The opinion of the court was delivered by: GESELL
This action is brought by ten Foreign Service employees of the Department of State or the United States Information Agency who have been or will be subject to mandatory retirement at age 60, pursuant to Section 632 of the Foreign Service Act of 1946, as amended, 22 U.S.C. § 1002 (FSA). The eleventh plaintiff is an organization purporting to represent both former and present Foreign Service officers subject to this retirement provision. The named plaintiffs seek to maintain the suit as a class action.
On April 13, 1976, the named plaintiffs filed a motion under Fed. R. Civ. P. 23(c)(1) for class action certification seeking to represent the following persons:
All Foreign Service Officers and Foreign Service Information Officers, age 40 or older, who have been, or are now employed by the defendant Department of State or the defendant United States Information Agency, and who in the past six years have been subjected to, or are subject in the future to, mandatory retirement at age 60, pursuant to the rules, policies and practices of the defendant agencies or pursuant to Sec. 632 of the Foreign Service Act of 1946, as amended, 22 U.S.C. 1002.
Plaintiffs seek certification of their case as a "(b)(2)" class action.
This putative class consists of two categories of plaintiffs: present employees and past employees who have already been mandatorily retired under FSA since 1974. As to the latter, the Court concludes that the group cannot be included in a class action here. The relief requested for these people consists of reinstatement and back pay pursuant to 29 U.S.C. § 633a(b). However, none of the named plaintiffs who purported to represent these individuals have complied with the statutory requirement that notice of intent to bring such a suit must be given to the Civil Service Commission within 180 days after the alleged unlawful practice, 29 U.S.C. § 633a(d). Since the jurisdictional prerequisite has not been satisfied by any of the named plaintiffs, there is no representative of this group properly before the Court.
Moreover, since reinstatement is sought, the interests of such people may well conflict with those of present employees who are also defined as part of the class. Cf., e.g., Freeman v. Motor Convoy, Inc., 409 F. Supp. 1100, 1113 (N.D. Ga. 1976). Accordingly, past employees who have already been retired are not within a proper class.
As to the category of present employees, who seek declaratory and injunctive relief rather than the remedies created by the ADEA, certain of these individuals are sufficiently threatened with imminent mandatory retirement to entitle them to prosecute this suit. The only question, therefore, is whether they can maintain the case as a class action. Defendants, citing section 7(b) of the ADEA, 29 U.S.C. § 626(b), and section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b), argue that a class action can never be brought for age discrimination in Federal Government employment. In support of this contention they rely primarily on LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir. 1975), which held that Rule 23 class actions are inappropriate in age discrimination suits against private employers. See also Schmidt v. Fuller Brush Co., 527 F.2d 532 (8th Cir. 1975). Plaintiffs correctly point out in response that there are significant differences between the governmental and private situations. In particular, the statutory section applicable to the Government, unlike that pertaining to private parties, does not provide that it is to be enforced under the Fair Labor Standards Act. Rather, it expressly provides that enforcement shall be by the Civil Service Commission, 29 U.S.C. § 633a(b), and that aggrieved persons may under appropriate circumstances file civil actions in Federal District Court, 29 U.S.C. § 633a(c, d). The Court need not resolve this issue, however, since it finds in any event that the record at this time does not support the certification of the class under Fed. R. Civ. P. 23. First, it is unclear whether plaintiffs have satisfied the basic requirement of numerosity and impracticability of joinder. Defendants dispute plaintiffs' estimate of the number of people involved, and the present record, without some discovery by plaintiffs, does not sufficiently inform the Court of the facts. This conclusion is also reinforced by the above determination that only present employees may be members of the class, which reduces even further the probative value of plaintiffs' preliminary appraisals. Moreover, as will be more fully discussed below, the mandatory age provision is part and parcel of a larger retirement system. Some employees may not object to being retired at age 60 in order to enjoy the benefits afforded by this system, and the interests of such people may well be jeopardized if plaintiffs prevail. Therefore, it cannot be said that there are common interests between the named plaintiffs and the members of the asserted class. Finally, even in the absence of a class, appropriate equitable relief can be fashioned, if warranted, which will as a practical matter protect those people plaintiffs seek to represent, and therefore it is unnecessary and inadvisable to encumber this suit with the burdens of a class action, see, e.g., Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 163-64 (D.D.C. 1976). The Court thus concludes that class certification is inappropriate, at least at this time.
Accordingly, a class action cannot be maintained on the question of statutory interpretation that is now presented. Of course, this is without prejudice to a renewed motion at a later time or on the other issues in this case if they are to be litigated. And since the matter of a class action is of little practical consequence to the resolution of the substantive statutory issue or the granting of prospective declaratory or injunctive relief, the Court will proceed to consider the merits of plaintiffs' claim.
Section 632 of FSA (22 U.S.C. § 1002) provides:
Any participant in the Foreign Service Retirement and Disability System, other than one occupying a position as chief of mission or any other position to which he has been appointed by the President, by and with the advice and consent of the Senate, who is not a career ambassador or a career minister shall, upon reaching the age of sixty, be retired from the Service and receive retirement benefits in accordance with the provisions of section 1076 of this title, but whenever the Secretary shall determine it to be in the public interest, he may extend such participant's service for a period not to exceed five years.
Section 15 of ADEA (29 U.S.C. § 633a) provides:
(a) All personnel actions affecting employees. . . in military departments as defined in section 102 of title 5, United States Code, in executive agencies as defined in section 105 of title 5, United States Code (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units in the government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal ...