                United States Court of Appeals
                    For the First Circuit
                                         

No. 92-2485

                  DANIEL J. GATELY, ET AL.,

                    Plaintiffs, Appellees,

                              v.

            COMMONWEALTH OF MASSACHUSETTS, ET AL.,

                   Defendants, Appellants.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. A. David Mazzone, U.S. District Judge]
                                                    

                                         

                            Before

                    Boudin, Circuit Judge,
                                         
               Campbell, Senior Circuit Judge,
                                             
                  and Stahl, Circuit Judge.
                                          

                                         

Deborah S. Steenland, Assistant Attorney General, with whom  Scott
                                                                  
Harshbarger,  Attorney  General  and  Thomas  A.  Barnico,   Assistant
                                                     
Attorney General, were on brief for appellants.
James  B. Conroy,  with  whom  Katherine L.  Parks  and  Donnelly,
                                                                  
Conroy &amp; Gelhaar, were on brief for appellees.
            
Paul D. Ramshaw, Donald R. Livingston, General Counsel,  Gwendolyn
                                                                  
Young  Reams, Associate  General  Counsel, and  Vincent J.  Blackwood,
                                                                 
Assistant  General Counsel,  on brief  for the  U.S.  Equal Employment
Opportunity Commission, amicus curiae.
                                         

                       August 18, 1993
                                         

          STAHL, Circuit Judge.   This  is an  appeal from  a
                              

preliminary   injunction   issued   pursuant   to   the   Age

Discrimination in Employment Act ("ADEA"), 29 U.S.C.   621 et
                                                             

seq.,   prohibiting  defendants-appellants   Commonwealth  of
    

Massachusetts, Thomas Rapone, Secretary of Public Safety, and

Francis  McCauley, Executive  Director  of the  Massachusetts

Retirement  Board,  from enforcing  the  statutorily mandated

retirement of members of the Department of  State Police aged

55 or older.  For the reasons set forth below, we affirm. 

                              I.
                                

                      Factual Background
                                        

          In  December  1991,  the Massachusetts  legislature

enacted  1991 Mass.  Acts ch. 412  (effective July  1, 1992),

which  called  for,  inter  alia, the  consolidation  of  the
                                

Commonwealth's largest police  force, the  Division of  State

Police,  with  its  three  smaller  forces, the  Metropolitan

District  Commission Police  ("MDC"),  the Registry  of Motor

Vehicles  Law  Enforcement  Division  ("Registry"),  and  the

Capitol  Police.   The  newly  consolidated  police force  is

referred to as the "Department of State Police."1 

          Prior to  the consolidation,  officers of  the MDC,

Registry,  and Capitol  Police  were subject  to a  mandatory

retirement age of 65,  and officers of the Division  of State

                    

1.  For purposes of clarity, however, throughout this opinion
we  refer  to  the new  Department  of  State  Police as  the
"Consolidated Department."

                             -2-
                              2

Police  were  subject to  a mandatory  retirement age  of 50.

Section   122  of  Chapter   412  repealed   those  mandatory

retirement  ages  and  declared   that  all  members  of  the

Consolidated  Department who reach their fifty-fifth birthday

on or before December 31, 1992, shall retire by that date.

          On December 21, 1992, ten days before the effective

date of the new mandatory retirement age, plaintiffs, members

of  the former  MDC and  Registry divisions,2  commenced this

action seeking  injunctive relief on the grounds that the new

mandatory  retirement age violated the ADEA.  See 29 U.S.C.  
                                                 

623(a)(1).  On December  30, 1992, after a hearing  that same

date, the district court issued an order granting plaintiffs'

motion  for preliminary  injunctive  relief.   See Gately  v.
                                                         

Massachusetts,  811 F. Supp. 26 (D. Mass. 1992).  This appeal
             

followed.

                             II.
                                

             The Preliminary Injunction Standard
                                                

          In   deciding  whether   to  grant   a  preliminary

injunction, a  district court  must weigh the  following four

factors:  (1) the likelihood  of the movant's  success on the

merits; (2) the potential for irreparable harm to the movant;

(3) a balancing of the relevant equities, i.e., "the hardship
                                              

to the nonmovant if the  restrainer issues as contrasted with

                    

2.  The complaint lists  45 officers, 30 of whom  reached the
age of 55 or older on December 31, 1992.

                             -3-
                              3

the hardship to  the movant if  interim relief is  withheld,"

Narragansett Indian  Tribe v.  Guilbert, 934 F.2d  4, 5  (1st
                                       

Cir. 1991);  and (4) the effect  on the public interest  of a

grant or denial of the injunction.  See, e.g., id.   However,
                                                  

the "sine qua non of [the preliminary injunction standard] is
                 

whether the plaintiffs are likely to succeed on  the merits."

Weaver v. Henderson, 984  F.2d 11, 12  (1st Cir. 1993).   See
                                                             

also  United Steelworkers  of America  v. Textron,  Inc., 836
                                                        

F.2d 6,  7  (1st Cir.  1987)  ("The heart  of the  matter  is

whether `the harm caused plaintiff without the injunction, in
                                                             

light of  the plaintiff's  likelihood of eventual  success on
        

the  merits, outweighs  the  harm the  injunction will  cause

defendants.'")  (quoting Vargas-Figueroa v. Saldana, 826 F.2d
                                                   

160, 162 (1st Cir. 1987) (emphasis in original)).  

          A  party  appealing   a  grant  of  a   preliminary

injunction  bears  the  heavy  burden  of  showing  that  the

district  court either committed  a mistake of  law or abused

its discretion.  Guilbert,  934 F.2d at  5.  See also  K-Mart
                                                             

Corp.  v. Oriental Plaza, Inc.,  875 F.2d 907,  915 (1st Cir.
                              

1989) ("Decisions  as to  granting or  withholding injunctive

redress  can  best be  made by  trial  courts steeped  in the

nuances of a case and mindful of the texture and scent of the

evidence.").  Without such a showing, we will not disturb the

ruling below.  Id.
                  

                             -4-
                              4

          Here, the district court weighed  the four criteria

recited above  and held that the scales tipped in favor of an

injunction.  See Gately, 811 F. Supp. at 27-31.  Although the
                       

court  admitted that  the  evidence relative  to the  second,

third, and fourth criteria was not markedly in either party's

favor,  it found that plaintiffs would  likely succeed on the

merits.  Id.  at 31.   Accordingly, it  issued the  requested
            

preliminary injunction. 

          On  appeal,  defendants  generally   challenge  the

court's application  of all  four criteria.   Having reviewed

the district court's opinion, however, it is clear to us that

appellate elaboration is  warranted only as to  the first and

second  criteria.   We therefore  adopt the  district court's

cogent and well-reasoned opinion insofar as it relates to the

other two prongs of the preliminary injunction test and focus

on  whether  the  court  correctly  presaged (a)  plaintiffs'

likelihood  of success at  trial, and  (b) the  potential for

irreparable  harm   to  plaintiffs  in  the   absence  of  an

injunction.

                             III.
                                 

                          Discussion
                                    

A.  Plaintiffs' Likelihood of Success
                                     

          Under the ADEA, it is "unlawful for an employer . .

. to fail or refuse to hire or to discharge any individual or

otherwise discriminate  against any individual .  . . because

                             -5-
                              5

of such individual's  age . .  . ."   29 U.S.C.    623(a)(1).

The ADEA  contains an "escape clause,"  however, which allows

employers  some   limited  flexibility  to   take  age   into

consideration in business decisions.  Commonly referred to as

the "BFOQ  exception," the  clause allows employers  "to take

any action  otherwise prohibited under  [the statute]  . .  .

where  age   is  a   bona  fide   occupational  qualification

reasonably necessary to the  normal operation of a particular

business . . . ."   29 U.S.C.    623(f)(1).  As noted by  the

Supreme Court, this clause is "`an extremely narrow exception

to the general  prohibition' of age  discrimination contained

in the ADEA."  Western Air Lines, Inc. v.  Criswell, 472 U.S.
                                                   

400, 412 (1985) (quoting Dothard v. Rawlinson, 433 U.S.  321,
                                             

334 (1977)).

          In  Criswell, the  Court  enunciated a  two-pronged
                      

test  for  courts  to use  in  discerning  the  width of  the

"extremely narrow"  BFOQ exception.  Id.  at 412-20 (adopting
                                        

the two-part test outlined  in Usery v. Tamiami Trail  Tours,
                                                             

Inc., 531 F.2d 224, 235-36 (5th Cir. 1976)).  Under the first
    

prong,   the  employer  must   be  able  to   show  that  the

qualification  at  issue  is  "reasonably  necessary  to  the
                                                    

essence of [its] business . . . ."  Criswell, 472 U.S. at 413
                                            

(quoting Usery, 531 F.2d at 236) (emphasis in original); EEOC
                                                             

v. City of East Providence, 798 F.2d 524, 528 (1st Cir. 1986)
                          

(quoting  Criswell).   The  second  prong  requires that  the
                  

                             -6-
                              6

employer  justify  its  use  of  age  as  a  proxy  for  that

qualification.   Criswell,  472 U.S.  at  414; City  of  East
                                                             

Providence,  798   F.2d  at   528.    Justification   can  be
          

accomplished in one of two ways.  The employer can  show that

it  "`had reasonable  cause to  believe, that  is, a  factual
                                                             

basis for  believing, that  all or substantially  all persons
     

over the age qualification[] would be unable to perform . . .

the duties of the  job involved.'"  Criswell, 472 U.S. at 414
                                            

(quoting  Usery,   531   F.2d  at   235)  (emphasis   added).
               

Alternatively,  the  employer  can  establish  that  "it   is

`impossible  or highly  impractical' to  deal with  the older

employees on an individualized basis."  Criswell, 472 U.S. at
                                                

414 (quoting Usery, 531 F.2d at 235).
                  

          As support  for their contention that  the district

court erred in determining plaintiffs'  likelihood of success

under the ADEA, defendants  make the following two arguments:

(1)   controlling  precedent   in  this   circuit  forecloses

plaintiffs'  claims, see  EEOC v.  Trabucco, 791 F.2d  1 (1st
                                           

Cir. 1986) ("Trabucco II"); Mahoney v.  Trabucco, 738 F.2d 35
                                                

(1st  Cir.), cert.  denied, 469  U.S. 1036  (1984) ("Trabucco
                                                             

I");  and  (2)  plaintiffs'  claims  are  barred  by  a  1986
 

amendment  to the ADEA.  See 29  U.S.C.   623(j).  We address
                            

each argument in turn.

          1.  Trabucco I and II
                               

                             -7-
                              7

          Defendants first contend that plaintiffs' challenge

to chapter 412 is precluded by the doctrine of stare decisis.
                                                            

In so doing, they rely upon a case in which we upheld a lower

court's  finding  that   the  Massachusetts  State   Police's

statutorily mandated  retirement age  of 50  was a  BFOQ, see
                                                             

Trabucco  I,  738 F.2d  at  37-42,  and a  case  in  which we
           

subsequently   reaffirmed   Trabucco  I   on   stare  decisis
                                                             

principles.  See Trabucco  II, 791 F.2d at 2-5.   Defendants'
                             

reliance upon these cases is misplaced.

          The doctrine of stare decisis renders the ruling of
                                       

law in a  case binding in future cases before  the same court
   

or other courts  owing obedience to the  decision.  "[U]nlike

the doctrines  of res judicata and  collateral estoppel, [the
                              

doctrine  of  stare  decisis]  is not  narrowly  confined  to
                            

parties and privies, and it does not draw its force  from the

policy protecting final judgments."  Trabucco II, 791 F.2d at
                                                

2.  "Rather, when its application is  deemed appropriate, the

doctrine  is  broad  in  impact, reaching  strangers  to  the

earlier litigation."  Id.  
                         

          The essential  principles of  stare decisis  may be
                                                     

described as follows:  

          (1) an issue of  law must have been heard
          and  decided; (2)  if  an  issue  is  not
          argued,  or though  argued is  ignored by
          the court, or  is reserved, the  decision
          does  not constitute  a  precedent to  be
          followed; (3) a decision is stare decisis
                                                   
          despite the contention that the court was
          not properly instructed by counsel on the

                             -8-
                              8

          legislative history, or that the argument
          was   otherwise   insufficient;   (4)   a
          decision  may  properly  be overruled  if
          seriously    out    of    keeping    with
          contemporary  views or  passed by  in the
          development of  the law  or proved  to be
          unworkable;  and (5)  there  is  a  heavy
          presumption  that  settled issues  of law
          will not be reexamined.

Trabucco II, 791 F.2d at 4 (internal quotations and citations
           

omitted).   Fidelity to  this principle  promotes "stability,

predictability, and respect for judicial  authority."  Hilton
                                                             

v.  South  Carolina Pub.  Rys. Comm'n,  112  S. Ct.  560, 564
                                     

(1991). 

          As stare  decisis is  concerned with rules  of law,
                           

however, a  decision dependent  upon its underlying  facts is

not  necessarily controlling  precedent  as  to a  subsequent

analysis  of  the same  question  on  different facts  and  a

different record.  Complaint of Tug Helen B. Moran, Inc., 607
                                                        

F.2d 1029, 1031  (2d Cir. 1979).   Cf. Gavin v.  Chernoff 546
                                                         

F.2d 457, 458-59 (1st Cir.  1976) (invoking stare decisis  to
                                                         

follow earlier opinion where "appellants' essential arguments

remain  much the  same as  those considered  and [previously]

rejected[,  and] [t]here are no compelling new reasons and no

change  in circumstances  justifying  reconsideration of  the

previous decision") (internal quotation marks omitted).  

          A brief examination of the two cases relied upon by

defendants reveals the inapplicability of the doctrine  here.

In Trabucco I, the district court had held that Mass. Gen. L.
             

                             -9-
                              9

ch. 32,   26(3)(a),  which mandated retirement at age  50 for

the  Division of  State Police,  while a  valid BFOQ  for the

Division  generally,  violated the  ADEA  as  applied to  the

plaintiff, a state trooper who had a desk job.   We reversed,

holding that the age qualification  applied to all members of

the state  police, regardless of  whether they  had field  or

desk jobs.  Trabucco I, 738 F.2d at 39 (phrase "`occupational
                      

qualification'  means  more  of  a  recognized  and  discrete

vocation  rather  than  a  desk assignment  for  an  employee

subject  to  all the  obligations  and benefits  of  a quasi-

military  organization").  Our decision left intact, however,

the  district court's finding that age  50 was a BFOQ for the

Division of State Police.  Id. at 37.
                              

          After  the district  court ruling,  but before  our

reversal,  the EEOC  brought an  action challenging  the very

same  mandatory  retirement  statute.    The district  court,

relying upon Trabucco I, held that the  action was foreclosed
                       

by  principles  of  stare  decisis.    On  appeal,  the  EEOC
                                  

contended  that,  because  plaintiff Mahoney  had  offered no

evidence at trial to  rebut the Commonwealth's BFOQ evidence,

the  decision lacked  precedential value.   Trabucco  II, 791
                                                        

F.2d at  4.  No facts had changed and  the EEOC argued no new

law.   It  simply contended  that it  would offer  the expert

testimony that  had not been presented  by plaintiff Mahoney.

Although recognizing the "non-absoluteness of stare decisis,"
                                                           

                             -10-
                              10

id.  at 4, we analyzed  the proceedings below  and found that
   

Mahoney raised  and argued,  and the district  court decided,

the precise question of whether the across-the-board BFOQ was

valid.  Id. at  4-5 ("Thus, the issue in the case  at bar was
           

addressed  by  Mahoney in  his  litigation,  even if  not  as

thoroughly as the EEOC  would have desired.").  As  a result,

we  rejected  the  EEOC's   attempt  to  reopen  that  issue.

Trabucco II, 791 F.2d at 4-5 ("We have found no case, nor has
           

appellant cited  us to any, that supports its contention that

a weak or ineffective  presentation in a prior  case deprives

the ruling of precedential effect.").3  

          There are two compelling reasons why these cases do

not  foreclose the  instant action.   First, the  question of

whether  a  mandatory retirement  age is  a  BFOQ is  a fact-

intensive  inquiry.    See   Criswell,  472  U.S.  at  417-23
                                     

(discussing  the  fact-based  nature  of  the BFOQ  defense);

Johnson v. Mayor &amp;  City Council of Baltimore, 472  U.S. 353,
                                             

362 (1985)  (stressing the "particularized,  factual showing"

                    

3.  In so doing, we observed that counsel for the EEOC

          was  not only aware  of the  [Trabucco I]
                                                  
          litigation, but could have  intervened in
          the district court or could have filed an
          amicus  brief on  appeal.    That it  did
          neither was attributed to  its assessment
          that  the  decision  would not  be  given
          stare  decisis  effect  and   to  certain
                        
          practical  problems,  such  as  obtaining
          expert witnesses.  

     Trabucco II, 791 F.2d at 4.  
                

                             -11-
                              11

required  by  the  ADEA  of  an   employer  claiming  an  age

qualification  is a BFOQ); EEOC v. Boeing Co., 843 F.2d 1213,
                                             

1216 (1st Cir.) ("The  validity of a BFOQ turns  upon factual

findings,  preferably ones  by a  jury."), cert.  denied, 488
                                                        

U.S. 889  (1988); Muniz Ramirez  v. Puerto Rico  Fire Servs.,
                                                            

757  F.2d  1357,  1358  (1st  Cir.  1985)  ("We  must  reject

appellant's attempt . . .  to have us rule as a matter of law

that  an entry age of thirty-five for firefighters is a BFOQ.

A particular age limit  for entry into a particular  position

is a  matter of  proof.").   See  also Monroe  v. United  Air
                                                             

Lines, Inc., 736 F.2d 394, 405 (7th Cir. 1984) ("a once-valid
           

BFOQ  may lose  its  justification with  advances in  medical

science.  That  the age 60 rule may have been  a BFOQ in 1978

does not place it beyond challenge [in 1983]"), cert. denied,
                                                            

470  U.S.  1004 (1985).   Here,  the  facts--as found  by the

district  court--differ from those  underlying Trabucco I and
                                                             

II in one crucial  respect.  In the instant  case, plaintiffs
  

presented the district court  with evidence, not available to

the plaintiffs in Trabucco  I and II, suggesting that  age is
                                    

not  an  effective  proxy  for  determining  an  individual's

suitability  to serve in a  public safety job.   See Frank J.
                                                    

Landy   et   al.,  Alternatives   to  Chronological   Age  in
                                                             

Determining  Standards of Suitability  for Public Safety Jobs
                                                             

(January  31,  1992).   And,  as  it  made  clear below,  the

district court  found this evidence persuasive.   See Gately,
                                                            

                             -12-
                              12

811  F.  Supp. at  31  ("Here .  .  . the  most  thorough and

authoritative  evidence  presented states  unequivocally that

currently  available tests  are  more effective  than age  in

identifying  officers who  may be unable  to perform  the law

enforcement and public safety tasks  required of them.").  We

see no abuse of discretion in the district court's evaluation

of this evidence.  

          Second, not  only are the underlying  facts in this

case different from those  present in Trabucco I and  II, but
                                                        

the legal landscape has been altered  in critical respects as

well.  In Trabucco I, which  was decided prior to the Supreme
                    

Court's most recent pronouncements on the ADEA, see supra pp.
                                                         

6-7,  this court  applied a standard  more lenient  than that

subsequently adopted by the Supreme Court to determine--under

the  first prong  of the test--whether  age was  a BFOQ.   In

Trabucco I, we held that an  employer must show that the  age
          

qualification is "reasonably related" to the operation of its

business.   Trabucco I, 738  F.2d at 37.   A year  later, the
                      

Supreme Court clarified that  "[t]he BFOQ standard adopted in

the   statute  is   one   of   `reasonable  necessity,'   not

reasonableness."   Criswell, 472 U.S. at 419.  See id. at 474
                                                      

(explaining   further  that  "age  qualifications  [must]  be

something  more than  `convenient' or  `reasonable'. .  . .).

The Court  also reiterated that  "the BFOQ exception  `was in

fact meant to be an extremely narrow exception to the general

                             -13-
                              13

prohibition' of age  discrimination contained  in the  ADEA."

Id. at 412 (quoting Dothard, 433 U.S. at 334).  Further, in a
                           

case issued the same day as Criswell, the Court elaborated on
                                    

the evidentiary standard  which must be  met in these  cases,

stressing  that an  employer  must  make  a  "particularized,

factual  showing" that  age  is an  effective  proxy for  the

qualification at issue.  Johnson, 472 U.S. at 362
                                

          In light of Criswell and Johnson, we agree with the
                                          

district  court's  conclusion  that  Trabucco  I,  which  was
                                                

decided   under  the   more  lenient   "reasonable  relation"

standard,   and  was   based  on   less  than   the  required

"particularized,  factual  showing,"  has  been  called  into

question.  See Gately, 811 F. Supp. at 30.
                     

          In sum,  therefore, this case involves  a different

set of facts,  a newly crafted  set of legal  rules, and,  as

such, legal issues  of first impression for this court.  As a

result, stare decisis does not provide a basis for avoiding a
                     

trial on the merits.

          2.  The 1986 Amendment to the ADEA
                                            

          Defendants next urge the application of 29 U.S.C.  

623(j), a  1986 amendment  to the  ADEA which,  they contend,

forecloses plaintiffs' claims.  We disagree.4 

                    

4.  Although  the   district  court   did  not  address   the
applicability of this  amendment, it  is purely  a matter  of
statutory  interpretation, and  therefore a  question of  law
which we  can review in the  first instance.  Cf.  In re Erin
                                                             
Food Servs., Inc., 980 F.2d 792, 799 (1st Cir. 1992).
                 

                             -14-
                              14

          The  task of  statutory interpretation  begins with

the language of  the statute, and statutory language  must be

accorded its ordinary meaning.   See, e.g., Telematics Int'l,
                                                             

Inc.  v. NEMLC  Leasing Corp.,  967 F.2d  703, 706  (1st Cir.
                             

1992).  Section 623(j) provides in relevant part: 

     Firefighters and law enforcement officers attaining
     hiring  or retiring age under State or local law on
     March 3, 1983[.]

          It shall not be unlawful  for an employer
          which is  a State . . .  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 law  enforcement
          officer and the  individual has  attained
          the  age of  . .  . retirement  in effect
          under  applicable State  or local  law on
          March 3, 1983, and

          (2)  pursuant  to  a  bona  fide  .  .  .
          retirement  plan that is not a subterfuge
          to evade the purposes of this chapter.5
                                                5

          This amendment,  which  took effect  on January  1,

1987, and  expires  on December  31, 1993,  gives states  and

local officials a  seven-year transition period  within which

they can lawfully retire law enforcement officers pursuant to

                    

5.  The term "law enforcement officer" is defined as:

          [A]n  employee,  the   duties  of   whose
          position are primarily the investigation,
          apprehension, or detention of individuals
          suspected   or   convicted  of   offenses
          against the  criminal  laws of  a  State,
          including  an  employee  engaged in  this
          activity   who   is   transferred  to   a
          supervisory or administrative position. .
          . .

                             -15-
                              15

a retirement plan in effect on March 3, 1983.  It was on that

date that the Supreme  Court decided, in the seminal  case of

EEOC  v.  Wyoming,  460  U.S. 226  (1983),  that  the  ADEA's
                 

prohibition  against mandatory  retirement was  applicable to

states and local governments.        

          According to defendants,  this statute permits them

to  apply Chapter 412 to plaintiffs because (a) Mass. Gen. L.

ch.  32,    26(3)(a), in  effect on  March 3,  1983, mandated
                                

retirement at age 50  for the members of the  former Division

of  State Police; (b) although Chapter 32,   26(3)(a) was not

applicable  to these specific plaintiffs on that date, it was

applicable to  the members  of the  former Division  of State

Police; and (c) the duties formerly assigned the Division  of

State  Police have  now been  assumed by  the members  of the

Consolidated  Department.   In effect,  therefore, defendants

contend that   623(j) allows them to take a group of officers

who, in 1983, were subject to retirement at age 65, give them

a new title in 1992, and, in so doing, subtract 10 years from

their retirement age.  

          The plain meaning of  the statutory language simply

does  not  support this  result.    Until its  expiration  on

December  31, 1993,  the statute allows  states to  retire an

individual law  enforcement officer  on the  basis of  age if

"the individual has attained the  age of . . .  retirement in
                                                             

effect under applicable state or local law on March 3, 1983 .
                       

                             -16-
                              16

. . ."  29 U.S.C.   623(j)(1) (emphasis added).   On March 3,

1983, the  statute applicable to plaintiffs  required them to
                                           

retire  at  age  65.    Therefore,  as  plaintiffs  have  not

"attained  the  age  of .  .  .  retirement  in effect  under

applicable state or  local law  on March 3,  1983,"    623(j)

does not give defendants the refuge they seek.

          To  be  sure, the  phraseology  is not  a  model of

clarity.   Yet, in  their effort  to read  a loophole into   

623(j),  defendants  ignore   the  word  "individual,"  which

appears four times in the statute.  When read as  a whole, we

believe  that the  language compels  the conclusion  that the

word "applicable" means "applicable to the individual."6

          Even if we  were to construe  the statute as  being

ambiguous,  however,  we  do  not  believe  that  defendants'

interpretation is consistent with  the statute's purpose.  As

explained by  Senator Wendell  Ford of  Kentucky, one of  the

primary architects  of the  final compromise version  of this

statute,  Congress intended    623(j)  "to provide  relief to

those jurisdictions which were forced to  respond to [EEOC v.
                                                          

Wyoming],  while at  the same  time  ensuring that  no lesser
       

discrimination protection will be  provided for these workers
                                                             

than what  was in effect  at the  time [EEOC v.  Wyoming] was
                                                        

                    

6.  We want  to make clear,  however, that  we do not  read  
623(j)(1) as allowing those officers who  may have elected to
transfer out of the MDC, Registry, or Capitol Police and into
the  Division of  State Police  to  claim the  retirement age
applicable to them on March 3, 1983.  

                             -17-
                              17

decided."  132  Cong. Rec. S16850-02  (daily ed. October  16,

1986) (emphasis added).  

          The statute, therefore, was enacted to give  states

a  grace  period of  seven  years during  which  time certain

retirement  plans  for  law  enforcement  officers  would  be

exempted from the ADEA's reach.  Senator Ford  explained that

the statute froze  pre-existing age caps  but did not  exempt

from scrutiny stricter age caps subsequently enacted:

          [T]his compromise establishes a floor for
                                               
          the  hiring  and retirement  requirements
          which  a  State or  local  government can
          set.    The  hiring  and  retirement  age
          requirements  of a  plan in effect  as of
          March   3,  1983  become  the  floor  for
                                              
          allowable plans.  . . .  If jurisdictions
          have   raised  or   eliminated  mandatory
          retirement  ages  after  this date,  they
          have the choice of either moving back  to
          the plan requirements in effect  on March
          3,  1983,  or remaining  where  they are.
          However,  States  and  local  governments
          would not be able to lower retirement age
                                    
          requirements  below  what  was  [sic]  in
          effect as of March 3, 1983.

Id. (emphasis added).  
   

          Thus,  in our  view,  neither the  language of  the

statute nor  its  legislative history  supports the  position

advanced by defendants.   This statute was enacted to provide

an  exception, limited in  both purpose and  duration, to the

ADEA's   prohibition   on    mandatory   retirement.      The

Commonwealth's   reliance  upon  this  limited  exception  to

insulate  from review its adoption of a new retirement policy

which subtracts ten years from the retirement age statutorily

                             -18-
                              18

applicable  to  plaintiffs on  March  3,  1983, is  therefore

misplaced.

          In a last ditch attempt, however, to persuade us of

  623(j)'s applicability, defendants alternatively argue that

the statute is ambiguous, and, as such, any ambiguity must be

resolved in  the Commonwealth's favor.   In support  of their

position,  defendants cite  Gregory v.  Ashcroft, 111  S. Ct.
                                                

2395  (1991), in which the  Supreme Court held  that the ADEA

did  not preempt a  state constitutional  provision mandating

the  retirement of  state  judges at  age  70.   Id.  at 2408
                                                    

(construing the  "policymaking" exception  in   630(f)).   In

that case,  the Court  reasoned that  state judges  are among

those "`officers who participate directly in the formulation,

execution,  or  review  of  broad public  policy  [and  thus]

perform  functions that  go  to the  heart of  representative

government.'"  Id.  at 2402 (quoting Sugarman v. Dougall, 413
                                                        

U.S. 634, 647 (1973)).  The power of the people of a state to

"determine  the   qualifications  of  their   most  important

government officials" is, the  Court held, fundamental to our

federalist system.   Id.  Thus, courts should  not, according
                        

to  Gregory, construe  federal statutes  to infringe  on that
           

power  unless Congress expresses its  intent to do  so in the

plainest  terms.   Id.  at 2401-03.   Finding  the text  of  
                      

630(f) ambiguous on the question of whether Congress intended

to  exempt  state  judges,   the  Court  applied  the  "plain

                             -19-
                              19

statement"  rule,  reasoning  that  "[i]n the  face  of  such

ambiguity, we  will not  attribute to Congress  an intent  to

intrude on  state governmental  functions .  . .  ."   Id. at
                                                          

2406.

          We have recently discussed the limited scope of the

Court's  holding in Gregory.  See  EEOC v. Massachusetts, 987
                                                        

F.2d 64, 67-70 (1st  Cir. 1993).   In that case, we  reversed

the  district  court's  decision,  based on  its  reading  of

Gregory,  that  the  ADEA did  not  preempt  a  state statute
       

requiring annual  medical examinations for  its employees  at

age  seventy.  We  reasoned that, although  the Gregory court
                                                       

was "unwavering  in its  desire to protect  state sovereignty

and principles of federalism," it made "unequivocally clear .

. . the narrowness  of its holding."  EEOC  v. Massachusetts,
                                                            

987 F.2d at  68, 69 ("At no point did  the Court suggest that

all state  regulations of  public employees are  questions at

the heart of state sovereignty.").  

          We  likewise  reject   defendants'  argument   that

Gregory's "plain  statement" rule  bars plaintiffs' cause  of
       

action.   As discussed above,  we find no  ambiguities in the

text  of   623(j) which give us pause as to its applicability

here.    See Gregory,  111 S.  Ct.  at 2406  (explaining that
                    

"plain statement"  rule is "a rule  of statutory construction

to be  applied where statutory  intent is  ambiguous").   See
                                                             

also Hilton,  112  S.  Ct. at  566  (reiterating  the  same).
           

                             -20-
                              20

Moreover, unlike the statutory exemption at issue in Gregory,
                                                            

  623(j) makes  plain Congress' intent that the  ADEA protect

law  enforcement officers  from  forced retirement  in  cases

where the  retirement plan at issue is  more restrictive than

that in effect on March 3, 1983, or is a "subterfuge to evade

the purposes" of the ADEA.

          In any event, we  think defendants give Gregory far
                                                         

too  broad a reading.  Plaintiffs, unlike the state judges at

issue  in  Gregory,  are  not  "constitutional officers"  who
                  

"participate  directly  in  the  formulation,  execution,  or

review of broad public  policy . . . ."   Gregory, 111 S. Ct.
                                                 

at  2401-02.     Thus,  the  Court's   concern  with  federal

infringement  of a  core  function  going  to the  "heart  of

representative government"  is not  present here.   For these

reasons, therefore, we decline to apply Gregory in the manner
                                               

urged by defendants. 

          Accordingly,  we find  no  abuse of  discretion  or

mistake of  law in the district court's conclusion that there

was a likelihood that plaintiff would  succeed on the merits.

We turn now to the question of irreparable harm.

     B.  The Potential for Irreparable Harm
                                           

          Defendants also contend  that plaintiffs failed  to

make the requisite showing of  irreparable harm, and that the

district court, therefore, abused its discretion in  granting

plaintiffs'  motion  for injunctive  relief.    In so  doing,

                             -21-
                              21

defendants rely principally upon  Sampson v. Murray, 415 U.S.
                                                   

61  (1974), which they  assert forecloses plaintiffs' claims.

Because this  court has not yet  had occasion to engage  in a

detailed  analysis  of Sampson,  and  this case  calls  for a
                              

careful reading of the opinion, we begin with a discussion of

that case.

          In  Sampson,   the  Supreme   Court  held   that  a
                     

probationary  federal  employee,  who  sought to  enjoin  her

dismissal from employment pending an administrative appeal to

the  Civil   Service  Commission  ("CSC"),  had   to  make  a

particularly strong  showing of  irreparable  harm to  obtain

preliminary  relief.    Sampson,  415 U.S.  at  91-92.    The
                               

critical facts are as  follows.  Upon her dismissal  from the

defendant  government   agency,   the  plaintiff   filed   an

administrative appeal with the CSC, alleging that the agency,

in dismissing  her, had  failed to follow  applicable federal

regulations.   Subsequently, she  filed an action  in federal

district court seeking reinstatement while her administrative

appeal was pending.   In her complaint, she alleged  that the

dismissal would deprive her of income and cause her to suffer

the embarrassment  of being  wrongfully discharged.   Finding

that plaintiff  might suffer irreparable harm  before the CSC

could  consider her  claim,  the district  court granted  the

injunction, and the Court of Appeals affirmed.  Id. at 66-67.
                                                   

The  Supreme  Court   reversed,  concluding  that   the  harm

                             -22-
                              22

plaintiff alleged she would suffer was  not irreparable.  Id.
                                                             

at 91-92.

          The questions presented on appeal were twofold: (1)

whether  the  district  court  had  authority  to  issue  the

injunction,  and  (2)  if  so,  whether  the  injunction  was

warranted.   The Court stated  early in its  opinion that the

two  questions were  analytically  related and  could not  be

neatly "bifurcated."  Id. at 68.   Accordingly, discussion of
                         

the one makes little sense  in the absence of any mention  of

the other.

          Although  the Court  ultimately answered  the first

question  in the affirmative, it did so only after noting the

multiple  factors which  weighed against  a finding  that the

district  court  had authority  to  award  the injunction  at

issue.   Those factors included:  (1) the fact that plaintiff

was   seeking   relief   prior   to   having  exhausted   her

administrative  remedies,  and  the  concomitant  "disruptive

effect which  the grant  of the temporary  relief .  . .  was

likely to have on the administrative process," id. at 83; (2)
                                                  

the lack of  any express statutory basis for  the injunction;

(3) the  absence of any  case law supporting  this particular

injunction;   (4)   "the  well-established   rule   that  the

Government has traditionally been granted the widest latitude

in  the  dispatch of  its own  internal  affairs," id.  at 83
                                                      

(internal  quotations  omitted);   and  (5)  the   fact  that

                             -23-
                              23

plaintiff  was  a  probationary  employee   entitled  to  few

procedural rights under the  relevant regulations, id. at 81-
                                                      

82.    Despite  these  considerations,  however,  the   Court

conceded the  district court's limited authority  to issue an

injunction in this  type of  case, stating that  it was  "not

prepared to conclude that Congress in this class of cases has

wholly  divested  the  district  courts  of  their  customary
      

authority to grant temporary  injunctive relief . . . ."  Id.
                                                             

at 80 (emphasis added).

          Importantly,  the  Court  then admonished  district

judges that, although the factors listed above did not render

them  "wholly bereft  of the  authority" to  grant injunctive

relief "in this class of cases," they could not exercise that

authority "without  regard to those  factors."  Id.   Indeed,
                                                   

the Court declared that those factors "are entitled  to great

weight in  the equitable balancing process  which attends the

grant of injunctive relief."  Id.
                                 

          Before turning to  the dispositive second question,

i.e.,  whether  injunctive  relief was  warranted,  the Court

again  reiterated the  close analytical  relationship between

the first and second questions:

          Although we do not hold that Congress has
          wholly   foreclosed   the   granting   of
          preliminary  injunctive  relief  in  such
          cases,  we do believe that [plaintiff] at
          the  very least  must  make a  showing of
          irreparable injury sufficient in kind and
          degree to override these  factors cutting
          against   the  general   availability  of

                             -24-
                              24

          preliminary  injunctions  in   Government
          personnel cases.

Id. at 84.
   

          In analyzing  the second question, the  Court first

noted the  complete absence in the record, with the exception

of certain statements in plaintiff's unverified complaint, of

any  evidence of irreparable harm.   Id. at 89-91.  The Court
                                        

of Appeals had held  that, at that stage of  the proceedings,

the  district court did not  need to find  that plaintiff was

actually  irreparably   harmed,  and  that,  in   any  event,

plaintiff's allegations afforded a  basis for such a finding.

The Court disagreed on both counts.

          First,   the   Court   stated  unequivocally   that

irreparable  harm is  a  critical element  of any  injunctive

relief in  federal  court.   Id. at  88.   Second, the  Court
                                

explained that plaintiff's allegations  of temporary loss  of

income  and harm to reputation did not amount to a sufficient

showing  of   irreparable  harm.    Even   under  traditional

standards, according to the  Court, temporary loss of income,

which  can be  recouped  at the  end of  a  trial, "does  not

usually constitute irreparable injury."  Id. at 90.7
                                            

                    

7.  This  premise had  particular  force in  a Civil  Service
case, the Court  explained, because  of the Back  Pay Act,  5
U.S.C.   5596(b)(1),  which provides a wrongfully  discharged
Civil Service employee with full payment and benefits for the
time period  she was out of  work.  The Court  noted that the
Act's   legislative   history   suggested    that   "Congress
contemplated   that  it  would  be  the  usual,  if  not  the
exclusive, remedy for wrongful discharge."  Id. at 90-91.
                                               

                             -25-
                              25

          As   for   plaintiff's  allegations   of   harm  to

reputation,  the  Court  found  them unpersuasive.    It  was

difficult  to  imagine,  according  to  the  Court,  how  the

agency's  failure to follow proper procedures in effectuating

her  discharge could  cause harm  to  plaintiff's reputation,

especially   where  any   damage  could   be  undone   by  an

administrative determination in her favor.

          The Court assumed, however, for the purposes of its

opinion, that  plaintiff had  made a satisfactory  showing of

financial and reputational hardship,  and then held that such

a showing "falls far short  of the type of injury which  is a

necessary predicate to the issuance of a temporary injunction

in  this  type of  case."    Id. at  91-92.    In a  footnote
                                

following  this holding,  the  Court  provided the  following

caveat:

          We  recognize that  cases  may  arise  in
          which  the  circumstances surrounding  an
          employee's  discharge, together  with the
          resultant  effect on the employee, may so
          far depart from the normal situation that
          irreparable injury might be found.   Such
          extraordinary  cases   are  difficult  to
          define  in  advance of  their occurrence.
          We have  held  that an  insufficiency  of
          savings  or  difficulties in  immediately
          obtaining    other   employment--external
          factors   common   to   most   discharged
          employees  and  not  attributable to  any
          unusual actions relating to the discharge
          itself--will  not  support  a finding  of
          irreparable injury, however severely they
          may affect a  particular individual.  But
          we  do  not  wish  to  be  understood  as
          foreclosing   relief  in   the  genuinely
          extraordinary  situation.    Use  of  the

                             -26-
                              26

          court's  injunctive power,  however, when
          discharge of probationary employees is an
          issue,  should  be   reserved  for   that
          situation  rather  than  employed in  the
          routine case.  

Id.  at 92 n.68 (citing Wettre v.  Hague, 74 F. Supp. 396 (D.
                                        

Mass. 1947), vacated and remanded  on other grounds, 168 F.2d
                                                   

825 (1st Cir. 1948)).

          As we read Sampson, it teaches that a federal court
                            

cannot  dispense  with the  irreparable  harm  requirement in

affording  injunctive relief; that  temporary loss  of income

does not rise to  the level of irreparable harm  in the usual

employee discharge  case, see,  e.g., Levesque v.  Maine, 587
                                                        

F.2d  78, 81 (1st Cir. 1978) (citing Sampson and holding that
                                            

plaintiff's  "possible loss  of earnings"  did not  amount to

irreparable harm);  and that,  before enjoining  a government

agency  from dismissing a Civil Service  employee who has not

exhausted her administrative remedies, a district  court must

find that the facts  underlying the employee's allegations of

irreparable  harm  are   "genuinely  extraordinary."    E.g.,
                                                            

Soldevila v.  Secretary of Agriculture, 512  F.2d 427, 429-30
                                      

(1st Cir.  1975).    Sampson  also  stands  for  the  general
                            

principle that irreparable harm is subject to a sliding scale

analysis, such that the  showing of irreparable harm required

of  a  plaintiff  increases   in  the  presence  of  factors,

including  the failure  to  exhaust administrative  remedies,

which cut  against a  court's traditional authority  to issue

                             -27-
                              27

equitable  relief.  See Chilcott  v. Orr, 747  F.2d 29, 31-32
                                        

(1st Cir.  1984)  ("In view  of  the strong  judicial  policy

against interfering  with the  internal affairs of  the armed

forces, we will apply  the more stringent test of  Sampson to
                                                          

applications   for   preliminary   injunctions  by   military

personnel."); Bailey v. Delta Air Lines, Inc., 722  F.2d 942,
                                             

944 (1st Cir. 1983) ("Here, as in Sampson, we think that  the
                                         

procedural requirements of Title  VII should be considered in

the  equitable  balancing  process  [and  that] an  aggrieved

person  seeking  preliminary  relief  outside  the  statutory

scheme  for alleged Title VII violations would have to make a

showing of  irreparable injury sufficient in  kind and degree

to justify  the disruption  of the  prescribed administrative

process . . . .").

          In  interpreting  Sampson, however,  numerous other
                                   

courts  have assumed that  the "genuinely extraordinary" test

for irreparable harm applies in all employee discharge cases,

whatever the asserted basis  for relief.  See, e.g.,  Stewart
                                                             

v. United States Immigration &amp; Naturalization Serv., 762 F.2d
                                                   

193,  199-200  (2d Cir.  1985);  E.E.O.C.  v. Anchor  Hocking
                                                             

Corp.,  666  F.2d 1037,  1040-44 (6th  Cir.  1981).   But see
                                                             

E.E.O.C. v.  Cosmair, Inc.,  821  F.2d 1085,  1090 (5th  Cir.
                          

1987)  (holding  that  irreparable  harm  is  presumed  where

discharged employee has exhausted her administrative remedies

and proceeds under a civil rights statute).  

                             -28-
                              28

          Such a conclusion  is predicated,  in our  opinion,

upon an overly broad, and faulty, interpretation of Sampson's
                                                           

holding.8   As  the  Court itself  made  clear early  in  its

opinion,  the questions  of  whether the  district court  had

authority to issue the injunction and whether the irreparable

harm  finding  was  proper were  not  analytically  distinct.

Sampson, 415 U.S. at 68.  The Court reiterated throughout the
       

opinion that the district court  should not have weighed  the

irreparable harm allegations without taking into  account the

multiple factors rendering tenuous its authority to reinstate

a discharged Civil Service employee pending the exhaustion of

the  administrative appeal process.  See supra p. 23.  Before
                                              

leaving the  question of the district  court's authority, the

Court explained  that the plaintiff  "must make a  showing of

irreparable injury sufficient in  kind and degree to override
                                                             

these factors . . . ."  Id. at 84 (emphasis added).  As such,
                           

the  Court's  conclusion  that  an  extraordinary  showing of

                    

8.  In  those  cases  in  which  we  have  applied  Sampson's
                                                           
heightened  standard,  we  have relied  upon  the plaintiff's
failure  to exhaust available  administrative remedies.   See
                                                             
Chilcott,  747   F.2d  at  31-33  (plaintiff   airman  sought
        
injunction  without  seeking  relief before  appropriate  Air
Force  administrative boards);  Bailey,  722  F.2d at  943-45
                                      
(plaintiff  sought injunction  prior to exhausting  Title VII
remedies);  Soldevila,  512 F.2d  at 429-30  (plaintiff civil
                     
servant  sought injunction  prior to  exhausting  CSC appeals
process).     Thus,   the  precise   question  of   Sampson's
                                                           
applicability  where   a  plaintiff  has   no  administrative
remedies  to  exhaust is  one  of  first  impression in  this
circuit. 

                             -29-
                              29

irreparable harm  was required to override  those factors was

hardly surprising.

          Needless to  say, those factors are  not present in

all employee discharge cases.  And, it makes little sense, in

our  opinion,  to  require  a district  court  to  weigh  all

discharged employees'  requests for  injunctive relief  as if

they  applied.   Nothing  in  Sampson  suggests that  result.
                                     

Rather,  the  Court  repeatedly  referred to  the  fact-bound

nature of its holding.   For instance, the Court  stated that

the  plaintiff's  showing "falls  far  short of  the  type of

injury  which is a necessary  predicate to the  issuance of a

temporary  injunction in this type  of case."   Id. at 91-92.
                                                   

And, in the footnote  immediately following this holding, the

Court stated that "[u]se of a court's injunctive power . . .,

when discharge of probationary  employees is an issue, should

be reserved for [the genuinely extraordinary] situation . . .

."9

          The case before us  differs from Sampson in several
                                                  

significant respects:  (1) plaintiffs are not seeking interim

injunctive relief pending the completion of an administrative

                    

9.  As support for this holding,  the Court cited Wettre,  74
                                                        
F. Supp. at 396, which, like the facts in Sampson, involved a
                                                 
discharged civil servant  who sought  a temporary  injunction
pending the completion of the administrative appeals process.
The  Wettre   court   presciently  held   that,   under   the
           
circumstances, the  complainants' allegations of loss  of pay
and  prestige did not amount to irreparable harm.  Wettre, 74
                                                         
F. Supp. at 400-01.

                             -30-
                              30

appeals process; (2)  the district  court unquestionably  had

the authority to issue the requested equitable relief, see 29
                                                          

U.S.C.      626(b),  (c);  (3)  plaintiffs'  allegations   of

irreparable  harm   go  beyond  temporary  loss   of  pay  or

reputational  injury; and  (4) plaintiffs'  are  not claiming

that they  are "entitled to additional  procedural safeguards

in effectuating the discharge."  See Sampson, 415 U.S. at 91.
                                            

Instead, they are arguing that  their statutorily-based civil

rights will  be violated  in the  event  of their  discharge.

Thus,  all the  factors which  rendered the  district court's

authority  to issue  the injunction  so tenuous  in Sampson--
                                                           

factors   which  the   court  was   required  to   take  into

consideration  in weighing  the plaintiff's  irreparable harm

allegations--are  not  present  here.     We  do  not  think,

therefore, that these plaintiffs  must meet the same exacting

standard required of the  plaintiff in Sampson, although they
                                              

clearly must establish irreparable harm, and point to factors

sufficient  to  overcome  "the traditional  unwillingness  of

courts of equity to enforce contracts for personal services."

Id. at 83.  
   

          The district  court held below that  plaintiffs had

made  a  sufficient, although  not  overwhelming,  showing of

irreparable harm.   See Gately,  811 F. Supp. at  27-28.  The
                              

Court rested its holding on two factual findings.  First, the

Court  found that  reinstatement  would not  be an  available

                             -31-
                              31

remedy for those plaintiffs who, at the close of a successful

trial  on the merits,  would have reached  the new retirement

age,  and, as a result of their earlier discharge, would lose

their twilight years of employment.  Id. at 27.   Second, the
                                        

Court was persuaded by plaintiffs' argument that, "time spent

away from the force [would] impair the plaintiffs' ability to

stay in  touch with new developments,  especially during this

time of transition,  thus impairing  their effectiveness  and

that of the  State Police as a whole[,] if  and when they are

ultimately reinstated."10  Id. at 27.      
                              

          Like  the district  court, we view  the irreparable

harm  question  as a  close call.    The sole  factor cutting

against  the   district  court's  authority  to   issue  this

injunction  is the  wide latitude  traditionally granted  the

government  in dispatching  its  own internal  affairs.   See
                                                             

Sampson, 415 U.S. at  83.  And, in accordance  with Sampson's
                                                           

teachings,  the   district  court  took   this  factor   into

consideration before granting the injunction.  Gately, 811 F.
                                                     

Supp.   at  28   (balancing  the   intrusion   into  internal

governmental affairs  that would  result from  the injunction

with  the  harm  to plaintiffs  in  the  absence  of it,  and

concluding  that  any  harm  to  defendants  was  minimal  by

                    

10.  We  recognize  that  the  consolidation  process had  an
anticipated completion date of  June 30, 1993.  On  the basis
of  this  record, however,  we  have  no  way of  determining
whether the process has, in fact, been completed.   

                             -32-
                              32

comparison).    Ultimately, the  district court  balanced the

equities  and  determined  that,  particularly  in  light  of

plaintiffs' high probability of  succeeding on the merits, an

injunction was warranted.  

          Mindful of the broad discretion afforded a district

court  in weighing  irreparable harm,  see K-Mart  Corp., 875
                                                        

F.2d at 915 (quoting  Wagner v. Taylor, 836 F.2d  566, 575-76
                                      

(D.C. Cir.  1987)),  we cannot  say that  the district  court

erred in concluding that, under the circumstances, plaintiffs

made a  sufficient showing of irreparable harm.  Accordingly,

we affirm the district court's ruling.

                             IV.
                                

                          Conclusion
                                    

          In  sum,  we find  the  challenges  leveled at  the

district  court's  issuance  of  the  preliminary  injunction

unpersuasive.   Accordingly, we  affirm the  district court's

decision.  Affirmed.  Costs to appellees.
           Affirmed.  Costs to appellees.
                                         

                             -33-
                              33
