John Miller, Jr. v. Hillary Clinton

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.