Miller v. Clinton

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

__________________________________________
)
JOHN R. MILLER, JR., )
)
Plaintiff, )
)
v. ) Civil Action No. 10-0512 (ESH)
)
JOHN KERRY, 1 )
)
Defendant. )
_________________________________________ )

MEMORANDUM OPINION

Plaintiff John R. Miller is a United States citizen who was employed by the Department

of State as a safety inspector at the United States Embassy in Paris, France, when he was

terminated by the Department of State because he turned 65 years of age. Plaintiff claims that

his termination violated the Age Discrimination in Employment Act of 1967 (“ADEA”), 29

U.S.C. § 633a. This Court previously granted defendant’s motion to dismiss for failure to state a

claim on the grounds that section 2(c) of the Basic Authorities Act, 22 U.S.C. § 2669(c),

permitted defendant to exempt plaintiff from ADEA coverage. See Miller v. Clinton, 750 F.

Supp. 2d 11, 19-20 (D.D.C. 2010). The Court of Appeals for the District of Columbia Circuit

reversed, holding that “nothing in the Basic Authorities Act [] abrogates the ADEA’s broad

proscription against personnel actions that discriminate on the basis of age” and remanded for

further proceedings. Miller v. Clinton, 687 F.3d 1332, 1335 (D.C. Cir. 2012).

1
Pursuant to Fed. R. Civ. P. 25(d), if a public officer named as a party to an action in her official
capacity ceases to hold office, the Court will automatically substitute that officer’s successor.
Accordingly, the Court substitutes Secretary John Kerry for Former Secretary Hillary Clinton.
1
 Plaintiff has now filed a Renewed Cross-Motion for Summary Judgment as to Liability,

as well as what is styled Plaintiff John Miller’s Motion for Reinstatement to His Paris Embassy

Position. Defendant has filed a Renewed Motion to Dismiss Request for Relief for Lack of

Subject Matter Jurisdiction and Failure to State a Claim, as well as an Opposition to Plaintiff’s

Motion for Reinstatement to his Paris Embassy Position, or, in the Alternative, Rule 56(d)

Motion for Discovery. As explained herein, the Court will grant plaintiff’s motion for summary

judgment as to liability, grant defendant’s motion to dismiss plaintiff’s request for compensatory

damages, deny without prejudice plaintiff’s motion for reinstatement, and grant defendant’s

motion for discovery.

BACKGROUND

The material facts of this case are not disputed, and were described in detail in the

Court’s previous opinion. 2 See Miller, 750 F. Supp. 2d at 12-14. The Court will therefore

present an abbreviated version here. Plaintiff was hired as Locally Employed Staff under section

2(c) of the Basic Authorities Act to work at the United States Embassy in Paris, France. (Compl.

¶¶ 1, 19.) Based on its reading of section 408 of the Foreign Service Act, 22 U.S.C. § 396, and

section 2(c) of the Basic Authorities Act, the State Department incorporated a “Retirement”

clause establishing 65 as the “mandatory age limit” into plaintiff’s employment contract. (Def.

First Mot. to Dismiss [ECF No. 7] at 5-7; Ex. A to Def. First Mot. to Dismiss at 1.) While

plaintiff was working as an Embassy safety inspector under a one-year contract extension that

was to expire in October 2007, he was notified that he would instead be terminated on July 23,

2007, since that was his 65th birthday. (See Pl. Opp. to Def. First Mot. to Dismiss [ECF No. 11]

2
While defendant disputes that plaintiff was terminated solely because he turned 65, asserting
instead that he was terminated because his contract incorporated a mandatory retirement age of
65, that distinction is immaterial given the Circuit’s ruling.
2
at 5, 7.) Defendant asserted that the State Department’s actions were consistent with section 2(c)

of the Basic Authorities Act.

Plaintiff sought, but was denied, a one-year extension of his employment. (See Compl. ¶

1.) On July 30, 2007, he filed a complaint with the State Department, alleging that his

termination based on age violated the federal employees provision of the ADEA, 29 U.S.C. §

633a(a), which states that “[a]ll personnel actions affecting employees . . . who are at least 40

years of age (except personnel actions with regard to aliens employed outside the limits of the

United States) . . . in executive agencies . . . shall be made free from any discrimination based on

age.” (Compl. ¶ 21; Ex. A to Compl.) On January 7, 2008, while his discrimination claim was

pending before the State Department, plaintiff filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”). (Compl. ¶¶ 21-22.) The EEOC dismissed plaintiff’s

complaint for failure to state a claim, and the State Department entered a final order

implementing that decision, pursuant to 29 C.F.R. §1614.110(a). (See Compl. ¶ 22; Ex. B to

Compl.)

Plaintiff then sued seeking, inter alia, compensatory damages, reinstatement, back pay,

attorneys’ fees, and declaratory and/or injunctive relief for defendant’s alleged violation of the

ADEA. (See Compl. ¶ 27.) Defendant moved to dismiss for failure to state a claim, arguing that

plaintiff was not protected by the ADEA. (See Def. First Mot. to Dismiss at 1-2.) This Court

granted defendant’s motion and dismissed the case. The Court of Appeals reversed that decision

and remanded for further proceedings. The parties have now filed four motions, which the Court

will address seriatim.

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 ANALYSIS

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

Following the Court of Appeals’ decision in this case, defendant has “chosen not to

further contest the issue of whether plaintiff’s termination was prohibited by the federal

employment provisions of the ADEA[.]” (Def. Resp. to Pl. Renewed Cross-Motion [ECF No.

35] at 1.) Although defendant disputes certain facts in plaintiff’s Statement of Material Facts,

the disputed facts are either mooted by the Court of Appeals’ decision or relevant to the issue of

remedy, not to the issue of liability. Indeed, defendant concedes that “the only issue remaining

to be resolved is what relief, if any, is due to the plaintiff.” (Id.) Plaintiff’s motion for summary

judgment as to liability will therefore be granted as conceded.

II. DEFENDANT’S RENEWED MOTION TO DISMISS REQUEST FOR RELIEF
FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO
STATE A CLAIM

Plaintiff has demanded “economic damages (including lost wages, lost benefits, lost

opportunity cost, and other financial injury), as well as non-economic damages such as physical

injury and substantial anxiety, mental anguish, etc.” (Compl. ¶ 27.) Additionally, plaintiff seeks

reinstatement to his Embassy position and indicates that if the Court does not grant his motion

for reinstatement “with full restoration of benefits,” he will seek “[l]egal/equitable relief . . . in

the amount of $113,015 relating to [his] loss of French social security benefits from his

wrongful, premature termination.” (Pl. Opp. to Def. Renewed Mot. to Dismiss [ECF No. 31] at

2.) Plaintiff also seeks recoverable attorneys’ fees. (See id. at 1; Compl. ¶ 27.) Defendant

moves to dismiss plaintiff’s request for compensatory damages, arguing that it is “barred by the

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sovereign immunity of the United States because the ADEA does not authorize awards of

damages against the Federal Government.” 3 (Def. Renewed Mot. to Dismiss [ECF No. 29] at 1.)

A. 12(b)(1)

To survive a motion to dismiss under Rule 12(b)(1), plaintiff must demonstrate that the

court has jurisdiction. See Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). Since

district courts are courts of limited jurisdiction, the inquiry into “subject matter jurisdiction is, of

necessity, the first issue for an Article III court.” Loughlin v. United States, 393 F.3d 155, 170

(D.C. Cir. 2004) (internal quotation and citation omitted). “When determining the question of

jurisdiction, federal courts accept the factual allegations contained in the complaint as true . . . .

Moreover, the Court can consider material outside of the pleadings when determining whether it

has jurisdiction.” Halcomb v. Office of the Senate Sergeant-At-Arms, 563 F. Supp. 2d 228, 235

(D.D.C. 2008) (citations omitted). “The United States, as sovereign, ‘is immune from suit save

as it consents to be sued, and the terms of its consent to be sued in any court define that court’s

jurisdiction to entertain the suit.’” Fornaro v. James, 416 F.3d 63, 66 (D.C. Cir. 2005) (quoting

United States v. Sherwood, 312 U.S. 584, 586 (1941)). Thus, it is appropriate for the Court to

decide at this stage whether compensatory damages are barred by sovereign immunity because it

3
The Court notes that defendant has reserved the right to file a further motion to dismiss requests
for other forms of relief to which plaintiff has alluded, such as “other ‘legal injuries’ including
‘lost opportunity cost[] and other financial injury,’” to the extent that they are barred by
sovereign immunity. (See Def. Renewed Mot. to Dismiss at 8 n.2 (quoting Compl. ¶ 27).) It is
assumed that these “other ‘legal injuries’” are what plaintiff has referred to in passing as
“specific economic damages directly and proximately resulting from the failure of Mr. Miller to
pay into French social security for 5+ years, as the result of the State Department’s unlawful
termination of Mr. Miller” (Pl. Opp. to Def. Renewed Mot. to Dismiss at 11). As defendant
suggests, these are properly categorized as consequential damages. (See Def. Reply at 3-4, n.1.)
But since the parties have not really addressed whether such damages can be recovered here, the
Court need not resolve this issue at this time.
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is a jurisdictional issue and the Court’s ruling will enable the parties to more efficiently define

the scope of discovery that remains.

B. ADEA

The purpose of the ADEA is “to promote employment of older persons based on their

ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help

employers and workers find ways of meeting problems arising from the impact of age on

employment.” 29 U.S.C. § 621(b). When it was first enacted, the ADEA applied only to private

employers. See Lehman v. Nakshian, 453 U.S. 156, 166 (1981). In its original form, “[t]he

substantive [] antidiscrimination provisions of the ADEA [we]re modeled upon the prohibitions

of Title VII, [while] [i]ts remedial provisions incorporate[d] by reference the provisions of the

Fair Labor Standards Act of 1938.” McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 358

(1995) (citations omitted).

In 1974, Congress expanded the ADEA’s scope to include state and local governments,

as well as federal employers. See Forman v. Small, 271 F.3d 285, 296 (D.C. Cir. 2001). While

Congress incorporated state and local government employers by adding them to the definition of

“employer” under the ADEA, see 29 U.S.C. § 630(b), it created an entirely new statutory

section, see 29 U.S.C. § 633(a), wherein it waived federal sovereign immunity with respect to

claims against federal employers. See Forman, 271 F.3d at 296. This “distinct statutory

scheme” was “based not on the FLSA but . . . on Title VII.” Nakshian, 453 U.S. at 166-67. See

also Gomez-Perez v. Potter, 553 U.S. 474, 487 (2008). As the Supreme Court has noted, § 633a

6
is “self-contained and unaffected by other sections.” Nakshian, 453 U.S. at 168 (referring to 29

U.S.C. § 633a(f)).) 4

C. Sovereign Immunity

Section 633a(c) waives sovereign immunity with respect to age discrimination claims

brought against federal employers. It reads: “Any person aggrieved may bring a civil action in

any Federal district court of competent jurisdiction for such legal or equitable relief as will

effectuate the purposes of this chapter.” 29 U.S.C. § 633a(c). See Gomez-Perez, 553 U.S. at 491

(“Subsection (c) of §633a unequivocally waives sovereign immunity for a claim brought by ‘any

person aggrieved’ to remedy a violation of §633a.”). The question before this Court is the scope

of the waiver with respect to remedies.

“In analyzing whether Congress has waived the immunity of the United States, we must

construe waivers strictly in favor of the sovereign and not enlarge the waiver beyond what the

language requires.” Forman, 271 F.3d at 296 (quoting Library of Congress v. Shaw, 478 U.S.

310, 318 (1986)). The Supreme Court has consistently stated that “a waiver of sovereign

immunity must be ‘unequivocally expressed’ in a statutory text.” Fed. Aviation Admin. v.

Cooper, 132 S. Ct. 1441, 1448 (2012) (citations omitted). “Any ambiguities in the statutory

language are to be construed in favor of immunity, so that the Government’s consent to be sued

is never enlarged beyond what a fair reading of the text requires.” Id. (citations omitted). “To

sustain a claim that the Government is liable for awards of monetary damages, the waiver of

sovereign immunity must extend unambiguously to such monetary claims.” Lane v. Pena, 518

4
“Any personnel action of any department, agency, or other entity referred to in subsection (a) of
this section shall not be subject to, or affected by, any provision of this chapter, other than the
provisions of sections 626(d)(3) and 631(b) of this title and the provisions of this section.” 29
U.S.C. § 633a(f).

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U.S. 187, 192 (1996) (citation omitted). See also Cooper, 132 S. Ct. at 1456 (holding that under

Privacy Act, federal government waived its sovereign immunity with respect to “actual

damages” but not with respect to damages for mental or emotional distress).

Plaintiff argues that § 633a(c)’s reference to “such legal or equitable relief as will

effectuate the purposes of this chapter” so clearly encompasses the monetary relief that plaintiff

seeks that “[t]he sovereign immunity cannon has no application.” 5 (Pl. Opp. to Def. Renewed

Mot. to Dismiss at 4.) This is a curious argument, since § 633a(c) is the sovereign immunity

waiver for the ADEA. Furthermore, by focusing narrowly on the text of the statute and by

ignoring sovereign immunity principles, plaintiff misses the point. He argues that “certain

traditional remedies of the ADEA – back pay; reinstatement/front pay – are essentially

injunctive, and hence, equitable in nature;” therefore, according to plaintiff, in order not to render

the term “legal relief” superfluous, it must mean something more. (Id. at 5.) Plaintiff further

asserts that “the phrase [] ‘legal relief,’ at the time the federal sector ADEA was enacted,

unmistakably meant the traditional array of tort remedies, including money damages.” (Id. at 6.)

In support, plaintiff refers to § 1981 and the entirely unrelated Magnuson-Moss Warranty Act, 15

U.S.C. § 2310. 6 There is no doubt that back pay and reinstatement/front pay fall into the

category of equitable relief and that damages, including compensatory and punitive damages, fall

into the category of legal relief. But this does not solve the inquiry, since the question remains

whether the government has explicitly waived its sovereign immunity under the ADEA for all

forms of legal relief or whether the waiver is more limited.

5
The case plaintiff cites in support, Richlin Security Service Co. v. Chertoff, 553 U.S. 571, 589-
90 (2008) is inapposite, as it primarily addresses the question of how to calculate paralegal fees
under the Equal Access to Justice Act, 5 U.S.C. § 504(a).
6
Notably, these same arguments were made by the plaintiff in Villescas and were rejected by the
Tenth Circuit. See Villescas v. Abraham, 311 F.3d 1253, 1261 (10th Cir. 2002).
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 D. Compensatory Damages

It is well-established that compensatory damages are not available under the non-federal

employer provisions of the ADEA. Without explicitly holding as much, the Supreme Court has

noted the unanimity among the circuits that “the ADEA does not permit a separate recovery of

compensatory damages for pain and suffering or emotional distress” for claims brought against

private employers. Comm’r of Internal Revenue v. Schleier, 515 U.S. 323, 326 (1995)

(collecting cases). This consensus is based largely on the fact that Congress incorporated the

FLSA remedial scheme into the non-federal provisions of the ADEA, and it is assumed that

Congress knew at the time of enactment that courts had long precluded compensatory damages

under the FLSA. See Pfeiffer v. Essex Wire Corp., 682 F.2d 684, 686 (7th Cir. 1982).

Additionally, considering the question of congressional intent, several courts “determined that

award of damages beyond unpaid wages and liquidated damages would hamper the

administrative conciliation process envisioned by the statute.” Id. at 687.

Numerous courts, including district courts in this jurisdiction, have extended the rule

against compensatory damages in private suits to suits against federal employers under § 633a.

See, e.g., Smith v. Office of Pers. Mgmt., 778 F.2d 258, 261 (5th Cir. 1985) (“Absent

congressional intent to provide for the recovery of damages other than lost wages, we decline to

imply such a remedy.”); Villescas, 311 F.3d at 1261 (“It would be anomalous to conclude that

Congress would decline to waive sovereign immunity for capped damages for willful

discrimination, yet be deemed to have waived sovereign immunity for unlimited compensatory

damages for intangible, non-economic injuries such as emotional distress[.]”); Moore v. Stone,

1994 WL 549733, at *3 (D.D.C. 1994) (“Nor does the ADEA create a right to compensatory or

liquidated damages or a jury trial in the federal employment context.” (citation omitted)); Walker

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v. United States Dep’t of Commerce, 2012 WL 1424495, at *7 (E.D. Cal. 2012) (in federal

employment case, noting that the “ADEA does not permit a separate recovery of compensatory

damages for pain and suffering or emotional distress.”); cf. Lindsey v. District of Columbia, 2012

WL 6840529, at *1 (D.D.C. 2012) (noting that § 633a “does not grant federal employees the full

scope of rights accorded to private, state, and local employees” resulting in restrictions on the

right to a jury trial, liquidated damages, and recovery of attorneys’ fees). The reasoning in these

cases is somewhat different than that in the non-federal employer cases, insofar as the FLSA

remedial scheme is not relevant to § 633a while sovereign immunity concerns are. However, the

bottom line is the same for federal and non-federal cases alike: compensatory damages are

precluded.

Although neither the Supreme Court nor the D.C. Circuit have directly addressed this

question, this Court is aware of no contrary authority. Nevertheless, plaintiff urges the Court to

ignore this unanimous chorus. He dismisses the relevance of these authorities on the grounds

that many have relied on the reasoning in Smith, a decision that plaintiff calls “objectively,

historically, and demonstrably wrong.” (Pl. Opp. to Def. Renewed Mot. to Dismiss at 9-10.)

This claim is not only bold, it is spurious. Plaintiff bases his critique of Smith principally on the

analysis in Lorillad v. Pons, 434 U.S. 575 (1978). (See Pl. Opp. to Def. Renewed Mot. to

Dismiss at 6-7.) However, Lorillard addressed only the private employer provisions of the

ADEA, and thus “has no application in this context.” Nakshian, 453 U.S. at 163. As the

Supreme Court made clear in Nakshian, the Lorillard Court’s analysis, and in particular the

significance it attached to the word “legal” in the phrase “legal or equitable relief,” is irrelevant

in the context of § 633a(c). See id.

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 Plaintiff also relies upon FLSA cases, such as Travis v. Gary Community Mental Health

Ctr., Inc., 921 F.2d 108 (7th Cir. 1990), which are equally inapt here, as the Supreme Court

explicitly recognized that “Congress did not incorporate the FLSA enforcement scheme into [§

633a].” Nakshian, 453 U.S. at 163. Accord Villescas, 311 F.3d at 1260 (distinguishing Travis

because it “deals with an FLSA statute expressly excluded from affecting §633a by §633a(f); it

does not analyze under the strictures of sovereign immunity; and its view of damages includes

punitive damages – highly unlikely by implication against the sovereign in an immunity

analysis.”) (See Pl. Opp. at 7-8.)

Taking into account the consensus view that compensatory damages are unavailable

under the ADEA, together with the long-standing principle that waivers of sovereign immunity

must be stated explicitly, this Court agrees with the Fifth and Tenth Circuits that “Congress did

not intend to provide broader relief to federal employees than for private sector employees.”

Villescas, 311 F.3d at 1259 (citing Smith, 778 F.2d at 261-62). The Court reaches this

conclusion while recognizing that this Circuit has issued a pronouncement that appears at first

blush to suggest the opposite: “Congress’s actions show that it intended its mandate to reach

more broadly in the federal sector than in the private sector.” Forman, 271 F.3d at 297. But

significantly, the issue before the Court of Appeals, as well as the evidence it cited in support,

pertained to the substantive reach of the federal employer provision of the ADEA. Indeed, §

633a(a) uses “sweeping language” requiring that “‘[a]ll personnel actions affecting employees . .

. who are at least 40 years of age . . . shall be made free from any discrimination based on age.’”

Forman, 271 F.3d at 297 (quoting 29 U.S.C. § 633a(a)). Based on this language, the Court of

Appeals found that Congress intended to include retaliation claims within the scope of the

federal employer provision. See id. at 298.

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 Similarly, the Court of Appeals decided, based on the same “sweeping language,” that

“plaintiffs may [] establish liability, though not necessarily entitlement to such remedies as

reinstatement and backpay, by showing that consideration of age was a factor in the challenged

personnel action.” Ford v. Mabus, 629 F.3d 198, 200 (D.C. Cir. 2011). In neither case,

however, did the Court of Appeals consider the meaning or reach of § 633a(c), the sovereign

immunity waiver provision that is at issue here. As the Supreme Court noted in considering

whether retaliation claims against a federal employer are cognizable under § 633a, “[t]hat the

waiver in § 633a(c) applies to § 633a(a) claims does not mean that § 633a(a) must surmount the

same high hurdle as § 633a(c).” Gomez-Perez, 553 U.S. at 491. Conversely, that § 633a(a) was

intended to cover a broad range of substantive claims does not mean that the waiver provision of

633a(c) should also be construed to provide a broad range of remedies.

It is true that the widely-cited Fifth Circuit Smith case was decided in 1985, prior to the

1991 Amendments, which added, inter alia, compensatory damages and the jury trial right to

Title VII. But that is an argument for adopting Smith’s analysis rather than rejecting it. When

Congress amended Title VII in 1991 to allow for compensatory damages, it could have decided

to do the same for the ADEA, but it did not. See Villescas, 311 F.3d at 1260 (“Congress had

another opportunity to enlarge the remedies available under the federal employee ADEA when it

amended Title VII and other Acts in the Civil Rights Act of 1991 to permit compensatory

damages, subject to caps, and it conspicuously chose not to do so for ADEA claims”) (citations

omitted); see also Smith v. City of Jackson, Miss., 544 U.S. 228, 240 (2005) (“While the relevant

1991 amendments expanded the coverage of Title VII, they did not amend the ADEA or speak to

the subject of age discrimination.”). As the Supreme Court recently remarked in a slightly

different context, “[w]e cannot ignore Congress’ decision to amend Title VII’s relevant

12
provisions but not make similar changes to the ADEA. When Congress amends one statutory

provision but not another, it is presumed to have acted intentionally.” Gross v. FBL Financial

Services, 557 U.S. 167, 174 (2009).

For these reasons, the Court agrees with the conclusion of every other court to have

addressed this issue: Congress has not waived federal sovereign immunity with respect to

compensatory damages under the ADEA. Accordingly, this Court lacks subject matter

jurisdiction over plaintiff’s request for compensatory damages, and defendant’s motion to

dismiss that request is granted.

III. PLAINTIFF’S MOTION FOR REINSTATEMENT AND DEFENDANT’S RULE
56(D) MOTION FOR DISCOVERY

Reinstatement is certainly an available remedy in ADEA suits against federal employers.

See 29 U.S.C. § 633a(b) (authorizing EEOC “to enforce the provisions of subsection (a) of this

section through appropriate remedies, including reinstatement or hiring of employees with or

without backpay, as will effectuate the policies of this section”); cf. Ford, 629 F.3d at 207 (can

establish liability under §633a by proving age was a factor, but may not be able to get

reinstatement or backpay without proving but-for causation). Indeed, reinstatement is the

preferred remedy under the ADEA, although it may not always be feasible or appropriate. See

Blim v. Western Electric Co., 731 F.2d 1473, 1479 (10th Cir. 1984) (holding that “courts should

order reinstatement under the ADEA whenever it is an appropriate remedy” because

“reinstatement best serves Congress’ purpose in enacting the ADEA” and “an award of front pay

is always somewhat speculative”); Palasota v. Haggar Clothing Co., 499 F.3d 474, 489 (5th Cir.

2007) (“The selection between reinstatement and front pay is discretionary with the trial court so

long as the relief granted is consistent with the purposes of the ADEA. Nevertheless,

reinstatement is by far the preferred remedy in an ADEA case.” (internal quotations and citations

13
omitted)); Maxfield v. Sinclair Int’l, 766 F.2d 788, 796 (3rd Cir. 1985) (“Reinstatement is the

preferred remedy to avoid future lost earnings, but reinstatement may not be feasible in all

cases.”).

Nonetheless, since no discovery has been undertaken, it is premature for the Court to

decide whether reinstatement is “feasible” under the present circumstances, or in the alternative,

whether front pay is an appropriate remedy. Similarly, back pay is clearly an available remedy,

see 29 U.S.C. § 633a(b), but the Court cannot yet determine the period of time for which plaintiff

would be entitled to back pay. Because the record is insufficiently developed for the Court to

make these determinations at this time, it will deny plaintiff’s motion for reinstatement without

prejudice and grant defendant’s Rule 56(d) motion for discovery. The scope of discovery will be

restricted to those matters that impact the form and calculation of the remedies that remain

potentially open to plaintiff.

CONCLUSION

For the reasons stated above, the Court will grant plaintiff’s motion for summary

judgment as to liability, grant defendant’s motion to dismiss plaintiff’s request for compensatory

damages, deny without prejudice plaintiff’s motion for reinstatement, and grant defendant’s

motion for discovery. A separate Order accompanies this Memorandum Opinion.

/s/
ELLEN SEGAL HUVELLE
United States District Judge

DATE: February 20, 2013

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