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December 2, 1980


The opinion of the court was delivered by: RAMBO


On August 11, 1980, plaintiff filed a petition requesting the court to issue an order to show cause why respondent should not be ordered to respond to a subpoena duces tecum issued by petitioner. *fn1" Plaintiff's request for enforcement is pursuant to 15 U.S.C. § 49, P 3. Respondent filed a brief in opposition to plaintiff's request for an order to show cause on September 2, 1980. Oral argument on the matter was held on September 11, 1980. *fn2"

 Respondent's mandatory retirement policy requires retirement of only Enforcement Officers of the Pennsylvania Liquor Control Board at age 65 or attainment of 15 years of service, whichever occurs later. Section 623(a) of the Age Discrimination in Employment Act (ADEA) reads in pertinent part:

(a) Employer Practices. It shall be unlawful for an employer-
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; ...

 Section 631, as amended, reads in pertinent part:

(a) The prohibitions in this Act (29 U.S.C.S. §§ 621 et seq.) shall be limited to individuals who are at least 40 years of age but less than 70 years of age.

 Plaintiff contends that since respondent's mandatory retirement policy prevents individuals over the age of 65 from working, respondent's retirement policy discriminates against individuals between the ages of 65 and 70, in violation of the ADEA.

 Respondent counters plaintiff's position by asserting that the ADEA of 1967, as amended, 29 U.S.C. §§ 621 et seq., was passed pursuant to Congress's power under the Commerce Clause; that as such, it is subject to the restrictions imposed by the Tenth Amendment; and that granting an order to show cause would constitute an abuse of the court's process. Both respondent and plaintiff rely on National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), in support of their respective positions.

  In League of Cities, the Court issued a very carefully worded opinion on a very narrow issue. This court is of the opinion that respondent has incorrectly interpreted the Court's message in League of Cities, particularly in light of the Court's findings in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976). The essence of the Court's holding in League of Cities is that federal legislation, which is based solely upon the Congress's power to regulate commerce and directly displaces the state's ability to structure employee-employer relationships in areas of traditional governmental functions, is beyond the authority granted Congress by the Commerce Clause and therefore constitutes an impermissible intrusion of states rights. In a footnote, the Court cautioned that it expressed

no view as to whether different results might obtain if Congress seeks to affect integral operations of state governments by exercising authority granted it under other sections of the Constitution such as the spending power, Art. I, § 8, cl. 1, or § 5 of the Fourteenth Amendment. League of Cities, supra 426 U.S. at 852, n. 17, 96 S. Ct. at 2474, n. 17.

 In Fitzpatrick, which was decided only four days after League of Cities, the Court found that Congress, in determining what legislation is appropriate to enforce the Fourteenth Amendment, may provide for suits against states that are constitutionally impermissible under other circumstances. While Fitzpatrick dealt with the federal government's right to infringe upon the state's rights protected by the Eleventh Amendment, it is reasonable to assume a similar result would have been reached if the legislation infringed upon the Tenth Amendment, particularly in light of the language used in League of Cities. The message was clear, if the federal legislation is properly founded on § 5 of the Fourteenth Amendment, it may reasonably infringe upon state's rights protected by other constitutional amendments.

 The threshold question in this case, therefore, is whether the ADEA is based upon Congress's power under the Commerce Clause or § 5 of the Fourteenth Amendment. While it is not clear from the legislative history nor the act itself that Congress intended to exercise its Fourteenth Amendment power in passing the ADEA, Marshall v. Delaware River and Bay Authority, 471 F. Supp. 886, 891 n. 7 (D.Del.1979), courts have uniformly come to that conclusion for a myriad of reasons. Marshall, supra; Remmick v. Barnes County, 435 F. Supp. 914 (D.N.D.1977); Aaron v. Davis, 424 F. Supp. 1238, 1241 n. 2 (E.D.Ark.1976); Usery v. Board of Education of Salt Lake, 421 F. Supp. 718, 721 (D.Utah 1976). Further, the Supreme Court has already held that a section of the ADEA should be construed in the same manner as its counterpart in Title VII, which is based on the Fourteenth Amendment, because

the ADEA and Title VII share a common purpose, the elimination of discrimination in the workplace; ... the language of § 14(b) is almost in haec verba with § 706(c), and since the legislative history of § 14(b) indicates that its source was § 706(c).... *fn3" Oscar ...

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