BARRY, District Judge
The Division of State Police of the State of New Jersey is charged with the basic statutory mission of enforcing the laws of the State of New Jersey and providing services to municipal, county, and federal agencies. Under the leadership of Colonel Clinton L. Pagano, Superintendent of the State Police and, in that capacity, its chief administrative official, 2200 "sworn members" fulfill that mission. Because of its record of accomplishment, this widely diversified state level policing organization has achieved a nationwide reputation.
For more than thirty years, sworn members of the Division of State Police were required to retire at age 55. In 1983, however, the Supreme Court held in E.E.O.C. v. Wyoming, 460 U.S. 226, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983), that the Age Discrimination in Employment Act of 1967 ("ADEA"), 81 Stat. 602, as amended, 29 U.S.C. §§ 621-634, with its ban on age discrimination against individuals between the ages of 40 and 70, could be constitutionally applied to the states. Consequently, the Attorney General of the State of New Jersey declared the mandatory retirement statute unenforceable as of the March 2, 1983 Wyoming decision because no facts had yet been developed to support the conclusion that the mandatory retirement of sworn members at age 55 was valid under the bona fide occupational qualification (BFOQ) exception to the ADEA. That exception provides that:
It shall not be unlawful for an employer . . . to take any action otherwise prohibited . . . where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business. . . .
81 Stat. 603, 29 U.S.C. § 623(f)(1). The New Jersey State Legislature subsequently repealed the mandatory retirement statute.
Thereupon the Division of State Police, with the legal assistance of the Attorney General, initiated a study to determine whether a factual basis existed to establish an age-specific retirement provision for the State Police under the BFOQ exception. As Colonel Pagano candidly observed, "I didn't even know what a BFOQ was, and very few of my peers knew what a BFOQ was. We were trying to determine whether the age-old standards that had been administered by law enforcement agencies across the country were in fact valid, and were they defensible under the statute."
As part of that study, two cardiologists, two physiologists, and a cardiologist who is also a physiologist were consulted to evaluate the job duties, statutory responsibilities and operational policies of the State Police and determine whether the continued fitness to perform those functions could be determined without reference to age. On the basis of the professional opinions provided to the Division, on December 19, 1984 the Division of State Police issued a Report on the Establishment of a Mandatory Retirement Age as a Bona Fide Occupational Qualification (hereinafter referred to as "BFOQ Report"). That Report concluded that a compelling factual basis exists to believe that all or substantially all persons aged 55 and over are unable to safely and efficiently perform State Police duties, and that it is impossible or impractical to determine the continued fitness of individuals over that age on an individualized basis. As one of the highest ranking members of the Division testified before me, a man, I note, who at 54 years of age would be eligible to replace the 56-year old second highest ranking member of the Division were I to accept the Report's conclusion, this is a "young man's operation".
Following the issuance of the Report, the New Jersey State Legislature held hearings, considered, and subsequently passed a statute establishing the requirement that all members of the State Police, other than the Superintendent, retire as of age 55. 1" The legislation specifically found and declared that retirement at age 55 constituted a BFOQ reasonably necessary to the continued health and fitness of the members of the State Police, and that such ongoing health and fitness was required for the safe and efficient protection of the public. 2" The Governor signed this legislation into law on May 31, 1985, and it will become effective on September 1, 1985. On that date, 62 members of the Division who will have reached the age of 55 will be required to retire absent relief from this court.
The Equal Employment Opportunity Commission ("EEOC") 3" has brought this action naming the State of New Jersey, the State Police, and Colonel Clinton L. Pagano as defendants and alleging that the mandatory retirement statute violates the ADEA. Currently before the court is plaintiff's application for a preliminary injunction which, if granted, would prevent defendants from retiring state police officers at age 55.
It is clear that injunctive relief at a preliminary stage is only appropriate if it has been demonstrated that there exists a reasonable likelihood of eventual success on the merits as well the probability of irreparable injury if equitable relief is not immediately granted. Freixenet, S.A. v. Admiral Wine & Liquor Co., 731 F.2d 148, 150-51 (3d Cir. 1984); Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982) (en banc); Kennecott Corporation v. Smith, 637 F.2d 181, 187 (3d Cir. 1980). A preliminary injunction must be denied if the moving party fails to satisfy both of these prerequisites. In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982); Eli Lilly & Company v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.), cert. denied, 449 U.S. 1014, 66 L. Ed. 2d 473, 101 S. Ct. 573 (1980). It is also necessary to consider the effect, if any, the requested relief will have on the public interest, as well as the harm, if any, that relief will cause third parties. Oburn v. Shapp, 521 F.2d 142, 151 (3d Cir. 1975). Thus, even with the mandatory nature of the likelihood of success and irreparable harm proof requirements, the court must consider whether the "delicate balancing" of all of the factors justifies the entry of interim relief. Glasco v. Hills, 558 F.2d 179, 180 (3d Cir. 1977); Kershner v. Mazurkiewicz, supra, 670 F.2d at 443.
This court has heard 30 witnesses presented and cross examined by skilled advocates over the course of twelve full days of testimony. Numerous exhibits were admitted into evidence and have been carefully reviewed. This court has had the benefit, as well, of the recent clarification by the Supreme Court of the appropriate test for determining whether age-related employment criteria are valid under the ADEA. Western Airlines v. Criswell, 472 U.S. 400, 105 S. Ct. 2743, 86 L. Ed. 2d 321 (1985); Johnson v. Mayor of Baltimore, 472 U.S. 353, 105 S. Ct. 2717, 86 L. Ed. 2d 286 (1985). It has also had the benefit of an even more recent decision of the Court of Appeals for the Third Circuit. EEOC v. Commonwealth of Pennsylvania, 768 F.2d 514 (3d Cir. 1985). Based on all that is before it, it is the determination of this court that the application for a preliminary injunction should be denied.
THE BFOQ EXCEPTION
Throughout the legislative history of the ADEA, one empirical fact is repeatedly emphasized: the process of psychological and physiological degeneration caused by aging varies with each individual. 'The basic research in the field of aging has established that there is a wide range of individual physical ability regardless of age.' As a result, many older American workers perform at levels equal or superior to their younger colleagues. (footnote omitted)
And, thus, the tone was set in Criswell, supra, 105 S. Ct. at 2749.
Noting that "chronological age alone is a poor indicator of ability to perform a job," Id., at 2750 quoting H.R. Rep. No. 95-527, pt. 1, p. 2 (1977), Legislative History 362, the Court observed that "in both 1967 and 1978, however, Congress recognized that classifications based on age, like classifications based on religion, sex, or national origin, may sometimes serve as a necessary proxy for neutral employment qualifications essential to the employer's business." Id. That recognition is reflected, of course, in the BFOQ exception to the ADEA.
Having acknowledged the need for such an exception, the Court was quick to point out the limited scope and application ascribed to it first by the Secretary of Labor, 33 Fed. Reg. 9172 (1968), 29 C.F.R. § 860.102(b) (1984), and later by the EEOC, 46 Fed. Reg. 47727 (1981), 29 C.F.R. § 1625.6 (1984). Id. at 2750-51. Such consistently narrow interpretations, together with the restrictive wording of the statute itself, "convince us that, like its Title VII counterpart, the BFOQ exception 'was in fact meant to be an extremely narrow exception to the general prohibition' of age discrimination contained in the ADEA." Id. at 2751, quoting Dothard v. Rawlinson, 433 U.S. 321, 334, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977). However, the Court noted that the relevant legislative history indicated that the BFOQ exception was specifically intended to apply
in certain types of particularly arduous law enforcement activity [where] there may be a factual basis for believing that substantially all employees above a specified age would be unable to continue to perform safely and efficiently the duties of their particular jobs, and [where] it may be impossible or impractical to determine through medical examinations, periodic reviews of current job performance and other objective tests the employees' capacity or ability to continue to perform the jobs safely and efficiently. Id. at 2752, quoting S. Rep. No. 95-493 (1977) at 10-11 (1977), Legislative History 443-333. (emphasis added)
The Court further held that when an alleged BFOQ concerns the public safety, "the uncertainty implicit in the concept of managing safety risks always makes it 'reasonably necessary' to err on the side of caution in a close case." Id. 105 S. Ct. at 2754. (footnote omitted).
With that introduction, the Court proceeded to adopt the two prong test for evaluating the BFOQ defense first set forth in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976). The first inquiry, said the Court, is directed to the reasonable necessity of the employer's job qualifications to the essence of its business. The qualification of good health for a vital flight crew member was deemed to be reasonably necessary to the safe transportation of passengers, as the need to hire individuals under age 40 who have a low risk of accidents was deemed, in Tamiami, to be essential to the safe intercity transportation of bus passengers. The second inquiry is directed toward whether "the employer is compelled to rely on age as a proxy for the safety-related job qualifications validated in the first inquiry." Id. 105 S. Ct. at 2751 (footnote omitted). The Court continued:
This showing could be made in two ways. The employer could establish that it 'had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all [persons over the age qualifications] would be unable to perform safely and efficiently the duties of the job involved . . . . '
Alternatively, the employer could establish that age was a legitimate proxy for the safety-related job qualifications by proving that it is 'impossible or highly impractical ' to deal with the older employees on an individualized basis. 'One method by which the employer can carry this burden is to establish that some members of the discriminated-against class possess a trait precluding safe and efficient job performance that cannot be ascertained by means other than knowledge of the applicant's membership in the class. '
1. Appointed by the Governor, there exists no requirement that a person occupying the position of Superintendent be a sworn member of the New Jersey State Police. Accordingly, the Superintendent is subject only to the direct control of the Governor and the Attorney General and not, at least in any formal sense, to the Rules and Regulations which govern the activities of sworn members.
2. The Legislature finds and declares that the public health, safety and welfare requires the ongoing health and fitness of all members of the New Jersey State Police so that they may safely and efficiently protect the public. The Legislature further finds and declares that such continued health and fitness cannot be determined except with reference to age, and therefore finds and concludes that retirement of all members of the State Police at age 55, except [the Superintendent] shall constitute a bona fide occupational qualification which is reasonably necessary to the normal operation of the State Police which qualification the Legislature hereby promulgates and establishes.
3. The EEOC is an agency of the United States and is charged with the administration and enforcement of the ADEA. Pursuant to that authority, the EEOC initiated an investigation to determine whether there had been compliance with the ADEA and concluded that the mandatory retirement statute was violative of the ADEA.
4. But see Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 315, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976) in which, in the context of an equal protection challenge, the Supreme Court noted: "Since physical ability generally declines with age, mandatory retirement at 50 serves to remove from public service those whose fitness for uniformed work presumptively has diminished with age."
5. There is little consistency even in the age selected for what one can assume are similar or identical occupations. With reference to those cases which have reached the courts on BFOQS for state police, for example, Massachusetts has set 50 as its mandatory retirement age ( Mahoney v. Trabucco, 738 F.2d 35 (1st Cir. 1984), cert. denied, 469 U.S. 1036, 105 S. Ct. 513, 83 L. Ed. 2d 403 (1984)); Vermont has set 55 ( Galvin v. State of Vermont, 598 F. Supp. 144 (D.Vermont 1984)); and Missouri, Pennsylvania, Illinois and Alabama have set 60 ( EEOC v. Missouri State Highway Patrol, 748 F.2d 447 (8th Cir. 1984); EEOC v. Commonwealth of Pennsylvania, supra; Popkins v. Zagel, 611 F. Supp. 809 (C.D.Ill. 1985); Adams v. James, 526 F. Supp. 80 (M.D.Ala. 1981)). As would be expected, other states that have adopted BFOQ's for state police show a similar lack of consistency.
6. In Commonwealth of Pennsylvania, supra, the Court of Appeals noted that all members of the Pennsylvania State Police . . . regardless of rank, are required to carry guns and to respond with appropriate police action in emergency situations, even when off-duty, and are subject to reassignment to street duties when necessary. 768 F.2d at 517. Concluding that the Pennsylvania State Police should, therefore, be considered a "paramilitary organization", the Court adopted the test articulated in Mahoney v. Trabucco, supra, i.e. the alleged BFOQ should be considered in the context of the generic "occupation" of police officers required to perform front-line duties, regardless of the present assignment of any particular officer. Id. at 517. The Court held that the district court correctly evaluated the validity of the alleged BFOQ from the perspective of street police duties, even though, as here, some officers served in largely administrative assignments. Id. The facts of this case make clear, the parties agree, that the Division of State Police is a "paramilitary organization" and that plaintiff's likelihood of success on the BFOQ issue must be considered with reference to the generic duties of a State Police officer performing road patrol duties and arduous tasks required in various assignments.
7. The State Police also has supervisory authority over state law enforcement entities, such as the Marine Police, Capitol Police and Alcoholic Beverage Control Inspectors. However, these law enforcement personnel are not sworn members of the State Police and are not subject to the Rules and Regulations of the Division. Accordingly, they are not required or permitted to carry a service weapon off-duty, have no law enforcement authority while off-duty, are not subject to the requirement of being on call 24 hours a day, and cannot be assigned to any State Police assignment. These categories of personnel are not subject to mandatory retirement pursuant to L. 1985, c. 175.
8. Consultation with the Division physician is readily available and medical care for illnesses and injuries is provided free of charge under the supervision of the Division physician. All officers who are absent from work as the result of illness for more than two days are required to report to the Division physician. Sworn members may consult the Division physician at any time concerning any in-service medical problem.
9. New recruits to the State Police are subject to a comprehensive medical examination prior to the commencement of their Academy training. However, no annual medical examinations were performed on sworn members of the State Police until Spring 1985. Such medical examinations had been required by contract as to officers serving in the rank of Trooper and Sergeant since 1974, but had not been performed since funding was not provided by the Legislature.
10. Representative of the responses are the following: 1. A trooper jumped into a quarry from a ledge 30 feet above the water and, for 15-20 minutes in mid-winter, held a woman up while treading water. When rescue equipment arrived, he tied a rope around her, she was pulled to safety, and he subsequently climbed up a 30 foot rope. 2. A trooper chased suspects for a mile through woods at night in four feet of snow. The chase lasted an hour during which he tripped in many holes hidden in the snow and his weight dropped seven pounds. 3. A trooper chased four suspects down an 80 foot embankment; climbed over a six foot cyclone fence; and, for a total distance of two miles, ran through a swamp, down a dirt road, and up the side of a mountain. 4. A trooper chased a suspect up a ten foot embankment, jumped a four foot high fence, ran through a field covered with three feet of snow, and tackled and wrestled the suspect. 5. Following a motor vehicle accident, a trooper carried a 150 pound highly intoxicated male down a steep rocky terrain to safety.
11. Because many aspects of police work cannot be simulated in the laboratory, it is not possible to measure the actual aerobic requirements of some law enforcement tasks, although it is possible to test for the minimum 40-41 ml/kg/min. aerobic capacity required for the performance of routine State Police duties with a timed 1.5 mile run. It is impracticable, however, to use this test to evaluate the aerobic capacity of persons aged 55 and older because, as will become clear, it would place them at a significant risk of suffering a coronary event as a result of the prevalence of asymptomatic heart disease in that age group. With reference to aerobic capacity, however, the thrust of defendants' argument has not been addressed to the impracticality of individualized testing. I note, however, very persuasive testimony questioning the accuracy if not the impossibility of any test purporting to measure the unexpected life threatening circumstance requiring explosive action and desperate measures.
12. The only populations of asymptomatic individuals which have been subjected to diagnostic catheterization have been small groups of United States Air Force pilots who have been required in some circumstances to submit to this procedure as a condition of maintaining flight clearance.
13. I note in passing that one of the affected officers testified that he was uncertain as to whether he would stay or not; one testified that he might leave anyway but does not wish to be mandatorily retired; one testified that he believed "some" of those affected would want to stay; and several testified that they would stay if they could.
14. See Sampson v. Murray, supra, 415 U.S. at 92, n.68. See also Ekanem v. Health and Hospital Corporation of Marion County, 589 F.2d 316, 321 (7th Cir. 1978) in which the court, citing Sampson, concluded that inability to obtain other employment is not irreparable harm because a terminated employee has an adequate remedy at law.
15. Plaintiff offered testimony of an occupational analyst concerning the employment prospects of members of the State Police forced to retire as of September 1, 1985. That expert, however, apparently only considered jobs in comparable law enforcement positions as appropriate alternatives for retired members of the New Jersey State Police, rather than other high-level positions in the government and private sectors. He conducted no review of the employment situation in New Jersey, nor did he review the employment experience of recently retired members of the New Jersey State Police, although he conceded that this would be "important". I accord his testimony little weight.
16. After having stressed on direct examination that individuals who prepare and plan for retirement have the least difficulty going through the experience, this expert was asked on cross examination for the point in time when one who has for years been watching others retire begins to plan for his own retirement. "Well," came his astounding response, "here no one has retired at 55 before".