Opposition Brief — Stevens v. Department of Treasury

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No. 89-1821 WL 20

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In the Supreme Court of the Unitey States

OcTOBER TERM, 1990

CHARLES Z. STEVENS, III, PETITIONER

Vv.

DEPARTMENT OF THE TREASURY, ET Al

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

KENNETH W. STARR

Solicttor General

STUART M. GERSON

Assisiant Attorney General

MICHAEL JAY SINGER

MARY K. DOYLE

Altorneys

Deparimeni of Justice

Washington, D.C. 20530

(202) 514-2217

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QUESTION PRESENTED

Whether the timely filing of a notice of intent to sue is

sufficient to preserve district court jurisdiction under Sec-

tion 633a(d) of the Age Discrimination in Employment

Act of 1967, 29 U.S.C. 621 ef seg., even after a claim for

administrative relief under Section 633a(b) has been prop-

erly dismissed as untimely.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Adickes v. S. H. Kress & Co., 398 U.S. 144

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Castro v. Unites States, 775 F.2d 399 (ist Cir.

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Langford v. U.S. Army Corps of Engineers, 839

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Purvill v. Harris, 658 F.2d 134 (3d Cir. 1981), cert.

denied, 462 U.S. 1131 (1983) ................. 8: -

United States v. Lovasco, 431 U.S. 783 (1977) .... 5

Statutes and regulations:

Age Discrimination in Employment Act of 1967, 29

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ED on. cc cccceccses 3, 4, 5, 6, 7, 8

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

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Section 1613.231 .......... <r

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In the Supreme Court of the United States

OcTOBER TERM, 1990

No. 89-1821

CHARLES Z. STEVENS, II], PETITIONER

V.

DEPARTMENT OF THE TREASURY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The decision of the court of appeals (Pet. App. AS-A8)

is unreported. The decision of the district court (Pet. App.

A1-A4) is also unreported.

JURISDICTION

The judgment of the court of appeals was entered on

February 21, 1990. The petition for a writ of certiorari was

tiled on May 18, 1990. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATEMENT

1. The Age Discrimination in Employment Act of

1967 (ADEA), 29 U.S.C. 621 ef seqg., provides two

separate routes by which a federal employee who is at least

(1)

2

40 years of age and believes he has been discriminated

against because of his age can obtain relief. First, the

employee may file an administrative claim in accordance

with rules and regulations promulgated by the Equal

Employment Opportunity Commission (EEOC) and the

employing agency. 29 U.S.C. 633a(b). The employee

following this route first seeks counseling from an Equal

Employment Opportunity counselor at the employing

agency. 29 C.F.R. 1613.213. The counseling must be

sought within 30 calendar days of the alleged

discriminatory event, the effective date of the allegedly

discriminatory personnel action, or the date that the

employee knew or reasonably should have known of the

discriminatory event or personnel action. 29 C.F.R.

1613.214(a)(i). If the matter cannot be resolved to the

employee’s satisfaction, he must be advised in writing that

he has the right to file a formal complaint with the agency.

29 C.F.R. 1613.213(a). That complaint must be tiled

within 15 calendar days after the employee receives notice

of his right to file such a complaint. 29 C.F.R. 1619.214.'

If the agency denies the complaint, the employee may

then appeal to the EEOC. 29 C.F.R. 1613.215; 29 C.F.R.

1613.231.The notice of appeal must be filed within 20

calendar days after receipt of the agency’s notice of final

decision. After the administrative complaint Is filed with

the EEOC, the employee may at any time decide that he

' The agency shall extend the time limits for seeking counseling or

filing a complaint if the aggrieved person shows that he was not

notified of the time limits and was not otherwise aware of them, or

that he was prevented by circumstances beyond his control from sub-

mitting the matter within the time limits, the time limits may also be

extended for other reasons considered sufficient by the agency. 29

C.F.R. 1613.214(a)(4).

3

wishes to abandon the administrative process in favor of a

civil suit. The filing of a civil action automatically ter-

minates the processing of the administrative complaint. 29

C.F.R. 1613.513.

Alternatively, the employee may bring a civil action in

any federal district court of competent jurisdiction

without pursuing his administratvie remedies at all. The

ADEA provides that “{wJhen the individual has not filed a

complaint concerning age discrimination with the Com-

mission, no civil action may be commenced by any in-

dividual under this section until the individual has given

the Commission not less than thirty days’ notice of an in-

tent to file such action. Such notice shall be filed within

one hundred and eighty days after the alleged unlawful

practice.” 29 U.S.C. 633a(d).

2. Petitioner was employed by the Internal Revenue

Service until August 16, 1986, at the GS-6 grade level. On

August 17, 1986, he became a GS-7 Revenue Officer in

Training. On April 26, 1987, while still in the probationary

period, petitioner was asked to resign from the Revenue

Officer training program; he returned to his previous

grade level. On May 21, 1987, petitioner wrote a letter to

his Congressman in which he stated his belief that age had

been a determining factor in the request that he resign

trom the training program (Pet. App. A2, A6), but he did

not request an interview with an EEO counselor until

September 24, 1987, more than 30 days after the resigna-

tion request. An interview was held five days later.

On October 19, 1987, petitioner filed a complaint with

the Treasury Department, lis employing agency, alleging

that the April 26, 1987, employment decision involved

discrimination in violation of the ADEA. Pet. App. A2,

A6. At the bottom of that complaint, petitioner stated that

“[t}his is also my notice of intent to sue in U.S. Civil

District Court if the matter is not Satistactorily resolved.”

CX 4.

4

On December 3, 1987, the agency rejected the complaint

as untimely. CX 2. It recognized that although 29 C.F.R.

1613.215 requires a complainant to contact an EEO coun-

selor within 30 days of the allegedly discriminatory action,

that time limit may be extended if the complainant demon-

strates good cause to do so. /bid.; 29 C.F.R. 1613.214.

The agency concluded, however, that petitioner had not

provided adequate justification for his failure to contact

an EEO counselor until 151 days after the allegedly

discriminatory action had occurred. CX 2.

Petitioner thereupon appealed to the EEOC, which af-

firmed the agency’s decision in an order dated March 30,

1988. CX 1. It found that, although petitioner was aware

of the alleged discrimination at least by May 21, 1987 (the

date of his letter to his Congressman), he failed to seek

counseling until September 24, 1987—well beyond the

30-day time limit. The EEOC agreed with respondent that

petitioner had not offered adequate justification for

extending the time limit.

3. On May 4, 1988, petitioner filed suit under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. 2000e ef seq.,

and the ADEA. Pet. App. A5-A7. The Department of the

Treasury and James M. Baker, III, the Secretary of the

Treasury, were named as defendants. Petitioner alleged

that “[bjecause of [petitioner’s] age of 63 years, Defend-

ants failed to promote [petitioner] and forced [petitioner]

to request reduction to a lower grade of employment

under threat of dismissal from employment.” Compl.

para. 8. Petitioner did not assert jurisdiction based on Sec-

tion 633a(d) of the ADEA.

After a bench trial, the district court issued an order dis-

missing the case with prejudice for lack of jurisdiction.

Pet. App. Al-A4. Although the court recognized that,

under the ADEA, a person who believes that he has been

discriminated against on the basis of age has two avenues

5

of relief, it apparently assumed that petitioner’s failure to

initiate a judicial action within 180 days of the alleged dis-

criminatory action foreclosed his use of the direct judicial

review route. Pet. App. A3. It ruled that the EEOC had

properly rejected petitioner's administrative claim,

because petitioner had not initiated his EEO grievance by

seeking counseling within the required 30-day period, nor

had he identified sufficient equitable grounds to justify

tolling the running of that period. Pet. App. A3-A4.

4. The court of appeals affirmed, but with a different

rationale. It correctly observed that the 180-day time limit

of 29 U.S.C. 633a(d) applies to the filing of a notice of in-

tent to sue with the EEOC — not the filing of a civil suit, as

the district court believed. Pet. App. A6-A7. The court

then found that the statement at the bottom of petitioner’s

October 19, 1987, complaint to his employing agency

could serve as timely notice to the EEOC. The court never-

theless held that the notice was not “effective” because

petitioner did not file his law suit until May 4, 1988. Pet.

App. A7.

ARGUMENT

1. Petitioner contends for the first time in this Court

that, although he did not timely pursue his administrative

remedies, the district court had jurisdiction over his claim

because he complied with 29 U.S.C. 633a(d) by filing a

timely notice of intent to sue with EEOC. This Court does

not ordinarily address questions that have not been prop-

erly presented to the courts below. United States v.

Lovasco, 431 U.S. 783, 788 n.7 (1977); Adickes v. S. H.

Kress & Co., 398 U.S. 144, 147 n.2 (1970). There is no

reason to depart from that practice here.

Petitioner’s complaint portrayed the case as simply an

appeal from an unfavorable EEOC decision.? It did not

? For example, he alleged that he “did not know of the procedures

or a rule that required a charge to be lodged with an EEO Counselor

6

assert Section 633a(d)’s “notice of intent to sue” provision

as the jurisdictional basis for the suit; indeed, it did not

even refer to the “notice” contained in petitioner’s admin-

istrative complaint of October 19, 1987.° In these circum-

stances, the district court naturally focussed on the admin-

istrative record and properly concluded that petitioner had

not timely pursued his administrative remedies.

Petitioner similarly failed to advise the court of appeals

of the theory he now advances. In that court, petitioner ar-

gued that the “appropriate analysis for jurisdiction of this

case” should be based on 29 C.F.R. 1626.7(a), which pro-

vides that “[c}harges will not be rejected as untimely pro-

vided that they are not barred by the statute of limitations

as stated in [S]jection 6 of the Portal to Portal Act of

1947.” Pet. C.A. Br. 3. The court properly rejected this

argument, observing that the regulations petitioner relied

upon do not apply to federal employees. Pet. App. A7.

Nevertheless, the court of appeals apparently did treat

the case as though i had been brought pursuant to a notice

of intent to sue. See Pet. App. A6-A7. It recognized that

the October 19, 1987, statement could constitute the

timely notice required by Section 633a(d),* but then con-

within 30 days of an occurrence of age discrimmation, and in fact, did

not know at the time of the wrongful action that u was due to [peti-

tioner’s] age.” Compl. para. 8. That allegation strongly suggests peti-

twoner was challenging the administrative denial of his complaini,

rather than relying on his notice of intent as an independent predicate

for his lawsuit: the allegation was completely wrelevant to the latter

approach.

’ The administrative complaimt was, however, attached to the judi-

cial complaint.

* Section 633a(d) states that notice is to be given to the EEOC, and

petitioner's notice ts contained in his formal complaint to his employ-

img agency. Nevertheless, EEOC treats such technically deficiem

notices as sufficient to satisfy the statutory notice requirement.

7

cluded that because the civil action was not instituted until

almost seven months later, the notice “was not effective.”

Pet. App. A7.

The court of appeals did not explain that conclusion,

nor did petitioner seek clarification by filing a petition for

rehearing. In these circumstances — and particularly when

petitioner did not present the Section 633a(d) argument to

the court (the provision was not even cited in petitioner’s

court of appeals brief)— we submit that there is no need

for this Court to accept petitioner’s invitation to clarify or

correct the cryptic comment in the court of appeals’ un-

published opinion.

2. Wedo, however, agree that the court of appeals ap-

pears to have misapprehended the statutory provision

relating to direct judicial review. Perhaps — like the district

court (Pet. App. A3)—the court of appeals simply misread

Section 633a(d), which requires that the notice be given

not less than 30 days prior to bringing suit, and mistakenly

believed that a notice of intent to sue must be given within

30 days of bringing suit. The notice in this case clearly

complied with the 30-day requirement in Section 633a(d).

It is also possible, as petitioner now suggests (Pet. 9-14),

that the court of appeals assumed that the October 19 no-

tice was ipeffective because petitioner’s decision to seek

administrative relief precluded him from pursuing the

alternative route of direct judicial review. As petitioner

asserts, the courts of appeals are divided as to whether an

ADEA complainant who has elected the administrative

remedy scheme can nevertheless seek judicial review under

Section 633a(d) without completing the administrative

process. Compare Langford v. U.S. Army Corps of Engi-

neers, 839 F.2d 1192 (6th Cir. 1988) (claimant who seeks

administrative remedies does not need to exhaust those

remedies prior to bringing suit) with Castro v. United

States, 775 F.2d 399 (ist Cir. 1985) (claimant, having

started administrative process, must complete it); Purtill

v. Harris, 658 F.2d 134 (3d Cir. 1981) (same), cert. denied,

462 U.S. 1131 (1983).°

We do not, however, believe that this case involves that

conflict, since petitioner has exhausted his administrative

remedies; he obtained a fina! EEOC determination (albeit

not on the merits) before he filed his complaint. The issue

here is instead the somewhat different one of whether the

election of administrative remedies precludes any subse-

quent resort to judicial relief under Section 633a(d).° Peti-

tioner points to no conflict on that issue.

The cryptic comment of the court of appeals is not, in

any event, reliable evidence that it actually addressed this

issue, which, after all, was not presented to it. Because the

issue was not properly presented below it may not be

raised for the first time in a petition for certiorari, and the

petition should be denied. Alternatively, the Court may

wish to permit the court of appeals to consider that ques-

tion now. In that event, this case could be remanded to the

court of appeals for consideration of whether petitioner's

timely filing of a notice of intent to sue not less than 30

days before instituting a civil action against his federal

employer was sufficient to preserve the district court's

jurisdiction over his underlying age discrimination claim,

even though his efforts to obtain administrative relief were

properly dismissed as untimely.

> EEOC regulation 29 C.F.R. 1613.513 is consistemt with the posi-

tion adopted in Langford. lt provides that “|t}he filing of a civil action

by an employee or applicant involving [an ADEA administrative]

complaint * * * terminates processing of that complaim.” That regu-

lation assumes that a judicial complaint may properly be filed betore

the administrative process is complete.

* We do not, however, suggest that the Langford analysis is inappli-

cable in this slightly different situation.

9

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicuor General

STUART M. GERSON

Assistant Attorney General

MICHAEL JAY SINGER

Mary K. DOYLE

Attorneys

Jury 1990

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