APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 78-0514)
Before Aldisert, Van Dusen and Hunter, Circuit Judges.
We are faced on this appeal with a challenge to the injunctive relief granted appellee, Raymond Kuhar, by the district court. Appellant, Greensburg-Salem School District (School District), contends that the district court erred in entering judgment for Kuhar on his claim that the School District's policy of mandatory retirement at the age of 65 should not be applied to him, and in permanently enjoining the School District from terminating Kuhar's employment for reasons of age until Kuhar reached the age of 70. We reverse.
Raymond Kuhar has been employed as a teacher, counselor, and administrator by the Greensburg-Salem School District for over 33 years. He is currently the assistant principal at Greensburg-Salem Junior High School, a position he has held since 1975. On August 27, 1977, Kuhar became 65 years old. The School District notified him on April 24, 1978, that he would be retired as of June 30, 1978, in accordance with the long-standing, announced policy that required all employees to retire at the end of the school year in which they attain the age of 65.
On May 10, 1978, Kuhar filed in the United States District Court for the Western District of Pennsylvania a motion for a temporary restraining order and a complaint seeking preliminary and permanent injunctions against his forced retirement. He based his suit on 42 U.S.C. § 1983, alleging that his rights under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution had been violated. The court granted the temporary restraining order. On June 19, 1978, after three days of hearings, the court entered judgment for Kuhar and permanently enjoined the School District from terminating Kuhar's employment for reasons of age until Kuhar completed work for the fiscal year in which he reached 70. The court also ordered that Kuhar be afforded an administrative hearing before termination for any reason. On June 28, 1978, the School District filed a motion for a new trial, a motion to amend and supplement the findings of fact and conclusions of law and judgment, and a motion to suspend the injunction. The district court entered an amended order and judgment on February 27, 1979; the terms of the injunction were the same as those enumerated in the June 1978 order. The School District appeals from this order.
Kuhar contends on appeal, as he did at trial, that the School District's mandatory retirement policy as applied to him violated the Fourteenth Amendment to the Constitution. Although he couches his argument in terms of equal protection, his argument appears to be based on the due process clause.*fn1 The gravamen of Kuhar's claim is not that the School District has impermissibly created a classification based on age. Rather, he urges the view that it is irrational, in light of the known fact that the mandatory retirement age will advance to 70 on January 1, 1979, to apply the mandatory retirement age of 65 to him in 1978.*fn2
The Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634, protected individuals between 40 and 65 years of age. Id. at § 631. On April 6, 1978, Congress passed the 1978 amendments to this Act, Pub.L. 95-256, raising the age limit of protected individuals to 70. January 1, 1979, was set as the effective date of these amendments; Congress clearly intended that they have no retroactive effect. H.R.Rep.No.95-527, 95th Cong., 1st Sess. 7 (1977);*fn3 accord, S.Rep.No.95-493, 95th Cong., 2nd Sess. 7, reprinted in 1978 U.S.Code Cong. & Admin.News, pp. 504, 510.
Kuhar does not claim that he is actually protected by the terms of the Age Discrimination in Employment Act Amendments of 1978. He contends, nonetheless, that the School District has acted irrationally in not applying a 70 age limit to him. This becomes clear when his argument is examined. Kuhar does not contend that there is no rational relationship between the state interests and the application of an age 70 mandatory retirement policy. Nor does he argue that in the past there was no rational relationship between the state interests and the application of an age 65 mandatory retirement policy. He urges, rather, that a rational relationship between the state interests and the age 65 mandatory retirement policy has been absent since April 6, 1978, the date of enactment of the 1978 amendments to the Age Discrimination in Employment Act of 1967.*fn4
The district court found that the School District had a policy mandating retirement at age 65 (443a), that this policy applied to all employees (443a), and that this was the sole reason the School District attempted to terminate Kuhar (444a). The court concluded that Kuhar was not protected from termination by the Age Discrimination in Employment Act of 1967 or by the 1978 amendments to the Act (446a). After noting that "the School District is compelled by the 1978 Amendment . . . to change its mandatory retirement age from 65 years to 70 years, effective January 1, 1979," the court concluded that as of April 6, 1978, "the School District could and should have immediately changed its mandatory retirement policy as to Kuhar in conformity with the required provisions of the 1978 Amendments" (446a) (emphasis supplied). The court further concluded:
"(Since) Kuhar is the one and only employee who has been made subject to (the age 65) retirement policy since the April 6, 1978 passage of the Amendments to the Age Discrimination in Employment Act of 1967 (447a), . . . (i)t is clear beyond doubt that the attempted application of the Defendant School District's "mandatory retirement at age 65 policy' to the Plaintiff under the facts of this case is totally irrational." (455a)
Having adopted the reasoning advanced by Kuhar, the district court concluded that Kuhar's constitutional rights under the Fourteenth Amendment had been violated.*fn5
This holding is in error. Simply put, the analysis finds a constitutional violation has occurred because the School District did not apply the terms of a statute prior to the effective date of that statute. There is no constitutional right to work beyond the age of 65. See Vance v. Bradley, 440 U.S. 93, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976). At the time this case was initiated, there was no statutory right to work beyond the age of 65. See 29 U.S.C. § 631. Nor was there present in this suit any allegation that the School District had applied its mandatory retirement policy in other than an even-handed fashion. To affirm the district court under these circumstances would, in effect, entail rewriting the federal legislation which specifically provided that the expansion in coverage of individuals was not to become effective until January 1, 1979. It would undermine the explicit congressional intent to allow a delay period between passage and enforcement of the statute. It would invite a myriad of constitutional claims based on "irrationality" by those whose statutory rights do not accrue until some future date.*fn6 Essentially, it would eviscerate any congressional attempt to grant employers and others lead time in order to provide smooth transitions for statutory changes. Such a result would be unwarranted and illogical. In light of our analysis of the relevant law and facts in this case, we must ...