Appeals from two judgments of the District Court for the Eastern District of New York (Frank X. Altimari, Judge and Jack B. Weinstein, Chief Judge) in separate suits challenging on equal protection grounds New York's maximum age limit for hiring police officers. Affirmed as to No. 85-7782; reversed and remanded with directions to enter judgment for the defendants as to No. 85-7820.
Before KAUFMAN, NEWMAN, and MINER, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
These two related but unconsolidated appeals present equal protection challenges to enforcement of New York's statutory prohibition against the hiring of police officers who are "more than twenty-nine years of age," N.Y. Civ. Serv. Law § 58(1)(a) (McKinney 1983). The challenges arise in the wake of our prior decision in Hahn v. City of Buffalo, 770 F.2d 12 (2d Cir. 1985), which affirmed a judgment invalidating section 58(1)(a) as applied to those between the ages of 40 and 70 because age 40 had not been shown to be a bona fide occupational qualification under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1982). Both appeals are from judgments of the District Court for the Eastern District of New York. In No. 85-7782, Judge Frank X. Altimari rejected the federal constitutional challenge in a suit brought against Suffolk County, its Police Department, and its Civil Service Commission. In No. 85-7820, Chief Judge Jack B. Weinstein, apparently misled by imprecise language in Hahn, ruled in favor of applicants for the position of police officer in a suit brought against Nassau County, its Police Department and Civil Service Commission, and the Commission's director. For reasons that follow, we reject the constitutional challenge and therefore affirm in the Suffolk County suit and reverse in the Nassau County suit.
Section 58(1)(a) generally prohibits the appointment of any person as a police officer of a county, city, town, or village who is less than 20 or "more than twenty-nine years of age." The New York courts have interpreted the quoted phrase to apply to any person who has had a 29th birthday. Kuczka v. Clark, 86 A.D.2d 980, 448 N.Y.S.2d 325 (4th Dep't), aff'd, 58 N.Y.2d 738, 445 N.E.2d 204, 459 N.Y.S.2d 28 (1982). The maximum age limit is subject to two exceptions. A person who has had a 29th birthday remains eligible for appointment for whatever period of time was spent on military duty or terminal leave up to a maximum period of six years, but in no event may such extra eligibility extend beyond the person's 35th birthday. N.Y. Civ. Serv. Law § 58(1)(a); N.Y. Mil. Law § 243 (10-a) (McKinney Supp. 1984); see Kuczka v. Clark, supra. In addition, eligibility may be extended until a person's 35th birthday for a police department experiencing a "serious shortage" of police officers because of "aggravated recruitment difficulties." N.Y. Civ. Serv. Law § 58(1)(d)(1-a).
In Hahn v. City of Buffalo, supra, applicants for the position of police officer challenged section 58(1)(a) as violative of both the Equal Protection Clause of the Fourteenth Amendment and the ADEA. Chief Judge Curtin rejected the constitutional challenge but found the state provision invalid under the ADEA as to those between the ages of 40 and 70 (i.e., those who have had a 40th but not a 70th birthday), the age group protected by the ADEA. On appeal, the constitutional ruling was not challenged. See Hahn v. City of Buffalo, supra, 770 F.2d at 14. The ADEA ruling was upheld. The majority opinion considered the scope of the judgment entered by Chief Judge Curtin as to age groups and geographic coverage. We noted that the judgment "technically prohibits enforcement of section 58(1)(a) only against applicants aged 40 or older" but that the City of Buffalo agreed not to refuse to hire applicants between ages 29 and 40 if it was found to be barred by the ADEA from hiring those between 40 and 70, id. at 14 n. 2.*fn1 Turning then to the geographic scope of the judgment, we concluded that it applied to police hiring not only in Buffalo but throughout New York State. Id. at 14. The result of Hahn is that section 58(1)(a) may not be used to prevent any person between the ages of 40 and 70 from being hired as a police officer in New York State because of age.
Against this background, the two cases currently on appeal were decided. In No. 85-7782, six persons who passed the Suffolk County Civil Service examination for police officer were told that they were no longer eligible for consideration for appointment as police officers because they had become 29. Their suit was filed as a class action, but no class was ever certified. They challenged their rejection, relying on the Equal Protection Clause of the Fourteenth Amendment and New York constitutional and statutory provisions. On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), Judge Altimari rejected the federal constitutional challenge, concluding that section 58(1)(a) was rationally related to the legitimate state interest of ensuring that the police force is physically able and capable of being trained. With the federal claim failing at the outset of the litigation, the District Judge properly declined to exercise pendent jurisdiction over the state law claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Palmer v. Ticcione, 576 F.2d 459, 464 (2d Cir. 1978), cert. denied, 440 U.S. 945, 99 S. Ct. 1421, 59 L. Ed. 2d 633 (1979).
In No. 85-7820, two persons who passed the Nassau County Civil Service examination for police officer were informed of their ineligibility when they became 29. Their suit, filed only on behalf of themselves, challenged the age 29 ceiling on federal equal protection and due process grounds. Chief Judge Weinstein indicated that he considered the constitutional challenge to be without merit. However, seizing upon the language in Hahn that the District Court judgment in that case was "intended to invalidate section 581(1)(a) throughout New York State," 770 F.2d at 14, he concluded that we meant to strike down the statute as applied to persons of all ages, rather than as applied only to those between 40 and 70, which, as we noted, was the scope of the judgment affirmed in that litigation. The sentence relied on by Chief Judge Weinstein was concerned with the geographic scope of the Hahn judgment and was not intended to expand the age-group scope of the judgment, which was fixed both by the terms of the judgment and by the terms of the ADEA, which the judgment implemented. Our meaning would have been clearer, however, had we repeated the age-group scope of the decision when discussing the geographic scope, the Chief Judge Weinstein's misinterpretation, though far from compelled, is entirely understandable. As a result of his reading of Hahn, Chief Judge Weinstein granted summary for the plaintiffs and ordered them appointed to the June 1985 recruit class at the Nassau County Police Academy. He then stayed his order pending this appeal.
Since both cases are suits in which the constitutionality of a state statute affecting the public interest is drawn in question and since it did not appear that the State of New York had been afforded an opportunity to intervene, see 28 U.S.C. § 2403(b), we invited the State to intervene while the appeals were pending, cf. In re Goldrich, 771 F.2d 28, 29 (2d Cir. 1985) (views of New York Attorney General invited and received in lieu of intervention). New York State has elected to intervene, and we have received a brief from the State Attorney General urging affirmance in No. 85-7782 and reversal in No. 85-7820.
The threshold issue is whether the actions of Suffolk and Nassau Counties, in eliminating the plaintiffs from consideration for appointment as police officers solely because each had become 29, are an application of section 58(1)(a) or an implementation of an administrative policy of the countries unaided by state statute. That issue must be determined because if the counties are applying their own policy, unaided by state statute, we could turn directly to the constitutionality of the counties' actions without pausing to determine the status and meaning of the state statute in light of its partial invalidation in Hahn.
The complaint in each case alleges that the county acted because of the requirements of section 58(1)(a). Though answers were never filed, the correctness of this assertion has never been disputed in the proceedings that occurred in the District Court. At oral argument we asked counsel for the counties if the actions challenged in these cases were based on section 58(1)(a) and have been informed by letter dated December 13, 1985, that the state statute is relied on by both counties.
We must therefore consider how New York courts would interpret section 58(1)(a) in light of its partial invalidation in Hahn. They could conclude that the New York legislature, if aware that it could not prohibit hiring, because of age, those between 40 and 70, would either (a) prefer not to set any age maximum for police hiring or (b) prefer to reject police applicants who have had a 39th birthday but not a 40th birthday and those who have had a 70th birthday. If the legislature would prefer to have the statute applied to the extend not invalidated in Hahn, then the constitutionality of the surviving portion of the statute would remain for consideration on this appeal. Neither the statutory nor the constitutional issues arising as a consequence of the ...