The opinion of the court was delivered by: GAGLIARDI
GAGLIARDI, District Judge.
This is an action by employees of the Waterfront Commission of New York Harbor challenging the constitutionality of Sections 2(31)(2)
of the New York State Retirement and Social Security Law (McKinney Supp.1975). These sections of the New York Law grant certain additional pension benefits to employees covered by the New York State Employees Retirement System who are veterans of World War II military service and who were residents of the State of New York or New Jersey at both the time of entry and discharge from military service.
Plaintiffs, who but for the residency requirements of §§ 2(31)(2) and 41(k) of the Retirement and Social Security Law would be entitled to additional veterans' benefits, challenge those provisions under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. They move, pursuant to Rule 56 Fed.R.Civ.P., for summary judgment seeking both declaratory and injunctive relief.
Jurisdiction is based on 28 U.S.C. § 1343(3), the suit being brought under 42 U.S.C. § 1983. Defendant moves, pursuant to Rule 12(c) Fed.R.Civ.P., for judgment on the pleadings. The court having considered matters outside of the pleadings, defendant's motion is treated as one for summary judgment under Rule 56 Fed.R.Civ.P. For the reasons stated herein, the court grants summary judgment in favor of the defendant.
Plaintiffs are currently, and have been for over twenty years, residents of the State of New York or New Jersey. They have been employees of the Waterfront Commission of New York Harbor, an instrumentality of the States of New York and New Jersey created in 1953 by a bi-state compact between the two states (McKinney's Unconsol. Laws § 9801 et seq. ; N.J.S.A. 32:23-1 et seq.) and approved by Congress (Act of August 12, 1953 c. 407, 67 Stat. 541). The Waterfront Commission of New York Harbor is a participating employer, making contributions to the New York State Employees' Retirement System,
and plaintiffs are members of and pension beneficiaries under that Retirement System.
Each plaintiff served honorably in the United States armed forces during World War II. Plaintiffs Langston and Malchman were neither residents of the State of New York or New Jersey at the time of their entry into nor at the time of their discharge from the armed services. Plaintiff Noone was a resident of New York at the time of his discharge from but not at the time of his entry into military service.
Defendant Arthur Levitt is the Comptroller of the State of New York and as such is, under the Retirement and Social Security Law of the State of New York, the administrative head of the New York State Employees' Retirement System.
Sections 2(31) and 41(k) of the Retirement and Social Security Law were amended in 1970 to extend to members of the Retirement System the right to purchase an additional pension credit for up to three years of their military service upon favorable financial terms if they were World War II veterans in active duty between July 1, 1940 and December 31, 1946, were discharged under honorable circumstances and were residents of New York State both at the time of entry and discharge from the service. N.Y. Laws of 1970, c. 457. In 1971 the law was further amended to extend the credit on the same terms to residents of New Jersey both before and after discharge from military service. N.Y. Laws of 1971, c. 1202.
Plaintiffs are ineligible for the additional pension benefits available under §§ 2(31)(2) and 41(k) of the Retirement and Social Security Law solely because they were not residents of either New York or New Jersey at the time they entered and were discharged from military service. They claim that these provisions deny them the right to purchase retirement service credits at favorable financial rates and consequently violate their Fourteenth Amendment right to equal protection of the laws.
An analysis involving the Equal Protection Clause requires a determination of the appropriate standard to be used to gauge the constitutionality of the challenged statute. In this case, the statute in issue distinguishes between a class of veterans who were residents of New York or New Jersey both before and after World War II and all other veterans, extending to the former supplemental benefits which it denies to the latter. A determination of the constitutionality of §§ 2(31)(2) and 41(k) of the Retirement and Social Security Law is shaped by the general rule "that in 'the area of economics and social welfare, the State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.'" Jefferson v. Hackney, 406 U.S. 535, 546, 92 S. Ct. 1724, 1731, 32 L. Ed. 2d 285 (1972), quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970); see Williamson v. Lee Optical of Okl., 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 563 (1955). To pass constitutional muster the classification must bear some rational relationship to a legitimate state purpose. Johnson v. Robison, 415 U.S. 361, 374-75, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974); United States Department of Agriculture v. Moreno, 413 U.S. 528, 533, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 40, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973). Under the "rational relationship" test, the party challenging the constitutionality of a statute has the burden of proving that the statute denies him equal protection, and the legislation will not be set aside if any set of facts may be conceived to justify it. McGowan v. Maryland, 366 U.S. 420, 426, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 564, 67 S. Ct. 910, 91 L. Ed. 1093 (1947); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 82, 31 S. Ct. 337, 55 L. Ed. 369 (1911).
A number of federal courts have decided equal protection challenges to veterans' preference legislation and, in factual situations similar to the case at bar, have applied the "rational relationship" test to the legislative classification. See, e.g., Koch v. Yunich, 533 F.2d 80, 85 n. 7 (2d Cir. 1976); Rios v. Dillman, 499 F.2d 329, 331 (5th Cir. 1974); August v. Bronstein, 369 F. Supp. 190, 194 (S.D.N.Y.) (three-judge court), aff'd mem., 417 U.S. 901, 94 S. Ct. 2596, 41 L. Ed. 2d 208 (1974); Feinerman v. Jones, 356 F. Supp. 252, 258 (M.D.Pa.1973) (three-judge court); Koelfgen v. Jackson, 355 F. Supp. 243 (D.Minn.1972) (three-judge court), aff'd mem., 410 U.S. 976, 93 S. Ct. 1502, 36 L. Ed. 2d 173 (1973). A stricter standard of review is not required because, as plaintiffs concede, the statutory classification is neither based upon "suspect criteria", see, e.g., Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967) (race); Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971) (alienage), nor does it affect a "fundamental right".
See, e.g., Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972) (right to vote); Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969) (right to travel). As a result, the "rational relationship" test must be applied to test the validity of §§ 2(31)(2) and 41(k) of the Retirement and Social Security Law.
In applying the "rational relationship" test, New York State can limit its extension of benefits to veterans who were residents of New York or New Jersey
at the time of their entry into and discharge from the armed forces. New York State has a legitimate interest in conferring these benefits on its own residents who served their country in the time of war. Numerous federal courts have recognized that a state's interest in expressing gratitude and rewarding its own citizens for their honorable military service is a rational basis for veterans' preferences like those here at issue. Rios v. Dillman, supra at 332; Russell v. Hodges, 470 F.2d 212, 218 (2d Cir. 1972); White v. Gates, 102 U.S.App.D.C. 346, 253 F.2d 868, cert. denied, 356 U.S. 973, 78 S. Ct. 1136, 2 L. Ed. 2d 1147 (1958); Anthony v. Commonwealth of Massachusetts, 415 F. Supp. 485, 496 (D.Mass.1976) (three-judge court); Feinerman v. Jones, supra at 259; Koelfgen v. Jackson, supra at 251. The New York State Legislature, starting in 1953, has expressed an interest in providing special pension benefits to World War II veterans. The legislature, in passing the 1970 amendments at issue in this case was acting at a time when a generation of World War II veterans were approaching retirement. The legislation is an expression by the State that it continues to value the contribution of its resident veterans.
Additionally, the federal courts have recognized that the state has a valid interest in compensating veterans for the economic disruption to their civilian lifestyles caused by military service in World War II. Johnson v. Robison, supra, 415 U.S. at 377-82, 94 S. Ct. 1160; Rios v. Dillman, supra at 332; Russell v. Hodges, supra at 218; Feinerman v. Jones, supra at 259; Koelfgen v. Jackson, supra at 251. New York State has properly directed its attention to compensating resident veterans for economic dislocation that occurred within its borders during World War II.
This analysis of the constitutionality of §§ 2(31)(2) and 41(k) of the New York State Retirement and Social Security Law is supported by the recent decision in August v. Bronstein, supra. August upheld, against an equal protection challenge, New York State constitutional and statutory provisions which provided a 5 point preference on competitive civil service entrance examinations and a 2 1/2 point preference on promotional examinations. These preferences are provided to World War II veterans who had been residents of the state at the time of their entry into the armed forces.
The three-judge court found, on grounds similar to those elaborated above, that New York State's preference for its own veterans was a legitimate state interest, reasonably furthered by the point preference awarded on civil service examinations. Id. at 193-94, citing Russell v. Hodges, supra at 218.
August v. Bronstein, supra, cannot be distinguished from the case at bar on the ground that the benefit provided in that case was in the court's view of "modest proportions" and a "token of gratitude". Id. at 193-94. The one-time point bonus in August is not insubstantial considering that it can determine an individual's employment status. See Rios v. Dillman, supra at 334-35; Koelfgen v. Jackson, supra (both cases upholding the constitutionality of veterans' preferences on every promotional exam). The promotional preference challenged in August ...