# Gregory v. Ashcroft/Dissent Blackmun

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion White
* Dissenting Opinion Blackmun
Justice BLACKMUN, with whom Justice MARSHALL joins, dissenting.
I agree entirely with the cogent analysis contained in Part I of Justice WHITE's opinion, ante. For the reasons well stated by Justice WHITE, the question we must resolve is whether appointed Missouri state judges are excluded from the general prohibition of mandatory retirement that Congress established in the Federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. I part company with Justice WHITE, however, in his determination that appointed state judges fall within the narrow exclusion from ADEA coverage that Congress created for an "appointee on the policymaking level." 29 U.S.C. § 630(f).
* For two reasons, I do not accept the notion that an appointed state judge is an "appointee on the policymaking level." First, even assuming that judges may be described as policymakers in certain circumstances, the structure and legislative history of the policymaker exclusion make clear that judges are not the kind of policymakers whom Congress intended to exclude from the ADEA's broad reach. Second, whether or not a plausible argument may be made for judges' being policymakers, I would defer to the EEOC's reasonable construction of the ADEA as covering appointed state judges.
Although it may be possible to define an appointed judge as a "policymaker" with only a dictionary as a guide, we have an obligation to construe the exclusion of an "appointee on the policymaking level" with a sensitivity to the context in which Congress placed it. In construing an undefined statutory term, this Court has adhered steadfastly to the rule that " ' " 'words grouped in a list should be given related meaning,' " ' " Dole v. Steelworkers, 494 U.S. 26, ----, 110 S.Ct. 929, 930, 108 L.Ed.2d 23 (1990), quoting Massachusetts v. Morash, 490 U.S. 107, 114-115, 109 S.Ct. 1668, 1672-1673, 104 L.Ed.2d 98 (1989), quoting Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 8, 105 S.Ct. 2458, 2462, 86 L.Ed.2d 1 (1985), quoting Securities Industry Assn. v. Board of Governors, FRS, 468 U.S. 207, 218, 104 S.Ct. 3003, 3009, 82 L.Ed.2d 158 (1984), and that " 'in expounding a statute, we [are] not . . . guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' " Morash, 490 U.S., at 115, 109 S.Ct., at 1673, quoting Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 51, 107 S.Ct. 1549, 1554-1555, 95 L.Ed.2d 39 (1987). Applying these maxims of statutory construction, I conclude that an appointed state judge is not the kind of "policymaker" whom Congress intended to exclude from the protection of the ADEA.
The policymaker exclusion is placed between the exclusion of "any person chosen by such [elected] officer to be on such officer's personal staff" and the exclusion of "an immediate advisor with respect to the exercise of the constitutional or legal powers of the office." See 29 U.S.C. § 630(f). Reading the policymaker exclusion in light of the other categories of employees listed with it, I conclude that the class of "appointee[s] on the policymaking level" should be limited to those officials who share the characteristics of personal staff members and immediate advisers, i.e., those who work closely with the appointing official and are directly accountable to that official. Additionally, I agree with the reasoning of the Second Circuit in EEOC v. Vermont, 904 F.2d 794 (1990):
"Had Congress intended to except a wide-ranging category of policymaking individuals operating wholly independently of the elected official, it would probably have placed that expansive category at the end of the series, not in the middle." Id., at 798.
Because appointed judges are not accountable to the official who appoints them and are precluded from working closely with that official once they have been appointed, they are not "appointee[s] on the policymaking level" for purposes of 29 U.S.C. § 630(f).
The evidence of Congress' intent in enacting the policymaking exclusion supports this narrow reading. As noted by Justice WHITE, ante, at 484, there is little in the legislative history of § 630(f) itself to aid our interpretive endeavor. Because Title VII of the Civil Rights Act of 1964, § 701(f), as amended, 42 U.S.C. § 2000e(f), contains language identical to that in the ADEA's policymaking exclusion, however, we accord substantial weight to the legislative history of the cognate Title VII provision in construing § 630(f). See Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978) (noting that "the prohibitions of the ADEA were derived in haec verba from Title VII"). See also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-622, 83 L.Ed.2d 523 (1985); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071-2072, 60 L.Ed.2d 609 (1979); EEOC v. Vermont, 904 F.2d, at 798.
When Congress decided to amend Title VII to include States and local governments as employers, the original bill did not contain any employee exclusion. As Justice WHITE notes, ante, at 484, the absence of a provision excluding certain state employees was a matter of concern for Senator Ervin, who commented that the bill, as reported, did not contain a provision "to the effect that the EEOC will not have jurisdiction over . . . State judges, whether they are elected or appointed to office. . . ." 118 Cong.Rec. 1677 (1972). Because this floor comment refers to appointed judges, Justice WHITE concludes that the later amendment containing the exclusion of "an appointee on the policymaking level" was drafted in "response to the concerns raised by Senator Ervin and others," ante, at 484-485, and therefore should be read to include judges.
Even if the only legislative history available was the above-quoted statement of Senator Ervin and the final amendment containing the policymaking exclusion, I would be reluctant to accept Justice WHITE's analysis. It would be odd to conclude that the general exclusion of those "on the policymaking level" was added in response to Senator Ervin's very specific concern about appointed judges. Surely, if Congress had desired to exclude judges-and was responding to a specific complaint that judges would be within the jurisdiction of the EEOC-it would have chosen far clearer language to accomplish this end. In any case, a more detailed look at the genesis of the policymaking exclusion seriously undermines the suggestion that it was intended to include appointed judges.
After commenting on the absence of an employee exclusion, Senator Ervin proposed the following amendment:
"[T]he term 'employee' as set forth in the original act of 1964 and as modified in the pending bill shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such person to advise him in respect to the exercise of the constitutional or legal powers of his office." 118 Cong.Rec. 4483 (1972).
Noticeably absent from this proposed amendment is any reference to those on the policymaking level or to judges. Senator Williams then suggested expanding the proposed amendment to include the personal staff of the elected individual, leading Senators Williams and Ervin to engage in the following discussion about the purpose of the amendment: "Mr. WILLIAMS: . . . .
"First, State and local governments are now included under the bill as employers. The amendment would provide, for the purposes of the bill and for the basic law, that an elected individual is not an employee and, th[e]refore, the law could not cover him. The next point is that the elected official would, in his position as an employer, not be covered and would be exempt in the employment of certain individuals.
". . . [B]asically the purpose of the amendment . . . [is] to exempt from coverage those who are chosen by the Governor or the mayor or the county supervisor, whatever the elected official is, and who are in a close personal relationship and an immediate relationship with him. Those who are his first line of advisers. Is that basically the purpose of the Senator's amendment?
"Mr. ERVIN: I would say to my good friend from New Jersey that that is the purpose of the amendment." Id., at 4492-4493.
Following this exchange, Senator Ervin's amendment was expanded to exclude "any person chosen by such officer to be a personal assistant." Id., at 4493. The Senate adopted these amendments, voting to exclude both personal staff members and immediate advisers from the scope of Title VII.
The policymaker exclusion appears to have arisen from Senator Javits' concern that the exclusion for advisers would sweep too broadly, including hundreds of functionaries such as "lawyers, . . . stenographers, subpena servers, researchers, and so forth." Id., at 4097. Senator Javits asked "to have overnight to check into what would be the status of that rather large group of employees," noting that he "realize[d] that . . . Senator [Ervin was] . . . seeking to confine it to the higher officials in a policymaking or policy advising capacity." [492]
Ibid. In an effort to clarify his point, Senator Javits later stated:
"The other thing, the immediate advisers, I was thinking more in terms of a cabinet, of a Governor who would call his commissioners a cabinet, or he may have a cabinet composed of three or four executive officials, or five or six, who would do the main and important things. That is what I would define these things expressly to mean." Id., at 4493.
Although Senator Ervin assured Senator Javits that the exclusion of personal staff and advisers affected only the classes of employees that Senator Javits had mentioned, ibid., the Conference Committee eventually adopted a specific exclusion of an "appointee on the policymaking level" as well as the exclusion of personal staff and immediate advisers contained in the Senate bill. In explaining the scope of the exclusion, the conferees stated:
"It is the intention of the conferees to exempt elected officials and members of their personal staffs, and persons appointed by such officials as advisors 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. It is the conferees['] intent that this exemption shall be construed narrowly." S.Conf.Rep. No. 92-681, pp. 15-16 (1972).
The foregoing history decisively refutes the argument that the policymaker exclusion was added in response to Senator Ervin's concern that appointed state judges would be protected by Title VII. Senator Ervin's own proposed amendment did not exclude those on the policymaking level. Indeed, Senator Ervin indicated that all of the policymakers he sought to have excluded from the coverage of Title VII were encompassed in the exclusion of personal staff and immediate advisers. It is obvious that judges are neither staff nor immediate advisers of any elected official. The only indication as to whom Congress understood to be "appointee[s] on the policymaking level" is Senator Javits' reference to members of the Governor's cabinet, echoed in the Conference Committee's use of "cabinet officers" as an example of the type of appointee at the policymaking level excluded from Title VII's definition of "employee." When combined with the Conference Committee's exhortation that the exclusion be construed narrowly, this evidence indicates that Congress did not intend appointed state judges to be excluded from the reach of Title VII or the ADEA.
This Court has held that when a statutory term is ambiguous or undefined, a court construing the statute should defer to a reasonable interpretation of that term proffered by the agency entrusted with administering the statute. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843, 104 S.Ct. 2778, 2781-2782, 81 L.Ed.2d 694 (1984). Thus, even were I to conclude that one might read the exclusion of an "appointee on the policymaking level" to include state judges, our precedent would compel me to accept the EEOC's contrary reading of the exclusion if it were a "permissible" interpretation of this ambiguous term. Id., at 843, 104 S.Ct., at 2781-2782. This Court has recognized that "it is axiomatic that the EEOC's interpretation of Title VII, for which it has primary enforcement responsibility, need not be the best one by grammatical or any other standards. Rather, the EEOC's interpretation of ambiguous language need only be reasonable to be entitled to deference." EEOC v. Commercial Office Products Co., 486 U.S. 107, 115, 108 S.Ct. 1666, 1671, 100 L.Ed.2d 96 (1988). The EEOC's interpretation of ADEA provisions is entitled to the same deference as its interpretation of analogous provisions in Title VII. See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 761, 99 S.Ct. 2066, 2074, 60 L.Ed.2d 609 (1979), citing Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 855, 28 L.Ed.2d 158 (1971).
The EEOC consistently has taken the position that an appointed judge is not an "appointee on the policymaking level" within the meaning of 29 U.S.C. § 630(f). See EEOC v. Vermont, 904 F.2d 794 (CA2 1990); EEOC v. Massachusetts, 858 F.2d 52 (CA1 1988); EEOC v. Illinois, 721 F.Supp. 156 (ND Ill.1989). Relying on the legislative history detailed above, the EEOC has asserted that Congress intended the policymaker exclusion to include only "an elected official's first line advisers." EEOC v. Massachusetts, 858 F.2d, at 55. See also CCH EEOC Decisions (1983) ¶ 6725 (discussing the meaning of the policymaker exclusion under Title VII, and stating that policymakers "must work closely with elected officials and their advisors in developing policies that will implement the overall goals of the elected officials"). As is evident from the foregoing discussion, I believe this to be a correct reading of the statute and its history. At a minimum, it is a "permissible" reading of the indisputably ambiguous term "appointee on the policymaking level." Accordingly, I would defer to the EEOC's reasonable interpretation of this term.
The Missouri constitutional provision mandating the retirement of a judge who reaches the age of 70 violates the ADEA and is, therefore, invalid. Congress enacted the ADEA with the express purpose "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment." 29 U.S.C. § 621. Congress provided for only limited exclusions from the coverage of the ADEA, and exhorted courts applying this law to construe such exclusions narrowly. The statute's structure and legislative history reveal that Congress did not intend an appointed state judge to be beyond the scope of the ADEA's protective reach. Further, the EEOC, which is charged with the enforcement of the ADEA, has determined that an appointed state judge is covered by the ADEA. This Court's precedent dictates that we defer to the EEOC's permissible interpretation of the ADEA.
I dissent.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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