Error: Expected the default config, but wasn't able to find it, or it isn't a Dictionary
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 3, 2006 Decided December 15, 2006
No. 05-5361
JOHN A. PRICE,
APPELLANT
V.
BEN S. BERNANKE, CHAIRMAN,
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cv00973)
Nicholas W. Woodfield argued the cause for appellant.
With him on the briefs was R. Scott Oswald.
John L. Kuray, Senior Counsel, Board of Governors of
Federal Reserve System, argued the cause for appellee. With
him on the brief were Richard M. Ashton, Deputy General
Counsel, and Katherine H. Wheatley, Associate General
Counsel.
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Before: GARLAND and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Appellant John A.
Price is currently a mainframe systems manager for the
Federal Reserve Board, where he has been employed since
1980. In 2004 Price filed suit in district court claiming
discrimination on grounds of race, sex and age in violation of
Title VII of the 1964 Civil Rights Act and the Age
Discrimination in Employment Act (“ADEA”) (specifically
29 U.S.C. § 633a, the portion of the ADEA applicable to the
federal government); he also alleged retaliation against him
for his complaints under both statutes. The district court
granted the Board’s Motion to Dismiss or for Summary
Judgment, Price v. Greenspan, 374 F. Supp. 2d 177 (2005),
finding Price’s discrimination claims substantively
insufficient and his retaliation claims time-barred. In an
unpublished order we affirmed as to all issues other than
retaliation under the ADEA. Like the district court, we here
find the ADEA retaliation claim time-barred.
* * *
In 2001 and 2002 Price filed a series of administrative
complaints with the Board alleging discrimination and
retaliation. The Board rejected the retaliation complaint first,
and Price appealed its determination to the Equal Employment
Opportunity Commission (“EEOC”). The latter issued a final
decision upholding the Board’s decision on August 6, 2003.
The EEOC’s decision notified Price that he had 90 days in
which to file a civil action.
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On June 14, 2004, more than ten months after the
EEOC’s retaliation decision, Price filed a civil action pursuing
the Title VII and ADEA discrimination and retaliation claims
made in his administrative complaints. Under the ADEA,
federal employees may file a civil action if they are
dissatisfied with the outcome of an administrative process;
alternatively, they are free to bring suit in federal court in the
first instance. See 29 U.S.C. § 633a(b), (c) & (d).
The district court found the two retaliation claims time-
barred because Price had filed suit more than 90 days after the
EEOC’s final decision; the court treated both claims as
governed by the statutory 90-day filing deadline in Title VII,
42 U.S.C. § 2000e-16(c). Price, 374 F. Supp. 2d at 184-86. It
noted that, while the ADEA provision protecting federal
employees doesn’t itself mention a limitations period, “[m]ost
circuits hold that when a federal employee pursues an age
discrimination claim through the administrative process, that
employee faces the 90 day statute of limitations set forth in
Title VII, because Title VII offers the most analogous
statutory regime and limitations period.” Id. at 186.
* * *
The question before us is straightforward: What is the
appropriate statute of limitations for federal employees
advancing claims of discrimination under the ADEA in a civil
action if the EEOC has already addressed those claims? The
ADEA lacks an express statutory provision on the issue. The
Board believes that 90 days is the appropriate time period,
both because of the ADEA’s similarity to Title VII and
because such a limit represents the considered opinion of the
EEOC, the agency charged by Congress with administering
the ADEA. See 29 C.F.R. § 1614.407(c). Price advances at
least three alternatives: first, that his suit is governed by the
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four-year statute of limitations in 28 U.S.C. § 1658; second,
that he has six years under 28 U.S.C. § 2401; and third, that
we should borrow the two-year limitations period of the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 255.
Price’s first proposal, 28 U.S.C. § 1658, states that “a
civil action arising under an Act of Congress enacted after
[December 1, 1990] may not be commenced later than 4 years
after the cause of action accrues.” In Jones v. R.R. Donnelly
& Sons Co., 541 U.S. 369 (2004), the Supreme Court held that
§ 1658 applies only “if the plaintiff's claim against the
defendant was made possible by a post-1990 enactment.” Id.
at 382. There is no question that Price’s claim against the
Board depends exclusively on provisions adopted before
1990: 29 U.S.C. § 633a(c) has been unchanged since its
enactment in 1974, and the Board was covered from the
outset.
Price responds by noting that the ADEA has been
amended post-1990. Twice, in fact: once to create a cause of
action for employees of the Government Printing Office
(“GPO”) and Government Accountability Office (“GAO”),
1995 Pub. L. 104-1, Title II, Sec. 201(c)(2), 109 Stat. 8, and
again to create a cause of action for employees of the
Smithsonian, 1998 Pub L. 105-220, Title III, Sec. 341(b), 112
Stat. 1092. But Price is not an employee of any of the three,
so his cause of action against the Board was certainly not
“made possible” by those post-1990 amendments.
Price points, however, to Jones’s endorsement of the
benefits of uniformity of limitations. See 541 U.S. at 380-81
n.14 (“a uniform nationwide limitations period for a federal
cause of action is always more appropriate” than a rule that
applies to some but not to others) (internal citation omitted).
Accordingly, he argues, we should extend to him—and
presumably every other federal employee bringing an action
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under the ADEA—the same time period presumably enjoyed
by employees of the GPO, GAO, and Smithsonian. To hold
otherwise would, he says, “Balkanize[]” the statutes of
limitations applicable to federal employees.
In fact the Court’s concern in Jones involved the much
greater heterogeneity spawned when want of a federal
limitations period forces courts to hare off in search of a state
law analogue. See id. More important, Jones made clear that
§ 1658 must be read so as to properly reflect the trade-offs
between two important values—uniformity and preservation
of settled expectations. Concern for settled expectations had
persuaded the reversed court of appeals to give § 1658 a very
narrow reading, applying it only “when an act of Congress
creates a wholly new cause of action, one that does not
depend on the continued existence of a statutory cause of
action previously enacted and kept in force by the
amendment.” Id. at 374 (internal quotations omitted). The
Supreme Court acknowledged expectations’ importance, and
said that they
. . . provide a valid reason to reject an interpretation of
§ 1658 under which any new amendment to federal law
would suffice to trigger the 4-year statute of limitations,
regardless of whether the plaintiff's claim would have
been available—and subject to a state statute of
limitations—prior to December 1, 1990.
Id. at 381-82. In other words, the Court considered exactly
the proposal that Price makes here, and found that it gave
inadequate weight to legitimate expectations. We of course
follow suit.
Having rejected the application of § 1658’s general four-
year time period, we must borrow an appropriate statute of
limitations from an analogous statute. See DelCostello v. Int’l
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Bhd. of Teamsters, 462 U.S. 151, 158 (1983). In his brief,
Price suggested that we apply 28 U.S.C. § 2401(a)’s six year
catch-all statute of limitations for non-tort civil claims against
the United States, as the Ninth Circuit did in Lubniewski v.
Lehman, 891 F.2d 216, 221 (9th Cir. 1989). But Lubniewski
is not only an outlying decision but also an otherwise weak
reed, because its reasoning is based almost entirely on dictum
in a Second Circuit opinion, Bornholdt v. Brady, 869 F.2d 57
(2d Cir. 1989), a dictum now disavowed by that court. See
Long v. Frank, 22 F.3d 54, 56 (2d Cir. 1994). Both
Lubniewski and Bornholdt relied on the legislative history of
the ADEA and drew their conclusion almost entirely from a
shift between a draft of § 633a submitted to committee and the
final version. The draft had spelled out a limitations period
identical to that which then prevailed for similar claims under
Title VII; the final version was almost unchanged but for
deletion of that provision. But “[n]ot every silence is
pregnant.” State of Illinois Dept. of Public Aid v. Schweiker,
707 F.2d 273, 277 (7th Cir. 1983). We don’t believe much
can reasonably be inferred from this deletion—unexplained in
the legislative history yet explicable on a wide range of
grounds.
Lubniewski aside, applying § 2401(a)’s six-year limit
raises independent concerns. Though § 2401(a) sets an
outside time limit on suits against the United States, there is
nothing to suggest that Congress intended it to govern any
time a court finds a cause of action without a specific
limitations period. Moreover, doing so here would lead to the
anomalous result that a 90-day statute of limitations would
apply for claims brought against a private employer under the
ADEA, see 29 U.S.C. § 626(e), but a period of six years
would apply for claims against the federal government. Given
that statutes of limitations against the government involve a
waiver of sovereign immunity, it seems unlikely Congress
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intended such an anomaly. Accord Jones v. Runyon, 32 F.3d
1454, 1455 (10th Cir. 1994). Perhaps not surprisingly, at oral
argument counsel conceded that he didn’t think the
Lubniewski court was correct in its application of a six-year
limit. Recording of Oral Argument at 13:45 (“Frankly, I don’t
think the Lubniewski court in the Ninth Circuit is correct on
the six-year statute.”). We agree.
In his initial brief, Price pointed us to the FLSA’s two-
year statute of limitations. In particular, he noted that when
the ADEA was enacted in 1967, its prohibition on
discrimination in private employment on the basis of age
incorporated the enforcement scheme of the FLSA. Moreover
the Supreme Court once held that “violations of the ADEA
generally are to be treated as violations of the FLSA.”
Lorillard v. Pons, 434 U.S. 575, 578 (1978). Unfortunately
for Price, the analogy made in Lorillard “has no application in
th[e] context” of federal-sector ADEA cases “because
Congress did not incorporate the FLSA enforcement scheme”
into § 633a, the ADEA section applicable to the federal
government. Lehman v. Nakshian, 453 U.S. 156, 163 (1981).
The analogy also now happens to be outdated, as in 1991
Congress removed the FLSA’s incorporated statute of
limitations from the private-sector portions of the ADEA and
inserted a limitations scheme akin to that governing Title VII
actions—i.e., 90 days. See Civil Rights Act of 1991, Pub. L.
No. 102-166, § 115, 105 Stat. 1071, 1079 (codified as
amended at 29 U.S.C. § 626(e)). Again, not surprisingly,
Price retreated from reliance on the FLSA’s two-year limit in
both his reply brief and at oral argument. We agree as to its
implausibility.
Having rejected Price’s suggestions, we must consider the
Board’s claim that Title VII provides the most appropriate
source for borrowing a statute of limitations. This is the
position taken in published opinions by at least four other
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circuits, see Burzynski v. Cohen, 264 F.3d 611, 619 (6th Cir.
2001); Jones, 32 F.3d at 1458; Long, 22 F.3d at 58; Lavery v.
Marsh, 918 F.2d 1022, 1027 (1st Cir. 1990). This is not
surprising, as the Supreme Court has noted that § 633a is
“patterned directly after” 42 U.S.C. § 2000e-16, the provision
that provides Title VII protections to federal employees, and
that the bill’s author intended the age provision to be
“substantially similar to” the rights in place for federal
workers under Title VII. Nakshian, 453 U.S. at 163-64 &
n.15. Moreover, “the ADEA and Title VII share a common
purpose, the elimination of discrimination in the workplace
. . . .” Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979)
(quoted in Burzynski, 264 F.3d at 619, and Lavery, 918 F.2d at
1025).
While these factors provide an independent justification
for borrowing the Title VII limitations period, it is also
relevant that the EEOC—the agency responsible for enforcing
the ADEA—has endorsed the 90-day period. See 29 C.F.R.
§ 1614.407(c). In support of its interpretation of the ADEA,
the EEOC noted that by having identical limitations periods it
is more likely that administrative complaints alleging
violations of both statutes will be filed, processed, and
resolved at one time, avoiding the anomaly “that one lawsuit
resulting from one incident or event . . . would be governed by
different limitations periods.” 57 Fed. Reg. 12,634, 12,640
(April 10, 1992). The point is consonant with our statutory
analysis, which rests largely on the similarity between the
Title VII and ADEA causes of action. Accordingly, we hold
that when federal employees bring a civil action after pursuing
administrative remedies under the ADEA, the action must be
brought within 90 days of final agency action, the time period
allowed for similar suits under Title VII. The ruling of the
district court is therefore
Affirmed.