2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-29-2014

John Herron v. Governor of Pennsylvania

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-4184

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Recommended Citation

"John Herron v. Governor of Pennsylvania" (2014). 2014 Decisions. Paper 443.

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NOT PRECEDENTIAL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 

________________
2

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.
3

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 
4

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. 

 

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).