Gately v. Comm. of Mass.

United States Court of Appeals
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 Scott
Harshbarger, Attorney General and Thomas A. Barnico, Assistant
Attorney General, were on brief for appellants.
James B. Conroy, with whom Katherine L. Parks and Donnelly,
Conroy & Gelhaar, were on brief for appellees.
Paul D. Ramshaw, Donald R. Livingston, General Counsel, Gwendolyn
Young Reams, Associate General Counsel, and Vincent J. Blackwood,
Assistant General Counsel, on brief for the U.S. Equal Employment
Opportunity Commission, amicus curiae.
August 18, 1993
STAHL, Circuit Judge. This is an appeal from a
preliminary injunction issued pursuant to the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. 621 et
seq., prohibiting defendants-appellants Commonwealth of
Massachusetts, Thomas Rapone, Secretary of Public Safety, and
Francis McCauley, Executive Director of the Massachusetts
Retirement Board, from enforcing the statutorily mandated
retirement of members of the Department of State Police aged
55 or older. For the reasons set forth below, we affirm.
I.
Factual Background
In December 1991, the Massachusetts legislature
enacted 1991 Mass. Acts ch. 412 (effective July 1, 1992),
which called for, inter alia, the consolidation of the
Commonwealth's largest police force, the Division of State
Police, with its three smaller forces, the Metropolitan
District Commission Police ("MDC"), the Registry of Motor
Vehicles Law Enforcement Division ("Registry"), and the
Capitol Police. The newly consolidated police force is
referred to as the "Department of State Police."1
Prior to the consolidation, officers of the MDC,
Registry, and Capitol Police were subject to a mandatory
retirement age of 65, and officers of the Division of State
1. For purposes of clarity, however, throughout this opinion
we refer to the new Department of State Police as the
"Consolidated Department."
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Police were subject to a mandatory retirement age of 50.
Section 122 of Chapter 412 repealed those mandatory
retirement ages and declared that all members of the
Consolidated 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 MDC and Registry divisions,2 commenced this
action seeking injunctive relief on the grounds that the new
mandatory retirement age violated the ADEA. See 29 U.S.C.
623(a)(1). On December 30, 1992, after a hearing that same
date, the district court issued an order granting plaintiffs'
motion for preliminary injunctive relief. See Gately v.
Massachusetts, 811 F. Supp. 26 (D. Mass. 1992). This appeal
followed.
II.
The Preliminary Injunction Standard
In deciding whether to grant a preliminary
injunction, a district court must weigh the following four
factors: (1) the likelihood 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 reached the
age of 55 or older on December 31, 1992.
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the hardship to the movant if interim relief is withheld,"
Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st
Cir. 1991); and (4) the effect 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 the merits."
Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993). See
also United Steelworkers of America v. Textron, Inc., 836
F.2d 6, 7 (1st Cir. 1987) ("The heart of the matter is
whether ``the harm caused plaintiff without the injunction, in
light of the plaintiff's likelihood of eventual success on
the merits, outweighs the harm the injunction will cause
defendants.'") (quoting Vargas-Figueroa v. Saldana, 826 F.2d
160, 162 (1st Cir. 1987) (emphasis in original)).
A party appealing a grant of a preliminary
injunction bears the heavy burden of showing that the
district court either committed a mistake of law or abused
its discretion. Guilbert, 934 F.2d at 5. See also K-Mart
Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 915 (1st Cir.
1989) ("Decisions as to granting or withholding injunctive
redress can best be made by trial courts steeped in the
nuances of a case and mindful of the texture and scent of the
evidence."). Without such a showing, we will not disturb the
ruling below. Id.-4-
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Here, the district court weighed the four criteria
recited above and held that the scales tipped in favor of an
injunction. See Gately, 811 F. Supp. at 27-31. Although the
court admitted that the evidence relative to the second,
third, and fourth criteria was not markedly in either party's
favor, it found that plaintiffs would likely succeed on the
merits. Id. at 31. Accordingly, it issued the requested
preliminary injunction.
On appeal, defendants generally challenge the
court's application of all four criteria. Having reviewed
the district court's opinion, however, it is clear to us that
appellate elaboration is warranted only as to the first and
second criteria. We therefore adopt the 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 the court correctly presaged (a) plaintiffs'
likelihood of success at trial, and (b) the potential for
irreparable harm to plaintiffs in the absence of an
injunction.
III.
Discussion
A. Plaintiffs' Likelihood of Success
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
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of such individual's age . . . ." 29 U.S.C. 623(a)(1).
The ADEA contains an "escape clause," however, which allows
employers some limited flexibility to take age into
consideration in business decisions. Commonly referred to as
the "BFOQ exception," the clause allows employers "to take
any action otherwise prohibited under [the statute] . . .
where age is a bona fide occupational qualification
reasonably necessary to the normal operation of a particular
business . . . ." 29 U.S.C. 623(f)(1). As noted by the
Supreme Court, this clause is "``an extremely narrow exception
to the general prohibition' of age discrimination contained
in the ADEA." Western Air Lines, Inc. v. Criswell, 472 U.S.
400, 412 (1985) (quoting Dothard v. Rawlinson, 433 U.S. 321,
334 (1977)).
In Criswell, the Court enunciated a two-pronged
test for courts to use in discerning the width of the
"extremely narrow" BFOQ exception. Id. at 412-20 (adopting
the two-part test outlined in Usery v. Tamiami Trail Tours,
Inc., 531 F.2d 224, 235-36 (5th Cir. 1976)). Under the first
prong, the employer must be able to show that the
qualification at issue is "reasonably necessary to the
essence of [its] business . . . ." 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
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employer justify its use of age as a proxy for that
qualification. Criswell, 472 U.S. at 414; City of East
Providence, 798 F.2d at 528. Justification can be
accomplished in one of two ways. The employer can show that
it "``had reasonable cause to believe, that is, a factual
basis for believing, that all or substantially all persons
over the age qualification[] would be unable to perform . . .
the duties of the job involved.'" Criswell, 472 U.S. at 414(quoting Usery, 531 F.2d at 235) (emphasis added).
Alternatively, the employer can establish that "it is
``impossible or highly impractical' to deal with the older
employees on an individualized basis." Criswell, 472 U.S. at
414 (quoting Usery, 531 F.2d at 235).
As support for their contention that the district
court erred in determining plaintiffs' likelihood of success
under the ADEA, defendants make the following two arguments:
(1) controlling precedent in this circuit forecloses
plaintiffs' claims, see EEOC v. Trabucco, 791 F.2d 1 (1st
Cir. 1986) ("Trabucco II"); Mahoney v. Trabucco, 738 F.2d 35(1st Cir.), cert. denied, 469 U.S. 1036 (1984) ("Trabucco
I"); and (2) plaintiffs' claims are barred by a 1986
amendment to the ADEA. See 29 U.S.C. 623(j). We address
each argument in turn.
1. Trabucco I and II
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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 the Massachusetts State Police's
statutorily mandated retirement age of 50 was a BFOQ, see
Trabucco I, 738 F.2d at 37-42, and a case in which we
subsequently reaffirmed Trabucco I on stare decisis
principles. See Trabucco II, 791 F.2d at 2-5. 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 the same court
or other courts owing obedience to the decision. "[U]nlike
the doctrines of res judicata and collateral estoppel, [the
doctrine of stare decisis] is not narrowly confined to
parties and privies, and it does not draw its force from the
policy protecting final judgments." Trabucco II, 791 F.2d at
2. "Rather, when its application is deemed appropriate, the
doctrine is broad in impact, reaching strangers to the
earlier litigation." Id.The essential principles of stare decisis may be
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
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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 promotes "stability,
predictability, and respect for judicial authority." Hilton
v. South Carolina Pub. Rys. Comm'n, 112 S. Ct. 560, 564
(1991).
As stare decisis is concerned with rules of law,
however, a decision dependent upon its underlying facts is
not necessarily controlling precedent as to a subsequent
analysis of the same question on different facts and a
different record. Complaint of Tug Helen B. Moran, Inc., 607
F.2d 1029, 1031 (2d Cir. 1979). Cf. Gavin v. Chernoff 546
F.2d 457, 458-59 (1st Cir. 1976) (invoking stare decisis to
follow earlier opinion where "appellants' essential arguments
remain much the same as those considered and [previously]
rejected[, and] [t]here are no compelling new reasons and no
change 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.
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ch. 32, 26(3)(a), which mandated retirement at age 50 for
the Division of State Police, while a valid BFOQ for the
Division generally, violated the ADEA as applied to the
plaintiff, a state trooper who had a desk job. We reversed,
holding that the age qualification applied to all members of
the state police, regardless of whether they had field or
desk jobs. Trabucco I, 738 F.2d at 39 (phrase "``occupational
qualification' means more of a recognized and discrete
vocation rather than a desk assignment for an employee
subject to all the obligations and benefits of a quasi-
military organization"). Our decision left intact, however,
the district court's finding that age 50 was a BFOQ for the
Division of State Police. Id. at 37.
After the district court ruling, but before our
reversal, the EEOC brought an action challenging the very
same mandatory retirement statute. The district court,
relying upon Trabucco I, held that the action was foreclosed
by principles of stare decisis. On appeal, the EEOC
contended that, because plaintiff Mahoney had offered no
evidence at trial to rebut the Commonwealth's BFOQ evidence,
the decision lacked precedential value. Trabucco II, 791
F.2d at 4. No facts had changed and the EEOC argued no new
law. It simply contended that it would offer the expert
testimony that had not been presented by plaintiff Mahoney.
Although recognizing the "non-absoluteness of stare decisis,"
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id. at 4, we analyzed the proceedings below and found that
Mahoney raised and argued, and the district 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 his litigation, even if not as
thoroughly as the EEOC would have desired."). As a result,
we rejected the EEOC's attempt to reopen 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 instant action. First, the question of
whether a mandatory retirement age is a BFOQ is a fact-
intensive inquiry. See Criswell, 472 U.S. at 417-23(discussing the fact-based nature of the BFOQ defense);
Johnson v. Mayor & City Council of Baltimore, 472 U.S. 353,
362 (1985) (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.
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required by the ADEA of an employer claiming an age
qualification is a BFOQ); EEOC v. Boeing Co., 843 F.2d 1213,
1216 (1st Cir.) ("The validity of a BFOQ turns upon factual
findings, preferably ones by a jury."), cert. denied, 488
U.S. 889 (1988); Muniz Ramirez v. Puerto Rico Fire Servs.,
757 F.2d 1357, 1358 (1st Cir. 1985) ("We must reject
appellant's attempt . . . to have us rule as a matter of law
that an entry age of thirty-five for firefighters is a BFOQ.
A particular age limit for entry into a particular position
is a matter of proof."). See also Monroe v. United Air
Lines, Inc., 736 F.2d 394, 405 (7th Cir. 1984) ("a once-valid
BFOQ may lose its justification with advances in medical
science. That the age 60 rule may have been a BFOQ in 1978
does not place it beyond challenge [in 1983]"), cert. denied,
470 U.S. 1004 (1985). Here, the facts--as found by the
district court--differ from those underlying Trabucco I and
II in one crucial respect. In the instant case, plaintiffs
presented the district court with evidence, not available to
the plaintiffs in Trabucco I and II, suggesting that age is
not an effective proxy for determining an individual's
suitability to serve in a public safety job. See Frank J.
Landy et al., Alternatives to Chronological Age in
Determining Standards of Suitability for Public Safety Jobs
(January 31, 1992). And, as it made clear below, the
district court found this evidence persuasive. See Gately,
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811 F. Supp. at 31 ("Here . . . the most thorough and
authoritative evidence presented states unequivocally that
currently available tests are more effective than age in
identifying officers who may be unable to perform the law
enforcement and public safety tasks required of them."). We
see no abuse of discretion in the district court's evaluation
of this evidence.
Second, not only are the underlying facts in this
case different from those present in Trabucco I and II, but
the legal landscape has been altered in critical respects as
well. In Trabucco I, which 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 age was a BFOQ. In
Trabucco I, we held that an employer must show that the age
qualification is "reasonably related" to the operation of its
business. Trabucco I, 738 F.2d at 37. A year later, the
Supreme Court clarified that "[t]he BFOQ standard adopted in
the statute is one of ``reasonable necessity,' not
reasonableness." Criswell, 472 U.S. at 419. See id. at 474(explaining further that "age qualifications [must] be
something more than ``convenient' or ``reasonable'. . . .).
The Court also reiterated that "the BFOQ exception ``was in
fact meant to be an extremely narrow exception to the general
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prohibition' of age discrimination contained in the ADEA."
Id. at 412 (quoting Dothard, 433 U.S. at 334). Further, in a
case issued the same day as Criswell, the Court elaborated on
the evidentiary standard which must be met in these cases,
stressing that an employer must make a "particularized,
factual showing" that age is an effective proxy for the
qualification at issue. Johnson, 472 U.S. at 362
In light of Criswell and Johnson, we agree with the
district court's conclusion that Trabucco I, which was
decided under the more lenient "reasonable relation"
standard, and was based on less than the required
"particularized, factual showing," has been called into
question. See Gately, 811 F. Supp. at 30.
In sum, therefore, this case involves a different
set of facts, a newly crafted set of legal rules, and, as
such, legal issues of first impression for this court. As a
result, stare decisis does not provide a basis for avoiding a
trial on the merits.
2. The 1986 Amendment to the ADEA
Defendants next urge the application of 29 U.S.C.
623(j), a 1986 amendment to the ADEA which, they contend,
forecloses plaintiffs' claims. 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).
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The task of statutory interpretation begins with
the language of the statute, and statutory language must be
accorded its ordinary meaning. See, e.g., Telematics Int'l,
Inc. v. NEMLC Leasing Corp., 967 F.2d 703, 706 (1st Cir.
1992). Section 623(j) provides in relevant part:
Firefighters and law enforcement officers attaining
hiring or retiring age under State or local law on
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, which took effect on January 1,
1987, and expires on December 31, 1993, gives states and
local officials a seven-year transition period 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. .
. .
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a retirement plan in effect on March 3, 1983. It was on that
date that the Supreme Court decided, in the seminal case of
EEOC v. Wyoming, 460 U.S. 226 (1983), that the ADEA's
prohibition against mandatory retirement was applicable to
states and local governments.
According to defendants, this statute permits them
to apply Chapter 412 to plaintiffs because (a) Mass. Gen. L.
ch. 32, 26(3)(a), in effect on March 3, 1983, mandated
retirement at age 50 for the members of the former Division
of State Police; (b) although Chapter 32, 26(3)(a) was not
applicable 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 of
State Police have now been assumed by the members of the
Consolidated Department. In effect, therefore, defendants
contend that 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 the statutory language simply
does not support this result. Until its expiration on
December 31, 1993, the statute allows states to retire an
individual law enforcement officer on the basis of age if
"the individual has attained the age of . . . retirement in
effect under applicable state or local law on March 3, 1983 .
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. . ." 29 U.S.C. 623(j)(1) (emphasis added). On March 3,
1983, the statute applicable to plaintiffs required them to
retire at age 65. Therefore, as plaintiffs have not
"attained the age of . . . retirement in effect under
applicable state or local law on March 3, 1983," 623(j)
does not give defendants the refuge they seek.
To be sure, the phraseology is not a model of
clarity. Yet, in their effort to read a loophole into
623(j), defendants ignore the word "individual," which
appears four times in the statute. When read as a whole, we
believe that the language compels 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 that defendants'
interpretation is consistent with the statute's purpose. As
explained by Senator Wendell Ford of Kentucky, one of the
primary architects of the final compromise version of this
statute, Congress intended 623(j) "to provide relief to
those jurisdictions which were forced to respond to [EEOC v.
Wyoming], while at the same time ensuring that no lesser
discrimination protection will be provided for these workers
than what was in effect at the 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.
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decided." 132 Cong. Rec. S16850-02 (daily ed. October 16,
1986) (emphasis added).
The statute, therefore, was enacted to give states
a grace period of seven years during which time certain
retirement plans for law enforcement officers would be
exempted from the ADEA's reach. Senator Ford explained that
the statute froze pre-existing age caps 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, in our view, neither the language of the
statute nor its legislative history supports the position
advanced by defendants. This statute was enacted to provide
an exception, limited in both purpose and duration, to the
ADEA's prohibition on mandatory retirement. The
Commonwealth's reliance upon this limited exception to
insulate from review its adoption of a new retirement policy
which subtracts ten years from the retirement age statutorily
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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 the Commonwealth's favor. In support of their
position, defendants cite Gregory v. Ashcroft, 111 S. Ct.
2395 (1991), in which the Supreme Court held that the ADEA
did not preempt a state constitutional provision mandating
the retirement of state judges at age 70. Id. at 2408(construing the "policymaking" exception in 630(f)). In
that case, the Court reasoned that state judges are among
those "``officers who participate directly in the formulation,
execution, or review of broad public policy [and thus]
perform functions that go to the heart of representative
government.'" Id. at 2402 (quoting Sugarman v. Dougall, 413
U.S. 634, 647 (1973)). The power of the people of a state to
"determine the qualifications of their most important
government officials" is, the Court held, fundamental to our
federalist system. Id. Thus, courts should not, according
to Gregory, construe federal statutes to infringe on that
power unless Congress expresses its intent to do so in the
plainest terms. Id. at 2401-03. Finding the text of
630(f) ambiguous on the question of whether Congress intended
to exempt state judges, the Court applied the "plain
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statement" rule, reasoning that "[i]n the face of such
ambiguity, we will not attribute to Congress an intent to
intrude on state governmental functions . . . ." Id. at
2406.
We have recently discussed the limited scope of the
Court's holding in Gregory. See EEOC v. Massachusetts, 987
F.2d 64, 67-70 (1st Cir. 1993). In that case, we reversed
the district court's decision, based on its reading of
Gregory, that the ADEA did not preempt a state statute
requiring annual medical examinations for its employees at
age seventy. We reasoned that, although the Gregory court
was "unwavering in its desire to protect state sovereignty
and principles of federalism," it made "unequivocally clear .
. . the narrowness of its holding." EEOC v. Massachusetts,
987 F.2d at 68, 69 ("At no point did the Court suggest that
all state regulations of public employees are questions at
the heart of state sovereignty.").
We likewise reject defendants' argument that
Gregory's "plain statement" rule bars plaintiffs' cause of
action. As discussed above, we find no ambiguities in the
text of 623(j) which give us pause as to its applicability
here. See Gregory, 111 S. Ct. at 2406 (explaining that
"plain statement" rule is "a rule of statutory construction
to be applied where statutory intent is ambiguous"). See
also Hilton, 112 S. Ct. at 566 (reiterating the same).
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Moreover, unlike the statutory exemption at issue in Gregory,
623(j) makes plain Congress' intent that the ADEA protect
law enforcement officers from forced retirement in cases
where the retirement plan at issue is 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 think defendants give Gregory far
too broad a reading. Plaintiffs, unlike the state judges at
issue in Gregory, are not "constitutional officers" who
"participate directly in the formulation, execution, or
review of broad public policy . . . ." Gregory, 111 S. Ct.
at 2401-02. Thus, the Court's concern with federal
infringement of a core function going to the "heart of
representative government" is not present here. For these
reasons, therefore, we decline to apply Gregory in the manner
urged by defendants.
Accordingly, we find no abuse of discretion or
mistake of 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 granting
plaintiffs' motion for injunctive relief. In so doing,
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defendants rely principally upon Sampson v. Murray, 415 U.S.
61 (1974), which they assert forecloses plaintiffs' claims.
Because this court has not yet had occasion to engage in a
detailed analysis of Sampson, and this case calls for a
careful reading of the opinion, we begin with a discussion of
that case.
In Sampson, the Supreme Court held that a
probationary federal employee, who sought to enjoin her
dismissal from employment pending an administrative appeal to
the Civil Service Commission ("CSC"), had to make a
particularly strong showing of irreparable harm to obtain
preliminary relief. Sampson, 415 U.S. at 91-92. The
critical facts are as follows. Upon her dismissal 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 applicable federal
regulations. Subsequently, she 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 of being wrongfully discharged. Finding
that plaintiff might suffer irreparable harm before the CSC
could consider her claim, the district court granted the
injunction, and the Court of Appeals affirmed. Id. at 66-67.
The Supreme Court reversed, concluding that the harm
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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 (2) if so, whether the injunction was
warranted. The Court stated early in its opinion that the
two questions were analytically related and could not be
neatly "bifurcated." Id. at 68. Accordingly, discussion of
the one makes little sense 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 weighed against a finding that the
district court had authority to award the injunction at
issue. Those factors included: (1) the fact that plaintiff
was seeking relief prior to having exhausted her
administrative remedies, and the concomitant "disruptive
effect which the grant of the temporary relief . . . was
likely to have on the administrative process," id. at 83; (2)
the lack of any express statutory basis for the injunction;
(3) the absence of any case law supporting this particular
injunction; (4) "the well-established rule that the
Government has traditionally been granted the widest latitude
in the dispatch of its own internal affairs," id. at 83(internal quotations omitted); and (5) the fact that
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plaintiff was a probationary employee entitled to few
procedural rights under the relevant regulations, id. at 81-
82. Despite these considerations, however, the Court
conceded the district court's limited authority to issue an
injunction in this type of case, stating that it was "not
prepared to conclude that Congress in this class of cases has
wholly divested the district courts of their customary
authority to grant temporary 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 regard to those factors." Id. Indeed,
the Court declared that those factors "are entitled to great
weight in the equitable balancing process which attends the
grant of injunctive relief." Id.Before turning to the dispositive second question,
i.e., whether injunctive relief was warranted, the Court
again reiterated the close analytical 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
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preliminary injunctions in Government
personnel cases.
Id. at 84.
In analyzing the second question, the Court first
noted the complete absence in the record, with the exception
of certain statements in plaintiff's unverified complaint, of
any evidence of irreparable harm. Id. at 89-91. The Court
of Appeals had held that, at that stage of the proceedings,
the district court did not need to find that plaintiff was
actually irreparably harmed, and that, in any event,
plaintiff's allegations afforded a basis for such a finding.
The Court disagreed on both counts.
First, the Court stated unequivocally that
irreparable harm is a critical element of any injunctive
relief in federal court. Id. at 88. Second, the Court
explained that plaintiff's allegations of temporary loss of
income and harm to reputation did not amount to a sufficient
showing of irreparable harm. Even under traditional
standards, according to the Court, temporary loss of income,
which can be recouped at the end of a trial, "does not
usually constitute irreparable injury." 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.
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25
As for plaintiff's allegations of harm to
reputation, the Court found them unpersuasive. It was
difficult to imagine, according to the Court, how the
agency's failure to follow proper procedures in effectuating
her discharge could cause harm to plaintiff's reputation,
especially where any damage 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 showing of
financial and reputational hardship, and then held that such
a showing "falls far short of the type of injury which is a
necessary predicate to the issuance of a temporary injunction
in this type of case." Id. at 91-92. In a footnote
following this holding, the Court provided the following
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
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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 with the irreparable harm requirement in
affording injunctive relief; that temporary loss of income
does not rise to the level of irreparable harm in the usual
employee discharge case, see, e.g., Levesque v. Maine, 587
F.2d 78, 81 (1st Cir. 1978) (citing Sampson and holding that
plaintiff's "possible loss of earnings" did not amount to
irreparable harm); and that, before enjoining a government
agency from dismissing a Civil Service employee who has not
exhausted her administrative remedies, a district court must
find that the facts underlying the employee's allegations of
irreparable harm are "genuinely extraordinary." E.g.,
Soldevila v. Secretary of Agriculture, 512 F.2d 427, 429-30
(1st Cir. 1975). Sampson also stands for the general
principle that irreparable harm is subject to a sliding scale
analysis, such that the showing of irreparable harm required
of a plaintiff increases in the presence of factors,
including the failure to exhaust administrative remedies,
which cut against a court's traditional authority to issue
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equitable relief. See Chilcott v. Orr, 747 F.2d 29, 31-32
(1st Cir. 1984) ("In view of the strong judicial policy
against interfering with the internal affairs of the armed
forces, we will apply the more stringent test of Sampson to
applications for preliminary injunctions 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 VII should be considered in
the equitable balancing process [and that] an aggrieved
person seeking preliminary relief outside the statutory
scheme for alleged Title VII violations would have to make a
showing of irreparable injury sufficient in kind and degree
to justify the disruption of the prescribed administrative
process . . . .").
In interpreting Sampson, however, numerous other
courts have assumed that 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, 199-200 (2d Cir. 1985); E.E.O.C. v. Anchor Hocking
Corp., 666 F.2d 1037, 1040-44 (6th Cir. 1981). But see
E.E.O.C. v. Cosmair, Inc., 821 F.2d 1085, 1090 (5th Cir.
1987) (holding that irreparable harm is presumed where
discharged employee has exhausted her administrative remedies
and proceeds under a civil rights statute).
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Such a conclusion is predicated, in our opinion,
upon an overly broad, and faulty, interpretation of Sampson's
holding.8 As the Court itself made clear early in its
opinion, the questions of whether the district court had
authority to issue the injunction and whether the irreparable
harm finding was proper were not analytically distinct.
Sampson, 415 U.S. at 68. The Court reiterated throughout the
opinion that the district court should not have weighed the
irreparable harm allegations without taking into account the
multiple factors rendering tenuous its authority to reinstate
a discharged Civil Service employee pending the exhaustion of
the administrative appeal process. See supra p. 23. Before
leaving the question of the district court's authority, the
Court explained that the plaintiff "must make a showing of
irreparable injury sufficient in kind and degree to override
these factors . . . ." Id. at 84 (emphasis added). As such,
the Court's conclusion that an extraordinary showing of
8. In those cases in which we have applied Sampson's
heightened standard, we have relied upon the plaintiff's
failure to exhaust available administrative remedies. See
Chilcott, 747 F.2d at 31-33 (plaintiff airman sought
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.
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29
irreparable harm was required to override those factors was
hardly surprising.
Needless to say, those factors are not present in
all employee discharge cases. And, it makes little sense, in
our opinion, to require a district court to weigh all
discharged employees' requests for injunctive relief as if
they applied. Nothing in Sampson suggests that result.
Rather, the Court repeatedly referred to the fact-bound
nature of its holding. For instance, the Court stated that
the plaintiff's showing "falls far short of the type of
injury which is a necessary predicate to the issuance of a
temporary injunction in this type of case." Id. at 91-92.
And, in the footnote 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 differs from Sampson in several
significant respects: (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.
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appeals process; (2) the district court unquestionably had
the authority to issue the requested equitable relief, see 29
U.S.C. 626(b), (c); (3) plaintiffs' allegations of
irreparable harm go beyond temporary loss of pay or
reputational injury; and (4) plaintiffs' are not claiming
that they are "entitled to additional procedural safeguards
in effectuating the discharge." See Sampson, 415 U.S. at 91.
Instead, they are arguing that their statutorily-based civil
rights will be violated in the event of their discharge.
Thus, all the factors which rendered the district court's
authority to issue the injunction so tenuous in Sampson--
factors which the court was required to take into
consideration in weighing the plaintiff's irreparable harm
allegations--are not present here. We do not think,
therefore, that these plaintiffs must meet the same exacting
standard required of the 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 court held below that plaintiffs had
made a sufficient, although not overwhelming, showing of
irreparable harm. See Gately, 811 F. Supp. at 27-28. The
Court rested its holding on two factual findings. First, the
Court found that reinstatement would not be an available
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remedy for those plaintiffs who, at the close of a successful
trial on the merits, would have reached the new retirement
age, 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, especially during this
time of transition, thus impairing their effectiveness and
that of the State Police as a whole[,] if and when they are
ultimately reinstated."10 Id. at 27.
Like the district court, we view the irreparable
harm question as a close call. The sole factor cutting
against the district court's authority to issue this
injunction is the wide latitude traditionally granted the
government in dispatching its own internal affairs. See
Sampson, 415 U.S. at 83. And, in accordance with Sampson's
teachings, the district court took this factor into
consideration before granting the injunction. Gately, 811 F.
Supp. at 28 (balancing the intrusion into internal
governmental affairs that would result from the injunction
with the harm to plaintiffs in the absence of it, and
concluding that any harm to defendants was 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.
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comparison). Ultimately, the district court balanced the
equities and determined that, particularly in light of
plaintiffs' high probability of succeeding on the merits, an
injunction was warranted.
Mindful of the broad discretion afforded a district
court in weighing irreparable harm, see K-Mart Corp., 875
F.2d at 915 (quoting Wagner v. Taylor, 836 F.2d 566, 575-76
(D.C. Cir. 1987)), we cannot say that 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.
Conclusion
In sum, we find the challenges leveled at the
district court's issuance of the preliminary injunction
unpersuasive. Accordingly, we affirm the district court's
decision. Affirmed. Costs to appellees.
Affirmed. Costs to appellees.
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