Price, John A. v. Bernanke, Ben

Error: Expected the default config, but wasn't able to find it, or it isn't a Dictionary

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 3, 2006 Decided December 15, 2006

No. 05-5361

JOHN A. PRICE,

APPELLANT

V.

BEN S. BERNANKE, CHAIRMAN,

BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 04cv00973)

Nicholas W. Woodfield argued the cause for appellant.

With him on the briefs was R. Scott Oswald.

John L. Kuray, Senior Counsel, Board of Governors of

Federal Reserve System, argued the cause for appellee. With

him on the brief were Richard M. Ashton, Deputy General

Counsel, and Katherine H. Wheatley, Associate General

Counsel.

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Before: GARLAND and BROWN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: Appellant John A.

Price is currently a mainframe systems manager for the

Federal Reserve Board, where he has been employed since

1980. In 2004 Price filed suit in district court claiming

discrimination on grounds of race, sex and age in violation of

Title VII of the 1964 Civil Rights Act and the Age

Discrimination in Employment Act (“ADEA”) (specifically

29 U.S.C. § 633a, the portion of the ADEA applicable to the

federal government); he also alleged retaliation against him

for his complaints under both statutes. The district court

granted the Board’s Motion to Dismiss or for Summary

Judgment, Price v. Greenspan, 374 F. Supp. 2d 177 (2005),

finding Price’s discrimination claims substantively

insufficient and his retaliation claims time-barred. In an

unpublished order we affirmed as to all issues other than

retaliation under the ADEA. Like the district court, we here

find the ADEA retaliation claim time-barred.

* * *

In 2001 and 2002 Price filed a series of administrative

complaints with the Board alleging discrimination and

retaliation. The Board rejected the retaliation complaint first,

and Price appealed its determination to the Equal Employment

Opportunity Commission (“EEOC”). The latter issued a final

decision upholding the Board’s decision on August 6, 2003.

The EEOC’s decision notified Price that he had 90 days in

which to file a civil action.

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On June 14, 2004, more than ten months after the

EEOC’s retaliation decision, Price filed a civil action pursuing

the Title VII and ADEA discrimination and retaliation claims

made in his administrative complaints. Under the ADEA,

federal employees may file a civil action if they are

dissatisfied with the outcome of an administrative process;

alternatively, they are free to bring suit in federal court in the

first instance. See 29 U.S.C. § 633a(b), (c) & (d).

The district court found the two retaliation claims time-

barred because Price had filed suit more than 90 days after the

EEOC’s final decision; the court treated both claims as

governed by the statutory 90-day filing deadline in Title VII,

42 U.S.C. § 2000e-16(c). Price, 374 F. Supp. 2d at 184-86. It

noted that, while the ADEA provision protecting federal

employees doesn’t itself mention a limitations period, “[m]ost

circuits hold that when a federal employee pursues an age

discrimination claim through the administrative process, that

employee faces the 90 day statute of limitations set forth in

Title VII, because Title VII offers the most analogous

statutory regime and limitations period.” Id. at 186.

* * *

The question before us is straightforward: What is the

appropriate statute of limitations for federal employees

advancing claims of discrimination under the ADEA in a civil

action if the EEOC has already addressed those claims? The

ADEA lacks an express statutory provision on the issue. The

Board believes that 90 days is the appropriate time period,

both because of the ADEA’s similarity to Title VII and

because such a limit represents the considered opinion of the

EEOC, the agency charged by Congress with administering

the ADEA. See 29 C.F.R. § 1614.407(c). Price advances at

least three alternatives: first, that his suit is governed by the

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four-year statute of limitations in 28 U.S.C. § 1658; second,

that he has six years under 28 U.S.C. § 2401; and third, that

we should borrow the two-year limitations period of the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. § 255.

Price’s first proposal, 28 U.S.C. § 1658, states that “a

civil action arising under an Act of Congress enacted after

[December 1, 1990] may not be commenced later than 4 years

after the cause of action accrues.” In Jones v. R.R. Donnelly

& Sons Co., 541 U.S. 369 (2004), the Supreme Court held that

§ 1658 applies only “if the plaintiff's claim against the

defendant was made possible by a post-1990 enactment.” Id.

at 382. There is no question that Price’s claim against the

Board depends exclusively on provisions adopted before

1990: 29 U.S.C. § 633a(c) has been unchanged since its

enactment in 1974, and the Board was covered from the

outset.

Price responds by noting that the ADEA has been

amended post-1990. Twice, in fact: once to create a cause of

action for employees of the Government Printing Office

(“GPO”) and Government Accountability Office (“GAO”),

1995 Pub. L. 104-1, Title II, Sec. 201(c)(2), 109 Stat. 8, and

again to create a cause of action for employees of the

Smithsonian, 1998 Pub L. 105-220, Title III, Sec. 341(b), 112

Stat. 1092. But Price is not an employee of any of the three,

so his cause of action against the Board was certainly not

“made possible” by those post-1990 amendments.

Price points, however, to Jones’s endorsement of the

benefits of uniformity of limitations. See 541 U.S. at 380-81

n.14 (“a uniform nationwide limitations period for a federal

cause of action is always more appropriate” than a rule that

applies to some but not to others) (internal citation omitted).

Accordingly, he argues, we should extend to him—and

presumably every other federal employee bringing an action

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under the ADEA—the same time period presumably enjoyed

by employees of the GPO, GAO, and Smithsonian. To hold

otherwise would, he says, “Balkanize[]” the statutes of

limitations applicable to federal employees.

In fact the Court’s concern in Jones involved the much

greater heterogeneity spawned when want of a federal

limitations period forces courts to hare off in search of a state

law analogue. See id. More important, Jones made clear that

§ 1658 must be read so as to properly reflect the trade-offs

between two important values—uniformity and preservation

of settled expectations. Concern for settled expectations had

persuaded the reversed court of appeals to give § 1658 a very

narrow reading, applying it only “when an act of Congress

creates a wholly new cause of action, one that does not

depend on the continued existence of a statutory cause of

action previously enacted and kept in force by the

amendment.” Id. at 374 (internal quotations omitted). The

Supreme Court acknowledged expectations’ importance, and

said that they

. . . provide a valid reason to reject an interpretation of

§ 1658 under which any new amendment to federal law

would suffice to trigger the 4-year statute of limitations,

regardless of whether the plaintiff's claim would have

been available—and subject to a state statute of

limitations—prior to December 1, 1990.

Id. at 381-82. In other words, the Court considered exactly

the proposal that Price makes here, and found that it gave

inadequate weight to legitimate expectations. We of course

follow suit.

Having rejected the application of § 1658’s general four-

year time period, we must borrow an appropriate statute of

limitations from an analogous statute. See DelCostello v. Int’l

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Bhd. of Teamsters, 462 U.S. 151, 158 (1983). In his brief,

Price suggested that we apply 28 U.S.C. § 2401(a)’s six year

catch-all statute of limitations for non-tort civil claims against

the United States, as the Ninth Circuit did in Lubniewski v.

Lehman, 891 F.2d 216, 221 (9th Cir. 1989). But Lubniewski

is not only an outlying decision but also an otherwise weak

reed, because its reasoning is based almost entirely on dictum

in a Second Circuit opinion, Bornholdt v. Brady, 869 F.2d 57

(2d Cir. 1989), a dictum now disavowed by that court. See

Long v. Frank, 22 F.3d 54, 56 (2d Cir. 1994). Both

Lubniewski and Bornholdt relied on the legislative history of

the ADEA and drew their conclusion almost entirely from a

shift between a draft of § 633a submitted to committee and the

final version. The draft had spelled out a limitations period

identical to that which then prevailed for similar claims under

Title VII; the final version was almost unchanged but for

deletion of that provision. But “[n]ot every silence is

pregnant.” State of Illinois Dept. of Public Aid v. Schweiker,

707 F.2d 273, 277 (7th Cir. 1983). We don’t believe much

can reasonably be inferred from this deletion—unexplained in

the legislative history yet explicable on a wide range of

grounds.

Lubniewski aside, applying § 2401(a)’s six-year limit

raises independent concerns. Though § 2401(a) sets an

outside time limit on suits against the United States, there is

nothing to suggest that Congress intended it to govern any

time a court finds a cause of action without a specific

limitations period. Moreover, doing so here would lead to the

anomalous result that a 90-day statute of limitations would

apply for claims brought against a private employer under the

ADEA, see 29 U.S.C. § 626(e), but a period of six years

would apply for claims against the federal government. Given

that statutes of limitations against the government involve a

waiver of sovereign immunity, it seems unlikely Congress

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intended such an anomaly. Accord Jones v. Runyon, 32 F.3d

1454, 1455 (10th Cir. 1994). Perhaps not surprisingly, at oral

argument counsel conceded that he didn’t think the

Lubniewski court was correct in its application of a six-year

limit. Recording of Oral Argument at 13:45 (“Frankly, I don’t

think the Lubniewski court in the Ninth Circuit is correct on

the six-year statute.”). We agree.

In his initial brief, Price pointed us to the FLSA’s two-

year statute of limitations. In particular, he noted that when

the ADEA was enacted in 1967, its prohibition on

discrimination in private employment on the basis of age

incorporated the enforcement scheme of the FLSA. Moreover

the Supreme Court once held that “violations of the ADEA

generally are to be treated as violations of the FLSA.”

Lorillard v. Pons, 434 U.S. 575, 578 (1978). Unfortunately

for Price, the analogy made in Lorillard “has no application in

th[e] context” of federal-sector ADEA cases “because

Congress did not incorporate the FLSA enforcement scheme”

into § 633a, the ADEA section applicable to the federal

government. Lehman v. Nakshian, 453 U.S. 156, 163 (1981).

The analogy also now happens to be outdated, as in 1991

Congress removed the FLSA’s incorporated statute of

limitations from the private-sector portions of the ADEA and

inserted a limitations scheme akin to that governing Title VII

actions—i.e., 90 days. See Civil Rights Act of 1991, Pub. L.

No. 102-166, § 115, 105 Stat. 1071, 1079 (codified as

amended at 29 U.S.C. § 626(e)). Again, not surprisingly,

Price retreated from reliance on the FLSA’s two-year limit in

both his reply brief and at oral argument. We agree as to its

implausibility.

Having rejected Price’s suggestions, we must consider the

Board’s claim that Title VII provides the most appropriate

source for borrowing a statute of limitations. This is the

position taken in published opinions by at least four other

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circuits, see Burzynski v. Cohen, 264 F.3d 611, 619 (6th Cir.

2001); Jones, 32 F.3d at 1458; Long, 22 F.3d at 58; Lavery v.

Marsh, 918 F.2d 1022, 1027 (1st Cir. 1990). This is not

surprising, as the Supreme Court has noted that § 633a is

“patterned directly after” 42 U.S.C. § 2000e-16, the provision

that provides Title VII protections to federal employees, and

that the bill’s author intended the age provision to be

“substantially similar to” the rights in place for federal

workers under Title VII. Nakshian, 453 U.S. at 163-64 &

n.15. Moreover, “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 (1979)

(quoted in Burzynski, 264 F.3d at 619, and Lavery, 918 F.2d at

1025).

While these factors provide an independent justification

for borrowing the Title VII limitations period, it is also

relevant that the EEOC—the agency responsible for enforcing

the ADEA—has endorsed the 90-day period. See 29 C.F.R.

§ 1614.407(c). In support of its interpretation of the ADEA,

the EEOC noted that by having identical limitations periods it

is more likely that administrative complaints alleging

violations of both statutes will be filed, processed, and

resolved at one time, avoiding the anomaly “that one lawsuit

resulting from one incident or event . . . would be governed by

different limitations periods.” 57 Fed. Reg. 12,634, 12,640

(April 10, 1992). The point is consonant with our statutory

analysis, which rests largely on the similarity between the

Title VII and ADEA causes of action. Accordingly, we hold

that when federal employees bring a civil action after pursuing

administrative remedies under the ADEA, the action must be

brought within 90 days of final agency action, the time period

allowed for similar suits under Title VII. The ruling of the

district court is therefore

Affirmed.