § 2603))))): eee eeee passim

in The Supreme Court of The Anited States

Ocroszr Term, 1974

COMMONWEALTH OF MASSACHUSETTS BOARD OF

RETIREMENT; ROBERT Q. CRANE, ANGELO

AMATO and J. JOSEPH MALONEY, JR., as They

are Members of the COMMONWZALTH OF

MASSACHUSETTS BOARD OF RETIREMENT;

JAMES W. CALLANAN, Executive Secretary of the

COMMONWEALTE OF MASSACHUSETTS BOARD

OF RETIREMENT; and JOHN F. KEHOE, IR.,

COMMISSIONER OF PUBLIC SAFETY of the

COMMONWEALTH OF MASSACHUSETTS,

Appellants,

ROBERT D. MURGIA,

Appellee.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

JURISDICTIONAL STATEMENT

The Attorney General of the Commonwealth of Massachu-

setts, on behalf of the Members and Executive Secretary of

the Board of Retirement and the Commissioner of Public

Safety, submits this statement pursuant to Rule 13 of the

Rules of this Court in support of his contention that this

Court has jurisdiction to review the order of the district

court of three judges and that the question presented is

substantial.

OPINIONS BELOW

The opinion of the district court dated July 26, 1972 is

reported at 345 F. Supp. 1140. The memorandum of the

court of appeals is not reported. The opinion of the district

court of three judges dated May 31, 1974 is reported at 376

F. Supp. 753. The opinion of the district court of three

judges dated December 12, 1974 is not yet reported. The

opinions, judgment and order of the district court and the

memorandum and order of the court of appeals are repro-

duced as an appendix to this statement.

JURISDICTION

This civil action was commenced in the United States Dis-

trict Court for the District of Massachusetts under the Civil

Rights Act of 1871, 42 U.S.C. $1983 (1970). Jurisdiction

was asserted under 28 U.S.C., § 1343 (1970), and declaratory

and injunctive relief were sought under 28 U.S.C., §§ 2201

and 2202 (1970). Because the complaint requested an in-

junction against the operation of a state statute on the

grounds of its unconstitutionality, a request for the con-

vening of a three-judge court was made. After hearing, a

district judge denied the request and dismissed the com-

plaint in a judgment entered on July 26, 1972. The plaintiff

then appealed to the United States Court of Appeals for the

First Cireuit, which court reversed the judgment of the

district court and remanded the matter to the district court

for the convening of a three-judge court pursuant to 28

U.S.C. §§ 2281 and 2284 (1970).

After hearing, the three-judge court issued an opinion on

May 31, 1974 which stated that Mass. Gen. Laws ch. 32,

§ 26(3) (1973) was unconstitutional. The awarding of relief

was deferred until further hearing. After such further hear-

ing was held, the court issued an opinion on December 12,

1974 with respect to the form of relief. Also on December 12,

1974 the court entered an order enjoining the defendants

from enforcing Mass. Gen. Laws ch. 32, § 26(3) (1973). Said

order stated that it would be stayed pending appeal pro-

vided that a notice of appeal was filed within thirty days.

The defendants filed a notice of appeal in the district court

on December 23, 1974.

The statutory provision which confers on this Court juris-

diction of the appeal is 28 U.S.C. § 1253 (1970). Cases which

sustain jurisdiction are: Gonzalez v. Automatic Employees

Credit Union, 43 U.S.L.W. 4025 (U.S. Dec. 10, 1974); Allen

v. State Bd. of Elections, 393 U.S. 544 (1969) ; Anderson v.

Martin, 375 U.S. 399 (1964) ; Paul v. United States, 371 U.S.

245 (1963); United States v. Georgia Pub. Serv. Comm’n.,

371 U.S. 285 (1963).

The validity of Mass. Gen. Laws ch. 32, § 26(3) (1973) is

involved. Said statute provides, in pertinent part:

Any member in service classified in Group 3 who is

an officer appointed under section nine A of chapter

twenty-two and who has performed service in the divi-

sion of state police in the department of public safety

for not less than twenty years, shall be retired by the

state board of retirement upon his attaining age fifty

or upon the expiration of such twenty years, whichever

last occurs.“

4

The text of the pertinent portion of the statute is found at

page 182 of the second volume of the Annotated Laws of

Massachusetts (The Michie Company, 1973).

QUESTION PRESENTED

Whether the Massachusetts statute mandating the retire-

ment of a state police officer upon reaching the age of fifty

is constitutional?

STATEMENT OF THE CASE

On July 7, 1972, the plaintiff, Robert D. Murgia, com-

meneed a civil action in the United States District Court for

the District of Massachusetts seeking an injunction against

the operation of Mass. Gen. Laws ch. 32, § 26(3) (1973).

Having served for at least twenty years in the Uniformed

Branch of the Massachusetts State Police (state police),

the plaintiff was to be mandatorily retired upon reaching

the age of fifty. After hearing on a motion for a temporary

restraining order and a request for the convening of a three-

judge court, the district judge dismissed the complaint for

failure to raise a substantial constitutional question. The

plaintiff then appealed to the United States Court of Ap-

peals for the First Cirenit, which court reversed the judg-

ment of the district court and remanded the matter to the

district court for the convening of a three-judge court pur-

suant to 28 U.S.C. §§ 2281 and 2284 (1970).

A three-judge court was convened and evidence taken by

way of the submission of depositions, affidavits and various

documentary materials. The three-judge court found that

service in the state police is, or can be, arduous and that

high versatility is required, with few, if any, backwaters

available for the partially superannuated,’’ and ‘‘that there

is a general relationship between advancing age and de-

creasing physical ability to respond to the demands of the

job.“ (App. 23-25).

The court also found that the plaintiff was in excellent

physical condition and that medical examinations were given

yearly after state police officers reached the age of forty.

By way of observation, the court noted that no study had

been conducted on whether a critical area is reached at age

fifty irrespective of medical testing. On this record the

court ruled that the statute mandating the retirement of

state police officers at age fifty lacked a rational basis in

furthering a substantial state interest. After a further

hearing on the nature of the relief to be granted, the court

entered an order enjoining the defendants, the Board of

Retirement and the Commissioner of Public Safety, from

enforcing Mass. Gen. Laws ch. 32, § 26(3) (1973) against

the plaintiff. The instant appeal followed.

THE QUESTION IS SUBSTANTIAL

The holding of the court below—that the mandatory re-

tirement of state police officers at the age of fifty contravenes

the constitution of the United States—presents a substan-

tial question requiring plenary consideration by this Court.

The district court’s ruling that Mass. Gen. Laws ch. 32,

§ 26(3) (1973) lacks a rational basis ignores essential gov-

ernmental interests furthered by the statute and generates

grave uncertainty as to the administration of the state police

and its retirement system.

The district court purported to apply the rational basis

test in ascertaining whether the retirement statute violated

the Equal Protect on Clause. Had the court actually ad-

hered to that test, the statute would surely have survived

the constitutional challenge. A century of Supreme Court

adjudication under the Equal Protection Clause affirma-

tively supports the application of the traditional standard

of review, which requires only that the State’s system be

shown to bear some rational relationship to legitimate state

purposes.’’ San Antonio Independent School District v.

Rodriquez, 411 U.S. 1, 40 (1973).

The purpose of the state police is to provide more effec-

tively for the protection of persons and property and for

the maintenance of law and order in the commonwealth.“

Mass. Gen. Laws ch. 22, §§ 9, 9A (1973). The legitimacy of

this state purpose is patent and obvious. [T]he obligation

of the government to protect life, liberty and property

against the conduct of the indifferent, the careless and the

evil-minded may be regarded as lying at the very founda-

tion of the social compact.’’ Chicago v. Sturges, 222 U.S.

313, 322 (1911).

The mandatory retirement of state police officers at the

age of fifty is rationally related to the public safety objec-

tives of the state police. The district court found that

service was arduous and that ‘‘there is a general relation-

ship between advancing age and decreasing physical ability

to do the job.’’ (App. 25). The inescapable conclusion

is that the mandatory retirement statute is directly related

to promoting the physical capability of the state police to

perform its arduous police functions. See Mclvaine v.

Pennsylvania, 6 Pa. Cmwith. 505, 296 A.2d 630 (1972), af d,

454 Pa. 129, 309 A.2d 801 (1973), appeal dismissed, 415

U.S. 986 (1974) (Pennsylvania statute mandating resigna-

tion of state police officers who attain the age of sixty

upheld).

7

Without citation of authority, the district court redefined

‘se concept of rationality in the context of the state police.

Essentially, the court ruled that since individual medical

examinations were given to officers over forty years of age

on an annual basis, the burden was on the defendants to

show that the prognosis based on such testing was unreli-

able. Such an analysis not only blurs the very real and

distinct objectives of the retirement statute and the medical

testing; it also erroneously interjects a concern with indi-

vidual determinations into the rational basis test.

The medical examinations are designed to determine

whether a state police officer has a physical defect which

would warrant his retirement for disability. This deter-

mination relates to the maintenance of a minimal level of

capability; it does not relate to the functional age or the

relative physical capability of a particular officer. Cf.

Hodgson v. Greyhound Lines, Inc., 499 F.2d 859, 864 (7th

Cir. 1974), cert. denied, 43 U.S.L.W. 3404 (U.S. Jan. 20,

1975). The retirement statute, Mass. Gen. Laws ch. 32,

§ 26(3) (1973), has the positive objective of promoting the

physical capability of the state police. Intersecting the lines

of increasing age and decreasing physical capability at age

fifty is a rational accommodation well within the legislative

power to make. The fact that a particular officer over the

age cf fifty may maintain a minimal or even a high level of

capability is irrelevant for purposes of equal protection

scrutiny. ‘‘But every line drawn by a legislature leaves

some out that may well have been included. That exercise of

discretion, however, is a legislative, not a judicial funetion.“

Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974) (foot-

note omitted).

Increasing the distance between the traditional rational

basis test and the analysis initiated by erroneously focusing

on the availability of medical screening, the district court

required the defendants to document that by age fifty a

critical area had been reached irrespective of the medical

examinations. Even if the Equal Protection Clause were

construed to limit the state police to merely eliminating the

physically unfit, such a requirement misconceives the burden

of proof. The plaintiff must establish the lack of a factual

basis for the statute and, if the issue is whether a critical

area is reached at age fifty, the plaintiff must prove that

such an area is not reached. The defendant should not be

held to proving the affirmative. McGowan v. Maryland, 366

U.S. 420 (1961). While the district court did review various

statistics concerning disability retirements for non-injury

defects and waivers of such defects, the only conclusion

reached was that they do not forecast imminent change at

age fifty. The court did not find that they established that a

critical area was not actually reached at age fifty.

The district court’s singular constitutional analysis may

be described as an equal protection one with considerable

due process overtones. Indicative of this fault is the court’s

statement that the mandatory retirement statute was no

more rational than the mandatory suspension or discharge

rules invalidated in Cleveland Bd. of Education v. LaFleur,

414 U.S. 632 (1974). In LaFleur, this Court ruled that a

school teacher could not be suspended or discharged merely

because of reaching the fourth or fifth month of pregnancy.

Because the rules in question affected the exercise of the

fundamental constitutional right of procreation and oper-

ated as irrebuttable presumptions of unfitness to perform

teaching functions, this Court ruled that they violated the

Due Process Clause.

The retirement of state police officers and the discharge

of pregnant school teachers present very distinct considera-

tions. There is a finding in this case that physical ability to

perform the functions of a police officer declines with age;

there was no finding in LaFleur that physical ability to

teach declines in the fourth or fifth month of pregnancy.

The retirement statute does not conclusively presume that a

police officer is physically unfit for service ; it maximizes the

physical capability of the force as a whole. The maternity

rules conclusively presumed that a teacher was physically

unfit for teaching; they did not serve to promote any defin-

able positive state interest in the education process. The

distinctions between state police officers and pregnant

teachers in these cases are thus significant and eminently

reasonable.

The mandatory retirement statute serves the additional

state interest of promoting morale and incentive in the

service. The shorter the average term of service, the more

promotions that become available. Increasing the retire-

ment age and thereby the length of the average term of

service would result in at least a degree of ‘‘stagnation of

promotion and disincentive to. .. service.“ Schlesinger v.

Ballard, 43 U.S.L.W. 4158, 4160 (U.S. Jan. 15, 1975).

While the attractiveness of increased promotion oppor-

tunities may be counteracted with a certain degree of regret

upon being faced with early retirement, it does not lose its

rationality thereby. Since retirement benefits are related to

salary level when retired, the benefits are greater for those

who have been promoted to higher ranks. Mass. Gen. Laws

ch. 32, § 26(3) (1973). The ultimate unhappiness upon re-

tirement thus would not materially affect the force as a

whole and is tempered by the receipt of retirement benefits.

10

Finally, the decision of the district court contains no cita-

tion of authority supporting its views and ignores consider-

able authority to the contrary. Each case concerning age

classifications referred to by the district court sustained the

challenged classification. Oregon v. Mitchell, 400 U.S. 112

(1970) (voting); Thomas v. Pate, 493 F.2d 151 (7th Cir.

1974) (warm clothing for inmates); United States v. Dun-

can, 456 F. 2d 1401 (9th Cir. 1972), vacated on other grounds,

409 U.S. 814 (1972) (jury service); Smith v. United States,

424 F.2d 267 (9th Cir. 1970) (selective service); Scarangella

v. Commissioner, 418 F.2d 228 (3rd Cir. 1969) (tax exemp-

tions for dependents); Air Line Pilots Ass’n., Int’l. v.

Quesada, 276 F.2d 892 (2nd Cir. 1960), cert. denied, 366 U.S.

962 (1961) (active duty for pilots). Not cited by the court,

but upholding age requirements for retirement or employ-

ment are: McIlvaine v. Pennsylvania, supra, (state police);

Weisbrod v. Lynn, Civil No. 2465-72 (D.C. Oct. 11, 1974)

(federal civil service); Weiss v. Walsh, 324 F. Supp. 75

(S. D. N.Y. 1971), aff’d, 461 F.2d 846 (2nd Cir. 1972), cert.

denied, 409 U.S. 1129 (1973) (college professor); Arm-

strong v. Howell, 371 F. Supp. 48 (D. Neb. 1974) (county

employees); Retail Clerks Union, Local 770 v. Retail Clerks

Int J. Ass’n., 359 F. Supp. 1285 (C.D. Cal. 1973) (union

members). The district court opinion is therefore devoid of

support in either reason or precedent.

|

CONCLUSION

The question presented by this appeal is substantia! and

warrants plenary consideration by the Court. Probable

jurisdiction should therefore be noted and the case set down

for argument.

Respectfully submitted,

Francis X. BELLOTTI

Attorney General

James P. Krernan

Assistant Attorney General

Terence P. O’MALLey

Assistant Attorney General

Attorneys for Appellants

12

APPENDIX

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ROBERT D. MURGIA,

Plaintiff CIVIL ACTION

Vv. No. 72-2083-LC

COMMONWEALTH OF MASSACHUSETTS

BOARD OF RETIREMENT

c

CAMPBELL, D.J. 1.

Plaintiff is the executive officer and lieutenant

colonel of the Uniformed Branch of the Massachusetts State

Police, with over 24 years service in that branch. On

July 23, 1972, when he reaches the age of 50, he will be

retired from the state police, pursuant to M.G.L. ch. 32,

sec. 26(3) (a), which requires that the state board of

retirement retire members of the Uniformed Branch when they

reach 50 or complete 20 years service, whichever occurs

later.

Plaintiff brings this action, asserting jurisdic-

tion under 28 U. 8. c. 6130303), to enjoin the erecution of

ch. 32, §26(3) (a). He alleges that the status. discrimi-

nates against him in violation of the equal protection

clause of the Fourteenth Amendment to the United States

Constitution.

Plaintiff claims that he is denied equal protect ion

of a right to employment, in at least three ways:

JJ ĩ˙ĩ˙»:] .

whether or not to convene a three-judge court pursuant

to 28 U.S.C. Secs. 2281 and 22864, and issue a preliminary

injunction restraining plaintiff's forced retirement

pending final determination of the case. A hearing

addressed to these questions was held on July 18, 1972.

There, in addition to the arguments of counsel, the Court

heard plaintiff present case-history examples and other

evidence to illustrate the alleged discriminations

Gescribed above. The Court also allowed a brief amicus

statement to be made, opposing plaintiff's contentions,

by counsel for the State Police Association of Massachusetts.

11

A three-judge court is not required to be convened if

the constitutional question raised is insubstantial. K

Parte Poresky, 290 U.S. 30 (1933). ‘There the Court said:

"The existence of a substantial

14

More recently, the Supreme Court has reiterated that the

question of substantiality is for the single judge to

decide:

“When an application for a sta three-

judge court is addressed to a distr

limited to determining *

tutional raised is ’

8 substantial

369 0.8. 31 (1962),

382 U.8. 111 (1965).

In deciding whether or not the constitutional

question presented here is substantial, this Court feels

that it should be guided by the following language of

the Second Circuit Court of Appeals:

"The easiest solution for the district

ing

of a three-j court... (But a] district

judge should not feel that he is merely a

rubber stamp or that he emereises his -

ment at his peril. .{Ajl this case may

not be ‘open and shut (so few cases are),

the decisions of the eme Court and other

courts which are as ana as possible to

this case should be examined to ascertain

whether they ‘foreclose the subject’...

Of course, no two cases involving 1

protection are alike as to facts .

were mere factual variation the test, all

cases should be channeled to the Supreme

Court on the chance tha

feature might be found

t

Court reminds us that leide

requirement is a technical one to be

i

some distinguishing

However, the Supreme *

15

111

Upon examination of analogous Supreme Court and

lower court cases, I conclude that plaintiff's federal

constitutional claim is without serit.

This is not a case where « plaintiff is alleging

discrimination based upon a suspect classification such

as religion or race, or deprivation of some fundamental

right such as the right to vote. Statutory classifica-

tions of such a nature are subject to special scrutiny

by the courts. Brown v. Board of Education, 347 0.8.

463 (1954), exper v. Virginie Board of Blections, 383

U.8. 663 (1966).

The plaintiff has pointed to no case bringing the

right sought to be protected here, the right to continued

employment beyond a specified age or period of service,

within the area where only a compelling interest allows

the state to maintain the challenged classification.

Indeed, one case plaintiff relies on did not even consider

the constitutional question, Allen v. Borough of West

Mifflin, 419 Pa. 394, 214 A. 2nd 302 (1965), and the other

held against the officers complaining of forced retirement,

Boyle v. City of Philadelphia, 338 Pa. 129, 12 A. 24 43

(1940).

Absent any allegations touching off strict scrutiny

of the challenged classification, the task before the court

is to determine whether the “classification bear(s) some

rational relationship to a legitimate state purpose."

Weber v. Aetna Casualty $ Surety Company, Supreme Court

Slip Opinion, April 24, 1972, at 8, and cases cited therein.

16

The Supreme Court has applied this test where

classifications depriving persons of employment oppor-

tunities are challenged. Boteh vy. Board of River Port

Pilot Comm'rs, 330 U.S. 552 (1947), Goessert vy. Cleary,

335 0.8. 464 (1948).

According to counsel for the Commonwealth, the

purpose of the challenged statute is to insure that the

Uniformed Branch of the state police be a “young, vigorous

force.“ Sarly retirement even of high-ranking officers

gives younger men « chance for promotion and ensures that

commanders possess the physical vigor to accompany their

men in the field. These are surely legitimate purposes.

Mandatory retirement at the age of % is at least «

rational, if mot the only, means of achieving the.

True, the statute provides that a state policeman

may not be retired until he has reached 20 years’ service

if that should our after he has reached 50. The Common-

wealth explains that this provision merely tempers the

age-50 requirement in the interest of having a policeman

serve long enough to merit « pension.

Under usual circumstances, « san will be forced to

retire at age 50 in any event, since he may enlist in

the state police for the first cime only between the

ages of 21 and 29. M.G.L. ch. 22, §9a, effective Dec. 1,

1939. But it has happened, for various reasons, that some

members have exceeded or will exceed age 50 when they

retire. Thus, before the effective date of §94, some

men over 29 enlisted. Others, by special statutory

17

Gispensation, were allowed to enlist after they hed

reached 30 if they hed served in the armed forces during

World War II. Ch. 22, §9a, as amended by the Acts of

1946, ch. 260.

A notarized letter by the Commissioner of Public

Safety, made an appendix to this opinion, shows that

most uniformed policemen over 50 at retirement are in

the above two categories. The case histories produced

by the plaintiff's own search do not contradict this

conclusion.

Finally, in some instances, members have left and

then returned to the service, and hence are over 50 before

putting in 20 years total service. But as the Commissioner's

notarized letter makes clear, relatively few men are in

this category: Only two men presently in the service, and

two men who have retired.

Only to the limited extent illustrated by the examples

given above is the principal statutory purpose thwarted.

The Commissioner states that since 1921 only 35 out of |

2,061 individuals enlisted in the Uniformed Branch served

over the age of 50.

As for the differences between the treatment of the

plaintiff and the treatment of detectives and women, it is

surely rational to different‘ate between those whose jobs

require primarily patrolling, and crime prevention and

control, and those whose duties require less athletic and

physically demanding work. Detectives, whose primary

task is investigation, and women, whose primary task is

18

dealing with women and children, could rationally be

Getermined by the legislature to fall within this latter

category.

That detectives and women sometimes perform

physically taxing work does not, because it produces «a

minor inconsistency in the statutory scheme, make the

statute constitutionally invalid.

It is also true that uniformed members assigned to

the detective branch, or to other offices where physically

Gemanding work is not required, are still forced to retire

at 50.

This and other inconsistencies in the statutory scheme

may be imperfections. But, as the Supreme Court has said:

In the area of economics and social

welfare, a State does not viclate the

Equal Protection Clause merely because

the classifications made its laws are

imperfect. If the classification has

some ‘reasonable basis,’ it does not

offend the Constitution simply because

the classification ‘is not made with

mathematical nicety or because in practice

it results in some inequality’....The

problems of government are practical ones

and may justify, if Go not require,

rough accommodations--illogical, it may be,

and unscientific’....'A statutory discrimina-

tion will not be set aside if any state of

facts reasonably may be conceived to justify

4e.°* * 397 bs. 471,

485 (19 ° also

431 F. 24 967, 968-9 (

Plaintiff's prayers for a temporary restraining order

and for the convening of a three-judge court are denied.

As the complaint does not raise a substantial constitu-

tional question, and as it is essential to jurisdiction

—

19

thet e M@eténciad evnstitutions! questica be raised,

thé complaint is Giemisee®. By Parte Roseaky. 29¢ 9.6.

30 (1933), Bogede vy. Weeee/-397 0.8. 397 (1979).

Date: July 21, 1972

No * 72-28

JUDGMENT

July 26, 1972

CAMPBELL, District Judge,

After hearing, and in accordance with the Memorandum

and Order of the Court entered July 21, 1972, it is hereby |

ORDERED :

Judgment for the defendant;

complaint dismissed.

By the Court,

Pp ey hete-

Deputy Clerk ä

21

APPENDIX

UNITED STATES COURT OF APPEALS

POR THE FIRST CIRCUIT

No. 72-1300 .

ROBERT D. MURGIA,

Plaintiff, Appellant,

Vv.

COMMONWEALTH OF MASSACHUSETTS,

BOARD OF RETIREMENT,

Defendant, Appellee.

MEMORANDUM AND ORDER

Entered: September 10, 1973

The court, mindful of the strictures of

Goos N. Osser, 409 U.S. 512 (1972) and of the

guities v. U. S.

(May 14, 1973), ded Biphardaan, — _

decision below, is unable to say that the claims

presented afford “no room" for controversy. It is

ordered that the judgment be set aside and the case

is remanded for the impanelling of a three-judge court.

No costs.

eater? CH, Cw a

[cc: Messrs. City and O'Malley.)

22

APPENDIX

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ROBERT D. MURGIA,

Plaintiff,

. Civil Action

No. 72-2083-T

COMMONWEALTH OF MASSACHUSETTS

BOARD OF RETIREMENT et al.,

— — ee ee — ee

1 Defendants.

OPINION

Before Aldrich, Senior Circuit Judge,

Freedman and Tauro, District Judges.

May 31,1974

ALDRICH, Senior Circuit Judge. Pla int ff, 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. e. 32 § 26(3). rur-

suant to that statute plaintiff, 2 Lt. Colonel in the Uniformed

Branch of the Massachusetts State Police, wee involuntarily |

retired because, having completed over 20 years of service,

be 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, ahd thus |

1 0

automaticrlly may cerve beyond age 50. We reach only one

1. Had plaintif’ not served 20 years, he could have remsined

‘om the {orce until he did so. ‘owever, since under the law

mo mal’ may enlist after age 30, this extension can prerently

occur only for cer*air individuals who have resigned, of

kes a leave of absence, and rejoined at some ilatos date. OO

23

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

mnless the particular physical defect is waived by the Con-

missioner of Public Safety.” 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 sane time,

it is acknowledged that service in this branch is, or can be,

arduous, e and that high versatility is required, with few, if

any, backwaters available for the partially superannus ted.

Lest there be misunderstanding, we do not fault the service in

the record this is an unusual occurrence, and we will assume

the existence of legitimate grounds for the exception. Nor

will we concern ourselves with the technical sex discrimina-

tion.

2. Senior officerbf the Uniformed Branch, and head of the

— of Public Safety, of which the State Police is a

ivision.

3. We assume, at least for present purposes, that the

duties are sufficiently more arduous than, cr the physical

and mental stresses significantly different froa, those of

detectives or policemen in „tber branches and at other

levels of government, so that there is no viable eran

protection claim in this area.

-

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 pro-

ceed further. We hold that plaintiff has at least a recog-

nizable interest in retaining lis euploynent* which the state

cannot deny arbitrarily and irrationally, Drown v. Portsmouth

School District, 1 Cir., 197], 451 F.2d 1106, 1108; see

Board of Regents v. Roth, 1972, 408 U.S. 564, 576-77; Wieman

v. Updegraff, 1952, 344 U.S. 183, 192, and we find that

mandatory retirement of officers at 50 years of age bears no

“fair and substantial relation to the object of the legisla-

tion,” 2. 8. Royster Guano Co. v. Virginia, 1920, 253 U.S.

412, 415, quoted in Reed v. Reed, 1971, 404 U.S. 71, 76.

We dispose readily of certain of the state's con-

tentions. Its argument that early retirement enhances the

morale of the younger members, in # 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

se

4. To the extent that it may affect plaintiff's due process

rights, see Board of Regents v. Roth, 1972, 408 U.S. 564. we

pote that aiter six years of service no officer who passes

the physical can be denied reenlistzent. ass. C. L. c. 22.

§ 9A.

of ultimate unhappiness.5 ine same can be said with respect

to the alleged desirability of rapid promotion; the altfactive-

ness of quick promotion must be weighed against the unattrac-

tiveness 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 question-

able consequence since it is unrelated to the period of time

the retiree has occupied his last position. ° The alleged

desirability of facilitating rapid promotion by early retire-

ment, rather than a justification, will be seen on analysis

to be age discrimination per se. 9

The only question requiring sericus 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 relation-

ship 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 9 — is not

established by the fact that certain individuals are dis-

advantaged thereby. Cf. Wickard v. Filburn, 1942, 317 U.S.

111, 129-30.

F

5. We would concede vitality to the morale argument if

officers not capable of carrying their full load were to be

retained, but this is not the question. See ante.

8. An officer qualifying for promotion, or for further

‘promotio:, is not required to accept it.

We fully accept the necessity of choosing arbitrary

standards in certain, and indeed in many, situations. For

— in dealing with the immeasurable changes relating to

the onset of maturity, legislatures may require a specific

— for voting, Oregon v. Mitchell, 1970, 400 U.S. 112, even

though the particular age selected may seem indifferentiable

from other ages in proximity to it. Id. at 294 (Stewart, J.,

— in part and dissenting in part); see id. at 243-46

(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; Smith v.

United States, 9 Cir., 1970, 424 F.2d 267 (selective service

age limitations); Scarangella v. Commissioner, 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 sppreci-

able state interest, exists, even if no specific point within

that range is prefereable to any other. ;

In the voting and other cases above cited, the

—— was concerned with a broad spectrum of the popu-

lation where it would not be practicable to make individual

Fuba Under such circumstances an arbitrary

* is called for, if not inevitable, and the only

— must be whether the one selected is, in the large,

reasonable. In the case st bar the situation is exactly

the reverse. Individual testing is not impracticable but,

rather, is already the order of che day. There is no

27

suggestion that it is more budrensome 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 Lire

Pilots Ass'n, Int'l v. Quesada, 2 Cir., 1960, 276 F.2d 892,

cert. denied 366 U.S, 962, upholding as not “arbitrary and

discriminatory and without relation to any requirement of

safety“ an administrative ruling disqualifying pilots from

active duty upon reaching age 60. In so doing the court ,

pointed out the comprehensive study conducted by the

administrator, and the documented reasons for his conclusion

that by age 60, in spite of medical testing, a critical area

had been reached. See 27€ 2d at 898. No such determina-

tion has been, or could be made, in the case at bar. So

far as appears, no study has been conducted of any kind.

While there has been a compilation of certain statistics,

from defendants’ standpoint they are counter-productive.

Not only did no expert testify to any significance in age 50

in a group which, by hypothesis, had individually passed

annual tests during the preceding decade, but statistics of

actual experience forecast no imminent henge. In the Uni-

formed Branch during the period November 1967 to December

1973 there were fifteen discharges of persons between the

ages of 40 and 50 for non-injury disability, divided as

/

follows.

Age 40-3 Age 45-1

41-3 — 46-3 *

42-1 47-2 °

43-1 * 48-1

44-0 49-0

The force of these figures is not offset by a growth curve

of waivers in the place of disability retirements.’ The

statistics furnish no reasm to suppose that age 50 is

‘within, or even significantly approaching, 4 range where

changes of conditions warrant a change of treatment. Rather,

they contradict it.

If, further, we turn from Massachusetts to national

experience as disclosed by legislative response, plaintiff

has furnished a list of statutes from which it appears that

Massachusetts is the only state compulsorily retiring police

officers before age 55.

On this record we find that mandatory retirement

at age 50, where individualized medical scréening is not

only available but — required, is no more rational,

and no more related to a protectable state interest, than

the mandatory suspension or discharge of school teachers upon

reaching their fourth or fifth sonth of pregnancy.® Cleve-

land Board of Education v. LaFleur, (1/21/74) v. 8. 0

7. rhus in the year 1973, ten waivers of partial, although

permanent, non-injury disability were granted in the 40-50

age group. These divided as follows.

Age 40-0 Age 45-2

ü 41-2 46-0

42-1 47-0.

. 43-1 48-2

- 44-2 49-0

6 2 4

8. We do not regard Thomas v. Pate, 7 Cir., 1974, 493 F.2d

151 (prisoners under 40 denied Tree long underwear) as in any

way contra. We read that case, inter alia, as one where

ple int if failed to make allegations Specific enough to

raise an issue of irrationality.

Recognizing the public interest in protecting individuals’

right to work. and egaiust discrimination on aceount of oge,

gee. E-. Age Discrimination in Employment Act of 1967,

29°U.S.C. § G21; Mass. G.L. c. 149, $§ 24A and 151B, we are

compelled to strike down the present age distinction where

plaintiff has established the absence of any factual basis

there tor.

Judgment will be entered declaring Mass. 6. L.

ce. 32 § 26(3) unconstitutional and void, and awarding,

after hearing, appropriate mandatory relief.

®. Whether we would reach the same result .f the statute

selected a more customary retirement age is aot before us.

With t respect to ir. Justice Rehnquist, dissenting in

a rd of Education v. Fleur, ante, we would

manda etirement at age 70

— ue

not to be the same as at age 50, but perhaps we say this .

because of the increasing difficulties that a plaintiff

might have to show that at that greater age the state had

not made out a factually rational argument.

30

APPENDIX

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

7

ie

Plaintiff,

+ Civil Action

i ‘Wo, 72-2083-T

COMMONWEALTH OF MASSACHUSETTS

BOARD OF RETIREMENT et al.,

Defendants.

becesber / 1974.

Before ALDRICH, Circuit Judge,

TAURO and FREEDMAN, District Judges.

! ALDRICH, Senior Circuit Judge. We are now

concerned with the measure of relief to be afforded as «

result of our decision in Murgia v. Commonwealth of Mases~

chusetts Board of Retirement, D.Mass., 1974, 376 F.Supp 753,

holding unconstitutional Mass. G.L. . 32, § 26(3), whic.

required the involuntary discharge of plaintiff Murgia fros

the State Police force, although he was physically qualified,

simply because he had reached age 50. The first question is

whether all issues now presented are properly subject to

resolution by three judges, or whether some are for the

single judge alone. The parties have sought the former

course, and since all three judges sre in agreement on the

merits, we see no basis for complaint here whether our

1

decision to sit jointly is legally correct or not.

1. We recognize, of course, that jurisdiction cannot be

conferred by consent or waiver. Americans United for 2

Separation of Church and State v. Paire, 1 cir., 1973,

rh 462, 464. Given our unanimity, however, the question

A few comments are in order with respect to what

we are not including in our judgment. Plaintiff asks that

we require that his reappointment be to the position of

Deputy Superintendent, a position recently created by the

Massachusetts legislature, possibly on account of our earlier

Gecision. We decline to do so. Plaintiff was retired with

the rank of Lt. Colonel, and it is to this position that he

should be restored. The fact that there was only one officer

with a higher rank at the time of his dismissal does at

guarantee that if he had not been dismissed he would have

been entitled to the new superior position. In any event,

we do not propose to organize the State Police. If, by some

seemingly remote possibility plaintiff hereafter is able to

show, in connec tien with his reinstatement, discrimination

amounting to a failure fully to comply with our judgment,

that would de another aatter.

U

of three judges does not affect the outcome, and will come

into focus only in case of an appeal, viz., whether it

should lie wholly to the Supreme Court, or to the Court of

Appeals as well on the issue of relief here considered. See

Socialist Workers Party v. Rockefeller, S. b. u. v., 1970, 31%

F.Supp. - , att'd, 400 U.S. B06, a 1 disai .

400 U.S. 962; Swift Eo. v. Wickhas, Swe TSE 237

F.Supp. 398, aff'd, J Cir 67 F.2d 241, cert. denied, 385

0 oe 8 1

U.S. 1036. The Question of relief at issue seems sufficiently

bound up with the equitable remedy sought by plaintiff to be

- Supp. Sel. st, the decision to retain

Judge jurisdiction may be within our discretion, see

Jenkins v. McKeithen, E.D.La., 1968, 286 F.Supp. 537, 8

Fev’d on ot s, 395 U.S. 411, and, if so, we exercise

of retention.

Next, plaintiff asks us to include an order for

back pay, which he describes as “restitution of compensation

withheld.” The parties, inter sese, bave made various calcu-

lations and adjustments, spd have stipulated to the amount,

but defendants, citing the Eleventh Amendment, and Edelean v.

Jordan, 1974, 415 U.S. 651, contest our right to sake any

award,

In Edelman the Court affirmed a judgeent declaring

‘unconstitutional certain state practices barring plaintiffs

from receiving welfare benefits, but reversed s soney judgment

awarding retroactive benefits of which plaintiffs had been

deprived. The Court held that although such paysent was

denominated equitable restitution and is substance sight be

so considered, this did not serve to voile the Eleventh

Amendment's strictures. Plaintiff's attempted distinctions

are not persuasive. First, plaintiff says that bis discharge

was ter the institution of the action, so that there would

be no retroactive effect on the state treasury because the

state was on notice when it failed to keep the soney. This

argument proves too much. If defendants retained plaintiff

in bis position they would have violated the statute, ss yet

not held unconstitutional. If they discharged him they could

not retain the funds, because they bad to hire « replacement.

Next, plaintiff argues that — mount of the

payment here is not substantial, perhaps defendants will, or

should pay it in their individual capacities. They support

this contention with the claim that defendants’ action was

not “simple good ‘faith application of the provisions of the

statute” because they knew of the pendency of the action. Our

previous answer applies here, if anything sore str aiy. cf.

Class v. Norton, 2 Cir., 10/10/74, 7. 20 „ The balance

of plaintiff's argument, dealing with what he terms equitable

restitution, is irrelevant to the Eleventh Amendment.

Next, plaintiff asks for costs, to include counsel

fees. Although Edelman did not consider the question, we

think it offers guidance. Edelman reaffirms the longstanding

proposition that the major objective of the Eleventh Amendment

is to protect state treasuries against judicial levy. 415 U.S.

at 662-65. See Jordan v. Gilligan, 6 Cir., 1974, 500 F.2d 701,

706; The Supreme Court, 1973 Term, 1974, 88 Harv.L.Rev. 13,

246-47. In this light we find unpersuasive attempts to persit

monetary assessments, as against Eleventh Amendment claias,

simply because they say be characterized as remedial or

administrative rather than compensatory. See Gates v. Collier,

5 Cir., 1973, 489 r. 2 298, 302. In either case the treasury

is taxed. Cf. Gilligan, ante, 500 . 2d at 708. Indeed, Edelman

itself exploded such distinctions, assuming arguendo that the

restitution there sought might be termed “equitable,” 415 U.S.

at 665, 669, while barring such relief for its fiscal inter-

ference. Id. at 668-69. See also Ford ter Co. v. Department

of Treasury, 1945, 323 U.S. 459, 462-64.

It may well be that Fairmont Creamery Co. v. Minne-

sota, 1927, 275 U.S. 70, 74, imposing ordinary court costs

ageinst a state as one of the “incidents of the hearing . .

which attach to the regular jurisdiction” of the federal court,

275 U.S. at 77, survives the proscription of Edelman. See

Boston Chapter. N.A.A.C.P., Inc. ». Beecher, 1 Cir., saree.

7. 20 . However, we regard the imposition of attorneys

fees to be in a different category. Absent statutory or con-

tractual authorization, such awards are made for a variety of

34

reasons. See Natural Resources Defense Council, Inc. ¥.

Environmental Protection Agency, 1 Cir., 1973, 464 F.2d 1331,

1332-34. They punish bad faith or frivolous postures. Id.

at 1333; Beecher, ante, ‘slip op. at 3; Class, ante, slip@.

at 92. They spread the cost of litigation among classes

benefiting from the judgment. Hall v. Cole, 1973, 412 U.S. 1,

5-7; Mills v. Electric Auto-Lite Co., 1970, 396 U.S. 375,

392-95. They reward, and hence encourage, litigants who

secure decisions of public as well as private interest. Ner-

man ». Piggie Park Enterprises, Inc., 1968, 390 U.S. 400,

402 (per curiam); National Resources Defense Council, Inc.,

ante, 484 F.2d at 1333, Each of these objectives reflects

independent policy considerations unrelated to the enforce-

ment of injunctions, and in no sense can be termed "integral"

to such relef. .

The area possibly closest to integral costs is

where 4 party has had special burdens in respect to the con-

duct of the litigetion itself. In the present case plaintiff's

course has not been made sore onerous by any harassment or

bad faith. Nor was he in the position of representing =

class, either in fact, or in the beckground.” We deny plain-

tiff's request for an award of counsel fees both as s matter

of law, and as a matter of discretion.

Ae to regular court costs, we adopt, without

further consideration, the view of the Court of Appeals for

this Circuit in Beecher, ante, and hold that defendants are

oO“ Abed ch

chargeable.

2. Only one additional bete u cnt a latecomer at that,

has sought representation as = party plaintiff. So far as a

class is concerned, the State Police Association of Massachu-

setts, as amicus, has sought to disassociate itself from

plaintiff's position.

APPENDIX

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

„*

ROBERT D. MURGIA )

)

Plaintiff )

)

) CIVIL ACTION

Vv. ) NO. 72-20863-T

;

COMMONWEALTH OF MASSACHUSETTS)

BOARD OF RETIREMENT, ET AL )

)

Defendants )

QRDER

TAURO .J. December A., 17

In eccordance with our opinion of May 31, 1974,

Mess. Gen. Laws c. 32 § 26(3) is declared

unconstitutional and void and the defendants are

enjoined from further enforcement of the seetten.

It is further ordered thet the plaintiff be reinstated

to the position of Lt. Colonel in the Uniformed

Branch of the Massachusetts State Police. Costs

are taxed against defendants.

This order is stayed pending appeal, provided

that notice of appeal is filed within thirty (30) days.

Pc

U. 8. Circdit Judge

a

V. 8. District Judge

a

. District Judge

APPENDIX

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF MASSACHUSETTS

ROBERT D. MURGIA,

Plaintiff

V.

CIVIL ACIION

NO. 72-2083-T

COMMONWEALTH OF MASSACHUSETTS

BOARD OF KETIREMENT,

ROBERT O. CRANE, ANGELO AMATO,

and J. JOSEPH MALONEY, JR.,

as They Are Members of the

COMMONWCALTH OF MASSACHUSCTTS

BOARD OF RETIREMENT, and

JAMES W. CALLANAN, Executive Secretary

of the COMMONWEALTH OF MASSACHUSETTS

BOARD OF RETIREMENT,

Defendants

NOTICE OF APPEAL

Notice is hereby given that the Members and Executive

Secretary of the Commonwealth of Massachusetts Board of Retire-

ment and the Commissioner of Public Safety of the Commonwealth of

Massachusetts, Defendants in the above-entitled action, hereby

appeal to the Supreme Court of the United States from the Order

enjoining the Defendants from further enforcement of Mass. G. L.

c. 32, § 26(3) entered by a three-judge court in this action on

the 12th day of December, 1974.

By their attorney,

TERENCE P. O'MALLEY

December 23, 1974 Assistant Attorney General

CERTIFICATE OF SERVICE

I, Terence P. O'Malley, a member of the bar of the

Un

States District Court for the District of Massachusetts, —4

certify that I have mailed a copy of the within Notice of Appeal

> aes L. Wise, Esq., Wise and Wise, 79 Milk Street, Boston,

— — and IN es Moulton, Looney, Mazzone,

kham ree

23rd day of 2 1974, ‘ ton, Mass. 02109 on this

rence F. ey