715 F.

2d 694

32 Fair Empl.Prac.Cas. (BNA) 1239,

32 Empl. Prac. Dec. P 33,783
Jose E. Muniz RAMIREZ, Plaintiff, Appellant,
v.
PUERTO RICO FIRE SERVICE and Office of Personnel and
Its
Director, Defendants, Appellees.
No. 83-1012.

United States Court of Appeals,

First Circuit.
Argued June 6, 1983.
Decided Aug. 26, 1983.
1

Jose M. Munoz Silva, Santurce, P.R., for plaintiff, appellant.

Gerardo Mariani, Asst. Sol. Gen., Santurce, P.R., with whom Miguel Pagan,
Sol. Gen., San Juan, P.R., was on brief, for defendants, appellees.

Before COFFIN and BREYER, Circuit Judges, and SELYA, * District Judge.

SELYA, District Judge.

In September, 1978, when he was forty-three years old, Jose E. Muniz Ramirez
applied to become a firefighter in the Puerto Rico Fire Service ("PRFS"). He
subsequently passed a physical examination, and received qualifying grades in
all of the customary tests. The appellant's aspirations proved to be short-lived,
however, as the Office of Personnel of the Commonwealth of Puerto Rico
notified him on October 1, 1980 that he was ineligible for employment as a
fireman because of his age.1 After the filing of timely charges with the Equal
Employment Opportunity Commission, appellant received a right-to-sue letter
from that agency under date of April 15, 1981.

Muniz thereupon brought the instant action in the district court. In his
complaint, he alleged that he had been discriminated against solely on the basis

of age in violation of the Age Discrimination in Employment Act of 1967, as

amended, 29 U.S.C. 621 et seq. ("ADEA").2 He sought back pay, liquidated
damages and injunctive relief in the form of retroactive reclassification and
placement on the PRFS roster. The defendants moved for dismissal.3
7

The district court, relying on Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347,
39 L.Ed.2d 662 (1974) and Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct.
1207, 12 L.Ed.2d 233 (1964), dismissed the action. It held that (i) the Eleventh
Amendment to the United States Constitution granted defendants immunity
from suit because each of the agencies sued was an integral part of the
executive branch of the government of the Commonwealth of Puerto Rico, and
the individual defendant (the director of the Office of Personnel) was likewise
immune since he had been named only in his official capacity4 ; and (ii) the
Commonwealth had neither waived its immunity nor consented to claims for
relief arising under ADEA. The instant appeal thereupon ensued. We reverse.

I.
8

The Eleventh Amendment stands as a palladium of sovereign immunity. It bars

federal court lawsuits by private parties insofar as they attempt to impose
liabilities necessarily payable from public coffers, unless the state has
consented to suit or unless the protective cloak of the amendment has been
doffed by waiver or stripped away by congressional fiat. See Fitzpatrick v.
Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Edelman v.
Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ezratty v. Puerto
Rico, 648 F.2d 770, 776 (1st Cir.1981). Puerto Rico, despite the lack of formal
statehood, enjoys the shelter of the Eleventh Amendment in all respects. Ezratty
v. Puerto Rico, 648 F.2d at 776 n. 2. Consistent with the Eleventh Amendment,
however, federal courts may, notwithstanding the absence of consent, waiver or
evidence of congressional assertion of national hegemony, enjoin state officials
to conform future conduct to the requirements of federal law, even though such
a decree often has an effect on the public fisc. Quern v. Jordan, 440 U.S. 332,
337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979); Ex parte Young, 209 U.S.
123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The distinction between permissible
and impermissible relief in such cases turns on which way Lot's wife is facing:
prospective redress is allowable, retrospective redress is not. The foregoing
principles ineluctably govern this case.

As previously noted, appellant sought not only back pay and liquidated
damages, but also injunctive relief in the form of reclassification and placement
on the PRFS roster. Such an injunction would afford a classic form of
prospective remediation: if granted, the Commonwealth would be required to

reclassify appellant presently, and to hire him as a firefighter in the future. This
relief may indeed have some collateral impact on Puerto Rico's treasury, but
the fiscal consequence would be no more than an unavoidable corollary of
compliance with an order which by its terms is futuristic in nature. Edelman v.
Jordan, 415 U.S. at 668, 94 S.Ct. at 1358. Such a forward-looking anodyne is
not anathematic to the Eleventh Amendment, even in the absence of consent or
waiver. The court below therefore erred in dismissing the appellant's complaint
to the extent that it stated a claim for injunctive relief. See Quern v. Jordan, 440
U.S. at 347, 99 S.Ct. at 1148; Milliken v. Bradley, 433 U.S. 267, 290, 97 S.Ct.
2749, 2762, 53 L.Ed.2d 745 (1977); Edelman v. Jordan, 415 U.S. at 667-68, 94
S.Ct. at 1357-58.
II.
10

The district court's dismissal of the remainder of the complaint, i.e., the claims
for back pay and liquidated damages, presents a somewhat trickier Eleventh
Amendment issue. The court below correctly noted the absence of any action
by the Commonwealth tantamount in these circumstances to consent to suit or
to waiver of immunity. Thus, if the Commonwealth is not shielded from a
damage claim, it is because Congress, in passing the ADEA, abrogated the
states' Eleventh Amendment immunity. See Fitzpatrick v. Bitzer, 427 U.S. at
452, 96 S.Ct. at 2669. To pursue that inquiry, this court must first decide a
question left open by E.E.O.C. v. Wyoming, --- U.S. ----, ----, 103 S.Ct. 1054,
1064, 75 L.Ed.2d 18 (1983), that is, whether Congress enacted the ADEA
pursuant to its powers under section 5 of the Fourteenth Amendment. If so, such
action can override the tenets of state sovereignty embodied in the Eleventh
Amendment. Fitzpatrick v. Bitzer, 427 U.S. at 456, 96 S.Ct. at 2671.

11

The omission of any ritualistic incantation of powers by the Congress is not

determinative, for there is no requirement that the statute incorporate buzz
words such as "Fourteenth Amendment" or "section 5" or "equal protection".
E.E.O.C. v. Wyoming, 103 S.Ct. at 1064 n. 18; Fullilove v. Klutznick, 448 U.S.
448, 476-78, 100 S.Ct. 2758, 2773-74, 65 L.Ed.2d 902 (1980). "The question of
the constitutionality of action taken by Congress does not depend on recitals of
the power which it undertakes to exercise." Woods v. Miller, 333 U.S. 138,
144, 68 S.Ct. 421, 424, 92 L.Ed. 596 (1948). Rather, absent an outright
congressional declamation, it is the court's task to decipher whether Congress
has enacted legislation pursuant to its section 5 powers. In so doing, the
cryptology is largely dependent upon judicial ability to discern, given a fair
reading of the statute and an impartial assessment of the circumstances of its
passage, some legislative purpose or factual predicate adequate to support the
exercise of that power. E.E.O.C. v. Wyoming, 103 S.Ct. at 1064 n. 18. Such an

inquiry necessarily focuses upon whether or not the objectives of the legislation
are within the scope of Congress' power under section 5 of the Fourteenth
Amendment. See Fullilove v. Klutznick, 448 U.S. at 476-78, 100 S.Ct. at 277374; E.E.O.C. v. Elrod, 674 F.2d 601, 608 (7th Cir.1982).
12

This section 5 power is co-extensive with the broad grant of authority limned by
the Necessary and Proper Clause, Art. 1, 8, cl. 18, and formulated in the early
days of the republic by Chief Justice Marshall in the landmark case of
McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579 (1819). See
Katzenbach v. Morgan, 384 U.S. 641, 650, 86 S.Ct. 1717, 1723, 16 L.Ed.2d
828 (1966). More than a century ago, the Court delineated this power in
manner following:

13
Whatever
legislation is appropriate, that is, adapted to carry out the objects the
amendments have in view, whatever tends to enforce submission to the prohibitions
they contain, and to secure to all persons the enjoyment of perfect equality of civil
rights and the equal protection of the laws against State denial or invasion, if not
prohibited, is brought within the domain of congressional power.
14

Ex Parte Virginia, 100 U.S. 339, 345-46, 25 L.Ed. 676 (1879).

15

The sweep of this mandate was reaffirmed in Katzenbach v. Morgan, 384 U.S.
at 650, 86 S.Ct. at 1723. It is thus irrelevant whether the activities which
Congress seeks to forbid by legislation are themselves unconstitutional either
under the Equal Protection Clause or under other provisions of the Fourteenth
Amendment, for Congress' reach under the Civil War Amendments has been
enlarged in order to make these accretions fully effective. City of Rome v.
United States, 446 U.S. 156, 179, 100 S.Ct. 1548, 1562, 64 L.Ed.2d 119
(1980); Katzenbach v. Morgan, 384 U.S. at 648-49, 86 S.Ct. at 1722-23;
E.E.O.C. v. County of Calumet, 686 F.2d 1249, 1252 (7th Cir.1982).
Accordingly, the Supreme Court's holding in Massachusetts Board of
Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), to
the effect that a state mandatory retirement law did not violate the Equal
Protection Clause, so heavily relied on by the appellees, is not germane in
assessing whether or not Congress could prohibit similar activity through the
medium of its section 5 powers. See E.E.O.C. v. Elrod, 674 F.2d at 608 n. 6.

16

ADEA first became law in 1967, but has since been the subject of substantial
amendment. A decade ago, ADEA did not, by its terms, reach state employees,
but in 1974 Congress perfected such an extension of ADEA coverage. Thus, we
must decode the palimpsest so created. The legislative history behind the 1974
amendment is less than abundant, as this revision was included in a much

broader package of amendments to the Fair Labor Standards Act of 1938, 29

U.S.C. 201 et seq. See E.E.O.C. v. County of Calumet, 686 F.2d at 1252;
E.E.O.C. v. Elrod, 674 F.2d at 605. Significantly, however, the 1974 legislative
history embodies remarks made by President Nixon in 1972 in support of the
same extension of coverage:5
17
Discrimination
based on age--what some people call 'age-ism'--can be as great an
evil in our society as discrimination based on race or religion or any other
characteristic which ignores a person's unique status as an individual and treats him
or her as a member of some arbitrarily-defined group. Especially in the employment
field, discrimination based on age is cruel and self-defeating; it destroys the spirit of
those who want to work and it denies the National [sic] the contribution they could
make if they were working.
18

H.R.Rep. No. 93-913, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong.
& Ad.News 2811, 2849. Senator Bentsen, who sponsored these across-theboard changes in 1972, remarked on the occasion of the enactment of the 1974
ADEA amendment: "The passage of this measure insures that government
employees will be subject to the same protections against arbitrary employment
[discrimination] based on age as are employees in the private sector." 120
Cong.Rec. 8768 (1974), reprinted in E.E.O.C. v. Elrod, 674 F.2d at 605. In a
report issued between the introduction of this ADEA amendment (1972) and its
ultimate passage (1974), the Senate Special Committee on Aging reflected that
"[t]here is ... evidence that, like the corporate world, government managers also
create an environment where young is sometimes better than old." Senate
Special Committee on Aging, Improving the Age Discrimination Law, 93d
Cong., 1st Sess., 14 (Comm.Print 1973), Leg.Hist. 215, 231, quoted in
E.E.O.C. v. Wyoming, 103 S.Ct. at 1059.

19

This legislative history, albeit scanty, nonetheless makes it plain that Congress'
purpose in extending ADEA coverage was to shield public employees from the
invidious effects of age-based discrimination. The 1974 amendment, like the
ADEA itself, "is aimed at irrational, unjustified employment decisions based
upon assumptions about the relationship between age and ability which classify
older workers as incapable of effective job performance." E.E.O.C. v. Elrod,
674 F.2d at 605. See 29 U.S.C. 621. This proscription of vagarious sovereign
conduct is of a genre which, by any logical standard, falls well within the
category of "appropriate legislation" under section 5 of the Fourteenth
Amendment as set forth in Ex parte Virginia, 100 U.S. at 345-46. See
Katzenbach v. Morgan, 384 U.S. at 648, 86 S.Ct. at 1722; E.E.O.C. v. Elrod,
674 F.2d at 604. It comes, therefore, as no surprise to find that the majority of
courts which have squarely confronted this issue have reached the same

conclusion. E.g., E.E.O.C. v. County of Calumet, 686 F.2d at 1253; E.E.O.C. v.

Elrod, 674 F.2d at 604; Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir.1977);
E.E.O.C. v. County of Los Angeles, 526 F.Supp. 1135, 1137-38
(C.D.Cal.1981); Johnson v. Mayor of Baltimore, 515 F.Supp. 1287, 1292
(D.Md.1981), cert. denied, 455 U.S. 944, 102 S.Ct. 1440, 71 L.Ed.2d 656
(1982); Carpenter v. Pennsylvania Liquor Control Bd., 508 F.Supp. 148, 149
(E.D.Pa.1981); E.E.O.C. v. Pennsylvania Liquor Control Bd., 503 F.Supp.
1051, 1053 (M.D.Pa.1980); Marshall v. Delaware River and Bay Authority,
471 F.Supp. 886, 891 & n. 7 (D.Del.1979); Remmick v. Barnes County, 435
F.Supp. 914, 916 (D.N.D.1977); Aaron v. Davis, 424 F.Supp. 1238, 1241 & n.
2 (E.D.Ark.1976); Usery v. Board of Educ. of Salt Lake City, 421 F.Supp. 718,
721 (D.Utah 1976). And, while all of these decisions antedate E.E.O.C. v.
Wyoming, supra, the vibrations emanating from the Supreme Court's opinion
in that case are compatible with this view.
20

We are further persuaded that Congress enacted the 1974 ADEA amendment
pursuant to its section 5 powers by comparing the ADEA with Title VII, its
closest legislative parallel. See Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct.
866, 872, 55 L.Ed.2d 40 (1978); E.E.O.C. v. Elrod, 674 F.2d at 607. When
originally enacted, Title VII was explicitly bottomed upon the Commerce
Clause and implicated only private conduct. 42 U.S.C. 2000e. See S.Rep. No.
872, 88th Cong., 2d Sess., reprinted in 1964 U.S.Code Cong. & Ad.News 2355,
2366-68. Congress referred specifically to section 5 of the Fourteenth
Amendment, however, when it amended Title VII in 1972 so as to cover state
and local employees. E.E.O.C. v. Elrod, 674 F.2d at 607; H.R.Rep. No. 92-238,
92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News 2137,
2154.

21

The ADEA, like Title VII, initially covered only proprietary conduct and
included in its preamble findings sufficient to predicate the legislation on the
Commerce Clause. 29 U.S.C. 621(a)(4). See E.E.O.C. v. Elrod, 674 F.2d at
607. As previously mentioned, an effort to extend the ADEA's coverage to
state employees was first mounted in 1972 when a kindred amendment to Title
VII was being contemplated. See note 5, ante. While the enlargement of the
scope of Title VII skipped through the halls of Congress at a tarantella tempo,
the enactment promenade was more protracted in the ADEA configuration.
Yet, when finally passed in 1974, the only manner in which the ADEA
amendment materially differed from the parallel Title VII modification was in
its failure specifically to intone the Fourteenth Amendment. See E.E.O.C. v.
Elrod, 674 F.2d at 607-08. Nothing in the legislative history suggests that this
omission represented a conscious congressional relinquishment of its section 5
authority, or that the ADEA's more leisurely parliamentary pavane somehow

lost the Fourteenth Amendment beat that had so plainly characterized approval
of the comparable Title VII changes. The striking substantive similarity
between the two acts militates strongly in favor of the conclusion that the
identical reservoir of congressional power was the well-spring for both. Accord
at 607.
22

We hold, therefore, that the 1974 amendment to the ADEA was adopted
pursuant to Congress' power under section 5 of the Fourteenth Amendment.

III.
23

The next question becomes whether, in legislating pursuant to its section 5

powers, Congress evinced sufficient intent to abrogate the immunity conferred
by the Eleventh Amendment. See Fitzpatrick v. Bitzer, 427 U.S. at 452, 96
S.Ct. at 2669; Edelman v. Jordan, 415 U.S. at 672, 94 S.Ct. at 1360. As the
Supreme Court made manifest in Fitzpatrick, Congress has plenary power to set
aside the states' immunity from retrospective relief in order to enforce the
Fourteenth Amendment. Hutto v. Finney, 437 U.S. 678, 693, 98 S.Ct. 2565,
2574, 57 L.Ed.2d 522 (1978). Such power is a vital adjunct of the explicit grant
to Congress, enmeshed in section 5 of the Fourteenth Amendment, of authority
to enforce the amendment's substantive imperatives (which themselves
significantly limit state suzerainty). Fitzpatrick v. Bitzer, 427 U.S. at 456, 96
S.Ct. at 2671. Where, as here, Congress enacts "appropriate legislation" in
order to foster the Fourteenth Amendment and its commands to the states, it
may, expressly or by fair implication, provide for private suits against states or
state officials which would be constitutionally impermissible in other contexts.
Id.

24

In Fitzpatrick, the Supreme Court held that, in enacting the 1972 amendments
to Title VII, Congress intended to override the states' Eleventh Amendment
immunity, noting that the statute made unequivocal reference to the availability
of private actions against state and local governments. 427 U.S. at 452, 96 S.Ct.
at 2669. This " 'threshold fact of congressional authorization' ... to sue the State
as employer" id., quoting Edelman v. Jordan, 415 U.S. at 672, 94 S.Ct. at 1360,
is palpably present in the ADEA as well. See 29 U.S.C. 630(b); 29 U.S.C.
623; 29 U.S.C. 626. Given that the relevant revision to the ADEA was
enacted in pursuance of the Fourteenth Amendment, see text ante, the present
case is in this respect indistinguishable from Fitzpatrick; and here, too, we must
hold that the ADEA's express authorization for the maintenance of suits against
state employers comprises adequate evidence to demonstrate the congressional
will that Eleventh Amendment immunity be abrogated.6 The district court
therefore erred in dismissing, on the basis of defendants' putative Eleventh

Amendment immunity, the appellant's action for back pay and damages.
25

For the foregoing reasons, the judgment of the district court is vacated, and the
cause is remanded to the district court for further proceedings.

26

So ordered.

Of the District of Rhode Island, sitting by designation

The Office of Personnel relied upon a policy limiting PRFS enrollment to

candidates between the ages of 18 and 35 at the time of hiring. While appellant
suggests, with some support in the record, that this policy was as much honored
in the breach as in the observance, the threshold issues presented by this appeal
are of such a nature that we need not reach any of the myriad factual questions
as to (i) the even-handed application of the purported policy and/or (ii) whether
or not such an age restriction constitutes a bona-fide occupational qualification

In 1974, the ADEA was amended to cover state and local government
employees by expanding the definition of "employer" to include "a State or
political subdivision of a State and any agency or instrumentality of a State or a
political subdivision of a State, and any interstate agency...." Pub.L. 93-259,
28(a)(1), (2), 88 Stat. 74, codified at 29 U.S.C. 630(b). Puerto Rico is
considered to be a "state" for purposes of the ADEA. 29 U.S.C. 630(i)

While the motion to dismiss posited multiple theorems, the district court's
decision rested squarely on Eleventh Amendment grounds. None of the other
issues originally raised (e.g., exhaustion of administrative remedies) has been
briefed or argued in this tribunal, and we express no opinion on any of these.
Cf. United States v. Kobrosky, 711 F.2d 449 at 454 (1st Cir.1983)

Since the district court was clearly correct in its conclusion that the defendants
in the case at bar were so interwoven into the fabric of Puerto Rican
government as to share in full the Commonwealth's Eleventh Amendment
immunity, Edelman v. Jordan, 415 U.S. at 663, 94 S.Ct. at 1355; United
Carolina Bank v. Board of Regents of Stephen F. Austin State University, 665
F.2d 553, 557-58 (5th Cir.1982), we will, for ease in reference, deal with this
case as if the Commonwealth itself were the defendant

Legislation elongating the ADEA to extend to government employees was first

introduced in March, 1972, simultaneous with Congress' consideration and
passage of amendments to Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. 2000e, et seq. ("Title VII"), which conferred coverage

under Title VII upon state and local government employees. E.E.O.C. v. Elrod,
674 F.2d at 604
6

See Hutto v. Finney, 437 U.S. at 694, 98 S.Ct. at 2575, where the Supreme
Court held that Congress overrode Eleventh Amendment immunity in enacting
the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. 1988 (the
"Act"), because the Act applies to "any" action brought to enforce certain civil
rights laws, including 42 U.S.C. 1983, without any exception for the defense by
the states of injunction actions. Under the Hutto criterion, there are ample
indications of intent in the ADEA to override the Eleventh Amendment. See
Quern v. Jordan, 440 U.S. at 343-45, 99 S.Ct. at 1146-47