Archer Frey v. State of California State of California Military Department

Archer Frey appeals from the district court’s dismissal of his action alleging that the California National Guard violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 , by requiring him to separate from active duty on his sixtieth birthday pursuant to Section 167 of the California Military and Veterans’ Code. Frey filed this action against the State of California and the State of California Military Department seeking, inter alia, a judicial declaration that section 167 violated the ADEA. In granting the state’s motion to dismiss for failure to state a claim, Fed. R.Civ.P. 12(b)(6), the district court held that the military departments of the states, when taking actions affecting active duty officers of the state national guard, are not “employers” within the meaning of the ADEA.

FACTS AND PROCEDURAL BACKGROUND

Archer Frey was a commissioned officer in the California National Guard on State Active Duty in the Office of the Adjutant General. He served in the State Guard from 1971 until 1991, when he was terminated under the authority of section 167, which contains a provision for mandatory retirement at age 60 for state active duty commissioned officers…