State Police Automatic Retirement Assn v. Difava

• Decision Date: 17 January 2003
• Docket Number: No. 01-2429.,No. 01-1581.,01-1581.,01-2429.
• Parties: STATE POLICE FOR AUTOMATIC RETIREMENT ASSOCIATION, ET AL., Plaintiffs, Appellants, v. John DIFAVA, SUPERINTENDENT OF THE DEPARTMENT OF STATE POLICE, et al., Defendants, Appellees, Robert T. Devereaux, et al., Intervenors, Appellees, Equal Employment Opportunity Commission, Intervenors, Appellees.
• Court: U.S. Court of Appeals — First Circuit

317 F.3d 6

STATE POLICE FOR AUTOMATIC RETIREMENT ASSOCIATION, ET AL., Plaintiffs, Appellants, v. John DIFAVA, SUPERINTENDENT OF THE DEPARTMENT OF STATE POLICE, et al., Defendants, Appellees, Robert T. Devereaux, et al., Intervenors, Appellees, Equal Employment Opportunity Commission, Intervenors, Appellees.

No. 01-1581.

No. 01-2429.

United States Court of Appeals, First Circuit.

Heard May 8, 2002.

Decided January 17, 2003.

Michael C. McLaughlin with whom Law Offices of Michael C. McLaughlin was on brief for appellants.

Paul D. Ramshaw, Attorney, with whom Nicholas M. Inzeo, Acting Deputy General Counsel, Philip B. Sklover, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, were on brief for intervenor-appellee, Equal Employment Opportunity Commission.

James B. Conroy with whom Jeffrey L. Levy and Donnelly, Conroy & Gelhaar, LLP were on brief for intervenors-appellees, Captain Robert T. Devereaux, et al.

Deborah S. Steenland, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, and Thomas A. Barnico, Assistant Attorney General, were on brief for defendants-appellees, John DiFava, Superintendent of the Department of State Police, et al.

Before TORRUELLA, Circuit Judge, CAMPBELL and CYR, Senior Circuit Judges.

CAMPBELL, Senior Circuit Judge.

This appeal concerns a collateral attack on an injunction, preliminarily issued by the district court in 1992 and, with modifications, made permanent in 1998. The effect of the injunction is to prevent the Commonwealth of Massachusetts ("Commonwealth") from enforcing a state law that requires members of its reconstituted state police force to retire upon reaching the age of 55. Appellant, State Police for Automatic Retirement Association ("SPARA"), contends that the challenged permanent injunction has injured its members by diminishing their promotional opportunities. According to SPARA, the injunction violates the Supreme Court's decision in Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), and was also overly broad and erroneous when issued. Appellant appeals from the district court's refusal to enjoin the Commonwealth from complying with the allegedly faulty injunction and also from the court's dismissal of SPARA's complaint against three state officials ("State Officials")¹ for their failure to enforce the mandatory state police retirement age of 55. In separate orders, the district court denied SPARA's request for a preliminary injunction and granted the defendant-appellees' motion to dismiss. The court ruled that SPARA's action was barred by the doctrine of res judicata and, in the alternative, by stare decisis. We affirm, albeit on somewhat different grounds.

I. Background

The focus of this action is a Massachusetts law, enacted in 1991 as part of the reorganization of the Massachusetts State Police, that mandated the automatic retirement of all members of the reconstituted police force at age 55. Pursuant to Chapter 412 of the Massachusetts Acts of 1991, the Metropolitan District Commission Police ("MDC Police"), the Registry of Motor Vehicles Law Enforcement Division ("Registry Police"), and the Capitol Police were merged with the Division of State Police. Section 122 of Chapter 412, codified at Mass. Gen. Laws ch. 32, § 6(3)(a) (1992), required all members of the newly consolidated State Police Department to retire at age 55. Prior to the consolidation, the MDC Police, the Registry Police, and the Capitol Police had been required by Massachusetts law to retire at age 65. In contrast, the original State Police Division officers had been mandated by law to retire at age 50. Thus, § 6(3)(a) added five years to the mandatory retirement age of officers formerly in the original state police division, but subtracted ten years from the forced retirement age of officers formerly belonging to the MDC Police, Registry Police, and Capitol Police.

Facing mandatory retirement ten years earlier than anticipated, forty-five officers of the former MDC Police, Capitol Police, and Registry Police brought an action in the district court in December 1992, (the "Gately action"), seeking to invalidate the mandatory retirement provision contained in § 6(3)(a) as being violative of the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (1999 & Supp. II).² The district court entered a preliminary injunction enjoining the Commonwealth from enforcing the mandatory retirement provision of the new law. The preliminary injunction provided that the Commonwealth was "temporarily restrained and enjoined from dismissing or retiring plaintiffs or other officers because they are aged 55 or older." Gately v. Massachusetts, 92-CV-13018-MA (D.Mass. Dec. 30, 1992) (order granting preliminary injunction). The Commonwealth appealed from the preliminary injunction. This court affirmed the injunction, rejecting, inter alia, the Commonwealth's contention that the ADEA's safe-harbor provision allowed the Commonwealth to apply to the plaintiffs the mandatory state police retirement age found in § 6(3)(a).³ Gately v. Massachusetts, 2 F.3d 1221, 1229 (1st Cir.1993), cert. denied, 511 U.S. 1082, 114 S.Ct. 1832, 128 L.Ed.2d 461 (1994).

Following the denial of its appeal, the Commonwealth moved the district court to amend the preliminary injunction "on the grounds that the current order enjoins the defendants from retiring the member[s] of the state police at any age." The Commonwealth requested the following order: "that the defendants ... are temporarily restrained and enjoined from dismissing or retiring plaintiffs or other officers because they are between the ages of 55-64." The plaintiffs opposed the motion. On November 24, 1993, in a margin note, the district court allowed the defendant's motion and enjoined the Commonwealth from retiring state police officers because they were 64 or younger.

On September 23, 1996, the plaintiffs filed an emergency motion to amend the preliminary injunction. The plaintiffs requested that the original preliminary injunction be reinstated to "allow the few plaintiffs who are likely to attain the age of 65 before this case is resolved to avoid sustaining the very harm the ADEA and proposed legislation is designed to prevent." The Commonwealth opposed the new amendment arguing that the current injunction was consistent with the settled expectations of the parties because prior to the consolidation of the four divisions "no officer had the expectation of remaining employed beyond age 65."

The district court granted the plaintiffs' motion noting:

This issue raises an important but difficult policy question. However, I am persuaded that the state law, fairness to the two police officers, and the limited immediate impact which will result, provide grounds upon which to grant the motion. With respect to these two officers and others currently on the force who might become similarly situated, therefore, the plaintiffs' motion to amend the preliminary injunction is GRANTED.

Gately v. Massachusetts, No. 92-13018 (D.Mass. Sept. 26, 1996) (order amending preliminary injunction).

Between 1993 and 1996, the court case lay dormant as the parties attempted to negotiate a settlement which was to include a legislative solution. Proffered state legislation would have permitted state police officers to remain employed past the mandatory retirement age of 55 if they could pass a physical exam. This legislation was suggested in the aftermath of the "Landry Report," a 3,000 page report, authorized by Congress, concluding that no age less than 70 would serve as a bona fide occupational qualification ("BFOQ") for law enforcement work.

Neither a legislative solution nor any settlement occurred, however, and the plaintiffs, by then including the Equal Employment Opportunity Commission ("EEOC"), which had since intervened, moved for summary judgment. The plaintiffs argued that the Commonwealth could not establish that the mandatory retirement age of 55 in § 6(3)(a) was a BFOQ as required by the ADEA and, as a result, the law violated the ADEA. On June 8, 1998, the district court granted summary judgment in favor of the plaintiffs and the intervenor-plaintiff, the EEOC. The court ruled that § 6(3)(a), which established a mandatory retirement age of 55 for officers of the State Police, was superseded and preempted by the ADEA, 29 U.S.C. § 623(a)(1). The court ordered that the Commonwealth was "permanently enjoined from requiring officers of the Department of the State Police to retire solely on the basis of their age." The Commonwealth did not appeal.

In August 2000, Gerald A. Colletta, III, a State Police Lieutenant and a member of SPARA, attempted to intervene in the Gately action and seek relief from the judgment pursuant to Fed.R.Civ.P. 60(b)(5), in light of the Supreme Court's ruling in Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). The district court denied the motion to intervene as untimely. Colletta did not appeal from the denial of his motion.

In January 2001, SPARA, and a long list of named individuals, initiated an action of their own in the district court. SPARA, and named plaintiffs, contended that they were being injured by the continued enforcement of an invalid and overly broad Gately injunction. The plaintiffs asserted that the existing injunction was "directly responsible for members of SPARA being denied promotions." The basis of SPARA's initial complaint and the first amended complaint was that the permanent injunction was invalid in light of Kimel. The district court permitted the EEOC and certain state police officers, aged 50 or older, to intervene.

SPARA moved for a preliminary injunction based on reading Kimel to stand for the proposition that the ADEA no longer applied to the States. The district court denied the motion. State Police for Automatic Ret. Ass'n v. Difava, 138 F.Supp.2d 142 (D.Mass.2001)....