KENNETH W. EVANS, PETITIONER V. UNITED STATES POSTAL SERVICE, ET AL. No. 89-7526 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 Ninth Circuit Brief For The Respondents In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 13) is unpublished. The opinion of the district court (Pet. App. 10) is also unpublished. JURISDICTION The judgment of the court of appeals was entered on December 6, 1989. A petition for rehearing was denied on February 21, 1990 (Pet. App. 15). The petition for a writ of certiorari was filed on May 17, 1990. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the administrative denial of petitioner's complaints of employment discrimination constituted an abuse of discretion. 2. Whether the court of appeals properly refused to consider petitioner's claim that it is the Postal Service policy to administer fitness-for-duty examinations in a discriminatory manner. STATEMENT The district court dismissed petitioner's complaint alleging employment discrimination by the Postal Service for lack of subject matter jurisdiction, finding that petitioner had failed to commence his action within 30 days of receipt of notice of the final decision of the Equal Employment Opportunity Commission, as required by 29 U.S.C. 794(a)(1) and 42 U.S.C. 2000e-16. Pet. App. 10. The court of appeals affirmed. Pet. App. 13A-13F. 1. On October 8, 1980, petitioner was discharged from his employment as a custodian by the United States Postal Service. Pet. App. 2A-2B. After an adverse decision by the Postal Service and the Merit Systems Protection Board on his claim that the Service had discriminated against him on the basis of his handicap in deciding to discharge him, petitioner filed an appeal with the EEOC on December 1, 1980. That appeal challenged both his discharge and the Postal Service's prior refusal to accommodate his handicap by reassigning him to another position. On September 15, 1982, the EEOC denied petitioner's appeal, finding that the Postal Service effected his termination for legitimate, non-discriminatory reasons. Pet. App. 4A. /1/ The decision did not address petitioner's challenge to the refusal to reassign him. Pet. App. 4B-4C. The Postal Service issued a decision on December 14, 1982, dismissing petitioner's challenge to the refusal to reassign him as untimely, on the ground that he had failed to contact an EEOC counselor within 30 days of the denial of his request for reassignment. The EEOC denied petitioner's appeal on April 18, 1983, but in response to petitioner's request for reconsideration, it vacated that decision and directed the Postal Service to conduct a further investigation to determine when petitioner had first contacted the counselor. Pet. App. 5A-5D. The Postal Service thereupon found that the complaint was timely, and, on November 9, 1984, denied it on the merits after a hearing, concluding that the denial of reassignment was non-discriminatory. On November 24, 1986, the EEOC affirmed this decision. Pet. App. 13D. When petitioner was notified of this decision, he was informed that he must file a civil action within 30 days of his receipt of the notice, and that a request to reconsider was not sufficient to extend the time for filing. Pet. App. 13D-13E. /2/ 2. Although petitioner filed a request to reconsider the November 24, 1986, EEOC decision on December 9, 1986 (Pet. App. 13D-13E), he did not file his complaint in the civil action until August 31, 1987. The district court dismissed the complaint for lack of subject matter jurisdiction. Pet. App. 10A. It held that 29 U.S.C. 794(a)(1) provides that the rights and remedies available under 42 U.S.C. 2000e-16 are applicable to persons complaining, under the Rehabilitation Act, of employment discrimination on the basis of a handicap. 42 U.S.C. 2000e-16(c) provides that an aggrieved employee must file suit within 30 days after receiving notice of either a final agency decision or a final decision from the EEOC. The district court found that the EEOC's April 18, 1983, denial constituted the final agency action that started the limitations period running. As this action was not filed until August 31, 1987, the court held it was without jurisdiction to entertain the action. Pet. App. 10B. 3. The court of appeals agreed that the time limit contained in 42 U.S.C. 2000e-16(c) applied to this case, and that that time limit is mandatory and jurisdictional. Pet. App. 13C. But the court of appeals rejected the district court's view that the EEOC's April 18, 1983, decision constituted final agency action, because the EEOC later vacated that decision. Pet. App. 13E. Instead, the court of appeals found that the EEOC's November 24, 1986, decision was the final agency action for purposes of Section 2000e-16. Because petitioner failed to file a civil action within thirty days after receiving notice of that decision, /3/ the court of appeals held that the district court correctly dismissed petitioner's claims for lack of jurisdiction. /4/ ARGUMENT Both courts below concluded that the 42 U.S.C. 2000e-16(c) time limit imposes a jurisdictional bar to the consideration of petitioner's complaint. Although Irwin v. Veterans Administration, cert. granted, No. 89-5867 (Feb. 20, 1990), presents the question whether the time limit of 42 U.S.C. 2000e-16(c) is jurisdictional, there is no reason to hold this petition until the decision in Irwin. Even if the Court in Irwin concludes, contrary to our submission, that the time limits in 2000e-16(c) are subject to equitable tolling, petitioner's complaint was properly dismissed. /5/ There is simply no equitable basis for tolling the time limitations in this case, and petitioner suggests none. The fact that petitioner filed a request for reconsideration within 30 days of the final EEOC decision demonstrates that he was under no disability that prevented him from filing a timely complaint. The right-to-sue notice clearly informed him that the filing of the request for reconsideration did not extend the time for filing a civil complaint. Nevertheless, he waited more than nine months before he filed the civil complaint. He offers no explanation at all for this delay, nor does he suggest any reason that might conceivably justify tolling the time limits in this case. In these circumstances, the dismissal of his complaint was clearly correct, whatever the outcome in Irwin. Petitioner simply ignores the fact that his complaint was dismissed as untimely, and appears to be asking this Court to review the merits of the agency action on his employment dispute. Those issues were not properly before either the district court or the court of appeals, and were not considered by them. A fortiori, there is no need for this Court to consider those issues. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH STARR Solicitor General STUART M. GERSON Assistant Attorney General MICHAEL JAY SINGER STEVE FRANK Attorneys JULY 1990 /1/ The EEOC found that the record established that the petitioner was removed because of his misconduct, noting that "(t)here is nothing to suggest that petitioner's physical handicap (a skin condition of the hands similar to eczema) contributed in any way to the act of misconduct or that considerations of (petitioner's) physical handicap motivated the agency to terminate petitioner." Pet. App. 4A. /2/ The record does not disclose when petitioner received that notice. Pet. App. 13D. /3/ Even though the date of petitioner's receipt of the notice of that action is unclear, the court noted (Pet. App. 13D-13E) that the suit was not filed within 30 days of the filing of the request for reconsideration on December 9, 1986 -- a request that necessarily indicated that petitioner had received notice of the decision. /4/ The court of appeals also noted petitioner's claim that the Postal Service has a continuing policy of discriminating against handicapped persons in the conduct of its fitness-for-duty examinations. That claim was first raised on appeal (Pet. App. 13E); in the absence of any evidence in the record suggesting the existence of such a policy, the court declined to address an argument involving questions of fact not raised below. Pet. App. 13E-13F. /5/ Petitioner does not contest the assumption of the courts below that the Section 2000e-16(c) filing period applies to the Postal Service in the same manner as it does to any other agency of the federal government. That assumption is consistent with the conclusion of the courts of appeals that have considered the question. Mahoney v. U.S. Postal Service, 884 F.2d 1194 (9th Cir. 1989); Williams v. U.S. Postal Service, 873 F.2d 1069 (7th Cir. 1989).