Judge Bea writes a fairly blistering dissent in this case. Replete with sentences like: "No dice," and "[the Supreme Court] will not play that game. Neither should we." And references to the majority's "clever rhetorical devise." Tell us, Judge Bea: What do you really think?
It's interesting to ponder why Judge Bea writes the dissent in the way he does. His arguments on the merits are very easy to understand; indeed, they're pretty strong ones. The ADEA says that plaintiffs are required to give the EEOC 30 days notice before they file suit. Plaintiffs here -- for a variety of (mistaken) reasons -- only gave 9 days notice before filing suit. That didn't cause anyone any prejudice at all, but, still, the statute says you have to give 30 days. The district court dismissed -- and, at this point, refiling is likely impossible. So the defendants win on a meaningless technicality.
The majority says "No blood no foul," and grants the plaintiffs equitable tolling. Judge Bea says: "But the statute is clear. You gotta give 30 days notice. Plaintiffs gave 9. End of story." So, basically, the majority is nice, and prefers adjudication on the merits, whereas Judge Bea is meaner and follows the plain language of the statute. Pretty simple, eh?
Given the simplicity of the dispute, one wonders from whence Judge Bea's relative vitriol arises. True, it may be that the majority is bending the statute in an effort to avoid injustice. Perhaps that's wrong. But even if true, that's hardly cause for cranking up the volume of the dissent. Maybe the majority's misguided. But it's a pretty strong dissent for something that's far from malicous -- or even absurd.
If written by anyone else, one might think that the dissent was an opening -- or continuing -- gambit from someone who wanted to demonstrate his strident conservative colors in the hopes of being elevated. But Judge Bea's not like that; and in any event, he isn't the right age to be in that game. It's also hard to believe that there's any personal animosity present, or even strong political differences: the majority opinion that Judge Bea slams is written by Judge Callahan, for goodness sakes, and joined by Judge Dorothy Nelson. Two judges who are far from jerks, and both from and towards whom vitriol -- unlike some other members of the Ninth Circuit -- is rarely seen.
Admittedly, Judge Bea somewhat soften things up in the last paragraph, perhaps precisely because it's Judges Callahan and Nelson. But only a little. He says, in essence: "Why are you being so nice? Just let the case be dismissed. Plaintiffs can always sue their lawyer. What's the big deal?" But the majority thinks that equitable tolling means that the plaintiffs can properly sue the tortfeasor directly, rather than (potentially) settling for a societally second-best action against someone who hasn't (allegedly) illegally discriminated against them.
So an interesting dissent. And opinion. It's a study in contrasts. One side's being extremely nice. And the other is doing the opposite. Which, at a minimum, makes for good read.
