The Foreign Service Journal, June 2003

ance v. Bradley (1979) may be the only case dealing with a Foreign Service personnel matter that has ever gone before the U.S. Supreme Court. The case is signifi- cant for several reasons, but chiefly for the fact that AFSA — not long after being designated the exclusive bargaining agent for the Foreign Service — chose to argue against a group of employees, rather than on their behalf. In its amicus curiae brief, AFSA agreed with management that the needs of the Foreign Service were distinct from those of other federal govern- ment employees, and that Foreign Service members could not claim the same enti- tlements as employees gov- erned by the Civil Service Act. As in many cases before the Supreme Court, the factual issue in the Bradley case was narrower than the legal princi- ple involved. A group of Foreign Service employees had sought to have their mandatory retirements from the Service at the age of 60 set aside as discriminatory, on the grounds that Civil Service employees at that time were not subject to mandatory retirement until the age of 70. (By the time the Supreme Court decided the case, mandatory retirement for U.S. civil servants on the basis of age had already been totally abolished at the initiative of octogenarian Rep. Claude Pepper, D-Fla.) In an 8-1 decision written by Justice Byron "Whizzer" White, the Court decided that Congress could constitutionally set stricter standards for the Foreign Service than for the Civil Service. In doing so, it reversed a district court decision in favor of the plain- tiffs that had been supported by amicus briefs by the American Association of Retired Persons, American Federation of Government Employees, Rep. Pepper et al., and the National Council of Senior Citizens. The argument of the plaintiffs centered on the fol- lowing elements: many Civil Service employees were serving abroad in Foreign Service positions (the court used an estimate of 5 percent of the total U.S. Civil Service at any given time, as opposed to 60 percent of the Foreign Service); overseas service had no impact on their mandatory retirement age; service abroad was not neces- sarily more demanding than domestic assignments; and mandatory Foreign Service retirement at 60 violated the due process clause of the Fifth Amendment. In his dissenting opinion, Judge Thurgood Marshall espoused these argu- ments. But the majority opinion accepted and reiterated the principal points made by AFSA. In the AFSA amicus brief, General Counsel (at the time) Cathy Waelder argued that the 60-year retire- ment age was needed to maintain the regular flow- through on which the Foreign Service career system was based, and that Foreign Service personnel had to be prepared for civil wars, areas plagued by unrest, disaster relief, evacuations, and terrorist attacks. As a result, “it was not irrational for the Congress to select age 60 as A 1979 S UPREME C OURT DECISION KEPT INTACT THE LEGAL FINDING THAT THE F OREIGN S ERVICE HAS NEEDS AND CHALLENGES DISTINCT FROM THOSE OF OTHER FEDERAL GOVERNMENT EMPLOYEES . B Y T ED W ILKINSON F O C U S O N A F S A’ S 3 0 Y E A R S A S A U N I O N 40 F O R E I G N S E R V I C E J O U R N A L / J U N E 2 0 0 3 V AFSA AND THE C OURTS : T HE B RADLEY C ASE