Ramirez v. Puerto Rico Fire Service

• Decision Date: 26 August 1983
• Docket Number: No. 83-1012,83-1012
• Citation: 715 F.2d 694
• Parties: 32 Fair Empl.Prac.Cas. (BNA) 1239, 32 Empl. Prac. Dec. P 33,783 Jose E. Muniz RAMIREZ, Plaintiff, Appellant, v. PUERTO RICO FIRE SERVICE and Office of Personnel and Its Director, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 694

715 F.2d 694

32 Fair Empl.Prac.Cas. (BNA) 1239,

32 Empl. Prac. Dec. P 33,783

Jose E. Muniz RAMIREZ, Plaintiff, Appellant, v. PUERTO RICO FIRE SERVICE and Office of Personnel and Its Director, Defendants, Appellees.

No. 83-1012.

United States Court of Appeals First Circuit.

Argued June 6, 1983.

Decided Aug. 26, 1983.

Jose M. Munoz Silva, Santurce, P.R., for plaintiff, appellant.

Gerardo Mariani, Asst. Sol. Gen., Santurce, P.R., with whom Miguel Pagan, Sol. Gen., San Juan, P.R., was on brief, for defendants, appellees.

Before COFFIN and BREYER, Circuit Judges, and SELYA, ^* District Judge.

SELYA, District Judge.

In September, 1978, when he was forty-three years old, Jose E. Muniz Ramirez applied to become a firefighter in the Puerto Rico Fire Service ("PRFS"). He subsequently passed a physical examination, and received qualifying grades in all of the customary tests. The appellant's aspirations proved to be short-lived, however, as the Office of Personnel of the Commonwealth of Puerto Rico notified him on October 1, 1980 that he was ineligible for employment as a fireman because of his age. ¹ After the filing of timely charges with the Equal Employment Opportunity Commission, appellant received a right-to-sue letter from that agency under date of April 15, 1981.

Muniz thereupon brought the instant action in the district court. In his complaint, he alleged that he had been discriminated against solely on the basis of age in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA"). ² He sought back pay, liquidated damages and injunctive relief in the form of retroactive reclassification and placement on the PRFS roster. The defendants moved for dismissal. ³

The district court, relying on Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) and Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), dismissed the action. It held that (i) the Eleventh Amendment to the United States Constitution granted defendants immunity from suit because each of the agencies sued was an integral part of the executive branch of the government of the Commonwealth of Puerto Rico, and the individual defendant (the director of the Office of Personnel) was likewise immune since he had been named only in his official capacity ⁴; and (ii) the Commonwealth had neither waived its immunity nor consented to claims for relief arising under ADEA. The instant appeal thereupon ensued. We reverse.

I.

The Eleventh Amendment stands as a palladium of sovereign immunity. It bars federal court lawsuits by private parties insofar as they attempt to impose liabilities necessarily payable from public coffers, unless the state has consented to suit or unless the protective cloak of the amendment has been doffed by waiver or stripped away by congressional fiat. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ezratty v. Puerto Rico, 648 F.2d 770, 776 (1st Cir.1981). Puerto Rico, despite the lack of formal statehood, enjoys the shelter of the Eleventh Amendment in all respects. Ezratty v. Puerto Rico, 648 F.2d at 776 n. 2. Consistent with the Eleventh Amendment, however, federal courts may, notwithstanding the absence of consent, waiver or evidence of congressional assertion of national hegemony, enjoin state officials to conform future conduct to the requirements of federal law, even though such a decree often has an effect on the public fisc. Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The distinction between permissible and impermissible relief in such cases turns on which way Lot's wife is facing: prospective redress is allowable, retrospective redress is not. The foregoing principles ineluctably govern this case.

As previously noted, appellant sought not only back pay and liquidated damages, but also injunctive relief in the form of reclassification and placement on the PRFS roster. Such an injunction would afford a classic form of prospective remediation: if granted, the Commonwealth would be required to reclassify appellant presently, and to hire him as a firefighter in the future. This relief may indeed have some collateral impact on Puerto Rico's treasury, but the fiscal consequence would be no more than an unavoidable corollary of compliance with an order which by its terms is futuristic in nature. Edelman v. Jordan, 415 U.S. at 668, 94 S.Ct. at 1358. Such a forward-looking anodyne is not anathematic to the Eleventh Amendment, even in the absence of consent or waiver. The court below therefore erred in dismissing the appellant's complaint to the extent that it stated a claim for injunctive relief. See Quern v. Jordan, 440 U.S. at 347, 99 S.Ct. at 1148; Milliken v. Bradley, 433 U.S. 267, 290, 97 S.Ct. 2749, 2762, 53 L.Ed.2d 745 (1977); Edelman v. Jordan, 415 U.S. at 667-68, 94 S.Ct. at 1357-58.

II.

The district court's dismissal of the remainder of the complaint, i.e., the claims for back pay and liquidated damages, presents a somewhat trickier Eleventh Amendment issue. The court below correctly noted the absence of any action by the Commonwealth tantamount in these circumstances to consent to suit or to waiver of immunity. Thus, if the Commonwealth is not shielded from a damage claim, it is because Congress, in passing the ADEA, abrogated the states' Eleventh Amendment immunity. See Fitzpatrick v. Bitzer, 427 U.S. at 452, 96 S.Ct. at 2669. To pursue that inquiry, this court must first decide a question left open by E.E.O.C. v. Wyoming, --- U.S. ----, ----, 103 S.Ct. 1054, 1064, 75 L.Ed.2d 18 (1983), that is, whether Congress enacted the ADEA pursuant to its powers under section 5 of the Fourteenth Amendment. If so, such action can override the tenets of state sovereignty embodied in the Eleventh Amendment. Fitzpatrick v. Bitzer, 427 U.S. at 456, 96 S.Ct. at 2671.

The omission of any ritualistic incantation of powers by the Congress is not determinative, for there is no requirement that the statute incorporate buzz words such as "Fourteenth Amendment" or "section 5" or "equal protection". E.E.O.C. v. Wyoming, 103 S.Ct. at 1064 n. 18; Fullilove v. Klutznick, 448 U.S. 448, 476-78, 100 S.Ct. 2758, 2773-74, 65 L.Ed.2d 902 (1980). "The question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise." Woods v. Miller, 333 U.S. 138, 144, 68 S.Ct. 421, 424, 92 L.Ed. 596 (1948). Rather, absent an outright congressional declamation, it is the court's task to decipher whether Congress has enacted legislation pursuant to its section 5 powers. In so doing, the cryptology is largely dependent upon judicial ability to discern, given a fair reading of the statute and an impartial assessment of the circumstances of its passage, some legislative purpose or factual predicate adequate to support the exercise of that power. E.E.O.C. v. Wyoming, 103 S.Ct. at 1064 n. 18. Such an inquiry necessarily focuses upon whether or not the objectives of the legislation are within the scope of Congress' power under section 5 of the Fourteenth Amendment. See Fullilove v. Klutznick, 448 U.S. at 476-78, 100 S.Ct. at 2773-74; E.E.O.C. v. Elrod, 674 F.2d 601, 608 (7th Cir.1982).

This section 5 power is co-extensive with the broad grant of authority limned by the Necessary and Proper Clause, Art. 1, § 8, cl. 18, and formulated in the early days of the republic by Chief Justice Marshall in the landmark case of McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579 (1819). See Katzenbach v. Morgan, 384 U.S. 641, 650, 86 S.Ct. 1717, 1723, 16 L.Ed.2d 828 (1966). More than a century ago, the Court delineated this power in manner following:

Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.

Ex Parte Virginia, 100 U.S. 339, 345-46, 25 L.Ed. 676 (1879).

The sweep of this mandate was reaffirmed in Katzenbach v. Morgan, 384 U.S. at 650, 86 S.Ct. at 1723. It is thus irrelevant whether the activities which Congress seeks to forbid by legislation are themselves unconstitutional either under the Equal Protection Clause or under other provisions of the Fourteenth Amendment, for Congress' reach under the Civil War Amendments has been enlarged in order to make these accretions fully effective. City of Rome v. United States, 446 U.S. 156, 179, 100 S.Ct. 1548, 1562, 64 L.Ed.2d 119 (1980); Katzenbach v. Morgan, 384 U.S. at 648-49, 86 S.Ct. at 1722-23; E.E.O.C. v. County of Calumet, 686 F.2d 1249, 1252 (7th Cir.1982). Accordingly, the Supreme Court's holding in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), to the effect that a state mandatory retirement law did not violate the Equal Protection Clause, so heavily relied on by the appellees, is not germane in assessing whether or not Congress could prohibit similar activity through the medium of its section 5 powers. See E.E.O.C. v. Elrod, 674 F.2d at 608 n. 6.

ADEA first became law in 1967, but has since been the subject of substantial amendment. A decade ago, ADEA did not, by its terms, reach state employees, but in 1974 Congress perfected such an extension of ADEA coverage. Thus, we must decode the palimpsest so created. The legislative history behind the 1974 amendment is less than abundant, as this revision was included in a much broader package of amendments to the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. See E.E.O.C. v. County of Calumet, 686 F.2d at...