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Miller v. Kerry

United States District Court, District of Columbia

February 20, 2013

John R. MILLER, Jr., Plaintiff,
v.
John KERRY,[1] Defendant.

Page 134

Joseph T. Mallon, Jr., Marshall N. Perkins, Mallon & McCool, LLC, Baltimore, MD, for Plaintiff.

James C. Luh, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

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 the Department of State because he turned 65 years of age. Plaintiff claims that his termination violated the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § 633a. This Court previously granted defendant's motion to dismiss for failure to state a claim on the grounds that section 2(c) of the Basic Authorities Act, 22 U.S.C. § 2669(c), permitted defendant to exempt plaintiff from ADEA coverage. See Miller v. Clinton, 750 F.Supp.2d 11, 19-20 (D.D.C.2010). The Court of Appeals for the District of Columbia Circuit reversed, holding that " nothing in the Basic Authorities Act [ ] abrogates the ADEA's broad proscription against personnel actions that discriminate on the basis of age" and remanded for further proceedings. Miller v. Clinton, 687 F.3d 1332, 1335 (D.C.Cir.2012).

Plaintiff has now filed a Renewed Cross-Motion for Summary Judgment as to Liability, as well as what is styled Plaintiff John Miller's Motion for Reinstatement to His Paris Embassy Position. Defendant has filed a Renewed Motion to Dismiss Request for Relief for Lack of Subject Matter Jurisdiction and Failure to State a Claim, as well as an Opposition to Plaintiff's Motion for Reinstatement to his Paris Embassy Position, or, in the Alternative, Rule 56(d) Motion for Discovery. As explained herein, the Court will grant plaintiff's motion for summary judgment as to liability, grant defendant's motion to dismiss plaintiff's request for compensatory damages, deny without prejudice plaintiff's motion for reinstatement, and grant defendant's motion for discovery.

BACKGROUND

The material facts of this case are not disputed, and were described in detail in the Court's previous opinion.[2] See Miller, 750 F.Supp.2d at 12-14. The Court will therefore present an abbreviated version here. Plaintiff was hired as Locally Employed Staff under section 2(c) of the Basic

Page 135

Authorities Act to work at the United States Embassy in Paris, France. (Compl. ¶¶ 1, 19.) Based on its reading of section 408 of the Foreign Service Act, 22 U.S.C. § 3968, and section 2(c) of the Basic Authorities Act, the State Department incorporated a " Retirement" clause establishing 65 as the " mandatory age limit" into plaintiff's employment contract. (Def. First Mot. to Dismiss [ECF No. 7] at 5-7; Ex. A to Def. First Mot. to Dismiss 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, since that was his 65th birthday. ( See Pl. Opp. to Def. First Mot. to Dismiss [ECF No. 11] at 5, 7.) Defendant asserted that the State Department's actions were consistent with section 2(c) of the Basic Authorities Act.

Plaintiff sought, but was denied, a one-year extension of his employment. ( See Compl. ¶ 1.) On July 30, 2007, he filed a complaint with the State Department, 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 ... shall be made free from any discrimination based on age." (Compl. ¶ 21; Ex. A to Compl.) On January 7, 2008, while his discrimination claim was pending before the State Department, 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 State Department entered a final order implementing that decision, pursuant to 29 C.F.R. § 1614.110(a). ( See Compl. ¶ 22; Ex. B to Compl.)

Plaintiff then sued seeking, inter alia, compensatory damages, reinstatement, back pay, attorneys' fees, and declaratory and/or injunctive relief for defendant's alleged violation of the ADEA. ( See Compl. ¶ 27.) Defendant moved to dismiss for failure to state a claim, arguing that plaintiff was not protected by the ADEA. ( See Def. First Mot. to Dismiss at 1-2.) This Court granted defendant's motion and dismissed the case. The Court of Appeals reversed that decision and remanded for further proceedings. The parties have now filed four motions, which the Court will address seriatim.

ANALYSIS

I. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY

Following the Court of Appeals' decision in this case, defendant has " chosen not to further contest the issue of whether plaintiff's termination was prohibited by the federal employment provisions of the ADEA[.]" (Def. Resp. to Pl. Renewed Cross-Motion [ECF No. 35] at 1.) Although defendant disputes certain facts in plaintiff's Statement of Material Facts, the disputed facts are either mooted by the Court of Appeals' decision or relevant to the issue of remedy, not to the issue of liability. Indeed, defendant concedes that " the only issue remaining to be resolved is ...


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