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 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 ability 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 respectfully dissent.
Furthermore, assuming we may consider principles of equitable tolling pursuant to Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), I disagree with the majority’s conclusion that because the defendants in this case were not prejudiced 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 *933whether the doctrine 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 established procedures.” Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam) (emphasis added). Here, no factor justifying tolling exists. The majority’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 following 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, 110 S.Ct. 304. The majority’s somewhat 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 federal 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, 110 S.Ct. 304. The controversy in that case began when plaintiffs notified the owners of a neighboring landfill they intended to file suit against said owners for alleged violations of standards established under RCRA. Id. at 23, 110 S.Ct. 304. Without notifying the State or the EPA, plaintiffs commenced 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, 110 S.Ct. 304. The district 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, 110 S.Ct. 304. 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, 110 S.Ct. 304. 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, condition precedent for suit.
*934Id. at 26, 110 S.Ct. 304. The Court then rejected a number of arguments why the statute “should be given a flexible or pragmatic construction.” 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 World Airlines, Inc. 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Id. at 27, 110 S.Ct. 304. 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, estop-pel, and equitable 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, petitioners 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 modifying statutory requirements when the procedural default is caused by petitioners’ failure to take the minimal steps necessary to preserve their claims.
Id. at 27, 110 S.Ct. 304 (emphasis added) (internal quotations marks and citations omitted).
Having determined that the plain text of the statute rendered the 60-day notice requirement a “mandatory condition[ ] precedent to commencing suit under the RCRA,” the Court expressly declined to hold that the 60-day requirement was jurisdictional. Id. at 31, 110 S.Ct. 304. “The parties have framed the question presented in this case as whether the notice provision is jurisdictional or procedural. In light of our literal interpretation 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.
Second, in McNeil v. United States, 508 U.S. 106, 107, 113 S.Ct. 1980, 124 L.Ed.2d 21 (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, 113 S.Ct. 1980. The agency denied the administrative claim, and the plaintiff sought to pursue his claim in district court. Id. at 108-09, 113 S.Ct. 1980. 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, 113 S.Ct. 1980. The court of appeals affirmed. Id. at 109-10, 113 S.Ct. 1980.
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 *935denied.” Id. at 110-11, 113 S.Ct. 1980. 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 registered mail” is unambiguous. We are not free to rewrite the statutory text.
Id. at 111, 113 S.Ct. 1980 (quoting 28 U.S.C. § 2675(a)) (omission in the original). Regarding the second “possibility,” again the Court looked to the plain text:
In it statutory context, we think the normal interpretation 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 Executive remedies before invocation of the judicial process.... The interest in orderly administration of this body of litigation is best served by adherence to the straightforward statutory command.
Id. at 112, 113 S.Ct. 1980.
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 administration of the law.’ ” Hallstrom, 493 U.S. at 31, 110 S.Ct. 304 (alteration omitted) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980)); see also McNeil 508 U.S. at 113, 113 S.Ct. 1980 (quoting the same language). It is for Congress, which has the constitutional authority, (U.S. Const. Art. Ill, §§ 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!] precedent to commencing suit” in federal court, not to engage in jurisdictional abstractions. Hallstrom, 493 U.S. at 31, 110 S.Ct. 304.
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, 102 S.Ct. 1127. The Court provided a number of reasons why the timely filing of a charge with the EEOC 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, 102 S.Ct. 1127 (internal quotation marks omitted). As explained, in Hallstrom the Court distinguished 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, 110 S.Ct. 304. 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, 102 S.Ct. 1127.
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 hun*936dred and eighty days after the alleged unlawful employment practice occurred....” 42 U.S.C. § 2000e-5(e)(l).3 Thus, in Zipes 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 commencing 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 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 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.” Hallstrom, 493 U.S. at 26, 110 S.Ct. 304. “[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, condition precedent for suit.” Hallstrom, 493 U.S. at 26, 110 S.Ct. 304. No more, no less.
Because Plaintiffs in this case waited only 9 days after filing 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 statutory requirement” precludes the need to consider whether § 633a(d)’s 30-day requirement is jurisdic*937tional. Hallstrom, 493 U.S. at 31, 110 S.Ct. 304.
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 bringing 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 procedure 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.
Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); see also Wrenn, 918 F.2d at 1078.4 Indeed, in § 633a(d) Congress 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 conciliation 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 930-32. But this assertion is irrelevant. The 30-day requirement is a clear restriction on a plaintiffs 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 plaintiffs hands, subject only to a specified waiting period. Because I cannot say it any better than the Supreme Court, I borrow from the Court’s holding in Hallstrom:
*938Unlike a statute of limitations, [§ 633a(d)’s 30-day] notice provision is not triggered by the violation giving 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 statutory 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, 110 S.Ct. 304 (quoting Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 466, 95 S.Ct. 1716, 44 L.Ed.2d 295 (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 AUEA 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 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 procedure 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 discriminatory action. Once a timely notice of intent to sue if filed with the EEOC, you must wait at least 30 calendar 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 them federal lawsuit. The federal complaint was filed by the Bays Law Firm and signed by Cary T. Inabinet, an attorney associated with the Bays Law Firm.
The only justification Plaintiffs have asserted for their premature filing is that had they waited 30 days to file suit in federal 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, 111 S.Ct. 1562, 114 L.Ed.2d 1 (1991), as the majority explains. Maj. Op. at 924-25. Plaintiffs provide no other justification for their mistake, and even the majority concedes the “mistake was not excusable.” Maj. Op. at 931.
Next the law. I am guided by the Supreme Court’s holding in Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (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-*9395(f)(1). Id. at 149, 104 S.Ct. 1728. The complainant filed a complaint with the EEOC alleging discriminatory treatment by a former employer, and the EEOC issued a notice of right to sue. Id. at 148, 104 S.Ct. 1723. 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 quotation 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, 104 S.Ct. 1723. The Eleventh Circuit reversed, “holding that the filing of a right-to-sue letter ‘tolls’ the time period provided by Title VII.” Id. at 149, 104 S.Ct. 1723.
The Supreme Court reversed the Eleventh Circuit. In so doing, the Court focused on the actions of the complainant in fading 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 appointment 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 inaction. 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, 104 S.Ct. 1723 (emphasis added) (citations omitted). Each of these observations is applicable to Plaintiffs in this case. Furthermore, the Court then expressly rejected the contention that equitable tolling should nonetheless apply because the defendant had not demonstrated it was prejudiced by the plaintiffs actions:
Although absence of prejudice is a factor to be considered in determining whether the doctrine 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 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, 104 S.Ct. 1723 (emphasis added).
Relying on Baldivin County Welcome Center, we have on prior occasion recognized that “[diligence 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 plaintiffs 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 excusable delay by the plaintiff.” Id at 1178 (emphases added). Focusing on the plaintiffs actions, rather than on the prejudice 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, Plaintiffs h'ere received explicit instructions well in advance of their suit regarding the pro*940cess 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 Welcome Center, there is simply no factor present in this case that might justify tolling; hence, there is no need to consider whether the defendant was prejudiced by plaintiffs’ early filing.
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 930 (emphasis added). Notably absent from the majority’s discussion 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 purposes of the ADEA” and the fact defendants did not receive notice of the suit until after the 30 days to justify the imposition of equitable tolling. Maj. Op. at 931. 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 legislation, and nonetheless held that “[o]ne who fails to act diligently cannot invoke equitable principles to excuse[a] lack of diligence.” 466 U.S. at 151, 104 S.Ct. 1723. 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.
In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the Supreme Court recognized that pursuant to Zipes the “time period for filing a charge is subject to equitable doctrines such as tolling or estoppel,” yet the Court emphasized that these doctrines “are to be applied sparingly.” The reason? “ ‘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 113-14, 122 S.Ct. 2061 (quoting Baldwin County Welcome Ctr., 466 U.S. at 152, 104 S.Ct. 1723). When we apply these doctrines liberally, as the majority does here, we invite disruption of carefully 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 plaintiffs 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 doctrines, I am afraid the majority inadvertently has created many *941more problems than it has solved “out of a vague sympathy for particular litigants.”5 Baldwin County Welcome Ctr., 466 U.S. at 152, 104 S.Ct. 1723. I respectfully dissent.
. "Facts are stubborn things; and whatever may be our wishes, our inclinations 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.
. 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, 493 U.S. 20, 31, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989)). Neither should we.
. 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 controlling. 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 statute of limitation is 'to prevent assertion of stale claims against a defendant.' " (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). Furthermore, 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 different 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 mandatory language concerning the 30-day waiting period also need not be construed as jurisdictional.” Maj. Op. at 925. Not so. Given the different purposes of the provisions, it comes as no surprise the majority does not explain why “it follows.”
. I do not disagree with the majority that the EEOC may not file its own suit under § 633a(d). Maj. Op. at 926-27. 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.
. 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.