Vance v. Bradley – Oral Argument – November 27, 1978

Media for Vance v. Bradley

Audio Transcription for Opinion Announcement – February 22, 1979 in Vance v. Bradley

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Warren E. Burger:

We’ll hear arguments first this morning and the 1254 Vance, the Secretarial State against Bradley.

Mr. Solicitor General, you may proceed whenever you are ready.

Wade H. McCree, Jr.:

Mr. Chief Justice and may it please the Court.

This appeal presents the question, whether Section 632 of the Foreign Service Act of 1946, which requires that persons covered by the Foreign Service retirement system to retire at age 60, violates the equal protection component of the Fifth Amendment to United States Constitution.

Appellees are six former and four current Foreign Service employees in the Department of State or the International Communications Agency, formerly the United States Information Service and an organization representing such employees, filed this action to challenge the validity of the Act.

They made statutory as well as constitutional claims and sought a declaration of invalidity, injunctive relief, back pay and reinstatement.

The District Court dismissed the primary non-constitutional claims, including the age discrimination and employment claim and appellees abandoned the remaining non-constitutional claims.

A three-judge court was then convened to consider the constitutional contentions.

Appellants contended that the constitutional issue was a question of law and moved for summary judgment.

Appellees argue that the resolution of the constitutional issue required the presentation of evidence to show that there was no rational basis for distinguishing between Foreign Service employees, who must retire at age 60 and civil service employees who at that time could continue to work until age 70.

Warren E. Burger:

Mr. Solicitor General, what is the present retirement age for a General Officer in the military service, do you, if you know?

Wade H. McCree, Jr.:

I am unable to furnish that information if the Court please.

Warren E. Burger:

It is something less [Voice Overlap]

Wade H. McCree, Jr.:

There is the compulsory retirement age and it is less than 70.

As a matter of fact the armed services have or at least on the naval side have an upper out program and a person is retired or selected out if he isn’t promoted within a certain number of years.

This —

Warren E. Burger:

At a given age?

Wade H. McCree, Jr.:

At a given age.

This court considers that in Schlesinger versus Ballard not very long ago and upheld in that case a distinction between male and female officers.

Male officers, I believe had to move up or out after nine years in grade and female officers, 13 years.

And this Court found that there was a sufficient difference in their circumstances because of the different nature of assignments so that the female officer had fewer chances for promotion and therefore she might be given 13 years in grade instead of nine and of course that impinges upon the issue here as we will argue subsequently.

At the time this action was brought, Civil Service employees were required to retire at age 70, but on April 6, 1978, Congress enacted the Age Discrimination in Employment Act Amendments of 1978, repealing the statute requiring most civil servants to retire at age 70 and currently effective September 30, 1978, there is no compulsory retirement age for most civil servants.

William H. Rehnquist:

Does that mean that if the, this Court were to affirm the judgment of the District Court, there would simply be no retirement age for Foreign Service officers?

Wade H. McCree, Jr.:

It would appear that would follow.

This —

William H. Rehnquist:

We certainly couldn’t substitute a 70 out of the air I take it if there is no congressional 70-year old requirement at the present time?

Wade H. McCree, Jr.:

Well, that certainly is so.

The Court below thought at one time that a challenge was made to age 60, but that appellees would accept age 70 and in fact in a footnote the Court indicated that it was satisfied that an age 70 mandatory retirement for Foreign Service officers would be valid.

William H. Rehnquist:

This was in the settlement conference, I take it?

Wade H. McCree, Jr.:

Pardon me?

William H. Rehnquist:

This was in the settlement conference I take it {Voice Overlap]

Wade H. McCree, Jr.:

Oh!

No, this was in the Court’s opinion.

It later struck from its opinion the footnote that indicated that appellees had failed to show that age 70 was not rationally related to a legitimate government purpose, although it had held that age 60 was not rationally related.

But after the amendment came along, it struck this portion of its footnote and now as the Court suggests a Foreign Service officer or other persons in the Foreign Service retirement program apparently would have indefinite service as would and as do other civil servants.

Potter Stewart:

Your sister on the other side, Mrs. —

Wade H. McCree, Jr.:

Hostetler —

Potter Stewart:

— disagrees with that, isn’t it, at least in the brief disagrees with that conclusion?

Wade H. McCree, Jr.:

That’s they would have indefinite service?

Potter Stewart:

Yes as I read it her briefs —

Wade H. McCree, Jr.:

I believe, I believe, I recall that, but it would seem logically to me that as Mr. Justice Rehnquist has suggested that we couldn’t pull age 70 out of the air and impose it.

On the basis of affidavits from both sides and submissions in response to the court’s request for supplementation of the record the Court treated the case as if it had been submitted on cross-motions for summary judgment and declared the mandatory retirement provision unconstitutionally.

We submit that the court correctly recognized that neither fundamental rights nor suspect classes are involved in the distinction between Foreign Service employees and civil service employees and that therefore the rational basis test is the appropriate one and that the statute therefore is presumptively valid and the challengers have a heavy burden of proving invalidity.

Nevertheless, although it applied as we suggest the proper standard, the court held.

“On the record established in this case, the early mandatory retirement cannot survive even this minimal scrutiny.”

The court in considering the proffered justifications, first that the special stresses and unique burdens of employment in the Foreign Service is a result of frequent and extensive changes in environment, often accompanied by exposure to unfamiliar and unfavorable living conditions and second the implementation that it afforded to the personal management program for foreign service officers did not discuss the legislative history at all of these two purposes, but made its own assessment of the employment conditions of foreign service and civil service employees.

And in doing so it concluded that less that 10% of the American civilians who work overseas for the government are forced to retire at age 60 as many of the overseas personnel — personnel not subject to mandatory retirement have jobs similar to those of the foreign service personnel and may be stationed also in hardship posts.

Accordingly, it held upon this determination that a system under which some federal employees working abroad are singled out for early retirement is “patently arbitrary and irrational and it invalidated the legislation.”

We contend that the District Court erred in not considering the legislative history, and in substituting its judgment for the decision of the Congress to create a separate foreign service with its own combination of benefits and obligations.

Thurgood Marshall:

Mr. Solicitor General, did I miss, is AID discussed here at all?

Wade H. McCree, Jr.:

Yes, if the Court please, the Agency for International Development is involved in the Foreign Service retirement Act.

It and the former United States Information Service, its now the International Communications Agency and the Foreign Service —

Thurgood Marshall:

The age also.

Wade H. McCree, Jr.:

Yes, if the Court please.

Potter Stewart:

That includes only — at least many of the staff jobs or secretarial jobs and jobs like that doesn’t it?

Wade H. McCree, Jr.:

It now includes them as well as the Foreign Service officers and persons with officer grade or reserve officer grade as well.

This Court held in Usery versus Turner Elkhorn Mining that the constitutionality of an act of Congress maybe sustained by looking solely to concerns expressed in the congressional hearings and debates because in that case the three-judge court refused to accept evidence and this court satisfied itself of the rational relationship by merely looking at the congressional history.

This Court also in Whalen versus Roe in 1977, considered a challenge to a New York drug prescription computer scheme.

That was a scheme under which a physician dispensing certain Schedule II drugs, which were opium derivatives and cocaine was required to prepare in triplicate a report indicating the name of the physician who prescribed the drug, the name and address of the patient and the quantity of the drug prescribed and then to turn this over to the state government, which then would place it into a computer bank and the intention was to determine whether there was a recurrence of prescription by certain physicians or the filling of prescriptions unduly by certain pharmacists or the acquisition of narcotics by certain patients.

This was challenged and the Court said this that the state’s interest in control of narcotic drugs is valid and the scheme is reasonably related and the fact that the District Court held that the state had failed to demonstrate that it was working — was not invalidating.

Wade H. McCree, Jr.:

It said it was enough to see that there was a rational relationship between the scheme and the objective which was a control of the narcotics trade or traffic.

John Paul Stevens:

Mr. Solicitor General that wasn’t an equal protection case?

Wade H. McCree, Jr.:

It was not an equal protection case, but it’s illustrative we submit here in showing that the failure of proof to show that a scheme works, it doesn’t destroy a determination that it’s rational and doesn’t therefore require the court to invalidate it and that seems to be what happened here.

The District Court entertained evidence and determined that large numbers of civil servants were living abroad under circumstances, which it found indistinguishable, at least legally indistinguishable from those of the foreign service people who are under the mandatory retirement and for that reason determine that there was no rationality to the program and we suggest that if the rationality is demonstrated, evidence that it doesn’t include everyone or that it might be done in another way or that it just doesn’t work, doesn’t invalidate it.

As a matter of fact in Whalen versus Roe, the Court quotes from Mr. Justice Brandeis, who suggests that the states must be given latitude to experiment in methods of solving the problems with which it’s confronted.

And if the program is rationally related, the state should be given an opportunity to see whether it works and it shouldn’t be invalidated just because it cannot demonstrate on a challenge that it is working.

Another quotation from that if I may, the New York statute challenged in this case presents a considered attempt to deal with such a problem.

It is manifestly the product of an orderly and rational legislative decision and we submit that the language that is manifestly, the product means that this Court will apply its experience and its general knowledge to determine rationality and it doesn’t require evidentiary proof of a relationship, but that is exactly what the Court below did in substituting its judgment.

The legislative history of this provision goes back to 1924 when a single foreign service was first established.

The Foreign Service Act of 1924 is sometimes known as the Rogers Act because of Congressman Rogers, I believe of Massachusetts who was its principal sponsor and since this is the only direct legislative history, I would ask the indulgence of the court to permit me to read from a colloquy on the floor of the House of Representatives.

When the principal sponsor, the 1924 legislation representative Rogers, explained that foreign service officers would be required to retire five years earlier, at time age 65, than civil service employees who just four years earlier were first brought under a mandatory retirement at age 70.

Because as he said foreign service officers like military personnel, but unlike most civil service employees, commonly were rotated among remote posts overseas and frequently experienced disruptive changes in their way of life.

Mr. Rogers said, “I think the analogy of the Foreign Service officer to the Army officer and to the naval officer is much more complete than to the civil service employee in Washington.

The Foreign Service officer is going hither and yon about the world, giving up fixed places of abode, often rendering difficult and hazardous service of prime importance to the United States.

Potter Stewart:

A good many things have happened both in the world and in our country since 1924, haven’t they, both in terms of where a civil service employees might be employed, and that is where they might be located in their employment and also on terms of, it’s almost like air conditioning and fast transportation and communication and so on?

Wade H. McCree, Jr.:

That’s exactly so and in fact the location of hardship posts change, but there are still hardship posts.

One of the changes that has occurred, of course, is the emergence of the new nations, principally in Africa, in Sub-Saharan Africa and which normally did not have members of our foreign service because they would attend the seat of government of the nation that had colonized these now emerged nations.

Potter Stewart:

We would have consular officers in those colonies [Inaudible] wouldn’t we?

Wade H. McCree, Jr.:

To the extent that there was commerce and intercourse with those nations to justify it, but with those colonies to justify it, but just as what might have been a hardship posts in 1924 when representative Roger spoke, isn’t now, so there are new posts, which may even be — present more hardships.

I will also like.

Warren E. Burger:

In any event Mr. Solicitor General are those considerations which we are entitled to take into account or those considerations for the Congress?

Wade H. McCree, Jr.:

Mr. Chief Justice, you anticipated my very next remark.

I thank you for it.

I was going to suggest that in Schlesinger versus Ballard, the case that we earlier discussed involving the naval officers in footnote 12, which is the very last footnote to the opinion of the Court.

The Court says exactly that, that it is for the Congress to decide when conditions no longer justify a distinction that was valid at the time it was imposed and we would submit that that is peculiarly a legislative judgment to be made.

John Paul Stevens:

Mr. Solicitor General, can I pursue this remark as you are really raising, really a quite a fundamental point that I’m not sure the court has ever squarely addressed.

Do you suggest that the test of the constitutionality of the statute is totally dependent on the conditions at that time the statute is enacted or is it conceivable, say in the area of sex discrimination, that a discrimination that was perfectly reasonable when adopted because very few women worked for example; might 75 years later be totally irrational because there is no distinction anymore in employment.

Could a statute, which was originally reasonable or satisfied the equal protection principles become unconstitutional merely by passage of time?

Wade H. McCree, Jr.:

I would have to concede the possibility that it might, but I think unless it was manifestly unconstitutional —

John Paul Stevens:

Well, as soon as you have conceded that then aren’t we just confined to looking at rationality as of today because if it’s totally irrational, well then of course it’s bad, whenever that the rationality arises, if I understand you correctly?

Wade H. McCree, Jr.:

Well, I think if there is any question whether its still bears a rational relationship, we must then indulge the Congress’ right to make that determination.

I think only when we would find that it was irrational that it (Inaudible) over relationship and but in that event I would agree with the Court that the court could make the determination itself, but we suggest that here, that is and so at all because —

John Paul Stevens:

Well, I understand it, but let me just be sure, I catch your position clearly in mind.

You do concede but if the Court concluded that today the statute was irrational, then you would loose?

Wade H. McCree, Jr.:

Well, I think I would have to conclude that, but I would say that, it would have to be manifestly so and the Congress and it — the Court would have to conclude that its rationality could not be maintained on any basis at all, such as the Court said in McGowan versus Maryland, we would have to particularly in a case like this where we’re using where we don’t have a fundamental right involved in order to we have a suspect class.

Warren E. Burger:

In that analysis Mr. Solicitor General made by the Court in the consideration of the case, whether the court – should the court take into account that Congress is indicating a very great alertness in recent years to age discrimination, gender discrimination and other such factors.

Wade H. McCree, Jr.:

Oh!

I would agree that this is something of which the Court should take notice just as I’ve suggested that the Court should have looked at the earlier legislative history of this.

However if it did looked, it would see that in the Age Discrimination in Employment Act, the Foreign Service was excluded from the lifting of the age 70 ceiling.

Now there is some suggestion that perhaps it was excluded because there was some haste in getting the matter through the Congress and they did not want to route it through a committee different from the Foreign Service Committee, which should be a committee different from the committee to consider the Age Discrimination in Employment Act amendments, but it’s significant that the Congress did accept it and did recognize that it was still different.

William H. Rehnquist:

General McCree following up on my brother Stevens question, if we are to consider rationality or irrationality as of the present day, are we then entitled to take into consideration subsequent legislation by Congress such as the up and out promotional system, which was not a part of the enactment in 1924, but certainly if you put it in the matrix of the present day as a part of the Foreign Service Law in determining rationality.

Wade H. McCree, Jr.:

Thank you for the question and I would certainly say yes, the Court should take that into consideration and that was the second justification that was offered to the three-judge court that this implemented the up or out program that the Foreign Service uses and that also would indicate that it still had that it still bore a rational relationship to a legitimate aim or a legitimate objective.

Thurgood Marshall:

General McCree, let’s back up a little bit.

If there was a showing that there were more “hardship” in the future, the statute goes out?

Will there be a change as recently?

Wade H. McCree, Jr.:

That would be a significant change, but there might be other factors, factors other than just being stationed at a hardship post.

One of the factors might be the recurrence of change, the fact that a person could hardly sync his wits in one place.

Thurgood Marshall:

I didn’t see the statistics of the number of people that changed their talents for employment purposes, you are now asking (Inaudible)

Wade H. McCree, Jr.:

That is so; we would suggest that perhaps the differences within the United States.

Thurgood Marshall:

I mean they move whole departments of civil service employees to Mississippi last year.

Wade H. McCree, Jr.:

I would certainly agree with the Court that that is a phenomenon of our current lifestyle, but I would suggest that being moved from one continent to another or being subject to removal is a more traumatic upheaval —

Thurgood Marshall:

I’m saying they don’t move the ones when they are moved to another one —

Wade H. McCree, Jr.:

If that were if those where the circumstances attendant to all posts, the news recently has had a sensational story and a very tragic story that included the death of a member of the Congress, investigating a situation in Guyana, one of the recently emerged nations in South America, with Congressmen Ryan and Shaw, was Richard Dwyer who was aged 47, he was under the mandatory retirement age considerably and he was the Deputy Chief of Mission in Georgetown and his duties required him to accompany persons to a dangerous site and he had we presume the vigor of a person 47 years old and was subjected to this risk of his life and so we would submit that the day of the hardship post, the day of the extraordinary risk, the day of the exposure to more than ordinary civil servants’ experience has not passed.

Potter Stewart:

Was terrorism, vulnerability to terrorism doesn’t have much to do with chronological age, does it?

Wade H. McCree, Jr.:

It does not and the Court reminds me that at the last Olympia there was a terrorist incident, but we suggest that, that is further evidence that there is a rational relationship of having persons with the physical vigor and stamina to be able to rise to these problems which can occur any place because one would hardly call Munich a hardship post in terms of the creature comforts that it affords.

If the Court please, I believe, I have about 2 minutes left and I would like to reserve that for rebuttal if I may.

Warren E. Burger:

Very well Mr. Solicitor General.

Wade H. McCree, Jr.:

Thank you.

Warren E. Burger:

Mrs. Hostetler.

Zona F. Hostetler:

Mr. Chief Justice and may I please the Court.

Zona F. Hostetler:

This case turns on facts.

It presents one simple narrow issue to this Court and that is was the court below which studied the facts, wrong when it concluded that there is no rational basis for mandatory retiring before age 70, the particular group of white collar employees involved in this case.

Warren E. Burger:

Do you think that court was in any better position to make that evaluation than we are now?

Zona F. Hostetler:

Well, they are certainly within the prerogative of this Court to review the record and to determine whether the court below was mistaken and — but think that is —

Warren E. Burger:

What I am trying to get out is whether — or the review here is any different from the “review” made by that court?

Zona F. Hostetler:

No, but I submit that the facts will show, if this Court looks at those facts, that there is in fact no rational basis for the statute at issue and Mr. Justice Burger you inquired about the armed forces.

I want to make it very clear that all that is involved in this case is a question of whether this particular group of white collar office workers are unable to perform the particular jobs that they are assigned in the Foreign Service between the ages of 60 and 70 or are less able to perform than are employees under the age of 60.

This, to affirm the Court’s decision below will not require this Court to upset its decision in Murgia nor will it require this Court to hold that mandatory retirement can never be applied to people such as the uniformed policemen in Murgia, who have physical jobs and for whom an earlier mandatory retirement age can be said to have a rational basis to the particular jobs that they have to perform.

And certainly in the armed forces we all know that our military men and women must be in combat readiness and must be either fighting war, or prepare to fight wars.

My point now however that in the defense department all of the civilian employees, large numbers of whom travel throughout the world and in fact spend 15, 20 and 25 years in service overseas are not subject to early mandatory retirement but in fact are treated as civil service employees.

Mr. Justice Rehnquist who referred to the point you raised with Mr. Solicitor General, this case will raise only the issue of whether employees in the Foreign Service between the ages of 60 and 70 were able to perform the work of the Foreign Service.

The court below asked us on several occasions, whether we were claiming that mandatory retirement within the age is unconstitutional.

And, we made it very clear that we were not making that claim and the evidence that we submitted went primarily to show that employees between the ages of 60 and 70 are able to perform their particular jobs of the Foreign Service.

We’ve really did not try to introduce the evidence or to make the argument that employees over the age of 70 can also perform that work.

I think that argument —

William H. Rehnquist:

Well, Ms. Zona F. Hostetler, what then is the state of the law if this Court affirms the judgment of the District Court?

Are Foreign Service officers required by law to retire at 70 now and if so by what law?

Zona F. Hostetler:

No, the court’s order below has been stayed and so at a present time they are still required to retire at age 60.

William H. Rehnquist:

Well, I presume that we affirmed it, we would dissolve the stay so that if it were affirmed and the litigation came to a close, would they be required by law to require —

Zona F. Hostetler:

I don’t believe so because the court below very clearly said in its opinion that the Foreign Service could not retire employees before the age of 70, that they have — or entitled to work until age 70, but Court’s opinion below does not say that they may work after 70.

William H. Rehnquist:

Well, but is the right of a civil service employee to work or not to work in the face of a congressional proscription or mandatory retirement dependent on the opinion of a three-judge District Court?

Zona F. Hostetler:

If it is affirmed by the Supreme Court.

Potter Stewart:

But this was a, this is a constitutional law attack at least as it survived originally.

Zona F. Hostetler:

That’s right.

Potter Stewart:

There were some statutory issues, but now it’s purely based upon the so called equal protection component of the Fifth Amendment.

And that attack must be that Foreign Service officers and Civil Service officers are equivalent and therefore, it violates the Constitution for the Congress to treat them differently.

Zona F. Hostetler:

Well there.

Potter Stewart:

And if they are equivalent then where does the age 70 come into, come into the picture now that Congress has repealed that with respect to Foreign Service — with Civil Service employees?

Zona F. Hostetler:

Well, there are civil service employees who are required to retire before age — that are still mandatorily required to retire, a law enforcement personnel for example, air traffic controllers for example.

In other words the question turns on the particular job and whether or not there is a rational basis.

Zona F. Hostetler:

Now, it is true that they were still be left open for a constitutional litigation on the other day, whether Foreign Service employees should have the right to work without any mandatory retirement age at all.

I am not suggesting that that issue isn’t there, I am only saying that we did not litigate that issue in this case and its only fair to bring to your attention that we did not and that the court did not focus on that issue and if there is no evidence in the record or very little evidence going to the point of whether or not a statute required mandatory retirement at some age over 70 is or is not rational.

William H. Rehnquist:

What does the Secretary of State do when a member of the Foreign Service “reaches the age 70?”

If the judgment is affirmed by this Court, does he retire in person to the act of Congress or does he just go back to court and ask for instructions?

Zona F. Hostetler:

Well, we have ten years until some one reaches 70 and I would suppose that in that period of time the State Department will decide what it wants to ask Congress to do in light of the fact that a provision of the statute has been declared unconstitutional.

This circumstance often happens when a provision of a statute is held unconstitutional.

William H. Rehnquist:

Usually there is some other statute that could well be held to be governing and it’s the comparison between people governed by the other statute and the people governed by the statute held unconstitutional is struck down.

So, there is an automatic reversion to the statute that it is still valid.

Zona F. Hostetler:

Well, there would be no automatic reversion to the civil service statute because the civil service statute simply doesn’t apply —

William H. Rehnquist:

It’s gone.

Zona F. Hostetler:

— to Foreign Service employees.

No, the Foreign Service statute will still be a separate statute totally apart from the civil service statute and from the age discrimination point —

Potter Stewart:

It won’t if this provision, it won’t remain if it’s invalidated, if the —

Zona F. Hostetler:

That’s correct and then there would be no provision in the Foreign Service act as to Foreign Service employees.

Potter Stewart:

For retirement at any age?

Zona F. Hostetler:

There would be retirement at any age unless Congress chooses to impose another mandatory retirement age over 70.

Let’s suppose Congress imposes an age of 72 or 73, then it is still open to question whether that age is constitutional.

Whether there is a rational basis for retiring Foreign Service employees at age 72?

Potter Stewart:

Whether that age as such as constitutional or whether that age compared to civil service employees is unconstitutional?

Zona F. Hostetler:

Well, there is two ways to look at the classification in this case.

One is that this Foreign Service statute itself makes a classification.

It puts in one category Foreign Service employees who are under the age of 60 and able to and in another category, Foreign Service employees over the age of 60.

And in one instance it allows the Foreign Service employees below the age of 60 to continue to work so long as they are able to perform and in the other it does not.

Another way to look at the classification is —

Potter Stewart:

With some exceptions?

Zona F. Hostetler:

With some exceptions —

Potter Stewart:

People above amassadorial rank —

Zona F. Hostetler:

That’s right.

Ambassadors are not subject to —

Potter Stewart:

But you have made no equal protection attack upon that?

Zona F. Hostetler:

No, I have not.

Potter Stewart:

That based upon that differentiation.

Zona F. Hostetler:

We have not in this case that’s correct.

Warren E. Burger:

Did I correctly understand your observation about air traffic controllers, for example, as one example you gave that, this within the power for Congress to fix a low age for —

Zona F. Hostetler:

Absolutely.

So long as the legislature has a rational basis.

So long as there is a rational relationship between the classification and mandatory retirement age at any age and the objective of the state, it’s certainly up to Congress to do that.

And in fact there might be many, many classifications and many, many mandatory retirement statutes that will still exist certainly the armed forces will no doubt continue to have lower mandatory retirement age.

John Paul Stevens:

Mrs. Hostetler, this prompts me to ask you rather basic question about the theory of your case.

As you point out, there are two separate classifications created by the statute.

One, between persons working for the Foreign Service who are over 60 and the other under 60 and secondly a classification of Foreign Service versus civil service, which of the two do you rely on as making the statute unconstitutional or do you rely on both?

Zona F. Hostetler:

We rely on both.

John Paul Stevens:

In other words, you contend then that if all government employees had to retire at age 60, the statute would still be unconstitutional?

I didn’t so understand your brief, but I like to know whether you are so contend?

Zona F. Hostetler:

No, if all employees had to retire at age 60, we would still contend that the statute was unconstitutional.

We would have made somewhat different arguments.

Let me put it in another way.

If there were no civil service employees working overseas.

John Paul Stevens:

Let’s say if everything is exactly the same, but just everybody has to retire at age 60, would you still say this statute is?

Zona F. Hostetler:

Yes, because societal patterns, societal norm today is to allow people to work until age 70.

The Age Discrimination in Employment Act allows persons in the private sector to work until age 70 and indeed makes it wrong for employers to fire people before age 70.

John Paul Stevens:

If you are right on this we don’t even have to look at the comparison with the civil service?

Zona F. Hostetler:

I beg your pardon.

John Paul Stevens:

On this theory, we don’t even have to look at what happens to civil service?

Zona F. Hostetler:

That’s correct you don not have to look at the civil service.

The fact that civil service employees worked until age 70 at the time this suit was brought and now work until they choose to retire and the fact that some civil service employees work overseas in the same kind of jobs is simply cumulative evidence to the evidence in the record that there is no rational basis for requiring Foreign Service Employees because of the nature of their jobs to retire as early as age 60, an age which is far below an age accepted in society today as an age to quit working an age which is below what all the medical and scientific evidence shows a person is able to work.

William H. Rehnquist:

Mrs. Hostetler —

Warren E. Burger:

You have used the phrase societal norms and accepted by society, who sets those norms?

What sort of norms are you referring to, the general public?

Zona F. Hostetler:

Well, the Age Discrimination in Employment Act amendments that were recently passed —

Warren E. Burger:

I didn’t miss that —

Zona F. Hostetler:

— now mean as a result of those amendments, that if the Foreign Service employees can be retired at age 60 they will be virtually the only white collar workers in the whole country.

Warren E. Burger:

Now my question goes to Who, Who, what entity, what is the source of determining that something is a societal norm?

Zona F. Hostetler:

Well, we have to look at the —

Warren E. Burger:

Are you talking about an act of Congress, that describes it?

Zona F. Hostetler:

No, we have to look at actual facts and data in society, many of which is reflected in this record.

For example we submitted un-contradicted evidence that corporations, non-profit organizations, churches, missionary groups, work overseas employ thousands of volunteers, hundreds of thousands of volunteers and employees and employ them between the ages of 60 and 70.

The undisputed evidence is that those employees are as able to work overseas or as competent as employees under the age of 60.

In short, there was nothing in the record to show that employees working overseas between the ages of 60 are not competent to perform their work.

William H. Rehnquist:

Mrs. Hostetler, supposing that Congress were to say that because of the high rate of unemployment, no person should hold any government job for more than 30 years.

Zona F. Hostetler:

That’s perfectly, alright, I do not see that any constitutional infirmity to that.

In fact the government now has changed years in several of its agencies.

For example in the Peace Corp, for different reasons.

In the Peace Corp an employee may not work for more than 5 years.

There is nothing wrong within showing turnover in an agency on a fair basis, a term of years is applied across the board equally to everyone is not discriminatory, is not irrational.

William H. Rehnquist:

Do you have on —

Thurgood Marshall:

I remind that the Peace Corps if far from civil service as you can get?

Zona F. Hostetler:

That’s correct but a turn there.

Thurgood Marshall:

We are talking about civil service now, aren’t we?

Zona F. Hostetler:

And the armed forces also have a term of years, All I’m suggesting Mr. Justice Marshal is that I don’t see a constitutional infirmity in an agency or government imposing term of years on government employment.

William H. Rehnquist:

Isn’t there a justification for an up and out policy?

Zona F. Hostetler:

I’m sorry, Your Honor.

William H. Rehnquist:

Isn’t there a justification then for an up and out policy that if you haven’t made a certain level in the service by a certain age then you must get out?

Zona F. Hostetler:

Well, that’s the kind of a system that we have in the foreign service is not linked to age so much but year-after-year, every year employees in the Foreign Service are evaluated and they are ranked ordered in their classes, those in the bottom percentages of their classes, which varies, it has range from 7-10% are selected out.

William H. Rehnquist:

You don’t attack that?

Zona F. Hostetler:

No we are not attacking the selection out all, no, in fact.

Thurgood Marshall:

Are you going to get to Murgia?

Zona F. Hostetler:

[Attempt to Laughter] Sure.

Thurgood Marshall:

You may get there (Inaudible)

Zona F. Hostetler:

Its running.

Zona F. Hostetler:

We agree with the government that Murgia is a controlling case.

We see nothing inconsistent with this Court’s decision in Murgia with the case — with the decision below in this Court.

John Paul Stevens:

Mrs. Hostetler right I know you are going to talk more about Murgia.

I don’t mean to cut it off, but this, I have another very basic question that troubles me.

On the second half of the discrimination and that over 60 versus under 60, but Foreign Service versus Civil Service you say that’s a separate independent reason for holding a statute unconstitutional.

And I would like to test the notion that the government has a constitutional obligation to treat all like employees equally.

Do you say and you have a package of benefits here, if these people who performed essentially the same work, they were paid different salaries would the lower paid group have a lawsuit to get the same amount of compensation as the others?

Zona F. Hostetler:

Not at all, the government —

John Paul Stevens:

Why not?

Zona F. Hostetler:

The government may impose different terms of employment to any number of categories so long as each term is constitutionally in balance.

John Paul Stevens:

So there is no justification in terms of difference in employment, say there are secretaries with the same rate of speech, same skills, work the same number of hours in the same working conditions and all the rest but one group is paid $25 a week more than the other, is there a constitutional violation?

Zona F. Hostetler:

Well, there might be if the conditions were precisely the same and it’s hard for me to imagine that working conditions in two different agencies would be precisely the same and that their talents and requirements of the workforce in each agency — in the respective agencies would be precisely the same.

John Paul Stevens:

They could have different salary scales, different promotion policies, different vacation schedules, would those things violate a constitutional duty of the United States Government to treat all employees equally?

Zona F. Hostetler:

No, we are not —

John Paul Stevens:

If not then why is there any constitutional issue here at all?

Zona F. Hostetler:

We are not here claiming that Foreign Service employees must be treated exactly the same as Civil Service Employees.

We are simply saying that Foreign Service Employees are being discriminated against because their livelihood, their work is being taken away from them at the age of 60 when there is no rational basis for that work being taken away.

It assumes that older, the post 60-year olds are simply unable to perform any longer.

John Paul Stevens:

Yes, but you must start as I understand your theory, you must start from the premise that the United States Government has a duty to treat like employees equally.

Is there a duty of equal treatment to employees?

And if there is, why does it justified mandatory requirement, not salary vacations and everything else, that’s seems to me something you have to be able to answer.

Zona F. Hostetler:

Well, if there were two employees in the Foreign Service, a man and a woman let us say, performing exact the same work, yes, it would be unconstitutional for the government to say, we are going to pay the man more or we are going to give him a greater vacation benefit.

John Paul Stevens:

Let’s say they are both women, say they are both women, don’t introduce another element?

Zona F. Hostetler:

Alright, [Attempt to Laughter] both women and let’s suppose a government, the agency was being arbitrary in choosing to favor one woman over the other, but in most instances Mr. Justice Stevens I must say the government will offer some rational explanation for the distinction and treatment.

It will say this person has a degree and the other does not.

This person works late and the other does not.

Warren E. Burger:

Just the previous question, I take it as it is based on the proposition that the government can’t offer any explanation.

What if the government can?

Zona F. Hostetler:

If the government could offer.

Warren E. Burger:

Does it then give rise to a constitutional question?

Zona F. Hostetler:

I’m — I guess I misunderstood.

Warren E. Burger:

If the two women or two men doing the same work and are not paid the same, what provision of the constitution requires the Court order the government to pay them the same?

Zona F. Hostetler:

Well, that would be equal protection law suit and that will the same the claim certainly.

Mr., no I am sorry.

The essential point in this case is that although the Court below requested the government on several occasions to submit facts to show that there was a rational basis for the age 60 retirement the government was simply not able to do so.

Thurgood Marshall:

The government showed that legislative history instead, didn’t they?

Zona F. Hostetler:

Well, I’m not sure that whether what it showed constitutes legislative history, they showed legislative statements and —

Thurgood Marshall:

Well, the colloquy of Solicitor General, does that come under legislative history?

Zona F. Hostetler:

Well, that was a legislative history of 1924 Act, not the legislative history —

Thurgood Marshall:

That’s what I’m talking about?

Zona F. Hostetler:

No right, but that wasn’t enacted years before the 1946 Act and it’s just not relevant.

Moreover the colloquy omits the context in which it occurred.

If you will look at our brief, I believe on page 29 to 30 of our brief, you will see the full colloquy set forth and you will see that in 1924, there was no retirement system whatsoever for consular and diplomatic officers and purport of that Rogers Act was to give to certain place a retirement system.

It was to give an opportunity for Foreign Service officers to retire and to receive a pension.

There was no consideration of whether or not Foreign Service employees had to retire at age 65 because they were no longer able to perform the work overseas.

In 1946, when this provision came into effect, the legislative history is silent.

There was no discussion of the age 60 provision.In fact, it is curious that as world health standards have improved and life expectancy has increased over the years, the retirement age in the Foreign Service has gotten lower and lower.

Before 1924 there was no retirement age, in 1924 when life expectancy was 58, the retirement age was 65 and now from 1945 to the present time the age is lowered to 60 when the life expectancy is now 73 or 74 and we all know that world conditions have improved since 1924 and 1946.

We now for example have jet transportation and modern medical facilities at virtually every Foreign Service post.

Moreover, the Solicitor General noted that ambassadors or noted that Foreign Service employees are subject to terrorist attack.

However, there is no evidence that the terrorist attack is age related.

Foreign Service employees moreover are not armed, are not expected to resist or counter terrorist attack or other violence and in fact we send our ambassadors who are not subject to mandatory retirement age to some of the most violent prone posts in the world as we all know Elizabeth Bunker served in Vietnam, at the heart of the Vietnam War at the age of 80.

Warren E. Burger:

Because Oliver Randall Home stayed here until his 90s, but that doesn’t prove we can alter it, does it?

Zona F. Hostetler:

Probably not. [Attempt to Laughter]

Now let’s look at the facts underlying the government’s argument that mandatory retirement is a necessary management tool, which the government needs to make room for younger officers thereby ensuring components of the ambassadorial or other high levels of the officer core.

At the outset, let’s keep in mind that 3,000 of these employees or one-third of the 10,000 workforce are not even officers.

There are librarians and school teachers and the like.

And mandatory retirement of these employees hardly ensures confidence at the ambassadorial or other high levels of the officer core.

Secondly, we are talking about a a de minimus number of employees who are likely even to want to continue to work past the age of 60.

Warren E. Burger:

Do you think that Congress has entitled to take into recount the importance of attracting, bright, abled the younger people in and take into account the further fact that must they move people up and out of their senior levels?

Warren E. Burger:

They are not going to be able to offer as attractive, a career?

Zona F. Hostetler:

Well that’s the point I was just beginning to make Mr. Justice Burger.

We are talking about the fact that only 50 employees, 44 officers are still on the employment rolls at the age of 59.

The overwhelmingly most common age for retirement among social retirees today is age 62.

Only 5,000 of 1% of Federal Civil Service employees, Civil Service employees even stay under the civil service rolls until age 70.

There was such a de minimis number of officers at age 60, who are likely to want to continue to work past 60 that it simply is not creditable that they are going to clog up the upper levels of the foreign service or that they are going to in fact have an appreciable effect on morale or recruitment.

Moreover keep in mind that in the Foreign Service, unlike the civil service an employee is not hired to perform a particular job.

A Foreign Service employee must accept assignment to any post in the world and must perform any job given him whether or not it is of nature ordinarily performed by someone at that rank.

In fact, it is quite common in the Foreign Service for employees to perform work that does not commensurate with their grade level.

The Foreign Service also has broad administrative authority to assign its employees to other government agencies, to state and local governments, to non-profit organizations and to universities.

Thus the Foreign Service has a variety of mechanisms to ensure that there is turnover both at the top level jobs and in every other jobs to provide employees with new job assignments and new challenges and to bring to any positions in the Foreign Service employees who have not previously served in them and who may have new ideas and let’s look at the kind of employee that is likely to be in this scoop of 50 employees still on the employment rolls at the Foreign Service at the age of 60.

Every year, 11,000 applicants apply for the Foreign Service.

Only 100 to 200 are taken in.

However, they enter they are rank ordered every year, the bottom portions of the classes are selected out, those who are not promoted are selected out, those who fail by any or medical examinations are selected out.

There are voluntary retirements at age 50, beginning at age 50 with age 55 being the most common age of voluntary retirement.

People resign shortly after they enter the foreign service when they find that foreign service life is not to their liking.

And thus of the 44 officers who remain in the service at age 59, they are presumably by the department’s own criteria the cream of the crop.

William H. Rehnquist:

Don’t you think that the mandatory retirement provision may have some domino effect on the willingness to or choice of voluntary retirement at age 55, that is if people didn’t know they were going to have to retire at 60, they may or might not voluntarily retire at age 55?

Zona F. Hostetler:

Well, they have no doubt thus have some effect on that.

But if you would be the Senate, the House select committee on aging report issued this year in connection with the Age Discrimination in Employment Act Amendments, you will see that there were many factors that employees, workers take today into account deciding on early retirement and the fact that they are going to have to retire anyway at some point is but one of a large number of factors and can certainly cannot be said to be the decisive factor.

Warren E. Burger:

I hope you are not forgetting Mr. Justice Marshal’s question about Murgia or do you feel you have dealt with that enough?

Zona F. Hostetler:

No. [Attempt to Laughter]

No, we agree with the government that Murgia is the case most nearly on point that it is in accord with Reed and Trimble and Craig versus Boren and this Court’s other decisions in recent years in the equal protection area that it simply says to Courts below that they must look at the facts in the record to see if there is in fact a rational basis.

Whether there is a fair not arbitrary and substantial not tenuous relationship between the classification and the objective of the state.

You applied this reasoning in Murgia and you found that there was a rational basis.

The court applied the reasoning to the facts at hand and found that there was not a rational basis.

There was nothing inconsistent with the Murgia decision and with the decision of the court below.

I submit that it should be affirmed.

Warren E. Burger:

Thank you.

Mr. Solicitor General, do you have anything further?

Wade H. McCree, Jr.:

Mr. Chief Justice, we will submit our case on argument unless the Court asks questions.

Thank you.

Warren E. Burger:

Thank you Counsel, the case is submitted.