WASHINGTON – A federal appeals court has ruled that employees of the U.S. Public Health Service Commissioned Corps cannot sue under federal anti-discrimination laws because they are technically military officers.
A three-judge panel of the 4th U.S. Circuit Court of Appeals ruled in a published opinion Tuesday that Durand Hedin is in active military service, even though, in the words of his attorney, he “works in a civilian office and reports to civilian supervisors.”
The appellate ruling, the first of its kind since a 1998 revision to the Public Health Service Act, will affect the 6,000 officers in the corps, said Hedin’s attorney, Douglas Taylor Jr.
“This affects an entire new class of federal employees that now, probably much to their surprise, don’t have any rights under the anti-discrimination laws,” Taylor said.
But corps officers would still have the same anti-discrimination protections as a military officer.
The Rockville-based corps is the uniformed division of the Health and Human Services Department, and is led by the Surgeon General. Its Web site said the corps employs about 6,000 officers, who provide on-call treatment for public health emergencies as well as health care for underserved groups, such as American Indians and Alaska natives.
Hedin, a 52-year-old white pharmacist and commissioned officer, is a senior regulatory management officer with the Food and Drug Administration. He said in court documents that he was discriminated against because of his age, and that the department passed over him for promotions and “distributed work to him unfairly.”
Hedin filed three complaints with the Surgeon General, who ultimately ruled for the department. He then filed suit in U.S. District Court, claiming the department had violated Title 7 of the Civil Rights Act and the Age Discrimination in Employment Act of 1967, court documents said.
But the district court dismissed Hedin’s complaint, ruling that he was an “active service” officer as defined by Congress in the 1998 amendment to the Public Health Service Act and could not invoke the anti-discrimination laws.
Before the 1998 change to the law, courts had split on the issue of whether corps officers were active military. But the amendment states that commissioned public health service officers are in “active military service in the U.S. armed forces for purposes of all laws regarding discrimination on the basis of race and other specified factors.”
Taylor argued that corps officers should only be considered on active military service when they are actually engaged in a military situation, such as a war. Hedin should be considered a civilian, he said.
“He works in a purely civilian capacity at the FDA so, really, active military service wouldn’t apply to him,” Taylor said. “He stands in the same shoes as any other federal employee.”
But the government argued that Congress in 1998 clearly defined corps officers as part of the active military.
“Officers of the commissioned corps, in effect, have all the trappings of the military,” said Assistant U.S. Attorney Tarra DeShields-Minnis. “(Congress) makes it clear that when you are a commissioned corps officer in the public health services and are in active duty . . . you cannot sue in federal court.”
The appeals court agreed and upheld the lower court’s decision.
Circuit Judge Diana Gribbon Motz wrote in the opinion that Hedin’s active service in the commissioned corps is the same as the active military service Congress defined in 1998 and, therefore, he cannot sue.
Taylor called the circuit court’s decision a “close call,” repeating his insistence that the term is not clearly defined in the law.
“We think the meaning is ambiguous and Congress certainly did not help us out,” he said.
Hedin has not decided whether or not he will appeal to the full 4th Circuit or the Supreme Court, Taylor said.
-30- CNS 01-21-04