# Petition for Writ of Certiorari — Stevens v. Department of Treasury > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0759%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 500 U.S. 1 ## Text WY 18 80 JOSEPH F. SPANIOL, JR. ~ RK In the Supreme Court of the United States OCTOBER TERM, 1989 CHARLES Z. STEVENS, III Petitioner VS. UNITED STATES DEPARTMENT OF THE TREASURY; NICHOLAS F. BRADY, Secretary, U. S. DEPARTMENT OF THE TREASURY Respondents PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Alison Steiner, Esq. ADELMAN & STEINER, P.A. P. O. Box 368 224 Second Avenue Hattiesburg, MS 39401 601/544-8291 (Counsel of Record) Darwin McKee, Esq. 600 West 8th Street, Suite 100 Austin, TX 78701 512/477-0925 COUNSEL FOR PETITIONER, CHARLES Z. STEVENS, III A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555 i QUESTIONS PRESENTED 1. DID THE COURT OF APPEALS VIOLATE THE UNAMBIGUOUS LANGUAGE OF THE ADEA AND/OR CONTROLLING PRECEDENT OF THIS COURT IN DECIDING THAT A_ FEDERAL EMPLOYEE’S TIMELY FILING UNDER 29 U.S.C. § 633a(d) OF A NOTICE OF INTENT TO FILE CIVIL AC- TION WAS RENDERED “INEFFECTIVE” AS A PREDICATE FOR ADEA CIVIL ACTION BECAUSE THE CIVIL ACTION WAS INSTITUTEFD MORE THAN THIRTY DAYS AFTER THE NOTICE? 2. DID THE COURT OF APPEALS ADOPT THE ELECTION/EXHAUSTON OF ADMINISTRATIVE REMEDIES REQUIREMENT OF CASTRO V. U.S., 775 F.2d 399 (1st Cir. 1985) AND PURTILL V. HARRIS, 658 F.2d 134 (3rd Cir. 1981), AND THUS CREATE A CON- FLICT WITH THE DECISION IN LANGFORD V. U.S. ARMY CORPS OF ENGINEERS, 839 F.2d 1192 (6th Cir. 1985), WHEN IT HELD THAT THE UNTIMELY FIL- ING OF A FEDERAL EMPLOYEE’S INTERNAL AGENCY ADEA COMPLAINT TIME BARRED HIS ADEA CIVIL ACTION, EVEN THOUGH THE EMPLOYEE HAD ALSO TIMELY FILED A NOTICE OF INTENT TO FILE SUIT PURSUANT TO 29 U.S.C. § 633a(d) NOT LESS THAN THIRTY DAYS PRIOR TO INSTITUTING HIS CIVIL ACTION? . RULE 28.1 STATEMENT Parties to this case are: Charles Z. Stevens, III, Petitioner United States Department of the Treasury, Respondent James A. Baker, III, former Secretary of the Treasury, Defendant/Appellee below Nicholas F. Brady, Secretary of the Treasury (successor to James A. Baker, III as Secretary of the Treasury), Respondent TABLE OF CONTENTS Page QUESTIONS PRESENTED ....................... i RULE 28:1 STATEMENT......................... ii TABLE OF CONTENTS ......................... iii TABLE OF AUTHORITIES ...................... iv OPINIONS BELOW.............................. l Teen Tn ne tcc wcnccces 2 EEE SS 2 STATEMENT OF THE CASE ..................... 2 REASONS FOR GRANTING THE WRIT: I. The Court Of Appeals Holding That The Peti- tioner’s Suit Was Filed Too Long After The Fil- ing Of The Notice Of Intent Is Directly Con- trary To The Express Language Of The ADEA And To Established Precedent Of This Court On Statutory Construction................... 5 Il. The Court Of Appeals, In Conflict With Deci- sions Of Other Circuits, Erroneously Bound Petitioner To An Election And Exhauston Of Remedies Not Required By The Statute ...... 9 IEEE 14 APPENDIX: EE SI A-l Appendix B ..... es so vice oe ss se anes A-5 Ng os ccc cases cece ese A-9 iv TABLE OF AUTHORITIES CASES Page American Tobacco Co. v. Patterson, 456 U.S. 63 ee el a acai aeh i hae oes G g Bob Jones University v. U.S., 461 U.S. 574 (1983) .. .9 Brown v. General Services Admn., 425 U.S. 820 a on eae a ee ee Sea 10 Castro v. U.S., 775 F.2d 399 (1st Cir. 1985)6,11,13 Escondido Water Co. v. La Jolla Band of Mission Indians, 466 US. 765 reh. den. Se ee rc cas scuge das tes ee bine 9 Irwin v. V.A., 874 F.2d 1092 (5th Cir. 1989) ......... 13 Jefferson County Pharmaceutical Association v. Abbot Laboratories, 460 U.S. 150 reh. den. I Peer Tee er Pere eee 9 Langford v. U.S. Army Corps of Engineers, 839 F.2d 1192 (6th Cir. 1985) .................. 11,12,13 Lehman v. Nakshian, 453 U.S. 156 (1972). ...... 7,8,10 Limongelli v. U.S.P.S., 707 F.2d 368 (9th Cir. RL ae yr Cr era eae eee ina ek 11 McKinney v. Dole, 765 F.2d 1129 (D.C. UIE ad ae SGN ein ale ea Pa 6 NLRB v. Amax Coal Co., 453 U.S. 322 reh den. ed ein c gis eee ee a wa 6s 9 Patterson uv. Weinberger, 644 F.2d 521 rg ee eee as key ae 13 Proud v. U.S., 872 F.2d 1066 (D.C. Cir. 1989) ........ 10 Purtill v. Harris, 658 F.2d 134 (3rd Cir. 1981) cert filed sub nom Purtill v. Schweiker, 51 U.S.L.W. 3062 (1982), cert den. sub nom Purtill v. Heekler, 462 U.S. 1131 (1983) ...... 11,13,14 Ray v. Nimmo,-704 F.2d 1480 (11th Cir. 1983) ....10,11 4 v TABLE OF AUTHORITIES (continued) Page Roman v. Shear, 799 F.2d 1416 (9th Cir. 1986), cert filed 55 U.S.L.W. 3734, cert den. ee ID oo bv ch wk cle ccccceccekews 11,14 Watt v. Alaska, 451 U.S. 259 (1981)................. ) White v. Franks, 718 F. Supp. 592, 595 I «ce an ee ee 13 Wiersma v. Tennessee Valley Authority, Civil Action No. 3-85-1160, (Eastern District of Tennessee, March 12, 1986), 41 BNA FEP CAS 1588, 41 CCH EPD Paragraphs 36518, 36519....... 7 Zipes v. TWA. Inc., 455 U.S. 385 (1982)........... 7,10 Other Authorities: Statutes: ID os osc kc uu dos svunweveuecavsen 2 io asso a wo u's -0 0 id 6 cle clone wale 2 en ea eee aes 2 I 2 ss vg 5 eis ss baled Cake 7 ge a bs ka voy eane nawebeueunben 7 Ne os os sa 6 we dee a9 0s a 2-13 SN A ss as clan be aaa eel 7 42 U.S.C. § 2000e-16(c)......................... 10,2 vi TABLE OF AUTHORITIES (continued) Page Regulations: 29 Code of Federal Regulations, Part XIV, Chapter 1613 ES nos os ced dune phaoe neta eeee 3 i ER er eI as ace 2,3,5 I: 3, dividual under this section until the individual has given the Commission not less than thirty days’ notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice oc- curred. Upon receiving a notice of intent to sue, the Commission shall promptly notify all persons named therein as prospective defendants in the action and any appropriate action to assure the elimina of any unlawful practice. A-1l APPENDIX D 29 CFR ch. XIV, Part 1613 provides in pertinent part: § 1613.214 Filing and processing of complaint. (a) Time limits. (1) An agency shall require that a complaint be submitted in writing by the complainant or representative and be signed by the complainant. The com- plaint may be delivered in person or submitted by mail. The agency may accept the complaint for processing in accord- ance with this subpart only if: (i) The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him/her to believe he/she had been discriminated against within 30 calendar days of the date of the alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the ag- grieved person knew or reasonably should have known of the discriminatory event or personnel action; and (ii) The complainant or representative submitted the written complaint to an appropriate official within 15 calendar days after the date of receipt of the notice of the right to file a complaint. (2) The appropriate officials to receive complaints are the head of the agency, the agency’s Director of Equal Employment Opportunity, the head of a field installation, and such other officials as the agency may designate for that purpose. Upon receipt of the complaint, the agency of- ficial shall transmit it to the Director of Equal Employ- ment Opportunity or appropriate Equal Employment Op- portunity Officer who shall acknowledge its receipt in ac- cordance with paragraph (a)(3) of this section. A-12 (3) A complaint shall be deemed filed on the date it is received, if delivered to an appropriate official, or on the date postmarked if addressed to an appropriate official designated to receive complaints. The agency shall acknowledge, in writing, to the complainant or represent- ative receipt of the complaint and advise the complainant in writing of all administrative rights and of the right to file a civil action as set forth in §1613.281, including the time limits imposed on the exercise of these rights. (4) The agency shall extend the time limits in this sec- tion when the complainant shows that he/she was not notified of the time limits and was not otherwise aware of them, was prevented by circumstances beyond the com- plainant’s control from submitting the matter within the time limits; or for other reasons considered sufficient by the agency. (b)Representation and official time. (1) At the stage in the processjng of a complaint, including the counseling stage under §1613.213, the complainant shall have the right to be accompanied, represented, and advised by a representative of complainant’s choice. (2) If the complainant is an employee of the agency, he/she shall have a reasonable amount of official time to prepare the complaint if otherwise on duty. If the complain- ant is an employee of the agency and he designates another employee of the agency as his/her representative, the representative shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint. The agency is not obligated to change work schedules, incur overtime wages, or pay travel expenses to facilitate the choice of a specific representative or to allow the complain- ant and representative to confer. However, the complain- ant and representative, if employed by the agency and otherwise in a pay status, shall be on official time, regardless of their tour of duty, when their presence is authorized or required by the agency or the commission A-13 during the investigation, informal adjustment, or hearing on the complaint. (3) In cases where the representation of a complain- ant or agency would conflict with the official or collateral duties of the representative, the Commission (or the agency prior to a hearing on the complaint) may, after giving the representative an opportunity to respond, disqualify the representative. Subpart E—Nondiscrimination on Account of Age GENERAL PROVISIONS § 1613.501 Purpose and applicability. (a) Purpose. This subpart sets forth the policy under which an agency shall establish a continuing program to assure nondiscrimination on account of age and the regula- tions under which an agency will process complaints of discrimination on account of age. (b) Applicability. (1) this subpart applies (i) to military departments as defined in section 102 of title 5. United States Code, and Executive agencies as defined in section 105 of title 5. United States Code, the United States Postal Service and the Postal Rate Commission, and to the employees thereof, including employees paid from non-appropriated funds, and (ii) to those units of the legislative and judicial branches of the Federal Govern- ment and the Government of the District of Columbia hav ing positions in the competitive service and to the employees of those positions. (2) This subpart does not ap- ply to aliens employed outside the limits of the United States. (3) Except as provided by paragraph (b)(2) of this section, this subpart applies to applicants for positions to which paragraph pm) of this section applies. (4) This A-14 subpart applies to employees and applicants for employ- ment who are at least 40 years of age. (c) Exceptions. Reasonable exemptions to the provi- sions of this subpart may be established by the Commis- sion for each position for which the Commission establishes a maximum age requirement on the basis of a determina- tion that age is a bona fide occupational qualification necessary to the performance of the duties of the position. § 1613.502 General Policy. It is policy of the Government of the United States (and of the government of the District of Columbia) to pro- hibit discrimination in employment on account of age to assure that all personnel actions affecting employees or ap- plicants for employment are free from discrimination on ac- count of age. AGENCY REGULATIONS FOR PROCESSING COMPLAINTS OF DISCRIMINATION § 1613.511 General. An Agency shall provide regulations governing the acceptance and processing of complaints of discrimination on account of age which, subject to § 1613.514, comply with the principles and requirements in §§ 1613.213 through 1613.222, 1613.241 and 1613.261 through 1613.271 of this part. § 1613.512 Coverage. The agency shall provide in its regulations for the ac- ceptance of a complaint from any aggrieved employee or applicant for employment with the agency who believes A-15 that he or she has been discriminated against on-account of age and who, at the time of the action complained of, was an employee or applicant for employment at least 40 years of age. A complaint may also be filed by an organization for the person with his or her consent. § 1613.513 Effect on Administrative Processing. The filing of a civil action by an employee or appli- cant involving a complaint filed under this subpart ter- minates processing of that complaint. § 1613.514 Exclusions. Sections 1613.281 and 1613.282 shall not apply to the processing of discrimination complaints on account of age. The reference to § 1613.281 in §§ 1613.215, 1613.217, 1613.220, and 1613.221 may not be included in agency regulations required by this subpart. § 1613.521. Appeal to the Commission. Except for the requirements in § 1613.234 that the decision of the Office of Review and Appeals contain a notice of the right to file a civil action in accordance with § 1613.282, §§ 1613.231 through 1613.240 of this part shall apply to this subpart. A --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0759%3A2. Public record. Not legal advice.