Rutland v. Moore ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-60375
_____________________
DAROLD L. RUTLAND,
Plaintiff-Appellant,
VERSUS
MIKE MOORE,
Attorney General of the
State of Mississippi, ET AL.,
Defendants-Appellees.
____________________________________________________
Appeals from the United States District Court
for the Southern District of Mississippi
_____________________________________________________
(May 25, 1995)
Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
At issue is whether, under the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq. (ADEA), Darold L.
Rutland's putative employment as a special assistant attorney
general for the Attorney General of the State of Mississippi fell
under one of the exemptions to the ADEA's definition of "employee",
id. § 630(f), so that his termination could not be violative of the
ADEA. Pursuant to the § 630(f) exemption for immediate legal
advisers, we AFFIRM.
I.
For the vast majority of his pre-termination legal career,
Rutland was an attorney for various agencies of the State of
Mississippi. In 1982, he began working for what was subsequently
named the Department of Human Services (DHS), eventually being
promoted to Deputy General Counsel.
On August 10, 1989, the office of the Attorney General,
pursuant to an inter-agency contract with DHS (effective July 1,
1989), became responsible for providing the department's legal
services needs. To meet certain of those needs, the Attorney
General created a Human Services Section within his office, to be
staffed by seven special assistant attorneys general, with the
section under Deputy Attorney General Robert L. Gibbs.
One of Gibbs' first tasks was to recommend to the Attorney
General the seven attorneys for the new section, including for the
position of section head. For that position, Gibbs recommended,
and the Attorney General approved, an attorney already in the
Attorney General's office. For the remaining six slots, Gibbs
recommended, and the Attorney General approved, six of the seven
attorneys who had served previously in the DHS legal department;
Rutland was the only attorney not recommended. At the end of
August 1989, Rutland's employment with the Attorney General's
office was terminated; he was 56 years old.
Claiming that his termination was the result of age
discrimination, Rutland brought this action under the ADEA against,
among others, Mike Moore, in his official capacity as Attorney
General of the State of Mississippi. Rutland asserts that of the
six DHS attorneys appointed to serve in the new Human Services
Section, only one was over 40 years of age, and, that the employee
who assumed his caseload was 38 years old. After extensive
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discovery, the district court, inter alia, granted summary judgment
to the Attorney General.1
II.
It goes without saying that we freely review a summary
judgment, and that it is appropriate only if the record discloses
"that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law".
FED. R. CIV. P. 56(c). The moving party has the initial burden of
demonstrating the absence of a material fact issue. E.g., Topalian
v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, ___ U.S.
___, 113 S. Ct. 82 (1992). "If the movant does, however, meet this
burden, the nonmovant must go beyond the pleadings and designate
specific facts showing that there is a genuine issue for trial."
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en
banc).
The ADEA makes it unlawful for an employee, who is at least 40
years old, to be discharged because of his age. 29 U.S.C. §§
623(a), 631(a). But, under the ADEA,
the term "employee" shall not include [1] any
person elected to public office in any State or
political subdivision of any State by the qualified
voters thereof, or [2] any person chosen by such
1
In addition to the Attorney General, Rutland sued the Office
of the Attorney General; the State of Mississippi; Robert Gibbs,
Deputy Attorney General; DHS; Anne Sapp, Interim Director of DHS;
and, Beatrice Branch, Executive Director of DHS. The individuals
were sued only in their official capacity. The district court
dismissed Gibbs, Sapp, and Branch, because they were not employers
under the ADEA, 29 U.S.C. § 630(b); and DHS, because Rutland failed
to state an actionable claim against it. Except as discussed
infra, see note 12, our holding that Rutland is not an employee
under the ADEA disposes of all issues as to these defendants.
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officer to be on such officer's personal staff, or
[3] an appointee on the policymaking level or [4]
an immediate adviser with respect to the exercise
of the constitutional or legal powers of the
office.
Id. § 630(f).2
When discharged, Rutland was involved in the reorganization
and realignment of responsibilities between the office of the
Attorney General and DHS; he had not assumed any official duties
within that office. Thus, whether Rutland falls within a § 630(f)
exemption cannot be determined based upon what his pre-discharge
duties and responsibilities were. Instead, we must consider the
position he would have occupied in the Attorney General's office --
that of special assistant attorney general.
A.
The first issue at hand is whether § 321 of the Civil Rights
Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, eliminated any
protection afforded the Attorney General under the ADEA. That
section provides in part:
The rights, protections, and remedies provided
pursuant to section 1202 ... of this title [(which
includes protection from age discrimination)] shall
apply with respect to employment of any individual
chosen or appointed, by a person elected to public
office in any State or political subdivision of any
State by the qualified voters thereof --
2
Also pursuant to § 630(f), its exemptions notwithstanding, an
individual subject to the civil service laws of a state government,
a governmental agency, or a political subdivision is still
considered an employee for purposes of the ADEA. 29 U.S.C. §
630(f). In Mississippi, special assistant attorneys general are
excluded from the state's civil service system. See MISS. CODE ANN.
§ 25-9-107(c)(xiii).
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(1) to be a member of the elected
official's personal staff;
(2) to serve the elected official on the
policymaking level; or
(3) to serve the elected official as an
immediate advisor with respect to the exercise
of the constitutional or legal powers of the
office.
2 U.S.C. § 1220(a).3 Because the age discrimination claimed by
Rutland occurred before the enactment of the Civil Rights Act of
1991, we must determine whether this part of the Act should be
applied retrospectively.
In Landgraf v. USI Film Prods., ___ U.S. ___, 114 S. Ct. 1483(1994), the Court addressed the retrospective application vel non
of a provision in the Act that provided for, inter alia, the
recovery of punitive and compensatory damages in cases involving
intentional discrimination violative of Title VII. After reviewing
the principles that "a court is to apply the law in effect at the
time it renders its decision", id. at ___, 114 S. Ct. at 1496(quoting Bradley v. School Bd. of City of Richmond, 416 U.S. 696,
711 (1974)), but that "[r]etroactivity is not favored in the law",
id. (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988)), the Court concluded:
3
2 U.S.C. § 1202 provides, in pertinent part:
All personnel actions affecting employees of
the Senate shall be made free from any
discrimination based on --
....
(2) age, within the meaning of section 633a
of Title 29 ....
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When a case implicates a federal statute
enacted after the events in suit, the court's first
task is to determine whether Congress has expressly
prescribed the statute's proper reach. If Congress
has done so, of course, there is no need to resort
to judicial default rules. When, however, the
statute contains no such express command, the court
must determine whether the new statute would have
retroactive effect, i.e., whether it would impair
rights a party possessed when he acted, increase a
party's liability for past conduct, or impose new
duties with respect to transactions already
completed. If the statute would operate
retroactively, our traditional presumption teaches
that it does not govern absent clear congressional
intent favoring such a result.
Id. at ___, 114 S. Ct. at 1505. (The Court held that the provision
would not be applied retrospectively. Id. at ___, 114 S. Ct. at
1508.4)
Rutland has failed to identify any clear expression that § 321
of the Civil Rights Act of 1991 should be applied retrospectively.
Assuming both that Rutland is not protected by the ADEA because of
one or more of the § 630(f) exemptions, and that § 321 repealed
them, we must determine whether such a repeal should be applied
retrospectively. Under this scenario, § 321 would impose a new
duty upon, and increase the potential liability of, the Attorney
General, as well as diminish a right he formerly possessed. Past
conduct which was legal at the time it occurred would be made
illegal. Additionally, prior to the enactment of § 321, the
Attorney General had the statutory right to terminate a certain
category of employees without fear of being subjected to a possibly
4
And, in a companion case, the Supreme Court refused to apply
retrospectively another provision of the Act. Rivers v. Roadway
Express, Inc., ___ U.S. ___, 114 S. Ct. 1510 (1994).
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meritorious discrimination claim. Accordingly, assuming that § 321
repealed the § 630(f) exemptions, it cannot be applied
retrospectively to Rutland's discharge.5
B.
Proceeding to whether Rutland was an ADEA "employee", we must
first sort through the several § 630(f) exemptions. Only then can
we determine whether Rutland falls within one.
1.
Courts have failed, at times, to identify specifically which
of the four § 630(f) exemptions is applicable, ofttimes applying a
generic "personal staff" exemption to any § 630(f) exemption. See,
e.g., EEOC v. Reno, 758 F.2d 581 (11th Cir. 1985). (As discussed
infra, the district court in this action utilized the generic
"personal staff" exemption.) It is important to recognize,
however, that there are four distinct situations under § 630(f)
when an individual is not an "employee": (1) when he is an elected,
public official; (2) when he is a member of an elected official's
personal staff; (3) when he is appointed to a policymaking position
by an elected official; and, (4) when he serves as an immediate
adviser to an elected official on the exercise of constitutional
and legal powers. The plain wording of § 630(f) makes this clear.
5
Because we hold that § 321 of the Civil Rights Act of 1991 is
not to be applied retrospectively, we need not address, inter alia,
the possible federal intrusion into state functions and the
implication of the Tenth Amendment to the United States
Constitution. E.g., EEOC v. Wyoming, 460 U.S. 226, 237 n.11 (1983)
("[s]ome employment decisions are so clearly connected to the
execution of sovereign choices that they must be assimilated into
them for purposes of the Tenth Amendment").
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See Montgomery v. Brookshire, 34 F.3d 291, 294 (5th Cir. 1994)
(noting separate exemptions under § 630(f)).6
As noted, in granting the Attorney General summary judgment,
the district court relied on the generic "personal staff"
exemption. In so doing, it subsumed, and discussed, the immediate
legal adviser exemption. We agree with the district court that
Rutland was not protected by the ADEA; but, we base this on the
more narrow conclusion that Mississippi special assistant attorneys
general serve as immediate legal advisers to the Attorney General
-- the fourth § 630(f) exemption.7
6
See also Joint Explanatory Statement of Managers at the
Conference on H.R. 1746, 92d Cong., 2d Sess. (1972), reprinted in
1972 U.S.C.C.A.N. 2137, 2179, 2180 ("[i]t is the intention of the
conferees to exempt elected officials and members of their personal
staffs, and persons appointed by such elected officials as advisers
or to policymaking positions at the highest levels of the
departments or agencies of State or local governments, such as
cabinet officers, and persons with comparable responsibilities at
the local level"); Nichols v. Hurley, 921 F.2d 1101, 1108 (10th
Cir. 1990) ("a person can be a member of an elected official's
personal staff and not be either a policymaker or an immediate
adviser").
7
"This court may affirm a grant of summary judgment on any
appropriate ground that was raised to the district court and upon
which both parties had the opportunity to introduce evidence."
Conkling v. Turner, 18 F.3d 1285, 1296 n.9 (5th Cir. 1994). As
noted, as part of its generic § 630(f) personal staff holding, the
district court included, and addressed, the "legal adviser"
exemption. In district court, the Attorney General had likewise
presented the generic personal staff exemption, and in so doing,
raised the more narrow legal adviser exemption, stating in his
motion:
The "personal staff" exemption to ADEA coverage
exempts persons, like Special Assistant Attorneys
General, who are chosen by an elected official to
be on that official's personal staff, the
official's appointees on the policymaking level,
and the official's immediate advisors with respect
to the exercise of the constitutional or legal
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2.
In applying the immediate legal adviser exemption, we do not
apply the six-plus factor test utilized in our circuit for the
separate exemption for personal staff. That test is discussed, for
example, in Montgomery, 34 F.3d at 294-95. Needless to say,
whether an individual is on an elected official's "personal staff"
powers of his office, 29 U.S.C. § 630(f). Special
Assistant Attorneys General serve at the will and
pleasure of the Attorney General, as members of his
personal staff, are appointees on the policymaking
level, and advise the Attorney General on the
exercise of his constitutional and legal powers.
Although this incantation of the statutory language possibly did
not identify separate bases for the motion (and, obviously, should
be avoided), Rutland, as part of his response to the motion,
stated:
[Rutland] would not serve as the [Attorney
General's] immediate advisor with respect to the
exercise of constitutional or legal powers of his
office, but would be continuing in his role as a
functionary representing legal interests of the
State agency, the Department of Human Services.
....
[Rutland] ... raises material issues of fact
as to each element of [the Attorney General's]
claim of personal advisor exemption ....
... Further information relevant to the issue
of personal advisor exemption remains solely within
the knowledge and control of the named Defendants
.... In order to obtain information with which to
fully respond to [the summary judgment motion,] it
will be necessary for [Rutland] to conduct
depositions of individuals within the Defendants'
staffs.
Rutland obtained additional time to conduct discovery; and,
over eight months after filing his response, supplemented it. In
sum, he recognized, and had an opportunity to respond to, the
"immediate adviser" exemption. Moreover, he agreed at oral
argument that it had been raised in district court.
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can be much more elusive than whether he is an immediate legal
adviser to that official. It also goes without saying that a legal
adviser, in general, occupies a more confidential (or, in the legal
sense, privileged) relationship with the official than a member of
his personal staff. And, for this case, we need not fashion new
factors for our immediate legal adviser analysis; we need not
attempt to decide, for example, how "immediate" is "immediate".8
The undisputed evidence and applicable state statutes make clear
that a Mississippi special assistant attorney general falls easily
within the exemption.
The Attorney General is "the chief legal officer and advisor
for the state". MISS. CODE ANN. § 7-5-1. In addition to his two
deputies, id. § 7-5-3, he is empowered to appoint and employ
assistant attorneys general and special assistant attorneys
general, all of whom serve at his pleasure. See, e.g., id. §§ 7-5-
5, -7. The latter two positions have virtually the same duties and
responsibilities.9 The uncontroverted summary judgment evidence
8
Our research has failed to disclose any case law or
legislative history that delimits the scope of the immediate legal
adviser exemption.
9
The following deposition testimony by a deputy attorney
general illustrates that there is no significant difference between
an assistant attorney general and a special assistant attorney
general:
Q: What is the difference in terms of job
description and duties, obligation and autho[ri]ty
between the Special Assistant and the Assistant?
A: ... In job description duties? There
would be none, no difference.
Q: Why are some people called Assistant and
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shows that the Attorney General expects, and receives, advice from
his special assistant attorneys general.10 In sum, this evidence
others called Special Assistant? Is there any
differences in the work they perform?
A: No, not normally, no. There definitely
would not be.
....
Q: Why does someone become an Assistant as
opposed to just a Special Assistant?
A: Well, the statutes of the State of
Mississippi create only, I believe, and I could be
wrong, nine or so Assistant Attorneys General, so
there is a limited number of Assistant Attorney[s]
General[]. The statutes also authorize the
Attorney General to hire additional legal
assistance, and those additional legal assistants
are known as Special Assistant Attorneys General,
all of whom are required by law to be attorneys.
10
Attorney General Moore stated in his affidavit:
Each special assistant attorney general is expected
to advise me directly with respect to the
constitutional and legal powers of the office of
the Attorney General on the matters, projects and
cases to which they have been assigned.
This expectation was clarified at the earlier referenced deputy
attorney general deposition:
Q: ....
Based on the policies, practices, and
procedures in effect at the Attorney General's
Office, it is accurate, is it not, that the
Attorney General does not talk with every Special
Assistant about every case every Special Assistant
has?
A: I would think that is correct. I don't
think he has or does talk to every lawyer in his
office about each and every individual case.
However, the point is that under the Constitution
of this state and under the state statutes, the
Attorney General has certain obligations that he
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shows that, as a special assistant attorney general, Rutland would
have served as an immediate adviser to the Attorney General with
respect to the exercise of the constitutional or legal powers of
the office.11 See Reno, 758 F.2d 581 (holding assistant state
attorney exempt under § 630(f)).12
must perform and decisions that he must make.
He expects each of us employees to advise
him on, one, what the law requires him to do; and
secondly, what we think he should do; and thirdly,
what his obligations and duties are in a lot of
these cases.
So, I don't find anything, you know,
unusual with that particular statement.
11
The EEOC declined to proceed on Rutland's discrimination
charge on the basis that it lacked jurisdiction. Apparently, it
recognized, also, that Rutland was not an employee under the ADEA.
12
Relying on Tranello v. Frey, 962 F.2d 244 (2d Cir.), cert.
denied, ___ U.S. ___, 113 S. Ct. 813 (1992). Rutland contends
that, notwithstanding the fact that he may perform one of the
functions exempted under § 630(f), the exemptions are inapplicable
because, contrary to that section, he was not appointed by the
elected official. In Tranello, the Second Circuit held that a
deputy county attorney did not fall within the § 630(f) exemptions
because he was appointed by another appointed official, not an
elected official. Id. at 249. In Mississippi, however, the
authority to appoint special assistant attorneys general is vested
statutorily in the Attorney General. MISS. CODE ANN. § 7-5-5. As
discussed, Attorney General Moore approved the recommendations on
whether to retain the DHS attorneys.
Finally, Rutland raises, for the first time, the issue that he
is a third party beneficiary of the contract between the Office of
the Attorney General and DHS. As is well established, and with
very narrow exception, we do not consider issues raised for the
first time on appeal; this issue is not such an exception. See
Highlands Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh,
27 F.3d 1027, 1032 (5th Cir. 1994) (in civil context, "reversal for
plain error is `not run-of-the-mill remedy' and will occur `only in
exceptional circumstances to avoid a miscarriage of justice'"
(quoting Peveto v. Sears, Roebuck & Co., 807 F.2d 486, 489 (5th
Cir. 1987))), cert. denied, ___ U.S. ___, 115 S. Ct. 903 (1995).
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III.
For the foregoing reasons, the judgment is
AFFIRMED.
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