# Petition for Writ of Certiorari — O'Shell v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0574%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2000 - **Citation:** 528 U.S. 1158 ## Text f me Court, U.8. ee { 4 E D ' 991017 OCT -7 1999 QO. OFFICE OF THE CLERK In The Supreme Court of the United States GLORIA K. O'SHELL, Petitioner We THE UNITED STATES OF AMERICA BY: United States Department of Army, Louis Caldera, Secretary of Army; and Army National Guard Bureau, Major General William Navas Jr, Director STATE OF INDIANA BY: Frank O'Bannon, Governor Respondents On Petition For A Writ of Certiorari To The United States Court of Appeals For the Seventh Circuit PETITION FOR A WRIT OF CERTIORARI Gloria K. O'Shell, Counsel of Record 1909 N. New Jersey Street Indianapolis, Indiana 46202-1618 (317) 926-5168 Attorney for Petitioner | ate QUESTIONS PRESENTED 1. PRELIMINARY: On November 21, 1991, the President signed into law an amendment to Title VII's "Section 717(c) (42 U.S.C. 2000e-16(c))", giving federal employees “90 days" in which to file a Title VII lawsuit after receipt of EEOC's right to sue notice. However, the 1978-enacted "30-day" limitation for “mixed issue" cases in the MSPB-administered Adverse Actions Act ("AAA") at 5 U.S.C.7703(b)(2) was not changed. The legis- lative history to the 1991 amendments is silent on the issue of the "30-day" filing limitation anomaly remaining in 5 U.S.C. 7703(b)(2), which EEOC and the Seventh Circuit continue to enforce to the detriment of all federal employees. Other circuits have held federal employees are entitled to the "90-day" statute of limitations in any Title VI1 action filed under Section 717(c), regardless of whether they file a "mixed issues” appeal with MSPB before appealing to EEOC. QUESTION: Whether under basic rules of sta- tutory construction, e.g.: "later law controls" "pari materia" and “legislative history and intent", the 1978-unchanged "30-day" statutory limitation of the "AAA", 5 U.S.C. 7703(b)(2), can lawfully be used by federal courts to deny federal employees filing "mixed issues" appeals with MSPB, before appealing to EEOC, the right to be accorded the -11- "90-day" statute of limitations contained in Title VII's Section 717(c) (42 U.S.C. §2000e-16(c)) after its enactment date of November 21, 1991, when filing claims under Section 717(c)? QUESTION 2. When one or more actionable vio- lations of a plaintiff's civil rights occur while a Title VII law-suit is still pending against the same defendants and arise out of the same set of events or similar issues, may those claims be added to the original complaint under the "continuing vio- lations" authority of the 199l-amended FRCP 15(c) and the “relation back" authority of Rule 60(b)? 3. PRELIMINARY: Indiana has a 5-year savings and tolling statute: Ind.Code 34-1-2-8 (Appendix H, pg 46), “saved" upon recodification for "any pro- ceeding begun" before July 1, 1998. The Indiana Supreme Court has interpreted this statute to cover “negligence in proscecution" dismissals if "a claim ...met one of the (other) specific situations described therein." Indiana trial rules 54 and 62 permit challenging a “non-final" judgment or order by appeal or filing a Rule 60 motion for relief which then “stays or suspends" the judgment below until final disposition. Article 4 §23 of Indiana's Constitution requires "all laws shall be general and of uniform operation throughout the state". QUESTION. Under the “full faith and credit" obligations of the federal constitution; the -i1i- Tenth Amendment's reservation of powers to the states "not delegated to the United States by constitution"; and the Erie Doctrine (28 U.S.C. §1652), is a federal court in Indiana required to recognize and apply the Indiana Savings Act, Ind. Code 34-1-2-8, as interpreted by the Indiana Su- preme Court, to allow refiling of plaintiff's ori- ginal complaint as a “new acton” on April 13, 1998, after the Court of Appeals denied her appeal and petition for rehearing on March 9, 1998, to the district court's denial of her Rule 60 motion for relief from its dismissal order alleging "“negli- gence in proscecution"? QUESTION 4. If Indiana's savings law and trial rules are held binding on the federal courts situ- ated in Indiana, what is the correct "abatement" date for determining when the 5-year statute of limitations begins for filing “a new action ... ‘after such determination’ (and have it) deemed a continuation of the first (action)"? QUESTION 5. Under the "continuation" language of Indiana's savings statute, what is the tolling effect for federal statutes of limitations appli- cable to related causes of action occurring between the date the “non-final" judgment or order was is- sued in the first action and the date any challenge by Rule 60 Motion or Appeal is "disposed" of? QUESTION 6. When an Indiana federal court -iv- issues a “non-final” dismissal “without prejudice" order, does this leave the situation the same as if Suit had never been brought, allowing the district court to deny application of Indiana's savings sta- tute and the non-final/stay provisions of Indiana's Trial Rules ("TR") 54, 62? 7. PRELIMINARY: Plaintiff was a commissioned officer in the federally-recognized Indiana Army National Guard component of the armed forces of the United States; was paid entirely with federal funds; and was subject to al] the rules and requirements of Titles 10 and 32 of the federal codes and their implementing federal regulations for the armed ser- vices. She was involuntarily separated from the Army National Guard and Indiana militia by separate- ly issued “transfer out" orders. QUESTION. Does plaintiff's employment as a mem- ber of the federally-recognized and funded reserve component of the armed forces of the United States require the federal court in Indiana to exercise “original jurisdiction” over her military employ- ment claims against the United States and the state of Indiana under the requirements of Article 3 §2 of the federal constitution; and 28 U.S.C. §§1331, 1343, 1346? QUESTION 8. Is it permissible for the federal courts to “subsume” non-related military employment claims under Title VII for dismissal purposes even -Ve though plaintiff asserted those claims under other legal authorities? QUESTION 9. Is "“joinder" of two independent and autonomous employers required in federal court for just adjudication and remedies purposes when one employer pays the individual's salary and maintains separate personnel records, while the other employer directs the daily work and training activities of the individual; rates their job performance; and takes the adverse action? PARTIES AND PARENT OR SUBSIDIARY COMPANIES All parties to the case are shown in the caption. Respondents are wholly-government owned agencies or federal and state entities that do not require listing under Rule 29.6. -vi- TABLE OF CONTENTS PAGE QUESTIONS PRESENTED ...........ceeeeeeeees TAME OF ROTUIIATINE oc ceccciccescasecvis ix (UE TE sasitiisivienean 1 SMUT. isc eee 2 CONSTITUTIONS AND STATUTES ......... 3, App.H STATEMENT OF THE CASE AND PROCEEDINGS ... 3 REASONS FOR GRANTING WRIT .......22.e000: 10 I. Title VII‘s 199l-enacted "90 day" Statute of Limitations directly conflicts with the 1978-unchanged "30-day" filing limitation for “mixed issue" cases and should be resolved for the benefit of all federal GUDICVORS. 6andsdcdinncnecdand 10 II. Primacy of state common law in sub- Stantive matters not delegated to the United States by constitution or statute should require federal courts to permit filing of independent complaints as “new actions" and tolling of otherwise appli- cable statutes of limitations under state enacted savings and tolling statutes and CEIGT PRISE. « vccvccdcccesicuaawesueuens 19 -vii- PAGE III. Original federal question juris- diction of federal courts over claims arising under the constitution and statutes of the United States should not be subject to the discretionary denial authority of the federal courts.. 25 CONCLUSION .nccccccccccccccccccsccccceses 30 APPENDICES: APPENDIX A - Court of Appeals Opinion (March 25, 1999) ...ccccceee l APPENDIX B - District Court Opinion (September 28, 1998) ...... 4 APPENDIX C - Order Denying Rehearing eNOS Se.) Pre 16 APPENDIX D - Court of Appeals Opinion (Decided December 17, 1997) ...... 18 APPENDIX E - District Court Opinion (April 16, 1997) ....... 24 APPENDIX F - Order Denying Rehearing (March 9, 19GB} ccccccccee 32 APPENDIX G - District Court Dismissal (Rent) 3, W9G2)- ccccsssess 33 APPENDIX H - Constitutional and Statutory PROVISIONS ccccccccccccces 34 -vViil- PAGE APPENDIX I - Indiana Civil Rights Commission (deme 25, I9GR) sicccccese 50 APPENDIX I - EEOC Letter Denying Acceptance (August 16, 1981) iccescec 51 APPENDIX I - Army Letter Promising Action (ty 225 TSOR) ckccsaccin 52 -ix- TABLE OF AUTHORITIES CASES PAGE Abele v A.L. Dougherty Overseas Inc., 192 F.Supp 955 (N.D.Ind 1961) ....... 22 Becton v Pena, 946 F.Supp 84 (DDC 1996) .. 17 Board of Regents v Tomano, 446 US 478 (1980) 24 Burnett v Central Railroad Co, 380 US RE cue aed ddbeueenebeneeecs 25 Butler v West, 164 F3d 634 (DC Cir 1999) .. 12 Caminett v U.S., 242 US 470 (1916) ........ 14 Cohen v Austin, 833 F.Supp 512 (ED Pa 1993).. 17 Erie v Tompkins, 304 US 64 (1938) ......... 19 Fidelity Union Tr.Co v Field,311 US 169(1940) 20 Forest v USPS, 97 F3d 137 (CA6 1996) ...... 17 Landgraf v U.S.I. Film Prods, 114 S.Ct SU SUES: Sic ceu tC eneaeebecesécesoces 17-18 McBurney v Carson, 99 US 567 (1878) ....... 18 Mindes v Seaman, 453 F2d 197 (CA5 1971) ... 29 Morris v Jenkins, 819 F2d 678 (CA7 1987) .. 23 Mt.-Dakota Utilities Co. v. NW Public Service Co., 341 US 246 (1991) ........ 30 NeSmith v Fulton, 615 F2d 196 (CA6 1980) .. 29 Robbins v Benton, 41 F3d 1195 (CA7 1994)... 13 Smith v Navy, 86 FEOR 3238 (1986) ......... 29 The Fair v. Kohler Die Co, 228 US 22 (1913) . 30 Vesoloski v Repay, 520 NE2d 433 (Ind 1988).. 22 Wilson v Pena, 79 F3d 154 (DC Cir 1996) ... 17 = “8 a =—* _ CONSTITUTIONS PAGE UNITED STATES: PVETCOS © OO sahiceusdtsacsaesaendars App. H APSIGCIO FS G2 ecccbccvecsccnescesats iv ti. ee | roe pre rrr rT 8, 9, App. H lst, 5th, 14th Amendments ........ 3, App. H re, are bana App. H LOCH AMONGMONE ccccccrccccccccccss ifi, 19 INDIANA: PUCCROR. E. BAE Nbneesesadeneuaseniec App. H gk ee err rr rr y App. H RECCECE 5 EER Meaccasdaanncaendans App. H RPRUGtE F Bee (ke tacosnncnauecesees App. H AVCECTE GS GES ac cvocsucscsesess ii, 20, 24 PPETCID 6 ORF kv ccckscccwantnacwas 20 PPT SGIe ee BEE kW cbcentasntbndeaenne App. H 3 ee Beer erere errr re App. H WPRTE WE 20 SE kiksGs cv ndkcacnasscnees App. H PPSTEUE 26. BS “bebsawevcdcesreusiess App. H STATUTES AND RULES UNITED STATES: 5 U.S.C. §$§120921221 occ ccccecs 2, 9 5 U.S.C. §§2301-2302 ... 2, 5, 11, 14, App. H 9 U.S.0. BF7GE csccesesac 2, 4, 11, App. H 5 U.S.C. 87702 ..2, 4-6, 10-11, 13-14, 18, App. H 5 U.S.C. $7703 ...... i, 2, 10, 12-18, App. H 9 U.S.C. S779 cacccccccsccecescese App. H TEURTO WD cvcvccccccsccccvesduscets iv, 28 i i Sainte Clg SRLS Bel eth a STN Ses De et REALS EB OE BALES 5 ig 1B BSG BIAS caccdccccceeceswedas 26 BB DiSiGu SAAS hc cccctedevcsicsces 2 BO Di Bits. DASOe sacciccececes iv, 2-3, 27, 30 BD Ui SiGs Fase See viedicaiccdecese iv, 2-3, 27 2B U.S.C. SUGAG ccccccceccccccces iv, 2-3, 27 ZB U5. SAIS. occcccccccccccecees 8, 26 7 Se ev ererer errr iii, 8, 19, 24 2B U.S... FEOF ccccccecscccssecess 3 FER Fo ais acaecacccaccscteccsace iv, 28 G2 U.S.C. GISBe cc ccccccscccsesens 2, App. H OP US.65 BIRES ch oicdcescesesssves 3, 26-27 42 U.S.C. §§1985-86 ........ 3, 26-27, App. H 42 U.S.C. §82000d, Wh ..cccccccccees 3 BP: 0S.C. SRR SIA) cccccccss 5, 11, App. H 42 U.S.C. $2000e-§ ..nccccccccccces 16 42 U.S.C. §2000e-16(c)/ .... i-ii, 2, 4-6, 10-14 SOCOEOR TAPE) kd ndedke ces 16-18, App. H 42 U.S.C. §2000e-16(e) .......5ee0ee li INDIANA CODE: FT TE ETE TL EEE ETT CLL App. H Lis VOCROIAE cd cdccecccccceecocces App. H Gy Tee Sikadiosecesivcevews App. H DG s TRANS | wescdvcevcceeevesenee App. H LG FrStSaG vvacacdevecesecadees 7, App. # ee err ye Pee Tee TT eT ee App. H T.0. We2-d1D. .ccccvcccccccccecere 7, App. H 1.0. WebeFal] wccccccccccccccscecs App. H -x1i- PAGES beGu BRmbeEeE «sc ccccccccceccesasees App. H bee SOPUSEO® cccsces fi-111, 8-9, 20, 22, App. H bebe SPPORMEOREScD cocececseseeasees 21 bebe DOPPORCE ceccacececscacdeeuces 20 bole SUMFSEPSD cvevccssccecestaséece 21 TRIAL RULES PU BD he eh ecnccccccesocesese 41, 5, 7 FRCP/Indiana Trial Rule 60 ... ‘di-iti, 5, 7-8, 23 Indiana Trial Rule 54 ....... ii, iv, 8, 23, 26 Indiana Trial Rule 62 ............ ii, iv, 8, 23 FEDERAL ORDERS AND REGULATIONS Emecutive Order 12850 ..ccccccccces 3 BO Gelotc BOSD coccccccceseccoessee 13 + oe Ae) Morrrrrrrrrrryrrrrrr 10, 12 att PETITION FOR A WRIT OF CERTIORARI Petitioner respectfully prays that a writ of certiorari issue to review the judgment be low. OPINIONS BELOW 1. The unpublished opinion of the United States Court of Appeals for the Seventh Circuit, was decided March 25, 1999. Appendix A. 2. The unpublished opinion of the United States District Court, Southern District of Indiana, Indianapolis Division, was issued September 28, 1998. Appendix B. 3. A timely petition for rehearing by the United States Court of Appeals was denied on July 9, 1999. Appendix C. 4. The unpublished, preceding opinion of the United States Court of Appeals was decided December 30, 1997. Appendix D 5. The unpublished, preceding opinion of the United States District Court, was issued June 16, 1997. Appendix E. 6. A timely petition for rehearing the December 30, 1997 appellate opinion was denied March 9, 1998. Appendix F 7. An unpublished order dismissing the original (May 1990) complaint without prejudice was issued by the United States District Court on April 3, 1992. Appendix G eee ee Se ate JURISDICTION This Petition for Certiorari is based on a decision by the United States Court of Appeals for the Seventh Circuit issued on March 25, 1999. Appendix A. A timely petition for rehearing was denied on July 9, 1999. Appendix C The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1). Diversity jurisdiction of the district court was invoked under 28 U.S.C. §1331: plain- tiff being a citizen of Indiana and defendants citizens of both Indiana and Washington D.C. Subject matter jurisdiction of the district court as to plaintiff's federal civil service employment claims for wrongful suspensions and discnarge was invoked under Title VII: 42 U.S.C. §§198la, 2000e as amended in 1991; the Pronhibi- ted Personnel Practices Act of 1978 ("PPPA"), 5 U.S.C. §§2301-2302, made actionable by the procedural Adverse Actions Act of 1978, 5 U.S.C. §§7701-7703; the 1978 Whistleblowing provisions of 5 U.S.C. §§1209, 1212, 1214, 1221 as amended; and the jurisdictional authorities of: 28 U.S.C. §1331, general federal question; §1343(a), redress for violation of civil rights; and §1346, claims against the United States). Original and pendent jurisdiction of the oe District Court was asserted over plaintiff's mili- tary employment claims for breach of contract and civil rights violations in her dual status as an active member of the Army's National Guard component and Indiana militia. Authorities relied on were: the First, Fifth, Fourteenth Amendments and Supremacy Clause of the United States Consti- tution; 42 U.S.C. §1983 of the Civil Rights Acts together with 42 U.S.C. 2000d, h and Executive Order 12550 for non-federal receipients of federal funds; 28 U.S.C. §1331, general federal question; 42 U.S.C.§§1985-1986, prohibiting conspiracies to deprive persons of civil rights which attaches original jurisdiction under 28 U.S.C. §1343(a); 28 U.S.C. §§1346(b)(1), and §2671: tort claims. The district court denied jurisdiction over plaintiff's dual federal/state military employment claims under 28 U.S.C. §1367(c). The appellate court did not address denied jurisdiction over plaintiff's military employment. CONSTITUTIONAL AND STATUTORY PROVISIONS Federal and state constitutional and statutory provisions relied on are shown at Appendix H, consisting of 16 pages. STATEMENT OF THE CASE Plaintiff, a white female, was employed as a federal civil service employee by Department of Army (“Army) for almost 27 years at the time willie discharged January 10, 1992, by the same active Army National Guard Bureau ("NGB") officers who unsuccessfully attempted to discharge her in June 1988, on the pretext of having a “messy desk". Army employed plaintiff as a federal auditor in NGB's laison office located in Army's Finance and Accounting Center, Fort Harrison, Indiana. The first (June 3, 1988) discharge was appealed to the Merit Systems Protection Board (“MSPB") under the “mixed issues” authority of 5 U.S. .§§7701-7702. After a 2-day hearing in October 1988, MSPB restored plaintiff to duty after finding defendants committed continuing sex discrimination and retaliation violations of plaintiff's Title VII rights After return April 1989, plaintiff filed several never responded to EEO complaints with Army; and then sued Army and NGB defendants May 17, 1990, under “exhaustion of remedies” provi- sions, 5 U.S.C. §7702(e), 42 U.S.C. §2000e-16(c). She sought injunctive relief; backpay for unreme- died suspensions and denial of a GS12 promotion. During pendency of the 1990 lawsuit, plaintiff was compelled to file five more EEO complaints against the same defendants sued due to their continued harrassment and threats of discharge. Due to non-response (App.1), plain- tiff alleged these complaints also fell under eta Oa Rn etre a ae eet Sta es within 5 U.S.C §7702(e), 42 U.S.C.§2000e-16(c) 180-day “exhaustion” provisions in her 1993 Amendment. Upon receipt of court orders setting the 1990 lawsuit for trial on June 8, 1992, defendants discharged plaintiff on January 10, 1992, for al- leged insubordination. A “mixed issues” appeal was timely filed with MSPB January 1992 (5 U.S.C. §7702); requesting consolidation of all pending EEO complaints; and asserting whistleblowing and non-retaliation rights under 5 U.S.C. §§2301-2302, 1214-1221; and 42 U.S.C. §2000e-3(a), 16. On February 12, 1992, plaintiff's attorney filed a STAY request with his withdrawal (Docket Entry 504, App.No.1,Exh.C, Appeal). In March 1992, the district court issued a 30-day "show cause" order but did not address the STAY request. Due to a mail mixup, plaintiff did not respond timely. On April 3, 1992, the court dismissed the suit “with- out prejudice"for "failure to proscecute”. Plaintiff timely appealed MSPB's denial of the January 1992 discharge appeal to EEOC (5 U.S.C. §7702(b)). EEOC's Right to Sue notice, received November 1992, gave "30 days” to file an EEO law- suit. In reliance on the November 21, 1991, "90- day" filing amendment to 42 U.S.C. §2000e-16(c), on February 8, 1993, plaintiff filed an Amended and Supplemented Complaint to the original 1990 action under FRCP Rule 15(c)(1991) and Rule 60(b). illien (Argued AppBrf,pp 29-32;ReplyBrf ppl3-19). And cited reliance on the 180-day non-response provi- sions of 5 U.S.C. §7702(e) for the five EEO com- plaints filed before discharge. 5 U.S.C.§7702(e) directs "an employee shall be entitled to file a civil action to the same extent and in the same manner as provided in Section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. §2000e-16(c)" (Argued: AppBrf pp 12-13,28-29; ReplyBrf pp 7-11) Because of timing and nexus, the February 1993 Amended Complaint filing also included claims against Army, NGB and Indiana National Guard defen- dants for breach of federal and state employment contracts entered into on August 14, 1980, and for involuntary transfer of plaintiff without statu- tory and regulatory-prescribed due process to the inactive/unpaid Standby Reserve on March 1,1989, effectively ending her military career. Plaintiff alleged termination of her military employment was Obtained through conspiracy of NGB defendants at Fort Harrison with Indiana National Guard officers. "Abuse of command" and civil rights com- plaints were filed with the Inspector Generals of both Indiana and Army. Army did not respond and they were denied by the state's Adjutant General. An employment discrimination complaint was filed with the Indiana Civil Rights Commission who re- fused jurisdiction on June 25, 1991, stating that et plaintiff's "relationship with the Indiana Army National Guard was as a ‘uniformed member of the United States armed forces’ and not as an employee within the meaning of the Indiana Civil Rights law" (App.1 ) Indiana acknowledged receipt and docketed her Tort Claims Notice as File1911790 on September 24, 1991, but did nothing further. Plaintiff alleged her involuntary sepsra- tion violated statutory rights as a commissioned officer to have a "peer board review" and approval by the Governor before separation (Ind.Code 10-2- 3-6); and civil rights violations of federal and state constitutions, the Uniform Code of Military Justice and regulatory customs and usages of the United States Armed Forces prescribed by Indiana for its armed forces (Ind.Code 10-2-3-10). All claims asserted in the February 1993 Amended Complaint, refiled as a "new action” on April 13, 1998, were filed under the 1991 "con- tinuing violation” amendments to FRCP 15(c) and Rule 60(b) “relation back" authority since they arose out of the same fact situation, addressed the same or similar issues, and named the same defendants sued May 17, 1990. For four years, the district court took no action. The court then denied the Rule 15(c) Amendment/Supplemental request. The Rule 60(b) Motion for Relief from its previous dismissal ERI IR RE CN of. order of April 3, 1992, was denied April 16, 1997. Plaintiff timely appealed on June 11, 1997. The Appeals Court affirmed the judge's discretionary denial of a Rule 60(b) Motion on December 30, 1997. Plaintiff timely petitioned for rehearing which was denied March 9, 1998. Plaintiff timely refiled her claims as an independent complaint April 13, 1998, in re- liance on: (1) FRCP 60(b); (11) Indiana's Savings and Tolling statute(Ind.Code 34-1-2-8); (111) the Erie Doctrine(28 U.S.C. §1652), combined with the "full faith and credit" obligations of Article 4 §1 of the United States Constitution; and, (iv) equitable application of FRCP/Ind.Trial Rules 54, 62, establishing "“non-finality” of any judgment in Indiana permits challenge by either appeal or Rule 60 motion which stays and suspends the initial order or judgment until final “disposition”. By unpublished order issued September 28, 1998, the district court dismissed plaintiff's federal civil service employment claims with pre- judice and denied “pendent jurisdiction” over state claims relative to her federal-state mili- tary employment in the Indiana Army National Guard. First “subsuming"” them al] under Title VI1; finding the Title VII action untimely; and citing lack of jurisdiction under the discre- tionary authority of 28 U.S.C. §1367(c). The PR tC 3 RRA Ark -9- district court held: (1) A 1993 change to Indiana's Savings statute, Ind.Code 34-1-2-8, barred its appli- cation to “negligence in proscecution" dis- missals. But did not address passage of the Recodification Act of 1998, on July 1, 1998 (P.L. 1-1998); which made the Act of “no effect" for “any proceeding begun” before July 1, 1998. (Argued: App.Brf pp 21-23; ReplyBrf pp 5-7) (11) The federal judge stated agreement with other circuit rulings which did not address the Indiana's Savings statute, holding plain- tiffs have five years after a “failure/abate- ment" determination to refile their claims as a "new action (which shall be) deemed a continua- tion" of the first action. Nor did he adress Indiana's trial rules staying and suspending any judgment in Indiana until a Motion for Relief or Appeal is "disposed of". (Argued: ReplyBrf ,pp3-7) (1411) In holding plaintiff “did not file this action within the '30 day period’ (pertaining) to (EEOC's) right to sue letter”, he cites to pre-1991 initiated lawsuits which do not address Title VII's "90-day" amendment. On March 25, 1999, the appellate court summarily affirmed the district court's denial of the April 13, 1998, complaint; but did not address her military employment and conspiracy claims; sta- -10- tutory construction arguments; or application of Indiana savings law and trial rules etc. On July 9, 1999, plaintiff's timely-filed petition for rehearing was denied by a three-judge panel without discussion. REASONS FOR GRANTING THE WRIT I. Title VII's 199l-enacted "90-day" Statute of Limitations directly conflicts with the 1978- unchanged “30-day” filing limitation for “mixed issue" cases contained in the "Adverse Actions Act" ("AAA") (5 U.S.C. §7703(b)(2)), and should be resolved for the benefit of all federal employees consistent with the legislated his- tory and stated intent of the 1991 Amendments. The conflict in filing limitations between the "30-day" filing limit in the "AAA" and the 199l-expanded "90-day" filing limit of Title VII's 42 U.S.C. §2000e-16(c), actually and prospectively affects over a million or more federal, postal, legislative, judicial and other employees identified at 29 CFR 1614.103(b). Thousands of these employees are subjected each year to appealable adverse actions few of which proceed into federal court or are successful according to MSPB's annual reports. Most adverse actions are countered with the affirmative defenses set forth for “mixed issue" cases in 5 U.S.C. 7702(a)(1)(B) and the "PPPA" abe 5 U.S.C. 2301-2302(b)(1),(d). That is: discrimi- nation on the basis of race, color, religion, i he RULER LTO Teg eS aaa sex or national origin, retaliation, age; sex as it relates to equal pay; handicapping con- dition; marital status or political affiliation; or “any rule, regulation or policy" implement- ing these Acts, including Executive orders and the federal Constitution (5 U.S.C. §2301(b)(2); 42 U.S.C. 2000e-16(e)). 5 U.S.C. 7701(c)(2)(3) requires setting aside "any prohibited personnel practice described in Section 2302(b)". Section 2302(b)(11) prohibits: "tak(ing) or fail(ing) to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing or directly con- cerning the merit system principles contained in Section 2301 of this Title" 9 U.S.C. §2301(b)(9)(A) and 2302(b)(9)(A)-(B), (11), reenforce Title VII's prohibitions against retaliation. (42 U.S.C. 2000e-3(a), 16) Under the “mixed issues" proceedings set out in 5 U.S.C.§7702, an individual appeals first to MSPB; and, if MSPB's decision is negative, then appeals to EEOC or files a Title VII lawsuit. } However, most judges require a “right to sue" : letter from EEOC prerequisite to filing suit; and, A latte Re RT AE Wl aD eRe Led a teen at 5 AOE HR RELLY ORS SENG APT ae KOS AOR RM ERMA Ag SS Sop URES? SER TR Sa Sead ome EEOC regulations establish the agency's "final es} decision" in an adverse action must be appealed to MSPB first and not EEOC (29 CFR §§1614.302(da) (11)(3), §1614.310 (7-1-1998 ed.) Therefore, there is no escaping possible application of the "30-day" filing conflict in 5 U.S.C. 7703(b)(2). The time required to merge and master person- nel, agency, MSPB and EEOC regulations with the federal acts, Executive Orders and union contracts to determine individual rights cannot be over- estimated as was recognized in Butler v West, 164 F3d 634,638 (D.C.Cir 1999), stating: "When the discrimination is alleged as a vio- lation of Title VII, the federal employee ‘must negotiate and exhaust the complex administrative regime’ that governs Title VII public employment cases in addition to the usual procedures for challenging an adverse personnel] action under the Civil Service Reform Act." The legislative history and stated Congres- sional intent behind the 199l-amended Section 717(c), emphasized the "90 days" filing right was absolutely critical to enable federal employees making it through convoluted "mixed issues” proceedings time to obtain attorney representation and file a lawsuit. In contrast to appellants who are generally without a job, secondary income or substantial savings to pay a thousands for advance retainer fees, federal Supervisors are immediately and continuously provided with unlimited competent, free legal representation at the taxpayers expense. Since it took several years for EEOC to revise its 29 CFR 1613 regulations to conform to the 1991 amendments to Title VII, plaintiff relied on the enactment date of November 21, 1991, and the legislated history and stated intent of Section 717(c) amendments to allow her “90 days" to prepare and file her Title VII Amended and Supplemented Complaint in February 1993, which contained the January 1992 discharge and earlier actionable events, rather than the "30 days" contained in EEOC's right to sue letter. I.E. "Regulations cannot trump the plain language of the statutes." Robbins v Benton, 41 F3d 1195, 1198 (CA7 1994). Plaintiff also relied on the “plain meaning" of Section 7703(b)(2) which directs: "Cases of discrimination ‘subject to' the provisions of section 7702 of this title ‘shall be filed’ under Section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)..." This language parallels Section 7702(e)(1) which states: "Notwithstanding any other provision of law obit. ...an employee ‘shall be entitled to file a civil action ‘to the same extent and in the same manner as provided in Section 717(c)'..." "It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which it is framed; and if that is plain, the sole function of the court is to enforce it according to its terms." Caminett v U.S., 242 US 470, 485 (1916) However, the last sentence of Section7703(b) (2), unchanged since 1978, directs: "Notwith- standing any other provision of law, any such case filed under any such section ‘must be filed within 30 days’ after the date the individual filing the case received notice of the judicial- ly reviewable action under...section 7702". The legislative history to Title VII's 1991 amendments makes no reference to the "30-day" filing conflict in 5 U.S.C. 7703(b)(2). But 5 U.S.C. 2302(d) of the "PPPA", establishing Subject matter limits for the "AAA" directs: “This section shall not be construed to extin- guish or lessen... any right or remedy available to any employee ...in the civil service under...section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16)" There is no record that EEOC or other parti- cipating federal agency, all of whom were fully Bene lat Rak tp gt Te A oe! ee x knowledgeable of this conflict, did anything to bring this conflict to the attention of legislators for resolution. However, it is un- reasonable to believe that the 1991 Congress would have intended this last sentence of 5 U.S.C. §7703(b)(2), standing alone and taken out of context with the immediately preceding, direc- tive language, to "gut" the "90-day" filing right it took federal employees over twenty years to obtain on par with private sector employees for defeating them when filing "mixed issues” Claims under Title VII in federal court. Plaintiff argued statutory construction prin- Ciples of “legislative history and intent", "pari materia" and “later law controls" should be applied by the district and appellate courts to determine this issue, consistent with a substan- tial body of federal and state law generally com- peling this approach when two conflicting statu- tory directives control the same identical issue. The district court asserted plaintiff's failure to file within the 30 days directed in EEOC's right to sue letter defeated her Title VII Claims filed in 1993, and refiled after abatement in April 13, 1998. But the court did not address any statutory construction arguments. And cited only pre-1991 initiated lawsuits which did not address the "90-day" amendment to Title VII. oie However, the judge did state : "There is no reason, in either legal or practical terms to use ‘any period of limitation other than that prescribed in Title VII itself to determine when suit had to be brought." App. B In its affirmance of the district court's decision, the appellate court likewise did not address plaintiff's statutory construction arguments, noting only that: "But whether she is ‘right or wrong’ (as to the “longer 90-day limit imposed by 42 U.S.C.2000e-5(f)(1) (sic)") ‘is of no consequence’ given her five-year delay” in filing which “missed the deadline". Neither court specified the beginning date for the "5- year period” they referred to. App. A Over the eight years since enactment of the "90-day" amendment, there is_increasing conflict in circuit rulings addressing the irreconcilabi- lity of the "30-day" limit in 5 U.S.C.7703(b)(2) versus the "90-day" filing limit of Title VII's Section 717(c) that should be resolved by the Supreme Court for the benefit of all federal and other affected employees. In contrast to the Seventh Circuit's adherance to "30-day" rulings arising from lawsuits pre-dating the 1991 enactment, other circuits are using divergent rationales to ensure application of the "90-day" filing right. I.E.:: «its (1) Becton v Pena,946 F.Supp84, 85-87 (DDC 1996) discussed the “procedural anomaly that Congress...did not intend (as to forcing) dif- ferent time limits...for filing Title VII suits depending on which administrative body--EE0C or MSPB--initally hears a federal employees claim." The court discussed the legislative history wherein Congress concluded a “30 day limitation period for filing suit against the federal gov- ernment is, in most instances, ‘simply too short' to allow plaintiffs adequate time to prepare and file their claims in federal court; and held the 30-day limitation in Section 7703(b)(2) is "no longer jurisdictional under the 1991 Amendments to 42 U.S.C. §2000e-16(c) extending a 90-day sta- tute of limitations for discrimination actions". (11) Forest v USPS, 97 F3d 137,140-141 (CA6 1996), relying on Landgraf v USI Film Prods, 114 S.Ct 1483, 1499 (1994) and Wilson v Pena, 79 F3d 154,162 (D.C.Cir 1996), summarily held that the 1991 Acts 90-day limitation “was good law when Forest filed his complaint and thus Forest filed his complaint in a timely manner." (111) Cohen v Austin, 833 F.Supp 512, 516- 517 (ED Pa 1993) argued that EEOC's refusal to review an MSPB decision, as stated in plaintiff's right to sue notice, was not the "judicially «> reviewable action" referred to by Congress in 5 U.S.C.§7703(b)(2) since EEOC's source auth- ority to issue a “final decision" may only be asserted under Title VII's 42 U.S.C. 2000e-16(c). Further, under Section 7702's express terms, only the agency, MSPB or the Special Panel issue the “judicially reviewable action" decision cited to at 5 U.S.C. §§7702(a)(2)3(b)(3),(5)(A)-(B); (d)(2)(A). EEOC only issues a “consideration determination" on a Board decision (Section 7702 (b)(1)); which “may not be used in any ‘judicial proceeding'"(§7702(b)(2)). Citation to its own regulations in its right to sue letter indicates EEQC's belief that 42 U.S.C. §2000e-16, not 5 U.S.C. 7702 is the sole source of its authority. (iv) Landgraf, Id. at pp 1497-98 et al, rela- tive to defendants conduct and events preceding the "90-day" amendment to Section 717(c) held: “Changes in procedural rules while a suit is pending are not usually considered retroactive because such changes do not impose a new burden upon the parties” (114 S.Ct at 1502). “Rules of procedure regulate secondary rather than primary conduct. Therefore, institution of a new proce- dural rule after the conduct giving rise to the suit does not make that rule retroactive." Cit- ing McBurney v Carson, 99 U.S. 567, 569 (1878). E.G. the “action” regulated by the -19- amended 90-day limitations period is plaintiff's "filing" of a lawsuit which occurs after passage of the 1991 civil rights act--not defendants con- duct which may have occurred before the November 21, 1991 enactment date. II. Primacy of state common law in substantive matters not otherwise delegated to the United States by constitution or statute should require federal courts to permit filing of independent complaints as “new actions" and tolling of other- wise applicable statutes of limitations under state savings and tolling statutes, and trial rules. Under the “full faith and credit" obligations of the United States Constitution, Article 4 §1 and the Tenth Amendment, reserving all powers to the states that are not delegated to the "United States by Constitution", the Supreme Court long ago established the Erie Doctrine, codified at 28 U.S.C.§1652, requiring that the “laws of the several states, except when the Constitution or -..Acts of Congress otherwise require or pro- vide ‘shall be regarded as rules of decision’ in civil actions in the courts of the United States, in cases where they apply." Erie v Tompkins, 304 US 64,77-79 (1938) expressly held: "Except in matters governed by the federal constitution or by Acts of Congress, the Mn law to be applied in any case is the ‘law of the state'...whether declared in a sta- tute or by its highest court in a decision... Congress has no power to declare substan- tive rules of common law in a state...and no clause in the Constitution purports to confer such a power upon the federal courts." The Supreme Court has declared: "It is inadmis- sable that there be one rule of state law for litigants in the state courts and another rule simply because of diverse citizenship for liti- gants in federal courts." Fidelity Union Tr. Co. v Field, 311 US 169, 177-180 (1940) Due process and equal protection of the law for Indiana citizens is guaranteed by the Ind- iana Constitution. Article 4 §23 requires: "all laws shall be general and of uniform opera- tion throughout the state." Article 4 §27 holds: "every statute is a public law" which the General Assembly is required to “grant to any citizen or class of citizens...upon the same terms (which) shall...equally belong to all citizens." Since 1881, Indiana has had its own (5-year) savings and tolling statute: Ind.Code 34-1-2-8, saved by the July 1, 1998, Recodification Act. E.g.: Ind.Code 34-7-1-1(1998) states: "The sub- Stantive operation and effect of the ‘prior civil law and procedure’ continue uninterrupted as if -2)]- the recodification act of...1998...had not been enacted." (11) Ind.Code 34-7-1-3(a)(1998) states: "The recodification act of...1998...does not affect: 1) any rights or liabilities accrued;...3) any violations committed; 4) any proceedings begun... 9) the validity, continuation or term of any con- tracts...executed...before...July 1, 1998...Those rights, liabilities, penalties, offenses, pro- ceedings...contracts...'continue and shall be imposed and enforced under prior civil law and procedure’ as though the recodification act of 1998...had not been enacted." (141) Ind.Code 34-6-2-113.5(1998) states: "Prior civil law and procedure for purposes of Indiana Code 34-7 refers to the statutes that are repealed or amended in the Recodification Act of ...1998...as the statutes existed before the effective date of applicable or corresponding provisions" (Argued App.B8rf pp 20-25) The lower courts did not address these 1998- enacted savings provisions, maintaining only that “negligence in proscecution" dismissals were ex- Cluded from coverage. However, plaintiff filed her Amended Complaint on February 8, 1993; and, after “abatement” on appeal, filed a “new action” on April 13, 1998. Both filings preceded the July 1, 1998, Recodification Act and should be saved. «2% The Indiana Supreme Court interpreted Ind. Code 34-1-2-8 to cover "negligence in proscecu- tion" dismissals if “a claim would otherwise be saved by the statute because it met one of the (other) specific situations described therein." Vesoloski v Repay, 520 NE2d 433,434 (Ind 1988) The district court recited Indiana's ruling and “tolling” language used: "If after the commence- ment of an action, the plaintiff fails therein ...a New action may be brought within five (5) years after such determination and ‘be deemed a continuation of the first’, for the purposes herein contemplated," and then applied it to Indiana's Abele v A.L.Dougherty Overseas Inc, 192 F.Supp 955, 956-57 (N.D. Ind 1961): “the Statute ‘saves employment action brought in State court after expiration of original statute of limitations when brought within five years after identical claim ‘dismissed without preju- dice’ by federal district court." App. A However, the lower courts inequitably re- jected application of Indiana's “continuation” language to plaintiff's case, holding a "“dis- missal without prejudice leaves the situtation the same as if a suit had ‘never been brought'", ignoring their cited case of Abele, Id. They also cite cases from other circuits, not address- Indiana law to hold that: “in the absence of a =23n Specific ‘statute’ to the contrary, there is ‘no tolling’ of the statute of limitations for the period of time during which the action so dis- missed was pending". The Seventh Circuit held in another Indiana case: Morris v Jenkins, 819 F2d 678 (7th Cir 1987): "...statutes have been passed in nearly all of the states, providing for a renewal of actions which have failed on account of some matter not involving the merits. These statutes...contemplate...a new and dis- tinct suit shall be commenced ‘which shall be treated as a continuation’ of such former suit." Both lower courts ignored plaintiff's argu- ments that Indiana's savings statute must be read in the context of Indiana trial rules ("TR"), Similar to FRCP 54(b), Indiana's TR54(B),(E)(2) defines any “non-final" order or judgment as one adjudicating "fewer than all the Claims...rights and liabilities of fewer than all the parties (which) ‘shall not terminate an action as to any of the claims or parties." No limiting criteria is assigned. Any order or judgment may then be “challenged...by appeal, motion and the like". Ind.TR 62(B)(4)-(5) establishes proceedings to enforce a judgment are “stayed and suspended" upon “filing and ‘disposition’ of...(4) a motion for relief from a judgment or order made pursuant to Rule 60, or (5) an appeal." «Phu The "full faith and credit" obligations of the federal constitution compel recognition of Indi- ana's constitutional requirement at Article 4 §23, that "all laws shall be general and of uni- form operation throughout the state." In refus- ing to apply Indiana law as enacted and inter- preted by the state's legislature and highest court, the federai courts have denied application of the Erie Doctrine, 28 U.S.C. §1652, in Indiana. (Argued: Reply Brf, pp 3-7) Requiring the federal courts to comply with the Erie doctrine and “full faith and credit" obligations of the U. S. Constitution for appli- cation of state substantive law affects every claimant proceeding before a federal court. States enact savings acts and trial rules for the benefit of state citizens and rely on them to be applied “equally” to all citizens in federal as well as state forum courts. Under current rulings of the Seventh Circuit, federal courts may now "pick and choose” among other state rulings to circumvent and avoid state forum law with which they do not agree. The tolling case of Board of Regents v Tomano, 446 US 478, 481-482 (1980), held: “The need for uniformity, while paramount under some federal statutory schemes, has not been held to warrant the displacement of state statutes of limitations aft. for civil rights actions". The Supreme Court has reversed decisions below on the ground that the prior action was a timely suit which "tolled" the Statute of limitation. Burnett v NY Central RR Co., 380 US 424 (1965) Indiana's savings act and trial rules are "sub- ject matter blind" as to any lawsuit in which a “failure or abatement occurs" or in which an appealable “non-final" order or judgment arises. Plaintiff asserts the “plain language" of Ind- iana's savings law and trial rules at issue deny federal judges "discretionary authority" to dis- regard them under their (29 U.S.C.§453) judicial oath. State citizens are guaranteed due process rights legislated for their benefit by elected State representatives in federal forum courts, which calls for the supervisory enforcement powers of the Supreme Court. Only by according plaintiffs, as a private attorney-general, the full range of federal and State law allowing continuing response to retali- atory actions, without having to undertake cost prohibitive, piecemeal litigation subject to “claims preclusion” barriers, may the aims and Objectives of the peoples' federal and state elected representatives be achieved. III. Original federal question jurisdiction of federal courts over claims arising under the constitution and statutes of the United States o26= should not be subject to the discretionary denial authority of the federal courts. By “subsuming" all of plaintiff's military employment claims under Title VII and then dismis- sing them for “untimeliness", the lower courts avoided addressing their merits. However, the district court recognized plaintiff's status as a “uniformed member of the...Indiana National Guard in a part-time position;" and reliance on: “42 U.S.C. §1983; 18 U.S.C. §241; and 42 U.S.C. §1985: conspiracy to interfere with civil rights; and federal and state Military Acts." The district court correctly stated Title VII covered “only civilians" in military departments. But then held: "discrimination-based claims pur- suant to federal law ‘other than Title VII’ can- not be maintained and must be dismissed;" dis- missing them as “pendent state law claims" for "lack of jurisdiction" under 28 U.S.C §1367(c). Plaintiff submits this “subsumption” approach is a "non-final" judgment under FRCP/Ind.TR 54, as “all the claims, rights and liabilities of all the parties" are not adjudicated. (Argued: Reply Brf, pp 3-5) And denies plaintiff and all others similarly situated equa: access to the federal courts whenever interrelated supervisors are in a position to retaliate against them, directly or indirectly, in both civilian and military careers. ‘ =» However, the principles of “claim preclusion", compel bringing both types of employment claims into one federal complaint when the same or inter- related defendants are involved and the facts of the case are such as to give rise to a "cons- piracy" action. Lower court rulings now put plaintiff and other reserve members in the pre- carious, “catch 22" position of being denied review of their military employment claims when- ever submitted with Title VII-covered claims. This "subsumption" by Title VII of all other causes of action denies otherwise controlling “original jurisdiction statutes such as: 28 U.S.C. §1331: civil actions arising under the constitution, laws or treaties of the United States; 28 U.S.C. §1343(a): any civil action authorized to recover damages for 42 U.S.C. §1985 civil rights violations; redress 42 U.S.C. §1983 violations; recover damages or secure relief under any Act of Congress providing for protection of civil rights; 28 U.S.C. §§1346(b)(1), 2671: Claims against the United States” for torts of government employees, including “military depart- ments" and “members of the National Guard" Plaintiff furnished evidence she held dual employment status with both the federally recog- nized forces of the United States (national guard component) and the Indiana National Guard. (Reply -28- Brf,App.No.2) At no time was Title VII asserted for alleged civil rights violations and breach of separate military employment contracts cover- her 17-year career and preceded Army's employ- ment in NGB's laison office. There was no connection between her civilian and military jobs except for interrelated employers. Titles 10 and 32 -0f the United States Code establish the federal basis and independent nature of NGB as a military organization, separate from Army. Indiana is clearly a separate employer. (Argued: Appel.Brf,pp 35-39; Reply Brf,pp 1-2) Every military personnel action had a separate federal and state authorizing order. All train- ing assigned was for a federal mission; all pay received was from federal funds. Plaintiff took separate oaths to serve the President and Governor of Indiana as separate “Commanders in Chief" upon entry into the Indiana National Guard in 1980. The Title VII “subsumption” dismissal of plain- tiff's military employment claims leaves her and all other reservists denied redress under the "myriad" of federal laws relied upon and cited to that should compel the federal court to exercise “original jurisdiction", separate from civilian employment claims. No subsumption case cited by the lower courts addressed a “mixed” employment complaint containing separate military and -29- civilian claims against different employers. But reservists and guardsmen frequently work for supervisors who are in a position to affect both their civilian and military careers. EEOC makes it a "general rule" to join sepa- rate government employers who “bear joint respon- sibility for an act of alleged discrimination" to ensure “all agencies are joined which are parties indispensable to just adjudication of a complaint." Smith v Navy, 86 FEOR 3238 (1986). Compulsory and permissive joinder of claims and parties are stan- dard and essential to judicial economy under fed- eral and state civil procedures. There was noth- ing “unique" in joining interrelated defendants and causes of action in one complaint. Only the lower courts' “subsumption” response and denial of “original jurisdiction" was unique. Mindes v Seaman, 453 F2d 197,201 (Sth Cir 1971), citing NeSmith v Fulton,615 F2d 196, 201-02 (CA6 1980): "A court is required to determine whether the case involves an alleged ‘violation of a constitutional right, applicable statute or regulation and whether intraservice remedies have been exhausted. If (review is granted), the court is...to weigh the nature and strength of the challenge to the military determination, the potential injury to plaintiff if review is refused, the type and degree of anticipated » Me interference with the military function and ...extent to which military discretion or ex- pertise is involved in the challenged decision." Plaintiff's military employment claims against federal and state employers raises questions under 28 U.S.C. §1331, which confers "power to decide whether or not the federal question itself has merit and is well founded." Mt-Dakota Utili- ties Co v NW Public Svc Co., 341 US 246,249 (1991). Quoting from Justice Holmes: “If the plaintiff makes a substantial claim under an Act of Con- gress, there is jurisdiction whether the claim ultimately be held good or bad." The Fair v Koh- ler Die Co, 228 US 22, 25 (1913). The Supreme Court's supervisory enforcement authority is required to prevent denial of ori- ginal jurisdiction over federal questions when litigants file mixed military and civilian employment claims in the same federal lawsuit. CONCLUSION The Petition for a Writ of Certiorari should be granted. tfully 7 d, GLORIA K. O'SHELL, Attdrney for Petitioner 1909 N. New Jersey Street, Indianapolis, Indiana 46202-1618 - (317) 926-5168 Dated: October 6, 1999 (*Reduced per Order) App. A-1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted March 24, 1999° Decided March 25, 1999 UNPUBLISHED ORDER Before NOT TO BE CITED PER CIRCUIT RULE 53 Hon. William J. Bauer, Circuit Judge Hon. Joel M. Flaum, Circuit Judge Hon. Daniel A. Manion, Circuit Judge No. 98-3750 Appeal from the United States District Court for the GLORIA K. O’SHELL, Southem District of Indiana, Plaintiff-Appellant, Indianapolis Division Vv. UNITED STATES OF No. IP 98-0494-C-T/C AMERICA; ROBERT M. WALKER, Acting Secretary John D. Tinder, of the Army; MAJOR Judge GENERAL WILLIAM NAVAS, JR., Director, Army National Guard Bureau; et al., Defendants-Appellees. ORDER “After an examination of the briefs and record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and record. See Fed. R. App. P. 34(a). App. A-2 In 1990, Glona O’Shell, then a civilian employee of the United States Army, commenced an action alleging that various dependants, all of them bearing some connection to the Army, discruminated against her on the basis of her gender. In April 1992, the district court dismissed O’Shell’s case without prejudice for failure to prosecute. Subsequently O’Shell moved for relief under Fed. R. Civ. P. 60(b), and we affirmed the district court's denial of the motion. O ‘Shell v. United States Dept. of the Air Force, 132 F.3d 36, 1997 WL 800875 (7" Cir. 1997) (unpublished order). In January 1992, several months before the district court dismissed O’Sheil’s case, the Army discharged her. O’Shell filed a discrimination charge with the EEOC and, in November 1992, received a right-to-sue letter. More than five years later, in April 1998, O’Shell filed this suit challenging her 1992 discharge and reiterating the allegations made in her 1990 action. O’Shell claimed that her rights had been violated under a host of provisions, including Title VII of the Civil Rights Act of 1964 and the First, Fifth and Fourteenth Amendments. All of her claims, of course, are subsumed under Title VII, “the exclusive judicial remedy for claims of discrimination in federal employment.” Brown v. Gen. Serv. Admin.. 425 U.S. 820, 835 (1976); see also Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 861-62 (7 Cir. 1996) (“Title VII provides a comprehensive statutory scheme for protecting nghts against discrimination in employment’’). And, although O’Shell names several, only the Secretary of the Army is a proper defendant. See 42 U.S.C. § 2000e-16(c); Espineuva v. Garrett, 895 F 2d 1164, 1166 (7" Cir. 1990). On Appeal, we need only address whether the district court correctly held that this Title VII action is time barred. Like the district court, we find that it is_ The EEOC issued O’Shell a right-to-sue letter on November 14, 1992. In the absence of special circumstances giving rise to waiver, estoppel, or equitable App. A-3 tolling, a “mixed” case involving both a complaint of discrimination and a challenge to job actions (such as O’Shell’s dismissal) appealable to the Merit Systems Board must be filed within 30 days after receipt of the notice of right to sue. 5 U.S.C. §§ 7702(a)(1)(B)(1); 7703(b)(2); Blaney v. United States, 34 F.3d 509, 512 (7" Cir. 1994); Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999). O’Shell argues that, even though hers is a mixed case, the longer 90-day limit imposed by 42 U.S.C. § 2000e-5(f)(1) should apply. See Williams-Guice v. Board of Educ. Of Chicago, 45 F.3d 161, 163 (7 Cir. 1995) (Title VII sets 90-day limit). But whether she is night or wrong is of no consequence given her five-year delay in filing. Moreover, we reyect O’Shell’s argument that the dismissal of her 1990 case without prejudice preserved her cause of action for filing at a later date. Dismissal without prejudice has no consequence on the running of the statute of limitations. See Conover v. Lein, 87 F.3d 905, 908-909 (7" Cir. 1996). O’Shell filed her suit at least five years too late, on April 13, 1998. She missed the deadline, and the record reveals no circumstances that would justify waiver, estoppel, or equitable tolling. AFFIRMED. App. B-4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION GLORIA KAY O’SHELL, ) Plaintiff, ) vs. ) IP 98-494-C- T/G ) UNITED STATES OF AMERICA, ) et al., ) Defendants. ) JUDGMENT The court, having this day made its Entry, IT IS THEREFORE ADJUDGED that the plaintiff's federal claims are dismissed with prejudice and that the any pendent state law claims are dismissed for lack of jurisdiction. (s/ John D. Tinder JOHN D. TINDER, Judge United States District Court Dated: _9/28/98 _ ENTRY DISCUSSING PENDING MOTIONS I. Introduction In Homola v. McNamara, 59 F.3d 647, 650 (7 Cir. 1995), Judge Easterbrook made the following observations for a panel of the Seventh Circuit Court of Appeals: Litigation is society’s way to resolve disputes. Courts invite parties to make their evidence and arguments known. Appellate App. B-5 courts correct errors. After the process has run its course, there should be peace between former adversaries. Many persons do not see litigation this way, however. They adopt a never-say-die attitude. If the first case goes against them, then some chicanery must be to blame. Now if the courts are unable to separate truth from fiction - the premise of this attitude toward the results of litigation - one would suppose that remedy lies in a political forum, or perhaps in an occasion for writing an expose. Yet many litigants who refuse to accept judgments against them see their balm as - more litigation! This is a case which would have served as a paradigm for the foregoing mulish description. This action is a sequel to plaintiff Gloria Kay O’Shell’s claims of discrimination, retaliation, and creation of a hostile work environment brought in O ‘Shell v. Department of the Air Force. IP 90-1373-C-M/F (S.D.Ind. April 3, 1992). This earlier case was dismissed for failure to prosecute. O’Shell filed post- judgment motions, which were denied. The denial of these motions was affirmed on appeal in ( ‘Shell v. Department of the Air Force, No. 97-2470 (7 Cir. December 20, 1997) (unpublished). O’Shell then filed the present action to carry on her legal siege of her former employer and associated entities and individuals. II. Background The operative pleading setting forth O’Shell’s claims in this case is her complaint, filed on April 13, 1998. It is likely no coincidence that this action was filed less than thirty (30) days after the Court of Appeals’ mandate in No. 97-2470 was docketed in IP 90-1373-C-M/F. O’Shell explains in her complaint that she brings this action: App. B-6 for the continuing sex discrimination, harassment, maintenance of hostile and abusive working conditions and ongoing retaliation suffered by plaintiff prior to and at the time of her wrongful suspension in May 1991 and subsequent wrongful termination on January 10, 1992. The defendants are (1) the United States of America, (2) the United States Department of Army, (3) the United States Army National Guard Bureau, (3) Hon. Robert M. Walker, Acting Secretary of the Army, (4) Major General William Navas, Director of the Army National Guard Bureau, (5) the State of Indiana, and (6) Indiana Governor O’ Bannon. O’ Shell was employed as a full-time federal civil service career employee for twenty-six (26) years. From 1968 until January 10, 1992, she worked as a Financial Quality Assurance Analyst at the Army’s USAFAC, located at FBH, Indiana. She states that during the last years of her employment, she experienced discrimination based on gender and also because she took part in appropriate procedures in an effort to correct the discrimination. Beginning in June 1987, she was repeatedly suspended for one to ten days without pay. These suspensions were later used for “discharge purpose(s].” O’Shell was initially discharged on June 3, 1988. She was reinstated after a hearing in October, 1988; however, two suspensions prior to the June termination were left on her record. It was based on those two suspensions, as well as issues dealing with compensation and career development opportunities, that O’Shell filed IP90-1373-C- M/F. O’Shell was discharged for a second time on January 10, 1992. She contends that she was discharged that time because she filed five (5) Title VI/EEO formal complaints against her superiors, also because she served as a whistle blower in her federal auditor position, and because she assisted other federal App. B-7 civilian employees as Pago ai representative. She claims to have been employed as both a civilian employee of the Army and a miliary employee of the United States Armed Forces, Guard and Reserve Components in a part-time position. III. Discussion A. Standard Under Rule 12(b)(6) The defendants challenge the sufficiency of the complaint pursuant to Rule 12(b). The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7* Cir. 1990), cert. denied, 502 U.S. 855 (1991). In making the assessment required by the motions to dismiss, the court liberally construes O’Shell’s allegations and applies the principle that “a complaint must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. Herdrich v. Pegram. 1998 WL 483926, *3 (7" Cir. August 18, 1998) (citing Sutliff, Inc. v. Donovan Cos. Inc., 727 F.2d 648, 654 (7" Cir. 1984)).' Ifa plaintiff pleads facts which show that she has no claim, then she has pleaded herself out of court. Early v. Bankers Life & C. asualty Co., 959 F 2d 75, 78 (7" Cir. 1992); Conn v. GATX Terminals Corp., 18 F.3d 417, 419 (7" Cir. 1994). She is not saved by having pleaded a legal conclusion that if consistent with the facts would establish his right to relief, for he has shown that it is inconsistent with the facts. Benson v. Cady, 761 F.2d 335, 338 (7" Cir. 1985). In lacampo v. Hasbro, Inc., 929 F Supp. 562 (D.R.I. 1996), 1 O’Shell differs from the typical pro se litigant because she is a licensed attorney. “While we treat pro se litigants gently, a pro se attomey ts not entitled to special treatment.” Lockhart v. Sullivan, 925 F.2d 214, 216 n.1 (7 Cir. 1991). App. B-8 a federal district court cogently held that, “[I]ike a battlefield surgeon sorting the hopeful from the hopeless, a motion to dismiss invokes a form of legal triage, a paring of viable claims from those doomed by law.” Id. At 567. See also Guckenberger v. Boston University, 957 F.Supp. 306, 313 (D.Mass. 1997). This technique is well-suited to O’Shell’s action. B. Analysis O’Shell invokes a medley of statutes in support of her complaint: Title VII of the Civil Rights Acts of 1964, as amended, alleging discrimination based on gender; 42 U.S.C. § 1983, alleging violation of her nghts arising from the First, Fifth, and Fourteenth Amendments and the Supremacy Clause of the United States Constitution; and 18 U.S.C. § 241 and 42 U.S.C. § 1985, alleging conspiracy to interfere with her civil rights. She also invokes federal and state Military Acts. District courts have orginal jurisdiction over all civil actions arising under the laws of the United States, see 38 U.S.C. § 1331. Title VII is one such law, and among other purposes was designed to protect from discrimination “employees or applicants for employment ... in military departments ....” 42 U.S.C. § 2000e-16(a). An aggrieved individual bring a civil action against the government pursuant to 42 U.S.C. § 2000e-16(c), which is also known as § 717(c) of the Civil Rights Act. In amending Title VII to include federal employees, “Congress created ‘an exclusive judicial remedy for claims of discrimination in federal employment.’” Forest v. United States Postal Serv., 97 F.3d 137, 141 (6 Cir. 1996) (quoting Brown v. General Servs. Admin., 425 U.S. 820, 835 (1976)). In Brown. 425 U.S. at 832, the Supreme Court expressed the view that: The balance, completeness, and structural integrity of § 717 are App. B-9 inconsistent with the ... contention that the judicial remedy afforded by § 717(c) was designed merely to supplement other putative judicial remedies. The Court’s discussion is based on its view that litigants might evade “the rigorous administrative exhaustion requirements and time limitations” of § 717 by recasting Title VII claims as claims under other statutes and so frustrate the legislative policies underlying Title VII. /d. At 833. This recasting of claims to invoke other remedial mechanisms is simply not permitted. Based on the authoritative construction of § 717 in Brown and its progeny, therefore, O’Shell’s claims of discrimination based on statutes other than 42 U.S.C. § 2000e-16(c) are dismissed for failure to state a claim upon which relief can be granted. Ramey v. Bowsher, 915 F.2d 731, 734 (D.C Cir. 1990), cert. denied, 499 U.S. 947 (1991) (tort claim barred by the exclusivity of Title VII); Castro v. United States. 775 F.2d 399 (1* Cir. 1985) (§ 717 is exclusive judicial remedy for claims of discrimination in federal employment); Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1204 (6" Cir. 1984) (“[A] federal employee claiming job discrimination may proceed only under Title VII, and may not secure additional remedies by proceeding also under [42 U.S.C.] § 1981.”); DiPompo v. West Point Military Academy, 708 F Supp. 540, 544 (S.D.N_Y. 1989) (dismissing 42 U.S.C. § 1985 claims as well as New York State statutory claims because of Title VII preemption); Carver v Casey, 669 F Supp. 412, 418-19 (S.D.Fla. 1987) (dismissing §§ 1983 and 1986 claims because of Title VII preemption); Person v. United States Dept. of Agriculture, 593 F Supp. 1054, 1058- 59 (E.D.Wis. 1984) (dismissing claims under 28 U.S.C. §§ 1331, 1343, 2201, and 2202 and Fifth Amendment of the United States Constitution because of Title VII preemption). In her complaint, O’Shell freely admits that her claims are App. B-10 wholly related to her alleged wrongful suspensions and termination, the last of which occurred in 1992. To the extent that O’Shell complains about the administrative and judicial proceedings derived from her 1990 law suit, those claims are also related to her miliary employment and the subsequent actions of her federal employer. As a result, O’Shell’s discrimination-based claims pursuant to federal law other than Title VII cannot be maintained and must be dismissed. Further, O’Shell names seven defendants in this action. Section 717(c) of Title VII directs that “the head of the department, agency, or unit, as appropriate, shall be the defendant.” 42 U.S.C. § 2000e-16(c); Blong v. Secretary of the Army, 877 F.Supp. 1494, 1495 (D.Kan. 1995) (Secretary of the Army was the only proper defendant in a § 717 case brought by a civilian employee). Therefore, this court lacks subject matter jurisdiction over any of the defendants other than Robert Walker, Acting Secretary of the Army.~ The statutory remedies available to O’Shell cannot be circumvented by suing individuals im tort. Bush v. Lucas, 462 U.S. 367, 390 (1983) (barring recovery against federal employee’s supervisor for defamation). The defendants assert that Title VII claim is untimely. Although O’Shell filed a number of administrative charges before and during the 1990 lawsuit, the most recent right to sue letter she ?To the extent that O’Shell asserts a claim as a uniformed member of the armed forces as a member of the Indiana National Guard in a part-time position, her claim fails. Title VII does not apply to uniformed members of the armed forces. The term “military dependants” within the section proscribing discrimination against employees of such departments includes only civilian employees. Knutson v. Wisconsin Air National Guard, 995 F.2d 765 (7" Cir.), cert. denied, 510 U.S. 933 (1993); Roper v. Department of the Army, 832 F.2d 247 (2™ Cir. 1987). App. B-11 alleges to have received was received in November 1992. The notice informed O’ Shell that she had thirty (30) calendar days to file an appropriate civil action in federal court. See Randle v. Bentsen, 19 F.3d 371, 373 (7" Cir. 1994): 5 US.C. § 7703(b)(2). It is quite apparent-apparent from the face of the complaint filed on April 13, 1998 - that O’Shell did not file this action within the 30-day period which pertained to the most recent of the right-to-sue letter. The timely filing of a Title VII action is a “condition precedent” to filing suit, and is subject to equitable modification. Perkins v. Silverstein, 939 F 2d 463, 470 (7" Cir. 1991); see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990) (“the same rebuttal presumption of equitable tolling applicable to [Title VII] suits against private defendants should also apply to suits against the United States”). O’Shell’s whistleblowing claim is likewise subject to a 30-day period of limitations for seeking judicial review. See 5 US.C. §§ 7702(a)(2), 7703(b)(2); McAdams v. Reno. 64 F 3d 1137, 1142 (8" Cir. 1995) (“Employees pursuing relief through an EEO mixed case complaint may file a civil discrimination action in federal district court within 30 days of a final decision by the agency....”). The running of the statute of limitations is an appropriate ground for dismissal if it is apparent on the face of the complaint. Rylewicz v. Beaton Serv., 698 F.Supp. 1391, 1398 (N.DIil. 1988); see also Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9hCir. 1980). O’Shell argues vigorously that the present action was timely filed pursuant to both federal and state law. Federal law is the proper source for determining whether the plaintiff's action has been timely brought. The Supreme Court held in the Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 355 (1977), that it would be inconsistent with federal law to apply a state statute of limitations to actions instituted by the App. B-12 EEOC under Title VII since the EEOC was “required by law to refrain from commencing a civil action until it ha[d] discharged its administrative duties.” /d. At 368. There is no reason, in either legal or practical terms, to use any period of limitation other than that prescribed in Title VII itself to determine when suit had to be brought. Lopez v. Louisiana Nat'l Guard, 733 F Supp. 1059 (E.D.La. 1990), aff'd, 917 F.2d 561 (5 Cir. 1990). O’Shell seeks to avoid the straightforward computation of time with respect to the present claim by suggesting that the “involuntary dismissal without prejudice” of No. IP 90-1373-C- M/F on April 3, 1992, saved her cause for refiling at some future date. This tolling argument is without merit. Generally, a dismissal without prejudice leaves the situation the same as if the suit had never been brought. Hilbun v. Goldberg, 823 F.2d 881, 883 (5" Cir. 1987), cert. denied, 485 U.S. 962 (1988). Asa result, where a case is dismissed, without prejudice, and the statute of limitations has run, the plaintiff is precluded from re- filing an action. Petrucelli v. Excel Recycling & Manufacturing, Inc., 46 F.3d 1298, 1304 n.6 (3™ Cir. 1995). Further, in the absence of a specific statute to the contrary, there is no tolling of the statute of limitation for the period of time during which the action so dismissed was pending. Parker v Marcotte, 975 F.Supp. 1266 (C.D.Ca. 1997), Wilson v Grumman Ohio Corp., 815 F.2d 26 (6" Cir. 1987); Bomer v. Ribicoff, 304 F.2d 427 (6" Cir. 1962). Some courts have held specifically that a timely claim which is dismissed without prejudice for failure to prosecute does not toll the statute of limitations. Dupree v. Jefferson, 666 F.2d 606, 610-11 (D.C.Cir. 1981); Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11" Cir. 1982); Harris v. City of Canton, Ohio, 725 F.2d 371, 376- 77 (6" Cir. 1984). Other courts have merely assumed the same proposition, with which this court is in agreement. Porter v. Beaumont Enterprise and Journal. Inc., 743 F.2d 269, 273 (5® App. B-13 Cir. 1984), Wei v. State of Hawaii, 763 F.2d 370, 372 (9" Cir. 1985) O’Shell’s argument that the Indiana law controls the timing of the refiling of her claims would fare no better, even if the argument 's premise was sound. In order to characterize this action as having been timely filed, O’Shell attempts to use the Indiana savings statute, Ind.Code 34-1 1-8-1 (1998), commonly known as the Journey Account Statute.> Under certain circumstances, this statute permits a plaintiff to reinstate a lawsuit which has suffered procedural default and have the lawsuit considered a continuation of the original action. See. e.g., 3 The Seventh Circuit provides an interesting history and rationale of Indiana's Journey’s Account in Morris v. Jenkins, 819 F.2d 678 (7th Cir. 1987): At common law, suits frequently failed a decision on their merits on account of some matter of form. In such cases, the plaintiff was permitted, within a reasonable time, to sue out a new writ, and such renewal suit was deemed a continuation of the first. The tume which was reasonable for such purpose was computed theoretically with reference to the number of days required for plamtiff to joumey to the place where the court was held, and hence the name “Joumey’s Account.” (citations omitted). This ancient remedy is not now recognized in this country, but, in lieu thereof, statutes have been passed in nearly all of the states, providing for a renewal of actions which have failed on account of some matter not involving the merits. These statutes do not contemplate a renewal or continuance of the former suit as at common law under Journey’s Account, but that a new and distinct suit shall be commenced, which shall be treated as a continuation of such former suit. Id. at 679 n.2 (citations omitted)(quoting Pennsylvania Co. v. Good, 103 N_E. 672, 673 (1913)). App. B-14 Mayfield v. Continental Rehabilitation Hosp. Of Terre Haute. 690 N.E.2d 738, 741 (Ind.App. 1998); Eves v. Ford Motor Co., 152 Ind.App. 34, 42-43, 281 N.E.2d 826, 831 (1972) (statute saves Claim brought in state court after expiration of original statute of limitations when brought within 5 years after same action abated by federal district court for jurisdictional reasons); Abele v. A.L. Dougherty Overseas. Inc., 192 F.Supp. 955, 956- 57 (N.D.Ind. 1961) (statute saves employment action brought in state court after expiration of original statute of limitations when brought within 5 years after identical claim dismissed without prejudice by federal district court). However, an action may be saved “if a plaintiff commences an action and the plaintiff fails in the action from any cause except: (1) negligence in the prosecution of the action .. . a new action may be brought not later than . . . three (3) years after the date of the determination under subsection (a)... and be considered a continuation of the original action commenced by the plaintiff.” IND. CODE § 34- 11-8-1. As already noted, No. IP 90-1373-C-M/F was dismissed on April 3, 1992, based on O’Shell’s failure to prosecute. Although O’Shell filed post-judgment motions and an appeal, those proceedings were not commenced for ten months after the original action was dismissed. Considering this history, it must be concluded that neither the letter nor the spirit of Indiana’s Journey Account Statute can rescue the plaintiff's present action ~ from dismissal.* S her argument, O’Shell argues that her claim is saved under an older and now repealed version of this statute. Ind.Code § 34-1- 2-8. The Indiana case law which interpreted that statute held that, despite statutory language to the contrary, a claim which could be reinstated under the previous version of the Journey Account Statute would not be defeated by negligence in the prosecution. Vesolowski v. Repay, 520 N.E.2d 433, 435-36 (Ind. 1988). Interestingly, negligence in prosecution is the very reason that (continued...) A 4 j | ; &| 3 i 4 ; 4 i i SS ht atid Blac Pade App. B-15 IV. Conclusion The plaintiff's federal claims are either not cognizable at all or barred by the applicable period of limitations within which such claims had to be brought. With respect to the issue of timeliness, the parties should recognize that “[s}tatutes of limitations . . . represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Railroad Tel. v. Railway Express Agency, 321 U.S. 342, 349, 64 S. Ct. 582, 586 (1944). Whether considered as the attempted continuation of O ‘Shell v. Department of the Air Force, IP 90- 1373-C-M/F (S.D.Ind. April 3, 1992), or as asserting new claims, or both, the plaintiff's federal claims are time-barred. Accordingly, the defendants’ motions to dismiss are granted. To the extent that O’Shell asserts pendent state law claims, the exercise of supplemental jurisdiction such claims is inappropriate where the federal claims have been dismissed, and the state law claims are therefore dismissed for lack of jurisdiction. 28 U.S.C. § 1367(c). Judgment consistent with the Entry shall now enter. The conference set for October 14, 1998, is vacated. IT IS SO ORDERED. (s/John D. Tinder JOHN D. TINDER, Judge Date: __ 9/28/98 United States District Court *(...continued) O’Shell’s 1990 suit was dismissed. In any event, in 1993, the Indiana legislature amended the Joumey Account Statute to clarify that it would not save an action which had failed due to negligence in the prosecution. P.L. 239-1993. App. C-16 UNITED STATES COURT OF APPEALS For the Seventh Circuit Chicago, Illinois 60604 July 9, 1999 Hon. WILLIAM J. BAUER, Circuit Judge Hon. JOEL M. FLAUM, Circuit Judge Hon. DANIEL A MANION, Circuit Judge GLORIA K. O’SHELL, Plaintiff-Appellant, No. 98-3750 v UNITED STATES OF AMERICA, ROBERT M WALKER, Acting Secretary of the Army, MAJOR GENERAL WILLIAM NAVAS, JR., Director, Army National Guard Bureau; et al., Defendants- Appellees a ee ee ee ORDER Appeal from the United States District Court for the Souther District of Indiana, Indianapolis Division. No. IP 98-0494-C-T/C John D. Tinder, Judge. On consideration of the petition for rehearing filed in the above-entitled case on May 14, 1999, by plaintiff-appellant, no judge in active service has requested a vote thereon, and all of the judges on the orginal panel have voted to deny a rehearing. Accordingly, App. C-17 IT IS ORDERED that the aforesaid petition for rehearing be, and the same is hereby DENIED. App. D-18 UNITED STATES COURT OF APPEALS For the Seventh Circuit Chicago, Illinois 60604 (Submitted December 17, 1997°) Before UNPUBLISHED ORDER NOT TO BE CITED PER CIRCUIT RULE 53 Hon. JOEL M. FLAUM, Circuit Judge Hon. KENNETH F. RIPPLE, Circuit Judge Hon. DIANE P. WOOD, Circuit Judge GLORIA K. O’SHELL ] Plaintiff-Appellant. ] No. 97-2470 V. ] UNITED STATES ] DEPARTMENT OF THE ] AIR FORCE, et al., ] Defendants-Appellees. ] ] ] ] ORDER Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 90 C 1373 Larry J. McKinney, Judge. On May 17, 1990, Gloria K. O’Shell commenced an action After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a); Cir. R. 34(f). * oe zt ve J Rs = edb sak inet Ribs Nnchiewids