On April 26, 1987, petitioner Stevens, who was in his 60's, was
subjected to an adverse personnel action by his employer, the
Internal Revenue Service. Believing that he had been the victim of
age discrimination, he attempted to invoke his agency's
administrative procedure for resolving such claims in September,
1987, long after the expiration of the applicable time period set
forth in Equal Employment Opportunity Commission (EEOC)
regulations. On October 19, he filed a formal administrative
complaint of age discrimination with the Department of the
Treasury, concluding with a notice of his intention to sue if the
matter was not satisfactorily resolved. The complaint was rejected
because of the untimeliness of his initial attempt to obtain
relief, and the EEOC's Office of Review and Appeals affirmed. On
May 3, 1988, Stevens filed a complaint against the Department and
its Secretary in the District Court, which dismissed the case with
prejudice, concluding that it was "without jurisdiction" to apply
the Age Discrimination in Employment Act of 1967 (ADEA) in the
circumstances. Noting that a federal employee has two alternative
avenues of relief under the ADEA, the court reasoned (1) that
Stevens had not satisfied the requirements for proceeding directly
to federal court under 29 U.S.C. § 633a(d), which, the court
declared, mandated that he "initiate an action no later than 180
days from the unlawful action and notify the EEOC within 30 days
prior to commencing suit," and (2) that his attempted
administrative procedure had not properly been invoked because of
untimeliness, whereas, having chosen the
Page 500 U. S. 2
administrative route under § 633a(b), he was required to exhaust
his administrative remedies before bringing suit. The Court of
Appeals declared that, under § 633a(d), Stevens had to file a
notice of intent to sue within 180 days of the allegedly
discriminatory action, but did not have to initiate his federal
suit within that period. Nevertheless, the court affirmed the
dismissal of his complaint on the ground that, since he had not
initiated his suit until May 3, 1988, his October 19, 1987, notice
to the EEOC was not effective.
Held:
1. Stevens' civil action was timely under § 633a.
500 U.
S. 5-8.
(a) Stevens clearly met the requirements of § 633a(d), which
calls for a notice of "not less than" 30 days to the EEOC of an
intent to sue (not notification within 30 days), and provides that
the "notice shall be filed" within 180 days of the alleged unlawful
practice (not filed within 180 days of the notice). Here, the EEOC
-- which accepts a notice given to the employing agency as
sufficient compliance with the statutory notice requirement -- was
notified on October 19, 1987, the 176th day after the alleged
discriminatory action of April 27, 1987. And suit was not filed
until May 3, 1988, a date more than 30 days after the notice was
given. Pp.
500 U. S. 5-7.
(b) There is no discernible basis for concluding that the suit
was not filed within the applicable limitations period. Since the
statute does not expressly impose any additional limitations period
for a complaint, it must be assumed that Congress intended to
impose an appropriate period borrowed either from a state statute
or from an analogous federal one. It need not be decided here which
limitations period is applicable to § 633a(c) civil actions, since
Stevens filed his suit only one year and six days after the
allegedly discriminatory event. As the Government acknowledges,
that is well within whatever statute of limitations might apply.
Pp.
500 U. S. 7-8.
(c) The timeliness issue is properly before this Court, since
the District Court heard the case on the merits, and the Court of
Appeals in its turn specifically referred to Stevens' notice of
intention to file a civil suit and answered the timeliness question
incorrectly. P.
500 U.S.
8.
2. This Court will not address the question whether Stevens,
having filed an administrative complaint, was required to exhaust
his administrative remedies before filing a civil action, since the
Government, in direct contradiction of its position before the
Court of Appeals, now fully agrees with Stevens that exhaustion is
not required. Pp.
500 U.S.
8-11.
897 F.2d 526 (CA5 1990), reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, MARSHALL, O'CONNOR, SCALIA, KENNEDY,
and SOUTER,
Page 500 U. S. 3
JJ., joined, and in all but Part IV of which STEVENS, J.,
joined. STEVENS, J., filed an opinion concurring in part and
dissenting in part.
JUSTICE BLACKMUN delivered the opinion of the Court.
This case concerns a claim of age discrimination said to be in
violation of § 15 (the federal employees' component) of the Age
Discrimination in Employment Act of 1967, 81 Stat. 602, as added by
the Fair Labor Standards Amendments of 1974, 88 Stat. 74, and
amended, 29 U.S.C. § 633a.
I
Petitioner Charles Z. Stevens, III, is an employee of the United
States Internal Revenue Service. In August, 1986, when he was 63
years of age, Stevens was accepted into the Service's Revenue
Officer Training Program at Austin, Tex., and assumed probationary
status as a civil service employee. On April 26, 1987, he was
advised that his performance in the program was not satisfactory.
He then requested a transfer out of the program and a demotion,
rather than face separation from the Service. Believing that he had
been the victim of age discrimination, Stevens, on May 21, wrote
his Congressman for assistance.
See App. 8. That inquiry
proved to be nonproductive.
In September, 1987, petitioner attempted to invoke his agency's
administrative procedure for resolving age discrimination
complaints through an initial meeting with an Equal Employment
Opportunity Counselor. This, however,
Page 500 U. S. 4
was long after the expiration of the 30-day period prescribed
for such an application by 29 CFR §§ 1613.511, 1613.512, and
1613.214(a)(1)(i) (1990). On October 19, petitioner filed a formal
administrative complaint of age discrimination with the Department
of the Treasury. App. 11. At the end of that complaint was the
following statement: "This is also my notice of intention to sue in
U.S. Civil District Court if the matter is not satisfactorily
resolved."
Id. at 15. The complaint was rejected, it was
said, because of the delay in seeking a meeting with the counselor
and because there was no showing of good cause for not complying
with the 30-day requirement.
Id. at 16. This action was
described by the Director of the Regional Complaints Center as "a
final agency decision."
Id. at 19. On petitioner's appeal
to the EEOC Office of Review and Appeals, the rejection for
untimeliness was affirmed on March 30, 1988.
Id. at
20.
On May 3, 1988, petitioner filed
pro se his complaint
against the Department of the Treasury and its Secretary in the
United States District Court for the Western District of Texas.
Id. at 2. At an ensuing hearing, petitioner was
represented by counsel. The defense moved to dismiss the action on
the ground that petitioner had failed to establish any basis for
tolling the 30-day period.
Id. at 22. The District Court
granted the motion, and dismissed the case with prejudice. App. to
Pet. for Cert. A-1. It noted: "[A]n employee who believes that he
has been discriminated against because of age has two avenues of
relief under the ADEA": he either "may proceed directly to federal
court and initiate an action no later than 180 days from the
unlawful action and notify the EEOC within 30 days prior to
commencing suit," citing 29 U.S.C. § 633a(d), or he "may file an
administrative complaint with the employing federal agency and
appeal an adverse finding to the" EEOC, in which case he "may bring
a federal civil action only after exhausting his administrative
remedies," App. to Pet. for Cert. A-3,
Page 500 U. S. 5
citing 29 U.S.C. § 633a(b). The court reasoned that the
alternative administrative procedure, which petitioner had
attempted, had not properly been invoked because of the
untimeliness of Stevens' complaint and the absence of a
satisfactory explanation for the delay. The court therefore
concluded that it was "without jurisdiction" to apply the ADEA "to
the circumstances of Stevens' demotion in April, 1987." App. to
Pet. for Cert. A-3 to A-4.
Petitioner appealed to the United States Court of Appeals for
the Fifth Circuit. In an unpublished per curiam opinion, that court
disagreed with the District Court's statement that the employee
could go directly to federal court "no later than 180 days from the
unlawful action." It said that Stevens had to file a notice of
intent to sue within 180 days of the allegedly discriminatory
action, but that he did not have to initiate his federal suit
within that period.
Id. at A-7. The court went on to
say:
"However, Stevens did not initiate the present action in federal
court until May [3], 1988, therefore Stevens' notice to the EEOC,
of October 19, 1987 was not effective."
Ibid. The court concluded:
"Although the district court did not state the applicable law
correctly, ultimately the correct result was reached, since Stevens
failed to meet the requirements set forth in 29 U.S.C.
633a(d)."
Id. at A-8. The District Court's dismissal was
affirmed. Judgt. order reported at 897 F.2d 526 (1990).
We granted certiorari over the Government's opposition because
of what appeared to us to be a clear misreading by the lower courts
of the applicable and important federal statute. 498 U.S. 957
(1990).
II
As the District Court noted in its opinion, App. to Pet. for
Cert. A-3, § 15 of the ADEA provides two alternative routes for
pursuing a claim of age discrimination. An individual may invoke
the EEOC's administrative process and then file a civil action in
federal district court if he is not satisfied with his
administrative remedies.
See 29 U.S.C. § 633a(b)
Page 500 U. S. 6
and (c). A federal employee complaining of age discrimination,
however, does not have to seek relief from his employing agency or
the EEOC at all. He can decide to present the merits of his claim
to a federal court in the first instance.
See 29 U.S.C. §
633a(d). Both routes to court are implicated in this case. We
address the direct route first.
Section 15(d) of the Act, 29 U.S.C. § 633a(d), reads:
"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."
(Emphasis added.) The District Court obviously misread this
statute when it said that the federal employee
"may proceed directly to federal court and initiate an action no
later than 180 days from the unlawful action and notify the EEOC
within 30 days prior to commencing suit."
App. to Pet. for Cert. A-3 (emphasis added). The court thus
imposed a requirement that the federal court action be instituted
within the 180-day period and an additional requirement
that the EEOC be notified
within 30 days prior to the
commencement of the suit. But the statute reads otherwise as to
both requirements. It calls for a notice of not less than 30 days
to the Commission of an intent to sue (not notification within 30
days), and it provides that the notice shall be filed with the
Commission within 180 days of the alleged unlawful practice (not
filed within 180 days of the notice). Clearly, petitioner Stevens
met both requirements. The EEOC was notified on October 19, 1987,
the 176th day after the alleged discriminatory action --
petitioner's transfer and demotion of April 27, 1987 -- had
occurred. [
Footnote 1]
Page 500 U. S. 7
And suit was not filed until May 3, 1988, a date more than 30
days after the notice was given.
The Court of Appeals corrected one of the District Court's two
errors:
"Contrary to what the district court stated, Stevens had to file
a notice of intent to sue with the EEOC within 180 days of the
alleged discriminatory action. Stevens did not have to initiate his
federal action within 180 days of the alleged action, but merely
give notice to the EEOC of his intention to initiate a civil
action."
Id. at A-7. But the Court of Appeals then added the
sentence already noted:
"However, Stevens did not initiate the present action in federal
court until May 4, 1988, therefore Stevens' notice to the EEOC, of
October 19, 1987 was not effective."
This enigmatic sentence surely implies, even if it does not say
so directly, that the court was not in disagreement with the
District Court's second error that the federal litigation had to be
commenced
within 30 days of the notice, instead of
after 30 days from the notice. We note, at this point,
that the District Court's and Court of Appeals' error in their
reading of the statute has also been replicated by two other
courts.
See Castro v. United States, 775 F.2d 399, 403
(CA1 1985);
McKinney v. Dole, 246 U.S.App.D.C. 376, 387,
765 F.2d 1129, 1140 (1985). The applicable regulations are positive
as to the absence of such a "within 30 days" requirement under the
ADEA, in marked contrast with the situation concerning the
assertion of a Title VII claim.
See 29 CFR § 1613.514
(1990). The Government concedes all this, for it says that "the
statute is clear." Brief for Respondents 29.
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 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.
Agency
Holding Corp. v. Malley-Duff & Associates,
Inc., 483 U.S.
Page 500 U. S. 8
143,
483 U. S.
146-148 (1987). In this case, we need not decide which
limitations period is applicable to a civil action under 29 U.S.C.
§ 633a(c). Stevens filed his suit on May 3, 1988, only one year and
six days after the allegedly discriminatory event of April 27,
1987. That, as the Government acknowledges, Brief for Respondents
30, "is well within whatever statute of limitations might apply to
the action." [
Footnote 2]
III
The Solicitor General, however, submits that the petition for
certiorari should be dismissed as having been improvidently
granted. Brief for Respondents 31. He rests this submission on the
argument that petitioner did not properly present the merits of the
timeliness issue to the Court of Appeals, and that this Court
should not address that question for the first time.
Id.
at 8-9, 11-15. He made the same argument in his opposition to the
petition for certiorari. Brief in Opposition 5-7. We rejected that
argument in granting certiorari, and we reject it again now,
because the Court of Appeals, like the District Court before it,
decided the substantive issue presented.
The District Court heard the case on the merits. Tr. 83-176. The
Court of Appeals, in its turn, specifically referred to Stevens'
notice of intention to file a civil suit, App. to Pet. for Cert.
A-7, and, as we have explained, answered the timeliness question
incorrectly. We thus are satisfied that the issue is properly
before us.
IV
Answering the timeliness question in petitioner's favor, as we
have, brings us to an issue involving the administrative
Page 500 U. S. 9
route to federal court. Once petitioner had filed an EEOC
complaint, was he required to exhaust his administrative remedies
in order to file a civil action in district court? The Court of
Appeals expressly stated its circuit rule on exhaustion just
eight days after it issued the opinion below. In
White
v. Frank, 895 F.2d 243, 244 (CA5),
cert. denied, 498
U.S. 890 (1990), the court said:
"[A]n ADEA plaintiff who chooses to appeal the employer's
determination to the Equal Employment Opportunity Commission . . .
must await final action by that agency before filing an action in
federal district court."
The exhaustion issue has divided the Circuits.
Compare,
e.g., Langford v. U.S. Army Corps of Engineers, 839 F.2d 1192,
1194-1195 (CA6 1988),
with Purtill v. Harris, 658 F.2d
134, 138 (CA3 1981),
cert. denied, 462 U.S. 1131
(1983).
Although the issue is an important one, it is here that we
encounter procedural difficulty. The Government, in direct
contradiction of its position before the Court of Appeals, now
fully agrees with petitioner on the merits of the exhaustion issue.
According to the Solicitor General, a federal employee who elects
agency review of an age discrimination claim need not exhaust his
administrative remedies before bringing a civil action. The
Government has thus abandoned the position that it took before the
Court of Appeals when, in its brief, there, it said:
"If an employee files an administrative claim with his agency,
the employee must properly exhaust his administrative remedies like
employees alleging other types of discrimination. . . ."
* * * *
"It is well established that a federal employee must timely
exhaust any administrative remedies available to him before he can
bring suit. . . . Therefore, Judge Bunton properly dismissed Mr.
Stevens' cause of action because Mr. Stevens did not meet the
administrative requirements. "
Page 500 U. S. 10
Brief for Appellee[s] filed by the United States Attorney for
the Western District of Texas in Fifth Circuit file No. 89-1432,
pp. 6-7. The Government, of course, acknowledges this, Tr. of Oral
Arg. 17, and concedes that it indeed "took a different position,"
id. at 22. It candidly says that "we have reconsidered our
position."
Id. at 33.
It is all well and good for the Government to rethink its
position. Its choice, however, has meant that, on the merits, there
is no one before us who stands in a position adverse to petitioner.
Neither is there anyone before us who defends the results reached
in those decided cases where courts of appeals have found an
exhaustion requirement when administrative relief is sought before
a court action is instituted.
See, e.g., McGinty v. United
States Department of the Army, 900 F.2d 1114 (CA7 1990);
Castro v. United States, supra; Purtill v. Harris, supra.
Those cases stand in conflict with the Sixth Circuit's decision in
Langford v. United States Corps of Engineers, supra.
In each of these cited cases, the United States put forward the
exhaustion requirement. We must assume, in view of the Solicitor
General's concession here, that the Government no longer will
defend its earlier litigation position.
Under these circumstances we are disinclined to rule on the
merits of the exhaustion issue. We feel that our only proper course
is to reverse the judgment of the Court of Appeals and to remand
the case for further proceedings. On remand, the defense presumably
(and it is a strong presumption) will submit to the Court of
Appeals its altered positions -- that there is no exhaustion issue
at all in this case because petitioner did not institute his court
action until after a final decision of the agency had been made --
and, if that submission is not accepted by the court, that the
Government now has withdrawn from the stance it took before the
Court of Appeals on the merits. In either event, petitioner Stevens
finally should gain his day in court, and will not have all avenues
to relief completely blocked.
Page 500 U. S. 11
Meanwhile, to be sure, the rulings in
McGinty, Castro,
and
Purtill, and any other rulings to the same effect,
will remain outstanding, and in conflict with
Langford.
There is little or nothing, by way of disagreement or agreement
with those cases, that this Court should do in the present
litigation. The cases may be respectively challenged or supported
by some future litigant in a way that will lead to a definitive
resolution of the existing conflict in authority. If this does not
come about, then, because of the Government's change-of-mind and
new position, any legal significance of the conflict may simply
fade away with the passage of time.
Reversed and remanded.
[
Footnote 1]
The EEOC accepts a notice given to the employing agency as
sufficient compliance with the statutory notice requirement.
See Management Directive EEO-MD 107, ch. 12, pp. 12-2 and
12-3.
[
Footnote 2]
Indeed, when Stevens formally was advised of his right to sue,
he was told: "[Y]ou MAY have up to six years after the right of
action first accrued in which to file a civil action." This was a
reference to the general statute of limitations, 28 U.S.C. §
2401(a), for a civil action against the Government.
See
Brief for Respondents 30, n. 22.
JUSTICE STEVENS, concurring in part and dissenting in part.
While I join the remainder of the Court's opinion, I disagree
with
500 U. S. In my view, the
Government is quite right in its present position that the statute
contains no requirement that a federal employee exhaust
administrative remedies before instituting a court action. The case
is not moot, because the Government's position as petitioner's
former employer is adverse to petitioner. The adversary posture
that the Court finds lacking as to the exhaustion issue is equally
lacking as to the issue that the Court does decide. Compare
ante at
500 U. S. 9-10,
with ante at
500 U. S. 7-8.
Moreover, because 29 U.S.C. § 633a, the statutory provision at
issue, applies only to federal employees, the adversary posture the
Court awaits will never arise unless the Government once again
reverses its position.
The Court acknowledges that the exhaustion question is an
important issue on which the lower courts are divided.
See
ante at
500 U. S. 9. The
issue is also straightforward and capable of swift resolution. The
Government in its argument before the Court of Appeals based its
contention that exhaustion is required solely on an analogy to
Title VII.
See Brief for Appellee in No. 89-1432 (CA5),
pp. 6-7. Unlike Title
Page 500 U. S. 12
VII, however, the Age Discrimination in Employment Act (ADEA)
contains no express requirement that a federal employee complainant
seek administrative relief. There is therefore no basis from which
to infer that a complainant who has voluntarily sought
administrative relief must exhaust all administrative remedies
before proceeding to Court. The EEOC, charged with interpretation
of the ADEA, does not read the statute to require exhaustion by
federal employees.
See 29 CFR § 1613.513 (1990).
The only language of the ADEA relied on by those Courts of
Appeals that have required exhaustion is the omission from § 633a
of a provision like that in Title VII allowing an employee to
abandon the administrative complaint route if there has been no
administrative action within 180 days.
* This provision,
however, is unnecessary in § 633a because, as I have explained, the
ADEA contains no requirement for federal employees equivalent to
Title VII's command that a complainant first seek administrative
relief.
I would therefore resolve the exhaustion issue as well as the
timeliness question. To that extent, I respectfully dissent from
the Court's disposition.
*
See Purtill v. Harris, 658 F.2d 134, 138 (CA3 1981),
cert. denied 462 U.S. 1131 (1983);
Castro v. United
States, 775 F.2d 399, 404 (CA1 1985);
Rivera v. United
States Postal Service, 830 F.2d 1037, 1039 (CA9 1987),
cert. denied, 486 U.S. 1009 (1988);
Bornholdt v.
Brady, 869 F.2d 57, 63 (CA2 1989);
White v. Frank,
895 F.2d 243, 244 (CA5),
cert. denied, 498 U.S. 890
(1990);
McGinty v. United States Department of Army, 900
F.2d 1114, 1117 (CA7 1990).