In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2543

WAYNE DAVIS,

Plaintiff-Appellant,

v.

INDIANA STATE POLICE,

Defendant-Appellee.

____________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:07-087-LJM-WTL—Larry J. McKinney, Judge.

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ARGUED AUGUST 6, 2008—DECIDED SEPTEMBER 3, 2008

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Before EASTERBROOK, Chief Judge, and KANNE and

WOOD, Circuit Judges.

EASTERBROOK, Chief Judge. Wayne Davis, a State

Trooper in Indiana, resigned when 42 years old to take

another job. Two months later he decided that he had

made a mistake and asked for his old job back. The State

Police said no, telling Davis that he was too old—for extroopers seeking reinstatement must “meet all the requirements for police employees as specified in . . . 240 IAC
2 No. 07-2543

1-4-3”. 240 Ind. Admin. Code §1-4-18(b)(4). Among the

requirements in §1-4-3 is that the applicant be at least

21, and under 40, when hired. Davis contends in this suit

that, by holding his age against him, Indiana violated the

Age Discrimination in Employment Act, 29 U.S.C.

§§ 621–33a.

EEOC v. Wyoming, 460 U.S. 226 (1983), concludes that

the ADEA applies to state law-enforcement officers.

Political controversy ensued. In 1986 Congress enacted a

temporary (and retroactive) exemption for law-enforcement officers. This provision had a sunset clause, and

when the legislature was unable to agree on permanent

text the temporary provision expired in 1993. But in

1996 Congress again adopted an exemption, this time

without a sunset. Any hiring or retirement decision by a

law-enforcement agency “pursuant to a bona fide hiring

or retirement plan that is not a subterfuge to evade the

purposes of this chapter” is exempt from the ADEA. 29

U.S.C. §623(j)(2). Our opinions in Kopec v. Elmhurst, 193

F.3d 894 (7th Cir. 1999); Minch v. Chicago, 363 F.3d 615 (7th

Cir. 2004); and Minch v. Chicago, 486 F.3d 294 (7th Cir.

2007), recount this history and sum up the legal consequence: A hiring plan that was in place before EEOC v.

Wyoming is likely to be valid today—after all, the point

of §623(j)(2) is to permit age discrimination that otherwise would violate the ADEA, and probably is not designed to evade portions of the ADEA other than the age

rules. (This is how we understood “subterfuge” in Minch,

see 363 F.3d at 623. The ADEA contains anti-retaliation

clauses and other requirements in addition to the

sections that forbid discrimination against older em-
No. 07-2543 3

ployees or applicants.) The district court therefore dismissed Davis’s complaint under Fed. R. Civ. P. 12(b)(6).

Davis does not contend that Indiana’s rules, which

predate EEOC v. Wyoming, are “subterfuges” to evade

the Act. Instead he contends that the decision not to rehire

him is not one “pursuant to a bona fide hiring . . . plan”.

His principal argument is that Indiana’s system is not

“bona fide” because it is senseless; a fallback argument is

that the decision not to rehire him, in particular, was not

made “pursuant to” the state’s age limits.

Indiana allows state troopers to work until age 65.

Davis asks why a 2-month break in employment at age 42

should make him a pariah, when he would have been

acceptable at age 43, 45, 50, 55, and 60 had he just stayed

put. It is a good question, but not one for the federal

judiciary. All §623(j)(2) requires is that the plan be “bona

fide” and not a “subterfuge” to evade the ADEA. Whether

a state’s plan is wise is not material to the application of

§623(j)(2). A plan is “bona fide” when it is real rather

than a fable spun for the occasion. Kopec, 193 F.3d at 901.

In arguing that, to be bona fide, a plan must be sensible,

Davis is asking the court to assume a managerial role

that is alien to the idea of an anti-discrimination norm. As

we say frequently in suits under employment-discrimination statutes: “No matter how medieval a firm’s practices,

no matter how high-handed its decisional process, no

matter how mistaken the firm’s managers, [federal law

does] not interfere.” Pollard v. Rea Magnet Wire Co., 824

F.2d 557, 560 (7th Cir. 1987).
4 No. 07-2543

Davis equates “bona fide” with “rationally related to a

legitimate objective” and in the process conflates statutory

with constitutional criteria. Asked at oral argument

whether he was challenging Indiana’s rules under the

equal protection clause of the fourteenth amendment,

Davis’s lawyer gave a negative answer.

A plan is “bona fide” when it sets out the real rules

of decision, but Davis does not want Indiana to stand

on rules. Instead he contests the very idea of rules. A fit

person at age 41 is better suited to be a trooper than a

flabby person at age 39. But problems of this kind are

endemic to rules. As Justice Holmes put it, “[w]herever

the law draws a line there will be cases very near each

other on opposite sides.” United States v. Wurzbach, 280

U.S. 396, 399 (1930). To observe that functionally indistinguishable situations are on opposite sides of a legal line

is not to invalidate the line and demand that the state

use a standard instead, for standards have problems of

their own. Standards (for example, fitness rather than

age) depend on the exercise of discretion. Who should

wield that discretion, and why should they be trusted?

Who guards the guardians?

A two-month break is short, and a state could choose

to overlook it, but a federal doctrine converting a straightforward age line to a standard of reasonableness can’t

be limited to two-month breaks in employment. What of

a six-month break? One year? Two years? How about a

person who reaches age 65 but says that he is as fit and

alert as the average 60-year-old trooper; may Indiana

nonetheless end his employment? There is no one “right”
No. 07-2543 5

response to such questions, certainly none to be located

in §623(j)(2). Congress could displace the state’s choices (as

the ADEA does for most jobs), but §623(j)(2) does not

compel a state law-enforcement agency to make reasonable (or any) exceptions to an age-based plan. Nor does

equal-protection analysis require exceptions for special

circumstances; governments may base rules on the usual

situations without exceptions for the unusual ones. See,

e.g., Vance v. Bradley, 440 U.S. 93 (1979) (Constitution

permits mandatory retirement at age 60 of all diplomats);

Massachusetts Board of Retirement v. Murgia, 427 U.S. 307

(1976) (Constitution permits mandatory retirement at

age 50 of all state police).

Davis’s request for an exception is in tension with his

second (and better) argument: That the statute forbids

exceptions, or at least limits exceptions to those that are

explicit parts of the plan. Section 623(j)(2) requires the

state to act “pursuant to a bona fide hiring . . . plan” (emphasis added). It is not enough to have a plan.

Section 1-4-18, which spells out the procedure if a former

trooper applies for reinstatement, has some curious

language:

The applicant shall meet all the requirements for

police employees as specified in 240 IAC 1-4-2 and

240 IAC 1-4-3 subject to the approval of the superintendent and the board.

240 Ind. Admin. Code §1-4-18(b)(4). What does “subject

to the approval of the superintendent and the board”

mean? It could mean that the superintendent and board

must decide whether the applicant satisfies the two listed
6 No. 07-2543

sections; that would be unproblematic. Another possibility,

however, is that the phrase means something like “if the

superintendent and the board decide to enforce those

rules.” A power to set the plan aside at will—to reject

Davis as too old at age 42 while rehiring other ex-troopers

at age 45 or 50—would mean that the decision is not

pursuant to the age rules specified in §1-4-3. (We do not

have a situation in which the plan itself creates exceptions.)

When dismissing Davis’s complaint, the district court

did not mention the requirement that the employer’s

decision be “pursuant to” the plan; the judge asked only

whether Indiana has a bona fide plan. Having a bona

fide plan is not enough; that plan must be applied to

yield the contested decision.

Defending its judgment on appeal, the employer contends that Davis’s complaint does not adequately plead

that the decision was not made “pursuant to” the plan.

But a complaint need not plead this; it is enough to

plead the claim (here, that the state held Davis’s age

against him, and that he was at least 40 years old and

thus protected by the ADEA). Section 623(j) affords the

state an affirmative defense; on this subject Indiana bears

the burdens of both production and persuasion. Cf.

Meachum v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395

(2008) (holding this with respect to the defenses in 29

U.S.C. §623(f)). Complaints need not anticipate, and

attempt to plead around, potential affirmative defenses.

See Gomez v. Toledo, 446 U.S. 635 (1980); United States

Gypsum Co. v. Indiana Gas Co., 350 F.3d 623 (7th Cir. 2003).

When Erickson v. Pardus, 127 S. Ct. 2197 (2007), and Bell
No. 07-2543 7

Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), restated the

requirements of Fed. R. Civ. P. 8, the Justices did not

revise the allocation of burdens concerning affirmative

defenses; neither Erickson nor Bell Atlantic mentions

affirmative defenses in general or Gomez in particular.

Because this complaint was dismissed under Rule

12(b)(6), the record is silent on whether the state understands (and applies) 240 Ind. Admin. Code §1-4-18(b)(4)

to permit exceptions to the maximum-age-at-rehire requirement. Davis is entitled to collect and present evidence on that question and to contend that, if the Indiana

State Police sometimes rehires people at age 40 and above,

the decision not to rehire him was not made “pursuant to”

a bona fide plan.

The judgment of the district court is vacated, and the

case is remanded for further proceedings consistent

with this opinion.

9-3-08