Rossiter v. Potter

United States Court of Appeals
For the First Circuit

No. 03-1860

PAUL L. ROSSITER,

Plaintiff, Appellant,

v.

JOHN E. POTTER, AS POSTMASTER GENERAL,
AND UNITED STATES POSTAL SERVICE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.

Richard C. Biller, with whom Goguen, McLaughlin, Richards &
Mahaney, LLP was on brief, for appellant.
Christopher R. Donato, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

January 27, 2004
 SELYA, Circuit Judge. This appeal involves a unique

provision of the Age Discrimination in Employment Act (ADEA), 29

U.S.C. §§ 621-634. A federal employee or a disappointed applicant

for federal employment — we use the term "federal employee"

throughout this opinion as a shorthand to cover both classes of

persons — who wishes to pursue an ADEA claim has a right, not

available to other ADEA claimants, to bypass the administrative

process and go directly to a federal district court. See id. §

633a(c)-(d). The sole issue to be decided in this appeal concerns

the limitations period that applies to such actions.

The only appellate court to have addressed this issue

thus far chose to borrow the limitations period used for Title VII

actions. See Edwards v. Shalala, 64 F.3d 601, 606 (11th Cir. 1995)

(citing 42 U.S.C. § 20000e-16(c)). Reluctant though we are to

create a circuit split, we part company with the Edwards court and

hold that when a federal employee opts to bypass the administrative

process and pursue an ADEA claim directly in the district court,

the applicable limitations period should be borrowed from the Fair

Labor Standards Act (FLSA), 29 U.S.C. § 255(a). That period, which

extends for at least two years from the date of the allegedly

discriminatory act or practice, is longer than either the 90-day

limitations period contained in Title VII or the hybrid period

fashioned by the lower court. See Rossiter v. Potter, 257 F. Supp.

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2d 440, 445 (D. Mass. 2003).1 Accordingly, we reverse the order

dismissing the plaintiff's complaint as time-barred and remand for

further proceedings.

I.

Background

Since this appeal deals primarily with matters of timing,

a thumbnail sketch of the facts will suffice. We draw that sketch

mindful that an appellate court reviews a dismissal for failure to

state a claim de novo, applying the same legal standards that bind

the trial court. Banco Santander v. López-Stubbe (In re Colonial

Mortgage Bankers Corp.), 324 F.3d 12, 15 (1st Cir. 2003).

Consequently, we assume the truth of all well-pleaded facts

contained in the complaint and indulge all reasonable inferences

therefrom to the plaintiff's behoof. Id.

In or around 2000, plaintiff-appellant Paul Rossiter

sought employment with the United States Postal Service (USPS).

After passing the USPS's preliminary screens (including a written

examination and a drug test), Rossiter was interviewed by Steve

1
The district court, in a failed attempt to reconcile Edwards
with pertinent Supreme Court precedent, devised a complicated
algorithm. It concluded that "the statute of limitations under the
ADEA for federal employees such as Rossiter who go directly to
federal court is the longer of (a) 120 days after filing notice
with the [Equal Employment Opportunity] Commission (the statutory
thirty-day waiting period plus Title VII's ninety-day limitations
period) or (b) one year and six days after the alleged
discriminatory incident, pursuant to the Supreme Court's statement
in Stevens [v. Dep't of Treasury, 500 U.S. 1 (1991)]." Rossiter,
257 F. Supp. 2d at 445.

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Froio, a USPS hierarch. Although Rossiter had 20 years of

experience in the service industry, the USPS refrained from

contacting any of his references. This did not bode well for

Rossiter's prospects, and in early January he received a letter

stating that he would not be hired.

Rossiter pursued the matter. On January 29, 2001, Froio

told him that he had been rejected because he seemed nervous during

the interview. Froio added that "[i]f [Rossiter] were 20 years

younger, being nervous would have been acceptable." When Rossiter

suggested that he was being denied employment on account of his

age, Froio replied: "It didn't help you any." Rossiter requested

that his application be reconsidered, but Froio told him that

reconsideration was impracticable as no more positions were

available. Less than ten days later, however, Rossiter received

correspondence announcing that the USPS was still seeking to hire

people in the job category for which he had unsuccessfully applied.

At age 46, Rossiter was a member of the class protected

by the ADEA. See 29 U.S.C. § 633a(a). Convinced that he had been

denied employment by reason of age discrimination, he contacted the

Equal Employment Opportunity Commission (EEOC) in mid-February.

Following an initial meeting, Rossiter submitted an informal

complaint. He later agreed to participate in mediation, which took

place on May 21, 2001. Nothing was resolved.

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 On July 26, 2001, Rossiter filed a notice of intent to

sue with the EEOC. From that point forward, the matter lay fallow

until November 28, 2002. Rossiter then filed a civil action in the

United States District Court for the District of Massachusetts

against the Postmaster General and the USPS. In it, he alleged

violations of the ADEA and its state counterpart, Mass. Gen. Laws

ch. 151B, § 4(1). The defendants (collectively, the government)

moved to dismiss the action, arguing (i) that the state-law claim

was preempted by the ADEA, and (ii) that the ADEA claim was time-

barred.

Rossiter did not contest the preemption argument, and the

district court dismissed the state-law claim. Rossiter's ADEA

claim proved to be a knottier problem. The district court took

this aspect of the case under advisement and ultimately ruled, in

a written rescript, that the claim was time-barred. Rossiter, 257

F. Supp. 2d at 445. This appeal ensued.

II.

Discussion

The path that we must travel has been well-marked. When

Congress creates a cause of action but is silent as to the

limitations period that should apply to the right created — as is

the case in 29 U.S.C. § 633a — the judicial task is to borrow the

most appropriate rule of timeliness from some other source.

DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 158 (1983).

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After careful review of the evolution of the ADEA and its various

enforcement schemes, we conclude that the FLSA provides the most

analogous rule of timeliness for ADEA actions brought by federal

employees who opt to bypass the administrative process.

A.

A Guide to the Statutory Scheme

Every journey is best understood if it begins with a

roadmap. Congress passed the ADEA with a view toward ending

workplace discrimination based on age. As originally enacted in

1967, the statute reached only private employers. See Pub. L. No.

90-202, § 11(b), 81 Stat. 602 (1967); see also Lehman v. Nakshian,

453 U.S. 156, 166 (1981). Seven years later, Congress elongated

the ADEA's reach to include governmental employers (federal, state,

and local). See Pub. L. No. 93-259, § 28, 88 Stat. 55 (1974); see

also Nakshian, 453 U.S. at 166. To accomplish this augmentation,

Congress broadened the ADEA's stock definition of "employer" to

include state and local governments, thereby subjecting such

employers to the enforcement mechanisms contained in the general

statutory scheme. See Pub. L. No. 93-259, § 28(a)(2), 88 Stat. 55

(1974); see also Nakshian, 453 U.S. at 166. Federal employers,

however, were treated differently: they were added in an entirely

new and distinct statutory section — one that contained its own

enforcement mechanisms. See Fair Labor Standards Amendments of

1974, Pub. L. No. 93-259, § 28(b), 88 Stat. 74, codified at 29

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U.S.C. § 633a; see also Nakshian, 453 U.S. at 166. This dichotomy

persists.

The general provisions of the ADEA (applicable to private

employers and to state and local governments) originally embodied

an enforcement scheme that resembled the FLSA's. See Lavery v.

Marsh, 918 F.2d 1022, 1024 (1st Cir. 1990). This included

incorporation of the FLSA's statute of limitations. 29 U.S.C. §

626(e) (amended 1991) (incorporating by reference 29 U.S.C. § 255).

The FLSA model set a limitations period of two years after the date

of injury for general violations and three years for willful

violations. See id. § 255(a).

In 1991, Congress removed the FLSA's incorporated statute

of limitations from this portion of the ADEA and inserted a

limitations scheme akin to that governing Title VII actions. 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). Under this

reconstructed framework, there is no external requirement that a

federal civil action predicated on an ADEA violation be filed

within a specified time following the date of the discriminatory

act or practice; rather, the applicable timing requirements relate

to, and derive from, the administrative process. An employee must

file an administrative complaint within 180 days of the alleged

discrimination in order to preserve his or her claim. 29 U.S.C. §

626(d)(1). This filing vivifies the administrative process, and

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the date of injury has no further bearing on the question of

timeliness. The applicable limitations period begins to run at the

end of the administrative process: from that point, the employee

has 90 days within which to bring suit. Id. § 626(e).

The legislative scheme for ADEA claims brought by federal

employees is materially different. Congress provided dual means of

enforcement for federal workers and left the choice between them to

the claimant. On the one hand, a federal employee may invoke the

EEOC's administrative process and thereafter file suit if he or she

is dissatisfied with the administrative outcome. See id. §

633a(b)-(c); see also Stevens v. Dep't of Treasury, 500 U.S. 1, 5

(1991). On the other hand, a federal employee may bypass the

administrative process altogether and file a civil action directly

in the federal district court. See 29 U.S.C. § 633a(c)-(d); see

also Stevens, 500 U.S. at 6. In that event, the only preconditions

are (i) that "no civil action may be commenced by any individual

under this section until the individual has given the [EEOC] not

less than thirty days' notice of an intent to file such action,"

and (ii) that "[s]uch notice shall be filed within one hundred and

eighty days after the alleged unlawful practice occurred." 29

U.S.C. § 633a(d); see Stevens, 500 U.S. at 6-7 (reaffirming these

preconditions).

The bottom line is that the hand-painted section of the

ADEA limning the rights of federal employees contains no express

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statute of limitations. Indeed, that section says nothing about

the outside date for the filing of suit (regardless of whether an

employee has elected to undergo or to bypass the administrative

process). Courts have been left to intuit the rules of timeliness

applicable to such ADEA actions, and those rules must be borrowed

from an exogenous source. See Stevens, 500 U.S. at 7. Devising an

appropriate limitations period is rarely easy — and here, the

duality of the means of enforcement exacerbates the difficulty of

the task.

B.

ADEA Bypass Actions: Why Title VII's Limitations

Period Does Not Fit

The borrowing equation differs in each of the two

configurations that Congress has provided. In cases in which a

federal employee opts for the administrative process, courts —

including this one — have most often agreed that the Title VII

limitations period is the most analogous and, therefore, have

elected to import it. See, e.g., Burzynski v. Cohen, 264 F.3d 611,

619 (6th Cir. 2001); Jones v. Runyon, 32 F.3d 1454, 1456 (10th Cir.

1994); Long v. Frank, 22 F.3d 54, 56 (2d Cir. 1994); Lavery, 918

F.2d at 1027. But see Lubniewski v. Lehman, 891 F.2d 216, 221 (9th

Cir. 1989) (applying six-year limitations period borrowed from 28

U.S.C. § 2401(a)). This importation makes good sense because when

a federal employee elects to enter the administrative process, the

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ADEA and Title VII enforcement schemes are homologous. Moreover,

in such a situation the federal employee is pursuing essentially

the same route that Congress has prescribed for non-federal

employees, and, thus, there is every reason to borrow a compatible

rule of timeliness.

This relatively straightforward answer does not resolve

the materially different question of where to derive an appropriate

rule of timeliness when a federal employee elects to bypass the

administrative process and file an ADEA suit directly in the

district court.2 In that situation, Stevens forecloses the

importation of Title VII's limitations period. We explain briefly.

In Stevens, the Supreme Court observed that the statutory

provision authorizing the bypass option, 29 U.S.C. § 633a(d),

"calls for a notice of not less than 30 days to the [EEOC] of an

intent to sue," and "that the notice shall be filed with the [EEOC]

within 180 days of the alleged unlawful practice." 500 U.S. at 6.

2
Lavery does not assist in answering this question. Although
we held there that Title VII's statute of limitations should be
applied to ADEA actions against federal employers, the case
involved an employee who had elected to undergo the administrative
process. See Lavery, 918 F.2d at 1022-23 ("We are asked to decide
. . . what period of limitations following a final agency decision
applies to an action alleging age discrimination brought by a
federal employee pursuant to the [ADEA].") (emphasis supplied). In
all events, the Supreme Court decided Stevens after Lavery, and the
rationale of Stevens precludes us from applying Lavery to bypass
cases. See text infra. By like token, Stevens effectively
abrogated our earlier decision in Castro v. United States, 775 F.2d
399, 403 (1st Cir. 1985) (per curiam), insofar as that decision
pertains to the interpretation of the ADEA's temporal requirements.
See Stevens, 500 U.S. at 7.

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Finding these two requirements satisfied, the Court asked whether

there were any other bases upon which the suit could be considered

time-barred. Id. at 7. Noting that the "statute does not

expressly impose any additional limitations period for a complaint

of age discrimination," the Justices concluded that Congress

intended that an appropriate limitations period should be borrowed

from state or federal law. Id. Although poised to decide which

rule of timeliness should be borrowed for use in connection with 29

U.S.C. § 633a(c)-(d), the Court refrained from making that

decision. It explained that there was no need to decide the

question because Stevens had filed his suit one year and six days

after the allegedly discriminatory event — an interval that was

"well within whatever statute of limitations might apply to the

action." Id. at 8 (quoting respondents' brief).

We think that this decision can only be read as a

definitive rejection of the importation of Title VII's limitations

period into the framework established by 29 U.S.C. § 633a(c)-(d).

We base this conclusion on two principal lines of reasoning.

First, the entire focus of the Stevens Court's inquiry was on the

date of the alleged discrimination as the accrual date for

limitations purposes. Under Title VII, the relevant date would

have borne some relation to final agency action, or at least to the

expiration of the 30-day notice period.

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 Second — and perhaps more important — if Title VII's

temporal requirements were to be applied to bypass actions,

Stevens's claim would have been time-barred. Stevens served a

notice of intent to sue on October 19, 1987, and filed suit on May

3, 1988. Stevens, 500 U.S. at 4. Were Title VII to be the source

of the borrowing, a federal employee who elected to bypass the

administrative process would have no more than 120 days from the

filing of his notice within which to commence a civil action. See

Edwards, 64 F.3d at 605-06 (finding that Title VII's limitations

period would begin to run no later than the expiration of the 30-

day waiting period following the filing of a notice of intent to

sue); Rossiter, 257 F. Supp. 2d at 445 (same). Since Stevens

started suit more than 120 days after he filed his notice of intent

to sue, the Supreme Court could not have found his suit timely

unless it rejected the proposed incorporation of Title VII's

limitations period into the ADEA's bypass scheme.

To be sure, the government resists this conclusion. It

suggests that the Court's comment — that Stevens's suit had been

brought "well within whatever statute of limitations might apply,"

500 U.S. at 8 — was mere dictum and that, in all events, the point

was never fully litigated. We reject these importunings.

First and foremost, when a statement in a judicial

decision is essential to the result reached in the case, it becomes

part of the court's holding. See Seminole Tribe v. Florida, 517

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U.S. 44, 66-67 (1996) (defining as binding both the court's result

and "those portions of the opinion necessary to that result").

Consequently, the Stevens Court's statement was not dictum.3

We also dismiss the government's attempt to sidestep

Stevens on the basis that the statute of limitations issue was

never fully litigated. That asseveration depends on the premise

that the Court's statement that Stevens's suit had been brought

"well within whatever statute of limitations might apply to the

action," 500 U.S. at 8, was merely a recitation of the government's

concession. That premise is faulty. Although the government

accepted Stevens's position on the question, the Supreme Court did

not stop there but chose to decide the issue, recognizing that a

final determination was essential to the outcome of the

litigation.4 See 500 U.S. at 7-8. In other words, the Supreme

Court resolved that the limitations issue was properly before it —

and we decline to second-guess the legal effect of that resolution.

3
We hasten to add that even if one were to categorize the
Court's statement as dictum — a proposition to which we do not
subscribe — that categorization would not shift our view. See
McCoy v. MIT, 950 F.2d 13, 19 (1st Cir. 1991) (concluding that
"federal appellate courts are bound by the Supreme Court's
considered dicta almost as firmly as by the Court's outright
holdings, particularly when . . . a dictum is of recent vintage and
not enfeebled by any subsequent statement").
4
In point of fact, the government's only ground of opposition
in Stevens was that the Court should not hear the case, and, thus,
the Court's choice to decide the merits is telling.

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 If more were needed — and we doubt that it is — sound

policy considerations support the result reached by the Stevens

Court. Title VII's limitations period is entirely derivative of,

and dictated by, the administrative process. The limitations

period begins to run upon final agency action. The bypass

procedure, however, is a horse of a vastly different hue. See

Burnett v. Grattan, 468 U.S. 42, 50-51 (1984) (discussing how going

through an administrative process differs from filing a claim

directly in court and noting, inter alia, that borrowing an

administrative statute of limitations for use in the latter

situation ignores the congressional determination that the claim

belongs in court). Because bypass actions involve no final agency

action, it would be anomalous to impress them with a Title VII-like

rule of timeliness.

The government attempts to parry this thrust by noting

that the EEOC must receive notice of a federal employee's intent to

sue in a bypass case. That is indisputably true, see 29 U.S.C. §

633a(d), but it is beside the point. This notice is a one-time

event that bears no real resemblance to the processing and

resolution of an administrative complaint. In a traditional ADEA

case, the administrative process, once begun, takes center stage

until an administrative outcome is reached. By that time, the case

is likely to be fully developed. Permitting a short window of

opportunity within which to file suit makes sense when that window

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follows a final agency determination. In that context, the short

window of time is actually more like a right to appeal than a

statute of limitations — and rights of appeal often have a severely

limited shelf life. See, e.g., 28 U.S.C. § 2107(a) (delineating a

30-day appeal period); Sup. Ct. R. 13 (requiring petitions for

certiorari to be filed within 90 days after judgment); Fed. R.

Bankr. P. 8002 (requiring generally that a notice of appeal be

filed within ten days of a bankruptcy court order). Moreover, the

administrative process is often lengthy and, thus, starting the

limitations period from the date of injury would run the risk of

allowing the expiration of the time for suit despite best efforts

on the employee's part.

These justifications are utterly absent in ADEA bypass

cases. There is no required agency action and no persuasive

rationale for linking a rule of timeliness to the time of agency

notification. Viewed holistically, bypass cases are more like

traditional civil suits, in which limitations periods begin to run

at the time of the injury. We think it is hardly coincidental that

this is the precise locus on which the Stevens Court focused.

Edwards does not persuade us to the opposite view.

There, a panel of the Eleventh Circuit ruled that the applicable

limitations period for ADEA actions brought pursuant to section

633a(c)-(d) should be imported from Title VII. Edwards, 64 F.3d at

606. Although the panel paid lip service to Stevens, it nowhere

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explained how the result that it reached was permissible under

Stevens. Because we do not see any principled way to square

Edwards with Stevens, we regard the Edwards decision as

fundamentally flawed and respectfully decline to follow it.5

C.

ADEA Bypass Actions: What Limitations Period Should Apply

Having determined that Title VII does not furnish the

applicable rule of timeliness for ADEA bypass actions, we are left

with the question of what limitations period should apply. The

inquiry that we must undertake requires us to determine, first,

whether a federal or state rule of timeliness should be imported.

See Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S.

143, 147 (1987). Given both the longstanding practice of borrowing

state periods of limitations when federal rights-creating statutes

contain no built-in timeliness rules and Congress's awareness of

that practice, courts ought generally to assume that Congress

intends by its silence that state law be borrowed. Id. But this

is a default rule — a "fallback rule of thumb," DelCostello, 462

U.S. at 158 n.12 — not a hard-and-fast mandate. See Communications

5
Without exception, the cases cited by the Edwards court in
support of importing Title VII's limitations period into the
framework of section 633a(c)-(d) are inapposite. All of them
involve federal employees who opted to undergo the administrative
process. See, e.g., Jones, 32 F.3d at 1455; Long, 22 F.3d at 55-
56; Lavery, 918 F.2d at 1023. As we explained above, the
limitations period applicable to "administrative process" cases
simply cannot be transplanted blindly into the bypass scheme.

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Workers of Am. v. Western Elec. Co., 860 F.2d 1137, 1139 (1st Cir.

1988) (explaining that "the glance in the direction of the state-

law cupboard should not be an automatic or reflexive one"). That

default rule must give way "when a rule from elsewhere in federal

law clearly provides a closer analogy than available state

statutes, and when the federal policies at stake and the

practicalities of litigation make that rule a significantly more

appropriate vehicle for interstitial lawmaking." Del Costello, 462

U.S. at 172; accord Agency Holding Corp., 483 U.S. at 147-48. This

is such a case.

The closest analogy to an ADEA bypass action logically is

to be found in anti-discrimination or employment legislation.

Although there are a myriad of federal statutes that fall under

those rubrics, most of them require exhaustion of an administrative

process as a precondition to court action. See, e.g., 42 U.S.C. §

2000e-5(e)(1) & (f)(1) (Title VII); id. § 12117 (Americans with

Disabilities Act). This renders their rules of timeliness useless

for our purpose: after all, the search for the most analogous rule

of timeliness places a high premium on both parallel enforcement

structures and congruent statutory goals. See Burnett, 468 U.S. at

49-50. The same disqualifier negates the possible use of a network

of state anti-discrimination statutes as a source for borrowed

rules of timeliness. See id. at 51 (noting that "some 30 states"

have administrative remedies modeled after Title VII).

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 Of course, analogies need not be "perfect," Agency

Holding Corp., 483 U.S. at 147, and the search for an appropriate

state-law analogue leads naturally to a consideration of rules of

timeliness generally applicable to claims for personal injury. On

reflection, however, this seems an unsatisfactory alternative. One

concern is that these statutes tend to be very general and, thus,

furnish only a loose fit for ADEA bypass actions. Another concern

arises out of the existence and availability of a more sharply

focused federal analogue.6 See Norman J. Singer, Statutes and

Statutory Construction 702 (2003 rev. ed.) ("When two or more

statutes of limitations deal with the same subject matter, the

statute which is more recent and specific will prevail over the

older and more general one.").

Our chief concern, however, is that the importation of

state rules of timeliness into the framework established for ADEA

bypass actions would "frustrate or interfere with the

implementation of national policies." Occidental Life Ins. Co. v.

EEOC, 432 U.S. 355, 367 (1977). That concern reflects two basic

premises. First, because section 633a applies only to federal

employers, the interest in uniformity is manifest. We think that

this interest matters. See Board of Regents v. Tomanio, 446 U.S.

6
Although not dispositive, we find it compelling that not one
court of appeals to have considered what limitations period to
borrow in an ADEA action against a federal employer has imported a
state rule of decision. See, e.g., Jones, 32 F.3d at 1455; Lavery,
918 F.2d at 1025.

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478, 489 (1980) (observing that uniformity is "a federal policy

which sometimes necessitates the displacement of an otherwise

applicable state rule of law"); see also Carlson v. Green, 446 U.S.

14, 23-24 (1980) (creating a federal common law of survivorship

rights for use in actions brought under Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971), based on the need for uniformity and

noting that "uniformity cannot be achieved if courts are limited to

. . . state law").7

Courts might have to swallow hard and tolerate these

several concerns if state law were the only source reasonably

available for borrowing. DelCostello, 462 U.S. at 169. Here,

however, that is not the case. Having considered and discarded the

full range of alternatives, we believe that the FLSA, a federal

statute, offers the closest analogy to ADEA bypass actions (and,

7
We note that courts generally have applied state statutes of
limitations to Bivens actions notwithstanding the fact that such
actions lie only against federal officers. See, e.g., Polanco v.
U.S. DEA, 158 F.3d 647, 653 (2d Cir. 1998); Delgado-Brunet v.
Clark, 93 F.3d 339, 342 (7th Cir. 1996); Matthews v. Macanas, 990
F.2d 467, 468 (9th Cir. 1993). But ADEA bypass actions are
distinguishable from Bivens actions for a variety of reasons.
First, the ADEA has been interpreted to preempt state causes of
action for age discrimination in employment. See, e.g., Britt v.
Grocers Supply Co., 978 F.2d 1441, 1448 (5th Cir. 1992). We
believe that this fact evinces Congress's preference for
uniformity of application. Second, Bivens is a court-created
remedy that serves as an analogue to 42 U.S.C. § 1983. It would
make little sense to apply different limitations periods to section
1983 claims and Bivens claims, both of which are "constitutional
tort" actions that allow vindication of personal interests. See
Polanco, 158 F.3d at 653.

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thus, constitutes the most appropriate source for borrowing a rule

of timeliness).

The FLSA's goals are congruent with the ADEA's: like the

ADEA, the FLSA was designed to protect individual workers. See

Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 739

(1981). The FLSA's enforcement mechanism also parallels the

enforcement mechanism characteristic of ADEA bypass actions, that

is, it creates private rights of action that do not depend upon a

regime of administrative enforcement. See, e.g., 29 U.S.C. §

216(b). Moreover, the FLSA's limitations period is designed to

accommodate a balance of interests similar to those at stake in

ADEA bypass actions. The importance of this fact is obvious. See

DelCostello, 462 U.S. at 169. And, finally, we deem it significant

that the very act that expanded the ADEA to include federal

employees was cast in the form of an amendment to the FLSA. These

considerations lead us to conclude that borrowing a rule of

timeliness from the FLSA is the preferred course — and one that is

entirely consistent with the congressional design.

To cinch matters, sound policy also supports resort to

the FLSA's limitations period. A two-year statute of limitations8

8
In point of fact, the FLSA has a bifurcated limitations
period. The basic period is two years. 29 U.S.C. § 255(a). This
period can, however, be extended for an additional year if the
cause of action arises out of a willful violation. Id. The case
at bar does not require us to decide when, if ever, the latter
period might apply in an ADEA bypass action.

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in no way undermines the salient interests served by timeliness

rules in federal anti-discrimination laws, which are meant to

"protect employers from the burden of defending claims arising from

employment decisions that are long past." Delaware State Coll. v.

Ricks, 449 U.S. 250, 256-57 (1980). In a bypass case, a federal

employee must give notice of intent to sue within 180 days of the

allegedly discriminatory act or practice, 29 U.S.C. § 633a(d), and

the federal employer thus will have an opportunity to investigate

the claim and preserve relevant records. We hold, therefore, that

the FLSA's rule of timeliness, 29 U.S.C. § 255(a), is the correct

rule of timeliness to apply to ADEA actions in which a federal

employee has elected to bypass the administrative process.

There is one loose end. As the government reminds us, 29

U.S.C. § 633a(f) says that personnel actions of any federal

employer to which section 633a applies should not be "subject to,

or affected by, any provision of this chapter." This is a

potential obstacle to our holding because, at the time that section

633a(f) was added, see Pub. L. No. 95-256, § 5(e), 92 Stat. 191

(1978), the FLSA's limitations period applied, by statute, to the

mine-run of ADEA cases, see 29 U.S.C. § 626(e) (amended 1991).

With this in mind, the suggestion is that section 633a(f) should be

construed to preclude application of the FLSA's rule of timeliness.

This reasoning is both convoluted and disingenuous.

Although it is true that section 633a(f) makes clear that federal

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employers are only bound by the specific provisions of section

633a, looking to the FLSA to borrow a rule of timeliness in no way

compromises that principle. The FLSA's statute of limitations is

no longer applicable to ADEA litigation involving private

employers. Consequently, our choice to import the FLSA's

timeliness rule into the framework of ADEA bypass actions does not

implicate any other provision of the ADEA. We merely refer to an

analogous statutory scheme to fill a void that must be filled

(i.e., to determine the appropriate limitations period for use in

bypass actions). This is an exercise in statutory interpretation,

not an application of forbidden provisions to the case at hand. In

the last analysis, then, section 633a(f) has no bearing on our

importation decision.

III.

Conclusion

We need go no further. To reiterate, we hold that the

correct rule of timeliness to be used in conjunction with bypass

actions brought under 29 U.S.C. § 633a is the FLSA's limitations

period. Applying this rule to Rossiter's ADEA claim, we find that

his suit — filed one year and ten months after the occurrence of

the allegedly discriminatory act — is timely. See Ricks, 449 U.S.

at 258-59 (holding that the appropriate focus in determining the

starting point of a limitations period in an employment

discrimination action is the communication of the allegedly

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discriminatory decision); Morris v. Gov't Dev. Bank, 27 F.3d 746,

749-50 (1st Cir. 1994) (explaining that the limitations period

begins to run when the claimant receives notice of the

discriminatory act). The district court erred in concluding

otherwise and in dismissing Rossiter's action as time-barred.

Accordingly, we reverse the order of dismissal and remand for

further proceedings consistent with this opinion.

Reversed and remanded.

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