Forester v. Chertoff

remove safety operates to As a standard prong the first under

discretion the stan- function test when

discretionary and man- specific embodied

dard “is creates regulation or statute which

datory govern- upon incumbent

clear duties actors,” Irr. Dist. v. Kennewick

mental (9th States, 1018, 1026 880 F.2d

United

Cir.1989), I hold as the district would

did, not erased that discretion was any language Engi- in the

Safety Plan or Manual.

neering Larry FORESTER; E. Daven A.

Willie Chavez; M. Ter-

port; Alfredo Carlos Evans, Sr.,

an; Plain and Donald E.

tiffs-Appellants, Secretary CHERTOFF,

Michael Security,

Department of Homeland

Defendant-Appellee.

No. 05-16517. Appeals,

United States Court

Ninth Circuit. * April

Submitted Francisco, California **.

San Aug.

Filed ** * granted appellants’ prede- panel previously mo- substituted for his This Michael Chertoff is cessor, Secretary Ridge, the De- appeal Tom the briefs. Fed. tion to submit this on Security. R.App. partment 34(a)(2). Fed. of Homeland R.App. P. 43(c)(2). P.

CALLAHAN, Judge: Circuit (“Chavez”), Alfredo Chavez Appellants (“Teran”), Donald E. Carlos M. Teran (“Evans”) Sr., (collectively “Plain- Evans, VII, tiffs”), under Title alleged 2000e, Age and the Discrimination (“ADEA”), Act 29 U.S.C. Employment 621-634, employer, the United that their Patrol, promote Border failed States age.1 The district court them due to their motion for sum- granted the defendant’s that it lacked mary judgment, concluding jurisdiction Plain- subject matter because after tiffs did not wait 30 Equal of intent to sue with Commission Employment Opportunity (“EEOC”) filing suit. The before provide equitable court also declined Plain- timing requirement. from the relief Law, Bays, Bays Smith Paul Randall that the district court appeal, alleging tiffs AZ, P.C., Park, appel- Litchfield for the granting jurisdiction and erred had lants. vacate the district equitable relief. We summary judgment granting court’s order Charlton, States Attor- Paul K. United and remand.2 Cabanillas, Appellate ney, M. Christina Gordon, Chief, Richard E. Assistant U.S. I. Martin, Attorney, and K. Assistant Janet against Tucson, AZ, brought Plaintiffs lawsuit Attorney, appel- for the under Title VII seeking defendant relief lee. alleged employment ADEA for and the Plaintiffs discrimination and retaliation. discriminatory began acts allege Agent Rowdy Adams Border Patrol (“Adams”) Agent as Patrol assigned Douglas Border Patrol sta- Charge to the NELSON, Before: CONSUELO D.W. tion where Plaintiffs worked. Plaintiffs BEA, CALLAHAN, T. M. and CARLOS claim that intended to eliminate the Adams Judges. Circuit Douglas Border older workers CALLAHAN; alleg- Specifically, Patrol station. Chavez Opinion by Judge promotion, for a but applied BEA. es that he by Judge Dissent originally the Government had not appeal included claim because 1. The lawsuit immunity Larry sovereign for such plaintiffs A. Forester and E. Dav- waived its Willie enport. by stipulation on court has not Each was dismissed claims. Because the district assertion, and it is not critical June addressed this disposition appeal, we leave it to to our of this the claim on the district court to consider alleges it maintained 2. The Government government continue to remand should the court lacked in the district jurisdiction retaliation assert it. over ADEA based younger experi- discovery, Adams and less After selected defendant filed a mo- simply age. summary because tion for employees judgment January enced on alleges alleging Teran that he was removed from a that Plaintiffs failed to com- ply with the ADEA’s position overseeing construction of a bor- notice of in- requirement. tent to sue replaced younger with a Plaintiffs volun- der fence tarily dismissed each of their claims agent age. except on account of his Evans also ADEA those under the and for retaliation against claims that he was discriminated under Title VII. age. of his maintain because promoted that each would have been but May granted the district court age. for his summary the motion for judgment, con- cluding jurisdiction it lacked over participated in counseling Plaintiffs with Plaintiffs’ ADEA claims because the com- (“Rights the EEOC and received letters plaint prematurely. was filed It also de- Memoranda”) February late advis- nied Plaintiffs relief. The court ing “rights them of their an pursuing reasoned that because Plaintiffs had been complaint.” page EEOC On the third informed of the notice of intent to letter, each pro- EEOC describes the requirement by sue the Rights Memoran- necessary filing age cess discrimina- da represented by and were an attorney at claim, including following: tion filed, complaint time the may bypass elect to [Y]ou the adminis- relief was not available under the Ninth procedure trative file civil action Hageman Circuit’s decision in Philips directly in an appropriate U.S. District Laboratories, Inc., Roxane 623 F.2d 1381 Court, filing after first a written notice (9th Cir.1980) (denying equitable relief of intent to file a civil action with the counsel, plaintiff, represented by where days EEOC within 180 calendar of the waited a substantial of time before alleged date of the discriminatory action. filing complaint). his timely Once a notice of intent to sue is EEOC, you filed with the must wait at II. days least 30 calendar filing before A grant summary district court’s civil action. judgment is reviewed de novo. Buono v. May Between March and Plaintiffs (9th Cir.2004). Norton, 371 F.3d counseling reports each received Viewing light the evidence in the most Right EEOC and Notices of the to File a non-moving party, favorable to the we Letter”). Complaint (“Complaint Formal any genuine must decide whether issues of 23, 2001, May On Plaintiffs each sent a material fact exist and whether the district notice of intent to sue to the EEOC. Nine correctly applied relevant substan- later, 1, 2001, days on June Plaintiffs filed Henderson, tive law. Johnson v. 314 F.3d in the United States District (9th Cir.2002). 409, 413 July Court for the District of Arizona. On 5, 2001, the EEOC sent letters to the III. appropriate employing staff director at the they Plaintiffs assert that had filed agency, informing the director of the days their complaint after

Plaintiffs’ notices of intent to sue and re- sue, they of intent would have forfeited questing complete inquiry within 30 judicial review of some of their discrimina days. There is no indication that fur- they allegations they tion because believed ther administrative action was taken. were required to file their civil action with complaints

Plaintiffs filed amended on in days alleged discriminatory January October and on 2002. conduct. are incorrect. Stevens, filing their lawsuit. sue before (collectively “private”) private

A or state civil court dismissed Stevens’ dis- he has been employee who believes ADEA because brought action under age against on basis criminated Stevens, not “noti- employee, did with- a federal with the EEOC must file a thirty days prior to discrimination, within fy the EEOC days alleged in 180 6, 111 Id. at S.Ct. commencing suit.” state. 29 U.S.C. days in a deferral or 300 vacated the dis- 626(d) (2000). Supreme Court may not employee § had filed his It noted that Stevens until 60 missal. in district court file a civil action days after the to sue 176 notice of intent days after action, he did discriminatory but alleged EEOC. Id. than until more not file his lawsuit contrast, be- employee who By 6-7, notice. giving against he has been discriminated lieves that, ac- held 1562. The options under 29 age has two because 633a, plain language cording to (2000). First, may he file 633a by bypass provision Stevens satisfied directly with the action an administrative within 180 notice of intent to sue giving After ex- 29 C.F.R. 1614.105. EEOC. alleged the date of the discrimi- days from remedies hausting the administrative civil action natory filing conduct and his an administra- waiting days filing after 180 days gave after he notice of more than 30 EEOC, receiv- upon action with the tive 7, 111 1562. The sue. Id. at S.Ct. intent to determination, em- agency final the ing a limi- recognized that some Supreme Court in may file a civil action ployee filing period tations 1614.201(c). Second, § court. § that because 633a necessary, and held employee may bypass administra- federal a limita- period, no limitations contained directly and file in district proceedings tive from an period should be borrowed tions 29 (“bypass provision”). U.S.C. The federal or state statute. Id. analogous 1614.201(a). 633a(d); § § To do 29 C.F.R. Court, however, adopt partic- declined to so, required to file a notice employee the Stevens period ular limitations because the intent to file a civil action with year days “only filed his suit one six days alleged within 180 from EEOC event,” discriminatory allegedly after conduct, discriminatory and then wait 30 acknowledged was respondents which the civil action.3 Plain- days filing before of limitations within whatever statute “well employees and filed their tiffs are federal 8, 111 to the action.” Id. at might apply bypass provision. complaint under marks and (quotation 1562 citations S.Ct. fears, Contrary to Plaintiffs’ Su- omitted). in v. De- preme opinion Court’s Stevens Stevens, that Plaintiffs After it is clear Treasury, partment to file their civil action (1991), required were not 114 L.Ed.2d estab- S.Ct. days court within 180 of the in the district their claims would not have lishes Indeed, discriminatory conduct. alleged more they barred had waited 30 or been Stevens, court would following days filing after their notices of intent 633a(d) notice shall be filed within one hundred U.S.C. states: eighty days alleged unlawful after the a com- When the individual has not filed receiving practice Upon a notice occurred. concerning age plaint discrimination with sue, intent the Commission shall Commission, may be no civil action promptly notify persons named therein all by any individual under this commenced prospective in the action and defendants given until the individual has section any appropriate take action to assure thirty days' no- Commission not less than practice. unlawful file action. Such elimination tice of an intent to such jurisdiction if Plaintiffs had appears entirely have retained EEOC separate provision considerably days juris- more than 30 and it does not speak waited dictional terms or refer in any way notice of intent to sue filing their jurisdiction lawsuit, the district courts. waiting their before scope would not have limited the Id. 393-94, 102 S.Ct. 1127. Although district court’s review. (“A is mandatory language Title VII charge under this section shall be filed

IY. within one hundred and eighty days after case, alleged employment unlawful practice.” another Court ad- 5(e)(1)), 42 U.S.C. the Court de- provision required charges dressed a 2000e— clined to jurisdictional hold that it was of discrimination violation of Title VII to because the language was not contained be filed with the EEOC within 180 within a jurisdiction-conferring statute.4 alleged discriminatory action. Airlines, Inc., Zipes v. Trans World provision before the Su 71 L.Ed.2d 234 preme in Zipes was similar to the (1982). The Court held “that a time- 633a(d) §in provision which states that ly discrimination with the EEOC “[s]uch notice shall be filed within one jurisdictional prerequisite is not a suit eighty days.” hundred and Accordingly, that, requirement but a like Zipes weighs against holding limitations, subject statute of to waiv- 633a(d) §in jurisdictional. to be er, estoppel, Id. at Moreover, equitable tolling.” mandatory if the language in 393, 102 S.Ct. 1127. The Court wrote: concerning 180-day filing re provision granting district courts quirement jurisdictional, is not it follows VII,

jurisdiction mandatory under Title language concerning 2000e-5(e) (f), §§ ju- 30-day and not limit waiting period does also need not be jurisdictional.5 risdiction to those cases in which there construed as timely filing has been a with the EEOC. V.

It contains no timely- reference to the filing requirement. The provision speci- approach Before we can follow the fying the time Zipes, Stevens filing charges Supreme with the in Court took reasoning question 4. The Court also based its on the old that is sometimes described as ADEA, legislative history which was "jurisdictional.” Dep’t Irwin v. Veterans 11, modeled after Title VII. Id. at n. 89, 395 102 94, 453, Affairs, 498 U.S. 111 S.Ct. 112 Report S.Ct. 1127. The House Conference on (1990). sovereign L.Ed.2d 435 Waiver of im- the 1978 revision of the ADEA that the stated munity strictly will be in construed terms of requirement charge a within 180 scope, sovereign. its in favor of the Lane v. alleged discriminatory conduct Pena, 187, 2092, 518 U.S. 116 S.Ct. 135 jurisdictional subject eq was not and was (1996). Supreme L.Ed.2d 486 Court has (quoting H.R.Rep. uitable modification. stated, however, Congress "[o]nce has 95-950, (1978) (Conf.Rep.), No. at 12 as re waiver, making made such a we think that 528, 534); printed in 1978 U.S.C.C.A.N. see equitable tolling applicable rule of to suits Serv., Boyd also v. U.S. F.2d Postal 752 Government, against way in the same (9th 1985) ("A timely filing 414 Cir. of an suits, applicable private it is amounts to charge jurisdictional prerequi EEOC is not a little, any, broadening congressional if of suit.”). site to Irwin, waiver.” U.S. at 498 111 453 (holding that VII are time limits within Title 5. Section 633a acts as waiver of Federal Nakshian, subject equitable tolling against sovereign immunity. in suits Lehman v. government). Accordingly, equitable 453 U.S. 69 L.Ed.2d (1981). Sovereign immunity tolling applicable against 548 is thresh- is to ADEAsuits 926 charge and effects. A Dempsey purposes distinct opinion our

we must consider (9th EEOC, Co., by the begins investigation an Bell 789 F.2d v. Pacific Cir.1986). may by with a civil action strictly con- which culminate Dempsey, we unable to that a the EEOC should the EEOC be 60-day period private strued the informally complaint. resolve the EEOC to wait before employee required is Co., 54, 68, 104 S.Ct. court. v. Shell Oil civil action (1984). contrast, By L.Ed.2d Dempsey, private employee, filed 1451. alerting the equiv- requirement, the notice while with the EEOC and necessarily alleging age dispute, dis- to the does not agency EEOC alent California proceed in an administrative waiting at Without result EEOC crimination. Id. Moreover, employee’s the federal ing. filed a civil action days, Dempsey judicial right to file a is not district court. held We to, by, any by jurisdictional, citing subject preempted action waiting period was its Zellerbach, time to the EEOC. Aronsen v. Crown purposes providing EEOC (9th Cir.1981). suit, bring its own 662 F.2d investigate claims notice and a provide employers and to A notice of intent to sue has different dispute litiga- without chance to settle the and effects from the purposes tion. Dempsey. The notice does not issue starting have effect of an administra- opinion Dempsey is not control- Our First, EEOC, though it ling Dempsey proceeding for several reasons. tive employee may trigger investigation, adminis- and so there interpreted private no need to the EEOC time to waiting period, “allow[] trative which is distinct F.2d at public employee bypass provision Dempsey, file its own suit.” Second, jointly running no Dempsey equivo- here. 1452. There is risk of issue actions, judicial cal the district court lacked administrative on whether Third, if authority grant equitable private there would be under relief. waiting employees comply cases have did not subsequent Bankston, “jurisdiction” period. that the term should 345 F.3d at clarified Cf. (“[A]n where administrative exhaustion rule is be reserved for instances courts if authority meaningless may impede relief. claimants grant lack process the administrative abandon A. yet still be heard the federal courts.” omitted)). (citation Indeed, bypass 60-day pe- time Dempsey concerned require does not exhaustion of provision private employee riod that a must wait administrative remedies because no admin- filing charge a formal proceeding begins. ever Accord- istrative right his to file a civil action EEOC before ingly, Dempsey holding we do not read as contrast, By the case at bar matures. waiting ADEA provisions that all 30-day for which period concerns the time jurisdictional. are employee pursuant a federal must wait bypass provision before his exist- B. § ing civil action under 29 U.S.C. 633a. Furthermore, Demp- file a it is not clear that employees Private must suit, sey actually held that the district court the EEOC before while authority grant re- employees only need file notice intent to lacked the 626(d) § claim Compare panel Dempsey’s sue. with 29 lief. The ordered U.S.C. 633a(d). § provisions The have dismissed but then stated “since against private persons. United States to the same extent as it would be in actions case, may grounds exist in this we that tolling factors it had fewer than fifteen em- ployees direct the event because Title VII defined “employ- refile er” Dempsey person engaged should his within as “a industry specified, affecting the time hereafter to eval- commerce who has fifteen or 2000e(b) making employees.” uate those factors determina- more 42 U.S.C. (2000). tion of whether the statutes of limitation of The district court interpreted this 626(d) (e) §§ requirement jurisdictional. 29 U.S.C. should be 126 S.Ct. at (2000). tolled.” F.2d at 1451-52. The opinion jurisdictional further notes that “a strict Supreme The Court reversed. It con- adversely plaintiffs, partic- bar could affect statutory sidered the and constitutional se, ularly proceeding pro by those barring jurisdiction bases for over a Title VII ac- jurisdictional those who discover their er- tion, noting that “broadly 28 U.S.C. 300-day ror after the statutes authorized the federal courts to exercise limitation,” “if plaintiffs ju- and that subject-matter jurisdiction over ‘all civil risdiction error was the result of excusable Constitution, actions arising under ” ignorance and preju- defendant was not laws, or treaties of the United States.’ error, by diced the statutes of limita- 1331). (quoting at 1239 28 U.S.C. (citation tion could be tolled.” Id. emphasized “jurisdic- that the term omitted). Thus, it that appears panel tion” has been used loosely by the Su- think that Dempsey did not its decision preme by Court and other deeming courts necessarily

would deprive Dempsey ju- “mandatory time limits as jurisdiction- dicial of his claim.6 review al,” but the Court stated “in recent decisions, we have clarified that pre- time C. scriptions, emphatic, however are not ” Our determination that the district court ‘jurisdictional.’ properly typed Id. at 1242 jurisdiction did lack grant omitted). (quotations and citations relief is bolstered several recent Su Court admitted that it had “been less than preme addressing Court cases the defini meticulous” with the distinction between “jurisdiction.” tion of In a case with simi subject jurisdiction matter elements subject bar, lar matter to the case at a claim for empha- relief. Id. The Court Court held Title VII’s em categorizing “juris- sized that an issue as ployee-numerosity requirement ju is not dictional” carries with it a number of con- risdictional. v. Y H Arbaugh Corp., & 546 sequences, including the issue can 1235, 1238, 163 L.Ed.2d never be forfeited or waived. Id. at 1244. (2006). Arbaugh her employer sued The Court determined that employee- for discrimination under Title VII. Two numerosity requirement was unrelated to jury weeks after a returned a verdict for jurisdictional provision in Title VII.7 Arbaugh, granted 394, the district court the Zipes, Id. (citing 455 U.S. at 102 S.Ct. 1127). employer’s motion to dismiss on the The Court concluded that because opinion Dempsey may 6. Our period, in be read filing as and seek relief for the holding although complaint why that the statute of limita- so late. It is not clear such an approach superior allowing tions for a would be to a EEOC and granting court to consider appropriate agency the relief in equita- state could be tolled, pending the case. bly 60-day waiting period the could Thus, Dempsey not be tolled. Id. at 1453. if Supreme 7. The Court stated: judicial continued to want review of his dis- claim, crimination he had to file a new com- Legislature clearly If the states that a plaint, beyond 60-day waiting now well scope the threshold limitation on a statute’s 928 cases clarifies that Zipes, and baugh, other jurisdiction- as requirement a

categorizing “jurisdictional” a employ- did not concern Dempsey the Title VII Congress, up al is to juris- equitably was not cannot be waived ee-numerosity requirement issue that not be raised dictional could tolled.

trial.8 Id. D. with are consistent opinions The recent the conclude We approach Zipes Supreme Court’s in 29 U.S.C. waiting period has moved that the Court and demonstrate that a dis in the sense jurisdictional “jurisdiction” terms defining

away from any authority grant to to file a civil court lacks obligation trict plaintiffs of a describing premature a definition is filed action and toward relief when adjudicate 633a(c) power jurisdic to the limits of court’s for ly. provides Section an action.9 courts over discrimi tion of federal the ADEA.10 pursuant claims to nation however, by focusing on Dempsey, (9th States, F.2d 336 v. Bunch United 626(d)’s language plaintiff “that a ‘must’ Cir.1977). broadly courts are au District filing suit” sixty days notice before give juris subject matter thorized exercise “strict enforcement” emphasizing arising “all actions under diction over civil necessary to forward section’s laws, Constitution, or treaties to “strict analogized “jurisdiction” goals, Only 28 U.S.C. 1331. United States.” plaintiffs duties. 789 enforcement” of the juris as may classify a statute Congress rejection of such an F.2d at 1452. The 443, Ryan, v. 540 U.S. Ar- dictional. Kontrick Supreme approach 12, States, U.S. v. United jurisdictional, courts In Eberhart then shall count as (2005), 163 L.Ed.2d litigants duly instructed and will will prescriptions time Supreme Court held that with the issue.... But not be left to wrestle statutory Rules Criminal Procedure can- Congress not rank the Federal when does subject-matter jurisdictional, "deprive coverage federal courts on as limitation jurisdiction,” and its own use treat the restriction as non- criticized courts should "jurisdictional” defects that term were jurisdictional in character. (internal subject jurisdiction. matter Arbaugh, S.Ct. at 1244 citation unrelated to omitted). 398, 102 S.Ct. Zipes, Arbaugh approach Supreme 8. The Court’s Supreme Court concluded: opinions in other consistent with its recent filing peri- holding compliance By Cotton, 535 U.S. In United v. cases. States prerequisite jurisdictional od to be not a (2002), 122 S.Ct. 152 L.Ed.2d suit, requirement VII but a a Title holding Supreme Court overturned tolling when subject waiver as well as jurisdiction court not have did equity requires, we honor the remedial so charged a crime not sentence defendants legislation a whole purpose with- in an "defects in on the indictment because purpose negating particular out power of its deprive dictment do not give prompt filing requirement, to notice to adjudicate 122 S.Ct. a case.” employer. Ryan, 1781. In Kontrick (2004), 906, 157 L.Ed.2d 867 10. That section reads: that failure to file an Court held actions; (c) jurisdiction; relief Civil the time amended within con may bring Any aggrieved a civil person jurisdictional defect be not a straints was court of district com- prescribed action Federal filing deadlines cause "the equita- 9006(b)(3) legal petent jurisdiction for such or Bankruptcy and are Rules 4004 purposes of ble relief as will effectuate not claim-processing that do delineate rules chapter. competent this bankruptcy courts are what cases 633a(c). 453-54, § 29 U.S.C. adjudicate.” 124 S.Ct. 906. to 929 (2004). 452, 906, 124 157 L.Ed.2d fortiori prematurely S.Ct. 867 that commencing a However, Congress place did not the 30- civil action within days actually 30 of giv- ing day waiting period specific pro- within the notice of intent to sue should be sub- ject jurisdiction equitable vision that confers on the fed- relief. Moreover, eral district courts. because We conclude for foregoing rea emphatic, prescriptions, “time however are sons though that even Plaintiffs filed their ” properly typed ‘jurisdictional,’

not in the district court without mandatory language in does waiting 30 they provid date support an of interpretation pre- its time ed the sue, EEOC with of notices intent to scriptions “jurisdictional.” as Arbaugh, required by 633a(d), 29 U.S.C. (citation omitted). 126 at 1242 Ac- jurisdiction court had grant cordingly, we hold that the time prescrip- them equitable relief from premature their 633a, tions in 29 including the 30- filing. day waiting period, jurisdictional are forfeited, waived, may be equitably or VI. modified. Having determined supported by conclusion is two jurisdiction court had grant Our First, other considerations. ADEA relief, “[t]he equitable we must consider whether is remedial and humanitarian legislation granted Plaintiffs .should be such relief. Naton, liberally interpreted should be to ef we explained equitable toll- congressional fectuate the purpose ing of end “often plaintiffs focuses on the excusa- ing age employment.” ignorance discrimination in ble of the limitations Cal, 691, prejudice Naton v. Bank on lack of to the defendant.” F.2d (9th Cir.1981). Naton, purpose This 649 F.2d at 696. would be We have subse- “[wjhere quently if noted premature filing danger frustrated of com prejudice absent, plaint, to the defendant prejudice which did not defen dant, justice require, equita- interests so prohibit was held to a court from tolling ble period may limitations be considering the claims on the merits. Connell, appropriate.” Azer v. 306 F.3d Second, two other circuits have held (9th Cir.2002). 930, 936 that, given non-jurisdictional nature of 180-day period within which equitable tolling issue of often employee sue, must file notice of intent to arises in the context plaintiff failing of a failure to file a notice with the EEOC at file an action a statute of limita within may subject all to equitable be relief. Cas tions, and we “review de novo the district States, (1st tro v. United 775 F.2d court’s dismissal of a on statute Cir.1985) abrogated by Dept. Stevens v. grounds.” limitations Daviton v. Co Treasury, Corp., Healthcare 241 F.3d lumbia/HCA (1991); Nimmo, (9th L.Ed.2d 1 Ray Cir.2001). Our standard of (11th Cir.1983). F.2d 1483-84 If application review for the toll complete nuanced, failure to file a notice of ing intent to is more explained as we remedied, Johnson, may equitably sue it follows a 314 F.3d 413-14.11 See, 11. We noted: e.g., statute of limitations. Santa Maria Bell, (9th v. Pac. 202 F.3d Cir. The law of Circuit this is somewhat incon- 2000) (while applies de regarding ap- sistent novo standard the standard of review plicable to a district court’s determination of whether a district court's determination limitations, equitable estoppel by of whether claim is barred the statute of tolling applies equitable tolling to a claim barred the decision as to whether they mistaken- prematurely because plaint opinion that Initially, we note our Laboratories, required to do they that were ly thought Philips Roxane Hageman v. (9th Cir.1980), review their Inc., judicial is not of preserve so to 623 F.2d Second, was employ- misconception their Hageman, private controlling. claims. they to sue ee, any notice of intent after had up to file until well failed not cleared then Indeed, Department of Labor even the dis- complaint. filed the year after the action over granting a civil sum- May filed 2005 order trict court’s which he was the time within expiration clearly of indicate mary judgment does Id. at a notice of intent. to file supposed belief were mistaken their that Plaintiffs The district court 1382-83. dismissed file their within they that had to lawsuit filed a Hageman because had case alleged inci- underlying of 1381. The intent to notice of sue. Third, was there of discrimination. dents notice of whether “the appeal on was issue defendant from to the prejudice no be either requirement should intent to sue to the Accordingly, contrary early filing. Id. af- or waived.” We satisfied deemed Hageman that we conclude (a) that: noting the dismissal firmed tolling grant equitable of does not bar Hageman that no evidence “there[was] this case. require- of intent to sue the notice found of turn to the merits nextWe that or that he believed ambiguous ment tolling. request Plaintiffs’ it”; complied filed complaint he tolling appropriate where Equitable is (b) may have Hageman “any ambiguity limita ignorance of the there is “excusable up at been perceived must have cleared prejudice of to the lack tions [a] possi- early as March least as Naton, defendant,” at 649 F.2d earlier, that was his bly when informed he to the de danger prejudice of where “the satisfy notice re- did not absent, of and the interests fendant is (c) statute”; Hage- quirement of the Azer, at 306 F.3d justice [require relief].” August file his action did not until man employer] year [his “over case was closed.” justifiably any believed the Here, showing no or even there 1385-86. premature at that suggestion was prejudicial Plaintiffs’ course, to this Hageman’s relevance Of Plain- knew The defendant defendant. it by the fact was is limited case attempts counseling at tiffs’ unsuccessful deci- before the Court’s decided July early 2001. On with the EEOC clarified that a notice Zipes sion appropriate informed the the EEOC jurisdictional and to sue was not intent employing agency staff director of not a Hageman private, fact sugges- There is no complaint. Plaintiffs’ federal, importantly, employee. More alleged time defendant at tion swung any of the have not Plaintiffs filing of premature any prejudice out of that threw Hageman three strikes Moreover, dis- complaint. First, com- Plaintiffs’ their court. filed reviews tions reviewed ed, er to applies "is discretion, an abuse of in which event the apply omitted); the district court's decision de generally novo”) (emphasis unless the discretion.”) (emphasis add- id. at 1176 reviewed facts legal estoppel doctrine are ("This for an abuse added) question undisput- wheth- (cita- 314 F.3d States ed) ar of review to [9th Cir. Cir. [v. Pac. (1992)] (same). (citation omitted); Dep't at 413-14. (1997)] Bell 963 equitable tolling State 105 ], (applying de ], F.2d Leorna F.3d ^[264] claim); novo ^[548] [v. standard Schol at 550 United [9th granting summary defendant, trict judg- court’s order diced the to deprive the Plain- finding prejudice. ment makes no day tiffs of their in court. Certainly such a draconian measure is

There no that doubt Plaintiffs filed required by the underlying purposes of complaint prematurely they their and that the waiting period. noted, when a As fed- they mistakenly did so because thought employee eral opts for the bypass provi- they that had to to preserve judicial do so sion, right judicial his to seek review is not review of their claims. There is no sug- dependent any on by action the EEOC. gestion they any that had ulterior motive Indeed, case, in this Thus, EEOC did not doing so. they whether are even inform the defendant of Plaintiffs’ granted equitable tolling turns on an eval- notices of 5, intent to until July sue uation of whether 2001. their mistake was “ex- Thus, had Plaintiffs waited the 30 cusable” or by whether relief is warranted filed complaint 23, 2001, their on June justice.” this “interests of still would have been before the EEOC that if We conclude even Plaintiffs’ mis- informed the defendant of Plaintiffs’ no- excusable, take was the “interests of tices of intent Furthermore, to sue. justice” support grant our of equitable toll- purpose providing the EEOC with no- ing. It is not clear when Plaintiffs re- tice of intent to sue is to allow it to “take counsel, they tained but had counsel at the any appropriate action to assure the elimi- they time filed their complaint and this nation of practice.” unlawful weighs against a finding of excusable ne- 633a(d). purpose This is not viti- glect.12 However, unlike instances where filing ated of the lawsuit. The plaintiff fails to act within a statute of EEOC can still negotiate with parties limitations and therefore cannot proceed resolution, and seek an agreed upon which excused, delay unless his or her here might well include the dismissal of the Plaintiffs were proceed they entitled to if instance, lawsuit. In filing this of the filed complaint their sometime after June lawsuit did not interfere EEOC’s Thus, if Plaintiffs had filed a efforts because nothing happened between complaint new ifor either of the amend- of the lawsuit on June ments to their had been treated August when defendant filed as a complaint, new Plaintiffs would have a motion to alleging dismiss that judicial been entitled to a determination of named defendants were not proper complaint.13 merits of their It would parties. contrary to the remedial and humani- ADEA, Naton, tarian purposes of the sum, see grant we equi Plaintiffs 649 F.2d at premature allow the table relief from filing their complaint, of a in way no preju- prematurely because we determine that ” Johnson, 12. See (internal holding 314 F.3d at requirements.’ law’s citations omit- ted). plaintiff represented by because the coun sel, charged she could "be with constructive knowledge requirements, of the through law's 13. The district court did not comment on attorney, during her peri the relevant time amending complaint, possibly their Dep’t See also Leorna v. United States od.” thought any jurisdic- because it it lacked Cir.1997), State, (9th 105 F.3d di parties tion over the case. Because the have hol counsel, ng that “once a claimant retains impact failed to address of the amend- tolling 'gained ceases because she has jurisdiction ments on the district court's knowledge rights means of of her and can be their briefs before this we decline to do charged knowledge with constructive so. ... until the by an individual commenced by pre- the prejudiced was not defendant not the Commission by given has individual supported is filing and relief mature intent to days’ notice of an equita- thirty justice. grant We less than interests of the matter whether one Regardless this action.” relief, rather than remand file such ble 633a(d) pas- “jurisdictional” provi- § because of a district court labels to the filing of the com- a clear sion, since the time is sage of time de- to the prejudice the lack of which determines plaint requirement statutory in fed- ability fendant.14 to seek relief complainant’s here did not appellants court.2 eral reasons, foregoing Accordingly, for the giving no- days pass between allow 30 to court’s order we VACATE filing their to sue and tice of intention judgment and REMAND summary therefore, action; they comply did this consistent with proceedings further 633a(d)” requirements “the notice opinion. to federal proceed “cannot consequently dissenting: BEA, Judge, Circuit Chao, Rann v. 346 by that route.” (D.C.Cir.2003). Hence, I F.3d 199 attorneys jumped Plaintiffs’ In case this respectfully dissent. must discrimination suit age an gun in give the Rather than court. Furthermore, may consid- assuming we of intention to 30-days notice EEOC the equitable pursuant principles tolling er statute, by during which provided file suit Inc., Airlines, Zipes v. Trans World attempt concilia- could days the EEOC 71 L.Ed.2d 234 102 S.Ct. ac- tion/settlement, attorneys filed the (1982), majority’s con- disagree with the I Plain- such giving notice. tion in this the defendants clusion that because majority say “Don’t now the tiffs—and — by appellants’ prejudiced were not case harm, literally; no no foul.” things too take 633a(d), in contravention of early filing say: I “No dice.” equitable principles of apply we should appellants’ pro- estoppel to allow case The fact is things.1 stubborn Facts are prejudice is “Although absence ceed. question, 29 U.S.C. statute determining to be considered may be factor “no civil reads: action Naton, "juris- the statute question whether to label recognized au- we inherent 14. our relief, jurisdictional” then or "not and we indi- dictional” thority grant —and text the discussion from statute’s determined to shift that such relief should be cated truly applies. Such is at 696. the label case-by-case 649 F.2d to whether on a basis. usually shifting the Although example is focus such a determination but one presents grand-sounding abstrac- unpleasant this case facts to made in the instance, efficiency judicial pleasant where it is much more situation tion. unusual For grant we rather than wine than relief the attributes of fine recommends to discuss looking price So the issue to the district court. at the list. remand crash earth here, argument on wheth- can if one focus things; whatever statutes is like or unlike other 1. are stubborn er the statute "Facts wishes, "non-juris- characterized may our our inclinations which been have be dictional,” they might alter the to avoid passion, cannot one even able of our dictates Adams, ap- John As will and evidence.” words in statute. state of facts actual below, are Argument Soldiers pear when the words of a statute Defense of Trials, clear, will allow mus- Massacre December Boston "jurisdictional” or not. http:// www.quotationspage.com/ ings available as to whether it is pages See game. play that quote/3235.html. It will not infra (discussing Hallstrom Tillamook v. 10832-36 20, 31, County, 493 U.S. to deflect a clever rhetorical devise 2. It (1989)). we. Neither should raise the L.Ed.2d the text of a statute to from attention whether the doctrine of tolling notify violator, “the alleged State, apply might jus- should once the Environmental Agency Protection ... factor tify tolling such it is not an identified, of their intent to sue” at least 60 days independent invoking basis for the doc- prior commencing suit.

trine and sanctioning deviations from es- controversy in that case procedures.” County tablished Baldwin began plaintiffs when notified the owners Brown, Welcome Ctr. of a neighboring they landfill intended to 1723, (1984) 104 S.Ct. 196 (per L.Ed.2d against file suit said owners for alleged curiam) added). Here, (emphasis no fac- violations of standards established under tor justifying tolling majori- exists. The 23, RCRA. Id. at 110 S.Ct. 304. Without ty’s application principles in notifying EPA, the State or the plaintiffs of such a effectively absence factor commenced the year action a after sending 633a(d)’s § the death sounds knell to 30- their notice. The defendant moved for day waiting requirement. summary judgment, claiming the district

Accordingly, I dissent. jurisdiction court lacked because plain- tiffs had failed to notify the State and the

I. EPA of the 23-24, suit. at Id. 110 S.Ct. only dispute before us is whether 304. The district motion, court denied the may -proceed in a federal ruling plaintiffs had cured action after failing to 30 days wait follow- by notifying defect the State and the EPA ing of a notice of intent to sue day after merits, On the suit. with the EEOC initiating before their suit the district court ruled in favor of this in federal district court. I would affirm plaintiffs. 24, at Id. 110 S.Ct. 304. We summary judgment court’s or- reversed, holding 60-day that “the notice der simple grounds 633a(d), on the § requirement deprived the District Court of according terms, to its plain “is a mandato- subject jurisdiction.” matter Id. ry, optional, precedent not condition The Supreme Court affirmed our deci- Hallstrom, suit” in federal court. sion. The Court explained the issue was 26, 110 S.Ct. 304. The majority’s some- compliance “whether with the 60-day no- jurisdictional what labored analysis is sim- provision tice mandatory is a precondition ply unnecessary to resolution this case. to suit or disregarded can be by the dis- my To explain reasoning coming to this trict court at its discretion.” Id. conclusion, begin by I exploring three Su- 304. The analysis S.Ct. Court’s preme light Court cases that shed on how grounded in plain text of the analytically approach best the issue be- statutory command: fore us.

The language provision of this could not A. be clearer. A may not citizen commence an action under RCRA until 60 days First, Hallstrom v. Tillamook County, after EPA, the citizen has notified the dealing while with a substantive area of State which the alleged violation separate ADEA, law illustrates occurred, and the alleged violator. how apply Ac- statutory provision best tions commenced requiring plaintiffs prior to wait a certain notice are “prohibited.” time before ... commencing suit in Under a statute, court. In literal reading Hallstrom the compliance considered Court provision provision Resource Conservation is a Recovery (“RCRA”), Act of 1976 mandatory, optional, not condition prec- 6972(b)(1), requiring plaintiffs edent for suit. Id. at 110 S.Ct. then risdictional. The Court 110 S.Ct. 304. Id. at why question have framed the arguments parties “The rejected a number prag- a flexible or as whether the no- given presented “should be in this case statute matic construction.” jurisdictional procedur- is provision tice interpretation In of our literal light al. the Court Notably present purposes, statutory requirement, we need 60-day no- that “RCRA’s to hold declined 6972(b) jurisdic- whether determine subject equita- provision tice should the term.” Id. to tional in the strict sense of pursuant cure” ble modification Airlines, added). Similarly, Inc. 455 we need (emphasis World Zipes v. Trans 71 L.Ed.2d 102 S.Ct. determine whether 29 U.S.C. U.S. (1982). 27, 110 304. The the same reason. “jurisdictional” and for explained: States, Second, McNeil v. United timely filing that the we held Zipes, 1980, 124 L.Ed.2d with the discrimination charge of a (1993), a similar anal applied the Court [EEOC], Title VII required as under considering provision a ysis while jurisdictional prerequisite a ... was not (“FTCA”) Act which Federal Tort Claims waiver, subject estop- to was to suit but be insti required that “an action shall not tolling. This decision pel, the upon against tuted a claim United First, as we help petitioners. does not money damages unless the States language Zipes, noted in both adminis claimant has first exhausted his 2000e-5(e) indi- history of legislative (internal quotation trative remedies.” operated as a filing period that the cate omitted). There, plaintiff lodged a marks running The statute of limitations. against a in federal district court complaint traditionally subject to is such statutes ju agency, invoking a federal court’s tolling. Unlike statute under the FTCA. Four months risdiction limitations, 60-day provi- RCRA’s later, a claim for plaintiff submitted by the violation triggered is not sion appropriate agency. Id. at damages to the Rather, peti- to the action. giving rise 107-08, agency 1980. The de timing over the have full control tioners claim, administrative and the nied the they only give notice of their suit: need claim in dis plaintiff sought pursue to his and refrain parties to appropriate 108-09, trict court. Id. at 113 S.Ct. 1980. their action for at commencing from granted The the Govern equities The do not days. least 60 complaint on ment’s motion to dismiss the modifying statutory weigh in favor of premature, was grounds the procedural de- requirements when having prior filed to exhaustion of been by to petitioners’ is caused failure fault 109, 113 at administrative action. Id. S.Ct. steps necessary pre- take the minimal appeals affirmed. 1980. The court of serve their claims. 109-10, 113 added) (emphasis Id. at 110 S.Ct. 304 (internal marks and citations quotations also affirmed. The Court omitted). presented the issue was explained timely action was either [the] “whether plain text of

Having determined it was commenced when [the because 60-day notice rendered the the statute his plaintiff] lodged “mandatory ] requirement condition[ ... it should be District Court or because commencing under the precedent suit on the having been ‘instituted’ to viewed RCRA,” expressly declined the Court claim administrative was requirement ju- date when his hold that the 110-11, cl.2), denied.” Id. at 113 S.Ct. 1980. and the legislative benefit of deliber- deciding The Court had little ateness, debate, trouble hearings, committee ex- case plain based on the text of the statute: pert testimony, etc., to plain- determine requires rejection text of the statute ability tiffs’ to seek relief in federal court. possibility.

of the first Hence, The command when Congress specified pre- has that an “action shall instituted procedure gain cise access to federal ... unless the claimant shall have first court, job our as Article III judges is to presented the claim to appropriate apply the “mandatory prece- condition!] agency Federal and his claim shall have to commencing dent suit” in federal finally been denied by agency engage jurisdictional abstractions. writing and sent or regis- certified Hallstrom, 110 S.Ct. 304. mail” unambiguous. tered is We are not Third, Zipes Airlines, v. Trans World statutory free rewrite the text. Inc. does not require us to determine 113 S.Ct. 1980 (quoting 28 jurisdictional. whether is At is 2675(a)) (omission origi- in Zipes sue was “whether timely filing nal). Regarding “possibility,” the second jurisdictional EEOC pre is again the plain Court looked to the text: requisite to bringing Title VII suit in context, In it statutory we think the federal court or the requirement whether interpretation normal word “insti- subject to waiver and estoppel.” 455 synonymous tute” words “be- 392, U.S. at 102 S.Ct. 1127. The Court gin” and “commence.” The most natu- provided a number of why reasons the ral reading of the statute indicates that timely filing of a charge with the EEOC Congress require intended to complete precondition not a suit, was to federal but exhaustion of Executive remedies before primary among these reasons was that the judicial of process.... invocation the within period which to file charge was orderly The interest in administration of analogous to a statute of limitations in that body this of litigation is best served prevented it the filing of “stale claims.” adherence to the statu- straightforward (internal at 102 S.Ct. 1127 quota tory command. omitted). tion marks explained, As in 112, 113 S.Ct. 1980. Hallstrom the distinguished Court Zipes these From cases we learn when by explaining that Zipes “in both the lan plain the text of the predicating statute guage legislative history § of 2000e- clear, access to federal courts is the Su 5(e) indicate that filing period the operated preme text; applies the plain goes it as a statute of limitations.” 493 U.S. at no analysis. further in its The reason: Hence, 110 S.Ct. 304. like a statute of “ run, ‘in long the experience teaches that limitations, within which to file strict adherence to procedural require charge with the EEOC under Title VII specified by ments the legislature is the “subject to waiver as well as tolling best of guarantee evenhanded administra equity requires.” when so Zipes, 455 ” U.S. Hallstrom, tion law.’ 493 U.S. at 398, 102 at S.Ct. 1127. 31, 110 (alteration omitted) S.Ct. 304 (quot Importantly, Silver, provision at issue ing in Corp. Mohasco 447 U.S. 826, 100 Zipes did not deal (1980)); complainant’s with a 65 L.Ed.2d 532 ability see court; also McNeil to initiate in 508 U.S. at suit federal it 113 S.Ct. (quoting language). only the same with timely filing It is dealt of a Congress, which has the constitutional “A charge EEOC: under (U.S. authority, Ill, §§ Const. Art. section this shall be filed within one hun promptly sue, shall the Commission alleged days after eighty dred pro- therein as named notify persons oc all practice employment unlawful 2000e-5(e)(l).3 the action § in defendants spective curred....” present not action to assure Court was Thus, any appropriate Zipes in take procedure statutorily practice. mandated any unlawful ed a elimination court, which federal initiating suit added). I 633a(d) (emphasis § 29 U.S.C. the Court presented issue precise this language that “[t]he satisfied am the same Hallstrom, McNeil and Hallst clearer.” not be could provision cases, with here. These presented issue “[N]o rom, plain applying on emphasis clear their until may be commenced” action civil commenc before requirements statutory at least 30 waited has complainant ADEA court, our guide should in federal ing suit intent to sue filing notice days after Zipes. analysis, 633a(d). To 29 U.S.C. the EEOC. with B. phraseology, Supreme Court’s borrow statute, my rea- reading the bases a literal explained Having “[u]nder analysis to the provi [30-day] this apply I now soning, compliance with the Court’s instruc- Per at issue. condition mandatory, optional, statute ais sion Hallstrom, plain I consider Hallstrom, tions for suit.” precedent 633a(d). language of U.S.C. more, less. no 26, 110 S.Ct. 304. No filed a com- has not the individual When waited in this case Because age discrimination concerning plaint their notice only Commission, civil no action the EEOC before to sue with intent by any individual may commenced their until the individual this section under Plain- Although their suit. bars not less than the Commission given has Hallstrom, frame tiffs, parties like the intent notice an thirty days’ file of a inter- jurisdictional, “literal as issue the filed shall be notice action. Such such requirement” statutory of the pretation af- eighty days and one hundred within need to consider whether precludes the practice oc- unlawful the alleged ter 633a(d)’s jurisdic- is 30-day requirement § of intent receiving notice Upon curred. allowing parties to seek conciliation of requirement tion this the case 3. Were the issue lawsuit. of a federal 633a(d) prior to commencement plaintiff file § U.S.C. in 29 Affairs, Sec'y, Dep’t Veterans v. Wrenn See one hundred EEOC "within of Cir.1990). (2d Further- 1078 918 F.2d alleged the unlawful eighty days after more, express 30-day waiting period is an occurred,” the likely be con Zipes would practice ability sue in limiting plaintiff's 633a(d), command §of like trolling. provision This court, 180-day requirement which to a federal Zipes, akin statute provision at is issue Nonetheless, giving without limitations, clearly not. is designed prevent stale of very different natures Connell, any thought 306 F.3d v. See claims. Azer 30-day requirements 180-day and Cir.2002) ("The (9th purpose statute 633a(d), “if the majority mandato- holds § stale prevent assertion of is 'to of limitation " 633a(d) concerning 180- language § ry (quoting Davi against a defendant.' claims it jurisdictional, filing is not day requirement Corp., 241 Healthcare ton Columbia/HCA language mandatory concern- Cir.2001))). (9th that the re follows The F.3d not 30-day waiting period also need ing days plaintiff wait quirement that Maj. Op. at jurisdictional.” construed as the EEOC before of the notice with purposes of however, court, Given the different Not so. no 925. bears suit surprise the as no provisions, it comes 30- to a of limitations. statute relation why explain “it follows.” majority important does func- waiting period serves the day Hallstrom, sue, tional. notice of intent to shall [EEOC] S.Ct. 304. promptly notify all persons named therein prospective defendants in the action and Hallstrom, McNeil,

As in this liter- any take appropriate action al, to assure the approach textualist legisla- best serves elimination providing 30-day practice.” tive interests in for a unlawful added). waiting period (emphasis as a condition of filing suit Applying plain text in federal court. Examining this and oth- in this case furthers legislative this scheme waiting periods, er similar the Second Cir- by prohibiting plaintiffs from circumvent- explained: cuit has ing the ability EEOC’s to seek conciliation The purpose statutory prerequi- of these and eliminate unlawful practices prior to sites to bringing a civil action—and the initiation of a federal suit. policy employ-

well-established of the majority justifies their departure ment provide discrimination laws—is to plain text adopting whole-cloth opportunity for the resolution of dis- Plaintiffs’ assertion 30-day that the wait- complaints by crimination means of ing period served no purpose in their case “conciliation, conference, persua- because the EEOC did notify the De- 626(d); sion.” 29 U.S.C. see also 2000e-5(b). partment of Homeland Security impor- This is an suit policy tant until 35 the anti-discrimination after the EEOC received the laws, and the Supreme Court has ac- notice of intent Maj. to sue. Op. at 930- cordingly legislative stressed the prefer- 32. But this assertion is irrelevant. The ence voluntary conciliation. 30-day requirement is a clear restriction Wrenn, Likewise, 918 F.2d at plaintiffs on a ability proceed in federal Supreme Court has observed: regardless whether purpose its

Cooperation voluntary compliance met in each individual case. preferred were selected as the means Because 30-day waiting period of achieving goal eliminating [the clear, there is no need to employment To this discrimination]. consider principles whether end, Congress Em- Equal created the estoppel apply in this 30-day case. The ployment Opportunity Commission and waiting period at issue here is in nature procedure established a whereby ... analogous to the waiting period would an opportuni- Commission[ ] have under the at RCRA issue in Hallstrom. ty conference, to disputes settle through provisions Both deal procedural with the conciliation, persuasion before the requirements aggrieved beginning a federal ac- party permitted to a file lawsuit. tion and place the of commencement the entirely hands, action in plaintiffs the sub- Co., Alexander v. Gardner-Denver ject only specified waiting period. to a 36, 44, 1011, U.S. 94 S.Ct. 39 L.Ed.2d 147 (1974); I Wrenn, say any Because cannot it see also better than 918 F.2d at 1078.4 Indeed, Court, §in the I Congress specifi- has borrow from the cally “[u]pon instructed that receiving holding Court’s in Hallstrom: disagree I do majority not with the designed begin that the to allow the EEOC to may EEOC not investigation, file its own suit under importantly, an and more to 633a(d). Maj. Op. amongst at 926-27. But this allow the EEOC to seek conciliation importance parties does not weaken the likely any of the 30- the and take action to end day waiting period conciliatory waiting practice eye as a poten- unlawful with an towards admits, period. majority waiting tially negating necessity As the this the a federal of suit. The no- requirement. limitations, ADEA’s time the of statute

Unlike 633a(d)’s 30-day] provision is tices minced no words: notice [§ giving rise by violation triggered the adminis- may bypass to elect [Y]ou Rather, have [plaintiffs] the action. to a civil and file action procedure trative their suit: timing of over full control District directly appropriate in an U.S. appro- to the only give notice they need Court, written notice after first com- from and refrain parties priate action with file a civil intent to for at least [30] their action mencing days 180 calendar EEOC within weigh in fa- do not days. equities The discriminatory action. alleged date statutory requirements modifying vor of intent to sue timely Once if by is caused default procedural when the EEOC, you must wait with the filed the minimal “failure to take petitioners’ filing a days 30 calendar least before necessary” preserve their steps civil action. claims. added). no- Plaintiffs filed their (emphasis (quoting 110 S.Ct. 304 EEOC on with the tices of intent to sue Inc., 421 Express Agency, Ry. v. Johnson notice informed May 2001. Each 44 L.Ed.2d U.S. repre- would be plaintiff that each EEOC (1975)). Firm. On June by Bays Law sented sum, follow the lead In I would later, jointly filed days Plaintiffs nine plain text of apply Supreme Court federal com- them federal lawsuit. clear, statutory precedent for condition by Bays Law Firm was filed plaint in court and affirm bringing suit federal Inabinet, attorney Cary T. by signed judgment. court’s Bays Law Firm. associated justification Plaintiffs as- only have II. premature filing is serted for their Zipes allowed the Assuming arguendo in file they suit had waited 30 here, equitable principles consideration of court, they have vio- would federal in appellants have demonstrated requirement lated equitable relief. they are entitled least 633a(d). wrong under plainly This is Indeed, appellants if are entitled to these Treasury, 500 Department Stevens relief, I cannot conceive 1, 7, 111 114 L.Ed.2d plain- AUEA potential scenario which Op. (1991), majority explains. Maj. as the files suit federal court prematurely tiff jus- other provide no at 924-25. Plaintiffs relief. is not entitled mistake, and even tification their effect, majority’s holding these was not majority the “mistake concedes proceed should be allowed Maj. Op. at 931. excusable.” renders potentially 633a(d)’s 30-day waiting requirement a Su- guided I am Next the law. nullity. County holding Baldwin preme Court’s 147, Brown, Welcome Center there is no dis- the facts. Again, First (1984) 1723, (per 196 104 L.Ed.2d filed improperly their pute that curiam). There, the Court considered period be- waiting before the suit pro- complainant a Title VII could whether dispute in is also no gan. There failing file despite in ceed federal court 2001, the lawsuit February months before “within filed, hand deliv- an EEO was counselor (the right-to-sue of a days after the issuance a written plaintiff ered each Memoranda”) by 42 required 2000e- them letter” informing “Rights 5(f)(1). Furthermore, Id. 104 S.Ct. 1728. The case. the Court then ex- complainant filed with the pressly rejected the contention that equita- alleging discriminatory EEOC treatment tolling ble apply should nonetheless be- by a employer, former and the EEOC cause the defendant had not demonstrated a notice of right issued to sue. Id. at it prejudiced by the plaintiffs actions: The notice S.Ct. 1723. informed the Although prejudice absence of is a factor complainant that if she chose to file suit to be in determining considered whether federal court “such suit must be filed in the doctrine of tolling should appropriate United States District apply once a that might justify factor ninety days receipt within [the] such tolling identified, it is (internal this Notice.” quotation Id. independent invoking basis for the doc- omitted). not, complainant marks did trine and sanctioning deviations from es- however, a complaint file within 90 procedures. tablished notice, receipt despite her of the further Procedural requirements established instructions to do so. Id. The district by Congress for gaining access to the court ruled that right-to- federal courts are not to disregarded be sue letter did not commence the action vague sympathy courts out of a within meaning of Federal Rule of particular litigants. 148-49, Civil Procedure 8. Id. at Id. at (emphasis S.Ct. 1723 add- reversed, 1723. The Eleventh Circuit ed). “holding right-to-sue of a Relying County on Baldivin Welcome letter period provided by ‘tolls’ the time Center, prior we have on occasion recog- 149, 104 Title VII.” S.Ct. 1723. nized that “[diligence is required for the Court reversed the Elev- virtually any successful invocation of equi- doing, enth Circuit. In so the Court fo- table Rodriguez doctrine.” v. Airborne cused on the actions of complainant (9th Express, 265 F.3d 12n. Cir. fading to comply 90-day filing 2001). Bell, In Santa Maria v. Pacific requirement: (9th Cir.2000), F.3d 1178-79 we con- This is not a case which claimant sidered whether apply equitable tolling notice, has inadequate received or where an ADA plaintiffs untimely-filed excuse appointment motion for of counsel is explained: with the EEOC. We pending equity justify tolling would if, “Equitable tolling may applied de- statutory period until the motion is spite diligence, all due a plaintiff is unable upon, acted or where the court has led bearing to obtain vital information on the plaintiff to believe that she had done [Equitable existence of his claim. ... toll- everything required of her. Nor is this ing] focuses on whether there was excusa- a case where affirmative misconduct on delay by ble plaintiff.” Id at 1178 part plain- of a defendant lulled the added). (emphases Focusing plain- on the tiff into inaction. The simple fact is that actions, tiffs than prejudice rather on the plaintiff] [the was told three times what defendant, apply equi- to the we refused to claim, preserve she must do to her tolling. table Id. at 1178-79. she did not it. do One who to act fails diligently equitable prin- cannot invoke agree We all Plaintiffs’ mistake in this ciples to diligence. excuse that lack case is plaintiff inexcusable. Like the added) Center, County Baldwin Plain- (emphasis 104 S.Ct. 1723 Welcome (citations omitted). explicit Each of these obser- tiffs h'ere received instructions well applicable vations is to regarding this in advance of their suit the pro- days after only 9 their court. More in federal initiate suit to cess intent to sue. by coun of their represented notifying the EEOC were over, Plaintiffs See remedial they filed their suit. humanitarian and The at the time ADEA’s sel State, 105 F.3d Dep’t plaintiffs provide na v. do not would-be purposes Leor U.S. Cir.1997). (9th Baldwin As in statutory 550-51 clear ignore to the carte blanche Center, simply there is County Welcome laid bringing a federal suit requirements might in this case that present no factor 633a(d). in this result §in Even if the out need to hence, there is no tolling; justify “draconian,” the law is might appear case preju defendant whether the was consider clear. early filing. by plaintiffs’ diced Passenger Corp. Railroad National analysis, effec- majority inverts this The 101, 113, 122 S.Ct. Morgan, on Govern- tively the burden the placing (2002), Supreme L.Ed.2d tolling should why equitable prove ment to Zipes to recognized pursuant that Court despite the mistake excuse Plaintiffs’ “time for showing why make no fact that Plaintiffs as toll- equitable doctrines such subject to majority is excusable. their mistake emphasized estoppel,” yet the ing or Court “Here, showing or even there is no states: applied to be doctrines “are these filing of premature that the any suggestion “ ‘Procedural The reason? sparingly.” to the prejudicial Plaintiffs’ for by Congress established requirements suggestion no There is defendant.... are not courts access to gaining any any alleged at time the defendant vague out of a disregarded courts to be premature filing from prejudice ” at litigants.’ sympathy particular Maj. Op. at 930 complaint.” Plaintiffs’ 113-14, (quoting Baldwin 122 S.Ct. 2061 added). Notably from absent (emphasis Ctr., U.S. Welcome County any to majority’s discussion is citation 1723). apply these doc- When we on the authority placing the burden here, liberally, majority does trines it is prejudice to show when defendant carefully enacted disruption of we invite relief, and equitable seeking the plaintiff Plaintiffs, schemes. If these legislative not established he exer- plaintiff has retained coun- clear notice and with their diligence. cised their sel, equitable to relief for entitled are majority resorts to “remedial mistake, and if the defendant inexcusable of the ADEA” humanitarian purposes prejudice, bears the burden establish did not receive notice the fact defendants equitable tolling apply when will justify until after the 30 of the suit to adhere forgive plaintiffs failure tolling. Maj. imposition 633a(d)? humani- That the ADEA is at 931. Op. bearing legislation has piece tarian no * * * us. In Baldwin question presented on pitfalls by simply I avoid these would Center, County Welcome text of the statute. applying plain 90-day filing require- dealt with clearly explained what Congress has VII, analogous piece ment under Title in federal proceed must do to plaintiff legislation, and nonethe- of humanitarian failed to follow and Plaintiffs here act dili- who fails to “[o]ne less held By closed. statutory mandate. Case equitable principles cannot invoke gently “jurisdiction” unnecessarily delving into diligence.” excuse[a] lack doctrines, I am afraid failed 1723. Plaintiffs here many inadvertently created majority has diligence modicum of to exercise than it problems more has solved “out of a

vague sympathy particular litigants.”5 Ctr., County

Baldwin Welcome 466 U.S. at respectfully I S.Ct. 1723. dissent.

Diego MIGUEL-MIGUEL,

Petitioner-Appellant, GONZALES, Attorney

Alberto R.

General, Respondent-

Appellee.

No. 05-15900.

United States of Appeals,

Ninth Circuit.

Argued July Submitted 2007. Aug.

Filed 2007. "sympathy” Is the majority shown respond Plaintiffs’ counsel could not in mal- Plaintiffs, for Plaintiffs' claims indeed for practice damages. showing Plaintiffs' counsel? There is no

Case Details

Case Name: Forester v. Chertoff

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 29, 2007

Citation: 500 F.3d 920

Docket Number: 05-16517

Court Abbreviation: 9th Cir.