# Jurisdictional Statement — Massachusetts Bd. of Retirement v. Murgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0286%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1976 - **Citation:** 427 U.S. 307 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0286%3A01. Public record. Not legal advice.