applicable statute, reduced the retired pay of all retired employees." Id. at 598 citing Dodge v. Board of Education, supra.
The defendant relies primarily on Stouper v. Jones, 109 U.S. App. D.C. 106, 284 F.2d 240 (D.C.Cir.1960) for the assertion that no property right to retirement benefits exists which cannot be amended. In Stouper, a civil service employee retired under the disability provisions of CSRA and challenged the discontinuance of her annuity by a congressional amendment to CSRA passed after her retirement. Id. The court held that "an employee has no right under the Retirement Act based on contractual annuity principles and . . . the appellant had no vested right to the disability annuity which was terminated." Id. at 243. The court noted that CSRA benefits are not based on an employee's contributions but rather on the employee's earning record and years of service. Id. Applicable to the present controversy, the court stated that "it is well settled that a pension granted by the Government confers no right which cannot be revised, modified or recalled by subsequent legislation." Id. at 242.
Plaintiffs attempt to distinguish Stouper since it involved the disability provisions of CSRA rather than the basic annuity provisions. However, Stouper generally stated that CSRA does not guarantee any particular level or formula of benefits, and that an annuitant does not have a property right to continue to receive benefits pursuant to the formula that was in effect at the time the annuitant retired. Stouper is controlling precedent in the instant case.
In summary, the plain meaning of the statutory language in 5 U.S.C. § 8334(b) supports the defendant's interpretation. The statutory provision granting authority to the Board of Actuaries to recommend measures to protect the financial structure of CSRA further supports the defendant's interpretation of the gratuitous nature of the benefits. The congressional remarks during the passage of the 1920 CSRA concerning the compensatory nature of CSRA benefits should be compared to the fact that benefits were immediately bestowed upon annuitants at the time the act became effective. Further, a stated purpose of amending the COLA was to stop mass retirement prior to the effective date of each COLA increase. The lack of quid pro quo lessens the strength of a deferred compensation argument. The case law presented by the parties supports the defendant. Stouper is a persuasive and closely analogous case dealing specifically with CSRA. Further, there is logical consistency inherent in the defendant's argument. APWU clarifies that benefits may be altered for those not yet retired and entitled thereto. As to retirees, the plaintiffs' theory would bind the government into an entitlement obligation that could be forever increased by an unmodifiable formula. A ruling in favor of the plaintiffs' entitlement theory would be contra to Stouper and counter to Supreme Court rulings concerning benefits in other retirement statutes. The Supreme Court has held that Congress never guaranteed any specific level of benefits under the Railroad Retirement Act. See, e.g., U.S. Railroad Retirement Board v. Fritz, 449 U.S. 166, 101 S. Ct. 453, 66 L. Ed. 2d 368 (1980), the Social Security Act, see Richardson v. Belcher, 404 U.S. 78, 92 S. Ct. 254, 30 L. Ed. 2d 231 (1971), or for veterans' pensions, see United States v. Teller, 107 U.S. 64, 2 S. Ct. 39, 27 L. Ed. 352 (1882). The defendant's motion to dismiss will be granted as to NTEU's and NARFE's claim concerning P.L. 97-35 and will be granted as to NARFE's claim concerning P.L. 96-499.
II. EQUAL PROTECTION -- AGE DISCRIMINATION CLAIM
In September 1982, Congress provided that for fiscal year 1983 through fiscal year 1985 annuitants under the age of 62 years would receive smaller annual COLAs than those given to annuitants over 62 years. The issue is whether P.L. 97-253 violates plaintiffs' rights to equal protection by discriminating on the basis of age. The Supreme Court in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976), indicated that finding a rational basis for the legislation was the appropriate standard of review. Id. at 174-76. See also Vance v. Bradley, 440 U.S. 93, 96-97, 99 S. Ct. 939, 942, 59 L. Ed. 2d 171 (1979); Jefferson v. Hackney, 406 U.S. 535, 549, 92 S. Ct. 1724, 1733, 32 L. Ed. 2d 285 (1972).
The government has claimed as a rational basis for discrimination the attempt to conserve federal funds. Plaintiffs rely upon Gault v. Garrison, 569 F.2d 993 (7th Cir.1977), cert. denied, 440 U.S. 945, 99 S. Ct. 1421, 59 L. Ed. 2d 633 (1977), in which the government attempted to justify age discrimination against teachers age 65 or over on the basis that the action would remove unfit teachers. The court denied the government's motion to dismiss since as an evidentiary matter, the state had not shown a rational basis for the legislation other than their conclusory remarks. Id. at 996. Gault distinguished Murgia in which an evidentiary record showed the state's purpose and how the legislation related to that purpose. Id.
The plaintiffs also suggest that a "heightened scrutiny" test be adopted for evaluating classifications based upon age. This suggestion is not only contra to the standard set forth in Murgia but would make it difficult for Congress to make choices for governance if the government had to show the validity of line-drawing based on age in retirement statutes. Retirement statutes, by their nature, discriminate by age.
Plaintiffs have not shown cause for this Court to depart from the Murgia rational basis standard of review. Legislative history indicates that the statute was enacted to conserve federal funds. Further, legislation withstands an equal protection challenge if a court can find any rational basis upon which to uphold the questioned legislation since a court does not sit in place of the legislature concerning the desirability of legislation. In Moreno v. United States Department of Agriculture, 345 F. Supp. 310 (D.C.Cir.1972), aff'd, 413 U.S. 528, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973), the court held that if a "statutory classification is not relevant to the stated purposes of the act, it is invalid under the equal protection clause, unless it is justifiable by reference to an independent purpose which a court may think it proper to impute to Congress." Id. at 313-14. The court stated the general rule that "in the field of economic and social legislation, judges should exercise their ingenuities to the utmost in order to save a statute against constitutional attack. . . ." Id. at 314. The court in Moreno declined to exercise the general rule, however, since the rationale a court could devise would be Congress' wish to legislate morality which could not in that case supercede the privacy rights to freedom of association in the home that were at stake. Nevertheless, the general rule should apply to the instant proceeding in which a conflicting constitutional protection is not at issue. Further, in Owens v. Brown, 455 F. Supp. 291 (D.D.C.1978), J. Sirica stated that "there is no requirement that the Court must overlook unexpressed legislative objectives that reasonably could have formed the basis of the statute in question." Id. at 306, n. 55.
Congress could have logically assumed that persons 62 years and younger will be able to supplement their reduced benefits through other work. There is no direct evidence to support this claim although Congress could have found that those older than 62 years have less job opportunity and that therefore line-drawing at 62 was rational and necessary to conserve the federal retirement funds. The government would be unnecessarily burdened by a Gault requirement that evidence beyond mere rationality must be provided to sustain a motion to dismiss. The government has met the burden of demonstrating mere rationality, and, therefore, it is this 19th day of July, 1984.
ORDERED that defendant's motion to dismiss is hereby granted with respect to the equal protection claim of NARFE, and it is
FURTHER ORDERED that defendant's motion to dismiss is granted as to NTEU's and NARFE's claim concerning P.L. 97-35 and granted as to NARFE's claim concerning P.L. 96-499; and it is
FURTHER ORDERED that Civil Action No. 81-2061 and Civil Action No. 83-2097 are hereby dismissed with prejudice.
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