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w . v i l l a no v a . e du/thir dc ir c uit_2014/443NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 1 3

- 4184

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

Appellant s

v. GOVERNOR OF PENNSYLVANI A; 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. Ci vi l Action No. 1

- 1 2

- c v - 0 2577 ) 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 ” ), br ought 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
C omplaint with prejudice

. For the reasons that follow, we affirm. I. BACKGROUND Article V, s ection 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). I n 2012, the Judges filed multiple actions in the Commonwealth Court of Pennsylvania attacking the constitutionality of s ection 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 C lause of the Fourteenth Amendment. 1 The Commonwealth filed a Motion to Dismiss the Amended Complai nt pursuant to Rule
12 (b)(6) of the Federal Rules of Civil Procedure. The District Court gr anted the Commonwealth’s motion and dismisse d 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 Di strict 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 judic e to but one result.”). Consistent with that precedent, the Court considered s ection 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 fa ilure 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 Comm c’ns Enters., L.P. v.
Newtown T

w p. , 219 F.3d 240, 242 (3d Cir. 2000) ) . Accordingly, “[w]e must accept all factual alle gations 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, 22 9 (3d. Cir. 2010). On appeal, the Judges ’ only claim is that s ection 16(b) violates their equal protection rights. As the District Court correctly held, t his argument is foreclosed by the Supreme Court’s decision in Gregory v. Ashcroft , 501 U.S. 452 , 47 3 (1991) , and our decision in Malmed v. Thornburgh , 621 F.2d 565 (3d Cir. 1980). In Malmed we held that

s ection 16(b) does not violate the Equal Protection Clause

. Id. at 573

. When faced with4

a challenge to Missouri’s analogous mandatory retirement prov ision , 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) , a nd Shelby Count y v. Holder , 133 S. Ct. 2612 (2013), require reconsideration of t he constitutionality of s ection 16(b)

. However, Gregory is controlling and we are require d 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 exp licitly overrule d Gregory , let alone address ed legislation analogous to s ection 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 y ears . . . .” Mo. Const. art. V, § 26(1).