ELEANOR REED, PETITIONER V. ANTHONY M. FRANK, POSTMASTER GENERAL OF THE UNITED STATES No. 89-6585 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The Respondent OPINIONS BELOW The opinion of the court of appeals (Pet. App. B) is unpublished. The opinion of the district court (Pet. App. A) is unpublished. JURISDICTION The judgment of the court of appeals was entered on November 3, 1989. The petition for a writ of certiorari was filed on February 1, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether 42 U.S.C. 2000e-16(c), which requires discrimination complaints against the federal government to be filed within 30 days of receipt of notice of final administrative action, is a jurisdictional prerequisite to filing a civil action against the United States Postmaster General. 2. Whether that 30-day filing period begins to run when the final administrative decision, directed to the complainant's attorney, is received by the attorney's office. STATEMENT Petitioner contends that the district court erred in dismissing her employment discrimination suit against the Postmaster General for lack of subject matter jurisdiction. 1. Petitioner was employed by the United States Postal Service as a Machine Distribution Clerk (Pet. 3). In 1983, the Postal Service suspended petitioner twice: once for threatening a co-worker and once for an unexcused absence of 72 duty hours (Appellees' Supplemental Excerpts of Records, Docket 13, Exhibit 12 (Statement Of Findings And Recommended Decision On The Discrimination Complaint Of Eleanor Pickney Reed) (Rec. Dec.), 2-3). On September 14, 1983, petitioner filed a formal administrative complaint pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., alleging that these disciplinary actions were based on her race and sex (Rec. Dec. 1-3). While this administrative complaint was pending, petitioner was fired on January 20, 1984, for additional unexcused absences from work (id. at 5). Petitioner then filed a second administrative complaint of discrimination, alleging that the termination of her employment was a reprisal for filing the prior complaint (id. at 2). Petitioner requested hearings on both administrative complaints before the Equal Employment Opportunity Commission (Pet. 4). The two complaints were consolidated for purposes of hearing and decision (Appellant's Excerpts Of Record (E.R.) 25). On December 10, 1984, the EEOC issued a "Statement of Findings and Recommended Decision", recommending a determination that petitioner had not been subject to discrimination (Rec. Dec. 1-19), and on January 14, 1985, the Postal Service adopted the EEOC findings and recommendation as its final decision on petitioner's complaints (E.R. 25). 2. Petitioner then contacted an attorney, Carmen Flores of the Legal Aid Society of San Mateo, California, for assistance in prosecuting her claims of discrimination (Pet. 4-5). By letter dated February 1, 1985, Flores filed a notice of appeal on petitioner's behalf with the EEOC Office of Review and Appeals (E.R. 28). The appeal letter, which was printed on stationery bearing counsel's business address, neither provided a current address for petitioner nor requested that communications regarding the case be directed to a party other than Flores, petitioner's attorney (ibid.). On June 19, 1987, the EEOC affirmed the Postal Service decision finding that petitioner had not been subject to discrimination (E.R. 25-27). Two copies of the decision and the notice of right to sue, one addressed to Flores and the other to petitioner in care of Flores, were delivered to Flores' law office on June 22, 1987 (id. at 13, 21). Flores asserted in an affidavit filed in the district court (E.R. 13) that she "did not pick up (her) mail until late June 23, 1987, or June 24, 1987." /1/ Flores mailed a copy of the notice to petitioner on June 30; she received it some time before July 14, 1987 (E.R. 13, Pet. 6). On July 22, 1987 -- 30 days after delivery of the final administrative decision to her law office -- Flores attempted to file a complaint in district court but was delayed in traffic and was unable to reach the clerk's office before it closed (Pet. App. B2). The complaint was filed the next day (ibid.). 3. The district court dismissed the complaint for lack of subject matter jurisdiction (Pet. App. A2). The court reasoned that the requirement of 42 U.S.C. 2000e-16 that suit be filed within 30 days of receipt of notice of the final agency action imposed a jurisdictional prerequisite to suit that is not subject to equitable tolling, and that the filing period commenced upon receipt of the notice of final action and right to sue by petitioner's counsel on June 22, 1987 (Pet. App. A2-A3). The court therefore concluded that petitioner's complaint was not timely filed, and dismissed the civil action (Pet. App. A3-A4). 4. The court of appeals affirmed (Pet. App. B1-B6). The court agreed with the district court's conclusion that the 30-day filing requirement of 42 U.S.C. 2000e-16(c) is jurisdictional, rejecting petitioner's assertion that a special rule should apply to Postal Service employees (Pet. App. B5). The court of appeals also observed that even if the time limit were subject to equitable tolling, petitioner "would nonetheless not be entitled to prevail since this would not be a proper case in which to apply the doctrine of equitable tolling" (id. at B6). A delay in filing that is attributable solely to counsel's "failure to allow sufficient time to reach the courthouse" is not an adequate basis on which to invoke the doctrine (ibid.). ARGUMENT This petition seeks review of questions similar to those raised in Irwin v. Veterans Administration, cert. granted, No. 89-5867 (Feb. 20, 1990). The petition in No 89-5867 presents two questions: whether the 30-day filing period set forth in 42 U.S.C. 2000e-16(c) commences only upon "actual" receipt of a final decision by complainant's attorney or the complainant, and whether that time limit is subject to equitable tolling. In Irwin, as here, the courts below concluded that the filing period began when the final decision was received in counsel's office by someone authorized to accept it, even though Irwin's counsel was absent from his office until 18 days later. If this Court were to conclude, as petitioner in Irwin contends, that the period instead starts only when counsel actually reads the letter or when it is received by complainant, the instant complaint would apparently be timely filed. /2/ 2. Petitioner and Irwin also contend that the 30-day filing period is not jurisdictional, but is instead akin to a statute of limitations; they further assert that the time limit should have been tolled on the particular facts of their cases. The courts of appeals are divided on the question of whether the 30-day filing period is jurisdictional; the Court may resolve that conflict in Irwin. /3/ Regardless of the outcome of that issue in Irwin, however, there is no need for further review of that matter in this case because the court of appeals has already determined that even if the time limit may be equitably tolled, tolling would not be appropriate in the circumstances presented here. /4/ Therefore, if this Court should reject petitioner's contention in Irwin regarding the starting point of the 30-day period, certiorari should be denied in this case. There is no need to remand this case for further consideration of the equitable tolling issue, whatever the Court decides in Irwin regarding that issue. CONCLUSION The petition for a writ of certiorari should be held pending disposition of Irwin v. Veterans Administration, No. 89-5867, and disposed of as appropriate in light of that decision. Respectfully submitted. KENNETH STARR Solicitor General STUART M. GERSON Assistant Attorney General MICHAEL JAY SINGER JEFFREY CLAIR Attorneys APRIL 1990 /1/ Cf. Pet. 6 ("Ms. Flores did not actually receive the Notice until * * * June 23."). /2/ The complaint was filed on July 23. Counsel allegedly did not read the notice delivered to her office on June 22 until either June 23 or 24, and petitioner did not receive her copy of the notice until some unspecified date in July. /3/ Petitioner asserts, as she did below, that in light of Loeffler v. Frank, 108 S. Ct. 1965 (1988), Postal Service employees should be treated like private employees filing a Title VII complaint under 42 U.S.C. 2000e-5(e), and the time limit considered subject to equitable tolling under Zipes v. Trans World Airlines, 455 U.S. 385 (1982). Specifically, petitioner maintains that because Congress waived sovereign immunity when it authorized the Postal Service to sue and be sued in its official name (see 39 U.S.C. 401(1)), Congress must also be deemed to have waived other jurisdictional prerequisites to suit, including any jurisdictional prerequisites governing Title VII suits against other federal agencies (Pet. 9-12). The court of appeals correctly rejected this argument (Pet. App. B5). Title VII itself specifically provides that the Postal Service is to be treated like other federal agencies, not like a private employer (42 U.S.C. 2000e-16(a)). Cf. 39 U.S.C. 409(b) ("provisions of title 28 relating to * * * limitations of time for bringing actions in suits in which the United States * * * (is a) part(y), shall apply in like manner to suits in which the Postal Service * * * (is a) part(y)"); Loeffler v. Frank, 108 S.Ct. at 1974, noting that although a postal employee's cause of action under Section 2000e-16 "once commenced", is subject to provisions incorporated from those governing private employers, different prerequisites to suit apply. The filing deadline is such a prerequisite. The only other courts of appeals to consider the issue since Loeffler have agreed with the court below that the Postal Service is to be treated like any other entity subject to Section 2000e-16 with respect to the effect of the 30-day time limit. See Mahoney v. U.S. Postal Service, 884 F.2d 1194, 1198-1200 (9th Cir. 1989); Williams v. U.S. Postal Service, 873 F.2d 1069, 1074 (7th Cir. 1989). /4/ The court of appeals' conclusion is correct. Petitioner faced no impediment to filing a complaint within the statutory 30-day period. Indeed, petitioner has herself asserted that a complaint was prepared and served on the government by July 22, 1987 (Pet. 6) -- before the 30-day period expired. The complaint was filed late only because counsel, in attempting to file the complaint in district court on the last day for timely filing, failed to allow sufficient time to reach the courthouse before the clerk's office closed (Pet. App. B6; E.R. 14). Such a miscalculation by counsel plainly does not afford any basis for suspending the operation of a time limit governing the commencement of suit. Cf. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 150-152 (1984) (equitable tolling may be appropriate where notice is inadequate, claimant is awaiting appointment of counsel, claimant is misled by a court error, or claimant is misled by defendant's affirmative misconduct); Bolling v. City and County of Denver, 790 F.2d 67, 69 (10th Cir. 1986) (attorney error does not warrant equitable tolling of Title VII filing period). Further review of whether the 30-day filing period should be equitably tolled on the particular facts of this case is therefore unwarranted.