Hedin v. Thompson

• Decision Date: 20 January 2004
• Docket Number: No. 03-1474.,03-1474.
• Citation: 355 F.3d 746
• Parties: Durand HEDIN, Plaintiff-Appellant, v. Tommy G. THOMPSON, Secretary, United States Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

355 F.3d 746

Durand HEDIN, Plaintiff-Appellant, v. Tommy G. THOMPSON, Secretary, United States Department of Health and Human Services, Defendant-Appellee.

No. 03-1474.

United States Court of Appeals, Fourth Circuit.

Argued: December 3, 2003.

Decided: January 20, 2004.

ARGUED:

R. Douglas Taylor, Jr., Farber Taylor, L.L.C., Rockville, Maryland, for Appellant. Tarra R. DeShields-Minnis, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

ON BRIEF:

Thomas M. DiBiagio, United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge LUTTIG and Judge DUNCAN joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

In this case of first impression a commissioned officer in the Public Health Service, not detailed to or serving in the Armed Forces, seeks to bring claims against his employer based on federal antidiscrimination laws. The district court dismissed the officer's claims. Because Congress has mandated that Public Health Service officers be treated for purposes of antidiscrimination laws as officers in active military service with the Armed Forces, and military officers are exempt from antidiscrimination laws, we affirm.

I.

Durand Hedin, a pharmacist and Commander in the Commissioned Corps of the United States Public Health Service ("CCPHS"), works as a Senior Regulatory Management Officer with the Food and Drug Administration in the Department of Health and Human Services ("HHS").

After HHS failed on several occasions to promote Hedin, a 52 year-old Caucasian male, and assertedly distributed work to him unfairly, he filed three timely administrative complaints through HHS's internal equal employment opportunity program.¹ The acting Surgeon General issued a final decision finding for HHS on each of Hedin's complaints.

Hedin then filed this action alleging the same discrimination, but this time seeking redress under Title VII of the Civil Rights Act, § 701 et seq., 42 U.S.C. § 2000e et seq. (2000), and the Age Discrimination in Employment Act of 1967 ("ADEA"), § 2 et seq., 29 U.S.C. § 621 et seq. (2000). Specifically, Hedin relies on § 2000e-5(f)(3) and § 2000e-16 of Title VII and § 626(c)(1) and § 633a of the ADEA, which provide that the federal government may not discriminate on the basis of race, sex, or age with regard to "[a]ll personnel actions affecting employees ... in military departments [and] ... executive agencies" and which allow the district courts to hear claims arising under these provisions. 42 U.S.C. § 2000e-16(a); 29 U.S.C. § 633a.²

The Government moved to dismiss Hedin's claims on the ground that the district court lacked subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The Government contended, and the district court agreed, that, as an officer in the CCPHS, Hedin had no remedies under federal antidiscrimination laws.

Some background explains the basis for the Government's motion and the district court's holding. Although the Supreme Court has never considered the question, every federal appellate court to do so has concluded that uniformed members of the military are not "employees ... in military departments," and so do not fall within the scope of 42 U.S.C. § 2000e-16; courts have thus created a "military exception" to Title VII. See, e.g., Randall v. United States, 95 F.3d 339, 343 (4th Cir.1996); Johnson v. Alexander, 572 F.2d 1219, 1223-24 (8th Cir.1978). Moreover, the regulations of the Equal Employment Opportunity Commission ("EEOC") promulgated pursuant to Title VII incorporate the military exception by providing that the federal sector equal employment opportunity program does not apply to "[u]niformed members of the military departments." 29 C.F.R. § 1614.103(d)(1) (2003). Hedin does not challenge the "military exception"; he simply contends that CCPHS officers not engaged in any military service do not fall within that exception.

Prior to 1998, courts differed on this question. Some held that CCPHS officers, even if not engaged in military service, should be treated as military officers for purposes of the judicially-created military exception. See Salazar v. Heckler, 787 F.2d 527 (10th Cir.1986). Others rejected that conclusion. See Milbert v. Koop, 830 F.2d 354 (D.C.Cir.1987); Carlson v. HHS, 879 F.Supp. 545 (D.Md.1995).

In 1998, however, Congress enacted the Health Professions Education Partnerships Act, Pub.L. No. 105-392, 112 Stat. 3524 (1998), which amended provisions of the Public Health Service Act ("PHSA"), §§ 200 et seq., 42 U.S.C. §§ 201 et seq. (2000). This amendment provides in pertinent part that "[a]ctive service of commissioned officers of the Service shall be deemed to be active military service in the Armed Forces of the United States for purposes of all laws related to discrimination on the basis of race, color, sex, ethnicity, age, religion, and disability." Pub.L. No. 105-392, § 402(a), 112 Stat. 3524, 3587-88 (1998), as codified at 42 U.S.C. § 213(f). Relying on this provision, the district court held that "the anti discrimination provisions of Title VII and ADEA" under which Hedin sought to recover did not apply to him and so granted the Government's motion to dismiss Hedin's complaint.

II.

On appeal, Hedin argues, as he did before the district court, that § 213(f) applies only to those CCPHS officers, who, unlike himself, are engaged in active military service, which he defines as service undertaken by CCPHS officers who are "detailed to or ... serving with the armed forces of the United States." Brief of Appellant at 10. Hedin maintains that, as a matter of statutory interpretation, the term "active service" in § 213(f) equates to "active military service."

We turn to the text of the statute to consider whether Hedin's non-military service as a CCPHS officer constitutes "active service" for purposes of § 213(f). A court "determine[s] whether the language at issue has a plain and unambiguous meaning" by looking to "the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 340-41, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). In this case, although the PHSA never expressly defines "active service," it is clear from the particular language of § 213(f) itself, the manner in which the term "active service" is used throughout the PHSA, and in the other subsections of § 213, that "active service" in § 213(f) does not equate to active military service, but includes all active service by CCPHS officers.

First, the language of § 213(f) itself requires this conclusion. Section 213(f) provides that "active service" of CCPHS officers "shall be deemed to be active military service in the Armed Forces." 42 U.S.C. § 213(f) (emphasis added). In mandating that one status is "deemed to be" another, Congress recognized that the two are not identical, and so expressly provided that one status was to be "considered" or "treated as if" the other. See Black's Law Dictionary 415 (6th ed.1990). There would be no need for Congress to provide in § 213(f) that "active service" in the CCPHS "be deemed" "active military service" if the former actually equated to the latter.

Moreover, with regard to the broader context of the statute as a whole, the PHSA uses the term "active service" throughout the portion of the statute governing administration of the Public Health Service to refer to general, non-military service in the CCPHS. See, e.g., 42 U.S.C. § 211(g)(3)(B)(ii)(2000) (indexing retirement pay to "the number of years of ... active commissioned service in the Service"); see also 42 U.S.C. §§ 209(d)(3)-(4), 211(j)(1)-(2), 212(a)(3), 212(a)(4)(A)-(B), 212(a)(5), 212(f) (2000). When the PHSA addresses a certain kind of "active service," including military-type service, it expressly modifies the term "active service" to indicate this limitation. See, e.g., 42 U.S.C. § 209(d)(3) (referring to "active service in the Reserve Corps") (emphasis added); § 211(j)(2) (referring to "active service in such grade or any higher grade in the Reserve Corps") (emphasis added); § 213(a) (referring to active service "in time of war," "on detail for duty" to the military, or "while the Service is part of the military forces of the United States") (emphases added).

That throughout the administration portion of the PHSA, unless specifically denominated to the contrary, the term "active service" means all (not just military) active service provides a compelling indication that the term "active service" as used in § 213(f) has a similarly broad meaning. Ratzlaf v. United States, 510 U.S. 135, 143, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) ("A term appearing in several places in a statutory text is generally read the same way each time it appears."); Sullivan v. Stroop, 496 U.S. 478, 484, 110 S.Ct. 2499, 110 L.Ed.2d 438 (1990) (reciting the well-established proposition that "identical words used in different parts of the same act are intended to have the same meaning") (internal quotation marks omitted).

Ignoring both the specific language of § 213(f) ("shall be deemed to be") and the general use of "active service" throughout the PHSA, Hedin focuses instead on the title of § 213 — "Military benefits" — and the way in which the term "active service" is used in other subsections of § 213. Specifically, Hedin contends that, consistent with its title, every subsection of § 213 provides military benefits, which Congress must therefore have intended would be extended only to CCHPS officers engaged in "active military service," i.e., "actively detailed and serving in the armed forces." Brief of Appellant at 15 (emphasis in original). Thus, according to Hedin, the term "active service" as used in each of § 213's subsections, including § 213(f), must mean "active military service" to give...