concurring:
I quite agree with Judge Dooling’s opinion prepared for the court, with special approval of the array of the facts disclosed by our record. Clearly and adequately the opinion represents the state of the law in this Circuit as I read it, and one might suppose I should say no more. That is especially so since the opinion disposes of the issue before us.
In further support of our instant conclusion, I respectfully submit an alternative approach to control in situations such as here. Comparable claims on a case by case basis will otherwise confront this great court. No judge in this Circuit is lacking in an appreciation of humanitarian impulse, especially with reference to a sympathetic consideration of the possibilities of discrimination against employees on account of the immutable factor of age. Senator Javits, for years, expressed concern in this area as the legislative record demonstrates. Although acutely aware of the plight of an employee who may become the victim of discrimination “solely” because of age — and he so emphasized at page 31255 of the Congressional Record for November 6,1967 — he was not unmindful that employers have rights also. See the reference in Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1198 (CA 5 1975).
The extensive study by the committees of the Congress over a period of years gave rise to the findings to be noted in 29 U.S.C. § 621. In furtherance of the congressional purpose it will be seen that Congress imposed specific duties upon the Secretary of Labor by 29 U.S.C. § 626(c). Rights were conferred upon an allegedly aggrieved individual employee by 29 U.S.C. § 626(d).1 Where we find that the books are replete with reports of the opinions of the federal courts which, in varying situations, have purported to resolve aspects of disputes in the area under consideration, I think this Circuit should act definitively. If I could persuade my respected colleagues to my approach, I would point for guidance in these situations to the principles announced in Texas Cement Co. v. McCord, (1914), 233 U.S. 157, 34 S.Ct. 550, 58 L.Ed. 893, where at 162, 34 S.Ct. at 552, we read:
The cause of action did not exist before and is the creature of the statute. The act does not place a limitation upon a cause of action theretofore existing, but creates a new one upon the terms named in the statute. The right of action . . . is specifically conditioned upon the fact that no suit shall be brought by the United States within the six months named, for it is only in that event that the creditors shall have a right of action. .
The statute thus creates a new liability and gives a special remedy for it, and upon well settled principles the limitations upon such liability become a part of the right conferred and compliance with them is made essential to the assertion and benefit of the liability itself. (Citations omitted, emphasis supplied).
To me it seems inevitable that Congress expected the Secretary, pursuant to 29 U.S.C. § 626(a), to make investigations, and particularly, to exercise the powers defined in 29 U.S.C. § 211(a). Even respecting the possibility of his bringing an action against an employer, the Secretary was directed to attempt to eliminate discriminatory practices and to effectuate voluntary compliance with the requirements of the Act. Moreover, no civil action was to be commenced by a victim of allegedly discrimina*372tory conduct unless that individual shall have filed within 180 days after the practice complained of a notice that the individual intended to file the private civil action which the statute authorized. Such time limitations, so clearly stated, are not and never were intended to be statutes of limitation, as some of the opinions of some of the courts would suggest. Congress was imposing and did impose preconditions to the institution of any such civil action.2 The congressional objective was two-fold, not only in terms of affording the Secretary an opportunity to eliminate the allegedly discriminatory practice but to accord to the employer adequate notice that a failure to eradicate the improper practice could lead to litigation. Such litigation, it could well be seen, might result in a class action with devastating impact upon the employer’s business. Such actions, discriminatory in nature on other grounds, have already involved awards of damages in the millions of dollars.
In some of the cases already cited by my able colleagues we find judges — and in many instances district judges acting alone — making their own decisions as to whether or not the “equities” run in favor of the one party — or the other. I suggest that the time periods specified in Section 626(d) are not at all statutes of limitation; rather, statutes of repose are in no sense the equivalent of preconditions3 to the commencement of an action.
Perhaps we now should note that we purposefully had deferred releasing an opinion in the instant case while we awaited Supreme Court consideration of Dartt v. Shell Oil Company, 539 F.2d 1256 (CA 10 1976). The Dartt court in light of the factual situation there presented found the filing periods not to be “jurisdictional” but to be subject to equitable modifications such as “tolling and estoppel” as sometimes applied to statutes of limitation. To the extent that we anticipated possible guidance from the Supreme Court, our hopes were dissolved when, on November 29,1977, the Tenth Circuit opinion was affirmed by an equally divided court in Shell Oil Company v. Dartt, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 472 (1977).
But the Court taught us this much, we reasonably may deduce, four justices refused to accept the proposition that the rights of an employee discharged because of “age” were to be determined by some court’s appraisal of where the “equities” might be said to lie. Judge Mulligan writing for himself and Judges Friendly and Smith has heretofore considered the possible effect of the Supreme Court’s action in the Dartt impasse. He recognized in Smith v. American President Lines, Ltd., et al., 571 F.2d 102, 109 (1978), that affirmance in Dartt by an equally divided court had prevented the case from becoming an authority for the determination of other cases either in the Supreme Court or in lower courts. Whether the failure to comply with a time limitation in Title VII cases is strictly “jurisdictional or is in the nature of a statute of limitations4 subject to tolling is still open in this circuit and remains so.” I venture to suggest that as to Title VII cases we well may take account of Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), where at 47, 94 S.Ct. at 1019 the Court said that the Act there considered had specified “with precision the jurisdictional prerequisites that an individual must satisfy before he is entitled to institute a lawsuit”; see also United Air Lines, Inc. v. Evans, 431 U.S. 553, 555, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977).
*373We fairly may disregard Title VII cases respecting the point here at issue under ADEA in view of the Court’s opinion in Lorillard v. Pons, —— U.S.--,-, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), where the Court perceived that Congress specifically had refused to adopt the procedures of Title VII for ADEA actions.. Definitely, the Court made clear, the Congress in ADEA private actions had incorporated fully the remedies and the procedures of the Federal Labor Standards Act.
There was good reason for the action taken by the Congress. Senator Javits had made abundantly clear that timely action by an allegedly aggrieved victim of discrimination because of age required the expedition contemplated by Section 626(d). He had testified before the Labor Subcommittee on March 15, 1967, that inordinate delays had become the plague of many agencies.
The EEOC, for example, is already years behind in disposing of its docket. Such delay is always unfortunate, but it is particularly so in the case of older citizens to whom, by definition, relatively few productive years are left. By utilizing the courts rather than a bureaucracy . as the forum to hear cases arising under the law, these delays may be largely avoided. 113 Cong.Rec. 7076 (1967).5
In support of his amendment, he had aligned with himself various other senators whose assistance he required in amending the proposed Administration bill.
By November 6, 1967, he was able to announce that “to the greatest extent possible the amended S. 830 had incorporated the provisions of the Fair Labor Standards Act.”6
We may turn to H.R.Rep.No.805, 90th Cong., 1st Sess. 5, reprinted in [1967] U.S. Code Cong, and Admin.News, 2213, where we read an analysis of the bill at page 2223:
Subsection (d) requires that persons intending to file civil actions under this act must give the Secretary of Labor 60 days’ notice before doing so. During the 60-day period, the Secretary would seek to eliminate unlawful practices by informal methods of conciliation, conference, and persuasion. (Emphasis supplied).
The very wording indicates that it was not within the contemplation of Congress that victims of discrimination because of age were afforded greater leeway in the commencement of a private civil action to seek relief. The time limits had been chosen with precision and constituted a precondition to litigation. Of course, there remained open to the Secretary the authority to act under the circumstances prescribed in section 626(b). Indeed, even where an individual shall have commenced an action on his own account that action must terminate upon the commencement of an action by the Secretary to enforce the right of that employee. 29 U.S.C. Section 626(c) so pro--vides, as the Court has noted in Lorillard v. Pons, supra. Remember we are not here concerned with defenses which may be available but with the exercise of a conferred right in a statute which contains its own limitations. No more are we presently involved with possible remedies where inequities born of our sympathetic consideration may from time to time arise. Preconditions to civil actions created by the Congress, in *374my view, shall strictly be adhered to by the judiciary.7
I have already concurred in Judge Dool-ing’s opinion, not only because of what he has so well written but because my approach8 includes the thoughts I have respectfully submitted.
. For present purposes, we may paraphrase thus:
No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than 60 days’ notice of an intent to file such action. Such notice shall be filed —
(1) within one hundred and eighty days after the alleged unlawful practice occurred, or
* * * * * *
Upon receiving [that] notice of intent to sue, the Secretary shall promptly notify all persons named therein as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation.
. In a not entirely dissimilar connection we find Congress saying no civil action may be commenced by any individual under 29 U.S.C. § 633a(d) until the individual has given the Commission not less than 30 days’ notice of an intent to file such action. (Emphasis supplied).
. Compare the preconditions spelled out in such detail in Brown v. GSA, 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976).
. The Smith Court observed, note 4, at 108, the primary consideration underlying statutes of limitations is that of fairness to the defendant. The latter should not be called upon to defend a suit when “evidence has been lost, memories have faded and witnesses have disappeared.” Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944).
. In Johnson v. Railway Express Agency, 421 U.S. 454 (1975) the Court at 465, note 11, 95 S.Ct. 1716 at 1722, 44 L.Ed.2d 295, said
We are not unmindful of the significant delays that have attended administrative proceedings in the EEOC.
. It is clear enough that Senator Javits, Senator Yarborough and others of their colleagues whose ideas had been under consideration, had collaborated at hearings and in conferences to work out details of the proposed legislation, S. 830. Not only were the rights of the employees
to remain as desirable objectives, but employers as potential defendants had to be considered. Senator Javits explained:
We how have the enforcement plan which I think is best adapted to carry out this age-discrimination-in-employment ban with the least overanxiety or difficulty on the part of American business, and with complete fairness to the workers. I think that is one of the most important aspects of the bill. 113 Cong.Rec., 31254 (1967).
. The principle is definitely an important part in my consideration of the instant problem. While the preconditions, hereinbefore discussed, to the commencement of an action are vital to the prosecution of the suit, Congress has so ordained. Although there are variants in different statutes at one time or other considered by the courts, none has more succinctly stated my view than did the Supreme Court in Kavanagh v. Noble, 332 U.S. 535, 68 S.Ct. 235, 92 L.Ed. 150 (1947):
Such periods are established to cut off rights, justifiable or not, that might otherwise be asserted and they must be strictly adhered to by the judiciary . . Remedies for resulting inequities are to be provided by Congress, not the courts. Id. 539, 68 S.Ct. 237. (Emphasis supplied).
. See, generally, Powell v. Southwestern Bell Telephone Co., 494 F.2d 485 (CA 5 1974); His-cott v. General Electric Co., 521 F.2d 632 (CA 6 1974); Eklund v. Lubrizol Corp., 529 F.2d 247 (CA 6 1976) and Charlier v. S. C. Johnson & Son, Inc., 556 F.2d 761 (CA 5 1977) and cases cited therein.