Miller v. Kerry

• Decision Date: 20 February 2013
• Docket Number: Civil Action No. 10–0512 (ESH).
• Citation: 924 F.Supp.2d 133
• Parties: John R. MILLER, Jr., Plaintiff, v. John KERRY, Defendant.
• Court: U.S. District Court — District of Columbia

924 F.Supp.2d 133

John R. MILLER, Jr., Plaintiff,

v.John KERRY,¹ Defendant.

Civil Action No. 10–0512 (ESH).

United States District Court,

District of Columbia.

Feb. 20, 2013.

Joseph T. Mallon, Jr., Marshall N. Perkins, Mallon & McCool, LLC, Baltimore, MD, for Plaintiff.

James C. Luh, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiff John R. Miller is a United States citizen who was employed by the Department of State as a safety inspector at the United States Embassy in Paris, France, when he was terminated by the Department of State because he turned 65 years of age. Plaintiff claims that his termination violated the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 633a. This Court previously granted defendant's motion to dismiss for failure to state a claim on the grounds that section 2(c) of the Basic Authorities Act, 22 U.S.C. § 2669(c), permitted defendant to exempt plaintiff from ADEA coverage. See Miller v. Clinton, 750 F.Supp.2d 11, 19–20 (D.D.C.2010). The Court of Appeals for the District of Columbia Circuit reversed, holding that “nothing in the Basic Authorities Act [ ] abrogates the ADEA's broad proscription against personnel actions that discriminate on the basis of age” and remanded for further proceedings. Miller v. Clinton, 687 F.3d 1332, 1335 (D.C.Cir.2012).

Plaintiff has now filed a Renewed Cross–Motion for Summary Judgment as to Liability, as well as what is styled Plaintiff John Miller's Motion for Reinstatement to His Paris Embassy Position. Defendant has filed a Renewed Motion to Dismiss Request for Relief for Lack of Subject Matter Jurisdiction and Failure to State a Claim, as well as an Opposition to Plaintiff's Motion for Reinstatement to his Paris Embassy Position, or, in the Alternative, Rule 56(d) Motion for Discovery. As explained herein, the Court will grant plaintiff's motion for summary judgment as to liability, grant defendant's motion to dismiss plaintiff's request for compensatory damages, deny without prejudice plaintiff's motion for reinstatement, and grant defendant's motion for discovery.

BACKGROUND

The material facts of this case are not disputed, and were described in detail in the Court's previous opinion.²See Miller, 750 F.Supp.2d at 12–14. The Court will therefore present an abbreviated version here. Plaintiff was hired as Locally Employed Staff under section 2(c) of the Basic Authorities Act to work at the United States Embassy in Paris, France. (Compl. ¶¶ 1, 19.) Based on its reading of section 408 of the Foreign Service Act, 22 U.S.C. § 3968, and section 2(c) of the Basic Authorities Act, the State Department incorporated a “Retirement” clause establishing 65 as the “mandatory age limit” into plaintiff's employment contract. (Def. First Mot. to Dismiss [ECF No. 7] at 5–7; Ex. A to Def. First Mot. to Dismiss at 1.) While plaintiff was working as an Embassy safety inspector under a one-year contract extension that was to expire in October 2007, he was notified that he would instead be terminated on July 23, 2007, since that was his 65th birthday. ( See Pl. Opp. to Def. First Mot. to Dismiss [ECF No. 11] at 5, 7.) Defendant asserted that the State Department's actions were consistent with section 2(c) of the Basic Authorities Act.

Plaintiff sought, but was denied, a one-year extension of his employment. ( See Compl. ¶ 1.) On July 30, 2007, he filed a complaint with the State Department, alleging that his termination based on age violated the federal employees provision of the ADEA, 29 U.S.C. § 633a(a), which states that “[a]ll personnel actions affecting employees ... who are at least 40 years of age (except personnel actions with regard to aliens employed outside the limits of the United States) ... in executive agencies ... shall be made free from any discrimination based on age.” (Compl. ¶ 21; Ex. A to Compl.) On January 7, 2008, while his discrimination claim was pending before the State Department, plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). (Compl. ¶¶ 21–22.) The EEOC dismissed plaintiff's complaint for failure to state a claim, and the State Department entered a final order implementing that decision, pursuant to 29 C.F.R. § 1614.110(a). ( See Compl. ¶ 22; Ex. B to Compl.)

Plaintiff then sued seeking, inter alia, compensatory damages, reinstatement, back pay, attorneys' fees, and declaratory and/or injunctive relief for defendant's alleged violation of the ADEA. ( See Compl. ¶ 27.) Defendant moved to dismiss for failure to state a claim, arguing that plaintiff was not protected by the ADEA. ( See Def. First Mot. to Dismiss at 1–2.) This Court granted defendant's motion and dismissed the case. The Court of Appeals reversed that decision and remanded for further proceedings. The parties have now filed four motions, which the Court will address seriatim.

ANALYSIS

I. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY

Following the Court of Appeals' decision in this case, defendant has “chosen not to further contest the issue of whether plaintiff's termination was prohibited by the federal employment provisions of the ADEA[.]” (Def. Resp. to Pl. Renewed Cross–Motion [ECF No. 35] at 1.) Although defendant disputes certain facts in plaintiff's Statement of Material Facts, the disputed facts are either mooted by the Court of Appeals' decision or relevant to the issue of remedy, not to the issue of liability. Indeed, defendant concedes that “the only issue remaining to be resolved is what relief, if any, is due to the plaintiff.” ( Id.) Plaintiff's motion for summary judgment as to liability will therefore be granted as conceded.

II. DEFENDANT'S RENEWED MOTION TO DISMISS REQUEST FOR RELIEF FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM

Plaintiff has demanded “economic damages (including lost wages, lost benefits, lost opportunity cost, and other financial injury), as well as non-economic damages such as physical injury and substantial anxiety, mental anguish, etc.” (Compl. ¶ 27.) Additionally, plaintiff seeks reinstatement to his Embassy position and indicates that if the Court does not grant his motion for reinstatement “with full restoration of benefits,” he will seek “[l]egal/equitable relief ... in the amount of $113,015 relating to [his] loss of French social security benefits from his wrongful, premature termination.” (Pl. Opp. to Def. Renewed Mot. to Dismiss [ECF No. 31] at 2.) Plaintiff also seeks recoverable attorneys' fees. ( See id. at 1; Compl. ¶ 27.) Defendant moves to dismiss plaintiff's request for compensatory damages, arguing that it is “barred by the sovereign immunity of the United States because the ADEA does not authorize awards of damages against the Federal Government.” ³ (Def. Renewed Mot. to Dismiss [ECF No. 29] at 1.)

A. 12(b)(1)

To survive a motion to dismiss under Rule 12(b)(1), plaintiff must demonstrate that the court has jurisdiction. See Khadr v. United States, 529 F.3d 1112, 1115 (D.C.Cir.2008). Since district courts are courts of limited jurisdiction, the inquiry into “subject matter jurisdiction is, of necessity, the first issue for an Article III court.” Loughlin v. United States, 393 F.3d 155, 170 (D.C.Cir.2004) (internal quotation and citation omitted). “When determining the question of jurisdiction, federal courts accept the factual allegations contained in the complaint as true.... Moreover, the Court can consider material outside of the pleadings when determining whether it has jurisdiction.” Halcomb v. Office of the Senate Sergeant–At–Arms, 563 F.Supp.2d 228, 235 (D.D.C.2008) (citations omitted). “The United States, as sovereign, ‘is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.’ ” Fornaro v. James, 416 F.3d 63, 66 (D.C.Cir.2005) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). Thus, it is appropriate for the Court to decide at this stage whether compensatory damages are barred by sovereign immunity because it is a jurisdictional issue and the Court's ruling will enable the parties to more efficiently define the scope of discovery that remains.

B. ADEA

The purpose of the ADEA is “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U.S.C. § 621(b). When it was first enacted, the ADEA applied only to private employers. See Lehman v. Nakshian, 453 U.S. 156, 166, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981). In its original form, “[t]he substantive [ ] antidiscrimination provisions of the ADEA [we]re modeled upon the prohibitions of Title VII, [while] [i]ts remedial provisions incorporate[d] by reference the provisions of the Fair Labor Standards Act of 1938.” McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 358, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995) (citations omitted).

In 1974, Congress expanded the ADEA's scope to include state and local governments, as well as federal employers. See Forman v. Small, 271 F.3d 285, 296 (D.C.Cir.2001). While Congress incorporated state and local government employers by adding them to the definition of “employer” under the ADEA, see29 U.S.C. § 630(b), it created an entirely new statutory section, see29 U.S.C. § 633(a), wherein it waived federal sovereign immunity with respect to claims against federal employers. See Forman, 271 F.3d at 296. This “distinct statutory scheme” was “based not on the FLSA but ... on Title VII.” Nakshian, 453 U.S. at 166–67, 101 S.Ct. 2698.See also Gomez–Perez v. Potter, 553 U.S. 474, 487, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008). As the Supreme Court has noted, § 633a is “self-contained and unaffected by other sections.” Nakshian, 453 U.S. at 168, 101...