John Miller, Jr. v. Hillary Clinton , 687 F.3d 1332 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2011 Decided August 7, 2012
No. 10-5405
JOHN R. MILLER, JR.,
APPELLANT
v.
HILLARY RODHAM CLINTON, SECRETARY OF STATE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00512)
Marshall N. Perkins argued the cause and filed the briefs
for appellant.
Daniel J. Lenerz, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were Tony
West, Assistant Attorney General, Ronald C. Machen, Jr.,
United States Attorney, and Marleigh D. Dover, Attorney. R.
Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
Before: ROGERS, GARLAND, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
2
Dissenting opinion filed by Circuit Judge KAVANAUGH.
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.
I
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.
3
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).
After receiving the notice of termination, Miller requested
a one-year extension of employment through the State
Department’s Human Resources system. The request was
denied. Miller then unsuccessfully pursued administrative
remedies at the Equal Employment Opportunity Commission
(EEOC). Having properly exhausted his administrative
remedies, Miller filed suit in the U.S. District Court for the
4
District of Columbia, alleging that his termination for turning
sixty-five violated the ADEA, 29 U.S.C. § 633a.
The State Department moved to dismiss Miller’s complaint
for failure to state a claim, and Miller filed a cross-motion for
summary judgment of liability. 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. Miller v. Clinton, 750 F.
Supp. 2d 11, 15-20 (D.D.C. 2010). The district court denied
Miller’s cross-motion for summary judgment and denied all
remaining motions as moot. Id. at 20. This appeal followed.
II
This court reviews de novo the district court’s dismissal of
a complaint for failure to state a claim. Payne v. Salazar, 619
F.3d 56, 59 (D.C. Cir. 2010). In this case, our review of the
district court’s decision requires us to examine the relationship
between the ADEA, one of the signature pieces of legislation
prohibiting discrimination in the workplace, and section 2(c) of
the Basic Authorities Act, an omnibus statute concerned with
(inter alia) the organization and authorities of the Department of
State.
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
5
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.”).
The Supreme Court has recognized that the ADEA’s
sweeping mandate “broadly prohibits arbitrary discrimination in
the workplace based on age.” Lorillard v. Pons, 434 U.S. 575,
577 (1978). The Act’s protections for employees of the federal
government are, if anything, even more expansive than those for
workers employed in the private sector, see Ford v. Mabus, 629
F.3d 198, 205-06 (D.C. Cir. 2010); Forman v. Small, 271 F.3d
285, 296-97 (D.C. Cir. 2001), and § 633a’s flat prohibition of
“any discrimination based on age” means, among other things,
that federal employees cannot be subjected to mandatory
retirement at any age, Johnson v. Mayor of Baltimore, 472 U.S.
353, 356 n.1 (1985). There is, in short, “no permissible [age]
cap” for federal employment. Id.Because Miller is a U.S. citizen employed by a federal
agency who was forced to retire solely because he turned
sixty-five, § 633a would appear to begin and end the matter.
That is, of course, unless another act of Congress subsequently
exempted employees like Miller from the ADEA’s general
coverage. The State Department contends that section 2(c) of
the Basic Authorities Act, 22 U.S.C. § 2669(c) -- the relevant
clauses of which were added in 1985 and 1994 -- is such an act.1
1
The ADEA was first passed in 1967, and was amended to apply
to federal employees in 1974. See Fair Labor Standards Amendments
6
In Part III, we will examine those clauses in detail. For
now, we simply set out the text of § 2669(c) in the margin, and
note that if the section does in fact contain an exemption from
the ADEA, it is one that must be inferred from text of unusual
opacity.2 In the balance of this Part, we address the
considerations that will guide our examination of that text.
of 1974, Pub. L. No. 93-259, 88 Stat. 55 (1974). Congress did not add
the two clauses of § 2669(c) that are at issue in this case until 1985
and 1994. See Foreign Relations Authorization Act, Fiscal Years
1994 & 1995, Pub. L. No. 103-236, 108 Stat. 382 (1994); Foreign
Relations Authorization Act, Fiscal Years 1986 & 1987, Pub. L. No.
99-93, 99 Stat. 405 (1985).
2
The Secretary of State may use funds appropriated or
otherwise available to the Secretary to . . .
(c) employ individuals or organizations, by contract, for
services abroad, and individuals employed by contract to
perform such services shall not by virtue of such employment
be considered to be employees of the United States
Government for purposes of any law administered by the
Office of Personnel Management (except that the Secretary
may determine the applicability to such individuals of
subsection (f) of this section and of any other law
administered by the Secretary concerning the employment of
such individuals abroad); and such contracts are authorized to
be negotiated, the terms of the contracts to be prescribed, and
the work to be performed, where necessary, without regard to
such statutory provisions as relate to the negotiation, making,
and performance of contracts and performance of work in the
United States.
22 U.S.C. § 2669(c).
7
A
1. We begin by noting that the Defendant’s “subsequent
exceptions” argument faces something of an uphill climb. The
ADEA “grants an injured employee a right of action” in order to
“‘vindicat[e] the important congressional policy against
discriminatory employment practices.’” McKennon v. Nashville
Banner Publ’g Co., 513 U.S. 352, 358 (1995) (quoting
Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974)); see
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 27 (1991)
(noting that “the ADEA is designed not only to address
individual grievances, but also to further important social
policies”). Given the importance Congress ascribed to the
ADEA, it would be surprising if it had enacted subsequent
exemptions using ambiguous language.
Moreover, the consequences of the State Department’s
argument cannot be limited to the ADEA alone. As we discuss
below, see infra Part III.C.1, if we were to accept the
Department’s contention that § 2669(c) creates an exemption
from the ADEA, we would have to reach the same conclusion
regarding both Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., and the Americans with Disabilities Act
(ADA), 42 U.S.C. §§ 12101 et seq.3 We see no way to
distinguish the latter two statutes from the ADEA. See
3
The Rehabilitation Act protects federal employees from
discrimination on account of disability. 29 U.S.C. § 794(a). The Act
provides that “[t]he standards used to determine whether this section
has been violated in a complaint alleging employment discrimination
. . . shall be the standards applied under [provisions of] the Americans
with Disabilities Act.” Id. § 794(d). For convenience, this opinion
will refer to “the ADA” as a shorthand for the laws barring
discrimination on the basis of disability by both private employers and
the federal government.
8
McKennon, 513 U.S. at 358 (explaining that the “ADEA and
Title VII share common substantive features and also a common
purpose: the elimination of discrimination in the workplace”
(internal citation and quotation marks omitted)); id. at 357(noting that the “ADEA is but part of a wider statutory scheme
to protect employees in the workplace nationwide” (citing, inter
alia, Title VII and the ADA)); see also Oscar Mayer & Co. v.
Evans, 441 U.S. 750, 756 (1979). The Department neither offers
a distinction nor disputes this conclusion.
Although we would hesitate to read an ambiguous statutory
provision as exempting a class of U.S. citizens from the
coverage of the ADEA, we must hesitate even longer before
inferring that Congress meant to exempt them from the
protections of the entire edifice of its antidiscrimination canon.
Congress has made clear that it regards those protections as
extremely important.4 We simply do not believe it would have
authorized the State Department to ignore statutory proscriptions
against discrimination on the basis of age, disability, race,
religion, or sex through the use of ambiguous language. And
while the Department and our dissenting colleague assure us that
4
See 42 U.S.C. § 12101(a)(2)-(3), (8) (ADA) (“The Congress
finds that . . . discrimination against individuals with disabilities
continue[s] to be a serious and pervasive social problem . . . [that]
persists in such critical areas as employment,” and “the continuing
existence of unfair and unnecessary discrimination and prejudice
denies people with disabilities the opportunity to compete on an equal
basis and to pursue those opportunities for which our free society is
justifiably famous.”); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418 (1975) (noting that a purpose of Title VII was to “eliminate . . .
the last vestiges of an unfortunate and ignominious page in this
country’s history” (internal quotation marks omitted)); Alexander, 415
U.S. at 45 (noting that the private Title VII litigant “not only redresses
his own injury but also vindicates the important congressional policy
against discriminatory employment practices”).
9
the Constitution would continue to protect government
employees from the kinds of discrimination covered by Title
VII, see Dep’t of State (DOS) Br. 11 n.2; Dissent at 14 & n.7,5
by expressly extending the statutory protections of Title VII to
government employees Congress made clear that it did not
regard constitutional protections as sufficient. See Pub. L. No.
92-261, § 11, 86 Stat. 103, 111 (1972); H.R. Rep. No. 92-238,
at 2157, 2160 (1972); see also Brown v. Gen. Servs. Admin., 425
U.S. 820, 825 (1976). Moreover, no such assurance of
constitutional protection can be made with respect to age
discrimination barred by the ADEA or disability discrimination
barred by the ADA.6
2. Our confidence that Congress would not have used
ambiguous language had it intended to override the ADEA is
confirmed by considering the language that Congress did use
when it intended to carve out exceptions from that statute. As
these examples show, when Congress had such an intention, it
made that intention clear.
First, the ADEA itself contains express exemptions from its
coverage. See, e.g., 29 U.S.C. §§ 623(f)(1)-(3), 633a(a). As
5
The Department is unwilling to assure us, however, that a citizen
would have a remedy in the event of a constitutional violation. Oral
Arg. Recording at 16:10-16:55 (declining to say whether an overseas
employee would have a remedy for racial discrimination under Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971)).
6
See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000)
(holding that, because “age is not a suspect classification under the
Equal Protection Clause,” age classifications are only subject to
rational basis review); see also Bd. of Trs. of the Univ. of Ala. v.
Garrett, 531 U.S. 356, 367 (2001) (same regarding disability
discrimination).
10
noted above, these include an express exemption for personnel
actions involving aliens employed abroad by federal agencies --
an exemption that plainly does not apply to Miller, a U.S.
citizen. See id. § 633a(a). The ADEA also specifies the limited
circumstances under which it does not bind private employers
operating overseas -- circumstances that would be inapplicable
to Miller’s case even if he were employed in the private sector.
See 29 U.S.C. § 623(f) (providing that “[i]t shall not be unlawful
for an employer . . . (1) to take any action otherwise prohibited
. . . where such practices involve an employee in a workplace in
a foreign country, and compliance with such subsections would
cause such employer . . . to violate the laws of the country in
which such workplace is located”).
Second, in 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.
11
Another example is the statute applicable to the
employment of law enforcement officers by federal agencies.
That statute both establishes a mandatory retirement age, 5
U.S.C. § 8335(b), and authorizes agencies to fix a maximum age
for initial appointments, id. § 3307(d). In Stewart v. Smith, 673
F.2d 485 (D.C. Cir. 1982), plaintiffs challenged the Bureau of
Prisons’ policy of refusing to hire applicants over age thirty-four
as violating the federal employment provisions of the ADEA,
which were enacted approximately three months before passage
of the federal law enforcement employment statute. Once again,
we had little difficulty rejecting the challenge. It “is evident,”
we said, “that Congress meant to do what the statute’s terms
suggest, namely, to provide for maximum age requirements for
law enforcement officers.” Id. at 492.
Indeed, as the dissenting opinion notes, Congress has seen
fit to allow exceptions not only from the ADEA but from other
antidiscrimination statutes as well. Dissent at 13-14; see id. at
3. But what these provisions demonstrate is that Congress
knows how to limit the ADEA and other statutes when it wishes
to do so. When that is Congress’ purpose, it makes its intention
clear by using language that makes express exceptions from
those statutes or expressly permits the making of distinctions
those statutes would otherwise prohibit. That is true of all of the
statutory exceptions catalogued by the dissent. See id. at 3, 13-
14. Once again, this confirms the wisdom of being cautious
about finding that Congress intended a subsequent statute to
override the application of the antidiscrimination laws to a
particular class of employees when the only evidence of such
intent is ambiguous language.
B
The State Department’s principal position is that “[t]he
plain language of [§ 2669(c)] expressly permits the Secretary to
12
enter into employment contracts with individuals like Miller
without regard to statutory provisions such as the ADEA.” DOS
Br. 11. If the plain language were as express as the State
Department contends, the Department would of course prevail.
But the Department goes further, insisting 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. Id. at 843.7
The State Department does not contend that it is entitled to
Chevron deference for an interpretation of the ADEA, since that
statute “applies to all government agencies, and thus no one
executive branch entity is entrusted with its primary
interpretation.” Reporters Comm. for Freedom of the Press v.
U.S. Dep’t of Justice, 816 F.2d 730, 734 (D.C. Cir. 1987)
(regarding the Freedom of Information Act), rev’d on other
grounds, 489 U.S. 749 (1989). The Department does, however,
claim deference for its interpretation of the Basic Authorities
Act, a statute that it solely administers. Two caveats to
Chevron’s applicability, however, render its deference rule
unwarranted here.
First, not every kind of agency interpretation, even of a
statute the agency administers, warrants Chevron deference. See
United States v. Mead Corp., 533 U.S. 218, 227-31 (2001). We
do not, for example, defer to post hoc interpretations contained
7
Nonetheless, the Department made clear at oral argument that
“we don’t fundamentally think this is a case about deference. We
think it’s about the plain statutory language.” Oral Arg. Recording at
22:45-22:50.
13
in agency briefs.8 Instead, in accordance with the Supreme
Court’s decision in Mead, we accord Chevron deference only
when Congress has “delegated authority to the agency generally
to make rules carrying the force of law, and . . . the agency
interpretation claiming deference was promulgated in the
exercise of that authority.” Id. at 226-27; see Pub. Citizen, Inc.
v. U.S. Dep’t of Health & Human Servs., 332 F.3d 654, 659-60
(D.C. Cir. 2003). The Department does not cite any such rules
or regulations here. Whether or not more informal documents
like the Department’s Foreign Affairs Handbook and Foreign
Affairs Manual would qualify for Chevron treatment,9 there is
no mention of mandatory retirement (or an exemption from the
ADEA) in the provisions of those documents that the
Department cites.10
8
See Vill. of Barrington v. Surface Transp. Bd., 636 F.3d 650, 660
(D.C. Cir. 2011) (citing Bowen v. Georgetown Univ. Hosp., 488 U.S.
204, 212 (1988)); Town of Stratford v. FAA, 292 F.3d 251, 253 (D.C.
Cir. 2002); Landmark Legal Found. v. IRS, 267 F.3d 1132, 1135-36
(D.C. Cir. 2001); Fogg v. Ashcroft, 254 F.3d 103, 109 (D.C. Cir.
2001); St. Agnes Hosp. v. Sullivan, 905 F.2d 1563, 1568 (D.C. Cir.
1990); see also Martin v. OSHRC, 499 U.S. 144, 156 (1991) (“Our
decisions indicate that agency ‘litigating positions’ are not entitled to
deference when they are merely appellate counsel’s ‘post hoc
rationalizations’ for agency action, advanced for the first time in the
reviewing court.”).
9
See Pub. Citizen, 332 F.3d at 660 (noting that courts have found
some agency manuals unworthy of Chevron deference); Scales v. INS,
232 F.3d 1159, 1166 (9th Cir. 2000) (declining to accord Chevron
deference to the Foreign Affairs Manual); cf. Mead, 533 U.S. at 234(suggesting that “agency manuals” are “beyond the Chevron pale”).
10
One of the cited provisions deals with compensation practices,
not with mandatory retirement. See 3 Foreign Affairs Handbook 2
§ H-214(C) (“The terms of personal services contracts (PSC’s) will
conform to the conditions of employment for direct-hire [Foreign
14
At oral argument, 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. Oral Arg.
Recording at 21:10-21:20. Indeed, 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. Id. at 21:20-21:35. But the (apparently
standard) personal services agreement (PSA) that Miller signed
says nothing at all about mandatory retirement. See J.A. 23. It
merely states that “[a]ll provisions of the local compensation
plan . . . shall apply to payments to the employee.” Id. The
local compensation plan (LCP) for France does state: “Age 65
Service National] employees insofar as possible. Compensation, that
is, pay and benefits provided to PSC personnel, will be . . . paid in
accordance with the compensation provisions . . . of the local
compensation plan.” (emphasis added)). Another provision states that,
“when required in local benefit plans,” local compensation plans may
include distinctions based on age “for retirement eligibility in
prevailing practice.” Id. § H-214(B)(4) (emphasis added). But a
provision that forces retirement at age sixty-five is not on its face a
provision regarding retirement eligibility. The State Department also
points to 3 Foreign Affairs Manual § 7113.3, which declares that “[i]t
is the policy of the U.S. Government that all agencies . . . employ
locally employed (LE) staff consistent with host country law insofar
as U.S. law is not violated and adoption of local law is consistent with
the U.S. public interest.” But the Secretary has not identified any
provision of French law that affirmatively requires retirement at age
sixty-five, while forced retirement of federal employees at any age
does violate the ADEA. Finally, we note that, even if these provisions
could be characterized as authorizing a mandatory retirement age, they
do not explain why that is a proper interpretation of § 2669(c), and
hence fail the second Chevron caveat discussed below.
15
is the mandatory age limit for all employees under the LCP.”
J.A. 26. But the authorship and formality of both the LCP and
the PSA are so uncertain that we are doubtful either would
qualify for Chevron deference. See Pub. Citizen, 332 F.3d at
660-61 (“No court has read Mead as extending Chevron
deference to a contract entered into between an agency and a
private party, and we are loathe to permit agencies to bootstrap
documents that otherwise would not warrant Chevron deference
into a more exalted status merely by mentioning them in such a
contract.”).
More important, even if the LCP or the PSA were the kind
of documents that warrant Chevron deference, they fail a second
Chevron caveat: “[A]lthough we will defer to a reasonable
[interpretation] by [an agency], we cannot defer to one that is
unexplained.” TNA Merchant Projects, Inc. v. FERC, 616 F.3d
588, 593 (D.C. Cir. 2010); see Se. Ala. Med. Ctr. v. Sebelius,
572 F.3d 912, 920 (D.C. Cir. 2009). When an agency fails to
provide an explanation for its interpretation of a statutory
provision, we will not grant it deference because we “‘cannot
evaluate whether the [agency’s] interpretation of the statute is
reasonable within the meaning of Chevron.’” Se. Ala. Med. Ctr.,
572 F.3d at 920 (quoting Kidney Ctr. of Hollywood v. Shalala,
133 F.3d 78, 88 (D.C. Cir. 1998)). As just noted, the PSA does
not mention mandatory retirement at all. Although the LCP
does declare that sixty-five is the mandatory retirement age for
those employed under the LCP, “there is no place in the
[document] where the agency explains why it believes” a
mandatory retirement age is permissible under § 2669(c). Pub.
Citizen, 332 F.3d at 661. Indeed, the LCP does not cite
§ 2669(c) -- or any statute -- for that proposition. See J.A. 26.
“Because the [document] thus contains no reasoning that we can
evaluate for its reasonableness, the high level of deference
contemplated in Chevron’s second step is simply inapplicable.”
Pub. Citizen, 332 F.3d at 661.
16
With Chevron inapplicable, we proceed to determine the
meaning of the Basic Authorities Act the old-fashioned way:
“we must decide for ourselves the best reading.” Landmark
Legal Found. v. IRS, 267 F.3d 1132, 1136 (D.C. Cir. 2001).11
III
The State Department rests its claim to an exemption from
the ADEA on the text of the statute under which Miller was
hired, 22 U.S.C. § 2669(c). With the addition of bolded and
bracketed arabic numerals, which we have inserted to mark three
clauses for the clarity of the ensuing discussion, that section
provides:
The Secretary of State may use funds appropriated or
otherwise available to the Secretary to . . .
(c) employ individuals or organizations, by contract,
for services abroad, [1] and individuals employed by
contract to perform such services shall not by virtue of
such employment be considered to be employees of the
United States Government for purposes of any law
administered by the Office of Personnel Management
[2] (except that the Secretary may determine the
applicability to such individuals of subsection (f) of
this section and of any other law administered by the
Secretary concerning the employment of such
individuals abroad); [3] and such contracts are
authorized to be negotiated, the terms of the contracts
to be prescribed, and the work to be performed, where
11
We do, of course, give the Department’s views “the weight
derived from their ‘power to persuade.’” Landmark, 267 F.3d at 1136(quoting, inter alia, Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)).
17
necessary, without regard to such statutory provisions
as relate to the negotiation, making, and performance
of contracts and performance of work in the United
States.
22 U.S.C. § 2669(c). We examine each of the marked clauses
seriatim, in order to determine whether any of them grants the
State Department the exemption it claims.
A
The portion of § 2669(c) that we have marked as clause 1
states:
and individuals employed by contract to perform such
services [i.e., services abroad] shall not by virtue of
such employment be considered to be employees of the
United States Government for purposes of any law
administered by the Office of Personnel Management
22 U.S.C. § 2669(c). Our examination of this clause can be
brief: as the government concedes, see DOS Br. 13 & n.3, the
clause cannot support the Department’s claim for an ADEA
exemption because the ADEA is not a “law administered by the
Office of Personnel Management” (OPM). Rather, it is (if
anything) a law administered by the Equal Employment
Opportunity Commission. See 29 U.S.C. §§ 628, 633a(b).
Accordingly, this clause does not exclude § 2669(c) employees
from the category of “employees of the United States
Government” for purposes of the ADEA. Indeed, the expressio
unius maxim suggests that the clause (considered in isolation)
confirms that § 2669(c) employees are employees of the federal
18
government for purposes of any law not administered by OPM
-- a class of laws that includes the ADEA.12
B
The second clause of § 2669(c) is contained in a
parenthetical that reads:
(except that the Secretary may determine the
applicability to such individuals of subsection (f) of
this section and of any other law administered by the
Secretary concerning the employment of such
individuals abroad)
22 U.S.C. § 2669(c). In the State Department’s view, the
language of this parenthetical gives it the authority to subject
Miller and other § 2669(c) employees to forced retirement at age
sixty-five. DOS Br. 20-24.
On its face, the clause contains no such grant of authority.
The reference to “subsection (f) of this section” is irrelevant to
this case: that subsection authorizes the Secretary to use
appropriated funds to “pay tort claims . . . when such claims
arise in foreign countries in connection with Department of State
operations abroad.” 22 U.S.C. § 2669(f). Nor does the balance
of the clause -- “and of any other law administered by the
Secretary concerning the employment of such individuals
abroad,” id. § 2669(c) -- empower the Secretary to determine the
applicability of the ADEA to Miller. As we have noted above,
12
See In re Sealed Case No. 97-3112, 181 F.3d 128, 132 (D.C.
Cir. 1999) (applying the “legal maxim expressio unius est exclusio
alterius (‘the mention of one thing implies the exclusion of another’),”
while noting that it “is not always correct”).
19
see supra Part II.B, the ADEA is not a “law administered by the
Secretary,” 22 U.S.C. § 2669(c).
Lacking any straightforward textual hook in the second
clause of § 2669(c), the State Department makes a more round-
about argument. In its view, the language authorizing the
Secretary to “determine the applicability to such individuals of
. . . any other law administered by the Secretary concerning the
employment of such individuals abroad,” id., allows the
Department to cross-apply another statute, section 408 of the
Foreign Service Act, 22 U.S.C. § 3968, to employees like
Miller. That statute, the Department maintains, authorizes it to
use local compensation plans that include mandatory retirement
provisions based on age.13 We reject this argument for two
independent reasons.
13
Section 408 provides, in relevant part:
The Secretary shall establish compensation (including
position classification) plans for foreign national employees
of the Service and United States citizens employed under
section 3951(c)(1) of this title. To the extent consistent with
the public interest, each compensation plan shall be based
upon prevailing wage rates and compensation practices
(including participation in local social security plans) for
corresponding types of positions in the locality of
employment . . . . For United States citizens under a
compensation plan, the Secretary shall define those
allowances and benefits provided under United States law
which shall be included as part of the total compensation
package, notwithstanding any other provision of law, except
that this section shall not be used to override United States
minimum wage requirements, or any provision of the Social
Security Act [42 U.S.C.A. §§ 301 et seq.] or Title 26.
22 U.S.C. § 3968(a)(1).
20
First, the State Department’s argument elides significant
statutory language in § 2669(c). The second clause does not
unqualifiedly authorize the Secretary to determine the
applicability of “any other law administered by the Secretary,”
but rather of “any other law administered by the Secretary
concerning the employment of such individuals abroad.” 22
U.S.C. § 2669(c) (emphasis added). Read in context, the “such
individuals” referenced in the italicized phrase must be the same
“individuals” mentioned at the beginning of § 2669(c): namely,
“individuals employed by contract to perform” services abroad
under the authority of § 2669(c). Id. Indeed, because there are
no other “individuals” mentioned in the section, there is no other
antecedent to which the word “such” could refer.14
Section 408, however, is not a law concerning individuals
who -- like Miller -- are “employed by contract to perform”
services abroad under § 2669(c). Instead, section 408 authorizes
the Secretary to establish compensation plans for individuals
“employed under section 3951(c)(1).” 22 U.S.C. § 3968(a)(1).
In turn, that referenced section, § 3951(c)(1), together with
another, § 3951(a), authorizes the appointment under yet another
section -- that is, “under section 3943” -- of certain U.S. citizens
“for employment in positions customarily filled by Foreign
Service officers.” Id. § 3951(a); see id. § 3951(c)(1).
Altogether, then, section 408 authorizes the Secretary to
establish compensation plans for U.S. citizens employed, under
a combination of sections 3951 and 3943, in positions
customarily filled by Foreign Service officers. But the
government does not contend that Miller was employed in a
position customarily filled by a Foreign Service officer. It also
14
See United States v. Bowen, 100 U.S. 508, 512 (1879)
(construing the phrase “such pensioners” as backward-looking in a
statute where there was “no other class of pensioners described in that
section to whom the word such can refer”).
21
agrees that he was not appointed “under section 3951(c)(1),”
“under section 3943,” or under any combination thereof.
Rather, as his employment agreement states, the “[s]tatutory
authority for [Miller’s] agreement is 22 U.S.C. 2669(c).” J.A.
23.15 Indeed, even the Secretary acknowledges that section 408
does not apply to Miller “by its own terms.” DOS Br. 22-23.
Accordingly, because § 2669(c) only authorizes the Secretary to
determine the applicability to employees like Miller of laws
concerning employment by contract for services abroad, and
because section 408 is not such a law, § 2669(c) does not
authorize the Secretary to apply section 408 to Miller.16
Second, even if section 408 were applicable to employees
like Miller, it is doubtful that it would permit the State
Department to impose a mandatory retirement age on such
employees. Section 408 does not mention retirement at all. It
does authorize the Secretary to “establish compensation . . .
plans,” based (inter alia) on “compensation practices” for
corresponding types of positions in the locality of employment.
22 U.S.C. § 3968(a)(1). But mandatory retirement is not a
“compensation” plan or practice, particularly given that the
elements of compensation expressly mentioned in section 408
15
See also Rule 28(j) Letter from DOS Counsel at 2 (filed Oct. 17,
2011) (“Mr. Miller is neither a foreign service nor a civil service
employee of the Department of State. Rather, Mr. Miller was hired by
contract under Section (c) [of § 2669] and is thus referred to by the
Department as a ‘personal services contractor.’”).
16
Compare 22 U.S.C. § 3968(a)(1) (section 408), with 22 U.S.C.
§ 4343(b) (authorizing the Secretary to promulgate regulations
concerning the disposition of personal property by “contractors [who]
enjoy importation or tax privileges in a foreign country”). See
generally id. § 4341 (defining the term “contractor” for purposes of §
4343(b) to mean, inter alia, “an individual employed by personal
services contract pursuant to section 2669(c) of this title”).
22
are such things as “wage rates,” participation in “local social
security plans,” and “leaves of absence with pay.” Id.17 Section
408 further provides that, for local compensation plans, “the
Secretary shall define those allowances and benefits provided
under United States law which shall be included as part of the
total compensation package.” Id. (emphasis added). But it is
difficult to characterize forced retirement as an “allowance” or
“benefit.”
In sum, the State Department’s winding tour through the
U.S. Code fails to convince us that the second clause of section
2(c) of the Basic Authorities Act, 22 U.S.C. § 2669(c), gives it
the authority to fire Miller solely because he turned sixty-five.
Neither that clause; nor section 408 of the Foreign Service Act,
which the Department says the clause refers to; nor the further
sections of the Foreign Service Act that section 408 itself
references; speak with the kind of clarity one would expect if
Congress had intended to remove the protections of landmark
legislation like the ADEA from a class of U.S. citizens.
C
The third and final clause of § 2669(c) provides:
and such contracts are authorized to be negotiated, the
terms of the contracts to be prescribed, and the work to
be performed, where necessary, without regard to such
statutory provisions as relate to the negotiation,
making, and performance of contracts and performance
of work in the United States.
17
See also 3 Foreign Affairs Handbook 2 § H-214(C)
(characterizing “compensation” terms in personal services contracts
as terms that deal with “pay and benefits”).
23
22 U.S.C. § 2669(c). The State Department maintains that
“[t]he plain language” of this provision “expressly permits the
Secretary to enter into employment contracts with individuals
like Miller without regard to statutory provisions such as the
ADEA,” because the ADEA is “clearly a statutory provision that
‘relate[s] to the negotiation, making, and performance of
contracts and performance of work in the United States.’” DOS
Br. 11 (emphasis added). Our dissenting colleague sees similar
clarity. See Dissent at 1, 5, 15-16. But the matter is not nearly
so “plain,” “express,” or “clear” as both insist.
1. The text of § 2669(c)’s third clause does not contain the
kind of language one would expect Congress to use if its
intention were to abrogate an antidiscrimination provision like
the ADEA. The clause does not mention the ADEA. Nor, in
contrast to the statutory provisions this court examined in
Strawberry and Stewart, does it refer to age considerations or
age-based retirement. See supra Part II.A.2. Indeed, the third
clause does not speak in the language of antidiscrimination
statutes at all. To be sure, statutes like the ADEA are part of the
backdrop of employer-employee relations in the United States.
But rather than generally setting standards for “the negotiation,
making, and performance of contracts,” 22 U.S.C. § 2669(c), the
ADEA provides that “[a]ll personnel actions affecting
employees or applicants for employment . . . shall be made free
from any discrimination based on age,” 29 U.S.C. § 633a(a).
Moreover, the ADEA does not deal with the “performance of
work” by protected employees; rather, it prohibits employers
from discriminating against employees for a reason -- age -- that
is unrelated to the actual performance of their work.18
18
This accounts for the ADEA provisions and antidiscrimination
case law that the dissent cites as “speak[ing] in terms of performance
of work,” Dissent at 5 n.5. See, e.g., 29 U.S.C. § 621(a)(2)
(expressing Congress’ concern that “the setting of arbitrary age limits
24
This is not to say that it would be impossible to think of a
law that bans age discrimination in personnel actions as one that
broadly “relate[s] to the negotiation, making, and performance
of contracts and performance of work in the United States.” But
if the ADEA is such a law, so too is Title VII of the Civil Rights
Act of 1964, which in parallel language provides that “[a]ll
personnel actions affecting employees or applicants for
employment” by the federal government “shall be made free
from any discrimination based on race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-16(a); see McKennon, 513
U.S. at 357 (noting that the “substantive, antidiscrimination
provisions of the ADEA are modeled upon the prohibitions of
Title VII”). So too is the ADA, which bars discrimination “on
the basis of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, . . . and other
terms, conditions, and privileges of employment.” 42 U.S.C.
§ 12112(a). The State Department does not dispute the point.
See Oral Arg. Recording at 23:30-23:40 (statement by State
Department counsel that “the term ‘performance of work’ relates
to statutes such as . . . Title VII”). Yet, although we may be
naive, it is hard for us to imagine that Congress would have
hidden such a dramatic exemption from its landmark
antidiscrimination laws in the anodyne language of § 2669(c)’s
third clause.
regardless of potential for job performance has become a common
practice” that “may work to the disadvantage of older persons”
(emphasis added)); Hazen Paper Co. v. Biggins, 507 U.S. 604, 611
(1993) (noting that because Congress found that “as an overall matter,
the performance of work of older workers was at least as good as that
of younger workers,” the ADEA “commands that employers are to
evaluate older employees on their merits and not their age” (internal
citations and quotation marks omitted)).
25
Moreover, if the ADEA is a law that “relate[s] to the
negotiation, making, and performance of contracts and
performance of work,” so too are the laws “administered by the
Office of Personnel Management” referenced in the first clause
of § 2669(c). See supra Part III.A.19 But that would leave the
first clause’s exemption of § 2669(c) employees from the
coverage of OPM-administered statutes without any independent
effect. Such an interpretation would violate “[a] cardinal
principle of interpretation [that] requires us to construe a statute
so that no provision is rendered inoperative or superfluous, void
or insignificant.” Laurel Baye Healthcare of Lake Lanier, Inc.
v. NLRB, 564 F.3d 469, 472 (D.C. Cir. 2009) (internal quotation
marks omitted); see Hibbs v. Winn, 542 U.S. 88, 101 (2004).
2. There is, however, a narrower reading of § 2669(c)’s
third clause that does not require us to conclude that Congress
intended, by opaque language, to authorize the State Department
to act “without regard to . . . statutory provisions” that protect
U.S. citizens against discrimination based on their age,
disability, race, religion, or sex. Likewise, this reading
preserves an independent meaning for the section’s first clause.
Most important, it is the more natural reading of the statutory
language.
The more natural reading is to regard “provisions relating
to the negotiation, making and performance of contracts and
performance of work” as referring to the complex of statutes and
regulations that establish government-wide requirements for
federal contracting and procurement. This reading is confirmed
19
OPM is charged, inter alia, with “executing, administering, and
enforcing -- (A) the civil service rules and regulations of the President
and the Office and the laws governing the civil service; and (B) the
other activities of the Office including retirement and classification
activities.” 5 U.S.C. § 1103(a)(5).
26
by the manner in which Congress previously used the same
language that is now enshrined in the text of 2669(c)’s third
clause. As even the most casual comparison discloses, that
language is copied directly from the text of an earlier statute, the
Foreign Service Buildings Act of 1926, 22 U.S.C. § 294, which
provides:
The contracts for purchases of buildings, for leases,
and for all work of construction, alteration, and repair
under this chapter are authorized to be negotiated, the
terms of the contracts to be prescribed, and the work to
be performed, where necessary, without regard to such
statutory provisions as relate to the negotiation,
making, and performance of contracts and
performance of work in the United States . . . .
22 U.S.C. § 294 (emphasis added). The language we have
italicized constitutes all but two of the words contained in the
third clause of § 2669(c). (The additional words are “and” and
“such.”) It has never been regarded as authorizing an exception
from the protections of statutes that bar discrimination based on
age, disability, race, religion, or sex. Rather, the language of the
Foreign Service Buildings Act has been viewed as authorizing
an exemption from the Federal Acquisition Regulation (FAR)
and its web of regulatory and associated statutory provisions
governing the acquisition by federal agencies of supplies and
services. See 48 C.F.R. §§ 1.000 et seq.
Provisions of the FAR deal in detail with the negotiation,
making, and performance of contracts, and with the performance
of work.20 Part 37 specifically addresses services contracts. See
20
See, e.g., 48 C.F.R. Part 15 (“Contracting by Negotiation”); id.Part 52 (model contract terms); see also, e.g., id. §§ 15.000-15.609,
16.103, 36.214, 36.606 (relating to negotiation); id. §§ 13.000-13.501,
27
48 C.F.R. Part 37. The FAR itself is statutorily mandated, its
promulgation having been expressly required by 41 U.S.C.
§ 1303(a)(1). That section directs that the Administrator of
General Services, together with the Secretary of Defense and the
Administrator of NASA, “shall jointly issue and maintain . . . a
single Government-wide procurement regulation, to be known
as the ‘Federal Acquisition Regulation.’” 41 U.S.C.
§ 1303(a)(1). Other statutory provisions prescribe parts of the
FAR’s contents,21 and still others compel agency compliance
with the FAR.22 Indeed, Title 41 of the United States Code is
composed of hundreds of statutory provisions regulating public
contracting for both supplies and services, including sections
regarding contract procurement, terms, awards, and disputes23 --
many of which mirror provisions of the FAR.24
14.000-14.503, 19.000-19.1506, 31.000-31.703, 50.102-50.103
(relating to making of contracts); id. §§ 5.102, 7.503, 9.104-1, 15.305,
25.801 (relating to performance of contracts); id. §§ 19.1308-09,
36.501, 52.223-6, 52.236-8, 52.249-2 (relating to performance of
work). See generally id. § 2.101 (defining “acquisition” for purposes
of the FAR as “the acquiring by contract . . . of supplies or services[,]
. . . “begin[ning] at the point when agency needs are established,” and
extending through “award of contracts” and “contract performance”).
21
See, e.g., 41 U.S.C. §§ 1502(f), 1901, 2310(b), 3302(c),
4305(a), 4710(b), 4711(b).
22
See, e.g., id. § 1121(c) (requiring executive agencies to follow
the FAR in the procurement of property and services); id. § 3101(a)
(same).
23
See 41 U.S.C. §§ 3101-3509 (procurement); id. §§ 6502, 6703,
8303, 8703 (terms); id. §§ 3701-08 (awards); id. §§ 7101-09
(disputes).
24
Compare 41 U.S.C. § 3305, with 48 C.F.R. Part 13 (establishing
simplified acquisition procedures); 41 U.S.C. §§ 4501-06, with 48
28
Given the nature of the contracting requirements contained
in the FAR and associated statutes, it is unsurprising that they
have been identified as the subject of the exception authorized
by the Buildings Act. The FAR itself interprets “section 3 of the
Foreign Service Buildings Act of 1926, as amended (22 U.S.C.
294)” as providing that “[c]ontracts for overseas construction
. . . may be excepted where necessary from the provisions of the
FAR.” 48 C.F.R. § 636.101-70. The State Department has also
viewed the Buildings Act as creating an exemption from the
FAR and its associated statutes for embassy procurements. See
In re Flexsteel Indus., Inc., B-221192, at 2 (Comp. Gen. Apr. 7,
1986). Similarly, the U.S. Court of Federal Claims has cited the
Buildings Act for the proposition that the FAR’s “general
requirement of a performance bond in construction contracts
with the U.S. Government may be waived for construction
contracts involving U.S. diplomatic missions abroad.” Egyptian
Am. Bank, S.A.E. v. United States, 13 Cl. Ct. 337, 343 (1987).
When Congress uses an identical string of forty-five words
in two statutes, each of which authorizes the State Department
to enter into contracts, it is reasonable to assume that the
legislature intended both strings to have the same operative
meaning. Cf. Brown v. Gardner, 513 U.S. 115, 118 (1994)
(examining the use of the same term “in analogous statutes” to
determine its meaning); Metro. Life Ins. Co. v. Taylor, 481 U.S.
58, 65 (1987) (noting “[t]he presumption that similar language
in two labor law statutes has a similar meaning”). Here, then, it
is appropriate to read the language of the third clause of
§ 2669(c), like the language of section 3 of the Foreign Service
Buildings Act, as a shorthand for authorizing the Secretary to
C.F.R. Part 32 (prescribing contract financing rules); 41 U.S.C.
§§ 6701-07, with 48 C.F.R. Part 37 (discussing services contracts);
compare also 41 U.S.C. § 131, with 48 C.F.R. § 2.101(b) (defining
“acquisition” for statutory and regulatory purposes).
29
disregard the standard contracting requirements of the FAR and
its associated statutes, including the requirements governing
personal services contracts, see 48 C.F.R. §§ 37.104 et seq. This
reading is buttressed by the State Department’s own Foreign
Affairs Manual, which cites § 2669(c) for the proposition that
the Department may “[e]mploy individuals, for services abroad,
under a contract which is not subject to Federal Acquisition
Regulations.” 3 Foreign Affairs Manual § 7113.1(a)(6)
(emphasis added). Nowhere does the Manual invoke § 2669(c)
for the broader proposition, claimed here, that the Department
may hire and fire U.S. citizens abroad without regard to the
basic mandates of federal antidiscrimination laws.
Nor is this narrower reading any less persuasive if we take
the third clause’s string of words apart and look only at the
statutory phrase “performance of work.” That phrase, even on
its own, is also closely associated with the provisions of the
FAR. It is frequently employed in the FAR itself; indeed, a
Westlaw search discloses that the FAR uses the phrase one
hundred times.25 It is also frequently used by courts in
25
See, e.g., 48 C.F.R. § 19.1308 (establishing “[p]erformance of
work requirements” relating to subcontracting); id. § 32.202-1(b)(6)
(“Prior to any performance of work under the contract, . . . .”); id.
§ 36.501 (governing “[p]erformance of work by the contractor”); id.
§ 52.204-2(e) (demanding that contractor “exert every reasonable
effort . . . to continue the performance of work . . . ”); id. § 52.223-6
(referring to “site(s) for the performance of work”); id. § 52.236-1
(establishing model “Performance of Work by the Contractor” clause);
id. § 52.249-6(a) (providing that “the Government may terminate
performance of work under this contract”); see also id. §§ 2.101(b),
7.305(c), 27.300, 52.232-31, 52.236-8, 52.249-2(a). The phrase is
also used several times in Title 41 itself. See 41 U.S.C. § 4505(c)
(limiting “payments . . . in advance of any performance of work under
the contract”); id. § 8101 (defining employee as an individual
“directly engaged in the performance of work”); id. § 8303 (limiting
30
discussing the FAR’s provisions.26
3. Notwithstanding § 2669(c)’s use of language indicating
that it was intended to authorize an exemption from the FAR
and associated statutes in Title 41, the State Department
maintains that the legislative history of the section supports its
broader construction. In fact, there is very little legislative
history to examine, and the three snippets to which the
Department points are even more ambiguous than the statutory
language. Before getting to those snippets, however, we must
remark upon what is most important about the legislative
history: namely, what is not in it. If the third clause were truly
intended to permit the Secretary to do something as
consequential as disregard “statutory provisions such as the
ADEA,” DOS Br. 10 (emphasis added), one would expect to see
a reference in that history to the ADEA, or to similar statutes
such as the ADA or Title VII. There are no such references.
Likewise, if it really were “clear . . . from [the] statutory history
that the Secretary was permitted” to include a mandatory
retirement clause in Miller’s employment contract, id. at 12, one
would expect the history to contain a reference to mandatory
retirement, or at least to the application of age distinctions in
some context. Again, there are no such references. “Congress’
what materials contractors may use “in the performance of the work”).
26
See, e.g., Campbell Plastics Eng’g & Mfg., Inc. v. Brownlee,
389 F.3d 1243, 1248 (Fed. Cir. 2004); Redland Co., Inc. v. United
States, 97 Fed. Cl. 736, 747 n.4 (2011); LB&B Assocs. Inc. v. United
States, 91 Fed. Cl. 142, 157 (2010); Northrop Grumman Corp. v.
United States, 42 Fed. Cl. 1, 12 (1998); see also Ingersoll-Rand Co.
v. United States, 780 F.2d 74, 75 n.2 (D.C. Cir. 1985); Krygoski
Constr. Co., Inc. v. United States, No. 214-89C, 1993 WL 840295, at
*7 (Ct. Fed. Cl. Mar. 2, 1993), rev’d on other grounds, 94 F.3d 1537(Fed. Cir. 1996); Blount, Inc. v. United States, 22 Cl. Ct. 221, 226-29
(1990).
31
silence in this regard can be likened to the dog that did not
bark.” Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991).
The third clause of § 2669(c) was added to the section in
1994 as part of a larger set of statutory amendments. See
Foreign Relations Authorization Act, Fiscal Years 1994 & 1995,
Pub. L. 103-236, 108 Stat. 382 (1994). The only specific
mention of the third clause is found in the House Conference
Report, which states that the clause “exempts, where necessary,
contracts for personal services abroad from statutory contracting
provisions applicable in the United States.” H.R. Conf. Rep.
No. 103-482, at 171 (1994) (emphasis added). As we have
discussed above, “contracting provisions” is not an obvious way
to refer to antidiscrimination statutes like the ADEA, ADA, and
Title VII. By contrast, it is a perfectly natural way to refer to the
FAR and its associated statutes, which are filled with provisions
governing contracting by federal agencies. See, e.g., 48 C.F.R.
pts. 37, 52.
In addition to its single specific reference to the third clause,
the Conference Report states that the entire set of 1994
amendments “allows the Secretary of State greater flexibility in
hiring U.S. citizens, particularly family members of U.S.
Government employees, at embassies and consulates abroad.”
H.R. Conf. Rep. No. 103-482, at 182 (emphasis added). The
Report does not explain what kind of flexibility Congress had in
mind. Lifting the labyrinthine restrictions of the FAR and Title
41 certainly fills that bill. But there is nothing in the legislative
history to suggest that Congress wanted the Secretary to have
“flexibility” to hire and fire without regard to the laws that bar
employment discrimination.27
27
In fact, the only thing that is clear about the sentence in the
Conference Report regarding “flexibility” is that it is not in the main
a reference to the addition of the third clause of § 2669(c) at all, but
32
Last, the government calls our attention to another passage
in the Conference Report, which “urges the Department of State
to undertake . . . a review of U.S. laws and regulations that may
impede the ability of American citizens abroad to compete in
world markets with citizens of other nations on a level playing
field.” Id. On its face, however, this passage refers to a review
Congress wanted the Department to undertake, not to something
it thought the third clause would accomplish. Moreover, in
context it appears to have more to do with “making the United
States more competitive in the world economy,” id., than with
influencing hiring at U.S. facilities. Nonetheless, the State
Department insists that the passage shows that Congress
intended the third clause to authorize an exemption from the
ADEA in order to promote the Department’s own hiring of U.S.
citizens abroad.
Even if the State Department were correct in reading this
ambiguous passage as relating to State Department hiring, it is
unclear how allowing the United States to discriminate against
its own citizens on the basis of their age -- or disability, race,
religion, or sex -- would promote the hiring of U.S. workers
abroad. The Department’s brief does not explain this claim at
all. See DOS Br. 12. At oral argument, Department counsel
suggested that, if U.S. employment discrimination laws were
rather to a different statutory amendment that is inapplicable to Miller.
As quoted above, the sentence states that the set of amendments
“allows the Secretary of State greater flexibility in hiring U.S. citizens,
particularly family members of U.S. Government employees, at
embassies and consulates abroad.” Id. (emphasis added). The
flexibility regarding the hiring of family members came not from the
amendment to § 2669(c), but rather from an amendment to the Foreign
Service Act that authorized the Secretary to “appoint United States
citizens, who are family members of government employees assigned
abroad[,] . . . for employment in positions customarily filled by
Foreign Service officers.” 22 U.S.C. § 3951(a).
33
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. 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 Department’s 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.” 3
Foreign Affairs Manual § 1511.1(a); see id. § 2211(a) (“The
Department’s policy is to recruit and select the best qualified
employees available, without regard to age, race, color, religion,
28
In support, the dissent offers an extensive footnote discussing
a floor statement by Senator Rockefeller. Suffice it to say that the
Senator did not make the argument made by the dissent. See 140
Cong. Rec. 565-66 (1994) (statement of Sen. Rockefeller). Nor did he
refer at any point to a need to permit age (or any other kind of)
discrimination by the State Department. See id. To the contrary,
Senator Rockefeller made it clear that he wanted “to eliminate
employment discrimination against Americans by the U.S. Department
[of State].” Id. at 565 (emphasis added).
34
sex, national origin, politics, marital status, or physical handicap
. . . .”).29
In sum, we 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.
4. Finally, we must say a few more words about the dissent,
which supports the State Department’s construction of the third
clause of § 2669(c).
Our dissenting colleague notes that “our job is to apply and
enforce the law as it is written,” and charges that we have “not
correctly performed that task.” Dissent at 1. But in fact, both
the dissenting opinion and ours are based on the law as it is
written. As we have said above, we do not disagree that the
third clause can be read as the dissent reads it. But because
Chevron deference is inapplicable here -- a point the dissent
does not dispute -- the question is which reading of the text is
the better one. For the reasons we have discussed in this Part,
we conclude that ours is the better reading.
Much of the dissenting opinion is devoted to challenging
what it describes as certain “inapposite interpretive
29
By post-argument letter, counsel for the State Department
advised the court that the above quotations from the Foreign Affairs
Manual are found in provisions applicable to Foreign Service and civil
service employees, and that Miller does not fall within those
categories because he was hired under § 2669(c) as a “personal
services contractor.” Rule 28(j) Letter from DOS Counsel at 2 (filed
Oct. 17, 2011). Nonetheless, the Department does not direct us to any
provision of the Manual declaring that the Department’s commitment
to equal opportunity is inapplicable to U.S. citizens hired under §
2669(c).
-35-
presumptions” upon which it insists we rely. Dissent at 10; id.
at 10-16. Those challenges, however, are aimed at straw men.
We do not -- “implicitly” or otherwise -- invoke an “absurdity
canon” that would allow us to disregard “the plain language of
the statute” because it would lead to an absurd result. Id. at 12,
14. As we have explained, we do not think that the language of
the third clause is “plain,” and we do not think that the dissent’s
reading is absurd. Nor do we say that, to exempt federal
agencies from the antidiscrimination laws, Congress must
specifically list the laws it has in mind. See id. at 10-11. We
merely say that it would be surprising if Congress had intended
to authorize an exemption from the country’s landmark
antidiscrimination laws by using ambiguous terms that appear
to refer to something else entirely. And because there is a less
surprising and more natural reading of the statutory text, that is
the reading we adopt.
In the end, this all comes down to one dispositive question:
If Congress had intended to authorize the State Department to
act without regard to the antidiscrimination laws, would it have
done so using a string of forty-five words that has previously
only been read to authorize a waiver of the regulatory and
statutory provisions that govern federal contracting and
procurement? We do not think so.
IV
As the Supreme Court has repeatedly reminded us,
Congress “does not, one might say, hide elephants in
mouseholes.” Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S.
457, 468 (2001).30 Exemptions from the statutory protections
30
See Bilski v. Kappos, 130 S. Ct. 3218, 3250 (2010); Metro. Life
Ins. Co. v. Glenn, 554 U.S. 105, 116 (2008); Gonzales v. Oregon, 546
U.S. 243, 267 (2006).
-36-
afforded to U.S. citizens against discrimination by their own
government are surely elephants. And the provisions the State
Department cites as purportedly authorizing such exemptions
are surely mouseholes -- and well-camouflaged ones at that.
The ADEA, which was enacted “as part of an ongoing
congressional effort to eradicate discrimination in the
workplace, reflects a societal condemnation of invidious bias in
employment decisions.” McKennon, 513 U.S. at 357. It is “but
part of a wider statutory scheme,” including Title VII and the
ADA, enacted “to protect employees in the workplace
nationwide.” Id. Whenever Congress has decided to exempt
either groups of U.S. citizens or specified circumstances from
the coverage of those statutes, it has done so clearly. It has not
hidden those decisions in obscure references that require trips
through multiple statutes, only to end in still further ambiguous
provisions. Nor has it hidden them in language previously used
for another purpose. It did not do so here.
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.
So ordered.
KAVANAUGH, Circuit Judge, dissenting: John Miller
worked as a safety inspector at the U.S. Embassy in Paris.
His employment contract with the State Department required
him to retire at age 65. After Miller turned 65 and the State
Department forced him to retire, he sued and claimed that his
mandatory retirement violated the Age Discrimination in
Employment Act.
The problem for Miller is that federal law allows the
State Department to maintain a mandatory retirement policy
for personnel employed abroad. The relevant statute
expressly authorizes the State Department to contract with
American workers in foreign locations “without regard” to
“statutory provisions” relating to the “performance of
contracts and performance of work in the United States” – in
other words, to contract with workers in foreign locations
notwithstanding statutory provisions such as the ADEA that
relate to the performance of contracts and performance of
work in the United States. The State Department thus did not
violate federal law when it required Miller to retire at age 65.
In my view, this is not a close case, at least as a matter of law.
I therefore would affirm Judge Huvelle’s decision rejecting
Miller’s claim.
To be sure, Congress could (and perhaps should) change
the law and bar the State Department from imposing
mandatory retirement in these kinds of circumstances.
Moreover, even under existing law, the President, the
Secretary of State, and appropriate subordinate officers in the
State Department could (and perhaps should) alter the current
policy and no longer mandate retirement at age 65 for workers
such as Miller. But our job is to apply and enforce the law as
it is written. In my judgment, the majority opinion has not
correctly performed that task. I respectfully dissent.
2
I
In 1996, the State Department hired John Miller, a U.S.
citizen, to work as a supply supervisor at the U.S. Embassy in
Paris, France. In 2003, Miller became a safety inspector. The
State Department’s 2003 contract with Miller incorporated all
“provisions of the local compensation plan” governing
employment of staff at the Embassy. J.A. 23. That local
compensation plan included a “retirement” clause that stated:
“Age 65 is the mandatory age limit for all employees . . . .”
J.A. 26. Therefore, Miller’s contract required retirement at
age 65. When Miller turned 65, the State Department
terminated his employment.
Miller claims that his forced retirement at age 65 violated
the Age Discrimination in Employment Act.
In 1967, Congress enacted the ADEA to ban age
discrimination by certain private employers (the law now
applies to employers with 20 or more employees). See Pub.
L. No. 90-202, 81 Stat. 602. In 1974, Congress extended the
ADEA to federal agencies. See Pub. L. No. 93-259,
§ 28(b)(2), 88 Stat. 55, 74. The ADEA provision protecting
federal agency employees states in relevant part: “All
personnel actions affecting employees . . . who are at least 40
years of age . . . in executive agencies . . . shall be made free
from any discrimination based on age.” 29 U.S.C. § 633a(a).
Applying that statute, courts have concluded that federal
agencies generally may not require retirement based on age.
See, e.g., Johnson v. Mayor and City Council of Baltimore,
472 U.S. 353, 355-57 & n.1, 366 n.10 (1985); Forman v.
Small, 271 F.3d 285, 297 (D.C. Cir. 2001). 1
1
In 1964, Congress enacted a similar statute, Title VII of the
Civil Rights Act, to protect against employment discrimination by
3
However, there are numerous exceptions to the ADEA.
See, e.g., 29 U.S.C. § 623(f) (exceptions “where age is a bona
fide occupational qualification” and where compliance with
the ADEA would cause an employer “to violate the laws of
the country in which [a] workplace is located”); 29 U.S.C.
§ 623(j) (exception for state firefighters and law enforcement
officers); 29 U.S.C. §§ 628, 633a(b) (exceptions may be
created by the Equal Employment Opportunity Commission);
29 U.S.C. § 630(b) (exception for small employers); 29
U.S.C. § 631(c) (exception for executives and high
policymakers); 29 U.S.C. § 633a(a) (exception for judicial
branch employees in the noncompetitive service); see also,
e.g., 5 U.S.C. § 8335 (mandatory retirement of air traffic
controllers, law enforcement officers, firefighters, nuclear
materials couriers, customs and border protection officers,
Capitol Police, and Supreme Court Police); 22 U.S.C. § 4052(mandatory retirement of foreign service officers); Johnson,
472 U.S. at 357; Strawberry v. Albright, 111 F.3d 943, 947
(D.C. Cir. 1997).
As those many examples show, statutory exceptions to
the ADEA – including mandatory retirement provisions for
certain federal employees – are quite common. This case
presents another such exception.
As amended in 1994, the State Department Basic
Authorities Act authorizes the State Department to employ
U.S. citizens abroad without regard to the ADEA. See 22
U.S.C. § 2669(c). 2 In 1956, Congress initially passed the
private employers on the basis of race, color, religion, sex, or
national origin. See Pub. L. No. 88-352, §§ 701-716, 78 Stat. 241,
253-66. In 1972, Congress extended Title VII to federal agencies.
See Pub. L. No. 92-261, § 11, 86 Stat. 103, 111.
2
Since its initial enactment in 1974, the statute extending the
ADEA to federal employees has exempted aliens employed abroad
4
State Department Basic Authorities Act. See Pub. L. No. 84-
885, 70 Stat. 890; see also Pub. L. No. 98-533, § 303, 98 Stat.
2706, 2710 (1984). Before 1994, Section 2(c) of the Act
authorized the State Department to employ individuals by
contract for services abroad. In 1994, Congress amended
Section 2(c) to add that
such contracts are authorized to be negotiated, the terms
of the contracts to be prescribed, and the work to be
performed, where necessary, without regard to such
statutory provisions as relate to the negotiation, making,
and performance of contracts and performance of work
in the United States.
Pub. L. No. 103-236, §§ 137, 180(b), 108 Stat. 382, 397, 416
(emphasis added); see also 22 U.S.C. § 2669(c). 3 The text of
Section 2(c) as amended establishes that the State Department
from the ADEA. See 29 U.S.C. § 633a(a); see also Pub. L. No. 93-
259, § 28(b)(2), 88 Stat. 55, 74.
3
The entire text of Section 2(c) reads: “The Secretary of State
may use funds appropriated or otherwise available to the Secretary
to . . . employ individuals or organizations, by contract, for services
abroad, and individuals employed by contract to perform such
services shall not by virtue of such employment be considered to be
employees of the United States Government for purposes of any
law administered by the Office of Personnel Management (except
that the Secretary may determine the applicability to such
individuals of subsection (f) of this section and of any other law
administered by the Secretary concerning the employment of such
individuals abroad); and such contracts are authorized to be
negotiated, the terms of the contracts to be prescribed, and the work
to be performed, where necessary, without regard to such statutory
provisions as relate to the negotiation, making, and performance of
contracts and performance of work in the United States . . . .” 22
U.S.C. § 2669(c).
5
may negotiate employment contracts for services abroad
without regard to U.S. employment laws.
In this case, the State Department’s contract with Miller
plainly fell within Section 2(c). First, the State Department
employed Miller “by contract, for services abroad.” And
second, the ADEA is a “statutory provision[]” that relates to
the “performance of contracts and performance of work in the
United States.” 4 Indeed, there is no dispute in this case that
the ADEA is a statutory provision related to the “performance
of contracts and performance of work in the United States.” 5
4
The ADEA is also a “statutory provision[]” that relates to the
“negotiation” and “making” of contracts and is therefore covered
by Section 2(c) for that reason as well, meaning that the State
Department’s mandatory retirement policy is exempt from the
ADEA for that additional reason. For ease of reference, the
analysis will refer to “performance of contracts and performance of
work.”
5
Nor could there be. The ADEA repeatedly speaks in terms of
performance of work. See 29 U.S.C. § 621(a)(2) (finding by
Congress that “the setting of arbitrary age limits regardless of
potential for job performance” had become a common practice)
(emphasis added); 29 U.S.C. § 622 note (Secretary of Labor and
EEOC must conduct study “to determine whether physical and
mental fitness tests are valid measurements of the ability and
competency of police officers and firefighters to perform the
requirements of their jobs” and EEOC must propose guidelines “for
the administration and use of physical and mental fitness tests to
measure the ability and competency of police officers and
firefighters to perform the requirements of their jobs”) (emphases
added); 29 U.S.C. § 623 note (2000) (Secretary of Health and
Human Services must conduct study and issue guidelines “for the
administration and use of physical and mental fitness tests to
measure the ability and competency of law enforcement officers
and firefighters to perform the requirements of the jobs of the
officers and firefighters”) (emphasis added); 29 U.S.C. § 633a(b)
6
The majority opinion itself acknowledges that the ADEA is
“part of the backdrop of employer-employee relations in the
United States” and seems to accept that the ADEA is
therefore a law relating to the performance of contracts and
performance of work. Maj. Op. at 23-24.
(“Reasonable exemptions to the provisions of this section may be
established by the Commission but only when the Commission has
established a maximum age requirement on the basis of a
determination that age is a bona fide occupational qualification
necessary to the performance of the duties of the position.”)
(emphasis added).
Case law frequently refers to the ADEA as a statutory
provision relating to the performance of work. See, e.g., Hazen
Paper Co. v. Biggins, 507 U.S. 604, 610-11 (1993) (“Congress’
promulgation of the ADEA was prompted by its concern that older
workers were being deprived of employment on the basis of
inaccurate and stigmatizing stereotypes. . . . [T]he available
empirical evidence demonstrated that arbitrary age lines were in
fact generally unfounded and that, as an overall matter, the
performance of older workers was at least as good as that of
younger workers.”) (emphasis added) (internal quotation marks
omitted); Wilkerson v. Shinseki, 606 F.3d 1256, 1266 (10th Cir.
2010) (age discrimination claim under ADEA requires inquiry into
whether plaintiff was “(1) within the protected class of individuals
40 or older[;] (2) performed satisfactory work; (3) terminated from
employment; and (4) replaced by a younger person”) (emphasis
added); Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (hostile
work environment claim under ADEA requires inquiry into “the
frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work
performance”) (emphasis added) (citation omitted).
And in analyzing a similarly worded statute, the Supreme
Court directly stated that Title VII is a statutory provision related to
the performance of contracts. Patterson v. McLean Credit Union,
491 U.S. 164, 177 (1989); see also id. at 176-82.
7
In short, the text of Section 2(c) of the State Department
Basic Authorities Act authorized the State Department to
require Miller to retire at age 65, notwithstanding the ADEA.
To the extent it’s relevant, the legislative history further
demonstrates that Section 2(c) allows the State Department to
employ U.S. citizens abroad without regard to the ADEA. In
the years leading up to the 1994 amendment to Section 2(c),
embassies and other State Department outposts abroad could
hire foreign nationals in accordance with local wage rates and
other compensation practices, but they generally could not do
the same for American citizens working abroad. See 140
Cong. Rec. 564-67 (1994) (statement of Sen. Rockefeller).
And before the 1994 amendment, the State Department could
require foreign workers to retire at age 65, but it could not
require American workers to retire at age 65.
The legislative history of the 1994 amendment reveals
that, because of the different rules for foreign and American
workers that gave the State Department greater flexibility to
hire and fire foreign workers, the State Department was hiring
foreigners instead of Americans. Unhappy with that turn of
events, Congress decided to exempt the State Department
from certain employment laws when the Department
employed U.S. citizens at foreign locations. The Conference
Report described Congress’s intent to give the State
Department “greater flexibility” in hiring U.S. citizens
abroad. H.R. Rep. No. 103-482, at 171, 182 (1994) (Conf.
Rep.). The Conference Report explained that Congress
wanted to “ensure that everything possible is being done to
enable American citizens abroad to compete on a most
favored competitor basis” and encouraged the State
Department to review “U.S. laws and regulations that may
impede the ability of American citizens abroad to compete in
world markets with citizens of other nations on a level playing
8
field.” Id. at 182. 6 In other words, so as not to disadvantage
American workers, Congress exempted the State Department
from various U.S. employment statutes (from which foreign
workers already were exempt) and thereby enabled
Americans to better compete with foreigners when seeking
positions at embassies abroad.
One might well ask: Why didn’t Congress in 1994 level
the playing field in a different way – by extending U.S.
6
Similarly, Senator Rockefeller, who offered the amendment,
explained that it was “designed to level the playing field when it
comes to employment opportunities for U.S. citizens living in other
countries.” 140 Cong. Rec. 565 (1994) (statement of Sen.
Rockefeller). The State Department had complained that
“discrimination existed because the Foreign Service Act of 1980
did not give foreign affairs agencies the authority to hire Americans
residing abroad under the compensation plans used to pay other
employees in local-hire positions.” Id. Senator Rockefeller
intended that his amendment “give the Secretary of State clear
authority . . . to pay [Americans] under the same compensation
systems used to pay others hired for these positions.” Id. at 566.
He believed that his amendment would provide “the flexibility the
State Department believes it needs to adjust to the special
employment conditions that exist in the hundreds of different
Foreign Service posts where these new job opportunities for
Americans exist.” Id.
The majority opinion brushes aside those passages of the
legislative history because they refer to other statutory amendments
as well as to Section 2(c). See Maj. Op. at 31 & n.27. But both the
Conference Committee and Senator Rockefeller included the
amendment to Section 2(c) with the amendments to the Foreign
Service Act – suggesting that whatever effect the amendments to
the Foreign Service Act were intended to have, the amendment to
Section 2(c) was intended to have as well. What was that effect?
Greater flexibility for the State Department and a level playing field
for Americans working abroad.
9
employment laws to foreign workers at State Department
posts abroad rather than by declining to apply U.S.
employment laws to American workers at State Department
posts abroad? Recall that as of 1994, the ADEA had long
exempted aliens employed abroad from its protections. That
exemption for aliens employed abroad apparently stemmed
from a desire to avoid conflict with foreign nations. Foreign
nations might take offense if the United States as an employer
afforded citizens of foreign nations protections different from
those usually provided in that foreign nation. Moreover, the
Foreign Service Act had long authorized the State Department
to pay foreign workers overseas according to “local
compensation plans.” 22 U.S.C. § 3968. Pursuant to those
plans, foreign workers received wages and were subject to
compensation practices that were typical of the host country.
That was in order to “eliminate complaints from host
governments and employees over compensation issues” and
to improve morale. S. Rep. No. 96-913, at 41 (1980). It also
avoided “undesirable litigation which would result from
failure to comply with certain labor laws and practices in
foreign countries.” Id.; see also 3 Foreign Affairs Handbook
2, at H-212 D (2003) (“Posts must adhere to local labor,
employment and social security laws to the maximum extent
practicable” in matters that affect foreign national
employees).
Apparently for those reasons, when amending the Basic
Authorities Act in 1994, Congress did not extend U.S.
employment laws to foreign workers. Rather, to level the
playing field and give American workers a fair chance to
compete for those jobs at State Department posts abroad,
Congress instead exempted American workers abroad from
those U.S. employment laws.
10
***
In short, the text of Section 2(c) of the State Department
Basic Authorities Act, as amended in 1994, authorized the
State Department to mandate retirement at age 65 for workers
such as Miller. I therefore would affirm the District Court’s
dismissal of Miller’s suit. This is not a close call.
II
The majority opinion comes to a contrary conclusion by
downplaying the relevant statutory text, stacking the deck
with inapposite interpretive presumptions, and raising the
specter of rampant race, sex, and religious discrimination by
the U.S. State Department against U.S. citizens employed
abroad. In my view, all of that is a smokescreen – on close
inspection, none of the majority opinion’s arguments holds
up.
First, the majority opinion repeatedly points out that the
text of Section 2(c), the general statutory authorization for the
State Department to hire and fire abroad without regard to
other U.S. employment laws, does not specifically refer to the
ADEA or age-based employment decisions. But Section 2(c)
plainly gives the Secretary discretion to negotiate
employment contracts for workers abroad without regard to
statutes relating to the performance of contracts and
performance of work in the United States. The ADEA is
quite obviously such a statute. End of case.
Contrary to the majority opinion’s suggestion, there is no
“plain statement” requirement that Congress must meet to
exempt federal agencies from the ADEA. The Supreme Court
has repeatedly stated that courts should generally adhere to a
statute’s text. That cardinal principle applies to broadly
worded statutes; Congress does not have to specifically
11
address subsidiary issues encompassed by broad statutory
wording. Under the majority opinion’s theory, by contrast, a
statute exempting “animals” from a statutory ban on
swimming in a river wouldn’t apply to dogs because the
statute didn’t specifically refer to dogs. That’s not how courts
interpret laws. See, e.g., DePierre v. United States, 131 S. Ct.
2225, 2235 (2011) (Congress chose “a statutory term that
would encompass all forms” of chemically basic cocaine;
Court refused to read that term as only encompassing one
form); Ali v. Federal Bureau of Prisons, 552 U.S. 214, 226
(2008) (“‘any other law enforcement officer’ sweeps as
broadly as its language suggests”); Norfolk & Western
Railway Co. v. American Train Dispatchers’ Ass’n, 499 U.S.
117, 129-34 (1991) (phrase “all other law” means all other
laws); Acree v. Republic of Iraq, 370 F.3d 41, 62 (D.C. Cir.
2004) (Roberts, J., concurring in part and concurring in the
judgment) (“[P]laintiffs err in their assumption that the
government must somehow prove that Congress intended the
statute’s broad terms to be construed broadly. The burden is
precisely the opposite: the party seeking to narrow the
application of the statute must demonstrate that Congress
intended something less than what the law on its face says.”)
(citations omitted); Consumer Electronics Ass’n v. FCC, 347
F.3d 291, 298 (D.C. Cir. 2003) (Roberts, J.) (“the Supreme
Court has consistently instructed that statutes written in broad,
sweeping language should be given broad, sweeping
application”).
Second, the majority opinion suggests that Congress
could not possibly have intended to permit mandatory
retirement policies for U.S. citizens working abroad for the
State Department. See, e.g., Maj. Op. at 7 (State
Department’s argument faces “an uphill climb” given “the
importance Congress ascribed to the ADEA”); id. at 8 (“We
simply do not believe [Congress] would have authorized the
12
State Department to ignore statutory proscriptions against
discrimination . . . through the use of ambiguous language.”);
id. at 24 (“it is hard for us to imagine that Congress would
have hidden such a dramatic exemption from its landmark
antidiscrimination laws in the anodyne language of
§ 2669(c)’s third clause”); id. at 33 (“it would be surprising
for Congress to assume such callousness on the part of State
Department officials”).
Although the majority opinion does not explicitly use the
term, the majority opinion is necessarily applying a form of
the absurdity canon and saying that it would be absurd to read
the broad statutory language to allow mandatory retirement
policies for U.S. citizens working abroad for the State
Department. The absurdity canon allows courts to disregard
statutory text when adhering to the text “would result in a
disposition that no reasonable person could approve.”
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 234 (2012). But the canon
“can be a slippery slope. It can lead to judicial revision of
public and private texts to make them (in the judges’ view)
more reasonable.” Id. at 237. The hurdle for invoking the
canon is thus “a very high one.” Id. It applies only when “the
absurdity and injustice of applying the provision to the case
would be so monstrous, that all mankind would, without
hesitation, unite in rejecting the application.” Id. (quoting 1
JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES § 427 (1833)).
In this case, the majority opinion has not come close to
showing that adhering to the plain language of the statute
would be absurd. After all, mandatory retirement provisions,
although generally forbidden by the ADEA and questionable
as a policy matter in some circumstances, are quite common
in both federal and state government. For example, on the
13
federal side, air traffic controllers, law enforcement officers,
firefighters, and customs and border protection officers are
subject to mandatory retirement. See 5 U.S.C. § 8335; see
also 10 U.S.C. §§ 1251-1263 (mandatory retirement of
military officers); 22 U.S.C. § 4052 (mandatory retirement of
foreign service officers). At the state level, many law
enforcement officers, firefighters, and judges, among others,
face mandatory retirement. See, e.g., 29 U.S.C. § 623(j)
(permitting states and localities to mandate retirement of state
firefighters and law enforcement officers); Gregory v.
Ashcroft, 501 U.S. 452, 455 (1991) (mandatory retirement of
Missouri judges). In light of these many mandatory
retirement statutes, it cannot be deemed absurd to think that
Congress would also permit an exception to the ADEA for
U.S. citizens employed at State Department posts abroad.
Viewing the matter more broadly, the majority opinion’s
intimation that it would be absurd to read the statute as
written is necessarily premised on an assumption that the anti-
discrimination statutes currently extend to every nook and
cranny of American workforces – and that an exception here
therefore would be especially extraordinary. That
assumption, too, is wrong. Congress has devised a wide
variety of limits and exceptions to the anti-discrimination
statutes. For example, the ADEA and Title VII do not apply
to small employers – generally those with fewer than 15 or 20
employees. See 29 U.S.C. § 630(b); 42 U.S.C. § 2000e(b). A
significant number of American workers are employed at such
small businesses – something like 20 million American
workers according to the latest statistics. See Bureau of Labor
Statistics, U.S. Dep’t of Labor, Distribution of Private Sector
Employment by Firm Size Class. Courts likewise have
determined that the ADEA and Title VII do not apply to
uniformed personnel in the armed services. See, e.g., Hedin v.
Thompson, 355 F.3d 746, 747-48 & n.2 (4th Cir. 2004).
14
Put simply, Congress has seen fit to allow numerous
exceptions to the ADEA. Those exceptions flatly refute the
majority opinion’s intimation that it would be exceptional to
apply the text as written here.
In implicitly invoking a form of the absurdity canon, the
majority opinion relatedly suggests that allowing the State
Department to terminate workers abroad at age 65 would lead
to unbridled State Department discrimination on the basis of
not only age, but also race, sex, and religion – and that
Congress could not have intended such a result. But that is a
red herring because the majority opinion’s premise is wrong.
The inapplicability of the ADEA and other anti-
discrimination legislation to State Department workers abroad
does not license the State Department to discriminate against
American workers abroad on the basis of race, sex, or
religion. The State Department must act within the limits of
the Constitution. The Due Process Clause of the Fifth
Amendment bars the Federal Government from
discriminating on the basis of race in employment. See
Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 105
(2001). The Fifth Amendment likewise forbids invidious sex
discrimination in federal government employment. See Tuan
Anh Nguyen v. INS, 533 U.S. 53, 60 (2001). Meanwhile, both
the First and Fifth Amendments – as well as Article VI of the
Constitution – bar the federal government from discriminating
on the basis of religion in employment. Contrary to the
majority opinion’s stated fears, a ruling in favor of the State
Department here would not license the Department to engage
in unbridled race, sex, and religious discrimination against its
American employees abroad. 7
7
The majority opinion agrees that the Constitution forbids
race, sex, and religious discrimination in federal government
employment. See Maj. Op. at 8-9. But the majority opinion
15
Based on the majority opinion’s two main assertions –
that in Section 2(c) Congress did not expressly refer to the
ADEA and that it would be absurd, in the majority opinion’s
view, to read Section 2(c) to allow mandatory retirement
policies – the majority opinion says it’s better to read Section
2(c) as referring only to statutes that establish government-
wide requirements for federal contracting and procurement.
But where in the statutory text is that limitation? If Congress
had wanted to limit Section 2(c) in that manner, it presumably
would have said so. It did not. The majority opinion is
simply making up a statutory boundary that Congress did not
set forth in the enacted text.
In my view, we should not try to snatch ambiguity from
clarity. We should just read Section 2(c) as it’s written. The
statute is not remotely ambiguous or difficult to apply in this
expresses doubt whether the Constitution affords remedies to
federal government employees who are victims of such
employment discrimination. The Constitution does afford such
remedies. Courts have long held that citizens facing
unconstitutional conduct can seek equitable relief – for an
employee facing unconstitutional discrimination, equitable relief
could include an injunction prior to termination or reinstatement
subsequent to termination. See, e.g., Free Enterprise Fund v.
Public Company Accounting Oversight Board, 130 S. Ct. 3138,
3151 n.2 (2010); Bell v. Hood, 327 U.S. 678, 684 (1946) (“it is
established practice for this Court to sustain the jurisdiction of
federal courts to issue injunctions to protect rights safeguarded by
the Constitution”). In the absence of other available remedies, such
employees also may have Bivens claims for damages; the Supreme
Court has recognized a Bivens remedy in a similar situation. See
Davis v. Passman, 442 U.S. 228, 245-49 (1979) (when anti-
discrimination legislation did not apply and equitable relief was
unavailable, plaintiff alleging employment discrimination on the
basis of sex had cause of action for damages under the Fifth
Amendment).
16
case. The statute authorizes the Secretary to negotiate
employment contracts for American workers abroad without
regard to statutory provisions relating to the performance of
contracts and performance of work in the United States. The
ADEA is a statute relating to the performance of contracts and
performance of work in the United States – and the majority
opinion never seriously denies that point. That basic analysis
resolves the case. Although I might disagree with the lines
Congress has drawn in this statute, it is our job to respect
those lines, not to re-draw them as we might prefer. 8
***
To sum up, the text of the statute makes this a
straightforward case, as a matter of law. That statutory text
authorized the State Department to include a mandatory
retirement provision in its contract with Miller. Therefore, I
8
The parties and the majority opinion have addressed this case
on an assumption that the ADEA’s federal agency provision applies
at U.S. embassies in foreign countries. For future reference, I note
here that the issue is undecided and that 29 U.S.C § 633a might not
apply extraterritorially. That is because there is a longstanding
presumption against the extraterritorial application of statutes.
Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869, 2878
(2010) (“When a statute gives no clear indication of an
extraterritorial application, it has none.”). Embassies likely would
be considered extraterritorial for these purposes. Cf., e.g., United
States v. Gatlin, 216 F.3d 207, 214 n.9 (2d Cir. 2000); McKeel v.
Islamic Republic of Iran, 722 F.2d 582, 588 (9th Cir. 1983); 1
OPPENHEIM’S INTERNATIONAL LAW § 499 & n.4 (Robert Jennings
& Arthur Watts eds., 9th ed. 1996); RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW OF THE UNITED STATES § 466 cmts. a, c
(1987); see also Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285-86
(1949); Vermilya-Brown Co. v. Connell, 335 U.S. 377, 383-90
(1948). See generally EEOC v. Arabian American Oil Co., 499
U.S. 244 (1991).
17
would affirm the judgment of the District Court. I
respectfully dissent.