Forester v. Ins

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIE A. FORESTER; LARRY E. 

DAVENPORT; ALFREDO CHAVEZ;

CARLOS M. TERAN; and DONALD E.

EVANS, SR., No. 05-16517

Plaintiffs-Appellants,

v.  D.C. No.

CV-01-00253-RCC

MICHAEL CHERTOFF, Secretary of OPINION

the Department of Homeland

Security,

Defendant-Appellee.



Appeal from the United States District Court

for the District of Arizona

Raner C. Collins, District Judge, Presiding

Submitted April 17, 2007*

San Francisco, California**

Filed August 29, 2007

Before: Dorothy W. Nelson, Consuelo M. Callahan, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Callahan;

Dissent by Judge Bea

*Michael Chertoff is substituted for his predecessor, Tom Ridge, as

Secretary for the Department of Homeland Security. Fed. R. App. P.

43(c)(2).

**This panel previously granted appellants’ motion to submit this

appeal on the briefs. Fed. R. App. P. 34(a)(2).

10809

10812 FORESTER v. CHERTOFF

COUNSEL

Paul Randall Bays, Bays Smith Law, P.C., Litchfield Park,

Arizona, for the appellants.

Paul K. Charlton, United States Attorney, Christina M.

Cabanillas, Appellate Chief, Richard E. Gordon, Assistant

U.S. Attorney, and Janet K. Martin, Assistant U.S. Attorney,

Tucson, Arizona, for the appellee.

OPINION

CALLAHAN, Circuit Judge:

Appellants Alfredo Chavez (“Chavez”), Carlos M. Teran

FORESTER v. CHERTOFF 10813

(“Teran”), and Donald E. Evans, Sr., (“Evans”) (collectively

“Plaintiffs”), alleged under Title VII, 42 U.S.C. § 2000e, and

the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 621-634, that their employer, the United States Bor-

der Patrol, failed to promote them due to their age.1 The dis-

trict court granted the defendant’s motion for summary

judgment, concluding that it lacked subject matter jurisdiction

because Plaintiffs did not wait 30 days after filing a notice of

intent to sue with the Equal Employment Opportunity Com-

mission (“EEOC”) before filing suit. The district court also

declined to provide equitable relief from the timing require-

ment. Plaintiffs appeal, alleging that the district court had

jurisdiction and erred in not granting equitable relief. We

vacate the district court’s order granting summary judgment

and remand.2

I.

Plaintiffs brought a lawsuit against the defendant seeking

relief under Title VII and the ADEA for alleged employment

discrimination and retaliation. Plaintiffs allege that discrimi-

natory acts began after Border Patrol Agent Rowdy Adams

(“Adams”) was assigned as Patrol Agent in Charge to the

Douglas Border Patrol station where Plaintiffs worked. Plain-

tiffs claim that Adams intended to eliminate the older workers

from the Douglas Border Patrol station. Specifically, Chavez

alleges that he applied for a promotion, but Adams selected

younger and less experienced employees simply because of

age. Teran alleges that he was removed from a position over-

1

The lawsuit and appeal originally included plaintiffs Willie A. Forester

and Larry E. Davenport. Each was dismissed by stipulation on June 6,

2006.

2

The Government alleges that it maintained in the district court that the

court lacked jurisdiction over any ADEA based retaliation claim because

the Government had not waived its sovereign immunity for such claims.

Because the district court has not addressed this assertion, and it is not

critical to our disposition of this appeal, we leave it to the district court to

consider the claim on remand should the government continue to assert it.

10814 FORESTER v. CHERTOFF

seeing construction of a border fence and replaced with a

younger agent on account of his age. Evans also claims that

he was discriminated against because of his age. Plaintiffs

maintain that each would have been promoted but for his age.

Plaintiffs participated in counseling with the EEOC and

received letters (“Rights Memoranda”) in late February 2001,

advising them of their “rights in pursuing an EEOC com-

plaint.” On the third page of each letter, the EEOC describes

the process necessary for filing an age discrimination claim,

including the following:

[Y]ou may elect to bypass the administrative proce-

dure and file a civil action directly in an appropriate

U.S. District Court, after first filing a written notice

of intent to file a civil action with the EEOC within

180 calendar days of the date of the alleged discrimi-

natory action. Once a timely notice of intent to sue

is filed with the EEOC, you must wait at least 30 cal-

endar days before filing a civil action.

Between March and May 2001, Plaintiffs each received coun-

seling reports from the EEOC and Notices of the Right to File

a Formal Complaint (“Complaint Letter”).

On May 23, 2001, Plaintiffs each sent a notice of intent to

sue to the EEOC. Nine days later, on June 1, 2001, Plaintiffs

filed a complaint in the United States District Court for the

District of Arizona. On July 5, 2001, the EEOC sent letters to

the appropriate staff director at the employing agency,

informing the director of the Plaintiffs’ notices of intent to sue

and requesting a complete inquiry within 30 days. There is no

indication that any further administrative action was taken.

Plaintiffs filed amended complaints on October 16, 2001,

and on January 17, 2002. After discovery, the defendant filed

a motion for summary judgment on January 13, 2004, alleg-

ing that Plaintiffs failed to comply with the ADEA’s 30-day

FORESTER v. CHERTOFF 10815

notice of intent to sue requirement. Plaintiffs voluntarily dis-

missed each of their claims except those under the ADEA and

for retaliation under Title VII.

In May 2005, the district court granted the motion for sum-

mary judgment, concluding that it lacked jurisdiction over

Plaintiffs’ ADEA claims because the complaint was filed pre-

maturely. It also denied Plaintiffs equitable relief. The court

reasoned that because Plaintiffs had been informed of the 30-

day notice of intent to sue requirement by the Rights Memo-

randa and were represented by an attorney at the time the

complaint was filed, equitable relief was not available under

the Ninth Circuit’s decision in Hageman v. Phillips Roxane

Laboratories, Inc., 623 F.2d 1381 (9th Cir. 1980) (denying

equitable relief where plaintiff, represented by counsel,

waited a substantial period of time before filing his com-

plaint).

II.

A district court’s grant of summary judgment is reviewed

de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004).

Viewing the evidence in the light most favorable to the non-

moving party, we must decide whether any genuine issues of

material fact exist and whether the district court correctly

applied relevant substantive law. Johnson v. Henderson, 314

F.3d 409, 413 (9th Cir. 2002).

III.

Plaintiffs assert that had they filed their complaint 30 days

after filing notice of intent to sue, they would have forfeited

judicial review of some of their discrimination allegations

because they believed they were required to file their civil

action within 180 days of the alleged discriminatory conduct.

Plaintiffs are incorrect.

A private or state (collectively “private”) employee who

believes he has been discriminated against on the basis of age

10816 FORESTER v. CHERTOFF

must file a complaint with the EEOC within 180 days of the

alleged discrimination, or 300 days in a deferral state. 29

U.S.C. § 626(d) (2000). The employee may not file a civil

action in district court until 60 days after filing the charge

with the EEOC. Id.

[1] By contrast, a federal employee who believes he has

been discriminated against because of age has two options

under 29 U.S.C. § 633a (2000). First, he may file an adminis-

trative action directly with the EEOC. 29 C.F.R. § 1614.105.

After exhausting the administrative remedies by waiting 180

days after filing an administrative action with the EEOC, or

upon receiving a final agency determination, the employee

may file a civil action in district court. Id. at § 1614.201(c).

Second, a federal employee may bypass administrative pro-

ceedings and file directly in district court (“bypass provi-

sion”). 29 U.S.C. § 633a(d); 29 C.F.R. § 1614.201(a). To do

so, the employee is required to file a notice of intent to file

a civil action with the EEOC within 180 days from the alleged

discriminatory conduct, and then wait 30 days before filing

the civil action.3 Plaintiffs are federal employees and filed

their complaint under the bypass provision.

[2] Contrary to Plaintiffs’ fears, the Supreme Court’s opin-

ion in Stevens v. Department of Treasury, 500 U.S. 1, 7

(1991), establishes that their claims would not have been

barred had they waited 30 or more days after filing their

3

29 U.S.C. § 633a(d) states:

When the individual has not filed a complaint concerning age dis-

crimination with the Commission, no civil action may be com-

menced 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 Commis-

sion shall promptly notify all persons named therein as prospec-

tive defendants in the action and take any appropriate action to

assure the elimination of any unlawful practice.

FORESTER v. CHERTOFF 10817

notices of intent to sue before filing their lawsuit. In Stevens,

the district court dismissed Stevens’ civil action brought

under the ADEA because Stevens, a federal employee, did not

“notify the EEOC within thirty days prior to commencing

suit.” Id. at 6. The Supreme Court vacated the dismissal. It

noted that Stevens had filed his notice of intent to sue 176

days after the alleged discriminatory action, but he did not file

his lawsuit until more than 30 days after giving notice. Id. at

6-7. The Supreme Court held that, according to the plain lan-

guage of § 633a, Stevens satisfied the bypass provision by

giving notice of intent to sue within 180 days from the date

of the alleged discriminatory conduct and filing his civil

action more than 30 days after he gave notice of intent to sue.

Id. at 7. The Supreme Court recognized that some limitations

period for filing a complaint was necessary, and held that

because § 633a contained no limitations period, a limitations

period should be borrowed from an analogous federal or state

statute. Id. The Court, however, declined to adopt a particular

limitations period because Stevens filed his suit “only one

year and six days after the allegedly discriminatory event,”

which respondents acknowledged was “well within whatever

statute of limitations might apply to the action.” Id. at 8 (quo-

tation marks and citations omitted).

[3] After Stevens, it is clear that Plaintiffs were not required

to file their civil action in the district court within 180 days

of the alleged discriminatory conduct. Indeed, following Ste-

vens, the district court would have retained jurisdiction if

Plaintiffs had waited considerably more than 30 days after fil-

ing their notice of intent to sue before filing their lawsuit, and

waiting would not have limited the scope of the district

court’s review.

IV.

[4] In another case, the Supreme Court addressed a provi-

sion that required charges of discrimination in violation of

Title VII to be filed with the EEOC within 180 days from the

10818 FORESTER v. CHERTOFF

alleged discriminatory action. Zipes v. Trans World Airlines,

Inc., 455 U.S. 385 (1982). The Court held “that filing a timely

charge of discrimination with the EEOC is not a jurisdictional

prerequisite to suit in federal court, but a requirement that,

like a statute of limitations, is subject to waiver, estoppel, and

equitable tolling.” Id. at 393. The Court wrote:

The provision granting district courts jurisdiction

under Title VII, 42 U.S.C. §§ 2000e-5(e) and (f),

does not limit jurisdiction to those cases in which

there has been a timely filing with the EEOC. It con-

tains no reference to the timely-filing requirement.

The provision specifying the time for filing charges

with the EEOC appears in an entirely separate provi-

sion and it does not speak in jurisdictional terms or

refer in any way to the jurisdiction of the district

courts.

Id. at 393-94. Although the language in Title VII is manda-

tory (“A charge under this section shall be filed within one

hundred and eighty days after the alleged unlawful employ-

ment practice.” 42 U.S.C. § 2000e-5(e)(1)), the Court

declined to hold that it was jurisdictional because the lan-

guage was not contained within a jurisdiction-conferring stat-

ute.4

[5] The provision before the Supreme Court in Zipes was

similar to the provision in § 633a(d) which states that “[s]uch

notice shall be filed within one hundred and eighty days.”

4

The Court also based its reasoning on the legislative history of the

ADEA, which was modeled after Title VII. Id. at 395 n.11. The House

Conference Report on the 1978 revision of the ADEA stated that the

requirement for filing a charge within 180 days of the alleged discrimina-

tory conduct was not jurisdictional and was subject to equitable modifica-

tion. Id. (quoting H.R. Rep. No. 95-950, at 12 (1978) (Conf. Rep.), as

reprinted in 1978 U.S.C.C.A.N. 528, 534); see also Boyd v. U.S. Postal

Serv., 752 F.2d 410, 414 (9th Cir. 1985) (“A timely filing of an EEOC

charge is not a jurisdictional prerequisite to suit.”).

FORESTER v. CHERTOFF 10819

Accordingly, Zipes weighs against holding the 180-day period

in § 633a(d) to be jurisdictional. Moreover, if the mandatory

language in § 633a(d) concerning the 180-day filing require-

ment is not jurisdictional, it follows that the mandatory lan-

guage concerning the 30-day waiting period also need not be

construed as jurisdictional.5

V.

Before we can follow the approach the Supreme Court took

in Stevens and Zipes, we must consider our opinion in Demp-

sey v. Pacific Bell Co., 789 F.2d 1451 (9th Cir. 1986). In

Dempsey, we strictly construed the 60-day period that a pri-

vate employee is required to wait before filing a civil action

in the district court. Id. at 1451. Dempsey, a private

employee, filed a complaint with the EEOC and the equiva-

lent California agency alleging age discrimination. Id. at

1452. Without waiting 60 days, Dempsey filed a civil action

in district court. We held that the 60-day waiting period was

jurisdictional, citing its purposes of providing the EEOC time

to investigate claims and bring its own suit, and to provide

employers with notice and a chance to settle the dispute with-

out litigation.

5

Section 633a acts as a waiver of Federal sovereign immunity. Lehman

v. Nakshian, 453 U.S. 156, 160 (1981). Sovereign immunity is a threshold

question that is sometimes described as “jurisdictional.” Irwin v. Dep’t of

Veterans Affairs, 498 U.S. 89, 94 (1990). Waiver of sovereign immunity

will be strictly construed in terms of its scope, in favor of the sovereign.

Lane v. Pena, 518 U.S. 187 (1996). The Supreme Court has stated, how-

ever, that “[o]nce Congress has made such a waiver, we think that making

the rule of equitable tolling applicable to suits against the Government, in

the same way that it is applicable to private suits, amounts to little, if any,

broadening of the congressional waiver.” Irwin, 498 U.S. at 95 (holding

that time limits within Title VII are subject to equitable tolling in suits

against the federal government). Accordingly, equitable tolling is applica-

ble to ADEA suits against the United States to the same extent as it would

be in actions against private persons.

10820 FORESTER v. CHERTOFF

[6] Our opinion in Dempsey is not controlling for several

reasons. First, Dempsey interpreted the private employee

administrative waiting period, which is distinct from the pub-

lic employee bypass provision at issue here. Second, Dempsey

is equivocal on whether the district court lacked authority to

grant equitable relief. Third, subsequent Supreme Court cases

have clarified that the term “jurisdiction” should be reserved

for instances where courts lack any authority to grant relief.

A.

Dempsey concerned the 60-day time period that a private

employee must wait after filing a formal charge with the

EEOC before his right to file a civil action matures. By con-

trast, the case at bar concerns the 30-day time period for

which a federal employee must wait pursuant to the bypass

provision before filing his existing civil action under 29

U.S.C. § 633a. Private employees must file a charge with the

EEOC before filing suit, while federal employees need only

file notice of intent to sue. Compare 29 U.S.C. § 626(d) with

29 U.S.C. § 633a(d). The provisions have distinct purposes

and effects. A charge begins an investigation by the EEOC,

which may culminate with a civil action by the EEOC should

the EEOC be unable to informally resolve the complaint.

EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984). By contrast,

the notice requirement, while alerting the EEOC to the dis-

pute, does not necessarily result in an EEOC administrative

proceeding. Moreover, the federal employee’s right to file a

judicial complaint is not subject to, or preempted by, any

action by the EEOC. Aronsen v. Crown Zellerbach, 662 F.2d

584, 589 (9th Cir. 1981).

[7] A notice of intent to sue has different purposes and

effects from the charge at issue in Dempsey. The notice does

not have the effect of starting an administrative proceeding by

the EEOC, though it may trigger an investigation, and so there

is no need to “allow[ ] the EEOC time to file its own suit.”

Dempsey, 789 F.2d at 1452. There is no risk of jointly running

FORESTER v. CHERTOFF 10821

administrative and judicial actions, as there would be under

§ 626, if private employees did not comply with the waiting

period. Cf. Bankston, 345 F.3d at 771 (“[A]n administrative

exhaustion rule is meaningless if claimants may impede and

abandon the administrative process and yet still be heard in

the federal courts.” (citation omitted)). Indeed, the bypass

provision does not require exhaustion of administrative reme-

dies because no administrative proceeding ever begins.

Accordingly, we do not read Dempsey as holding that all

waiting provisions of the ADEA are jurisdictional.

B.

[8] Furthermore, it is not clear that Dempsey actually held

that the district court lacked the authority to grant equitable

relief. The panel ordered Dempsey’s claim dismissed but then

stated “since equitable tolling factors may exist in this case,

we direct the district court, in the event Dempsey should refile

his complaint within the time period hereafter specified, to

evaluate those factors in making a determination of whether

the statutes of limitation of 29 U.S.C. §§ 626(d) and (e)

should be tolled.” 789 F.2d at 1451-52. The opinion further

notes that “a strict jurisdictional bar could adversely affect

plaintiffs, particularly those proceeding pro se, by barring

those who discover their jurisdictional error after the 180-day

or 300-day statutes of limitation,” and that “if a plaintiff’s

jurisdiction error was the result of excusable ignorance and

defendant was not prejudiced by the error, the statutes of limi-

tation could be tolled.” Id. at 1453 (citation omitted). Thus, it

appears that the panel in Dempsey did not think that its deci-

sion would necessarily deprive Dempsey of judicial review of

his claim.6

6

Our opinion in Dempsey may be read as holding that although the stat-

ute of limitations for filing a charge with the EEOC and the appropriate

state agency could be equitably tolled, the 60-day waiting period could not

be tolled. Id. at 1453. Thus, if Dempsey continued to want judicial review

of his discrimination claim, he had to file a new complaint, now well

beyond the 60-day waiting period, and seek equitable relief for filing the

complaint so late. It is not clear why such an approach would be superior

to allowing a court to consider granting equitable relief in the pending

case.

10822 FORESTER v. CHERTOFF

C.

Our determination that the district court did not lack juris-

diction to grant Plaintiffs relief is bolstered by several recent

Supreme Court cases addressing the definition of “jurisdic-

tion.” In a case with similar subject matter to the case at bar,

the Supreme Court held that Title VII’s employee-numerosity

requirement is not jurisdictional. Arbaugh v. Y&H Corp., 126

S. Ct. 1235, 1238 (2006). Arbaugh sued her employer for dis-

crimination under Title VII. Two weeks after a jury returned

a verdict for Arbaugh, the district court granted the employ-

er’s motion to dismiss on the grounds that it had fewer than

fifteen employees because Title VII defined “employer” as “a

person engaged in an industry affecting commerce who has

fifteen or more employees.” 42 U.S.C. § 2000e(b) (2000). The

district court interpreted this requirement as jurisdictional.

126 S. Ct. at 1238 (2000).

The Supreme Court reversed. It considered the statutory

and constitutional bases for jurisdiction over a Title VII

action, noting that 28 U.S.C. § 1331 “broadly authorized the

federal courts to exercise subject-matter jurisdiction over ‘all

civil actions arising under the Constitution, laws, or treaties of

the United States.’ ” Id. at 1239 (quoting 28 U.S.C. § 1331).

The Court emphasized that the term “jurisdiction” has been

used loosely by the Supreme Court and other courts by deem-

ing time limits as “mandatory and jurisdictional,” but the

Court stated that “in recent decisions, we have clarified that

time prescriptions, however emphatic, are not properly typed

‘jurisdictional.’ ” Id. at 1242 (quotations and citations omit-

ted). The Court admitted that it had “been less than meticu-

lous” with the distinction between subject matter jurisdiction

and elements of a claim for relief. Id. The Court emphasized

that categorizing an issue as “jurisdictional” carries with it a

number of consequences, including that the issue can never be

forfeited or waived. Id. at 1244. The Court determined that

the employee-numerosity requirement was unrelated to the

FORESTER v. CHERTOFF 10823

jurisdictional provision in Title VII.7 Id. (citing Zipes, 455

U.S. at 394). The Court concluded that because categorizing

a requirement as jurisdictional is up to Congress, the Title VII

employee-numerosity requirement was not jurisdictional and

could not be raised after trial.8 Id.

[9] The recent opinions are consistent with the Supreme

Court’s approach in Zipes and demonstrate that the Court has

moved away from defining “jurisdiction” in terms of a plain-

tiff’s obligation to file a civil action and toward a definition

describing the limits of a court’s power to adjudicate an action.9

7

The Supreme Court stated:

If the Legislature clearly states that a threshold limitation on a

statute’s scope shall count as jurisdictional, then courts and liti-

gants will be duly instructed and will not be left to wrestle with

the issue. . . . But when Congress does not rank a statutory limita-

tion on coverage as jurisdictional, courts should treat the restric-

tion as nonjurisdictional in character.

Arbaugh, 126 S. Ct. at 1244 (internal citation omitted).

8

The Supreme Court’s approach in Arbaugh is consistent with its recent

opinions in other cases. In United States v. Cotton, 535 U.S. 625 (2002),

the Supreme Court overturned a holding that the district court did not have

jurisdiction to sentence defendants for a crime not charged on the indict-

ment because “defects in an indictment do not deprive a court of its power

to adjudicate a case.” Id. at 630. In Kontrick v. Ryan, 540 U.S. 443, 445

(2004), the Supreme Court held that failure to file an amended complaint

within the time constraints was not a jurisdictional defect because “the fil-

ing deadlines prescribed in Bankruptcy Rules 4004 and 9006(b)(3) are

claim-processing rules that do not delineate what cases bankruptcy courts

are competent to adjudicate.” Id. at 453-54. In Eberhart v. United States,

126 S. Ct. 403, 405 (2005), the Supreme Court held that time prescriptions

in the Federal Rules of Criminal Procedure cannot “deprive federal courts

of subject-matter jurisdiction,” and criticized its own use of the term “ju-

risdictional” for defects that were unrelated to subject matter jurisdiction.

9

In Zipes, 455 U.S. at 398, the Supreme Court concluded:

By holding compliance with the filing period to be not a jurisdic-

tional prerequisite to filing a Title VII suit, but a requirement sub-

ject to waiver as well as tolling when equity so requires, we

honor the remedial purpose of the legislation as a whole without

negating the particular purpose of the filing requirement, to give

prompt notice to the employer.

10824 FORESTER v. CHERTOFF

Dempsey, however, by focusing on § 626(d)’s language “that

a plaintiff ‘must’ give sixty days notice before filing suit” and

emphasizing that “strict enforcement” was necessary to for-

ward the section’s goals, analogized “jurisdiction” to “strict

enforcement” of the plaintiff’s duties. 789 F.2d at 1452. The

rejection of such an approach by the Supreme Court in

Arbaugh, Zipes, and other cases clarifies that Dempsey did not

concern a “jurisdictional” issue that cannot be waived or equi-

tably tolled.

D.

[10] We conclude that the 30-day waiting period in 29

U.S.C. § 633a(d) is not jurisdictional in the sense that a dis-

trict court lacks any authority to grant relief when a complaint

is filed prematurely. Section 633a(c) provides for jurisdiction

of federal district courts over discrimination claims pursuant

to the ADEA.10 Bunch v. United States, 548 F.2d 336 (9th Cir.

1977). District courts are broadly authorized to exercise sub-

ject matter jurisdiction over “all civil actions arising under the

Constitution, laws, or treaties of the United States.” 28 U.S.C.

§ 1331. Only Congress may classify a statute as jurisdictional.

Kontrick v. Ryan, 540 U.S. 443, 452 (2004). However, Con-

gress did not place the 30-day waiting period within the spe-

cific provision that confers jurisdiction on the federal district

courts. Moreover, because “time prescriptions, however

emphatic, are not properly typed ‘jurisdictional,’ ” the manda-

tory language in §633a(d) does not support an interpretation

of its time prescriptions as “jurisdictional.” Arbaugh, 126

S. Ct. at 1242 (citation omitted). Accordingly, we hold that

10

That section reads:

(c) Civil actions; jurisdiction; relief

Any person aggrieved may bring a civil action in any Federal dis-

trict court of competent jurisdiction for such legal or equitable

relief as will effectuate the purposes of this chapter.

29 U.S.C. § 633a(c).

FORESTER v. CHERTOFF 10825

the time prescriptions in 29 U.S.C. § 633a, including the 30-

day waiting period, are not jurisdictional and may be for-

feited, waived, or equitably modified.

Our conclusion is supported by two other considerations.

First, “[t]he ADEA is remedial and humanitarian legislation

and should be liberally interpreted to effectuate the congres-

sional purpose of ending age discrimination in employment.”

Naton v. Bank of Cal., 649 F.2d 691, 696 (9th Cir. 1981). This

purpose would be frustrated if the premature filing of a com-

plaint, which did not prejudice the defendant, was held to pro-

hibit a court from considering the claims on the merits.

Second, two other circuits have held that, given the non-

jurisdictional nature of the 180-day period within which a fed-

eral employee must file notice of intent to sue, failure to file

a notice with the EEOC at all may be subject to equitable

relief. Castro v. United States, 775 F.2d 399, 403 (1st Cir.

1985) abrogated by Stevens v. Dept. of Treasury, 500 U.S. 1

(1991); Ray v. Nimmo, 704 F.2d 1480, 1483-84 (11th Cir.

1983). If complete failure to file a notice of intent to sue may

be equitably remedied, it follows a fortiori that prematurely

commencing a civil action within 30 days of actually giving

notice of intent to sue should be subject to equitable relief.

[11] We conclude for the foregoing reasons that even

though Plaintiffs filed their complaint in the district court

without waiting 30 days from the date they provided the

EEOC with notices of intent to sue, as required by 29 U.S.C.

§ 633a(d), the district court had jurisdiction to grant them

equitable relief from their premature filing.

VI.

Having determined that the district court had jurisdiction to

grant Plaintiffs equitable relief, we must consider whether

Plaintiffs should be granted such relief. In Naton, we

explained that equitable tolling “often focuses on the plain-

10826 FORESTER v. CHERTOFF

tiff’s excusable ignorance of the limitations period and on

lack of prejudice to the defendant.” Naton, 649 F.2d at 696.

We have subsequently noted that “[w]here the danger of prej-

udice to the defendant is absent, and the interests of justice so

require, equitable tolling of the limitations period may be

appropriate.” Azer v. Connell, 306 F.3d 930, 936 (9th Cir.

2002).

The issue of equitable tolling often arises in the context of

a plaintiff failing to file an action within a statute of limita-

tions, and we “review de novo the district court’s dismissal of

a complaint on statute of limitations grounds.” Daviton v.

Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1135 (9th

Cir. 2000). Our standard of review for the application of equi-

table tolling is more nuanced, as we explained in Johnson,

314 F.3d at 413-14.11

Initially, we note that our opinion in Hageman v. Phillips

Roxane Laboratories, Inc., 623 F.2d 1381 (9th Cir. 1980), is

not controlling. Hageman, a private employee, failed to file

11

We noted:

The law of this Circuit is somewhat inconsistent regarding the

standard of review applicable to a district court’s determination

of whether equitable estoppel or equitable tolling applies to a

claim barred by the statute of limitations. See, e.g., Santa Maria

v. Pac. Bell, 202 F.3d 1170, 1175 (9th Cir.2000) (while de novo

standard applies to district court’s determination of whether a

claim is barred by the statute of limitations, the decision as to

whether equitable tolling applies “is generally reviewed for an

abuse of discretion, unless the facts are undisputed, in which

event the legal question is reviewed de novo”) (emphasis added)

(citations omitted); id. at 1176 (“This court reviews the district

court’s decision whether to apply the equitable estoppel doctrine

for an abuse of discretion.”) (emphasis added) (citation omitted);

Leorna [v. United States Dep’t of State], 105 F.3d [548] at 550

[9th Cir. (1997)] (applying de novo standard of review to equita-

ble tolling claim); Scholar [v. Pac. Bell], 963 F.2d [264] at 266

[9th Cir. (1992)] (same).

314 F.3d at 413-14.

FORESTER v. CHERTOFF 10827

any notice of intent to sue with the Department of Labor and

then filed a civil action over a year after the expiration of the

time within which he was supposed to file a notice of intent.

Id. at 1382-83. The district court dismissed the case because

Hageman had not filed a notice of intent to sue. Id. at 1381.

The issue on appeal was whether “the notice of intent to sue

requirement should be either deemed satisfied or waived.” Id.

We affirmed the dismissal noting that: (a) “there [was] no evi-

dence that Hageman found the notice of intent to sue require-

ment ambiguous or that he believed that the complaint he

filed complied with it”; (b) “any ambiguity Hageman may

have perceived must have been cleared up at least as early as

March 29, 1976 and possibly earlier, when he was informed

that his complaint did not satisfy the notice requirement of the

statute”; and (c) Hageman did not file his action until August

31, 1977, “over a year after [his employer] justifiably

believed the case was closed.” Id. at 1385-86.

Of course, Hageman’s relevance to this case is limited by

the fact that it was decided before the Supreme Court’s deci-

sion in Zipes clarified that filing a notice of intent to sue was

not jurisdictional and by the fact that Hageman was a private,

not a federal, employee. More importantly, Plaintiffs have not

swung at any of the three strikes that threw Hageman out of

court. First, Plaintiffs filed their complaint prematurely

because they mistakenly thought that they were required to do

so to preserve judicial review of their claims. Second, their

misconception was not cleared up until well after they had

filed the complaint. Indeed, even the district court’s May

2005 order granting summary judgment does not clearly indi-

cate that Plaintiffs were mistaken in their belief that they had

to file their lawsuit within 180 days of the underlying alleged

incidents of discrimination. Third, there was no prejudice to

the defendant from the early filing. Accordingly, contrary to

the district court, we conclude that Hageman does not bar a

grant of equitable tolling in this case.

[12] We next turn to the merits of Plaintiffs’ request for

equitable tolling. Equitable tolling is appropriate where there

10828 FORESTER v. CHERTOFF

is “excusable ignorance of the limitations period and [a] lack

of prejudice to the defendant,” Naton, 649 F.2d at 696, or

where “the danger of prejudice to the defendant is absent, and

the interests of justice [require relief].” Azer, 306 F.3d at 936.

[13] Here, there is no showing or even any suggestion that

the premature filing of Plaintiffs’ complaint was prejudicial to

the defendant. The defendant knew of Plaintiffs’ unsuccessful

attempts at counseling with the EEOC in early 2001. On July

5, 2001, the EEOC informed the appropriate staff director of

the employing agency of Plaintiffs’ complaint. There is no

suggestion that the defendant at any time alleged any preju-

dice from the premature filing of Plaintiffs’ complaint. More-

over, the district court’s order granting summary judgment

makes no finding of prejudice.

There is no doubt that Plaintiffs filed their complaint pre-

maturely and that they did so because they mistakenly thought

that they had to do so to preserve judicial review of their

claims. There is no suggestion that they had any ulterior

motive for doing so. Thus, whether they are granted equitable

tolling turns on an evaluation of whether their mistake was

“excusable” or whether relief is warranted by the “interests of

justice.”

We conclude that even if Plaintiffs’ mistake was not excus-

able, the “interests of justice” support our grant of equitable

tolling. It is not clear when Plaintiffs retained counsel, but

they had counsel at the time they filed their complaint and this

weighs against a finding of excusable neglect.12 However,

12

See Johnson, 314 F.3d at 417, holding that because the plaintiff was

represented by counsel, she could “be charged with constructive knowl-

edge of the law’s requirements, through her attorney, during the relevant

time period.” See also Leorna v. United States Dep’t of State, 105 F.3d

548, 551 (9th Cir. 1997), holding that “once a claimant retains counsel,

tolling ceases because she has ‘gained the means of knowledge of her

rights and can be charged with constructive knowledge of the law’s

requirements.’ ” (internal citations omitted).

FORESTER v. CHERTOFF 10829

unlike instances where a plaintiff fails to act within a statute

of limitations and therefore cannot proceed unless his or her

delay is excused, here Plaintiffs were entitled to proceed if

they filed their complaint sometime after June 23, 2001. Thus,

if Plaintiffs had filed a new complaint or if either of the

amendments to their complaint had been treated as a new

complaint, Plaintiffs would have been entitled to a judicial

determination of the merits of their complaint.13 It would be

contrary to the remedial and humanitarian purposes of the

ADEA, see Naton, 649 F.2d at 696, to allow the premature

filing of a complaint, that in no way prejudiced the defendant,

to deprive the Plaintiffs of their day in court.

Certainly such a draconian measure is not required by the

underlying purposes of the waiting period. As noted, when a

federal employee opts for the bypass provision, his right to

seek judicial review is not dependent on any action by the

EEOC. Indeed, in this case, the EEOC did not even inform the

defendant of Plaintiffs’ notices of intent to sue until July 5,

2001. Thus, had Plaintiffs waited the 30 days and filed their

complaint on June 23, 2001, this still would have been before

the EEOC informed the defendant of Plaintiffs’ notices of

intent to sue. Furthermore, the purpose of providing the

EEOC with notice of intent to sue is to allow it to “take any

appropriate action to assure the elimination of any unlawful

practice.” 29 U.S.C. § 633a(d). This purpose is not vitiated by

the filing of the lawsuit. The EEOC can still negotiate with

the parties and seek an agreed upon resolution, which might

well include the dismissal of the lawsuit. In this instance, the

filing of the lawsuit did not interfere with the EEOC’s efforts

because nothing happened between the filing of the lawsuit on

June 1, 2001, and August 27, 2001, when defendant filed a

13

The district court did not comment on Plaintiffs amending their com-

plaint, possibly because it thought that it lacked any jurisdiction over the

case. Because the parties have failed to address the impact of the amend-

ments on the district court’s jurisdiction in their briefs before this court,

we decline to do so.

10830 FORESTER v. CHERTOFF

motion to dismiss alleging that the named defendants were

not the proper parties.

[14] In sum, we grant Plaintiffs equitable relief from filing

their complaint prematurely because we determine that defen-

dant was not prejudiced by the premature filing and relief is

supported by the interests of justice. We grant equitable relief,

rather than remand this matter to the district court because of

the passage of time since the filing of the complaint and the

lack of prejudice to the defendant.14

Accordingly, for the foregoing reasons, we VACATE the

district court’s order of summary judgment and REMAND

for further proceedings consistent with this opinion.

BEA, Circuit Judge, 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

14

In Naton, we recognized our inherent authority to grant equitable

relief, and we indicated that such relief should be determined on a case-

by-case basis. 649 F.2d at 696. Although such a determination is usually

made in the district court, this case presents an unusual situation where

judicial efficiency recommends that we grant relief rather than remand the

issue to the district court.

1

“Facts are stubborn things; and whatever may be our wishes, our incli-

nations 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.

FORESTER v. CHERTOFF 10831

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 abil-

ity 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 respect-

fully dissent.

Furthermore, assuming we may consider principles of equi-

table tolling pursuant to Zipes v. Trans World Airlines, Inc.,

455 U.S. 385 (1982), I disagree with the majority’s conclu-

sion that because the defendants in this case were not preju-

diced 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 whether the doc-

trine 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

2

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, 492 U.S. 20,

31 (1989)). Neither should we.

10832 FORESTER v. CHERTOFF

established procedures.” Baldwin County Welcome Ctr. v.

Brown, 466 U.S. 147, 152 (1984) (per curiam) (emphasis

added). Here, no factor justifying tolling exists. The majori-

ty’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 fol-

lowing 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. The majority’s some-

what 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 fed-

eral 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. The controversy in that

case began when plaintiffs notified the owners of a neighbor-

FORESTER v. CHERTOFF 10833

ing landfill they intended to file suit against said owners for

alleged violations of standards established under RCRA. Id.

at 23. Without notifying the State or the EPA, plaintiffs com-

menced 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. The dis-

trict 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. 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.

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, condi-

tion precedent for suit.

Id. at 26. The Court then rejected a number of arguments why

the statute “should be given a flexible or pragmatic construc-

tion.” 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

10834 FORESTER v. CHERTOFF

World Airlines, Inc. 455 U.S. 385, 393 (1982). Id. at 27. 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, estoppel, and equita-

ble 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, peti-

tioners 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 modi-

fying statutory requirements when the procedural

default is caused by petitioners’ failure to take the

minimal steps necessary to preserve their claims.

Id. at 27 (emphasis added) (internal quotations marks and

citations omitted).

Having determined that the plain text of the statute ren-

dered the 60-day notice requirement a “mandatory condi-

tion[ ] precedent to commencing suit under the RCRA,” the

Court expressly declined to hold that the 60-day requirement

was jurisdictional. Id. at 31. “The parties have framed the

question presented in this case as whether the notice provision

is jurisdictional or procedural. In light of our literal interpreta-

tion 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.

FORESTER v. CHERTOFF 10835

Second, in McNeil v. United States, 508 U.S. 106, 107

(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. The agency denied the

administrative claim, and the plaintiff sought to pursue his

claim in district court. Id. at 108-09. 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. The court

of appeals affirmed. Id. at 109-10.

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 denied.” Id. at 110-11. 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 reg-

istered mail” is unambiguous. We are not free to

rewrite the statutory text.

Id. at 111 (quoting 28 U.S.C. § 2675(a)) (omission in the orig-

inal). Regarding the second “possibility,” again the Court

looked to the plain text:

10836 FORESTER v. CHERTOFF

In it statutory context, we think the normal interpre-

tation 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 Execu-

tive remedies before invocation of the judicial pro-

cess. . . . The interest in orderly administration of

this body of litigation is best served by adherence to

the straightforward statutory command.

Id. at 112.

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 admin-

istration of the law.’ ” Hallstrom, 493 U.S. at 31 (alteration

omitted) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826

(1980)); see also McNeil 508 U.S. at 113 (quoting the same

language). It is for Congress, which has the constitutional

authority, (U.S. Const. Art. III, §§ 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[ ] pre-

cedent to commencing suit” in federal court, not to engage in

jurisdictional abstractions. Hallstrom, 493 U.S. at 31.

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. The Court provided a number

of reasons why the timely filing of a charge with the EEOC

FORESTER v. CHERTOFF 10837

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 (internal quotation

marks omitted). As explained, in Hallstrom the Court distin-

guished 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.

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.

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 hundred

and eighty days after the alleged unlawful employment prac-

tice occurred . . . .” 42 U.S.C. § 2000e-5(e)(1).3 Thus, in Zipes

3

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 con-

trolling. 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 stat-

ute of limitation is ‘to prevent assertion of stale claims against a defen-

dant.’ ” (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). Fur-

thermore, 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 differ-

ent 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 manda-

tory language concerning the 30-day waiting period also need not be con-

strued as jurisdictional.” Maj. Op. at 10819. Not so. Given the different

purposes of the provisions, it comes as no surprise the majority does not

explain why “it follows.”

10838 FORESTER v. CHERTOFF

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 commenc-

ing 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 con-

cerning 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.” Hall-

strom, 493 U.S. at 26. “[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, condi-

tion precedent for suit.” Hallstrom, 493 U.S. at 26. No more,

no less.

FORESTER v. CHERTOFF 10839

Because Plaintiffs in this case waited only 9 days after fil-

ing 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 statu-

tory requirement” precludes the need to consider whether

§ 633a(d)’s 30-day requirement is jurisdictional. Hallstrom,

493 U.S. at 31.

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 bring-

ing 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 proce-

dure 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.

10840 FORESTER v. CHERTOFF

Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974);

see also Wrenn, 918 F.2d at 1078.4 Indeed, in § 633a(d) Con-

gress 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 con-

ciliation 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 10828-30. But this assertion is irrel-

evant. The 30-day requirement is a clear restriction on a plain-

tiff’s 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 plain-

tiff’s hands, subject only to a specified waiting period.

4

I do not disagree with the majority that the EEOC may not file its own

suit under § 633a(d). Maj. Op. at 10820-21. 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.

FORESTER v. CHERTOFF 10841

Because I cannot say it any better than the Supreme Court, I

borrow from the Court’s holding in Hallstrom:

Unlike a statute of limitations, [§ 633a(d)’s 30-day]

notice provision is not triggered by the violation giv-

ing 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 stat-

utory 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 (quoting Johnson v. Ry. Express Agency, Inc.,

421 U.S. 454, 466 (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 ADEA 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

10842 FORESTER v. CHERTOFF

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 proce-

dure 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 discrimina-

tory action. Once a timely notice of intent to sue if

filed with the EEOC, you must wait at least 30 calen-

dar 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 their federal lawsuit. The federal complaint was filed by

the Bays Law Firm and signed by Cary T. Inabinet, an attor-

ney associated with the Bays Law Firm.

The only justification Plaintiffs have asserted for their pre-

mature filing is that had they waited 30 days to file suit in fed-

eral 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 (1991), as the

majority explains. Maj. Op. at 10816-17. Plaintiffs provide no

other justification for their mistake, and even the majority

concedes the “mistake was not excusable.” Maj. Op. at 10828.

Next the law. I am guided by the Supreme Court’s holding

in Baldwin County Welcome Center v. Brown, 466 U.S. 147

(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-5(f)(1). Id. at 149. The complainant filed

a complaint with the EEOC alleging discriminatory treatment

FORESTER v. CHERTOFF 10843

by a former employer, and the EEOC issued a notice of right

to sue. Id. at 148. 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 quota-

tion 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. The Eleventh Circuit reversed, “holding that

the filing of a right-to-sue letter ‘tolls’ the time period pro-

vided by Title VII.” Id. at 149.

The Supreme Court reversed the Eleventh Circuit. In so

doing, the Court focused on the actions of the complainant in

failing 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 appoint-

ment 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 inac-

tion. 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 (emphasis added) (citations omitted). Each of these

observations is applicable to Plaintiffs in this case. Further-

more, the Court then expressly rejected the contention that

equitable tolling should nonetheless apply because the defen-

dant had not demonstrated it was prejudiced by the plaintiff’s

actions:

10844 FORESTER v. CHERTOFF

Although absence of prejudice is a factor to be con-

sidered in determining whether the doctrine of equi-

table tolling should apply once a factor that might

justify such tolling is identified, it is not an indepen-

dent 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 (emphasis added).

Relying on Baldwin County Welcome Center, we have on

prior occasion recognized that “[d]iligence 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 plaintiff’s 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 excus-

able delay by the plaintiff. Id. at 1178 (emphases added).

Focusing on the plaintiff’s actions, rather than on the preju-

dice 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, Plain-

tiffs here received explicit instructions well in advance of

their suit regarding the process 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 Wel-

come Center, there is simply no factor present in this case that

FORESTER v. CHERTOFF 10845

might justify tolling; hence, there is no need to consider

whether the defendant was prejudiced by plaintiffs’ early fil-

ing.

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 10828

(emphasis added). Notably absent from the majority’s discus-

sion 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 pur-

poses of the ADEA” and the fact defendants did not receive

notice of the suit until after the 30 days to justify the imposi-

tion of equitable tolling. Maj. Op. at 10829. 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 legisla-

tion, and nonetheless held that “[o]ne who fails to act dili-

gently cannot invoke equitable principles to excuse [a] lack of

diligence.” 466 U.S. at 151. 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.

10846 FORESTER v. CHERTOFF

In National Railroad Passenger Corp. v. Morgan, 536 U.S.

101, 113 (2002), the Supreme Court recognized that pursuant

to Zipes the “time period for filing a charge is subject to equi-

table doctrines such as tolling or estoppel,” yet the Court

emphasized that these doctrines “are to be applied sparingly.”

The reason? “ ‘Procedural requirements established by Con-

gress for gaining access to the federal courts are not to be dis-

regarded by courts out of a vague sympathy for particular

litigants.’ ” Id. at 113-14 (quoting Baldwin County Welcome

Ctr., 466 U.S. at 152). When we apply these doctrines liber-

ally, as the majority does here, we invite disruption of care-

fully 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 plaintiff’s 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 doc-

trines, I am afraid the majority inadvertently has created many

more problems than it has solved “out of a vague sympathy

for particular litigants.”5 Baldwin County Welcome Ctr., 466

U.S. at 152. I respectfully dissent.

5

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.