VIRGINIA D. HATCH, PETITIONER V. SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL. No. 90-7869 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The Respondents In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-3) /1/ is unreported. The opinion of the district court (Pet. App. 4-5) is unreported. JURISDICTION The judgment of the court of appeals was entered on December 10, 1990. The petition for a writ of certiorari was filed on March 11, 1991 (a Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the courts below correctly concluded that petitioner was not entitled to equitable tolling of the limitations period established by 42 U.S.C. 2000e-16(c). STATEMENT 1. Petitioner formerly was employed by the United States Department of Agriculture. She alleges that she was the victim of systematic discrimination from 1981 through July, 1984, which resulted in unlawful termination of her employment. Pet. 10-22. She challenged her termination, as well as her treatment while employed, in at least four separate proceedings before the Merit Systems Protection Board and the Equal Employment Opportunity Commission (EEOC), all of which were unsuccessful. /2/ It is our understanding that the EEOC issued right-to-sue letters dated January 15, 1986, January 20, 1987, February 25, 1987, and May 18, 1987. 2. On May 21, 1986, petitioner first filed suit in federal district court challenging the first of the EEOC decisions. Because she never served the defendants, the action was dismissed for want of prosecution. Two subsequent actions challenging her adverse treatment (filed on August 5, 1986 and February 3, 1987) also were dismissed for want of prosecution after the defendants were not served, with the last dismissal occurring on March 14, 1988. See App. A, infra (district court docket sheets for the other three actions). 3. This case was filed on August 25, 1989. Petitioner acknowledged that the case had not been filed within the thirty-day limit established by 42 U.S.C. 2000e-16(c), but argued that her suit nevertheless could be maintained because of an Arkansas statute that provides a one-year grace period in which to refile an action that is non-suited. See Arkansas Code Ann. 16-56-126. The district court rejected this argument and dismissed the action with prejudice because it was out of time. Pet. App. 4. 4. The Court of Appeals for the Eighth Circuit affirmed in a brief unpublished opinion. The court explained: "(Petitioner's) action, filed almost one and one-half years after receipt of the relevant EEOC letter, was untimely under 42 U.S.C. Section 2000e-16(c), and we find no grounds justifying tolling." Pet. App. 3. /3/ ARGUMENT Although petitioner's wide-ranging petition discusses many matters, the sole issue decided by the court of appeals was that equitable tolling of the statute of limitations was not appropriate in her case. That claim does not warrant further review. 1. Section 717(c) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16(c), provides that an aggrieved federal employee may file a complaint in district court within 30 days of receipt of notice of the EEOC's final decision on a claim of employment discrimination. Petitioner conceded in the district court that her lawsuit was not filed within the 30-day period. See Pet. App. 4. Although her petition suggests that even now she has not received some of the right-to-sue letters sent to her, she does not contend that she received the letters on which this suit is based within thirty days of the date she commenced the suit. See Pet. 33. Accordingly, petitioner could prevail only under the doctrine of equitable tolling adopted by this Court in Irwin v. Veterans Administration, 111 S. Ct. 453 (1990). Contrary to petitioner's suggestion (Pet. 1a-1c, 1e), the Eighth Circuit specifically acknowledged that the statute of limitation was subject to tolling. Pet. App. 3. Indeed, since 1989, the Eighth Circuit has adhered to the view that Section 2000e-16(c) is "not jurisdictional but instead is subject to equitable tolling." See Warren v. Department of the Army, 867 F.2d 1156, 1159 (8th Cir. 1989). Thus, the sole issue is whether the Eighth Circuit correctly decided that tolling was inappropriate on the facts of this case. That issue is completely factbound. Moreover, there is no reason to believe the court of appeals erred in this case. As this Court explained in Irwin, equitable tolling is to be granted only "sparingly" and not to a claim that is "at best a garden variety claim of excusable neglect." Irwin, 111 S. Ct. at 457-458. In Irwin, the Court outlined the typical situations to which the doctrine applies: "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Id. at 458. By contrast, the Court indicated that federal courts "have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights." Ibid. Petitioner is not entitled to equitable tolling under these principles. Even assuming that petitioner acted with adequate diligence in connection with her earlier lawsuits (which is doubtful, considering that they all were dismissed for want of prosecution), the seventeen-month delay between dismissal of the last of those suits and the filing of this suit -- quite a considerable delay by comparison to the 30-day limitations period -- for which petitioner has offered no explanation, bars petitioner from any claim that she has exercised due diligence. /4/ 2. The bulk of the petition is addressed to petitioner's comments on the treatment she received from her former employers, her views regarding the failure of the clerk of the district court to effect service in her earlier cases, and her complaints regarding access to files in the possession of the United States Attorney. The petition does not suggest that any of these issues raises a question of general legal significance, and none of them is properly before this Court. With respect to the last issue, we understand that a separate action raising this claim is pending in the district court. We attach to this brief a photocopy of a motion made in that action demonstrating, contrary to petitioner's assertions here, that the United States Attorney has made those files available to petitioner. See App. B, infra. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MARLEIGH D. DOVER MATTHEW M. COLLETTE Attorneys JUNE 1991 /1/ The appendix to the petition served upon the government is not separately paginated. The citations used in this brief reflect consecutive pagination of the appendix. /2/ Petitioner suggests (Pet. 33) that she initiated five separate EEOC proceedings, although the record available to us indicates that there were only four proceedings. We are unable to resolve this factual ambiguity based on the record available to us, but note that the petition suggests that petitioner herself is not entirely sure just how many separate proceedings she has initiated. See Pet. 23-24. As the discussion below makes clear, this factual ambiguity should not be relevant to evaluation of the petition. /3/ We do not understand the manner in which the court of appeals calculated the one-and-a-half year period. According to the record before us, the last right-to-sue letter was issued on May 18, 1987, and this lawsuit was filed on August 25, 1989, more than two years after issuance of the right-to-sue letter. This factual question, though, does not alter the fact that petitioner's action indisputably was filed considerably beyond the 30-day limitations period. /4/ Nor is there merit in petitioner's suggestion (Pet. 1d) that the present action should "relate back" to her previous lawsuits under Fed. R. Civ. P. 15. Rule 15 applies to amendments to pleadings, and not to entirely new lawsuits brought long after the previous lawsuits were dismissed. APPENDIX