Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Breen v. Peters

January 7, 2008

KATHLEEN A. BREEN ET AL., PLAINTIFFS,
v.
MARY E. PETERS ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs in this putative class action against a federal employer brought under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a, have moved to join twenty individuals as plaintiffs. In the alternative, the twenty individuals have moved to intervene. In addition, one plaintiff who was dismissed at his own request, Steven C. Syzmanski, has moved to be reinstated. Defendants oppose all three motions. Because the twenty individuals defaulted on a statutory deadline and have not shown cause to excuse the default, the motions to join or intervene will be denied. Because Syzmanski's claim is time-barred under either of the limitations period advocated by the parties, his motion for reinstatement as plaintiff will be denied.

BACKGROUND

On February 1, 2005, the defendants announced a reduction in force to take effect on October 3, 2005 that terminated plaintiffs' federal employment. Plaintiffs elected to bypass the administrative complaint process and filed this action in March 2005 after giving the required 30-days notice of intent to sue required by 29 U.S.C. § 633a(d).

The first amended complaint proposed an "834-person class of the above named Flight Service Air Traffic control Specialists" (First Am. Compl. ("FAC") ¶ 1), and noted that other members of the class might be added. (Id. ¶ 19.) The class was further defined by an exhibit listing the individuals by name. (Id. Ex. 1.) After the first amended complaint was filed, the membership in the putative class changed, with some members being added and others being dismissed. The class has continued to be defined by names of individual class members. The twenty individuals who are the subject of the motions to join or intervene have never before been part of the putative class.

Movant Syzmanski was one of the originally identified class members listed by name on Exhibit 1 to the first amended complaint. He moved to withdraw as plaintiff, a motion that was granted in March 2006. On May 8, 2007, Syzmanski filed a motion for reinstatement.

DISCUSSION

I. MOTION TO JOIN OR INTERVENE

Defendants oppose the motions for joinder or intervention on the ground that movants did not meet the statutory filing deadline for bringing an ADEA claim.*fn1 Movants concede that they did not meet the statutory filing deadline. They argue, nonetheless, that because several hundred of the original plaintiffs did meet the statutory filing deadline, movants should be allowed to join or intervene in the action now.

The ADEA permits a federal employee to bypass the administrative complaint process and instead ---- subject to a deadline ---- simply file a notice of intent to file a civil action in district court. 29 U.S.C. § 633a(d); Forester v. Chertoff, 500 F.3d 920, 924 (9th Cir. 2007). The text of the bypass provision is unambiguous and very clearly states the filing deadline:

When the individual has not filed a complaint concerning age discrimination with the [Equal Employment Opportunity] 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.

29 U.S.C. § 633a(d) (emphasis added).

The non-jurisdictional 180-day filing deadline stated in 29 U.S.C. § 633a(d) is subject to equitable tolling in the proper circumstances. Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003) (reiterating that "the timeliness and exhaustion requirements of [the ADEA's] § 633a(d) are subject to equitable defenses"). It is no bar to the application of equitable tolling principles that the adversary is a sovereign. "[E]quitable tolling principles apply against the government on a par with private parties."

Bull S.A. v. Comer, 55 F.3d 678, 681 (D.C. Cir. 1995) (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990)). Nonetheless, when the suit is against the federal government, as is this one, a statutory limitations period "is a condition to the waiver of sovereign immunity and thus must be strictly construed." Irwin, 498 U.S. at 94; see also Felter v. Norton, 412 F. Supp. 2d 118, 123 & n.1 (D.D.C. 2006). Accordingly, a court should use its equitable power to toll a statutory deadline ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.