Edwards v. Shalala, 94-8405

• Decision Date: 15 September 1995
• Docket Number: No. 94-8405,94-8405
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 1414, 66 Empl. Prac. Dec. P 43,712, 64 USLW 2240 Richard A. EDWARDS, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 601

64 F.3d 601

68 Fair Empl.Prac.Cas. (BNA) 1414,

66 Empl. Prac. Dec. P 43,712, 64 USLW 2240

Richard A. EDWARDS, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, Defendant-Appellee.

No. 94-8405.

United States Court of Appeals Eleventh Circuit.

Sept. 15, 1995.

Richard R. Thomas, Atlanta, GA and Beus, Gilbert & Morrill, Phoenix, AZ, for appellant.

James Randolph Schulz, Asst. U.S. Atty., Atlanta, GA, for appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before COX, Circuit Judge, CLARK and WOOD ^*, Jr., Senior Circuit Judges.

WOOD, Jr., Senior Circuit Judge:

A federal employee brought suit alleging age discrimination in violation of the Age Discrimination in Employment Act. The Secretary for Health and Human Services moved for partial summary judgment on the basis that the action was barred by the statute of limitations. The district court granted the Secretary's motion and directed the entry of final judgment pursuant to Fed.R.Civ.P. Rule 54(b). ¹ Edwards v. Shalala 846 F.Supp. 997 (N.D.Ga.1994). Edwards appeals.

I.

The facts of this case are straightforward. Since 1979 Richard Edwards [Edwards] has been employed as an accountant by the federal government in the Health Care Financing Administration [HCFA]. The HCFA is a division under the supervision of the Department of Health and Human Services [HHS]. In 1985, HHS issued a notice that two accounting positions within HCFA were open. Both positions were one grade level higher than Edwards' current grade. Edwards, then fifty years old, applied for both positions but was denied [1986 events]. HHS subsequently filled the positions with persons at least ten years younger than Edwards. In July 1986, Edwards filed a notice of his intent to sue with the Equal Employment Opportunity Commission [EEOC]. A similar incident happened to Edwards again in 1990 [1990 events]. After the 1990 events, Edwards initiated this action alleging discrimination for both the 1986 and 1990 events pursuant to the Age Discrimination in Employment Act [ADEA] pertaining to actions against the federal government. ² 29 U.S.C. Sec. 633a. ³

HHS sought a partial summary judgment on the claim involving the 1986 events, claiming that Edwards' allegations concerning the 1986 events were time-barred. ⁴ Because the ADEA does not prescribe an appropriate statute of limitations for claims brought by federal employees who bring suit directly in federal court, the district court preliminarily determined that the governing statute of limitations would be the same limitations period used in private actions brought under the ADEA. See 29 U.S.C. Sec. 626(e). ⁵ The district court found that Edwards' claim relating to the 1986 events was time-barred under Sec. 626(e) and therefore granted HHS' motion for partial summary judgment. Edwards urges that the district court erred in applying Sec. 626(e) because Sec. 633a(f) explicitly states that claims brought under Sec. 633a are independent of and unaffected by all other provisions of the ADEA. Therefore, he argues, the statute of limitations for ADEA actions brought against private employers cannot be applied to ADEA actions against the federal government. Edwards appeals.

II.

We review the district court's grant of summary judgment de novo. Thornton v. E.I. Du Pont De Nemours & Co., 22 F.3d 284, 288 (11th Cir.1994); Vernon v. F.D.I.C., 981 F.2d 1230, 1232 (11th Cir.1993); Meek v. Metropolitan Dade County, 908 F.2d 1540, 1544 (11th Cir.1990). Summary judgment is appropriate only if it appears through the pleadings, affidavits, admissions and depositions that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). This case presents an issue of first impression for this circuit. In an age discrimination action brought directly to federal court by a federal employee, the ADEA is silent on the appropriate statute of limitations. The analysis begins with Sec. 633a(d): when claimants bypass the EEOC and initiate an action in federal court, they become subject to certain time limits and procedures provided for under Sec. 633a(d). That section provides:

When the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than 30 days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred. Upon receiving a notice of intent to sue, the Commission shall promptly notify all persons named therein as prospective defendants in the action and take any appropriate action to assure the elimination of any unlawful practice.

29 U.S.C. Sec. 633a(d). The Supreme Court clarified the time limits imposed under Sec. 633a(d) in Stevens v. Department of the Treasury, 500 U.S. 1, 111 S.Ct. 1562, 114 L.Ed.2d 1 (1991). In Stevens, the Court explained that plaintiffs have 180 days from the day the alleged unlawful practice occurred to notify the EEOC of their intent to sue. Id. at 6-7, 111 S.Ct. at 1566-67. Once the plaintiff notifies the EEOC, the plaintiff must wait at least 30 days from when the notice was given before filing suit in federal court. Id. The problem here is that Sec. 633a(d) is silent on how long after the expiration of the thirty day period a plaintiff can wait before filing a suit. The Court did not have to address this issue in Stevens because the federal employee's suit was filed within one year and six days after the alleged discrimination, well within whatever statute of limitations might have applied. The Court, however, in dicta stated:

There is no foundation that we can discern for any conclusion that the suit was not filed within the applicable period of limitations. The statute [Sec. 633a(d) ] does not expressly impose any additional limitations period for a complaint of age discrimination. We therefore assume, as we have before, that Congress intended to impose an appropriate period borrowed either from a state statute or from an analogous federal one.

Id. at 7, 111 S.Ct. at 1567. We must therefore "borrow" an appropriate statute of limitations from a statute that is "analogous" to the ADEA. The discussion turns on which statute is most analogous.

Edwards contends the appropriate statue of limitations for ADEA actions by federal employees is the six year statute of limitations for non-tort civil claims against the United States, 28 U.S.C. Sec. 2401(a). ⁶ The appellant's argument is that the express language in Sec. 633a(f) prohibits applying any other ADEA sections to the provisions of Sec. 633a. Therefore, Edwards contends that the district court erred when it applied the statute of limitations involved in private ADEA actions under Sec. 626(e) to federal employees' actions involving Sec. 633a. The government argues that the district court did not err in ruling the appellant's claim was time-barred, but the court should have borrowed the thirty day statute of limitations from Title VII, 42 U.S.C. Sec. 2000e-16(c).

There is a split among the circuits in determining which federal statute is "analogous" to the ADEA. The Ninth and the Second Circuits have both found in favor of Edwards' contention that the general statute of limitations under 28 U.S.C. Sec. 2401(a) applies. See Lubniewski v. Lehman, 891 F.2d 216 (9th Cir.1989); Bornholdt v. Brady, 869 F.2d 57 (2d Cir.1989). ⁷ There is also substantial authority that finds Title VII is most analogous to the ADEA and therefore Title VII's thirty day limitations period should apply. See Jones v. Runyon, 32 F.3d 1454 (10th Cir.1994); Long v. Frank, 22 F.3d 54 (2d Cir.1994); Lavery v. Marsh, 918 F.2d 1022 (1st Cir.1990); Elder v. Cisneros, No. 94 C 0597, 1995 WL 107108 (N.D.Ill March 8, 1995). The district court took a different route and found neither Title VII nor Sec. 2401(a) was as analogous to the ADEA as the Act's own Sec. 626(e). ⁸ See also Coleman v. Nolan, 693 F.Supp. 1544, 1548 (S.D.N.Y.1988); Wiersema v. Tennessee Valley Auth., 648 F.Supp. 66, 68 (E.D.Tenn.1986).

We initially find that the six year limitations period under 28 U.S.C. Sec. 2401(a) for non-tort civil actions against the federal government is not sufficiently analogous to the ADEA to apply its six year limitations period. We agree with the district court and several other courts which have found that it appears contrary to the Supreme Court's directives in Stevens to apply a statute of general applicability when there are other more relevant statutory provisions. See Lavery, 918 F.2d at 1026-27 (quoting Coleman v. Nolan, 693 F.Supp. 1544, 1548 (S.D.N.Y.1988)); Taylor v. Espy, 816 F.Supp. 1553, 1558 (N.D.Ga.1993); see also Wilson v. Garcia, 471 U.S. 261, 278-80, 105 S.Ct. 1938, 1948-49, 85 L.Ed.2d 254 (1985) (refusing to apply a catch-all provision when another statute of limitations governing conduct more closely analogous to the conduct at issue was available). Moreover, 28 U.S.C. Sec. 2401(a) merely sets an outside time limit on suits against the United States. This cannot be read to mean that when Congress creates a cause of action without a specific limitations period, the general statute should govern. Lavery, 918 F.2d at 1026. Further, it is inconsistent to suggest that Congress would allow a two to three year statute of limitations for a claim brought against a private employer, but provide a period up to six years for claims brought against the government. We find that the six year statute of limitations under 28 U.S.C. Sec. 2401(a) does not apply to ADEA claims brought by federal employees. Finding that the statute of limitations under Sec. 2401(a) does not apply, Edwards' claim is barred. Even if the court were to...