Lavery v. Marsh

• Decision Date: 28 December 1989
• Docket Number: Civ. A. No. 89-1471-K.
• Citation: Lavery v. Marsh, 727 F.Supp. 728 (D. Mass. 1989)
• Court: U.S. District Court — District of Massachusetts
• Parties: Stanley J. LAVERY, Plaintiff, v. John O. MARSH, Jr., Secretary of the Army, Defendant.

727 F. Supp. 728

Stanley J. LAVERY, Plaintiff, v. John O. MARSH, Jr., Secretary of the Army, Defendant.

Civ. A. No. 89-1471-K.

United States District Court, D. Massachusetts.

December 28, 1989.

Ernest C. Hadley, Wareham, Mass., for plaintiff.

Wayne Budd, Asst. U.S. Atty., Boston, Mass., for defendant.

MEMORANDUM AND ORDER

KEETON, District Judge.

Plaintiff is a Contract Cost and Price Analyst, GS-12, with the United States Army Materials Technology Laboratory ("MTL"). In August 1984, MTL solicited applications for the position of Procurement Officer, GM-13. Plaintiff, who was 59-years-old at the time, applied for the position, but in November 1984, MTL instead selected a 38-year-old who, plaintiff asserts, was less qualified. Plaintiff alleges that his nonselection was on account of his age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq., as amended.

Now before the court is defendant's Motion to Dismiss (Docket No. 3, dated and filed October 2, 1989). Defendant argues that this court lacks subject matter jurisdiction over the suit, Fed.R.Civ.P. 12(b)(1), and alternatively, that plaintiff has failed to state a cause of action, Fed.R.Civ.P. 12(b)(6), because plaintiff failed to file suit within thirty days of receiving notice of the final administrative action. Defendant's Memorandum of Points and Authorities in Support of Motion to Dismiss (Docket No. 4, dated and filed October 2, 1989). Plaintiff, in contrast, asserts that this cause of action is governed by a six-year statute of limitation, that he filed suit within six years, and that, even if the appropriate limitation period is thirty days from the receipt of final administrative decision, the limitation period is not jurisdictional and should be equitably tolled in this case. Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss (Docket No. 6, dated and filed October 20, 1989) (hereinafter "Plaintiff's Memorandum").

I. Introduction

The ADEA, which is designed to eradicate arbitrary employment discrimination on account of age, 29 U.S.C. § 621(b), had its origins in Title VII of the Civil Rights Act of 1964. During the 1964 floor debate over the bill that was to become Title VII, both the House of Representatives and the Senate considered amendments to the bill that would have barred employment discrimination on the basis of age as well as on the basis of race, color, religion, sex, and national origin. The amendments with regard to age-discrimination were ultimately rejected, in part because Congress did not yet have enough information to make a considered judgment about the nature of age-discrimination. Congress did, however, direct the Secretary of Labor to "make a full and complete study of the factors which might tend to result in discrimination in employment because of age and the consequences of such discrimination on the economy and individuals affected," and subsequently undertook its own study as well. Equal Employment Opportunity Commission v. Wyoming, 460 U.S. 226, 229-31, 103 S.Ct. 1054, 1056-57, 75 L.Ed.2d 18 (1983). Three years later, in 1967, Congress passed, and the President signed, the ADEA, many provisions of which paralleled provisions in Title VII. See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1977); Lehman v. Nakshian, 453 U.S. 156, 163-64, 101 S.Ct. 2698, 2703, 69 L.Ed.2d 548 (1981). As passed, the ADEA prohibited only private employers from discriminating on account of age, but in 1974, Congress amended the ADEA to extend its protections to federal employees. 29 U.S.C. § 633a.

As this court has noted before, federal employees have a choice of procedures for advancing complaints of age-discrimination:

Under 29 U.S.C. § 633a, a federal employee with a complaint of age discrimination may proceed either by filing a civil action in a federal district court after having given the EEOC Equal Employment Opportunity Commission at least thirty days notice of his or her intent to sue, 29 U.S.C. § 633a(c), § 633a(d), or by filing a complaint with the EEOC, 29 U.S.C. § 633a(b). An employee who has chosen the second alternative still has recourse to a civil action, although the statute does not specify at what stage or after what time he or she may file in district court.

Taylor v. Marsh, 624 F.Supp. 1042, 1042-43 (D.Mass.1985); see also Castro v. United States, 775 F.2d 399, 403 (1st Cir.1985).

In December 1984, plaintiff elected to pursue his claim through administrative channels, thereby beginning what would eventually be over four years of administrative review. Plaintiff's administrative odyssey ended on March 3, 1989 when, after having already entered a finding of no discrimination, the EEOC denied plaintiff's request to reopen and reconsider its prior decision, entered a final, nonappealable decision of no discrimination, and provided to the plaintiff the following "Statement of Appellant's ... Right to File a Civil Action":

You are hereby notified that there is no further right of appeal from a decision of the Commission on a Request to Reopen. You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) DAYS of the date that you receive this decision. As to any claim based on the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a), you MAY have up to six years after the right of action first accrued in which to file a civil action. See Lehman v. Nakshian, 453 U.S. 156 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981); 29 U.S.C. 633a(f); and 28 U.S.C. 2401(a)....

Denial of Request to Reopen at 4, reproduced at Plaintiff's Memorandum, ex. 3 (capitalization and emphasis in original) (hereinafter "Statement of Right to File a Civil Action").

On July 7, 1989, 126 days after the denial of the request to reopen, and about four-and-a-half-years after the alleged discriminatory nonselection, plaintiff commenced the instant action, asserting jurisdiction in this court by virtue of 29 U.S.C. § 633a and 28 U.S.C. § 2401(a) (catch-all six-year statute of limitation for nontort civil actions against the government). Cf. Statement of Right to File a Civil Action (citing 28 U.S.C. § 2401(a)). Whether § 633a is governed by a six-year statute of limitation as plaintiff maintains, a jurisdictional period of thirty days from the receipt of the EEOC's final decision as defendant contends, or some other limitation period, is an issue of first impression in this Circuit.

II. Limitation Period

The usual limitation period for the ADEA, codified at 29 U.S.C. § 626(e)(1) (incorporating 29 U.S.C. § 255) is two years from when the cause of action accrued, "except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." Section 633a, however, provides that actions brought under that section "shall not be subject to, or affected by, any provision of this chapter other than the provisions of section 631(b) which establishes an age limit of 40 years for § 633a actions and the provisions of this section." 29 U.S.C. § 633a(f). The statute of limitation contained in § 626(e)(1) is thus plainly inapplicable to this case. But see Wiersema v. Tennessee Valley Authority, 648 F.Supp. 66, 68, reconsideration denied, 1986 WL 15454, 41 Empl.Prac.Dec. ¶ 36,519 (E.D.Tenn.1986) ("despite the literal wording of § 633a(f), the two-year and three-year statutes of limitation under § 626(e) apply to ADEA actions by federal employees").

Both parties agree that this absence of a specified statute of limitation does not mean that the action is never time-barred:

As is often the case in federal civil law, there is no federal statute of limitations expressly applicable to this suit. In such situations we do not ordinarily assume that Congress intended that there be no time limit on actions at all.

DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 158, 103 S.Ct. 2281, 2287, 76 L.Ed.2d 476 (1983). Not surprisingly, however, the parties differ on how the court should fill this gap.

Plaintiff, no doubt influenced by the Statement of Right to File a Civil Action's citation to 28 U.S.C. § 2401(a), argues that

Congress has spoken clearly and unequivocally: "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues...." 28 U.S.C. 2401(a). Mr. Lavery maintains that in the absence of an expressed statute of limitations with the ADEA, or any clear guidance from the legislative history to the contrary, that Congress has provided a general statute of limitations for all actions against the United States which is applicable to this case.

Plaintiff's Memorandum at 4. If plaintiff's contention is correct — if the applicable statute of limitation is six years — then plaintiff's action, brought less than five years after the time of the alleged discriminatory nonselection, is not time-barred.

Citing DelCostello, defendant argues that the catch-all six-year statute of limitation is not applicable, and that the court should "borrow" a limitation period from some other source. 462 U.S. at 158, 161, 103 S.Ct. at 2287, 2289 (where "there is no federal statute of limitations expressly applicable ... our task is to `borrow' the most suitable statute or other rule of timeliness from some other source"; holding that, although courts typically borrow from a related state law, it is more appropriate in some cases to borrow from a related federal law). This general preference for "borrowing," the Court noted, is "a sort of fallback rule of thumb":

it rests on the assumption that, absent some sound reason to do otherwise, Congress would likely intend that the courts follow their previous practice of borrowing state provisions.... Justice Stewart pointed out in United Parcel Service, Inc. v. Mitchell 451 U.S. 56, 68 n. 4, 101 S.Ct. 1559, 1564 n. 4, 67

...