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LACKHOUSE v. BRADY

July 18, 1990

RAYMOND G. LACKHOUSE, Plaintiff,
v.
NICHOLAS F. BRADY, Defendant


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Fifty-six-year-old Raymond G. Lackhouse ("Lackhouse") has sued Treasury Secretary Nicholas F. Brady ("Brady"), charging that the Internal Revenue Service ("IRS") violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 ("ADEA") *fn1" by repeatedly failing to hire Lackhouse as a revenue officer despite his being qualified for the position. Lackhouse's Amended Complaint (the "Complaint") seeks an injunction directing Brady to appoint him to the position of revenue officer, backpay, liquidated damages and attorney's fees and costs. Brady has filed a Fed.R.Civ.P. ("Rule") 12(b)(1) motion to dismiss this action for lack of subject matter jurisdiction and for Lackhouse's failure to exhaust administrative remedies. For the reasons set out in this memorandum opinion and order, Brady's motion is granted on the second of those grounds.

 FACTS2

 In October 1987, May 1988 and October 1988 IRS was hiring individuals to fill the position of revenue officer (a GS-7 position) in the Los Angeles, California area. At each of those times Lackhouse was unsuccessful in applying for the revenue officer position despite the fact that he was fully qualified. Instead, on each occasion younger applicants with no superior qualifications were appointed to the positions.

 Immediately after IRS told Lackhouse on October 31, 1988 that he was not among the applicants then being appointed as a revenue officer, he sought counseling from an IRS Equal Employment Opportunity counselor ("EEO counselor"). That counseling bore no fruit, and on December 19, 1988 the EEO counselor issued Lackhouse a notice of final interview.

 Two weeks later (on January 3, 1989) Lackhouse filed a formal complaint with IRS. On February 3, 1989 IRS accepted that complaint for investigation on the following issue only (D.Mem.Ex. 5):

 
Whether [Lackhouse was] not selected on or about October 25, 1988 . . . for appointment to a revenue officer . . . position in the Los Angeles District because of [his] age [54] and in reprisal for [his] previous filing of a MSPB appeal which contained an allegation of discrimination.

 Another letter of the same date told Lackhouse that his allegations regarding his status as a veteran and his claims under the Civil Service Reform Act were being rejected as outside the scope of the EEO regulations and advised him that he had the right either (1) to file a civil action as to those rejected claims within 30 days or (2) to appeal to the Equal Employment Opportunity Commission ("EEOC") within 20 days. *fn3"

 Jurisdiction

 In its effort to demonstrate the claimed jurisdictional defect in Lackhouse's Complaint, IRS invokes the square holding in Kontos v. United States Department of Labor, 826 F.2d 573, 576 (7th Cir. 1987) that ADEA's time limits and filing requirements are jurisdictional in suits against the government and that the burden of establishing such jurisdiction is on the plaintiff. But Rennie v. Garrett, 896 F.2d 1057, 1061-62 (7th Cir. 1990) and McGinty v. United States Department of the Army, 900 F.2d 1114, 1118 (7th Cir. 1990) cast serious doubt on the continuing validity of Kontos. This opinion will first identify the nature and source of that doubt -- then will explain why the doubt need not be settled here.

 Rennie explicitly overruled Sims v. Heckler, 725 F.2d 1143 (7th Cir. 1984), upon which Kontos had rested, and held that administrative requirements in Title VII suits against the federal government should be treated just as they are in suits against private employers -- as statutes of limitations subject to equitable principles such as waiver, estoppel or tolling and not as jurisdictional prerequisites. Rennie quite properly did not in terms extend its holding to the similar administrative requirements in the virtually parallel ADEA (a question not then before the court). But Rennie's emphasis on subordinating sovereign immunity concerns to the goals of Title VII -- goals of ending government-fostered discrimination that are shared by ADEA -- at least suggest the extension of its holding to the treatment of ADEA's administrative requirements as well. *fn4"

 Nonetheless, on the very heels of Rennie our Court of Appeals has negated any automatic application of that decision to ADEA's administrative requirements. McGinty, 900 F.2d at 1118 specifically reserved that question, noting that its resolution would not affect the outcome of that case, and in so doing cited back to Kontos in finding that the plaintiff in McGinty would lose if the administrative time ...


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