
USCA1 Opinion

	




                                       United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                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 & 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.                                          I.                                          __                                  Factual Background                                  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.                                         II.                                         ___                         The Preliminary Injunction Standard                         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.                                         III.                                         ____                                      Discussion                                      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                      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 &  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                      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                 Firefighters and law enforcement officers attaining                 hiring  or retiring age under State or local law on                 hiring  or retiring age under State or local law on                 March 3, 1983[.]                 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 & 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.                                         IV.                                         ___                                      Conclusion                                      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
