Willie A. FORESTER; Larry E. Davenport; Alfredo Chavez; Carlos M. Teran; and Donald E. Evans, Sr., Plaintiffs-Appellants, v. Michael CHERTOFF, Secretary of the Department of Homeland Security, Defendant-Appellee, 500 F.3d 920

Opinion by Judge CALLAHAN; Dissent by Judge BEA. CALLAHAN, Circuit Judge: Appellants Alfredo Chavez (“Chavez”), Carlos M. Teran (“Teran”), and Donald E. Evans, Sr., (“Evans”) (collectively “Plaintiffs”), alleged under Title VII, 42 U.S.C. § 2000e, and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621-634, that their employer, the United States Border Patrol, failed to promote them due to their age. The district court granted the defendant’s motion for

summary judgment, concluding that it lacked subject matter jurisdiction because Plaintiffs did not wait 30 days after filing a notice of intent to sue with the Equal Employment Opportunity Commission (“EEOC”) before filing suit. The district court also declined to provide equitable relief from the timing requirement. Plaintiffs appeal, alleging that the district court had jurisdiction and erred in not granting equitable relief. We vacate the district court’s order granting

summary judgment and remand. I. Plaintiffs brought a lawsuit against the defendant seeking relief under Title VII and the ADEA for alleged employment discrimination and retaliation. Plaintiffs allege that discriminatory acts began after Border Patrol Agent Rowdy Adams (“Adams”) was assigned as Patrol Agent in Charge to the Douglas Border Patrol station where Plaintiffs worked. Plaintiffs claim that Adams intended to eliminate the older workers from the Douglas Border Patrol station.

Specifically, Chavez alleges that he applied for a promotion, but Adams selected younger and less experienced employees simply because of age. Teran alleges that he was removed from a position overseeing construction of a border fence and replaced with a younger agent on account of his age. Evans also claims that he was discriminated against because of his age. Plaintiffs maintain that each would have been promoted but for his age.

Plaintiffs participated in counseling with the EEOC and received letters (“Rights Memoranda”) in late February 2001, advising them of their “rights in pursuing an EEOC complaint.” On the third page of each letter, the EEOC describes the process necessary for filing an age discrimination claim, including the following: [Y]ou may elect to bypass the administrative procedure and file a civil action directly in an appropriate U.S. District Court, after first filing a written notice of intent to file a civil action with the EEOC within 180 calendar days of the date of the alleged discriminatory action.

Once a timely notice of intent to sue is filed with the EEOC, you must wait at least 30 calendar days before filing a civil action. Between March and May 2001, Plaintiffs each received counseling reports from the EEOC and Notices of the Right to File a Formal Complaint (“Complaint Letter”). On May 23, 2001, Plaintiffs each sent a notice of intent to sue to the EEOC. Nine days later, on June 1, 2001, Plaintiffs filed a complaint in the United States District Court for the District of Arizona.

On July 5, 2001, the EEOC sent letters to the appropriate staff director at the employing agency, informing the director of the Plaintiffs’ notices of intent to sue and requesting a complete inquiry within 30 days. There is no indication that any further administrative action was taken. Plaintiffs filed amended complaints on October 16, 2001, and on January 17, 2002. After discovery, the defendant filed a motion for

summary judgment on January 13, 2004, alleging that Plaintiffs failed to comply with the ADEA’s 30-day notice of intent to sue requirement. Plaintiffs voluntarily dismissed each of their claims except those under the ADEA and for retaliation under Title VII. In May 2005, the district court granted the motion for

summary judgment, concluding that it lacked jurisdiction over Plaintiffs’ ADEA claims because the complaint was filed prematurely. It also denied Plaintiffs equitable relief. The court reasoned that because Plaintiffs had been informed of the 30-day notice of intent to sue requirement by the Rights Memoran-da and were represented by an attorney at the time the complaint was filed, equitable relief was not available under the Ninth Circuit’s decision in Hageman v. Philips Roxane Laboratories, Inc., 623 F.2d 1381 (9th Cir.1980) (denying equitable relief where plaintiff, represented by counsel, waited a substantial period of time before filing his complaint). II. A district court’s grant of

summary judgment is reviewed de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004). Viewing the evidence in the light most favorable to the non-moving party, we must decide whether any genuine issues of material fact exist and whether the district court correctly applied relevant substantive law. Johnson v. Henderson, 314 F.3d 409, 413 (9th Cir.2002). III.

Plaintiffs assert that had they filed their complaint 30 days after filing notice of intent to sue, they would have forfeited judicial review of some of their discrimination allegations because they believed they were required to file their civil action within 180 days of the alleged discriminatory conduct. Plaintiffs are incorrect. A private or state (collectively “private”) employee who believes he has been discriminated against on the basis of age must file a complaint with the EEOC within 180 days of the alleged discrimination, or 300 days in a deferral state. 29 U.S.C. § 626(d) (2000).

The employee may not file a civil action in district court until 60 days after filing the charge with the EEOC. Id. By contrast, a federal employee who believes he has been discriminated against because of age has two options under 29 U.S.C. § 633a (2000). First, he may file an administrative action directly with the EEOC. 29 C.F.R. § 1614.105. After exhausting the administrative remedies by waiting 180 days after filing an administrative action with the EEOC, or upon receiving a final agency determination, the employee may file a civil action in district court. Id. at § 1614.201(c).

Second, a federal employee may bypass administrative proceedings and file directly in district court (“bypass provision”). 29 U.S.C. § 633a(d); 29 C.F.R. § 1614.201(a). To do so, the employee is required to file a notice of intent to file a civil action with the EEOC within 180 days from the alleged discriminatory conduct, and then wait 30 days before filing the civil action. Plaintiffs are federal employees and filed their complaint under the bypass provision. Contrary to Plaintiffs’ fears, the Supreme Court’s opinion in Stevens v.

Department of Treasury, 500 U.S. 1, 7, 111 S.Ct. 1562, 114 L.Ed.2d 1 (1991), establishes that their claims would not have been barred had they waited 30 or more days after filing their notices of intent to sue before filing their lawsuit. In Stevens, the district court dismissed Stevens’ civil action brought under the ADEA because Stevens, a federal employee, did not “notify the EEOC within thirty days prior to commencing suit.” Id. at 6, 111 S.Ct. 1562. The Supreme Court vacated the dismissal.

It noted that Stevens had filed his notice of intent to sue 176 days after the alleged discriminatory action, but he did not file his lawsuit until more than 30 days after giving notice. Id. at 6-7, 111 S.Ct. 1562. The Supreme Court held that, according to the plain language of § 633a, Stevens satisfied the bypass provision by giving notice of intent to sue within 180 days from the date of the alleged discriminatory conduct and filing his civil action more than 30 days after he gave notice of intent to sue. Id. at 7, 111 S.Ct. 1562.

The Supreme Court recognized that some limitations period for filing a complaint was necessary, and held that because § 633a contained no limitations period, a limitations period should be borrowed from an analogous federal or state statute. Id. The Court, however, declined to adopt a particular limitations period because Stevens filed his suit “only one year and six days after the allegedly discriminatory event,” which respondents acknowledged was “well within whatever statute of limitations might apply to the action.” Id. at 8, 111 S.Ct. 1562 (quotation marks and citations omitted).

After Stevens, it is clear that Plaintiffs were not required to file their civil action in the district court within 180 days of the alleged discriminatory conduct. Indeed, following Stevens, the district court would have retained jurisdiction if Plaintiffs had waited considerably more than 30 days after filing their notice of intent to sue before filing their lawsuit, and waiting would not have limited the scope of the district court’s review. IY.

In another case, the Supreme Court addressed a provision that required charges of discrimination in violation of Title VII to be filed with the EEOC within 180 days from the alleged discriminatory action. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). The Court held “that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Id. at 393, 102 S.Ct. 1127.

The Court wrote: The provision granting district courts jurisdiction under Title VII, 42 U.S.C. §§ 2000e-5(

e) and (f), does not limit jurisdiction to those cases in which there has been a timely filing with the EEOC. It contains no reference to the timely-filing requirement. The provision specifying the time for filing charges with the EEOC appears in an entirely separate provision and it does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts. Id. at 393-94, 102 S.Ct. 1127. Although the language in Title VII is mandatory (“A charge under this

section shall be filed within one hundred and eighty days after the alleged unlawful employment practice.” 42 U.S.C. § 2000e — 5(e)(1)), the Court declined to hold that it was jurisdictional because the language was not contained within a jurisdiction-conferring statute. The provision before the Supreme Court in Zipes was similar to the provision in § 633a(

d) which states that “[s]uch notice shall be filed within one hundred and eighty days.” Accordingly, Zipes weighs against holding the 180-day period in § 633a(

d) to be jurisdictional. Moreover, if the mandatory language in § 633a(

d) concerning the 180-day filing requirement is not jurisdictional, it follows that the mandatory language concerning the 30-day waiting period also need not be construed as jurisdictional. V. Before we can follow the approach the Supreme Court took in Stevens and Zipes, we must consider our opinion in Dempsey v. Pacific Bell Co., 789 F.2d 1451 (9th Cir.1986). In Dempsey, we strictly construed the 60-day period that a private employee is required to wait before filing a civil action in the district court. Id. at 1451.

Dempsey, a private employee, filed a complaint with the EEOC and the equivalent California agency alleging age discrimination. Id. at 1452. Without waiting 60 days, Dempsey filed a civil action in district court. We held that the 60-day waiting period was jurisdictional, citing its purposes of providing the EEOC time to investigate claims and bring its own suit, and to provide employers with notice and a chance to settle the dispute without litigation. Our opinion in Dempsey is not controlling for several reasons.

First, Dempsey interpreted the private employee administrative waiting period, which is distinct from the public employee bypass provision at issue here. Second, Dempsey is equivocal on whether the district court lacked authority to grant equitable relief. Third, subsequent Supreme Court cases have clarified that the term “jurisdiction” should be reserved for instances where courts lack any authority to grant relief. A. Dempsey concerned the 60-day time period that a private employee must wait after filing a formal charge with the EEOC before his right to file a civil action matures.

By contrast, the case at bar concerns the 30-day time period for which a federal employee must wait pursuant to the bypass provision before filing his existing civil action under 29 U.S.C. § 633a. Private employees must file a charge with the EEOC before filing suit, while federal employees need only file notice of intent to sue. Compare 29 U.S.C. § 626(

d) with 29 U.S.C. § 633a(d). The provisions have distinct purposes and effects. A charge begins an investigation by the EEOC, which may culminate with a civil action by the EEOC should the EEOC be unable to informally resolve the complaint. EEOC v. Shell Oil Co., 466 U.S. 54, 68, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984). By contrast, the notice requirement, while alerting the EEOC to the dispute, does not necessarily result in an EEOC administrative proceeding. Moreover, the federal employee’s right to file a judicial complaint is not subject to, or preempted by, any action by the EEOC. Aronsen v.

Crown Zellerbach, 662 F.2d 584, 589 (9th Cir.1981). A notice of intent to sue has different purposes and effects from the charge at issue in Dempsey. The notice does not have the effect of starting an administrative proceeding by the EEOC, though it may trigger an investigation, and so there is no need to “allow[ ] the EEOC time to file its own suit.” Dempsey, 789 F.2d at 1452. There is no risk of jointly running administrative and judicial actions, as there would be under § 626, if private employees did not comply with the waiting period. Cf.

Bankston, 345 F.3d at 771 (“[A]n administrative exhaustion rule is meaningless if claimants may impede and abandon the administrative process and yet still be heard in the federal courts.” (citation omitted)). Indeed, the bypass provision does not require exhaustion of administrative remedies because no administrative proceeding ever begins. Accordingly, we do not read Dempsey as holding that all waiting provisions of the ADEA are jurisdictional. B. Furthermore, it is not clear that Dempsey actually held that the district court lacked the authority to grant equitable relief.

The panel ordered Dempsey’s claim dismissed but then stated “since equitable tolling factors may exist in this case, we direct the district court, in the event Dempsey should refile his complaint within the time period hereafter specified, to evaluate those factors in making a determination of whether the statutes of limitation of 29 U.S.C. §§ 626(

d) and (

e) should be tolled.” 789 F.2d at 1451-52. The opinion further notes that “a strict jurisdictional bar could adversely affect plaintiffs, particularly those proceeding pro se, by barring those who discover their jurisdictional error after the 180-day or 300-day statutes of limitation,” and that “if a plaintiffs jurisdiction error was the result of excusable ignorance and defendant was not prejudiced by the error, the statutes of limitation could be tolled.” Id. at 1453 (citation omitted).

Thus, it appears that the panel in Dempsey did not think that its decision would necessarily deprive Dempsey of judicial review of his claim. C. Our determination that the district court did not lack jurisdiction to grant Plaintiffs relief is bolstered by several recent Supreme Court cases addressing the definition of “jurisdiction.” In a case with similar subject matter to the case at bar, the Supreme Court held that Title VII’s employee-numerosity requirement is not jurisdictional. Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 1238, 163 L.Ed.2d 1097 (2006).

Arbaugh sued her employer for discrimination under Title VII. Two weeks after a jury returned a verdict for Arbaugh, the district court granted the employer’s motion to dismiss on the grounds that it had fewer than fifteen employees because Title VII defined “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees.” 42 U.S.C. § 2000e(b) (2000). The district court interpreted this requirement as jurisdictional. 126 S.Ct. at 1238 (2000). The Supreme Court reversed.

It considered the statutory and constitutional bases for jurisdiction over a Title VII action, noting that 28 U.S.C. § 1331 “broadly authorized the federal courts to exercise subject-matter jurisdiction over ‘all civil actions arising under the Constitution, laws, or treaties of the United States.’ ” Id. at 1239 (quoting 28 U.S.C. § 1331).

The Court emphasized that the term “jurisdiction” has been used loosely by the Supreme Court and other courts by deeming time limits as “mandatory and jurisdictional,” but the Court stated that “in recent decisions, we have clarified that time prescriptions, however emphatic, are not properly typed ‘jurisdictional.’ ” Id. at 1242 (quotations and citations omitted). The Court admitted that it had “been less than meticulous” with the distinction between subject matter jurisdiction and elements of a claim for relief. Id.

The Court emphasized that categorizing an issue as “jurisdictional” carries with it a number of consequences, including that the issue can never be forfeited or waived. Id. at 1244. The Court determined that the employee-numerosity requirement was unrelated to the jurisdictional provision in Title VII. Id. (citing Zipes, 455 U.S. at 394, 102 S.Ct. 1127). The Court concluded that because categorizing a requirement as jurisdictional is up to Congress, the Title VII employee-numerosity requirement was not jurisdictional and could not be raised after trial. Id.

The recent opinions are consistent with the Supreme Court’s approach in Zipes and demonstrate that the Court has moved away from defining “jurisdiction” in terms of a plaintiffs obligation to file a civil action and toward a definition describing the limits of a court’s power to adjudicate an action. Dempsey, however, by focusing on § 626(d)’s language “that a plaintiff ‘must’ give sixty days notice before filing suit” and emphasizing that “strict enforcement” was necessary to forward the section’s goals, analogized “jurisdiction” to “strict enforcement” of the plaintiffs duties. 789 F.2d at 1452.

The rejection of such an approach by the Supreme Court in Ar-baugh, Zipes, and other cases clarifies that Dempsey did not concern a “jurisdictional” issue that cannot be waived or equitably tolled. D. We conclude that the 30-day waiting period in 29 U.S.C. § 633a(

d) is not jurisdictional in the sense that a district court lacks any authority to grant relief when a complaint is filed prematurely.

Section 633a(

c) provides for jurisdiction of federal district courts over discrimination claims pursuant to the ADEA. Bunch v. United States, 548 F.2d 336 (9th Cir.1977). District courts are broadly authorized to exercise subject matter jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Only Congress may classify a statute as jurisdictional. Kontrick v. Ryan, 540 U.S. 443, 452, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004).

However, Congress did not place the 30-day waiting period within the specific provision that confers jurisdiction on the federal district courts. Moreover, because “time prescriptions, however emphatic, are not properly typed ‘jurisdictional,’ ” the mandatory language in § 633a(

d) does not support an

interpretation of its time prescriptions as “jurisdictional.” Arbaugh, 126 S.Ct. at 1242 (citation omitted). Accordingly, we hold that the time prescriptions in 29 U.S.C. § 633a, including the 30-day waiting period, are not jurisdictional and may be forfeited, waived, or equitably modified. Our conclusion is supported by two other considerations. First, “[t]he ADEA is remedial and humanitarian legislation and should be liberally interpreted to effectuate the congressional purpose of ending age discrimination in employment.” Naton v. Bank of Cal, 649 F.2d 691, 696 (9th Cir.1981).

This purpose would be frustrated if the premature filing of a complaint, which did not prejudice the defendant, was held to prohibit a court from considering the claims on the merits. Second, two other circuits have held that, given the non-jurisdictional nature of the 180-day period within which a federal employee must file notice of intent to sue, failure to file a notice with the EEOC at all may be subject to equitable relief. Castro v. United States, 775 F.2d 399, 403 (1st Cir.1985) abrogated by Stevens v. Dept. of Treasury, 500 U.S. 1, 111 S.Ct. 1562, 114 L.Ed.2d 1 (1991); Ray v.

Nimmo, 704 F.2d 1480, 1483-84 (11th Cir.1983). If complete failure to file a notice of intent to sue may be equitably remedied, it follows a fortiori that prematurely commencing a civil action within 30 days of actually giving notice of intent to sue should be subject to equitable relief.

We conclude for the foregoing reasons that even though Plaintiffs filed their complaint in the district court without waiting 30 days from the date they provided the EEOC with notices of intent to sue, as required by 29 U.S.C. § 633a(d), the district court had jurisdiction to grant them equitable relief from their premature filing. VI. Having determined that the district court had jurisdiction to grant Plaintiffs equitable relief, we must consider whether Plaintiffs .should be granted such relief.

In Naton, we explained that equitable tolling “often focuses on the plaintiffs excusable ignorance of the limitations period and on lack of prejudice to the defendant.” Naton, 649 F.2d at 696. We have subsequently noted that “[wjhere the danger of prejudice to the defendant is absent, and the interests of justice so require, equitable tolling of the limitations period may be appropriate.” Azer v. Connell, 306 F.3d 930, 936 (9th Cir.2002).

The issue of equitable tolling often arises in the context of a plaintiff failing to file an action within a statute of limitations, and we “review de novo the district court’s dismissal of a complaint on statute of limitations grounds.” Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1135 (9th Cir.2001). Our standard of review for the application of equitable tolling is more nuanced, as we explained in Johnson, 314 F.3d at 413-14. Initially, we note that our opinion in Hageman v. Philips Roxane Laboratories, Inc., 623 F.2d 1381 (9th Cir.1980), is not controlling.

Hageman, a private employee, failed to file any notice of intent to sue with the Department of Labor and then filed a civil action over a year after the expiration of the time within which he was supposed to file a notice of intent. Id. at 1382-83. The district court dismissed the case because Hageman had not filed a notice of intent to sue. Id. at 1381. The issue on appeal was whether “the notice of intent to sue requirement should be either deemed satisfied or waived.” Id.

We affirmed the dismissal noting that: (a) “there[was] no evidence that Hageman found the notice of intent to sue requirement ambiguous or that he believed that the complaint he filed complied with it”; (b) “any ambiguity Hageman may have perceived must have been cleared up at least as early as March 29, 1976 and possibly earlier, when he was informed that his complaint did not satisfy the notice requirement of the statute”; and (

c) Hage-man did not file his action until August 31, 1977, “over a year after [his employer] justifiably believed the case was closed.” Id. at 1385-86. Of course, Hageman’s relevance to this case is limited by the fact that it was decided before the Supreme Court’s decision in Zipes clarified that filing a notice of intent to sue was not jurisdictional and by the fact that Hageman was a private, not a federal, employee. More importantly, Plaintiffs have not swung at any of the three strikes that threw Hageman out of court.

First, Plaintiffs filed their complaint prematurely because they mistakenly thought that they were required to do so to preserve judicial review of their claims. Second, their misconception was not cleared up until well after they had filed the complaint. Indeed, even the district court’s May 2005 order granting

summary judgment does not clearly indicate that Plaintiffs were mistaken in their belief that they had to file their lawsuit within 180 days of the underlying alleged incidents of discrimination. Third, there was no prejudice to the defendant from the early filing. Accordingly, contrary to the district court, we conclude that Hageman does not bar a grant of equitable tolling in this case. We next turn to the merits of Plaintiffs’ request for equitable tolling.

Equitable tolling is appropriate where there is “excusable ignorance of the limitations period and [a] lack of prejudice to the defendant,” Naton, 649 F.2d at 696, or where “the danger of prejudice to the defendant is absent, and the interests of justice [require relief].” Azer, 306 F.3d at 936. Here, there is no showing or even any suggestion that the premature filing of Plaintiffs’ complaint was prejudicial to the defendant. The defendant knew of Plaintiffs’ unsuccessful attempts at counseling with the EEOC in early 2001.

On July 5, 2001, the EEOC informed the appropriate staff director of the employing agency of Plaintiffs’ complaint. There is no suggestion that the defendant at any time alleged any prejudice from the premature filing of Plaintiffs’ complaint. Moreover, the district court’s order granting

summary judgment makes no finding of prejudice. There is no doubt that Plaintiffs filed their complaint prematurely and that they did so because they mistakenly thought that they had to do so to preserve judicial review of their claims. There is no suggestion that they had any ulterior motive for doing so. Thus, whether they are granted equitable tolling turns on an evaluation of whether their mistake was “excusable” or whether relief is warranted by the “interests of justice.” We conclude that even if Plaintiffs’ mistake was not excusable, the “interests of justice” support our grant of equitable tolling.

It is not clear when Plaintiffs retained counsel, but they had counsel at the time they filed their complaint and this weighs against a finding of excusable neglect. However, unlike instances where a plaintiff fails to act within a statute of limitations and therefore cannot proceed unless his or her delay is excused, here Plaintiffs were entitled to proceed if they filed their complaint sometime after June 23, 2001.

Thus, if Plaintiffs had filed a new complaint or if either of the amendments to their complaint had been treated as a new complaint, Plaintiffs would have been entitled to a judicial determination of the merits of their complaint. It would be contrary to the remedial and humanitarian purposes of the ADEA, see Naton, 649 F.2d at 696, to allow the premature filing of a complaint, that in no way prejudiced the defendant, to deprive the Plaintiffs of their day in court. Certainly such a draconian measure is not required by the underlying purposes of the waiting period.

As noted, when a federal employee opts for the bypass provision, his right to seek judicial review is not dependent on any action by the EEOC. Indeed, in this case, the EEOC did not even inform the defendant of Plaintiffs’ notices of intent to sue until July 5, 2001. Thus, had Plaintiffs waited the 30 days and filed their complaint on June 23, 2001, this still would have been before the EEOC informed the defendant of Plaintiffs’ notices of intent to sue.

Furthermore, the purpose of providing the EEOC with notice of intent to sue is to allow it to “take any appropriate action to assure the elimination of any unlawful practice.” 29 U.S.C. § 633a(d). This purpose is not vitiated by the filing of the lawsuit. The EEOC can still negotiate with the parties and seek an agreed upon resolution, which might well include the dismissal of the lawsuit.

In this instance, the filing of the lawsuit did not interfere with the EEOC’s efforts because nothing happened between the filing of the lawsuit on June 1, 2001, and August 27, 2001, when defendant filed a motion to dismiss alleging that the named defendants were not the proper parties. In sum, we grant Plaintiffs equitable relief from filing their complaint prematurely because we determine that defendant was not prejudiced by the premature filing and relief is supported by the interests of justice.

We grant equitable relief, rather than remand this matter to the district court because of the passage of time since the filing of the complaint and the lack of prejudice to the defendant. Accordingly, for the foregoing reasons, we VACATE the district court’s order of

summary judgment and REMAND for further proceedings consistent with this opinion. . The lawsuit and appeal originally included plaintiffs Willie A. Forester and Larry E. Davenport. Each was dismissed by stipulation on June 6, 2006. . The Government alleges that it maintained in the district court that the court lacked jurisdiction over any ADEA based retaliation claim because the Government had not waived its sovereign immunity for such claims. Because the district court has not addressed this assertion, and it is not critical to our disposition of this appeal, we leave it to the district court to consider the claim on remand should the government continue to assert it. . 29 U.S.C. § 633a(

d) states: When the individual has not filed a complaint concerning age discrimination with the Commission, 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 of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred. Upon receiving a notice of intent to sue, the Commission shall promptly notify all persons named therein as prospective defendants in the action and take any appropriate action to assure the elimination of any unlawful practice. . The Court also based its reasoning on the legislative history of the ADEA, which was modeled after Title VII. Id. at 395 n. 11, 102 S.Ct. 1127.

The House Conference Report on the 1978 revision of the ADEA stated that the requirement for filing a charge within 180 days of the alleged discriminatory conduct was not jurisdictional and was subject to equitable modification. Id. (quoting H.R.Rep. No. 95-950, at 12 (1978) (Conf.Rep.), as reprinted in 1978 U.S.C.C.A.N. 528, 534); see also Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir.1985) ("A timely filing of an EEOC charge is not a jurisdictional prerequisite to suit.”). .

Section 633a acts as a waiver of Federal sovereign immunity. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981). Sovereign immunity is a threshold question that is sometimes described as "jurisdictional.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 94, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Waiver of sovereign immunity will be strictly construed in terms of its scope, in favor of the sovereign. Lane v. Pena, 518 U.S. 187, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996).

The Supreme Court has stated, however, that "[o]nce Congress has made such a waiver, we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver.” Irwin, 498 U.S. at 95, 111 S.Ct. 453 (holding that time limits within Title VII are subject to equitable tolling in suits against the federal government). Accordingly, equitable tolling is applicable to ADEA suits against the United States to the same extent as it would be in actions against private persons. .

Our opinion in Dempsey may be read as holding that although the statute of limitations for filing a charge with the EEOC and the appropriate state agency could be equitably tolled, the 60-day waiting period could not be tolled. Id. at 1453. Thus, if Dempsey continued to want judicial review of his discrimination claim, he had to file a new complaint, now well beyond the 60-day waiting period, and seek equitable relief for filing the complaint so late. It is not clear why such an approach would be superior to allowing a court to consider granting equitable relief in the pending case. .

The Supreme Court stated: If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue.... But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as non-jurisdictional in character. Arbaugh, 126 S.Ct. at 1244 (internal citation omitted). . The Supreme Court’s approach in Arbaugh is consistent with its recent opinions in other cases. In United States v.

Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), the Supreme Court overturned a holding that the district court did not have jurisdiction to sentence defendants for a crime not charged on the indictment because "defects in an indictment do not deprive a court of its power to adjudicate a case.” Id. at 630, 122 S.Ct. 1781. In Kontrick v.

Ryan, 540 U.S. 443, 445, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), the Supreme Court held that failure to file an amended complaint within the time constraints was not a jurisdictional defect because "the filing deadlines prescribed in Bankruptcy Rules 4004 and 9006(b)(3) are claim-processing rules that do not delineate what cases bankruptcy courts are competent to adjudicate.” Id. at 453-54, 124 S.Ct. 906. In Eberhart v.

United States, 546 U.S. 12, 126 S.Ct. 403, 405, 163 L.Ed.2d 14 (2005), the Supreme Court held that time prescriptions in the Federal Rules of Criminal Procedure cannot "deprive federal courts of subject-matter jurisdiction,” and criticized its own use of the term "jurisdictional” for defects that were unrelated to subject matter jurisdiction. .

In Zipes, 455 U.S. at 398, 102 S.Ct. 1127, the Supreme Court concluded: By holding compliance with the filing period to be not a jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to waiver as well as tolling when equity so requires, we honor the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer. . That

section reads: (

c) Civil actions; jurisdiction; relief Any person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter. 29 U.S.C. § 633a(c). . We noted: The law of this Circuit is somewhat inconsistent regarding the standard of review applicable to a district court's determination of whether equitable estoppel or equitable tolling applies to a claim barred by the statute of limitations. See, e.g., Santa Maria v. Pac.

Bell, 202 F.3d 1170, 1175 (9th Cir.2000) (while de novo standard applies to district court’s determination of whether a claim is barred by the statute of limitations, the decision as to whether equitable tolling applies "is generally reviewed for an abuse of discretion, unless the facts are undisputed, in which event the legal question is reviewed de novo”) (emphasis added) (citations omitted); id. at 1176 ("This court reviews the district court's decision whether to apply the equitable estoppel doctrine for an abuse of discretion.”) (emphasis added) (citation omitted); Leorna [v.

United States Dep't of State ], 105 F.3d [548] at 550 [9th Cir. (1997)] (applying de novo standard of review to equitable tolling claim); Scholar [v. Pac. Bell ], 963 F.2d [264] at 266 [9th Cir. (1992)] (same). 314 F.3d at 413-14. . See Johnson, 314 F.3d at 417, holding that because the plaintiff was represented by counsel, she could "be charged with constructive knowledge of the law's requirements, through her attorney, during the relevant time period.” See also Leorna v.

United States Dep’t of State, 105 F.3d 548, 551 (9th Cir.1997), holding that “once a claimant retains counsel, tolling ceases because she has 'gained the means of knowledge of her rights and can be charged with constructive knowledge of the law’s requirements.’ ” (internal citations omitted). . The district court did not comment on Plaintiffs amending their complaint, possibly because it thought that it lacked any jurisdiction over the case. Because the parties have failed to address the impact of the amendments on the district court's jurisdiction in their briefs before this court, we decline to do so. .

In Naton, we recognized our inherent authority to grant equitable relief, and we indicated that such relief should be determined on a case-by-case basis. 649 F.2d at 696. Although such a determination is usually made in the district court, this case presents an unusual situation where judicial efficiency recommends that we grant relief rather than remand the issue to the district court.