Bradley v. Vance: The Yesterday You Worried About Tomorrow

'64 - '95 album coverImage via Wikipedia

Wholesale replacements of experienced employees with inexperienced beginners is a bad bet

This is a follow up to my post here and here on a recent case challenging the mandatory age retirement (MAR) in the Foreign Service.I’ve dug and read the Bradley v. Vance decision more than once since MAR had come up as a topic during the most recent AFSA election.I remember thinking, especially after reading Justice Marshall’s dissenting opinion that he seemed to be ahead of his time on this.Perhaps reading it in light of today’s realities, gives it more resonance.

I should note that two years after the Bradley decision, Congress reversed course and again raised the mandatory Foreign Service retirement age to 65 in the Foreign Service Act of 1980, as it had been from 1924 to 1946. And 65 has remained the mandatory age for retirement in the Foreign Service since.

I don’t know if this can be overturned. Obviously, the Sutherland Asbill & Brennan lawyers believed they have a good case in Colton v. Clinton or they would not have taken the case.How difficult the task would be, I don’t know.I do believe that if you should seek to overturn this precedent, there is no better time to do it than now. (Side note: I don’t think this is over sharing but my best friend is turning 65; and I am protected under ADEA though nowhere near collecting Social Security, nor a candidate for MAR).

Will you still need me, will you still feed me – when I’m 64?

According to the report, An Aging World: 2008, the average age of the world’s population is increasing at an unprecedented rate. The number of people worldwide 65 and older is estimated at 506 million as of midyear 2008; by 2040, that number will hit 1.3 billion. Thus, in just over 30 years, the proportion of older people will double from 7 percent to 14 percent of the total world population.

One government study estimates that 93% of the growth in the U.S. labor force from 2006 to 2016 will be among workers ages 55 and older.

Finally, a Pew Research Center analysis indicates that older workers are the happiest workers. The Center says that some 54% of workers ages 65 and older say they are “completely satisfied” with their job, compared with just 29% of workers ages 16 to 64. The explanation lies in figures cited above — a high percentage of these workers are working because they want to, not because they need to.

Somethings to keep in mind…

Overturning a Precedent

A CRS report on the Supreme Court’s overturning a precedent says that “as a general rule, the Supreme Court adheres to precedent, citing the doctrine of stare decisis (“to stand by a decision”). However it also states that “There are numerous other instances of the Court’s overruling of hoary precedent.Indeed, the older a precedent is, the more possibility there is that its doctrinal underpinnings will have been eroded through developments in the law.Age of a precedent can provide the opportunity for its reinforcement as well as for its erosion.”

It also explains that a “a precedent “that has become integrated into the fabric of the law” is more likely to have engendered reliance interests, and its overruling may even damage “the ideal of the rule of law.” The CRS report says that under this theory, “stronger arguments should be required to overrule a precedent.”

I don’t know how much stronger an argument would be required in this case. But things have changed in significant ways the last 30 years …

“Wear and Tear” wears no age

The appellees in Bradley v. Vance say that “many overseas posts are as pleasant as those in the United States, and that many people over age 60 are healthy, and many younger people are not. But they admit that age does, in fact, take its toll, and that Congress could perhaps have rationally chosen age 70 as the cutoff.” fikir

The way I see it — majority of overseas conditions are certainly not as pleasant as those in the United States.But when they are taxing and difficult, they impact not just 60-65 year old employees, but everyone assigned overseas (including spouses and children). Thus, the wear and tear of constant relocation, emotional toll and dislocation, changing weather, frustration from living away from family members, adjustment to a new culture and security threats is not unique to people of older age but affects everyone in the Service.

I call to the attention of the gentleman the fact that the kind of service which these men must render involves going to the Tropics; it involves very difficult and unsettling changes in the mode of life. The consensus of opinion was that the country was better off to retire them, as a general rule, at 65.” 65 Cong.Rec. 7564-7565 (1924) (Rep. Rogers).


In 1924, Mercedes-Benz had just been formed; an American airman flies from NY to San Francisco in 21 hours and 48 minutes and two U.S. Army planes complete the first round-the-world flight in 175 days. Also in 1924, the first regular airmail services start in the USA and you can get an Underwood typewriter with just a $3.00 down payment. Regular commercial flights between North America and Europe also did not start until 1945.

Thus, the modes of travel for our diplomats assigned to distant places in Europe, the Far East, and Africa in 1924 … those invariably included rail and sea travel which took days, weeks, even months.Today, however, 21 hours in an economy class is what you get. Most travel from DC to our overseas missions occurs less than 24 hours.

You’re getting older and getting better …

In 1983, four years after the Bradley decision, Congress recognized the fact that life expectancy has increased substantially since 1940 and enacted increases in the normal retirement age gradually from 65-67.In 2008, the American Academy of Actuaries even issued a rare “public interest” statement advocating raising Social Security’s age when an eligible retiree receives full pension benefits another two years to 69.

The life expectancy in 1980 measuring overall quality of life in a country and mortality at all ages was 70 years for males in America. For females the life expectancy was 77.4. In 2009, the estimated life expectancy in the United States has increased to 75.65 years for males and 80.69 years for females.

The Colton lawsuit cites several current political appointees who are over 65 namely:

  • George Mitchell, Jr. (Special Envoy to the Middle East) 76 years old
  • Stephen Bosworth (Special Envoy to North Korea Policy) 79 years old
  • Dan Rooney (US Ambassador to Ireland) 76 years old
  • Richard Holbrooke (Special Rep to Af/Pak) 67 years old

It also points out that the current Director General of the Foreign Service Nancy Powell will turn 65 during her tenure, and Secretary Clinton will be past 65 if she serves her full 4-year term. It did not include in the list the new US Ambassador to the UK, Louis Susman who is 71 years old or Johnnie Carson, a retired diplomat who was recently asked to come back as Assistant Secretary for the Africa Bureau who was born in 1943. If Carson’s Wikipedia entry is accurate, he is 66 years old.There is obviously, a prevailing belief that experience matters … that the old hands at this game are effective in what they do.But how can one argue that political appointees over 65 are just as effective at their jobs, while career employees over 65 are no longer as good? Or that they must get out as soon as they turn 65 — on the dot or they turn into pumpkins?

The complaint also did not include the fact that a large number of work at State and USAID are performed by contractors recruited for their experience by private companies with no mandatory age requirements.In 1979 when USAID was a 20-year old agency with full staffing and funding, this argument put forward by Justice Marshall did not resonate.But in today’s reality where USAID is a poor shadow of its old self, it might be harder to argue that a 65 year old employee must leave employment under MAR, when weeks later he/she could be working in the same job as a USAID contractor (or as a political appointee, for that matter).

Mid-level Staffing/Experience Deficit

A report dated May 2009 states that a January 2008 analysis by State’s Human Resources Bureau indicates that mid-level shortages continue. The report notes the public diplomacy cone has the highest mid-level deficit among the five generalist cones, and public diplomacy officers are being promoted through the mid-levels at higher rates than other cones. State officials expect it will take several years before the mid-level deficit is erased.

The GAO report released this month on staffing at hardship posts says that “while new resources may enable State to partially address vacancies and the department has reduced its mid-level deficit since 2006, the remaining shortage of mid-level officers represents a continuing experience gap. State faced a 28 percent greater deficit at the FS-02 level than it did in 2006, with mid-level positions in the public diplomacy and consular cones continuing to experience the largest shortages of staff overall.”

In this post, I also talked about the language shortfalls in the State Department. The reality is growing a language competent corps takes time and practice. It is safe to assume then that our most competent foreign language speakers at State have had multiple assignments in specific areas of the world in the last 20-30 years of their careers.And just when they are hitting their peak, they also hit the MAR brick wall.

So even if the State Department is repopulating its mid-level ranks with faster promotion, it is at the same time reducing its already thin mid-level ranks under MAR. This, of course, could result in continued staffing gap at the mid-levels and persistent shortage of foreign language speakers.

Tell me again that this is our most adaptive strategy for talent management.

Baby Boomers Sailing into the Sunset

Remember that saying about the Army having more band members than the Foreign Service?The Foreign Service employees number approximately 11,500: 6,500 Foreign Service Officers and 5,000 Foreign Service Specialists.

Remember the National Council on Aging saying that a member of the baby-boom generation will turn 50 on the average of every 7.5 seconds?

The Partnership for Public Service projects that some 7200 Foreign Service employees will retire in 2009-2012. If that projection is correct, we are talking about the departure of over 60% of the staff.And even with a projected hire of 5,663 in 2010-2012, how quickly can you replaced the experience of those sitting at the top of the pyramid? State might be able to fast-tracked promotion at any speed it wants, but wholesale replacement of experienced diplomats with inexperienced beginners is a bad bet.

In the end the real issue when it comes to mandatory age retirement is a simple one made complicated by more details than necessary.

As Justice Marshall says in 1979 “The issue, […] is not whether persons between age 60 and 70 “wear down,” but whether they are competent Foreign Service personnel.”

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