                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                            _____________________

                                 No. 94-60375
                            _____________________

                             DAROLD L. RUTLAND,

                                                          Plaintiff-Appellant,

                                     VERSUS

                                 MIKE MOORE,
                           Attorney General of the
                        State of Mississippi, ET AL.,

                                                      Defendants-Appellees.

        ____________________________________________________

            Appeals from the United States District Court
               for the Southern District of Mississippi
        _____________________________________________________

                          (May 25, 1995)
Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     At    issue   is     whether,   under    the   Age    Discrimination   in

Employment Act of 1967, 29 U.S.C. § 621 et seq. (ADEA), Darold L.

Rutland's putative employment as a special assistant attorney

general for the Attorney General of the State of Mississippi fell

under one of the exemptions to the ADEA's definition of "employee",

id. § 630(f), so that his termination could not be violative of the

ADEA.     Pursuant to the § 630(f) exemption for immediate legal

advisers, we AFFIRM.

                                       I.

     For the vast majority of his pre-termination legal career,

Rutland was an attorney for various agencies of the State of

Mississippi.    In 1982, he began working for what was subsequently
named the Department of Human Services (DHS), eventually being

promoted to Deputy General Counsel.

     On August 10, 1989, the office of the Attorney General,

pursuant to an inter-agency contract with DHS (effective July 1,

1989), became responsible for providing the department's legal

services needs.    To meet certain of those needs, the Attorney

General created a Human Services Section within his office, to be

staffed by seven special assistant attorneys general, with the

section under Deputy Attorney General Robert L. Gibbs.

     One of Gibbs' first tasks was to recommend to the Attorney

General the seven attorneys for the new section, including for the

position of section head.     For that position, Gibbs recommended,

and the Attorney General approved, an attorney already in the

Attorney General's office.      For the remaining six slots, Gibbs

recommended, and the Attorney General approved, six of the seven

attorneys who had served previously in the DHS legal department;

Rutland was the only attorney not recommended.           At the end of

August 1989, Rutland's employment with the Attorney General's

office was terminated; he was 56 years old.

     Claiming   that   his   termination    was   the   result   of   age

discrimination, Rutland brought this action under the ADEA against,

among others, Mike Moore, in his official capacity as Attorney

General of the State of Mississippi.       Rutland asserts that of the

six DHS attorneys appointed to serve in the new Human Services

Section, only one was over 40 years of age, and, that the employee

who assumed his caseload was 38 years old.              After extensive


                                - 2 -
discovery, the district court, inter alia, granted summary judgment

to the Attorney General.1

                                     II.

     It   goes   without   saying   that    we   freely   review   a   summary

judgment, and that it is appropriate only if the record discloses

"that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law".

FED. R. CIV. P. 56(c).     The moving party has the initial burden of

demonstrating the absence of a material fact issue. E.g., Topalian

v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, ___ U.S.

___, 113 S. Ct. 82 (1992).     "If the movant does, however, meet this

burden, the nonmovant must go beyond the pleadings and designate

specific facts showing that there is a genuine issue for trial."

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en

banc).

     The ADEA makes it unlawful for an employee, who is at least 40

years old, to be discharged because of his age.               29 U.S.C. §§

623(a), 631(a).    But, under the ADEA,

           the term "employee" shall not include [1] any
           person elected to public office in any State or
           political subdivision of any State by the qualified
           voters thereof, or [2] any person chosen by such

1
     In addition to the Attorney General, Rutland sued the Office
of the Attorney General; the State of Mississippi; Robert Gibbs,
Deputy Attorney General; DHS; Anne Sapp, Interim Director of DHS;
and, Beatrice Branch, Executive Director of DHS. The individuals
were sued only in their official capacity.      The district court
dismissed Gibbs, Sapp, and Branch, because they were not employers
under the ADEA, 29 U.S.C. § 630(b); and DHS, because Rutland failed
to state an actionable claim against it.       Except as discussed
infra, see note 12, our holding that Rutland is not an employee
under the ADEA disposes of all issues as to these defendants.

                                    - 3 -
          officer to be on such officer's personal staff, or
          [3] an appointee on the policymaking level or [4]
          an immediate adviser with respect to the exercise
          of the constitutional or legal powers of the
          office.

Id. § 630(f).2

     When discharged, Rutland was involved in the reorganization

and realignment of responsibilities between the office of the

Attorney General and DHS; he had not assumed any official duties

within that office.   Thus, whether Rutland falls within a § 630(f)

exemption cannot be determined based upon what his pre-discharge

duties and responsibilities were.      Instead, we must consider the

position he would have occupied in the Attorney General's office --

that of special assistant attorney general.

                                A.

     The first issue at hand is whether § 321 of the Civil Rights

Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, eliminated any

protection afforded the Attorney General under the ADEA.        That

section provides in part:

               The rights, protections, and remedies provided
          pursuant to section 1202 ... of this title [(which
          includes protection from age discrimination)] shall
          apply with respect to employment of any individual
          chosen or appointed, by a person elected to public
          office in any State or political subdivision of any
          State by the qualified voters thereof --



2
     Also pursuant to § 630(f), its exemptions notwithstanding, an
individual subject to the civil service laws of a state government,
a governmental agency, or a political subdivision is still
considered an employee for purposes of the ADEA.       29 U.S.C. §
630(f). In Mississippi, special assistant attorneys general are
excluded from the state's civil service system. See MISS. CODE ANN.
§ 25-9-107(c)(xiii).

                               - 4 -
                      (1) to be a member      of   the   elected
                 official's personal staff;

                      (2) to serve the elected official on the
                 policymaking level; or

                      (3) to serve the elected official as an
                 immediate advisor with respect to the exercise
                 of the constitutional or legal powers of the
                 office.

2 U.S.C. § 1220(a).3    Because the age discrimination claimed by

Rutland occurred before the enactment of the Civil Rights Act of

1991, we must determine whether this part of the Act should be

applied retrospectively.

     In Landgraf v. USI Film Prods., ___ U.S. ___, 114 S. Ct. 1483

(1994), the Court addressed the retrospective application vel non

of a provision in the Act that provided for, inter alia, the

recovery of punitive and compensatory damages in cases involving

intentional discrimination violative of Title VII. After reviewing

the principles that "a court is to apply the law in effect at the

time it renders its decision", id. at ___, 114 S. Ct. at 1496

(quoting Bradley v. School Bd. of City of Richmond, 416 U.S. 696,

711 (1974)), but that "[r]etroactivity is not favored in the law",

id. (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208

(1988)), the Court concluded:

3
     2 U.S.C. § 1202 provides, in pertinent part:

               All personnel actions affecting employees of
          the   Senate  shall   be   made  free  from   any
          discrimination based on --

          ....

                 (2) age, within the meaning of section 633a
                 of Title 29 ....

                                - 5 -
                When a case implicates a federal statute
           enacted after the events in suit, the court's first
           task is to determine whether Congress has expressly
           prescribed the statute's proper reach. If Congress
           has done so, of course, there is no need to resort
           to judicial default rules.      When, however, the
           statute contains no such express command, the court
           must determine whether the new statute would have
           retroactive effect, i.e., whether it would impair
           rights a party possessed when he acted, increase a
           party's liability for past conduct, or impose new
           duties with respect to transactions already
           completed.      If  the   statute   would   operate
           retroactively, our traditional presumption teaches
           that it does not govern absent clear congressional
           intent favoring such a result.

Id. at ___, 114 S. Ct. at 1505.    (The Court held that the provision

would not be applied retrospectively.     Id. at ___, 114 S. Ct. at

1508.4)

     Rutland has failed to identify any clear expression that § 321

of the Civil Rights Act of 1991 should be applied retrospectively.

Assuming both that Rutland is not protected by the ADEA because of

one or more of the § 630(f) exemptions, and that § 321 repealed

them, we must determine whether such a repeal should be applied

retrospectively.   Under this scenario, § 321 would impose a new

duty upon, and increase the potential liability of, the Attorney

General, as well as diminish a right he formerly possessed.      Past

conduct which was legal at the time it occurred would be made

illegal.    Additionally, prior to the enactment of § 321, the

Attorney General had the statutory right to terminate a certain

category of employees without fear of being subjected to a possibly


4
     And, in a companion case, the Supreme Court refused to apply
retrospectively another provision of the Act. Rivers v. Roadway
Express, Inc., ___ U.S. ___, 114 S. Ct. 1510 (1994).

                                  - 6 -
meritorious discrimination claim. Accordingly, assuming that § 321

repealed    the   §   630(f)   exemptions,       it   cannot        be   applied

retrospectively to Rutland's discharge.5

                                     B.

     Proceeding to whether Rutland was an ADEA "employee", we must

first sort through the several § 630(f) exemptions.            Only then can

we determine whether Rutland falls within one.

                                     1.

     Courts have failed, at times, to identify specifically which

of the four § 630(f) exemptions is applicable, ofttimes applying a

generic "personal staff" exemption to any § 630(f) exemption. See,

e.g., EEOC v. Reno, 758 F.2d 581 (11th Cir. 1985).             (As discussed

infra, the district court in this action utilized the generic

"personal   staff"    exemption.)     It    is   important     to    recognize,

however, that there are four distinct situations under § 630(f)

when an individual is not an "employee": (1) when he is an elected,

public official; (2) when he is a member of an elected official's

personal staff; (3) when he is appointed to a policymaking position

by an elected official; and, (4) when he serves as an immediate

adviser to an elected official on the exercise of constitutional

and legal powers.     The plain wording of § 630(f) makes this clear.


5
     Because we hold that § 321 of the Civil Rights Act of 1991 is
not to be applied retrospectively, we need not address, inter alia,
the possible federal intrusion into state functions and the
implication of the Tenth Amendment to the United States
Constitution. E.g., EEOC v. Wyoming, 460 U.S. 226, 237 n.11 (1983)
("[s]ome employment decisions are so clearly connected to the
execution of sovereign choices that they must be assimilated into
them for purposes of the Tenth Amendment").

                                    - 7 -
See Montgomery v. Brookshire, 34 F.3d 291, 294 (5th Cir. 1994)

(noting separate exemptions under § 630(f)).6

      As noted, in granting the Attorney General summary judgment,

the   district   court   relied   on   the   generic   "personal   staff"

exemption.   In so doing, it subsumed, and discussed, the immediate

legal adviser exemption.     We agree with the district court that

Rutland was not protected by the ADEA; but, we base this on the

more narrow conclusion that Mississippi special assistant attorneys

general serve as immediate legal advisers to the Attorney General

-- the fourth § 630(f) exemption.7

6
     See also Joint Explanatory Statement of Managers at the
Conference on H.R. 1746, 92d Cong., 2d Sess. (1972), reprinted in
1972 U.S.C.C.A.N. 2137, 2179, 2180 ("[i]t is the intention of the
conferees to exempt elected officials and members of their personal
staffs, and persons appointed by such elected officials as advisers
or to policymaking positions at the highest levels of the
departments or agencies of State or local governments, such as
cabinet officers, and persons with comparable responsibilities at
the local level"); Nichols v. Hurley, 921 F.2d 1101, 1108 (10th
Cir. 1990) ("a person can be a member of an elected official's
personal staff and not be either a policymaker or an immediate
adviser").
7
     "This court may affirm a grant of summary judgment on any
appropriate ground that was raised to the district court and upon
which both parties had the opportunity to introduce evidence."
Conkling v. Turner, 18 F.3d 1285, 1296 n.9 (5th Cir. 1994). As
noted, as part of its generic § 630(f) personal staff holding, the
district court included, and addressed, the "legal adviser"
exemption. In district court, the Attorney General had likewise
presented the generic personal staff exemption, and in so doing,
raised the more narrow legal adviser exemption, stating in his
motion:

           The "personal staff" exemption to ADEA coverage
           exempts persons, like Special Assistant Attorneys
           General, who are chosen by an elected official to
           be   on  that   official's  personal   staff,  the
           official's appointees on the policymaking level,
           and the official's immediate advisors with respect
           to the exercise of the constitutional or legal

                                  - 8 -
                               2.

     In applying the immediate legal adviser exemption, we do not

apply the six-plus factor test utilized in our circuit for the

separate exemption for personal staff. That test is discussed, for

example, in Montgomery, 34 F.3d at 294-95.      Needless to say,

whether an individual is on an elected official's "personal staff"


          powers of his office, 29 U.S.C. § 630(f). Special
          Assistant Attorneys General serve at the will and
          pleasure of the Attorney General, as members of his
          personal staff, are appointees on the policymaking
          level, and advise the Attorney General on the
          exercise of his constitutional and legal powers.

Although this incantation of the statutory language possibly did
not identify separate bases for the motion (and, obviously, should
be avoided), Rutland, as part of his response to the motion,
stated:

          [Rutland] would not serve as the [Attorney
          General's] immediate advisor with respect to the
          exercise of constitutional or legal powers of his
          office, but would be continuing in his role as a
          functionary representing legal interests of the
          State agency, the Department of Human Services.

               ....

               [Rutland] ... raises material issues of fact
          as to each element of [the Attorney General's]
          claim of personal advisor exemption ....

               ... Further information relevant to the issue
          of personal advisor exemption remains solely within
          the knowledge and control of the named Defendants
          .... In order to obtain information with which to
          fully respond to [the summary judgment motion,] it
          will be necessary for [Rutland] to conduct
          depositions of individuals within the Defendants'
          staffs.

     Rutland obtained additional time to conduct discovery; and,
over eight months after filing his response, supplemented it. In
sum, he recognized, and had an opportunity to respond to, the
"immediate adviser" exemption.     Moreover, he agreed at oral
argument that it had been raised in district court.

                              - 9 -
can be much more elusive than whether he is an immediate legal

adviser to that official.      It also goes without saying that a legal

adviser, in general, occupies a more confidential (or, in the legal

sense, privileged) relationship with the official than a member of

his personal staff.       And, for this case, we need not fashion new

factors for our immediate legal adviser analysis; we need not

attempt to decide, for example, how "immediate" is "immediate".8

The undisputed evidence and applicable state statutes make clear

that a Mississippi special assistant attorney general falls easily

within the exemption.

     The Attorney General is "the chief legal officer and advisor

for the state".       MISS. CODE ANN. § 7-5-1.      In addition to his two

deputies, id. § 7-5-3, he is empowered to appoint and employ

assistant    attorneys     general    and     special    assistant    attorneys

general, all of whom serve at his pleasure.             See, e.g., id. §§ 7-5-

5, -7. The latter two positions have virtually the same duties and

responsibilities.9       The uncontroverted summary judgment evidence

8
     Our research has failed to disclose any case law or
legislative history that delimits the scope of the immediate legal
adviser exemption.
9
     The following deposition testimony by a deputy attorney
general illustrates that there is no significant difference between
an assistant attorney general and a special assistant attorney
general:

                 Q:   What is the difference in terms of job
            description and duties, obligation and autho[ri]ty
            between the Special Assistant and the Assistant?

                 A:   ...   In job description duties?               There
            would be none, no difference.

                 Q:      Why are some people called Assistant and

                                     - 10 -
shows that the Attorney General expects, and receives, advice from

his special assistant attorneys general.10   In sum, this evidence


          others called Special Assistant?     Is there any
          differences in the work they perform?

               A:   No, not normally, no.    There definitely
          would not be.

          ....

               Q:   Why does someone become an Assistant as
          opposed to just a Special Assistant?

               A:    Well, the statutes of the State of
          Mississippi create only, I believe, and I could be
          wrong, nine or so Assistant Attorneys General, so
          there is a limited number of Assistant Attorney[s]
          General[].      The statutes also authorize the
          Attorney    General  to   hire  additional   legal
          assistance, and those additional legal assistants
          are known as Special Assistant Attorneys General,
          all of whom are required by law to be attorneys.
10
     Attorney General Moore stated in his affidavit:

          Each special assistant attorney general is expected
          to advise me directly with respect to the
          constitutional and legal powers of the office of
          the Attorney General on the matters, projects and
          cases to which they have been assigned.

This expectation was clarified at the earlier referenced deputy
attorney general deposition:

                 Q:   ....

                    Based on the policies, practices, and
          procedures in effect at the Attorney General's
          Office, it is accurate, is it not, that the
          Attorney General does not talk with every Special
          Assistant about every case every Special Assistant
          has?

               A:   I would think that is correct. I don't
          think he has or does talk to every lawyer in his
          office about each and every individual case.
          However, the point is that under the Constitution
          of this state and under the state statutes, the
          Attorney General has certain obligations that he

                             - 11 -
shows that, as a special assistant attorney general, Rutland would

have served as an immediate adviser to the Attorney General with

respect to the exercise of the constitutional or legal powers of

the office.11   See Reno, 758 F.2d 581 (holding assistant state

attorney exempt under § 630(f)).12


          must perform and decisions that he must make.

                    He expects each of us employees to advise
          him on, one, what the law requires him to do; and
          secondly, what we think he should do; and thirdly,
          what his obligations and duties are in a lot of
          these cases.

                    So, I don't find anything, you        know,
          unusual with that particular statement.
11
     The EEOC declined to proceed on Rutland's discrimination
charge on the basis that it lacked jurisdiction. Apparently, it
recognized, also, that Rutland was not an employee under the ADEA.

12
     Relying on Tranello v. Frey, 962 F.2d 244 (2d Cir.), cert.
denied, ___ U.S. ___, 113 S. Ct. 813 (1992).      Rutland contends
that, notwithstanding the fact that he may perform one of the
functions exempted under § 630(f), the exemptions are inapplicable
because, contrary to that section, he was not appointed by the
elected official.   In Tranello, the Second Circuit held that a
deputy county attorney did not fall within the § 630(f) exemptions
because he was appointed by another appointed official, not an
elected official.    Id. at 249.    In Mississippi, however, the
authority to appoint special assistant attorneys general is vested
statutorily in the Attorney General. MISS. CODE ANN. § 7-5-5. As
discussed, Attorney General Moore approved the recommendations on
whether to retain the DHS attorneys.

     Finally, Rutland raises, for the first time, the issue that he
is a third party beneficiary of the contract between the Office of
the Attorney General and DHS. As is well established, and with
very narrow exception, we do not consider issues raised for the
first time on appeal; this issue is not such an exception. See
Highlands Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh,
27 F.3d 1027, 1032 (5th Cir. 1994) (in civil context, "reversal for
plain error is `not run-of-the-mill remedy' and will occur `only in
exceptional circumstances to avoid a miscarriage of justice'"
(quoting Peveto v. Sears, Roebuck & Co., 807 F.2d 486, 489 (5th
Cir. 1987))), cert. denied, ___ U.S. ___, 115 S. Ct. 903 (1995).

                              - 12 -
                         III.

For the foregoing reasons, the judgment is

                       AFFIRMED.




                        - 13 -
