Forester v. Ins

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILLIE A. FORESTER; LARRY E. 
DAVENPORT; ALFREDO CHAVEZ;
CARLOS M. TERAN; and DONALD E.
EVANS, SR., No. 05-16517
Plaintiffs-Appellants,
v.  D.C. No.
CV-01-00253-RCC
MICHAEL CHERTOFF, Secretary of OPINION
the Department of Homeland
Security,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding

Submitted April 17, 2007*
San Francisco, California**

Filed August 29, 2007

Before: Dorothy W. Nelson, Consuelo M. Callahan, and
Carlos T. Bea, Circuit Judges.

Opinion by Judge Callahan;
Dissent by Judge Bea

*Michael Chertoff is substituted for his predecessor, Tom Ridge, as
Secretary for the Department of Homeland Security. Fed. R. App. P.
43(c)(2).
**This panel previously granted appellants’ motion to submit this
appeal on the briefs. Fed. R. App. P. 34(a)(2).

10809
10812 FORESTER v. CHERTOFF

COUNSEL

Paul Randall Bays, Bays Smith Law, P.C., Litchfield Park,
Arizona, for the appellants.

Paul K. Charlton, United States Attorney, Christina M.
Cabanillas, Appellate Chief, Richard E. Gordon, Assistant
U.S. Attorney, and Janet K. Martin, Assistant U.S. Attorney,
Tucson, Arizona, for the appellee.

OPINION

CALLAHAN, Circuit Judge:

Appellants Alfredo Chavez (“Chavez”), Carlos M. Teran
 FORESTER v. CHERTOFF 10813
(“Teran”), and Donald E. Evans, Sr., (“Evans”) (collectively
“Plaintiffs”), alleged under Title VII, 42 U.S.C. § 2000e, and
the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621-634, that their employer, the United States Bor-
der Patrol, failed to promote them due to their age.1 The dis-
trict court granted the defendant’s motion for summary
judgment, concluding that it lacked subject matter jurisdiction
because Plaintiffs did not wait 30 days after filing a notice of
intent to sue with the Equal Employment Opportunity Com-
mission (“EEOC”) before filing suit. The district court also
declined to provide equitable relief from the timing require-
ment. Plaintiffs appeal, alleging that the district court had
jurisdiction and erred in not granting equitable relief. We
vacate the district court’s order granting summary judgment
and remand.2

I.

Plaintiffs brought a lawsuit against the defendant seeking
relief under Title VII and the ADEA for alleged employment
discrimination and retaliation. Plaintiffs allege that discrimi-
natory acts began after Border Patrol Agent Rowdy Adams
(“Adams”) was assigned as Patrol Agent in Charge to the
Douglas Border Patrol station where Plaintiffs worked. Plain-
tiffs claim that Adams intended to eliminate the older workers
from the Douglas Border Patrol station. Specifically, Chavez
alleges that he applied for a promotion, but Adams selected
younger and less experienced employees simply because of
age. Teran alleges that he was removed from a position over-
1
The lawsuit and appeal originally included plaintiffs Willie A. Forester
and Larry E. Davenport. Each was dismissed by stipulation on June 6,
2006.
2
The Government alleges that it maintained in the district court that the
court lacked jurisdiction over any ADEA based retaliation claim because
the Government had not waived its sovereign immunity for such claims.
Because the district court has not addressed this assertion, and it is not
critical to our disposition of this appeal, we leave it to the district court to
consider the claim on remand should the government continue to assert it.
10814 FORESTER v. CHERTOFF
seeing construction of a border fence and replaced with a
younger agent on account of his age. Evans also claims that
he was discriminated against because of his age. Plaintiffs
maintain that each would have been promoted but for his age.

Plaintiffs participated in counseling with the EEOC and
received letters (“Rights Memoranda”) in late February 2001,
advising them of their “rights in pursuing an EEOC com-
plaint.” On the third page of each letter, the EEOC describes
the process necessary for filing an age discrimination claim,
including the following:

[Y]ou may elect to bypass the administrative proce-
dure and file a civil action directly in an appropriate
U.S. District Court, after first filing a written notice
of intent to file a civil action with the EEOC within
180 calendar days of the date of the alleged discrimi-
natory action. Once a timely notice of intent to sue
is filed with the EEOC, you must wait at least 30 cal-
endar days before filing a civil action.

Between March and May 2001, Plaintiffs each received coun-
seling reports from the EEOC and Notices of the Right to File
a Formal Complaint (“Complaint Letter”).

On May 23, 2001, Plaintiffs each sent a notice of intent to
sue to the EEOC. Nine days later, on June 1, 2001, Plaintiffs
filed a complaint in the United States District Court for the
District of Arizona. On July 5, 2001, the EEOC sent letters to
the appropriate staff director at the employing agency,
informing the director of the Plaintiffs’ notices of intent to sue
and requesting a complete inquiry within 30 days. There is no
indication that any further administrative action was taken.

Plaintiffs filed amended complaints on October 16, 2001,
and on January 17, 2002. After discovery, the defendant filed
a motion for summary judgment on January 13, 2004, alleg-
ing that Plaintiffs failed to comply with the ADEA’s 30-day
 FORESTER v. CHERTOFF 10815
notice of intent to sue requirement. Plaintiffs voluntarily dis-
missed each of their claims except those under the ADEA and
for retaliation under Title VII.

In May 2005, the district court granted the motion for sum-
mary judgment, concluding that it lacked jurisdiction over
Plaintiffs’ ADEA claims because the complaint was filed pre-
maturely. It also denied Plaintiffs equitable relief. The court
reasoned that because Plaintiffs had been informed of the 30-
day notice of intent to sue requirement by the Rights Memo-
randa and were represented by an attorney at the time the
complaint was filed, equitable relief was not available under
the Ninth Circuit’s decision in Hageman v. Phillips Roxane
Laboratories, Inc., 623 F.2d 1381 (9th Cir. 1980) (denying
equitable relief where plaintiff, represented by counsel,
waited a substantial period of time before filing his com-
plaint).

II.

A district court’s grant of summary judgment is reviewed
de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004).
Viewing the evidence in the light most favorable to the non-
moving party, we must decide whether any genuine issues of
material fact exist and whether the district court correctly
applied relevant substantive law. Johnson v. Henderson, 314
F.3d 409, 413 (9th Cir. 2002).

III.

Plaintiffs assert that had they filed their complaint 30 days
after filing notice of intent to sue, they would have forfeited
judicial review of some of their discrimination allegations
because they believed they were required to file their civil
action within 180 days of the alleged discriminatory conduct.
Plaintiffs are incorrect.

A private or state (collectively “private”) employee who
believes he has been discriminated against on the basis of age
10816 FORESTER v. CHERTOFF
must file a complaint with the EEOC within 180 days of the
alleged discrimination, or 300 days in a deferral state. 29
U.S.C. § 626(d) (2000). The employee may not file a civil
action in district court until 60 days after filing the charge
with the EEOC. Id.

[1] By contrast, a federal employee who believes he has
been discriminated against because of age has two options
under 29 U.S.C. § 633a (2000). First, he may file an adminis-
trative action directly with the EEOC. 29 C.F.R. § 1614.105.
After exhausting the administrative remedies by waiting 180
days after filing an administrative action with the EEOC, or
upon receiving a final agency determination, the employee
may file a civil action in district court. Id. at § 1614.201(c).
Second, a federal employee may bypass administrative pro-
ceedings and file directly in district court (“bypass provi-
sion”). 29 U.S.C. § 633a(d); 29 C.F.R. § 1614.201(a). To do
so, the employee is required to file a notice of intent to file
a civil action with the EEOC within 180 days from the alleged
discriminatory conduct, and then wait 30 days before filing
the civil action.3 Plaintiffs are federal employees and filed
their complaint under the bypass provision.

[2] Contrary to Plaintiffs’ fears, the Supreme Court’s opin-
ion in Stevens v. Department of Treasury, 500 U.S. 1, 7
(1991), establishes that their claims would not have been
barred had they waited 30 or more days after filing their
3
29 U.S.C. § 633a(d) states:
When the individual has not filed a complaint concerning age dis-
crimination with the Commission, no civil action may be com-
menced by any individual under this section until the individual
has given the Commission not less than thirty 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 Commis-
sion shall promptly notify all persons named therein as prospec-
tive defendants in the action and take any appropriate action to
assure the elimination of any unlawful practice.
 FORESTER v. CHERTOFF 10817
notices of intent to sue before filing their lawsuit. In Stevens,
the district court dismissed Stevens’ civil action brought
under the ADEA because Stevens, a federal employee, did not
“notify the EEOC within thirty days prior to commencing
suit.” Id. at 6. The Supreme Court vacated the dismissal. It
noted that Stevens had filed his notice of intent to sue 176
days after the alleged discriminatory action, but he did not file
his lawsuit until more than 30 days after giving notice. Id. at
6-7. The Supreme Court held that, according to the plain lan-
guage of § 633a, Stevens satisfied the bypass provision by
giving notice of intent to sue within 180 days from the date
of the alleged discriminatory conduct and filing his civil
action more than 30 days after he gave notice of intent to sue.
Id. at 7. The Supreme Court recognized that some limitations
period for filing a complaint was necessary, and held that
because § 633a contained no limitations period, a limitations
period should be borrowed from an analogous federal or state
statute. Id. The Court, however, declined to adopt a particular
limitations period because Stevens filed his suit “only one
year and six days after the allegedly discriminatory event,”
which respondents acknowledged was “well within whatever
statute of limitations might apply to the action.” Id. at 8 (quo-
tation marks and citations omitted).

[3] After Stevens, it is clear that Plaintiffs were not required
to file their civil action in the district court within 180 days
of the alleged discriminatory conduct. Indeed, following Ste-
vens, the district court would have retained jurisdiction if
Plaintiffs had waited considerably more than 30 days after fil-
ing their notice of intent to sue before filing their lawsuit, and
waiting would not have limited the scope of the district
court’s review.

IV.

[4] In another case, the Supreme Court addressed a provi-
sion that required charges of discrimination in violation of
Title VII to be filed with the EEOC within 180 days from the
10818 FORESTER v. CHERTOFF
alleged discriminatory action. Zipes v. Trans World Airlines,
Inc., 455 U.S. 385 (1982). The Court held “that filing a timely
charge of discrimination with the EEOC is not a jurisdictional
prerequisite to suit in federal court, but a requirement that,
like a statute of limitations, is subject to waiver, estoppel, and
equitable tolling.” Id. at 393. The Court wrote:

The provision granting district courts jurisdiction
under Title VII, 42 U.S.C. §§ 2000e-5(e) and (f),
does not limit jurisdiction to those cases in which
there has been a timely filing with the EEOC. It con-
tains no reference to the timely-filing requirement.
The provision specifying the time for filing charges
with the EEOC appears in an entirely separate provi-
sion and it does not speak in jurisdictional terms or
refer in any way to the jurisdiction of the district
courts.

Id. at 393-94. Although the language in Title VII is manda-
tory (“A charge under this section shall be filed within one
hundred and eighty days after the alleged unlawful employ-
ment practice.” 42 U.S.C. § 2000e-5(e)(1)), the Court
declined to hold that it was jurisdictional because the lan-
guage was not contained within a jurisdiction-conferring stat-
ute.4

[5] The provision before the Supreme Court in Zipes was
similar to the provision in § 633a(d) which states that “[s]uch
notice shall be filed within one hundred and eighty days.”
4
The Court also based its reasoning on the legislative history of the
ADEA, which was modeled after Title VII. Id. at 395 n.11. The House
Conference Report on the 1978 revision of the ADEA stated that the
requirement for filing a charge within 180 days of the alleged discrimina-
tory conduct was not jurisdictional and was subject to equitable modifica-
tion. Id. (quoting H.R. Rep. No. 95-950, at 12 (1978) (Conf. Rep.), as
reprinted in 1978 U.S.C.C.A.N. 528, 534); see also Boyd v. U.S. Postal
Serv., 752 F.2d 410, 414 (9th Cir. 1985) (“A timely filing of an EEOC
charge is not a jurisdictional prerequisite to suit.”).
 FORESTER v. CHERTOFF 10819
Accordingly, Zipes weighs against holding the 180-day period
in § 633a(d) to be jurisdictional. Moreover, if the mandatory
language in § 633a(d) concerning the 180-day filing require-
ment is not jurisdictional, it follows that the mandatory lan-
guage concerning the 30-day waiting period also need not be
construed as jurisdictional.5

V.

Before we can follow the approach the Supreme Court took
in Stevens and Zipes, we must consider our opinion in Demp-
sey v. Pacific Bell Co., 789 F.2d 1451 (9th Cir. 1986). In
Dempsey, we strictly construed the 60-day period that a pri-
vate employee is required to wait before filing a civil action
in the district court. Id. at 1451. Dempsey, a private
employee, filed a complaint with the EEOC and the equiva-
lent California agency alleging age discrimination. Id. at
1452. Without waiting 60 days, Dempsey filed a civil action
in district court. We held that the 60-day waiting period was
jurisdictional, citing its purposes of providing the EEOC time
to investigate claims and bring its own suit, and to provide
employers with notice and a chance to settle the dispute with-
out litigation.
5
Section 633a acts as a waiver of Federal sovereign immunity. Lehman
v. Nakshian, 453 U.S. 156, 160 (1981). Sovereign immunity is a threshold
question that is sometimes described as “jurisdictional.” Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 94 (1990). Waiver of sovereign immunity
will be strictly construed in terms of its scope, in favor of the sovereign.
Lane v. Pena, 518 U.S. 187 (1996). The Supreme Court has stated, how-
ever, that “[o]nce Congress has made such a waiver, we think that making
the rule of equitable tolling applicable to suits against the Government, in
the same way that it is applicable to private suits, amounts to little, if any,
broadening of the congressional waiver.” Irwin, 498 U.S. at 95 (holding
that time limits within Title VII are subject to equitable tolling in suits
against the federal government). Accordingly, equitable tolling is applica-
ble to ADEA suits against the United States to the same extent as it would
be in actions against private persons.
10820 FORESTER v. CHERTOFF
[6] Our opinion in Dempsey is not controlling for several
reasons. First, Dempsey interpreted the private employee
administrative waiting period, which is distinct from the pub-
lic employee bypass provision at issue here. Second, Dempsey
is equivocal on whether the district court lacked authority to
grant equitable relief. Third, subsequent Supreme Court cases
have clarified that the term “jurisdiction” should be reserved
for instances where courts lack any authority to grant relief.

A.

Dempsey concerned the 60-day time period that a private
employee must wait after filing a formal charge with the
EEOC before his right to file a civil action matures. By con-
trast, the case at bar concerns the 30-day time period for
which a federal employee must wait pursuant to the bypass
provision before filing his existing civil action under 29
U.S.C. § 633a. Private employees must file a charge with the
EEOC before filing suit, while federal employees need only
file notice of intent to sue. Compare 29 U.S.C. § 626(d) with
29 U.S.C. § 633a(d). The provisions have distinct purposes
and effects. A charge begins an investigation by the EEOC,
which may culminate with a civil action by the EEOC should
the EEOC be unable to informally resolve the complaint.
EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984). By contrast,
the notice requirement, while alerting the EEOC to the dis-
pute, does not necessarily result in an EEOC administrative
proceeding. Moreover, the federal employee’s right to file a
judicial complaint is not subject to, or preempted by, any
action by the EEOC. Aronsen v. Crown Zellerbach, 662 F.2d
584, 589 (9th Cir. 1981).

[7] A notice of intent to sue has different purposes and
effects from the charge at issue in Dempsey. The notice does
not have the effect of starting an administrative proceeding by
the EEOC, though it may trigger an investigation, and so there
is no need to “allow[ ] the EEOC time to file its own suit.”
Dempsey, 789 F.2d at 1452. There is no risk of jointly running
 FORESTER v. CHERTOFF 10821
administrative and judicial actions, as there would be under
§ 626, if private employees did not comply with the waiting
period. Cf. Bankston, 345 F.3d at 771 (“[A]n administrative
exhaustion rule is meaningless if claimants may impede and
abandon the administrative process and yet still be heard in
the federal courts.” (citation omitted)). Indeed, the bypass
provision does not require exhaustion of administrative reme-
dies because no administrative proceeding ever begins.
Accordingly, we do not read Dempsey as holding that all
waiting provisions of the ADEA are jurisdictional.

B.

[8] Furthermore, it is not clear that Dempsey actually held
that the district court lacked the authority to grant equitable
relief. The panel ordered Dempsey’s claim dismissed but then
stated “since equitable tolling factors may exist in this case,
we direct the district court, in the event Dempsey should refile
his complaint within the time period hereafter specified, to
evaluate those factors in making a determination of whether
the statutes of limitation of 29 U.S.C. §§ 626(d) and (e)
should be tolled.” 789 F.2d at 1451-52. The opinion further
notes that “a strict jurisdictional bar could adversely affect
plaintiffs, particularly those proceeding pro se, by barring
those who discover their jurisdictional error after the 180-day
or 300-day statutes of limitation,” and that “if a plaintiff’s
jurisdiction error was the result of excusable ignorance and
defendant was not prejudiced by the error, the statutes of limi-
tation could be tolled.” Id. at 1453 (citation omitted). Thus, it
appears that the panel in Dempsey did not think that its deci-
sion would necessarily deprive Dempsey of judicial review of
his claim.6
6
Our opinion in Dempsey may be read as holding that although the stat-
ute of limitations for filing a charge with the EEOC and the appropriate
state agency could be equitably tolled, the 60-day waiting period could not
be tolled. Id. at 1453. Thus, if Dempsey continued to want judicial review
of his discrimination claim, he had to file a new complaint, now well
beyond the 60-day waiting period, and seek equitable relief for filing the
complaint so late. It is not clear why such an approach would be superior
to allowing a court to consider granting equitable relief in the pending
case.
10822 FORESTER v. CHERTOFF
C.

Our determination that the district court did not lack juris-
diction to grant Plaintiffs relief is bolstered by several recent
Supreme Court cases addressing the definition of “jurisdic-
tion.” In a case with similar subject matter to the case at bar,
the Supreme Court held that Title VII’s employee-numerosity
requirement is not jurisdictional. Arbaugh v. Y&H Corp., 126
S. Ct. 1235, 1238 (2006). Arbaugh sued her employer for dis-
crimination under Title VII. Two weeks after a jury returned
a verdict for Arbaugh, the district court granted the employ-
er’s motion to dismiss on the grounds that it had fewer than
fifteen employees because Title VII defined “employer” as “a
person engaged in an industry affecting commerce who has
fifteen or more employees.” 42 U.S.C. § 2000e(b) (2000). The
district court interpreted this requirement as jurisdictional.
126 S. Ct. at 1238 (2000).

The Supreme Court reversed. It considered the statutory
and constitutional bases for jurisdiction over a Title VII
action, noting that 28 U.S.C. § 1331 “broadly authorized the
federal courts to exercise subject-matter jurisdiction over ‘all
civil actions arising under the Constitution, laws, or treaties of
the United States.’ ” Id. at 1239 (quoting 28 U.S.C. § 1331).
The Court emphasized that the term “jurisdiction” has been
used loosely by the Supreme Court and other courts by deem-
ing time limits as “mandatory and jurisdictional,” but the
Court stated that “in recent decisions, we have clarified that
time prescriptions, however emphatic, are not properly typed
‘jurisdictional.’ ” Id. at 1242 (quotations and citations omit-
ted). The Court admitted that it had “been less than meticu-
lous” with the distinction between subject matter jurisdiction
and elements of a claim for relief. Id. The Court emphasized
that categorizing an issue as “jurisdictional” carries with it a
number of consequences, including that the issue can never be
forfeited or waived. Id. at 1244. The Court determined that
the employee-numerosity requirement was unrelated to the
 FORESTER v. CHERTOFF 10823
jurisdictional provision in Title VII.7 Id. (citing Zipes, 455
U.S. at 394). The Court concluded that because categorizing
a requirement as jurisdictional is up to Congress, the Title VII
employee-numerosity requirement was not jurisdictional and
could not be raised after trial.8 Id.

[9] The recent opinions are consistent with the Supreme
Court’s approach in Zipes and demonstrate that the Court has
moved away from defining “jurisdiction” in terms of a plain-
tiff’s obligation to file a civil action and toward a definition
describing the limits of a court’s power to adjudicate an action.9
7
The Supreme Court stated:
If the Legislature clearly states that a threshold limitation on a
statute’s scope shall count as jurisdictional, then courts and liti-
gants will be duly instructed and will not be left to wrestle with
the issue. . . . But when Congress does not rank a statutory limita-
tion on coverage as jurisdictional, courts should treat the restric-
tion as nonjurisdictional in character.
Arbaugh, 126 S. Ct. at 1244 (internal citation omitted).
8
The Supreme Court’s approach in Arbaugh is consistent with its recent
opinions in other cases. In United States v. Cotton, 535 U.S. 625 (2002),
the Supreme Court overturned a holding that the district court did not have
jurisdiction to sentence defendants for a crime not charged on the indict-
ment because “defects in an indictment do not deprive a court of its power
to adjudicate a case.” Id. at 630. In Kontrick v. Ryan, 540 U.S. 443, 445
(2004), the Supreme Court held that failure to file an amended complaint
within the time constraints was not a jurisdictional defect because “the fil-
ing deadlines prescribed in Bankruptcy Rules 4004 and 9006(b)(3) are
claim-processing rules that do not delineate what cases bankruptcy courts
are competent to adjudicate.” Id. at 453-54. In Eberhart v. United States,
126 S. Ct. 403, 405 (2005), the Supreme Court held that time prescriptions
in the Federal Rules of Criminal Procedure cannot “deprive federal courts
of subject-matter jurisdiction,” and criticized its own use of the term “ju-
risdictional” for defects that were unrelated to subject matter jurisdiction.
9
In Zipes, 455 U.S. at 398, the Supreme Court concluded:
By holding compliance with the filing period to be not a jurisdic-
tional prerequisite to filing a Title VII suit, but a requirement sub-
ject to waiver as well as tolling when equity so requires, we
honor the remedial purpose of the legislation as a whole without
negating the particular purpose of the filing requirement, to give
prompt notice to the employer.
10824 FORESTER v. CHERTOFF
Dempsey, however, by focusing on § 626(d)’s language “that
a plaintiff ‘must’ give sixty days notice before filing suit” and
emphasizing that “strict enforcement” was necessary to for-
ward the section’s goals, analogized “jurisdiction” to “strict
enforcement” of the plaintiff’s duties. 789 F.2d at 1452. The
rejection of such an approach by the Supreme Court in
Arbaugh, Zipes, and other cases clarifies that Dempsey did not
concern a “jurisdictional” issue that cannot be waived or equi-
tably tolled.

D.

[10] We conclude that the 30-day waiting period in 29
U.S.C. § 633a(d) is not jurisdictional in the sense that a dis-
trict court lacks any authority to grant relief when a complaint
is filed prematurely. Section 633a(c) provides for jurisdiction
of federal district courts over discrimination claims pursuant
to the ADEA.10 Bunch v. United States, 548 F.2d 336 (9th Cir.
1977). District courts are broadly authorized to exercise sub-
ject matter jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331. Only Congress may classify a statute as jurisdictional.
Kontrick v. Ryan, 540 U.S. 443, 452 (2004). However, Con-
gress did not place the 30-day waiting period within the spe-
cific provision that confers jurisdiction on the federal district
courts. Moreover, because “time prescriptions, however
emphatic, are not properly typed ‘jurisdictional,’ ” the manda-
tory language in §633a(d) does not support an interpretation
of its time prescriptions as “jurisdictional.” Arbaugh, 126
S. Ct. at 1242 (citation omitted). Accordingly, we hold that
10
That section reads:
(c) Civil actions; jurisdiction; relief
Any person aggrieved may bring a civil action in any Federal dis-
trict court of competent jurisdiction for such legal or equitable
relief as will effectuate the purposes of this chapter.
29 U.S.C. § 633a(c).
 FORESTER v. CHERTOFF 10825
the time prescriptions in 29 U.S.C. § 633a, including the 30-
day waiting period, are not jurisdictional and may be for-
feited, waived, or equitably modified.

Our conclusion is supported by two other considerations.
First, “[t]he ADEA is remedial and humanitarian legislation
and should be liberally interpreted to effectuate the congres-
sional purpose of ending age discrimination in employment.”
Naton v. Bank of Cal., 649 F.2d 691, 696 (9th Cir. 1981). This
purpose would be frustrated if the premature filing of a com-
plaint, which did not prejudice the defendant, was held to pro-
hibit a court from considering the claims on the merits.

Second, two other circuits have held that, given the non-
jurisdictional nature of the 180-day period within which a fed-
eral employee must file notice of intent to sue, failure to file
a notice with the EEOC at all may be subject to equitable
relief. Castro v. United States, 775 F.2d 399, 403 (1st Cir.
1985) abrogated by Stevens v. Dept. of Treasury, 500 U.S. 1
(1991); Ray v. Nimmo, 704 F.2d 1480, 1483-84 (11th Cir.
1983). If complete failure to file a notice of intent to sue may
be equitably remedied, it follows a fortiori that prematurely
commencing a civil action within 30 days of actually giving
notice of intent to sue should be subject to equitable relief.

[11] We conclude for the foregoing reasons that even
though Plaintiffs filed their complaint in the district court
without waiting 30 days from the date they provided the
EEOC with notices of intent to sue, as required by 29 U.S.C.
§ 633a(d), the district court had jurisdiction to grant them
equitable relief from their premature filing.

VI.

Having determined that the district court had jurisdiction to
grant Plaintiffs equitable relief, we must consider whether
Plaintiffs should be granted such relief. In Naton, we
explained that equitable tolling “often focuses on the plain-
10826 FORESTER v. CHERTOFF
tiff’s excusable ignorance of the limitations period and on
lack of prejudice to the defendant.” Naton, 649 F.2d at 696.
We have subsequently noted that “[w]here the danger of prej-
udice to the defendant is absent, and the interests of justice so
require, equitable tolling of the limitations period may be
appropriate.” Azer v. Connell, 306 F.3d 930, 936 (9th Cir.
2002).

The issue of equitable tolling often arises in the context of
a plaintiff failing to file an action within a statute of limita-
tions, and we “review de novo the district court’s dismissal of
a complaint on statute of limitations grounds.” Daviton v.
Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1135 (9th
Cir. 2000). Our standard of review for the application of equi-
table tolling is more nuanced, as we explained in Johnson,
314 F.3d at 413-14.11

Initially, we note that our opinion in Hageman v. Phillips
Roxane Laboratories, Inc., 623 F.2d 1381 (9th Cir. 1980), is
not controlling. Hageman, a private employee, failed to file
11
We noted:
The law of this Circuit is somewhat inconsistent regarding the
standard of review applicable to a district court’s determination
of whether equitable estoppel or equitable tolling applies to a
claim barred by the statute of limitations. See, e.g., Santa Maria
v. Pac. Bell, 202 F.3d 1170, 1175 (9th Cir.2000) (while de novo
standard applies to district court’s determination of whether a
claim is barred by the statute of limitations, the decision as to
whether equitable tolling applies “is generally reviewed for an
abuse of discretion, unless the facts are undisputed, in which
event the legal question is reviewed de novo”) (emphasis added)
(citations omitted); id. at 1176 (“This court reviews the district
court’s decision whether to apply the equitable estoppel doctrine
for an abuse of discretion.”) (emphasis added) (citation omitted);
Leorna [v. United States Dep’t of State], 105 F.3d [548] at 550
[9th Cir. (1997)] (applying de novo standard of review to equita-
ble tolling claim); Scholar [v. Pac. Bell], 963 F.2d [264] at 266
[9th Cir. (1992)] (same).
314 F.3d at 413-14.
 FORESTER v. CHERTOFF 10827
any notice of intent to sue with the Department of Labor and
then filed a civil action over a year after the expiration of the
time within which he was supposed to file a notice of intent.
Id. at 1382-83. The district court dismissed the case because
Hageman had not filed a notice of intent to sue. Id. at 1381.
The issue on appeal was whether “the notice of intent to sue
requirement should be either deemed satisfied or waived.” Id.
We affirmed the dismissal noting that: (a) “there [was] no evi-
dence that Hageman found the notice of intent to sue require-
ment ambiguous or that he believed that the complaint he
filed complied with it”; (b) “any ambiguity Hageman may
have perceived must have been cleared up at least as early as
March 29, 1976 and possibly earlier, when he was informed
that his complaint did not satisfy the notice requirement of the
statute”; and (c) Hageman did not file his action until August
31, 1977, “over a year after [his employer] justifiably
believed the case was closed.” Id. at 1385-86.

Of course, Hageman’s relevance to this case is limited by
the fact that it was decided before the Supreme Court’s deci-
sion in Zipes clarified that filing a notice of intent to sue was
not jurisdictional and by the fact that Hageman was a private,
not a federal, employee. More importantly, Plaintiffs have not
swung at any of the three strikes that threw Hageman out of
court. First, Plaintiffs filed their complaint prematurely
because they mistakenly thought that they were required to do
so to preserve judicial review of their claims. Second, their
misconception was not cleared up until well after they had
filed the complaint. Indeed, even the district court’s May
2005 order granting summary judgment does not clearly indi-
cate that Plaintiffs were mistaken in their belief that they had
to file their lawsuit within 180 days of the underlying alleged
incidents of discrimination. Third, there was no prejudice to
the defendant from the early filing. Accordingly, contrary to
the district court, we conclude that Hageman does not bar a
grant of equitable tolling in this case.

[12] We next turn to the merits of Plaintiffs’ request for
equitable tolling. Equitable tolling is appropriate where there
10828 FORESTER v. CHERTOFF
is “excusable ignorance of the limitations period and [a] lack
of prejudice to the defendant,” Naton, 649 F.2d at 696, or
where “the danger of prejudice to the defendant is absent, and
the interests of justice [require relief].” Azer, 306 F.3d at 936.

[13] Here, there is no showing or even any suggestion that
the premature filing of Plaintiffs’ complaint was prejudicial to
the defendant. The defendant knew of Plaintiffs’ unsuccessful
attempts at counseling with the EEOC in early 2001. On July
5, 2001, the EEOC informed the appropriate staff director of
the employing agency of Plaintiffs’ complaint. There is no
suggestion that the defendant at any time alleged any preju-
dice from the premature filing of Plaintiffs’ complaint. More-
over, the district court’s order granting summary judgment
makes no finding of prejudice.

There is no doubt that Plaintiffs filed their complaint pre-
maturely and that they did so because they mistakenly thought
that they had to do so to preserve judicial review of their
claims. There is no suggestion that they had any ulterior
motive for doing so. Thus, whether they are granted equitable
tolling turns on an evaluation of whether their mistake was
“excusable” or whether relief is warranted by the “interests of
justice.”

We conclude that even if Plaintiffs’ mistake was not excus-
able, the “interests of justice” support our grant of equitable
tolling. It is not clear when Plaintiffs retained counsel, but
they had counsel at the time they filed their complaint and this
weighs against a finding of excusable neglect.12 However,
12
See Johnson, 314 F.3d at 417, holding that because the plaintiff was
represented by counsel, she could “be charged with constructive knowl-
edge of the law’s requirements, through her attorney, during the relevant
time period.” See also Leorna v. United States Dep’t of State, 105 F.3d
548, 551 (9th Cir. 1997), holding that “once a claimant retains counsel,
tolling ceases because she has ‘gained the means of knowledge of her
rights and can be charged with constructive knowledge of the law’s
requirements.’ ” (internal citations omitted).
 FORESTER v. CHERTOFF 10829
unlike instances where a plaintiff fails to act within a statute
of limitations and therefore cannot proceed unless his or her
delay is excused, here Plaintiffs were entitled to proceed if
they filed their complaint sometime after June 23, 2001. Thus,
if Plaintiffs had filed a new complaint or if either of the
amendments to their complaint had been treated as a new
complaint, Plaintiffs would have been entitled to a judicial
determination of the merits of their complaint.13 It would be
contrary to the remedial and humanitarian purposes of the
ADEA, see Naton, 649 F.2d at 696, to allow the premature
filing of a complaint, that in no way prejudiced the defendant,
to deprive the Plaintiffs of their day in court.

Certainly such a draconian measure is not required by the
underlying purposes of the waiting period. As noted, when a
federal employee opts for the bypass provision, his right to
seek judicial review is not dependent on any action by the
EEOC. Indeed, in this case, the EEOC did not even inform the
defendant of Plaintiffs’ notices of intent to sue until July 5,
2001. Thus, had Plaintiffs waited the 30 days and filed their
complaint on June 23, 2001, this still would have been before
the EEOC informed the defendant of Plaintiffs’ notices of
intent to sue. Furthermore, the purpose of providing the
EEOC with notice of intent to sue is to allow it to “take any
appropriate action to assure the elimination of any unlawful
practice.” 29 U.S.C. § 633a(d). This purpose is not vitiated by
the filing of the lawsuit. The EEOC can still negotiate with
the parties and seek an agreed upon resolution, which might
well include the dismissal of the lawsuit. In this instance, the
filing of the lawsuit did not interfere with the EEOC’s efforts
because nothing happened between the filing of the lawsuit on
June 1, 2001, and August 27, 2001, when defendant filed a
13
The district court did not comment on Plaintiffs amending their com-
plaint, possibly because it thought that it lacked any jurisdiction over the
case. Because the parties have failed to address the impact of the amend-
ments on the district court’s jurisdiction in their briefs before this court,
we decline to do so.
10830 FORESTER v. CHERTOFF
motion to dismiss alleging that the named defendants were
not the proper parties.

[14] In sum, we grant Plaintiffs equitable relief from filing
their complaint prematurely because we determine that defen-
dant was not prejudiced by the premature filing and relief is
supported by the interests of justice. We grant equitable relief,
rather than remand this matter to the district court because of
the passage of time since the filing of the complaint and the
lack of prejudice to the defendant.14

Accordingly, for the foregoing reasons, we VACATE the
district court’s order of summary judgment and REMAND
for further proceedings consistent with this opinion.

BEA, Circuit Judge, dissenting:

In this case Plaintiffs’ attorneys jumped the gun in filing an
age discrimination suit in federal court. Rather than give the
EEOC the 30-days notice of intention to file suit provided by
statute, during which 30 days the EEOC could attempt
conciliation/settlement, the attorneys filed the action 9 days
after giving such notice. Plaintiffs—and now the majority—
say “Don’t take things too literally; no harm, no foul.”

I say: “No dice.”

Facts are stubborn things.1 The fact is that the statute in
14
In Naton, we recognized our inherent authority to grant equitable
relief, and we indicated that such relief should be determined on a case-
by-case basis. 649 F.2d at 696. Although such a determination is usually
made in the district court, this case presents an unusual situation where
judicial efficiency recommends that we grant relief rather than remand the
issue to the district court.
1
“Facts are stubborn things; and whatever may be our wishes, our incli-
nations or the dictates of our passion, they cannot alter the state of facts
and evidence.” John Adams, Argument in Defense of the Soldiers in the
Boston Massacre Trials, December 1770, available at http://
www.quotationspage.com/quote/3235.html.
 FORESTER v. CHERTOFF 10831
question, 29 U.S.C. § 633a(d) reads: “no civil action may be
commenced by an individual . . . until the individual has given
the Commission not less than thirty days’ notice of an intent
to file such action.” Regardless whether one labels § 633a(d)
a “jurisdictional” provision, the 30-day notice time is a clear
statutory requirement which determines a complainant’s abil-
ity to seek relief in federal court.2 The appellants here did not
allow 30 days to pass between giving notice of intention to
sue and filing their action; therefore, they did not comply with
“the notice requirements of § 633a(d)” and consequently
“cannot proceed to federal court by that route.” Rann v. Chao,
346 F.3d 192, 199 (D.C. Cir. 2003). Hence, I must respect-
fully dissent.

Furthermore, assuming we may consider principles of equi-
table tolling pursuant to Zipes v. Trans World Airlines, Inc.,
455 U.S. 385 (1982), I disagree with the majority’s conclu-
sion that because the defendants in this case were not preju-
diced by appellants’ early filing in contravention of § 633a(d),
we should apply principles of equitable estoppel to allow
appellants’ case to proceed. “Although absence of prejudice
is a factor to be considered in determining whether the doc-
trine of equitable tolling should apply once a factor that might
justify such tolling is identified, it is not an independent basis
for invoking the doctrine and sanctioning deviations from
2
It is a clever rhetorical devise to deflect attention from the text of a
statute to raise the question whether to label the statute “jurisdictional” or
“not jurisdictional”—and then to shift the discussion from the statute’s
text to whether the label truly applies. Such is but one example of shifting
the focus from the unpleasant facts to a grand-sounding abstraction. For
instance, it is much more pleasant to discuss the attributes of a fine wine
than crash to earth by looking at the price list. So here, if one can focus
the argument on whether the statute is like or unlike other statutes which
have been characterized as “non-jurisdictional,” one might even be able to
avoid the actual words in the statute. As will appear below, when the
words of a statute are clear, the Supreme Court will not allow musings as
to whether it is “jurisdictional” or not. It will not play that game. See infra
pages 10832-36 (discussing Hallstrom v. Tillamook County, 492 U.S. 20,
31 (1989)). Neither should we.
10832 FORESTER v. CHERTOFF
established procedures.” Baldwin County Welcome Ctr. v.
Brown, 466 U.S. 147, 152 (1984) (per curiam) (emphasis
added). Here, no factor justifying tolling exists. The majori-
ty’s application of equitable principles in the absence of such
a factor effectively sounds the death knell to § 633a(d)’s 30-
day waiting requirement.

Accordingly, I dissent.

I.

The only dispute before us is whether the Plaintiffs may
proceed in a federal action after failing to wait 30 days fol-
lowing the filing of a notice of intent to sue with the EEOC
before initiating their suit in federal district court. I would
affirm the district court’s summary judgment order on the
simple grounds that § 633a(d), according to its plain terms, “is
a mandatory, not optional, condition precedent for suit” in
federal court. Hallstrom, 493 U.S. at 26. The majority’s some-
what labored jurisdictional analysis is simply unnecessary to
resolution of this case. To explain my reasoning in coming to
this conclusion, I begin by exploring three Supreme Court
cases that shed light on how best analytically to approach the
issue before us.

A.

First, Hallstrom v. Tillamook County, while dealing with a
substantive area of law separate from the ADEA, illustrates
how best to apply a statutory provision requiring plaintiffs to
wait a certain period of time before commencing suit in fed-
eral court. In Hallstrom the Court considered a provision of
the Resource Conservation and Recovery Act of 1976
(“RCRA”), 42 U.S.C. § 6972(b)(1), requiring plaintiffs to
notify “the alleged violator, the State, and the Environmental
Protection Agency . . . of their intent to sue” at least 60 days
prior to commencing suit. Id. at 22. The controversy in that
case began when plaintiffs notified the owners of a neighbor-
 FORESTER v. CHERTOFF 10833
ing landfill they intended to file suit against said owners for
alleged violations of standards established under RCRA. Id.
at 23. Without notifying the State or the EPA, plaintiffs com-
menced the action a year after sending their notice. The
defendant moved for summary judgment, claiming the district
court lacked jurisdiction because the plaintiffs had failed to
notify the State and the EPA of the suit. Id. at 23-24. The dis-
trict court denied the motion, ruling that the plaintiffs had
cured any defect by notifying the State and the EPA the day
after filing suit. On the merits, the district court ruled in favor
of this plaintiffs. Id. at 24. We reversed, holding that “the 60-
day notice requirement deprived the District Court of subject
matter jurisdiction.” Id.

The Supreme Court affirmed our decision. The Court
explained the issue was “whether compliance with the 60-day
notice provision is a mandatory precondition to suit or can be
disregarded by the district court at its discretion.” Id. at 23.
The Supreme Court’s analysis was grounded in the plain text
of the statutory command:

The language of this provision could not be clearer.
A citizen may not commence an action under RCRA
until 60 days after the citizen has notified the EPA,
the State in which the alleged violation occurred, and
the alleged violator. Actions commenced prior to 60
days after notice are “prohibited.” . . . Under a literal
reading of the statute, compliance with the 60-day
notice provision is a mandatory, not optional, condi-
tion precedent for suit.

Id. at 26. The Court then rejected a number of arguments why
the statute “should be given a flexible or pragmatic construc-
tion.” Id.

Notably for present purposes, the Court declined to hold
that “RCRA’s 60-day notice provision should be subject to
equitable modification and cure” pursuant to Zipes v. Trans
10834 FORESTER v. CHERTOFF
World Airlines, Inc. 455 U.S. 385, 393 (1982). Id. at 27. The
Court explained:

In Zipes, we held that the timely filing of a charge
of discrimination with the [EEOC], as required under
Title VII . . . was not a jurisdictional prerequisite to
suit but was subject to waiver, estoppel, and equita-
ble tolling. This decision does not help petitioners.
First, as we noted in Zipes, both the language and
legislative history of § 2000e-5(e) indicate that the
filing period operated as a statute of limitations. The
running of such statutes is traditionally subject to
equitable tolling. Unlike a statute of limitations,
RCRA’s 60-day notice provision is not triggered by
the violation giving rise to the action. Rather, peti-
tioners have full control over the timing of their suit:
they need only give notice to the appropriate parties
and refrain from commencing their action for at least
60 days. The equities do not weigh in favor of modi-
fying statutory requirements when the procedural
default is caused by petitioners’ failure to take the
minimal steps necessary to preserve their claims.

Id. at 27 (emphasis added) (internal quotations marks and
citations omitted).

Having determined that the plain text of the statute ren-
dered the 60-day notice requirement a “mandatory condi-
tion[ ] precedent to commencing suit under the RCRA,” the
Court expressly declined to hold that the 60-day requirement
was jurisdictional. Id. at 31. “The parties have framed the
question presented in this case as whether the notice provision
is jurisdictional or procedural. In light of our literal interpreta-
tion of the statutory requirement, we need not determine
whether § 6972(b) is jurisdictional in the strict sense of the
term.” Id. (emphasis added). Similarly, we need not determine
whether 29 U.S.C. § 633a(d) is “jurisdictional” and for the
same reason.
 FORESTER v. CHERTOFF 10835
Second, in McNeil v. United States, 508 U.S. 106, 107
(1993), the Court applied a similar analysis while considering
a provision of the Federal Tort Claims Act (“FTCA”) which
required that “an action shall not be instituted upon a claim
against the United States for money damages unless the
claimant has first exhausted his administrative remedies.”
(internal quotation marks omitted). There, a plaintiff lodged
a complaint in federal district court against a federal agency,
invoking the court’s jurisdiction under the FTCA. Four
months later, the plaintiff submitted a claim for damages to
the appropriate agency. Id. at 107-08. The agency denied the
administrative claim, and the plaintiff sought to pursue his
claim in district court. Id. at 108-09. The district court granted
the Government’s motion to dismiss the complaint on grounds
the complaint was premature, having been filed prior to
exhaustion of the administrative action. Id. at 109. The court
of appeals affirmed. Id. at 109-10.

The Supreme Court also affirmed. The Court explained the
issue presented was “whether [the] action was timely either
because it was commenced when [the plaintiff] lodged his
complaint with the District Court . . . or because it should be
viewed as having been ‘instituted’ on the date when his
administrative claim was denied.” Id. at 110-11. The Court
had little trouble deciding the case based on the plain text of
the statute:

The text of the statute requires rejection of the first
possibility. The command that an “action shall not
be instituted . . . unless the claimant shall have first
presented the claim to the appropriate Federal
agency and his claim shall have been finally denied
by the agency in writing and sent by certified or reg-
istered mail” is unambiguous. We are not free to
rewrite the statutory text.

Id. at 111 (quoting 28 U.S.C. § 2675(a)) (omission in the orig-
inal). Regarding the second “possibility,” again the Court
looked to the plain text:
10836 FORESTER v. CHERTOFF
In it statutory context, we think the normal interpre-
tation of the word “institute” is synonymous with the
words “begin” and “commence.” The most natural
reading of the statute indicates that Congress
intended to require complete exhaustion of Execu-
tive remedies before invocation of the judicial pro-
cess. . . . The interest in orderly administration of
this body of litigation is best served by adherence to
the straightforward statutory command.

Id. at 112.

From these cases we learn that when the plain text of the
statute predicating access to federal courts is clear, the
Supreme Court applies the plain text; it goes no further in its
analysis. The reason: “ ‘in the long run, experience teaches
that strict adherence to the procedural requirements specified
by the legislature is the best guarantee of evenhanded admin-
istration of the law.’ ” Hallstrom, 493 U.S. at 31 (alteration
omitted) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826
(1980)); see also McNeil 508 U.S. at 113 (quoting the same
language). It is for Congress, which has the constitutional
authority, (U.S. Const. Art. III, §§ 1, 2, cl.2), and the benefit
of legislative deliberateness, debate, committee hearings,
expert testimony, etc., to determine plaintiffs’ ability to seek
relief in federal court. Hence, when Congress has specified a
precise procedure to gain access to federal court, our job as
Article III judges is to apply the “mandatory condition[ ] pre-
cedent to commencing suit” in federal court, not to engage in
jurisdictional abstractions. Hallstrom, 493 U.S. at 31.

Third, Zipes v. Trans World Airlines, Inc. does not require
us to determine whether § 633a(d) is jurisdictional. At issue
in Zipes was “whether the timely filing of an EEOC charge
is a jurisdictional prerequisite to bringing a Title VII suit in
federal court or whether the requirement is subject to waiver
and estoppel.” 455 U.S. at 392. The Court provided a number
of reasons why the timely filing of a charge with the EEOC
 FORESTER v. CHERTOFF 10837
was not a precondition to federal suit, but primary among
these reasons was that the period within which to file a charge
was analogous to a statute of limitations in that it prevented
the filing of “stale claims.” Id. at 394 (internal quotation
marks omitted). As explained, in Hallstrom the Court distin-
guished Zipes by explaining that “in Zipes both the language
and legislative history of § 2000e-5(e) indicate that the filing
period operated as a statute of limitations.” 493 U.S. at 27.
Hence, like a statute of limitations, the period within which to
file a charge with the EEOC under Title VII is “subject to
waiver as well as tolling when equity so requires.” Zipes, 455
U.S. at 398.

Importantly, the provision at issue in Zipes did not deal
with a complainant’s ability to initiate suit in federal court; it
dealt only with the timely filing of a charge with the EEOC:
“A charge under this section shall be filed within one hundred
and eighty days after the alleged unlawful employment prac-
tice occurred . . . .” 42 U.S.C. § 2000e-5(e)(1).3 Thus, in Zipes
3
Were the issue in this case the requirement in 29 U.S.C. § 633a(d) that
a plaintiff file notice with the EEOC “within one hundred and eighty days
after the alleged unlawful practice occurred,” Zipes likely would be con-
trolling. This provision of § 633a(d), like the provision at issue in Zipes,
is akin to a statute of limitations, designed to prevent stale claims. See
Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002) (“The purpose of a stat-
ute of limitation is ‘to prevent assertion of stale claims against a defen-
dant.’ ” (quoting Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d
1131, 1136 (9th Cir. 2001))). The requirement that a plaintiff wait 30 days
after the filing of the notice with the EEOC before filing suit in federal
court, however, bears no relation to a statute of limitations. The 30-day
waiting period serves the important function of allowing parties to seek
conciliation prior to commencement of a federal lawsuit. See Wrenn v.
Sec’y, Dep’t of Veterans Affairs, 918 F.2d 1073, 1078 (2d Cir. 1990). Fur-
thermore, the 30-day waiting period is an express command limiting a
plaintiff’s ability to sue in federal court, which the 180-day requirement
clearly is not. Nonetheless, without giving any thought to the very differ-
ent natures of the 180-day and 30-day requirements in § 633a(d), the
majority holds “if the mandatory language in § 633a(d) concerning the
180-day filing requirement is not jurisdictional, it follows that the manda-
tory language concerning the 30-day waiting period also need not be con-
strued as jurisdictional.” Maj. Op. at 10819. Not so. Given the different
purposes of the provisions, it comes as no surprise the majority does not
explain why “it follows.”
10838 FORESTER v. CHERTOFF
the Court was not presented a statutorily mandated procedure
for initiating suit in federal court, which was the precise issue
presented the Court in Hallstrom, and McNeil and is the same
issue presented here. These cases, with their clear emphasis
on applying the plain statutory requirements before commenc-
ing suit in federal court, should guide our analysis, not Zipes.

B.

Having explained the bases of my reasoning, I now apply
this analysis to the statute at issue. Per the Court’s instructions
in Hallstrom, I consider the plain language of 29 U.S.C.
§ 633a(d).

When the individual has not filed a complaint con-
cerning 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 thirty 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. § 633a(d) (emphasis added). I am satisfied that
“[t]he language of this provision could not be clearer.” Hall-
strom, 493 U.S. at 26. “[N]o civil action may be commenced”
until an ADEA complainant has waited at least 30 days after
filing a notice of intent to sue with the EEOC. 29 U.S.C.
§ 633a(d). To borrow the Supreme Court’s phraseology,
“[u]nder a literal reading of the statute, compliance with the
[30-day] notice provision is a mandatory, not optional, condi-
tion precedent for suit.” Hallstrom, 493 U.S. at 26. No more,
no less.
 FORESTER v. CHERTOFF 10839
Because Plaintiffs in this case waited only 9 days after fil-
ing their notice of intent to sue with the EEOC before filing
their complaint in federal district court, § 633a(d) bars their
suit. Although Plaintiffs, like the parties in Hallstrom, frame
the issue as jurisdictional, a “literal interpretation of the statu-
tory requirement” precludes the need to consider whether
§ 633a(d)’s 30-day requirement is jurisdictional. Hallstrom,
493 U.S. at 31.

As in Hallstrom, and McNeil, this literal, textualist
approach best serves legislative interests in providing for a
30-day waiting period as a condition of filing suit in federal
court. Examining this and other similar waiting periods, the
Second Circuit has explained:

The purpose of these statutory prerequisites to bring-
ing a civil action—and the well-established policy of
the employment discrimination laws—is to provide
an opportunity for the resolution of discrimination
complaints by means of “conciliation, conference,
and persuasion.” 29 U.S.C. § 626(d); see also 42
U.S.C. § 2000e-5(b). This is an important policy of
the anti-discrimination laws, and the Supreme Court
has accordingly stressed the legislative preference
for voluntary conciliation.

Wrenn, 918 F.2d at 1078. Likewise, the Supreme Court has
observed:

Cooperation and voluntary compliance were selected
as the preferred means for achieving [the goal of
eliminating employment discrimination]. To this
end, Congress created the Equal Employment
Opportunity Commission and established a proce-
dure whereby . . . the Commission[ ] would have an
opportunity to settle disputes through conference,
conciliation, and persuasion before the aggrieved
party was permitted to file a lawsuit.
10840 FORESTER v. CHERTOFF
Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974);
see also Wrenn, 918 F.2d at 1078.4 Indeed, in § 633a(d) Con-
gress has specifically instructed that “[u]pon receiving a
notice of intent to sue, the [EEOC] 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.” (emphasis added). Applying the plain
text in this case furthers this legislative scheme by prohibiting
plaintiffs from circumventing the EEOC’s ability to seek con-
ciliation and eliminate unlawful practices prior to initiation of
a federal suit.

The majority justifies their departure from the plain text by
adopting whole-cloth Plaintiffs’ assertion that the 30-day
waiting period served no purpose in their case because the
EEOC did not notify the Department of Homeland Security of
the suit until 35 days after the EEOC received the notice of
intent to sue. Maj. Op. at 10828-30. But this assertion is irrel-
evant. The 30-day requirement is a clear restriction on a plain-
tiff’s ability to proceed in federal court, regardless whether its
purpose is met in each individual case.

Because the 30-day waiting period of § 633a(d) is clear,
there is no need to consider whether principles of equitable
estoppel apply in this case. The 30-day waiting period at issue
here is in nature analogous to the 60-day waiting period under
the RCRA at issue in Hallstrom. Both provisions deal with
the procedural requirements for beginning a federal action and
place the commencement of the action entirely in the plain-
tiff’s hands, subject only to a specified waiting period.
4
I do not disagree with the majority that the EEOC may not file its own
suit under § 633a(d). Maj. Op. at 10820-21. But this does not weaken the
importance of the 30-day waiting period as a conciliatory waiting period.
As the majority admits, this waiting period is designed to allow the EEOC
to begin an investigation, and more importantly, to allow the EEOC to
seek conciliation amongst the parties and take action likely to end any
unlawful practice with an eye towards potentially negating the necessity
of a federal suit.
 FORESTER v. CHERTOFF 10841
Because I cannot say it any better than the Supreme Court, I
borrow from the Court’s holding in Hallstrom:

Unlike a statute of limitations, [§ 633a(d)’s 30-day]
notice provision is not triggered by the violation giv-
ing rise to the action. Rather, [plaintiffs] have full
control over the timing of their suit: they need only
give notice to the appropriate parties and refrain
from commencing their action for at least [30] days.
The equities do not weigh in favor of modifying stat-
utory requirements when the procedural default is
caused by petitioners’ “failure to take the minimal
steps necessary” to preserve their claims.

493 U.S. at 27 (quoting Johnson v. Ry. Express Agency, Inc.,
421 U.S. 454, 466 (1975)).

In sum, I would follow the lead of the Supreme Court and
apply the plain text of a clear, statutory condition precedent
for bringing suit in federal court and affirm the district court’s
judgment.

II.

Assuming arguendo Zipes allowed the consideration of
equitable principles here, appellants have not demonstrated in
the least they are entitled to equitable relief. Indeed, if these
appellants are entitled to equitable relief, I cannot conceive of
any scenario in which a potential ADEA plaintiff prematurely
files suit in federal court and is not entitled to equitable relief.
In effect, the majority’s holding that these Plaintiffs should be
allowed to proceed in federal court potentially renders
§ 633a(d)’s 30-day waiting requirement a nullity.

First the facts. Again, there is no dispute that Plaintiffs
improperly filed their suit before the 30-day waiting period
began. There is also no dispute that in February 2001, months
before the lawsuit was filed, an EEO counselor hand delivered
10842 FORESTER v. CHERTOFF
each plaintiff a written notice (the “Rights Memoranda”)
informing them of the ADEA’s time requirement. The notices
minced no words:

[Y]ou may elect to bypass the administrative proce-
dure and file a civil action directly in an appropriate
U.S. District Court, after first filing written notice of
intent to file a civil action with the EEOC within 180
calendar days of the date of the alleged discrimina-
tory action. Once a timely notice of intent to sue if
filed with the EEOC, you must wait at least 30 calen-
dar days before filing a civil action.

(emphasis added). Plaintiffs filed their notices of intent to sue
with the EEOC on May 23, 2001. Each notice informed the
EEOC that each plaintiff would be represented by the Bays
Law Firm. On June 1, 2001, nine days later, Plaintiffs jointly
filed their federal lawsuit. The federal complaint was filed by
the Bays Law Firm and signed by Cary T. Inabinet, an attor-
ney associated with the Bays Law Firm.

The only justification Plaintiffs have asserted for their pre-
mature filing is that had they waited 30 days to file suit in fed-
eral district court, they would have violated the 180-day
requirement in § 633a(d). This is plainly wrong under Stevens
v. Department of Treasury, 500 U.S. 1, 7 (1991), as the
majority explains. Maj. Op. at 10816-17. Plaintiffs provide no
other justification for their mistake, and even the majority
concedes the “mistake was not excusable.” Maj. Op. at 10828.

Next the law. I am guided by the Supreme Court’s holding
in Baldwin County Welcome Center v. Brown, 466 U.S. 147
(1984) (per curiam). There, the Court considered whether a
Title VII complainant could proceed in federal court despite
failing to file a complaint in federal district court “within 90
days after the issuance of a right-to-sue letter” as required by
42 U.S.C. § 2000e-5(f)(1). Id. at 149. The complainant filed
a complaint with the EEOC alleging discriminatory treatment
 FORESTER v. CHERTOFF 10843
by a former employer, and the EEOC issued a notice of right
to sue. Id. at 148. The notice informed the complainant that
if she chose to file suit in federal court “such suit must be
filed in the appropriate United States District Court within
ninety days of [the] receipt of this Notice.” Id. (internal quota-
tion marks omitted). The complainant did not, however, file
a complaint within 90 days of her receipt of the notice, despite
further instructions to do so. Id. The district court ruled that
the filing of the right-to-sue letter did not commence the
action within the meaning of Federal Rule of Civil Procedure
8. Id. at 148-49. The Eleventh Circuit reversed, “holding that
the filing of a right-to-sue letter ‘tolls’ the time period pro-
vided by Title VII.” Id. at 149.

The Supreme Court reversed the Eleventh Circuit. In so
doing, the Court focused on the actions of the complainant in
failing to comply with the 90-day filing requirement:

This is not a case in which a claimant has received
inadequate notice, or where a motion for appoint-
ment of counsel is pending and equity would justify
tolling the statutory period until the motion is acted
upon, or where the court has led the plaintiff to
believe that she had done everything required of her.
Nor is this a case where affirmative misconduct on
the part of a defendant lulled the plaintiff into inac-
tion. The simple fact is that [the plaintiff] was told
three times what she must do to preserve her claim,
and she did not do it. One who fails to act diligently
cannot invoke equitable principles to excuse that
lack of diligence.

Id. at 151 (emphasis added) (citations omitted). Each of these
observations is applicable to Plaintiffs in this case. Further-
more, the Court then expressly rejected the contention that
equitable tolling should nonetheless apply because the defen-
dant had not demonstrated it was prejudiced by the plaintiff’s
actions:
10844 FORESTER v. CHERTOFF
Although absence of prejudice is a factor to be con-
sidered in determining whether the doctrine of equi-
table tolling should apply once a factor that might
justify such tolling is identified, it is not an indepen-
dent basis for invoking the doctrine and sanctioning
deviations from established procedures.

Procedural requirements established by Congress
for gaining access to the federal courts are not to be
disregarded by courts out of a vague sympathy for
particular litigants.

Id. at 152 (emphasis added).

Relying on Baldwin County Welcome Center, we have on
prior occasion recognized that “[d]iligence is required for the
successful invocation of virtually any equitable doctrine.”
Rodriguez v. Airborne Express, 265 F.3d 890, 902 n.12 (9th
Cir. 2001). In Santa Maria v. Pacific Bell, 202 F.3d 1170,
1178-79 (9th Cir. 2000), we considered whether to apply
equitable tolling to excuse an ADA plaintiff’s untimely-filed
charge with the EEOC. We explained: “Equitable tolling may
be applied if, despite all due diligence, a plaintiff is unable to
obtain vital information bearing on the existence of his claim.
. . . [Equitable tolling] focuses on whether there was excus-
able delay by the plaintiff. Id. at 1178 (emphases added).
Focusing on the plaintiff’s actions, rather than on the preju-
dice to the defendant, we refused to apply equitable tolling.
Id. at 1178-79.

We all agree Plaintiffs’ mistake in this case is inexcusable.
Like the plaintiff in Baldwin County Welcome Center, Plain-
tiffs here received explicit instructions well in advance of
their suit regarding the process to initiate suit in federal court.
Moreover, Plaintiffs were represented by counsel at the time
they filed their suit. See Leorna v. U.S. Dep’t of State, 105
F.3d 548, 550-51 (9th Cir. 1997). As in Baldwin County Wel-
come Center, there is simply no factor present in this case that
 FORESTER v. CHERTOFF 10845
might justify tolling; hence, there is no need to consider
whether the defendant was prejudiced by plaintiffs’ early fil-
ing.

The majority inverts this analysis, effectively placing the
burden on the Government to prove why equitable tolling
should not excuse Plaintiffs’ mistake despite the fact that
Plaintiffs make no showing why their mistake is excusable.
The majority states: “Here, there is no showing or even any
suggestion that the premature filing of Plaintiffs’ complaint
was prejudicial to the defendant. . . . There is no suggestion
that the defendant at any time alleged any prejudice from the
premature filing of Plaintiffs’ complaint.” Maj. Op. at 10828
(emphasis added). Notably absent from the majority’s discus-
sion is citation to any authority for placing the burden on the
defendant to show prejudice when it is the plaintiff seeking
the equitable relief, and the plaintiff has not established he
exercised diligence.

The majority resorts to “remedial and humanitarian pur-
poses of the ADEA” and the fact defendants did not receive
notice of the suit until after the 30 days to justify the imposi-
tion of equitable tolling. Maj. Op. at 10829. That the ADEA
is a humanitarian piece of legislation has no bearing on the
question presented us. In Baldwin County Welcome Center,
the Supreme Court dealt with a 90-day filing requirement
under Title VII, an analogous piece of humanitarian legisla-
tion, and nonetheless held that “[o]ne who fails to act dili-
gently cannot invoke equitable principles to excuse [a] lack of
diligence.” 466 U.S. at 151. Plaintiffs here failed to exercise
any modicum of diligence in filing their complaint only 9
days after notifying the EEOC of their intent to sue. The
ADEA’s humanitarian and remedial purposes do not provide
would-be plaintiffs carte blanche to ignore the clear statutory
requirements of bringing a federal suit laid out in § 633a(d).
Even if the result in this case might appear “draconian,” the
law is clear.
10846 FORESTER v. CHERTOFF
In National Railroad Passenger Corp. v. Morgan, 536 U.S.
101, 113 (2002), the Supreme Court recognized that pursuant
to Zipes the “time period for filing a charge is subject to equi-
table doctrines such as tolling or estoppel,” yet the Court
emphasized that these doctrines “are to be applied sparingly.”
The reason? “ ‘Procedural requirements established by Con-
gress for gaining access to the federal courts are not to be dis-
regarded by courts out of a vague sympathy for particular
litigants.’ ” Id. at 113-14 (quoting Baldwin County Welcome
Ctr., 466 U.S. at 152). When we apply these doctrines liber-
ally, as the majority does here, we invite disruption of care-
fully enacted legislative schemes. If these Plaintiffs, with their
clear notice and retained counsel, are entitled to equitable
relief for their inexcusable mistake, and if the defendant bears
the burden to establish prejudice, when will equitable tolling
not apply to forgive a plaintiff’s failure to adhere to
§ 633a(d)?

***

I would avoid these pitfalls by simply applying the plain
text of the statute. Congress has clearly explained what a
plaintiff must do to proceed in federal court, and Plaintiffs
here failed to follow the statutory mandate. Case closed. By
unnecessarily delving into “jurisdiction” and equitable doc-
trines, I am afraid the majority inadvertently has created many
more problems than it has solved “out of a vague sympathy
for particular litigants.”5 Baldwin County Welcome Ctr., 466
U.S. at 152. I respectfully dissent.

5
Is the “sympathy” shown by the majority for Plaintiffs’ claims indeed
for Plaintiffs, or for Plaintiffs’ counsel? There is no showing Plaintiffs’
counsel could not respond in malpractice damages.