APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-505)
Before Weis and Garth, Circuit Judges, and Bechtle,*fn* District Judge.
An issue which has perplexed the courts since the passage of the Age Discrimination in Employment Act of 1967*fn1 is whether a litigant must resort to appropriate state administrative proceedings before commencing an action in federal court. In Goger v. H. K. Porter Co., 492 F.2d 13 (3d Cir. 1974), we held that section 14(b) of the Act*fn2 imposes this obligation on a private litigant. Subsequently in Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (3d Cir. 1978), this court sitting En banc overruled Goger, and held that neither an individual nor the Secretary of Labor is required to resort to state age discrimination remedies as a precondition to maintaining a federal suit for age discrimination.*fn3 The most recent chapter in this controversy has been written by the Supreme Court: in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979), it held that "§ 14(b) mandates that a grievant not bring suit in federal court under § 7(c) of the ADEA until he has first resorted to appropriate state administrative proceedings."*fn4
Today we are called upon to decide whether this holding should be extended to require The Secretary, when he brings suit under § 7(b) of the ADEA, to resort first to the age discrimination remedies provided by state law. Although we tread warily in light of the Supreme Court's rejection of our interpretation of § 14(b) as it pertains to a private right of action, we conclude nonetheless that different considerations are involved when it is the government, rather than a private individual, which has brought an action to enforce the Act. We therefore hold that § 14(b) imposes no obligation on the Secretary to defer to state administrative proceedings.
On June 13, 1977, the Secretary brought this action in the district court, alleging that the defendant, Chamberlain Manufacturing Corporation, was violating § 4 of the Age Discrimination in Employment Act (the "ADEA")*fn5 and § 15 of the Fair Labor Standards Act (the "FLSA"),*fn6 by discharging, demoting and otherwise discriminating against its employees between the ages of forty and sixty-five. The Secretary asked that these practices be enjoined, that the victims be reinstated, and that they receive backpay.
The defendant moved for summary judgment on two grounds, alleging (1) that the Secretary did not commence proceedings before the Pennsylvania Human Relations Commission (the "PHRC"), as section 14(b) requires; and (2) that the Secretary did not seek voluntary compliance through conciliation, as 29 U.S.C. § 626(b) requires.
The district court filed an opinion and order on November 16, 1977, in which it treated the defendant's motion as a motion to dismiss for lack of subject matter jurisdiction (See Fed.R.Civ.P. 12(b)(1)). Marshall v. Chamberlain Manufacturing Corp., 443 F. Supp. 159 (M.D.Pa.1977). Finding that it was "undisputed" that the Secretary had neither commenced proceedings before the PHRC nor even notified the PHRC that a complaint had been filed, the district court concluded that the Secretary had not complied with section 14(b). It viewed compliance with section 14(b) as a jurisdictional prerequisite for both government and private litigants,*fn7 and therefore entered an order dismissing the action,*fn8 without reaching the defendant's alternative argument that the Secretary had not complied with 29 U.S.C. § 626(d).
The Secretary has appealed from this order.
Section 14(b) of the ADEA provides in pertinent part:
(b) 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 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated . . .
29 U.S.C. § 633(b). In Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (3d Cir. 1978) (en banc), we held that this provision does not require "resort to state age discrimination remedies (as) a precondition to maintaining a federal suit for age discrimination."*fn9 In dictum, we also decided the question before us today: "A fortiori the Secretary of Labor need ...