IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _________________________________________________________ Nos. 01-1581 & 01-2429 _________________________________________________________ STATE POLICE FOR AUTOMATIC RETIREMENT ASSOCIATION, et al., Plaintiffs-Appellants, v. JOHN DiFAVA, SUPERINTENDENT OF THE DEPARTMENT OF STATE POLICE, et al., Defendants-Appellees. _________________________________________________________ On Appeal from the United States District Court for the District of Massachusetts _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP K. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7018 Washington, DC 20507 (202) 663-4737 TABLE OF CONTENTS TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .1 Nature of the Case and Course of Proceedings. . . . . . . .1 Statement of Facts. . . . . . . . . . . . . . . . . . . . .3 District Court Decisions. . . . . . . . . . . . . . . . . .7 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .9 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SPARA OFFERS NO COGNIZABLE LEGAL BASIS FOR THE INJUNCTION IT REQUESTS PROHIBITING OFFICIALS OF THE COMMONWEALTH FROM COMPLYING WITH THE PERMANENT INJUNCTION IN GATELY. . . . . . . 11 A. The Supreme Court's Decision in Kimel Does Not Provide a Basis For Questioning the Validity of the Gately Injunction.. . . . . . . . . . . . . . 12 B. SPARA's Other Challenges to the Gately Injunction Were Properly Rejected by the District Court.. . . . 20 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Alden v. Maine, 527 U.S. 706 (1999) . . . . . . . . . . . . . . . . .13-14 Badgley v. City of New York, 606 F.2d 358 (2d Cir. 1979) . . . . . . . . 28 Baker v. Wade, 743 F.2d 236 (5th Cir. 1984), rev'd on other grounds, 769 F.2d 289 (5th Cir. 1985) . . . . . . . . . . . . . . 26 Board of Education v. Dowell, 498 U.S. 237 (1991) . . . . . . . . . . . 21 Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) . . . . . . . . . . . . . . . . . . . . . . .14-15 Connors v. Chrysler Finance Corp., 160 F.3d 971 (3d Cir. 1998) . . . . . . . . . . . . . . . . . . . . 22 Consolidated Cigar Corp. v. Reilly, 218 F.3d 30 (1st Cir. 2000), rev'd in part on other grounds sub nom. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) . . . . . . . . . . . . 23 EEOC v. Massachusetts, 987 F.2d 64 (1st Cir. 1993) . . . . . . . . . . . 21 EEOC v. Trabucco, 791 F.2d 1 (1st Cir. 1986) . . . . . . . . . . . . . . 29 EEOC v. Wyoming, 460 U.S. 226 (1983) . . . . . . . . . . . . . . . . . . 13 Gately v. Massachusetts, 811 F. Supp. 26 (D. Mass. 1992), aff'd, Gately v. Massachusetts, 2 F.3d 1221 (1st Cir. 1993) . . . . . . . . . . . . . . . . . . . . . .4-5, 17, 29 Gonzalez v. Banco Central Corp., 27 F.3d 751 (1st Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . .24-26 Hoffman v. City of Warwick, 909 F.2d 608 (1st Cir. 1990) . . . . . . .18-19 Hornfeld v. City of North Miami Beach, 107 F. Supp. 2d 1359, (S.D. Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . 15 Katz v. Regents of the University of California, 229 F.3d 831 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . .2, 6, 12-16 Lucas v. Planning Bd., 7 F. Supp. 2d 310 (S.D.N.Y. 1998) . . . . . . .27-28 Martin v. Wilks, 490 U.S. 755 (1989) . . . . . . . . . . . . . . . . .18-19 Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 20 Mulrain v. Board of Selectmen, 944 F.2d 23 (1st Cir. 1991) . . . . . . . 24 Perez v. Volvo Car Corp., 247 F.3d 303 (1st Cir. 2001) . . . . . . . .24-25 TAG/ICIB Services, Inc. v. Pan American Grain Co., 215 F.3d 172 (1st Cir. 2000) . . . . . . . . . . . . . . . . . . . 12 Virginia v. American Booksellers Association, 484 U.S. 383 (1988) . . . . . . . . . . . . . . . . . . . . . . . . 23 Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1979) . . . . . . . . . . 27 Ex parte Young, 209 U.S. 123 (1908) . . . . . . . . . . . . . . . . .14-15 FEDERAL STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. § 4(j), 29 U.S.C. § 623(j). . . . . . . . . . . . . . . . .2-4, 17, 29 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 42 U.S.C. § 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . .1-2 42 U.S.C. § 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . .1-2 Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9 STATE STATUTES Mass. Gen. L. ch. 32 § 26(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 § 69(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 1991 Mass. Acts ch. 412 § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 § 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 MISCELLANEOUS 18 James Wm. Moore et al., Moore's Federal Practice § 131.30[1][d][iii] (3d ed. 1999) . . . . . . . . . . . . . . . . . 22 STATEMENT OF JURISDICTION The district court had subject matter jurisdiction under 28 U.S.C. § 1331 over plaintiffs' claim that they were denied equal protection of the laws under the Fourteenth Amendment and their related claims under 42 U.S.C. §§ 1985 and 1986. However, the court did not have jurisdiction over the other claims in the complaint. This Court has jurisdiction over this appeal under 28 U.S.C. § 1291. The district court entered a final judgment resolving all claims of all parties on September 6, 2001, and SPARA filed a timely notice of appeal on October 9. STATEMENT OF THE ISSUES 1. Whether a state may still be enjoined from violating the ADEA after Kimel. 2. Whether, in any event, the Commonwealth's adherence to an injunction that directs it to treat its state police officers the same irrespective of their ages violates any of plaintiffs' statutory or constitutional rights. 3. Whether the district court properly rejected plaintiffs' other challenges to the Gately injunction. STATEMENT OF THE CASE Nature of the Case and Course of Proceedings This is an appeal from a final judgment entered by the United States District Court for the District of Massachusetts (Saris, J.) dismissing this action. In January 2001, the State Police for Automatic Retirement Association ("SPARA"), an unincorporated association of state police officers, commenced this action against three officials of the Commonwealth of Massachusetts. App. I: tab 20. SPARA amended its complaint several times and added 103 of its members as plaintiffs. R. 22, 43, 55. The last complaint filed before the action was dismissed, the Third Amended Complaint, asserts eight separate claims. Five of these claims (counts I-III & VII-VIII) seek declaratory relief that the defendants are harming the plaintiffs' interests by refusing to ask the district court to dissolve the permanent injunction entered in 1998 in Gately v. Massachusetts, No. 92-13018 (D. Mass.). Supplemental Appendix ("SA") 32-35, 38-40. Plaintiffs allege that the Gately injunction is "unequivocally an illegal and unconstitutional injunctive order" (App. I:119), arguing mainly that it violates Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). The complaint seeks a declaration that defendants' inaction violates: Section 4(j) of the Age Discrimination in Employment Act, 29 U.S.C. § 623(j) (Count I); Rule 23 of the Federal Rules of Civil Procedure (Counts II & VIII); and the Equal Protection Clause of the Fourteenth Amendment (Counts III & VII-VIII). SA 32-40. The plaintiffs also allege that the defendants are violating the plainiffs' rights under state law (Count IV) and under 42 U.S.C. §§ 1985 & 1986 (Counts V & VI) by refusing to enforce the state statutory provision enjoined in Gately. SA 35-37. The Equal Employment Opportunity Commission and a group of state police officers ("the Devereaux intervenors") were granted leave to intervene as defendants. R. 15, 21+ (Feb. 5, 2001). In February and March, the original defendants and the intervening defendants filed motions to dismiss. R. 23, 26, 29. The EEOC's motion sought dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. R. 29. On January 10, 2001, the plaintiffs moved for a preliminary injunction enjoining the Commonwealth from creating new lists of officers eligible for promotion. R. 2. In March 2001, the district court denied SPARA's motion for a preliminary injunction, but deferred ruling on the defendants' motions to dismiss pending briefing on new arguments plaintiffs had advanced just before the hearing. App. II:9 (order denying the motion); I:303 (court noting at motion hearing that SPARA had raised a new argument based on 29 U.S.C. § 623(j) the previous business day). On September 6, 2001, the district court denied plaintiffs' second motion for a preliminary injunction and granted the defendants' motions to dismiss. App. II:40. Statement of Facts Before 1991, state law enforcement officers in Massachusetts worked in four different units. Most of the officers were in the Division of State Police, but there were three smaller units of state police officers: the Metropolitan District Commission Police, the Capitol Police, and the Law Enforcement Division of the Registry of Motor Vehicles. Gately v. Massachusetts, 2 F.3d 1221, 1224 (1st Cir. 1993). At the time, a provision of state law required officers in the Division of State Police to retire at age 50; a different provision required officers in the three smaller units to retire at age 65. Mass. Gen. L. ch. 32, §§ 26(3)(a), 69(d). Both of these provisions were repealed in 1991 as part of a statute that consolidated these four units into a unitary Department of State Police. 1991 Mass. Acts ch. 412, § 1 (effective July 1, 1992). The new law contained a provision requiring officers in the new Department to retire at age 55. 1991 Mass. Acts, ch. 412, § 122, codified at Mass. Gen. L. ch. 32, § 26(3)(a) ("1991 Retirement Law"). In December 1992, shortly before the new law required them to retire, officers from the three smaller units sued the Commonwealth. They alleged that the new retirement law violated § 4(a)(1) of the ADEA, 29 U.S.C. § 623(a)(1), by requiring them to retire because of their age. The Commonwealth argued that the challenged law was permissible under § 4(j) of the ADEA, which allowed the states to require law enforcement officers to retire based on age where, inter alia, "the individual has attained the age of . . . retirement in effect under applicable State . . . law on March 3, 1983." 29 U.S.C. § 623(j)(1992). Plaintiffs responded that the challenged state law was not sanctioned by § 623(j) because it imposed a lower mandatory retirement age on them than they had been subject to in early 1983. The district court granted a preliminary injunction barring the Commonwealth from "dismissing or retiring plaintiffs or other officers because they are aged 55 or older . . . ." SA 54 (R. 25); Gately v. Massachusetts, No. 92-cv-13018 (D. Mass. Dec. 30, 1992) (preliminary injunction); 811 F. Supp. 26, 31 (D. Mass. 1992) (opinion). This injunction was well publicized at the time. It was the subject of an article in the Boston Globe. App. II:41-42. In addition, Superintendent Charles Henderson of the Department sent a notice to all Massachusetts State Police stations and units informing the officers of the issuance of the injunction and inviting interested officers to consult with counsel for the Gately plaintiffs. App. II:43. The Commonwealth appealed the district court's preliminary injunction, and this Court affirmed the order in August 1993. Gately v. Massachusetts, 2 F.3d 1221 (1st Cir. 1993), cert. denied, 511 U.S. 1082 (1994). On remand, the EEOC, which had participated as amicus in the appeal, was permitted to intervene as a plaintiff. SA 57 (R. 47, 49+ (Nov. 3, 1993)). In March 1998, after the parties' attempts to settle the dispute proved unsuccessful, the private plaintiffs and the Commission filed motions for summary judgment. SA 64 (R. 103, 106). The district court granted those motions in June 1998 and entered a permanent injunction barring the Commonwealth "from requiring officers of the Department of State Police to retire solely on the basis of their age." SA 65 (R. 118); App. I:76. On June 9, 1998, the district court entered judgment for the plaintiffs. SA 65 (R. 119). Private plaintiffs then sought attorney fees, which the court granted by order entered February 5, 1999. SA 67 (R. 135). No appeal was taken from the final judgment in Gately. In January 2000, the Supreme Court issued its decision in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). In Kimel, the Court held that the Eleventh Amendment foreclosed an individual's ADEA action seeking money damages from a state employer. The Supreme Court held that, while the 1974 amendments extending the ADEA to state and local governments contained a clear statement of Congress' intent to abrogate the states' Eleventh Amendment immunity, "the abrogation exceeded Congress' authority under § 5 of the Fourteenth Amendment." Id. at 66. In August 2000, Lt. Gerard Coletta sought leave to intervene in Gately and filed a motion for relief from judgment under F.R.Civ.P 60. SA 67 (R. 155-56); App. I:106. The district court denied his motion to intervene as untimely. SA 71 (R. 154+ (Jan. 2, 2001)); App. I:116-17. Coletta did not appeal that ruling. This action was commenced in January 2001. R. 1. District Court Decisions The district court's March 2001 decision denied SPARA's first motion for a preliminary injunction. The court rejected SPARA's argument that the Kimel decision establishes that Congress acted without constitutional authority when it extended the ADEA to state employers. The court stated that Kimel holds only that individuals may not sue states for damages under the ADEA. App. II:2. According to the court, this holding provides no basis for challenging the Gately injunction for three reasons. First, Kimel does not bar claims by individuals seeking an injunction requiring a state official to obey federal law. App. II:6-7. Second, the Eleventh Amendment grants states immunity only from damage claims filed by individuals; it does not bar such claims by the EEOC, an agency of the federal government. App. II:7-8. Finally, whatever immunity the Eleventh Amendment affords belongs to the Commonwealth of Massachusetts, and it cannot be invoked by SPARA or its members. App. II:8. In its September 2001 order, the district court granted the defendants' motions to dismiss. The court initially held that all of SPARA's remaining claims – the court having already rejected SPARA's Kimel-based claims – were barred by res judicata. App. II:35-36. There clearly was a final judgment in Gately, the court noted, and the claims SPARA now advances grew out of the same nucleus of operative facts as the claims raised in Gately. App. II:19-20. Thus the only question, the court stated, was whether SPARA and its members, who were not parties in Gately, should be deemed in privity with the Commonwealth, which was a party in Gately. The district court noted that a state government is presumed to be an adequate representative of its citizens, especially when it is defending the validity of its laws. App. II:24-25. Furthermore, the court stated, the Commonwealth presented a vigorous defense of the challenged statute in Gately, including appealing to this Court, seeking rehearing here, and seeking review in the Supreme Court. App. II:33-34. Finally, the court observed, at least some of SPARA's members knew about the Gately litigation and the effect it could have on them, and could have sought to intervene in Gately well before final judgment was entered, but failed to do so. App. II:34. Under these circumstances, the court held, it is equitable to deem these plaintiffs in privity with the Commonwealth, and res judicata therefore applies to bar their current claims. App. II:35-36. Moreover, the court noted, in the event that SPARA's claims were not barred by res judicata, the doctrine of stare decisis would preclude the court from reaching a result contrary to this Court's decision in Gately. App. II:36-37. Finally, in additional alternative rulings, the district court rejected several of SPARA's challenges on the merits, holding that a permanent injunction like the one entered in Gately is not required to have a termination date, that Fed. R. Civ. P. 23 does not provide SPARA with a cause of action, and that the Commission did not need to comply with Rule 23 in any event. App. II:37-39. SUMMARY OF ARGUMENT In this collateral attack on the permanent injunction entered in Gately, plaintiffs argue that the injunction was invalid at the time it was entered (because it was overbroad in scope and because it lacked a termination date), and that even if the injunction was valid when entered, it became invalid when the Supreme Court issued its decision in Kimel. The district court's dismissal was proper because none of the plaintiffs' substantive arguments have any merit, and because plaintiffs do not have a cause of action to challenge the Gately injunction in the first place. Plaintiffs' principal argument on appeal is that the Gately injunction is invalid in the wake of Kimel, but Kimel provides no basis for challenging the Gately injunction. Kimel addressed whether the ADEA was appropriate legislation under § 5 of the Fourteenth Amendment only in order to determine whether Congress, when it extended the ADEA to state employees in 1974, had the constitutional power to abrogate the states' Eleventh Amendment immunity from private claims for damages. The Supreme Court did not address in Kimel whether Congress had the power to require the states to obey the ADEA. The Court had already answered that question in the affirmative in Wyoming, and Wyoming remains good law after Kimel. Moreover, plaintiffs have no cause of action to challenge the Gately injunction in the first place. They articulated no legitimate statutory claim, and their alleged equal protection claim lacks any substance. They are not alleging that they are members of a suspect class, or even that they have been treated any differently than other state police officers. Indeed, they are protesting the fact that the Commonwealth is treating all state police officers in precisely the same way with respect to retirement. Nor have plaintiffs established that the Commonwealth's failure to challenge the Gately injunction burdens any of plaintiffs' fundamental rights. If Massachusetts state police officers do not have a fundamental right to retain their jobs, as the Supreme Court has held, then they certainly do not have a fundamental right to obtain the number of promotions they would like to obtain. Finally, plaintiffs' challenges to the scope and duration of the Gately injunction lack merit, and they are barred by res judicata in any event. Once the district court in Gately rejected the Commonwealth's argument that the 1991 Retirement Law was saved by § 4(j) of the ADEA, the court properly enjoined the Commonwealth from enforcing the challenged law, since it violated § 4(a)(1) of the ADEA. The scope of the Gately injunction was dictated by the scope of the invalid state statute, and there was no reason for the Gately court to limit the duration of its decree. Moreover, these arguments are barred by res judicata. Since these plaintiffs have no independent statutory or constitutional right to challenge the Gately injunction, the district court properly held that the Commonwealth effectively served as their representative when it opposed the plaintiffs' claims in Gately. ARGUMENT SPARA OFFERS NO COGNIZABLE LEGAL BASIS FOR THE INJUNCTION IT REQUESTS PROHIBITING OFFICIALS OF THE COMMONWEALTH FROM COMPLYING WITH THE PERMANENT INJUNCTION IN GATELY. In this action SPARA seeks an injunction barring Massachusetts officials from complying with a permanent injunction entered in another federal action. Neither in the district court nor in this Court has SPARA articulated a plausible explanation of how it is entitled to this extraordinary relief on the basis of any of the claims it asserts. Instead, SPARA advances general arguments questioning the correctness of the Gately injunction as if this were an appeal from the decision in that case. As we explain below, SPARA's attack on the Gately injunction fails both because the arguments it advances are substantively wrong and because SPARA cannot show that the defendants' compliance with the Gately injunction violates any cognizable legal right of SPARA or its members.<1> A. The Supreme Court's Decision in Kimel Does Not Provide a Basis For Questioning the Validity of the Gately Injunction. SPARA's principal attack on the Gately injunction is based on the Supreme Court's decision in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). According to SPARA, Kimel "clearly holds that [the] ADEA is unconstitutional in its application to the states and is therefore unenforceable against them." SPARA Br. 35. This argument reflects a fundamental misunderstanding of the Kimel decision. In fact Kimel holds only that, in making the ADEA applicable to the states, Congress did not validly abrogate the states' Eleventh Amendment immunity. The Court held that, since the ADEA was not appropriate legislation under § 5 of the Fourteenth Amendment, Congress lacked the authority to abrogate the states' immunity to private ADEA suits for damages. SPARA contends that since the Supreme Court decided in Kimel that extending the ADEA to the states was not appropriate legislation under § 5, Congress lacks the power to apply the ADEA to the states at all. SPARA Br. 27-28. But while the § 5 inquiry is essential to Congress's power to abrogate the states' sovereign immunity, it is not essential to Congress's power to regulate state activity, since Congress has the power to regulate state activity under other constitutional provisions, such as the Commerce Clause. Before Kimel, the Supreme Court had already held that the amendment making the ADEA applicable to the states was a valid exercise of Congress's power under the Commerce Clause and, therefore, did not violate the Tenth Amendment. EEOC v. Wyoming, 460 U.S. 226, 238-39, 243 (1983). Kimel itself reprises the holding in Wyoming, and in no way suggests that Wyoming is no longer good law. Kimel, 528 U.S. at 78. In two recent decisions, one issued before Kimel and one after, the Supreme Court made clear that a holding that legislation does not abrogate the states' Eleventh Amendment immunity does not mean that the legislation is inapplicable to the states. In Alden v. Maine, 527 U.S. 706 (1999), which was decided shortly before Kimel, the Court held that Congress lacked the authority to abrogate the states' Eleventh Amendment immunity from private suits for damages under the Fair Labor Standards Act. The Court emphasized, however, that that did not mean that Congress lacked the authority to apply the FLSA to the states. The two inquiries, the Court held, are independent: The constitutional privilege of a State to assert its sovereign immunity . . . does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design. 527 U.S. at 754-55. Moreover, the Court explained, while the state's sovereign immunity bars individual actions for damages absent state consent, other types of litigation can be brought to enforce the state's obligation to obey the FLSA. The federal government can sue a state to enforce the FLSA (because the states consented to such suits when they ratified the Constitution), and private parties can sue state officials seeking prospective injunctive relief under Ex parte Young, 209 U.S. 123 (1908). Alden, 527 U.S. at 755-57. That Kimel did not change this analysis is clear from Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), which was decided more than a year after Kimel. The issue in Garrett was whether Congress properly abrogated the states' sovereign immunity to private suits for damages when it enacted the Americans with Disabilities Act. As in Kimel, the Supreme Court held that, while Congress made clear in the ADA its intent to abrogate the states' sovereign immunity, Congress lacked the authority to do that because the ADA was not appropriate legislation under § 5. Id. at 363-74. But again, as in Alden, the Court made clear that, even though Congress had not validly abrogated the states' sovereign immunity in the ADA, Congress still had validly applied the ADA to the states, and states can be sued to enforce the ADA: Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young, 209 U.S. 123 (1908). Id. at 374, n.9. Kimel dealt solely with the question of whether Congress validly abrogated the states' sovereign immunity when it authorized private actions against the states for damages under the ADEA. Kimel therefore did not render the ADEA inapplicable to the states. See Katz v. Regents of the University of California, 229 F.3d 831, 834 (9th Cir. 2000) ("Nothing in Kimel suggests that the Court intended to remove the statutory jurisdictional basis for age discrimination suits against a state or its agencies."); Hornfeld v. City of North Miami Beach, 107 F. Supp. 2d 1359, 1363-64 (S.D. Fla. 2000) ("[T]he Supreme Court did not call into question the validity of the ADEA under Congress' Commerce Clause power in the Kimel decision."). Once the limited nature of the Kimel decision is understood, it is clear, as the district court ruled, that Kimel does not call into question the validity of the injunction in Gately for three independently sufficient reasons. First, the EEOC was a plaintiff in Gately, and, as a federal agency, its authority is not limited by the Eleventh Amendment. Cf. Garrett, 531 U.S. at 374, n.9 (so stating, with respect to the ADA). Secondly, Kimel casts no doubt on the ability of the private plaintiffs in Gately to obtain a prospective injunction preventing state officials from violating the ADEA under Ex parte Young. Id. Finally, the sovereign immunity recognized in Kimel may only be asserted by the state, and the state has not claimed immunity from the Gately action. Accordingly, the district court correctly held that Kimel has not undermined the Gately permanent injunction in any way. Furthermore, even if Kimel did cast doubt on the correctness of the Gately injunction, SPARA has failed to explain how the Commonwealth's continued adherence to the terms of the injunction would violate any cognizable statutory or constitutional rights of its members. On appeal SPARA confines its Kimel argument to the question of whether the Gately injunction is somehow legally insupportable in light of Kimel. SPARA br. 27-37. However, this is not an appeal from a decision in Gately.<2> Rather this is an appeal from the dismissal of SPARA's claims in this separate action. In order to prevail SPARA would have to show, not only that the Gately injunction is improper, but also that the Commonwealth's practice pursuant to the injunction of permitting all qualified state police officers to continue to work regardless of age violates a legal right of SPARA's members. SPARA has not made, and cannot make, such a showing. Although SPARA's complaint refers generally to alleged violations of its members' "civil rights" (SA 19, 36), SPARA does not allege that any federal or state statute affords them a legal right to receive as many promotions as they would have received if the mandatory retirement policy they favor were in effect. Certainly the ADEA affords them no such right.<3> The complaint also asserts in conclusory terms that the Commonwealth's failure to challenge the Gately injunction violates the Equal Protection Clause of the Fourteenth Amendment. SA 32, 34, 38-39. Although SPARA fails to clearly articulate the basis for this claim, it would appear that SPARA is arguing that, by failing to take steps to enforce the 1991 Retirement Law that was enjoined in Gately, the Commonwealth is permitting some state police officers to work longer than they would have been permitted to work under the 1991 law, thereby delaying the promotions of SPARA members. On its face, this allegation does not state a claim under the Equal Protection Clause. According to this Court, "‘[t]o allege that a state's failure to enforce its own law is a violation of the federal equal protection clause, the plaintiff must set forth: (1) a classification of similarly situated persons caused by intentional or purposeful discrimination on the part of the statute's administrators; and (2) an allegation that the State's failure to enforce its law constituted a denial of a right, privilege or immunity secured by the federal constitution.'" Hoffman v. City of Warwick, 909 F.2d 608, 623 (1st Cir. 1990) (quoting Muckway v. Craft, 789 F.2d 517, 523 (7th Cir. 1986)). Plaintiffs cannot satisfy either prong of the Hoffman test. They cannot establish that the challenged state practice is a discriminatory classification, as required by the first prong, because they are in fact challenging the Commonwealth's refusal to classify state police officers on the basis of age. It is manifest that a state's decision to treat all police officers the same regardless of age does not constitute "a classification of similarly situated persons caused by intentional or purposeful discrimination" as required by Hoffman. In its complaint, SPARA cites Martin v. Wilks, 490 U.S. 755 (1989), as supportive of its claims. SA 22-23. However, a comparison of this case with Martin serves only to demonstrate why SPARA has failed to state a claim here. Martin concerned the application of a consent decree in which the City of Birmingham had resolved an earlier action alleging race discrimination in employment by, inter alia, agreeing to take race into account in making future promotion decisions. The Martin plaintiffs alleged that, as a consequence of the city's compliance with the consent decree, they were denied promotions because of their race. Accordingly, unless the consent decree provided a defense, the Martin plaintiffs clearly stated claims against the city under Title VII and 42 U.S.C. § 1983, because they alleged that they were denied promotions on the basis of their race. Id. at 758. Here, by contrast, the Gately injunction requires the Commonwealth not to base retirement decisions on age. Plaintiffs do not allege that the Commonwealth is treating them differently than similarly situated police officers based on their age or any other characteristic, nor can they, because they are in fact complaining of the Commonwealth's practice of treating all state police officers the same for retirement purposes regardless of their age. Furthermore, SPARA cannot meet the second prong of the Hoffman test because they cannot show that the Commonwealth is denying them a "right, privilege or immunity secured by the federal constitution" by failing to force older officers to retire. SPARA alleges that the Commonwealth's failure to enforce the mandatory retirement provision enjoined in Gately is forcing its members to wait longer before being promoted. However, they make no argument that they have a constitutional right to have older police officers forced out to secure them speedy promotions. There is no such right, as the Supreme Court's decision in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313 (1976), makes clear. In Murgia, the Court stated that a Massachusetts statute requiring state police officers to retire at age 50 did not violate the Equal Protection Clause, inter alia, because the officers who were forced to give up their jobs did not have a fundamental right to state employment. A fortiori, the plaintiffs here have no fundamental right to the promotions they seek. B. SPARA's Other Challenges to the Gately Injunction Were Properly Rejected by the District Court. SPARA also argues that the Gately injunction was improper even before the Kimel decision. SPARA Br. 11-15. These arguments suffer from the same defects as SPARA's Kimel argument: they lack substantive merit and, even if they had merit, they would not establish that plaintiffs have any cognizable legal claims. In addition, as the district court held, these claims are barred by res judicata and stare decisis, since the propriety of the Gately injunction under pre-Kimel law was fully litigated in that action and plaintiffs' interests were adequately represented by the state. Furthermore, as the court noted, some of the plaintiffs, as well as other similarly situated younger police officers, were aware of the pendency of the Gately action and its potential impact on their promotions. Although they had ample opportunity to raise any concerns they had before the final injunction was entered in Gately, none of these officers attempted to intervene until well after the injunction was entered. SPARA erroneously contends that the Gately injunction was improper because it lacked a termination date. SPARA Br. 11-12. SPARA's argument that permanent injunctions must have termination dates relies exclusively on school-desegregation cases, where the Supreme Court has held that a program designed to remedy a constitutional violation should terminate once the violation has been cured. See, e.g., Board of Educ. v. Dowell, 498 U.S. 237, 246-49 (1991) (an injunction imposing "judicial tutelage" and a desegregation plan on a local school board must be dissolved when the effects of the board's past discrimination have been eliminated). But those cases are irrelevant here. When a court finds that a challenged state law violates federal law, the remedy is to strike the offending state law permanently, not temporarily. See, e.g., EEOC v. Massachusetts, 987 F.2d 64, 74 (1st Cir. 1993) (holding that a provision of the Commonwealth's retirement law could not stand because it violated the ADEA). SPARA also erroneously maintains that the district court in Gately lacked subject matter jurisdiction to enjoin enforcement of Massachusetts' mandatory retirement provision with respect to police officers who were not previously permitted to work until 65. SPARA Br. 13-15. There can be no question that the Gately court had federal-question jurisdiction to hear the claims asserted by the private plaintiffs and the EEOC in that action because the private plaintiffs and the EEOC stated claims arising under the ADEA. See, e.g., Connors v. Chrysler Fin. Corp., 160 F.3d 971, 973 (3d Cir. 1998) (federal court has subject matter jurisdiction under 28 U.S.C. § 1331 over claim of violation of ADEA).<4> Accordingly, SPARA's argument, although couched in jurisdictional terms, only makes sense as a challenge to the scope of the injunction entered by the Gately court rather than its jurisdiction. Even if it is understood in this way, however, it lacks merit. Having found that the mandatory retirement provision enacted as part of the reorganization of the Massachusetts state police violated the ADEA, the district court appropriately enjoined enforcement of the provision rather than attempting to rewrite the law, as SPARA would prefer, so that it applied to only some of the officers in the new Department. See, e.g., Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 397 (1988) ("we will not rewrite a state law to conform it to constitutional requirements"); Consolidated Cigar Corp. v. Reilly, 218 F.3d 30, 56 (1st Cir. 2000) (courts must "take care not to trample the legislative or executive province of state authorities by making unduly substantive additions or changes to laws and regulations"), rev'd in part on other grounds sub nom. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). The decision as to whether to proceed with no mandatory retirement age for state police, as the Commonwealth has done, or to attempt to enact new legislation which imposes mandatory retirement provisions consistent with Gately was appropriately left to the Commonwealth. Furthermore, as discussed supra at pp. 16-20 with respect to the arguments based on Kimel, even if SPARA's other challenges to the correctness of the Gately injunction were meritorious, they would not provide a basis for this action. Assuming arguendo that the Commonwealth was conforming its employment practices to a court order that was erroneously entered, SPARA would not have a cause of action unless it established that the Commonwealth's conduct violated some cognizable legal right of its members. This it has failed to do. Furthermore, insofar as SPARA attempts in this action to relitigate the appropriateness of the Gately injunction as a remedy for the discrimination alleged in that action, the district court correctly held that it is barred by res judicata. Res judicata bars SPARA from re-litigating the validity of the 1991 Retirement Law if there was a final judgment in Gately, if the causes of action in this suit and in Gately are sufficiently "related" or "identical," and if SPARA and its members are in sufficient privity with the Commonwealth in Gately. See Perez v. Volvo Car Corp., 247 F.3d 303, 311 (1st Cir. 2001) (stating elements of res judicata); Mulrain v. Board of Selectmen, 944 F.2d 23, 25 (1st Cir. 1991) (same). SPARA does not dispute that there was a final judgment in Gately. SPARA contends, however, that its causes of action are distinct from those raised in Gately, and that it is not in privity with any of the parties in Gately. SPARA Br. 15-27. Whether two causes of action are sufficiently identical for res judicata purposes is gauged by the "transactional approach": i.e., by asking whether both sets of claims "derive from a common nucleus of operative facts." Gonzalez v. Banco Central Corp., 27 F.3d 751, 755 (1st Cir. 1994). SPARA's claims in this action and the Commonwealth's defenses in Gately grew out of a common nucleus of operative facts: the two different mandatory retirement policies in place before 1991, the 1991 Retirement Law imposing a single retirement age, and the claim raised by the Gately plaintiffs and the Commission that the 1991 Retirement Law violated the ADEA. This is particularly apparent because, as we have noted, SPARA's arguments on appeal amount to nothing more than a series of challenges to the appropriateness of the injunction entered in Gately as a remedy for the discrimination alleged. Clearly these issues were squarely presented in Gately on the basis of the same factual record. Accordingly, the district court was correct in concluding that the causes of action in Gately and in this action are sufficiently identical to warrant preclusion. SPARA also maintains that it is not in privity with any of the parties in Gately. SPARA Br. 16-20. This contention should also be rejected. The district court correctly held that the Commonwealth should be deemed SPARA's virtual representative in Gately. There is no simple list of requirements that leads to a finding of virtual representation. Gonzalez, 27 F.3d at 761. An identity of interests is required, as is actual or constructive notice of, and an opportunity to participate in, the earlier action. Perez, 247 F.3d at 311-12. Beyond that, virtual representation "has a pronounced equitable dimension," and it should not be found unless "the balance of the relevant equities tips in favor of preclusion." Gonzalez, 27 F.3d at 761. The basic requirements are clearly met here. The Commonwealth's interest in Gately was defending the validity of the 1991 Retirement Law, and that is completely consistent with SPARA's goal in this action. Moreover, many of SPARA's members, and many other similarly situated officers, had notice of the Gately litigation and its potential impact on their careers. They also had ample opportunity to seek intervention in Gately, since over five years passed between the well-publicized preliminary injunction in December 1992 and the June 1998 permanent injunction. Accordingly, the virtual-representation finding should turn on weighing the equities. Gonzalez, 27 F.3d at 761. As the district court noted, a state government is presumed to be an adequate representative of its citizens, particularly when it is defending the validity of one of its own laws, as the Commonwealth did in Gately. Cf. Baker v. Wade, 743 F.2d 236, 242 (5th Cir. 1984) (so holding, under Texas law); rev'd on other grounds, 769 F.2d 289 (5th Cir. 1985). That presumption is bolstered here by the vigor with which the Commonwealth defended the statute, appealing the Gately preliminary injunction to this Court, seeking rehearing here, and seeking review in the Supreme Court. App. II:33. The mere fact that the Commonwealth did not raise in Gately the precise argument plaintiffs raise here – that the 1991 Retirement Law should be enjoined only with respect to the officers from the three smaller units – does not preclude a finding of virtual representation. The position a government takes in litigation is often a political decision that takes into account the conflicting interests of various groups of citizens. For example, in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979), the United States sued the State of Washington on behalf of several Indian tribes to establish the tribes' treaty-based fishing rights. Faced with differing interpretations of the relevant treaty clause, the district court adopted an interpretation that guaranteed the tribes about one-half of each annual run of fish. Groups representing non-Indian fishermen then sued in state court to challenge that interpretation, arguing that they should not be bound by the earlier litigation because they had not been parties to it. The Supreme Court rejected this argument, holding that the non-Indian fishermen, as citizens of the state, "were represented by the State" in the earlier litigation, even though the state had other interests to consider in that earlier litigation. 443 U.S. at 692 n.32 Similarly, in Lucas v. Planning Bd., 7 F. Supp. 2d 310 (S.D.N.Y. 1998), a town received applications from two cell phone companies each wanting to construct a telecommunications tower in the town. The town first convinced the two companies to build a single tower, but then passed an ordinance preventing the construction of any tower. The companies sued, and a consent judgment resulted, authorizing the construction of one tower. Residents living near the proposed site then sued, claiming equal protection and other violations. Holding their claims barred by res judicata, the district court stated: [C]ourts have held consistently that claims by private plaintiff-citizens may be precluded by prior state litigation to the extent that such claims do not seek redress for private interests or individual rights above and beyond the general public interest asserted by the state in the prior proceeding. Id. at 327 (citing cases). Accordingly, whether residents of a state will be permitted to challenge the result of a prior lawsuit to which the state was a party usually turns on whether the residents are alleging "violations of substantial individual rights" that give them an independent cause of action. Lucas, 7 F. Supp. 2d at 328; see also Badgley v. City of New York, 606 F.2d 358, 365 (2d Cir. 1979) (owners of riparian land in Pennsylvania are barred from challenging the consent decree entered in an earlier action to which Pennsylvania was a party in part because plaintiffs have no rights beyond or different from those asserted by Pennsylvania in the earlier action). We have established supra that these plaintiffs have no individual legal rights that have been violated by the Commonwealth's continued adherence to the Gately injunction. The district court therefore properly ruled that the Commonwealth was plaintiffs' virtual representative in Gately. Finally, the district court ruled that even if res judicata does not apply here, plaintiffs' non-Kimel-based claims should be dismissed because of stare decisis. App. II:36-37. This Court in Gately held that the 1991 Retirement Law was not saved by § 4(j) of the ADEA. 2 F.3d at 1228-30. Except – allegedly – for Kimel, there have been no significant changes in the relevant facts or the governing law since this Court's decision in Gately. Accordingly, the district court did not err in ruling that plaintiffs' attempt to relitigate the validity of the 1991 law under § 4(j) is barred by stare decisis. See EEOC v. Trabucco, 791 F.2d 1, 4 (1st Cir. 1986) ("[A] weak or ineffective presentation" in the prior case does not "deprive[ ] the [earlier] ruling of its precedential effect."). CONCLUSION Plaintiffs' legal arguments lack merit, and plaintiffs in any event have no cause of action to challenge the Gately injunction. Accordingly, the Commission respectfully urges this Court to affirm the judgment dismissing plaintiffs' claims. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Rm. 7018 Washington, D.C. 20507 (202) 663-4737 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were served by mailing them on this date first class, postage prepaid, to the following counsel of record: Law Offices of Michael C. McLaughlin 1 Beacon St., 33rd floor Boston, MA 02108 Deborah Steenland Office of the Attorney General One Ashburton Place Boston, MA 02108 James B. Conroy Donnelly, Conroy & Gelhaar, LLP 1 Beacon St., 33rd floor Boston, MA 02108 Paul D. Ramshaw Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7018 Washington, DC 20507 (202) 663-4737 March ?, 2002 ********************************************************************************** <> <1> “This court applies a de novo standard of review to a district court's allowance of a motion to dismiss for failure to state a claim.” TAG/ICIB Servs., Inc. v. Pan American Grain Co., 215 F.3d 172, 175 (1st Cir. 2000). <2> No appeal was taken from the Gately court’s denial of Colletta’s motion to intervene. <3> SPARA alleges in its complaint that the Gately injunction violated § 4(j) of the ADEA. SA 32. Section 4(j), however, is not a prohibitory section; rather, it creates an exception permitting state and local governments to mandate retirement of state law enforcement officers based on age under specified conditions. This Court has already held that the 1991 Retirement Law did not meet those conditions. Gately, 2 F.3d at 1228-30. Even if the state were refusing to enforce a law that was permissible under § 4(j), however, the plaintiffs would not have a claim under the ADEA because they do not allege that the Commonwealth has taken any action against them based on their age. In any event, SPARA makes no argument on appeal that the Gately injunction violates the ADEA. <4> In any event, SPARA cannot challenge the subject matter jurisdiction of the Gately court in this action. See 18 James Wm. Moore et al., Moore’s Federal Practice § 131.30[1][d][iii] (3d ed. 1999), at 131-88 (“Federal court judgments are not subject to collateral attack based on lack of subject matter jurisdiction even if the issue of such jurisdiction was never raised and determined in the initial proceeding.”). SPARA’s reliance on the principle that subject matter jurisdiction can be raised at any time during the course of litigation overlooks the fact that its challenge to the Gately court’s jurisdiction is not made in the course of that litigation, but in a separate action.