Plaintiff, Robert W. Johnson, a Baltimore City firefighter, five of his fellows, and the EEOC, as intervenor, brought suit under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621, et seq., complaining that the Baltimore City pension provisions for firefighters impermissibly discriminated on grounds of age.1 In their action, instituted on May 29, 1979, plaintiffs sought primarily an injunction prohibiting compelled retirement before an employee had reached sixty-five.

Plaintiff Johnson and four of the other five individual plaintiffs had attained the age of sixty years when the suit was filed.2 A consensual temporary restraining order was entered permitting the five individuals to continue in active employment status with the fire department pending resolution of the case. When suit was brought, Plaintiff James L. Porter was only thirty years of age. The district court determined, however, that Porter had standing inasmuch as uncertainty as to the prospective mandatory retirement age could presently affect his decision whether to remain an employee of the fire department or to seek employment elsewhere. After a court trial, the district court entered judgment for the plaintiffs. Johnson v. Mayor and City Council of Baltimore, 515 F. Supp. 1287 (D.Md.1981), cert. denied, 455 U.S. 944, 102 S. Ct. 1440, 71 L. Ed. 2d 656 (1982).

For some time, prior to 1962, the overall retirement system covering Baltimore City employees generally applied to firefighters. Under that plan, retirement was not mandatory until the employee had attained the age of seventy years. In 1962, however, the City established the Fire & Police Employees Retirement System (F & PERS), which in part provided pension benefits for all uniformed Fire Department personnel. The City obtained enabling legislation from the State of Maryland for the F & PERS at the urging of the union, to which the individual plaintiffs belonged.

Among the motivating factors for the adoption of the F & PERS was a belief that exposure to medical disablement in stressful circumstances increased with age. The F & PERS accordingly provided for mandatory retirement at the age of fifty-five (sixty in transitional cases involving firefighters in service on July 1, 1962, the date when the new plan went into effect).

We first consider plaintiffs' claims based on the equal protection clause and 42 U.S.C. Sec. 1983. For Fourteenth Amendment purposes, plaintiffs have established neither inherent unreasonableness nor a denial of equal protection amounting to constitutional deprivations. The legislation was well within the discretionary powers of the deliberating body, state or federal, especially since "rationality" rather than "strict judicial scrutiny" is the test. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976).3

The plaintiffs' complaint, in reality, boils down to an objection that there is too much equality in a requirement that all firefighters retire at fifty-five. The factual scenario is entirely devoid of any indicated attempt to punish individual employees or to seek an unwarranted advantage for the City. The City established the F & PERS in part to address concerns about the continued ability of the City's firefighters to respond efficiently and effectively to the demands of firefighting. The legislation simply reflected a preference for an inflexible age determination in lieu of case-by-case examination leading to decision on the individualized basis of each and every employee's medical condition, as monitored and remonitored from time to time.

We therefore conclude that (a) there are not sufficient grounds to support a determination that there has been a violation of the equal protection clause, and that (b) therefore, no basis exists for the award of remedies under 42 U.S.C. Sec. 1983.

We next consider plaintiffs' claim under the Age Discrimination in Employment Act of 1967. At the time the City established the F & PERS, the ADEA had not yet been enacted. The Act prohibits "various forms of age discrimination in employment, including the discharge of workers on the basis of age." Equal Employment Opportunity Commission v. Wyoming, --- U.S. ----, ----, 103 S. Ct. 1054, 1058, 75 L. Ed. 2d 18 (1983); 29 U.S.C. Sec. 623(a). In 1974 the ADEA was extended generally to the states and their political subdivisions as employers. 29 U.S.C. Sec. 630(b)(2). It also was made applicable to a number of federal instrumentalities, but not to the agencies hiring federal police or firefighters. See 29 U.S.C. Sec. 633a(a).

The Act initially protected workers between the ages of forty and sixty-five. 29 U.S.C. Sec. 631. In 1978, Congress raised the maximum age to seventy. Age Discrimination in Employment Act Amendments of 1978, 92 Stat. 189.4

The ADEA, however, does not flatly prohibit consideration by employers of age in all instances. Instead, consistent with its underlying purpose of eradicating arbitrary age discrimination, the Congress recognized that "criteria based on age are occasionally justified." EEOC v. Wyoming, --- U.S. at ----, 103 S. Ct. at 1058. The ADEA therefore deems lawful certain otherwise prohibited employment practices

where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age.

29 U.S.C. Sec. 623(f)(1).

In EEOC v. Wyoming, supra, the Supreme Court provided guidance for determining the existence of a bona fide occupational qualification. There the Court considered the State of Wyoming's policy of mandatory retirement of its game wardens at age fifty-five. The Court rejected the state's contention that the Tenth Amendment,5 as construed in National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), rendered Wyoming immune from federal intervention with respect to the regulation of its game wardens.

The Court did not, however, declare the state's mandatory retirement age invalid under the ADEA. To the contrary, it reiterated that the mandatory retirement age could remain undisturbed if the state could prove that age was a bona fide occupational qualification for game wardens.

Perhaps more important, appellees remain free under the ADEA to continue to do precisely what they are doing now, if they can demonstrate that age is a "bona fide occupational qualification" for the job of game warden. [Citation omitted]. Thus, in distinct contrast to the situation in National League of Cities, supra, [426 U.S.] at 848 [96 S.Ct. at 2472], even the State's discretion to achieve its goals in the way it thinks best is not being overridden entirely, but is merely being tested against a reasonable federal standard.

EEOC v. Wyoming, --- U.S. at ----, 103 S. Ct. at 1062.6 The Court remanded the case for a determination as to whether the mandatory retirement at fifty-five was in fact a bona fide occupational qualification, i.e., did it satisfy a reasonable federal standard test.7

In light of the Court's disposition of EEOC v. Wyoming, we must initiate a search for a "reasonable federal standard" by which to test whether age is a bona fide occupational qualification for the City of Baltimore's firefighters. Congress has, however, made the search a simple one. With respect to federal firefighters, Congress has provided the standard. The same Congress that extended the ADEA to the states and their political subdivisions reinvigorated the requirement mandating retirement as a general matter at fifty-five8 for federal police and firefighting employees. Pub.L. 93-350, 88 Stat. 356, 5 U.S.C. Sec. 8335(b).9 The Legislative History accompanying the passage of P.L. 93-350 reveals the Congressional concern for the taxing nature of firefighting endeavors:

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 50. This intent has been based on the nature of the work involved and the determination that these occupations should be composed, insofar as possible, of young men and women physically capable of meeting the vigorous demands of occupations which are far more taxing physically than most in the Federal Service. They are occupations calling for the strength and stamina of the young rather than the middle age. Older employees in these occupations should be encouraged to retire.

Sen.Rep. No. 93-948, 93d Cong., 2nd Sess. in 1974 U.S.Code Cong. & Ad.News 3698, 3699.10

Where Congress itself has deemed age to be a bona fide occupational qualification for federal firefighters, we perceive no justification for ignoring the Congressional mandate in ascertaining "a reasonable federal standard" by which to measure firefighting in the City of Baltimore. Both federal and city firefighters are engaged in extremely stressful and hazardous activities designed to promote public safety. Absent a determination that age, specifically no more than fifty-five as a general rule, is a bona fide occupational qualification for firefighters, we would be compelled to conclude that Congress, in authorizing the automatic retirement of federal police and firefighting personnel, adopted an occupational qualification that is not, or might not be, bona fide. A court should not lightly make such a determination as to Congressional purpose.

The existence of a Congressional determination of the reasonable federal standard for firefighters distinguishes the fact pattern in the instant case from that in EEOC v. Wyoming. No comparable federal statute exists insofar as federal game wardens are concerned. It therefore devolved upon the district court in Wyoming to ascertain, on remand, by consideration of conflicting expert testimony, the acceptability of the mandatory retirement provisions. Similarly, in the absence of Congressional guidance, a trial would have been necessary to determine whether the City's use of age is a bona fide occupational qualification for its firefighters. In such an instance, we might well be persuaded by the thorough, impeccably reasoned opinion, issued by Judge Alexander Harvey II after a bench trial below.11 Instead, we reverse the decision below, in recognition of the fact that, by Congress' own reasonable federal standard, age is a bona fide occupational qualification for the job of firefighting in the City of Baltimore.12

Our conclusion is compelled further by the well-established rule that resolution of an unresolved and serious constitutional question should be avoided if a reasonable statutory interpretation would lead to a result obviating the necessity for a resolution of an issue of basic law.13 Here we avoid not one, but three, such potentially serious constitutional questions.

First, for Judge Harvey, the power of Congress, under Sec. 5 of the Fourteenth Amendment, to extend the ADEA to state and local governments appeared to have been settled by this court's decision in Arritt v. Grisell, 567 F.2d 1267 (4th Cir.1977).14 The validity of that conclusion, however, is questionable after EEOC v. Wyoming, supra.15 We therefore perceive that the question is both unresolved and close as to whether Sec. 5 of the Fourteenth Amendment generates the power to permit, in the circumstances here presented, congressional extension of the ADEA to state and local governments.16

Second, the power of Congress under the Commerce Clause to extend the ADEA to City firefighters may yet remain unanswered after EEOC v. Wyoming. The mandatory retirement provision at issue in EEOC v. Wyoming affected only game wardens with statewide powers. National League of Cities v. Usery, supra, on the other hand concerned "... the States' abilities to structure employer-employee relationships in such areas as firefighters, police protection, sanitation, public health, and parks and recreation." Id. 426 U.S. at 851,17 96 S.Ct. at 2474.

The firefighters in the instant case were far more localized than state game wardens, being employees of a single political subdivision, and so more removed from the federal government and its national concerns. Each case was decided by a vote of five to four.18 Whether the Supreme Court would view the City's firefighters as more akin to Wyoming's game wardens, or to the employees at issue in National League of Cities v. Usery, is again both an unresolved and narrow question, beyond the scope of this case as a consequence of our disposition on a reasonable grounds of statutory interpretation.19

Third, the constitutional separation of powers doctrine remains a viable restriction on the exercise of both legislative and adjudicative power. "[W]e consistently have emphasized that the federal lawmaking power is vested in the legislative, not the judicial, branch of government...." Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 95, 101 S. Ct. 1571, 1582, 67 L. Ed. 2d 750 (1981); see generally Springer v. Philippine Islands, 277 U.S. 189, 201-2, 48 S. Ct. 480, 482, 72 L. Ed. 845 (1928). Congress has, in 5 U.S.C. Sec. 8335(b), adopted a legislative answer to the question of whether the purely chronological age of not over 55 is or is not a bona fide occupational qualification for firefighting. It is questionable whether we can constitutionally supply the answer instead by an adjudicative, case-by-case approach. The question appears to be the same when raised for firefighters, in San Francisco or in Baltimore.20 The situation may not fit the intended accommodation of differing factual circumstances lending themselves to case-by-case resolution.

In the United States of America we are blessed with a Constitution which, both in words and in wise interpretation over the years, is intelligently flexible. It will bend before it breaks, displaying a pliability enabling it to accommodate to new challenges and to address old, persistent problems. Still it cannot simply be altogether without structure. Too many repeated folds or creases can lead to a tear along one of the lines of stress. The concerns of a constitutional nature potentially present, if all should have to be addressed, might lead to an unfortunate rupture. Fortunately, we are spared the necessity to explore the three unclear issues of basic law to which we have alluded. We need not grapple with whether legislation would have led to enforcement of the provisions of the Fourteenth Amendment. We need not explore just how far principles extend in terms of the power of the federal government to impinge on the exercise of integral governmental functions by the states. Nor must we decide whether action in a particular area is legislative or judicial. "It is well settled that this Court will not pass on the constitutionality of an Act of Congress if a construction of the statute is fairly possible by which the question may be avoided." United States v. Clark, 445 U.S. 23, 27, 100 S. Ct. 895, 899, 63 L. Ed. 2d 171 (1980); see also Johnson v. Robinson, 415 U.S. 361, 366-67, 94 S. Ct. 1160, 1165-1166, 39 L. Ed. 2d 389 (1974).

We conclude, therefore, that the ADEA did not establish for the firefighters of Baltimore City a bar to mandatory retirement at age fifty-five (sixty for transitional cases). EEOC v. Wyoming, properly viewed, encourages the conclusion that the ADEA and 5 U.S.C. Sec. 8335(b) are not mutually exclusive or antagonistic, but should be read to exist in a harmonized way, especially when we thereby avoid close and unresolved constitutional questions.21 Finally, by viewing the provisions of the City ordinance as properly enforceable, we enhance the promotion of harmony between state and federal legislation.22

Accordingly, the judgments below are reversed and the case remanded for entry of judgments in favor of the defendants.

REVERSED.

While I agree with the majority, for the reasons assigned by it that there is no merit in plaintiffs' claims based on the equal protection clause of the fourteenth amendment,1 I do not agree that Congress has established a bona fide occupational qualification (BFOQ) for Baltimore City firefighters. Indeed, I question that what Congress has done with regard to federal employees has any relevance at all to a correct decision of this case. Of course, I recognize that the proscription of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621 et seq., against mandatory retirement of employees under the age of seventy may be modified "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business," 29 U.S.C. Sec. 623(f)(1). The district court in the instant case, however, found as a fact that a BFOQ for mandatory retirement before age seventy was not proved, and I do not think that its finding was clearly erroneous.

I therefore respectfully dissent.

Baltimore City requires firefighters who became such after July 1, 1962 to retire at age fifty-five and all firefighters in service on July 1, 1962 to retire by age sixty. It is uncertain, however, at what age Congress has mandated retirement for federal firefighters. To me, certainty in what Congress has prescribed and exact comparability with what Baltimore has prescribed is the beginning point for determining if there is a congressionally established BFOQ for firefighters.

The legislation treating federal firefighters is set forth in 5 U.S.C. Sec. 8335(b) and it reads:

A law enforcement officer or a firefighter who is otherwise eligible for immediate retirement under section 8336(c) of this title shall be separated from the service on the last day of the month in which he becomes 55 years of age or completes 20 years of service if then over that age. The head of the agency, when in his judgment the public interest so requires, may exempt such an employee from automatic separation under this subsection until that employee becomes 60 years of age. The employing office shall notify the employee in writing of the date of separation at least 60 days in advance thereof. Action to separate the employee is not effective, without the consent of the employee, until the last day of the month in which the 60-day notice expires.2

When Secs. 8335 and 8336 are read together, it appears that a federal firefighter may retire as early as age fifty-five, if he has completed the minimum service requirements of Sec. 8336 so as to be entitled to an annuity (18 years), and if his department head does not conclude to require him to work a longer period. He may, however, be required to work until he reaches age sixty, and, indeed, he may be required to work beyond age sixty if (a) his department head is delinquent in giving him the 60 days' notice of separation, or (b) he has not completed 18 years of service as required by Sec. 8336(c)(2)(B). It is thus quite clear from the language of the statutes that Congress, unlike Baltimore City, has not opted for the bright-line test of age fifty-five as the mandatory age for retirement (except for certain transitional employees). This makes it impossible for me to say that there is a federally established BFOQ for firefighters at age fifty-five.

Section 8335 in its existing form was enacted in 1974 when, by Pub.L. 93-350, 88 Stat. 356, the mandatory retirement age of seventy was altered to the present alternatives. The legislative history of Pub.L. 93-350 does recite, as the majority sets forth, a congressional intent to liberalize retirement provisions so as to make it feasible for firefighters and law-enforcement officers to retire at age fifty. The rationale of the intent is, of course, "the vigorous demands of occupations which are far more taxing physically than most in the Federal Service." Sen.Rep. No. 93-948, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 3698, 3699. It must be remembered, however, that this language was used in relation to voluntary retirement, not involuntary retirement, as Baltimore City requires. With respect to involuntary retirement, the committee report states, "Additionally, the bill provides for the mandatory retirement of an eligible employee at age 55 or after 20 years, whichever occurs later." Id. at 3701. Thus, the legislative history, with its emphasis on "eligible" employee and resort to an alternative formula under which an employee may not be required to retire until he has completed twenty years of service, belies the existence of congressional intent, perceived by the majority, to fix age fifty-five as a BFOQ.

Even if it could be said that Congress established a BFOQ for federal firefighters, I do not think that this would be relevant to a decision of this case. The thesis of the majority was advanced and rejected in an analagous context in EEOC v. Wyoming, --- U.S. ----, 103 S. Ct. 1054, 75 L. Ed. 2d 18 (1983). Footnote 17 of the Wyoming opinion, --- U.S. at ----, 103 S. Ct. at 1063, 75 L.Ed.2d at 33, discussed the possible application of the third prong of the inquiry delineated in Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 101 S. Ct. 2352, 69 L. Ed. 2d 1 (1981), for determining the immunity of a local government from an otherwise legitimate exercise of federal power to regulate commerce, i.e., that "it must be apparent that the States' compliance with the federal law would directly impair their ability 'to structure integral operations in areas of traditional government functions'." Hodel at 288, 101 S. Ct. at 2366. The footnote reads:

Even if the minimal character of the federal intrusion in this case did not lead us to hold that ADEA survives the third prong of the Hodel inquiry, it might still, when measured against the well-defined federal interest in the legislation, require us to find that the nature of that interest "justifies state submission." We note, incidentally, that the strength of the federal interest underlying the Act is not negated by the fact that the federal government happens to impose mandatory retirement on a small class of its own workers. See Brief for Appellees 19. But cf. n. 5 supra (no upper age limit on Act's protection of federal employees.) Once Congress has asserted a federal interest, and once it has asserted the strength of that interest, we have no warrant for reading into the ebbs and flows of political decisionmaking a conclusion that Congress was insincere in that declaration, and must from that point on evaluate the sufficiency of the federal interest as a matter of law rather than of psychological analysis. (Emphasis added)

Wyoming, as I read it, tells us that the broad requirements of ADEA are not to be constricted as a matter of law by what treatment Congress has afforded to comparable federal employees.3 Stated otherwise, the fact that Congress may require some federal firefighters to retire at age fifty-five does not excuse Baltimore from proving the facts necessary to satisfy 29 U.S.C. Sec. 623(f)(1).

Since in my view of the case there is no compelling federal BFOQ, I am brought to a consideration of the correctness of the district court's ground of decision. It found as a matter of fact that Baltimore had not proved a BFOQ for mandatory retirement of firefighters at age fifty-five. From my study of the record, I cannot conclude that this finding is clearly erroneous.

I would affirm the judgment of the district court.