Reed v. Reno
| Decision Date | 08 June 1998 |
| Docket Number | No. 97-5602,97-5602 |
| Citation | 146 F.3d 392 |
| Parties | 76 Fair Empl.Prac.Cas. (BNA) 1711, 73 Empl. Prac. Dec. P 45,421 Velda S. REED and Sharon L. McGuire, Plaintiffs-Appellants, v. Janet L. RENO, United States Attorney General; Charles Stewart, Administrator, Federal Medical Center, Federal Bureau of Prisons; and Kathy Hawk, Director of Bureau of Prisons, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
E. Douglas Richards (argued and briefed), Lexington, KY, for Plaintiffs-Appellants.
Thomas Lee Gentry, Assistant U.S. Attorney (argued and briefed), Office of the U.S. Attorney, Lexington, KY, for Defendants-Appellees.
Before: RYAN, DAUGHTREY, and LAY, * Circuit Judges.
The plaintiffs, Velda Reed and Sharon McGuire, brought an action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a, alleging that the Bureau of Prisons, a component of the Department of Justice, improperly refused to consider their applications for employment because of their ages. McGuire also brought an additional claim under the Veterans Preference Act. The plaintiffs now appeal the district court's grant of summary judgment in favor of the defendants, the Attorney General of the United States, the Administrator of Federal Medical Center (FMC) at Lexington, Kentucky, and the Director of the Bureau of Prisons.
The district court held that under 5 U.S.C. § 3307(e), the Department of Justice was authorized to set a maximum entry age limit for "law enforcement officers," and that the Department of Justice did not abuse its discretion in categorizing all employees working within federal prisons as "law enforcement officers." The district court further held that the federal government had not waived sovereign immunity under the Veterans Preference Act, thus depriving the court of jurisdiction over McGuire's alternative claim. We conclude that the district court ruled correctly and affirm.
Velda Reed had applied for an accounting technician position at FMC-Lexington, which serves as a medical and psychiatric referral center for the Federal Bureau of Prisons. FMC-Lexington rejected Reed's application, indicating that "the maximum entry age for a position in the Bureau of Prisons is 36." Reed was 40 years old at the time.
Sharon L. McGuire applied for a position as a medical laboratory technologist at FMC-Lexington. Like Reed, McGuire's application was rejected because she had passed the maximum initial entry age for a law enforcement officer position with the Bureau. At the time, McGuire was 46 years old.
The Bureau of Prisons classifies all jobs within the Bureau of Prisons as law enforcement positions. The accounting technician position, for which Reed was rejected, consists of working in the prison office with prison employees and inmates. The job requires occasional "pat searches." Other duties include doing desk work, watching inmates eat, supervising prisoner computer usage, and searching empty bedrooms. The medical technologist job, for which McGuire was rejected, consists of ordinary laboratory duties. In addition, all prison personnel are required to be available for such duties as area searches and escape and fog patrol, and, as a condition to being hired, to undergo firearms, self-defense, and emergency response training.
Both women exhausted administrative remedies and filed suit in federal district court, alleging age discrimination. In McGuire's case, the district court granted the defendants' motion for summary judgment, stayed discovery, and held the action in abeyance until this court ruled on similar issues in Reed's case, which was already on appeal. Following remand in the Reed case for additional discovery, the district court consolidated the two cases for pretrial purposes and thereafter consolidated the cases for all purposes. Following discovery and cross-motions for summary judgment, the district court entered summary judgment in favor the defendants on both the ADEA claims and the Veterans Preference Act claim.
The principal issue raised by Reed and McGuire is whether the positions they sought, that of accounting technician and of medical laboratory technologist, were properly classified as "law enforcement officer" positions, thereby exempting them from the provisions of the ADEA. They challenge Attorney General Edwin Meese's 1987 certification that all Bureau of Prison positions within federal detention facilities meet the definition of a "law enforcement officer," under the definition set forth under the Federal Employee's Retirement System (FERS) legislation enacted in 1986.
It is well-established that the maximum entry age for law enforcement officers is a valid exception to the ADEA. See Benford v. Frank, 943 F.2d 609, 613 (6th Cir.1991), and Patterson v. United States Postal Service, 901 F.2d 927, 929-30 (11th Cir.1990) (). The question then is whether the Department of Justice acted within its scope of authority granted by Congress when it classified all positions within the Bureau of Prisons as law enforcement officer positions.
When an agency is charged with the interpretation of a statute, this court must follow the dictates of Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Chevron court set out the following standard:
When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather if the statute is silent or ambiguous with respect to the specific issues, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
Id. at 842-43, 104 S.Ct. 2778.
The reviewing " 'court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.' " CenTra, Inc. v. United States, 953 F.2d 1051, 1055-56 (6th Cir.1992) (quoting Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. 2778). Our initial inquiry, therefore, is whether Congress's intent as to § 8407(17) is clear and unambiguous. A brief overview of the origination of that statutory definition is necessary in order to make that determination.
In 1974, Congress enacted Public Law 93-350, 88 Stat. 355, a major piece of legislation designed to enhance the "youth and vigor" of federal law enforcement personnel. 1 Together with provisions on mandatory retirement 2 and incentives for early retirement, 3 Public law 93-350 provided agencies employing law enforcement officers with authority to set maximum ages for appointment to law enforcement positions. See 5 U.S.C. § 3307(d). 4 Under 5 U.S.C. § 8331(20), the term "law enforcement officer" is defined to include Bureau of Prisons employees "whose duties in connection with individuals in detention suspected or convicted of offenses against the criminal laws of the United States ... require frequent (as determined by the appropriate administrative authority with the concurrence of the Office) direct contact with these individuals in their detention, direction, supervision, inspection, training, employment, care, transportation, or rehabilitation." Finally, 5 U.S.C. § 3307(d) provides that a maximum age rule must be concurred in by an agency designated by the President. Subsequent executive orders assigned this concurrence responsibility to the Civil Service Commission and its successor, the Office of Personnel Management (OPM).
Following passage of Public Law 93-350, the Department of Justice sought and obtained the concurrence of the Civil Service Commission in its determination that all Bureau of Prisons employees working within correctional facilities are "law enforcement officers" within the meaning of 5 U.S.C. § 8331(20). In 1975, Attorney General Edward H. Levi set the maximum age for appointment to law enforcement positions at 34. See DOJ Order 1338.1A, issued October 4, 1976. The maximum age for law enforcement positions has since been changed to 36. See DOJ Order 1338.1B, issued July 16, 1992.
In 1986, Congress created a new retirement scheme for federal employees, embodied in the Federal Employee's Retirement System (FERS) Act of 1986, 5 U.S.C. §§ 8401-79. This legislation completely reformed the retirement system for federal workers with the goal of reducing the cost of retirement to the federal budget. Under FERS the term "law enforcement officer" includes Bureau of Prisons employees "whose duties in connection with individuals in detention ... require frequent direct contact with these individuals in their detention and are sufficiently rigorous that employment opportunities should be limited to young and physically vigorous individuals, as determined by the head of the employing agency ..." § 8401(17)(D)(i). In 1988, Congress amended 5 U.S.C. § 3307(d) to add subsection (e) authorizing agency heads to set maximum entry level age restrictions for law enforcement officers, as defined in §...
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