Richard T. Kopec v. City of Elmhurst, a Municipal Corporation, and Board of Fire and Police Commissioners of the City of Elmhurst

Cir.1999), we find that district court jurisdiction have to consider Chow’s

did After our corpus petition. decision

habeas I, only option was to Chow Chow’s court, district

pursue his claims in the

therefore, extremely his case falls into the which class of cases in

rare U.S.C. jurisdiction

§ 2241 exists district 823-24; Turkhan, F.3d at

court. See

LaGuerre, 164 F.3d at 1040.

While we find the district court had claims,

jurisdiction to Chow’s consider we must reverse. The district

nevertheless granted petition

court Chow’s habeas

corpus because it found that AEDPA 440(d) protection.

§ equal violated As

suming correctly the district court reached equal protection

the merits of Chow’s

claim, rejected we equal pro an identical LaGuerre, argument

tection in LaGuerre. F.3d at 1041. Chow’s constitutional merit, and,

claims lack under AEDPA 440(d), statutorily ineligible he is for a

discretionary deportation waiver of under 212(c).

INA

The decision of court RE- the district and the case is Remanded

VERSED, court proceedings district for further con- with opinion.

sistent KOPEC,

Richard T. Plaintiff-

Appellant, ELMHURST, municipal OF

CITY cor-

poration, and of Fire Board and Po-

lice Commissioners

Elmhurst, Defendants-Appellees.

No. 98-2858. Appeals,

United States Court

Seventh Circuit.

Argued Feb.

Decided Oct. him, explaining

declined to hire that he had failed an oral interview. filed Age suit under the in Em Discrimination (the ployment Act of as amended “ADEA”), seq., et con tending that the real city’s reason for the refusal to hire him age. was his granted district court summary judgment Elmhurst, in favor of concluding that the express § 623(j) terms of 29 U.S.C. retro actively exempted city from the ban on age discrimination with respect to fire fighters and law enforcement officers. v. City F.Supp.2d 8 of (N.D.Ill.1998). 1082 agree We and affirm. I. 1985, July 36,

In of began work for part-time Elmhurst as a auxiliary police officer. In respects, most responsibilities job compa- of that are rable to that of a police full-time officer. Kopec wore a badge and a gun, carried streets, patrolled apprehended those engaged mischief, in criminal and main- tained the same fitness level as his full- time colleagues. hire, At the time of his however, Illinois law as well employ- as the ment criteria of the Elmhurst Board of (the Fire and Police Commissioners “Board”) required applicants for full-time younger to be than 35. years hire, In the preceding Kopec’s fed- eral discrimination law undergone Esposito Lewis, Paul V. (argued), Over- significant evolution public insofar as safe- Furman, IL, beck & Chicago, plaintiff- for ty workers were concerned. As enacted appellant. 1967, the ADEA apply anyone did not employed by Barbara a state (argued), Kubiesa, government. J. Gosselar or local Spiroff, Pieper, exemp- Gosselar & eliminated that Oakbrook Ter- tion, 93-259, race, IL, Brechin, P.L. Itasca, IL, H. John 88 Stat. but the for Supreme defendant-appellee. subsequent Court’s holding League National Usery, Cities v. 426 POSNER, Before Judge, Chief and ROVNER, Judges. FLAUM Circuit (1976) (declaring unconstitutional the ex- of wage provisions tension and hour ROVNER, ILANA DIAMOND Circuit Fair employees Labor Standards Act to Judge. state and governments), raised some At Kopec sought Richard doubt as to whether the Tenth Amend- become a officer permitted for the ment Congress to bind state and Chicago suburb of Elmhurst. The local governments to federal age discrimi-

897 Note, Knight, 623(j)); City A. Roche v. Chicago, nation rules. See David (7th Constitutionality the ADEA Cir.1994); F.3d McCann v. after (1976); Ellen B. TJsery, 30 Ark.L.Rev. (7th Chicago, 968 F.2d Note, League Cities Spellman, National Cir.1992), denied, cert. Implications Equal Its Usery: L.Ed.2d 432 Essen Age Act and the Discrimination in Pay tially, permitted the amendment state and Act, Employment 10 U. Mich.J.L.Ref. which, local governments as March County Calu but see E.E.O.C. (the day Supreme after the Court met, n. 1251-53 & Wyoming), decided E.E.O.C. v. had in Cir.1982), Elrod, E.E.O.C. place age restrictions firefighters (7th Cir.1982) (concluding officers, law enforcement to continue to authority Congress properly exercised its apply those restrictions. 5 of 14th Amendment under section 623(i) (1988). terms, By § its the amend when it extended ADEA to state and local apply ment did not to pending cases and Supreme settled employees). The Court arising prior other causes of action to Jan question Wyoming, E.E.O.C. v. 1, 1987, uary the effective date of the 226, 103 S.Ct. U.S. (1988), amendment. See 29 U.S.C. ADEA ruling that could be Note: Effective and Termination Dates of applied to state law enforcement officers. Amendments; 100 Stat. 3345. course, holding, open That left to chal The amendment also included a sunset which, many and laws lenge the state local provision pursuant to which would ex Elmhurst, and like those of Illinois estab pire on December 1993. 100 Stat. maximum and hiring lished retirement 3342.1 ages firefighters police and officers. municipalities wishing pre and States grace period, At the conclusion of this prove that serve such limits would have to again applicable the ADEA once became occupational qualification a bona fide police state and local officers firefight- and (“BFOQ”) public safety positions. See Hewing change ers. to the federal 1062; at id. 103 S.Ct. see also September the Elmhurst Board in of 1994 United Auto. Workers v. Johnson Con dropped its under-35 for new restriction trols, Inc., officers, police and effective June (1991) (“[t]he 1196, 1204, 113 L.Ed.2d 158 the State of Illinois did same. BFOQ narrowly, defense is written and narrowly”); this Court has read it Johnson him, Kopec open With the door now Baltimore, Mayor City & Council October 1994 for a full-time L.Ed.2d 286 Ini- position on the Elmhurst force. (1985). went him—he was tially, things well for eligible 5 on ranked number a list of 87 (the However, in year Kopec after Indeed, candidates. the time Board hired), Congress granted state and Kopec an oral interview of conducted exemption temporary September eligi- he was first on the from the strictures of the ADEA for law However, Sep- bility list. letter dated firefighting personnel. enforcement and 99-592, 3342; Kopec informed tember Board Pub.L. 100 Stat. see 29 623(1) (1988) (later he had failed the interview. His U.S.C. codified at Although study eventually completed, years pas- Within four of the amendment's sage, Secretary testing guidelines proposed. of Health Human no were ever Equal Employment Opportu- Schiff, and the Services Age Martin Discrimination in nity study Commission were to conduct a Employment Oc- Act: Whither Bona Fide feasibility testing physical to the Qualification cupational and Law Enforce- mental fitness of law enforcement officers Exemptions?, ment 67 St. John's L.Rev. firefighters, propose and the EEOC was to guidelines. testing See 100 Stat. respect employment removed from the eli- with name was therefore employment. an gibility firefighter list for full-time individual as a or as a officer, opportunity to be law enforcement ... and the granted Board 2,1995, but it declined to individual has attained— heard on October subsequently He ob- change its decision. (A) retirement, the age hiring or (at 48) as a full- tained respectively, appli- in effect under Village time officer with the of Addison. cable State or local law on March 3,1983; ... April filed suit On against the sue letter from after EEOC. receiving He later his right-to- added ^[*] * * a defendant. The the Board as Board [and] complaint moved to his dismiss amended (2) pursuant to a bona fide (which untimely, but the district court retirement that is not a subter- summary treated the motion one for fuge to evade the judgment) request. Kopec denied chapter. F.Supp. § 623(j). 29 U.S.C.A. The 1996 amend (N.D.Ill.1997) M.J.). (Denlow, 31, ment was retroactive to December provision the date on which Meanwhile, the 1986 Congress tinkered once expired. (1999), (after See 29 U.S.C. with the ADEA. In again Ko- Dates, Note: Effective and suit), Termination pec had filed amended the Acts; 100 Stat. 3009-25. In contrast expired provi- reinstate the statute to amendment, to the 1986 sion, the 1996 amend thereby restoring exemption provision. ment contained no sunset Nor governments age- state and local that had any language exempting did contain place for firefighters based restrictions pending litigation from the amendment.2 and law enforcement workers as of March 104-208, 1983. Pub.L. 110 Stat. 3009- Taking advantage of this revision in the 23, presently 623(j). codified (but ADEA, Elmhurst) Illinois not subse- amended, provides, As the statute in rele- reimposed an quently age limit for the part: vant employment of law personnel enforcement firefighters. August Effective It employer shall not be unlawful for an years more than two after Elmhurst State, political which is a a subdivision of rejected Kopec employment, for full-time State, agency instrumentality a of Illinois reinstated the under-35 rule for State, political or a subdivision of a 90-481; hiring. P.A. see 65 ILCS 5/10- State, agency or an interstate to fail or 2.1-6(a).3 discharge any refuse to hire or to indi- amendment, age Invoking vidual because of such individual’s if the 1996 the de- such action is taken— summary judgment fendants moved for on Congress again 2. As it had in called for 195 Ill.Dec. 629 N.E.2d study feasibility testing free, as to the Kopec Br. 24. It was in other performance capabilities firefighters words, adopt regarding its own rule personnel and law enforcement and for the maximum of hire even if that rule con development advisory guidelines for such State's, Provenzano, flicted with the 195 Ill. testing. See 29 U.S.C. Note: 101, although Dec. 629 N.E.2d at Test; Study and Guidelines for Performance required by would have action the Elmhurst 110 Stat. 3009-24. council, Board, opposed to the see ¶8, However, R.72 at 17. as both the Board lurking dispute 3. There is a over the relevance place and the State had in the same maxi of Illinois because as a home- (the mum as of hire March government, rule unit of Illinois was not nec amended), dale referenced the ADEA as obliged essarily to follow state law. See Pro explore we need not the issue. Plaines, Ill.App.3d Des venzano claim, terpreted language proof arguing require Kopec’s age-discrimination employment that an restriction on the hire Ko- if their decision not to that even policemen fide occu- constitutes bona employment full-time was based pec for pational qualification. Judge Levin apply; the ADEA did not upon age, his purpose reasoned that of the 1996 agreed.4 Levin As of March Judge exempt amendment was to state and local (the statute), referenced date governments showing. from such a In- required full-time hires Illinois stead, only the defendants need show Kopec ten of 35. to be under hiring plan their did not amount to an than that when he years older attempt to circumvent the ADEA. Id. at in 1994. Conse- Judge Levin found no evidence that express 623(j) quently, the terms section hiring plan Elmhurst’s amounted to a sub- ADEA’s ban exempted Elmhurst from the terfuge. contrary, city’s plan On the F.Supp.2d at discrimination. 8 particularized employment included crite- facially ria that were consistent with the arguments threshold Kopec posed two law. Id. amendment, against application rejected Kopec’s The court contention First, unavailing. court found these retroactive of the 1996 legislative history, looking amendment to his suit would violate the argued that the 1996 amendment Fifth Amendment. lacked the vest- and local merely an invitation for state property necessary support a right ed whether age- to consider claim, Fifth Amendment because his claim appropriate. The based restrictions were against Elmhurst and the Board had not unnecessary to examine the judge found yet judgment been reduced to a and be- amendment, however, history behind person right cause has a “[n]o vested ambiguity in the stat- given any policy legisla- absence rule of or general law him utory language. entitling Id. at 1086. also tion to insist that shall 1994, unchanged remain for his benefit.” Id. at emphasized that both Illinois and 1088, R.R. v. quoting Chicago & Alton Co. Elmhurst had abandoned under-35 76, 678, 67, Tranbarger, 238 35 S.Ct. rule; but the court found the status (1915). 681, event, any In 59 L.Ed. 1204 at state and local law that time to be Kopec had not shown that the amendment irrelevant. lacked rational basis. the face claim on Plaintiffs rests federal indicating age medical evidence that has a to hire at the time ADEA. As to refusals impact person’s ability direct on a to work rejected by Defendants Plaintiff was officer, public Congress had safety as a here, provision relevant ADEA ... concluded that state and local explicitly spe- looks to state law as of a workers; required leeway hiring such 3, Thus, date, any March cific exemption requirements thus the from the irrelevant later fluctuation state law is application of of the ADEA. Retroactive to Plaintiffs claim. 31, exemption the 1996 back to December (footnote omit- (emphasis original) Id. gap” that simply 1993 served to “close ted). opened original exemption when the had exempts only those hir- at expired. F.Supp.2d The amendment 8 1088-89. “pursuant which are made ing decisions II. fide ... that is not a a bona to evade the court’s subterfuge review of the district Our course, is, of de 623(j)(2). Kopec summary judgment ruling in- chapter,” 29 U.S.C. alternatively natory declining to hire him. The argued reasons for 4. The defendants arguments did not these prima facie case district court reach could not establish and, ap- agreed ADEA did not age assuming he because it that the of could, discrimination legitimate, ply- they had nondiscrimi- 900 Kopec’s interpretation v. National & E.g., Chapple

novo. Starch Oil, ignores plain language, 178 F.3d 504 statute its howev Chem. Co. & Cir.1999). decisions Summary judgment 623(j)(1)(A) er. Section focuses on the and whether the usually turn on the record state of law on March not at local contains, favorably construed evidence it challenged hiring the time the decision was non-movant, presents ques a triable made. Chicago, Roche v. su Cf. 56(c); Wal tion of fact. See Fed.R.Civ.P. (§ 623(j)(1) 24 pra, F.3d at did not dridge Corp., Hoechst F.3d American commissioner, apply deputy fire as mu (7th Cir.1994), citing Anderson nicipal ordinance in effect on March Inc., 242, 249-50, Liberty Lobby, 477 U.S. specifically position excluded that 2505, 2511, 91 L.Ed.2d 202 limit); Massachusetts, Gately from case, however, In this the facts (1st Cir.1993) (1986 pertinent of the statute permit amendment did not Commonwealth dispute in are not issue. The turns rely adopted on stricter limits after upon interpretation stead of the stat 1983), denied, 1082, 114 cert. ute, legal matter over which our authori L.Ed.2d E.E.O.C. v. ty plenary. E.g., United States v. (S.D.N.Y.1994) York, F.Supp. New (7th Cir.1995). Wright, (because park pa no limit

trol officers State could not im A. 1990). pose such limit in There is no dispute as to what either Illinois Elm or 623(j)(l) provides Section that “[i]t hurst required only those time— govern shall not be unlawful” for a local eligible under the of 35 were for full- ment to refuse to hire someone as a fire time firefighting fighter or law enforcement officer on the personnel. enforcement Consequently, if age, applicant basis of his has ex straightforward under the terms of section ceeded the maximum of hire that 623(j)(l), “it shall not be unlawful” for the government effect as of March age-based hiring to make an decision Kopec interprets provision applicant Kopec. vis á vis an like It is provide municipality awith choice: It true, out, Kopec points that the statute restrictions, rely age-based hiring can require does not local govern state and long they so are no more than stringent impose ments age limits. See E.E.O.C. 3,1983; in those effect on March but it can (7th Cir.1993). Illinois, 187, 188 986 F.2d limits, drop age also such and if it elects fact, imposed in contends that it course, pursue subjects that it itself limit Kopec applied no such at the time liability under the ADEA in the event position. a full-time lack an age engages age later in Al discrimination. limit does ADEA in trigger coverage; not though both Elmhurst and Illinois had an regard, Kopec misapprehends 1983, under-35 rule in Elmhurst had thrust of the 1996 amendment dropped Kopec that restriction the time ADEA. point of the amendment not is employment for full-time with the give state and local 1994, city in and the State of Illinois had they choice as to whether wish to be sub Kopec done the same the time ject to the age ADEA’s ban on discrimina rejected and eligibility removed from the So, tion. The amendment offers safe harbor September in Kopec list 1995. statute, municipalities all States and that had subject reads the remains 1983, in age place just limits in not to suit under the ADEA if it refuses keep those that have chosen to prospective police hire officer on the those re is, course, in age, pre place ensuing years. basis of his which strictions cisely Roche, alleges what he in See 24 F.3d at Elmhurst did 884. other words, his case. regardless of whether state or practice aban- is government genuine pursuant has and to which local public safety per- limits for doned its actual decisions are made. Pub Cf. done, sonnel, as Elmhurst claims to have Employees Sys. lic Retirement Ohio v. them, to follow it is or instead continues Betts, 166, 158, 2854, S.Ct. ADEA. subject not to suit under the Cur- 2860, 106 L.Ed.2d 134 (employee practice may rele- rent local rules and be fide,” plan benefit is “bona see 29 U.S.C. has a applicant vant to whether a refused 623(f)(2), to extent that it ... exists and remedy municipal at the state or level for ...), pays quoting benefits Air United discrimination; but at the federal lev- Lines, McMann, 192, 194, Inc. v. 434 U.S. el, unless, clear there is is none— (1977); 98 S.Ct. 54 L.Ed.2d 402 course, place limit in there was no Co., Smart v. Porter Paint 630 F.2d Roche, of March see F.3d at (7th Cir.1980) (same). To the extent attempted government local has plan that a hiring includes a maximum age that were beyond to discriminate limits hire, what little case law there is on the time, Gately, at see at place F.3d subject suggests plan that the will not be 1229-30. considered a “subterfuge pur to evade the 623(j)(1) extinguishes thus Ko poses Section Act” long [the] so as the amended, (or claim. fo pec’s As statute pre-dates criterion the ADEA its ex one, cuses on the state of law as of tension to employees of state and local one, only date —March 1983. Sub governments). Knight v. Georgia, sequent fluctuations state and local Cir.1993); are, therefore, practice rules irrele Chicago, McCann 1990 WL vant. As of March state and local (N.D.Ill. 3, 1990); *4 May at see imposed a maximum of 34 on Betts, also 492 U.S. at at applicants po for full-time 2862; McMann, 434 U.S. at 98 S.Ct. lice and firefighters. officers proof at As that its own hiring plan sought older than that when he to become fide and a subterfuge is bona not to evade a full-time officer for Elmhurst ADEA, Elmhurst unambiguous 1994. The terms of the 1996 points regulations, to the Board’s rules and un amendment therefore foreclose relief (in view) concrete, city’s embody which exploration der the ADEA. An of the legis objective hiring criteria. R. 66 Ex. I at 3- history accordingly unnecessary lative ¶¶ 6, VIII, 1-10; F.Supp.2d see 8 inappropriate. Michigan Davis v. Treasury, n. Dep’t city’s hiring insists that the Silva, United States as “bona cannot be described fide” Cir.1998). 1098, 1102(7th proof hiring age absent that the maximum is, BFOQ, to a that a requirement amounts B. “reasonably necessary oper the normal to city’s police ation” of the force. 29 U.S.C. A to decision not hire or to dis 623(f)(1). Lines, Air Inc. v. See Western a law enforcement charge firefighter or Criswell, 472 U.S. 105 S.Ct. ADEA if it exempt only officer is from the 29 C.F.R. a “pursuant hiring was made to bona fide (1999). 1625.6(b) Kopec is dubious that plan that a subterfuge or retirement is not able to show that the Elmhurst would be purposes chapter.” to evade the BFOQ: hiring under-35 rule for is a § 623(j)(2). Imbuing “bona fide” U.S.C. many city’s police force includes full-time other, meaning with the it carries in com older; statute, officers who are over 35 and more provisions a parable bona over, plan presumably city apply fide would be one does not the rule hiring Kopec, perform specified. like who er criterion is The term “bona part-time officers used, hiring duties as full-time fide” is essentially the same reference to the opposed hiring age. as to the In- workers.5 flan deed, it would make no sense at all for Levin, Judge BFOQ with how to have show- agree required We ever, prove ing. already that Elmhurst need not that That found in requirement is BFOQ 623(f)(1); thus, for its officers. any employer is See section cov- 1547; 992 F.2d at ered the ADEA can Knight, McCann continue use (N.D.Ill. Chicago, at *3 hiring long 1991 WL as a criterion so is “rea- 1991). 623(j) provides sonably necessary” that operation Jan. Section to the of its to hire a law enforcement can the refusal business. Section would therefore 623© unlawful” long accomplish nothing exemption didate “shall not be so if the from (1) upon BFOQ has attained the maxi the ADEA candidate were conditioned mum hire in effect under state showing; adopt and we are loathe to con- (2) statutory provi- local law as of March structions that render a pursuant hiring plan superfluous. E.g., decision is made to a sion Hohn v. United States, subterfuge that is bona fide and not a

evade the of the ADEA. No oth- L.Ed.2d hire, Judge Chief Posner raises a number of intri nois later abandoned maximum dissent, guing issues in his all of they them center rely then cannot on the limit that ing See, on whether Elmhurst made the decision place period. e.g., Kopec was in Kopec pursuant not to hire a bona ("This language 623(j)(l)] Br. 13 [of section See, (“The hiring plan. e.g., post fide at 20 does not state that the laws in effect on March city should lose because there was no bona 3, 1983 control even if those laws had been [age-35] hiring plan' fide ... in force when decision.”). repealed prior This down.”). Kopec Kopec turned himself argument support is an finds no issues, however; has not raised these plain language 623(j)(l) of section or in given extremely application limited ("The post age- dissent. See at 22 fact that an cases, see, plain e.g., error doctrine in civil was in effect on March is Frobose v. American Sav. & Loan Ass’n of significant, because it is one of the conditions Danville, (7th Cir.1998), harbor.”). docking for sent, in the safe The dis we do not address them. The lone assertion hand, argues on the other that the aban Kopec respect makes with section hiring age perti donment of the maximum 623(j)(2) prove is that Elmhurst must that a prong hiring plan. nent to the bona fide BFOQ, hiring age maximum constitutes a Ko short, colleague Post at 22-24. our 18-25; 5-7, pec Reply argument Br. Br. an believes that Elmhurst cannot claim to have reject that we below. Kopec pursuant turned down to a bona fide Kopec argue, Judge points does Posner hiring plan, 623(j)(2) requires, as section un out, that the 1996 amendment should not hiring plan incorporated age-based less the because, apply to this suit at the time Elm- entirely criterion. Post at 22-24. This is an hurst turned down his for full- theory, premised different on different statu employment, time neither Illinois nor the tory language, and different case than hiring age. Kopec had a maximum Br. Kopec upon. argument has relied It is not an 10-18; Reply respect, Kopec Br. 1-5. In'that language that is obvious from the of subsec dissenting colleague and our sound the same (j)(2); tion it is not ever one has however, respective arguments, theme. Their 7-11) pursued, below R. at or on {see entirely separate prongs focus on of the stat one, appeal; consequently, it is not that Elm- recog ute. As both nize, and the dissent address; opportunity hurst has ever had the exemption the statute conditions the and it is not one district court ever coverage from ADEA on two distinct criteria: (see 1086-87). F.Supp.2d considered plaintiff that the have obtained the maxi only argument The one and that raises mum hire in effect as of March respect hiring plan with to the bona fide re plain that the decision not the to hire quirement 623(j)(2) pursuant tiff have found in section is that been made a bona fide to BFOQ hiring plan. (2). 623(j)(1) § must amount to a for Elmhurst's And, Kopec’s argument as the officers. lest there be status of state and doubt, any argument exclusively local law that is the sole we ad in 1994-95 is focused view, prong'(1). today. In his if Elmhurst and Illi- dress c. clear, congressional the intent is “[W]here Kaiser Aluminum & governs.” Chem. applica that Kopec contends Corp. Bonjorno, suit, amendment to his tion of the 1996 (1990). 108 L.Ed.2d 842 S.Ct. Congress he filed before which of course exemption, deprives him of the reinstated Application of the 1996 amend Fifth process, in contravention of the due case, ment this notwithstanding ap the have thus far assumed Amendment. We unfairness, parent Kopec’s does not violate govern this that the 1996 amendment does process rights. Supreme due Court case, good general reason. The long ago Congress confirmed that has the retroactively a court will not rule is that authority change “to effect a the law (among things) apply a statute which other change controlling and to make that as to reme rights, “diminishes substantive pending Deck v. Peter Romein’s cases[.]” dies,” made clear legislature unless the (7th Sons, Inc., Cir. Reyes-Hernandez that this was its wish. 1997), citing United States Schooner Cir.1996), I.N.S., Cranch) (1 103, 110, 2 L.Ed. Peggy, 5 U.S. Prods., Landgraf v. citing USI Film (1801). long applica So as retroactive 244, 267-75, 114 1498- change rationally tion of the related to a Congres legitimate legislative purpose, the con respect intent with to the retroac sional process have been honored. straints due clear, 623(j) of section was tive cases). Deck, (collecting F.3d at specified an legislation however. The 1996 effective date of December see (like pre- The 1996 amendment its 1986 Note: Effective U.S.C. decessor) response to the extension was (1996 Acts); Dates 110 Stat. Termination firefighters ADEA en- and law 3009-25, leaving no doubt that officers, validity of which forcement apply to em meant for the amendment Supreme Wy- Court settled its 1983 place in the ployment decisions that took extension, oming That as we decision. expiration of three-year interim between outset, many at the clashed with the noted the 1986 amendment and enactment of state rules which had established and local Granted, Congress 1996 amendment. did ages maximum and retirement explicitly the 1996 amend not state types personnel. these As there lawsuits, but govern pending ment would propriety as to the yet no consensus point strikes us as rather obvious context, safety public such limits presumption against this context. Congress believed that national standard up retroactivity reflects concern about (that is, un- presumptively barring them expectations parties setting met .the narrow criteria for a they less they engaged harbored when in the con BFOQ) inappropriate. suit, giving opposed duct rise to as bill, purpose being [T]he whole expectations their at the time the suit was is, say as it is to narrowly crafted Reyes-Hernandez, 89 F.3d at filed. enough recog- law needs to be flexible Moreover, dispatch given relative particular instance in nize that here is with which the victims of discrimina policy allowing peo- which general our rights, tion act to enforce their see 29 must perform ple long to function and 626(d), surely Congress in 1996 U.S.C. so, capacity to they they feel have the do was aware of the likelihood that some suits having narrow instance to do with occurring based on events after December will public safety, we allow the decision already 1993 had been filed. The fact activity actual to be made close to the that made the statute retroactive to place, give and we will therefore exempting taking without pending litigation date 1986) (as it had in an intent that the State and evinces Kopec’s. the decisions that we on legislation apply ability to suits like to make appro- way, aspect the Federal level6deemed was an the retroactive of the priate exemption to be made. consistency amendment both restored the closing gap opened the that had Employment Age Discrimination expired, when the 1986 amendment and Hearing on Amendments S. 553 [1996]: of purpose legislation by furthered the H.R. the Senate and Com. 84-9Before relieving governments state and local of Resources, 104th Cong. Labor and Human (1996) (statement defending the burden of lawsuits based on of Sen. Carol Mose- place expiration events that took after the ley-Braun). of prior the 1986 amendment and to enact The decision to afford state and Deck, ment of the 1996 amendment. See flexibility local to make 109 F.3d at 389-90.7 area, judgments their own in this where import age of is debated and are lives certainly appreciate canWe what a frus- stake, literally at was a rational one. trating Kopec. ap- result this is for He arguments certainly Forceful can be made plied with and enforcing of a maximum as to the wisdom subsequently against city, filed suit hire, particularly against of an indi age protected time when the ADEA him Kopec, who vidual like virtue of his However, age from discrimination. part-time employment as an Elm lengthy intent Congress, clear when it made the police already hurst officer had demon 1996 amendment retroactive to December ability to meet the strated demands 31,1993, extinguish was to causes of action job. question confronting Con years that had arisen the three follow- however, gress, was who should evaluate expiration ing of the 1986 amendment. criteria, legitimacy of such and it could right As had no vested in the law rationally have concluded that state and unaltered, remaining Congress had a needs, governments, attuned to local legislating retroactively, rational basis for were better suited to make that assessment. are obliged we to honor its wish and affirm Bd. Cf Massachusetts Retire . Kopec’s the dismissal of suit. 307, 314-17, Murgia, ment v. 2567-69, III. curiam) (per (rejecting equal protection ADEA, The 1996 amendment to the co- challenge mandatory retirement officers). 623(j), exempts Elm- dified at 29 U.S.C. police Making 50 for the 1996 hurst’s decision not to hire as a full- amendment retroactive to December police time officer from the federal ban on 1993 restored law to its status appli- first the ex discrimination. retroactive when enacted Kopec’s cation of the amendment to claim emption, prior Wyo when doubt, process ming validity rights. cast into does not violate his due Affirm firefighters. limits for officers We therefore district court’s public injustice” inquiry court] Federal safe- ifest is one of a series of [Footnote ty personnel exempt are also from the ADEA's employ default tests courts situations protection. firefighters Federal must retire at legislative respect where the intent with upon completing twenty years 55 or retroactivity generally is unclear. See Land service, whichever occurs later. Law en- 273-79, graf, 511 U.S. at 114 S.Ct. at 1501- forcement officers must retire at 57 or 04; Perryman, Turkhan 188 F.3d 814 service, years twenty after whichever oc- 1999). "Congress express Cir. when has 8335(b). curs later. 5 U.S.C. reach[,] ly prescribed proper ... the statute's judicial there is no need to resort to default 7. We need not consider whether retroactive Landgraf, U.S. at 114 S.Ct. rules.” of the statute this suit results noted, Congress at 1505. As we have made injustice" Kopec. Bradley a "manifest Richmond, clear that the 1996 amendment was to reach v. School Bd. time to December when the back in 40 L.Ed.2d expired. F.Supp.2d Bradley's Kopec, 8 at 1089. "man 1986 amendment had summary judgment prohibited in had decision enter since discrimination on Discrimination grounds age, Age favor of Elmhurst. of in Act,

Employment §§ seq., 621 eb POSNER, Judge, dissenting. Chief and skeptical gener- the courts had been of al youth claims bona occu- fide question case an intricate of This raises (a pational qualification defense under the statutory one interpretation, but if works Act) See, public safety for e.g., officers. it through carefully the answer is reason- City Orzel v. Dept., Wauwatosa Fire clear; ably the the court of is not answer Cir.1983); 748-56 Hahn v. gives; requires and reversal. court (2d City Buffalo, of says appellant in footnote the did Cir.1985). right argument not make the for reversal it, If and has it. he waived so waived had age amended the dis ground this would be a affirming solid for permit crimination law to states and their the for the appeal, analyzing not issue hiring firing subdivisions to make and deci incorrectly, proceeds court as the to do. age sions on the basis in the case of it. eight And he didn’t waive He devoted policemen. firemen and was on this pages opening of his brief and five pages First, two conditions. that “the individual reply argument of his brief to the that he has age hiring attained the or retire captioned Inap- “The Is 1996 Amendment ment, respectively, applica in effect under plicable Because Neither State Nor Local ble State or law on March 1983”— Hiring Age Law Established a Maximum Supreme the date on which in the Court Decision,” Hiring As Of The Time Of The 226, 103 Wyoming, EEOC v. key which is both and the correct held that the law court’s error. The the which dis- validly discrimination applied Kopec’s permits, missal of suit is based Second, governments. state and local explain, I use hiring shall the as a the discharge decision hire or the indi if employer hiring plan factor the has a “pursuant vidual was made to a fide bona use; authorizing employer such and the hiring plan or retirement not a case, City did not subterfuge evade the Thus, plan. have such a hiring 6230) [Act].” U.S.C. brief, put opening it in his “the effect of Elmhurst breather. But the So had a appli- decision to bind a police below is provision amendment had sunset rights cant’s ADEA to state and local law pursuant expired which the amendment added). longer (emphasis which no exists” 31,1993. automatically on December clarity completeness, For he should case, Kopec, plaintiff in this Richard city have added that because the had no position Elm- as an age-restricted plan existence when he policeman hurst He October point was turned down-—the he stresses years old. In time which city’s both his briefs—the action was not age-35 its state had rescinded rule pursuant to a that authorized city mirror- likewise rescinded its in hiring. the use as a factor But if rule, Kopec’s image city turned down grounds appeal failure to make one’s application, he on the of his claims basis waiver, perspicuous ground were a we (the city disagrees). April On very would have few issues to decide. brought against he suit the —this On March both State of Age Em- suit—under Discrimination Illinois Elmhurst had a ployment Act. applicant posi- rule that an for a full-time 1996, however, September tion as a officer had to under the Con- be On gress of 35 to be reinstated the 1986 amendment —the eligible. legality expired its questionable, rule was because federal law amendment that had own Stores, Link v. Venture end of 1993—and made terms 283, Inc., 977, Ill.App.3d 222 retroactive date 286 Ill.Dec. reinstatement 486, (1997). 623(j). It expiration. 29 which that U.S.C. 677 N.E.2d 488 Courts approach if the 1986 amendment had vested-rights thus as the before was held, true, provision but had sim- contained no sunset it that an Illinois Armstead is present. ply continued in force to the On not rise to a vested give statute could law, the district court the basis of the new McCarthy, 4 Ill.2d right, e.g., Orlicki v. Kopec’s (1954); suit and this court now 342, 513, dismissed v. People 122 N.E.2d 515 ground dismissal the that 500, affirms that Ill.Dec. Stothoff, Ill.App.3d 208 153 the on March rule (1990), since had 462, 420, N.E.2d 422 and for all 567 if hiring against officers I this remains the law after Arm- know 35, 1983 they were over the reinstated this principle stead. But the idea behind it allows enforce the rule amendment appears giveth to be that what Illinois Kopec though it wasn’t in against even inap taketh so may away, and it is Illinois or, effect either when he was turned down Kopec is plicable to someone like who later, when he sued. statute. in claiming under This federal terpretation by is bolstered fact drama, state, act the last eases, under the Illinois common law August effective reinstated the rights, statutory unlike can rights, Illinois age-35 hiring policemen rule for it v. Transit Cooper Chicago vest. Authori repealed 1995. 65 ILCS 5/10-2.1- 321, 617, 6(a). ty, Ill.App.3d 224 166 Ill.Dec. 586 575, (1991); Young Chicago N.E.2d 577 The lose city should because there was 84, Ill.App.3d Authority, 209 154 Transit [age-35] hiring plan” no “bona ... fide 18, 18, Ill.Dec. 568 N.E.2d 23 Kopec force when was down. The turned extralegislative law is a common source plan qua existence of such is sine non can, rights, although legislature the Illinois by harbor safe created 1986 course, law alter the common of Illinois. amendment to the ADEA and extended standpoint legisla From the of the Illinois present by the 1996 amendment. ture, rights by created federal law are also age-35 hiring plan, There an had been but extralegislative presumably and so would repealed was before was turned same, be deter treated down, hire him and so refusal to can- mining retroactivity, as common law justified it. not be reference case, rights. dealing An old with a Illinois age-35 state has now reinstated its state, right supports created another plan. it did this after In this Brennan v. Electrical surmise. down; turned Illinois while law on Co., (1905). I Ill.App. stallation 120 461 muddle, is in a some retroactivity state of necessary do not think consider reasonably it is clear that the reinstated in might whether there be some federal given rule would not be retroactive effect terest in the determination of the retroac by an Illinois state court. tivity is in incor of a state rule that effect approach rights” Under the “vested statute; porated certainly into a federal adopted by Supreme Court of Illinois parties an that the have is not issue Armstead, in First America Trust Co. v. or that court addressed discusses. 282, 639, 171 Ill.2d 215 Ill.Dec. 664 N.E.2d 36, Illi Kopec’s approach 39 - 40 under the right complain Even older ap city’s retroactivity, about in the nois to issues discrimination re him vi proach may fusal hire had vested when he have retained some suit, Armstead, brought tality more see despite People his that was than 24, year age-35 Digirolamo, 179 Ill.2d 227 Ill.Dec. before reinstated rule be 779, 116, (1997); Snyder, came effective. Harraz v. 283 N.E.2d 128 Ganci 688 Blauvelt, Ill. Ill.App.3d Ill.App.3d 218 Ill.Dec. 669 N.E.2d (1998); N.E.2d my panel Dec. Where colleagues on this have Drammis, Ill.App.3d gone astray is in supposing Calamari v. that the safe- provision require harbor does not Ill.Dec. 676 N.E.2d hiring plan pursuant to which the plaintiff see Dardeen v. Heart against say discriminated Inc., anything Manor, land Ill. Ill.2d age. think, about It is enough, they if (1999) (reaf Dec. 710 N.E.2d there was an age-specific force on firming Digiro without citing Armstead March even if the reference to lamo), the rule age-35 state’s reinstated dropped long out the complained-of before applied retroactively. would not be The supports discrimination. No case un this approach old created a presumption, likely proposition. only they The case cite which nothing reinstating in the statute it, for Roche v. City Chicago, 24 F.3d rebuts, age-35 against the retro rule the (7th Cir.1994), only held that a of a active statute that makes city that didn’t have an rule in effect law, change a substantive the on March could not take advan one did. the tage exemption in the federal by act adopting an such a In age-35 plan The fact that was rule later. Petrelli v. (2d Vernon, City Mount effect on significant, March is be- Cir.1993), the law in age-specific force on docking cause it is one the conditions for 3,1983, March in effect remained when the in the safe harbor. the condi- other plaintiff rejected, and was the basis tion, equally important, appli- is that the rejection. Knight for his See also v. Geor cant pursuant have been turned down to a Cir.1993). gia, 992 F.2d plan. pursu- bona fíde There plan was no Suppose that at point some after March ant to which could have been turned 1983, the State of Illinois had enacted a down being on the basis his than older forbidding municipalities statute its to fix a minimum applicants public for for I argument would sympathetic be to an safety jobs; could Elmhurst city despite repeal rely still on its age-35 rule to defeat Ko law, state’s it had in down fact turned pec’s my The logic colleagues’ suit? Kopec pursuant to a bona hir age-35 position fide is that it could.

ing plan All firefighters. By requiring plan not that the in force sunsetting that the of the 1986 amendment plaintiff when the against is discriminated did was to deprive city of its safe say my about anything age, colleagues do harbor; it not of compel did its own force the language considerable violence to abrogation of the hiring plan; and statute, which conditions the availabili- perhaps plan repealed a as a statute could ty of the safe harbor on the discriminatory policy. continue as a But the does not city having pursuant action been ... “taken argue that Kopec pursuant it turned down hiring fide plan.” bona ... fact, to an age-35 plan policy. or it added). § 623(j) (emphasis If the denies that turned him down because of hiring plan nothing age, said about says his at all. It he was unqualified. persons merely weighing more than That remains to be determined. Since pounds were what ineligible, sense having denies turned him down 200-pound turning applicant could down a accordance with bona age-35 hiring fide “pursuant” he was be because over 35 plan, it rely cannot on safe the federal plan? problem would not Rice, provision. harbor Cf. Auriemma v. fide; plan be not bona I (7th Cir.1990) (en designed assume would not been have banc). provision applicable only That subterfuge to evade the discrimina- personnel pursuant actions taken to such any problem tion other law. plans. would that the be discrimination was “off City of Elmhurst concedes. plan,” practical

My position has the colleagues’ all immunizing age discrimination

effect of governments that had state or if they March even

age-35 on plan day, their the next

dropped age from “hiring public agencies have

since all setting of a rules

plans,” in the sense set of hiring or some

forth at least criteria hiring.

not anoth finally interpreting

I note provision in the federal

er safe-harbor one

discrimination conditioned “observ[ing] the terms of

employer’s employee plan,” 29

bona fide benefit 623(f)(2), including

U.S.C.§ the courts ours advantage uniformly held that take

have explicitly harbor must the safe Caterpillar age.

address Gonsalves (7th Co., 634 F.2d 1066-67

Tractor Co.,

Cir.1980); v. Porter Paint Smart (7th Cir.1980);

F.2d 493-94 Sexton (7th Co., Foods

Beatrice

Cir.1980); EEOC v. Baltimore & Ohio

R.R., Cir.

1980). should reversed and judgment be remanded a determination case on ac- was turned down

whether age.

count of his NORMAND,

Beverly Plaintiff-

Appellant,

ORKIN COMPA- EXTERMINATING

NY, INC., Defendant-Appellee.

No. 98-4111. Appeals, States Court of

United Circuit.

Seventh

Argued Aug.

Decided Oct.

Case Details

Case Name: Richard T. Kopec v. City of Elmhurst, a Municipal Corporation, and Board of Fire and Police Commissioners of the City of Elmhurst

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 5, 1999

Citation: 193 F.3d 894

Docket Number: 98-2858

Court Abbreviation: 7th Cir.