TRUMAN E. BULLARD, PETITIONER V. EDWARD R. MADIGAN, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE No. 90-1272 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 Fourth Circuit Brief For The Respondent In Opposition TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals, Pet. App. B1-B2, is not yet reported. The opinion of the district court, Pet. App. A1-A10, is not yet reported. JURISDICTION The judgment of the court of appeals was entered on September 28, 1990. A petition for rehearing was denied on October 22, 1990. Pet. App. C1-C2. The petition for a writ of certiorari was filed on January 22, 1991. The jurisdiction of the Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether, under former regulations of the Equal Employment Opportunity Commission (EEOC) that allowed multiple requests for reopening of EEOC decision and that prescribed no deadline for such requests, the 30-day time period under 42 U.S.C. 2000e-16(c) for seeking judicial review commenced upon the EEOC's issuance of an initial decision that the agency viewed as final. 2. Whether petitioner's time for seeking judicial review was equitably tolled in light of the EEOC's adoption of a revised regulation, more than a year after the EEOC's initial decision in this case, that renders an initial EEOC decision nonfinal upon the receipt of a timely request to reopen. STATEMENT 1. Petitioner unsuccessfuly applied for a position in the County Executive Director Training Program with the Agriculture Stabilization and Conservation Service of the Department of Agriculture. After consulting an Equal Employment Opportunity Commission (EEOC) counselor, petitioner filed a complaint with the Department of Agriculture alleging discrimination based on his status as a veteran and a handicapped person. On February 2, 1984, the agency rendered a final decision finding no discrimination against petitioner in his failure to be selected. On February 28, 1984, petitioner filed an appeal with the EEOC's Office of Review and Appeals. On September 25, 1985, the EEoc dismissed the appeal because it had not been timely filed. Pet. App. A1, A3-A4. In notifiying petitioner of the dismissal of his appeal, the EEOC included a document captioned "STATEMENT OF APPELLANT'S RIGHTS," advising petitioner that "(y)ou are hereby notified that the attached decision in your case is final. You have the right to file a civil action in the appropriate United States District Court WITHIN THIRTY (30) DAYS from the date you receive this decision." The notice also informed petitioner that he could seek reopening, but it warned that "FILING A REQUEST TO REOPEN * * * MAY NOT EXTEND THE TIME PERIOD ALLOWED FOR FILING A CIVIL ACTION. IF YOU WISH TO PRESERVE YOUR RIGHT TO FILE A CIVIL ACTION, THE CIVIL ACTION SHOULD BE FILED WITHIN THE TIME ALLOWED, EVEN IF YOU DECIDE TO REQUEST REOPENING * * *." Pet. App. A4-A5 & n.1. On October 8, 1985, petitioner sought reopening. On July 28, 1987, the EEOC allowed his request to reopen the administrative appeal, considered his case on the merits, and found no discrimination. On August 28, 1987, petitioner again requested reopening, and on May 6, 1988, the EEOC denied his request. The notice of each of those administrative actions contained the previously described form advising petitioner of his right to file a civil action, or request reopening. Pet. App. A5-A6 & n.2. 2. On June 17, 1988, petitioner filed an action in the United States District Court for the Eastern District of North Carolina, challenging the EEOC's decision under the Rehabilitation Act of 1973, 29 U.S.C. 791. The district court dismissed petitioner's case on the ground that it was not timely filed. Pet. App. A6. The court noted that under 29 U.S.C. 794a, the remedies and procedures of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16, applied to petitioner. Consequently, as in a Title VII case, a Rehabiliation Act plaintiff must file a civil action within 30 days of receipt of notice of final agency action. 42 U.S.C. 2000e-16(c) (authorizing suit "(w)ithin thirty days of receipt of notice of final action taken by a department, agency, or unit * * * or by the (EEOC) upon an appeal from a decision or order of such department, agency or unit * * *"). Here, the court found, petitioner failed to meet the timeliness requirement for seeking judicial review because he had received a final agency decision more than 30 days before filing suit. Pet. App. A6-A9. In finding that petitioner's requests to reopen did not toll his time for seeking judicial review, the court relied on Birch v. Lehman, 677 F.2d 1006 (1982), cert. denied, 459 U.S. 1103 (1983), where the Fourth Circuit had rejected the contention that "there was no 'final action' by the EEOC until (the plaintiff) was notified of the denial of her request for reopening." Id. at 1007. The court explained in Birch that that position "would mean that no decision by the EEOC could be regarded with certainty as a 'final action' since a plaintiff could revive his claim at any time, merely by requesting reconsideration" -- a result, the court stated, that "would render the statutory 30-day requirement meaningless." Id. at 1008. Applying Birch, the district court determined that because petitioner received a decision rejecting his claim on September 25, 1985, and had been notified that he had to file his civil action within 30 days of receiving that notice, "his filing of this action on 17 June 1988, nearly three years later, was clearly untimely." Pet. App. A9. The court then turned to petitioner's contention that he was entitled to the benefit of a revised EEOC regulation, 29 C.F.R. 1613.234(b)(1), under which an EEOC decision is final "unless: (1) Within 30 days of receipt of a decision * * *, either party files a timely request to reopen * * *." Pet. App. A9-A10. The court held that this regulation did not aid petitioner because "it was adopted * * * more than two years after (petitioner's) final EEOC decision was rendered." Pet. App. A10. 3. The court of appeals affirmed in an unpublished opinion "on the reasoning of the district court." Pet. App. B2. /1/ ARGUMENT 1. Petitioner contends (Pet. 12-19, 24) that the rejection of his discrimination claim was not final for purposes of judicial review until the EEOC had denied his request to reopen the agency's intitial decision. Although the courts of appeals were divided over whether a request for reopening tolled the time for seeking judicial review under the EEOC's former regulations, /2/ that issue does not warrant review here. Whatever the merits of the tolling issue under the EEOC's former regulation, that issue is of no continuing importance because the EEOC regulation in force at the time of petitioner's case long since has been replaced. Under the current regulation, 29 C.F.R. 1613.234(b)(1), an EEOC decision is made final unless a party files a timely request for reopening in accordance with the agency's regulations. As a result, it is now clear that parties may seek reopening at the agency level without impairing their ability to seek judicial review within the statutory time limits. The time limits for seeking judicial review run from "final" decisions, and a timely petition for reopening "tolls the period for judicial review of the original order, which can therefore be appealed to the courts directly after the petition for reconsideration is denied." ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 279 (1987). There is no conflict in the circuits regarding the tolling issue under the EEOC's new regulation. /3/ 2. Petitioner also contends (Pet. 20-22, 25) that his complaint was timely upon application of the doctrine of equitable tolling. This Court's decision in Irwin v. Veterans Administration, 111 S. Ct. 453 (1990), establishes that equitable tolling applies to the 30-day period at issue here, but petitioner's case presents no situation warranting relief under that doctrine. "(T)he principles of equitable tolling * * * do not extend to what is at best a garden variety claim of excusable neglect," Irwin, 111 S. Ct. at 458, and petitioner presents nothing more. The law in the Fourth Circuit that a motion to reopen did not toll the timeliness of a complaint under 42 U.S.C. 2000e-16(c) was well established when petitioner chose to delay in filing his action; petitioner was not justified in disregarding that law, particularly when the EEOC's notice-of-rights form specifically warned him that a suit had to be filed within 30 days and that a request to reopen "may not extend the time period allowed for filing a civil action." Pet. App. A4. Nor does the promulgation of the EEOC's present regulation aid petitioner; as the district court pointed out, the current EEOC regulation "was adopted on 30 October, 1987, more than two years after (petitioner's) final EEOC decision was rendered." Pet. App. A10. /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General BARBARA C. BIDDLE ROBERT D. KAMENSHINE Attorneys APRIL 1991 /1/ The per curiam affirmance noted that "(u)npublished opinions are not binding precedent" under the Fourth Circuit's internal rules. Pet. App. B1. /2/ Compare Birch and Mahroom v. Defense Language Institute, 732 F.2d 1439 (9th Cir. 1984) (rejecting tolling) with Donaldson v. Tennessee Valley Authority, 759 F.2d 535, 538 (6th Cir. 1985); Nordell v. Heckler, 749 F.2d 47, 49-50 (D.C. Cir. 1984); and Martinez v. Orr, 738 F.2d 1107, 1112 (10th Cir. 1984) (all holding that despite the Commission's allowance of multiple petitions for reopening, denial of a request to reopen would be a "final agency action" if the request were filed within 30 days of the EEOC's initial decision). /3/ In a submission to the Fourth Circuit in Scott v. Stone, Secretary of the Army, No. 91-1407, the government has urged the court to hold that "in cases in which a motion for reconsideration was filed pursuant to the Commission's new regulations, the Commission's 'final action' which triggers the 30-day period is the denial of reconsideration." Gov't Br. 5 (filed Mar. 27, 1991). See also Ganheart v. Lujan, 733 F. Supp. 1053, 1057-1058 (E.D. La. 1990), distinguishing Birch based on the EEOC's new rules. /4/ Petitioner claims that the district court did not dispose of his veterans preference claim (Pet. 22-23), but the court's opinion initially noted that petitioner sought redress under the Rehabilitation Act and "alleged intentional discrimination in the refusal of the United States Department of Agriculture (USDA) to grant him an employment preference based on his status as a veteran and a handicapped person." Pet. App. A1. Because this case did not involve an independent claim of a denial of a veteran's preference, which claim would not have been pursued through the EEOC in any event, the court properly treated the veteran's preference claim simply as an aspect of prohibited handicap discrimination.