The opinion of the court was delivered by: RICHEY
This case is before the Court on two motions by plaintiff and one by defendants. Plaintiff, Donald R. Moysey, a sixty-seven year old former Department of Interior employee, challenges certain Departmental practices as violative of section 15(a) of the Age Discrimination in Employment Act of 1967, 29 U.S.C.A. § 633a(a) (West Supp.1979). He seeks not only to enjoin these practices, but also to receive retroactive relief. Mr. Moysey has moved for class certification and partial summary judgment. Defendants, the Secretary of the Department of Interior and the Director of the Office of Personnel Management ("OPM") (formerly the Civil Service Commission)
have cross-moved for summary judgment. The Court is persuaded that class certification is appropriate and, accordingly, it shall grant plaintiff's motion. The Court also finds that the certified class has been victimized by improper discrimination on the basis of age. Thus, it shall also grant plaintiff's motion for partial summary judgment.
On December 31, 1976, Donald R. Moysey, at age sixty-three, retired from his position as a Program Audit Manager with the Department of Interior. His retirement resulted from a physical disability produced by a heart condition. Upon leaving the Department, he commenced receiving an annuity from the Civil Service Retirement and Disability Fund ("the Fund"). See 5 U.S.C. §§ 8331(5) & 8348 (1976). Less than a year after his departure, Mr. Moysey's physical condition improved due to the installation of a new pacemaker. On December 2, 1975, he applied for a new position with the Department of Interior and he was eventually selected on an open competitive basis for the job of Territorial and Financial Audit Officer. His appointment became effective on January 21, 1976. As a reemployed disability annuitant over age sixty, Mr. Moysey continued to receive his annuity in the form of a deduction from his salary. He did not contribute to the Fund during the period of reemployment. In December, 1976, Mr. Moysey was informed that he had been classified as a temporary employee, terminable at the will of the appointing authority; five months later, after learning that he was scheduled to be terminated on April 8, 1977, he left the Department.
Had Mr. Moysey been younger, he would have received different treatment from the Department. Disability annuitants who recover and return to work before reaching age sixty do not receive their annuities in the form of a pay deduction nor do they serve as temporary employees, terminable at will. In other words, reemployed disability annuitants who are younger are treated in the same manner as other employees whose service with the government has not been interrupted by illness. Mr. Moysey claims that this distinction on the basis of age violates section 15(a) of the Age Discrimination in Employment Act of 1965 ("the ADEA"), 29 U.S.C.A. § 633a(a) (West Supp.1979), and as part of his challenge to this practice, he seeks to represent a class comprising all retired disability annuitants, age sixty or over, who have been, or desire to be, reemployed in permanent federal positions. Defendants submit that their practice is mandated by the interrelationship of 5 U.S.C. §§ 3323, 8337 & 8344 and that these statutes were not repealed by section 15(a) of the ADEA. They urge the Court to grant their motion for summary judgment.
II. CLASS CERTIFICATION IS APPROPRIATE
Plaintiff seeks to represent a class which would comprise:
(2) All retired disability annuitants who now wish or may in the future wish to be reemployed by the United States in other than temporary positions or positions terminable at the will of the appointing authority and who have been or may be rehabilitated from their disability after they reach age 60.
He submits that certification is appropriate under Federal Rules of Civil Procedure 23(b)(1)(B) and 23(b)(2). Either retroactive or prospective relief would be possible with the proposed class. Defendants contend that certification is improper for two reasons. First, defendants submit that class action suits against the federal government are not permitted under the ADEA; second, they argue that even if such suits are allowed, the circumstances here do not support certification. Because the Court is unpersuaded by either of these arguments, on this matter of apparent first impression,
it shall grant plaintiff's motion.
A. Class Certification is Permissible in ADEA Suits Against the Federal Government.
Discrimination on the basis of age is banned by two sections of the ADEA. Section 4(a)(1) of the Act, 29 U.S.C. § 623(a)(1), prohibits discrimination by private sector employers; and section 15(a) bars the same conduct by most branches of the federal government. Section 15(a) of the ADEA, as amended in 1978, provides:
(a) All personnel actions affecting employees or applicants for employment who are at least 40 years of age (except personnel actions with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5, in executive agencies as defined in section 105 of Title 5 (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 Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on age.
29 U.S.C.A. § 633a(a) (West Supp.1979).
Defendants submit that both of these provisions are controlled by the first sentence of section 7(b) of the Act, 29 U.S.C. § 626(b), which declares:
The provisions of this Act shall be enforced in accordance with the powers, remedies, and procedures provided in section 11(b), 16 (except for subsection (a) thereof), and 17 of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. § 211(b), 216, 217), and subsection (c) of this section.
ADEA, Pub.L.No. 90-202, § 7(b), 81 Stat. 604 (1967) (codified at 29 U.S.C. § 626(b) (1976)). Thus, defendants conclude that section 216 of title 29, United States Code, should apply to Mr. Moysey's claim. Because this statute provides that no employee may become a party-plaintiff "unless he gives his consent in writing to become such a party," it has been uniformly read as establishing an "opt-in" requirement which is mutually exclusive with the federal rules regarding class actions. See, e. g., LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir. 1975).
(f) Any personnel action of any department, agency, or other entity referred to in subsection (a) of this section shall not be subject to, or affected by, any provision of this Act (29 U.S.C.A. § 633a(a) (West Supp.1979)), other than the provisions of section 12(b) of this Act (29 U.S.C. § 631(b)) and the provisions of this section.
29 U.S.C.A. § 633a(f) (West Supp.1979). Plaintiff interprets this provision of the statute as excluding age discrimination suits against the federal government from all the restraints which limit class certification in actions against other employers. The Court is persuaded that this construction, rather than defendants', is consistent with the legislative design.
Defendants argue that the sections of the Act which separately ban age discrimination by private and federal employers are both controlled by the procedural requirements of section 7(b), 29 U.S.C. § 626(b). This approach has only a superficial appeal. First, at the time section 7(b) was enacted, the ADEA did not extend to the federal government; only with the enactment of the 1974 Amendments was the present sweep of the statute realized. Public Law No. 93-259, § 28(b)(2), 88 Stat. 74 (1974). Even before the addition of section 15(f), the application of the "opt-in" requirement to ...