Miller v. Clinton

• Decision Date: 07 August 2012
• Docket Number: No. 10–5405.,10–5405.
• Parties: John R. MILLER, Jr., Appellant v. Hillary Rodham CLINTON, Secretary of State, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

687 F.3d 1332

115 Fair Empl.Prac.Cas. (BNA) 1157

John R. MILLER, Jr., Appellant

v.Hillary Rodham CLINTON, Secretary of State, Appellee.

No. 10–5405.

United States Court of Appeals,District of Columbia Circuit.

Argued Oct. 14, 2011.

Decided Aug. 7, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:10–cv–00512).

Marshall N. Perkins argued the cause and filed the briefs for appellant.

Daniel J. Lenerz, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Tony West, Assistant Attorney General, Ronald C. Machen, Jr., United States Attorney, and Marleigh D. Dover, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: ROGERS, GARLAND, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

GARLAND, Circuit Judge:

There is no dispute that the State Department terminated the employment of John R. Miller, Jr., a United States citizen working abroad, solely because he turned sixty-five years old. Indeed, it is the position of the Department that it is free to terminate employees like Miller on account of their age. Moreover, the necessary consequence of the Department's position is that it is also free from any statutory bar against terminating an employee like Miller solely on account of his disability or race or religion or sex.

After being dismissed on his sixty-fifth birthday, Miller brought suit alleging that his forced retirement violated the federal employment provisions of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a. Accepting the State Department's position, the district court dismissed Miller's complaint on the ground that the statute under which Miller was hired, section 2(c) of the Basic Authorities Act, 22 U.S.C. § 2669(c), permits the Department to exempt Miller from the protections of the ADEA. We reverse, finding nothing in the Basic Authorities Act that abrogates the ADEA's broad proscription against personnel actions that discriminate on the basis of age.

I

Miller is a U.S. citizen who was employed by the Department of State as a safety inspector at the U.S. embassy in Paris, France. He was hired in October 2003 as “locally employed staff” pursuant to a personal services agreement. Miller's contract was negotiated and signed under the authority of section 2(c) of the Basic Authorities Act, which authorizes the Secretary of State to “employ individuals or organizations, by contract, for services abroad.” 22 U.S.C. § 2669(c); see U.S. Dep't of State Personal Servs. Agreement (J.A. 23) (identifying 22 U.S.C. § 2669(c) as the exclusive “[s]tatutory authority for this agreement”). The proper construction of § 2669(c) is the central issue on this appeal.

Among other standard contractual provisions, Miller's employment contract incorporates by reference “[a]ll provisions of the local compensation plan” for Foreign Service National employees in France. J.A. 23. One provision of the Local Compensation Plan (LCP) is a mandatory retirement clause. That clause follows the (apparently) prevailing French practice of mandating retirement at age sixty-five, and expressly states that “[a]ge 65 is the mandatory age limit for all employees under the LCP.” Foreign Serv. Nat'l Comp. Plan (J.A. 26).

In accordance with the mandatory retirement clause, Miller was advised by letter dated March 22, 2007 that he would be separated from his position due to age, effective July 23, 2007, his sixty-fifth birthday. There is no dispute among the parties that the sole reason for Miller's termination was his age. The Department has not identified any concerns regarding Miller's job performance or his ability to perform his duties. According to Miller's supervisor, “[t]here was no other reason, to my knowledge, for Mr. Miller's separation[;] it was strictly the mandatory age issue.” Kenan H. Hunter, EEO Investigative Aff. (J.A. 90).

After receiving the notice of termination, Miller requested a one-year extension of employment through the State Department's Human Resources system. The request was denied. Miller then unsuccessfully pursued administrative remedies at the Equal Employment Opportunity Commission (EEOC). Having properly exhausted his administrative remedies, Miller filed suit in the U.S. District Court for the District of Columbia, alleging that his termination for turning sixty-five violated the ADEA, 29 U.S.C. § 633a.

The State Department moved to dismiss Miller's complaint for failure to state a claim, and Miller filed a cross-motion for summary judgment of liability. On November 4, 2010, the district court granted the State Department's motion and dismissed the case with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6), holding that the Secretary of State may exempt employees hired under the authority of § 2669(c) from the statutory protections of the ADEA. Miller v. Clinton, 750 F.Supp.2d 11, 15–20 (D.D.C.2010). The district court denied Miller's cross-motion for summary judgment and denied all remaining motions as moot. Id. at 20. This appeal followed.

II

This court reviews de novo the district court's dismissal of a complaint for failure to state a claim. Payne v. Salazar, 619 F.3d 56, 59 (D.C.Cir.2010). In this case, our review of the district court's decision requires us to examine the relationship between the ADEA, one of the signature pieces of legislation prohibiting discrimination in the workplace, and section 2(c) of the Basic Authorities Act, an omnibus statute concerned with (inter alia) the organization and authorities of the Department of State.

In 1974, Congress amended the ADEA to address “[n]ondiscrimination on account of age in Federal Government employment.” 29 U.S.C. § 633a. Section 633a broadly declares that “[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age ... shall be made free from any discrimination based on age.” Id. § 633a(a). The section includes an exception for “personnel actions with regard to aliens employed outside the limits of the United States,” id. (emphasis added), but contains no parallel exception for U.S. citizens so employed. Accordingly, it is undisputed that, as a general matter, the protections of § 633a extend extraterritorially to cover United States citizens employed by federal agencies abroad. See id. (stating that the statute is applicable to “executive agencies as defined in section 105 of Title 5”); see also5 U.S.C. § 105 (“For purposes of this title, ‘Executive Agency’ means an Executive Department [or] a Government corporation.”).

The Supreme Court has recognized that the ADEA's sweeping mandate “broadly prohibits arbitrary discrimination in the workplace based on age.” Lorillard v. Pons, 434 U.S. 575, 577, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). The Act's protections for employees of the federal government are, if anything, even more expansive than those for workers employed in the private sector, see Ford v. Mabus, 629 F.3d 198, 205–06 (D.C.Cir.2010); Forman v. Small, 271 F.3d 285, 296–97 (D.C.Cir.2001), and § 633a's flat prohibition of “any discrimination based on age” means, among other things, that federal employees cannot be subjected to mandatory retirement at any age, Johnson v. Mayor of Baltimore, 472 U.S. 353, 356 n. 1, 105 S.Ct. 2717, 86 L.Ed.2d 286 (1985). There is, in short, “no permissible [age] cap” for federal employment. Id.

Because Miller is a U.S. citizen employed by a federal agency who was forced to retire solely because he turned sixty-five, § 633a would appear to begin and end the matter. That is, of course, unless another act of Congress subsequently exempted employees like Miller from the ADEA's general coverage. The State Department contends that section 2(c) of the Basic Authorities Act, 22 U.S.C. § 2669(c)—the relevant clauses of which were added in 1985 and 1994—is such an act.¹

In Part III, we will examine those clauses in detail. For now, we simply set out the text of § 2669(c) in the margin, and note that if the section does in fact contain an exemption from the ADEA, it is one that must be inferred from text of unusual opacity.² In the balance of this Part, we address the considerations that will guide our examination of that text.

A

1. We begin by noting that the Defendant's “subsequent exceptions” argument faces something of an uphill climb. The ADEA “grants an injured employee a right of action” in order to “ ‘vindicat[e] the important congressional policy against discriminatory employment practices.’ ” McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 358, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995) (quoting Alexander v. Gardner–Denver Co., 415 U.S. 36, 45, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)); see Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 27, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (noting that “the ADEA is designed not only to address individual grievances, but also to further important social policies”). Given the importance Congress ascribed to the ADEA, it would be surprising if it had enacted subsequent exemptions using ambiguous language.

Moreover, the consequences of the State Department's argument cannot be limited to the ADEA alone. As we discuss below, see infra Part III.C.1, if we were to accept the Department's contention that § 2669(c) creates an exemption from the ADEA, we would have to reach the same conclusion regarding both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq.³ We see no way to distinguish the latter two statutes from the ADEA. See McKennon, 513 U.S. at 358, 115 S.Ct. 879 (explaining that the “ADEA and Title VII share common substantive features and also a common purpose: the elimination of discrimination in the workplace” (internal citation and quotation marks omitted)); id. at 357, 115 S.Ct. 879 (noting that...