Document Type


Publication Date



Plaintiff-appellee Equal Employment Opportunity Commission ("EEOC"), the agency of the United States government charged, inter alia, with enforcement of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1988) ("ADEA"), brought this action to enjoin defendants-appellants from using age as a ground to deny the application of retired New York Supreme Court Justice Isaac Rubin for extension of his status as a certificated justice. Defendants-appellants are the State of New York and those of its agencies charged with enforcement of state constitutional and statutory provisions relating to the certification of judges for service after the retirement age of 70. Defendants contend that Justice Rubin, having acquired the office of justice of the supreme court initially by election, must be classified as an elected state official excluded from the coverage of the ADEA.

Proceeding to a final determination after deciding to combine a motion for preliminary injunction with a trial on the merits of the EEOC's claim, Fed.R.Civ.P. 65(a)(2), the district court "permanently enjoined defendants from using age seventy-six as an automatic cut-off point to disqualify Justice Rubin from being considered for discretionary reappointment as a certificated retired justice." EEOC v. State of New York, 729 F.Supp. 266, 268 (S.D.N.Y.1990). The injunction was predicated on a finding that Justice Rubin, having been certificated for additional service after the retirement age of seventy, is an appointed, rather than an elected, official, and that the denial of further certification after the age of seventy-six is a violation of the ADEA.

For the reasons set forth below, we conclude that the district court erred in determining that Justice Rubin is not excluded from the coverage of the ADEA as a "person elected to public office," 29 U.S.C. § 630(f). We therefore reverse and direct entry of judgment for defendants-appellants.


907 F.2d 316 (1990)



STATE OF NEW YORK, N.Y.S. Office of Court Administration, N.Y. Administrative Board of Courts, and N.Y.S. Department of Audit and Control, Defendants-Appellants.

Nos. 968, 969, Dockets 90-6010, 90-6012. United States Court of Appeals, Second Circuit.

Argued February 23, 1990.

Decided June 28, 1990.

New York Law School Location: File #942, Box #125