Amicus Curiae Brief — Irwin v. Department of Veterans Affairs

Supreme Court, U.s.

4) EILED

APR 20 1990

E, SPANIOL, JR,

a

No. 89-5867 j

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

SHIRLEY W. IRWIN,

Petitioner,

V.

VETERANS ADMINISTRATION, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR AMICUS CURIAE

NATIONAL TREASURY EMPLOYEES UNION

IN SUPPORT OF PETITIONER

GREGORY O’DUDEN *

Director of Litigation

ELAINE KAPLAN

Deputy Director of Litigation

KERRY L. ADAMS

Assistant Director of Litigation

NATIONAL TREASURY

EMPLOYEES UNION

1730 K Street, N.W.

Suite 1100

Washington, D.C. 20006

* Counsel of Record (202) 785-4411

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

@ EER 00

BEST AVAILABLE COPY

—

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE ............

STATUTORY BACKGROUND W002. eoeeeeeeeeee eee

SUMMARY OF ARGUMENT ..W020o22oo.ocoeecceeeececeeeeeees

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18

ii ili

TABLE OF AUTHORITIES TABLE OF AUTHORITIES—Continued

CASES: Page Page

Anderson v. John L. Hayes Construction Co., 243 Mohasco v. Silver, 447 U.S. 807 (1980) .......00000..... 8, 9

N.Y. 140, 153 N.E. 28 (1926) .....00200.00... ue... 17 Mondy v. Secretary of the Army, 845 F.2d 1051

Baldwin County Welcome Center v. Brown, 466 EE 10, 12, 15

ie BY 2) = | ee 8, 9,14 Morton v. Mancari, 417 U.S. 585 (1974)... 10

Bell v. Veterans Administration Hospital, 826 Paulk v. Department of the Air Force, 830 F.2d

es ft ff fT , ee 15 a cecinsnoconnne 14

Block v. Neal, 460 U.S. 289 (1988) ......................-.. 17 | Rice v. Hamilton Air Force Base Commissary, 720

Bornholdt v. Brady, 869 F.2d 57 (2d Cir. 1989) .... 3 | SS 10

Brown v. General Services Administration, 425 Rice v. New England College, 676 F.2d 9 (1st Cir.

te Ey | ee 13 a cemssenarencacceeee 9

Brown v. JI. Case Co., 756 F.2d 48 (7th Cir. Schiavone v. Fortune, 477 U.S. 21 (1986) ........... i 15

) | | eens ee 9 Sims v. Heckler, 725 F.2d 1143 (7th Cir. 1984)... 10

Chandler v. Roudebush, 425 U.S. 840 (1976) ........ passim Soriano v. United States, 352 U.S. 270 (1957).... 11

Crown, Cork & Seal Co. v. Parker, 162 U.S. 345 United States v. Aetna Casualty & Surety Co.,

) | Cnn 8 Teen cancer scceesers 17

Espinoza v. Missouri Pac. R.R., 754 F.2d 1247 United States v. Kubrick, 444 U.S. 111 (1979)... 11,17

COUR, Cle. BOD ancecnnenecnsnsetenecicsceeseeeee 9 United States v. Mitchell, 463 U.S. 206 (1983) ...... 17

Fox v. Eaton Corp., 615 F.2d 716 (6th Cir. 1980) .. 9 United States v. Mottaz, 476 U.S. 834 (1986). . 11

Franchise Tax Board v. United States, 467 U.S. United States v. Yellow Cab Co., 340 U.S. 543

\) 3). | a 16 SEE 17

Harris v. U.S. Department of Transportation, 843 Valenzuela v. Kraft, Inc., 801 F.2d 1170 (9th Cir.

ee Efe ee 15 a cscasnscansenssoosacenes 9

Indian Towing Co. v. United States, 350 U.S. 61 Williams v. Department of the Navy, 715 F.2d

{| | DMM UO 17 a 5

King v. Dole, 782 F.2d 274 (D.C. Cir. 1986), ; Williams v. Army & Air Force Exchange Service,

cert. denied, 479 U.S. 856 (1986) ...................-..... 11 re ee OED kn cnescnncccccnenses 15

Lavery v. Marsh, 727 F. Supp. 728 (D. Mass. Zipes v. Trans World Airlines, 455 U.S. 385

| NEES 3 a SS ne 9, 10, 12, 14

Lee v. United States Postal Service, 774 F.2d 1067

Th hn INT 11 STATUTES AND REGULATIONS:

Lehman v. Nakshian, 453 U.S. 156 (1981) ........... 16 Civil Rights Act of 1964, Title VII, Section 717,

Love v. Pullman, 404 U.S. 522 (1972) 0000000000... 14 Pub. L. No. 88-8352, 78 Stat. 241 .......................... passim

Lubniewski v. Lehman, 891 F.2d 216 (9th Cir. Civil Service Reform Act of 1978, Pub. L. No. 95-

BOGID a ceercescse-cosernsiiesnsetsnnesnmnssienssinsaaaaanannnn 3 Neen vend saveuvevennenes 3,5, 11

Martinez v. Orr, 738 F.2d 1107 (10th Cir. 1984)... 10, 14 Equal Employment Opportunity Act of 1972, Sec-

Milam v. United States Postal Service, 674 F.2d tion 11, Pub. L. No. 92-261, 86 Stat. 103 _... 3, 12, 16

— i), ot 2 re 10 | Rehabilitation, Comprehensive Services, and De-

Miller v. Marsh, 766 F.2d 490 (11th Cir. 1985)... 14 velopmenta!l Disabilities Act of 1978, Pub. L. No.

TG dhaincnintiinecccsesnenens sonenconcees 3

iv

TABLE OF AUTHORITIES—Continued

Page

Civil Service Reform Act of 1978

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6 U.S.C. § T7GB(e) (1) (C) .............................2..-. 6

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Civil Rights Act of 1964

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42 U.S.C. § 2000e-5 (f) 200... Genet 12

48 USC. § S66G0-8(f) (1) ...........................2-+ 8,11,16

42 U.S.C. § 2000e-5 (f)-(k) .....0-. eee cece 11

es cece 3,11

RN ELT 3

42 U.S.C. § 2000e-16(b) .:..................................... 4

NE passim

42 U.S.C. § 2000e-16(d) 0... 11, 12

5 C.F.R. § 1201.154(b) 000. PAA rN an 6

29 C.F.R. § 1613.214(a) (1) (i) 0-0. 4

29 C.F.R. § 1613.214 (a) (1) (ii) .......0 4

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Semi i a 4

v

TABLE OF AUTHORITIES—Continued

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29 C.F.R. § 1618.281 (a) ............................. saahsidacioniesth

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MISCELLANEOUS:

JOINT EXPLANATORY STATEMENT OF THE COMMIT-

TEE ON CONFERENCE OF THE CIVIL SERVICE RE-

FORM ACT OF 1978, H.R. CoNF. REP. No. 1717,

95th Cong., 2d Sess. 141, reprinted in 1978 U.S.

CoDE Conc. & ADMIN. NEWS 2860, 2875 ............

H.R. Rep. No. 238, 92d Cong., 1st Sess. 22-23

(TIS ALS ITE NEC Pea Ae ae LER EO

13, 17

S. Rep. No. 415, 92d Cong., 2d Sess. 16 (1971).... 10, 12,

Statement of Senator Williams reprinted in SEN-

ATE COMMITTEE ON LABOR AND PUBLIC WELFARE,

SUBCOMMITTEE ON LABOR, LEGISLATIVE HISTORY

OF THE EQUAL EMPLOYMENT OPPORTUNITY ACT

OF 1972, 92d Cong., 2d Sess. (Comm. Print

BUI iciiieanddiaicaicn chs 2 scledeaapilacdaasheaassadhanianddieadpuenebiamananmniesisinnn

Statement of Senator Cranston reprinted in SEN-

ATE COMMITTEE ON LABOR AND PUBLIC WELFARE,

SUBCOMMITTEE ON LABOR, LEGISLATIVE HISTORY

OF THE EQUAL EMPLOYMENT OPPORTUNITY ACT

OF 1972, 92d Cong., 2d Sess. (Comm. Print

IY (ices ish is a ceciee eee eteassaeebibdinsnadanaesedundeenelions

13, 17

13

mm

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-5867

SHIRLEY W. IRWIN,

Petitioner,

v.

VETERANS ADMINISTRATION, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR AMICUS CURIAE

NATIONAL TREASURY EMPLOYEES UNION

IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE'!

Amicus curiae, the National Treasury Employees

Union (“NTEU”), is a federal-sector labor union that is

the exclusive bargaining representative of approximately

140,000 federal employees nationwide. NTEU repre-

sents the interests of its bargaining units, by, among

other things, negotiating collective bargaining agree-

ments, arbitrating grievances, and seeking to vindicate

the individual and collective rights of federal employees

before administrative and judicial tribunals. NTEU and

1 Pursuant to Rule 37.3 of the Rules of this Court, all parties

have consented to the filing of this brief. Their letters of consent

have been lodged with the Clerk,

2

the employees it represents have a vital interest in the

resolution of the question here, regarding whether the

30-day time period for bringing suit against the federal

government under Title VII of the Civil Rights Act of

1964, as amended, is subject to equitable tolling and

waiver.

The lower court has ruled that the time limit is juris-

dictional and may never be modified on equitable grounds.

Based on its knowledge of the realities of the EEO

process in the public sector, NTEU believes that this

ruling would impose serious obstacles to fulfillment of

Congress’ commitment to eradicate entrenched discrim-

ination in the federal workplace. The lower court’s hold-

ing frustrates this congressional goal because, as in the

private sector, many federal employee complainants pur-

sue their claims without any representation at all, or

at best, with the advice of non-lawyer union representa-

tives. Complainants’ rights are further at risk because

the federal EEO process is especially complex, and the

time period for bringing suit once administrative reme-

dies have been exhausted is quite short. Because of its

commitment to promoting a federal workplace free of

unlawful discrimination, and its interest in protecting

the civil rights of its members, NTEU is filing this brief

in support of petitioner.’

? As amicus curiae, we address in detail only the first question

presented in the petition for a writ of certiorari, i.e., the critical

legal issue concerning whether the 30-day time limit for filing

civil suits is jurisdictional or is subject to waiver and tolling.

This case also raises the subsidiary question of whether the 30-day

period begins to run when the claimant or his attorney receives

actual notice of final agency action, or, as the lower court held,

when the notice is received by the attorney’s office. Even if the

filing period commences when notice is received in an attorney’s

office, equitable principles require that tolling be availab.» to en-

sure that the notice is reasonable and that the complainant is

given a fair opportunity to meet the 30-day deadline. This fact-

bound question is best left to the trial court.

3

STATUTORY BACKGROUND

Congress extended the protections of Title VII of the

Civil Rights Act of 1964, as amended, to federal em-

ployees in § 11 of the Equal Employment Opportunity

Act of 1972, Pub. L. No. 92-261, 86 Stat. 103. As

amended, section 717(a) of Title VII, 42 U.S.C. § 2000e-

16(a), prohibits federal agencies from discriminating

against employees on the basis of race, color, religion,

sex, or national origin. Title VII’s “remedies, procedures

and rights” (contained in 42 U.S.C. § 2000e-16) were

made applicable to federal employees’ claims of handicap

discrimination, by the 1978 amendments to the Rehabili-

tation Act. 29 U.S.C. § 794a(a) (1). Petitioner’s claim

of handicap discrimination, therefore, is subject to the

same 30-day filing period and other procedures as dis-

crimination claims brought under Title VII (42 U.S.C.

$ 2000e-16(c) ).*

Under Title VII, federal employees, like employees in

the private sector, are guaranteed the right to a trial

de novo in a federal district court, once informal con-

ciliation efforts have failed. Chandler v. Roudebush, 425

U.S. 840 (1976). In the federal sector, however, there

is a bewildering array of alternative administrative

routes federal employees may follow before they may file

a Title VII civil action in district court. Congress treated

discrimination in the federal workplace so seriously that

it gave employees several alternative methods for seeking

redress before finally reaching federal court. The Joint

Explanatory Statement of the Committee on Conference

of the Civil Service Reform Act of 1978 lists “eight dif-

ferent times when the employee may have the right to

bring suit in Federal district court.” H.R. Conr. Rep.

3 Whether Title VII’s 30-day time period applies to petitioner’s

claim of age discrimination is in doubt. Compare Bornholdt v.

Brady, 869 F.2d 57, 64-68 (2d Cir. 1989) and Lubniewski v.

Lehman, 891 F.2d 216, 218-19 (9th Cir. 1989) with Lavery v.

Marsh, 727 F. Supp. 728 (D. Mass. 1989).

4

No. 1717, 95th Cong., 2d Sess. 141, reprinted in 1978

U.S. Cope Conc. & ADMIN. NEWS 2860, 2875. Each of

these paths has its own pitfalls, against which the ad-

ministrative agencies have tried to protect employees by

routinely making filing dates subject to equitable tolling.

The various paths appear within two hasic administra-

tive routes a federal discrimination complainant may fol-

low on the way to district court. The ruling here, re-

garding construction of the judicial filing period, will

directly control all future access to the courts under the

first route. It may also affect judicial access at various

junctures under the alternative route.

1. The federal complainant’s first option, used by peti-

tioner here, is to follow administrative procedures pre-

scribed by the Equal Employment Opportunity Commis-

sion (“EEOC”) pursuant to 42 U.S.C. § 2000e-16(b).

This course begins with informa! counselling and a for-

mal complaint and culminates in a final written decision

by the agency head. There are time limits at each step

in the process, including time limits for contacting an

EEO counsellor and filing an administrative complaint,

but these periods are subject to equitable tolling. See

29 C.F.R. §§ 1613.214(a) (1) (i), (a) (1) (ii), (a) (4):

1613.215(a) (4). 7

After obtaining a final agency determination, the em-

ployee has two choices. He “may file a civil action as

provided in section 2000e-5 of {Title 42)” (the private

sector analogue of section 717) within 30 days of receipt

of the agency’s final decision. 42 U.S.C. § 2000e-16/c) :

see 29 C.F.R. § 1613.281(a).* Alternatively, an employee

may file a notice of appeal with the EEOC, within 20

days of receipt of the agency’s decision, a filing period

that is subject to tolling. 29 C.F.R. § 1613.233(a), (c).

‘The employee may file a civil action without waiting for a final

agency decision if none has been issued after 180 days from the

date the complaint was filed. 29 C.F.R. § 1613.281(b).

5

The employee then has the right to file a civil action

under 42 U.S.C. § 2000e-16(c) within 30 days of receipt

of the EEOC’s decision—which is the provision at issue

in this case—or after 180 days from the filing of the

notice of appeal, if there has been no decision. 29 C.F.R.

§ 1613.281(¢), (d).

2. In addition to these avenues of redress specifically

provided by section 717(c) of Title VII, the Civil Service

Reform Act of 1978, Pub. L. No. 95-454 (“CSRA”), pro-

vides its own complex assortment of procedures for fed-

eral employees suffering unlawful discrimination.

If the discrimination is the basis for an adverse per-

sonnel action that is otherwise directly appeaiable to

the Merit Systems Protection Board (“MSPB” or

“Board’’) (generally serious discipline or performance

based actions), the employee may pursue his Title VII

claims before the Board. 5 U.S.C. § 7702. After the

MSPB decides the case, the employee has three options.°

First, the employee can file an appeal directly in the

Court of Appeals for the.Federal Circuit under 5 U.S.C.

$ 7703(b) (1), “within thirty days after the date the

petitioner received notice’”’ of the final Board order, but

only if he waives al! discrimination components of his

claim.® Second, if he wishes to preserve his Title VII

claim, the employee can file an action in district court

under section 717(\¢c) of the Civil Rights Act of 1964.

5 U.S.C. § 7703(b) (2). The Civil Service Reform Act

provides, however, that “|n]jotwithstanding any other

*If the Board does not act within 120 days (5 U.S.C. § 7702

(a)(1)), the employee “shall be entitled to file a civil action to

the same extent and in the same manner as provided in section

717(c) of the Civil Rights Act of 1964.” 5 U.S.C. § 7702(e) (1) (B).

*The Federal Circuit has held that it does not have appellate

jurisdiction over adverse personnel actions in “mixed” cases—that

is, cases where a discrimination claim is part of the employee's

challenge. Williams v. Department of the Navy, 715 F.2d 1485,

1488 (Fed. Cir. 1983). The employee must waive the discrimina-

tion claims before the court of appea!s wi!l assume jurisdiction.

6

provision of law, any such case .. . must be filed within

30 days after the date the individual filing the case re-

ceived notice of the judicially reviewable action under

section 7702.” Id. Alternatively, “within 30 days after

notice” of the MSPB’s decision, an employee can petition

the EEOC to consider it, 5 U.S.C. § 7702(b) (1), setting

in motion an extremely complicated scheme of review.

Under this scheme, the EEOC must decide within 30

days whether to consider the MSPB’s decision; if it does

not, that decision becomes “judicially reviewable” as of

the date the EEOC declines consideration. 5 U.S.C.

$ 7702(b) (2), (a) (3) (B). If the EEOC decides to con-

sider the MSPB decision, it must, within 60 days, either

concur in the Board’s decision or issue a decision of its

own. 5 U.S.C. § 7702(b) (3). If it concurs, “the de-

cision of the Board shall be a judicially reviewable ac-

tion.” 5 U.S.C. § 7702(b)(5)(A). If the EEOC issues

its own decision, the MSPB must consider the EEOC de-

cision within 30 days. 5 U.S.C. § 7702(c). If the Board

concurs, its decision becomes judicially reviewable, but

if the Board disagrees, the entire matter must be cer-

tified to a Special Panel. 5 U.S.C. § 7702(¢e), (d) (1).

The Panel issues a “judicially reviewable” decision

within 45 days. 5 U.S.C. § 7702(d)(2)(A). At any

time after 180 days from the time the employee first

petitioned the EEOC for review, the employee “is en-

titled to file a civil action to the same extent and in the

same manner as provided in section 717(c) of the Civil

Rights Act of 1964.” 5 U.S.C. § 7702(e) (1) (C).

Finally, employees who are covered by a collective bar-

gaining agreement may elect to pursue yet another avenue

of review—grievance arbitration. 5 U.S.C. § 7121(d).

An employee who elects grievance arbitration may file

a petition for review with the MSPB “within 20 days

after receipt of the final decision,” if the discrimination

occurred in connection with a personnel action over which

the Board has jurisdiction. 5 C.F.R. § 1201.154(b). Al-

7

ternatively, under EEOC regulations, an employee who

elects contractual remedies may file a notice of appeal to

the EEOC up to 20 days after 1) receipt of a final agency

decision on the grievance and the expiration of the time

during which arbitration may be invoked; 2) receipt of

the arbitrator’s award; or 3) receipt of a decision of the

Federal Labor Relations Authority on exceptions to the

arbitrator’s award. 29 C.F.R. § 1613.233(b). This 20-day

deadline is subject to tolling. 29 C.F.R. § 1613.233(c)}.

When an employee has pursued a negotiated procedure

and sought review by the EEOC or MSPB, he has the

right to file a civil action, under the same conditions

described above, relating to court access after an EEOC

or MSPB decision.’

SUMMARY OF ARGUMENT

The time limit for filing a Title VII suit in the public

sector uses the same operative language and precisely

parallels the private-sector’s time limit. This Court has

already determined that the deadline for private workers

is not jurisdictional but rather is in the nature of a stat-

ute of limitations, and thus subject to waiver and equita-

bie tolling.

The language, statutory structure and policy behind

the federal provision all establish that Congress intended

the public-sector time limit to be interpreted in the same

manner as its private counterpart. Congress used vir-

tually identical permissive language and created a paral-

lel structure, keeping the time limit separate from the

courts’ jurisdictional provision, and it even incorporated

applicable private-sector filing provisions. The legisla-

' An employee also appears to have the right to file a civil action

after he has exhausted the negotiated procedure without resort to

either EEOC or MSPB directly under 42 U.S.C. § 2000e-16(c). since

the final decision on his grievance might be considered the agency's

“final action” within the meaning of that section.

8

tive history is unusually clear in establishing congres-

sional intent to place federal workers on a par with

other employees and to afford them equal Title VII

rights, including the same access to the courts.

Departing from the construction adopted in the private

sector would severely undermine Congress’ intent to erad-

icate discrimination in the federal workplace by im-

posing a substantial obstacle in the path to the district

court. Such a result is particularly burdensome where,

as here, it is common for employees to tread a tortuous

administrative path and reach the point of judicial filing

without having secured legal counsel.

Principles of severeign immunity fail to justify a stat-

utory interpretation that has already been rejected as

too restrictive and contrary to congressional intent in

the private sector. There is every indication that Con-

gress intended to place federal workers on the same foot-

ing as private sector workers, who do not face a juris-

dictional filing deadline. The courts are not free to nar-

row the broad waiver of sovereign immunity that Con-

gress demonstrably provided.

ARGUMENT

This Court’s decisions establish that the Title VII time

limit governing the filing of civil suits in the private

sector (42 U.S.C. § 2000e-5(f)(1)) is not jurisdictional

but is subjee&. to waiver, estoppel, and equitable tolling.

See Baldwin County Welcome Center v. Brown, 466 U.S.

147, 151-52 & n.6 (1984); Crown, Cork & Seal Co. v.

Parker, 462 U.S. 345, 349-54 (1983); Mohasco v. Silver,

447 U.S. 807, 811 (1980).

In Crown, Cork & Seal, the Court ruled that the 90-

day filing period was in the nature of a statute of limi-

tations and thus subject to equitable tolling. Specifically,

the period for filing an individual district court action

was tolled while a class action, in which the employee

9

was a putative class member, was pending before the

courts. 466 U.S. at 352-54. In Baldwin County Welcome

Center, the Court assumed without debate that the same

90-day filing period was subject to waiver or tolling, in

ruling that no facts justified equitable relief in that

particular case. 466 U.S. at 151-52 & n.6. Finally, the

Court noted in Mohasco that defendant had waived any

objection to the suit having been filed on the 91st day,

a waiver that would hav. been of no effect if the defect

had been jurisdictional i» nature. See 447 U.S. at 811

n.9.

Similarly, the Court has held that the period for filing

an administrative charge vy ith the EEOC is not a juris-

dictional prerequisite for i.ling a civil suit, but is sub-

ject to waiver, estoppel and equitable tolling. Zipes v.

Trans World Airlines, 455 U.S. 385, 393 (1982).° Such

a holding “honor[ed] the remedial purpose of the legis-

lation as a whole without negating the particular pur-

pose of the filing requirement, to give prompt notice to

the employer.” Zipes, 455 U.S. at 398.

The same results should obtain in the federal sector.

This Court has already recognized the general applica-

bility of private-sector Title VII principles to the federal

sector, in Chandler v. Roudebush. In that case, federal

employees were granted the same right to trial de novo

as is enjoyed by private sector employees under Title

VII. The C irt observed that “{a] principal goal” of

extending Title VII to the federal employer “was to

® The courts of appeals have unanimously concluded that Crown,

Cork & Seal, Baldwin County Welcome Center. Mohasco and Z’pes

establish a general rule that the time period for filing civil actions

against private employers is not jurisdictional but is in the nature

of a statute of limitations subject to tolling and waiver. Valen-

zuela v. Kraft, Inc., 801 F.2d 1170, 1174 (9th Cir. 1986); Brown

v. JI. Case Co., 756 F.2d 48, 49-50 (7th Cir. 1985); Espinoza v.

Mo. Pac. R.R., 754 F.2d 1247, 1250-51 (5th Cir. 1985); Rice v.

New England College, 676 F.2d 9, 10 (1st Cir. 1982); Fox v. Eaton

Corp., 615 F.2d 716, 718 (6th Cir. 1980).

10

eradicate ‘entrenched discrimination in the Federal serv-

ice’ . . . by strengthening internal safeguards and by

according ‘[a]ggrieved [federal] employees or applicants

... the full rights available in the courts as are granted

to individuals in the private sector under title VII.’”

Chandler v. Roudebush, 425 U.S. at 841, quoting Morton

v. Mancari, 417 U.S. 535, 547 (1974) and S. Rep. No.

415, 92d Cong., 2d Sess. 16 (1971) (emphasis supplied).

The principles of waiver and equitable tolling are an-

other important component of the “rights available in the

courts” to private-sector employees. Congress intended

that they also be available to federal employees, just as

the right to trial de novo.

Divining congressional! intent on this issue requires

consideration of the language of the filing requirement,

statutory structure and the policy behind the enactment.

See Zipes, 455 U.S. at 393. Each of these elements sup-

ports the conclusion that the 30-day filing period for fed-

eral employees, just as its private-sector analogue, is not

jurisdictional.®

1. First, the language of section 2000e-16(c) which

sets forth the 30-day requirement is not mandatory in

tone, nor does it speak in jurisdictional terms. It does

not, for example, state that any civil action “must” e

filed within 30 days, or that all claims “shall be barred”

if not filed within 30 days. Rather, section 2000e-16(c)

states that within 30 days an employee “may file a civil

® Three courts of appeals have concluded that section 2000e-16(c)

is not jurisdictional. Mondy v. Secretary of the Army, 845 F.2d

1051, 1054-57 (D.C. Cir. 1988); Martinez v. Orr, 738 F.2d 1107,

1110 (10th Cir. 1984); Milam v. United States Postal Service, 674

F.2d 860, 862 (11th Cir. 1982). In addition to the Fifth Circuit,

the Ninth Circuit has also held the provision to be jurisdictional,

although that Court has not reexamined the issue in light of Zipes.

See Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082,

1083-84 & n.1 (9th Cir. 1983). The Seventh Circuit has held that

the time period for filing adniinistrative charges in the f. deral

sector is jurisdictional. Sims v. Heckler, 725 F.2d 1143, 1145-46

(7th Cir. 1984).

11

action.” This language uses the same operative word

“may” as the non-jurisdictional language in section

2000e-5(f) (1), which provides that within 90 days “a

civil action may be brought.” ”

The language of 42 U.S.C. § 2000e-16, moreover, incor-

porates the filing provisions of the private sector, clearly

establishing symmetry between the rights of federal em-

ployees to file civil actions and the rights afforded private-

sector employees. Subsection (c) states that within 30

days of receipt of notice of final action an employee “may

file a civil action as provided in section 2000e-5 of this

title” (emphasis supplied). Similarly, subsection (d) of

Section 2000e-16 states that “[t]he provisions of section

2000e-5(f) through (k) of this title. as applicable, shall

govern civil actions brought hereunder.”

Section 2000e-16 thus explicitly references and incor-

porates its private sector counterpart, section 2000e-5

'” The permissive language of section 2000e-16(c) is thus mate-

rially different from the language used in other limitations statutes

this Court has construed where suits have been brought against

the government. E.g., United States v. Mottaz, 476 U.S. 834

(1986) (28 U.S.C. § 2409a(f)—a civil action “shall be barred

unless” commenced within twelve years) ; United States v. Kubrick,

444 U.S. 111 (1979) (28 U.S.C. § 2401(b)—“a tort claim against

the United States shall be forever barred unless” it is timely pre-

sented to the agency); Soriano v. United States, 352 U.S. 270

(1957) (28 U.S.C. § 2401(b)—“every claim .. . shall be barred”

unless filed within six years).

The language of section 2000e-16(c) also contrasts with the

language of the CSRA, which governs actions in district court

after a decision by the MSPB on a discrimination claim arising

out of an individual personnel action within the Board’s jurisdic-

tion. See King v. Dole, 782 F.2d 274, 276 (D.C. Cir. 1986) (hold-

ing that 30-day time limit of 5 U.S.C. § 7703(b) (2) is jurisdic-

tional because “clear and emphatic” language states that “[n ]ot-

withstanding any cther provision of law, any such case filed... .

must be filed within 30 days”), cert. denied, 479 U.S. 856 (1986):

but see Lee v. United States Postal Service, 774 F.2d 1067, 1068

(11th Cir. 1988) (assuming without deciding that time limit in

5 U.S.C. §7703(b) 2) is not jurisdictional by analogy to 42

U.S.C. § 2000e-16 (c)

ee

12

(f) (1), which this Court has treated as non-jurisdic-

tional. This Court reasoned in Chandler v. Roudebush

that Congress incorporated the private-sector provisions

because it intended for such provisions to govern in the

public sector. “Since federal-sector employees are entitled

by § 717(c) to ‘file a civil action as provided in section

706 [42 U.S.C. § 2000e-5 . . .]’ and since the civil action

provided in § 706 is a trial de novo, it would seem to

follow syllogistically that federal employees are entitled

to a trial de novo of their employment discrimination

claims.” 425 U.S. 845-46. The same syllogism exists

here. The adoption of private-sector filing procedures

entitles federal employees to the equitable relief provided

to other workers.

Finally, as in Zipes, the time-limit does not appear in

the statutory provision governing the jurisdiction of the

courts. See 495 U.S. at 394-95. In the private-sector pro-

visions, the fact that the 90-day filing period (section

2000e-5(e)) was separate from the jurisdictional provi-

sion (section 2000e-5(f)) helped to establish the non-

jurisdictional nature of the time limit. Again, the strue-

ture here is directly parallel. The 30-day time limit con-

tained in section 2000e-16(c) is separate from section

2000e-16(d), the provision that defines the jurisdiction

of the courts by cross-reference to section 2000e-5(f).

Accord Mondy v. Secretary of the Army, 845 F.2d at

1056.

2. In addition to the statutory language and structure,

the legislative history and policies of the Equal Employ-

ment Opportunity Act of 1972 also signal Congress’ in-

tention that the 30-day limit be interpreted in the same

manner as the private-sector filing limit. Congress de-

clared its intent to afford federal employees “the full

rights available in the courts as are granted to individ-

uals in the private sector under Title VII.” S. Rep. No.

92-415, at 16. Congress was strongly committed to cor-

recting the demonstrated history of discrimination in

13

federal employment, id., and it perceived that full access

to district court was a key means to that end.

The House Report, in fact, stressed the “paramount”

importance of eradicating discrimination in federal em-

ployment, declaring that “there can exist no justification

for anything but a vigorous effort to accord Federal em-

ployees the same rights and impartial treatment which

the law seeks to afford employees in the private sector.”

H.R. Rep. No. 238, 92d Cong., 1st Sess. 22-23 (1971).

Similarly, a key sponsor emphasized that “[p]reviously,

there have been unrealistically high barriers which pre-

vented or discouraged a federal employee from taking

a case to court. This will no longer be the case. There is

no reason why a federal employee should not have the

Same private right of action enjoyed by the individual in

the private sector ....” (Statement of Senator Wil-

liams, reprinted in SENATE COMMITTEE ON LABOR AND

PUBLIC WELFARE, SUBCOMMITTEE ON LABOR, LEGISLATIVE

HISTORY OF THE EQUAL EMPLOYMENT OPPORTUNITY ACT

OF 1972, 92d Cong., 2d Sess. 1727 (Comm. Print 1972).

See also Statement of Senator Cranston (section 717(c)

“ereates a remedy in Federal district court—comparable

to private employment actions”). Jd. at 1723.

Title VII provides the exclusive remedy for claims of

discrimination in federal employment. Brown v. General

Services Administration, 425 U.S. 820, 835 (1976).

Given its declared intent to eradicate discrimination by

expanding federal employees’ access to the courts, it is

inconceivable that Congress intended the unusually short

30-day time limit in the exclusive new scheme to operate

as an absolute jurisdictional requirement

An inflexible 30-day time limit on exercise of an em-

ployee’s right to file a suit in district court would erect

a formidable obstacle to enforcement of the Act. A “guid-

ing principle” of Title VII is that “technical reading[s]”

are “ ‘particularly inappropriate in a Statutory scheme in

14

which laymen, unassisted by trained lawyers, initiate the

process.’” Zipes, 455 U.S. at 397, quoting Love v. Pull-

man, 404 U.S. 522, 527 (1972). Such concerns are par-

ticularly important in the federal sector because the

30-day time limit is drastically shorter than the 90-day

limit for filing suit in the private sector."' There is sig-

nificantly less time for an employee to correct a mistake

arising out of any of the accepted bases for equitable

tolling such as inadequate notice, or wrong or misleading

information from the employing agency. See Baldwin

County, 466 U.S. at 151."

Even absent these circumstances, 30 days is a difficult

deadline for even the most diligent employee to meet.

It is no easy task to secure counsel who is familiar with

Title VII in general, understands its application in the

federal bureaucracy in particular, and is willing to

undertake a case despite the uncertainty of obtaining

reimbursement for fees under the Statute. Yet, under

the inflexible jurisdictional approach taken by the court

below, even a pending motion for appointment of coun-

sel would not save an employee’s complaint from being

dismissed.’* See Baldwin County, 466 U.S. at 151.

'! There is no indication in the legislative history of the Act as

to why Congress chose to make the time limit for federal employee

suits 30 days.

'2 The provision of misleading information or inadequate notice

is certainly not unheard of in the federal bureaucracy. See, e.g.,

Miller v. Marsh, 766 F.2d 490 (11th Cir. 1985): Martinez v. Orr,

738 F.2d at 1111.

13 Indeed, under the law that governs in the federal sector,

even a complainant who makes a good faith effort to file a com-

plaint in district court on his own within 320 days stands a strong

ch. nce of being frustrated in that effort. One peculiarity of sec-

tion 2000e-16(c) is its absolute requirement that the complaint

name “the head of the department, agency, or unit. as appropriate”

as defendant. As the Seventh Circuit has observed, “[t}his cryptic

phrase provides little guidance to litigants.” Paulk v. Department

15

The byzantine system of rules and regulations govern-

ing the EEO complaints procedure in the federal sector

provides many traps for the unwary. Victims of dis-

crimination must navigate their way—often unrepre-

sented—through a bewildering array of forums that can

include a negotiated grievance-arbitration procedure, the

EEOC, the MSPB, the Special Panel and the Court of

Appeals for the Federal Circuit, as well as the district

courts. As detailed above, supra pages 4, 7, the adminis-

trative agencies have generally made time limits subject

to equitable modification, in recognition of the tortuous

path an employee must follow and the many opportuni-

ties for missteps along the way. The remedial policies of

the Act demand that the same accommodations be made

in construing the statutory time limit applicable to the

federal complainant who has persevered to the point of

judicial filing.

3. The government attempts to use sovereign immu-

nity principles to justify a statutory interpretation that

has been rejected in the private sector. Given the statu-

tory structure and policies discussed above, sovereign

of the Air Force, 830 F.2d 79, 80 (7th Cir. 1987). Accord Mondy

v. Secretary of the Army, 845 F.2d at 1052 n.1.

Rule 15(c) of the Fed. R. Civ. P. allows an amendment correct-

ing the identity of the named defendant to “relate back” to the

initial pleading only if the correct party received actual notice of

the complaint within the applicable time period. Schiavone

Fortune, 477 U.S. 21, 29 (1986). In a number of reported cases,

Title VII complaints brought by federal employees have been dis-

missed because the employee named the incorrect individual as

defendant and was not able to correct the error within the 30-day

time period. E.9., Harris v. U.S. Department of Transportation,

843 F.2d 219 (5th Cir. 1988) (employee served his emplover, the

Coast Guard, but failed to name Secretary of Transportation) :

Williams v. Army & Air Force Erchange Service, 8830 F.2d 27

(3d Cir. 1987) (employee named AAFES rather than Secretary

of Defense); Bell v. Veterans Administration Hospital, 826 F.2d

857 (5th Cir. 16°87) (employee named Veterans Administration

Hospital rather than Administrator. Veterans Affairs).

16

immunity provides no support for construing the public-

sector provision differently from a virtually identical pro-

vision in the private-sector law.

While it is a truism that the conditions under which

the federal government consents to be sued must be

“strictly observed,” e.g., Lehman v. Nakshian, 453 U.S.

156, 161 (1981), recitation of that principle does not

advance the analysis here—it merely begs the question.

As this Court has observed, waivers of sovereign immu-

nity are not accomplished by a “ritualistic formula.”

Rather, “intent to waive sovereign immunity, and the

scope of that waiver can only be ascertained by reference

to underlying congressional policy.” Franchise Tax

Board v. United States, 467 U.S. 512, 521 (1984) (cita-

tions omitted). Congress clearly intended a broad waiver

of sovereign immunity under Title VII, to make federal

rights coextensive with those in the private sector. As

demonstrated above, Congress chose language that is per-

missive in tone and parallels in every respect the non-

jurisdictional time limit in section 2000e-5(f) (1).

From the cases construing that private-sector provi-

sion, we already know that the most natural reading is

to construe the time-limit language as non-jurisdictional.

This fact is virtually dispositive. Sovereign immunity

does not justify a “strained and unnatural reading” of

statutory language. Chandler v. Roudebush, 425 U.S. at

848. Rather, “the plain, obvious and rational meaning of

a statute is always to be preferred,” even where suit is

being brought against the government. Jd. (quotations

omitted).

Such an approach is particularly appropriate here be-

cause Congress intended to provide federal employees

with the same rights as workers in the private sector.

One of the themes that “dominated the debates, proposals,

and committee reports which preceded the enactment of

the Equal Employment Opportunity Act of 1972” was

“federal employees’ lack of adequate internal safeguards

17

against employment discrimination and Congress’ percep-

tion of their lack of access to the courts to raise claims

of job discrimination.” Chandler v. Roudebush, 425 U.S.

at 848-49. The Senate Labor Subcommittee “found that

an aggrieved Federal employee does not have access to

the courts” in large part because “[i]n many cases the

employee must overcome a U.S. government defense of

sovereign immunity or failure to exhaust administrative

remedies with no certainty as to the steps required to

exhaust such remedies.” S. Rep. No. 92-415 at 16. Con-

gress amended Title VII to cover federal employees in

1972, precisely for the purpose of waiving the govern-

ment’s sovereign immunity so that federal employees

would be given the same treatment as those in the private

sector. Indeed, it was Congress’ intent that the federal

government would act as a model and set the example for

employers in the private sector. See H.R. Rep. No. 92-

238 at 24-25.

Congress thus manifestly intended to eliminate the

sovereign immunity defense as a barrier to eradication

of discrimination in the federal service and to the full

exercise by federal employees of the rights enjoyed by

private employees. While this Court is not empowered to

extend a waiver of sovereign immunity beyond that which

the legislature has contemplated, the Court also may not

“assume the authority to narrow the waiver that Con-

gress intended.” United States v. Kubrick, 444 US. at

118, citing Iudian Towing Co. v. United States, 350 U.S.

61, 68-69 (1955). As this Court has often repeated,

“The exemption of the sovereign from suit involves

hardship enough where consent has been withheld. We

are not to add to its rigor by refinement of construction

where consent has been announced.” E.q., United States

v. Mitchell, 463 U.S. 206, 220 (1983); Block v. Neal,

460 U.S. 289, 298 (1983): United States v. Yellow Cah

Co., 340 U.S. 543, 554 (1951): United States v. Actna

Casualiy & Surety Co, 338 U.S. 366, 383 (1949), quoting

18

Anderson v. John L. Hayes Construction Co., 243 N.Y.

140, 147, 153 N.E. 28, 29-30 (1926).

As we have shown, the structure, history, and policy

underlying the 1972 amendments to Title VII establish

that Congress intended the 30-day time limit of section

2000e-16(c) to Le subject to the same equitable principles

as its private-sector counterpart. Congress, in fact, in-

tended that sovereign immunity would not be interposed

as an obstacle to promoting the remedial purposes of the

Act and giving federal employees the same rights as

other workers. The decision of the lower court frustrates

that clear intent and merits reversal.

CONCLUSION

The decision of the court of appeals should be revers2d

and the cause remanded for further proceedings.

Respectfully submitted,

GREGORY O’DUDEN *

Director of Litigation

ELAINE KAPLAN

Deputy Director of Litigation

KERRY L. ADAMS

Assistant Director of Litigation

NATIONAL TREASURY

EMPLOYEES UNION

1730 K Street, N.W.

Suite 1100 2

Washington, D.C. 20006

* Counsel of Record (202) 785-4411

April 1990

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