Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-19-2001

Dungan v. Secretary Transp
Precedential or Non-Precedential:

Docket 00-1128




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Recommended Citation
"Dungan v. Secretary Transp" (2001). 2001 Decisions. Paper 52.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/52


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Filed March 19, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1128

DEAN DUNGAN,
       Appellant

v.

RODNEY E. SLATER, SECRETARY, UNITED STATES OF
AMERICA DEPARTMENT OF TRANSPORT ATION; JANE
GARVEY, ADMINISTRATOR, UNITED ST ATES OF
AMERICA FEDERAL AVIATION ADMINISTRA TION

ON APPEAL FROM
THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Civil No. 99-cv-2376
District Judge: The Honorable Raymond J. Broderick

Submitted Under Third Circuit LAR 34.1(a)
March 13, 2001

Before: MANSMANN, BARRY, and COWEN
Circuit Judges

(Opinion Filed: March 19, 2001)
       Duane D. Werb, Esquire
       Werb & Sullivan
       300 Delaware Avenue, 10th Floor
       P.O. Box 25046
       Wilmington, Delaware 19899

       Joseph M. Lamonaca, Esquire
       Suite 303
       G & M Building
       Chadds Ford, Pennsylvania 19317

        Attorneys for Appellant

       Annetta F. Givhan, Esquire
       Assistant U.S. Attorney
       Office of the United States Attorney
       615 Chestnut Street
       Philadelphia, Pennsylvania 19106

       Marleigh D. Dover, Esquire
       U.S. Deputy Attorney General
       Room 3127
       United States Department of Justice
       10th & Pennsylvania Avenue, N.W.
       Washington, D.C. 20530

       William A. Rivera, Esquire
       U.S. Deputy Attorney General
       United States Department of Justice
       Federal Programs Branch
       901 E Street, N.W.
       Washington, D.C. 20004

        Attorneys for Appellees

OPINION OF THE COURT

BARRY, Circuit Judge:

Dean Dungan appeals from the District Court's grant of
summary judgment to all defendants in an action in which
Dungan alleges that the defendants discriminated against
him on the basis of age and violated his constitutional
rights to due process and equal protection. Because we

                                  2
agree with the District Court that Dungan's complaint did
not state a cause of action under either the Age
Discrimination in Employment Act, 29 U.S.C. S 621 et seq.,
or the Fifth Amendment, we shall affirm the judgment of
the District Court.

BACKGROUND

Dungan began working as an air traffic contr oller (ATC)
in 1974. ATCs at major airports in the U.S. ar e employees
of the Federal Aviation Administration (F AA), an agency of
the Department of Transportation (DOT). Like all ATCs who
were hired between 1972 and 1987, Dungan was a member
of the Civil Service Retirement System (CSRS). 5 U.S.C.
S 8301 et seq. The CSRS requir ed that an ATC "shall be
separated from service on the last day of the month in
which he [or she] becomes 56 years of age." 5 U.S.C.
S 8335(a). The Secretary of Transportation, however, was
given the discretion to permit an A TC "having exceptional
skills and experience" to work until age sixty one. 

compensated ATCs for this early mandatory
retirement by providing them with mor e generous benefits
than were received by other federal employees.1

In 1981, thousands of ATCs who were members of the
Professional Air Traffic Controllers Organization (PATCO)
went on strike. Dungan did not join this strike. The striking
PATCO members were fired by President Reagan, who
barred them from working in any positions with the FAA. In
August 1993, President Clinton issued an or der permitting
the former strikers to be rehired as ATCs. Some
undetermined number of former PA TCO members have
been rehired.
_________________________________________________________________

1. For example, an ATC with twenty years of service was permitted to
retire with a pension at age fifty, 5 U.S.C. S 8336(e), while most federal
employees would have to achieve age sixty befor e being given a pension
after twenty years of service. 5 U.S.C. S 8336(b). Similarly, ATCs were
guaranteed a minimum pension payment of 50% of their average salary.
5 U.S.C. S 8339(e). Thus, an ATC r etiring after twenty years of service
would receive a 50% pension, much more generous than the 36.25%
that would be received by a federal employee governed by the general
rules. 5 U.S.C. S 8339(a).

                                3
In 1987, Congress adopted the Federal Employee
Retirement System (FERS), 5 U.S.C. S 8401 et seq., which
replaced the CSRS for many employees, including ATCs,
hired after that point. While the FERS changed the
retirement scheme for federal employees in many ways, the
change most relevant to this case is that it modified the
mandatory retirement age for ATCs. Under the FERS, an
ATC is not required to retir e until reaching twenty years of
service or age fifty-six, whichever came later . 5 U.S.C.
S 8425(a). Thus, an ATC who enter ed service after age
thirty-six would be permitted to work past agefifty-six. The
FERS continued to give the Secretary of T ransportation the
discretion to allow an ATC to work until r eaching age sixty-
one. 

of A TCs who were hired before 1987
continues to be governed by the CSRS, although they were
given opportunities to change their enrollment from the
CSRS to the FERS. Similarly, PATCO members who had
been covered by the CSRS and were r ehired after President
Clinton's order in 1993 were permitted to choose between
the two retirement programs. It is undisputed that some of
the rehired PATCO ATCs ar e being permitted to work past
age fifty-six.

On June 15, 1998, well before his fifty-sixth birthday,
Dungan wrote to his division manager seeking a waiver of
the mandatory retirement age so that he could work until
age sixty-one. Pursuant to the statutory grant of authority
contained in 5 U.S.C. S 8335(a), the Secr etary of
Transportation had delegated authority to grant such
waivers to the Administrator of the FAA. 49 C.F.R. S 1.45(a).
The Administrator has adopted an internal pr ocedure
under which any waiver request must be r eviewed by
several intermediate officials befor e being considered by the
Administrator and the Secretary. If any one of those
intermediate officials does not appr ove the request, it is
automatically denied. In October 1995, the F AA announced
that for the foreseeable future, r equests for waivers would
not be forwarded to the Administrator, effectively cutting off
any possibility of seeking an extension past the mandatory
retirement age. Consistent with this policy, Dungan's
waiver request was denied by the regional manager.

On May 7, 1999, Dungan filed a four-count complaint in
the District Court. Count I alleged that the Secr etary

                               4
violated the Age Discrimination in Employment Act (ADEA)
by requiring Dungan to retire at agefifty-six while allowing
other ATCs to work past age fifty-six. In Count II, Dungan
contended that the Administrator violated the ADEA by
refusing to submit Dungan's waiver request to the
Secretary. In Count III, Dungan claimed that the Secretary
violated his Fifth Amendment rights to due pr ocess and
equal protection by refusing to consider his waiver request
and by forcing him to retire at agefifty-six while allowing
other ATCs to work past that age. Finally, Count IV alleged
that the Administrator violated Dungan's due pr ocess rights
by refusing to forward his waiver r equest to the Secretary.
Although this complaint was styled as a class-action, the
District Court held all class-related decisions in abeyance
until motions to dismiss or for summary judgment could be
considered.

On February 24, 2000, the District Court granted
defendants' motion for summary judgment on all counts. In
a twenty-three page opinion, the District Court determined
that the ADEA did not apply to ATCs, that Dungan had no
due process right to have his waiver request considered by
the Secretary, and that the differ ent retirement ages for
different ATCs were rationally related to a legitimate
government purpose and did not violate Dungan's right to
equal protection. The District Court and this Court both
subsequently denied Dungan's requests for injunctive relief
to prevent his termination while his appeal was pending.

In March 2000, Dungan reached age fifty-six. Under the
provisions of the CSRS, he was requir ed to retire at the end
of that month. Apparently, however, he did not timely
receive the required sixty-day notice of termination, and he
was permitted to work until June 30, 2000. 2

DISCUSSION

On appeal, Dungan disputes the District Court's
resolution of each of his claims. He also asserts that the
_________________________________________________________________

2. Although there is no evidence in the r ecord before this Court, we
assume that Dungan received the requir ed notice on or before May 2,
2000.

                               5
District Court erred by not providing him with the pre-trial
procedures mandated by the local rules of the Eastern
District of Pennsylvania, and by not deciding the issue of
class certification.

A. ADEA Claims

In evaluating Dungan's ADEA claims, the District Court
noted that while the federal government had been made
subject to the act in 1978, see 29 U.S.C.S 633a(a),
Congress still reserved the power to statutorily impose
mandatory retirement ages that would otherwise conflict
with the ADEA. Johnson v. Mayor and City Council of
Baltimore, 

, 357 (1985). Thus, the District
Court properly held that the provision of the CSRS
requiring ATCs to retire at agefifty-six did not violate the
ADEA.

Dungan argues, however, that he is not disputing the
validity of the mandatory retirement age, but is instead
challenging the fact that other ATCs, and in particular the
rehired PATCO members, ar e being allowed to work past
age fifty-six. This argument overlooks the fact that the
mandatory retirement age of all ATCs is dictated by
legislation properly enacted by Congress, regardless of
whether the ATCs in question are members of the CSRS or
the FERS. It would be paradoxical for this Court to hold
that the FAA does not violate the ADEA when it requires an
ATC to retire at age fifty-six under the rules of the CSRS,
but does violate the ADEA when it permits an A TC to work
past age fifty-six consistent with the dictates of the FERS.

Because Congress explicitly authorized both mandatory
retirement programs complained of by Dungan, they are
outside the scope of the ADEA. On that basis, the District
Court properly granted summary judgment to the
defendants on Counts I and II of Dungan's complaint.
Because this determination is dispositive of the issue, we
shall not discuss the alternative grounds for summary
judgment offered by the District Court.

B. Equal Protection

Dungan also contends that the Secretary has violated his
Fifth Amendment right to equal protection by forcing him to

                                6
retire at age fifty-six while allowing other ATCs to work past
that age. In particular, he claims that the r ehired PATCO
members are being given unconstitutional pr eferential
treatment because they are allowed to work past age fifty-six.3
Because the different treatment that Congress mandated
for different ATCs is rationally r elated to a legitimate
government purpose, it does not violate the Fifth
Amendment.

If federal government action creates distinctions between
classes of people, and that action does not imper missibly
interfere with fundamental constitutional rights or burden
a suspect class, that action does not violate the Fifth
Amendment so long as it is rationally related to a legitimate
government purpose. Massachusetts Boar d of Retirement v.
Murgia, 

, 312-13 (1976). Ther e is no allegation
in this case that the differing treatment of ATCs under the
two retirement systems interfer es with any fundamental
right. Further, the Supreme Court has determined that
classifications based on age do not burden a suspect class.

. In the pr esent case, the two
retirement systems are best seen as creating a distinction
based on the particulars of individuals' employment,
because the question of whether an ATC will be permitted
to work past age fifty-six is determined entirely by the
retirement system in which he or she is enrolled. Vance v.
Bradley, 

, 97 n.10 (1979) ("Since the age factor
is present in both groups, the gravamen of appellees' claim
[is that the statute] discriminates on the basis of job
classification").

The distinction created between two groups of ATCs by
the CSRS and the FERS is clearly rationally r elated to a
legitimate government purpose. The adoption of the FERS
altered the method of calculating annuities for retired
_________________________________________________________________

3. It is clear from the briefs and fr om the record that Dungan feels a
great deal of indignation over what he per ceives as the preferential
treatment being given to the former strikers. In 1981, Dungan chose to
obey the law and refused to join the PA TCO strike. Now he has been
forced to retire at age fifty-six while some ATCs who, in his view, broke
their faith with the FAA are being allowed to work past that age. It is
understandable that he feels anger and frustration, but the law can
provide no relief.

                               7
ATCs, and had the effect of reducing the annuity to which
an average ATC would be entitled.4 In that context, it is
perfectly logical that Congress would choose to grant every
ATC an opportunity to earn at least twenty years of service
credit, even if that meant letting some A TCs work past age
fifty-six. It is also logical that Congress would choose not to
force ATCs who were enrolled in the CSRS to transfer to the
FERS, which for some ATCs would have the ef fect of
retroactively reducing benefits. Instead, it permitted ATCs
covered by the CSRS to select the plan in which to enroll.
Regardless of Congress's precise motives, the Supreme
Court has noted that federal retirement systems "are
packages of benefits, requirements, and restrictions serving
many different purposes. When Congr ess decided to include
groups of employees within one system or the other, it
made its judgments in light of those amalgamations of
factors." 

.

Dungan's claim that the rehired PA TCO members are
being given some kind of impermissible pr eference also
fails. It is true that when the PATCO members were fired,
they were subject to the mandatory retir ement age of the
CSRS, as was Dungan. When they were rehir ed, however,
they were permitted to select between the two plans.
Dungan had been given this same choice in 1987. 5 Because
some of these rehired ATCs elected to be enrolled in the
FERS and because they had fewer than twenty years of
service at age fifty-six, they are being allowed to work to an
older age than they would have had they never gone on
strike. This difference is caused not by their status as
strikers, however, but because they had a br eak in service.
An ATC who had a similar break in service for other
reasons would have received the same benefit.
_________________________________________________________________

4. Thus, as noted earlier, under the pr ovisions of the CSRS, an ATC
eligible for retirement after twenty years would receive a guaranteed 50%
pension, 5 U.S.C. S 8339(e), while under the FERS the same ATC would
receive only a 34% pension. 5 U.S.C. S 8415(d). Of course, it is possible
that Social Security and voluntary Thrift Savings Plan benefits would
compensate for this difference.

5. As the District Court noted, even if Dungan had elected to enroll in
the FERS, he would have been forced to r etire at age fifty-six because he
already had twenty years of service.

                                8
The Administrator and the Secretary are r equired to
impose different mandatory retir ement schemes on different
ATCs due to a legislative mandate. Because that mandate
is rationally related to a legitimate gover nment purpose, it
does not violate Dungan's right to equal protection.

C. Due Process

Dungan's last substantive claim is that the Administrator
and the Secretary denied him his Fifth Amendment right to
due process by denying his request for a waiver from the
mandatory requirement provisions of the CSRS. This
argument fails because Dungan had no pr operty interest in,
or legitimate expectation of, a waiver of the mandatory
retirement rules.

Before any process is due under the Fifth Amendment, a
claimant must demonstrate that there has been a
deprivation of an interest in life, liberty, or property.
Matthews v. Elderidge, 

, 332 (1976). There is
generally not a property interest in continued public
employment unless a claimant can demonstrate a
"legitimate claim of entitlement to it." Board of Regents v.
Roth, 

, 577 (1972).

Dungan cannot maintain that he had any legitimate
expectation to continued employment as an ATC past age
fifty-six, or even any expectation that his waiver request
would be submitted to the Secretary. The gover ning statute
states that the Secretary "may exempt" an ATC from
mandatory retirement. 5 U.S.C. S 8335(a). This clearly
indicates that the decision as to whether to grant a waiver
is discretionary. Further, the Secr etary is empowered to
make this decision "under such regulations as he [or she]
may prescribe." 

that have been adopted
require that an application be appr oved at every level before
it is submitted to the Administrator and the Secr etary. Lack
of approval at any level functions as a denial of the
application. The decision that no waiver requests would be
approved was clearly within the discretionary power of the
Secretary. Dungan claims that the refusal to consider his
request was arbitrary and capricious, but he overlooks the
fact that the Secretary is not requir ed to consider any
waiver request. In fact, the evidence shows that rather than

                               9
being arbitrary and capricious, the refusal to consider
requests has been consistently applied since the policy was
announced in 1995 and that no waivers have been granted
since that time.

Because Congress granted broad discr etion to the
Secretary to make decisions about waivers, Dungan had no
property interest in receiving a waiver or even in having his
request considered by the Secretary. In the absence of such
a property interest, no process was due under the Fifth
Amendment and Dungan's constitutional rights wer e not
violated.

D. Pre-Trial Procedur es

Finally, Dungan claims that the District Court err ed by
refusing his request for certain pr e-trial procedures and by
not making any class-related decisions. Because we will
affirm the grant of summary judgment on the merits, we
need not consider this argument.

CONCLUSION

For the foregoing reasons, the judgment of the District
Court will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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