assuming the D.C. Circuit would recognize the same exception for § 2000e-16(c) as it did for the EEOC regulations it construed in Rdo
How later courts described this case
- assuming the D.C. Circuit would recognize the same exception for § 2000e-16(c) as it did for the EEOC regulations it construed in Rdo
- 30-day period not triggered by notice to attorney of record
- “‘[F]or this reason,’ we have observed, ‘courts confronted with procedural ambiguities in the -11- statutory framework have, with virtual unanimity, resolved them in favor of the complaining party.’”
- “ ‘[F]or this reason,’ we have observed, ‘courts confronted with procedural ambiguities in the statutory framework have, with virtual unanimity, resolved them in favor of the complaining party.’ ”
Written by the judges who cited it.
The opinion
ROBB, Circuit Judge,
dissenting:
I dissent. In my opinion the notice sent to Mr. Cass at his office and received on August 30, 1974 was binding upon the ap *858 pellant. The suit in District Court was therefore filed out of time. A brief recital of the facts will make clear the basis of my view.
The appellant’s original complaint of discrimination, filed with the Defense Supply Agency November 14, 1972, included this statement:
I have retained counsel to represent me in this case. He is Peter D. Bewley of the firm of Wilmer, Cutler & Pickering 900-17th Street, N.W., Washington, D.C. 20006. Of counsel will be Roderick Boggs . . My counsel expect to exercise all rights granted to them by the code of federal regulations . . . including but not limited to the right to receive notice of any and all actions taken with regard to this complaint .
(App. p. 8)
On October 2, 1973 Richard W. Cass of the Wilmer, Cutler & Pickering firm wrote to the Appeals Examining Office of the Civil Service Commission: “Peter D. Bewley and myself will be representing Bernard Bell” at his hearing. Mr. Cass wrote on the stationery of Wilmer, Cutler & Pickering. His name and that of Mr. Bewley appeared on the letterhead, the position of Mr. Bewley’s name indicating that he was senior to Mr. Cass.
On August 30, 1974 a copy of the Civil Service Commission’s final decision was delivered to the office of Mr. Cass by registered mail.
As the Supreme Court has said, Link v. Wabash R.R. Co., 370 U.S. 626, 634 , 82 S.Ct. 1386, 1390 , 8 L.Ed.2d 734 (1962), under “our system of representative litigation each party is deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ Smith v. Ayer, 101 U.S. 320, 326 , 25 L.Ed. 955 .” I think that as of August 30, 1974 the appellant was charged with notice of the decision delivered to the office of his attorneys on that date.
I am not persuaded by the appellant’s attempt to avoid the binding effect of the notice of August 30, 1974. He says that on or about August 15,1974 Mr. Cass informed him that he was leaving the country for an extended period and “after approximately August 15, 1974, I no longer considered Richard Cass my attorney for this matter and began to seek new counsel.” (App. 29) Mr. Bewley in turn states in an affidavit that “at some time during the latter part of July, 1974 Richard Cass indicated to me that he could not continue to represent Bernard Bell.” (App. 30) Nowhere however is there any indication that Mr. Bewley, co-counsel with Mr. Cass, terminated his representation of appellant or even suggested to the appellant that it was about to be terminated. Nor is there any indication that the Civil Service Commission was notified that either Mr. Bewley or Mr. Cass was withdrawing. In these circumstances they were still attorneys of record for the appellant and the Commission was entitled to treat them as such when sending notices to the appellant.
The Civil Service Commission’s regulations cited by the majority do not require personal notice to the employee as distinguished from notice to his lawyer, nor do they suggest to me that the Commission intended to make any such requirement. The regulations are consistent with the belief that the Commission regarded notice to the lawyer as notice to his client. If the Commission intended to require personal notice to the client I think it would have said so by plain language, not by innuendo.
The theory of the majority makes the giving of notice to counsel a meaningless exercise. This I think is “wholly inconsistent with our system of representative litigation”. Link v. Wabash R.R. Co., 370 U.S. 626, 634 , 82 S.Ct. 1386, 1390 , 8 L.Ed.2d 734 (1962).