James E. Brown v. John O. Marsh, Jr., Secretary of the Army

STARR, Circuit Judge,

dissenting:

I respectfully dissent. In my judgment, the district court properly dismissed Mr. Brown’s complaint for failure to consult an EEO counselor within 30 days of the alleged discriminatory acts, as required by 29 C.F.R. § 1613.214 (a)(1)® (1985). 1 I also find myself in disagreement with each of the various reasons given by the court for its contrary conclusion.

Let me begin, however, by reviewing our common ground. As I read the court’s opinion, all of us agree that, as a general matter, a federal agency is entitled to enforce its time limits in the first instance with the expectation that its action will be upheld upon review in the federal courts. Although section 717(c) of Title VII, conferring upon federal courts jurisdiction over Title VII claims advanced by federal employees, does not explicitly require compliance with an agency’s time limits, that statute has been read to contain an implied “exhaustion” requirement. E.g., Richerson v. Jones, 572 F.2d 89, 94 (3rd Cir.1978); see 42 U.S.C. § 2000e-16(c) (1982) (requiring final action by agency as condition for filing civil suit). Thus, when an agency has consistently asserted a failure to comply with its time limits as a reason for denying relief on a particular claim, the district court, as this court recognizes, should treat those time limits functionally as a “statute of limitations” and, absent compelling equitable considerations, dismiss the complaint if it finds that the plaintiff failed to comply with those time requirements. See Maj.Op. at 14. 2

For a number of reasons, the court nonetheless concludes that the district court’s dismissal in this case was improper. The court’s opinion first asserts that the Army raised the timeliness of Mr. Brown’s consultation with an EEO counselor “in the most oblique manner possible,” id. at 12, and then proceeds to diagnose various deficiencies in that regard in the Army’s pleadings, id. at 12. To be sure, the Army’s memorandum in support of its motion to dismiss does seem to confuse the formal administrative complaint, which must be filed within 15 days of the complainant’s final interview with his or her EEO counselor, with the initial consultation *19 with the EEO counselor, which (absent a waiver by the agency) must occur within 30 days of the alleged discriminatory act. See 29 C.F.R. § 1613.214 (a)(l)(i)-(ii). Nonetheless, it seems clear from the motion to dismiss itself that the Army’s motion was premised upon Mr. Brown’s failure to consult with the EEO counselor within the requisite 30 days. The motion states: “Plaintiff failed to exhaust his administrative remedies by not filing his administrative complaints until after the 30 days required under the governing regulations or not at all.” Defendant’s Motion to Dismiss, Brown v. Secretary of the Army, No. 80-1169 (D.D.C. Jan. 17, 1984). Since the regulations speak of a 30-day time limit only with reference to consultations with an EEO counselor, it seems clear that the “administrative complaints” inartfully spoken of in the Army’s motion include informal complaints to, or consultations with, an EEO counselor. The district court, moreover, clearly based its dismissal upon the 30-day time limit for consulting with an EEO counselor. See Brown v. Secretary of the Army, No. 80-1169, Slip Op. at 2 (D.D.C. March 5, 1984) (citing 29 C.F.R. § 1613.214 (a)(l)(i)). Hence the army’s filings in the district court, although scarcely models of clarity, adequately raised the untimeliness of Mr. Brown’s consultation with the EEO counselor.

The court next asserts that the Army failed to establish that Mr. Brown had not complied with the 30-day requirement. This conclusion seems to me quite unwarranted. As to appellant’s charge of non-selection for the Housing Management Assistant position, the necessary facts appear from the face of his amended complaint. There, plaintiff explicitly alleges that he applied for and was denied that position in August 1975. See Amended Complaint at 15, reprinted in Appellee’s Brief app. at 68 (emphasis added). 3 The complaint also alleges that “on November 11, 1975, plaintiff consulted an EEO counselor, complaining that his non-promotion was part of a continuous pattern of discrimination and reprisal.” Id. at 19 (emphasis added). Although the complaint does not specifically state that his first consultation with the EEO counselor occurred on this date, that inference is fairly to be drawn since the pleading reflects an awareness that having had such a consultation is important to the case, and since the complaint mentions no other consultation. For purposes of a ruling on the Government’s motion to dismiss, the district court was, of course, required to accept as true the facts alleged in Mr. Brown’s complaint. Since the failure to comply with the 30-day requirement appeared from the complaint itself, it was, in my view, unnecessary for the Government to prove such a failure.

The court also asserts that, while Mr. Brown’s compliance with the 30-day requirement in connection with the Supervisory Space Utilization position “presents a closer question,” “the Army did not establish the non-existence of a complaint fairly covering the relevant issues.” Maj.Op. at 9. This conclusion is, with all respect, in error. The court fails to acknowledge that Mr. Brown’s complaint never alleged any consultation whatsoever with an EEO counselor about his non-selection for that position, and that, when provided an opportunity to prove that such a consultation indeed took place, appellant failed to produce any credible evidence of there having been such a consultation. See Brown v. Secretary of the Army, supra, Slip Op. at 2 n. 2. The Army, moreover, produced an unrebutted affidavit to the effect that Mr. Brown’s EEO file contained no evidence of either a consultation or a formal administrative complaint. Compare, e.g., Catrett v. Johns Manville, 756 F.2d 181 (D.C.Cir.1985), ce rt. granted, — U.S. —, 106 S.Ct. 342 , 88 L.Ed.2d 285 (1985). The finding of the district court that there was no material issue of fact with respect to Mr. Brown’s compliance with the time limits was therefore fully justified.

The court then seems to accept the argument, advanced by Mr. Brown in the district court, that his failure to comply with *20 the 30-day requirement is excused by virtue of the two alleged instances of employment discrimination being part of a systemic and “continuous” pattern of discriminatory non-promotions. See Maj.Op. at 15. From my reading of the court’s opinion, this appears to be the justification for the conclusion that Mr. Brown need not “file separate complaints specifically spelling out his objections to particular non-selections at particular times for particular positions.” Id. The court states that since he “had a pending complaint alleging a continuing pattern of discriminatory non-promotion,” id. (emphasis added), Mr. Brown need not necessarily lodge administrative charges complaining of these two rejections, which Mr. Brown might consider to be further evidence of the pattern, see id.

The court fails, however, to address the district court’s reasoning rejecting that very argument. See Brown v. Secretary of the Army, supra, Slip Op. at 4-5. According to recent precedents of this court, a plaintiff, in order to prevail upon a claim of continuing discrimination, must allege either (1) “a series of related acts, one or more of which falls within the limitations period,” or (2) “the maintenance of a discriminatory system both before and during the statutory period.” Milton v. Weinberger, 645 F.2d 1070, 1075 (D.C.Cir.1981) (quoting B. Schlei & P. Grossman, Employment Discrimination Law 232 (Supp.1979)); see also Valentino v. United States Postal Service, 674 F.2d 56, 65 (D.C.Cir.1982) (quoting same language).

In order to satisfy the first prong of this test (and thereby avoid the 30-day requirement with respect to his Housing Management Assistant or Supervisory Space Utilization Specialist allegations), Mr. Brown must allege some other specific, related discriminatory action about which he did complain within the required 30-day period. This Mr. Brown has quite failed to do. Indeed, the only specific non-selections about which he complains are the two posts at issue in this case. Moreover, he is precluded by this court’s order in an earlier proceeding, Brown v. Marsh, 711 F.2d 419 (D.C.Cir.1983), from re-alleging any discriminatory denials of re-employment in order to satisfy this requirement. See id. Slip Op. at 3.

Any attempt to rely upon the second prong of the Milton test must fail for similar reasons, for Mr. Brown has failed to allege any facts, occurring during the limitation period, that are adequate to demonstrate the existence of a discriminatory system. See Stoller v. Marsh, 682 F.2d 971 , 975 n. 3 (D.C.Cir.1982), cert. denied, 460 U.S. 1037 , 103 S.Ct. 1427 , 75 L.Ed.2d 787 (1983). Accordingly, Mr. Brown’s allegations of a continuing pattern of discrimination cannot excuse his failure to comply with the agency’s time limits.

Finally, the court suggests that the Army should be “precluded” from raising the timeliness issue and that the Army should therefore be deemed to have waived the time limits. See Maj.Op. at 13-14, 15-16. The court argues that enforcement of the time limits would not serve the purpose of the exhaustion doctrine in this ease, id. at 15; that such enforcement would substantially and unfairly prejudice Mr. Brown if dismissal were permitted now, id. at 16; and that the Government ought in fairness to have pressed the timeliness issue long ago, id. at 17. Although the majority denies relying upon the “general theory of estoppel” in reaching this result, it has not pointed to any alternative legal theory under which such facts could justify “precluding” the Army from asserting non-compliance with its filing deadlines. Estoppel would seem to be the only doctrine under which facts such as these would be relevant.

Mr. Brown, in my view, has failed to meet the exacting requirements for securing an estoppel against the Government. Although the Supreme Court has refused to endorse the position that estoppel can never lie against the Government, see Heckler v. Community Health Services, 467 U.S. 51 , —, 104 S.Ct. 2218, 2224 , 81 L.Ed.2d 42 (1984), the requirements for obtaining an estoppel are quite stringent. A recent decision of this court, General Ac *21 counting Office v. General Accounting Office Personnel Appeals Board, 698 F.2d 516 , 526 n. 57 (D.C.Cir.1983), suggested that estoppel generally will lie only when government officials engage in conduct that (1) “can be characterized as misrepresentation or concealment,” or (2) “has caused or will cause an egregiously unfair result.” 698 F.2d at 526 . See also Cooper v. Bell, 628 F.2d 1208, 1214 (9th Cir.1980) (six requirements for establishing estoppel against government in Title VII case); cf. Payne v. Block, 751 F.2d 1191 (11th Cir.1985) (Heckler did not require reversal of court’s pre-Heckler holding that federal agency was precluded from enforcing valid regulation because of agency’s failure to comply with its own instructions), cert. granted, — U.S. —, 106 S.Ct. 57 , 88 L.Ed.2d 46 (1985). Contrary to the majority’s suggestion, moreover, the unusually stringent requirements for estopping the Government from enforcing a substantive rule apply to procedural rules as well. 4

Here, Mr. Brown clearly has failed to meet the first prong of the GAO test. He has not alleged any affirmative misrepresentation or concealment on the part of Army officials in their handling of the timeliness issue. No one appears to have tricked Mr. Brown into failing to comply with the deadlines. No one appears to have assured Mr. Brown that the timeliness issue would not be raised in the district court. Quite to the contrary, the issue was raised several times during the course of the administrative proceedings.

Moreover, contrary to the majority’s assertion, Maj.Op. at 17, the Army apparently did exercise its power under 29 C.F.R. § 1613.215 to reject both of Mr. Brown’s untimely complaints. The Army’s rejection of the Supervisory Space Utilization position claim, however, was subsequently overturned by the EEOC’s predecessor — the Appeals Review Board of the U.S. Civil Service Commission — on what appears to me to be the erroneous ground that a complaint may not be “cancelled” for untimeliness unless the complainant received counseling prior to the cancellation. See Letter of Appeals Review Board to Darrow Varner (July 14, 1976). The Army then issued a final decision finding no discrimination in Mr. Brown’s non-selection for that position. See Report of Investigation in the Complaint of Mr. James E. Brown, Docket # 07-77-005-E, Slip Op. at 6 (U.S. Army Civilian Appellate Review Office, May 25, 1977) (“Report”). See also Memorandum from Commanding General, HQ, V Corps, to Darrow Varner (June 22, 1977) (adopting Report as Army decision). That decision also declined to determine the merits of Mr. Brown’s complaint with respect to the Housing Management Assistant position on the ground that Mr. Brown had not included that allegation, about which he filed a complaint on September 6, 1976, in his original grievance. See Report at 3. On appeal, the EEOC affirmed the Army’s decision on the Supervisory Space Utilization position, but reversed as to the Housing Management Assistant position. The EEOC concluded that the September 6, 1976 complaint, although filed well after the original grievance, was sufficient to raise the issue. The EEOC also held that, by accepting for investigation the allegations in the September 6, 1976 complaint, the Army had “waived the question of timeliness.” See Brown v. Department of the Army, EEOC Appeal No. B01770402, Slip Op. at 2 (Jan. 30, 1981). This decision was, in my view, entirely erroneous. See Oaxaca v. Roscoe, 641 F.2d 386, 390 (5th Cir.1981).

The Army, then, has proceeded with Mr. Brown’s case only because of two erroneous decisions of the EEOC and its prede *22 cessor. 5 Even though there is no statutory provision permitting an agency to appeal rulings of the EEOC, the Army can scarcely be deemed to be precluded by these decisions from advancing its long-adhered to position with respect to the untimeliness of Mr. Brown’s complaints. To hold otherwise would, among other things, be contrary to the policies undergirding the well-established principle that agency action is presumptively subject to judicial review. Moreover, the policy considerations favoring the finality of EEOC determinations, most notably the Congressional preference for resolving discrimination matters without resorting to the courts, evaporate once a Title VII plaintiff files a civil action against his or her agency. Such a plaintiff must therefore assume the risk that EEOC decisions favorable to his position might be judicially overturned.

Mr. Brown not only has failed to establish any misconduct on the part of the Army, he has also failed to meet the second prong of the GAO test by showing that dismissal of his complaint would produce an egregiously unfair result. Mr. Brown appears to have been promoted to the Supervisory Space Utilization Specialist position soon after the date, in December 1975, on which he claims to have been denied the position. At least as of May 25, 1977, when the Army examiner issued his report, Mr. Brown’s position was listed as “Supervisory Space Utilization Specialist, GS-301-8.” See Report at 23. And although Mr. Brown no doubt has expended a great deal of energy in prosecuting this action, I am dismayed to conclude that Mr. Brown seems to derive considerable satisfaction from the very process of litigation. This horribly prolix record contains employment applications in which appellant actually boasts of his vast litigation experience.

This, then, is just not the sort of case where the Army should be equitably es-topped or otherwise precluded from raising its filing requirements as a defense. Even if I agreed with the court that some less stringent equitable theory applied, I would still conclude, on the basis of the facts above, that the equities do not in this case warrant “equitable tolling” of the thirty-day period.

My disagreement with the court’s reasoning is thus rather complete. I think it is clear from the pleadings and from the other evidence before the district court that Mr. Brown failed to consult an EEO counselor within 30 days of the allegedly discriminatory non-selections at issue here. I think it equally clear that the Army did not waive or extend the time limits, and was not and is not now required by equitable considerations to do so. Rather, the Army rejected both of the complaints at issue here as untimely, and has steadfastly maintained, as it is entitled to do, that Mr. Brown was out of time. From this record, it appears to me, as it did to the district court, that the Army is quite right. 6

I would therefore affirm the district court’s decision.

. Since this failure is a sufficient ground for dismissal, I find it unnecessary for this court, or the district court, to decide whether Mr. Brown complied with the 15-day time limit for filing a formal administrative complaint. See 29 C.F.R. § 1613.214 (a)(l)(ii) (1985). The pertinent regulations as set forth in the current volume of C.F.R. are essentially the same as those in effect during the period with which this case is concerned.

. The "statute of limitations” analogy may not, however, be appropriate in all cases involving these particular time limits. Unlike the requirement of 42 U.S.C. § 2000e-16(c) that a plaintiff file a civil action within 30 days of the agency’s final action, see e.g., Coles v. Penny, 531 F.2d 609 (D.C.Cir.1976), and the requirement of § 2000e-5(e) that a complainant file an EEOC action within 180 days of the allegedly discriminatory action, see e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385 , 102 S.Ct. 1127 , 71 L.Ed.2d 234 (1982), the time limits at issue here are purely administrative. Thus, for example, it is doubtful that an agency could successfully assert noncompliance with its time limits as a ground for dismissal if the agency accepted, investigated, and decided the merits of a complaint without ever raising the timeliness issue. Cf. Saltz v. Lehman, 672 F.2d 207 (D.C.Cir.1982). But such a case is not before us.

. The position apparently was filed on August 21, 1975. See Appellant’s Reply Brief at 5a.

. The Supreme Court in Schweiker v. Hansen, 450 U.S. 785 , 101 S.Ct. 1468 , 67 L.Ed.2d 685 (1981), for example, reversed a Second Circuit decision holding that the Social Security Administration (SSA) was estopped to deny mother’s insurance benefits to an applicant for failure to comply with the SSA’s procedural requirement that such applications be in writing. The Court specifically disapproved the distinction, drawn by the court below, between the applicant’s "substantive eligibility" and her failure to satisfy a "procedural” requirement. See id. at 790 , 101 S.Ct. at 1472 .

. The Army is, of course, obligated under 29 C.F.R. § 1613.205 to comply with orders of the EEOC.

. The majority also relies upon this court's recent decision in Loe v. Heckler, 768 F.2d 409 (D.C.Cir.1985). See Maj.Op. at 13. Upon analysis, however, Loe provides scant support for the result reached today. The Loe court made it clear that the complainant in that case had complied fully with the applicable filing deadlines inasmuch as the filing periods had begun to run when the complainant discovered the agency’s discriminatory acts rather than when those acts occurred. See Stoller v. Marsh, supra, 682 F.2d at 974 . Mr. Brown, by contrast, has not contended that his failure to comply with the 30-day requirement resulted from his not knowing that the alleged discriminatory acts had occurred. It is neither unreasonable nor unduly technical for an agency, in a case such as this, to insist that a Title VII complainant comply with the straightforward requirement that he or she timely consult with an EEO counselor.