Appeal from the United States District Court for the District of New Jersey. D.C. Civil No. 76-2267.
Gibbons and Hunter, Circuit Judges and Weber,*fn* District Judge. Gibbons, Circuit Judge, concurring.
The Secretary of Labor filed a complaint seeking injunctive relief to restrain West Essex General Hospital and individual defendants from violating the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634. The district court dismissed the complaint on the grounds that the Secretary had failed to defer to the Division on Civil Rights of the New Jersey Department of Law and Public Safety. The Secretary appeals, and we reverse.
On March 29, 1976, an area director of the Wage and Hour Division of the United States Department of Labor wrote a letter to the Division on Civil Rights of the New Jersey Department of Law and Public Safety to advise it of suspected age discrimination by West Essex General Hospital against six former employees. The letter began by stating that the Secretary, under section 14(b) of the ADEA, 29 U.S.C. § 633(b), may not file suit under section 7(b) of the Act, id. § 626(b), before expiration of sixty days after proceedings had been commenced under the state law prohibiting age discrimination, unless such proceedings had terminated earlier. It then gave "notice" to the New Jersey agency of facts uncovered during an investigation which, in the federal agency's view, constituted illegal age discrimination under federal and state law. The six employees' names, former positions in the hospital, and ages were listed, but no specific supporting facts were revealed. The letter then noted the power of certain New Jersey officials to institute suit under the state age discrimination law, N.J.S.A. § 10:5-13, but concluded, "We wish neither to encourage nor to discourage such action on the part of the State of New Jersey." The area director ended the letter by indicating the intent of the Secretary of Labor to file a suit after sixty days, unless state proceedings had earlier terminated.
On March 31, 1976, the state Division on Civil Rights replied that since the six individuals listed in the letter had not filed state charges, the "complaints" would not be processed. The agency instead indicated that it would "defer this matter back" to the federal agency for action.*fn1
On November 29 the Secretary of Labor filed suit in the District Court for the District of New Jersey. The complaint sought to enjoin defendants from violating the provisions of section 4(a) of the ADEA, 29 U.S.C. § 623(a), and of section 15 of the Fair Labor Standards Act of 1938 [FLSA], id. § 215. The complaint also requested back pay and reinstatement of individuals who were allegedly discharged or forced to resign by defendants because of their age. Jurisdiction was based on section 17 of the FLSA, id. § 217.*fn2 The complaint alleged that the Secretary had unsuccessfully attempted to achieve voluntary compliance through conciliation, but did not mention the contact with the New Jersey agency.
Defendants moved to dismiss the suit for lack of subject matter jurisdiction, based on the Secretary's failure to commence proceedings under the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1 et seq.
After accepting affidavits from the parties, the district court granted defendant's motion to dismiss the action. The judge ruled that section 14(b) of the ADEA, 29 U.S.C. § 633(b),*fn3 as interpreted by this court in Goger v. H. K. Porter Co., 492 F.2d 13 (3d Cir. 1974), requires as a jurisdictional prerequisite to a federal civil suit that state proceedings first be commenced when a state agency is authorized to enforce state age discrimination laws. Although letters had been exchanged by the federal and state agencies, the judge decided that no proceedings had been "commenced" in the meaning of the statute. He described the exchange as "no more than a pretense, a subterfuge, to circumvent the Congressional intent."*fn4
On appeal the Secretary presents two arguments. First, he urges that the requirement in section 14(b), as interpreted by Goger, be applied only to suits by employees under the ADEA and not to suits by the Secretary for injunctive relief. Second, he contends that even if the federal agency must defer to state procedures, the exchange of letters in this case met such a requirement.
Section 14 of the ADEA, 29 U.S.C. § 633, quoted at note 3 supra, sets forth the Congressional plan to reconcile the interests of the federal government and of the states in providing relief from age discrimination in employment. Section 14(b) of the Act provides, in part:
In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section  of this title before the expiration of sixty days after proceedings have ...