Miller v. Clinton: Court Says State Dept Not/Not Exempt from Age Discrimination Law

We previously blogged about the Miller v. Clinton case in November 2010 (see Miller v. Clinton: Amcit FSN Takes State Dept to Court for Age Discrimination).

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.

The case eventually landed in the Court of Appeals and on August 7, 2012, in a 2-1 decision the lower court’s decision was reversed. The opinion for the Court is filed by Circuit Judge GARLAND; the dissenting opinion is filed by Circuit Judge KAVANAUGH

Excerpts:

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.

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).

In case you did not know this, the USG may discriminate against “aliens” employed outside the United States. More from the Miller opinion:

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 also 5 U.S.C. § 105 (“For purposes of this title, ‘Executive Agency’ means an Executive Department [or] a Government corporation.”).

Ah – but Miller is not an “alien” or an FSO who is subject to mandatory retirement:

[I]n several statutes Congress has clearly and affirmatively authorized the kind of mandatory retirement clause at issue here — but for specified classes of government employees that, again, do not include Miller. The statute that governs the Foreign Service Retirement and Disability System is one example. It states that “any participant shall be retired from the Service at the end of the month in which the participant has reached age 65.” 22 U.S.C. § 4052(a)(1). In Strawberry v. Albright, 111 F.3d 943 (D.C. Cir. 1997), a State Department employee who participated in a pension system governed by § 4052(a)(1) brought suit contending that the system’s mandatory retirement provision violated the ADEA. Not surprisingly, this court had little difficulty concluding that “the ADEA’s general prohibition of age discrimination does not prohibit enforcement of the mandatory retirement provision[]” for participants in the system, because § 4052(a)(1) specifically mandates retirement at age sixty-five and was passed after the ADEA was made applicable to federal employees. Id. at 947. Section 4052(a)(1) does not apply to Miller, however, because he was never a member of the Foreign Service or a participant in its retirement system.

One of the arguments employed by USG lawyers is to insist that “even if the statutory language is ambiguous, “the Secretary’s longstanding interpretation . . . is entitled to deference” under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). DOS Br. 18. Under Chevron’s familiar second step, “if the statute is silent or ambiguous with respect to the specific” point at issue, a court must uphold the agency’s interpretation as long as it is reasonable.”

The Court did not buy that and notes that “the State Department acknowledged that the Secretary has never promulgated a written interpretation of § 2669(c) that asserts the section authorizes her to find the ADEA inapplicable to a contract like Miller’s.” It also points out that “there is no evidence that the current Secretary or any of her predecessors ever knew of the interpretation being advanced in their names. Instead, the Department asks us to rely upon the contract itself, which, the Department says, reflects the agency’s consistent practice of at least twenty years.”

But here is the most interesting part of the opinion:

At oral argument, Department counsel suggested that, if U.S. employment discrimination laws were applicable to U.S. citizens hired abroad under § 2669(c), State Department supervisors might prefer to hire foreign workers who are not protected by those statutes. Oral Arg. Recording 25:00-26:15. Our dissenting colleague proffers a similar explanation of his own. Dissent at 7-9. This line of reasoning does not appear anywhere in the legislative history.28 Nor is that surprising. It requires the assumption that State Department supervisors would prefer to hire employees against whom they are free to discriminate — and that in the absence of a “level” playing field permitting them to discriminate against everyone, those supervisors would decline to hire U.S. citizens.

The Court is shocked 😯 and calls out the callousness and hypocrisy of the institution whose mission is to “Shape and sustain a peaceful, prosperous, just, and democratic world and foster conditions for stability and progress for the benefit of the American people and people everywhere.”

Indeed, while it would be surprising for Congress to assume such callousness on the part of State Department officials, it is more than merely surprising to hear the Department make the same assumption about its own people. And that is doubly so in light of the repeated declarations that it “provides equal opportunity and fair and equitable treatment in employment to all people without regard to race, color, religion, sex, national origin, age, disability, political affiliation, marital status, or sexual orientation.”
[…]
[W]e conclude that the legislative history’s vague references to “flexibility” and “competitive[ness]” are insufficient to indicate a congressional intent to permit the State Department to discriminate against U.S. citizens hired abroad.

And so the reversal:

The judgment of the district court, granting the State Department’s motion to dismiss Miller’s ADEA claim, is reversed, and the case is remanded for further proceedings consistent with this opinion.

Don’t say amen yet.  This is not the end of this, just wait …

Domani Spero

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Colton v. Clinton Goes to the Court of Appeals …. And Oh, Who Are We Going to See in Kabul Next, Wolf Blitzer?

Last year, the DC District Court Judge Richard J. Leon rejected FSO Elizabeth Colton’s ADEA claims against Secretary of State Clinton and upheld the Foreign Service Act’s mandatory retirement provision.

The Court’s decision included the following which bears repeating here:

“Colton’s allegation that the Secretary of State’s refusal to grant her an extension pursuant to § 4052(b) was a discriminatory act is unavailing. Although the mandatory retirement provision grants the Secretary the discretion to retain a person for up to five years past the mandatory retirement age if in the “public interest,” there is no requirement that the Secretary do so..”

Dr. Colton had rotated out of Karachi in the middle of the district’s great floods and was granted a one-year extension for an assignment at the U.S. Embassy in Cairo.   The Legal Times citing court records reported that on Aug. 4, the State Department told Colton via e-mail that her mandatory retirement had been postponed until Sept. 2011 and that she had been approved to serve as the information officer for the U.S. Embassy in Cairo. The local press reported her arrival in Egypt on September 2010 here.

Dr. Colton was asked to jumped out of the water in Pakistan and was sent to Egypt where she jumped into the fire. Need we mention that she was at post before, during, and after the Egyptian Revolution like all other core embassy employees younger than her?  We know because we continue receiving the embassy press updates all that time.

That extension should run out just about now.   But I understand that the case has now gone to the Court of Appeals where Dr. Colton was granted until November 21, 2011, to file her appellant’s brief.

When she gets thrown out the airlock at 66 when that one-year extension is done, I supposed it just shows that there is no such thing as in the “public interest” when it comes to midlevel public diplomacy professionals even with the State Department’s persistent staffing gaps in that cone, and despite the turmoil in the large swath of the Middle East.

As if to put emphasis on the notion of “public interest,” (or lack thereof), which of course, the Director General of the Foreign Service and the State Department gets to interpret, just when and how that is at play — we are happy to report that David Ensor, formerly of CNN and US Embassy Kabul and now of Voice of America has been replaced by former CNN/ABC correspondent Eileen O’Connor.

Yep, for the same position at the US Embassy in Kabul as Director of Communications and Public Diplomacy. See? Routine State Department job titles do not even cut the cake there.

Via the Potomac Flacks: “First reported in Politico’s “Playbook”, Eileen O’Connor has been named the new Communications Director and Director of Public Diplomacy at the U.S. Embassy in Kabul, Afghanistan, succeeding David Ensor.  O’Connor is currently Counsel in the law firm McDermott, Will and Emery.  She is a former CNN and ABC foreign correspondent, who over a 24-year career in journalism was based in London, Moscow, Tokyo and in Washington, DC.”

Over a decade ago when the State Department’s own State Magazine picked Dr. Colton as an interesting specimen among FSO newbies, the magazine writes:

Ms. Colton also worked as a journalist with firsthand experience abroad. She reported for Asia Week, a Reuters magazine, and was a London-based television producer for both NBC and ABC covering the Middle East and North Africa. In 1981, she won an Emmy for two ABC Nightly News pieces on Libya. Later she established Newsweek’s Middle East bureau in Cairo. The Waterford, Va., resident’s coverage of the Persian Gulf War prompted National Public Radio to offer her a job as its State Department correspondent.

Remember that group of Iraqi soldiers who surrendered to a journalist? You guessed it.

They gave up to NBC radio correspondent Liz Colton.

Read more about her in  Colton v. Clinton: Expeditionary Diplomat Booted Off Career Ladder, Too Old

Any how — we are supposed to understand that there is no “public interest” in the extension of this career diplomat’s tenure past the mandatory retirement age, no matter how excellent her service in the field of public diplomacy because she is too old?  Like I said before but let me say it again — that super sucks!

No matter that she is serving in one of the top deficit cones in the Foreign Service? Ditto.

No matter that she is serving in the midlevel ranks where there occur the most staffing gaps? Ditto.

Should we, therefore, conclude that while there is no/no “public interest” for the State Department to extend its “oldies but goldies” employees who clearly have the chops, the hiring of sorta big name journalists for its big time public affairs shop in the war zone is/is in the country’s “public interest?”

Like there isn’t anyone in all of the State Department’s career corps  qualified to run the US Embassy Kabul’s press shop? What have they done to all the qualified career professionals in public affairs, throw them all out the airlock because they’ve turn 65?

I’m curious just how much taxpayer money goes to this kind of “public interest.”

And who, pray tell are we going to see in Kabul next, Wolf Blitzer? Presumably, Ms. O’Connor will have a one-year tour at the US Embassy Kabul. So for 2012-2013, can we please, please vote who we should have there next?