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.

Rutl a nd'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 v ast 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- 2 -

named the Dep artment of Human Services (DHS), eventually being

promoted to Deputy General Counsel.

On Augus t 10, 1989, the office of the Attorney General,

pursuant to an inter-agency contract with DHS (effective July 1,

1989), became responsible for providing t he 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 assist ant 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

posit ion 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, s ix of the seven

attorneys who had ser ved previously in the DHS legal department;

Rutland was the only attorney not rec ommended. At the end of

August 1989, Ru t land'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 extensive1 In addition to the Attorney General, Rutland sued the Office

of the Attorney General; the St ate 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 i s not an employee

under the ADEA disposes of all issues as to these defendants.

- 3 - 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 mat erial fact and that

the moving party is entitled to a judgment as a matter of law".

F ED

. R. C IV

. 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

burde n, 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 ele cted to public office in any State or

political subdivision of any State by the qualified

vot ers thereof, or [2] any person chosen by such2 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 A DEA. 29 U.S.C. §

630(f). In Mississippi, special assistant attorneys general are

excluded from the state's civil service system. S ee M ISS

. C ODE A NN

. § 25-9-107(c)(xiii).

- 4 -

officer to be on such officer's personal staff, or

[3] an appointee on the policymaking level or [4]

an i mmediate adviser with respect to the exercise

of the constitutional or le gal powers of the

office.

Id. § 630(f). 2

When discharged, Rutland was i nvolved 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 deter mined based upon what his pre-discharge

d uties 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 --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 ....

- 5 - (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 deter mine 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 co mpensatory 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:4 And, in a companion case, the Supreme Court refused to apply

r etrospectively another provision of the Act. R ivers v. Road way

Express, Inc. , ___ U.S. ___, 114 S. Ct. 1510 (1994).

- 6 - 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 dete rmine 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 liab ility 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. I d. 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 leg al at the time it occurred would be made

illegal. Additionally, prior to the enactment of § 321, the

Attorney Ge neral had the statutory right to terminate a certain

category of employees without fear of being subjected to a possibly5 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 o f 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").

- 7 - meritorious discrimination claim. Accordingly, assuming that § 321

repealed the § 630(f) exemption s, 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. S ee,

e.g.

, EEOC v. Reno , 758 F.2d 581 (11th Cir. 1985). (As discussed

inf ra , the district court in this action utilized the generic

"personal staff" exemption.) It is important to recognize,

however, that the re 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 h e 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.6 See also Joint Explanatory Statem ent 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 part ies 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 "l egal adviser"

exemption . In district court, the Attorney General had likewise

presented the generic personal staff exemption, and in so d oing,

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 constituti o nal or legal

- 8 - 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. 7powers of his office, 29 U.S.C. § 630(f). Special

Assistant Attorn eys 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 Attorn ey 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 continui ng 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 elem e nt 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 Def endants

.... 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

"immed iate adviser" exemption. Moreover, he agreed at oral

argument that it had been raised in district court.

- 9 - 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"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 atto rney general and a special assistant attorney

general:

Q: What is the differenc e 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

- 10 - can be much m ore 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 perso nal staff. And, for this case, we need not fashion new

factors for our immediate legal adv iser 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". M I SS

. C ODE A NN

. § 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. S ee, e.g.

, id. §§ 7-5-

5, -7. The latter two positions have virtually the same duties and

responsibilities. 9 The uncontroverted summary judgment evidenceothers 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 As sistant 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 ad vise me directly with respect to the

constitutional and legal powers o f the office of

the Attorney General on the matte rs, projects and

cases to which they have been assigned.

Th is 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 ac curate, is it not, that the

Attorney General does not talk with every Sp ecial

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.

Ho wever, the point is that under the Constitution

of this state and under the state statutes, the

Attorney General has certain obligations that he

- 11 - shows that the Attorney General expects, and receives, advice from

his special assist ant attorneys general. 1 0 In sum, this evidencemust 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 discriminat i on

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 T ranello

, 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. I d. at 249. In Mississippi, however, the

authority to appoint special assistant attorneys general is vested

statutorily in the Attorney General. M I S S

. C ODE A NN

. § 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 Attorne y 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. S ee 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 avoi d 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).

- 12 - 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. 1 1 S ee Reno

, 758 F.2d 581 (holding assistant state

attorney exempt under § 630(f)). 12- 13 - III.

For the foregoing reasons, the judgment is

AFFIRMED

.