Edwards v. Shalala

United States Court of Appeals,

Eleventh Circuit.

No. 94-8405.

Richard A. EDWARDS, Plaintiff-Appellant,

v.

Donna E. SHALALA, Secretary, Department of Health and Human
Services, Defendant-Appellee.

Sept. 15, 1995.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:90-cv-2241-RCF), Richard C. Freeman,
Senior District Judge.

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

WOOD, Jr., Senior Circuit Judge:

A federal employee brought suit alleging age discrimination in

violation of the Age Discrimination in Employment Act. The

Secretary for Health and Human Services moved for partial summary

judgment on the basis that the action was barred by the statute of

limitations. The district court granted the Secretary's motion and

directed the entry of final judgment pursuant to Fed.R.Civ.P. Rule

54(b).1 Edwards v. Shalala, 846 F.Supp. 997 (N.D.Ga.1994).

Edwards appeals.

*
Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge
for the Seventh Circuit, sitting by designation.
1
When there are multiple claims or multiple parties
involved, Rule 54(b) allows the court to enter final judgment as
to one or more of the claims or parties on an express
determination that there is no just reason for delay.
Fed.R.Civ.P. 54(b). Because an entry under Rule 54(b)
constitutes a final judgment, the judgment is immediately
appealable. Here Edwards immediately appealed the district
court's judgment that one of his claims involving events from
1986 was time barred.
 I.

The facts of this case are straightforward. Since 1979

Richard Edwards [Edwards] has been employed as an accountant by the

federal government in the Health Care Financing Administration

[HCFA]. The HCFA is a division under the supervision of the

Department of Health and Human Services [HHS]. In 1985, HHS issued

a notice that two accounting positions within HCFA were open. Both

positions were one grade level higher than Edwards' current grade.

Edwards, then fifty years old, applied for both positions but was

denied [1986 events]. HHS subsequently filled the positions with

persons at least ten years younger than Edwards. In July 1986,

Edwards filed a notice of his intent to sue with the Equal

Employment Opportunity Commission [EEOC]. A similar incident

happened to Edwards again in 1990 [1990 events]. After the 1990

events, Edwards initiated this action alleging discrimination for

both the 1986 and 1990 events pursuant to the Age Discrimination in

Employment Act [ADEA] pertaining to actions against the federal

government.2 29 U.S.C. § 633a.3

2
There are two routes a person may take when they choose to
pursue an age discrimination claim against the government.
First, the person may seek resolution through the EEOC
administrative process and file an action in federal court only
if unsatisfied with the results obtained from the EEOC. 29
U.S.C. § 633a(b). In the alternative, the claimant may bypass
the EEOC and directly institute suit in federal court. 29 U.S.C.
§ 633a(c). The latter is the course of action Edwards chose to
pursue in bringing his age discrimination claim against HHS.
3
Section 633a in pertinent part states:

All personnel actions affecting employees or applicants
for employment who are at least 40 years of age ...
shall be made free from any discrimination based on
age.
 HHS sought a partial summary judgment on the claim involving

the 1986 events, claiming that Edwards' allegations concerning the

1986 events were time-barred.4 Because the ADEA does not prescribe

an appropriate statute of limitations for claims brought by federal

employees who bring suit directly in federal court, the district

court preliminarily determined that the governing statute of

limitations would be the same limitations period used in private

actions brought under the ADEA. See 29 U.S.C. § 626(e).5 The

district court found that Edwards' claim relating to the 1986

events was time-barred under § 626(e) and therefore granted HHS'

motion for partial summary judgment. Edwards urges that the

district court erred in applying § 626(e) because § 633a(f)

explicitly states that claims brought under § 633a are independent

of and unaffected by all other provisions of the ADEA. Therefore,

he argues, the statute of limitations for ADEA actions brought

against private employers cannot be applied to ADEA actions against

the federal government. Edwards appeals.

II.

We review the district court's grant of summary judgment de

novo. Thornton v. E.I. Du Pont De Nemours & Co., 22 F.3d 284, 288

(11th Cir.1994); Vernon v. F.D.I.C., 981 F.2d 1230, 1232 (11th

Cir.1993); Meek v. Metropolitan Dade County, 908 F.2d 1540, 1544

4
The parties have subsequently settled the appellant's other
claim based on the 1990 events.
5
Section 626(e) incorporates by reference the statute of
limitations under § 255, which is to be applied in ADEA actions
against private employers when the employee initiates the action
in federal court. The statute provides for a two year statute of
limitations for general violations and a three year limitations
period for willful violations. 29 U.S.C. § 626(e).
(11th Cir.1990). Summary judgment is appropriate only if it

appears through the pleadings, affidavits, admissions and

depositions that there is no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322,

106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). This case presents an

issue of first impression for this circuit. In an age

discrimination action brought directly to federal court by a

federal employee, the ADEA is silent on the appropriate statute of

limitations. The analysis begins with § 633a(d): when claimants

bypass the EEOC and initiate an action in federal court, they

become subject to certain time limits and procedures provided for

under § 633a(d). That section provides:

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

29 U.S.C. § 633a(d). The Supreme Court clarified the time limits

imposed under § 633a(d) in Stevens v. Department of the Treasury,

500 U.S. 1, 111 S.Ct. 1562, 114 L.Ed.2d 1 (1991). In Stevens, the

Court explained that plaintiffs have 180 days from the day the

alleged unlawful practice occurred to notify the EEOC of their

intent to sue. Id. at 6-7, 111 S.Ct. at 1566-67. Once the

plaintiff notifies the EEOC, the plaintiff must wait at least 30

days from when the notice was given before filing suit in federal
court. Id. The problem here is that § 633a(d) is silent on how

long after the expiration of the thirty day period a plaintiff can

wait before filing a suit. The Court did not have to address this

issue in Stevens because the federal employee's suit was filed

within one year and six days after the alleged discrimination, well

within whatever statute of limitations might have applied. The

Court, however, in dicta stated:

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

Id. at 7, 111 S.Ct. at 1567. We must therefore "borrow" an

appropriate statute of limitations from a statute that is

"analogous" to the ADEA. The discussion turns on which statute is

most analogous.

Edwards contends the appropriate statue of limitations for

ADEA actions by federal employees is the six year statute of

limitations for non-tort civil claims against the United States, 28

U.S.C. § 2401(a).6 The appellant's argument is that the express

language in § 633a(f) prohibits applying any other ADEA sections to

the provisions of § 633a. Therefore, Edwards contends that the

district court erred when it applied the statute of limitations

involved in private ADEA actions under § 626(e) to federal

employees' actions involving § 633a. The government argues that

6
Section 2401(a) states that "every civil action commenced
against the United States shall be barred unless the complaint is
filed within six years after the right of action first accrues."
28 U.S.C. § 2401(a).
the district court did not err in ruling the appellant's claim was

time-barred, but the court should have borrowed the thirty day

statute of limitations from Title VII, 42 U.S.C. § 2000e-16(c).

There is a split among the circuits in determining which

federal statute is "analogous" to the ADEA. The Ninth and the

Second Circuits have both found in favor of Edwards' contention

that the general statute of limitations under 28 U.S.C. § 2401(a)

applies. See Lubniewski v. Lehman, 891 F.2d 216 (9th Cir.1989);

Bornholdt v. Brady, 869 F.2d 57 (2d Cir.1989).7 There is also

substantial authority that finds Title VII is most analogous to the

ADEA and therefore Title VII's thirty day limitations period should

apply. See Jones v. Runyon, 32 F.3d 1454 (10th Cir.1994); Long v.

Frank, 22 F.3d 54 (2d Cir.1994); Lavery v. Marsh, 918 F.2d 1022

(1st Cir.1990); Elder v. Cisneros, No. 94 C 0597, 1995 WL 107108

(N.D.Ill March 8, 1995). The district court took a different route

and found neither Title VII nor § 2401(a) was as analogous to the
8
ADEA as the Act's own § 626(e). See also Coleman v. Nolan, 693

7
It appears that the continuing vitality of this position is
questionable. The Ninth Circuit in its Lubniewski decision
relied almost exclusively on the Second Circuit's decision in
Bornholdt when the court held that the general six year statute
of limitations under § 2401(a) should apply in these matters.
Bornholdt's validity, however, was expressly rejected, as dicta,
in Long v. Frank, 22 F.3d 54, 56-57 (2d Cir.1994). See Jones v.
Runyon, 32 F.3d 1454, 1456 n. 3 (10th Cir.1994).
8
Note also that there is a split in authority between the
district courts within the Eleventh Circuit. See Edwards v.
Shalala, 846 F.Supp. 997 (N.D.Ga.1994); c.f. Taylor v. Espy, 816
F.Supp. 1553 (N.D.Ga.1993). Attwell v. Granger, 748 F.Supp. 866
(N.D.Ga.1990), also addressed this issue, but did not have to
choose between the application of either statute of limitations
because under both the action would have been timely in that
case. Note, however, that the court in Attwell found the choice
to be between § 626(e), the private action statute of limitations
in the ADEA, or the general six year limitations period under §
F.Supp. 1544, 1548 (S.D.N.Y.1988); Wiersema v. Tennessee Valley

Auth., 648 F.Supp. 66, 68 (E.D.Tenn.1986).

We initially find that the six year limitations period under

28 U.S.C. § 2401(a) for non-tort civil actions against the federal

government is not sufficiently analogous to the ADEA to apply its

six year limitations period. We agree with the district court and

several other courts which have found that it appears contrary to

the Supreme Court's directives in Stevens to apply a statute of

general applicability when there are other more relevant statutory

provisions. See Lavery, 918 F.2d at 1026-27 (quoting Coleman v.

Nolan, 693 F.Supp. 1544, 1548 (S.D.N.Y.1988)); Taylor v. Espy, 816

F.Supp. 1553, 1558 (N.D.Ga.1993); see also Wilson v. Garcia, 471

U.S. 261, 278-80, 105 S.Ct. 1938, 1948-49, 85 L.Ed.2d 254 (1985)

(refusing to apply a catch-all provision when another statute of

limitations governing conduct more closely analogous to the conduct

at issue was available). Moreover, 28 U.S.C. § 2401(a) merely sets

an outside time limit on suits against the United States. This

cannot be read to mean that when Congress creates a cause of action

without a specific limitations period, the general statute should

govern. Lavery, 918 F.2d at 1026. Further, it is inconsistent to

suggest that Congress would allow a two to three year statute of

limitations for a claim brought against a private employer, but

provide a period up to six years for claims brought against the

government. We find that the six year statute of limitations under

28 U.S.C. § 2401(a) does not apply to ADEA claims brought by
federal employees. Finding that the statute of limitations under

2401(a).
§ 2401(a) does not apply, Edwards' claim is barred. Even if the

court were to subsequently agree with the district court that the

two to three year private action statute of limitations under §

626(e) would apply, Edwards' claim would still be beyond the

limitations period. We, however, continue with our analysis in

light of the conflict between the circuits.

Next, we address the choice between § 626(e) of the ADEA and

Title VII, and which of these statutes is more analogous to the

ADEA. The district court disregarded the application of Title VII

to federal employee ADEA claims for two reasons. First, the

district court found that applying a thirty day statute of

limitations in an ADEA claim where the plaintiff proceeds directly

to court, would contradict the purpose of the ADEA. Edwards, 846

F.Supp. at 1000. Second, the district court found that, despite

its seemingly restrictive language, § 633a(f) did not prohibit the

court from applying the statute of limitations under § 626(e) of

the Act to claims brought under § 633a. Id. at 1001. As to the

first reason, the district court found that under the Court's

directives in Stevens, a plaintiff must wait thirty days after he

gives the EEOC notice of his intent to sue before he can file in

federal court; therefore, if this EEOC thirty day period is read

in conjunction with the thirty day statute of limitations, a

plaintiff would have to circumvent the thirty day EEOC period in

order to make a timely filing before the statute of limitations

ran. We find, however, there is no authority to support the

district court's interpretation. If the Title VII thirty day

statute of limitations would apply, as like any other applicable
statute of limitations, the period would begin to run on the

expiration of the EEOC's thirty day notice waiting period. The

relevant question concerns the appropriate time period for a

federal employee to file an ADEA claim after the EEOC thirty day

period has expired. There is nothing to indicate that both thirty

day periods would begin to run at the same time and therefore one

would have to circumvent the EEOC waiting period in order to make

a timely filing.

In regards to § 633a(f), the district court disregarded the

language of the statute and found that § 626(e) could still provide

the relevant statute of limitations for claims brought under §

633a. Section 633a(f) states:

Any personnel action of any department, agency, or other
entity referred to in subsection (a) of this section shall not
be subject to, or affected by, any provision of this chapter,
other than the provisions of section 631(b) of this title and
the provisions of this section.

29 U.S.C. § 633a(f). Edwards argues that § 626(e) was not

applicable because § 633a(f) expressly prohibited the district

court from looking into other parts of the Act for a statute of

limitations to apply to action based on § 633a. Based on the

express language of the statute, it appears that any referral to

other provisions in the ADEA is forbidden. Further, the

legislative history makes it clear that § 633a "is independent of

any other section of [the ADEA]." H.R.Conf.Rep. No. 950, 9th Cong.,

2d Sess. 11 (1978), reprinted in 1978 U.S.C.C.A.N. 504, 528, 532.

Its provisions are "self-contained and unaffected by other

sections, including those governing procedures applicable in

actions against private employers." Lehman v. Nakshian, 453 U.S.
156, 168, 101 S.Ct. 2698, 2705, 69 L.Ed.2d 548 (1981); see also

Long v. Frank, 22 F.3d 54, 57 (2d Cir.1994). The district court

got around this issue by reasoning that the "borrowing" of the

statute of limitations from § 626(e) was not the same as literally

"applying" the provisions governing private actions to actions

against the federal government. Edwards, 846 F.Supp. at 1002. The

court stated that instead "§ 626(e) provides a form of guidance by

which the court can fill the gaps in § 633a left by Congress." Id.

The reality of "borrowing" the statute of limitations from § 626(e)

is that the court is in essence applying that section, although it

may wish to appear as though it is only referring to it. We find

that in this often difficult area it would be in direct

contravention of § 633a(f) to borrow the statute of limitations

from another provision within the ADEA and apply it to a claim

brought under § 633a.

This court agrees with the majority of other circuits which

have addressed this issue and found that Title VII is most

analogous to the ADEA, and therefore provides the most appropriate

statute from which to borrow an applicable statute of limitations

for ADEA actions brought by federal employees directly into federal

court. See e.g., Jones v. Runyon, 32 F.3d 1454, 1455 (10th

Cir.1994); Long v. Frank, 22 F.3d 54, 57 (2d Cir.1994); Lavery v.

Marsh, 918 F.2d 1022, 1025 (1st Cir.1990); Elder v. Cisneros, No.

94 C 0597, 1995 WL 107108 at *2 (N.D.Ill. March 8, 1995); Rawlett

v. Runyun, 849 F.Supp. 449 (E.D.Va.1994). Title VII is a natural

source for borrowing a statute of limitations for age

discrimination cases because "the ADEA and Title VII share a common
purpose, the elimination of discrimination in the workplace...."

Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071,

60 L.Ed.2d 609 (1979). The first two sections of § 633a were

"patterned after" similar sections in Title VII, which extended the

protection of Title VII to federal employees. Lehman, 453 U.S. at

163-64, 101 S.Ct. at 2703. Moreover, it is significant that the

EEOC's current regulations enforcing provisions of the ADEA apply

the same statute of limitations period to federal claims under

Title VII. See 29 C.F.R. § 1614.408. It is persuasive that the

administrative regulations support the borrowing of Title VII's

limitations period. "An agency's interpretation of an ambiguous

provision within a statute it is authorized to implement is

entitled to judicial deference." Jones, 32 F.2d at 1457-58; see

also Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696-98, 111

S.Ct. 2524, 2533-35, 115 L.Ed.2d 604 (1991); Chevron USA, Inc v.

Natural Resources Defense Council, 467 U.S. 837, 866, 104 S.Ct.

2778, 2793, 81 L.Ed.2d 694 (1984). Therefore, this court holds

that the analogous limitations period from Title VII, 42 U.S.C. §

2000e-16(c), is the appropriate period to apply to ADEA claims

brought by federal employees directly into federal court.

Although the basis of our holding differs from the district

court, the result is the same and accordingly, the decision of the

district court is AFFIRMED.