State Police for Automatic Retirement Ass'n v. Difava

United States Court of Appeals
For the First Circuit

Nos. 01-1581, 01-2429

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.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Torruella, Circuit Judge,

Campbell and Cyr, Senior Circuit Judges.

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.

January 17, 2003

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 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 (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

1
SPARA brought suit against John DiFava, Superintendent of the
Department of State Police; Ellen Philbin, Executive Director of
the Massachusetts State Police Retirement Board; and Jane Perlov,
Secretary of Public Safety in their individual capacities.

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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.

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 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

2
The ADEA prohibits an employer from "failing to hire or to
discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment because of such individual's age . . . ."
29 U.S.C. § 623(a).

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found in § 6(3)(a).3 Gately v. Massachusetts, 2 F.3d 1221, 1229

(1st Cir. 1993), cert. denied, 511 U.S. 1082 (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

3
The safe-harbor provision of the ADEA, 28 U.S.C. § 623(j),
creates an exemption that gives state and local officials the
option to lawfully retire law enforcement officials who have
attained the age of retirement in effect under applicable state or
local law on March 3, 1983, or pursuant to a state law enacted
after September 30, 1996, that is not a subterfuge to evade the
purposes of the ADEA. See Gately v. Massachusetts, 2 F.3d 1221,
1228-29 (1st Cir. 1993), cert. denied, 511 U.S. 1082 (1994)
(referring to the 1986 amendment); Gately v. Massachusetts, No. 92-
13018-MA, 1998 WL 518179, at *7 n.5 (D. Mass. June 8, 1998)
(discussing the applicability of the safe-harbor provision to §
6(3)(a)). The history of the safe-harbor provision is complex. In
1986, Congress amended the ADEA to create a time-limited exemption
that allowed states to make hiring and discharge decisions of law
enforcement personnel pursuant to applicable state or local law in
effect on March 3, 1983 -- the day after issuance of the Supreme
Court's decision in EEOC v. Wyoming, 460 U.S. 226, 239 (1983),
holding that the ADEA validly applied to state and local
governments. The exemption, designed to provide states an
opportunity to adjust to the Supreme Court's decision, expired on
December 31, 1993. On that date the ADEA's strictures against age
discrimination would thus become fully applicable to state and
local employment decisions related to law enforcement officers.
However, on September 30, 1996, Congress again amended the ADEA so
as to reinstate the safe-harbor provision, with some revisions.
The amendments were made retroactive to December 31, 1993.

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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

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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

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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 (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). SPARA, with the district court's permission, amended its

complaint two more times to include claims that the injunction in

Gately was invalid because (1) the district court in the Gately

action misconstrued the applicability of the safe-harbor provision

in the ADEA for mandatory retirement plans for state law

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enforcement officers, 29 U.S.C. § 623(j); (2) the blanket

prohibition against requiring the retirement of any state police

officer at age 55 or older had created a de facto class action in

violation of Federal Rule of Civil Procedure 23; and (3) the

injunction impermissibly lacked a termination date. SPARA also

appeared to argue that the State Officials were applying the

injunction incorrectly in direct contravention of this court's

decision in Gately, 2 F.3d at 1221.

The State Officials and the intervenors filed a motion to

dismiss the Third Amended Complaint. The district court allowed

the motion, concluding that SPARA's action was barred by the

doctrine of res judicata. State Police for Automatic Ret. Ass'n v.

DiFava, 164 F. Supp. 2d 141, 155 (D. Mass. 2001). The court

determined that there had been (1) a final judgement in the Gately

action; (2) that the present action derived from the same set of

operative facts; and (3) that the Commonwealth had ably represented

the interests of SPARA in the Gately action. In the alternative,

the district court ruled that, given this court's decision

affirming the preliminary injunction, stare decisis precluded it

from reviewing or altering the permanent injunction. The district

court also dismissed SPARA's claims that the lack of a termination

date invalidated the permanent injunction and denied SPARA's

attempt to sue under Federal Rule of Civil Procedure 23, noting

that the rules did not create federal substantive rights.

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 This appeal followed.

II. Discussion

On appeal, SPARA does not pursue all the points raised

below. SPARA does not challenge the district court's decisions (1)

that stare decisis precluded it from reviewing and altering the

permanent injunction; (2) that SPARA was without a cause of action

under Federal Rule of Civil Procedure 23 (Count II); and (3) that

SPARA did not properly allege constitutional equal protection

claims based on animus under 42 U.S.C. §§ 1985 and 1986 (Counts V

and VI).

Our discussion is limited to the issues SPARA now argues

on appeal. First, SPARA claims that the district court erred when

it concluded that, after the Supreme Court's decision in Kimel, the

ADEA remains applicable to the states. Second, SPARA argues that

the doctrine of res judicata does not bar it from attacking the

permanent injunction issued in Gately. Third, SPARA attacks

generally the breadth of the permanent injunction, claiming that

the district court in the original Gately action exceeded its power

when it enjoined the state from retiring state police officers

subject to age 50 retirement prior to the merger.

A. Whether the ADEA Remains Applicable to the States

SPARA contends that the Supreme Court's decision in Kimel

renders the ADEA inapplicable to the states in the present

situation. Under this view, the continuing permanent injunction

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issued in the Gately action, enforcing the ADEA in such a way as to

nullify the state's mandatory age 55 retirement law, is an illegal

and invalid exercise of federal judicial power, leaving the

Commonwealth's statute requiring the age-based retirement of state

police officers in full force.

This reading of Kimel is erroneous. The Kimel Court

reiterated the Supreme Court's earlier holding in Wyoming, 460 U.S.

226 (1983), that the ADEA constitutes a valid exercise of

Congress's power under Article I, § 8, cl. 3 "'[t]o regulate

Commerce . . . among the several States.'" Kimel, 528 U.S. at 78

(quoting Wyoming, 460 U.S. at 243). Moreover, nothing was said in

Kimel to question Wyoming's determination that Congress had

extended the ADEA to cover state and local governments and their

employees in addition to private firms and individuals. Nor did

Kimel alter Wyoming's holding that the ADEA's regulation of state

and local government workers did not violate the Tenth Amendment or

other provisions of the Constitution. Wyoming, 460 U.S. at 232-

243. All that Kimel held was that -- although the ADEA remained a

valid exercise of Congress's power under the Commerce Clause --

this fact alone did not, and could not, enable Congress to override

a state's Eleventh Amendment immunity against suit. 528 U.S. at

91. Hence Kimel did not declare the standards of the ADEA invalid

nor inapplicable as they pertained to the states, but simply

endorsed the rights of states and political subdivisions to enforce

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against ADEA lawsuits the immunity conferred by the Eleventh

Amendment.

The Eleventh Amendment, however, does not confer upon the

states a total immunity against suit. Alden v. Maine, 527 U.S.

706, 755 (1999). Kimel involved a private action for monetary

damages. Neither Kimel, nor Eleventh Amendment jurisprudence,

prevents individuals, such as the Gately plaintiffs, from obtaining

injunctive relief against a state based upon the ADEA pursuant to

Ex parte Young, 209 U.S. 123 (1908). See Bd. of Trs. of the Univ.

of Ala. v. Garrett, 531 U.S. 356, 374 n.9 (2001) (private

individuals may sue for injunctive relief to enforce the standards

of the ADA under Ex parte Young); Laro v. New Hampshire, 259 F.3d

1, 17 (1st Cir. 2001).

Indeed, the United States itself may enforce the

standards of the ADEA against states both in actions for money

damages and for injunctive relief. See Garrett, 531 U.S. at 374

n.9; Alden, 527 U.S. at 755; Laro, 259 F.3d at 17. The EEOC, an

agency of the United States, was a party to the suit that resulted

in the issuance of the permanent injunction that SPARA now seeks to

invalidate. In Alden the Court stated that "[i]n ratifying the

constitution, the States consented to suits brought by other States

or by the Federal Government." 527 U.S. at 755. Thus, even though

private individuals are precluded by the Eleventh Amendment from

suing the Commonwealth for money damages for violations of the

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ADEA, the provisions of the ADEA remain fully applicable and may be

enforced against the Commonwealth in the manner described. Kimel

has not so altered the legal landscape as to invalidate the

permanent injunction issued in Gately.

B. Remaining Claims

Absent its argument that Kimel removed the legal basis

for the 1998 permanent injunction, SPARA's complaint is essentially

a renewed attack upon the underlying merits of the injunction.

SPARA's primary contention is that the mandatory retirement age of

55 found in Mass. Gen. Laws ch. 32, § 6(3)(a), does not violate the

ADEA because it is in fact allowed (as to certain officers) by the

safe-harbor provision of the ADEA, 29 U.S.C. § 623(j) (2000).

SPARA also contends that the State Officials' continued adherence

to the injunction violates its members' civil rights.

The district court held that SPARA was barred by res

judicata from attempting to litigate this issue. State Police for

Automatic Ret. Ass'n, 164 F. Supp. 2d at 155. While we agree with

the district court that SPARA's complaint must be dismissed, and

while we do not necessarily reject the district court's res

judicata analysis, we affirm on somewhat different grounds.

Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir.

1994). We conclude that SPARA's complaint is devoid of merit and

lacks any basis on which relief can be granted. Fed. R. Civ. P.

12(b)(6).

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 SPARA contends that the ADEA's safe-harbor provision

should be read to save the state's mandatory retirement age of 55

as applied to those officers who were in the former state police

division at the time it was merged with the three other police

forces. SPARA is apparently arguing that, by failing to apply the

state's 55-year mandatory retirement age to former members of the

old state police division, the Commonwealth is permitting these

officers to stay longer than they should, thereby filling positions

into which SPARA's members, or some of them, might otherwise be

promoted.

The safe-harbor provision in effect at the time of the

Gately action provided:

[i]t shall not be unlawful for an employer
which is a State . . . to discharge any
individual because of such individual's age if
such action is taken --
(1) with respect to the employment of an
individual . . . as a law enforcement officer
and the individual has attained the age
of . . . retirement in effect under applicable
State or local law on March 3, 1983; and
(2) pursuant to a bona fide . . . retirement
plan that is not subterfuge to evade the
purposes of this chapter.

29 U.S.C. § 623(j).

The provision was initially enacted to give states a

grace period of seven years during which time certain retirement

plans for law enforcement officials would be exempted from the

ADEA's reach. Gately, 2 F.3d at 1229. We concluded in Gately

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that, under the exemption, states were free to raise or eliminate

pre-March 3, 1983 mandatory retirement ages for law enforcement

officials but they could not lower retirement ages below what was

in effect on that date. Id. In essence, the retirement age

requirements of a plan in effect as of March 3, 1983 became the

floor for legally valid plans adopted by a state. Id. (citing 132

Cong. Rec. S16850-02 (daily ed. Oct. 6, 1986)).

SPARA now concedes, as was held in Gately, that the

mandatory retirement age contained in § 6(3)(a), as applied to the

Gately plaintiffs, was not saved by the safe-harbor provision

contained in § 623(j). The Gately plaintiffs consisted of former

members of the MDC Police, the Capitol Police, and the Registry

Police whose retirement age had been 65. The age-55 statute,

adopted in 1991 as part of the consolidation of the four state

police forces, impermissibly lowered the retirement age of those

plaintiffs. SPARA argues, however, that the age-55 age cap

contained in § 6(3)(a), as applied to former troopers in the old

state police division, whose retirement age in 1983 was 50, was

protected by the exemption contained in § 623(j).

The difficulty with this argument is that the safe-harbor

provision merely permits "an employee which is a State" to

grandfather pre-March 3, 1983, state retirement standards. It does

not require a state to continue to enforce such age-based

standards, nor does it empower individual state employees to force

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the state to do so. Having found that the mandatory age-55

retirement law enacted as part of the reorganization of the

enlarged State Police Department violated the ADEA with respect to

certain of its members, the district court understandably enjoined

enforcement of the entire law rather than attempting to narrow it,

as SPARA would prefer, so that it would still apply to some

officers within the new department although not others. See, e.g.,

Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 397 (1988)

(stating "we will not rewrite a state law to conform it to

constitutional requirements"); Consol. Cigar Corp. v. Reilly, 218

F.3d 30, 56 (1st Cir. 2000) (stating courts must "take care not to

trample legislative or executive province of state authorities by

making unduly substantive additions or changes to laws and

regulations"), rev'd in part on other grounds sub nom., Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525 (2001). The Commonwealth,

represented in the Gately action by its Attorney General, chose not

to appeal from the broadly-worded injunction, accepting the federal

court's determination that § 6(3)(a) was, in effect, non-severable,

i.e., could not reasonably be applied to the reorganized division

in a splintered fashion so as to permit the forced retirement of

certain former state troopers while all others would be free from

any retirement age limit. Certainly both the district court and

the Commonwealth were entitled to doubt that the Massachusetts

legislature would have wanted the age-55 retirement law -- that the

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legislature had written expressly to apply to the entire new state

police department -- to remain in effect only with respect to some

officers while others enjoyed the full protections of the ADEA.

Cf. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 75 (1996)

(noting that a federal court is not free to rewrite a law "to

approximate what we think Congress might have wanted had it known

that [the statute] was beyond its authority"). It is notable that

the Gately court afforded the parties time to return to the

Massachusetts legislature in hopes of securing legislative redress

-- a vain hope, as matters evolved.

In any event, whether to pursue the goal SPARA now seeks

and attempt to persuade the federal court to narrow its injunction

so as to save the retirement age selectively under the ADEA's safe-

harbor provision in the case of certain former state troopers was

a decision for the Commonwealth alone to make.4 See Clerk of

4
We note that SPARA's members had ample notice of the Gately
action. They could have brought their views to the attention of
the Commonwealth's attorney general in a timely fashion, or even
sought to persuade the court to allow them to intervene
permissively, or, possibly, to file an amicus brief on the point
now made. State police officers were apprised of the developments
in the Gately litigation through internal memoranda and press
coverage. The Gately action spanned six years -- from the date of
the preliminary injunction issued in 1992 to the date of the nearly
identical permanent injunction issued in 1998. The impact of the
injunction on advancement within the department was certainly a
matter that could have been anticipated during the six years the
preliminary injunction was in place. The Commonwealth's litigation
position -- upholding the mandatory retirement age without
differentiating among officers -- was revealed, at the latest,
during its appeal from the preliminary injunction in 1992. Yet, it
was not until two years after the final judgment was entered in the

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Superior Court v. Treasurer and Receiver Gen., 437 N.E.2d 158, 163

(Mass. 1982) ("The Attorney General alone has control over the

conduct of litigation involving the Commonwealth, its agencies, and

officers."). The safe-harbor provision permits states alone to

grandfather pre-March 3, 1983 retirement laws. As a narrow

exception to ADEA's broad prohibition of mandatory age-based

retirement, it allows states, if they choose, to continue to

enforce against relevant law enforcement officers certain earlier

age-based retirement laws (or to create new laws consistent with

the mandates of the statute). The language of § 623(j) is

permissive not mandatory. The Commonwealth's and the State

Officials' adherence to the permanent injunction in no way violates

§ 623(j) much less any other provision of the ADEA. Massachusetts

fought hard in Gately to uphold the validity of the age-55

retirement law as a whole; but once the Gately plaintiffs prevailed

the Commonwealth was entitled to accept, without further appeal,

the court's determination that the age-55 law should not stand on

a fragmented basis.

Not only are the grandfather rights in § 623(j) expressly

accorded to the states alone, but neither § 623(j), nor any other

part of the ADEA, makes provision for a private cause of action in

the case of individual officers or classes of officers who wish to

Gately action that a SPARA member sought to intervene. When that
motion to intervene was denied as untimely, the intervenor did not
appeal from the decision.

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retain state age-based retirement laws. Section 626(c)(1) of the

ADEA allows "any person aggrieved [to] bring a civil action in any

court of competent jurisdiction for such legal or equitable relief

as will effectuate the purposes of this chapter." The purpose of

the ADEA is to eliminate age discrimination in the workplace.

McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995);

Lavery v. Marsh, 918 F.2d 1022, 1025 (1st Cir. 1990). SPARA's

desire to preempt § 623(j) to its own uses, so as to grandfather a

state retirement law that is otherwise in contravention of the ADEA

does not advance this purpose. The ADEA has been said not to

prevent an employer from treating older persons more generously

than others. Schuler v. Polaroid Corp., 848 F.2d 276, 278 (1st

Cir. 1988) (Breyer, C.J.). Additionally, it is clear that § 623(j)

does not provide for an implied cause of action that would allow

private litigants to force states, against their will, to use the

protections offered in the safe-harbor provision. See Merrill

Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 375-78

(1982); Cannon v. Univ. of Chicago, 441 U.S. 677, 698-99 (1979);

Cort v. Ash, 422 U.S. 66, 78 (1975).

Furthermore, SPARA has failed to explain how the State

Officials continued adherence to the terms of the injunction

violates any cognizable statutory or constitutional rights of its

members. SPARA complains that the State Officials are depriving

its members "of promotions to the position of sergeant, lieutenant,

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and captain because the order prohibits the implementation of the

mandatory retirement age of 55." It is unclear from where SPARA

would have us find such a "right to promotion" in this context.

SPARA does not allege that any federal or state statute affords

them a legal right to receive as many promotions as they would have

received if the mandatory retirement policy they favor were in

effect. No relevant precedent for such a right in federal or state

law has been called to our attention.

SPARA also broadly alleges that the State Officials'

adherence to the permanent injunction violates its members' equal

protection rights. To establish an equal protection claim, SPARA

must allege that its members have "been intentionally treated

differently and there is no rational basis for the difference in

treatment." Village of Willow Brook v. Olech, 528 U.S. 562, 564

(2000) (per curiam). SPARA has not alleged that similarly situated

state police officers are being promoted and its members are not.

The premise of SPARA's complaint is that the lack of a mandatory

retirement for certain officers is slowing the advancement of all

state police officers. SPARA has simply failed to allege the facts

necessary to support an equal protection claim. See Fireside

Nissan, Inc. v. Fanning, 30 F.3d 206, 219 (1st Cir. 1994).

C. Conclusion

The judgment of the district court is affirmed.

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