Correa-Ruiz v. Fortuno

• Decision Date: 07 July 2009
• Docket Number: No. 06-2578.,06-2578.
• Parties: Carmelo CORREA-RUIZ, Former Colonel, et al., Plaintiffs, Appellants, Daniel Garcia, et al., Movants, v. Honorable Luis FORTUÑO, in his Official Capacity as Governor of the Commonwealth of Puerto Rico, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

573 F.3d 1

Carmelo CORREA-RUIZ, Former Colonel, et al., Plaintiffs, Appellants, Daniel Garcia, et al., Movants, v. Honorable Luis FORTUÑO, in his Official Capacity as Governor of the Commonwealth of Puerto Rico, et al., Defendants, Appellees.

No. 06-2578.

United States Court of Appeals, First Circuit.

Heard October 28, 2008.

Decided July 7, 2009.

Ariel Hernandez Santana, with whom Jesus Hernandez Sanchez and Hernandez Sanchez Law Firm were on brief, for appellants.

Susana I. Peñagarícano-Brown, Assistant Solicitor General, with whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana Negrón-Vargas, Deputy Solicitor General, and Maite D. Oronoz-Rodríguez, Deputy Solicitor General, were on brief, for appellees.

Before LIPEZ and HOWARD, Circuit Judges, and DiCLERICO,^* District Judge.

LIPEZ, Circuit Judge.

The Age Discrimination in Employment Act ("ADEA") contains an exemption provision that allows state and local governments to set mandatory retirement ages for law enforcement officers and firefighters. See 29 U.S.C. § 623(j). In this case, we examine for the first time revised criteria for invoking that exemption, including a provision that conditions its use on the employer's compliance with fitness testing regulations that have yet to be promulgated by the Secretary of Health and Human Services. Id. Appellants are more than two dozen former Puerto Rico police officers who claim that their forced retirement at age fifty-five, pursuant to Puerto Rico Law 181, violated the ADEA and the Due Process Clause of the Fourteenth Amendment. See P.R. Laws Ann. tit. 3, § 766g (2003) ("Law 181"). The officers filed suit against the Commonwealth of Puerto Rico, its police department, the current and former governors, and the current and former police superintendents, seeking declaratory and injunctive relief and damages. The district court dismissed all claims,¹ concluding that Law 181, Puerto Rico's mandatory retirement law, is consistent with the ADEA and that appellants' terminations also conformed to constitutional requirements. We agree and therefore affirm.

I.

A. Applicable Age Discrimination Laws

1. The ADEA

As originally enacted in 1967, the ADEA did not apply to States and their political subdivisions. EEOC v. Wyoming, 460 U.S. 226, 233, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983).² It thus had no impact on the age limits that many local governments had adopted for police and firefighting personnel. See, e.g., Johnson v. Mayor and City Council of Baltimore, 472 U.S. 353, 358, 105 S.Ct. 2717, 86 L.Ed.2d 286 (1985) (evaluating city code provision, adopted in 1962, requiring mandatory retirement of most firefighting personnel at age fifty-five); Minch v. City of Chicago, 363 F.3d 615, 618 (7th Cir.2004) (noting Chicago's requirement, "[a]s early as 1939," that city firefighters retire at the age of sixty-three); Binker v. Pennsylvania, 977 F.2d 738, 742 n. 2 (3d Cir.1992) (discussing Pennsylvania law, first enacted in 1929, requiring state police officers to retire at age sixty). Among such provisions was Puerto Rico's Law 447, adopted in May 1951, which established a mandatory retirement age of sixty-five for both police officers and firefighters.

Congress extended the ADEA to cover government employers in 1974, and the Supreme Court quelled uncertainty over the constitutionality of that amendment nine years later in EEOC v. Wyoming, 460 U.S. at 243, 103 S.Ct. 1054.³ Once the ADEA became applicable to their employees, States and localities could retain maximum hiring and retirement ages only if they could show that age was a bona fide occupational qualification for particular positions. See 29 U.S.C. § 623(f)(1).⁴ This so-called "BFOQ exception" is "`extremely narrow,'" and eligibility may turn on whether the employer can demonstrate "`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.'" Gately v. Massachusetts, 2 F.3d 1221, 1225-26 (1st Cir.1993) (quoting W. Air Lines, Inc. v. Criswell, 472 U.S. 400, 412, 414, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985) (additional citation and emphasis omitted; some alteration in original)). Thus, with the 1974 amendment, States and localities were subject to the same restrictive standard as private employers for justifying the use of age in employment decisions.

In 1986, however, Congress again amended the ADEA to provide a limited exemption for the mandatory retirement of state and local law enforcement officers and firefighters. See 29 U.S.C. § 623(j) (1988). The exemption, known as the "safe-harbor" provision, permitted any state or local government that had in place age restrictions for law enforcement officers or firefighters on March 3, 1983—the day after the decision in EEOC v. Wyoming —to reinstate those restrictions. The amendment did not allow adoption of new mandatory retirement provisions, and the exemption for pre-existing laws had a limited life span. "[D]esigned to provide states an opportunity to adjust to the Supreme Court's decision," DiFava, 317 F.3d at 9 n. 3., the exemption expired on December 31, 1993, when mandatory retirement provisions adopted by state and local governments once again became subject to attack for age discrimination.

That reversion to past practice was short-lived. In 1996, Congress reinstated the safe-harbor provision, with some revisions and without a sunset provision, retroactive to its December 31, 1993 termination date. See 29 U.S.C. § 623(j). Significantly, the 1996 legislation broadened the exemption to allow States and localities that had not had age restrictions before the Wyoming decision to enact such limits. Under this renewed safe-harbor provision, a public employer may impose mandatory retirement on law enforcement officers and firefighters who either attain the age of retirement that was in place for those employees as of March 3, 1983, or—if the employer's age limit was enacted after the 1996 amendment took effect—the higher of the age contained in the post-1996 enactment or age fifty-five. Like the original version of the exemption, the 1996 amendment also provided that any exempted discharge be "pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of [the ADEA]." 29 U.S.C. § 623(j)(2).⁵

The 1996 legislation also directed the Secretary of Health and Human Services ("HHS") to study and report to Congress within three years on the availability of tests or other methods for assessing the ability of law enforcement officers and firefighters to complete public safety tasks. Within four years, the Secretary was to issue advisory guidelines on the use and administration of physical and mental fitness tests to assess the competency of such personnel, and the guidelines were to be followed by regulations "identifying valid, nondiscriminatory job performance tests that shall be used by employers seeking the exemption." Pub.L. No. 104-208 § 119(2); 110 Stat. 3009, 3009-24-25 (1996). The legislation further provided that, once the regulations were issued, employers relying on the exemption would be required to give public safety personnel who reached retirement age an annual opportunity to show fitness for duty by passing such a test. 110 Stat. 3009-25. Individuals who passed the test could not be forced to retire. Id.

The expectation that fitness tests would be developed and prescribed in regulations became part of the law as codified. The statute requires the employer to comply with "section 3(d)(2) of the Age Discrimination in Employment Amendments of 1996 if the individual was discharged after the date described in such section." 29 U.S.C. § 623(j)(1). The reference to "section 3(d)(2)" has been understood to be a mistaken reference to section 2 (d)(2) of Public Law 104-208, which requires employers to offer the fitness tests deemed appropriate by the Secretary. See Pub.L. No. 104-208 § 119(2)(d)(2), 110 Stat. 3009, 3009-25 (1996); § 623(j) Historical and Statutory Notes. Section 2(d)(2) provides that the requirement does not take effect, however, until "the date of issuance of the regulations" identifying such tests.⁶

Thus, § 623(j)(1) effectively states that the employer's obligation to administer fitness tests to individuals who reach mandatory retirement age begins on "the date of issuance of the regulations," which is the date described in section 2(d)(2) of the ADEA amendments. However, neither the advisory guidelines on the use and administration of tests, nor any regulations identifying appropriate tests, have yet been issued. On its face, then, the statute anticipates fitness testing as a prerequisite for mandatory retirement, but the tests required to be used have not yet been identified.⁷

2. Puerto Rico Law 181

In August 2003, the Puerto Rico legislature amended its longstanding mandatory retirement law for Commonwealth police officers and firefighters, Act No. 447 of May 15, 1951, under which age sixty-five had been the upper limit of their employment. The new Government Personnel Retirement Act, Law 181, lowered the mandatory retirement age to fifty-five for police officers and firefighters with thirty years of service, although the superintendent of the police force could authorize an officer to serve up to an additional twenty-four months as a member of the Police Reserve force. P.R. Laws Ann. tit. 3, § 766g (2003).

The preamble to Law 181 framed the retirement scheme as a way to promote modernization and innovation by bringing new officers into the public safety forces. The preamble further stated that "no discrimination is being applied to the members of the Police or Firefighters Corps for reason of age." Rather, the motivation was "to give a higher security to the people and to protect the security" of police officers and firefighters.

The mandatory retirement provision was again amended in 2005. Under Act No. 22, police officers and...