NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                      ________________

                            No. 13-4184
                         ________________

                   JUDGE JOHN W. HERRON;
               SENIOR JUDGE BENJAMIN LERNER;
                   JUDGE LEONARD N. ZITO;
                  JUDGE GERALD SOLOMON;

                                       Appellants

                                  v.

               GOVERNOR OF PENNSYLVANIA;
    SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA;
         TREASURER OF THE STATE OF PENNSYLVANIA;
COURT ADMINISTRATOR OF THE COMMONWEALTH OF PENNSYLVANIA

                         ________________

             Appeal from the United States District Court
               for the Middle District of Pennsylvania
               (D.C. Civil Action No. 1-12-cv-02577)
             District Judge: Honorable John E. Jones, III
                         ________________

              Submitted Under Third Circuit LAR 34.1(a)
                           April 7, 2014

         Before: AMBRO, JORDAN, and ROTH, Circuit Judges

                   (Opinion filed: April 29, 2014)
                        ________________

                             OPINION
                         ________________
AMBRO, Circuit Judge

       Appellants Senior Judge Benjamin Lerner and Judges John W. Herron, Leonard N.

Zito, and Gerald Solomon (collectively, the “Judges”), brought a federal action asserting

that a Pennsylvania constitutional provision requiring all state judges to retire in the year

they turn 70 violates the Equal Protection Clause of the Fourteenth Amendment to our

Constitution. After careful consideration, the District Court dismissed the Amended

Complaint with prejudice. For the reasons that follow, we affirm.

                                    I. BACKGROUND

       Article V, section 16(b) of the Pennsylvania Constitution requires that all

“[j]ustices, judges and justices of the peace shall be retired on the last day of the calendar

year in which they attain the age of 70 years.” Pa. Const. art. V, § 16(b) (2001). In 2012,

the Judges filed multiple actions in the Commonwealth Court of Pennsylvania attacking

the constitutionality of section 16(b). After Appellees Governor Thomas W. Corbett and

Secretary Carol T. Aichele (collectively, “the Commonwealth”) removed the case to

federal court, the Judges filed an Amended Complaint asserting violations of the Equal

Protection Clause and Due Process Clause of the Fourteenth Amendment.1 The

Commonwealth filed a Motion to Dismiss the Amended Complaint pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure. The District Court granted the

Commonwealth’s motion and dismissed the Judges’ Amended Complaint with prejudice,

holding that the claims were foreclosed by controlling precedent. J.A. at 6, 21 (“Perhaps


1
  Initially the Judges filed two separate complaints. These actions were consolidated by
the District Court in February 2013. In any event, the due process issue is not before us.
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better than anyone else, the Plaintiffs before us recognize the legal principle of stare

decisis, which directs us in the matter sub judice to but one result.”). Consistent with that

precedent, the Court considered section 16(b) under rational basis review and affirmed

the provision’s constitutionality. J.A. at 13, 21. Accordingly, the District Court

dismissed the Amended Complaint for failure to state a claim. The Judges filed this

appeal.

                                     II. DISCUSSION

       The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

We have jurisdiction over this appeal of the District Court’s final order under 28 U.S.C.

§ 1291. We review de novo a dismissal under Rule 12(b)(6). Phillips v. Cnty. of

Allegheny, 

, 230 (3d Cir. 2008) (citing Omnipoint Commc’ns Enters., L.P. v.

Newtown Twp., 

, 242 (3d Cir. 2000)). Accordingly, “[w]e must accept all

factual allegations in the complaint as true, construe the complaint in the light favorable

to the plaintiff, and ultimately determine whether the plaintiff may be entitled to relief

under any reasonable reading of the complaint.” Mayer v. Belichick, 

, 229

(3d. Cir. 2010).

       On appeal, the Judges’ only claim is that section 16(b) violates their equal

protection rights. As the District Court correctly held, this argument is foreclosed by the

Supreme Court’s decision in Gregory v. Ashcroft, 

, 473 (1991), and our

decision in Malmed v. Thornburgh, 

(3d Cir. 1980). In Malmed we held that

section 16(b) does not violate the Equal Protection Clause. 

When faced with



                                              3
a challenge to Missouri’s analogous mandatory retirement provision, the Supreme Court

held that law not to cross the line of equal protection. See 

.2

       The Judges contend that, despite this binding precedent, the recent Supreme Court

cases of United States v. Windsor, 

(2013), and Shelby County v. Holder,

(2013), require reconsideration of the constitutionality of section 16(b).

However, Gregory is controlling and we are required to follow it unless it is explicitly

overruled by the Supreme Court. See Rodriguez de Quijas v. Shearson/American

Express, Inc., 

, 484 (1989) (“[T]he Court of Appeals should follow the case

which directly controls, leaving to this Court the prerogative of overruling its own

decisions.”). Neither Windsor nor Shelby County explicitly overruled Gregory, let alone

addressed legislation analogous to section 16(b). We thus are in no position to break

from that controlling precedent. As neither Windsor nor Shelby County are “intervening

authority” on the precise issue in question, we are bound by our decision in Malmed

supported by the later Supreme Court decision in Gregory. See Reich v. D.M. Sabia Co.,

, 858 (3d Cir. 1996).

       We thus affirm.




2
  Article V, section 26(1) of the Missouri Constitution provides that “[a]ll judges other
than municipal judges shall retire at the age of seventy years . . . .” Mo. Const. art. V,
§ 26(1).
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