UNITED STATES COURT OF APPEALS

                                  FOR THE SECOND CIRCUIT

                                               August Term, 2005

(Argued: December 8, 2005                                     Decided: January 9, 2006
                                                              Errata Filed: March 15, 2006)
                                         Docket No. 05-0444-cv

ALAN JAY FELDMAN ,

                        Plaintiff-Appellant,

                v.

NASSAU COUNTY , NASSAU COUNTY CIVIL SERVICE
COMMISSION and NASSAU COUNTY POLICE DEPARTMENT,

                        Defendants-Appellees.


BEFORE : NEWMAN , CABRANE S and HALL, Circuit Judges.


        In an appeal from a judgment of the United States District Court for the Eastern District of

New York (Sandra J. Feuerstein, Judge) granting defendants’ motion to dismiss the amended

complaint, plaintiff contends that New York State’s statutory age limit for hiring police officers,

N.Y. Civ. Serv. Law § 58(1)(a), is a subterfuge that evades the purposes of the Age Discrimination in

Employment Act and therefore fails to qualify for the “law enforcement exception” in section 4(j)

of that act as amended, 29 U.S.C. § 623(j).

        Affirmed.



                                 BARRY D. HABERMAN , New City, NY, for Plaintiff-Appellant.

                                 DAVID B. GOLDIN , Deputy County Attorney (Lorna B. Goodman,
                                 County Attorney, on the brief), Nassau County Attorney’s Office,
                                 Mineola, NY, for Defendants-Appellees.

                                                      1
JOSÉ A. CABRANES, Circuit Judge:

          We consider here whether section 58(1)(a) of the New York Civil Service Law,1 which

prohibits an applicant who is over thirty-five years of age at the time he sits for the civil service

examination from becoming a police officer, fails to qualify for the “law enforcement exception” of

section 4(j) of the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29

U.S.C. § 623(j). We hold that Feldman has failed to allege that section 58(1)(a) of the Civil Service

Law is a “subterfuge to evade the purposes” of the ADEA, 29 U.S.C. § 623(j)(2), and the age limit

satisfies the law enforcement exception.

          Plaintiff Alan Jay Feldman was born in 1953. At some time prior to November 15, 2002,

Feldman submitted an application to take the civil service examination required to become a police

officer in Nassau County; he was informed on November 15, 2002 by the Nassau County Civil

Service Commission that his application had been denied because of his age. Feldman wrote a letter

to the Civil Service Commission appealing the determination, and his appeal was denied. On

September 5, 2003, Feldman filed two complaints with the Equal Employment Opportunity

Commission (“EEOC”), alleging that the denial of his application was based on age discrimination.

On September 22, 2003, Feldman received right-to-sue letters from the EEOC.

                                                                   I.

          Feldman filed this action in New York State Supreme Court, Nassau County, on December

19, 2003, alleging, inter alia, that he had been subjected to age discrimination in violation of the




          1
            Section 58(1)(a) of the New York Civil Service Law provides, in pertinent part, that “no person shall be
eligible for . . . appointm ent . . . as a police officer . . . unless he shall satisfy the follow ing basic requ irem ents: . . . he is
not . . . more than thirty-five years of age as of the date when the applicant takes the written examination
. . . .” The statute affords no discretion to local authorities, but rather requires that they comply with the established age
limit. See Petrelli v. City of Mount V ernon, 

, 255 (2d Cir. 1993) (“Section 58(1)(a) does not delegate an y pow er to
the . . . municipalities; it sets out the firm rule of the Legislature.”).
                                                                   2
ADEA.2 Defendants removed the action to the United States District Court for the Eastern District

of New York, at which point Feldman amended his complaint. Defendants thereafter brought a

motion to dismiss the amended complaint, which the District Court (Sandra J. Feuerstein, Judge)

granted on December 10, 2004. See Feldman v. Nassau County, 

(E.D.N.Y. 2004).

The Court rejected Feldman’s contention that section 58(1)(a) of the New York Civil Service Law,

which sets an age limit for the hiring of police officers, represents a “subterfuge to evade the

purposes” of the ADEA, 29 U.S.C. § 623(j)(2), and thereby fails to qualify for the law enforcement

exception in section 4(j) of the ADEA, 29 U.S.C. § 623(j). See 

. This

timely appeal followed. We review de novo the dismissal of Feldman’s amended complaint. See, e.g.,

Rothman v. Gregor, 

, 88 (2d Cir. 2000).




          2
           In his amend ed com plaint, Feld man asserte d claims relate d to h is 200 2 application, as well as to instanc es in
1983 and 19 87 w hen, und er N ew York’s prior age lim itation statute, see note 4 post, he was denied employment with the
Nassau C ounty Police Departm ent. Specifically, Feldman m aintained that in those prior instances, he w as subjected to
discrimination on the basis of his age, sex and race . The District C ourt dism issed all of F eldm an’s claims. See Feldman v.
Nassau County, 

, 533-40 (E.D.N.Y. 2004). On appeal, in addition to his contention that section
58(1)(a) of the New York Civil Service Law does not qualify for the law enforcement exception to the ADEA, Feldman
argues that: (1) section 58(1)(a) violates Article V, section 6 of the New York Constitution; (2) a 1982 consent decree
entered by the United States District Court for the Eastern District of New York in United S tates v. Nassau County, No. 77
Civ. 1881, pro hibited defendants’ alleged racial and sex d iscrim ination; and (3) the d enial of Feldm an’s application to sit
for the 2002 exam was in retaliation for his earlier com plaints of discrim ination and co nseq uen tly violated 42 U .S.C. §
2000e-3(a). The first two of these arguments have been waived because Feldman failed to present them to the District
Court. See Allianz Ins. Co. v. Lerner, 

, 114 (2d Cir. 2005).

         Feldman concedes that he did not advance a claim pursuant to the New York Constitution in the District
Court. He argues that he did raise a claim pursuant to the consent decree because he noted in his memorandum of law
in oppositio n to d efendants’ m otion to dismiss the amend ed com plaint that d efendants w ere “in violation of th e explicit
provisions of the Consent Decree.” Pl.-Appellant’s supplemental letter brief, Dec. 9, 2005, at 6. It is clear from the
context that that com men t—w hich is found in a section of F eldman’s mem orandu m entitled “Plaintiff’s Due Process
Claims Are No t Extinguished Du e to the Existen ce of the C onse nt D ecree”— was made in passing as part of F eldm an’s
argum ent that the consent dec ree did not prohibit him from asserting rights pursu ant to the D ue P rocess C lause.
Ho wever, Feld man never asserted any rights pursuant to the consen t dec ree. See Feldman, 

. at 537
(Feldman did not “seek enforcement of the Consent Decree.”). Accordingly, since we are aware of no circumstances
warranting the favorable exercise of our discretion to overlook the failure to assert these claims in the District Court, we
deem them waived . See Allianz Ins. 

.

          Furthermore, we reject Feldm an’s retaliation claim substantia lly for the re ason s set forth in th e D istrict C ourt’s
thou ghtfu l and com prehensive opinion. See Feldman, 349 F. Su pp. 2d at 534-35. W e therefore affirm the d ismissal of all
of Feldm an’s claims.
                                                                 3
                                                    II.

        The ADEA generally protects individuals over forty from age discrimination in employment.

See 29 U.S.C. §§ 623(a), 631(a); McCarthy v. New York City Technical Coll., 

, 165 (2d Cir.

2000) (“The ADEA makes it ‘unlawful for an employer . . . to fail or refuse to hire or to discharge

any individual [of at least 40 years of age] or otherwise discriminate against any [such] individual

with respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s age.’” (quoting 29 U.S.C. § 623(a)(1) (alterations in original))). As originally enacted in

1967, the ADEA did not apply its antidiscrimination principle to employees of state and local

governments. See Pub. L. 90-202, § 11(b), 81 Stat. 602, 605 (1967) (codified at 29 U.S.C. § 630(b)

(1970)) (excluding from definition of “employer” a “State or political subdivision thereof”). The

statute was amended, however, in 1974 to cover employees of state and local governments. See Pub.

L. 93-259, § 28(a)(2), 88 Stat. 55, 74 (1974) (amending section 11(b) of the ADEA, 29 U.S.C. §

630(b)). Two years later, the Supreme Court decided in National League of Cities v. Usery, 

(1976), that the Tenth Amendment prohibited the imposition of the wage and hour restrictions of

the Fair Labor Standards Act on state and local governments. 

In the wake of National

League of Cities, it was unclear whether the Tenth Amendment similarly deprived Congress of the

authority to mandate that states and localities comply with the requirements of the ADEA. See Kopec

v. City of Elmhurst, 

, 896-97 (7th Cir. 1999). The Supreme Court addressed that question

in EEOC v. Wyoming, 

(1983), holding that the ADEA could be applied to state law

enforcement officers. Following Wyoming, states and localities were plainly subject to the ADEA

and were required to show that age was a bona fide occupational qualification (“BFOQ”) in order to

use age limitations in the hiring of law enforcement officers. See Hahn v. City of Buffalo, 

,

16 (2d Cir. 1985) (concluding that section 58(1)(a) of the New York Civil Service Law was not

justified by a BFOQ and that it therefore violated section 4(a) of the ADEA). In other words, states
                                                  4
and localities had to satisfy the same standard as private employers to justify using age as a criterion

in employment decisions.

         In 1986, Congress amended the ADEA to provide state and local governments an exception

covering the employment of law enforcement officers and firefighters. Pub. L. 99-592, § 3, 100 Stat.

3342, 3342 (1986) (codified at 29 U.S.C. § 623(i) (1988)).3 The amendment permitted state and local

governments that had age restrictions for firefighters and law enforcement officers in place on

March 3, 1983 (the day after Wyoming was handed down) to continue to apply those restrictions. See

id.; see also Petrelli v. City of Mount Vernon, 

(2d Cir. 1993) (granting summary judgment to

defendant municipality in ADEA suit by police applicant because section 58(1)(a) of the New York

Civil Service Law was in effect on March 3, 1983). The amendment, which was “designed to

provide states an opportunity to adjust to the Supreme Court’s [Wyoming] decision,” State Police for

Automatic Retirement Ass’n v. DiFava, 

, 9 n.3 (1st Cir. 2003), included a provision repealing

the exception on December 31, 1993. See Pub. L. 99-592, § 3(b), 100 Stat. 3342, 3342 (codified at 29

U.S.C. § 623 note (1988)). When the exception lapsed at the end of 1993, the BFOQ standard once

again applied to the employment of firefighters and law enforcement officers.

         In 1996, Congress again amended the ADEA and reinstated a law enforcement exception.

The 1996 exception, contained in section 4(j) of the ADEA as amended, 29 U.S.C. § 623(j), is

substantially similar to the 1986 exception, but applies retroactively to the termination of the 1986

exception and without an expiration date. Pub. L. 104-208, § 119, 110 Stat. 3009, 3009-23 to 3009-

24. The 1996 exception permits states and their political subdivisions, under certain circumstances,

to engage in age discrimination with respect to the hiring and firing of firefighters or law

enforcement officers. Specifically, the exception provides in pertinent part as follows:


           3
             Section 623, as codified in 1988, contained two subsections designated “(i).” The subsection relevant here, the
latter of the two, was relab eled “(j)” in a subsequen t cod ification. See 29 U .S.C. § 623 (j) (2000).
                                                             5
        (j) Employment as firefighter or law enforcement officer

        It shall not be unlawful for an employer which is a State [or] a political subdivision of
        a State . . . to fail or refuse to hire or to discharge any individual because of such
        individual’s age if such action is taken—

                (1) with respect to the employment of an individual as a firefighter or as a
                law enforcement officer . . . and the individual has attained—
                ...     .       .        .
                        (A) the age of hiring or retirement, respectively, in effect under
                        applicable State or local law on March 3, 1983; or

                         (B)(i) if the individual was not hired, the age of hiring in effect on the
                         date of such failure or refusal to hire under applicable State or local
                         law enacted after September 30, 1996; . . . and

                (2) pursuant to a bona fide hiring . . . plan that is not a subterfuge to evade
                the purposes of this chapter.


29 U.S.C. § 623(j). Pursuant to subsection (j)(1) of this provision, the exception can absolve a state

or local government of liability under the ADEA for an age limit in law enforcement hiring

regardless of whether that age limit was in existence pursuant to local law at the time Wyoming was

decided, see 29 U.S.C. § 623(j)(1)(A), or whether it was enacted after the 1996 ADEA amendments

that reinstated the law enforcement exception, see 29 U.S.C. § 623(j)(1)(B). By its terms, subsection

(j)(2) requires that the relevant age limitation be a “bona fide hiring . . . plan” that is not a

“subterfuge to evade the purposes” of the ADEA. 29 U.S.C. § 623(j)(2).

        Feldman contends that section 58(1)(a) of the New York Civil Service Law —which

prohibits an applicant who is over age thirty-five when sitting for the civil service examination from

becoming a police officer—does not qualify for the law enforcement exception. Feldman concedes

that prong (1) of section 4(j) is satisfied by section 58(1)(a) because New York’s statute was enacted




                                                     6
in 19994 and because Feldman was over thirty-five when he applied to sit for the police officer exam

in 2002. See 29 U.S.C. § 623(j)(1)(B)(i). Only prong (2) of section 4(j) is therefore at issue.

         In Kopec v. City of Elmhurst, the Court of Appeals for the Seventh Circuit set forth a standard

for determining whether a statutory age limitation constitutes a “bona fide hiring . . . plan” under

section 4(j)(2) of the ADEA. The Court held that a “bona fide hiring . . . plan” is one “that is

genuine and pursuant to which actual hiring decisions are made.” 

. Here, we

need not decide whether to adopt that standard because, at oral argument, Feldman conceded that

the age limit of section 58(1)(a) is a bona fide hiring plan within the contemplation of section 4(j)(2),

and because we conclude that nothing in the record or the text of section 58(1)(a) suggests

otherwise.5

         Feldman insists that section 58(1)(a) constitutes a subterfuge because it “discriminates based

upon age and not ability” and because the New York State legislature impermissibly relied on an

“economic rationale” in enacting the statute. Pl.-Appellant’s Reply Br. at 5. According to Feldman,

“[a] subterfuge would . . . be any plan which discriminates on the basis of age and not ability, and it

would be especially egregious if the rationale for the discriminatory act is one that is expressly

prohibited by case law emanating from the ADEA, i.e.[,] economic justifications.” 

(internal

quotation marks omitted). To support his contention that section 58(1)(a) was enacted for the

purpose of conserving resources, Feldman points to the New York State Assembly Sponsor’s



         4
          Although sec tion 58(1)(a ) was originally enacted in 1965, see 1965 N.Y. Sess. Laws ch. 326, at 478-79
(McKinney) (provid ing an age limit of twenty-nine ), the m axim um age provision was repealed in 1994, see 1994 N.Y.
Sess. Laws, ch. 278, at 887 (McKinney). The current version of section 58(1)(a), providing for an age limit of thirty-five,
was enacted in 1999. See 1999 N .Y. Sess. Laws ch. 32, at 154 (M cKinney).

         5
            There is no ne ed here to d eterm ine wh ether age is a BFO Q for the law enforcem ent job. Se ction 4(j) by its
term s relieves law e nforcement agencies of hav ing to estab lish that age is a BF OQ in ord er to discriminate on the basis
of age. See 

2 (pursuant to section 4(j), a municipality “need not prove that age is a BF OQ for its
police officers”); see also Knigh t v. Georgia, 

, 1547 (11th Cir. 1993) (holding, under the substantially similar
1986 exception, a BFOQ showing was not necessary). The only required showing of bona fides under section 4(j) relates
to the hiring plan itself an d no t whether age amoun ts to a proper qualification for the job. See 

2.
                                                              7
Memorandum supporting the 1999 amendment to section 58(1)(a). Under the heading

“Justification,” that memorandum provided the following explanation for the legislation.

        Six years ago, New York State attempted an experiment which lifted the maximum
        age requirement for police recruits. At that time, questions were raised as to whether
        the age standard violated the Federal Age Discrimination in Employment Act
        (ADEA). However, in 1996, Congress partially exempted police agencies from
        coverage of the ADEA, thereby opening the door for reinstituting a maximum age
        requirement.

        Recent reports indicate that older officers leave the force at a higher rate than young
        officers and utilize more sick leave. With per officer training costs calculated at an
        estimated $100,000, officer long term retention becomes an economic issue for the
        State.

New York State Assembly Sponsor’s Memorandum, L. 1999, ch. 32, reprinted in Governor’s Bill

Jacket, L. 1999, ch. 32, at 5; see also Letter of Assemblyman Harvey Weisenberg to James McGuire,

Counsel to the Governor, April 19, 1999 (providing the same rationale for the legislation), reprinted in

Governor’s Bill Jacket, L. 1999, Ch. 32, at 4.

        Even if we assume arguendo that the New York legislature enacted section 58(1)(a) at least in

part on the basis of fiscal concerns, the statute would still not amount to a subterfuge for evasion of

purposes of the ADEA. We reject plaintiff’s proffered definition of “subterfuge” because it defies

the common sense meaning of the word and the case law interpreting the word as it is used in the

context of section 4(j) and elsewhere. Instead, we construe the word “subterfuge” in accordance

with “its ordinary meaning, i.e., a scheme, plan, stratagem, or artifice of evasion.” Minch v. City of

Chicago, 

, 624 (7th Cir. 2004) (internal quotation marks and citations omitted); see also

Leonard F. v. Israel Disc. Bank of New York, 

, 103-06 (2d Cir. 1999) (similarly interpreting

the term “subterfuge” as used in the Americans with Disabilities Act); Potenze v. New York Shipping

Ass’n., Inc., 

, 238 (2d Cir. 1986) (similarly interpreting the term “subterfuge” as had

formerly been used in 29 U.S.C. § 623(f)(2)).


                                                    8
        Plaintiff bears the burden of establishing that a particular hiring plan is a subterfuge under

section 4(j)(2). See 

; see also Pub. Employees Ret. Sys. v. Betts, 

, 181-82

(1989) (imposing the burden on the plaintiff to show that a bona fide employee benefit plan is a

“subterfuge” under the then-current version of 29 U.S.C. § 623(f)(2)), abrogated on other grounds by

Pub. L. 101-433, § 103, 104 Stat. 978, 978 (1990); cf. Pallozzi v. Allstate Life Ins. Co., 

, 36

(2d Cir. 1999) (imposing the burden on plaintiff to show that an insurance practice is a “subterfuge

to evade the purposes” of the Americans with Disabilities Act (“ADA”) in violation of section

501(c) of the ADA, 42 U.S.C. § 12201(c)). We adopt the reasoning of the Seventh Circuit in Minch

and conclude that, as a general rule, a plaintiff must show “that the employer is using the exemption

as a way to evade another substantive provision of the act.” 

.

        There is nothing deceptive about the state legislature doing exactly what Congress provided

it the authority to do—namely, benefitting from an exception to the general prohibition in the

ADEA against discrimination on the basis of age. See 

that the statute

expressly permits does not evade its prohibitions.”). The law enforcement exception, which allows

for the setting of age limits, expressly contemplates discrimination on the basis of age. Accordingly,

despite plaintiff’s contention to the contrary, showing that section 58(1)(a) discriminates on the basis

of age rather than ability cannot be enough to make section 4(j) inapplicable. Were we to conclude

otherwise, we would render section 4(j) a dead letter.

        Feldman also cannot carry his burden by arguing that “Defendants-Appellees are using

economic rationales to justify the refusal to hire.” Reply Br. at 10. The supposed rationale for

section 58(1)(a) does not indicate that the legislature used “the exemption as a way to evade another

substantive provision of the act.” 

. Feldman insists that “reliance on

economic factors is in direct contravention of . . . substantive provisions of 2[9] U.S.C. [§] 623,” Pl.-

Appellant’s Reply Br. at 14, but he never points to any specific provision of the ADEA that is
                                                   9
violated by section 58(1)(a). We decline to hold that a state legislature contravenes a substantive

provision of the ADEA simply by taking fiscal considerations into account when instituting an age

limit for new police officers. If we were to so hold, we would subvert section 4(j), as it is difficult to

imagine a circumstance in which a legislature would not at least consider the fiscal implications of

such a policy—indeed, it is difficult to imagine any legislation on social or labor concerns that is

wholly divorced from budgetary or fiscal considerations.

        Had plaintiff alleged that section 58(1)(a) was being applied in a calculated manner as a

“means of discriminating in another aspect of the employment relationship—that is, other than in

the [hiring] decision—in a way that the [ADEA] forbids,” 

, this would be a

different case. Instead, Feldman argues that the ADEA aims to prevent discrimination against older

workers on the basis of stereotypes such as the perceived incremental expense of employing them.

Indeed, in the ordinary course, when employers make hiring decisions that do not fall under an

exception to the ADEA, refusal to hire based on stereotypical economic considerations can be

“‘plainly contrary to the terms of the Act and the purpose of Congress in enacting it.’” Geller v.

Markham, 

, 1034 (2d Cir. 1980) (quoting 29 C.F.R. § 860.103(h) (1979)). However,

this purpose of the ADEA is embodied in the very provisions of the ADEA to which section 4(j)

provides an express exception. See, e.g., 29 U.S.C. §§ 623(a)(1), 631(a). Like the Seventh Circuit in

Minch, we do not read “subterfuge to evade the purposes” of the ADEA in section 4(j)(2) to

undermine the very exception that section 4(j) provides; rather, we hold that plaintiff cannot prevail

under section 4(j)(2) because he does not allege that New York’s age limitation statute is a

“subterfuge” that frustrates provisions of the ADEA not directly subject to the law enforcement

exception. See 

. Even if true, the allegations in Feldman’s amended complaint

do not suggest, much less show, that New York is using section 58(1)(a) to violate any provision of

the ADEA not directly covered by the law enforcement exception.
                                              10
                                              CONCLUSION

        In sum, we hold that:

        (1) to challenge a bona fide law enforcement hiring plan under the ADEA, a plaintiff bears

the burden of establishing that the plan is being used as a “subterfuge”—in other words, in a

discriminatory manner forbidden by a substantive provision of the statute not directly covered by

the law enforcement exception;

        (2) Feldman has not met that burden because he has alleged no facts indicating that New

York Civil Service Law section 58(1)(a) is anything other than what it purports to be—an age

restriction on the hiring of police officers pursuant to section 4(j).

                        *                *               *               *

        We have considered all of plaintiff’s arguments on appeal and find them to be without merit.

Accordingly, we AFFIRM the judgment of the District Court.




                                                    11