dissenting.
This case raises an intricate question of statutory interpretation, but if one works through it carefully the answer is reasonably clear; it is not the answer the court gives; and it requires reversal. The court says in a footnote that the appellant did not make the right argument for reversal and so has waived it. If he had waived it, this would be a solid ground for affirming the appeal, but not for analyzing the issue incorrectly, as the court proceeds to do. And he didn’t waive it. He devoted eight pages of his opening brief and five pages of his reply brief to the argument that he captioned “The 1996 Amendment Is Inapplicable Because Neither State Nor Local Law Established a Maximum Hiring Age As Of The Time Of The Hiring Decision,” which is both correct and the key to the court’s error. The law on which the dismissal of Kopec’s suit is based permits, as I shall explain, the use of age as a hiring factor if the employer has a hiring plan authorizing such use; and the employer in this case, the City of Elmhurst, did not have such a hiring plan. Thus, as Kopec put it in his opening brief, “the effect of the decision below is to bind a police applicant’s ADEA rights to state and local law which no longer exists” (emphasis added). For clarity and completeness, he should have added that because the city had no age-restricted plan in existence when he was turned down- — the point he stresses in both his briefs — the city’s action was not pursuant to a hiring plan that authorized the use of age as a factor in hiring. But if failure to make one’s grounds of appeal perspicuous were a ground for waiver, we would have very few issues to decide.
On March 3, 1983, both the State of Illinois and the City of Elmhurst had a rule that an applicant for a full-time position as a police officer had to be under the age of 35 to be eligible. The legality of the rule was questionable, because federal law had since 1967 prohibited discrimination on grounds of age, Age Discrimination in Employment Act, 29 U.S.C. §§ 621 eb seq., and the courts had been skeptical of general claims that youth was a bona fide occupational qualification (a defense under the Act) for public safety officers. See, e.g., Orzel v. City of Wauwatosa Fire Dept., 697 F.2d 743, 748-56 (7th Cir.1983); Hahn v. City of Buffalo, 770 F.2d 12, 15-16 (2d Cir.1985).
In 1986, Congress amended the age discrimination law to permit states and their subdivisions to make hiring and firing decisions on the basis of age in the case of firemen and policemen. But this was on two conditions. First, that “the individual has attained the age of hiring or retirement, respectively, in effect under applicable State or local law on March 3, 1983”— the date on which the Supreme Court in EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), held that the age discrimination law validly applied to state and local governments. Second, that the decision to hire or discharge the individual was made “pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this [Act].” 29 U.S.C. § 6230) (1992).
So Elmhurst had a breather. But the 1986 amendment had a sunset provision pursuant to which the amendment expired automatically on December 31,1993.
Richard Kopec, the plaintiff in this case, applied for a full-time position as an Elm-hurst policeman in October of 1994. He was 45 years old. In 1995, by which time the state had rescinded its age-35 rule and the city had likewise rescinded its mirror-image rule, the city turned down Kopec’s application, he claims on the basis of his age (the city disagrees). On April 30, 1996, he brought suit against the city — this suit — under the Age Discrimination in Employment Act.
On September 30, 1996, however, Congress reinstated the 1986 amendment — the amendment that had expired by its own *906terms at the end of 1993 — and made the reinstatement retroactive to the date of that expiration. 29 U.S.C. § 623(j). It was thus as if the 1986 amendment had contained no sunset provision but had simply continued in force to the present. On the basis of the new law, the district court dismissed Kopec’s suit and this court now affirms that dismissal on the ground that since the city had on March 3, 1983, a rule against hiring full-time police officers if they were over 35, the reinstated 1983 amendment allows it to enforce the rule against Kopec even though it wasn’t in effect either when he was turned down or, later, when he sued.
In the last act of this drama, the state, effective August 17, 1997, reinstated the age-35 hiring rule for policemen that it had repealed in 1995. 65 ILCS 5/10-2.1-6(a).
The city should lose because there was no “bona fide [age-35] hiring ... plan” in force when Kopec was turned down. The existence of such a plan is the sine qua non of the safe harbor created by the 1986 amendment to the ADEA and extended to the present by the 1996 amendment. There had been an age-35 hiring plan, but it was repealed before Kopec was turned down, and so the refusal to hire him cannot be justified by reference to it. The state has now reinstated its age-35 hiring plan. But it did this after Kopec was turned down; and while Illinois law on retroactivity is in a state of some muddle, it is reasonably clear that the reinstated rule would not be given retroactive effect by an Illinois state court.
Under the “vested rights” approach adopted by the Supreme Court of Illinois in First of America Trust Co. v. Armstead, 171 Ill.2d 282, 215 Ill.Dec. 639, 664 N.E.2d 36, 39-40 (1996), Kopec’s right to complain about age discrimination in the city’s refusal to hire him had vested when he brought his suit, and that was more than a year before the reinstated age-35 rule became effective. See Harraz v. Snyder, 283 Ill.App.3d 254, 218 Ill.Dec. 590, 669 N.E.2d 911, 917 (1996); Link v. Venture Stores, Inc., 286 Ill.App.3d 977, 222 Ill.Dec. 283, 677 N.E.2d 486, 488 (1997). Courts which applied the vested-rights approach before Armstead held, it is true, that an Illinois statute could not give rise to a vested right, e.g., Orlicki v. McCarthy, 4 Ill.2d 342, 122 N.E.2d 513, 515 (1954); People v. Stothoff, 208 Ill.App.3d 500, 153 Ill.Dec. 462, 567 N.E.2d 420, 422 (1990), and for all I know this remains the law after Arm-stead. But the idea behind this principle appears to be that what Illinois giveth Illinois may taketh away, and so it is inapplicable to someone like Kopec who is claiming under a federal statute. This interpretation is bolstered by the fact that under the Illinois eases, common law rights, unlike Illinois statutory rights, can vest. Cooper v. Chicago Transit Authority, 224 Ill.App.3d 321, 166 Ill.Dec. 617, 586 N.E.2d 575, 577 (1991); Young v. Chicago Transit Authority, 209 Ill.App.3d 84, 154 Ill.Dec. 18, 568 N.E.2d 18, 23 (1990). The common law is a source of extralegislative rights, although the Illinois legislature can, of course, alter the common law of Illinois. From the standpoint of the Illinois legislature, rights created by federal law are also extralegislative and so presumably would be treated the same, for purposes of determining retroactivity, as common law rights. An old Illinois case, dealing with a right created by another state, supports this surmise. Brennan v. Electrical Installation Co., 120 Ill.App. 461 (1905). I do not think it is necessary to consider whether there might be some federal interest in the determination of the retroactivity of a state rule that is in effect incorporated into a federal statute; certainly this is not an issue that the parties have addressed or that the court discusses.
Even under the older approach of Illinois law to issues of retroactivity, an approach that may have retained some vitality despite Armstead, see People v. Digirolamo, 179 Ill.2d 24, 227 Ill.Dec. 779, 688 N.E.2d 116, 128 (1997); Ganci v. Blauvelt, 294 Ill.App.3d 508, 228 Ill. *907Dec. 890, 690 N.E.2d 649, 653 (1998); Calamari v. Drammis, 286 Ill.App.3d 420, 221 Ill.Dec. 760, 676 N.E.2d 281, 286-88 (1997); but see Dardeen v. Heartland Manor, Inc., 186 Ill.2d 291, 238 Ill.Dec. 30, 710 N.E.2d 827, 830 (1999) (reaffirming Armstead without citing Digirolamo), the state’s reinstated age-35 rule would not be applied retroactively. The old approach created a presumption, which nothing in the statute reinstating the age-35 rule rebuts, against the retroactive application of a statute that makes a substantive change in the law, as this one did.
The fact that an age-35 plan was in effect on March 3, 1983, is significant, because it is one of the conditions for docking in the safe harbor. But the other condition, equally important, is that the applicant have been turned down pursuant to a bona fíde plan. There was no plan pursuant to which Kopec could have been turned down on the basis of his being older than 35.
I would be sympathetic to an argument by the city that despite the repeal of the state’s law, it had in fact turned down Kopec pursuant to a bona fide age-35 hiring plan for police and firefighters. All that the sunsetting of the 1986 amendment did was to deprive the city of its safe harbor; it did not of its own force compel the abrogation of the hiring plan; and perhaps a plan repealed as a statute could continue as a policy. But the city does not argue that it turned down Kopec pursuant to an age-35 plan or policy. In fact, it denies that it turned him down because of his age at all. It says he was unqualified. That remains to be determined. Since the city denies having turned him down in accordance with a bona fide age-35 hiring plan, it cannot rely on the federal safe harbor provision. Cf. Auriemma v. Rice, 910 F.2d 1449, 1456-57 (7th Cir.1990) (en banc). That provision is applicable only to personnel actions taken pursuant to such plans.
Where my colleagues on this panel have gone astray is in supposing that the safe-harbor provision does not require that the hiring plan pursuant to which the plaintiff was discriminated against say anything about age. It is enough, they think, if there was an age-specific plan in force on March 3, 1983, even if the reference to age dropped out long before the complained-of discrimination. No case supports this unlikely proposition. The only case they cite for it, Roche v. City of Chicago, 24 F.3d 882, 884 (7th Cir.1994), held only that a city that didn’t have an age rule in effect on March 3, 1983, could not take advantage of the exemption in the federal act by adopting such a rule later. In Petrelli v. City of Mount Vernon, 9 F.3d 250, 256 (2d Cir.1993), the age-specific law in force on March 3,1983, remained in effect when the plaintiff was rejected, and was the basis for his rejection. See also Knight v. Georgia, 992 F.2d 1541, 1547 (11th Cir.1993). Suppose that at some point after March 3, 1983, the State of Illinois had enacted a statute forbidding its municipalities to fix a minimum age for applicants for public safety jobs; could the City of Elmhurst still rely on its age-35 rule to defeat Kopec’s suit? The logic of my colleagues’ position is that it could.
By not requiring that the plan in force when the plaintiff is discriminated against say anything about age, my colleagues do considerable violence to the language of the statute, which conditions the availability of the safe harbor on the discriminatory action having been “taken ... pursuant to a bona fide hiring ... plan.” 29 U.S.C. § 623(j) (1992) (emphasis added). If the hiring plan said nothing about age, but merely that persons weighing more than 300 pounds were ineligible, in what sense could turning down a 200-pound applicant because he was over 35 be “pursuant” to the hiring plan? The problem would not be that the plan was not bona fide; I assume it would not have been designed as a subterfuge to evade the age discrimination law or any other law. The problem would be that the discrimination was “off *908plan,” as the City of Elmhurst concedes. My colleagues’ position has the practical effect of immunizing all age discrimination by state or local governments that had an age-35 plan on March 3, 1983, even if they dropped age from their plan the next day, since all public agencies have “hiring plans,” in the sense of a set of rules setting forth at least some criteria for hiring or not hiring.
I note finally that in interpreting another safe-harbor provision in the federal age discrimination law, one conditioned on the employer’s “observ[ing] the terms of a bona fide employee benefit plan,” 29 U.S.C.§ 623(f)(2), the courts including ours have uniformly held that to take advantage of the safe harbor the plan must explicitly address age. Gonsalves v. Caterpillar Tractor Co., 634 F.2d 1065, 1066-67 (7th Cir.1980); Smart v. Porter Paint Co., 630 F.2d 490, 493-94 (7th Cir.1980); Sexton v. Beatrice Foods Co., 630 F.2d 478, 482 (7th Cir.1980); EEOC v. Baltimore & Ohio R.R., 632 F.2d 1107, 1110-11 (4th Cir.1980).
The judgment should be reversed and the case remanded for a determination of whether Kopec was turned down on account of his age.