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USCA1 Opinion

United States Court of Appeals


United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 92-2485
DANIEL J. GATELY, ET AL.,
Plaintiffs, Appellees,
v.
COMMONWEALTH OF MASSACHUSETTS, ET AL.,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Boudin, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
Deborah S. Steenland, Assistant Attorney General, with whom
____________________

Sc
__

Harshbarger, Attorney General and Thomas A. Barnico,


Assist
___________
___________________
Attorney General, were on brief for appellants.
James B. Conroy, with whom Katherine L. Parks and Donnel
________________
___________________
______
Conroy & Gelhaar, were on brief for appellees.
________________
Paul D. Ramshaw, Donald R. Livingston, General Counsel, Gwendo
_______________ ____________________
______
Young Reams, Associate General Counsel, and Vincent J. Blackwo
____________
___________________
Assistant General Counsel, on brief for the U.S. Equal Employm
Opportunity Commission, amicus curiae.
____________________
August 18, 1993
____________________

STAHL, Circuit Judge.


_____________
preliminary

injunction

issued

This

is an

appeal from

pursuant

to

Discrimination in Employment Act ("ADEA"), 29 U.S.C.


seq.,
____

prohibiting

defendants-appellants

the

a
Age

621 et
__

Commonwealth

of

Massachusetts, Thomas Rapone, Secretary of Public Safety, and


Francis

McCauley, Executive

Retirement

Board,

Director

from enforcing

the

of the

Massachusetts

statutorily mandated

retirement of members of the Department of


55 or older.

State Police aged

For the reasons set forth below, we affirm.


I.
I.
__
Factual Background
Factual Background
__________________

In
enacted
which

December

1991 Mass.
called

1991,

the Massachusetts

Acts ch. 412

for,

inter
_____

Police,

with

its

three

District

Commission Police

Vehicles

Law

Capitol

Enforcement

Police.

The

(effective July

alia, the
____

Commonwealth's largest police

smaller

Division

of

Division of

forces, the

("MDC"),

1, 1992),

consolidation

force, the

newly

legislature

State

Metropolitan

the Registry
("Registry"),

consolidated

the

of Motor
and

police force

the
is

referred to as the "Department of State Police."1


Prior to
Registry,

the consolidation,

and Capitol

retirement age of 65,

Police

officers of

were subject

to a

and officers of the Division

the MDC,
mandatory
of State

____________________
1. For purposes of clarity, however, throughout this opinion
we refer to the new Department of State Police as the
"Consolidated Department."
-22

Police

were

Section

subject to

122

retirement

of

ages

Consolidated

a mandatory

Chapter
and

412

declared

retirement age

repealed

those

that

members

all

of 50.

mandatory
of

the

Department who reach their fifty-fifth birthday

on or before December 31, 1992, shall retire by that date.


On December 21, 1992, ten days before the effective
date of the new mandatory retirement age, plaintiffs, members
of

the former

action seeking
mandatory

MDC and

Registry divisions,2

injunctive relief on the grounds that the new

retirement age violated the ADEA.

623(a)(1).

commenced this

On December

See 29 U.S.C.
___

30, 1992, after a hearing

that same

date, the district court issued an order granting plaintiffs'


motion

for preliminary

Massachusetts,
_____________

injunctive

relief.

See Gately
___ ______

811 F. Supp. 26 (D. Mass. 1992).

v.

This appeal

followed.
II.
II.
___
The Preliminary Injunction Standard
The Preliminary Injunction Standard
___________________________________
In
injunction, a
factors:

deciding

whether

district court

(1) the likelihood

to

grant

preliminary

must weigh the

following four

of the movant's

success on the

merits; (2) the potential for irreparable harm to the movant;


(3) a balancing of the relevant equities, i.e., "the hardship
____
to the nonmovant if the

restrainer issues as contrasted with

____________________
2. The complaint lists 45 officers, 30 of whom
age of 55 or older on December 31, 1992.

reached the

-33

the hardship to

the movant if

interim relief is

Narragansett Indian Tribe v.


__________________________
Cir. 1991);

withheld,"

Guilbert, 934 F.2d


________

and (4) the effect

4, 5

(1st

on the public interest

of a

grant or denial of the injunction.

See, e.g., id.


___ ____ ___

However,

the "sine qua non of [the preliminary injunction standard] is


____ ___ ___
whether the plaintiffs are likely to succeed on
Weaver v. Henderson, 984
______
_________
also
____

F.2d 11, 12

United Steelworkers of America


_______________________________

F.2d 6,

(1st Cir.

1987)

the merits."

(1st Cir. 1993).

See
___

v. Textron, Inc., 836


______________

("The heart

of the

matter

is

whether `the harm caused plaintiff without the injunction, in


__
light of
_____ __
the

the plaintiff's

merits, outweighs

defendants.'")

likelihood of eventual

the

harm the

success on

injunction will

cause

(quoting Vargas-Figueroa v. Saldana, 826 F.2d


_______________
_______

160, 162 (1st Cir. 1987) (emphasis in original)).


A
injunction
district

party
bears

the

heavy

Guilbert,
________

can

as to

best be

grant

burden

of

trial

preliminary

showing

5.

that

the

law or abused

See also
___ ____

875 F.2d 907,

granting or

made by

of

a mistake of

934 F.2d at

v. Oriental Plaza, Inc.,


____________________

1989) ("Decisions
redress

court either committed

its discretion.
Corp.
_____

appealing

K-Mart
______

915 (1st Cir.

withholding injunctive
courts steeped

in the

nuances of a case and mindful of the texture and scent of the


evidence.").
ruling below.

Without such a showing, we will not disturb the


Id.
___

-44

Here, the district court weighed


recited above
injunction.
court

the four criteria

and held that the scales tipped in favor of an


See Gately, 811 F. Supp. at 27-31.
___ ______

admitted that

the

evidence relative

Although the

to the

second,

third, and fourth criteria was not markedly in either party's


favor,
merits.

it found that plaintiffs would


Id.
___

at 31.

Accordingly, it

likely succeed on the


issued the

requested

preliminary injunction.
On

appeal,

court's application

defendants
of all

generally

challenge

four criteria.

the

Having reviewed

the district court's opinion, however, it is clear to us that


appellate elaboration is
second

criteria.

warranted only as to

We therefore

adopt the

the first and

district court's

cogent and well-reasoned opinion insofar as it relates to the


other two prongs of the preliminary injunction test and focus
on

whether

likelihood
irreparable

the

court

correctly

of success at
harm

to

presaged (a)

trial, and

plaintiffs

in

injunction.
III.
III.
____
Discussion
Discussion
__________
A. Plaintiffs' Likelihood of Success
_____________________________________

(b) the
the

plaintiffs'
potential for

absence

of

an

Under the ADEA, it is "unlawful for an employer . .


. to fail or refuse to hire or to discharge any individual or
otherwise discriminate

against any individual .

. . because

-55

of such individual's
The ADEA
employers

age . .

. ."

29 U.S.C.

contains an "escape clause,"


some

limited

flexibility

consideration in business decisions.


the "BFOQ
any action
where

exception," the

is

bona

to

take

age

clause allows employers

fide

reasonably necessary to the


business . . . ."

however, which allows

29 U.S.C.

into

Commonly referred to as

otherwise prohibited under

age

623(a)(1).

"to take

[the statute]

occupational

. .

qualification

normal operation of a particular


623(f)(1).

As noted by

the

Supreme Court, this clause is "`an extremely narrow exception


to the general
in the ADEA."

prohibition' of age

discrimination contained

Western Air Lines, Inc. v.


_______________________

Criswell, 472 U.S.


________

400, 412 (1985) (quoting Dothard v. Rawlinson, 433 U.S.


_______
_________

321,

334 (1977)).
In
test

for

Criswell, the
________

courts

to use

"extremely narrow"

Court
in

enunciated a

discerning

BFOQ exception.

the two-part test outlined

Id.
___

the

two-pronged
width of

the

at 412-20 (adopting

in Usery v. Tamiami Trail Tours,


_____
_____________________

Inc., 531 F.2d 224, 235-36 (5th Cir. 1976)).


____

Under the first

prong,

show

the

qualification

employer
at

must

issue

is

be

able

to

"reasonably
__________

essence of [its] business . . . ."

necessary
_________

that

the

to

the

Criswell, 472 U.S. at 413


________

(quoting Usery, 531 F.2d at 236) (emphasis in original); EEOC


_____
____
v. City of East Providence, 798 F.2d 524, 528 (1st Cir. 1986)
_______________________
(quoting

Criswell).
________

The

second

prong

requires that

the

-66

employer

justify

its

use

of

age

as

proxy

for

that

qualification.
Providence,
__________

Criswell,
________

472 U.S.

F.2d

528.

798

at

accomplished in one of two ways.


it

"`had reasonable

basis for
_____

cause to

believing, that

at

414; City of East


______________

Justification

can

The employer can


believe, that

show that

is, a

all or substantially

be

factual
_______

all persons

over the age qualification[] would be unable to perform . . .


the duties of the

job involved.'"

Criswell, 472 U.S. at 414


________

(quoting

531

at

235)

can

establish

Usery,
_____

Alternatively,
`impossible

the

F.2d

employer

or highly

impractical' to

employees on an individualized basis."

(emphasis

added).

that

"it

deal with

is

the older

Criswell, 472 U.S. at


________

414 (quoting Usery, 531 F.2d at 235).


_____
As support

for their contention that

court erred in determining plaintiffs'


under the ADEA, defendants
(1)

controlling

plaintiffs'

in

this

EEOC v.
____

Cir.), cert.
_____

I");
_

and

amendment

(2)

denied, 469
______

plaintiffs'

to the ADEA.

forecloses

are

U.S.C.

1 (1st

Trabucco, 738 F.2d 35


________

U.S. 1036

claims

See 29
___

circuit

Trabucco, 791 F.2d


________

Cir. 1986) ("Trabucco II"); Mahoney v.


___________
_______
(1st

likelihood of success

make the following two arguments:

precedent

claims, see
___

the district

(1984) ("Trabucco
________
barred
623(j).

by

1986

We address

each argument in turn.


1. Trabucco I and II
1. Trabucco I and II
_____________________

-77

Defendants first contend that plaintiffs' challenge


to chapter 412 is precluded by the doctrine of stare decisis.
_____ _______
In so doing, they rely upon a case in which we upheld a lower
court's

finding

that

statutorily mandated
Trabucco I,
___________
subsequently
principles.

738 F.2d

the

Massachusetts

retirement age
at

reaffirmed

37-42,

of 50
and a

Trabucco I
___________

State

Police's

was a

BFOQ, see
___

case
on

See Trabucco II, 791 F.2d at 2-5.


___ ____________

in

which we

stare
_____

decisis
_______

Defendants'

reliance upon these cases is misplaced.


The doctrine of stare decisis renders the ruling of
_____ _______

law in a
___

case binding in future cases before

or other courts
the doctrines
doctrine

of

owing obedience to the


of res judicata and
___ ________

stare decisis]
______________

the same court

decision.

"[U]nlike

collateral estoppel, [the

is not

narrowly

confined

parties and privies, and it does not draw its force


policy protecting final judgments."
2.

is

broad

earlier litigation."

in

from the

Trabucco II, 791 F.2d at


___________

"Rather, when its application is

doctrine

to

deemed appropriate, the

impact, reaching

strangers

to

the

Id.
___

The essential

principles of

stare decisis
_____ _______

described as follows:
(1) an issue of law must have been heard
and decided; (2) if an issue is not
argued, or though argued is ignored by
the court, or is reserved, the decision
does not constitute a precedent to be
followed; (3) a decision is stare decisis
_____ _______
despite the contention that the court was
not properly instructed by counsel on the
-88

may be

legislative history, or that the argument


was
otherwise
insufficient;
(4)
a
decision may properly be overruled if
seriously
out
of
keeping
with
contemporary views or passed by in the
development of the law or proved to be
unworkable; and (5) there is a heavy
presumption that settled issues of law
will not be reexamined.
Trabucco II, 791 F.2d at 4 (internal quotations and citations
___________
omitted).

Fidelity to

this principle

predictability, and respect for judicial


v.

South Carolina Pub. Rys. Comm'n,


_________________________________

promotes "stability,
authority."
112

S. Ct.

Hilton
______
560, 564

(1991).
As stare
_____
however, a
not

decisis is
_______

decision dependent

necessarily controlling

analysis

of

the same

different record.
F.2d 1029, 1031

concerned with rules

of law,

upon its underlying

facts is

precedent

question

on

as

to a

subsequent

different facts

and

Complaint of Tug Helen B. Moran, Inc., 607


_____________________________________
(2d Cir. 1979).

F.2d 457, 458-59 (1st Cir.

Cf. Gavin v.
___ _____

Chernoff 546
________

1976) (invoking stare decisis


_____ _______

to

follow earlier opinion where "appellants' essential arguments


remain

much the

rejected[,
change

same as

those considered

and [previously]

and] [t]here are no compelling new reasons and no

in circumstances

justifying

reconsideration of

the

previous decision") (internal quotation marks omitted).


A brief examination of the two cases relied upon by

defendants reveals the inapplicability of the doctrine

here.

In Trabucco I, the district court had held that Mass. Gen. L.


__________

-99

ch. 32,
the

26(3)(a),

Division of

Division

which mandated retirement at age

State Police,

generally,

while a

violated the

valid BFOQ

ADEA

as

the state

police, regardless of

desk jobs.

subject
military
the

the

We reversed,

applied to all members of


whether they

had field

or

Trabucco I, 738 F.2d at 39 (phrase "`occupational


__________

qualification'
vocation

for the

applied to

plaintiff, a state trooper who had a desk job.


holding that the age qualification

50 for

rather
to

means
than

all the

more
a

of

and

discrete

for

an

employee

and benefits

of

a quasi-

desk assignment

obligations

organization").

recognized

Our decision left intact, however,

district court's finding that age

Division of State Police.


After

50 was a BFOQ for the

Id. at 37.
___

the district

court ruling,

but before

our

reversal,
same

the EEOC

mandatory

brought an

retirement

action challenging

statute.

relying upon Trabucco I, held that the


__________
by

principles

contended

that,

of

stare
_____
because

decisis.
_______

the very

The district

court,

action was foreclosed


On

appeal,

plaintiff Mahoney

had

the

EEOC

offered no

evidence at trial to

rebut the Commonwealth's BFOQ evidence,

the

precedential value.

decision lacked

F.2d at
law.

4.
It

No facts had changed and


simply contended

testimony that

that it

had not been presented

Trabucco II, 791


____________

the EEOC argued no new


would offer

the expert

by plaintiff Mahoney.

Although recognizing the "non-absoluteness of stare decisis,"


_____ _______

-1010

id.
___

at 4, we analyzed

Mahoney raised

the proceedings below

and argued,

and the district

and found that


court decided,

the precise question of whether the across-the-board BFOQ was


valid.

Id. at

4-5 ("Thus, the issue in the case

at bar was

___
addressed

by

Mahoney in

thoroughly as the EEOC


we

rejected

the

his

litigation,

even if

would have desired.").

EEOC's

attempt

to

As

reopen

not

as

a result,

that

issue.

Trabucco II, 791 F.2d at 4-5 ("We have found no case, nor has
___________
appellant cited

us to any, that supports its contention that

a weak or ineffective

presentation in a prior

case deprives

the ruling of precedential effect.").3


There are two compelling reasons why these cases do
not

foreclose the

whether

instant action.

mandatory retirement

intensive

inquiry.

(discussing

fact-based

age is

Criswell,
________
nature

a
472

of

question of

BFOQ is
U.S.

a fact-

at

417-23

the BFOQ

defense);

Johnson v. Mayor & City Council of Baltimore, 472


_______
__________________________________

U.S. 353,

362 (1985)

the

See
___

First, the

(stressing the "particularized,

factual showing"

____________________
3.

In so doing, we observed that counsel for the EEOC


was

not only aware

of the

[Trabucco I]
__________
litigation, but could have intervened in
the district court or could have filed an
amicus brief on appeal.
That it did
neither was attributed to its assessment
that the decision would not be given
stare decisis effect and
to certain
_____ _______
practical problems, such as obtaining
expert witnesses.
Trabucco II, 791 F.2d at 4.
___________
-11-

11

required

by

the

qualification

ADEA

U.S. 889
757

F.2d

preferably ones

by a

(1988); Muniz Ramirez


_____________
1357,

1358

claiming

an

age

(1st

upon factual

jury."), cert.
_____

denied, 488
______

v. Puerto Rico Fire Servs.,


________________________

Cir.

1985)

("We

must

reject

to have us rule as a matter of law

an entry age of thirty-five for firefighters is a BFOQ.

A particular age limit


is a

employer

validity of a BFOQ turns

appellant's attempt . . .
that

an

is a BFOQ); EEOC v. Boeing Co., 843 F.2d 1213,


____
__________

1216 (1st Cir.) ("The


findings,

of

matter of

for entry into a particular

proof.").

See
___

also Monroe
____ ______

position

v. United Air
___________

Lines, Inc., 736 F.2d 394, 405 (7th Cir. 1984) ("a once-valid
___________
BFOQ

may lose

science.

That

its

justification with

advances in

the age 60 rule may have been

medical

a BFOQ in 1978

does not place it beyond challenge [in 1983]"), cert. denied,


_____ ______
470

U.S.

district

1004 (1985).

Here,

the

court--differ from those

facts--as found

by the

underlying Trabucco I and


______________

II in one crucial
__

respect.

In the instant

presented the district court

case, plaintiffs

with evidence, not available to

the plaintiffs in Trabucco I and II, suggesting that


__________________
not

an

effective

proxy

for

suitability

to serve in a

Landy

al.,

et

determining

an

public safety job.

age is

individual's
See Frank J.
___

Alternatives
to Chronological
Age in
__________________________________________

Determining Standards of Suitability for Public Safety Jobs


_____________________________________________________________
(January

31,

1992).

district court

And,

as

it

made

clear below,

found this evidence persuasive.

the

See Gately,
___ ______

-1212

811

F.

Supp. at

authoritative
currently
identifying

31

("Here .

evidence

. the

presented states

available tests
officers who

are

most

unequivocally that

more effective

may be unable

enforcement and public safety tasks

thorough and

than age

to perform

in

the law

required of them.").

We

see no abuse of discretion in the district court's evaluation


of this evidence.
Second, not

only are the underlying

case different from those

present in Trabucco I and II, but


__________________

the legal landscape has been altered


well.

facts in this

In Trabucco I, which
__________

in critical respects as

was decided prior to the Supreme

Court's most recent pronouncements on the ADEA, see supra pp.


___ _____
6-7,

this court

applied a standard

more lenient

than that

subsequently adopted by the Supreme Court to determine--under


the

first prong

of the test--whether

Trabucco I, we held that an


__________

age was

a BFOQ.

In

employer must show that the

age

qualification is "reasonably related" to the operation of its


business.

Trabucco I, 738
__________

Supreme Court clarified that


the

statute

is

reasonableness."
(explaining

one

F.2d at 37.

A year

"[t]he BFOQ standard adopted in

of

`reasonable

necessity,'

Criswell, 472 U.S. at 419.


________

further

that

later, the

"age

something

more than

The Court

also reiterated that

See id. at 474


___ ___

qualifications

`convenient' or

not

[must]

`reasonable'. .

"the BFOQ exception

be

. .).
`was in

fact meant to be an extremely narrow exception to the general

-1313

prohibition' of age

discrimination contained

in the

Id. at 412 (quoting Dothard, 433 U.S. at 334).


___
_______

ADEA."

Further, in a

case issued the same day as Criswell, the Court elaborated on


________
the evidentiary standard
stressing
factual

that an

which must be

employer

showing" that

age

qualification at issue.

must

met in these

make

is an

cases,

"particularized,

effective

proxy for

the

Johnson, 472 U.S. at 362


_______

In light of Criswell and Johnson, we agree with the


________
_______
district

court's

decided

under

the

more

and

was

based

standard,

conclusion

"particularized,
question.

factual

that

Trabucco I,
___________

lenient
on

"reasonable

less

showing,"

which

than

has

relation"

the

been

was

required

called

into

See Gately, 811 F. Supp. at 30.


___ ______
In sum,

set of facts,

therefore, this case involves

a newly crafted

such, legal issues

set of legal

a different

rules, and,

of first impression for this court.

as
As a

result, stare decisis does not provide a basis for avoiding a


_____ _______
trial on the merits.

2. The 1986 Amendment to the ADEA


2. The 1986 Amendment to the ADEA
__________________________________
Defendants next urge the application of 29 U.S.C.
623(j), a

1986 amendment

to the

forecloses plaintiffs' claims.

ADEA which,

they contend,

We disagree.4

____________________
4. Although the
district court
did not address
the
applicability of this amendment, it is purely a matter of
statutory interpretation, and therefore a question of law
which we can review in the first instance. Cf. In re Erin
___ __________
Food Servs., Inc., 980 F.2d 792, 799 (1st Cir. 1992).
_________________
-1414

The
the language of

task of

statutory interpretation

the statute, and statutory language

accorded its ordinary meaning.


Inc.
____

v. NEMLC Leasing Corp.,


____________________

1992).

begins with
must be

See, e.g., Telematics Int'l,


___ ____ _________________
967 F.2d

703, 706

(1st Cir.

Section 623(j) provides in relevant part:

Firefighters and law enforcement officers attaining


Firefighters and law enforcement officers attaining
hiring or retiring age under State or local law on

hiring or retiring age under State or local law on


March 3, 1983[.]
March 3, 1983[.]
It shall not be unlawful for an employer
which is a State . . . to discharge any
individual because of such individual's
age if such action is taken -(1) with respect to the employment of an
individual . . . as a law enforcement
officer and the individual has attained
the age of . . . retirement in effect
under applicable State or local law on
March 3, 1983, and
(2) pursuant to a bona fide . . .
retirement plan that is not a subterfuge
to evade the purposes of this chapter.5
5
This amendment,
1987, and

expires

local officials a

which

on December

took effect
31, 1993,

on January

gives states

seven-year transition period

1,
and

within which

they can lawfully retire law enforcement officers pursuant to


____________________
5.

The term "law enforcement officer" is defined as:


[A]n employee, the
duties of
whose
position are primarily the investigation,
apprehension, or detention of individuals
suspected
or
convicted of
offenses
against the criminal laws of a State,
including an employee engaged in this
activity
who
is
transferred to
a
supervisory or administrative position. .
. .
-1515

a retirement plan in effect on March 3, 1983.


date that the Supreme
EEOC
____

v.

Wyoming,
_______

prohibition

It was on that

Court decided, in the seminal

460

U.S. 226

against mandatory

(1983),

that

retirement was

case of

the

ADEA's

applicable to

states and local governments.


According to defendants,
to

apply Chapter 412 to plaintiffs because (a) Mass. Gen. L.

ch.

32,

26(3)(a), in
__

retirement at age 50
of

this statute permits them

effect on
______

March 3,

for the members of the

State Police; (b) although Chapter 32,

applicable

1983, mandated
former Division
26(3)(a) was not

to these specific plaintiffs on that date, it was

applicable to

the members

of the

former Division

of State

Police; and (c) the duties formerly assigned the Division


State

Police have

Consolidated
contend that

now been

Department.

assumed by
In effect,

the members

of

of the

therefore, defendants

623(j) allows them to take a group of officers

who, in 1983, were subject to retirement at age 65, give them


a new title in 1992, and, in so doing, subtract 10 years from
their retirement age.
The plain meaning of
does

not

December

support this
31, 1993,

result.

the statutory language simply


Until its

the statute allows

expiration

states to

on

retire an

individual law

enforcement officer

"the individual has attained the


__________

on the

basis of

age of . . .

age if

retirement in
__

effect under applicable state or local law on March 3, 1983 .


______
__________

-1616

. . ."

29 U.S.C.

1983, the
retire

statute applicable to plaintiffs


__ __________

at

"attained

623(j)(1) (emphasis added).

age
the

65.
age

Therefore,
of .

applicable state or

local law

as

On March 3,

required them to

plaintiffs

retirement
on March 3,

have

in effect
1983,"

not
under

623(j)

does not give defendants the refuge they seek.


To

be

sure, the

clarity.

Yet, in

623(j),

defendants

phraseology

their effort
ignore

to read

the

appears four times in the statute.


believe

that the

is not

language compels

word

model of

a loophole into
"individual,"

When read as

which

a whole, we

the conclusion

that the

word "applicable" means "applicable to the individual."6


Even if we

were to construe

the statute as

being

ambiguous,

however,

we

do

not

believe

interpretation is consistent with


explained by

Senator Wendell

primary architects
statute,

of the

Ford of

Kentucky, one of

final compromise version

Congress intended

while at

623(j)

the same

time

discrimination protection will be


than what

was in effect

defendants'

the statute's purpose.

"to provide

those jurisdictions which were forced to


Wyoming],
_______

that

at the

As
the

of this
relief to

respond to [EEOC v.
____

ensuring that

no lesser

provided for these workers


___ _____ _______
time [EEOC v.
____

Wyoming] was
_______

____________________
6. We want to make clear, however, that we do not read
623(j)(1) as allowing those officers who may have elected to
transfer out of the MDC, Registry, or Capitol Police and into
the Division of State Police to claim the retirement age
applicable to them on March 3, 1983.
-1717

decided."

132

Cong. Rec. S16850-02

(daily ed. October

16,

1986) (emphasis added).


The statute, therefore, was enacted to give

states

grace

period of

retirement

plans

seven
for

years during

law

enforcement

exempted from the ADEA's reach.


the statute froze

which

officers

Senator Ford

pre-existing age caps

time certain
would

be

explained that

but did not

exempt

from scrutiny stricter age caps subsequently enacted:


[T]his compromise establishes a floor for
_____
the hiring and retirement requirements
which a State or local government can
set.
The hiring and retirement age
requirements of a plan in effect as of
March
3, 1983 become the floor for
_____
allowable plans. . . . If jurisdictions
have
raised or
eliminated mandatory
retirement ages after this date, they
have the choice of either moving back to
the plan requirements in effect on March
3, 1983, or remaining where they are.
However, States and local governments
would not be able to lower retirement age
_____
requirements below what was [sic] in
effect as of March 3, 1983.
Id. (emphasis added).
___
Thus,
statute nor

its

in our

view,

legislative history

advanced by defendants.
an

prohibition

Commonwealth's
insulate

language of

supports the

the

position

This statute was enacted to provide

exception, limited in

ADEA's

neither the

on

reliance

both purpose and


mandatory
upon

this

duration, to the

retirement.
limited

exception

The
to

from review its adoption of a new retirement policy

which subtracts ten years from the retirement age statutorily


-1818

applicable

to

plaintiffs on

March

3,

1983, is

therefore

misplaced.
In a last ditch attempt, however, to persuade us of
623(j)'s applicability, defendants alternatively argue that
the statute is ambiguous, and, as such, any ambiguity must be
resolved in
position,
2395

the Commonwealth's favor.


defendants cite

(1991), in which the

In support

Gregory v.
_______

Ashcroft, 111
________

Supreme Court held

did

not preempt a

state constitutional

the

retirement of

state

(construing the
that case,

judges at

reasoned that

S. Ct.

that the ADEA

provision mandating

age

70.

"policymaking" exception

the Court

of their

Id.
___

in

at 2408

630(f)).

state judges

In

are among

those "`officers who participate directly in the formulation,


execution,
perform

or

review

functions that

government.'"

Id.
___

the

broad public

go

to the

policy

heart of

[and

thus]

representative

at 2402 (quoting Sugarman v. Dougall, 413


________
_______

U.S. 634, 647 (1973)).


"determine

of

The power of the people of a state to

qualifications

government officials" is, the

of

their

most

important

Court held, fundamental to our

federalist system.
to

Id.
___

Gregory, construe
_______

power

Thus, courts should

federal statutes

unless Congress expresses its

plainest

terms.

Id.
___

at 2401-03.

not, according

to infringe

intent to do
Finding

on that
so in the

the text

of

630(f) ambiguous on the question of whether Congress intended


to

exempt

state

judges,

the

Court

applied

the

"plain

-1919

statement"

rule,

ambiguity, we
intrude on

reasoning

will not

that

"[i]n the

face

attribute to Congress

state governmental

functions .

. .

of

such

an intent
."

to

Id. at
___

2406.
We have recently discussed the limited scope of the
Court's

holding in Gregory.
_______

F.2d 64, 67-70 (1st


the

district

Gregory,
_______

that

Cir. 1993).

court's
the

See
___

decision,

ADEA did

not

EEOC v. Massachusetts, 987


____
_____________
In that case, we
based on
preempt

its
a

reversed

reading

of

state statute

requiring annual
age

seventy.

medical examinations for

We

was "unwavering

its employees

reasoned that, although


in its

at

the Gregory court


_______

desire to protect

state sovereignty

and principles of federalism," it made "unequivocally clear .


. . the narrowness
987 F.2d at
all state

of its holding."

EEOC
____

68, 69 ("At no point did


regulations of

v. Massachusetts,
_____________

the Court suggest that

public employees are

questions at

the heart of state sovereignty.").


We

likewise

Gregory's "plain
_______
action.
text
here.

of

defendants'

statement" rule

As discussed above,

argument

that

bars plaintiffs' cause

we find no

of

ambiguities in the

623(j) which give us pause as to its applicability


See Gregory,
___ _______

"plain statement"
to be

reject

111 S.

Ct.

rule is "a rule

applied where statutory

also Hilton,
____ ______

112

S.

Ct. at

at 2406

of statutory construction

intent is
566

-2020

(explaining that

ambiguous").

(reiterating

the

See
___
same).

Moreover, unlike the statutory exemption at issue in Gregory,


_______
623(j) makes
law

plain Congress' intent that the

enforcement officers

where the

from

ADEA protect

forced retirement

retirement plan at issue is

in

cases

more restrictive than

that in effect on March 3, 1983, or is a "subterfuge to evade


the purposes" of the ADEA.
In any event, we
too

broad a reading.

issue

in

Gregory,
_______

"participate

think defendants give Gregory far


_______

Plaintiffs, unlike the state judges at


are

directly

not
in

"constitutional officers"

the

formulation,

review of broad public

policy . . . ."

at

the

2401-02.

infringement

Thus,
of a

core

Court's

function

representative government"

is not

execution,

who
or

Gregory, 111 S. Ct.


_______
concern

going

with

to the

present here.

federal

"heart

of

For these

reasons, therefore, we decline to apply Gregory in the manner


_______
urged by defendants.
Accordingly,
mistake of

we find

no

abuse of

discretion

or

law in the district court's conclusion that there

was a likelihood that plaintiff would

succeed on the merits.

We turn now to the question of irreparable harm.


B. The Potential for Irreparable Harm
______________________________________
Defendants also contend

that plaintiffs failed

to

make the requisite showing of

irreparable harm, and that the

district court, therefore, abused its discretion in


plaintiffs'

motion

for injunctive

relief.

granting

In so

doing,

-2121

defendants rely principally upon


61

(1974), which they

Because this
detailed

assert forecloses plaintiffs' claims.

court has not yet

analysis

Sampson v. Murray, 415 U.S.


_______
______

of Sampson,
_______

had occasion to engage


and

this case

in a

calls

for a

careful reading of the opinion, we begin with a discussion of


that case.
In
probationary

Sampson,
_______
federal

the

Supreme

employee,

who

Court

held

sought to

that

enjoin

a
her

dismissal from employment pending an administrative appeal to


the

Civil

Service

particularly strong
preliminary

relief.

critical facts are as

Commission
showing of
Sampson,
_______
follows.

("CSC"),

had

irreparable
415 U.S.

to

make

harm to
at

obtain

91-92.

Upon her dismissal

The

from the

defendant

government

agency,

the

plaintiff

filed

an

administrative appeal with the CSC, alleging that the agency,


in dismissing

her, had

failed to follow

regulations.

Subsequently, she

applicable federal

filed an action

in federal

district court seeking reinstatement while her administrative


appeal was pending.

In her complaint, she alleged

that the

dismissal would deprive her of income and cause her to suffer


the embarrassment
that plaintiff
could

of being

wrongfully discharged.

might suffer irreparable harm

consider her

claim,

the district

before the CSC

court granted

injunction, and the Court of Appeals affirmed.


The

Supreme

Court

reversed,

Finding

concluding

the

Id. at 66-67.
___

that

the

harm

-2222

plaintiff alleged she would suffer was

not irreparable.

Id.
___

at 91-92.
The questions presented on appeal were twofold: (1)
whether

the

district

court

had

authority

to

issue

the

injunction,

and

warranted.

The Court stated

two

(2)

questions were

if

so,

whether

early in its

analytically

neatly "bifurcated."

injunction

was

opinion that the

related and

Id. at 68.
___

the one makes little sense

the

could not

be

Accordingly, discussion of

in the absence of any mention

of

the other.
Although

the Court

ultimately answered

the first

question

in the affirmative, it did so only after noting the

multiple

factors which

district

court

issue.
was

weighed against

had authority

to

Those factors included:


seeking

relief

administrative
effect which

remedies,
the grant

a finding

award

that the

the injunction

at

(1) the fact that plaintiff

prior

to

and

the

having

exhausted

concomitant

of the temporary

her

"disruptive

relief .

. .

was

likely to have on the administrative process," id. at 83; (2)


___
the lack of
(3) the

any express statutory basis for

absence of any

injunction;

(4)

case law supporting

"the

well-established

the injunction;
this particular
rule

that

the

Government has traditionally been granted the widest latitude


in

the

(internal

dispatch of
quotations

its own

internal

omitted);

-2323

and

affairs," id.
___
(5)

the

fact

at 83
that

plaintiff

was

probationary

procedural rights under the


82.

Despite

conceded the

these

employee

entitled

considerations,

type of

few

relevant regulations, id. at 81___


however,

the

district court's limited authority

injunction in this

to

case, stating that

Court

to issue an
it was

"not

prepared to conclude that Congress in this class of cases has


wholly
______

divested

the

district

authority to grant temporary

courts

of

their

customary

injunctive relief . . . ."

Id.
___

at 80 (emphasis added).
Importantly,

the

Court

then admonished

district

judges that, although the factors listed above did not render
them

"wholly bereft

of the

authority" to

grant injunctive

relief "in this class of cases," they could not exercise that
authority "without

Id.
___

Indeed,

the Court declared that those factors "are entitled

to great

weight in

regard to those

factors."

the equitable balancing process

grant of injunctive relief."


Before turning to
i.e.,

whether

injunctive

again

reiterated the

which attends the

Id.
___
the dispositive second question,
relief was

close analytical

warranted,

the Court

relationship between

the first and second questions:


Although we do not hold that Congress has
wholly
foreclosed
the
granting
of
preliminary injunctive relief in such
cases, we do believe that [plaintiff] at
the very least must make a showing of
irreparable injury sufficient in kind and
degree to override these factors cutting
against
the general
availability of
-2424

preliminary injunctions
personnel cases.

in

Government

Id. at 84.
___
In analyzing
noted the

the second question, the

Court first

complete absence in the record, with the exception

of certain statements in plaintiff's unverified complaint, of


any

evidence of irreparable harm.

of Appeals had held


the

that, at that stage of

district court did not

actually

irreparably

Id. at 89-91.
___

need to find

harmed,

and

plaintiff's allegations afforded a


The Court disagreed on both counts.

that,

The Court

the proceedings,
that plaintiff was
in

any

event,

basis for such a finding.

First,
irreparable
relief in

the

harm is
federal

Court
a

stated

critical element

court.

Id. at
___

showing

that

injunctive

Second, the

Court

of temporary loss

of

and harm to reputation did not amount to a sufficient


of

irreparable

harm.

standards, according to the


which

of any

88.

explained that plaintiff's allegations


income

unequivocally

can be

recouped

Even

under

traditional

Court, temporary loss of income,

at the

end of

usually constitute irreparable injury."

trial, "does

not

Id. at 90.7
___

____________________
7. This premise had particular force in a Civil Service
case, the Court explained, because of the Back Pay Act, 5
U.S.C.
5596(b)(1), which provides a wrongfully discharged
Civil Service employee with full payment and benefits for the
time period she was out of work. The Court noted that the
Act's
legislative
history
suggested
that
"Congress
contemplated
that it would be the usual, if not the
exclusive, remedy for wrongful discharge." Id. at 90-91.
___
-2525

As
reputation,

for
the

plaintiff's
Court

found

allegations

of

them unpersuasive.

harm

to

It

was

difficult
agency's
her

to

imagine,

according

to

the

Court,

how

the

failure to follow proper procedures in effectuating

discharge could

especially

where

cause harm
any

damage

to

plaintiff's reputation,

could

be

undone

by

an

administrative determination in her favor.


The Court assumed, however, for the purposes of its
opinion, that

plaintiff had

made a satisfactory

financial and reputational hardship,


a showing "falls far short

showing of

and then held that such

of the type of injury which

is a

necessary predicate to the issuance of a temporary injunction


in

this

following

type of

case."

this holding,

Id. at
___
the

Court

91-92.

In a

provided the

caveat:
We recognize that cases may arise in
which the circumstances surrounding an
employee's discharge, together with the
resultant effect on the employee, may so
far depart from the normal situation that
irreparable injury might be found.
Such
extraordinary cases
are difficult to
define in advance of their occurrence.
We have held that an insufficiency of
savings or difficulties in immediately
obtaining
other
employment--external
factors
common
to
most
discharged
employees and not attributable to any
unusual actions relating to the discharge
itself--will not support a finding of
irreparable injury, however severely they
may affect a particular individual. But
we do not wish to be understood as
foreclosing
relief in
the genuinely
extraordinary situation.
Use of the
-2626

footnote
following

court's injunctive power, however, when


discharge of probationary employees is an
issue, should be
reserved for
that
situation rather than employed in the
routine case.
Id.
___

at 92 n.68 (citing Wettre v.


______

Hague, 74 F. Supp. 396 (D.


_____

Mass. 1947), vacated and remanded on other grounds, 168 F.2d


______________________________________
825 (1st Cir. 1948)).
As we read Sampson, it teaches that a federal court
_______
cannot

dispense

affording

with the

injunctive relief; that

does not rise to

requirement in

temporary loss

case, see,
___

of income

in the usual

e.g., Levesque v.
____ ________

Maine, 587
_____

78, 81 (1st Cir. 1978) (citing Sampson and holding that


_______

plaintiff's

"possible loss

irreparable harm);
agency

harm

the level of irreparable harm

employee discharge
F.2d

irreparable

and that,

of earnings"

did not

before enjoining

from dismissing a Civil Service

irreparable

harm

a government

employee who has not

exhausted her administrative remedies, a district


find that the facts

amount to

court must

underlying the employee's allegations of


are

"genuinely

extraordinary."

E.g.,
____

Soldevila v.
_________
(1st Cir.

Secretary of Agriculture, 512


________________________

1975).

Sampson
_______

also

stands

F.2d 427, 429-30


for

the

general

principle that irreparable harm is subject to a sliding scale


analysis, such that the
of

plaintiff

showing of irreparable harm required

increases

including

the failure

which cut

against a

to

in

the

presence

of

exhaust administrative

factors,
remedies,

court's traditional authority

to issue

-2727

equitable

relief.

(1st Cir.

1984)

See Chilcott
___ ________
("In view

against interfering
forces, we will apply
applications

for

with the

of

v. Orr, 747
___
the strong

F.2d 29, 31-32


judicial

internal affairs of

the more stringent test of


preliminary

injunctions

policy

the armed
Sampson to
_______

by

military

personnel."); Bailey v. Delta Air Lines, Inc., 722


______
_____________________

F.2d 942,

944 (1st Cir. 1983) ("Here, as in Sampson, we think that


_______

the

procedural requirements of Title


the

equitable

balancing

VII should be considered in

process

preliminary

[and

relief

that] an

outside

person

seeking

scheme

for alleged Title VII violations would have to make a

showing of

irreparable injury sufficient in

to justify

the disruption

of the

the

aggrieved
statutory

kind and degree

prescribed administrative

process . . . .").
In
courts

interpreting

have assumed that

Sampson, however,
_______

numerous other

the "genuinely extraordinary" test

for irreparable harm applies in all employee discharge cases,


whatever the asserted basis

for relief.

See, e.g.,
___ ____

Stewart
_______

v. United States Immigration & Naturalization Serv., 762 F.2d


________________________________________________
193,
Corp.,
_____

199-200
666

E.E.O.C. v.
________
1987)

(2d Cir.
F.2d 1037,

1985);

1040-44 (6th

Cosmair, Inc.,
_____________

(holding

that

E.E.O.C.
________

821

irreparable

v. Anchor Hocking
_______________

Cir.

F.2d 1085,
harm

is

1981).

But see
___ ___

1090 (5th

Cir.

presumed

where

discharged employee has exhausted her administrative remedies


and proceeds under a civil rights statute).

-2828

Such a conclusion

is predicated,

in our

opinion,

upon an overly broad, and faulty, interpretation of Sampson's


_______
holding.8
opinion,

As

the

Court itself

the questions

of

made

clear early

whether the

in

its

district court

had

authority to issue the injunction and whether the irreparable


harm

finding

was

proper were

Sampson, 415 U.S. at 68.


_______

not

analytically

distinct.

The Court reiterated throughout the

opinion that the district court

should not have weighed

irreparable harm allegations without taking into

the

account the

multiple factors rendering tenuous its authority to reinstate


a discharged Civil Service employee pending the exhaustion of
the

administrative appeal process.

leaving the

question of the district

Court explained

that the plaintiff

irreparable injury sufficient in


__________
these factors . . . ."
_____ _______
the

See supra p. 23.


___ _____

Court's

court's authority, the


"must make a

that

showing of

kind and degree to override


__ ________

Id. at 84 (emphasis added).


___

conclusion

Before

an

extraordinary

As such,
showing of

____________________
8.

In

those

heightened

cases

standard,

in
we

which

we

have

have relied

applied

upon

Sampson's
_______
the plaintiff's

failure

to exhaust available

administrative remedies.

See
___
sought

Chilcott, 747
F.2d at 31-33 (plaintiff
airman
________
injunction without seeking relief before appropriate Air
Force administrative boards); Bailey, 722 F.2d at 943-45
______
(plaintiff sought injunction prior to exhausting Title VII
remedies); Soldevila, 512 F.2d at 429-30 (plaintiff civil
_________
servant sought injunction prior to exhausting CSC appeals
process).
Thus,
the precise
question of
Sampson's
_______
applicability where
a plaintiff has
no administrative
remedies to exhaust is one of first impression in this
circuit.
-2929

irreparable harm

was required to override

those factors was

hardly surprising.
Needless to

say, those factors are

all employee discharge cases.


our

opinion,

to

require

discharged employees'
they

applied.

Rather,

the

Court

plaintiff's

a district

in

Sampson
_______

repeatedly

nature of its holding.


the

And, it makes little sense, in

requests for

Nothing

not present in

court

to

injunctive relief
suggests that

referred to

the

For instance, the Court

showing "falls

far

weigh

short of

all
as if

result.

fact-bound
stated that
the

type of

injury

which is a necessary

temporary

predicate to the

injunction in this type


__ ____ ____

And, in the footnote

of case."
__ ____

issuance of a
Id. at 91-92.
___

immediately following this holding, the

Court stated that "[u]se of a court's injunctive power . . .,


when discharge of probationary

employees is an issue, should

be reserved for [the genuinely extraordinary] situation . . .


."9
The case before us
significant respects:

differs from Sampson in several


_______

(1) plaintiffs are not seeking interim

injunctive relief pending the completion of an administrative

____________________
9.

As support for this holding,

the Court cited Wettre, 74


______
F. Supp. at 396, which, like the facts in Sampson, involved a
_______
discharged civil servant who sought a temporary injunction
pending the completion of the administrative appeals process.
The Wettre
court
presciently held
that,
under
the
______
circumstances, the complainants' allegations of loss of pay
and prestige did not amount to irreparable harm. Wettre, 74
______
F. Supp. at 400-01.
-3030

appeals process; (2)

the district

court unquestionably

had

the authority to issue the requested equitable relief, see 29


___
U.S.C.

626(b),

irreparable

harm

reputational
that they

(c);
go

(3)

plaintiffs'

beyond

injury; and

temporary

allegations
loss

(4) plaintiffs'

are "entitled to additional

of

are

pay

of
or

not claiming

procedural safeguards

in effectuating the discharge."

See Sampson, 415 U.S. at 91.


___ _______

Instead, they are arguing that

their statutorily-based civil

rights will
Thus,

be violated

all the

authority

factors which

to issue

factors

which

consideration

in the

court

in weighing
not

was

so tenuous
required

here.

therefore, that these plaintiffs

discharge.

district court's
in Sampson-_______

to

the plaintiff's

present

standard required of the

of their

rendered the

the injunction

the

allegations--are

event

take

into

irreparable harm

We

do

not

think,

must meet the same exacting

plaintiff in Sampson, although they


_______

clearly must establish irreparable harm, and point to factors


sufficient

to

overcome

"the traditional

unwillingness

of

courts of equity to enforce contracts for personal services."


Id. at 83.
___
The district
made

court held below that

sufficient, although

irreparable harm.

See Gately,
___ ______

not

plaintiffs had

overwhelming,

811 F. Supp. at

showing of
27-28.

The

Court rested its holding on two factual findings.


Court

found that

reinstatement

would not

be an

First, the
available

-3131

remedy for those plaintiffs who, at the close of a successful


trial
age,

on the merits,

would have reached

the new retirement

and, as a result of their earlier discharge, would lose

their twilight years of employment.

Id. at 27.
___

Second, the

Court was persuaded by plaintiffs' argument that, "time spent


away from the force [would] impair the plaintiffs' ability to
stay in

touch with new developments,

time of transition,
that of the

thus impairing

Like
question

against

the

injunction

their effectiveness

State Police as a whole[,] if

ultimately reinstated."10

harm

especially during this

is the

court, we view

close call.

district

and when they are

Id. at 27.
___

the district
as a

and

court's

wide latitude

the irreparable

The sole
authority

factor cutting
to

issue

traditionally granted

this
the

government

in dispatching

Sampson, 415 U.S. at


_______
teachings,

the

83.

district

its

own internal

affairs.

And, in accordance
court

took

See
___

with Sampson's
_______

this

factor

into

consideration before granting the injunction.

Gately, 811 F.
______

Supp.

into

at

28

(balancing

governmental affairs
with

the

harm

concluding

the

that would

to plaintiffs

that

any

intrusion

harm

result from
in

to

the

the injunction

absence

defendants

internal

was

of it,

and

minimal

by

____________________
10. We recognize that the consolidation process had an
anticipated completion date of June 30, 1993. On the basis
of this record, however, we have no way of determining
whether the process has, in fact, been completed.
-3232

comparison).
equities

and

Ultimately, the
determined

that,

plaintiffs' high probability of

district court
particularly

balanced the
in

light

of

succeeding on the merits, an

injunction was warranted.


Mindful of the broad discretion afforded a district

court

in weighing

irreparable harm,

F.2d at 915 (quoting


(D.C. Cir.

1987)),

see K-Mart Corp., 875


___ _____________

Wagner v. Taylor, 836 F.2d


______
______
we cannot

say that

566, 575-76

the district

court

erred in concluding that, under the circumstances, plaintiffs


made a

sufficient showing of irreparable harm.

Accordingly,

we affirm the district court's ruling.


IV.
IV.
___
Conclusion
Conclusion
__________
In
district

court's

unpersuasive.
decision.

sum,

we find

the

issuance

of

Accordingly, we

Affirmed.
Affirmed.
_________

challenges
the

preliminary

affirm the

Costs to appellees.
Costs to appellees.
___________________

-3333

leveled at

the

injunction

district court's

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