Katz

This age discrimination case is brought under both the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., and the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code §§ 12941 et seq. It challenges the State of California’s offer of a new early retirement incentive program to members of one retirement plan, whose average age was 55, and not to members of another retirement plan, whose average age was 60. Plaintiffs appeal the judgment in favor of defendants and raise, for the first time in a motion to dismiss the appeal, a threshold challenge to the district court’s jurisdiction over the suit in light of the Supreme Court’s holding in Kimel v. Florida Bd. of Regents, 528 U.S. 62 , 120 S.Ct. 631 , 145 L.Ed.2d 522 (2000), that the states have Eleventh Amendment immunity from suits under the ADEA.

The case is unusual, for it is the state that asserts that it has waived its immunity and the plaintiffs who assert that the state has not. We agree with the state that it has waived its immunity by consenting to the prosecution of this case through trial and by expressly waiving any Eleventh Amendment defense in this case. On the merits, we affirm the…