Amicus Curiae Brief — Johnson v. Mayor of Baltimore

,.

Nos. ssi6” A

84-710 *

IN THE

Supreme Court of the United

Ocroser Term, 1984

ROBERT W. JOHNSON, et al.,

Petitioner,

Vv

MAYOR AND CITY COUNCIL OF BALTIMORE, et al.,

Respondents.

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Petitioner,

Vv

MAYOR AND CITY COUNCIL OF BALTIMORE, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN

ASSOCIA TON OF RETIRED PERSONS IN

SUPPORT OF THE PETITIONERS

ALFRED MILLER

Steven S. HONIGMAN

Perer N. GrEENWALD

MILLER, SINGER « RAIVES, P.C.

555 Madison Avenue

New York, New York 10022

(212) 752-8830

Attorneys for The American Association

Of C 1. of Retired Persons

TABLE OF CONTENTS

Page

I pp ca ceccuscnasenenéesess ii

EE 1

i itd peep eneeeneseteneees 2

A. Statement of Interest of Amicus Curiae 2

B. Preliminary Statement ................... 4

SE 4

A. Congress Did Not Intend Non-Federal

Firefighters To be Subject To the Federal

> gapnecheapeenentntamtaemmad :

B. The BFOQ Exception Should Continue To

Be Scrutinized On a Case-By-Case Basis... . »

TABLE OF AUTHORITIES

Cases Page

Air Line Pilots Ass'n Intl 0. Trans World

Airlines, Inc., 713 F.2d 940 (2d Cir. 1983),

aff'd in part and rev'd in part, Trans World

Airlines, Inc. 0. Thurston, 104 S. Ct. 613

GOED ..cccccccccesseshudeussuneeeeee 9

Arritt o. Grisell, 567 F.2d 1267 (4th Cir. 1977) .. 6,9

Equal Employment Opportunity Commission c.

Wyoming, 460 U.S. 226 (1983) .............. 6.7.9

Harriss 0. Pan American World Airways, Inc.,

649 F.2d 670 (9th Cir. 1980) ................ 9

Hoefelman vo. Conservation Commission of

Missouri Department of Conservation, 718 F.2d

FF YS) eee 9

Johnson 0. Mayor and City Council of Baltimore,

731 F.2d 209 (4th Cir. 1984), cert. granted,

BSB. Ga, GEE GREED. . ccccccccccccccccsesss 5,7

Johnson 0. Mayor and City Council of Baltimore,

515 F. Supp. 1287 (D. Md. 1981), cert. denied,

455 U.S. 944 (1982), rev'd 731 F.2d 209 (4th

Cir. 1984), cert. granted, 105 S. Ct. 901 (1985) 6,7,8,10

Mahoney ov. Trabucco, 738 F.2d 35 (ist Cir.

1984), cert. denied, 105 S. Ct. 513 (1984) ..... 9

Orzel 0. City of Wauwatosa Fire Dep't, 697 F.2d

743 (7th Cir. 1983), cert. denied, 104 S. Ct.

ORS ™SC—“‘S 6.7,9

Trans World Airlines v. Thurston, 104 S.Ct. 613

a is ccc chscccececcce:

Nee cceccccecces

Usery 0. Tamiami Trail Tours, Inc., 531 F.2d

Nene es can oe wcccecccecc:

Statutes and Regulations:

Age Discrimination in Employment Act of 1967

29 U.S.C. §623(f)(1)..... 2... eee eee

29 U.S.C. §630(h)(2) ... eee eee.

29 U.S.C. §633a(a)... 2...

Other Authorities:

AARP Statement on Amending the Age

Discrimination in Employment Act Before the

Subcommittee on Employment Opportunities of

the House Education and Labor Committee,

98th Congress, 2d Session (May 17, 1984) .....

AARP Statement in Support of the Prohibition of

Mandatory Retirement and Employment Rights

Act of 1982, S. 2617, Before the Subcommittee

on Labor of the Senate Committee on Labor

and Human Resources, 97th Congress, 2d

Session (August 18, 1982) ...................

Comment, The Cost of Growing Old: Business

Necessity and the Age Discrimination in

Employment Act, 88 Yale L.J. 565 (1979) .....

Goldman, K., Decline in Organ Function with

Age, Clinical Geriatrics (I. Rossman Ed. 1981) .

H.R. Rep. No. 805, 90th Cong., Ist Sess. (1967),

reprinted in U.S. Equal Employment

Opportunity Commission, Legislative History of

The Age Discrimination in Employment Act 80

Sheppard, H.L. & Rix, R.E., The Graying of

Working America: The Coming Crisis of

Retirement Age Policy (1977) ............---.

The Myths and Realities of Age Limits for Law

Enforcement and Firefighting Personnel, A

Report by the Chairman of the Select

Committee on Aging, 98th Cong., 2nd Sess.

(1984) (House Aging Report).................

U.S. Code Cong. & Admin. News (1974), p. 3699

Nos. 84-518

84-710

IN THE

Supreme Court of the United States

Ocrosre Term, 1984

ROBERT W. JOHNSON, et al.,

Petitioner,

Vv.

MAYOR AND CITY COUNCIL OF BALTIMORE, et al.,

Respondents.

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Petitioner,

Vv.

MAYOR AND CITY COUNCIL OF BALTIMORE, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN

ASSOCIATION OF RETIRED PERSONS IN

SUPPORT OF THE PETITIONERS

I. INTRODUCTION

A. Statement of Interest of Amicus Curiae

The American Association of Retired Persons (“AARP”), of

1909 K Street, N.W., Washington, D.C. 20049, is a not-for-

profit membership corporation of more than 18 million persons

over the age of 50. AARP is the largest organized group of older

Americans in the country. In representing the interests of its

members, AARP seeks to: (a) enhance the quality of life for older

persons; (b) promote independence, dignity and purpose for

older persons; (c) lead in determining the role and place of older

persons in society; (d) sponsor research on physical,

psychological, social, economic and other aspects of aging; and

(e) represent the point of view of older persons as members of

the workforce.

In keeping with its purposes, AARP has devoted itself to in-

vestigating and working to alleviate problems resulting from

age discrimination, in employment as well as other aspects of

life.‘ Many Americans are victims of discriminatory treatment

because of age. Such discrimination has been most prominent

in the workplace.’ Not only is this phenomenon unfair to the

individual worker, but it robs the nation of valuable human

resources. It is for these reasons that AARP sought the consent

of the parties to the submission of this brief amicus curiae. See

Exhibits 1, 2 and 3.

' AARP has recently launched a major campaign to improve the employ-

ment opportunities available to older workers. The “Older Worker Advocacy

Initiative” has as its five goals to: (a) assess the impact of an aging work force

on society; (b) eliminate age discrimination in the work force thrugh legislative,

administrative and judicial action; (c) eliminate stereotypes of older workers;

(d) assist employers in creating workplace opportunities for older workers;

and (e) help older persons make informed employment and retirement

decisions.

* The number of suits brought under the ADEA has increased dramatically

as awareness of the Act has grown. For example, 9,479 age discr' mination

charges were filed with the EEOC in 1981, a 76 percent increase over the

number of charges filed in 1979. In 1983, 18,087 cases were filed with the

EEOC.

3

While aging is a universal process, it is also a uniquely in-

dividual phenomenon. The physiological changes accompany-

ing aging affect different individuals in different ways and at

varying times in their lives.’ In recognition of this fact and large-

ly as a result of the efforts of AARP, American society has begun

to reevaluate its longheld assumptions about the capabilities of

older persons, both in and out of the workforce. Just as it has

been recognized that an individual’s race or sex provides no basis

for judging ability, it is becoming increasingly accepted that

an individual’s chronological age is not an accurate predictor

of his or her ability to perform effectively in the workplace.

In the area of employment, AARP’s overriding goal has been

the eradication of discrimination based upon adverse stereotypes

regarding the competence of older persons. AARP has been in

the forefront of efforts to eliminate age discrimination in

employment, and has long advocated the elimination of man-

datory retirement.*

AARP strongly supported the enactment of the Age

Discrimination in Employment Act (“ADEA” or the “Act”), 29

U.S.C. § 621-634 (1982), as a means of promoting the employ-

ment of older workers and of prohibiting discrimination based

upon arbitrary age limits. AARP endorses the basic premise of

the Act: that a person’s fitness for a job should be based upon the

* See, H.L. Sheppard & R.E. Rix, The Graying of Working America: The

Coming Crisis of Retirement-Age Policy (1977), pp. 51-55 (older individuals

may help maintain the health status through physical exercise); K. Goldman,

Decline in Organ Function with Age, Clinical Geriatrics, 19-48 (I. Rossman

Ed. 1981' (Various systems in body age at different rates; onset of measurable

decline in one’s capacity varies widely among individuals.)

* See, e.g., AARP Statement on Amending the Age Discrimination in

Employment Act Before the Subcomm. on Employment Opportunities of the

House Education and Labor Comm., 98th Cong. 2d Sess. (May 17, 1984);

AARP Statement in Support of the Prohibition of Mandatory Retirement and

Employment Rights Act of 1982, $.2617, Before the Subcomm. on Labor of

the Senate Comm. on Labor and Human Resources, 97th Cong. 2d Sess.

(August 18, 1982).

of that individual, and that competent individuals

who choose to continue working should, by law, be permitted

to do so.

B. Preliminary Statement

The decision below will seriously erode the protections that

Congress intended to confer upon workers covered by the

ADEA.

tended that retirement age to constitute a bona fide occupa-

tional qualification (“BFOQ”) for every firefighter throughout

the nation, the lower court misread the intent of that statute

and the ADEA.

0. ARGUMENT

A. Congress Did Not Intend Non-Federal Firefighters

To Be Subject To the Federal Mandatory Retirement

Age As A Matter Of Law

As the basis for its decision that a mandatory 55-year retire-

ment age constitutes a BFOQ as a matter of law for Baltimore

... firefighting employees.”* The court reasoned that Congress

would not have adopted a Federal occupational qualification

for the civil service retirement statute to which federal

firefighters are subject “that is not, or might not be, bona fide”. *

In consequence, the court concluded as a matter of law that

it was required to apply the federal statute’s provisions for age-

based compulsory retirement as a “congressional mandate” and

“federal standard” to non-federal workers under the ADEA.

In reaching that conclusion, the court neglected to bear in

mind another decision by “the same Congress” respecting the

ADEA — that when the ADEA was extended generally to the

states and their political subdivisions as employers,’ it was also

made applicable to a nu.xber of federal instrumentalities, but

not to the agencies hiring federal firefighters."

Because the federal age-55 mandatory retirement standard

was enacted for federal employees to whom Congress chose not

to extend the protections of the ADEA, the Court of Appeals

was mistaken when it assumed that Congress necessarily intend-

ed such a retirement provision to serve as a BFOQ benchmark

for non-federal employees who are covered by the ADEA.® As

* Johnson 0. Mayor and City Council of Baltimore, 731 F.2d 209, 212 (4th

Cir. 1984), cert. granted, 105 S. Ct. 901 (1985).

* Id. at 213.

"29 U.S.C. § 630 (h)(2).

* See 29 U.S.C. § 633 a(a). The majority noted this exception to the scope

of the ADEA in passing, 731 F.2d at 211, but its implications were not con-

sidered in the majority's opinion.

* Indeed, the legislative history indicates that the relatively youthful age

selected by Congress for federal employees’ retirement was intended to serve

as a form of reward for exceptionally hazardous federal service, rather than

as a BFOQ determination concerning the inability of an older person to per-

form his duties effectively. See Stewart o. Smith, 673 F.2d 485, 487 n.4 (D.C.

Cir 1982) (Public Law 93-350 was intended to improve incentives for early

retirement by increasing the annuity value of the first twenty years of ser-

vice, thereby making early retirement “more economically

this and other courts have made clear, the assessment of the

waty 6050S) 6a eee ee

is subject to a set of strict legal principles respecting

a Pat er ey a oe ree

for the defense to prevail." For many non-federal workers, the

Fourth Circuit's ruling would reduce those principles to a

chimera. That ruling would create the anomalous situation in

which an age-based compulsory retirement rule which was in-

tended by Congress to be exempt from the scrutiny provided

by the ADEA would preempt the legal analysis prescribed for

workers upon whom Congress has explicitly conferred the full

panoply of ADEA protections." Such a result would be con-

trary to the intent of Congress in extending the ADEA’s coverage

to the Baltimore firefighters here.

B. The BFOQ Exception Should Continue To Be

Scrutinized On a Case-By-Case Basis

It is clear from the legislative history of the ADEA and the

decisions of the courts that an employer's claim that a mandatory

(footnote cont'd.)

practicable.”); U.S. Code Cong. & Admin. News (1974), p. 3699 (“The history

of retirement legislation dealing with law-enforcement officers and firefighters

shows Congressional intent to liberalize retirement provisions so as to make

it feasible for these employees to retire at age fifty.~).

* See, e.g., EEOC 0. Wyoming, 460 U.S. 226 (1983); Trans World Airlines

o. Thurston, 104 S.Ct. 613 (1985); Usery 0. Tamiami Trail Tours, Inc., 531

F.2d 224 (Sth Cir. 1976).

" As the District Court below pointed out in a somewhat different con-

text, a mandatory retirement age could pass muster under an Equal Protec-

tion analysis yet fail to qualify as proper under the ADEA /ohnson 0. Mayor

and City Council of Baltimore, 515 F . Supp. 1287, 130% (D. Md. 1981), cert.

denied, 455 U.S. 944 (1982), reo'd, 731 F.2d 209 (4th Cir. 1984), cert. granted,

105 S. Ct. 901 (1985); of., Arritt o. Crisell, 567 F.2d 1267, 1272 (4th Cir.

1977); Orzel 0. City of Wauwatosa Fire Dep't, 697 F.2d 743, 749 (7th Cir.

1983), cert. denied, 104 S. Ct. 484 (1983) (“mandatory retirement schemes

approved by Congress are not subject to the strict requirements of the ADEA,

rather such schemes need only be rationally related to a permissible govern-

ment objective.”).

retirement age constitutes a BFOQ should be subjected to an

individualized judicial review — based upon the particular

cluster of facts and the most recent medical and other expert

opinions relating to the specific job at issue.” Here, in what the

Court of Appeals termed a “thorough, impeccably reasoned opi-

nion,”™ the District Court conducted such a fact-specific review

and concluded that the compulsory retirement age could not

be sustained as a BFOQ. The Court of Appeals’ rejection of that

factual analysis, and its application of the federal ,

retirement provisions as a matter of law, are contrary to the

proper rules of proof under the ADEA.

If the approach adopted by the Court of Appeals is sanctioned

here, the legislative scheme enacted by Congress to guard against

age discrimination in employment will be substantially

impaired.

In the first place, a worker who seeks to challenge a purported

BFOQ and the Court reviewing such a challenge will no longer

have an opportunity to rely upon the most up-to-date expert

evidence. In this case, the federal retirement rule applied by

the Court of Appeals dates from 1974.” Since that time, the

panded considerably.“ As the factual record developed in the

District Court revealed, a substantial body of medical and other

scientific findings bearing upon the capacity of older firefighters

" See, e.g., H.R. Rep. No. 805, 90th Cong., Ist Sess. (1967) 7, reprinted

in U.S. Equal Employment Opportunity Commission, Legislative History of

The Age Discrimination in Employment Act 80; EEOC 0. Wyoming, supra;

Orzel 0. City of Wauwatosa Fire Dep't, supra.

* 731 F.2d at 213.

“ 731 F.2d at 212.

* As the District Court noted below, “Because of technical improvements

in recent years, physicians can today much more readily test for cardiological

problems which a fireman or other similar worker might have.” 515 F. Supp.

at 1298 (emphasis added)

to perform their duties has come into being."* Indeed, just last

year the Chairman of the Select Committee on Aging of the

House of Representatives issued a report marshalling the scien-

tific evidence against a mandatory retirement age for

firefighters. "”

Were the courts to look only to a years-old statute and its

contemporaneous legislative history (including any scientific sup-

port relied upon by the draftsmen) to validate a BFOQ, recent

and therefore compelling evidence that the statute's premises

about the impact of age have become medically obsolete would

be excluded from judicial consideration. There is no basis for

a belief that Congress intended to insulate any employer's prac-

tices from such an up-to-date scientific assessment.

The degree to which the Court of Appeals’ approach deviates

from the proper ADEA standard is highlighted by the second

form of analysis that it would exclude. Every circuit that has

considered the BFOQ exception has adopted the two-prong test

* See, ¢.g., 515 F. Supp. at 1298.

" The Myths and Realities of Age Limits for Law Enforcement and

Firefighting Personnel, A Report by the Chairman of the Select Committee

on Aging, 98th Cong., 2nd Sess., 9-15 (1984) (House Aging Report). The

Report states, “Abilities associated with job performance do not invariably

decline with age. As workers age, there is greater variation in their abilities,

and in some cases there is improvement of certain skills and abilities with

the added experience that comes with age. An individual's ability to perform

his or her job can be measured. In fact, research on the job performance of

older law enforcement officers and firefighters has shown an improvement

in performance among older employees.” /d, at 10. It concludes: “Mandatory

retirement for competent law enforcement officers and firefighters is un-

necessary and wasteful. The federal government's failure to recognize this

problem should not be compounded by allowing states and their political sub-

divisions to also discriminate against their employees based on age. The states

and their political subdivisions should, in accordance with the goals of ADEA,

test their public safety officers for fitness rather than make stereotyped assump-

tions of incapacity due to age.” Id., at 24. A general review of authorities

supporting the conclusion that chronological age is an unsatisfactory predic-

tor of performance is found in Comment, The Cost of Growing Old: Business

Necessity and The Age Discrimination in Employment Act, 88 Yale L.J. 565,

576-77 & nn. 50-56 (1979).

articulated in Usery 0. Tamiami Trail Tours, Inc." that in order

to prevail on such a defense, the employer “must show that the

challenged age qualification is reasonably related to the ‘essen-

tial operation’ of its business and must demonstrate either that

there is a factual basis for believing that all or substantially all

persons above the age limit would be unable to effectively per-

form the duties of the job, or that it is impossible or imprac-

tical to determine fitness on an individualized basis.”” This test

recognizes the statutory command that a BFOQ must be

reasonably necessary to the normal operation “of the particular

business. .."”

In stark contrast to the case-by-case analysis required by those

authorities as well as by this Court’s prior decision in EEOC

vo. Wyoming,” the Fourth Circuit here would impose a single

nationwide “federal standard” for all firefighters. Such a stan-

dard would do more than deprive workers claiming to be sub-

ject to age discrimination of an opportunity to adduce current

scientific proof in support of their claim. It would also read out

of the BFOQ exception the requirement that the occupational

qualification relate to the particular business at issue, and the

employer's burden of proof with respect to the inability of

workers above the age limit to perform effectively and the im-

possibility or impractibility of determining job fitness on an

“ 531 F.2d 222 (Sth Cir. 1976).

" See, Mahoney 0. Trabucco, 798 F.2d 35 (ist Cir. 1984), cert. denied,

105 S. Ct. 513 (1984); Air Line Pilots Ass'n, Intl 0. Trans World Airlines,

Inc. , 713 F.2d 940 (2d Cir. 1983), aff'd in part and rev'd in part, Trans World

Airlines, Inc. 0. Thurston, 105 §. Ct. 513 (1985); Arritt 0. Grisell, 567 F.2d

1267 (4th Cir. 1977); Tuohy 0. Ford Motor Co., 675 F.2d 842 (6th Cir. 1982);

Orzel 0. City of Wauwatosa Fire Dep't. supra; Hoefelman 0. Conservation

Comm'n of Missouri Dep't of Conservation, 718 F.2d 281 (8th Cir. 1983);

Harries 0. Pan American World Airways, Inc. , 649 F.2d 670 (9th Cir. 1980);

Stewart o. Smith, 673 F.2d 485 (D.C. Cir. 1982).

" 29 U.S.C. §623(f)(1).

™ 460 U.S. 226 (1983).

individualized basis.”

The Court of Appeals erred in failing to recognize that jobs

with the same broad title such as “firefighter” may in actuality

involve markedly differing working conditions, duties and

physical and mental demands.” Establishing a unitary nation-

wide “federal standard” for any broad job classification as a

matter of law would frustrate Congress’ intent to provide each

older worker with the right to effectively challenge an age-based

compulsory retirement rule in the factual context of his par-

ticular job.”

™ The importance and fairness of basing each decision upon the specific

facts governing the individual business is underscored by this case, where the

City of Baltimore did not attempt to show that the plaintiffs were not qualified

to perform their particular duties. As the district court stated: “The evidence

presented indicates that all five of these plaintiffs ~re today as qualified as

younger employees of the Department to perform their duties as firefighters.

Indeed, defendants have not sought to introduce any evidence to indicate that

any one of the plaintiffs cannot carry out his assigned duties because of physical

or other reasons.” Johnson 0. Meyor and City Council of Baltimore, 515 F.

Supp. at 1287, 1296. The court went on to emphasize that, “defendant's own

evidence indicates that Fire Vepartment personnel with cardiac problems can

be evaluated on an individualized basis...“ Id., at 1299.

" Other courts have understood that differences between similarly-

denominated jobs require separate BFOQ reviews. [llustrative of those courts’

reluctance to apply a BFOQ to any employee group other than workers covered

by the initial employer is Tuohy 0. Ford Motor Co., 675 F.2d 842 (6th Cir.

1982), which reversed the district court's decision to expand a Federal Avia-

tion Authority's age-60 retirement rule for airline pilots to cover pilots of

private corporate aircraft.

™ This is not to say that the federal retirement rule should be disregarded.

Instead, it should be given due consideration as evidence of one employer's

judgment regarding the capacities of older firefighters based upon what that

employer requires from them, a view to be balanced 1,ainst evidence of con-

trasting practices on the part of other employers. As the District Court noted

below, of the thirty largest cities in the United States, four have mandatory

retirement at age 60 while twenty-two do not require retirement until age

65 or beyond. 515 F. Supp. at 1297. With such diversity among major

employers of firefighters, it cannot be said that the conditions which led Con-

gress ten years ago to require retirement at 55 are necessarily duplicated in

all cities throughout the nation today.

In sum, a case-by-case, fact-specific determination of the

BFOQ defense should be retained to ensure that only justifiable

age- based limitations will survive judicial scrutiny, and that im-

permissible age-based discrimination will be eliminated in ac-

cordance with the objectives of ADEA.

til. CONCLUSION

(212) 752-8830

Attorneys for The American

Association of Retired Persons

Of Counsel:

Steven ZALEZNICK

Davip CERTNER

Perer Scott

Dated: New York, New York

February 28, 1985

Letterhead of

U.S. Department of Justice

Office of the Solicitor

Washington, D.C. 20530

February 20, 1985

Steven Zaleznick, Esq.

American Association of Retired Persons

1909 K Street, N.W.

Washington, D.C. 20049

Re: Johnson, et al. 0. Mayor and City Council of

Baltimore, Nos. 84-518 and 84-710

Dear Mr. Zaleznick:

As requested in your letter of February 13, 1985, I hereby

consent to the filing of a brief amicus curiae on behalf of the

American Association of Retired Persons.

13

Exhibit 2

Letterhead of

Kaplan, Heyman, Greenberg,

Engelman & Belgrad, P.A.

Tenth Floor — Sun Life Building

20 South Charles Street

Baltimore, Maryland 21201

February 20, 1985

Steven Zaleznick, Esquire

American Association of Retired Persons

1909 K Street, N.W.

Washington, D.C. 20049

Re: Robert W. Johnson, et al. vs. Mayor and City

Council of Baltimore, et al.

Dear Mr. Zaleznick:

Thank you for your letter of February 13, 1985 in which you

indicated that AARP requests permission to file a brief amicus

curiae on behalf of the Petitioners in the above matter. We have

no objection and welcome any assistance.

Kindly feel free to contact me if you would like to discuss

the substance of the case.

Very truly yours,

/s/

William H. Engelman

WHE:dmz

14

Exhibit 3

Letterhead of

City of Baltimore

William Donald Schaefer, Mayor

Department of Law

Benjamin L. Brown, City Solicitor

101 City Hall

Baltimore, Maryland 21202

February 25, 1985

Steven Zaleznick

Attention: Peter Greenwald

Miller, Singer & Raives, P.C.

555 Madison Avenue

New York, New York 10022

Dear Mr. Zaleznick:

The City of Baltimore hereby consent to the filing of a brief

amicus curiae by The American Association of Retired Persons

on behalf of Petitioners in the case Robert W. Johnson, et. al.

v. Mayor and City Council of Baltimore, et. al.

Sincerely,

/s/

Ambrose T. Hartman

Deputy City Solicitor

ATH/cd