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LONG v. FRANK

February 19, 1993

JAMES A. LONG, Plaintiff,
v.
ANTHONY M. FRANK, POSTMASTER GENERAL, Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

MEMORANDUM AND ORDER

 GLASSER, United States District Judge:

 The government moves this court to reconsider its Memorandum and Order dated December 23, 1992, insofar as that Order held that plaintiff's ADEA action was not time barred. As provided in Local Rule 3(j), which governs motions for reconsideration, this matter has been taken on submission. Based on precedent that this court did not consider when issuing its prior order, the government's motion should be granted.

 FACTS

 The procedural history of this action is set forth in this court's Memorandum and Order of December 23, 1992, and familiarity with that opinion is assumed.

 Plaintiff pro se James Long filed his complaint in this age discrimination action in November of 1990. He alleges that the United States Postal Service (the "Postal Service" or the "Agency") terminated his employment in violation of 29 U.S.C. § 633a, the provision of the Age Discrimination in Employment Act ("ADEA") governing actions by federal employees. Long's complaint originally sought two forms of relief: (1) overtime back pay with interest and (2) compensation for legal services. On December 23, 1992, this court issued a Memorandum and Order granting the government's motion for summary judgment as to plaintiff's claim for attorneys fees. Since the United States Court of Appeals for the Federal Circuit already had decided the merits of plaintiff's request for direct payment of attorneys fees, the doctrine of res judicata barred this court from reconsidering the identical issue.

 As to plaintiff's action for overtime back pay, this court denied the government's motion for summary judgment on the grounds that the doctrines of res judicata and collateral estoppel -- the only bases on which the government rested its motion -- were inapplicable. More precisely, this court held that since the Federal Circuit, the first court to consider plaintiff's action, did not have jurisdiction to decide claims based on age discrimination, res judicata was not appropriate. It reached this holding despite the fact that in both actions the underlying transaction upon which plaintiff relied and the relief that plaintiff sought were identical.

 In their initial briefs discussing the summary judgment motion, neither party mentioned the statute of limitations for actions brought under the applicable ADEA provision; nevertheless, as part of its holding, this court stated as follows:

 
Finally, plaintiff has asserted his age discrimination claims in a timely fashion. The federal catch-all six-year statute of limitations governs federal employees' ADEA claims. See, e.g., Medwid v. Baker, 752 F. Supp. 125, 135 (S.D.N.Y. 1990). Thus, plaintiff had six years from August of 1982 -- the date his cause of action accrued -- in which to file a civil action under the ADEA. However, since he chose to seek redress from the EEOC, this limitations period was tolled during the administrative proceedings -- which ended in December of 1986.

 DISCUSSION

 As the discussion above makes clear, section 633a of the ADEA, which governs federal employees' age-discrimination claims, does not contain an express indication of the time period within which a plaintiff must file his action. This court's December 23, 1992 Order stated that section 633a is subject to the six-year federal catch-all limitations period. In reaching this conclusion, this court relied for authority on Medwid v. Baker, 752 F. Supp. 125 (S.D.N.Y. 1990), which, in turn, relied on Bornholdt v. Brady, 869 F.2d 57 (2d Cir. 1989).

 In Bornholdt, the Second Circuit provided two reasons why "borrowing" the limitations period for Title VII actions against the government and applying that period to ADEA actions was inappropriate: first, the Bornholdt court asserted, the "borrowing" device was used primarily in actions against private entities and not against the federal government, id. at 64; and second, the thirty-day limitations period originally proposed for section 633a was eliminated when the bill was reported out of committee. Id. at 66. After conducting extensive and persuasive analysis, however, the Bornholdt court ultimately declined to choose a limitations period for section 633a because, the court confessed, it was "unable to determine precisely what Congress had in mind." 869 F.2d at 66. Instead, the Second Circuit in that case rested its decision on alternative grounds see Bornholdt, 869 F.2d at 68-70 (concluding that timing of age discrimination claim related back to original filing), thereby transforming its observations about the thirty-day limitations period into dicta.

 After the Second Circuit decided Bornholdt, the Supreme Court had occasion to discuss the propriety of the "borrowing" doctrine with respect to section 633a. In Stevens v. Department of Treasury, 114 L. Ed. ...


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