Miller v. Clinton ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
JOHN R. MILLER, JR., )
)
Plaintiff )
)
v. ) Civil Action No. 10-0512 (ESH)
)
HILLARY RODHAM CLINTON, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
Plaintiff John R. Miller is a United States citizen who was employed by the Department
of State as a safety inspector at the United States Embassy in Paris, France, when he was
terminated by defendant Secretary of State Hillary R. Clinton solely on the basis that he had
turned 65 years of age. Plaintiff claims that this violates the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 633a. Defendant has moved to dismiss for failure to state a claim on
grounds that the ADEA is not applicable and for lack of subject matter jurisdiction on grounds
that sovereign immunity bars plaintiff’s claims for compensatory damages. Plaintiff has filed a
cross-motion for summary judgment as to liability. As explained herein, the Court will grant
defendant’s motion to dismiss for failure to state a claim and deny all other motions as moot.
BACKGROUND
The material facts of this case are not in dispute.1 The Department of State hires three
categories of employees: Foreign Service employees, Civil Service employees, and Locally
1
While defendant disputes that plaintiff was terminated solely because he turned 65, asserting
that he was terminated because his contract incorporated a mandatory retirement age of 65, this
distinction is not material, as explained in note 2, infra.
Employed Staff. (Def.’s Mot. to Dismiss at 3.) Locally Employed Staff are individuals who are
hired abroad at one of the Department’s overseas embassies or consulates. (Id.) These
individuals can either be hired as “members of the Service” under section 303 of the Foreign
Service Act, 22 U.S.C. § 3943, or under the section 2(c) of the Basic Authorities Act, 22 U.S. C.
§ 2669(c), which authorizes the Secretary of State to “employ individuals or organizations, by
contract, for services abroad.”
Plaintiff was hired as Locally Employed Staff under section 2(c) of the Basic Authorities
Act to work at the United States Embassy in Paris, France. (Compl. ¶¶ 1, 19.) Section 2(c)
states in its entirety that the Secretary of State may
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). Under 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,” defendant applied section 408 of the Foreign
Service Act, 22 U.S.C. § 3968, to plaintiff. Section 408 by its terms governs the employment of
foreign nationals and certain U.S. citizens appointed as “members of the Service,” the other
category of Locally Employed Staff hired by the Department of State. 2 (Def.’s Mot. to Dismiss
2
Specifically, section 408 governs the employment of foreign nationals and United States
citizens who are appointed as “members of the Service” under 22 U.S.C. § 3943, but are not
family members of Government employees. See U.S.C. § 3951(c)(1).
2
at 5-6.) It requires defendant to establish compensation plans that are, “to the extent consistent
with the public interest,” “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,” with the exception that U.S. citizens are to be paid at or above the U.S.
minimum wage regardless of local wage rates. 22 U.S.C. § 3968. Additionally, for U.S.
citizens, defendant is to “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” other than the U.S. minimum wage, the Social Security Act, and Title 26. Id.For Embassy employees in Paris, France, the Local Compensation Plan (“LCP”)
contained a “Retirement” clause which stated that “[a]ge 65 is the mandatory age limit for all
employees under the LCP” (Def.’s Mot. to Dismiss, Ex. B, at 1), as that was the prevailing
practice among employers in France. (Def.’s Mot. to Dismiss at 7.) Defendant applied section
408 to plaintiff by incorporating this LCP into paragraph 5(2) of plaintiff’s employment contract.
(Id., Ex. A, at 1.)
While plaintiff was working as an Embassy safety inspector under a one-year contract
extension that was to expire in October 2007, he was notified that he would instead be
terminated on July 23, 2007, as he would be turning age 65 on that date. (Pl.’s Opp’n to Def.’s
Mot. to Dismiss [“Pl.’s Opp’n”] at 5, 7.) Plaintiff sought, but was denied, a one-year extension
of his employment. (Compl. ¶ 1.) On July 30, 2007, he filed a complaint of discrimination with
the Department of State, alleging that his termination based on age violated the federal
employees provision of the ADEA, 29 U.S.C. § 633a(a), which states that “[a]ll personnel
actions affecting employees . . . who are at least 40 years of age (except personnel actions with
regard to aliens employed outside the limits of the United States) . . . in executive agencies . . .
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shall be made free from any discrimination based on age.” (Compl. ¶ 21, Ex. A, at 1.) On
January 7, 2008, while his discrimination claim was pending before the Department of State,
plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”).
(Compl. ¶¶ 21-22.) The EEOC dismissed plaintiff’s complaint for failure to state a claim, and
the Department of State implemented that decision. (Compl. ¶ 22, Ex. B.)
Plaintiff then filed the instant lawsuit seeking, inter alia, compensatory damages,
reinstatement, back pay, attorneys’ fees, and declaratory and/or injunctive relief for defendant’s
alleged violation of the ADEA. (Compl. at 7-8.) Defendant has moved to dismiss for failure to
state a claim on the ground that the ADEA does not apply to plaintiff. (Def.’s Mot. to Dismiss at
1-2.) Defendant also asserts that sovereign immunity bars any claim for compensatory damages.
(Id. at 2.) Plaintiff has cross-moved for summary judgment as to liability. (Pl.’s Cross-Mot. for
Summ. J. at 3-4.)
ANALYSIS
It is undisputed that the federal employee provision of the ADEA, 29 U.S.C. § 633a, by
its terms applies to plaintiff, and that under that provision, plaintiff was unlawfully terminated
because of his age.3 What is disputed is whether section 2(c) of the Basic Authorities Act, 22
U.S.C. § 2669(c), allows the Department of State to exempt plaintiff from the ADEA’s
protections. Plaintiff’s position is that because section 2(c) specifies that 2(c) employees are not
to be considered U.S. Government employees for purposes of OPM-administered laws, these
employees must be considered U.S. Government employees for purposes of all non-OPM-
3
Defendant argues that plaintiff was not fired “solely” because of his age, but because plaintiff’s
contract mandated retirement at age 65. (Def.’s Resp. to Pl.’s Statement of Material Facts not in
Dispute ¶ 9.) However, this dispute does not create a genuine issue of material fact, as defendant
does not suggest that the contract waived or otherwise affected plaintiff’s rights under the
ADEA. Thus, the issue is whether defendant was authorized to incorporate a mandatory
retirement age into plaintiff’s contract in the first place.
4
administered laws, including the ADEA. (Compl. ¶ 19.) Defendant argues that plaintiff
misreads the language in section 2(c) regarding OPM-administered laws and that the remaining
language authorizes defendant to exclude plaintiff’s employment from the ADEA. (Def.’s Mot.
to Dismiss at 11, 13.)
I. LEGAL STANDARD
Statutory interpretation begins with the “language employed by Congress and the
assumption that the ordinary meaning of that language accurately expresses the legislative
purpose.” Bennett v. Islamic Republic of Iran, 618 F.3d 19, 22 (D.C. Cir. 2010). Additionally,
“statutes . . . are to be read as a whole, with ‘each part or section . . . construed in connection
with every other part or section.’” American Fed’n of Gov’t Employees, Local 2782 v. Fed.
Labor Relations Auth., 803 F.2d 737, 740 (D.C. Cir. 1986) (citing 2A Sutherland, Statutes and
Statutory Construction § 46.05 (4th ed. 1984)). Finally, the Court shall ‘“favor an interpretation
which would render the statutory design effective in terms of the policies behind its enactment’”
and ‘“avoid an interpretation which would make such policies more difficult of fulfillment.’”
United States v. Gen. Motors Corp., 518 F.2d 420, 438 (D.C. Cir. 1975) (quoting Nat’l
Petroleum Refiners Ass'n v. FTC, 482 F.2d 672, 689 (D.C. Cir. 1973)).
II. STATUTORY HISTORY OF SECTION 2(C)
The present language of section 2(c) results from a series of amendments. Prior to 1984,
section 2(c) only authorized the Secretary of State to hire “aliens, by contract, for service
abroad.” 22 U.S.C. § 2669(c) (1982). The 1984 amendments authorized the Secretary to employ
U.S. citizens under this provision by substituting the words “individuals or organizations” for
“aliens,” but mandated that “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.”
5
1984 Act to Combat International Terrorism, Pub. L. No. 98-533, § 303(a), 98 Stat. 2706, 2710
(1984). The 1985 amendments modified this exclusionary language to say that these individuals
would not, by virtue of such employment, be considered to be employees of the U.S.
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).” Foreign Relations Authorization Act, Fiscal Years 1986 and 1987,
Pub. L. No. 99-93, § 118(a), 99 Stat. 405, 412 (1985). Finally, the 1994 amendments added the
final clause: “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.” Foreign Relations Authorization Act, Fiscal Years 1994 and 1995,
Pub. L. No. 103-236, § 180(b), 108 Stat. 382, 416 (1994). Plaintiff and defendant attach
different significance to these amendments and offer starkly different interpretations of section
2(c).
III. STATUTORY INTERPRETATION OF SECTION 2(C)
The Court will first determine whether, as plaintiff contends, 2(c) employees must, by
virtue of section 2(c)’s language regarding OPM-administered laws, be considered U.S.
Government employees for the purposes of all non-OPM-administered laws. Because the Court
must construe statutory provisions together, the resolution of this issue will influence the Court’s
determination as to whether, as defendant contends, other language in section 2(c) authorizes
defendant to exempt plaintiff’s employment from the protections of the ADEA.
6
A. Status of 2(c) Employees for Purposes of Non-OPM-Administered Laws
It is undisputed that as of 1984, individuals hired under section 2(c) were not considered
U.S. Government employees for any purpose. Plaintiff argues that the 1985 amendments, which
added the language “for purposes of any law administered by the Office of Personnel
Management” (“the first clause”), “drastically changed” this provision to provide that 2(c)
employees were to be considered U.S. Government employees for the purposes of all laws not
administered by OPM. (Pl.’s Opp’n at 3-4.) Such laws include the ADEA, which is
administered by the EEOC. (Id.) Defendant argues that the first clause merely sets out one
category of laws from which 2(c) employees are excluded, but does not rule out further
exclusions. (Def.’s Mot. to Dismiss at 5.)
The plain language of section 2(c), when read in its entirety, does not entitle 2(c)
employees to treatment as U.S. Government employees for the purposes of all non-OPM-
administered laws. The second clause of section 2(c) explicitly gives the Secretary discretion to
determine the applicability of “subsection (f) of this section [authorizing payment of tort claims
that arise abroad in connection with Department of State operations] and of any other law
administered by the Secretary concerning the employment of such individuals abroad.” 22
U.S.C. § 2669(c). Thus, the plain language of the second clause establishes that 2(c) employees
are not necessarily considered U.S. Government employees for all non-OPM-administered laws.
Furthermore, the legislative history of the second clause indicates that Congress did not
wish for 2(c) employees to be categorically treated as U.S. Government employees for purposes
of non-OPM-administered laws. The Conference Report to the 1985 amendments indicates that
Conference Committee rejected the Senate’s proposed amendments because they would have
explicitly treated 2(c) employees as U.S. Government employees for the purposes of the Federal
7
Employees’ Compensation Act (FECA).4 The Committee instead chose the language “shall not .
. . be considered to be employees of the United States Government for purposes of any law
administered by the Office of Personnel Management,” because “[b]y not specifying the status of
these personnel under FECA, which is administered by the Department of Labor, it allows [that]
Department to determine - as it has for many years in similar situations - whether an individual
has the necessary employment relationship with the Federal Government to establish FECA
coverage.” 131 Cong. Rec. H7076-02 (1985) (letter from William E. Brock, Secretary of Labor,
to Dante B. Fascel, Chairman, Committee on Foreign Affairs, House of Representatives (July 29,
1985), incorporated into Congressional Record of the Conference Report on the Foreign
Relations Authorization Act, Fiscal Years 1986 and 1987).5 Thus, it appears that the
Conference Committee, in using the language regarding OPM-administered laws, did not intend
for 2(c) employees to be categorically treated as U.S. Government employees for purposes of all
non-OPM-administered laws. In fact, it intended just the opposite – that the status of 2(c)
employees under non-OPM-administered laws would remain unspecified and left to the
determination of the agencies administering those laws.
The third clause goes even further, providing that section 2(c) contracts are not bound by
“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). Plaintiff argues that the
language “such statutory provisions” refers back to OPM-administered laws, and therefore only
4
Specifically, the Senate’s amendment provided that individuals hired under section 2(c) would
not be deemed employees of the U.S. Government except for the purposes of FECA and the
Secretary of State’s authority to administratively settle tort claims abroad. H.R. Rep. 99-240, at
63 (1985) (Conf. Rep.).
5
The Congressional Record indicates that the letter from Secretary of Labor William E. Brock
was consistent with the Conference Committee’s consensus regarding the 1985 amendments to
section 2(c). 131 Cong. Rec. H7076-02 (1985) (statement of Rep. Mica).
8
exempts 2(c) employment from OPM-administered laws relating to the negotiating, making and
performance of contracts and performance of work in the United States. (Pl.’s Opp’n at 4.)
Plaintiff cites United States v. Bowen, 100 U.S. 508 (1879), in support of the proposition that the
word “such” must refer to an antecedent statutory phrase. (Pl.’s Reply Re: Pl.’s Cross-Mot. for
Summ. J. [Pl.’s Reply”] at 3-5.) However, Bowen dealt with a statute that stated
the fact that one to whom a pension has been granted for wounds or disability
received in the military service has not contributed to the funds of the Soldiers'
Home, shall not preclude him from admission thereto. But all such pensioners
shall surrender their pensions to the Soldiers' Home during the time they remain
there and voluntarily receive its benefits.
100 U.S. at 511. The issue was whether all pensioners had to forfeit their pensions while staying
at the Soldiers’ Home or only those who had not contributed to the Home’s fund. The Court
held the latter, because “such” pensioners could only refer back to the pensioners in the prior
sentence who had not contributed to the Home’s funds. Id. at 512. However, contrary to
plaintiff’s assertion, Bowen did not create a fixed rule that “such” always refers to a preceding
statutory phrase. Rather, the Court specified that “the word [such], as here used,” should be read
to refer to the prior sentence because of the history of the Soldier’s Home and the propriety of
interpreting the statute so that only those who benefitted from the Home but had not contributed
to its funds should have to forfeit their pensions during their stay. Id. at 512-13 (emphasis
added).
Here, by contrast, “such” does not necessarily refer back to OPM-administered laws.
Indeed, the Conference Report for the 1994 amendments calls into question such a restrictive
reading as it broadly describes these amendments as “exempt[ing], where necessary, contracts
for personal services abroad from statutory contracting provisions applicable in the United
States.” H.R. Rep. No. 103-482, at 171 (1994) (Conf. Rep.). Thus, according to the Conference
9
Report, 2(c) contracts are exempt, where necessary, from all statutory contracting provisions
applicable in the United States, not merely those administered by OPM. Second, this reading is
also consistent with the purpose of the amendments, which was to grant the Secretary “greater
flexibility” in hiring U.S. citizens abroad. H. R. Rep. No. 103-482, at 182 (1994) (Conf. Rep.).
And finally, plaintiff’s reading would render the third clause entirely superfluous. The first
clause mandates that 2(c) employees not be considered U.S. Government employees for purposes
of OPM-administered laws, which would include OPM-administered laws relating to the
negotiating, making, and performance of contracts and performance of work in the United States.
Plaintiff’s interpretation would violate the “cardinal principle of interpretation” that a statute
must be construed “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 quotations omitted).6
6
Plaintiff argues that his interpretation does not render the third clause superfluous, since the
first clause merely states that 2(c) employees are not, “by virtue of” their 2(c) employment,
considered U.S. Government employees for purposes of OPM-administered laws. But it leaves
unaddressed whether these employees might be U.S. Government employees by virtue of
something other than their 2(c) employment, such as by virtue of their negotiation of a 2(c)
contract or their performance of work under such a contract. (Pl.’s Reply Re: Pl.’s Cross-Mot.
for Summ. J. at 7.) The Court will assume arguendo that a 2(c) contract may be negotiated and
executed prior to, and therefore independently of, an individual’s “employment” with the
Department of State. Thus, the first clause would not necessarily exclude the application of
OPM-administered laws relating to the negotiation and execution of contracts because such laws
would not be applied “by virtue of” 2(c) employment. However, the “performance of work”
language in the third clause remains superfluous. The “performance of work” under a 2(c)
contract is coextensive with an individual’s “employment” with the Department, and it defies
logic to suggest that an OPM-administered law might apply to a 2(c) employee by virtue of his
performance of work as separate from his employment with the Department. The cases cited by
plaintiff do not suggest otherwise. These cases establish that some OPM-administered laws
pertain to an individual’s “performance of work” (e.g., payment of overtime, see Doe 1 v. United
States, 513 F.3d 1348, 1359 (Fed. Cir. 2008)). However, they do not suggest that these laws
would apply independently of the individual’s “employment.” See id.; Grandits v. United States,
66 Fed. Cl. 519, 549 (2005); Adams v. United States, 65 Fed. Cl. 195, 204 (2005); Sharpe v.
10
For these reasons, the Court rejects plaintiff’s assertion that he must be considered a U.S.
Government employee for the purposes of all non-OPM-administered laws such as the ADEA.
B. Defendant’s Authority to Impose a Mandatory Retirement Age
Having determined that section 2(c) does not itself entitle plaintiff to ADEA protection,
the Court must determine whether defendant acted within her authority by imposing a mandatory
retirement age. Defendant argues that the second clause, granting the Secretary the authority to
determine the “applicability to such individuals of . . . any other law administered by the
Secretary concerning the employment of such individuals abroad,” authorizes defendant to apply
section 408 of the Foreign Service Act, 22 U.S.C. § 3943, to plaintiff. Section 408, in turn,
permits defendant to impose local compensation practices, including mandatory retirement ages.
(Def.’s Mot. to Dismiss at 13.) Defendant further argues that the third clause, authorizing 2(c)
contracts to be negotiated and executed “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), provides an independent basis for excluding plaintiff from the
ADEA. (Def.’s Reply Mem. in Supp. of Def.’s Mot. to Dismiss and Opp’n to Pl.’s Cross-Mot.
for Summ. J at 6.)
Plaintiff argues that the second clause does not authorize the Secretary to apply section
408 to plaintiff because plaintiff was not hired under that section. (Pl.’s Opp’n. at 14.) Plaintiff
further contends that defendant’s application of section 408 constitutes impermissible rule-
making under the ADEA for which defendant is not entitled deference because defendant does
not administer the ADEA, and because defendant’s interpretation of section 2(c) was neither
contemporaneous with the enactment of section 2(c)’s amendments nor sufficiently clear so as to
Bair, 580 F. Supp. 2d 123, 126 n.2 (D.D.C. 2008); Forbes v. United States, 84 Fed. Cl. 319, 325
(2008), aff’d, 333 Fed. App’x 573 (2009).
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be understood by a reasonable person at the relevant time. (Id. at 14-16.) Finally, plaintiff, as
previously noted, argues that the third clause only exempts 2(c) contracts from OPM-
administered laws relating to the negotiation, making, and performance of contracts and
performance of work in the United States. (Id. at 4.)
For the reasons explained above, the Court rejects plaintiff’s overly narrow reading of the
third clause. It furthermore agrees with defendant’s assertion, which plaintiff does not dispute,
that the ADEA, in banning age discrimination against federal employees, is a statutory provision
relating to the performance of work in the United Sates. Therefore, under the third clause, it may
be disregarded in the execution and performance of 2(c) contracts when necessary. For this
reason, it appears that the third clause alone granted defendant the authority to incorporate a
mandatory retirement age of 65 into plaintiff’s contract.7
However, even if that were not the case, the second clause certainly gives defendant such
authority. The second clause unequivocally gives the Secretary the authority to determine the
applicability to 2(c) employees of any other law administered by the Secretary concerning the
employment of such individuals abroad. It is undisputed that defendant administers section 408
of the Foreign Service Act of 1980, 22 U.S.C. § 3968, and that section 408 authorizes the
Secretary to establish compensation plans that conform to local compensation practices including
mandatory retirement ages. Thus, even though plaintiff was not hired under 22 U.S.C. § 3943,
7
Plaintiff states that it is unverified that his contract contained a mandatory retirement age at the
time of his termination. (Pl.’s Opp’n at 16 n.13.) However, plaintiff does not actually argue that
his contract did not contain such a clause, nor does he give the Court any reason to believe that
the contract extension under which he was working at the time of his termination would not
contain that clause, given that the original contract had such a provision. (Def.’s Mot. to
Dismiss, Ex. A, at 1; id., Ex. B, at 1.)
12
the statute to which section 408 directly applies, defendant may apply this section to plaintiff by
virtue of defendant’s authority to apply the laws it administers to plaintiff’s employment.8
This case is analogous to Stewart v. Smith, 673 F.2d 485 (D.C. Cir. 1982), where the
statute at issue authorized agencies that employed law enforcement officers to set maximum ages
for appointment to law enforcement positions. Id. at 487-88. There, as here, the statute itself did
not impose an age limit, but rather it authorized the agency to do so. Plaintiff argues that Stewart
is inapposite because that statute explicitly authorized agency determination of age limits, and a
separate statutory provision imposed a mandatory retirement age on law enforcement officers.
(Pl.’s Reply at 10.) However, the fact that section 2(c) does not explicitly authorize age limits,
but instead grants the Secretary expansive authority to execute 2(c) contracts, does not render
Stewart inapposite. And, the existence in Stewart of a separate statutory provision containing a
retirement age does not change the fact that the statute at issue in Stewart, like the one here,
authorized agencies to adopt age limits that might otherwise violate the ADEA.
Thus, plaintiff’s argument that defendant engaged in impermissible rulemaking under the
ADEA is unpersuasive. Defendant merely exercised her authority under section 2(c) to apply
section 408, a law that defendant administers, to plaintiff’s employment. Additionally,
defendant’s interpretation of section 2(c) is not an after-the-fact, lawyer-made construction that
8
One might argue defendant is not authorized to apply section 408 to plaintiff because the
second clause only authorizes defendant to apply laws “concerning the employment of such
individuals,” i.e., 2(c) employees, and section 408 does not concern the employment of 2(c)
employees. Rather, it concerns the employment of individuals hired under 22 U.S.C. § 3943.
However, plaintiff does not make this argument, and the legislative history of the amendments
which added the second clause does not support it. The Conference Report for the 1985
amendments, in discussing an amendment “identical in substance” to the 2(c) amendments,
describes the amendments as authorizing “the Secretary of State to apply . . . authorities
administered by the State Department” to individuals hired by contract for personal services
abroad. H.R. Rep. 99-240, at 62-63 (1985) (Conf. Rep.). This language indicates that the
amendment encompassed all authorities administered by the State Department, not merely those
that already pertained to 2(c) employees.
13
could not have been understood by a reasonable person at the time. Rather, defendant’s
interpretation existed at the time that plaintiff’s contract was executed, and the contract explicitly
stated that it incorporated the LCP for the Embassy, which explicitly mandated retirement at age
65.
Thus, the Court concludes that under section 2(c) of the Basic Authorities Act, 22 U.S.C.
§ 2669(c), defendant was authorized to exempt plaintiff’s employment from the protections of
the ADEA.
CONCLUSION
For these reasons, the Court will grant defendant’s motion to dismiss for failure to state a
claim and the above-captioned case will be dismissed with prejudice. Given the Court’s
resolution of this matter, plaintiff’s cross-motion for summary judgment necessarily fails and all
other motions are denied as moot. A separate Order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
DATE: November 4, 2010
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