Equal Employment Opportunity v. Kentucky Retirement Systems Jefferson County Sheriff Office 00-5664 00-6366 00-6367 Nos. 00-5664, 00-6366, 00-6367 __________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT __________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. KENTUCKY RETIREMENT SYSTEMS, JEFFERSON COUNTY SHERIFF'S OFFICE, and COMMONWEALTH OF KENTUCKY, Defendants-Appellants. ____________________________________ On Appeal from the United States District Court for the Western District of Kentucky at Louisville The Honorable Jennifer B. Coffman ____________________________________ PROOF BRIEF OF APPELLEE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________ GWENDOLYN YOUNG REAMS DORI K. BERNSTEIN Associate General Counsel Attorney PHILIP B. SKLOVER EQUAL EMPLOYMENT Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W. - Room 7046 Assistant General Counsel Washington, D.C. 20507 (202)663-4734 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii JURISDICTIONAL STATEMENT 1 STATEMENT OF THE ISSUES 3 STATEMENT OF THE CASE 4 STATEMENT OF FACTS 5 DISTRICT COURT DECISION 7 SUMMARY OF ARGUMENT 11 STATEMENT OF THE STANDARD OF REVIEW 13 ARGUMENT 14 I. THE ELEVENTH AMENDMENT DOES NOT SHIELD A STATE FROM A SUIT BY A FEDERAL GOVERNMENT AGENCY TO ENFORCE FEDERAL LAW. 14 II. THE TENTH AMENDMENT DOES NOT LIMIT CONGRESS' AUTHORITY UNDER THE COMMERCE CLAUSE TO REQUIRE STATE EMPLOYERS TO COMPLY WITH THE ADEA'S PROHIBITION AGAINST AGE DISCRIMINATION IN PROVIDING EMPLOYMENT BENEFITS TO OLDER WORKERS. 22 CONCLUSION 42 Rule 32(a)(7)(C) Certificate of Compliance 6 Cir. Rule 28(d) Addendum CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page CASES Alden v. Maine, 527 U.S. 706 (1999) 14, 15, 18, 19 Chambers v. Ohio Dep't of Human Servs., 145 F.3d 793 (6th Cir.), cert. denied, 525 U.S. 964 (1998) 2, 3 Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) 2 Coopers & Lybrand v. Livesay, 437 U.S. 463 (1998) 2 EEOC v. Frank's Nursery & Crafts, 177 F.3d 448 (6th Cir. 1999) 17 EEOC v. Wyoming, 460 U.S. 226 (1983) 10, 19, 22, 24, 25, 27, 28, 29, 30, 31, 32, 33, 35, 36, 37 Erickson v. Board of Govs. of State Colleges and Univs., 207 F.3d 945 (7th Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3003 (June 26, 2000) (No. 99-2077) 21 Garcia v. San Antonio Metro. Transit Sys., 469 U.S. 528 (1985) 9, 10, 26, 27, 28, 29, 30, 34, 35 General Telephone Co. v. EEOC, 446 U.S. 318 (1980) 16, 18 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) 16 Kimel v. Florida Board of Regents, 120 S.Ct. 631 (2000) 7, 8, 18, 19, 20, 21, 23, 27, 28 Page Kopec v. City of Elmhurst, 193 F.3d 894 (7th Cir. 1999) 25 Michigan Bell Telephone Co. v. Climax Telephone Co., 202 F.3d 862 (6th Cir. 2000) 2, 3, 13 Monaco v. Mississippi, 292 U.S. 313 (1934) 14 National League of Cities v. Usery, 426 U.S. 833 (1976) 24, 25, 26, 28, 29, 35, 37 New Hampshire v. Louisiana, 8 U.S. 76 (1883) 8 New York v. United States, 505 U.S. 144 (1992) 10, 36, 37, 38, 39, 40 Occidental Life Ins. v. EEOC, 432 U.S. 355 (1977) 17 Ohio Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158 (1989) 33 Printz v. United States, 521 U.S. 898 (1997) 38, 39, 40 Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) 2 Reno v. Condon, 528 U.S. 141 (2000) 13, 38, 39, 40, 41, 42 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) 14, 19 Page Sims v. University of Cincinnati, 219 F.3d 559 (6th Cir. 2000) 20, 21 South Carolina v. Baker, 485 U.S. 505 (1987) 10, 37, 39, 40, 41, 42 Stevens v. Ill. Dept. of Transportation, 210 F.3d 732 (7th Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3022 (June 30, 2000) (No. 00-7) 22 United States v. Texas, 143 U.S. 621 (1892) 14 University of Alabama at Birmingham Board of Trustees v. Garrett, No. 99-1240, cert. granted, 146 L.Ed.2d 479 (April 17, 2000) 22 West Virginia v. United States, 479 U.S. 305 (1987) 14 CONSTITUTIONAL PROVISIONS U.S. Const., Art. I, § 8, cl. 3 9, 19, 28 U.S. Const., Art. II, § 3 18 U.S. Const. Amend. X 1 U.S. Const. Amend. XI 1 U.S. Const. Amend. XIV, § 5 19, 20 Page STATUTES Driver's Privacy Protection Act, 18 U.S.C. §§ 2721-2725 39 28 U.S.C. § 451 1 28 U.S.C. § 1331 1 28 U.S.C. § 1337 1 28 U.S.C. § 1343 1 28 U.S.C. § 1345 1 Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. 15 29 U.S.C. § 217 1 Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. 1 29 U.S.C. § 623(a)(1) 4, 23 29 U.S.C. § 623(f)(2) 32 29 U.S.C. § 623(f)(2(B)(i) 12, 33 29 U.S.C. § 623(j) 25 29 U.S.C. § 626 16 29 U.S.C. § 626(a) 16 29 U.S.C. § 626(b) 1, 2, 16 29 U.S.C. § 626(c)(1) 16 29 U.S.C. § 630(b) 23 29 U.S.C. § 630(f) 23, 30 29 U.S.C. § 630(l) 23 29 U.S.C. § 631(a) 23 Older Workers' Benefit Protection Act of 1990, 29 U.S.C. § 623 note 30 Page Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq. 20 Low-Level Radioactive Waste Policy Amendments Act of 1985, 42 U.S.C. §§ 2021b et seq. 36 Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12111-17 21 Kentucky Revised Statutes, § 16.582(2)(b) 6 § 61.600(1)(b) 6 § 61.605 6 RULES AND REGULATIONS 29 C.F.R. § 1625.10 32 LEGISLATIVE HISTORY House Debate on S. 1511, Cong. Rec., Oct. 2, 1990, reprinted in Legislative History of the OWBPA (U.S. Govt. Printing Office 1991) 33 JURISDICTIONAL STATEMENT The Equal Employment Opportunity Commission ("EEOC") filed this suit in the United States District Court of the Western District of Kentucky ("district court"), against Kentucky Retirement System ("KRS"), the Jefferson County Sheriff's Office ("Jefferson County"), and the Commonwealth of Kentucky ("Kentucky"), to enforce the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. The district court has subject matter jurisdiction over the EEOC's enforcement action pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345, and 29 U.S.C. §§ 217 and 626(b). (Record Entry Number ("R.") 1, Complaint p. 1; Appendix ("App.") p.__). The district court denied the motions of KRS, Jefferson County, and Kentucky to dismiss the EEOC's suit, grounded on the Tenth and Eleventh Amendments to the United States ("U.S.") Constitution.<1> (R. 27, Memorandum Opinion ("Mem. Op.") and Order; App. p. __; R. 37, Order; App. p. __). KRS, Jefferson County, and Kentucky appealed from the orders denying the motions to dismiss. (R. 28, KRS Notice of Appeal; App. p. __; R. 38, Jefferson County Notice of Appeal; App. p. __; R. 41, Kentucky Notice of Appeal; App. p. __). This Court has appellate jurisdiction over the interlocutory appeals from the district court's denial of the motions to dismiss on Eleventh Amendment grounds, pursuant to the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949). See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-48 (1993). The EEOC does not concede that there is appellate jurisdiction to review the interlocutory rejection of the Tenth Amendment claims asserted by KRS, Jefferson County, and Kentucky. See Michigan Bell Telephone Co. v. Climax Telephone Co., 202 F.3d 862, 869 (6th Cir. 2000) (refusal to dismiss state commissioners on Tenth Amendment grounds "are not appealable collateral orders because those claims are not 'effectively unreviewable on appeal from a final judgment,'" and "do not fall under the doctrine of pendent appellate jurisdiction because they are not 'inextricably intertwined' with the Eleventh Amendment claim, such that the Eleventh Amendment claim could not be determined without first addressing the unappealable claims") (Cole, dissenting in part) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69 (1998), and citing Chambers v. Ohio Dep't of Human Servs., 145 F.3d 793, 797 (6th Cir.), cert. denied, 525 U.S. 964 (1998)). The EEOC acknowledges, however, that the panel majority in Michigan Bell Telephone decided that because "we must decide the Eleventh Amendment claim in any event, and it would be a waste of judicial resources not to hear the other claims now," the Court would review Tenth Amendment arguments raised on interlocutory appeal from the denial of a motion to dismiss on Tenth and Eleventh Amendment grounds. See 202 F.3d at 867. Given the similarity in the procedural posture of this case and Michigan Bell Telephone, the EEOC assumes this Court will review the district court's Tenth Amendment ruling in the interest of judicial economy. The EEOC notes its objection, however, to extending the collateral order doctrine's narrow exception to the final judgment rule beyond exercising appellate jurisdiction over the defendants' assertions of Eleventh Amendment immunity from the EEOC's suit. STATEMENT OF THE ISSUES 1. Whether the Eleventh Amendment shields a state from a suit by a federal government agency to enforce federal law. 2. Whether the Tenth Amendment limits Congress' authority under the Commerce Clause to require state employers to comply with the ADEA's prohibition against age discrimination in providing benefits to older workers. STATEMENT OF THE CASE On August 2, 1999, the EEOC sued KRS, Jefferson County, and Kentucky, alleging that the defendants maintain a disability retirement program that denies benefits, or pays reduced benefits, to individuals age 40 or older, on the basis of age, in violation of the ADEA, 29 U.S.C. § 623(a)(1). (R. 1, Complaint; App. p.__). KRS moved to dismiss the EEOC's complaint on February 23, 2000. (R. 20, KRS Motion to Dismiss). The district court denied KRS's motion to dismiss in a Memorandum Opinion and Order issued May 4, 2000. (R. 27, Mem. Op. and Order; App. p. __). On May 11, 2000, KRS filed a notice of appeal from the order denying the motion to dismiss. (R. 28, KRS Notice of Appeal; App. p. __). On May 12, 2000, Kentucky moved to dismiss on the same grounds raised in the motion to dismiss filed by KRS, or in the alternative moved to alter or amend the order of May 4, 2000 so as to permit Kentucky to participate as a party in the appellate proceedings. (R. 30, Kentucky Motion to Dismiss). On May 26, 2000, Jefferson County filed a similar motion to dismiss, or to alter or amend the order of May 4, 2000. (R. 34, Jefferson County Motion to Dismiss). In an order entered September 25, 2000, the district court denied the motions to dismiss filed by Kentucky and Jefferson County to permit the defendants to consolidate their interlocutory appeals, and stayed the EEOC's action pending resolution of the appeals. (R. 37, Order; App. p. __). Jefferson County filed a notice of appeal on September 28, 2000. (R. 38, Jefferson County Notice of Appeal). Kentucky noted an appeal on October 4, 2000. (R. 41, Kentucky Notice of Appeal). This Court consolidated the appeals on November 2, 2000. STATEMENT OF FACTS Charles Lickteig was employed in a "hazardous duty" position by the Jefferson County Sheriff's Department, a participant in the County Employees Retirement System operated by KRS. (R. 24, EEOC Response to KRS Motion to Dismiss ("EEOC Resp.") p. 2). When Lickteig became unable to work due to a disabling condition, he applied to KRS for disability retirement benefits. (Id.). On August 25, 1995, KRS notified Lickteig that under Kentucky law, he was ineligible for disability retirement benefits because of his age. (Id.). Lickteig filed a charge with the EEOC, alleging discrimination in violation of the ADEA. (Id.). Following an investigation, the EEOC "attempted to eliminate the unlawful employment practices alleged" in Lickteig's charge, "and to effect voluntary compliance with the ADEA through informal methods of conciliation, conference and persuasion," as required by 29 U.S.C. § 626(b). (R. 1, Complaint p. 3; App. p. __). When these efforts proved unsuccessful, the EEOC filed an action against KRS, Kentucky, and Jefferson County to enforce the provisions of the ADEA. (Id.). The EEOC alleged that the disability retirement program maintained by KRS, Kentucky, and Jefferson County discriminates against a class of individuals age 40 or older in the following ways: by denying disability retirement benefits to individuals over age 55 in hazardous positions<2>; by denying such benefits to individuals over age 65 in non-hazardous positions<3>; and by paying lower disability retirement benefits to an older worker with the same earnings and years of service as a younger worker, solely because of his age on the date he becomes disabled.<4> (Id.; EEOC Resp. pp. 3-4). The EEOC sought injunctive relief enjoining the defendants from unlawful employment discrimination based on age, and requiring them to operate their disability retirement program in compliance with the ADEA. (R. 1, Complaint pp. 4-5; App. pp. ____). The EEOC also requested monetary relief to make whole Charles Lickteig and other individuals who were denied benefits, or received lower benefits, because of age, in violation of the ADEA. (R. 1, Complaint pp. 5-6; App. pp. ____). KRS moved to dismiss the complaint, asserting that the EEOC's suit is barred by the Tenth and Eleventh Amendments to the U.S. Constitution. (R. 20, KRS Motion to Dismiss). KRS relied primarily on the recent decision in Kimel v. Florida Board of Regents, 120 S.Ct. 631 (2000), which KRS described as a "denouncement of the ADEA." (Id.). KRS argued that the decision in Kimel, "read in conjunction with the Tenth and Eleventh Amendments and prior Supreme Court precedent addressing the principles of federalism, renders the [EEOC's] claim asserted against KRS unenforceable." (Id.) Subsequently, Kentucky and Jefferson County filed motions to dismiss on the same grounds, expressly adopting the arguments previously advanced by KRS.<5> (R. 30, Kentucky Motion to Dismiss; R. 34, Jefferson County Motion to Dismiss). DISTRICT COURT DECISION The district court denied the motions to dismiss. (R. 27, Mem. Op. and Order; App. p. __; R. 37, Order; App. p. __). The court rejected as "unfounded" Kentucky's contention that the Supreme Court in Kimel "generally denounced the ADEA as applied to the states," and recognized that "Kimel stands only for the proposition that private individuals may not bring ADEA suits against their state employers." (R. 27, Mem. Op. and Order p.4; App. p. __). While "[t]he Eleventh Amendment confirms that each state is a sovereign entity, not subject to private suits without its consent," the court ruled, "[s]tates are not . . . immune from suits brought by the federal government to enforce state compliance with federal laws." (Id.). Because this suit was "brought by the EEOC, not by private individuals," the court determined, "Kimel does not squarely apply to this case." (Id.) Nor was the court persuaded by Kentucky's assertion "that an ADEA suit brought by the EEOC against a state merely disguises an ADEA suit brought by an individual against a state," and thereby "circumvents the Eleventh Amendment as well as Kimel." (Id.). Citing precedent from the Supreme Court and this Circuit, the district court recognized that statutory enforcement actions brought by "the federal agency authorized to sue employers for ADEA violations . . . are not brought to permit individuals to circumvent the Eleventh Amendment but to deter age discrimination." (Id. pp. 4-5; App. pp. __). The court distinguished the EEOC's enforcement action from a suit "brought by the federal government in a nominal capacity, where the real plaintiffs are private individuals," which would entitle the state to assert Eleventh Amendment immunity. (Id. p. 5; App. p. __) (distinguishing New Hampshire v. Louisiana, 8 U.S. 76 (1883)). Unlike a lawsuit "directly funded" by private individuals who "held exclusive settlement authority," the court explained, the alleged "discrimination victims" exert no control over "whether the EEOC will sue" or how the litigation will proceed. (Id.). "Because the agency's authority to bring suit under the ADEA is independent of the rights of private parties," the court concluded, "this lawsuit is not a circumvention of the Eleventh Amendment." (Id. pp. 4-5; App. pp. _____). The court further concluded that the Tenth Amendment poses no constitutional impediment to the EEOC's action to enforce the ADEA with respect to alleged age discrimination in the disability retirement program operated by Kentucky. (Id. pp. 6-7; App. pp. _____). Guided by Supreme Court precedent, in particular the principles established in Garcia v. San Antonio Metro. Transit Sys., 469 U.S. 528 (1985) to govern Tenth Amendment challenges to Commerce Clause legislation,<6> the court recognized that "'the principal and basic limit on the federal commerce power is that inherent in all congressional action - the built-in restraints that our system provides through state participation in federal government action.'" (R. 27, Mem. Op. and Order pp. 6-7; App. pp. _____) (quoting Garcia, 489 U.S. at 556). Thus, while "'some extraordinary defects in the national political process might render congressional regulation of state activities invalid under the Tenth Amendment,'" (id.) (quoting South Carolina v. Baker, 485 U.S. 505, 512 (1987)), under ordinary circumstances, "'[t]he political process ensures that laws that unduly burden States will not be promulgated.'" (Id.) (quoting Garcia, 489 U.S. at 556). The district court determined that no such "extraordinary" defect -- such as, for example, an impermissible effort by Congress to "'commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program,'" - is present in this case. (Id.) (quoting New York v. United States, 505 U.S. 144, 177 (1992)). "The ADEA," the court stated, "does not even require Kentucky to enact a retirement system," and "the EEOC's lawsuit alleges only that, if such a system exists, the benefits should be awarded without regard to age." (Id.) In requiring state employers to comply with the ADEA, the court determined, "'[t]he State's discretion to achieve its goals in the way it thinks best is not being overridden entirely, but is merely being tested against a reasonable federal standard.'" (Id.) (quoting EEOC v. Wyoming, 460 U.S. 226, 240 (1983)). The court therefore held that neither the ADEA, nor the EEOC's suit, would "'commandeer' Kentucky's legislative process," or unconstitutionally "intrude upon the state activity of establishing a retirement system." (Id.). SUMMARY OF ARGUMENT The ADEA prohibits public and private employers from discriminating against older workers because of age in the terms and conditions of employment. The district court correctly held that the EEOC's suit to require Kentucky to comply with the federal statutory prohibition against age discrimination in providing disability retirement benefits to older employees contravenes neither the Tenth nor Eleventh Amendments to the U.S. Constitution. This Court should therefore affirm the denial of the motions to dismiss the EEOC's complaint. The Eleventh Amendment protects an unconsenting state from suits for damages brought by private individuals. In ratifying the federal Constitution, however, the states consented to suits brought by the federal government, and thereby waived Eleventh Amendment immunity from suits by federal agencies to enforce federal law. Nothing in Kimel alters the bedrock principle -- long established and recently reaffirmed by the Supreme Court -- that states have no sovereign immunity as against the federal government. Because the EEOC is the federal agency charged by Congress to enforce the ADEA against state employers, Kentucky cannot assert Eleventh Amendment sovereign immunity as a defense to this federal enforcement action. The Tenth Amendment does not prevent Congress from requiring that state as well as private employers refrain from unlawful age discrimination in providing employment benefits to older workers. The ADEA regulates state employers in the same manner as private employers, by proscribing age-based discrimination against older workers in all terms and conditions of employment. Under the ADEA, a private or public employer choosing to operate a disability retirement program or pension plan must provide benefits in a manner that does not discriminate against older individuals because of age. The ADEA neither requires nor prohibits the establishment of employee benefit programs, and expressly permits an employer "to observe the terms of a bona fide employee benefit plan where, for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker." 29 U.S.C. § 623(f)(2)(B)(i). Congress' requirement that public as well as private employers comply with this reasonable federal standard to protect state employees from the discriminatory denial of employment benefits because of age is a valid exercise of authority under the Commerce Clause and does not traverse the state sovereignty preserved by the Tenth Amendment. While Kentucky may be required, as a consequence of the EEOC's suit, to amend statutory provisions that are inconsistent with the ADEA, this remedy does not unconstitutionally "commandeer" the state's legislative process in a manner inconsistent with the Tenth Amendment. As the Supreme Court unanimously reaffirmed just last term: "Any federal regulation demands compliance. That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect." Reno v. Condon, 528 U.S. 141, 120 S.Ct. 666, 672 (2000) (citation and internal quotation marks omitted). STATEMENT OF THE STANDARD OF REVIEW The denial of a motion to dismiss for failure to state a claim on purely legal grounds is reviewed de novo. Michigan Bell Telephone Co. v. Climax Telephone Co., 202 F.3d 862, 865 (6th Cir. 2000). "All factual allegations in the complaint are accepted as true." Id. In deciding whether the EEOC's suit to enforce the ADEA against Kentucky contravenes the Tenth or Eleventh Amendments, this Court must "begin with the time-honored presumption that the [ADEA] is a 'constitutional exercise of legislative power.'" Reno v. Condon, 120 S.Ct. at 670. ARGUMENT I. THE ELEVENTH AMENDMENT DOES NOT SHIELD A STATE FROM A SUIT BY A FEDERAL GOVERNMENT AGENCY TO ENFORCE FEDERAL LAW. The Eleventh Amendment protects a state from private suits for damages without its consent. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72 (1996) ("Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States."). Notwithstanding the states' immunity from private suits, however, "[t]he Federal Government can bring suit in federal court against a State" as a method "of ensuring the States' compliance with federal law." Id., 517 U.S. at 71 n.14. The Supreme Court has long "held dispositively that States retain no sovereign immunity as against the Federal Government." West Virginia v. United States, 479 U.S. 305, 312 n.4 (1987) (citing United States v. Texas, 143 U.S. 621 (1892)); see also Monaco v. Mississippi, 292 U.S. 313, 329 (1934) (federal jurisdiction over "a suit by the United States against a State, albeit without the consent of the latter . . . is inherent in the constitutional plan") (citing additional cases). The Supreme Court recently reaffirmed this principle in Alden v. Maine, 527 U.S. 706, 755-56 (1999). The Court in Alden upheld Maine's assertion of sovereign immunity to defeat a private suit brought in state court by probation officers to recover from their state employer compensation and liquidated damages for alleged violations of the overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. See 527 U.S. at 754 (holding that "the States retain immunity from private suit in their own courts, an immunity beyond the congressional power to abrogate by Article I legislation"). The Court emphasized, however, that "[s]overeign immunity . . . does not bar all judicial review of state compliance with the Constitution and valid federal law," which "[t]he States and their officers are bound" to follow. Id. at 755. Among the "limits . . . implicit in the constitutional principle of state sovereign immunity," id., the Court confirmed that such immunity does not extend to insulate a state from an enforcement action brought by the federal government. "In ratifying the federal Constitution," the Court explained, "the States consented to suits brought by . . . the Federal Government." Id. Under longstanding Supreme Court precedent, the Eleventh Amendment thus poses no impediment to the EEOC's suit to require Kentucky to comply with the ADEA's prohibition against age discrimination in providing employment benefits to older state employees. The EEOC is the federal agency charged by Congress to enforce the ADEA's prohibition against discriminatory employment practices based on age. See 29 U.S.C. § 626; Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991). The EEOC has authority to investigate alleged age discrimination, 29 U.S.C. § 626(a), and must "attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance" with statutory requirements "through informal methods of conciliation, conference, or persuasion." 29 U.S.C. § 626(b). In the event such efforts are unsuccessful, the EEOC is authorized to bring a civil enforcement action to obtain "such legal or equitable relief as may be appropriate to effectuate the purposes" of the statute, "including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability" for monetary relief in "[a]mounts owing to a person as a result of a violation." 29 U.S.C. § 626(b). While the ADEA authorizes the EEOC "to enforce the right of [an] employee" who has been subjected to unlawful age discrimination, 29 U.S.C. § 626(c)(1), the Supreme Court has recognized that "the EEOC is not merely a proxy for the victims of discrimination." General Telephone Co. v. EEOC, 446 U.S. 318, 326 (1980) (Title VII case). "When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination." Id.; see also Gilmer, 500 U.S. at 28 ("[T]he EEOC's role in combating age discrimination is not dependent on the filing of a charge; the agency may receive information concerning alleged violations of the ADEA 'from any source,' and it has independent authority to investigate age discrimination."). Furthermore, an aggrieved employee cannot control whether the EEOC will bring suit to enforce his statutory rights, nor determine the course of any litigation the EEOC may commence. As this Court recently explained, "the EEOC alone possesses the discretion as to how and when it shall carry out its administrative duties and thus 'does not function simply as a vehicle for conducting litigation on behalf of private parties.'" EEOC v. Frank's Nursery & Crafts, 177 F.3d 448, 458 (6th Cir. 1999) (quoting Occidental Life Ins. v. EEOC, 432 U.S. 355, 368 (1977)). Kentucky mischaracterizes the EEOC's statutory enforcement action as a suit "brought by the federal government in a nominal capacity," in an effort to "circumvent" the Eleventh Amendment through "a mere pleading formality." See Brief of KRS at 17; see also Brief of Kentucky at 8 ("EEOC should not be permitted to circumvent the prohibition against suits by private individuals by suing for monetary damages in its name on their behalf."). Given the EEOC's independent authority to enforce the ADEA, and the agency's critical role "to vindicate the public interest in preventing employment discrimination," see General Telephone, 446 U.S. at 326, Kentucky's argument is plainly untenable and was properly rejected by the district court. See R. 27, Mem. Op. and Order pp. 4-5; App. pp. _____. Nor is there any merit to Kentucky's assertion that "the action brought by the EEOC is indistinguishable from one brought by a private individual." Brief of KRS at 17. The Supreme Court in Alden recognized that an action brought by the federal government to enforce a state's obligation to comply with federal law "differs in kind" from litigation filed by private parties against an unconsenting state: A suit which is commenced and prosecuted against a State in the name of the United States by those who are entrusted with the constitutional duty to 'take Care that the Laws be faithfully executed,' U.S. Const., Art. II, § 3, differs in kind from the suit of an individual. While the Constitution contemplates suits among the members of the federal system as an alternative to extralegal measures, the fear of private suits against nonconsenting States was the central reason given by the founders who chose to preserve the States' sovereign immunity. Suits brought by the United States itself require the exercise of political responsibility for each suit prosecuted against a State, a control which is absent from a broad delegation to private persons to sue nonconsenting States. Alden, 527 U.S. at 755-56. The Alden Court thus effectively rejected Kentucky's effort to equate the EEOC's federal enforcement action with private litigation against the state. Finally, the recent decision in Kimel v. Florida Board of Regents, 120 S.Ct. 631, 650 (2000), in no way alters or erodes the bedrock principle -- long established and recently reaffirmed in Alden -- that states have no sovereign immunity as against suits brought by the federal government to enforce federal law. The Supreme Court in Kimel held "only that, in the ADEA, Congress did not validly abrogate the States' sovereign immunity to suits by private citizens."<7> Id. at 650. In applying the rationale of Kimel to invalidate Congress' attempt to abrogate Ohio's sovereign immunity from private suit by state employees under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601 et seq., this Court has accordingly emphasized the limited "jurisdictional nature" of its holding. Sims v. University of Cincinnati, 219 F.3d 559, 566 (6th Cir. 2000). The Court in Sims considered whether Congress, in creating a private cause of action against state employers for violations of the FMLA, had validly abrogated the states' Eleventh Amendment immunity. 219 F.3d at 560. Following the reasoning of Kimel, the Court held: "In light of the broad scope of its substantive requirements, and the lack of evidence of widespread and unconstitutional gender discrimination by the States, . . . the FMLA is not a valid exercise of Congress's power under § 5 of the Fourteenth Amendment," and "[t]he FMLA's purported abrogation of the States' sovereign immunity is accordingly invalid." Id. at 566. This Court "emphasize[d], however, the jurisdictional nature of this ruling: private litigation to enforce the FMLA against the states may not proceed in federal court." Id. The Court further cautioned that its invalidation of a private cause of action against an unconsenting state had no bearing on "whether the FMLA was properly enacted pursuant to Congress's commerce power," and announced that "[t]he United States thus may enforce the FMLA against state actors through federal litigation." Id. Similarly, the Seventh Circuit stressed "the limits of [its] holding," under the rationale of Kimel, that Title I of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12111-17, "does not 'enforce' the Fourteenth Amendment," and that consequently "the Eleventh Amendment and associated principles of sovereign immunity block private litigation against states in federal court." Erickson v. Board of Govs. of State Colleges and Univs. for Northeastern Ill. Univ., 207 F.3d 945, 952 (7th Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3003 (June 26, 2000) (No. 99-2077). Like this Court in Sims, the Court in Erickson made clear that, notwithstanding the state's immunity from private lawsuits under the ADA, the state must comply with the statute's prohibitions against employment discrimination because of disability, and remains subject to federal enforcement actions brought by the United States: The ADA is valid legislation, which both private and public actors must follow. . . . Moreover, the United States may enforce the ADA against the University and other state actors through federal litigation. Id. See also Stevens v. Ill. Dept. of Transportation, 210 F.3d 732, 741 (7th Cir. 2000) ("we wish to emphasize the limited nature of our decision" that "States are entitled to Eleventh Amendment immunity for suits brought by individuals under the ADA": "in all contexts other than that of an individual suing a State in federal court, the ADA retains its full force as a means of enforcing nationwide standards for non-discriminatory treatment of the disabled"), petition for cert. filed, 69 U.S.L.W. 3022 (June 30, 2000) (No. 00-7).<8> In sum, because the EEOC is the federal agency charged by Congress to enforce the ADEA against private and state employers, Kentucky cannot assert Eleventh Amendment immunity as a defense to this federal enforcement action. II. THE TENTH AMENDMENT DOES NOT LIMIT CONGRESS' AUTHORITY UNDER THE COMMERCE CLAUSE TO REQUIRE STATE EMPLOYERS TO COMPLY WITH THE ADEA'S PROHIBITION AGAINST AGE DISCRIMINATION IN PROVIDING EMPLOYMENT BENEFITS TO OLDER WORKERS. The Supreme Court decided in EEOC v. Wyoming, 460 U.S. 226 (1983), that Congress acted within its authority under the Commerce Clause in extending the ADEA to cover state employees, and that application of the ADEA to public employers does not violate state sovereignty under the Tenth Amendment. Id. at 243. Nevertheless, Kentucky challenges this ADEA suit on Tenth Amendment grounds. A brief overview of the Supreme Court's Tenth Amendment jurisprudence, as applied to the ADEA, exposes the flaws in Kentucky's argument. The ADEA makes it unlawful for an employer to "discriminate against any individual" age forty or older "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."<9> 29 U.S.C. §§ 623(a)(1), 631(a). As originally enacted in 1967, the ADEA applied only to private employers. See Kimel, 120 S.Ct. At 637. "In 1974, in a statute consisting primarily of amendments to the FLSA," Congress extended the ADEA's protection from unlawful age discrimination to cover the employees of "'a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State.'" Id. (quoting 29 U.S.C. § 630(b)). At the same time, Congress excluded from ADEA coverage "elected officials and appointed policymakers at the state and local levels." Id. (citing 29 U.S.C. § 630(f)). In 1976, the Supreme Court, in National League of Cities v. Usery, 426 U.S. 833 (1976), held that the extension of the FLSA's wage and hour requirements to state and local government employers engaged in traditional governmental functions violated principles of state sovereignty under the Tenth Amendment. Following that decision, the state of Wyoming challenged on Tenth Amendment grounds the application of the ADEA to state employers, "at least insofar as it regulated Wyoming's employment relationship with its game wardens and other law enforcement officials." See Wyoming, 460 U.S. at 235. At issue in the case was whether the ADEA could constitutionally be applied to Wyoming's statutory provision for mandatory retirement of state game wardens at age 55. Id. at 234. The Supreme Court recognized that "[t]he management of state parks is clearly a traditional state function," yet concluded that "the degree of federal intrusion in this case is sufficiently less serious than it was in National League of Cities so as to make it unnecessary for us to overrule Congress' express choice to extend its regulatory authority to the States." Id. at 239. In applying the ADEA to Wyoming's mandatory retirement law, the Court explained, "the State's discretion to achieve its goals in the way it thinks best is not being overridden entirely, but is merely being tested against a reasonable federal standard." Id. at 240. The Court contrasted the "wide-ranging and profound threat to the structure of state governance" that the Court in National League of Cities perceived in requiring states to comply with the FLSA, 460 U.S. at 240, with "the minimal character of the federal intrusion" imposed on Wyoming's sovereign interests by the ADEA. Id. at 241-42 and n.17. Measured under the standards adopted in National League of Cities to assess a Tenth Amendment challenge to federal regulation of the states, the Court held that "[t]he extension of the ADEA to cover state and local governments, both on its face and as applied in this case, was a valid exercise of Congress' powers under the Commerce Clause."<10> Id. at 243. Two years after upholding the extension of the ADEA to protect state employees from age discrimination, the Supreme Court "return[ed] to the underlying issue that confronted [the] Court in National League of Cities - the manner in which the Constitution insulates States from the reach of Congress' power under the Commerce Clause." Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 547 (1985). The Court in Garcia overruled National League of Cities, id. at 546-47, and held that the extension of the FLSA's overtime and minimum wage requirements to cover state and local government employees "contravened no affirmative limit" imposed by the Tenth Amendment "on Congress' power under the Commerce Clause." Id. at 556-57. The Court "reject[ed], as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is 'integral' or 'traditional,'" finding that "[a]ny such rule leads to inconsistent results at the same time that it disserves principles of democratic self-governance." Id. at 547. In formulating a principled analysis to govern Tenth Amendment challenges to federal commerce legislation, the Court observed that "the composition of the Federal Government was designed in large part to protect the States from overreaching by Congress," and noted the states' constitutional "role in the selection of both the Executive and Legislative Branches of the Federal Government." Id. at 560-61. Given the controls built into the constitutional framework, the Court determined that "State sovereign interests . . . are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power." Id. at 552. Citing the federal funding provided for many state services, and the "express or implied exemptions for States and their subdivisions" in various federal statutes, the Court found that "[t]he effectiveness of the federal political process in preserving the States' interests is apparent even today in the course of federal legislation." Id. at 552-53. The Court was thus "convinced that the fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the 'States as States' is one of process rather than one of result," id. at 554, and held that the principal and basic limit on the federal commerce power is that inherent in all congressional action - the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden States will not be promulgated. Id. at 556. Kentucky suggests that the "seventeen-year-old decision" in EEOC v. Wyoming may no longer be good law, Brief of KRS at 8, and mischaracterizes Kimel as a "denouncement of the Congressional attempt to apply the ADEA to the States." Id. at 16.<11> Yet the Supreme Court in Kimel actually confirmed its holding in Wyoming "that the ADEA constitutes a valid exercise of Congress' power '[t]o regulate Commerce . . . among the several States,' Art. 1, § 8, cl. 3, and that the Act did not transgress any external restraints imposed on the commerce power by the Tenth Amendment." Kimel, 120 S.Ct. at 643. While Kentucky argues that Wyoming is not controlling precedent in this case, see Brief of KRS at 8-10; Brief of Kentucky at 6, 8-9, each of the legal and factual grounds on which Kentucky purports to distinguish Wyoming further supports the constitutional validity of the ADEA as applied to Kentucky's provision of disability retirement benefits to older workers. Kentucky points out that following the decision in Wyoming, the Supreme Court overruled National League of Cities, "upon which the Wyoming court based its Tenth Amendment analysis." See Brief of KRS at 8-9 (citing Garcia). Yet the change in the legal standard governing the states' Tenth Amendment immunity from federal regulation more strongly favors upholding Congress' extension of generally applicable Commerce Clause legislation, such as the FLSA and the ADEA, to state as well as private employers. See Garcia, 469 U.S. at 554 (local transit authority "faces nothing more than the same minimum-wage and overtime obligations that hundreds of thousands of other employers, public as well as private, have to meet"). The Court in Garcia rejected as "impracticable and doctrinally barren" the attempt in National League of Cities "to articulate affirmative limits on the Commerce Clause power in terms of core governmental functions and fundamental attributes of state sovereignty," and held that "the principal and basic limit on the federal commerce power is that inherent in all congressional action - the built-in restraints that our system provides through state participation in federal governmental action." 469 U.S. at 556-57. While the Court in National League of Cities had ruled that application of the FLSA to state employers exceeded the limits imposed by the Tenth Amendment on Congress' power under the Commerce Clause, the Court in Garcia "perceive[d] nothing in the overtime and minimum-wage requirements of the FLSA," as applied to a public transit authority, "that is destructive of state sovereignty or violative of any constitutional provision." Id. at 554. The Court in Garcia thus established a far less stringent standard than that adopted in National League of Cities to determine whether federal commerce legislation impairs state sovereignty under the Tenth Amendment. Given that the Court in Wyoming upheld the constitutionality of Congress' extension of the ADEA to state employers under the more restrictive Tenth Amendment analysis required by National League of Cities, the Court's subsequent adoption of a standard affording greater "respect for the reach of congressional power within the federal system," Garcia, 469 U.S. at 557, only reinforces the Court's determination in Wyoming that Congress acted constitutionally in requiring state employers to refrain from unlawful discrimination against older workers. Kentucky also notes that several years after the decision in Wyoming, Congress amended the ADEA to exempt from statutory coverage those mandatory age restrictions for law enforcement officers and firefighters that were in effect on the date Wyoming was decided.<12> See Brief of KRS at 8. Yet this responsive action by Congress merely confirms that, in the context of applying the ADEA to the states, "the internal safeguards of the political process have performed as intended," and the interests of the states are being adequately represented in the national legislative context.<13> See Garcia, 469 U.S. 556-57. Kentucky attempts to distinguish Wyoming on its facts, arguing that "the limited intrusion resulting from requiring Wyoming to abandon a mandatory retirement age" is less "significant" than requiring Kentucky to operate its employee benefit program in compliance with the ADEA because of an asserted adverse effect on state finances. See Brief of KRS at 9. The Supreme Court in Wyoming recognized, however, that any "test of [the] financial effect" of federal regulation "does not depend . . . on particularized assessments of actual impact, which may vary from State to State and time to time, but on a more generalized inquiry, essentially legal rather than factual, into the direct and obvious effect of the federal legislation on the ability of the States to allocate their resources." 460 U.S. at 240 (internal quotation marks omitted). Contrary to Kentucky's unsupported assertion that application of the ADEA to its disability retirement program "would have an obvious and direct negative effect on State finances," Brief of KRS at 9, the Supreme Court was unable to "conclude from the nature of the ADEA that it will have either direct or an obvious negative effect on state finances." Id. at 241. The Court in Wyoming, moreover, specifically considered and rejected the state's argument that "eliminating mandatory retirement . . . would require the complete restructuring of the benefit program" for state employees, id. at 241 n.15 (internal quotation marks omitted), and that application of the ADEA thus violated Wyoming's sovereign interest in "maintaining the integrity of the state pension system." Id. at 239 n.13. While the Court acknowledged that "the costs of certain state health and other benefit plans would increase if they were automatically extended to older workers now forced to retire at an early age," it pointed out that Congress had mitigated this economic burden on employers by including in the ADEA "a provision specifically disclaiming a construction of the Act which would require that the health and similar benefits received by older workers be in all respects identical to those received by younger workers." Id. at 241-42 (citing 29 U.S.C. § 623(f)(2)).<14> The ADEA, as amended by the OWBPA, permits an employer "to observe the terms of a bona fide employee benefit plan where, for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker." 29 U.S.C. § 623(f)(2)(B)(i). It is thus difficult to understand the basis for Kentucky's unsupported assertion that "an obvious and direct negative effect on State finances," Brief of KRS at 9, would result from requiring the state to comply with the "equal benefit or equal cost rule" with respect to benefits the state chooses to provide to its employees. Certainly, "the minimal character of the federal intrusion" imposed on Kentucky's sovereign interests by the requirements of the OWBPA is no greater than that the Court sustained in Wyoming. 460 U.S. at 242 and n.17. Kentucky relies on the legislative history of the Employee Retirement Income Security Act ("ERISA") to argue that the same "principles of Federalism" that led Congress to exclude state pension plans from ERISA coverage precludes application of the ADEA to Kentucky's employee benefit program. See Brief of KRS at 10-12. "Since the authority to structure a retirement program for its employees is an attribute of State Sovereignty," Kentucky asserts, "that power is not subject to the constraints of the ADEA." Id. at 12. The Supreme Court has made clear, however, that the constitutionality of requiring Kentucky to comply with the ADEA in providing employment benefits to older workers does not turn on a determination that Kentucky's implementation of a pension benefit program for state employees is "an attribute of State Sovereignty." The Supreme Court in Garcia rejected as "impracticable and doctrinally barren" a Tenth Amendment analysis that sought "to articulate affirmative limits on the Commerce Clause power in terms of core governmental functions and fundamental attributes of state sovereignty." 469 U.S. at 556-57. Kentucky's assertion that running a pension plan for state employees is an "attribute of State Sovereignty" is thus of no consequence under the "rule of state immunity from federal regulation" established in Garcia. Id. at 546-47. Because there is every indication that, in extending the ADEA to state employers, "the internal safeguards of the political process have performed as intended," see supra note 13 and accompanying text, Garcia's holding that "[t]he political process ensures that laws that unduly burden the States will not be promulgated," Garcia, 469 U.S. at 556-57, controls this case. The Supreme Court's analysis and holding in Wyoming establish that, even under the more rigorous Tenth Amendment analysis adopted in National League of Cities, Kentucky cannot demonstrate that the ADEA's application to its employee benefit program unconstitutionally intrudes on an "attribute of State Sovereignty." The Court in Wyoming emphasized that "[t]he principle of immunity articulated in National League of Cities is a functional doctrine . . . whose ultimate purpose is not to create a sacred province of state autonomy, but to ensure that the unique benefits of a federal system in which the States enjoy a separate and independent existence . . . not be lost through undue federal interference in certain core state functions." 460 U.S. at 236 (internal quotation marks and citations omitted). Because "the purpose of the doctrine of immunity articulated in National League of Cities was to protect states from federal intrusion that might threaten their separate and independent existence," the Court's "decision as to whether the [ADEA] directly impairs the States' ability to structure their integral operations must . . . depend . . . on considerations of degree." Id. at 239 (internal quotation marks omitted). Thus, despite finding that "[t]he management of state parks is clearly a traditional state function," the Court ruled that application of the ADEA to Wyoming's statutory mandatory retirement age for game wardens -- with its consequent effects on the state's operation of its pension plan -- did not violate the Tenth Amendment because "the degree of federal intrusion" was not "sufficiently . . . serious . . . to override Congress' express choice to extend its regulatory authority to the States." Id. Finally, Kentucky argues that the EEOC's suit to enforce the state's compliance with the ADEA is "a commandeering of the state legislative process [that] is violative of the principles of federalism embodied in the Tenth and Eleventh Amendments." Brief of Kentucky at 6. Kentucky relies extensively on the Supreme Court's decision in New York v. United States, 505 U.S. 144 (1992) to support this argument. See Brief of Kentucky at 9-13. The Supreme Court in New York, however, clearly distinguished the Tenth Amendment analysis in that case from the principles governing a challenge to Congress' authority to subject the states to "generally applicable laws," such as the ADEA. See 505 U.S. at 160. New York concerned a Tenth Amendment challenge to "three types of incentives" provided in the Low-Level Radioactive Waste Policy Amendments Act of 1985 ("Radioactive Waste Act"), 42 U.S.C. § 2021b et seq., "to encourage the States to comply with their statutory obligation to provide for the disposal of waste generated within their borders." 505 U.S. at 152. New York argued that "[r]ather than addressing the problem of waste disposal by directly regulating the generators and disposers of waste, . . . Congress ha[d] impermissibly directed the States to regulate in this field." Id. at 160. Before resolving this claim, the Court distinguished other "recent cases interpreting the Tenth Amendment," which "concerned the authority of Congress to subject state governments to generally applicable laws." Id. (citing, inter alia, National League of Cities, Garcia, Wyoming, and South Carolina v. Baker, 485 U.S. 505 (1988)). "This litigation," the Court announced, "presents no occasion to apply or revisit the holdings of any of these cases, as this is not a case in which Congress has subjected a State to the same legislation applicable to private parties," but "instead concerns the circumstances under which Congress may use the States as implements of regulation; that is, whether Congress may direct or otherwise motivate the States to regulate in a particular field or a particular way."<15> Id. at 160-61. The Court thus clearly signaled that its analysis of the limits imposed by the Tenth Amendment on Congress' power directly to compel the states to legislate or administer a federal regulatory program was neither governed by, nor would govern, the resolution of cases like this one, which concern Congress' authority to regulate state conduct in the same manner as private conduct under "generally applicable laws" enacted pursuant to the Commerce Clause.<16> Just last term, in Reno v. Condon, 528 U.S. 141, 120 S.Ct. 666 (2000), the Supreme Court unanimously reaffirmed the distinction, for purposes of Tenth Amendment analysis, between a generally applicable law that regulates state activities in the same manner as private conduct, and a law designed to control or influence the manner in which states regulate private parties. The Court in Condon upheld the constitutionality of the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. §§ 2721-2725, which "establishes a regulatory scheme that restricts the States' ability to disclose a driver's personal information without the driver's consent." 120 S.Ct. at 668. Sales of this information by state motor vehicle departments "generate significant revenue for the States." Id. South Carolina challenged the constitutionality of applying the DPPA to the states, arguing that "the DPPA violates the Tenth Amendment because it 'thrusts upon the States all of the day-to-day responsibility for administering its complex provisions,'" and because compliance with the law "will consume the [State's] employees' time and thus the State's resources." Id. at 671-72. The Supreme Court "agree[d] with South Carolina's assertion that the DPPA's provisions will require time and effort on the part of state employees, but reject[ed] the State's argument that the DPPA violates the principles laid down in either New York or Printz." Id. at 672. Rather, the Court followed the Tenth Amendment analysis applied in South Carolina v. Baker, 485 U.S. 505 (1988), which "upheld a statute that prohibited States from issuing unregistered bonds because the law 'regulate[d] state activities,' rather than seek[ing] to control or influence the manner in which States regulate private parties.'" Condon, 120 S.Ct. at 672 (quoting Baker, 485 U.S. at 514-15). The Court quoted its rejection in Baker of the states' argument that the challenged federal law had unconstitutionally "'commandeered the state legislative and administrative process because many state legislatures had to amend a substantial number of statutes . . . and because state officials had to devote substantial effort'" to comply with the federal requirements: "Such 'commandeering' is, however, an inevitable consequence of regulating a state activity. Any federal regulation demands compliance. That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect." Id. (quoting Baker, 485 U.S. at 514-15). The DPPA, the Court observed, "does not require the States in their sovereign capacity to regulate their own citizens . . . [i]t does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals." Id. The Court therefore ruled that "the DPPA is consistent with the constitutional principles enunciated in New York and Printz." Id. Like the generally applicable federal laws upheld in Baker and Condon, and unlike the unique statutory provisions invalidated in New York and Printz, the ADEA does not attempt to control or influence the manner in which Kentucky regulates private parties. The ADEA neither requires Kentucky, in its sovereign capacity, to regulate the conduct of private citizens, nor commands Kentucky officials to enforce federal statutes regulating private conduct. Nor does the ADEA require the Kentucky legislature to enact specific laws or regulations, or even direct Kentucky to provide particular employment benefits to state employees. Rather, the ADEA regulates state employers in the same manner as private employers, by proscribing age-based discrimination against older workers in the terms and conditions of employment, including the provision of employment benefits. Under the ADEA, a private or public employer choosing to operate a disability retirement program must provide benefits in a manner that does not discriminate against older individuals because of age. While Kentucky may be required, as a consequence of the EEOC's suit, to amend statutory provisions that are inconsistent with the ADEA, this remedy does not unconstitutionally "commandeer" the state's legislative process in a manner inconsistent with the Tenth Amendment. Under the principles established in Baker, 485 U.S. at 514-15, and reaffirmed in Condon, 120 S.Ct. at 672, such relief is "an inevitable consequence of regulating a state activity." That the ADEA requires Kentucky, in operating its employee benefit program, to "take administrative [or] legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect." Ibid. CONCLUSION For the foregoing reasons, the EEOC urges this Court to affirm the denial of the motions to dismiss and remand this case for further proceedings on the merits. Respectfully submitted, ____________________________ GWENDOLYN YOUNG REAMS DORI K. BERNSTEIN Associate General Counsel Attorney PHILIP B. SKLOVER EQUAL EMPLOYMENT Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W. - Room 7046 Assistant General Counsel Washington, D.C. 20507 (202)663-4734 RULE 32(a)(7)(C) CERTIFICATE OF COMPLIANCE I certify that this brief contains 9,775 words. The brief was prepared in the WordPerfect 8 word-processing system, using 14-point proportionally spaced type. ____________________________ Dori K. Bernstein Attorney January 11, 2001 6 CIR. RULE 28(d) ADDENDUM The EEOC is satisfied with the designation of appendix contents, required by 6 Cir. R. 30(b), submitted by each defendant-appellant in these consolidated appeals. CERTIFICATE OF SERVICE I, Dori K. Bernstein, hereby certify that I served one copy of the foregoing Proof Brief this 11th day of January 2001, by first-class mail, postage pre-paid, to the following counsel of record: C. Joseph Beavin Robert D. Klausner Lizbeth Ann Tully Robert D. Klausner, P.A. James D. Allen 10059 N.W. 1st Ct. Stoll, Keenon & Park, LLP Plantation, Florida 33324 201 East Main Street, Suite 1000 Lexington, Kentucky 40507 Kent T. Young Mitchell L. Perry Office of the Attorney General Assistant County Attorney 700 Capitol Avenue, Suite 118 Jefferson County Attorney's Office Frankfort, Kentucky 40601-3449 531 Court Place, Suite 1001 Fiscal Court Building Louisville, Kentucky 40202 _________________________ DORI K. BERNSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 1 The Tenth Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. The Eleventh Amendment states: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. 2 See Kentucky Revised Statutes ("KRS") § 16.582(2)(b). 3 See KRS § 61.600(1)(b). 4 See KRS § 61.605. 5 On appeal, Jefferson County has adopted in toto the arguments presented in the brief filed by KRS. See Brief of Jefferson County at 3. Kentucky "agrees with the analysis and citation of authorities" presented in the brief of KRS, and provides some "additional analysis." Brief of Kentucky at 6. Because KRS, Jefferson County, and Kentucky advance essentially the same legal position, founded entirely on assertions of state sovereignty, the EEOC will refer to the defendants collectively as "Kentucky." 6 The Commerce Clause states: "The Congress shall have power . . . [t]o regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const., Art. I, § 8, cl. 3. 7 Prior to Kimel, the Supreme Court had never addressed whether Congress, in extending the ADEA to cover state employees, had validly abrogated the states' Eleventh Amendment sovereign immunity from private suits. In EEOC v. Wyoming, 460 U.S. 226, 243 (1983), the Court resolved a Tenth Amendment challenge to the ADEA, holding "that the ADEA constitutes a valid exercise of Congress' power '[t]o regulate Commerce . . . among the several states,' Art. I, § 8, cl. 3, and that the Act did not transgress any external restraints imposed on the commerce power by the Tenth Amendment." See Kimel, 120 S.Ct. at 643 (describing holding of Wyoming). In recent years, the Court has clarified the principles governing whether Congress, in authorizing private suits to enforce federal legislation against the states, has validly abrogated the states' Eleventh Amendment immunity, and has adopted an analysis clearly distinct from that governing a Tenth Amendment challenge to federal regulation of the states. In Seminole Tribe, the Supreme Court overruled Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), in which a plurality of the Court had "found that the Interstate Commerce Clause, Art. I, § 8, cl. 3, granted Congress the power to abrogate state sovereign immunity." Seminole Tribe, 517 U.S. at 59, 66. The effect of the holding in Seminole Tribe was to leave § 5 of the Fourteenth Amendment as the sole source of federal power to abrogate the states' Eleventh Amendment immunity. See id. at 59; Alden, 527 U.S. at 756 ("Congress may authorize private suits against nonconsenting States" only by acting "pursuant to its § 5 enforcement power" to enact "appropriate legislation to enforce [the Fourteenth] Amendment"). Thus, while the Court in Kimel confirmed its earlier holding in Wyoming that the application of the ADEA to state employers is constitutional under the Tenth Amendment, the Court's decision in Seminole Tribe required the Court to answer the question left open in EEOC v. Wyoming: "whether the Act also could be supported by Congress' power under § 5 of the Fourteenth Amendment." Kimel, 120 S.Ct. at 643. "[I]f the ADEA rests solely on Congress' Article I commerce power," the Kimel Court explained, "the private petitioners . . . cannot maintain their suits against their state employers." Id. 8 The Supreme Court has granted certiorari to determine whether Congress, in enacting the ADA, validly abrogated the states' Eleventh Amendment immunity from private suits. See University of Alabama at Birmingham Board of Trustees v. Garrett, No. 99-1240, cert. granted, 146 L.Ed.2d 479 (April 17, 2000). The Supreme Court heard argument in Garrett on October 11, 2000. 9 "The term 'compensation, terms, conditions, or privileges of employment' encompasses all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan.'" 29 U.S.C. § 630(l). 10 Following the decision in Wyoming, Congress amended the ADEA in 1986 to exempt from the general prohibition against age discrimination mandatory age limits for firefighters or law enforcement officers "in effect under applicable State or local law on March 3, 1983," the date Wyoming was decided. See 29 U.S.C. § 623(j). As originally enacted, the exemption was temporary and expired in 1993. Congress reenacted the provision as a permanent exemption in 1996, retroactive to the 1993 expiration date. See Kopec v. City of Elmhurst, 193 F.3d 894, 896-98 (7th Cir. 1999) (describing history of ADEA's law enforcement and firefighter exemption). 11 See also Brief of KRS at 18 (citing Kimel for the proposition that "Congress did not have the constitutional power to direct the application of the ADEA to the States"). 12 See supra note 10 (describing ADEA's law enforcement exemption). 13 Other examples in the ADEA of "the solicitude of the national political process for the continued vitality of the States," Garcia, 469 U.S. at 557, include the exclusion from statutory coverage of elected officials and appointed policymakers at the state and local levels, 29 U.S.C. § 630(f); and the extended two-year period provided for states to bring an employee benefit plan that "may be modified only through a change in applicable State or local law" into compliance with the ADEA, as amended by the Older Workers' Benefit Protection Act of 1990 ("OWBPA"). See 29 U.S.C. § 623 note. 14At the time Wyoming was decided, ADEA § 4(f)(2) permitted "an employer . . . to observe the terms of . . . any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of [the] Act, except that no such employee benefit plan shall excuse the failure to hire any individual . . . [or] shall require or permit the involuntary retirement of any individual because of the age of such individual." See 460 U.S. at 242 n.16 (quoting 29 U.S.C. § 623(f)(2)). Based on legislative history showing that Congress intended this provision "to permit age-based reductions in employee benefits plans where such reductions are justified by significant cost considerations," the EEOC construed § 4(f) to allow an employer to reduce "benefit levels for older workers . . . to the extent necessary to achieve approximate equivalency in cost for older and younger workers." 29 C.F.R. § 1625.10. As interpreted by the EEOC, "[a] benefit plan [would] be considered in compliance with the statute where the actual amount of payment made, or cost incurred, in behalf of an older worker is equal to that made or incurred in behalf of a younger worker even though the older worker may thereby receive a lesser amount of benefits or insurance coverage." Id. The Supreme Court invalidated the EEOC's regulatory interpretation, known generally as the "equal benefit or equal cost rule," in Ohio Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158 (1989). The following year, Congress rejected "both the reasoning and the holding" of Betts and enacted the OWBPA, an amendment to the ADEA that expressly codified the EEOC's "equal benefit or equal cost rule." See House Debate on S. 1511, Cong. Rec., Oct. 2, 1990, reprinted in Legislative History of the OWBPA, p. 20 (U.S. Govt. Printing Office 1991); see also 29 U.S.C. § 623(f)(2)(B)(i). 15 The Court in New York upheld the Radioactive Waste Act's monetary and access incentives as proper exercises of Congress' commerce and spending powers. 505 U.S. at 171-74. The Court invalidated the Act's third "take title provision," which required the states either to regulate waste disposal by private generators "pursuant to Congress' direction," or to "tak[e] title to and possession of the low level radioactive waste generated within their borders and becom[e] liable for all damages waste generators suffer as a result of the States' failure to do so promptly. " Id. at 174-75. Because the take title provision effectively coerced the states to "administer the federal program" for radioactive waste disposal, the Court held, it "[lay] outside Congress' enumerated powers, or . . . infring[ed] upon the core of state sovereignty reserved by the Tenth Amendment," and was therefore "inconsistent with the federal structure of our Government established by the Constitution." Id. at 175-76. In so holding, the Court emphasized the "unique" nature of the take title provision, noting that "[n]o other federal statute has been cited which offers a state government no option other than that of implementing legislation enacted by Congress." Id. at 176. 16 In Printz v. United States, 521 U.S. 898 (1997), the Supreme Court applied the Tenth Amendment analysis adopted in New York to invalidate an interim provision of the Brady Act requiring state and local law enforcement officers to conduct background checks on prospective handgun purchasers. Citing its holding in New York that "Congress cannot compel the States to enact or enforce a federal regulatory program," the Court in Printz held that "Congress cannot circumvent that prohibition by conscripting the States' officers directly." Id. at 935. New York and Printz thus established that, under the Tenth Amendment, "[t]he Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." Id.