desired the Secretary to have the same power under the ADEA as the Attorney General has under Title VII, it could have included an explicit authorization as it did for the Attorney General under Title VII.
Third, the Secretary challenges the interpretation of 29 U.S.C. § 633(b) given by the United States Court of Appeals for the Third Circuit in Goger v. H.K. Porter Company, 492 F.2d 13 (3d Cir. 1974) and in Rogers v. Exxon Research and Engineering Company, 550 F.2d 834 (3d Cir. 1977) that that section requires an individual to give a state agency a threshold period of 60 days to resolve the controversy before proceeding in federal court. This Court must follow the decisions of the Court of Appeals. The fact that the Secretary is disputing the interpretation of the Court of Appeals for the Third Circuit in other Courts of Appeals has no bearing upon this Court.
Fourth, the Secretary contends that the requirement that he first utilize state administrative remedies runs contrary to the intent of Congress to provide a speedy and effective federal remedy to age discrimination. According to the Secretary, the legislative history of the ADEA indicates an awareness that an elderly claimant would be particularly afflicted by the burdens of administrative tardiness characteristic of other statutes and that enforcement of the new statutes should be designed to minimize delay. Bertrand v. Orkin Exterminating Company, 419 F. Supp. 1123 (N.D. Ill. 1976). The Court's interpretation of 29 U.S.C. § 633(b) does not frustrate this Congressional intent. The Secretary would only be required to wait 60 days after he notifies the appropriate state authority of a violation in order to take direct action on his own. A 60-day delay to afford the state an opportunity to remedy the alleged wrong does not frustrate the Congressional purpose of providing a prompt and speedy remedy for age discrimination.
Fifth, the Secretary argues that Chamberlain's contention that 29 U.S.C. § 633(b) applies to a suit brought by the Secretary lacks consistency with the basic statutory scheme of the ADEA. Section 29 U.S.C. § 626 of the ADEA authorizes the Secretary to enforce the ADEA pursuant to the powers given to him in 29 U.S.C. §§ 211(b), 216, and 217. Section 626 also requires the Secretary before instituting any action under the ADEA to attempt to eliminate the discriminatory practices alleged by the Secretary and to effect voluntary compliance with the requirements of the ADEA through the informal methods of conciliation, conference and persuasion. According to the Secretary, all limitations on his authority pursuant to the ADEA are contained in § 626 and since limitations contained within § 633(b) are not referred to by § 626, they do not apply to the Secretary. The Court finds this approach of dubious validity. Section 633(b) is part of 29 U.S.C. § 633 which is captioned "Federal-State relationship." There are many reasons why Congress might have legitimately separated § 633(b) from § 626. Congress may have concluded that a separate section concerning federal-state relationships was in order.
Sixth, the Secretary maintains that Congress showed that it intended § 633(b) to govern actions filed pursuant to the ADEA by aggrieved individuals by extending the time period for notice to the Secretary of an age discrimination complaint where 633(b) applies. 29 U.S.C. § 626(d)(2). Because no mention is made of § 633(b) in § 626 concerning complaints filed by the Secretary, the Secretary concludes that § 633(b) does not apply to him. No reason existed for Congress to refer to § 633(b) in § 626 as concerning the Secretary. An individual seeking to file a complaint pursuant to the ADEA must give the Secretary 60 days notice of his intent to file the complaint. Congress extended the time to 300 days when § 633(b) applies. That is the reason why § 626 refers to § 633(b) as relating to an aggrieved individual.
Seventh, the Secretary contends that § 633(b) only governs actions filed by individuals because their right to sue is created by § 626, whereas the Secretary can enforce the ADEA by seeking an injunction pursuant to 29 U.S.C. § 217, the Fair Labor Standards Act, (FLSA). This argument fails, because § 626 grants the Secretary the power to use 29 U.S.C. § 217 to remedy age discrimination. In the absence of § 626 the Secretary would lack the ability to obtain an injunction against violations of the ADEA.
In the light of the foregoing, the Court will grant Chamberlain's motion to dismiss because the Secretary has not complied with 29 U.S.C. § 633(b). Therefore, this Court lacks subject-matter jurisdiction of this complaint. The Secretary has not asked for equitable consideration concerning the application of this provision in this case. Consequently, the Court need not decide whether § 633(b) is a jurisdictional requirement in the strict sense or a statutory prerequisite subject to equitable modification. If § 633(b) is the latter, the Court would construe Chamberlain's motion to be a motion to dismiss made pursuant to F.R.Civ.P. 12(b)(6), failure to state a claim upon which relief can be given, and would grant the motion.
The Secretary's brief in this case which was 22 pages long contained no index and table of citations of the cases, statutes, and other authorities to which it referred. Paragraph 3.9 of Order No. 2 of June 14, 1977 issued by the Court in this case requires that a brief, if more than five pages in length, should contain an index and table of citations of the cases, statutes, and other authorities referred to therein with references to the pages at which they are cited. The Court takes this opportunity to point out this paragraph because it has noticed an increasing tendency on the part of litigants to disregard this provision. Since the Court has granted Chamberlain's motion to dismiss because of lack of subject-matter jurisdiction, there is no need for the Court to decide Chamberlain's other contention that the Secretary has failed to comply with the conciliation requirement of 29 U.S.C. § 626.
An appropriate order will be entered.
MALCOLM MUIR / MUIR, U.S. District Judge
Chamberlain Manufacturing Corporation's motion to dismiss the complaint of the Secretary of Labor is granted.
MALCOLM MUIR / MUIR, U.S. District Judge
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