Petition for Writ of Certiorari — Chawla v. McCausland

A. 1 | FILED

au L589 MAR 2 7 1991

No : | pence OF THE CLERK

}

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

AKHLAQ A. CHAWLA,

Petitioner,

vs.

CHARLES McCAUSLAND, Lt. Gen., Director,

Defense Logistics Agency.

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals For the

Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

AKHLAQ A. CHAWLA

5210 South Ventura Way

Aurora, Colorado 80015

(303) 690 - 9867

Pro Se for Petitioner

QUESTION PRESENTED FOR REVIEW

Whether the United States District

Court and the United States Court of

Appeals erred in denying petitioner's

claim of equitable tolling of the 30 day

time limit as required by 42 U. S. Cc. §

2000e-16(c), although, both the Courts

agreed that the said time limit is not a

jurisdictional prerequisite, but a

requirement that, like a statue of

limitation, is subject to equitable

tolling.

om

TABLE OF CONTENTS

Page

Question presented for review ...... 1

Un Oe ONE cece cca ce enn aces ii

a eee eee eee ee iii

Ren ROOD onc ce ec wee eens iv

OPEC cee cee Cheech dS eee eenes 2

EP cc 56465 666646 H cen eenens 2

Constitutional and Statutory

Provisions Involved .............. 3

Statement of the Case .............. 3

Reasons for Granting the Writ ...... 7

EES Ee ee ee 14

-ii-

TABLE OF AUTHORITIES

Page

Burnett v. New York C. R. Company,

ee es a ET ee che ae ee on 8

Jacobson v. Indianapolis Power and

Light Company,

163 F. Supp 218 (DC Ind. 1958) ..... g

Manning v. Carlin,

786 F. 2d 1108-1109 (llth Cir. 1986) 13

Martinez v. Orr,

738 F. 2d 1107 (10th Cir. 1984) .... -

Mondy v. Secretary of the Army,

845 F. 2d 1052 (D. C. Cir. 1988) ... 11

Paulk v. Department of the Air Force,

Chanute Air Force Base,

830 F. 2d 70, 80 (7th Cir. 1987) ... 12

Warren v. Department of Army,

867 F. 2d 1156 (8th Cir. 1989) .... 10

Washington v. Ball,

S90 F. 2d 413 (llth Cir. 1969) ..... 12

Williams v. Army and Air Force Exchange

Service,

830 F. 2d 27, 31 (3rd Cir. & 3 f eb

STATUTORY PROVISIONS

nah. dt. a ee re 3

42 U. S.C. S 2000e-16(c) .. i,3,6,9,11,13

420. &. C. S$ 2000e-S(£)(1)........... ll

-iii-

————,

INDEX TO APPENDICES

Appendix: PAGE

A. Opinion of the United States

Court of Appeals for the

Sixth Circuit, No. 90-3680,

dated: January 30, 1991 .... A-1l

B. Opinion of the United States

District Court for Southern

District of Ohio,

Ma. C2<-9O-946 .cccncesececses A-3

C. Opinion of the United States

District Court for the

District of Colorado,

No. B9-F-250 ...cccccccccess A-5

D. Copy of the Notice of Final

Agency Decision, dated:

January 12, 1989 .......505- A-6

E. Section C of the 42 U. S. C.

S 2000e-16(c) .. cc cence cvees A-8

F. Petitioner's Motion to

Transfer submitted in United

States District Court for

the District of Colorado,

dated: May 12, 1989 ........ A-9

G. Copy of ‘Reply Brief of

Appellant’ filed in the

United States Court

of Appeals on

October 16, 1990

-iv-

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

AKHLAQ A. CHAWLA,

Petitioner,

vs.

CHARLES McCAUSLAND, Lt. Gen., Director,

Defense Logistics Agency.

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals For the

Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

The petitioner Akhlaq A. Chawla

respectfully prays that 7 writ of

certiorari issue to review the judgment

and opinion of the United States Court of

Appeals for the Sixth Circuit entered in

this case on January 30, 1991.

-l-

OPINIONS BELOW

Ae The opinion of the United

States Court of Appeals for the Sixth

Circuit is reported as Chawla Vv.

McCausland (90-3680) and appears in the

Appendix A to this petition.

Zs The opinion of the United

States District Court for the southern

district of Ohio is reported as Chawla v.

McCausland (No. C2-90-94) and appears in

the Appendix B to this petition.

as The opinion of the United

States District Court for the district of

Colorado is reported as Chawla Vv.

McCausland (89-F-250) and appears in the

Appendix C to this petition.

JURISDICTION

The judgment of the United States

-2?-

Court of Appeals for the Sixth Circuit

was entered on January 30, 1991. This

Petition for Writ of Certiorari is within

90 days of that date. This Court's

jurisdiction is invoked under 28 U. S. C.

S 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Section C of the 42 U. S. C. S 2000e-

16 which is set forth in Appendix E of

this petition.

STATEMENT OF THE CASE

Petitioner, Pro se, Akhlag A. Chawla

received Notice of Final Agency Decision

(dated: January 12, 1989) on January 17,

1989 (Appendix D to this petition).

On February 13, 1989 (27th day

following the receipt of agency's final

decision), the petitioner instituted a

-3-

civil action against the Agency and filed

a Complaint in the United States District

Court for the district of Colorado

believing in GOOD FAITH that the Venue was

proper in that Court.

On April 27, 1989, the respondent had

filed a motion to dismiss complaining

that the venue was not proper in the

District Court for the district of

Colorado.

On May 12, 1989, the petitioner moved

a ‘Motion to Transfer’ the case in the

United States District Court for the

Eastern District of Missouri, where the

Venue was proper. (See Appendix F for a

copy of motion to transfer. )

On May 15, 1989, the District Court

for the District of Colorado dismissed

the petitioner's civil action without

-4-

prejudice saying that the "Parties

_ Disagree as to Whether Venue was Proper in

Missouri or Ohio’. (See Appendix C for a

copy of the Court Order.)

Pursuant to F.R.C.P. Rule 41(b),

dismissal without prejudice did not

operate as an adjudication upon merits.

Meeting the requirements of F.R.C.P. Rule

15(c), which states in part:

"Whenever the claim oor defense

asserted in the amended pleading arose out

of the conduct, transaction, or occurrence

set forth or attempted to be set forth in

the original pleading, the amendment

relates back to the original pleading."

The petitioner filed an "Amended

Complaint’ in the United States District

Court for the Southern District of Ohio

on January 25, 1990 (about 8 months and 10

days following the dismissal without

prejudice from the District Court of

Colorado).

On June 22, 1990, the United States

District Court for the Southern District

of Ohio agreed that the 30 day time limit

as required by 42 U. S. C. S 2000e-16(c)

was not jurisdictional. At the same time,

the Court dismissed the petitioner's

"Amended Complaint' denying equitable

tolling of the 30 day time limit. (See.

Appendix B for a copy of the

Court Order.)

By order dated January 30, 1991, the

United States Court of Appeals for the

Sixth Circuit dismissed the petitioner's

Appeal without acknowledging:

i) the fact that the petitioner, pro

se, had instituted the civil action in

the United States District Court for the

district of Colorado within 30 day time

limit, as required by 42 U. S. Cc. S 2000e-

16(c), and

ii) the petitioner's ‘Reply Brief of

Appellant’, which included arguments for

entitlement to equitable tolling.

(See Appendix A for a copy of the order

from the Court of Appeals for the Sixth

Circuit and Appendix G for a copy of

"Reply Brief of Appellant’. )

REASONS FOR GRANTING THE WRIT

The Certiorari in this case should be

granted for the following reasons:

A. The Notice of Final Agency

Decision (Appendix D to this petition)

stated in paragraph No. 5:

"In lieu of an appeal to the office

of review and appeal, EEOC, you may file a

civil action in an appropriate United

States District Court..."

The Agency did not clearly instruct

petitioner (pro se) specific information

pertaining to United States District Court

-7-

of Proper Venue.

B. The United States District Court

for the District of Colorado erred in

denying petitioner's ‘Motion to — oe

the case to United States District Court

for the Southern district of Missouri,

where the Venue was proper. In Jacobson v.

Indianapolis Power and Light Company, 16

3 F. Supp 218 (DC Ind.), 1958, the Indiana

District Court ruled:

"In granting transfer to cases under

28 USC 1406(a) weight can be given to fact

that Plaintiff brought his action in

mistaken belief that venue is proper."

In Burnett v. New York C. R. Company,

380 US 424, 1965, the United States

Supreme Court heid that:

“When dismissal of action for

improper venue will terminate rights

without hearing on merits because

plaintiff's action will be barred by

statue of limitations, interest of justice

requires that the case be transferred."

-8-

C. The majority of the Circuit

Courts agree to the fact that the 30 day

time limit as required by the 42 U. S. C.

S 2000e-16(c) is not jurisdictional and is

subject to equitable tolling. Both the

Court of Appeals for the Sixth Circuit and

the District Court for the Southern

District of Ohio agreed to the

aforementioned fact, but, erred in denying

equitable tolling to the petitioner's

case.

Opinions of Circuit Courts, as

recorded in the following cases,

vehemently support entitlement of

equitable tolling to the petitioner's

case:

i) In Martinez v. Orr, 738

F.2d 1107 (10th Circuit 1984), on August

12, 1981, Martinez received a notice

informing him of the EEOC final decision

and of his right to file a civil action.

-9-

On August 27, 1981, Martinez

requested reconsideration, which was

denied by EEOC on May 24, 1982.

On June 16, 1982 (about 10

months and 5 days after Martinez received

EEOC final decision giving him right to

file a civil action), Martinez filed civil

action. The 10th Circuit held that:

"Unlike district court, however,

we are persuaded that under the

circumstances of this case , equitable

considerations require that Martinez be

allowed to proceed with his claim."

(Martinez Page 1109)

The 10th Circuit continued:

"We refuse to hold that in

seeking to pursue all administrative

avenues before resorting to litigation

Martinez thereby waived his right to sue,

when nothing on the face of the notice he

received explicitly foretold such a

result." (Martinez Page 1112)

ii) In Warren v. Department

of Army, 867 F.2d 1156 (8th Circuit,

1989), on May 5, 1987, Warren received a

-10-

copy of the EEOC final decision along with

notice of right to file civil action.

On May 29, 1987, filing of civil

action by Warren was recorded in the

district court.

The United States Attorney was

not served until July 9, 1987, i.e., 35

days after the thirty days time period had

expired.

The District Court had dismissed

Warren's complaint with prejudice,

because Warren had failed to name proper

defendant, i.e., ‘the Secretary of the

Army" and that an Amended Complaint per

Rule 15(c) was not permissible. The 8th

Circuit held that:

"We see no reason to distinguish

section 2000e-5(f)(1) from section 2000e-

16(c) for purpose of equitable tolling."

(Warren Page 1159)

Quoting Mondy v. Secretary of

-ll-

ee

the Army, 845 F.2d 1052 (D.C. Circuit

1988); Paulk v. Department of the Air

Force, Chanute Air Force Base, 830 F.2d

70, 80 (7th Circuit 1987); and Williams v.

Army and Air Force Exchange Service, 830

F.2d 27, 31 (3rd Circuit 1987), the 8th

Circuit agreed that:

"It would be a simple matter to

provide in the right to sue letter [clear]

information as to who should be named as

defendant." (Warren Page 1160)

The circuit court allowed equity

toll the running of the period against

Warren and permitted him amendment to his

complaint substituting the Secretary of

the Army for the Department of the Army

allowing application of F.R.C.P. Rule

15(c).

iii) In Washington v. Ball,

890 F.2d 413 (llth Circuit 1989),

Washington received his Agency's final

notice on August 26, 1988. Washington

-12-

filed instant complaint in the D.C.

District Court (where the Venue was not

Proper) on October 25, 1988 (i.e., 60 days

after Washington received his right to sue

letter).

The B.C. District Court

transferred the case to District Court for

the Middle District of Georgia, where

the Venue was Proper. The Georgia District

Court dismissed the case granting the

Secretary's motion to dismiss pursuant to

42 U. S. C. S 2000e-16. The llth Circuit

held that:

"Compliance with the 30 day time

limit, however, is not a prerequisite to

the district court's jurisdiction; the

thirty day limit is similar to a statue of

limitation and is subject to a equitable

tolling." (Washington Page 414)

Quoting Manning v. Carlin, 786

F.2d 1108, 1109 (llth Circuit 1986), the

llth Circuit held that:

-13-

"Just as the statue is tolled

where a plaintiff is mislead by the

Secretary, the statue should be tolled

when a plaintiff is mislead by the court."

(Washington Page 415)

CONCLUSION

For the reasons set forth above, a

writ of certiorari should be granted to

review the judgment of the United States

Court of Appeals for the Sixth

Circuit.

Respectfully submitted,

AKHLAQ A. CHAWLA

Pro se for Petitioner

Dated:

-]14-

APPENDIX

APPENDIX A

No. 90-3680

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AKHLAQ A. CHAWLA, ) Filed

) Jan. 30, 1991

‘ Plaintiff- Appellant, )

Vv.

CHARLES McCAUSLAND, ) LEONARD GREEN

LT. GN. Director, ) Clerk

Defense Logistics )

Agency, ) ORDER

)

Defendant-Appellee )

BEFORE: GUY AND BOGGS, Circuit judges;

and LIVELY, Senior Circuit

Judge.

This pro se plaintiff appeals the

district court's order dismissing his

employment discrimination action as unt-

imely. The appeal has been referred to a

panel of the court pursuant to Rule 93(a),

Rules of the Sixth Circuit. The panel

unanimously agrees that oral argument is

not necessary. Fed. R. App. 34(a).

Akhlaq Chawla sought reinstatement,

back pay, monetary damages and other

A-1

relief in this employment discrimination

suit filed under Title VII, 42 U.S.c. §

2000-16(c). He alleged that defendant

employer discriminated against him on the

basis of religion and national origin.

Chawla first pursued administrative

remedies. He received a "Notice of final

Agency Decision" on January 17, 1989,

advising him of his right to file a civil

action "in an appropriate U. S. District

Court within 30 days of receipt of the

final agency decision."

Upon review, we conclude that the

district court properly dismissed _ the

complaint as untimely. The statue provides

that a plaintiff may bring a civil action

within thirty days of receipt of a notice

of final agency decision. 42 U. S. Cc. §S

2000e.16(c). Chawla received the notice on

January 17, 1989. He did not

file his complaint in the U.S. District

Court for the Southern District of Ohio

A-2

until January 25, 1990, more than one year

later. Moreover, Chawla was not entitle to

equitable tolling of the time limit. While

the concept of equitable tolling may be

applied to filing requirements in Title

VII cases, Chawla did not demonstrate that

he was entitled to such relief. Chawla's

remaining arguments lack merit.

Accordingly, the district court's

judgment is hereby affirmed. Rule 9(b)(5),

Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

Clerk

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

FILED...

AKHLAQ A. CHAWLA Jun 22 ... ‘90

Civil Action

Plaintiff No. C-2-90-0094

Vs .

LT. GEN. CHARLES McCAUSLAND,

DIRECTOR, DEFENSE LOGISTICS

AGENCY

Defendant

ORDER

Plaintiff Akhlaq A. Chawla brings

this action under 42 U.S.C. S 2000e-16(c)

alleging employment discrimination based

upon his national origin (Pakistan) and

religion (Islam) by his former employer,

The Defense Logistics Agency and the

Defense Construction and supply Center.

This matter is before the court. on

defendant's motion to dismiss.

It is undisputed that plaintiff

received copy of his Agency's’ final

decision denying his claim of employment

A-4

a

discrimination and notifying him of his

right to institute a civil action within

30 days on January 17, 1989. Plaintiff did

initiate a civil action within 30 days;

however, he filed that suit in the United

States District Court for the District of

Colorado. On May 15, 1989 that court

dismissed the suit without prejudice. The

Court denied plaintiff's motion to

transfer the case. The complaint herein

was not filed until January 25, 1990.

There is 30 day statute of limitation

under 42 U.S.C. S 2000e-16(c). Although

the limitation period is not § juris-

dictional, Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 393 (1982), plaintiff

has set forth no facts which would permit

equitable tolling of limitation period. cf

Martinez v. Orr, 738 F.2d 1107, 1109 (10th

Cir. 1984). Since this suit was not filed

within 30 days of plaintiff receiving

notice of the Agency's final decision and

A-3S

a

was filed more than 200 days after the

United States District Court of the

District of Colorado dismissed the

complaint he filed there, the Court HOLDS

that this suit is barred by 42 U.S.C. §

2000e-16(c).

Defendant's April 12, 1990 motion to

dismiss is GRANTED. This action is hereby

DISMISSED. The Clerk of the Court is

DIRECTED to enter JUDGMENT for defendant.

George C. Smith, Judge

United States District Court

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

AKHLAQ A. CHAWLA, PaE@G sac

May 15, 1989

Plaintiff

vs.

LT. GEN CHARLES McCAUSLAND,

DIRECTOR, DEFENSE LOGISTICS

AGENCY,

Defendant.

ORDER

This matter comes before the court on

defendant's motion to dismiss, and

plaintiff's motion to transfer. On April

27, 1989, defendant moved to dismiss this

case for improper venue. By order of the

court on April 27, 1989, plaintiff was

directed to respond on or before May 12,

1989. To date, no response has_ been

received. Instead, plaintiff moved to

transfer this case to the Eastern District

of Missouri. The parties disagree as to

whether venue is proper in Missouri or

A-7

Ohio.

Accordingly, plaintiff's motion

transfer is DENIED. Defendant's motion

dismiss is GRANTED, and this case

dismissed without prejudice.

Done this 15 day of May, 1989

denver, Colorado.

By the Court:

Sherman G. Finesilver, Chief Judge

United States District Court

to

to

is

at

APPENDIX D

DEFENSE LOGISTICS AGENCY

DEFENSE CONSTRUCTION AND SUPPLY CENTER

POST OFFICE BOX 3990

COLUMBUS, OHIO 43216-5000

In reply

refer to DCSC-DC 12 JAN 1989

SUBJECT: Notice of Final Agency decision

Akhlagq A. Chawla - CA-88-016

To: Mr. Akhlaq A. Chawla

2231 S. Vaughn Way, Unit 114-B

Aurora, Colorado 80014

hs On 13 December 1988 you were given a

Notice of Proposed Disposition of Discri-

mination Complaint. That letter proposed a

finding of no discrimination be made in

your case. Your were given fifteen (15)

days in which to reply if you were dissat-

isfied with the proposed disposition of

your complaint. We have not received a

response to our letter.

- This is to notify you of the adoption

of the proposed disposition of no discrim-

ination dated 13 December 1988 as the

Final Agency Decision in your case. If you

A-9

ill

are not satisfied with this decision, you

have the following appeal rights.

3. Your may file an appeal with the

Director, Office of Review and Appeals,

Equal Employment Opportunity Commission

(EEOC), 5203 Leesburg Pike, Suite 900,

Falls Church, Virginia 22041. A copy of

your statement or brief in support of your

appeal must also be submitted to the

Director of Equal Employment Opportunity,

ATTN: DLA-KE, Cameron Station, Alexandria,

Virginia 22314. An appeal to the EEOC must

be submitted within the time limits speci-

fied by Title 29 of the Code of Federal

Regulations, Section 1613.233, which

states the following:

"(a) Except as provided in paragraph (b)

of this section, a complainant may file a

notice of appeal at any time up to 20 days

after receipt of the agency's notice of

final decision on his or her complaint. An

appeal shall be deemed filed on the date

it is postmarked, or in the absence of a

postmark, on the date it is received by

the commission. Any statement or brief in

support of the appeal must be submitted

to the commission and to the defendant

A-10

Ee

an

agency within 30 calendar days of filing

the notice of appeal. For purposed of this

part, the decision of an agency shall be

final only when the agency makes a deter-

mination of all of the issues in the com-

plaint, including whether or not to award

attorney's fees or costs. If a determinat-

ion to award attorney's fees or costs is

made, the decision will not be final until

the procedure is followed for determining

the amount of the award as set forth in

(Section) 1613.271 (c)."

KEK KKEKKKKKEKKKKKKEKKKEKE

"(c) The 20-days time limit within which

a notice of appeal must be filed will not

be extended by the Commission unless,

based upon written statement by the compl-

ainant showing that he or she was not

notified of the prescribed time limit and

was not otherwise aware of it or that cir-

cumstances beyond his or her. control

prevented the filing of Notice of Appeal

within the prescribed time limit, the com-

mission exercises its discretion to extend

the time limit and accept the Appeal."

4. If you elect to appeal to the office

of Review and Appeals, EEOC, you may file

a civil action in a U.S. District Court

within 30 days of receipt of the EEOC

final decision.

~ In lieu of an appeal to the Office of

Review and Appeals, EEOC, you may file a

A-1l

civil action in an appropriate U. S.

District Court within 30 days of receipt

of the final agency decision.

6. A civil action may also be filed any

time after 180 days of the date of initial

appeal to EEOC if a final decision has not

been rendered.

a If you file a civil action, and you

do not have an attorney or are unable to

obtain one, the U. S. District Court may,

in its discretion, appoint counsel to rep-

resent you upon your request for appoint-

ment of counsel.

JAMES J. MILLER

1 Encl Colonel, USAF

Chief of Staff

cc: DLA-KE

APPENDIX E

42 U. S. C. S 2000e-16(c) requires

that:

"Within thirty days of receipt of

notice of § final action taken by a

department, agency or |. ae on a

complaint of discrimination based on race,

color, religion, sex or national origin...

an employee...if aggrieved by the final

disposition of his complaint,... may file

a civil action as provided in section

2000e-5 of this title....

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

CIVIL ACTION NO. 89-F-250 Filed...

89 May 1l2..

AKHLAQ A. CHAWLA,

PLAINTIFF,

Vi.

LT. GEN. CHARLES McCAUSLAND,

DIRECTOR, DEFENSE LOGISTICS

AGENCY,

DEFENDANT.

MOTION TO TRANSFER

Plaintiff states as under in support

of Motion to Transfer:

Re It has been more than 400 days

Since the Plaintiff was separated from

United States Government Employment.

2. Pursuant to Federal Personnel

Manual Chapter 296 Subchapter 33, Official

Personnel Folders are required to be

transferred to ‘National Records Center,

St. Louis, Missouri, 90 to 120 days after

A-14

oe aa... ee

termination of federal employment.

a. Pursuant to Provisions of

U.S.C. 2000e-£(5)(3) Venue in the above

captioned case is Proper in the VU. §

District Court of St. Louis, Missouri.

Wherefore, based on the facts stated

above , pursuant to applicable federal!

rules of civil procedures , to transfer

this case to U. S. District Court St.

Louis, Missouri, and to grant such other

relief as to the court seems just and

proper.

Respectfully Submitted

(AKHLAQ A. CHAWLA)

Plaintiff,

Dated: 12th May, 1989.

5210 S. Ventura Way

Aurora, Colorado 8s0015

»

'

15

APPENDIX G

UNITED STATES COURTS OF APPEALS

FOR THE SIXTH CIRCUIT

Case No. 90-3680

AKHLAQ A. CHAWLA

Plaintiff - Appellant

V.

CHARLES McCAUSLAND, Lt. Gen., Director,

Defense Logistics Agency

Defendant - Appellee

AKHLAQ A. CHAWLA

PLAINTIFF ~- APPELLANT

(PRO SE)

5210 S. VENTURA WAY

AURORA, COLORADO 80015

Telephone: (303) 690-9867

be

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES .....cccccveces 3 & 4

REPLY STATEMENT OF ISSUE ........... |

REPLY STATEMENT OF FACTS ........... 5

REPLY STATEMENT OF THE CASE ........ 2

REPLY ARGUMENTS:

i) THE DEFENSE LOGISTICS AGENCY'S

DEFENSE CONSTRUCTION AND SUPPLY

CENTER, WHILE ISSUING RIGHT TO SUE

LETTER TO APPELLANT, FAILED TO INCL-

UDE INFORMATION PERTAINING TO U. S.

DISTRICT COURTS OF PROPER VENUE .... 8

ii) THE U. S. DISTRICT COURT FOR THE

DISTRICT OF COLORADO ERRED IN DENYING

APPELLANT'S ‘MOTION TO TRANSFER’ TO A

DISTRICT OF PROPER VENUE AND DISMISSING

THE APPELLANT'S COMPLAINT .......... 9

iii) THE U. S. DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF OHIO DID

NOT ERR IN HOLDING THAT THE 30 DAY

PERIOD AS REQUIRED BY 42 U.S.C.

2000e-16(c) was non-jurisdictional 9 & 10

iv) THE U. S. DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF OHIO ERRED

IN DISMISSING THE APPELLANT'S

AMENDED COMPLAINT WITHOUT DETERMIN-

ING AND APPLYING EQUITABLE TOLLING

OF THE OF 30 DAY TIME LIMIT AS

REQUIRED BY 42 U.S.C. 2000e-16(c)... 10

TOLLING DETERMINATION ...........4.. 12

REPLY CONCLUSION 2... ccscccvcccsssccs 13

TABLE OF AUTHORITIES

CASES

PAGES

Jacobson v. Indianapolis Power and

Light Co.,

163 F. Supp 218 (D.C. Ind, 1958) 9

Burnett v. New York C. R. Co.,

see Us. 420 5 SOOO Ce cea ees cies. 9

Washington v. Ball,

890 F.2d 413 (llth Cir. 1989) 9 & 10

Bates v. Tennessee Valley Authority,

851 F.2d 1366 (llth Cir. 1988) .. 10

Warren v. Department of Army,

867 F.2d 1156 (8th Cir. 1989) ... 10

Zipes v. Trans World Air Lines,

S55 U.S. DOS. Dew CEOees es cccese 10

James v. United States Postal Service,

835 F.2d 1265 & n.2 (8th Cir. 1988) 10

Mondy v. Secretary of the Army,

845 F.2d 1051-57 (D.C. Cir. 1988) 10

Thomas v. KATV Channel 7,

692 F.2d 548-50 & n.2

(8th Cir. 1982), Cert. denied,

466 GU... TOSS CEPSS) he vee vivvess 10

Martinez v. Orr,

738 F.2d 1107 (lOth Cir. 1984) 10 6& 1l

Parks v. Dunlop,

517 F.24@ 785 (Sth Cir. 1975) .... - 1l

Douglas v. Hampton,

512 F.2d 976, 981 (D.C. Cir.1975) ll

A-18

Davis v. Valley Distribution Co.,

S22 F.2d 827, 832 (Sth cir. 1975),

Cert. denied, 429 U.S. 1090 (1977)

Carlile v. South Routt School

District RE 3-J,

652 F.2d 981, 986 (lOth Cir. 1981)

Gonzalez-Aller Balseyro v.

GTE Lenkurt, Inc.,

2 eS EG.) ) ren

Wilkerson v. Siegfried Insurance

Agency,

683 F.2d 344, 348 (10th Cir. 1982)

Cottrell,

I 9 te se ee oak we ee

11

ll

12

12

12

REPLY STATEMENT OF ISSUE

i) THE DEFENSE LOGISTICS AGENCY'S DEFENSE

CONSTRUCTION AND SUPPLY CENTER, WHILE

ISSUING RIGHT TO SUE LETTER TO APPELLANT,

FAILED TO INCLUDE INFORMATION PERTAINING

TO U. S. DISTRICT COURTS OF PROPER VENUE

ii) THE U. S. DISTRICT COURT FOR THE

DISTRICT OF COLORADO ERRED IN DENYING

APPELLANT'S ‘MOTION TO TRANSFER’ TO A

DISTRICT OF PROPER VENUE AND DISMISSING

THE APPELLANT'S COMPLAINT

iii) THE U. S. DISTRICT COURT FOR THE 0

SOUTHERN DISTRICT OF OHIO DID NOT ERR IN

HOLDING THAT THE 30 DAY PERIOD AS REQUIRED

BY 42 7.8.6. 2000e-16(c) was non-

jurisdictional

iv) THE U. S. DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO’ ERRED IN

DISMISSING THE APPELLANT'S AMENDED

COMPLAINT WITHOUT DETERMINING AND APPLYING

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EQUITABLE TOLLING OF THE OF 30 DAY

TIME LIMIT AS REQUIRED BY 42 U.S.C.

2000e-16(c)

REPLY STATEMENT OF THE FACT

This case comes before this court of

Appeals for review of equitable tolling of

30 day time period as required by 42

U.S.C. 2000e-16(c) as set forth in the

COURSE OF PROCEEDINGS AND ARGUMENTS BELOW.

REPLY STATEMENT OF THE CASE

Course and Disposition of Proceedings

AKHLAQ A. CHAWLA, Plaintiff-

Appellant, Pro Se, started working with U.

S. Government since March 25, 1985, and

the Appellant was a resident of State of

Colorado since 1981. The Appellant worked

at U.S. ARMY, Tooele Army Depot, Tooele,

Utah, as a "Career Conditional’,

Mechanical Engineer, GS-830-1l

(Target GS-830-12) from March 25, 1985 to

April 11,1987, which included initial

probationary period, i.e., from March 25,

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1985 to March 24, 1986. The Appellant had

"Competitive Status’ beginning March 25,

1986 and was eligible for *Non-

Competitive’ promotion to Grade GS-830-12.

Effective from April oe 1987,

Appellant's services were '‘Transferred'

from 'Tooele Army Depot' to Defense

Logistics Agency's (DLA) Defense

Construction and Supply Center (DCSC),

Columbus, Ohio, with a grade promotion,

i.e., Mechanical Engineer, GS-830-12.

Appellee, discriminating on the basis

of Appellant's National Origin, i.e.,

PAKISTAN and Appellant's Religion, i.e.,

Islam,y required Appellant to complete

"An Additional Year Of Probationary

Period' beginning April k2, 1987.

Requiring to complete an additional

year of probationary period from a

"TRANSFEREE' is a violation of Federal

Personal Manual (FPM) Chapter a33,

Subchapter 8-2(e) which states in part:

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"The employee does not have to serve

a new probationary period after position

change or transfer, regardless of a change

in his line of work".

On March 25, 1988, (After 11 1/2

month s service) Appellee, discriminating

Appellant on the basis of his National

Origin (PAKISTAN)and his Religion (ISLAM),

terminated Appellant's services with U. S.

Government, treating Appellant as a

"Probationer' rather than a ‘Competitive

Status'(or Permanent) employee (Note:

Appellant had ‘Competitive Status" since

March 25, 1986.)

Following exhaustion of EEO and

Administrative proceedings on Appellant's

Complaint on aforementioned basis, DCSC

issued ‘Final Decision’ on January 12,

1989 (received by Appellant on January 17,

1989).

On February 13, 1989 (27th day

following the receipt of ‘agency's final

decision’), Appellant, Pro Se, complying

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the 30 day time limit, instituted a civil

action in the U.S. District Court for the

District of Colorado believing in ‘GOOD

FAITH' that the 'VENUE' was proper in the

Court for the District of Colorado.

Appellant alleged discrimination on

aforementioned basis, prohibited by Title

VII of the Civil Rights Acts of 1964, as

amended, 42 U.S.C. 2000e-16, et. seq.

and 42 U.S.C. S 1981, "Equal Rights under

the Law".

On April 27, 1989, Appellee, filed a

motion to dismiss complaining that venue

was not proper in the district court for

the district of Colorado and that

venue was proper in the district court for

the southern district of Ohio.

Knowing that pursuant to requirements

of 42 U.S.C. 2000e-5(£)(3), VENUE was

proper in two (2) judicial districts,

SG. 4) Eastern District of Missouri,

where employment records relevant to

A-24

unlawful employment practice had been

maintained, [Note: According to FPM

Chapter 296-31, Official Personnel Folders

are transferred to ‘National Personnel

Record Center, St. Louis, Missouri, 90 to

120 days after termination of Federal

Employment. About 439 days from the date

of termination and about 144 days from the

date of receiving final agency's notice

had elapsed at the time of filing of the

"Motion to Transfer'. ]

ii) Southern District of Ohio, where the

alleged unlawful employment practice had

been committed,

Appellant on May 12, 1989, moved a ‘Motion

to Transfer in the court for the district

of Colorado requesting to ‘'Transfer' the

action to the court for the Eastern

District of Missouri, where the ‘National

Personnel Record Center’ was located and

the 'VENUE' was proper.

On May 15, 1989, the court for the

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District of Colorado recorded Appellee's

motion to dismiss and Appellant's Motion

to Transfer the action to Eastern District

of Missouri (i.e., District of Proper

Venue). The court ordered to grant the

Appellee's motion to dismiss and denied

Appellant's Motion to Transfer. The court

dismissed the Appellant's action without

prejudice saying that "the parties

disagree as to whether venue is proper in

Missouri or Ohio". The U.S. District Court

for the District of of Colorado's Order

dated May 15, 1989 (received by Appellant

on May 1989), failed to inform Appellant

(Pro Se) legal avenues available to

further pursue his rights.

Receiving the dismissal order, dated

May 15, 1989 (received by Appellant on May

19, 1989), from the Court for the District

of Colorado, Appellant (Pro Se) decided to

amend the Original Complaint and to

instituting the action in a district of

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proper venue. Accordingly, Appellant

started amending the complaint.

From July 27, 1989 to November 30, 1989,

Appellant was working in state of Missouri

on a temporary job and was unable to work

on amended complaint (Note: Appellant was

unemployed since March 25, 1988).

Appellant returned to home (Colorado)

on December 2, 1989, studied Federal

Personnel Manual (i.e., U. S. Government

Employment Law), amended the complaint,

and mailed the ‘Amended Complaint’ to the

U. S. District Court for the Southern

District of Ohio on January 19, 1990 (the

Court received the Amended Complaint on

January 26, 1990).

On April 12, 1990, Appellee moved a

motion to dismiss claiming that, pursuant

to F.8.¢.F. Rule 12(b)(6), Appellant

failed to state a claim on which relief

could be granted. On April 26, 1990,

Appellant, Pro Se, filed ‘Answer to Motion

A-27

to Dismiss', stressing that F.R.C.P. Rule

12(b)(6) was not applicable to the action

and that 30 day time limit required by

42 USC S 2000e-16(c) was not

jurisdictional and was subject to waiver,

estoppel, and equitable tolling.

On June 22, 1990, U. S. District

Court for the Southern District of Ohio

dismissed the Appellant's Amended

Complaint. Although the Court Agreed that

the 30 day statue of limitation under 42

USC S 2000e-16(c) was not jurisdictional,

the Court failed to determine facts which

would permit equitable tolling of the

limitation period. It is this order

Appellant has appealed.

REPLY ARGUMENTS

i) THE DEFENSE LOGISTICS AGENCY'S

DEFENSE CONSTRUCTION AND SUPPLY CENTER,

WHILE ISSUING RIGHT TO SUE LETTER TO

APPELLANT, FAILED TO INCLUDE INFORMATION

PERTAINING TO U. S. DISTRICT COURTS OF

PROPER VENUE

The Agency's ‘Notice of Final

A-28

Decision’ dated January 12, 1989 (Received

by Appellant on January 17, 1989), stated

in paragraph No. 5:

"In lieu of an appeal to the office

of Review and Appeal, EEOC, you may fie

a civil action in an appropriate U. S.

District Court within 30 days of receipt

of the final agency decision.”

Obviously, Appellee failed to inform

Appellant (Pro Se) information pertaining

to U. §S. District Courts of proper venue

along with their addresses.

(Note: The Agency did provide the

name of the Defendant and the address of

the ‘Review and Appeals’, EEOC.)

ii) THE U. S. DISTRICT COURT FOR THE

DISTRICT OF COLORADO ERRED IN DENYING

APPELLANT'S ‘MOTION TO TRANSFER‘ TO A

DISTRICT OF PROPER VENUE AND DISMISSING

THE APPELLANT'S COMPLAINT

The denial of the court for the

district of Colorado in granting

Appellant's (Pro Se) Motion to Transfer

the action to the district of proper

venue, reasoning that the Appellee

disapproved or disagreed Appellant's

A-29

Motion to transfer, was not interest of

justice at all. In Jacobson Vv.

Indianapolis Power and Light

Company, 163 F. Supp 218 (DC IND), 1958,

the Indiana District Court ruled that:

"In granting transfer to cases under

28 USC S 1406(a) weight can be given to

fact that Plaintiff brought his action

in mistaken belief that venue is proper.”

In Burnett v. New York C. R. Company,

380 US 424, 1965, the United States

Supreme Court held that:

"When dismissal of action for

improper venue will terminate

rights without hearing on merits

because Plaintiff's action will

be barred by statue of limitations,

interest of justice requires that

the case be transferred."

iii) THE U. S. DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO DID NOT ERR IN

HOLDING THAT THE 30 DAY PERIOD AS REQUIRED

BY 42 U.S.C. 2000e-16(c) WAS NO-

JURISDICTIONAL

In Washington v. Ball, 890 F.2d 413

(llth Cir. 1989), the llth Circuit held

that:

"Title 42 U.S.C. S 2000e-16 requires

that civil action brought by federal

A-30

employee against the United States for

alleged violations of Title VII must be

commenced within thirty days of the

employee's receipt of notice of final

agency action, 42 U.S.C. S 2000e-16(c).

Compliance with the thirty day time limit,

however, is not a prerequisite to the

district court's jurisdiction; the thirty

day limitation is subject to equitable

tolling. Bates = Tennessee Valley

Authority, 851 F.2d 1366, 1368 (llth Cir.

1988)." (Washington Page 414)

In Warren v. Department of Army, 867

F.2d 1156 (8th Cir. 1989), the 8th Circuit

held that:

"(T]he filing period is analogous to

a statue of limitations in that it is

subject to equitable modification. The

Supreme Court has held that the statutory

time provision for filing with the EEOC

a Title VII claim against a private

employer is not a jurisdictional requisite

to suit federal court, but is instead

subject to waiver, estoppel, and equitable

tolling. Zipes v. Trans World Air Lines,

455 VU. &. 363; 393, Bea 8.CC. S21 eeaees

71 L.ED.2d 234 (1982). Zipes did not

indicate, however, whether this holding

extended to section 2000e-16(c) suits

filed in federal court against the

government. While this court until today

reserved judgement on the issue, see James

v. United States Postal Service, 835 F.2d

1265 & n.2 (8th cir. 1988), we now follow

the prevailing view and extend the

reasoning Zipes to hold that, even in

suits against the government, the thirty-

day filing period established by section

2000e-16(c) is not jurisdictional but

A-31

instead is subject to equitable tolling.

See Mondy v. Secretary of the Army, 845

F.2d 1051, 1054-57 (D.C. Cir. 1988)

(analyzing statutory language and

structure to conclude that limits of

section 2000e-16(c) are not

jurisdictional). We have previously

indicated that because of the remedial

character of Title VII, the filing of 42

U.S.C. s 2000e-5(£)(1) is more akin to a

statue of limitations than a

jurisdictional prerequisite. See Thomas

v. KATV Channel 7, 692 F.2d 548, 549-50 &

n.2 (8th Cir. 1982) (per curiam), cert.

denied, 460 U.S. 1039, 103 S.Ct. 1431, 75

L.ED.2d 790 (1983). We see no reason to

distinguish section 2000e-5(£)(1) from

section 2000e-16(c) for purpose of

equitable tolling. See Martinez v. Orr,

738 F.2d 1107, 1110 (10th Cir. 1984)."

(Warren Page 1159)

iv) THE U. S. DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO ERRED IN

DISMISSING THE APPELLANT'S AMENDED

COMPLAINT WITHOUT DETERMINING AND APPLYING

EQUITABLE TOLLING OF THE OF 30 DAY

TIME LIMIT AS REQUIRED BY 42 U.S.C.

2000e-16(c)

In Martinez v. Orr, 738 F.2d 1107

(10th Cir. 1984), On August 12, 1981,

Martinez received a notice informing

him of the EEOC decision and of his right

to file a civil action. On August 27,

1981, Martinez requested reconsideration,

which was denied on May 24, 1982. On June

A-32

1982 (about 10 months after he received

his right to file a civil action) Martinez

filed civil action. The 10th Circuit held

that:

"Unlike the district court, however,

we are persuaded that under the

circumstances of this case, equitable

considerations require that Martinez be

allowed to proceed with his claim."

(Martinez Page 1109)

"Although suits by federal employees

are governed by the shorter thirty-day

limitations period contained in 42 U.S.C.

S 2000e-16(c), we perceive no substantial

reason why this section should be treated

any differently from section 2000e-5(f)(1)

for purpose of equitable tolling. The

legislative history of the amendment

indicates that in extending the coverage

of the Title VII federal employees,

Congress intended to give them

essentially the same rights and remedies

as had been provided employees in the

private sector. See id. at 2157-60; Parks

v. Dunlop, 517 ¥.2€ 765 (Sth Cim 1975);

Douglas v. Hampton, 512 F.2d 976, 981

(D.C. Cir. 1975). In view of the principle

that Title VII ‘is a remedial statue

to be liberally construed in favor of

victim of discrimination’, Davis v. Valley

Distribution Co., 522 F.2d 827, 832 (9th

Cir. 1975), Cert. denied, 429 U.S. 1090,

97 S.Ct. 1099, 51 L.ED.2d 535 (1977), we

conclude that the thirty-day time

limitation of section 2000e-16(c) is not

jurisdictional and may be subject to

equitable tolling in appropriate cases.

For instance, equitable tolling may be

A-33

appropriate where a plaintiff has been

"lulled into inaction by her past

employer, state or federal agencies,

or her courts’. Carlile v. South Routt

School District RE 3-J, 652 F.2d 981, 986

(1Gtn Circ. 1981); see Gonzalez-Aller

Balseyro, 702 F.2d at 858. Likewise, if a

plaintiff is ‘actively misled', or ‘has

been some extraordinary ways been

prevented from asserting his or her

rights," we will permit tolling of

limitations period. Wilkerson v.

Siegfried Insurance Agency, inc. 683 F.2d

344, 348 (10th Cir. 1982); see also

Cottrell, 590 F.2d at 838." (Martinez Page

1110)

TOLLING DETERMINATION

a) The Agency while issuing right to

sue letter did not inform Appellant (Pro

se) regarding U. S. District Courts where

the venue would be proper.

b) Appellant filed original

complaint in U. S. District Court for the

District of Colorado in a mistaken belief

that the venue was proper.

c) The U. S. District Court for the

District of Colorado was not justified in

denying Appellant's (Pro se) Motion to

Transfer to U. S. District Court for the

A-34

Eastern District of Missouri, where the

venue was proper.

d) The court for the district of0

Colorado did not inform Appellant (Pro se)

of any time limit for second filing of the

complaint in a district where the venue

would have been proper.

e) The Appellant (Pro se) amended

the original complaint pursuant to

requirement of F.R.C.P. iS(e), which

states in part:

"Whenever the claim or defense

asserted in the amended pleading arose out

of the conduct, transaction, or occurrence

set forth or attempted to be set forth in

the original pleading, the amendment

relates to the original pleading."

f) The ‘Amended Complaint’ was sent

by mail to the Clerk, U. S. District Court

for the Southern District of Ohio, on

January 19, 1990 and was received by the

Clerk on January 26, 1990.

g) At time of first filing at the

court for the district of Colorado,

A-35

Appellant (Pro se) was wholly unfamiliar

of ‘Federal Personnel Manual (Federal

Government Personnel Law)’ and the Law

governing federal courts. It was during

preparation of "Amended complaint,

Appellant (Pro se) gained some familiarity

of ‘Federal Personnel Manual'(FPM). And

during preparation of ‘Answer to Motion to

Dismiss’, dated April 23, 1990, the

Appellant learned how to use a Law Library

and gained some familiarity of Title VII

law.

h) In view of facts and

circumstances mentioned above, time period

form May 19, 1989 to January 26, 1990, be

tolled.

REPLY CONCLUSION

For the aforementioned reply

arguments and facts, the Appellant (Pro

se) request the honorable court to

reverse the order entered by the U. S.

District Court for the Southern District

A-36

of Ohio against Appellant.

Respectfully submitted,

(AKHLAQ A. CHAWLA)

Plaintiff - Appellant

(Pro se)

Address:

5210 South Ventura Way

Aurora, Colorado 80015

Telephone: (303) 690-9867

CERTIFICATE OF SERVICE

PLAINTIFF - APPELLANT, PRO SE, hereby

certify that on day of October, 1990,

a copy of ‘Reply Brief of Appellant was

mailed postage paid to:

D. Michael Crites

U. S. Attorney

85 Marconi Boulevard, Room 200

Columbus, Ohio 43215

(AKHLAQ A. CHAWLA)

PLAINTIFF - APPELLANT

(PRO SE)

5210 South Ventura Way

Aurora, Colorado 80015

Tele: (303) 690 - 9867

A-37