The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiffs Janet Howard and Joyce Megginson brought this action against Gary Locke, Secretary of the United States Department of Commerce ("Department").*fn1 This Court previously dismissed one count of plaintiffs' complaint; the sole surviving count alleges a disparate impact claim of racial discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Now, nearly seven years after the commencement of this litigation, the Department seeks to dismiss the remaining count for lack of subject matter jurisdiction. For the reasons explained herein, the Court must grant the Department's motion.
This case has a lengthy history, which the Court recounted more fully in a prior opinion. See Howard v. Gutierrez, 571 F. Supp. 2d 145 (D.D.C. 2008). In brief, Janet Howard, an African American female, was employed at the Department from 1983 to 2008. Joyce Megginson, also an African American female, has been employed by the Department since 1971. Both filed a number of formal administrative complaints with the Department. Plaintiffs (along with a third plaintiff, Tanya Ward Jordan, who has since settled with defendant) filed their original complaint with this Court on October 5, 2005, and their First Amended Complaint on June 13, 2006. The First Amended Complaint asserted employment discrimination claims on behalf of plaintiffs individually and on behalf of a putative class of African American, non-supervisory Department employees; it also asserted a disability discrimination claim under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., on Jordan's behalf. The Court granted the Department's motion to strike the class claims, denied the Department's motion to dismiss plaintiffs' individual claims, and granted plaintiffs leave to file a Second Amended Complaint. See Howard v. Gutierrez, 474 F. Supp. 2d 41 (D.D.C. 2007). After the Court denied plaintiffs' motion for reconsideration regarding class certification, plaintiffs filed their Second Amended Complaint. On August 18, 2008, the Court granted the Department's motion to dismiss Count Two of the complaint under the Rehabilitation Act, but allowed Count One under Title VII to proceed. See Howard, 571 F. Supp. 2d at 163.
As it stands, plaintiffs' central claim is that the Department has violated Title VII by using overly subjective performance-appraisal criteria that result in a disparate impact on African American employees with respect to promotions and promotion-related opportunities. Sec. Am. Compl. [Docket Entry 70] ¶¶ 1-4, 6, 217-27; see also Howard, 571 F. Supp. 2d at 150.
"The objection that a federal court lacks subject-matter jurisdiction may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006) (citation omitted); see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." (emphasis added)). Accordingly, despite the long pendency of this litigation, the Court must consider the Department's argument and dismiss the action if jurisdiction is lacking.
"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). Therefore, the factual allegations must be presumed true, and plaintiffs must be given every favorable inference that may be drawn from the allegations of fact. See Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the Court need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
1. Subject Matter Jurisdiction
28 U.S.C. § 2401(a) is "a general catchall statute," Felter v. Norton, 412 F. Supp. 2d 118, 124 (D.D.C. 2006), that sets a six-year limitation period on non-tort civil claims against the United States. The Department contends that § 2401(a) creates a jurisdictional bar, that this action violates its six-year limitation, and that the Court must hence dismiss the action. See Fed. R. Civ. P. 12(h)(3). Plaintiffs*fn2 respond that § 2401(a) does not apply to Title VII actions. Alternatively, they argue that even if § 2401(a) does apply, it remains subject to equitable tolling and hence permits this action.
A critical threshold question is whether § 2401(a) is, indeed, jurisdictional. Statutes of limitations generally fall into two broad categories: affirmative defenses that can be waived and "jurisdictional" statutes that are not subject to waiver or equitable tolling. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34 (2008). Statutes of limitations in suits against the United States have had a checkered history in the Supreme Court. For many years, they were placed in the latter, jurisdictional category. See Soriano v. United States, 352 U.S. 270, 276 (1957); Finn v. United States, 123 U.S. 227, 232-33 (1887). The Supreme Court then departed from that approach in a series of cases culminating in Irwin v. Department of Veterans Affairs, which held that the "same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." 498 U.S. 89, 95-96 (1990). Most recently, the Supreme Court indicated that at least some of the historical presumption survives Irwin: in John R. Sand, 552 U.S. 130, it held that § 2401's companion statute, 28 U.S.C. § 2501, which creates a six-year statute of limitations for claims against the United States brought before the Court of Federal Claims, is jurisdictional. If this Court were considering § 2401(a)'s jurisdictional status on a blank slate, these developments would raise challenging questions. See id. at 145-46 (2008) (Ginsburg, J., dissenting) (noting that circuits are split about the jurisdictional status of the "materially identical" § 2401(a) and arguing that "[t]oday's decision hardly assists lower courts endeavoring to answer this question" because its reasoning points in conflicting directions). But the task at hand is much easier, as binding authority in this circuit answers the question.
In 1987, the D.C. Circuit held that, "[u]nlike an ordinary statute of limitations, § 2401(a) is a jurisdictional condition attached to the government's waiver of sovereign immunity." Spannaus v. U.S. Dep't of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987). And the circuit only recently reaffirmed that, at least for the time being, Spannus remains binding, explaining that "[t]he court has long held that section 2401(a) creates 'a jurisdictional condition attached to the government's waiver of sovereign immunity.' On appeal, neither [party] has challenged this circuit's precedent; therefore, we need not question our prior authority." P & V Enters. v. U.S. Army Corps of Eng'rs, 516 F.3d 1021, 1026-27 (D.C. Cir. 2008) (quoting Spannaus, 824 F.2d at 55) (citations omitted). Examining these developments in some depth, this Court previously concluded that it "is compelled to hold that § 2401(a) is jurisdictional." W. Va. Highlands Conservancy v. Johnson, 540 F. Supp. 2d 125, 143 (D.D.C. 2008). The Court remains so compelled today.
The next question is whether § 2401(a) by its terms bars this action. The statute provides: "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a). A "cause of action against an administrative agency first accrues, within the meaning of § 2401(a), as soon as (but not before) the person challenging the agency action can institute and maintain a suit in court." Spannaus, 824 F.2d at 56 (internal quotation marks omitted); see also Felter v. ...