John Herron, et al v. Governor of Pennsylvania, et al

Filing

NOT PRECEDENTIAL OPINION Coram: AMBRO, JORDAN and ROTH, Circuit Judges. Total Pages: 4. Judge: AMBRO Authoring.

Case: 13-4184

Document: 003111601415

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Date Filed: 04/29/2014

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-4184
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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
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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
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Submitted Under Third Circuit LAR 34.1(a)
April 7, 2014
Before: AMBRO, JORDAN, and ROTH, Circuit Judges
(Opinion filed: April 29, 2014)
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OPINION
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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

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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, 515 F.3d 224, 230 (3d Cir. 2008) (citing Omnipoint Commc’ns Enters., L.P. v.
Newtown Twp., 219 F.3d 240, 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, 605 F.3d 223, 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, 501 U.S. 452, 473 (1991), and our
decision in Malmed v. Thornburgh, 621 F.2d 565 (3d Cir. 1980). In Malmed we held that
section 16(b) does not violate the Equal Protection Clause. Id. at 573. When faced with

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a challenge to Missouri’s analogous mandatory retirement provision, the Supreme Court
held that law not to cross the line of equal protection. See Gregory, 501 U.S. at 473.2
The Judges contend that, despite this binding precedent, the recent Supreme Court
cases of United States v. Windsor, 133 S. Ct. 2675 (2013), and Shelby County v. Holder,
133 S. Ct. 2612 (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., 490 U.S. 477, 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.,
90 F.3d 854, 858 (3d Cir. 1996).
We thus affirm.

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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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