# Petition for Writ of Certiorari — Chawla v. McCausland

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 954

## Text

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

A-20

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,

A-21

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:

A-22

"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

A-23

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

A-25

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

A-26

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1934%3A1. Public record. Not legal advice.