# United Stat es Court of Appeals For the First C ircuit

No. 03-1860 PAUL L. ROSSITER, Plaintiff, Appellant,

v. JOHN E. POTTER, AS POSTMASTER GENERAL, AND UNITED STATES POSTAL SERVICE, Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge ]

Before Selya, Circuit Judge , Cyr, Senior Circuit Judge , and Lynch, Circuit Judge . RichardC. Bill er , with whom Goguen, McLaughlin, Richards & Mahaney, LLP was on brief, for appellant. Christopher R. Donato , Assistant United States Attorney, with whom Michael J. Sullivan , United States Attorney, was on brief, for appellee.

January 27, 2004-2- SELYA, Circuit Judge . This appeal i nvol ves a unique provision of the Age Discrimination in Emp loyment Act (ADEA), 29 U.S.C. §§ 621-634. A federal employee or a disappointed applicant for federal employment — we use the term "federal employee" throughout this opinion as a shorthand to cover both classes of persons — who wishes to pursue an ADEA claim has a right, not available to other ADEA claimants, to bypass the administrative process and go directly to a federal district court. See id. § 633a(c)-(d). The sole issue to be decided in this appeal concerns the limitations period that applies to such actions.

The only appellate court to have addressed this issue thus far chose to borrow the limitations periodused for Title VII actions. See Edwards v. Shalala , 64 F.3d 601, 606 (11th Cir. 1995) (citing 42 U.S.C. § 20000e-16(c)). Reluctant though we are to create a circuit split, we part company with the Edwards court and holdthat when a federal employee opts to bypass the administrative process and pursue an ADEA claim directly in the district court, the applicable limitations period should be borrowedfrom the Fair Labor Standards Act (FLSA), 29 U.S.C. § 255(a). That period, which

ex tends for at least two years from the date of the a llegedl y discri minato ryact or practice, is longer than either the 90-day limitations period contained in Title VII or the hybrid period fashionedby the lower court. See Rossiter v. Potter , 257 F. Supp.1 The district court, in a failed attempt to reconcile Edwards

with pertinent Supreme Court preced en t, devised a complicated algorithm. It concluded that "the statute of limitations under the ADEAfor federal employees such as Rossiter who go directly to fe deral court is the longer of (a) 120 days after fili ng notic e with the [Equal Employment Opportunity] Commission (the statutory thirty-day waiting period plus Title VII's ninety-day limitations period) or (b) one year and six days after the alleged discriminatory incident, pursuant to the Supreme Court's statement in Stevens [v. Dep't of Treasury , 500 U.S. 1 (1991)]." Rossiter , 257 F. Supp. 2d at 445. -3- 2d440, 445 (D. Mass. 2003). 1 Accordingly, we reverse the order dismissing the plaintiff's complaint as time-barred andremand for further proceedings. I. Background Since this appeal deals primarily with matters of timing,

a thumbnail sketch of the facts will suffice. We draw that sketch mindful that an appellate court reviews a dismissal for failure to state a claim de novo, applying the same legal standards that bind the trial court. Banco Santander v. López-Stubbe ( In re Colonial Mortgage Bankers Corp. ), 324 F. 3d 12, 15 (1st Cir. 2003). Consequently, we assume the truth of all well-pleaded facts containedin the complaint and indul ge a ll reasonable inferences therefrom to the plaintiff's behoof. Id.

In or around 2000, plaintiff-appellant Paul Rossiter sought employment with the United States Postal Service (USPS). After passing the USPS's preliminary screens (including a written examination and a drug test), Ro ssi ter was interviewed by Steve-4-

Froio, a USPS hierarch. Although Rossiter had 20 years of experience in the service industry, the USPS refrained from contactin g any of his references. This did not bode well for Rossiter's prospects, and in ear ly January he received a letter stating that he would not be hired.

Rossiter pursuedthe matter. On January 29, 2001, Froio toldhimthat he had been rejected because he seemed nervous during the interview. Froio added that "[i]f [Rossiter] were 20 years younger, being nervous would have been acceptable." When Rossiter suggestedthat he was being denied employment on account of his age, Froio replied: "It didn't help you any." Rossiter requested that his application be reconsidere d, but Froio told him that reconsiderati on was impracticable as no more positions were available. Less than ten days later , however, Rossiter received correspondence announcing that the USPS was still seeking to hire people in the job category for which he had unsuccessfully applied.

At age 46, Rossiter was a member of the class protected by the ADEA. See 29 U.S.C. § 633a(a). Convinced that he had been deniedemployment by reason of age discrimination, he contacted the Equal Employment Opportunity Commission (EEOC) in mid-February. Following an initial meeting, Rossiter s ubmitt ed an informal complaint. He later agreed to participate in mediation, which took place on May 21, 2001. Nothing was resolved.-5- On July 26, 2001, Rossiter filed a notice of intent to

sue with the EEOC. From that point forward, the matter lay fallow until November 28, 2002. Rossiter then filed a civil action in the Unit edStates District Court for the District of Massachusetts again st the Postmaster General and the USPS. In it, he a llege d violations of the ADEA and its state counterpart, Mass. Gen. Laws ch. 151B, § 4(1). The defendants (collectively, the government) moved to dismiss the action, arguing (i) that the state-law claimwas preempted by the ADEA, and (ii) that the ADEA claim was timebarred. Rossiter did not contest the preemption argument, and the district court dismissed the state-law cla im. Rossiter's ADEA claimproved to be a knottier problem. The district court took this aspect of the case under advisement and ultimately ruled, in

a written rescript, that the claim was time-barred. Rossiter , 257 F. Supp. 2d at 445. This appeal ensued. II. Discussion The path that we must travel has been well-marked. When Congress creates a cause of action but i s silent as to the limitations period that should apply to the right created — as is the case in 29 U.S.C. § 633a — the judicial task is to borrow the most appropriate rule of timeliness from some other source. DelCostello v. Int'l Bhd. of Teamsters , 462 U.S. 151, 158 (1983).-6-

After careful review of the evolution of the ADEA and its various enforcement schemes, w e conc lude that the FLSA provides the most analogous rule of timeliness for ADEA action s brou ght by federal employees who opt to bypass the administrative process. A. A Guide to the Statutory Scheme Everyjourney is best understood if it begins with a roadmap. Congress passed the ADEA with a view toward ending workplace di scrimi nation based on age. As originally enacted in 1967, the statute reached only private employers. See Pub. L. No. 90-202, § 11(b), 81 Stat. 602 (1967); see also Lehman v. Nakshian , 453 U.S. 156, 166 (1981). Seven years later, Congress elongated the ADEA's reach to include governmental employers (federal, state, andlocal). See Pub. L. No. 93-259, § 28, 88 Stat. 55 (1974); see also Nakshian , 453 U.S. at 166. To accomplish this augmentation, Congress broadened the ADEA's stock definition of "employer" to include state and local governments, thereby subject ing su ch employers to the e nfor cement mechanisms contained in the general statutoryscheme. See Pub. L. No. 93-259, § 28(a)(2), 88 Stat. 55 (1974); see also Nakshian , 453 U.S. at 166. Federal employers, however, were treated differently: they were added in an entirely

new and distinct statutory section — one that contained its own enforcement mechanisms. See Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, § 28(b), 88 Stat. 74, codified at 29-7-

U.S.C. § 633a; see also Nakshian , 453 U.S. at 166. This dichotomy persists. The general provisions of the ADEA (applicable to private employers and to state and local governments) originally embodied

an enforcement scheme that resembled the FLSA's. See Lavery v. Marsh , 918 F.2d 1022, 1024 (1st Cir. 1990). This included incorporation of the FLSA's statute of limitations. 29 U.S.C. § 626(e) (amended 1991) (incorporating by reference 29 U.S.C. § 255). The FLSA model set a limitations period of two years after the date of injury for general viol ati ons and three years for willful violations. See id. § 255(a).

In 1991, Congress removed the FLSA's incorporated statute of limitations from this portion of the ADEA and inserted a limitations scheme akin to that governing Title VII actions. See Civil Rights Act of 1991, Pub. L. No. 102-166, § 115, 105 Stat. 1071, 1079, codified as amended at 29 U.S.C. § 626(e). Under this reconstructedframework, there i s no external requirement that a federal civil action predicated on an ADEA v iolation be filed within a spe cifiedtime following the date of the discriminatory act or practice; rather, the applicable timing requirements relate to, and derive from, the administrative process. An employee must file an administrative complaint within 1 80 days of the alleged discrimination in order to preserve his or her claim. 29 U.S.C. § 626(d)(1). This filing vivifies the administrative proces s, a nd-8-

the date of injury h as no further bearing on the question of timeliness. The applicable limitations period begins to run at the end of the administrative process: from that point, the employee has 90 days within which to bring suit. Id. § 626(e).

The legislative scheme for ADEA claims brought by federal employees is materially different. Congress provided dual means of enforcement for federal workers and left the choice between them to the claimant. On the one hand, a federal employee may invoke the EEOC's administrative process and thereafter file suit if he or she is dissatisfied with the administrative outcome. See id. § 633a(b)-(c); see also Stevens v. Dep't of Treasury , 500 U.S. 1, 5 (1991). On the other hand, a feder al employ ee may bypass the administrative process altogether and file a civil action directly in the federal district court. See 29 U.S.C. § 633a(c)-(d); see also Stevens , 500 U.S. at 6. In that event, the only preconditions

are (i) th at "n o civil action may be commenced by any individual under this section until the individual has given the [EEOC] not less than thirty days' notice of an intent to file suc h act ion," and(ii) that "[s]uch notice shall be filed within one hundred and eightydays after the alleged unlawful practice occurred." 29 U.S.C. § 633a(d); see Stevens , 500 U.S. at 6-7 (reaffirming these preconditions).

The bottom line is that the hand-painted section of the A DEAlimning the rights of federal employees contains no e xpres s-9-

statut e of limitations. Indeed, that section says nothing about the outside date for the filing of suit (regardless of whether an employe e h as elected to undergo or to bypass the administrative process). Courts have been left to intuit the rules of timeliness applicable to such ADEA actions, and those rules must be borrowed froman exogenous source. See Stevens , 500 U.S. at 7. Devising an ap propri ate limitations period is rarely easy — and here, the duality of the means of enforcement exacerbates the difficulty of the task. B.

ADEA Bypass Actions: Why Title VII's Limitations

Period Does Not Fit The borrowing equation differs in each of the two configurations that Congress has provided. In cases in which a federal employee opts for the administra tive process, courts — includ ing this one — have most often agreed that the Title VII limitations period is the most analogous and, therefore, have electedto import it. See , e.g. , Burzynski v. Cohen , 264 F.3d 611, 619 (6th Cir. 2001); Jones v. Runyon , 32 F.3d 1454, 1456 (10th Cir. 1994); Long v. Frank , 22 F.3d 54, 56 (2d Cir. 1994); Lavery , 918 F.2dat 1027. But see Lubniewski v. Lehman , 891 F.2d 216, 221 (9th Cir. 1989) (applying six-year limitations period borrowed from 28 U.S.C. § 2401(a)). This importation makes good sense because when

a federal employee elects to enter the administrative process, the2 Laverydoes not assist in answering this question. Although

we held there that Title VII's statute of limitations should be appliedto ADEA actions against federal employers, the case involvedan employee who had electedto undergo the administrative process. See Lavery , 918 F.2d at 1022-23 ("We are asked to decide

. . . what period of limitations following a final agency decision applies to an action alleg ing age discrimination brought by a federal employee pursuant to the [ADEA].") (emphasis supplied). In all events, the Supreme Court decided Stevens after Lavery , and the rationa le of Stevens precludes us from applying Lavery to bypass cases. See text infra . By like token, Stevens effectively abrogatedour earlier decision in Castro v. United States , 775 F.2d 399, 403 (1st Cir. 1985) (per curiam), insofar as that decision pertains to the interpretation of the ADEA's temporal requirements. See Stevens , 500 U.S. at 7. -10- ADEA and Title VII enforcement schemes are homologous. Moreover, in such a situation th e fede ral employee is pursuing essentially the same route that Congress has prescribed for non-federal employees, and, thus, there is every reason to borrow a compatible rule of timeliness.

This relatively straightforward answer does not resolve the materially different question of where to derive an appropriate rule of timeliness when a federal employee elects to bypass the administrative process and file an ADEA suit directl y i n the district court. 2 In that situation, Stevens forecloses the importation of Title VII's limitations period. We explain briefly.

In Stevens , the Supreme Court observed that the statutory provision authorizing the bypass option, 29 U.S.C. § 633a(d), "calls for a notice of not les s th an 30 days to the [EEOC] of an intent to sue," and "that the notice shall be filed with the [EEOC] within 180 days of the alleged unlawful practice." 500 U.S. at 6.-11-

Finding these two requirements satisfied, the Court asked whether there were any other bases upon which the suit couldbe considered time-barred. Id. at 7. N ot ing that the "statute does not expressly impose anyadditional limitations period for a complaint of age discrimination," the Justices concl uded that Congress intendedthat an appropriate limitations period shouldbe borrowed fromstate or federal law. Id. Although poised to decide which rule of timeliness should be borrowedfor use in connection with 29 U.S.C. § 633a(c)-(d), the Court re frai ned from making that decision. It explained th at there was no need to decide the question because Stevens had filed his suit one year and six days after the allegedly discriminatory event — an interval that was "well wi thin whatever statute of limitations might apply to the action." Id. at 8 (quoting respondents' brief).

We think that this decision can only be read as a definitive rejection of the importation of Title VII's limitations period into the framework established by 29 U.S.C. § 633a(c)-(d). We base this conclusion on two principal lines of reasonin g . First, the entire focus of the Stevens Court's inquiry was on the date of th e alle ged discrimination as the accrual date for limitations purp ose s. Under Title VII, the relevant date would have borne some relation to final agency action, or at least to the expiration of the 30-day notice period.-12- Second— and perhaps more important — if Title VII's temporal requirements were to be applied to bypass actions, Stevens's claim would have been time-barred. Stevens served a notice of intent to sue on October 19, 1987, and filed suit on May 3, 1988. Stevens , 500 U.S. at 4. Were Title VII to be the source of the borrowing, a federal employee who elected to bypass the administrative process would have no more than 120 days from the filing of his notice within which to commence a civil action. See Edwards , 64 F.3d at 605-06 (finding that Title V II's l imitations period would begin to run no later than the expiration of the 30- daywaiting period following the filing of a notice of intent to sue); Rossiter , 257 F. Supp. 2d at 445 (same). Since Stevens startedsuit more than 120 days after he filed his notice of intent to sue, the Supreme Court could not have found his suit timely unless it reject ed t he proposed incorporation of Title VII's limitations period into the ADEA's bypass scheme.

To be sure, the government resists this conclusion. It suggests that the Court's comment — that Stevens's suit had been brought "well within whatever statute of limitations might apply," 500 U.S. at 8 — was mere dictum and that, in all events, the point was never fully litigated. We reject these importunings.

First and foremost, when a s tatement in a judicial decision is essential to the result reached in the case, it becomes part of the court's holding. See Seminole Tribe v. Florid a , 51 73 We haste n to a dd that even if one were to categorize the

Court's statement as dictum — a p ropo sition to which we do not subscribe — that categorization would not shift our view. See McC oy v. MIT , 950 F.2d 13, 19 (1st Cir. 1991) (concluding tha t "fe deral appellate courts are bound by the Supreme Court ' s considereddicta almost as firm ly as by the Court's outright holdings, particularly when . . . a dictum is of recent vintage and not enfeebled by any subsequent statement").

4 In point of fact, the government's only ground of opposition in Stevens was that the Court should not hear the case, and, thus, the Court's choice to decide the merits is telling. -13- U.S. 44, 66-67 (1996) (defining as binding both the court's result and"those portions of the opinion necessary to that result"). Consequently, the Stevens Court's statement was not dictum. 3

We a lso dismiss the government's attempt to sidest e p Stevens on the basis that the statute of limitations issue was

never fully litigated. That asseveration depe nds on the premise that the Court's statement that Stevens's su it had been brought "well wit hin whatever statute of limitations might apply to the action," 500 U.S. at 8, was merely a recitation of the government's concession. That premise is fault y. Al though the government acceptedStevens's position on the question, the Supreme Court did not stop there but chose to decide the issue, reco gnizi ng that a final determination was essential to the outcome of the litigation. 4 See 500 U.S. at 7-8. In other words, the Supreme Court resolved that the limitations issue was properly before it — andwe decline to second-guess the legal effect of that resolution.-14- If more were needed — and we doubt that it is — sound policy considerations support the result reached by the Stevens Court. Title VII's limitations period is entirely derivative of, anddictated by, the administrative process. The limitations periodbegins to run upon final agency action. The bypass procedure, however, is a horse of a vastly different hue . S ee Burnett v. Grattan , 468 U.S. 42, 50-51 (1984) (discussing how going through an administrative process differs from filing a claim directlyin court and noting, inter alia, that borrowing an administrative statute of limitations for use in the latter situation ignores the congre ssio nal determination that the claim belongs in court). Because bypass actions involve no final agency action, it would be anomalous to impress them with a Title VII-like rule of timeliness.

The govern ment attempts to parry this thrust by noting that the EEOC must receive notice of a federal employee's intent to sue in a bypass case. That is indisputably true, see 29 U.S.C. § 633a(d), but it is beside the point. This notice is a one-time event that bears no real res emblan ce to the processing and resolution of an administrative complaint. In a traditional ADEA case, the administrative process, once begun, takes cent er s tage until an administrative outcome is reached. By that time, the case is likely to be fully developed. Pe rmit ting a short window of opportunitywithin which to file suit makes sense when that window-15-

follows a final agency determination. In that context, the short window of time is actually more like a right to appeal than a statute of limitations — and rights of appeal often have a severely limitedshelf life. See , e.g. , 28 U.S.C. § 2107(a) (delineating a 30-dayappeal period); Sup. Ct. R. 13 (requiring petitions for certiorari to be filed within 90 days after judgment); Fed. R. Bankr. P. 8002 (requiring generally that a notice of appeal be filedwithin ten days of a bankruptcy court order). Moreover, the administrative process is often lengthy and, thus, starting the limita tions period from the date of injury would run the risk of allowing the expiration of the time for suit despite best efforts on the employee's part.

These justific atio ns are utterly absent in ADEA bypass

cases. There is no required agency action and no persuasive rationale for linking a rule of timeliness to the ti me of agency notification. Viewed holi stic ally, bypass cases are more like traditional civil suits, in which limitations periods begin to run at the time of the injury. We think it is hardly coincidental that this is the precise locus on which the Stevens Court focused.

E dwards does not persuade us to the opposite v iew . There, a panel of the Eleventh Circuit ruled that the applicable limitations period for ADEA actions brought pursuant to section 633a(c)-(d) should be importedfromTitle VII. Edwards , 64 F.3d at 606. Although the panel paid lip service to Stevens , it n owher e5 Without exc ept ion, the cases cited by the Edwards court in

support of importing Tit le V II's limitations period into the framework of section 633a(c)-(d) are inapp osite. All of them involve federal employees who opted to undergo the administrative process. See , e.g. , Jones , 32 F.3d at 1455; Long , 22 F.3d at 55- 56; Lavery , 918 F.2d at 1023. As we explained above, th e limitations period applicable to "administrative process" cases simply cannot be transplanted blindly into the bypass scheme. -16- explainedhow the result that it reached was permissible under Stevens . Because we do not see any principled way to squ are Edwards with Stevens , we regard the Edwards decision as fundamentally flawed and respectfully decline to follow it. 5 C. ADEA Bypass Actions: What Limitations Period Should Apply Having determined that Title VII does not furnish the applicable rule of timeliness for ADEA bypass actions, we are left with the question of what limitations period should apply. The inquiry that we must und ertake requires us to determine, first, whether a federal or state rule of timeliness should be imported. See Agency Holding Corp. v. Malley-Duff & Assocs., Inc. , 483 U.S. 143, 147 (1987). Given both the longstanding practice of borrowing state periods of limitations when federal rights-creating statutes contain no built -in timeliness rules and Congress's awareness of that practice, courts ought generally to assume that Congress intends by its silence that state law be borrowed. Id. But this is a default rule — a " fallback rule of thumb," DelCostello , 462 U.S. at 158 n.12 — not a hard-and-fast mandate. See Communications-17-

Workers of Am. v. Western Elec. Co. , 860 F.2d 1137, 1139 (1st Cir.1988) (explaining that "the glance in the direction of the statelaw cupboard should not be an automatic or reflexive one"). That default rule must give way "when a rule from elsewhere in federal law clearly provides a closer analogy than avail able state statutes, and when the federal policies at stake and the prac tica lities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking." Del Costello , 462 U.S. at 172; accord Agency Holding Corp. , 483 U.S. at 147-48. This is such a case.

The closest analogy to an ADEA bypass action logically is to be found in anti-discrimination or employment legislation. Although there are a myriad of federal statutes that fall under those rubrics, most of them require exhaustion of an administrative process as a precondition to court action. See , e.g. , 42 U.S.C. § 2000e-5(e)(1) & ( f)( 1) (Title VII); id. § 12117 (Americans with Disabilities Act). This renders their rules of timeliness useless for our purpose: after all, the search for the most analogous rule of timelines s plac es a high premium on both parallel enforcement structures and congruent statutory goals. See Burnett , 468 U.S. at 49-50. The same disqualifier negates the possible use of a network of state ant i-discrimination statutes as a source for borrowed rules of timeliness. See id. at 51 (noting that "some 30 states" have administrative remedies modeled after Title VII).6 Although not dispositive, we find it compelling that not one

court of appeals to have considered what limitations period to borrow in an ADEAaction against a federal employer has imported a state rule of decision. See , e.g. , Jones , 32 F.3d at 1455; Lavery , 918 F.2d at 1025. -18-

Of course, analogies need not be "pe rfect," Agency Holding Corp. , 483 U.S. at 147, and the search for an appropriate state-law analogue leads naturally to a consideration of rules of timeliness generally applicable to claims for personal injury. On reflection, however, this seems an unsatisfactory alternative. One concern is that these statutes tend to be very general and, thus, furnish onlya loose fit for ADEAbypass actions. Another concern arises out of the existence and availability of a more sharply focusedfederal analog ue. 6 See Norman J. Singer, Statutes and StatutoryConstruction 702 (2003 r ev. ed .) ("When two or more statutes of limitations deal with the same subject matter, the statute which is more recent and specific will prevail over the older and more general one.").

Our chief co ncer n, however, is that the importation of state rules of timeliness into the framework established for ADEA bypass actions would "frustrate or int erfere with the implementation of national policies." Occidental Life Ins. Co. v. EEOC , 432 U.S. 355, 367 (1977). That concern reflects two basic premises. First, because section 633a applies only to federal employers, the interest in uniformity is manifest. We think that this interest matters. See Board of Regents v. Tomanio , 446 U.S.7 We note that courts generally have applied state statutes of

limitations to Bivens act ions notwithstanding the fact that such actions lie only against federal officers. See , e.g. , Polanco v. U.S. DEA , 158 F.3d 647, 653 (2d Cir. 1998); Delgado-Brunet v. Clark , 93 F.3d 339, 342 (7th Cir. 1996); Matthews v. Macanas , 990 F.2d4 67, 468 (9th Cir. 1993). But ADEA bypass actions ar e distinguishable from Bivens actions for a variety of reasons. First, the ADEA has been interpreted to preempt state causes of action for age discrimination in employment. See , e.g. , Britt v. Grocers Supply Co. , 978 F.2d 1441, 14 48 (5th Cir. 1992). We believe that this fact evinces Congress's preference for uniformityof application. Second, Bivens is a court-created remedythat serves as an analogue to 42 U.S.C. § 1 983. It would make little sense to apply different limitations periods to section 1983 cla ims an d Bivens claims, both of which are "constitutional tort" actions that allow vindication of personal in terest s. See Polanco , 158 F.3d at 653. -19- 478, 489 (1980) (obs erv ing that uniformity is "a federal policy which sometimes necessitates t he displacement of an otherwise applicable state rule of law"); see also Carlson v. Green , 446 U.S. 14, 23-24 (1980) (creating a fed era l common law of survivorship rights for use in actions brought under Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971), based on the need for uniformity and noting that "uniformity cannot be achieved if courts are limited to . . . state law"). 7

Courts might have to swallow har d and tolerate these several concerns if state law were the o nly source reasonably available for borrowing. DelCostello , 462 U.S. at 169. Here, however, that is not the case. Having considered and discarded the full range of alternatives, we believe that the FLSA, a federal statute, offers the closest an alogy to ADEA bypass actions (and,8 In poi nt of fact, the FLSA has a bifurcated limitations

period. The basic period is two years. 29 U.S.C. § 255(a). This periodcan, however, be extended for an additional year if the cause of action arises out of a willful violation. Id. The case at bar does not require us to decide when, if ever, the latter period might apply in an ADEA bypass action. -20- thus, constitutes the most appropriate source for borrowing a rule of timeliness).

The FLSA's goals are congruent with the ADEA's: like the ADEA, the FLSA was designed to protect individual workers. See B arrent ine v. Ark.-Best Freight Sys., Inc. , 450 U.S. 728, 739 (1981). T he F LSA's enforcement mechanism also parallels the enforcement mechanism characteristic of ADEA bypass actions, that is, it creates private rights of action that do not depend upon a reg ime of administrative enforcement. See , e.g. , 29 U.S.C. § 216(b). Moreover, the FLSA's limitations period is desi gne d to accommodate a balance of interests similar to those at stake in ADEAbypass actions. The importance of this fact is obvious. See DelCostello , 462 U.S. at 169. And, finally, we deemit significant that the very act that expanded the ADEA to include federal employees was cast in the form of an amendment to the FLSA. These considerations lead us to conclude that borrowing a rule of timeliness from the FLSA is the preferred course — and one that is entirely consistent with the congressional design.

To cin ch matters, sound policy also supports resort to the FLSA's limitations period. A two-year statute of limitations 8-21-

in no way undermines th e salient interests served by timeliness rules in federal anti-discrimination laws, which are meant to "protect employers from the burden of defending claims arising from employment decisions that are long past." Delaware State Coll. v. Ricks , 449 U.S. 250, 256-57 (1980). In a bypass case, a federal employee must give notice of intent to sue within 180 days of the allegedlydiscriminatory act or practice, 29 U.S.C. § 633a(d), and the federal employer thus will have an opportunity to investigate the claim and preserve relevant records. We hold, therefore, that the FLSA's rule of timeliness, 29 U.S.C. § 255(a), is the correct rule of ti meli ness to apply to ADEA actions in which a federal employee has elected to bypass the administrative process.

There is one loose end. As the government reminds us, 29 U.S.C. § 633a(f) says that personnel actions of any federal employer to which section 633a applies should not be "subject to,

or affected by, any prov is ion of this chapter." This is a potential obstacle to our holding because, at the time that section 633a(f) was added, see Pub. L. No. 95-256, § 5(e), 92 Stat. 191 (1978), the FLSA's limitations period applied, by statute, to the mine-run of ADEA cases, see 29 U.S.C. § 626(e) (amended 1991). With this in mind, the suggestion is that section 633a(f) should be construedto preclude application of the FLSA's rule of timeliness.

This reasoning is both convoluted and disingenuous. Although it is true that section 633a(f) makes clear that federal-22-

employers are only bound by the specific provisions of section 633a, looking to the FLSA to borrow a rule of timeliness in no way compromises that principle. The FLSA's statute of limitations is

no longer applicable to ADEA litigation i nvol ving private employers. Consequently, our choice to import the FLSA's timeliness rule into the framework of ADEA bypass actions does not implicate any other provision of the ADEA. We merely refer to an analogous statutory scheme to fill a void that must be filled (i.e., to determine the appropriate limitations period for use in bypass actions). This is an exercise in statutory interpretation, not an application of forbidden provisions to the case at hand. In the last analysis, then, section 633a(f) has no bearing on our importation decision. III. Conclusion We need go no further. To reiterate , we hold that the correct rule of timeliness to be used in conjunction with bypass actions brought under 29 U.S.C. § 633a is the FLSA's limitations period. Applying this rule to Rossiter's ADEA claim, we find that his suit — filed one year and ten months after the occurrence of the allegedly discriminatory act — is timely. See Ricks , 449 U.S. at 258-59 (holding that the appropriate fo cus in determining the starting point of a limitations period in an employment discrimination action is the commun ica tion of the allegedly-23-

discriminatory decision); Morris v. Gov't Dev. Bank , 27 F.3d 746, 749-50 (1s t Cir. 1994) (explaining that the limitations period begins to run when the claimant re cei ves notice of the di scri minatoryact). The district court erred in concluding

o th erwise and in dismissing Rossiter's action as time-barred. Accordingly, we reverse the orde r of d ismissal and remand for further proceedings consistent with this opinion.

Reversed and remanded .