MEMORANDUM AND ORDER
The State Police for Automatic Retirement Association ("SPARA")has brought this action challenging the constitutionality of apermanent injunction entered in 1998 that prevented enforcementof a Massachusetts law mandating a maximum retirement age of 55years old for members of the State Police force. Citing therecent Supreme Court ruling in Kimel v. Florida Bd. of Regents,528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) ("Kimel"),SPARA argues that the permanent injunction violates the EleventhAmendment to the United States Constitution, and asks this Courtto issue a preliminary injunction enjoining defendants fromcreating or implementing new lists of candidates for promotion.
Over objection, the Court permitted the Equal EmploymentOpportunity Commission (the "EEOC") and certain police officersaged 50 or older to intervene. The state defendants andintervenors argue that Kimel is inapplicable for three reasons:(1) a suit against a State in which the federal government is aplaintiff does not implicate the Eleventh Amendment immunity atissue in Kimel; (2) private individuals may sue State actors intheir official capacity for prospective injunction relief withoutrunning afoul of the Eleventh Amendment; and (3) a state'ssovereign immunity under the Eleventh Amendment belongs only tothe State and cannot be invoked by other parties.
After hearing, the motion for preliminary injunction isDENIED for all three reasons.
In 1992, an action in United States District Court was broughtby 45 officers of the former Metropolitan District CommissionPolice and Registry of Motor Vehicles Law Enforcement Divisionseeking to invalidate certain mandatory retirement provisions ofstate law2 as violative of the Age Discrimination inEmployment Act ("ADEA"), 29 U.S.C. § 621, et seq.
Judge Mazzone entered a preliminary injunction enjoining theState and its officers from enforcing the statutorily mandatedretirement of State Police officers aged 55 or over. See Gatelyv. Com. of Massachusetts, 811 F. Supp. 26 (D.Mass. 1992). TheState appealed the preliminary injunction, which was subsequentlyaffirmed. See Gately v. Com. of Massachusetts, 2 F.3d 1221 (1stCir. 1993), cert. denied, 511 U.S. 1082, 114 S.Ct. 1832, 128L.Ed.2d 461 (1994). The EEOC, which intervened as a plaintiff,and the individual plaintiffs moved for summary judgment seekingan order permanently enjoining the enforcement of a mandatoryretirement age for officers of the Department of State Police.Judge Mazzone found in favor of the plaintiffs and entered apermanent injunction to prevent the State and its officers "fromrequiring officers of the Department of State Police to retiresolely on the basis of their age." Gately v. Com. ofMassachusetts, 92-CV13018-MA, 1998 WL 518179, at *12 (D. Mass.June 8, 1998). No damages were awarded. The State did not appealthe order. Now, SPARA has brought an action seeking to invalidatethe Gately permanent injunction.
A. Preliminary injunction standard
In order to demonstrate that it is entitled to preliminaryinjunctive relief, SPARA must "establish that 1) it issubstantially likely to succeed on the merits of its claim; 2)absent the injunction there is `a significant risk of irreparableharm'; 3) the balance of hardships weighs in its favor; and 4)the injunction will not harm the public interest." I.P. LundTrading ApS v. Kohler Co., 163 F.3d 27, 33 (1st Cir. 1998)(quoting TEC Eng'g Corp. v. Budget Molders Supply, Inc.,82 F.3d 542, 544 (1st. Cir. 1996)). SPARA bears the burden of makingeach of these showings. See International Ass'n of Machinists v.Eastern Air Lines, Inc., 826 F.2d 1141, 1144-45 (1st Cir. 1987)(citing Planned Parenthood League of Mass. v. Bellotti,641 F.2d 1006, 1009 (1st Cir. 1981)).
B. Likelihood of success on the merits
SPARA's chief contention is that Judge Mazzone's permanentinjunction has been invalidated by the Supreme Court's ruling inKimel.3 In short, SPARA argues that the Kimel decisionstands for the broad proposition that the ADEA cannot beconstitutionally applied to a State. SPARA reads too much intoKimel. The Court's decision in Kimel holds "only that, in theADEA, Congress did not validly abrogate the States' sovereignimmunity to suits by private individuals." 528 U.S. at 91, 120S.Ct. 631. That is, because the ADEA is not legislationauthorized by § 5 of the Fourteenth Amendment, a private litigantseeking money damages cannot defeat the State's EleventhAmendment immunity. Although, as the Court states, "the ADEA isnot `appropriate legislation' under § 5 of the FourteenthAmendment," id. at 82-83, 120 S.Ct. 631, Kimel's holdingdoes not vitiate the Supreme Court's earlier decision in EEOC v.Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983),which held that the extension of the ADEA to cover State andlocal governments is a valid exercise of Congress' authorityunder the Commerce Clause, U.S. Const. Art. I, § 8, cl. 3, andrejected a challenge to the ADEA based on the Tenth Amendment.See id. at 235, 103 S.Ct. 1054.
The Supreme Court has repeatedly stated that a State's immunityunder the Eleventh Amendment is inapplicable where a State issued by the federal government, even for money damages. SeeAlden v. Maine, 527 U.S. 706, 755, 119 S.Ct. 2240, 144 L.Ed.2d636 (1999) ("In ratifying the Constitution, the States consentedto suits brought by other States or by the Federal Government.");Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 49 n. 14, 116S.Ct. 1114, 134 L.Ed.2d 252 (1996) ("the Federal Government canbring suit in federal court against a State"); United States v.Texas, 143 U.S. 621, 644-645, 12 S.Ct. 488, 36 L.Ed. 285 (1892)(finding such power necessary to the "permanence of the Union").
Further, there is no Eleventh Amendment immunity where a Stateofficial is sued in her official capacity by a private individualseeking only prospective injunctive relief to ensure that theofficer's conduct is in compliance with federal law pursuant todoctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52L.Ed. 714 (1908). See Seminole Tribe, 517 U.S. at 49 n. 14, 116S.Ct. 1114 ("an individual can bring suit against a state officerin order to ensure that the officer's conduct is in compliancewith federal law"); see also Will v. Michigan Dept. of StatePolice, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45(1989) ("official-capacity actions for prospective relief are nottreated as actions against the State.") (quoting Kentucky v.Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114(1985)).
Most recently, in Board of Trustees of the Univ. of Alabama v.Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001),the Supreme Court used the Kimel congruence and proportionalityanalyses to determine that Title I of the Americans withDisabilities Act ("ADA"), 42 U.S.C. § 12111-12117, was notlegislation authorized by § 5 of the Fourteenth Amendment andcould not, therefore, abrogate the Eleventh Amendment immunity ofa State in a suit by a private individual seeking money damages.Garrett, 121 S.Ct. at 965-68. Significantly, the Court notedthe two-fold limitation of its holding by stating:
Our holding here that Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I [of the ADA] does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young.
Id. at 968 n. 9 (citations omitted).
This last statement is fatal to SPARA's constitutionalargument.4 The ADA and ADEA were both validly enactedpursuant to Congress' authority under U.S. Const. Art. I, § 8,cl. 3 to regulate interstate commerce. Both statutes prescribestandards applicable to the States.And the standards of the ADEA, like those of the ADA, can beenforced by the United States in actions brought by the EEOC, aswell as by suits by private individuals for injunctive reliefunder Ex parte Young.
Lastly, a State's defense of sovereign immunity belongs to theState. See Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27L.Ed. 780 (1883). The State has broad discretion with regard tothe exercise of that immunity. That State may raise its immunityat any time during the litigation, including on appeal. SeeEdelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 39L.Ed.2d 662 (1974). The State also may waive its immunity at itspleasure. See Petty v. Tennessee-Missouri Bridge Comm'n,359 U.S. 275, 276, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959). In this case,SPARA attempts, in effect, to force the State to invoke itsEleventh Amendment immunity. As the Court noted in Alden,"[t]he generation that designed and adopted the federal systemconsidered immunity from private suits central to [the] sovereigndignity [of the States]." 527 U.S. at 715, 119 S.Ct. 2240. Itwould be anomalous to suggest that a system that must respect thedignity of the sovereign State would also allow a voluntaryassociation to invoke the State's sovereign immunity against thewishes of that State.
Because SPARA has failed to establish a likelihood of success,the Court need not address the other prongs of the preliminaryinjunction analysis.
III. CONCLUSION AND ORDER
For the reasons stated above, SPARA's Motion for a PreliminaryInjunction (Docket No. 2) is DENIED.
2 Pursuant to Chapter 412 of the Massachusetts Acts of 1991,the Metropolitan District Commission Police and Registry of MotorVehicles Law Enforcement Division, along with the Capitol Police,were merged with the Division of State Police to form theconsolidated Department of State Police. See 1991 Mass. Acts.ch. 412, § 1. Section 122 of chapter 412, codified at Mass. Gen.L. ch. 32, § 26(3)(a), mandated that all members of theconsolidated Department of State Police who will have reachedtheir fifty-fifth birthday on or before December 31, 1992 shallretire by that date. Prior to the enactment of chapter 412, thefour law enforcement agencies were operated separately.Applicable Massachusetts statutes provided that Metropolitan andRegistry officers were required to retire at age 65. See Mass.Gen. L. ch. 32, § 69(d) (repealed by ch. 412, effective July 1,1992). State Police officers were compelled to retire at age 50.See Mass. Gen. L. ch. 32, § 26(3)(a); Mahoney v. Trabucco,738 F.2d 35 (1st Cir.) (applying the rational relation standardto uphold a mandatory retirement age of 50 for the State Police),cert. denied, 469 U.S. 1036, 105 S.Ct. 513, 83 L.Ed.2d 403(1984). Chapter 412 mandated retirement at age 55 across theboard, thereby adding five years to the employment expectationsof former State Police officers, but lopping ten years off of thetenure of former Registry and Metropolitan officers.
3 Just prior to the hearing, SPARA advanced a different lineof argument in its brief in opposition to the Defendants' motionto dismiss, namely, that Judge Mazzone misapplied the FirstCircuit's interpretation of a safe harbor provision of the ADEA,29 U.S.C. § 629(j), which immunizes certain mandatory retirementlaws from scrutiny under the Act. Because of the unanticipatedand complex issues raised by this new argument, Plaintiff hasagreed that only its constitutional argument should be consideredfor purposes of this motion for a preliminary injunction. TheCourt notes, however, that the First Amended Complaint makes nomention of a claim involving section 629(j).
4 SPARA argues that, because an identical disclaimer is notfound in the Kimel decision, this Court should infer thatKimel overruled EEOC v. Wyoming sub silento. Because Kimelexpressly acknowledged EEOC v. Wyoming as valid precedent, 528U.S. at 78, 120 S.Ct. 631, and stated that its ruling applied"only" to ADEA suits brought against States by privateindividuals, id. at 91, 120 S.Ct. 631, the argument thatKimel precludes suit by a federal agency is unpersuasive.
1. The complaint also names as defendants Ellen Philbin,Executive Director of the Massachusetts State Police RetirementBoard, and Jane Perlov, Secretary of Public Safety. All threedefendants are named in their individual capacities.