Petition for Writ of Certiorari — Young v. National Center for Health Services Research

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IN THE

Supreme Court Of The United States

October Term, 1989

LIH Y. YOUNG,

Petitioner,

NATIONAL CENTER FOR HEALTH

SERVICES RESEARCH,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Robert B. Fitzpatrick

(Counsel of Record)

Mark D. Laponsky

FITZPATRICK & VERSTEGEN

Spring Valley Center

Suite 400

4801 Massachusetts Avenue, N.W.

Washington, D.C. 20016

(202) 364-8710

Counsel for Petitioner

Baimar Legal Publishing Division, Washington, D.C. 20005 (202) 659-3610

Ae Pace

QUESTIONS PRESENTED

1. Can an amendment to a complaint

changing the name of the defendant

relate back to the original filing where

equitable reasons exist to extend the

applicable statute of limitations?

2. Is the Secretary of a cabinet

level department of the federal

government the only appropriate

defendant in an action under Title VII

of the Civil Rights Act of 1964, as

amended, filed by an employee of such a

department?

PARTIES TO THE PROCEEDINGS

The parties to this petition are

the same as the parties to the appeal

and civil action below, as reflected in

the caption. However, this case reaches

this Court, in part, on petitioner's

effort to add the Secretary of the

Department of Health and Human Services

as a defendant.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .........-2--- i

PARTIES TO THE PROCEEDINGS ..... ii

TABLE OF AUTHORITIES ........... iv

OPINIONS BELOW .......ccceceeeee 1

WUMEMULGCEEUN ceccccccscccccccccs 2

STATUTORY PROVISIONS AND

Tt PERSE OE ESSS SSS Ocoee eecees 3

STATEMENT OF THE CASE .......... 4

REASONS FOR GRANTING THE PETITION:

I. A CONFLICT EXISTS AMONG THE

CIRCUITS ON WHETHER OR NOT

THE THIRTY DAY STATUTE OF

LIMITATIONS OF 42 U.S.C. SEC.

2000e-16(c) MAY BE EXTENDED

FOR EQUITABLE REASONS SO AS

TO PERMIT AN AMENDMENT CHANG-

ING THE NAME OF THE DEFENDANT

TO RELATE BACK UNDER RULE

US (C) ccccccccccccccccccccee lO

II. THIS COURT'S REVIEW IS NECES-

SARY TO END CONFUSION AMONG

LOWER COURTS AND LITIGANTS

INTERPRETING 42 U.S.C. SEC.

2000-16 (C) .. cece cere cceee ee 2l

CONCLUSION Deb bbbeececsescesscocccald

Dt eins

TABLE OF AUTHORITIES

Page

Cases:

Baldwin County Welcome Center

v. Brown, 466 U.S. 147 (1984)

* s. . J . . . . . . . . .* shde 74, 75

Beasley v. Griffin, 427 F.Supp. 801,

803 (D.Mass. 1977) .....-e.- 28

Bell v. Veterans Administration

Hospital, 826 F.2d 357

(5th Cir. 1988) . — oo - J . >. - e eo e 19

Boddy v. Dean, 821 F.2d 346 (6th Cir.

1987) es . Oo es - e s e ° o ° - . se 13, 18

Cooper v. United States Postal

Service, 740 F.2d 714 (9th Cir.

1984), cert. denied, 471 U.S. 1022

EE Se er |.

Gardner v. Gartman, 880 F.2d 797,

Guilday v. Department of Justice,

451 F.Supp. 717, 726 (D.Del. 1978). . 27

Hancock v. Egger, 848 F.2d 87

(6th Cir. 1988) ss e . . ° = * = o e . 25

Harris v. Department of

Transportation, 843 F.2d 219,

220 (5th Cir. 1988) * = a — * .* . * . oat

Hernandez v. Aldridge, 866 F.2d 800

ES ee | Pe

Page

Cases:

Hornsby v. United States Postal

Service,787 F.2d 87 (3rd Cir.

(1986) - . . - . . o . 7 . . . . 13, 18

I.M.A.G.E. v. Bailar, 78 F.R.D. 549

a, ak. BO «ik eee Ss

Jones v. United States, 376 F. Supp.

i3, 14 n.3 (D.D.C. 1974) . . . . - ° 28

Lamb v. United States Postal Service,

852 F.2d 845 (5th Cir. 1988) .... 19

Mahoney v. United States Postal

Service, 884 F.2d 1194

(9th Cir. 1989) - _ . * . . 7 . . + ° 19

Martinez v. Orr, 738 F.2d 1107

eth Cie. 1606) « « « « «6 « 2 s 3,

Milam v. United States Postal

Service, 674 F.2d 860 (11th Cir.

1982) — eo . . > J . > . . o . - . 13, 19

Mondy v. Secretary of the Arny,

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

eee eee 6 4 6 es 3 ee) eee

18, 24

Mosley v. United States, 425

F. Supp. 50, 55 (N.D. Cal. 1977) . . .28

Paulk v. Department of the Air Force,

830 F.2d 79 (7th Cir. 1987) .... 12,

19, 26

Page

Cases:

Rys v. United States Postal Service,

702 F.Supp. 945 (D.Mass. 1989) ...

Schenk v. Pyles, 17 FEP Cases (BNA)

1469 (D.D.C. 1976) = . . . 7. . o . .

Shiavone v. Fortune, 477 U.S. 21

(1986) o . . — . . . 7. + . . . . . .

Stephenson v. Simon, 427

F. Supp. 467 (D.D.C. 1976) . . . .

Stuckett v. United States Postal

Service, 469 U.S. 898 (1984) ....

Warren v. Department of the Army,

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

. . 7 . . . . . . . . . . . . o 11,

15,

Williams v. United States Postal

Service, 873 F.2d 1069

cpa es SOO) « « « « « 22, 28, 19,

-28

-17

-20

13,

vil

Page

Statutory Provisions and Rules:

42 U.S.C.Sec. 2000e-5 (f) (1) ee ae -13

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

Fed.R.Civ.P.15(c) . . .. . . 12, 14, 15

29 C.F.P. § 1613.214 . . . »- »- « « 5S, 6

OPINIONS BELOW

The opinion from which review is

sought, Young v. National Center for

Health Services Research, No. 88-1017,

(4th Cir. September 27, 1989), is

unpublished. It is reproduced at pages

32a-42a of the Appendix hereto. The

district court opinion is reported at

704 F. Supp. 88 (D. Md. 1988) and is

reproduced at pages 43a-53a of the

Appendix hereto.

A previous opinion of the Court of

Appeals for the Fourth Circuit in this

matter is reported at 828 F. 2d 235 (4th

Cir. 1987) and is reproduced at pages

54a-66a of the Appendix hereto. The

edited transcript of the opinion of the

magistrate, dated March 7, 1986, is

unreported and is reproduced at pages

67a-84a of the Appendix hereto. The

final decision of the Equal Employment

Opportunity Commission, dated May 3,

1985 (Appeal No. 01842738), on

petitioner's administrative appeal from

the decision of the Department of Health

and Human Services is unreported and

reproduced at pages 85a-95a of the

Appendix hereto. The final decision of

the Department of Health and Human

Services, dated August 20, 1984, on

petitioner's administrative complaint of

employment discrimination (File No. ASH-

401-84) is unreported and is reproduced

at pages 96a-106a of the Appendix

hereto.

JURISDICTION

The Fourth Circuit Court of Appeals

decided this case and entered judgment

on September 27, 1989.

This Court's jurisdiction arised

pursuant to 28 U.S.C. Sec. 1254(1).

STATUTORY PROVISIONS AND RULES

This action is based on Title VII

of the Civil Rights Act of 1964, as

amended, which provides in pertinent

part:

Section 2000e-16(c) [Sec. 717(c)]:

Within thirty days of receipt of notice

of final action taken by a department,

agency, or unit referred to in

subsection 717(a), or by the Civil

Service Commission upon an appeal from a

decision or order of such department,

agency or unit on a complaint of

discrimination based on race, color,

religion, sex or national origin,

brought pursuant to subsection (a) of

this section, Executive Order 11478 or

any succeeding Executive orders, or

after one hundred eighty days from the

filing of the initial charge with the

department, agency or unit or with the

Civil Service Commission on appeal from

a decision or order of such department,

agency or unit, an employee or applicant

for employment, if aggrieved by the

final disposition of his complaint, or

by the failure to take final action on

his complaint, may file a civil action

as provided in section 706, in which

civil action the head of the department,

agency, or unit, as appropriate, shall

be the defendant.

The Federal Rule of Civil Procedure

involved in this case is Rule 15, which

provides in pertinent part:

Whenever the claim or defense assserted

in the amended pleading arose out of the

same transaction, or occurrence set

forth or attempted to be set forth in

the original pleading, the amendment

relates back to the date of the original

pleading. An amendment changing the

party against whom a claim is asserted

relates back if the foregoing provision

is satisfied and, within the period

provided by law for commencing the

action against the party to be brought

in by amendment, that party (1) has

received such notice of the institution

of the action that the party will not be

prejudiced in maintaining a defense on

the merits, and (2) knew or should have

known that but for a mistake concerning

the identity of the proper party, the

action would have been brought against

the party.

STATEMENT OF THE CASE

Petitioner was employed by the

National Center for Health Services

Research (hereinafter "National Center),

a unit of the Department of Health and

Human Services. In March, 1984, she

resigned from her employment. At the

time she resigned, Mr. John Marshall was

the Director of the National Center.

Within thirty (30) days after she

resigned her employment, petitioner

contacted an Equal Employment

Opportunity (EEO) Counselor to complain

about the discriminatory treatment she

received as an employee, claiming that

it compelled her to resign. Petitioner

filed an administrative complaint

claiming employment discrimination in

accordance with 29 C.F.R. Sec. 1613.214.

The Department of Health and Human

Services rejected the complaint as

untimely, concluding that petitioner had

not contacted an EEO Counselor within

thirty (30) days after the occurrence of

the events she complained about, as

required by 29 C.F.R. Sec. 1613.214.

(App.96a-106a)

Petitioner timely appealed the

Department's decision to the Equal

Employment Opportunity Commission

("EEOC") pursuant to 29 C.F.R. Sec.

1613.233. The EEOC affirmed the

Department's decision, advising

petitioner that she could seek judicial

review against the Department in U.S.

district court. (App. 85a-95a)

Proceeding pro se, petitioner filed

suit under section 717 of the Civil

Rights Act of 1964, as amended. 42

U.S.C. Sec. 2000e-16 et seg. She named

the defendant as follows:

National Center for Health Services

Research,

5600 Fishers Lane

Park Building, Room 3-50

Rockville, Maryland 20857

Attn: John Marshall, Director

(See App. 34a) Suit was timely filed on

a form supplied by the Clerk of the

district court. Service was made by the

U.S. Marshals Service thirty-one (31)

days after the time for filing suit,

pursuant to 42 U.S.C. Sec. 2000e-16(c),

expired.

Upon referral to a magistrate, an

evidentiary hearing was held to

determine whether petitioner timely

initiated the administrative proceedings

and thereby properly exhausted her

administrative remedies. The magistrate

determined that petitioner had not

timely contacted an EEO Counselor.

(App. 67a-84a) The case was dismissed.

Petitioner secured counsel and

appealed. The Court of Appeals for the

Fourth Circuit reversed, finding that

since petitioner claimed constructive

discharge, the time within which she was

required to contact an EEO Counselor

began to run on the date she resigned.

(App. 64a) The court found that

petitioner did contacted an EEO

Counselor within thirty (30) days after

she resigned and remanded the case for a

decision on the merits. (App. 64a-66a)

On remand, the Department of Health

and Human Services moved to dismiss for

lack of subject matter jurisdiction

because petitioner had not named the

Secretary of the Department as the

defendant. Assuming that the Secretary

was the only proper defendant, previous

counsel for the plaintiff moved to amend

the complaint to name the Secretary and

opposed dismissal.

The district court denied the

amendment and dismissed the case,

reasoning that the complaint could not

relate back to the original filing under

Rule 15 and that the court lacked

subject matter jurisdiction over the

original complaint because the Secretary

was. not named. (App. 43a-53a)

Petitioner appealed. She argued

that a proper defendant, John Marshall,

Director of the National Center, had

been named as a defendant. She also

argued that the her amendment should

have been permitted to relate back to

the original filing, as equitable

reasons existed for extending the

statute of limitations and thereby the

time within which notice to the

Secretary could be received.

The court of appeals, held that the

amendment was properly denied, as

service was not made within the

statutory thirty (30) day time period

for filing suit. (App. 32a-42a) The

court also held that petitioner's

previous counsel conceded that the

proper defendant had not been named and

therefore, petitioner could not argue

that she named a proper defendant.

(App. 32a-42a)

Petitioner requests that this

honorable Court review and reverse the

decision of the Fourth Circuit.

REASONS FOR GRANTING THE PETITION

I. A CONFLICT EXISTS AMONG THE CIRCUITS

ON WHETHER OR NOT THE THIRTY DAY

STATUTE OF LIMITATIONS OF 42 U.S.C.

SEC. 2000e-16(c) MAY BE EXTENDED FOR

EQUITABLE REASONS SO AS TO PERMIT AN

AMENDMENT CHANGING THE NAME OF THE

DEFENDANT TO RELATE BACK UNDER RULE

25(C)

The decision below differs from the

decisions of the Court of Appeals for

the District of Columbia Circuit in

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

1051 (D.C. Cir. 1988), and the Court of

Appeals for the Eighth Circuit in Warren

vy. Department of the Army, 867 F.2d 1156

(8th Cir. 1989). A conflict exists

among the circuits on two relevant

issues. First, the circuits are split

as to whether, in appropriate

circmstances, the statute of limitations

in 42 U.S.C. Sec. 2000e-16(c) may be

equitably extended, thus extending the

Rule of Civil Procedure 15(c)'s “period

provided by law for commencing the

action" in order to permit amendments to

relate back. Second, the circuits are

split on whether the 30 day limitation

of 42 U.S.C. Sec. 2000e-16(c) is a

statute of limitation permitting

equitable extension, or jurisdictional

and precluding any extension.

The decision below by the Fourth

Circuit permits no such extension of

Rule 15(c)'s notice period and refuses

to permit any equitable extension under

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

The Seventh Circuit in Williams v.

United States Postal Service, 873 F.2d

1069 (7th Cir. 1989) also refuses to

’ The rule

recognize such an extension.

announced in the decision below is a

rigid rule, turning a statute of

: The Seventh Circuit has

recognized one exception, holding that

the notice period of Rule 15(c) may be

extended when the plaintiff has filed a

petition to proceed jn forma pauperis.

Paulk v. Department of the Air Force,

830 F.2d 79, 82 (7th Cir. 1987).

limitations* into a jurisdictional

prerequisite to suit.

In Mondy v. Secretary of the Army,

845 F.2d 1051, the Court of Appeals for

the District of Columbia Circuit held

that the 30 day statute of limitations

in 42 U.S.C. Sec. 2000e-16(c) can be

extended in appropriate circumstances.

; In Baldwin County Welcome

Center v. Brown, 466 U.S. 147 (1984),

this Court stated that the time for a

non-federal sector employee to file

suit, under 42 U.S.C. Sec. 2000e-

5(f) (1), is a statute of limitation,

subject to equitable extensions in

appropriate cases. The majority of

circuits that have considered the issue

hold that the time for a federal

emplolyee to file suit under 42 U.S.C.

Sec. 2000e-16(c) is not jurisdictional,

but a statute of limitation. See

Warren v. Department of the Army, 867

F.2d 1156; Mondy v. Secretary of the

ae 845 F.2d 1051; Boddy v. Dean, 821

F.2d 346 (6th Cir. 1987); Hornsby v.

United States Postal Service, 787 F.2d

87 (3rd Cir. 1986); Martinez v. Orr, 738

F.2d 1107 (10th Cir. 1984); Milam v.

United States Postal Service, 674 F.2d

860 (11th Cir. 1982).

It further permitted such a period of

extension to be a part of the "period

provided by law for commencing the

action" for the purposes of Rule 15(c).

In Mondy, the complaint was timely, but

named a purportedly improper defendant.

The plaintiff relied on the U.S.

Marshals Service to make service. In

this case, petitioner timely filed her

action against a purportedly improper

defendant and relied upon the U.S.

Marshals Service to effect service. In

both cases, service was not effected

until after the statute of limitations

expired. In Mondy, the District of

Columbia Circuit equitably extended the

limitations period and similarly

extended the Rule 15(c) notice period to

permit an amendment that would relate

back.

In this case, the Fourth Circuit

explicitly refused to interpret Rule

15(c)'s notice period as being amenable

to any extension beyond the 30 days

contained in 42 U.S.C. Sec. 2000e-16(c).

The Eighth Circuit has endorsed the

District of Columbia Circuit's

approach’, whereas the Seventh Circuit

endorses the Fourth Circuit's rule.‘

The circuits permitting equitable

extension of the limitations period to

provide a basis for satisfying Rule

15(c) is timely notice requirement do

not create an exception to Rule 15(c)'s

requirements. They read Rule 15(c)'s

notice “within the period provided by

Army, 867 F.2d 1156.

Postal Service, 873 F.2d 1069.

law for commencing the action" as being

notice within the statute of

limitations, recognizing that the

statute of limitations may be equitably

extended.

The decision below, however,

rigidly requires notice within the

limitations period. Because the

decision below fails to recognize that

"the period provided by law for

commencing the action" may be equitably

extended to permit amendments where the

statute of limitations should be

equitably extended, it turns the statute

of limitations into a jurisdictional

barrier that may not be extended where a

mistake was made concerning the identity

of the proper defendant.”

In Rys v. United States Postal

Service, 702 F.Supp. 945 (D.Mass. 1989),

the court avoided making a decision on

whether the statute of limitations and

the notice period are equally amenable

to extension by finding that there was

the requistite notice for an amendment

to relate back. However, the court

recognized that dismissal as required by

the Fourth and Seventh Circuits requires

. The Fourth Circuit noted that

it, as did this Court in Shiavone v.

Fortune, 477 U.S. 21 (1986), refuses to

read the reasonable time requirement for

service under Rule 4 of the Federal

Rules of Civil Procedure into the notice

period under Rule 15(c). The equitable

extension recognized by other Circuits

and urged here is not the "reasonable

time" extension for service rejected by

this Court. The equitable extension of

the statute of limitations is inherently

a part of the "period provided by law

for commencing the action," under Rule

15(c).

that the statute of limitations of 42

U.S.C. Sec. 2000e-16(c) be a

jurisdictional limitation. The court

further recognized a “divisive split"

among the circuits as to whether 42

U.S.C. Sec. 2000e-16(c)'s 30 day

limitation period is juridictional. 704

F.Supp. at 948.

Currently, six circuits, i.e., the

Third, Sixth, Eighth, Tenth, Eleventh,

and District of Columbia have either

held or indicated that the limitation is

a statute of limitation and is not

jurisdictional. See Warren v.

Department of the Army, 867 F.2d 1156

(8th Cir. 1989); Mondy v. Secretary of

the Army, 845 F.2d 1051 (D.C. Cir.

1988); Boddy v. Dean, 821 F.2d 346 (6th

Cir. 1987); Hornsby v. United States

Postal Service, 787 F.2d 87 (3rd Cir.

1986); Martinez v. Orr, 738 F.2d 1107

(10th Cir. 1984); Milam v. United States

Postal Service, 674 F.2d 860 (11th Cir.

1982).

Three circuits, i.e., the Fifth,

Seventh, and Ninth, have held the

limitations period to be jurisdictional.

Mahoney v. United States Postal Service,

884 F.2d 1194 (9th Cir. 1989); Williams

v. United States Postal Service, 873

F.2d 1069 (7th Cir. 1989); Paulk v.

Department of the Air Force, 830 F.2d 79

(7th Cir. 1987); Vv j es

Postal Service, 852 F.2d 845 (5th Cir.

1988); Bell v. Veterans Administration

Hospital, 826 F.2d 357 (5th Cir. 1988)°;

. A panel of the Court of

Appeals for the Fifth Circuit, noting

the split among the Circuits and its own

jurisdictional rule, has urged

reconsideration of that Circuit's

precedent holding the 30 day time limit

to be jurisdictional. Hernandez v.

Cooper v. United States Postal Service,

740 F.2d 714 (9th Cir. 1984), cert.

denied, 471 U.S. 1022 (1985).

This Court has twice denied

certiorari in cases presenting the issue

of whether the 30 day time limitation of

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

jurisdictional, over dissents noting a

split in the circuits. Cooper v. United

States Postal Service, 471 U.S. 1022

(1985); Stuckett v. United States Postal

Service, 469 U.S. 898 (1984). Since

denial of certiorari in the Cooper and

Stuckett cases, the split in the

circuits has grown and sharpened. Six

of the circuits, noted above have

announced their rules since 1985. Four

of the six hold the limitations period

Aloriqgs; see F-za- 800 (5th Cir. 1989).

to be non-jurisdictional, and two of the

six hold that it is jurisdictional.

Most importantly, this split has

resulted in a split among the circuits

as to the proper application of Rule

15(c)'s notice requirement.

The split among the circuits

permits and indeed has widened. This

Court should intervene to resolve the

split in the circuits.

II. THIS COURT'S REVIEW IS NECESSARY TO

END CONFUSION AMONG LOWER COURTS

AND LITIGANTS INTERPRETING 42

U.8.C. SEC. 2000e-16(c)

Section 2000e-16(c) states that in

any lawsuit brought under 42 U.S.C. Sec.

2000e-16 "the defendant shall be the

head of the department, agency, or unit,

as appropriate." This Court has never

analyzed and interpreted 42 U.S.C. Sec.

2000e-16(c) with respect who may be

named as a federal government defendant.

In fact, petitioner's research has

revealed only two decisions in the

seventeen years since its enactment that

purport to analyze and interpret that

section. The application and

interpretation of the section has not

been consistent among the district

courts or the courts of appeals.

Petitioner named as the defendant

in her civil action both the unit of the

Department of Health and Human Services

in which she worked and the "head" of

that unit. Her complaint was filed

against the

National Center for Health Services

Research

5600 Fishers Lane

Park Building, Room 3-50

Rockville, Maryland 20857

Attn: John Marshall, Director

(App. 34a).

In Stephenson v. Simon, 427 F.Supp.

467 (D.D.C. 1976), the district judge

interpreted section 2000e-16(c) to mean

that there is only one proper defendant

. The Court of Appeals

determined that petitioner's previous

counsel conceded that a proper defendant

was not named and, therefore, refused to

address the argument that a proper

defendant, the "head" of the "unit" in

which she was employed was named.

Ordinarily stipulgtions of the sort the

court considered to be a concession are

binding. However, a party may be

relieved of the binding nature of such a

stipulation when "manifest injustice"

will result from enforcement of the

stipulation or the stipulation was

entered on an erroneous view of the

facts or law. See Grafenhain v. Pabst

Brewing Co., 870 F.2d 1198 (7th Cir.

1989). Here, manifest injustice will

result. Petitioner is deprived of the

opportunity to have her timely lawsuit

heard. Also present in this case is the

fact that the stipulation was based on

an erroneous view of the law.

Petitioner's previous counsel assumed

that a proper defendant was not named.

As is illustrated herein, the law

governing who are proper defendants is

far from clear.

in a Title VII case against a federal

employer. According to that court, the

defendant must be the person highest in

the chain of command within a cabinet

department, a military department, or an

independent agency.

The District of Columbia Circuit,

faced with a case in which it could

endorse the Simon interpretation,

refused to do so. ondy_v ecre

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

(expressly declining to opine as to who

may be a proper defendant under 42

U.S.C. Sec. 2000e-16(c)). In Mondy,

Senior Judge MacKinnon noted that his

interpretation of the section permits

suit against a variety of defendants,

provided they are “appropriate” under

the circumstances of the case. 845 F.2d

at 1059. To Judge MacKinnon, the naming

in that case of an Army Colonel who was

the base commander was sufficient under

the statute.

The only circuit opinion purporting

to analyze and interpret the section

actually does no more than quote Simon

and adopt its interpretation. See

Hancock v. Egger, 848 F.2d 87 (6th Cir.

1988) (holding that Secretary of the

Treasury was the only proper defendant

and that suit could not be maintained

against the Commissioner of Internal

Revenue). Other ciruits have noted that

the section is unclear.® The Seventh

Circuit stated that the phrase "head of

the department, agency, or unit, as

. The Fourth Circuit recently

stated that the section "is clear; the

head of the department for which the

plaintiff works is the proper defendant

---" Gardner v. Gartman, 880 F.2d 797,

799 (4th Cir. 1989).

appropriate," is "cryptic...

provid[ing] little guidance to

litigants." Paulk v. Department of the

Air Force, 830 F.2d 79, 80 (7th Cir.

1987). The Third Circuit, in Williams

v. Army and Air Force Exchange Service,

830 F.2d 27, 31 (3rd Cir. 1987),

"strongly urge(d]" federal agencies,

including the Justice Department, to

provide litigants with clear guidance on

who should be sued.

The Third Circuit's Williams

decision dismissed a complaint filed

only against a unit of a federal

cabinent level department. However, the

court noted that the plaintiff had a

choice of proper defendants under 42

U.S.C. Sec. 2000e-16(c). According to

the Third Circuit, either the "Secretary

of Defense or the head of the agency

(AAFES)" would be a proper defendant.

830 F.2d at 29 (emphasis added).

Similarly, the Fifth Circuit observed

that 42 U.S.C. Sec. 2000e-16(c) provides

a choice of defendants. In Harris v.

Department of Transportation, 843 F.2d

219, 220 (5th Cir. 1988), the court,

dismissing the complaint, stated that an

employee of the Coast Guard, a part of

the Department of Transportation could

sue the "head of the Coast Guard."

Other courts have reached similar

results.’

9 :

i.-M.A.G.E. v. Bailar, 78

F.R.D. 549 (N.D. Cal. 1978) (Postmaster

General and officials lower in the chain

of command are appropriate defendants) ;

, 451

F.Supp. 717, 726 (D.Del. 1978) ("The

wording of Title VII leaves the Court

considerable discretion to decide which

defendant is the ‘appropriate' one.") ;

, 427 F.Supp. 801, 803

(D.Mass. 1977) ("since each [defendant]

may be described as a ‘'head' of the

department, aganecy or unit in question

Seventeen years have elapsed since

Title VII was amended to permit actions

against the federal government. Despite

seventeen years of litigation and

hundreds of cases, a fundamental

interpretive problem continues to infect

application of 42 U.S.C. Sec. 2000e-

16(c). The Courts of Appeals do not

uniformly apply the section and avoid

here--the Boston Region of the United

States Customs Service [a part of the

Treasury Department]--I see no

persuasive reason to dismiss the

complaint against any of them."); Mosley

v. United States, 425 F.Supp. 50, 55

(N.D. Cal. 1977) (Lieutenant Commander

who was head of the Navy Postgraduate

School was the "only proper

defendnant."); Schenk v. Pyles, 17 FEP

Cases (BNA) 1469 (D.D.C. 1976) ("Head" of

the Federal Aviation Administration, a

part of the Department of

Transportation, was the proper

defendant); Jones v. United States, 376

F.Supp. 13, 14 n.3 (D.D.C.

1974) (Administrator of Agency for

International Development, a part of

State Department, was the proper

defendant).

interpreting it. This Court's

interpretation of the section is

necessary to ensure uniform treatment

from one court to another and to end the

confusion experienced by lower courts,

practitioners and litigants.

CONCLUSION

Because the decision below creates

and deepens conflits among the circuits

in the application and interpretation of

42 U.S.C. Sec. 2000e-16(c) and Rule 15

of the Federal Rules of Civil Procedure;

because this Court's guidance is needed

to avoid further confusion and

conflicting decisions in cases involving

employees of the federal government; and

because the decision below fails to

correctly interpret either Rule 15(c) of

the Federal Rules of Civil Procedure or

42 U.S.C. Sec. 2000e-16(c), a writ of

certiorari should issue and the decision

below should be reversed.

Respectfully submitted,

Spring Valley Center

Suite 400

4801 Massachusetts Avenve, N.W.

Washington, D.C. 20016

(202) 364-8710

Counsel for Petitioner

ad ee

31a

APPENDIZ

32a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-1017

LIH Y. YOUNG,

Plaintiff-Appellant,

versus

NATIONAL CENTER FOR HEALTH SERVICES

RESEARCH,

Defendant~-Appellee.

Appeal from the United States District

Court for the District of Maryland, at

Baltimore. Joseph H. Young, District

Judge. (CA-85-2547-Y)

Argued: February 9, 1989

Decided: September 27, 1989

Before Ervin, Chief Judge, and Russell

and Widener, Circuit Judges.

PER CURIAM:

Lih Y. Young appeals the dismissal

of her case for lack of jurisdiction.

Finding no error, we affirm the decision

33a

of the district court.

Appellant Lih Y. Young, Ph.D., is a

former employee of the National Center

for Health Services Research (the

"Center"), as part of the Department of

Health Services ("DHHS"), which is

supervised by the Assistant Secretary

for Health. In June 1984, Dr. Young

filed an administrative complaint

against the Center, alleging that the

Center discriminated against her on the

basis of national origin and that she

was forced to resign in March 1984. The

complaint was rejected by DHHS, which

ruled that Dr. Young had failed to bring

her complaints to the attention of an

Equal Employment Opportunity ("EEO")

Counselor within 30 days. Dr. Young

appealed to the EEO, which affirmed the

34a

decision of the DHHS. Dr. Young,

proceeding pro se, filed a civil action

in the District Court for the District

of Maryland on June 14, 1985. The

complaint was captioned in pertinent

part:

National Center for Health Services

Research

Attn: John Marshall, Director

The Attorney General, the United

States, and the Center were served on

July 18, 1985, thirty-four days after

the filing of the complaint.

After the case was referred to a

magistrate, the magistrate dismissed the

action for failure to exhaust

administrative remedies; the magistrate

found that Dr. Young did not contact an

EEO counselor in a timely manner. Dr.

Young obtained counsel and appealed.

35a

This court reversed, holding that the

date of her resignation, 29 days before

her first contact with the EEO officer,

was the appropriate date to start the

running of the 30-day limit where a

plaintiff had alleged constructive

discharge. ° Vv io

Health Services Research, 828 F.2d 235,

238 (4th Cir. 1987). The case was

remanded to the district court for a

decision on the merits.

On remand, the defendant moved to

dismiss the lack of subject matter

jurisdiction, claiming that Dr. Young

had failed to name the proper defendant-

-the Secretary of DHHS. Dr. Young

opposed the motion. She also moved to

amend the complaint to specifically

relate back to the original complaint

date pursuant to Fed.R.Civ.P. 15. The

36a

district court denied the motion,

holding that the motion to amend could

not relate back under Fed.R.Civ.P. 15

because service had not been made within

the proper statute of limitations as

mandated by that Rule. Young v.

° ervices

Research, 704 F. Supp. 88, 90 (D.Md.

1988). This appeal followed.

Il.

In this appeal, we are asked to

decide (1) whether the district court

erred when it dismissed Dr. Young's

action for lack of jurisdiction because

she failed to name the proper defendant,

and (2) whether the district court erred

when it denied Dr. Young's motion to

amend her complaint.

IIt.

The district court, relying on 42

37a

U.S.C. sec. 2000e-16(c), dismissed

appellant's suit because the proper

defendant had not been named. That

statute provides in pertinent part:

[A]n employee .. . if

aggrieved by the final

disposition of his

[administrative] complaint,

- « « may file a civil action

as provided in section 2000e-5

of this title, in which civil

action the head of the

department, agency, or unit,

as appropriate, shall be the

defendant. 42 U.S.C. sec.

2000e-16(c) (emphasis added).

Appellant contends that the

district court erred in dismissing her

action because she in fact did name the

proper defendant: John Marshall, head

of the "unit" in which she worked.’

: At the time the complaint was

filed, John Marshall was the Director of

the National Center for Health Services

Research, and Otis R. Bowen was the

Secretary of the Department of Health

and Human Services.

See ee 58) Ce ae Pere OS

38a

Yet, appellant conceded to the district

court, and in her brief to this court,

that she should have named the Secretary

of the DHSS as the defendant.* We hold

that an issue conceded at the district

court level cannot be reargued at this

level. See, e.g., International Traveler

Cheque Co. v. BankAmerica Corp., 660

F.2d 215, 224 (7th Cir. 1981) ("it is

well settled law that a party cannot

complain of errors which it has

. This mistake was noted by

appellant's previous counsel and by the

district court. See, e.g., Appellant's

Brief at p. 3, n.5 ("In opposing the

motion to dismiss, plaintiff's previous

counsel assumed that plaintiff's pro se

complaint did not satisfy the

requirements of 42 U.S.C. sec. 2000e-

16(c). See Plaintiff's Motion to

Dismiss.") ; :

, 704 F. Supp.

88, 89 (D.Md. 1988) ("Plaintiff agrees

that she should have sued the Secretary

of Health and Human Services.

Opposition at 1, 3.").

39a

committed, invited, induced the court to

make, or to which it consented."

(Citations omitted.)); Pye v. Mitchell,

574 F.2d 476, 480 (9th Cir. 1978) ("Where

an issue is conceded below, it cannot be

raised for the first time on appeal."

(Citations omitted.) )

Because the appellant has conceded

that the Secretary was the proper

defendant, she is barred from appealing

the district court's decision that it

lacked subject matter jurisdiction

because the Secretary was not named as

the defendant.

IV.

The Appellant also contends that

the district court erred when it denied

her motion to amend her complaint to

name the Secretary as the proper

defendant because the amendment should

40a

have been allowed to relate back to the

original complaint pursuant to

Fed.R.Civ.P.15(c)*> "[T]he language of

. Rule 15(c) provides:

Relation Back of Amendments.

Whenever a 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 back to the date of the original

pleading. An amendment changing the

party against whom a claim is asserted

relates back if the foregoing provision

is satisfied and, within the period

provided by law for commencing the

action against the party to be brought

in by amendment that party (1) has

received such notice of the institution

of the action that the party will not be

prejudiced in maintaining his defense on

the merits, and (2) knew or should have

known that, but for a mistake concerning

the identity of the proper party, the

action would have been brought against

the party.

The delivery or mailing of process

to the United States Attorney, or the

United States Attorney's designee, or

the Attorney General of the United

States, or an agency cr officer who

would have been a proper defendant if

named, satisfies the requirement of

Clauses (1) and (2) hereof with respect

4la

the Rule requires, in plain and clear

terms, that the notice [required under

the Rule for relation back when there is

a proposed change of parties] be given

‘within the limitations period.'"

Weisgal v. Smith, 774 F.2d 1277, 1279

(4th Cir. 1985). As the Supreme Court

has cautioned, we cannot "temper the

plaint meaning of the language by

engrafting upon it an extension of the

limitations period equal to the asserted

reasonable time, inferred from Rule 4,

for service of a timely filed complaint.

- » « Under Rule 15(c), the emphasis is

upon thee period provided by law for

commencing the action against' the

defendant." Schiavone v. Fortune, 477

to the United States or any agency or

officer thereof to be brought into the

action as a defendant.

42a

U.S. 21, 30 (1986); see also Weisgal,

774 F.2d at 1279.. Because the plaintiff

did not serve the proper defendant until

34 days after filing the complaint, Rule

15(c)'s relating back provisions cannot

apply.

Because the proper defendant did

not receive notice during the

limitations period of the action against

it, the district court was correct in

holding that the amendment could not

"relate back" to the date the original

complaint was filed.

Vv.

Accordingly, the judgment of the

district court is affirmed.

AFFIRMED.

43a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

LIH Y. YOUNG *

Vv. * CIVIL NO. Y-85-2547

THE NATIONAL *

CENTER FOR

HEALTH SERVICES

RESEARCH *

MEMORANDUM

Plaintiff, formerly an employee

with the defendant federal agency, filed

this pro se action for employment

discrimination in June, 1985, pursuant

to 42 U.S.C. §§ 2000e-5, 16. This Court

referred the matter to a magistrate and

later adopted his finding, upon an

evidentiary hearing, that plaintiff's

action was barred for failure to bring

the grievance before an Equal

Opportunity ("EEO") counselor within the

44a

period required by 29 C.F.R. §

1613.214(a) (1) (i) (1986). This Court,

therefore, dismissed che action for

failure to properly exhaust the

administrative process available to

federal employees.

Plaintiff obtained counsel and

appealed. The Fourth Circuit Court of

Appeals reversed, holding that the date

Plaintiff brought her

grievance to the attention of the EEO

officer on April 17, 1984. Magistrate

Smalkin found that "the March 11, (1984)

effective date of suspension is the date

of the last act of discrimination

comprehended within the administrative

complaint at issue in this case."

Edited Transcript of Oral Opinion at 4-

5. The EEOC had "determined that the

last discriminatory act occurred

February 27, 1984." Jd. at 2. The

Fourth Circuit later ruled that

plaintiff's constructive discharge

required this Court to consider

plaintiff's date of resignation, March

19, 1984, as the date of defendant's

alleged last discriminatory act.

45a

of her resignation, 29 days before her

first contact with the EEO officer, was

the appropriate date to start the

running of the 30 day limit where

plaintiff had alleged constructive

discharge. 828 F.2d 235, 238 (4th Cir.

1987).

On remand, defendant has moved to

dismiss the action for lack of subject

matter jurisdiction. Plaintiff named

only the agency as the defendant, but 42

U.S.C. § 2000e-16(c) specifically

requires that in her "civil action the

head of the department, agency, or unit,

as appropriate, shall be the defendant."

Thus, with only the agency as defendant,

this Court would have no jurisdiction.

Plaintiff agrees that she should have

sued the Secretary of Health and Human

Services. Opposition at 1, 3. However,

46a

plaintiff argues that she should be

allowed to amend her complaint,

substituting the Secretary as the proper

defendant, and that this amendment

should be aliowed to relate back to the

original complaint pursuant to

Fed.R.Civ.P. 15(c). Plaintiff's motion

to amend is, therefore, also pending.

The Fourth Circuit recently has

affirmed the strict application of Rule

15(c) in Metz v. United States Postal

Service, No. 87-3050, slip opinion (4th

Cir. January 4, 1988). The court relied

upon its previous decision in Weisgal v.

Smith, 774 F.2d 1277, 1279 (4th. Cir.

1985), where it held that even a pro se

plaintiff was held to the strict

requirements of Rule 15(c) for

amendments to "relate back."

Furthermore, its holding that Rule 15(c)

47a

does not implicitly include "reasonable

time" flexibility for meeting the rule's

notice requirements has been approved by

the Supreme Court. Schiavone v.

Fortune, 106 S.Ct. 2379, 2385 (1986).

Thus, this Court will apply Rule 15(c)

strictly. Rule 15(c) reads as follows:

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 back to the date

of the original pleading. An

amendment changing the party

against whom a claim is asserted

relates back if the foregoing

provision is satisfied and,within

the period provided by law for

commencing the action against the

party to be brought in by amendment

that party (1) has received such

notice of the institution of the

action that the party will not be

prejudiced in maintaining his

defense on the merits, and (2) knew

or should have known that, but for

a mistake concerning the identity

of the proper party, the action

would have been brought against the

party.

48a

The delivery or mailing of

process to the United States

Attorney, or the United States

Attorney's designee, or the

Attorney General of the United

States, or an agency or officer who

would have been a proper defendant

if named, satisfies the requirement

of clauses (1) and (2) hereof with

respect to the United States or any

agency or officer thereof to be

brought into the action as a

defendant.

The court in Weisgal noted that each of

three elements must be met: "(1) same

transaction or occurrence; (2) the new

party had notice of the action prior to

the expiration of the statute of

limitations; and (3) he knew or should

have known that but for a mistake in

identity the action would have been

brought against him." 774 F.2d at 1279.

Here, there is no dispute that the

amended complaint would arise from the

same transaction or occurrence, rather

49a

the issue is one of the adequacy of

notice to the prospective defendant.

Plaintiff was required to file her

civil action within 30 days after she

received notice of the final decision of

the Equal Employment Opportunity

Commission ("EEOC"). 42 U.S.C. § 2000e-

16. The EEOC issued plaintiff a right-

to-sue letter on May 18, 1985.

Complaint 4 9. Thus, she was required

to file the complaint in this action by

June 17, 1985. She filed the complaint

on June 14, 1985, and effected service

of process upon the United States

Attorney for the District of Maryland

and upon the Attorney General on July

18, 1985, 34 days after the filing the

complaint. Under Weisgal, the second ,

element of Rule 15(c) relation back is

that plaintiff serve notice of the

50a

action upon a proper defendant within

the same limitations period required for

filing the complaint itself. Thus,

plaintiff missed her opportunity to make

use of relation back by amendment based

upon service of other government

officials pursuant to the second

paragraph of Rule 15(c).

Plaintiff argues that "although she

did not serve the United States Attorney

or the Attorney General within the

thirty-day period, she did effect

‘prompt service’ within the requirements

of Rule 4." Opposition at 6. Pule

4(a)'s "prompt service" requirement

cannot be raised as a shield to the

strictly interpreted requirements of

Rule 15(c). The adoption of the same

period of limitations under Rulel5(c) is

an independent due process protection

51a

preventing an effective breaching of the

original statute of limitations when a

plaintiff realizes she has sued the

wrong party. Thus, the limitations

period is applicable to all defendants,

proper as well as improper. Plaintiff's

argument attempts to accomplish the same

sort of “reasonable time" flexibility

rejected by the Supreme Court in

Schiavone and the Fourth Circuit in Metz

and Weisgal.

Plaintiff's second argument is that

"(djefendant's unreasonable delay in

raising this defense should bar the

defense." Opposition at 7. In other

words, defendant was too late in saying

that plaintiff was tco late. The Court

finds plaintiff's defense of laches to

be the proverbial pot calling the kettle

black. While it is true that the United

52a

States Attorney did litigate the issue

of the timeliness of the EEO grievance

in this Court and the Fourth Circuit, it

was not required to raise all its

defenses in its answer to plaintiff's

complaint.

Finally, plaintiff claims to have

relied upon the standard form complaint

sheet provided by the clerk of the court

while unrepresented by counsel. The

Court has examined this form, used by

some pro se plaintiffs. The form

adequately outlines the essential

elements of a complaint to be filed in

federal district court. It does not,

nor could it, attempt to pretend to

provide for all the factual and legal

issues which may arise in the course of

litigating an employment discrimination

case. Such suits are susceptible to

53a

dismissal for a variety of

jurisdictional reasons, circumstances,

and procedural mistakes, such as

plaintiff's untimely service here. An

attorney's assistance is especially

important for plaintiffs attempting to

navigate these waters after having their

EEOC charges rejected. Nonetheless,

however tolerant the court may be of

administrative or presentation

inelegance on the part of pro se

plaintiffs, the rules of procedure apply

equally to represented and unrepresented

parties. Moreover, this Court has no

power to act where, as here, there ia no

jurisdiction.

United States District Judge

54a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No, 86-1081

LIH ¥. YOUNG

Plaintiff - Appellant

versus

NATIONAL CENTER FOR HEALTH SERVICES

RESEARCH

Defendant - Appellee

Appeai from the United States District

Court for the District of Maryland, at

Baltimore. Frederic N. Smalkin,

District Judge. (CA-85-2547-Y)

Argued; June 3, 1987

Decided; Sept. 9, 1987

BEFORE WINTER, Chief Judge, RUSSELL AND

WIDENER, Circuit Judges.

WINTER, Chief Judge:

Dr, Lih Young sued her former

55a

employer, the National Center for Health

Services Research (NCHSR), under 42

U.S.C. § 2000e-16, alleging that it

discriminated against her because she is

of Chinese national origin. After an

evidentiary hearing, the district court

found that Dr. Young had failed to bring

her grievance to an Equal Employment

Opportunity (EEO) counselor within 30

days as required by 29 C.F.R. §

1613.214(a)(1)(i) (1986). The court

therefore dismissed the suit for failure

to exhaust administrative remedies. We

think the record supports the conclusion

that plaintiff brought her claim for

constructive discharge to the EEO

counselor within the required 30 days,

and accordingly we reverse.

From 1982 to March 19, 1984, Dr.

56a

Young was employed as an economist by

NCHSR, which is a division of the United

States Department of Health and Human

Services. Dr. Young alleges that her

employer discriminated against her

throughout the period of her employment.

She asserts, for example, that because

of her national origin her supervisor

treated her abusively, she was denied

sick leave and annual leave, she was not

given adequate access to training

facilities, she was improperly suspended

from duty effective March 11, 1984, and

that was ultimately forced to resign on

March 19, 1984.

On April 17, 1984 -- twenty-nine

days after she resigned -- Dr. Young

contacted an EEO counselor to complain

that NCHSR's actions were

discriminatory. The counselor's report

57a

on the meeting summarized Dr. Young's

complaints about abusive treatment and

arbitrary denial of leave, and it stated

that "[cjontinual harassment has lead to

her feeling sick and feeling forced to

resign which she did on March 19, 1984."

On April 19, 1984, two days after the

meeting with the counselor, Dr. Young

filed a formal complaint with the EEOC;

that complaint was not produced in the

district court and is not in the record

on appeal. However, in a letter that is

part of the record, the Department of

Health and Human Services rejected Dr.

Young's complaint on the grounds that

she had contacted the EEO counselor more

than thirty days after the last alleged

act of discrimination. The EEOC

sustained the Department's decision.

Dr. Young then filed a pro se

58a

complaint in the district court,

charging NCHSR with numerous distinct

acts of discrimination and alleging that

the discrimination continued through

April, 1984, when she contacted the EEO

counselor. In particular, the complaint

asserted that Dr. Young had been forced

to resign on march 19; it alleged that

the agency director would not address

her grievances about her suspension and

sick leave unless she resigned, and that

the director asked for her

identification card and prepared a

resignation form for her signature.

The suit was referred to a

magistrate, who convened an evidentiary

hearing to determine whether Dr. Young

had brought her grievance to the EEO

counselor within the required thirty

days. After the hearing, the court

59a

ruled against Dr. Young and dismissed

the suit. The court recognized that Dr.

Young had contacted the counselor

twenty-nine days after her resignation

but concluded that the resignation was

merely an “inevitable consequence" of

the prior acts of alleged discrimination

and "not itself a discriminatory act."

Dr. Young, who is now represented by

counsel, appeals from this holding.

II.

It is settled law that a federal

employee must seek administrative review

of her grievance before filing a suit

for unlawful discrimination in

employment. See 42 U.S.C. § 2000e-16(b)

& (c); 29 C.F.R. § 1613.211 et seg.;

Zografov v. V.A. Medical Center, 779

F.2d 967, 968-69 (4 Cir. 1985). Asa

first step, the employee must speak to

60a

an EEO Counselor about an alleged act of

discrimination within 30 days of the

alleged act. 29 C.F.R.

1613.214(a)(1)(i) (1986).

It is also settled that the

applicable administrative deadlines run

from the time of the discriminatory act,

not from the time of a later, inevitable

consequence of that act. Delaware State

College v. Ricks, 449 U.S. 250 (1980);

United Airlines v. Evans, 431 U.S. 553

(1977). Whether an employer's action is

a “discriminatory act" or merely an

"inevitable consequence" of prior

discrimination depends on the particular

facts of the case. Ricks, 449 U.S. at

258 n.9. A resignation is not itself a

"discriminatory act" if it is merely the

consequence of past discrimination, but

' if the employer discriminates against an

61a

employee and purposely makes the

employee's job conditions so intolerabie

that a reasonable person would feel

forced to resign, then the resignation

is a constructive discharce -- a

distinct discriminatory "act" for which

there is a distinct cause of action.

See Bristow v. Daily Press, Inc., 770

F.2d 1251, 1255 (4 Cir. 1985); EEOC v.

Federal Reserve Bank of Richmond, 698

F.2d 633, 672 (4 Cir. 1983). If the

employee has related discrimination

claims that are barred by limitations or

failure to exhaust, "these actions

should be allowed as evidence on the

question of whether [plaintiff] was

constructively discharged." Downey v.

Southern Natural Gas Co., 649 F.2d 302,

305 (5 Cir. 1981).

In our view, the allegations of Dr.

62a

Young's complaint, as well as the facts

brought out in the evidentiary hearing,

make out a claim that she was

constructively discharged on March 19

and that she complained about that

constructive discharge to her EEO

counselor 29 days later, on April 17.

It is undisputed that Dr. Young

contacted the EEO counselor on April 17

and, according to the counselor's

report, complained that "[c])ontinual

harassment has lead to her feeling sick

and feeling forced to resign which she

did on 3/19/84." We think "continual

harassment," if it in fact occurred,

could certainly make working conditions

so “intolerable' that a reasonable

person would feel forced to resign. See

Bristow, 770 F.2d at iz55. Similarly,

her claim of constructive discharge is

63a

supported by Dr. Young's allegations and

testimony that the agency director would

not act on her grievances unless she

resigned. And it is possible to infer

discriminatory purpose from Dr. Young's

many other allegations of

discrimination. See Downey, 649 F.2d at

305 (other discriminatory acts are

relevant to whether constructive

discharge was discriminatory). Finally,

we are mindful of the traditional rule

that EEO pro se complaints are to be

liberally construed, President v. Vance,

627 F.2d 353, 362 (D.C. Cir. 1980), and

for this reason we do not think it fatal

to her case that Dr. Young's

administrative complaints did not use

the precise words "constructive

discharge."

We are unsure whether the district

64a

court's dismissal of the suit was a

dismissal under Fed. R. Civ. P. 12(b) (6)

or an entry of summary judgment under

Fed. R. Civ. P. 56, but we need not

decide this issue because in either

event the judgment of the district court

must be reversed. The complaint

adequately alleges that Dr. Young

brought her constructive discharge claim

to the EEO counselor within 30 days, and

the evidentiary hearing raises a genuine

issue of material fact as to whether

there was a constructive discharge.

NCHSR contends that even if Dr.

Young complained of the resignation to

the EEO counselor on April 17, she still

did not meet all the regulatory

requirements because she made no mention

of the resignation in her formal

complaint on April 19. We think that

65a

this contention is foreclosed. The

defendant has the burden of proving the

affirmative defense of failure to

exhaust administrative remedies, Brown

v. Marsh, 777 F.2d 8, 13 (D.C. Cir.

1985), and yet NCHSR has not produced a

copy of the very complaint it claims is

defective -- even though it admits that

the complaint was filed with the

Department of Health and Human Services

and is presumably in the custody of the

government. Under the circumstances, we

decline to presume that the complaint

was defective for failure to include

mention of her resignation as a

constructive discharge about which she

had complained orally.”

Unquestionably, Dr. Young gave

the agency oral notice of a claim of

constructive discharge. We neither

decide the question nor express any view

thereon, but we do note that, in an

66a

Iii.

In sum, we hold that the district

court erred by ruling that the allegedly

forced resignation on March 19 could not

be a “discriminatory act," so that we

conclude that Dr. Young has alleged

facts showing that she exhausted her

administrative remedies. The case must

be returned to the district court for

determination on its merits.

REVERSED AND REMANDED

appropriate case, language in Brown, 777

F.2d at 13, and in President, 627 F.2d

at 361, may provide a basis for the

argument that the absence of an

allegation of discriminatory treatment

in the formal written complaint is not

fatal to a claim for relief if notice of

the alleged discriminatory treatment was

given at an earlier state of the

grievance process or at some later time

before the agency issued its final

decision.

67a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

LIH Y¥. YOUNG *

Vv. * CIVIL NO. Y-85-2547

THE NATIONAL *

CENTER FOR

HEALTH SERVICES

RESEARCH *

LEDITED) TRANSCRIPT OF ORAL OPINION

- This is a Title VII action filed by

the plaintiff on June 14, 1984, pro se,

seeking judicial redress for alleged

acts of discrimination against her on

account of her national origin (Chinese)

that occurred while she was employed as

a Ph.D. researcher with the National

Center for Health Services Research, a

division of the United States Department

of Health and Human Services (HHS).

This Court has jurisdiction under 42

68a

U.S.C. § 2000E-16. The matter was

referred to me, with consent, pursuant

to 28 U.S.C. § 636(c) by Judge Young's

order dated December 17, 1985. The

challenged actions of the agency (HHS)

were the subject of a decision by the

EEOC in Appeal #01842738. That appeal,

decision on wiich was rendered May 3,

1985, was taken from a final action by

the agency dated August 20, 1984, in

File #ASH401-84. A copy of that final

agency decision was incorporated in the

record of an evidentiary hearing he1a by

this Court March 6, 1986, as Court's

Exhibit' #1. The EEOC determination in

Appeal #01842738 was appended as pa

exhibit to the complaint.

The EEOC found that plaintiff had

not timely sought EEO counselling,

within 30 calendar days of the date of

69a

any act of discrimination alleged in the

complaint to the agency, or, in the case

of a personal action, within 30 calendar

days of its effective date. See 29

C.F.R. § 1613.214(a). The EEOC found,

and such finding is not contested on

judicial review, that plaintiff first

sought EEOC counselling from the agency

with regard to the 10 discrete matters

at issue on April 17, 1984. The EEOC

found that the last act of

discrimination among the 10 allegations

dealt with in the agency's final

decision occurred on February 27, 1984.

The EEOC, after finding that plaintiff's

delay in seeking EEO counselling with

regard to these matters (some 50 days)

rendered her agency complaint untimely

under 29 C.F.R. § 1613.214(a) (1) (i),

went on to consider whether the

70a

ameliorating provisions of 29 C.F.R. §

1613.214(a) (4) (i) and (ii) were

applicable. The EEOC found that the

plaintiff was aware of her right to seek

EEO counselling, in view of her prior

EEOC complaints that had gone through

counselling, on to agency decision, and

further on to EEOC review. The

Commission rejected plaintiff's claim

that illness precluded her from acting

timely for want of any "documentary

evidence" indicating that she was so ill

that she could not act in a timely

fashion. The EEOC also considered

plaintiff's contention that she

contacted the EEOC counselor within 30

days next following her March 19, 1984

resignation, but as the EEOC noted, none

of the acts complained of (and which are

the subject of the present quest for

71a

judicial review) occurred as late as

March 19. Rather, the EEOC determined

that the last discriminatory act

occurred February 27, 1984.

Upon review of the file, I

contacted Dr. Young and counsel, by

letter dated January 6, 1986 (Docket

Entry #5), in which I informed the

parties that there was a serious

question as to failure to exhaust

administrative remedies raised by the

facts of the case, considered in light

of the Fourth Circuit's decision in

Zoarafov v. V.A. Medical Center, 779

F.2d 967 (1985). I furnished plaintiff

with a copy of the Zografov decision for

her reference. I set, in — 6,

1986 letter, an evidentiary hearing for

March 6, 1986, to determine whether

plaintiff has so failed to exhaust her

72a

administrative remedies that this case

ought to be dismissed therefor, or

whether the case ought to proceed on to

the merits of her underlying claim of

discrimination. The hearing was duly

held on March 6, 1986. The plaintiff

testified at length regarding her work

history at the National Center, her |

personal circumstances, and the

circumstances surrounding this

particular complaint of discrimination,

as well as several others. Counsel for

the defense introduced several exhibits,

but no testimony was presented for the

defendant.

Until the Fourth Circuit's decision

in Zografov, the law was unsettled in

this Circuit as to whether noncompliance

with the timeliness requirement of 29

C.F.R. § 1613.214(a)(1) deprived the

73a

district court of subject matter

jurisdiction over the complaint.

Zografov settled the issue, holding that

untimeliness in the administrative

prosecution of the claim was not a

jurisdictional defect, but, rather, was

a matter of exhaustion of administrative

remedies. The Fourth Circuit went on to

hold that, as such, the exhaustion

requirement was subject to equitable

tolling in an appropriate case, under

the doctrine of estoppel, against the

Government. The court held that the

least the court would require to

establish an estoppel against the United

STates is a showing of “affirmative

misconduct on the part of the

government...." 779 F.2d at 967. See

also Schweiker v. Hansen, 450 U.S. 785,

788 (1981).

* a

74a

The Court is of the opinion that is

not bound by the findings of the EEOC in

the matter with regard to timeliness.

Because the inquiry is essentially an

equitable one, the Court must determine

the facts as a matter of first

impression. Taking into account the

documentary evidence introduced at the

March 6 hearing and the testimony of Dr.

Young, I find as a fact that the last

discriminatory act that is within the

scope of plaintiff's complaint in this

case occurred on March 11, 1984, which

was the effective date of her

suspension. To the extent that the EEOC

found that the February 27, 1984 date

was the date of the last discriminatory

act, it erred, in view of Court's

Exhibit 1 (the final agency action)

showing that among her 10 allegations,

75a

the plaintiff clearly complained of a

suspension that was to become effective

March 11, 1984. In that the effective

date of a personnel action is the date

of “accrual” of a discrimination

complaint for exhaustion purposes under

29 C.F.R. § 613.214(a) (1), the March 11

effective date of suspension is the date

of the last act of discrimination

comprehended within the administrative

complaint at issue in this case. The

Court finds as an uncontested fact that

plaintiff did ‘not seek EEO counselling

with regard to any of the 10 allegations

at issue until April 17, 1984. Thus,

there was a delay beyond 30 days from

the last act of discrimination until EEO

counselling was sought.

Turning to the issue of equitable

estoppel, the Court finds absolutely no

76a

indication of affirmative misconduct on

the part of the Government. Dr. Young

attributed the delay in seeking EEO

Counselling to several factors. One is

the mental stress and headaches that she

had apparently experienced since the

inception of what she perceives to have

been a long course of discriminatory

treatment at the hands of the defendant,

starting almost as soon as she arrived

on the job. However, she was not

hospitalized during the period January -

April, 1984, and there is utterly no

indication that affirmative Government

misconduct, in the sense used in the

case law, accounted for Dr. Young's

alleged tension headaches and stress.

The fact that an employee might react to

what she perceives as discriminatory

conduct with stress and headaches does

77a

not equate to affirmative Government

misconduct within the meaning of the

phrase as used in Zografov.

The plaintiff resigned from

Government employment on March 19, 1984,

apparently after an unsuccessful attempt

to resolve her entire employment

situation with supervisory personnel.

The plaintiff claims that she was under

the impression that, after resignation,

she no longer had any right to pursue

any complaints, including the 10

allegations here at issue, through EEO

counselling or otherwise. Plaintiff

testified that this was a general

impression of hers, and when queried as

to the specific sources for it, she

identified her retained attorney and a

co-worker (not a supervisor) who was a

union shop steward at her place of work.

2 eee

78a

it is obvious that in neither case would

such erroneous advice from these sources

constitute such affirmative Government

misconduct as to stop the running of the

30 day regulatory action period by

equitable estoppel.

The Court recognizes that, in

certain narrow circumstances, acts of

continuing discrimination may form an

exception to the timeliness requirement.

However, the present effects of prior

discrimination do not suffice to make

continuing discrimination; what is

needea isia present violation. See,

e.g., United Airlines v. Evans, 431 U.S.

533 (1977). Given the March 6 hearing

testimony, the Court cannot find any act

of continuing discrimination that was

effective as a personnel matter or that

otherwise took place after March 11,

79a

1984, that alleviated the need for

timely filing in this case. It is the

time of the discriminatory act, not of

its consequence, that is the key.

Delaware State College v. Ricks, 449

U.S. 250 (1980). Thus, even if Dr.

Young's March 19 resignation be viewed |

as an "inevitable consequence" of the

issues raised in Agency Case #ASH401-84,

either alone or in combination with

prior complaints, that resignation is

still only a consequence, not itself a

discriminatory act, under the case law.

id. Therefore, the time for EEO

counselling began to run March 11, not

March 19.

The Court has also considered the

equitable tolling factors listed in a

somewhat different, but analogous,

context by the Supreme Court in Baldwin

80a

County Wel .e Center v. Brown, 466 U.S.

147, 151 (1984) (per cuiam), one of

which was met in this case. The

plaintiff was represented by retained

counsel, she was not affirmatively

misled by anyone for whose conduct the

Government was responsible, and, in view

of her prior EEO complaints (see

defendant's Exhibits 1 and 2), she

certainly knew of EEOC counselling

requirements governing employees seeking

to raise complaints of discrimination in

the federal workplace. See also Miller

v. IT&T Corp., 755 F.2d 20, 24 (2d Cir.

1985).

With regard to other complaints of

discrimination that plaintiff might have

that predate the matters considered by

the EEOC in Appeal #01842738, the

plaintiff at the hearing expressed an

8la

intention to have them considered by

this Court. The Court also notes that

in a letter to Judge vouns dated

December 12, 1985, she had the following

to say about those other complaints:

I have other discrimination

complaints filed previously that are

still pending on the decisions of Equal

Employment Opportunities [sic]

Commission for more than a year. These

involve within grade increase,

performance appraisal, promotion and

physical threat by the supervisor, etc.

May I bring them over to this court for

your investigation?

Although pro se complaints are to

be liberally construed, cf. Haines v.

Kerner, 404 U.S. 519, 520 (1972) (per

curiam); Gordon v. Leeke, 574 F.2d 1147

(4th Cir.), cert. denied, 439 U.S. 970

(1978), the Court cannot construe Dr.

Young's December 12, 1985 letter as a

request to amend her Title VII complaint

in this case, which was predicated only

82a

on one EEOC action and the claims

subsumed therein. This Court, of

course, does not investigate complaint

but rather, is confined to judicial

resolution, in adversary proceedings of

contested issues of fact and law.

Although leave to amend is to be freely

granted under FED. R. CIV. P. 15, in

view of the fact that at least some of

the complaints raised in Dr. Young's

earlier EEOC proceedings do not involve

questions of timeliness, it would not be

appropriate to amend the present

complaint at this juncture, because, as

indicated above, this complaint is

subject to dismissal for failure to

exhaust administrative remedies, without

inquiry into the merits of the matters

asserted therein. If Dr. Young wishes

to seek judicial review of the other

83a

EEOC matters that she has pursued

administratively, she may institute a

proper complaint pursuant to 42 U.S.C. §

2000e-16 in this Court, as she did with

regard to the present case.

For the reasons stated above, and

in accordance with the Fourth Circuit's

ruling in Zografov, this Court is

constrained to hold that the plaintiff

has not exhausted her administrative

remedies with regard to EEOC Case

#01842738 and the allegations subsumed

therein, as set forth in Agency Decision

#ASH401-84 and, therefore, the present

complaint must be dismissed for failure

to exhaust administrative remedies. A

84a

separate order will be entered so

providing.

Frederic N. Smalkin

United States Magistrate

Dated: March 7th, 1986

85a

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Washington, D.C. 20507

Dr. Lih Y. Young )

Appellant, )

) Appeal No.

Vv. ) 01842738

) Agency No.

Department of Health) ASH-401-84

Human Services )

Agency. )

DECISION

INTRODUCTION

Dr. Lih Y. Young (hereinafter

referred to as appellant) initiated an

appeal dated September 11, 1984, from

the final agency decision dated August

20, 1984, of the Department of Health

and Human Services (hereinafter referred

to as agency) rejecting her complaint of

discrimination based on national origin

(Chinese) and reprisal (previous EEO

86a

complaint) for untimeliness. The appeal

was brought under Title VII of the Civil

Rights Act of 1964, as amended 42 U.S.C.

§2000e et seq. There appears to be a

question as to whether appellant's

initiation of this appeal was timely.

However, given that there is no evidence

indicting when appellant received the

final agency decision, the Commission

presumes five days delivery time from

the date of decision. Therefore,

appellant's appeal is accepted for

decision by the Commission in accordance

with EEOC Order No. 960, as amended.

BACKGROUND

The record reflects on April 17,

1984, appellant contacted an EEO

Counselor regarding alleged acts of

discrimination by the agency. On April

87a

18, 1984, appellant filed an informal

complaint of discrimination based on

national origin (Chinese) and reprisal

(previous EEO complaint). The EEO

Counselor was unable to resolve the

matter, and on June 19, 1984, appellant

filed a formal complaint based on the

above legal allegations. Additionally,

appellant made factual allegations

concerning ten (10) acts of

discrimination and/or reprisal which

occurred between January 23, 1984, and

February 27, 1984. On August 20, 1984,

the agency issued a final decision

rejecting appellant's complaint because

she failed to bring her allegations to

the attention of an EEO Counselor in a

timely manner.

ANALYSIS AND FINDINGS

88a

The issue in this case is whether

appellant brought to the attention of an

EEO Counselor her allegation of

discrimination in a timely manner.

According to EEOC Regulation 29 C.F.R.

§1613.214(a) (1) (i), a complainant must

bring to the attention of an EEO

Counselor the matter causing [her] to

believe [she] had been discriminated

against within 30 calendar days of the

date of that matter or, if a personnel

action, within 30 calendar days of its

effective date. In the instant case,

the record shows that appellant actually

brought to the attention of the EEO

Counselor matters causing her to believe

she was discriminated against, on April

17, 1984. The Counselor's Report shows

that the alleged discriminatory actions

all occurred between January 23, 1984

89a

and February 27, 1984. In view of the

facts, the Commission holds that the

last discriminatory act occurred on

February 27, 1984, some 50 days prior to

appellant's contact with the EEO

Counselor. Therefore, we agree with the

agency's decision that appellant failed

to contact the EEO Counselor in a timely

manner.

The Commission notes here that on

appeal, appellant stated her belief that

the time limit for contacting the EEO

Counselor should be extended in this

case because when was ill and unaware of

her EEO rights. She further stated that

she sought EEO counseling within 30 days

of her March 19, 1984, resignation from

the agency. The Commission advises

appellant that EEOC regulation 29 C.F.R.

§1613.214(a) (4), provides that the

90a

agency shall extend the time limits:

(i) When the complainant shows that

[she] was not notified of the time

limits and was not otherwise aware

of them, or that [she] was

prevented by circumstances beyond

{her} control from submitting the

matter within the time limits; or

(ii) for other reasons considered

sufficient by the agency.

In view of the above Regulations,

the Commission must reject appellant's

contentions on appeal because she failed

to produce any documented evidence

indicating that she suffered an illness

during the time period of the alleged

acts of discrimination, which prevented

her from submitting the matter(s) within

the time limit. Further, we do not

accept appellant's assertion that she

9la

was not aware of her rights, because the

record shows that she was involved in

previous EEO activity. Finally, the

Commission agrees with appellant's

assertion that she contacted the EEO

Counselor within 30 days of their

resignation, however, as we pointed out

above, the actions she complained of

occurred 50 days prior to her contact.

Thus, the Commission holds that

appellant failed to contact the EEO

Counselor in a timely manner.

CONCLUSION

Based on a review of the record, it

is the decision of the Equal Employment

Opportunity Commission to affirm the

rejection of appellant's complain for

the reasons stated herein.

92a

NOTICE OF RIGHT TO FILE A CIVIL ACTION

Pursuant to 29 C.F.R. §1613.282,

the appellant is hereby notified that

this decision is final and that he or

she has the right to file a civil action

on the Title VII claim in the

appropriate U.S. District Court within

thirty (30) days of the date of receipt

of this decision.

APPOINTMENT OF COUNSEL

If appellant elects to file a civil

action and does not have or is unable to

obtain the services of an attorney to

acts as his or her counsel, appellant

may request that the Court appoint an

attorney for purposes of the civil

action. The Court in its discretion may

appoint an attorney to represent

93a

appellant and authorize commencement of

the action without the payment of fees,

costs, or security. A request for the

appointment of counsel must be filed

with the Court within the time limit for

filing a civil action.

NOTICE OF RIGHT TO REQUEST REOPENING

The appellant and the agency are

hereby notified that the Commissioners

may, in their discretion, reopen and

reconsider any previous decision when

the party requesting reopening submits

written argument or evidence which tends

to establish that:

1. New and material evidence is

available that was not readily

available when the previous

decision was issued;

94a

2. The previous decision involves an

erroneous interpretation of law or

regulations or misapplication of

established policy; or

3. The previous decision is of

precedental nature involving a new

or unreviewed policy consideration

that my have effects beyond the

actual case at hand or is otherwise

of such an exceptional nature as to

merit the personal attention of

the Commissioners.

This notice is in accord with 29 C.F.R.

§1613.235. As provided therein, agency

requests to reopen must be filed within

30 days from the date of receipt of this

decision.

95a

FOR THE COMMISSION

5=3=85

Date Dolores L. Rozzi,

Director

Office of Review

and Appeals

96a

August 20, 1984

REGISTERED MAIL, RETURN RECEIPT

REQUESTED

Dr. Lih Y. Young

1121 Pipeston Place

Rockville, MD 20854

Dear Ms. Young:

This letter is to inform you of the

Department's decision concerning the

complaint of discrimination based on

“national origin (Chinese) and a

complaint of reprisal for having

previously filed an EEO complaint, which

you filed on June 19, 1984 against the

Office of the Assistant Secretary for

Health (OASH).

Issue/Allegation No. 1

You alleged that, because of you

national origin you received a letter of

admonishment on January 23, 1984.

97a

Issue/Allegation No. 2

You alleged that, because of your

national origin, you received an

official reprimand on February 1, 1984.

Zssue/Allegation No, 3

You alleged that, in reprisal for having

previously filed an EEO complaint, you

received an official reprimand on

February 1, 1984.

Issue/Allegation No. 4

You alleged that, because of your

national origin, you received on March

9, 1984, a decision to suspend you from

government employment during the period

of March 11, through 17, 1984.

Zasue/Allegation No. 5

You alleged that, in reprisal for heving

previously filed an EEO complaint, you

received on March 9, 1984, a decision to

suspend you from government employment

@uring the period from March 11 through

17, 1984.

Zasue/Allegation No, ¢

(ILLEGIBLE)

ZJasue/Allegation No, 7

You alleged that in reprisal for having

previously filed an EEO complaint, you

were denied eighty (80) hours of sick

leave which was to be used during the

period of February 27 through March 9,

1984.

Zssue/Allegation No, 8

99a

You alleged that, because of your

national origin, you were denied a

within-grade salary increase upon

reconsideration on February 17, 1984.

Issue/Allegation No. 9

You alleged that, in reprisal for having

previously filed an EEO complaint, you

were denied a within-grade salary

increase upon reconsideration on

February 17, 1984.

Issue/Allegation No, 10

You alleged that, because of your

national origin, you received an

unsatisfactory performance appraisal on

January 24, 1984 for the period of

January 1, 1983 through December 31,

1983.

The final EEO Counseling Report reflects

100a

that you initially contacted an EEO

counselor concerning these matters on

April 17, 1984.

Under the provisions of Title 29, Code

of Federal Regulations, Section 1613.214

(29 CER 1613.214), a complaint must be

brought to the attention of an EEO

counselor within thirty (30) calendar

days of the date of the incident which

gave rise to the complaint for the

purpose of attempting informal

resolution. Otherwise, the complaint is

subject to rejection under the

provisions of 29 CER 1613.215.

Inasmuch as you failed to bring the

above issue/allegations to the attention

of an EEC counselor in a timely manner

i AR sae So i OE

101a

your complaint is subject to rejection.

DECISION

Accordingly, it is the decision of the

Department of Health and Human Services

to reject, under the provisions of 29

CFR 1613.214-215, your complaint of

discrimination based on national origin

and your complaint of reprisal, because

of untimeliness.

If you are dissatisfied with this

decision, you may write a written notice

of appeal, in duplicate, to the Equal

Employment Opportunity Commission,

Attention: Office of Review and

Appeals, 2401 E Street, N.W.,

Washington, D.C. 20506; and in

accordance with 29 CFR 1613, Section

233, which states:

(a)

(b)

102a

Except as provided in

paragraph (b) of this action,

a complainant may file a

notice of appeal at any t-me

up to 20 calendar days after

receipt of the agency's notice

of final decision on his or

her complaint. Any statement

or brief in support of the

appeal must be submitted to

the Commission and to the

defendant agency within (30)

calendar days of filing the

notice of appeal.

The 20-day time limit within

which a notice of appeal must

be filed will not be extended

by the Commission unless,

103a

based upon a written showing

by the complainant that he or

she was not notified of the

prescribed time limit and was

not otherwise aware of it or

that circumstances beyond his

or her control prevented the

filing of a notice of approval

within the prescribed time

limit, the Commission

exercises its discretion to

extend the time limit and

accept the appeal.

If you have alleged age discrimination,

you may file a civil action in an

appropriate U.S. District Court at

- anytime within 180 calendar days of the

unlawful age discriminatory action,

. provided that the Equal Employment

ENS

Ot Se EE Le $e x

104a

Opportunity Commission (EEOC) is given

30 calendar days advance notice of the

intent to file a civil action. If you

wish to appeal this decision to EEOC,

the appeal decision will give notice of

all further rights of review and appeal

under the Age Discrimination in

Employment Act.

If the complaint is based on allegations

other than age discrimination, you have

the alternative of seeking judicial

relief by filing a civil action in an

appropriate U.S. District Court within

thirty (30) calendar days after receipt

of the agency's notice of final

decision. Please note: If you file a

notice of appeal with the Commission,

the right to file a civil action will be

preserved. In that case, you may file a

105a

civil action within thirty (30) calendar

days after receipt of the Commission's

decision or you may file a civil action

if the Commission has not issued its

decision (30) calendar days after

receipt of the Commission's decision or

you may file a civil action if the

Commission has not issued its decision

or you may file a civil action if the

Commission has not issued its decision

(30) calendar days after the date on

which the Office of Review and Appeals

accepted the appeal.

If you elect to file a civil action, you

are advised that you may apply to, U.S.

District Court for appointment of an

attorney to represent you in any court

providing relating to this decision.

The court may appoint an attorney to

106a

represent you and may permit

commencement of a court action without

payment of fees, costs, or security.

Sincerely,

/s/Thomas 8. McFee

Thomas 8. McFee

Director

Equal Employment

Opportunity

cc: Samuel Hoston, Director, DCAM

Dan Hordon, Deputy Director,

Equal Employment, EEO

Caroline Pike

ENTRY OF APPEARANCE

Robert B. Fitzpatrick, Esq., a

member of the Bar of the United States

Supreme Court, hereby enters his

appearance as counsel of record on

behalf of petitioner Lih Y. Young.

OBERT B. FITZ CK

FITZPATRICK & VERSTEGEN

Spring Valley Center

4801 Massachusetts Avenue, N.W.

Washington, D.C. 20016

(202) 364-8710

CERTIFICATE OF SERVICE

I, Robert B. Fitzpatrick, hereby

certify that on this 26th day of

December 1989, I caused to be served

three copies of the foregoing Petition

for Writ of Certiorari and Entry of

Appearance, by depositing said copies in

a United States mailbox, with first

Class postage prepaid and addressed as

follows: —

Solicitor General

Office of the General Counsel

Washington, D.C. 20530

Timothy M. White, Esq.

Office of the General Counsel

U.S. Department of Health and

Human Services

330 Independence Avenue, §.W.

Washington, D.C. 20201

22 on -— e

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.