Stevens III v. Department of Treasury/Concurrence-dissent Stevens

by John Paul Stevens

Justice STEVENS, concurring in part and dissenting in part.

While I join the remainder of the Court's opinion, I disagree with Part IV. In my view, the Government is quite right in its present position that the statute contains no requirement that a federal employee exhaust administrative remedies before instituting a court action. The case is not moot, because the Government's position as petitioner's former employer is adverse to petitioner. The adversary posture that the Court finds lacking as to the exhaustion issue is equally lacking as to the issue that the Court does decide. Compare ante, at 9-10, with ante, at 7-8. Moreover, because 29 U.S.C. § 633a, the statutory provision at issue, applies only to federal employees, the adversary posture the Court awaits will never arise unless the Government once again reverses its position.

The Court acknowledges that the exhaustion question is an important issue on which the lower courts are divided. See ante, at 9. The issue is also straightforward and capable of swift resolution. The Government in its argument before the Court of Appeals based its contention that exhaustion is required solely on an analogy to Title VII. See Brief for Appellees in No. 89-1432 (CA5), pp. 6-7. Unlike Title VII, however, the Age Discrimination in Employment Act (ADEA) contains no express requirement that a federal employee complainant seek administrative relief. There is therefore no basis from which to infer that a complainant who has voluntarily sought administrative relief must exhaust all administrative remedies before proceeding to court. The Equal Employment Opportunity Commission, charged with interpretation of the ADEA, does not read the statute to require exhaustion by federal employees. See 29 CFR § 1613.513 (1990).

The only language of the ADEA relied on by those Courts of Appeals that have required exhaustion is the omission from § 633a of a provision like that in Title VII allowing an employee to abandon the administrative complaint route if there has been no administrative action within 180 days.^[1] This provision, however, is unnecessary in § 633a because, as I have explained, the ADEA contains no requirement for federal employees equivalent to Title VII's command that a complainant first seek administrative relief.

I would therefore resolve the exhaustion issue as well as the timeliness question. To that extent, I respectfully dissent from the Court's disposition.

Notes

1. See Purtill v. Harris, 658 F.2d 134, 138 (CA3 1981), cert. denied, 462 U.S. 1131, 103 S.Ct. 3110, 77 L.Ed.2d 1365 (1983); Castro v. United States, 775 F.2d 399, 404 (CA1 1985); Rivera v. United States Postal Service, 830 F.2d 1037, 1039 (CA9 1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1737, 100 L.Ed.2d 200 (1988); Bornholdt v. Brady, 869 F.2d 57, 63 (CA2 1989); White v. Frank, 895 F.2d 243, 244 (CA5), cert. denied, 498 U.S. 890, 111 S.Ct. 232, 112 L.Ed.2d 192 (1990); McGinty v. United States Department of Army, 900 F.2d 1114, 1117 (CA7 1990).