Correa-Ruiz v. Fortuno

United States Court of Appeals
For the First Circuit

No. 06-2578

CARMELO CORREA-RUIZ, FORMER COLONEL, ET AL.,

Plaintiffs, Appellants,

DANIEL GARCIA, ET AL.,

Movants,

v.

HONORABLE LUIS FORTUÑO, IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF
PUERTO RICO, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]

Before
Lipez and Howard, Circuit Judges,
and DiClerico,* District Judge.

Ariel Hernandez Santana, with whom Jesus Hernandez Sanchez and
Hernandez Sanchez Law Firm were on brief, for appellants.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
with whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana
Negrón-Vargas, Deputy Solicitor General, and Maite D. Oronoz-
Rodríguez, Deputy Solicitor General, were on brief, for appellees.

July 7, 2009

*
Of the District of New Hampshire, sitting by designation.
 LIPEZ, Circuit Judge. The Age Discrimination in

Employment Act ("ADEA") contains an exemption provision that allows

state and local governments to set mandatory retirement ages for

law enforcement officers and firefighters. See 29 U.S.C. § 623(j).

In this case, we examine for the first time revised criteria for

invoking that exemption, including a provision that conditions its

use on the employer's compliance with fitness testing regulations

that have yet to be promulgated by the Secretary of Health and

Human Services. Id. Appellants are more than two dozen former

Puerto Rico police officers who claim that their forced retirement

at age fifty-five, pursuant to Puerto Rico Law 181, violated the

ADEA and the Due Process Clause of the Fourteenth Amendment. See

P.R. Laws Ann. tit. 3, § 766g (2003) ("Law 181"). The officers

filed suit against the Commonwealth of Puerto Rico, its police

department, the current and former governors, and the current and

former police superintendents, seeking declaratory and injunctive

relief and damages. The district court dismissed all claims,1

concluding that Law 181, Puerto Rico's mandatory retirement law, is

consistent with the ADEA and that appellants' terminations also

1
Appellants also alleged a supplemental claim under Article
1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141.
The district court dismissed the federal claims with prejudice and
the Commonwealth claim without prejudice. Given our disposition of
the federal claims, we do not further consider the supplemental
claim. See Marrero-Gutierrez v. Molina, 491 F.3d 1, 7 (1st Cir.
2007) ("A district court retains the discretion . . . to decline to
exercise supplemental jurisdiction where the district court has
dismissed all claims over which it had original jurisdiction.").

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conformed to constitutional requirements. We agree and therefore

affirm.

I.

A. Applicable Age Discrimination Laws

1. The ADEA

As originally enacted in 1967, the ADEA did not apply to

States and their political subdivisions. EEOC v. Wyoming, 460 U.S.

226, 233 (1983).2 It thus had no impact on the age limits that

many local governments had adopted for police and firefighting

personnel. See, e.g., Johnson v. Mayor and City Council of

Baltimore, 472 U.S. 353, 358 (1985) (evaluating city code

provision, adopted in 1962, requiring mandatory retirement of most

firefighting personnel at age fifty-five); Minch v. City of

Chicago, 363 F.3d 615, 618 (7th Cir. 2004) (noting Chicago's

requirement, "[a]s early as 1939," that city firefighters retire at

the age of sixty-three); Binker v. Pennsylvania, 977 F.2d 738, 742

n.2 (3d Cir. 1992) (discussing Pennsylvania law, first enacted in

1929, requiring state police officers to retire at age sixty).

Among such provisions was Puerto Rico's Law 447, adopted in May

1951, which established a mandatory retirement age of sixty-five

for both police officers and firefighters.

2
A chronology of the Congressional action and Supreme Court
cases leading up to the current ADEA exemption for the mandatory
retirement of police officers and firefighters appears at the end
of this opinion.

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 Congress extended the ADEA to cover government employers

in 1974, and the Supreme Court quelled uncertainty over the

constitutionality of that amendment nine years later in EEOC v.

Wyoming, 460 U.S. at 243.3 Once the ADEA became applicable to

their employees, States and localities could retain maximum hiring

and retirement ages only if they could show that age was a bona

fide occupational qualification for particular positions. See 29

U.S.C. § 623(f)(1).4 This so-called "BFOQ exception" is

"'extremely narrow,'" and eligibility may turn on whether the

employer can demonstrate "'a factual basis for believing[] that all

or substantially all persons over the age qualification[] would be

unable to perform . . . the duties of the job involved.'" Gately

3
Doubt about whether the ADEA could be applied to state and
local governments had arisen in the aftermath of the Supreme
Court's decision in National League of Cities v. Usery, 426 U.S.
833 (1976). See Kopec v. City of Elmhurst, 193 F.3d 894, 896-97
(7th Cir. 1999). In Usery, which was subsequently overruled by
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985),
the Court held that the Tenth Amendment barred extension of the
minimum-wage and overtime provisions of the Fair Labor Standards
Act to state and local governments. 426 U.S. at 851. Although
Wyoming eliminated Tenth Amendment concerns about the ADEA, the
Supreme Court later held that Congress did not have the authority
to abrogate the States' sovereign immunity from suit by private
individuals for monetary relief under the ADEA. See Kimel v.
Florida Bd. of Regents, 528 U.S. 62, 91 (2000). Injunctive relief,
however, remains available. State Police for Automatic Ret. Ass'n
v. DiFava, 317 F.3d 6, 12 (1st Cir. 2003).
4
Section 623(f)(1) allows employers "to take any action
otherwise prohibited under [the statute] . . . where age is a bona
fide occupational qualification reasonably necessary to the normal
operation of the particular business . . . ." 29 U.S.C. §
623(f)(1).

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v. Massachusetts, 2 F.3d 1221, 1225-26 (1st Cir. 1993) (quoting W.

Air Lines, Inc. v. Criswell, 472 U.S. 400, 412, 414 (1985)

(additional citation and emphasis omitted; some alteration in

original)). Thus, with the 1974 amendment, States and localities

were subject to the same restrictive standard as private employers

for justifying the use of age in employment decisions.

In 1986, however, Congress again amended the ADEA to

provide a limited exemption for the mandatory retirement of state

and local law enforcement officers and firefighters. See 29 U.S.C.

§ 623(j) (1988). The exemption, known as the "safe-harbor"

provision, permitted any state or local government that had in

place age restrictions for law enforcement officers or firefighters

on March 3, 1983 – the day after the decision in EEOC v. Wyoming –

to reinstate those restrictions. The amendment did not allow

adoption of new mandatory retirement provisions, and the exemption

for pre-existing laws had a limited life span. "[D]esigned to

provide states an opportunity to adjust to the Supreme Court's

decision," DiFava, 317 F.3d at 9 n.3., the exemption expired on

December 31, 1993, when mandatory retirement provisions adopted by

state and local governments once again became subject to attack for

age discrimination.

That reversion to past practice was short-lived. In

1996, Congress reinstated the safe-harbor provision, with some

revisions and without a sunset provision, retroactive to its

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December 31, 1993 termination date. See 29 U.S.C. § 623(j).

Significantly, the 1996 legislation broadened the exemption to

allow States and localities that had not had age restrictions

before the Wyoming decision to enact such limits. Under this

renewed safe-harbor provision, a public employer may impose

mandatory retirement on law enforcement officers and firefighters

who either attain the age of retirement that was in place for those

employees as of March 3, 1983, or – if the employer's age limit was

enacted after the 1996 amendment took effect – the higher of the

age contained in the post-1996 enactment or age fifty-five. Like

the original version of the exemption, the 1996 amendment also

provided that any exempted discharge be "pursuant to a bona fide

hiring or retirement plan that is not a subterfuge to evade the

purposes of [the ADEA]." 29 U.S.C. § 623(j)(2).5

5
The full text of section 623(j) is as follows:

(j) Employment as firefighter or law enforcement officer

It shall not be unlawful for an employer which is a
State, a political subdivision of a State, an agency or
instrumentality of a State or a political subdivision of
a State, or an interstate agency to fail or refuse to
hire or 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 firefighter or as a law enforcement officer, the
employer has complied with section 3(d)(2) of the Age
Discrimination in Employment Amendments of 1996 if the
individual was discharged after the date described in
such section, and the individual has attained –

(A) the age of hiring or retirement,

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 The 1996 legislation also directed the Secretary of

Health and Human Services ("HHS") to study and report to Congress

within three years on the availability of tests or other methods

for assessing the ability of law enforcement officers and

firefighters to complete public safety tasks. Within four years,

the Secretary was to issue advisory guidelines on the use and

administration of physical and mental fitness tests to assess the

competency of such personnel, and the guidelines were to be

followed by regulations "identifying valid, nondiscriminatory job

performance tests that shall be used by employers seeking the

exemption." Pub. L. No. 104-208 § 119(2); 110 Stat. 3009, 3009-24-

25 (1996). The legislation further provided that, once the

regulations were issued, employers relying on the exemption would

respectively, in effect under applicable State or local
law on March 3, 1983; or

(B) (i) if the individual was not hired, the
age of hiring in effect on the date of such failure or
refusal to hire under applicable State or local law
enacted after September 30, 1996; or

(ii) if applicable State or local law was
enacted after September 30, 1996, and the individual was
discharged, the higher of –

(I) the age of retirement in effect on
the date of such discharge under such law; and

(II) age 55; and

(2) pursuant to a bona fide hiring or retirement
plan that is not a subterfuge to evade the purposes of
this chapter.

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be required to give public safety personnel who reached retirement

age an annual opportunity to show fitness for duty by passing such

a test. 110 Stat. 3009-25. Individuals who passed the test could

not be forced to retire. Id.

The expectation that fitness tests would be developed and

prescribed in regulations became part of the law as codified. The

statute requires the employer to comply with "section 3(d)(2) of

the Age Discrimination in Employment Amendments of 1996 if the

individual was discharged after the date described in such

section." 29 U.S.C. § 623(j)(1). The reference to "section

3(d)(2)" has been understood to be a mistaken reference to section

2(d)(2) of Public Law 104-208, which requires employers to offer

the fitness tests deemed appropriate by the Secretary. See Pub. L.

No. 104-208 § 119(2)(d)(2), 110 Stat. 3009, 3009-25 (1996);

§ 623(j) Historical and Statutory Notes. Section 2(d)(2) provides

that the requirement does not take effect, however, until "the date

of issuance of the regulations" identifying such tests.6

6
Section 2(d) of Pub. L. No. 104-208, § 119, states:

(d) JOB PERFORMANCE TESTS–
(1) IDENTIFICATION OF TESTS.--After issuance of the
advisory guidelines described in subsection (c), the
Secretary shall issue regulations identifying valid,
nondiscriminatory job performance tests that shall be
used by employers seeking the exemption described in
section 4(j) of the Age Discrimination in Employment Act
of 1967 with respect to firefighters or law enforcement
officers who have attained an age of retirement described
in such section 4(j).
(2) USE OF TESTS.--Effective on the date of issuance of

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 Thus, § 623(j)(1) effectively states that the employer's

obligation to administer fitness tests to individuals who reach

mandatory retirement age begins on "the date of issuance of the

regulations," which is the date described in section 2(d)(2) of the

ADEA amendments. However, neither the advisory guidelines on the

use and administration of tests, nor any regulations identifying

appropriate tests, have yet been issued. On its face, then, the

statute anticipates fitness testing as a prerequisite for mandatory

retirement, but the tests required to be used have not yet been

identified.7

2. Puerto Rico Law 181

In August 2003, the Puerto Rico legislature amended its

longstanding mandatory retirement law for Commonwealth police

officers and firefighters, Act No. 447 of May 15, 1951, under which

the regulations described in paragraph (1), any employer
seeking such exemption with respect to a firefighter or
law enforcement officer who has attained such age shall
provide to each firefighter or law enforcement officer
who has attained such age an annual opportunity to
demonstrate physical and mental fitness by passing a test
described in paragraph (1), in order to continue
employment.
7
The 1986 legislation also had ordered the Department of
Labor and the Equal Employment Opportunity Commission ("EEOC") to
conduct a study of the feasibility of fitness testing for public
safety personnel and directed the EEOC to promulgate guidelines on
the administration and use of such tests. Researchers from the
Center for Applied Behavioral Sciences of The Pennsylvania State
University conducted the study for the government entities and
concluded that "age was a poor predictor of performance in public
safety occupations," but no guidelines were issued. See H.R. Rep.
103-314 (Nov. 1, 1993).

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age sixty-five had been the upper limit of their employment. The

new Government Personnel Retirement Act, Law 181, lowered the

mandatory retirement age to fifty-five for police officers and

firefighters with thirty years of service, although the

superintendent of the police force could authorize an officer to

serve up to an additional twenty-four months as a member of the

Police Reserve force. P.R. Laws Ann. tit. 3, § 766g (2003).

The preamble to Law 181 framed the retirement scheme as

a way to promote modernization and innovation by bringing new

officers into the public safety forces. The preamble further

stated that "no discrimination is being applied to the members of

the Police or Firefighters Corps for reason of age." Rather, the

motivation was "to give a higher security to the people and to

protect the security" of police officers and firefighters.

The mandatory retirement provision was again amended in

2005. Under Act No. 22, police officers and firefighters with

thirty years of service could take voluntary retirement at age

fifty-five, but the mandatory retirement age was changed to fifty-

eight. P.R. Laws Ann. tit. 3, § 766g (2005).

B. Procedural Background

Four days after Law 181 was enacted, the Superintendent

of the Puerto Rico Police Department sent letters advising officers

who had reached age fifty-five that they had thirty days to

complete the necessary documents for their retirement. More than

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two dozen officers who were involuntarily terminated under Law 181

subsequently filed this action against the Commonwealth of Puerto

Rico, its police department, Governor Sila M. Calderón-Serra

("Calderón"), Police Superintendent Agustin Cartagena-Diaz, and

former Police Superintendent Victor M. Rivera-González,8 alleging

violations of the ADEA and, under 18 U.S.C. § 1983, the Equal

Protection and Due Process Clauses of the Fourteenth Amendment of

the United States Constitution. They also alleged a supplemental

claim under Article 1802 of the Puerto Rico Civil Code, P.R. Laws

Ann. tit. 31, § 5141.

In their complaint, the plaintiffs claimed that former

Governor Calderón and former Superintendent Rivera-González had

agreed "to get rid . . . of a group of old timers" within the

Police Department and replace them with younger officers. They

requested declaratory and injunctive relief to invalidate and

enjoin enforcement of Law 181 and to establish their right to due

process before being terminated. They also sought compensatory and

punitive damages against the individual defendants.

The defendants filed a motion to dismiss under Fed. R.

Civ. P. 12(b)(6), arguing that the Eleventh Amendment barred the

claims against the Commonwealth, the Police Department, and the

8
Luis Fortuño, the current governor, was later added to the
case in his official capacity, and Calderón remained a defendant in
her personal capacity. Jose Figueroa Sancha, the current
superintendent of police, has been substituted for Cartagena as a
defendant.

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individual defendants in their official capacities. They further

asserted that the plaintiffs had failed to state claims under the

ADEA and section 1983, and they alternatively raised a qualified

immunity defense.

In ruling on the motion, the district court noted

plaintiffs' concession that the Eleventh Amendment barred monetary

damages against the non-individual defendants and the individual

defendants in their official capacity, and it accepted defendants'

assertion, uncontested by plaintiffs, that there is no individual

liability under the ADEA. Correa-Ruiz v. Calderón-Serra, 411 F.

Supp. 2d 41, 47 (D.P.R. 2005). The court also found no merit in

the substantive claims, including plaintiffs' contentions that Law

181 is a subterfuge to evade the ADEA and that the Commonwealth

violated the ADEA by forcing plaintiffs' retirements without first

administering a fitness test as contemplated by section 623(j).

Id. at 48-52. The court dismissed all federal claims with

prejudice and the supplemental claim under Commonwealth law without

prejudice. Id. at 52-53. The court also denied plaintiffs' motion

for reconsideration.

Plaintiffs appeal both the judgment of dismissal and the

denial of reconsideration. They argue that the district court

improperly dismissed their complaint based on its erroneous

interpretation of the ADEA and its failure to apply well

established principles of due process entitling them to a hearing

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before they were terminated.9 They also claim that the Supreme

Court's Eleventh Amendment jurisprudence does not foreclose the

availability of damages from the Commonwealth under a due process

theory.

Our review of the district court's grant of a motion to

dismiss is novo. Fitzgerald v. Harris, 549 F.3d 46, 52 (1st Cir.

2008). "To survive a motion to dismiss, the complaint must allege

'a plausible entitlement to relief.'" Id. (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 559 (2007)). We turn first to the ADEA

claim and then briefly discuss the due process claim. Our

disposition of these claims makes it unnecessary to consider

appellants' arguments concerning available remedies.

II.

On appeal, plaintiffs offer numerous theories to support

their contention that the defendants violated their rights under

the ADEA. Among these claims, we discern three rationales for

recovery that warrant our attention: (1) plaintiffs' terminations

in accordance with Law 181 were unlawful because the ADEA bars a

state or local government from lowering a retirement age that was

in effect as of March 3, 1983, (2) plaintiffs' mandatory retirement

violated the ADEA because they were not provided with fitness

9
Plaintiffs do not present an equal protection argument on
appeal, and we therefore deem any such claim waived. See Levin v.
Dalva Brothers, Inc., 459 F.3d 68, 75 n.4 (1st Cir. 2006) (noting
that claims not raised in opening appellate brief are waived).

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testing to determine their capacity to continue working, and (3)

plaintiffs' terminations did not comply with § 623(j)(2) of the

ADEA because their discharges were not "pursuant to a bona fide

hiring or retirement plan that is not a subterfuge to evade the

purposes of this chapter."

A. The Lowered Retirement Age of Law 181 and the ADEA

Plaintiffs maintain that the 1986 and 1996 amendments to

the ADEA, which created the exemption for age-based termination of

public safety personnel, prohibit the reduction of a mandatory

retirement age that was applicable on March 3, 1983. They contend

that § 623(j) permits enactment of new age limits only in States

and localities that had no mandatory retirement law in effect at

that time. Because Puerto Rico's mandatory retirement age for

police officers was sixty-five in March 1983, plaintiffs assert

that Law 181, with its lowered age limit, must be invalidated as

inconsistent with the federal law.10

In construing a statute, we begin with its plain meaning,

and "[i]f the meaning of the text is unambiguous our task ends

there as well." United States v. Godin, 534 F.3d 51, 56 (1st Cir.

2008). A statute is not ambiguous unless "'it admits of more than

one reasonable interpretation.'" Id. (quoting Gen. Motors Corp. v.

10
This argument was not raised before the district court and
therefore could be treated as waived. See In re New Motor Vehicles
Canadian Exp. Antitrust Litig., 533 F.3d 1, 6 (1st Cir. 2008). We
have nevertheless chosen to address it in order to clarify the
scope of the safe-harbor provision.

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Darling's, 444 F.3d 98, 108 (1st Cir. 2006)). The language of

§ 623(j), as amended in 1996, does not support plaintiffs' proposed

interpretation of the safe-harbor provision. The statute

explicitly provides that States or their subdivisions may discharge

a law enforcement officer or firefighter pursuant to a mandatory

retirement plan that either was in effect on March 3, 1983 or was

enacted after September 30, 1996. The only age-related limitation

on the latter option is that the discharge occur no earlier than

age fifty-five. 29 U.S.C. § 623(j)(1)(B)(ii). Nothing in the

language of the provision even suggests that governments that had

mandatory retirement laws in place as of March 3, 1983 could not

enact new laws with lower retirement ages after September 30, 1996.

Plaintiffs rest their argument in part on an explanatory

"Rule of Construction" contained in the background information that

follows § 623(j) in the United States Code. The note, as it

appeared in the 1996 legislation, states:

CONSTRUCTION.--Nothing in the repeal,
reenactment, and amendment made by subsections
(a) and (b) shall be construed to make lawful
the failure or refusal to hire, or the
discharge of, an individual pursuant to a law
that–
(1) was enacted after March 3, 1983 and before
the date of enactment of the Age
Discrimination in Employment Amendments of
1996; and
(2) lowered the age of hiring or retirement,
respectively, for firefighters or law
enforcement officers that was in effect under
applicable State or local law on March 3,
1983.

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Pub. L. No. 104-208 § 119(1), 110 Stat. 3009, 3009-24 (1996).

Plaintiffs argue that this note eliminates any ambiguity

in the language of the ADEA amendments and shows that the

Commonwealth was prohibited from lowering the mandatory retirement

age for firefighters and law enforcement officers that was in

effect as of March 3, 1983. By its terms, however, the note

applies only to laws that were enacted between March 3, 1983 and

"the date of enactment" of the 1996 ADEA amendments, which was

September 30, 1996. Law 181 was enacted on August 15, 2003 –

outside the time frame to which the note refers. Thus, rather than

supporting plaintiffs' view that Law 181 violated the ADEA, this

note is strong evidence to the contrary. If the prohibition were

meant to extend to a law passed after the excluded period of time,

the end date in the phrase would have been unnecessary. Thus, the

only plausible interpretation of the note is that States and

localities were permitted to enact laws lowering the mandatory

retirement age for police officers and firefighters after passage

of the 1996 amendment, so long as they complied with the

requirements set out in the amendment.

Plaintiffs' reliance on our decision in Gately, 2 F.3d

1221, where we invalidated a lowered retirement age, is equally

misplaced. The mandatory retirement law at issue there was enacted

in 1991 in connection with the consolidation of four Massachusetts

police forces. Id. at 1224. Before the consolidation, officers in

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three of the forces had been subject to retirement at age sixty-

five and officers serving on the fourth force had been subject to

retirement at age fifty. Id. The 1991 state legislation imposed

mandatory retirement at age fifty-five on all members of the

consolidated force. Id. We held that the 1986 amendment to the

ADEA did not permit Massachusetts to lower the retirement age to

fifty-five for the group of officers who, in 1983, were subject to

retirement at sixty-five. Before adoption of the 1996 amendments,

a mandatory retirement scheme enacted after March 3, 1983, imposing

new or lowered age limits on employment, was permissible only if it

qualified under the narrow BFOQ exception. See id. at 1225-26

(describing the ADEA "'escape clause'" that allows all "employers

some limited flexibility to take age into consideration in business

decisions").

Unlike Gately, this case is not governed by the 1986

amendment and, as we have explained, a state statute lowering the

retirement age for public safety personnel is permitted by the 1996

amendment so long as the amendment's other requirements are met.

See Feldman v. Nassau County, 434 F.3d 177, 182 (2d Cir. 2006)

("[T]he exception can absolve a state or local government of

liability under the ADEA for an age limit in law enforcement hiring

regardless of whether that age limit was in existence pursuant to

local law at the time Wyoming was decided or whether it was enacted

after the 1996 ADEA amendments that reinstated the law enforcement

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exception.") (citations omitted).11 Law 181 is therefore not

invalid as a result of its lower triggering age.12

B. The Fitness Testing Requirement

Plaintiffs contend that, even if they were lawfully

subject to retirement at age fifty-five, the Commonwealth had to

give them the opportunity to avoid discharge by taking performance

tests that could prove their physical and mental fitness to

continue working. This is the testing described above, which

Congress expected to be in place within about four years after

enactment of the 1996 amendment. Although plaintiffs acknowledge

that the particular tests referenced in the statute have never been

11
Indeed, we observed in DiFava that the safe-harbor provision
"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)." DiFava, 317 F.3d at 14 (emphasis added). DiFava
primarily concerned the Massachusetts statute we found invalid in
Gately in light of the 1986 amendments, but its present-tense
description of the law suggests an understanding of the then-
current version of section 623(j) consistent with the view we have
articulated here.
12
Because the 1996 version of § 623(j) allows States and their
subdivisions to impose mandatory retirement at age fifty-five or
above, provisions adopting such a limit do not need to meet the
requirements contained in § 623(f)(1) for a BFOQ exception. See
Feldman, 434 F.3d at 182 n.5 (holding that § 623(j) "by its terms
relieves law enforcement agencies of having to establish that age
is a BFOQ in order to discriminate on the basis of age"); Kopec,
193 F.3d at 902 (noting that "[s]ection 623(j) would . . .
accomplish nothing if the exemption from the ADEA were conditioned
upon a BFOQ showing" because "[t]hat requirement is already found
in section 623(f)(1)"); see also Knight v. Georgia, 992 F.2d 1541,
1547 (11th Cir. 1993) (holding that, under the equivalent provision
in the 1986 amendment, a BFOQ showing was not necessary).

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identified by the Secretary of HHS, they insist that testing is

nonetheless a prerequisite to their discharge. They claim that, in

the absence of federally developed tests, Puerto Rico was required

to devise its own evaluation system – or refrain from imposing

mandatory retirement.

We reject this reading of the statute. Although the

language of § 623(j)(1) requires careful parsing, it unambiguously

requires testing as a pre-condition to mandatory retirement only

for those employees who would be discharged after the Secretary of

HHS promulgates appropriate tests.13 As described above, section

(j)(1) states that the testing requirement applies "if the

individual was discharged after the date described in such

section," and "such section" is "section 3(d)(2) of the Age

13
For convenience, we repeat the relevant portion of the
provision:

It 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 firefighter or as a law
enforcement officer, the employer has complied
with section 3(d)(2) of the Age Discrimination
in Employment Amendments of 1996 if the
individual was discharged after the date
described in such section . . . .

623(j)(1) (emphasis added). The statute then goes on to list the
permissible retirement ages depending on the time of enactment of
the applicable mandatory retirement plan and, in subsection (2),
requires that the plan be bona fide and not a subterfuge to evade
unlawful discrimination.

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Discrimination in Employment Amendments of 1996." 29 U.S.C. §

623(j)(1).14 The date referenced in section (d)(2) is "the date of

issuance of the regulations" the Secretary "shall issue . . .

identifying valid, nondiscriminatory job performance tests that

shall be used by employers seeking the exemption." Pub. L. No.

104-208 § 119(2), 110 Stat. 3009-25 (1996). Thus, when pieced

together, the elements of the statutory requirement are that (1)

employers seeking the benefit of the safe-harbor provision (2) must

use the tests identified by the Secretary (3) once regulations

identifying those tests have been issued.

Although the statutory language is not in our view

reasonably susceptible to another interpretation, our conclusion

would be the same if we deemed the provision ambiguous and found it

necessary to consider legislative history to ascertain Congress's

intent. See Godin, 534 F.3d at 56 (noting that, "[i]f the statute

is ambiguous, we look beyond the text to the legislative history in

order to determine congressional intent"); see also Minch, 363 F.3d

at 620 n.4 (stating that "[t]he failure to promulgate guidelines

and regulations for fitness testing gives rise to an ambiguity in

the statute"); Drnek v. Chicago, 192 F. Supp. 2d 835, 840 (N.D.

Ill. 2002) (concluding that "the plain language of § 623 is

14
As explained earlier, the reference to section (3)(d)(2)
should have been to section 2(d)(2). See supra note 6 &
accompanying text.

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ambiguous" because "it leaves a gap by requiring employers to

comply with regulations that have not been promulgated").

In a thoughtful discussion that was endorsed by the

Seventh Circuit in Minch, see 363 F.3d at 620 n.4, the district

court in Drnek examined § 623(j)'s legislative history at length

before concluding that the public safety exemption in the provision

was "subject to the use of fitness tests when and if suitable tests

were ever made available by HHS." Drnek, 192 F. Supp. 2d at 842.

The court cited comments made during floor debates on the proposed

legislation that showed skepticism among members of Congress about

the adequacy of existing physical tests. See id. at 841-42.15 The

court then concluded:

[T]he legislative history suggests that the
intent of the amendment was to reinstate an

15
For example, Representative Owens "noted that fitness tests
in existence at that time tended to discriminate against women and
minorities, and that they were not an effective substitute for age
limits." Drnek, 192 F. Supp. 2d at 841 (citing 141 Cong. Rec.
9491, 9492). Representative Weldon also observed that "'[f]itness
tests are not a valid alternative to age limits,' apparently
because of the shortcomings of existing tests, and that '[i]n the
absence of a valid fitness test, age limits ensure our public
safety teams are in peak condition.'" Id. (quoting 141 Cong. Rec.
at 9492). Senator Moseley-Braun spoke directly to the issue of
States and localities devising substitute tests:

"[Y]ou may ask why State and local governments cannot
just develop tests to screen out those individuals who
may still retain their strength at the age of 60 or 70.
However, there is no adequate test that can simulate the
conditions that firefighters and police officers face in
the line of duty."

Id. (quoting 141 Cong. Record 7765, 7766).

-21-
 exemption from the ADEA allowing for age-based
retirement for public safety officials because
fitness tests were unreliable, expensive, and
had potential discriminatory effects on women
and minorities. The provision in § 623(j)(1)
for compliance with § 3(d)(2) merely imposed
an obligation on employers to provide tests
when and if suitable tests became available;
it did not make tests a condition precedent to
the operation of the exemption.

Id. at 842.

We thus agree with the Seventh Circuit that "this

component of section 623(j)(1) is essentially meaningless at this

juncture." Minch, 363 F.3d at 620 n.4. At present, a State or

local government seeking to enforce a mandatory retirement

provision must show only that: (1) the designated retirement age

was set forth in a law that either was (a) in effect on March 3,

1983, or (b) in a law enacted after September 30, 1996, and is no

lower than age fifty-five; and (2) the termination was taken

pursuant to a bona fide retirement plan that is not a subterfuge

for impermissible age discrimination. Having already addressed the

timing and scope of Law 181, we now consider appellants' contention

that the statute was a subterfuge to evade the purposes of the

ADEA.16

16
Plaintiffs have failed to put in issue the bona fide nature
of the retirement plan. In their Eighth Amended Complaint, they
alleged that the defendants did not act pursuant to a bona fide
retirement plan, but, as the district court noted, "[t]hat lone
assertion" is insufficient to state a viable ADEA claim. See
Correa-Ruiz, 411 F. Supp. 2d at 50. Nor is it sufficient to
preserve the issue for appeal. See B & T Masonry Constr. Co. v.
Pub. Serv. Mut. Ins. Co., 382 F.3d 36, 40 (1st Cir. 2004) ("To

-22-
C. The Subterfuge Requirement

Plaintiffs argue that the enactment of Law 181 was a

subterfuge to evade the requirements of the ADEA because the

defendants "discriminated in a manner forbidden by the Act" when

they lowered the mandatory retirement age from sixty-five to fifty-

five. Plaintiffs emphasize that defendants acted with

discriminatory animus, deliberately seeking to replace them with

younger officers, and they assert that this discriminatory motive

connotes an impermissible scheme to bypass defendants' obligations

under the ADEA.

In effect, plaintiffs allege that Law 181 was a

subterfuge to evade the ADEA because it was the product of

intentional age discrimination. Using age as a basis for requiring

retirement is precisely what section 623(j)(2) entitles the

Commonwealth to do, however, and we thus join the Second and

Seventh Circuits in rejecting an interpretation of "subterfuge"

that would effectively nullify the exemption. See Feldman, 434

preserve a point for appeal, some developed argumentation must be
put forward in the nisi prius court – and a veiled reference to a
legal theory is not enough to satisfy this requirement."). Indeed,
appellants have not attempted to develop the allegation on appeal.
An ADEA claim resting on that basis would, in any event, be
unlikely to succeed in this case. See Kopec, 193 F.3d at 901
("Imbuing 'bona fide' with the meaning it carries in other,
comparable provisions of the statute, a bona fide hiring plan
presumably would be one that is genuine and pursuant to which
actual hiring decisions are made." (citing Pub. Employees Ret. Sys.
v. Betts, 492 U.S. 158, 166 (1989), for the proposition that an
"employee benefit plan is 'bona fide' to the extent that it . . .
exists and pays benefits . . . . (citation omitted))).

-23-
F.3d at 184 ("There is nothing deceptive about the state

legislature doing exactly what Congress provided it the authority

to do . . ."); Minch, 363 F.3d at 629 ("[D]oing something that the

statute expressly permits does not evade its prohibitions.").

In its analysis of the subterfuge limitation in Minch,

the Seventh Circuit relied on the Supreme Court's decision in

Public Employees Retirement System v. Betts, 492 U.S. 158 (1989).

Minch, 363 F.3d at 623-29; see also Feldman, 434 F.3d at 184

(adopting the reasoning in Minch). The Court in Betts had

considered another provision of the ADEA – section 623(f)(2) – that

also contained a "subterfuge" exception to an exemption from

liability. Minch, 363 F.3d at 624. Section 623(f)(2) protected

age-based employment decisions from the prohibitions of the ADEA if

they were taken pursuant to the terms of a bona fide benefit plan

and if – in the same language that appears in section 623(j) – the

plan was "not a subterfuge to evade the purposes of" the Act. Id.

In interpreting the "not a subterfuge" language in

section 623(f), the Supreme Court rejected the notion that age-

based differences in employee benefits would be inconsistent with

the ADEA unless the employer could offer a cost justification for

the differential treatment. Betts, 492 U.S. at 170-72. The Court

concluded that, to avoid "a self-defeating interpretation" of the

exception, id. at 178, the "not a subterfuge" criterion could not

invalidate the very age-based line-drawing that the exemption

-24-
allowed. Id. at 177-80; see also Minch, 363 F.3d at 625. The

Seventh Circuit applied that reasoning in the context of section

623(j):

The ADEA does not forbid [a State or locality]
from making age-based retirement decisions as
to its police and firefighting personnel; it
expressly allows state and local governments
to make such decisions so long as they act
within the parameters set forth in section
623(j)(1) . . . . The statute does not
condition the validity of such retirement
programs on proof that the public employer has
adopted the program genuinely believing that
it is justified in the interest of public
safety. Instead, recognizing that there was
not yet any national consensus as to the
relationship between age and one's fitness to
serve as a police officer or firefighter,
Congress opted simply to restore the status
quo ante, permitting states and cities to
continue imposing age limits on these
positions as they had been able to do prior to
the ADEA's extension to state and municipal
employers and Wyoming's 1983 holding
sustaining that extension.

Minch, 363 F.3d at 629. Thus, proof that an employer imposes

mandatory retirement for police officers and firefighters based on

the view that "older individuals are not up to the rigors of law

enforcement or firefighting and should make room for younger,

'fresher' replacements . . . will not establish subterfuge because

it does not reveal a kind of discriminatory conduct that the ADEA

by its very terms forbids." Id.

As both the Supreme Court in Betts and the Seventh

Circuit in Minch emphasized, this understanding does not strip the

"subterfuge" provision of all meaning. Instead, a plaintiff

-25-
asserting subterfuge must show that "the employer is using the

exemption as a way to evade another substantive provision of the

act" – in other words, that the employer is "commit[ting] some

other type of age discrimination forbidden by the ADEA." Minch,

363 F.3d at 629-30; see also Betts, 492 U.S. at 180; Feldman, 434

F.3d at 184. The Seventh Circuit offered two examples of viable

claims of subterfuge in the context of section 623(j): (1) if an

employer adopted or reinstated age limits in order to retaliate

against an employee who had protested practices made unlawful by

the ADEA,17 or (2) if the employer adopted age limits for police and

firefighting personnel at the same time that it created a new,

lower-paying position unrestricted by age, and invited the newly

retired officers to apply, allowing the inference that the

mandatory retirement scheme was a subterfuge for wage

discrimination against older employees. Minch, 363 F.3d at 630

(citing Betts, 492 U.S. at 180).

As we have described, the plaintiffs here offer only

accusations of age-based animus to support their subterfuge

contention, alleging in their complaint that the governor and

police superintendent agreed to "get rid . . . of a group of old

17
Section 4(d) of the ADEA, codified at 29 U.S.C. § 623(d),
forbids discrimination against an employee who has "opposed any
practice made unlawful by" the Act or has "made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or litigation" of an age discrimination
complaint.

-26-
timers with the purpose of replacing them by younger officers."

Even if that allegation fairly describes the defendants'

motivation, the fact remains that the ADEA permits government

employers who are concerned about the effectiveness of older public

safety officers to impose mandatory retirement at age fifty-five.

Plaintiffs have thus offered no theory of subterfuge that can

withstand a motion to dismiss, and they have therefore failed to

state a viable claim under the ADEA.

III.

Plaintiffs assert that their Fourteenth Amendment right

to due process was violated when, pursuant to Law 181, the

defendants lowered the mandatory retirement age by ten years

without providing them an opportunity to demonstrate their physical

and mental fitness to continue working. They claim that Law 447,

the 1951 act that set sixty-five as the upper age limit for police

officers, gave them a property interest in their jobs until they

reached that age. Plaintiffs also assert that they were entitled

to individual hearings before their terminations.

We see no merit in this constitutional claim. To the

extent plaintiffs have a property interest in their jobs, it

derives from Commonwealth law. See Hatfield-Bermúdez v. Aldanondo-

Rivera, 496 F.3d 51, 59 (1st Cir. 2007) ("Property interests are

'created and . . . defined by existing rules or understandings that

stem from an independent source such as state law.'" (quoting Bd.

-27-
of Regents v. Roth, 408 U.S. 564, 577 (1972))). The "right" to

continued employment until age sixty-five that plaintiffs claim to

have been given by Law 447 was modified by Law 181, and no due

process violation occurs when "the legislature which creates a

statutory entitlement (or other property interest) . . . alter[s]

or terminat[es] the entitlement by subsequent legislative

enactment." Gattis v. Gravett, 806 F.2d 778, 780 (8th Cir. 1986);

see also id. at 781 ("While the legislative alteration or

elimination of a previously conferred property interest may be a

'deprivation,' the legislative process itself provides citizens

with all of the 'process' they are 'due.'" (citing Atkins v.

Parker, 472 U.S. 115, 131 (1985)); Story v. Green, 978 F.2d 60, 63

(2d Cir. 1992) ("Having enacted a statute that created such a

[property] right, . . . the legislature retains the power to enact

new legislation altering or eliminating the right, and that

elimination does not contravene the Due Process or Takings Clauses

of the Constitution."); Hoffman v. City of Warwick, 909 F.2d 608,

619-20 (1st Cir. 1990) ("Where the legislature enacts general

legislation eliminating statutory rights or otherwise adjusting the

benefits and burdens of economic life, in the absence of any

substantive constitutional infirmity, 'the legislative

determination provides all the process that is due.'" (quoting

Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982)); see also

Nat'l R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry., 470

-28-
U.S. 451, 465-66 (1985) ("[A]bsent some clear indication that the

legislature intends to bind itself contractually, the presumption

is that 'a law is not intended to create private contractual or

vested rights but merely declares a policy to be pursued until the

legislature shall ordain otherwise.'" (quoting Dodge v. Bd. of

Educ., 302 U.S. 74, 79 (1937))); Nat'l Educ. Ass'n-Rhode Island ex

rel. Scigulinsky v. Retirement Bd. of R.I., 172 F.3d 22, 27 (1st

Cir. 1999).

Moreover, "[w]hen statutory benefits are denied or

terminated pursuant to a class-wide policy determination, as

opposed to an individual determination of eligibility, the Due

Process Clause does not require the state to afford a hearing to

each affected individual." Hoffman, 909 F.2d at 620; see also

Johnson v. Lefkowitz, 566 F.2d 866, 869 (2d Cir. 1977) (rejecting

entitlement to hearing before mandatory retirement because "the

administrative cost to the state of providing each retiree with a

hearing would be enormous, and by far outweigh the hardship to the

individual"); cf. O'Bannon v. Town Court Nursing Ctr., 447 U.S.

773, 800 (1980) (Blackmun, J., concurring in the judgment) ("When

governmental action affects more than a few individuals, concerns

beyond economy, efficiency, and expedition tip the balance against

finding that due process attaches."). Thus, the Police

Department's failure to administer fitness tests before discharging

-29-
plaintiffs violates neither the Constitution nor, as we have

explained, the ADEA.

Plaintiffs also attempt to rest a due process claim on

the "arbitrariness" of age fifty-five as "the point at which Police

Officers are no longer physically fit to serve on the force."

They cite the Puerto Rico legislature's subsequent amendment of Law

181, by Act No. 22 of June 30, 2005, raising the upper age limit

for police officers and firefighters to fifty-eight, as evidence

that the defendants lacked a basis for terminating their employment

at age fifty-five. Although this claim is insufficiently developed

to warrant our consideration, it is, in any event, patently

unavailing. Section 623(j) explicitly permits States to impose

mandatory retirement on public safety personnel at age fifty-five,

and a state legislature is therefore not obliged to amass

scientific research or empirical evidence justifying its decision

to adopt that age. The judgment made by Puerto Rico's legislature,

after further reflection, that the Commonwealth's safety goals

could be better achieved by raising the age to fifty-eight hardly

demonstrates that the prior adoption of age fifty-five was

arbitrary. "Forceful arguments certainly can be made as to the

wisdom of enforcing a maximum age of hire," Kopec, 193 F.3d at 904,

but Puerto Rico's decision to do so consistently with the ADEA did

not violate plaintiffs' right to due process.

-30-
 IV.

We summarize our holdings:

(1) Puerto Rico's Law 181, which lowered the mandatory

retirement age for public safety personnel from sixty-five to

fifty-five, is consistent with section 623(j) of the ADEA;

(2) Defendants were not required to administer fitness

tests before enforcing Law 181's mandatory retirement age because

the testing requirement in section 623(j) will not take effect

until appropriate tests are identified in regulations promulgated

by the Secretary of HHS;

(3) Plaintiffs' allegations of age-based animus on the

part of defendants do not establish that Law 181 was a "subterfuge"

for unlawful discrimination within the meaning of section 623(j)(2)

because the exemption's purpose is to allow the termination of

police officers and firefighters on the basis on age;

(4) The Due Process Clause of the Fourteenth Amendment

was not violated by plaintiffs' terminations without fitness

testing or individualized hearings.

We thus conclude that the district court properly

dismissed plaintiffs' complaint under Federal Rule of Civil

Procedure 12(b)(6) for failure to state a viable claim for relief.

The court likewise properly denied plaintiffs' motion for

reconsideration.

The judgment of the district court is therefore affirmed.

-31-
So ordered.

-32-
 CHRONOLOGY OF EVENTS LEADING TO AN EXEMPTION UNDER
THE ADEA FOR THE MANDATORY RETIREMENT OF
FIREFIGHTERS AND LAW ENFORCEMENT OFFICERS

1967
ADEA enacted. It does not apply to states and their political
subdivisions, and existing mandatory retirement provisions for
police officers and firefighters are unaffected.

1974
Congress extends the ADEA to cover government employers, meaning
that public employers could retain maximum hiring and retirement
provisions only if they could show that age was a bona fide
occupational qualification for the jobs.

1976
U.S. Supreme Court decision in National League of Cities v. Usery,
426 U.S. 833 (1976), raises doubts about whether the ADEA could
constitutionally be applied to state and local governments.

1983
U.S. Supreme Court decision in EEOC v. Wyoming, 460 U.S. 226
(1983), upholds the extension of the ADEA to government employers.
Mandatory retirement ages for firefighters and police officers were
once again clearly unlawful unless the states and localities could
show that age was a bona fide occupational qualification.

1986
Congress amends the ADEA to provide a temporary "safe-harbor"
provision allowing the mandatory retirement of state and local law
enforcement officers and firefighters if the government employer
had an age restriction in place on March 3, 1983 – the day after
the ruling in EEOC v. Wyoming. No new mandatory retirement
provisions could be adopted, and the exemption expired on December
31, 1993.

1996
Congress reinstated the safe-harbor provision, retroactive to
December 31, 1993. The 1996 amendment also allowed public
employers to adopt new mandatory retirement laws. Public employers
could thus impose mandatory retirement on police officers and
firefighters if: (1) the employer had a mandatory retirement law in
effect as of March 3, 1983, and the age of retirement was set no
lower than the age set in that earlier law; or (2) the employer
enacted a new mandatory retirement provision with an age limit no
lower than fifty-five.

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