UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) KATHLEEN BREEN, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 05-0654 (PLF) ) ELAINE L. CHAO, Secretary of ) Transportation, Department of ) Transportation, et al., ) ) Defendants. ) ____________________________________)

OPINION

This matter comes before the Court on the motion [Dkt. No. 316] of fifteen

prospective plaintiffs to reconsider this Court’s prior orders denying them leave to join or, in the

alternative, intervene in the above-captioned case. Upon careful consideration of the parties’

written submissions, the relevant legal authorities, and the entire record in this case, the Court

will grant the instant motion for reconsideration and permit the prospective plaintiffs to join this

case. 1

1 In connection with the pending motion for reconsideration, the Court has reviewed the following filings, including the exhibits attached thereto: Class Action Complaint [Dkt. No. 1] (“Compl.”); First Amended Class Action Complaint [Dkt. No. 3] (“Am. Compl.”); Plaintiffs’ Motion for Class Certification (Corrected) [Dkt. No. 4] (“Mot. for Certif.”); Prospective Plaintiffs’ Motion for Joinder, or in the Alternative, to Intervene, as Plaintiffs in the Instant Action [Dkt. No. 63] (“Mot. for Joinder”), Defendants’ Opposition [Dkt. No. 70] (“Opp’n to Mot. for Joinder”), and Prospective Plaintiffs’ Reply [Dkt. No. 72] (“Reply to Mot. for Joinder”); Prospective Plaintiffs’ Motion for Reconsideration of the Court’s January 7, 2008 Memorandum Opinion and Order [Dkt. No. 128] (“First Mot. for Recons.”), Defendants’ Opposition [Dkt. No. 129] (“Opp’n to First Mot. for Recons.”), and Prospective Plaintiffs’ Reply [Dkt. No. 131] (“Reply to First Mot. for Recons.”); Transcript of Status Hearing (Feb. 7, 2007) [Dkt. No. 286] (“Feb. 7, 2007 Hr’g Tr.”); and Prospective Plaintiffs’ Motion to Reconsider I. FACTUAL AND PROCEDURAL BACKGROUND

The Court recently recounted the factual and procedural history of this case in its

opinion granting in part and denying in part defendants’ motion for summary judgment. See

Breen v. Chao,

(D.D.C. 2017). The Court thus recites here only

those facts relevant to the instant motion for reconsideration.

Plaintiffs filed a class action complaint on March 31, 2005, amended on June 24,

2005, against the Federal Aviation Administration (“FAA”) alleging violations of the Age

Discrimination in Employment Act (“ADEA”). 2 The complaint as amended explained that

“[t]he original nine Plaintiff Class Representatives [were] joined by 825 additional Plaintiffs,”

each of whom was “not only . . . a member of the class, but also assert[ed] individual claims of

age discrimination on his or her own behalf.” See Am. Compl. at 79. These prospective class

members were each “over 40 years of age and adversely affected by the FAA’s decision to

eliminate federal employment and related benefits . . . at the 58 Automated Flight Service

Stations as announced by the FAA on February 1, 2005.” See id. at 78-79. The amended

complaint clarified that the prospective class included “approximately 834” of the 1,770 total

Flight Service Controllers who were over the age of 40 and had been adversely affected by the

reduction-in-force, but that additional individuals might be included in the class in the future.

See id. at 79 n.1, 84 & n.2.

Denial of Joinder or Intervention [Dkt. No. 316] (“Second Mot. for Recons.”), Defendants’ Opposition [Dkt. No. 331] (“Opp’n to Second Mot. for Recons.”), and Prospective Plaintiffs’ Reply [Dkt. No. 336] (“Reply to Second Mot. for Recons.”). 2 Plaintiffs filed a motion for class certification on June 29, 2005. See Mot. for Certif. The Court denied the motion to certify the class without prejudice on February 7, 2007, see Feb. 7, 2007 Hr’g Tr. at 10, and plaintiffs never renewed their motion for class certification. 2 The amended complaint also explained that the nine prospective class

representatives, as well as the 825 additional plaintiffs to the case, had exhausted their

administrative remedies by providing notice to the Equal Employment Opportunity Commission

(“EEOC”) of their intent to file the civil action pursuant to the ADEA’s bypass provision, 29

U.S.C. § 633a(d). See id. at 83-84. In a unique feature of the ADEA, federal employees may

bring their claims directly to federal court after providing notice to the EEOC, pursuant to

Section 633a(d), without first going through the full administrative complaint process set forth in

Section 633a(b). To invoke this bypass provision, a party must provide not less than thirty days’

notice to the EEOC of their intent to file a civil action and must do so within 180 days after the

alleged unlawful practice occurred. See 29 U.S.C. § 633a(d).

On May 8, 2007, twenty prospective plaintiffs filed a motion to join the case. 3

Like the hundreds of plaintiffs already parties to the case, these prospective plaintiffs were

formerly employed as flight service controllers and were over forty years of age when adversely

affected by the FAA’s reduction-in-force announced on February 1, 2005. Like the plaintiffs,

they alleged that this adverse action had violated their rights under the ADEA. In their motion

for joinder, the prospective plaintiffs admitted that they had not personally filed any notice to the

EEOC to invoke the ADEA’s bypass provision, as each of the other plaintiffs had done. See

Mot. for Joinder Mem. at 4. The prospective plaintiffs argued, however, that they should be

permitted to join under the doctrine of vicarious exhaustion. See id. at 4-10.

3 The instant motion for reconsideration explains that while twenty prospective plaintiffs sought to join the case in 2007, five of those prospective plaintiffs have not retained plaintiffs’ counsel to date. See Second Mot. for Recons. at 1. n.1. As a result, only fifteen prospective plaintiffs now move for reconsideration. 3 On January 7, 2008, Judge Richard W. Roberts, to whom this case was then

assigned, issued a memorandum opinion and order denying the prospective plaintiffs’ motion for

joinder. See Breen v. Peters,

(D.D.C. 2008). In doing so, Judge Roberts

held that the doctrine of vicarious exhaustion applies only where a party has undergone the

“full-blown administrative complaint process required by law.” See

. Because Section

633a(d) serves as an alternative to the administrative complaint process set forth in Section

633a(b), he reasoned that the doctrine of vicarious exhaustion could not apply where the original

civil action claims were administratively exhausted solely under the Section 633a(d) bypass

provision. See

. On February 7, 2008, the prospective plaintiffs moved for

reconsideration of the ruling denying their motion for joinder. That motion for reconsideration

argued that Judge Roberts had implicitly relied on matters not briefed by the parties and, as a

result, erred in denying the motion for joinder. See First Mot. for Recons. at 2-3. 4 Judge

Roberts issued a memorandum opinion and order [Dkt. No. 181] denying this first motion for

reconsideration on August 15, 2008.

In the instant motion for reconsideration, the prospective plaintiffs assert that new

evidence now justifies reconsideration of the Court’s rulings denying their motion for joinder

and their first motion for reconsideration. Specifically, the prospective plaintiffs explain that one

of the original plaintiffs – Frank Eastman – did in fact utilize Section 633a(b)’s administrative

complaint process to exhaust his administrative remedies. See Second Mot. for Recons. at 4-6.

4 The prospective plaintiffs first filed a motion for reconsideration and for leave to file a subsequent memorandum in support of reconsideration in ten business days on January 24, 2008, to which defendants filed an opposition on February 5, 2008. At the status conference on February 8, 2008, the Court construed the pending motion as a motion for extension of time and granted it nunc pro tunc. The parties thereafter briefed the merits of the first motion for reconsideration. 4 They explain that plaintiffs’ new counsel only recently learned of Mr. Eastman’s administrative

complaint challenging the FAA’s reduction-in-force. See

at 4 & n.2.

Frank Eastman filed his administrative complaint on March 6, 2006. See Second

Mot. for Recons. Ex. 1 at 1-4. On March 21, 2006, the Department of Transportation’s Office of

Civil Rights (“DOT-OCR”) informed Mr. Eastman that because a motion for class certification

was then pending in federal court and his administrative complaint would be subsumed within

the pending civil class action complaint, the agency would hold his administrative complaint in

abeyance until the Court issued a decision on class certification. See id. at 5-6. On September

28, 2006, because 180 days had elapsed since his complaint was filed and no class certification

decision had been issued, the agency dismissed Mr. Eastman’s complaint as its final agency

decision. See id. at 7-9. Mr. Eastman subsequently appealed this dismissal to the EEOC. See

id. at 10-13. The EEOC affirmed the agency’s dismissal on March 19, 2007, and denied his

subsequent motion for reconsideration on May 7, 2007. See id. at 14-18, 21. Mr. Eastman thus

thoroughly exhausted his administrative remedies pursuant to Section 633a(b), see id. at 8,

16-17, 21, and did so prior to the prospective plaintiffs’ filing a motion for joinder on May 8,

2007. The prospective plaintiffs argue that this new evidence demonstrates that they had a basis

for vicariously exhausting their administrative remedies and, as a result, they should be permitted

to join the case.

In their opposition, defendants challenge the characterization of Mr. Eastman’s

complaint as new evidence. See Opp’n to Second Mot. for Recons. at 3-4. Defendants also

argue that vicarious exhaustion does not apply to the prospective plaintiffs’ claims because:

(1) they were not named as members of the prospective class in the pleadings; (2) no

administrative class complaint was filed in this case; and (3) the ADEA’s notice and exhaustion

5 requirements are jurisdictional. See id. at 9-13. Finally, defendants contend that the prospective

plaintiffs’ joinder motion falls outside of the applicable statute of limitations. See id. at 5-8.

In their reply brief, the prospective plaintiffs further explain why the Court should

treat the fact that Mr. Eastman exhausted his administrative remedies as new evidence. See

Reply to Second Mot. for Recons. at 1-3. The prospective plaintiffs submit a sworn declaration

from the former office administrator of Gebhardt & Associates, plaintiffs’ prior counsel. See

Reply to Second Mot. for Recons. Ex. 1. The declaration affirms that the former office

administrator and, by implication, prior counsel were unaware of Mr. Eastman’s administrative

complaint. See id. at 1-2. The prospective plaintiffs also respond to defendants’ arguments

regarding vicarious exhaustion, asserting that: (1) the prospective plaintiffs’ claims are

functionally identical to those of the current plaintiffs; (2) the prospective plaintiffs did not need

to file an administrative class complaint, as the FAA had notice of the scope of the litigation; and

(3) the ADEA’s notice and exhaustion requirements are not jurisdictional according to

longstanding circuit precedent. See Reply to Second Mot. for Recons. at 3-5, 8-9. The

prospective plaintiffs also argue that the motion for joinder was filed within the applicable statute

of limitations. See id. at 5-8.

II. LEGAL STANDARD

The Federal Rules of Civil Procedure do not specifically address motions for

reconsideration. See Estate of Klieman v. Palestinian Auth.,

(D.D.C.

2015). “While the most analogous rule is Rule 60, which provides relief from a final judgment

or order, motions to reconsider interlocutory orders are not governed by Rule 60(b), but rather,

such determinations ‘are within the discretion of the trial court.’”

at 242 (quoting Keystone

Tobacco Co. v. U.S. Tobacco Co.,

(D.D.C. 2003)); see also FED. R. CIV.

(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the

claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time

before the entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities.”); Langevine v. District of Columbia,

(D.C. Cir. 1997)

(“Interlocutory orders are not subject to the law of the case doctrine and may always be

reconsidered prior to final judgment. This is true even when a case is reassigned to a new

judge.” (citations omitted)).

This judicial discretion is broad. While the judicial interest in finality disfavors

reconsideration, a district court has inherent authority to reconsider its interlocutory orders “as

justice requires.” See Wannall v. Honeywell Int’l, Inc.,

(D.D.C. 2013),

aff’d sub nom. Wannall v. Honeywell, Inc.,

(D.C. Cir. 2014) (citations omitted).

Although the “as justice requires” standard may be imprecise, it is at least clear that a court has

“more flexibility in applying Rule 54(b) than in determining whether reconsideration is

appropriate under Rules 59(e) and 60(b).” See id. at 30, 32 (internal quotations and citation

omitted).

To determine whether justice requires reconsideration of an interlocutory

decision, courts look to whether the moving party has demonstrated “(1) an intervening change

in the law; (2) the discovery of new evidence not previously available; or (3) a clear error of law

in the first order.” Estate of Klieman v. Palestinian Auth.,

(citation

omitted). Even where none of these three factors is present, “the Court may nevertheless elect to

grant a motion for reconsideration if there are other good reasons for doing so.” Cobell v.

Norton,

(D.D.C. 2005). For example, justice may require revision

where “the Court has patently misunderstood a party, has made a decision outside the adversarial

7 issues presented to the Court by the parties, [or] has made an error not of reasoning but of

apprehension . . . .” See Singh v. George Washington Univ.,

(D.D.C.

2005) (internal quotations and citation omitted); see also Stewart v. FCC,

(D.D.C. 2016).

The efficient administration of justice requires, however, that there be good

reason for a court to reconsider an issue already litigated by the parties: “[W]here litigants have

once battled for the court’s decision, they should neither be required, nor without good reason

permitted, to battle for it again.” Isse v. American Univ.,

(D.D.C. 2008)

(quoting Singh v. George Washington Univ.,

). Ultimately, the moving

party has the burden to demonstrate “that reconsideration is appropriate and that harm or

injustice would result if reconsideration were denied.” FBME Bank Ltd. v. Mnuchin,

(D.D.C. 2017) (quoting U.S. ex rel. Westrick v. Second Chance Body Armor,

Inc.,

(D.D.C. 2012)); see also Isse v. American Univ.,

.

III. ANALYSIS

A. The New Facts Presented to the Court Warrant Reconsideration

Before addressing the merits, the Court must first determine whether the fact that

Mr. Eastman administratively exhausted his complaint – a fact not previously known to the

Court – warrants reconsideration.

The parties do not dispute that Mr. Eastman thoroughly exhausted his

administrative remedies. Rather, the parties dispute whether Mr. Eastman’s administrative

complaint constitutes “new evidence” justifying reconsideration under the relevant case law. In

doing so, they contest whether and when the parties knew that Mr. Eastman had filed an

8 administrative complaint challenging the reduction-in-force, although they acknowledge that

neither party notified the Court of this fact until the prospective plaintiffs filed the instant motion

for reconsideration.

The prospective plaintiffs assert that plaintiffs’ former counsel – Joseph D.

Gebhardt, of Gebhardt & Associates, LLP – was not aware of Mr. Eastman’s administrative

complaint at the time the motion for joinder was filed. The prospective plaintiffs correctly note

that Mr. Eastman submitted all of the administrative filings himself, and it does not appear that

earlier administrative filings were sent to Gebhardt & Associates. See Second Mot. for Recons.

Ex. 1 at 1-4, 10-13, 19-20. Mr. Eastman did list Gebhardt & Associates as his counsel, however,

on the notice of appeal he personally submitted to the EEOC on November 3, 2006. See id. at

10. Subsequently, the EEOC listed Gebhardt & Associates on the certificate of mailing for its

decision affirming the DOT-OCR’s dismissal, issued on March 19, 2007. See id. at 18. It is also

worth noting, however, that after this mailing, Mr. Eastman requested reconsideration of the

EEOC’s decision on his own behalf, without the apparent assistance of Gebhardt & Associates.

See id. at 19-20.

The prospective plaintiffs also proffer the declaration of Leoni Bloomfield

Benjamin, who worked as Gebhardt & Associates’ office administrator from the beginning of

March 2007 until May 31, 2014. See Reply to Second Mot. for Recons. Ex. 1 at 1.

Ms. Benjamin affirms in her declaration that she does not recall receiving the March 2007 EEOC

decision in Mr. Eastman’s administrative case. See id. She further explains that she knew of the

pending litigation and that the firm was not participating in any EEOC administrative

proceedings. See id. Thus, she affirms, she would have brought the anomaly of receiving an

administrative decision from the EEOC to the attention of the lawyers for whom she worked.

9 See id. Instead, she “did not learn that Mr. Eastman had filed an EEO complaint (in addition to

participating in the lawsuit) until informed of it in December 2016.” See id. at 1-2.

The prospective plaintiffs argue that not only was former counsel unaware of

Mr. Eastman’s administrative complaint, but defendants were aware of this material fact and

failed to notify the Court. Prior to the administrative appeal to the EEOC, the DOT-OCR itself

handled Mr. Eastman’s administrative complaint. See Second Mot. for Recons. Ex. 1 at 5-9.

And in their discovery responses, defendants provided a list of age discrimination complaints

filed against the FAA that included Mr. Eastman’s administrative complaint, without noting its

significance except to state that it was “procedurally dismissed.” See Second Mot. for Recons. at

4 n.2. Defendants thus possessed information that one of the original plaintiffs had exhausted his

administrative remedies under Section 633a(b). But instead of disclosing this information,

defendants affirmatively represented to the Court that “none of the plaintiffs [had] filed an

administrative complaint” and did not correct this mistake at any later date. See Opp’n to Mot.

for Joinder at 4 n.2.

Defendants do not address their own failures to disclose the fact that Mr. Eastman

had exhausted his administrative remedies under Section 633a(b). 5 But they maintain that

because “Gebhardt was listed as Mr. Eastman’s attorney on his November 3, 2006, EEOC notice

of appeal and the EEOC mailed its March 19, 2007, decision to both Mr. Eastman and

Gebhardt,” and because Mr. Eastman was relatively active in the case, “[t]he record plainly

reflects that plaintiffs’ counsel knew of Mr. Eastman’s administrative complaint at the time

5 The Court notes that while the DOT and FAA certainly knew Mr. Eastman had filed an administrative complaint, it is unclear whether counsel at the Department of Justice also had actual knowledge of this fact. Because it is not necessary to resolving the instant motion, the Court need not explore this matter further. 10 plaintiffs’ counsel filed the initial joinder motion.” See Opp’n to Second Mot. for Recons. at 4

(citations omitted). Defendants’ stance exaggerates the clarity of the matter.

Determining whether and when the parties knew or did not know of the existence

of Mr. Eastman’s administrative complaint would be a highly fact-intensive inquiry. Resolution

of the matter would require the Court to hold a hearing involving testimony from those who

worked at Gebhardt & Associates and at the relevant federal agencies during the pertinent time

periods, as well as the submission of exhibits. It would require that the Court parse who might

accurately remember what they knew a decade ago. Such a hearing would amount to a

trial-within-a-trial and only further delay resolution of this case. But while “new evidence” is

one of the common justifications to which this Court looks first to determine whether

reconsideration is appropriate, the Court’s discretion is not so limited.

Although it is unclear what the parties knew, Judge Roberts certainly did not

know that Mr. Eastman had exhausted his administrative remedies under Section 633a(b) at the

time he issued his January 7 and August 15, 2008, memorandum opinions and orders. To the

contrary, Judge Roberts denied the prospective plaintiffs’ motion for joinder in reliance on a fact

now known by all to be incorrect – he expressly based his prior rulings on the fact, advanced by

both parties, that the original plaintiffs had all proceeded through the ADEA’s bypass provision,

Section 633a(d), and none of them had exhausted their administrative remedies under Section

633a(b). In denying the first motion for reconsideration, Judge Roberts described this fact as

“the crux” of his decision denying the motion for joinder. See Mem. Op. & Order at 4 (Aug. 15,

2008). And the undersigned did not know this fact – this “crux” of Judge Roberts’ decision – to

be incorrect until the prospective plaintiffs filed the instant motion for reconsideration.

11 In light of the circumstances presented and the entire history of this case, the

Court finds the misapprehension of such a material fact to be “good reason” justifying

reconsideration. Cf. Stewart v. FCC,

; Isse v. American Univ.,

; Singh v. George Washington Univ.,

. This is

particularly so because the alternative would preclude the prospective plaintiffs from litigating

their claims on their merits, the prejudice to defendants from granting the prospective plaintiffs’

motion for joinder is limited (and may be mitigated by the Court), see infra Part III(C), and any

errors in failing to earlier discover Mr. Eastman’s complaint or disclose its existence to the Court

would have been those of the defendants, their counsel, or plaintiffs’ former counsel. The

prospective plaintiffs have met their burden to demonstrate that reconsideration is appropriate

and injustice would result were reconsideration to be denied. See, e.g., FBME Bank Ltd. v.

Mnuchin,

; Isse v. American Univ.,

. The Court thus

determines in its discretion that justice requires reconsideration.

B. The Prospective Plaintiffs Vicariously Exhausted Their Administrative Remedies

Reconsidering the matter in light of the facts now presented, the Court must

assess whether the prospective plaintiffs vicariously exhausted their claims.

Before bringing a civil suit under the ADEA, a plaintiff must exhaust

administrative remedies through the EEOC’s administrative complaint process or file notice in

compliance with the ADEA’s bypass provision. See 29 U.S.C. § 633a; see also Peters v. District

of Columbia,

(D.D.C. 2012); cf. Davis v. District of Columbia,

(D.D.C. 2017). 6 The purpose of administrative exhaustion “is to afford the

6 This circuit’s case law does not entirely make clear whether the Section 633a(d) bypass provision serves as one avenue for administratively exhausting claims or as an alternative 12 agency an opportunity to resolve the matter internally and to avoid unnecessarily burdening the

courts.” Peters v. District of Columbia,

(quoting Artis v. Bernanke,

(D.C. Cir. 2011)). A plaintiff “need not individually file an EEOC complaint,”

however, where another plaintiff has done so and “the two claims are so similar that it can fairly

be said that no conciliatory purpose would be served by filing separate EEOC charges.” See

Foster v. Gueory,

(D.C. Cir. 1981); see also Peters v. District of

Columbia,

; Coghlan v. Peters,

(D.D.C.

2008). Rather, the doctrine of vicarious exhaustion (also known as the “single filing rule”)

recognizes that in such circumstances, “it would be ‘wasteful, if not vain,’ to require separate

EEOC filings.” Foster v. Gueory,

(quoting Oatis v. Crown Zellerbach Corp.,

(5th Cir. 1968)); see also Peters v. District of Columbia,

.

With this rationale in mind, the applicability of the vicarious exhaustion doctrine

hinges on the functional, rather than formal, similarity of the parties’ claims. See Brooks v. Dist.

Hosp. Partners, L.P.,

(D.C. Cir. 2010) (holding that the claims of external

applicants for nursing assistant positions were vicariously exhausted by claims asserted by

internal applicants challenging the same employment test because their claims were “so

to exhaustion altogether. Compare Rann v. Chao,

(D.C. Cir. 2003) (“We have held that the timeliness and exhaustion requirements of § 633a(d) are subject to equitable defenses and are in that sense non-jurisdictional.” (citations omitted)), with Kennedy v. Whitehurst,

(D.C. Cir. 1982) (“[U]nder the ADEA pursuit of a remedy through administrative channels is optional and not a mandatory prerequisite to the filing of a civil action. Neither the private nor the federal employee sections of the ADEA requires anything more by way of ‘exhaustion’ than the provision of notice to the appropriate federal official of the intention to sue.” (internal quotations and citations omitted)). Because this distinction is one without significance to deciding the instant motion for reconsideration, the Court does not attempt to resolve the question here. 13 similar . . . that no purpose would be served by requiring them to file independent charges”

(citation omitted)); Cook v. Boorstin,

(D.C. Cir. 1985) (“The test . . . for

vicarious exhaustion hinges on functional identity of claims . . . .” (citation omitted)); Davis v.

District of Columbia,

(holding that the vicarious exhaustion doctrine

applied because “[t]he relevant EEOC charges and the claims before this court arose from the

same allegedly discriminatory practices”). And when courts in this circuit have declined to

invoke vicarious exhaustion, they have done so based on findings that the claims were not

sufficiently similar, but substantively varied and individualized. See Peters v. District of

Columbia,

(holding that vicarious exhaustion was unavailable because

claimants’ allegations of discrimination and retaliation were not factually similar to one another);

Byrd v. District of Columbia,

(D.D.C. 2011) (holding that vicarious

exhaustion was unavailable where a plaintiff’s complaint would require “a different factual

inquiry and testimony from different witnesses” compared to the administratively exhausted

complaint). Application of the single filing rule does require, however, that at least one plaintiff

in the case exhausted their administrative remedies and did so in a timely manner. See Coghlan

v. Peters,

.

Considering Mr. Eastman’s administrative complaint and the very similar nature

of the claims brought by the prospective plaintiffs, the Court agrees that the doctrine of vicarious

exhaustion applies here. The claims exhausted in Mr. Eastman’s administrative complaint are

functionally identical to those which the prospective plaintiffs seek to raise in this lawsuit.

Mr. Eastman and the prospective plaintiffs were all formerly employed as flight service

controllers and over forty years of age when they were adversely affected by the FAA’s

reduction-in-force. See Am. Compl. at 78-79; Second Mot. for Recons. at 2; Second Mot. for

14 Recons. Ex. 1 at 5. Their claims concern the very same employment action and allege that this

employment action amounted to age discrimination in violation of the ADEA. Because their

claims are so functionally similar to Mr. Eastman’s claim, the prospective plaintiffs have

vicariously exhausted their administrative remedies. See Brooks v. Dist. Hosp. Partners, L.P.,

; Cook v. Boorstin,

; Davis v. District of Columbia,

.

Defendants’ contend that because Mr. Eastman was named as a plaintiff in this

case and the prospective plaintiffs were not so named, vicarious exhaustion does not apply

because the FAA would have treated the prospective plaintiffs’ administrative claims differently.

This argument prioritizes technical form over functional identity and practical reality. The FAA

knew it faced a potential class of aggrieved plaintiffs in the instant case and decided to hold in

abeyance an individual administrative complaint, which would have been subsumed in the class

action, pending the possibility that these grievances could be resolved in a single lawsuit. The

Court is certainly not clairvoyant. But had each of the prospective plaintiffs timely filed

administrative complaints, the agency likely would have held all of their functionally identical

claims in abeyance too, pending resolution of the motion for class certification, and then

dismissed the complaints after 180 days passed without a ruling on class certification. The

review by the FAA or DOT-OCR of such administrative filings likely would have been futile

and a waste of government resources.

In addition, defendants assert that the doctrine of vicarious exhaustion should not

apply because Mr. Eastman filed his administrative complaint as an individual complainant. In

support of this argument, defendants point to D.C. Circuit precedent holding that exhaustion of

only four individual plaintiffs’ claims under the Rehabilitation Act could not be invoked as the

15 basis for vicariously exhausting the claims of fifty-four individuals in a prospective class action

lawsuit challenging a medical test that had resulted in employment disqualifications. See

Barkley v. U.S. Marshals Serv.,

(D.C. Cir. 2014). Noting the distinct

administrative procedures for individual actions and class actions, the D.C. Circuit in Barkley v.

United States Marshals Service explained that its holding reflected the importance of these

procedures in affording “the affected government agency notice of the potential scale of a

multiple-employee complaint” and providing it with an “opportunity to discover and correct

discriminatory practices that may amount to class-wide discrimination.” See

(citations

omitted). This precedent does not govern here, however, for several distinct reasons.

First, the D.C. Circuit’s holding in Barkley involved an interpretation of the

Rehabilitation Act, a statute that, unlike the ADEA, includes jurisdictional exhaustion

requirements and lacks any bypass provision. See Barkley v. U.S. Marshals Serv.,

; see also Koch v. Schapiro,

(D.D.C. 2010). Second, the

D.C. Circuit’s holding in Barkley reflected its concern that permitting the administrative

complaints of four individual plaintiffs to vicariously exhaust the claims of fifty other individual

plaintiffs in a prospective class action would rob the agency of fair notice and an opportunity to

respond to class-wide claims. See Barkley v. U.S. Marshals Serv.,

. Such

concerns are not present here. Prior to the prospective plaintiffs’ motion for joinder, the agency

received 834 bypass provision notices pursuant to Section 633a(d), as well as an administrative

complaint pursuant to Section 633a(b), notifying it of the magnitude of the discrimination

allegations. The DOT-OCR itself cited the prospective class action as its reason for holding Mr.

Eastman’s administrative complaint in abeyance. And in doing so, the agency defined the

proposed class as including “all Flight Service Air Traffic Control Specialists employed by the

16 FAA who are over 40 years of age and adversely affected by the FAA’s decision to eliminate

federal employment and related benefits . . . at the 58 Automated Flight Service Stations as

announced by the FAA on February 1, 2005,” see Second Mot. for Recons. Ex. 1 at 5 (emphasis

added), a definition which would have included the prospective plaintiffs as class members.

Third, the nature of the reduction-in-force itself put the agency on notice of the scale of the

matter – the single employment action cost hundreds of affected individuals their jobs in one fell

swoop and in one uniform manner. And despite the thirty-day notice of the bypass provision, as

well as the opportunity to respond to Mr. Eastman’s administrative complaint, the agency chose

not to resolve the flight service controllers’ grievances internally. Thus, it cannot be said that

defendants lacked adequate notice or opportunity under the provisions of the ADEA to satisfy

the purposes of administrative exhaustion. See Peters v. District of Columbia,

. The addition of fifteen or twenty individual plaintiffs to the group of former employees

affected by the agency’s reduction-in-force – a group the agency knew numbered well over

800 – certainly would not have come as any surprise to defendants. Cf. Barkley v. U.S. Marshals

Serv.,

.

Finally, defendants argue that vicarious exhaustion does not apply to ADEA

claims because the statute’s notice and exhaustion requirements are jurisdictional. Certainly, if

the ADEA’s exhaustion requirements were jurisdictional, this Court would have no authority to

create an equitable exception, such as vicarious exhaustion, to that jurisdictional requirement.

See Blackmon-Malloy v. U.S. Capitol Police Bd.,

(D.C. Cir. 2009). But the

D.C. Circuit has held that the timeliness and exhaustion requirements of Section 633a are not

jurisdictional and are instead subject to equitable defenses. See Rann v. Chao,

(D.C. Cir. 2003) (citing Kennedy v. Whitehurst,

(D.C. Cir. 1982), and Zipes

17 v. Trans World Airlines,

(1982)); see also Koch v. Walter,

(D.D.C. 2013); Koch v. Schapiro,

. Judge Roberts cited this line

of precedent in denying the dismissed plaintiffs’ motion for joinder in 2008, see Breen v. Peters,

(citing Rann v. Chao,

), and defendants have not cited any

intervening changes to this controlling authority.

To the contrary, the D.C. Circuit has made clear that in order for exhaustion to be

considered jurisdictional, “a statute must contain ‘sweeping and direct statutory language

indicating that there is no federal jurisdiction prior to exhaustion, or the exhaustion requirement

is treated as an element of the underlying claim.’” See Avocados Plus Inc. v. Veneman,

(D.C. Cir. 2004) (quoting Weinberger v. Salfi,

(1975)). If it

wishes to so limit judicial review, Congress must state “in clear, unequivocal terms that the

judiciary is barred from hearing an action until the administrative agency has come to a

decision.”

(quoting I.A.M. Nat’l Pension Fund Benefit Plan C v. Stockton Tri Indus.,

(D.C. Cir. 1984)).

The ADEA contains no such “sweeping and direct statutory language.” See

Avocados Plus Inc. v. Veneman,

. Section 633a(b), which provides for the

administrative complaint process, contains no language restricting the jurisdiction of federal

courts, let alone language that does so in “clear, unequivocal terms.” See

Likewise, Section

633a(c), which describes the federal courts’ jurisdiction to hear civil actions, does not contain

any limiting language which could be read to restrict jurisdiction. See Blackmon-Malloy v. U.S.

Capitol Police Bd.,

; Avocados Plus Inc. v. Veneman,

.

Although Section 633a(d) states that “no civil action may be commenced by any individual

under this section until the individual has given the Commission not less than thirty days’ notice

18 of an intent to file such action,” this language by its own terms governs only “[w]hen the

individual has not filed a complaint concerning age discrimination with the Commission”

pursuant to Section 633a(b). The limits Congress imposed solely on the bypass provision thus

do not control the entirety of Section 633a. There thus is no jurisdictional bar to this Court’s

reconsidering the matter, in light of the fact that Mr. Eastman exhausted his administrative

remedies pursuant to Section 633a(b), and concluding that the vicarious exhaustion doctrine

applies to the prospective plaintiffs’ claims.

C. Permitting the Prospective Plaintiffs to Join the Case Would Serve the Interests of Justice and Is Not Rendered Futile by the Statute of Limitations

Having determined that the prospective plaintiffs did in fact vicariously exhaust

their claims, the Court must finally decide whether to permit the prospective plaintiffs to join this

case. Cf. Brooks v. Dist. Hosp. Partners,

(explaining that the single filing rule

does not apply unless a party has been properly joined to the suit brought by the original filer).

The parties spill much ink fighting about the applicable statute of limitations. But

in doing so, they fail to address (or even mention) the basic legal standards that apply to a motion

seeking to amend a complaint to add a plaintiff. In assessing the relevant legal authorities, the

Court determines that the prospective plaintiffs’ claims would relate back to the original

complaint, which defendants do not dispute was timely filed. As a result, the Court need not

resolve the parties’ dispute regarding the applicable statute of limitations.

Rule 21 of the Federal Rules of Civil Procedure provides, in relevant part, that

“[o]n motion or on its own, the court may at any time, on just terms, add or drop a party.” FED.

R. CIV. P. 21. In turn, Rule 20 sets forth guidelines for permissive joinder, providing that parties

may join an action as plaintiffs if “they assert any right to relief . . . with respect to or arising out

19 of the same transaction, occurrence, or series of transactions or occurrences” and “any question

of law or fact common to all plaintiffs will arise in the action.” See FED. R. CIV. P. 20(a)(1). The

Court thus has discretion in determining whether to permit the prospective plaintiffs to join this

case, so long as it does so “on just terms” and in accordance with Rule 20 governing permissive

joinder. See also Alexander v. Edgewood Mgmt. Corp.,

(D.D.C. 2017).

In exercising this discretion, courts also assess the potential for prejudice to any party or undue

delay. See

.

The Court is not aware of any reason why the prospective plaintiffs would fail to

meet the Rule 20 standard. As noted above, defendants do not articulate any opposition to the

contrary, except to state that they would be unfairly prejudiced were the prospective plaintiffs

permitted to join the case. See Opp’n to Second Mot. for Recons. at 13 n.6. Instead, defendants

argue that the prospective plaintiffs’ claims would be barred by the statute of limitations.

The Court’s granting of a joinder motion “does not resuscitate claims that are

barred by the statute of limitations.” See Griffin v. District of Columbia,

, at *1

n.1 (D.D.C. May 28, 1996); see also 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY

KAY KANE, FEDERAL PRACTICE & PROCEDURE § 1688 (3d ed. 2017). And futility is grounds to

deny a motion to join a plaintiff where the prospective plaintiffs’ claims would not survive a

motion to dismiss because of the statute of limitations. See Fleck v. Cablevision VII, Inc.,

(D.D.C. 1992); see also Hawkins v. Groot Indus., Inc.,

(N.D. Ill. 2002).

Rule 15 of the Federal Rules of Civil Procedure governs when, for statute of

limitations purposes, an amended complaint relates back to an earlier filed complaint. Although

the Rule only expressly deals with amendments that change “the party . . . against whom a claim

20 is asserted,” see FED. R. CIV. P. 15(c)(1)(C), the Advisory Committee’s notes make clear that the

Rule applies by analogy to amendments that add plaintiffs as well. See FED. R. CIV. P. 15

advisory committee’s note to 1966 amendment; see also Leachman v. Beech Aircraft Corp.,

(D.C. Cir. 1982). In order to invoke the relation-back doctrine, Rule 15 requires

two things: (1) the new claim must arise from the same “conduct, transaction, or occurrence” set

forth in the original pleading; and (2) the party against whom the claim is asserted must have had

sufficient notice of the claim. See FED. R. CIV. P. 15(c)(1)(C); Leachman v. Beech Aircraft

Corp.,

. Such notice must come “within the period provided by Rule 4(m)

for serving the summons and complaint.” See FED. R. CIV. P. 15(c)(1)(C).

The prospective plaintiffs seek to challenge, as a violation of the ADEA, the loss

of their jobs resulting from the FAA’s reduction-in-force – the very same employment decision

that serves as the basis for the current plaintiffs’ claims brought under the very same statute. As

a result, they meet the “conduct, transaction or occurrence” requirement. See, e.g., Estate of Doe

v. Islamic Republic of Iran,

(D.D.C. 2011); Page v. Pension Benefit Guar.

Corp.,

(D.D.C. 1990). The only remaining issue thus concerns notice.

In cases such as this one, “when a new plaintiff with a new claim is sought to be

added after the statute of limitations has lapsed, something more is needed than merely notice to

the defendant of the conduct or occurrence that gave rise to the claim.” See Leachman v. Beech

Aircraft Corp.,

. Adopting the reasoning of the Fifth Circuit, the D.C. Circuit

has explained:

Not only must the adversary have had notice about the operational facts, but it must have had fair notice that a legal claim existed in and was in effect being asserted by, the party belatedly brought in. This becomes of special importance in situations in which a common set of operational facts gives rise to distinct claims . . . among distinct claimants . . . .

21

at 1308-09 (quoting Williams v. United States,

(5th Cir. 1968)). To fulfill

this notice requirement, therefore, defendants must have both notice of the existence of the

prospective plaintiffs’ claims and of their involvement in the original action. See Page v.

Pension Benefit Guar. Corp.,

(citations omitted). This notice requirement can

be met either informally, such as when “the relationship between the original and new plaintiffs

forms an ‘identity of interest,’” see

(citations omitted), or formally, such as when a

plaintiff files a class action complaint, see Griffin v. District of Columbia,

at

*2 n.2; see also Fleck v. Cablevision VII, Inc.,

. In addition, the failure of a

complaint to effect notice does not foreclose the issue where a party has received actual notice.

See Page v. Pension Benefit Guar. Corp.,

.

Here, defendants had fair notice of the prospective plaintiffs’ claims and their

potential involvement in the litigation because the original complaint was instituted as a

prospective class action. See Fleck v. Cablevision VII, Inc.,

. The amended

complaint explained that the class included “approximately 834 of the FAA’s 1,770 current

Flight Service Controllers,” and noted that additional individuals might be included in the class

in the future. See Am. Compl. at 78-79 & n.1, 84 & n.2. And the FAA itself characterized the

proposed class as including “all Flight Service Air Traffic Control Specialists employed by the

FAA who are over 40 years of age and adversely affected by the FAA’s decision to eliminate

federal employment and related benefits . . . at the 58 Automated Flight Service Stations as

announced by the FAA on February 1, 2005.” Second Mot. for Recons. Ex. 1 at 5 (emphasis

added). Such a definition certainly would have included the prospective plaintiffs as class

members. Thus, defendants knew that a class of affected plaintiffs had sued to challenge the

reduction-in-force and, through their own employment records, knew the identities of the

22 plaintiffs who had been subject to the challenged employment action. Defendants had “fair

notice” of the scope of the case and understood that the alleged discriminatory action had

affected numerous individuals, including the prospective plaintiffs. Cf. Fleck v. Cablevision VII,

Inc.,

; Hawkins v. Groot Indus., Inc.,

. The prospective

plaintiffs have not sought to “chang[e] any of the underlying facts” giving rise to liability, and

defendants had fair notice of their claims and potential involvement in the case. Cf. Golden v.

Mgmt. & Training Corp.,

(D.D.C. 2017). Thus, under these

circumstances, the relation back doctrine applies. As a result, the statute of limitations would not

bar the prospective plaintiffs’ claims.

Having determined that joinder would not be futile, the Court also concludes that

the prospective plaintiffs could be permitted to join this action “on just terms” and that doing so

would serve the interests of justice. See FED. R. CIV. P. 21; Alexander v. Edgewood Mgmt.

Corp.,

. As discussed above, the prospective plaintiffs assert claims that

arise out of the same conduct and occurrence giving rise to the current plaintiffs’ claims, and

these claims share many common questions of law and fact. See FED. R. CIV. P. 20(a)(1). In

addition, defendants have not identified any unfair prejudice which the Court could not mitigate

or resolve, and any resulting delays would be minor. 7 For example, defendants have not been

7 The Court, in a separate opinion [Dkt. No. 378] issued today, has addressed the potential for unfair prejudice and undue delay resulting from the late reinstatement of numerous dismissed plaintiffs. The Court’s discussion in that opinion – determining that the risk of unfair prejudice was minimal, as was the risk of undue delay, and that any unfair prejudice could be mitigated or resolved by the Court – also generally applies to the Court’s analysis here. In fact, defendants do not raise any arguments in their opposition to the instant motion for reconsideration regarding the matter of prejudice, except to cite their brief opposing the dismissed plaintiffs’ motion for reconsideration. See Opp’n to Second Mot. for Recons. at 13 n.6. Thus, while the Court summarizes its conclusions here, it directs the parties to its earlier opinion for a more fulsome assessment of the matter. 23 unfairly prejudiced by the fact that the prospective plaintiffs have not participated in discovery.

Defendants already have access to much of the information they would have requested in

discovery responses, because each individual was a federal employee. And the prospective

plaintiffs’ discovery responses regarding liability would have been duplicative, while damages

discovery must be supplemented for all plaintiffs in any event. Furthermore, any unfair

prejudice to defendants may be mitigated or resolved by the Court – for example, by permitting

abbreviated additional discovery, limiting the testimony or evidence presented at trial to exclude

matters not fairly raised in discovery, or imposing restrictions to account for any lost or

destroyed evidence. As defendants will suffer only minimal, if any, prejudice, and joinder will

not create any undue delays, the Court determines that permitting the prospective plaintiffs to

join the case and resolve their disputes on the merits would serve the interests of justice.

IV. CONCLUSION For the reasons set forth in this opinion, the Court will grant the prospective

plaintiffs’ motion to reconsider the Court’s prior orders denying them leave to join or, in the

alternative, intervene and permit the prospective plaintiffs to join this case. An order consistent

with this opinion shall issue this same day.

SO ORDERED.

_________/s/_____________ PAUL L. FRIEDMAN United States District Judge DATE: March 27, 2018

24