Ralis v. RFE/RL, Inc.
| Decision Date | 16 August 1985 |
| Docket Number | No. 84-5216,84-5216 |
| Citation | 770 F.2d 1121 |
| Parties | 38 Fair Empl.Prac.Cas. 1073, 37 Empl. Prac. Dec. P 35,490, 248 U.S.App.D.C. 208, 54 USLW 2116 Max RALIS, Appellant, v. RFE/RL, INC. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Amy E. Wind, Washington, D.C., with whom Irving Kator and Joseph B. Scott, Washington, D.C., were on brief, for appellant.
N. Frank Wiggins, Washington, D.C., with whom Ian D. Volner and Lawrence N. Cohn, Washington, D.C., were on brief, for appellee.
Before BORK, SCALIA and STARR, Circuit Judges.
This appeal comes to us from the District Court's dismissal of a complaint brought under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-34 (1982), by a U.S. citizen working overseas. As it reaches us, the appeal raises, among other things, questions as to the ADEA's applicability to U.S. citizens who had worked for U.S. employers outside the United States prior to Congress's recent expansion of the ADEA's protective coverage to Americans employed abroad. For the reasons that follow, we affirm the District Court's judgment dismissing the action.
According to his complaint, Dr. Max Ralis is a U.S. citizen domiciled in Orleans, France. Beginning in 1956 and continuing for twenty-five years, Dr. Ralis was employed in various radio programming positions in Europe by RFE/RL, Inc., which is better known by the names of its corporate predecessors, Radio Free Europe and Radio Liberty. In 1981, Dr. Ralis was involuntarily retired from his supervisory position in a small branch office of RFE/RL, Inc., solely on grounds of his having reached the corporation's mandatory retirement age of 65. Following his forced retirement, Dr. Ralis filed a charge of age discrimination with the EEOC and duly exhausted his administrative remedies.
Stymied in his quest for administrative relief, Dr. Ralis thereafter filed suit in United States District Court for the District of Columbia. His three-page complaint alleged that his involuntary termination of employment ran afoul of the ADEA, thereby warranting his reinstatement with back pay. Complaint at 3. RFE/RL, Inc. promptly filed a 12(b)(6) motion to dismiss, contending that the ADEA had no applicability to employment, such as Dr. Ralis's, performed outside the United States. Seizing upon the ADEA's incorporation in 29 U.S.C. Sec. 626 (1982) of a jurisdiction-limiting provision of the Fair Labor Standards Act, 29 U.S.C. Sec. 213(f) (1982), the defendant maintained that the ADEA's reach, unlike other federal anti-discrimination statutes, stopped by its express terms at the jurisdictional boundaries of another sovereign nation. That jurisdictional section provided simply that the FLSA, and hence the ADEA which expressly incorporated the provision, "shall not apply with respect to any employee whose services during the workweek are performed within a foreign country." Relying upon a then-recent district court decision, Cleary v. United States Lines, Inc., 555 F.Supp. 1251 (D.N.J.1983) (), RFE/RL, Inc. argued that the plain terms of the ADEA restricted its reach to workplaces within the territorial limits of the United States. As an American expatriate working in Europe for a quarter century, Dr. Ralis could not, RFL/RL, Inc. maintained, bring himself within the statute's coverage.
In response, Dr. Ralis argued, among other things, that the ADEA's territorial limitation had no applicability to a "government controlled corporation." Employees of "executive agencies (including those of government corporations or government controlled corporations)" were, Dr. Ralis observed, indisputably within the ADEA's reach. RFE/RL, Inc., the argument ran, was a "government controlled corporation" by virtue of the "high degree of governmental involvement in [its] purposes, operations and management." Plaintiff's Opposition at 5. That "high degree of governmental involvement" was evidenced, plaintiff argued, by (1) the existence of the Board for International Broadcasting ("BIB"), a statutorily created entity which controlled RFE/RL, Inc.; (2) various indicia of federal government control over RFE/RL, Inc., through (a) budget and funding approval requirements, (b) BIB authority over appointment of certain radio personnel, (c) BIB's oversight authority of RFE/RL's, Inc.'s management practices and the consistency of the stations' programming with American foreign policy, (d) as of 1982, the merger of the BIB and the RFE/RL Board of Directors; and (3) Presidential and Senatorial control by virtue of their appointment and confirmation powers with respect to the BIB members who in turn sit as members of the RFE/RL, Inc. board.
Candidly admitting Congress's intent to maintain RFE/RL's autonomy as to broadcasting matters, Dr. Ralis maintained that RFE/RL's "historical independence to administer the day-to-day operation of the radios" spoke only to the entity's status as a private corporation, as opposed to any status as a government-owned firm. It was, he argued, not ownership but control which the Government exercised by both the structural characteristics of RFE/RL's relationship to the BIB and by the latter's authority to direct RFE/RL's destiny.
The District Court rejected Dr. Ralis's arguments, concluding in a careful opinion (1) that the ADEA by its clear terms did not apply to workplaces, such as plaintiff's, situated within a foreign country, and (2) that while the ADEA did apply to "executive agencies," including "government controlled corporations," RFE/RL was not a "government controlled corporation." In reaching the latter conclusion, Judge Penn paid especial attention to statements in the statute and the legislative history that RFE/RL was a non-governmental entity. In merging the BIB and RFE/RL's Board of Directors in 1982, the court noted, Congress had flatly provided that the corporate restructuring "shall not be construed to make RFE/RL, Incorporated, a federal agency or instrumentality." 22 U.S.C. Sec. 2880(b) (1982) (quoted in Memorandum Opinion at 4). Consistent with the statutory language itself, the Senate Report stated that the merger of the two boards left "intact the non-government status of the radio corporation," S.REP. NO. 71, 97th Cong., 2d Sess., at 32, U.S.CODE CONG. & ADMIN.NEWS 1982, pp. 651, 683, and expressed the Senate Foreign Relations Committee's expectation that "the BIB will continue to respect the journalistic integrity of RFE/RL." Id. From all this, the District Court concluded that "Congress has made a determination to establish funding without government control over its operations." Memorandum Opinion at 4. Absent "extensive, detailed, and virtually day-to-day supervision [by BIB] over RFE/RL," the District Court held that Congress's clear intent that RFE/RL be a separate, non-controlled corporate entity demanded judicial respect "especially since [this activity] falls within the area of foreign relations." Id. at 4-5.
During the pendency of the appeal which followed to this court, Congress amended the ADEA so as, among other things, to extend its reach to "citizen[s] of the United States employed by an employer in a workplace in a foreign country." 98 Stat. 1767, 1792 (1984). This modification was signed into law by the President on October 9, 1984. Shortly before oral argument, the parties filed supplemental submissions with respect to the effect of this modification. Dr. Ralis argued that, while the ADEA was applicable to his 1981 involuntary retirement under the statute as it previously stood (and thus that the Third Circuit's Cleary case was wrongly decided), any uncertainty in this respect had been swept away by the 1984 amendment. Invoking the Supreme Court's decision in Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), Dr. Ralis contended that this court was duty bound to apply the law as it presently exists.
'[A] court is to apply the law in effect at the time it renders its decision, unless doing so would result in a manifest injustice or there is statutory direction or legislative history to the contrary.'
Appellant's Supplemental Brief at 3 (quoting Bradley, supra, 416 U.S. at 711, 94 S.Ct. at 2016). Analyzing the facts at hand, Dr. Ralis discerned no "manifest injustice" nor contravention of statute or legislative history in the ADEA's reaching back, as it were, to 1981 to proscribe his being forced to retire. As to any "manifest injustice," Dr. Ralis pointed in particular to preexisting BIB regulations which expressly forbade RFE/RL from discriminating against employees on grounds of age. As Dr. Ralis put it:
[B]y virtue of its obligations under BIB regulations, RFE/RL, Inc. was already bound not to discriminate on the basis of age. Acknowledging that the ADEA applies to employees working abroad, such as Dr. Ralis, would not result in "any unfair change in [RFE/RL Inc.'s] substantive rights or obligations." Therefore, no exception to the general rule of retroactive application of subsequently-enacted law is warranted here.
Appellant's Supplemental Brief at 6 (citation omitted).
In contrast to Dr. Ralis's contention that this new statutory obligation should apply retroactively, RFE/RL argued that the faithful application of the Supreme Court's teaching in Bradley would lead to the determination that a statute imposing new obligations on a private entity, such as the 1984 ADEA amendment, should not be so applied. In adopting the 1984 amendment, RFE/RL maintained, Congress was attempting to close a statutory loophole recognized in Cleary, a loophole which RFE/RL candidly admitted was "extensively relied on by employers." Appellee's Supplemental Brief at 4.
Precisely because of this considerable reliance upon the state of the law prior to the 1984 amendment, it is manifestly unfair to impose retroactive liability for acts...
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