No. 96-1943 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 FRED STALLWORTH, PETITIONER v. ALEXIS HERMAN, SECRETARY OF LABOR ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General MARLEIGH D. DOVER STEPHANIE R. MARCUS Attorneys Department of Justice Washington, D.C. 20530-0001 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the court of appeals properly upheld the district court's dismissal of petitioner's complaint as time-barred, even though the agency earlier had chosen to investigate petitioner's claim administra- tively. (1) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Discussion . . . . 4 Conclusion . . . . 8 TABLE OF AUTHORITIES Cases: Bowden v. United States, 106 F.3d 433 (D.C. Cir. 1997) . . . . 6 Boyd v. Waited States Postal Serv., 752 F.2d 410 (9th Cir. 1985) . . . . 4, 8 Briones v. Runyon, 101 F.3d 287 (2d Cir. 1996) . . . . 5 Brown v. General Services Admin., 425 U.S. 820 (1976) . . . . 3 Brown v. Marsh, 777 F.2d 8 (D.C. Cir. 1985) . . . . 7 Davis v. United States, 417 U.S. 333 (1974) . . . . 6 Girard V. Rubin, 62 F.3d 1244(9th Cir. 1995) . . . . 5 Henderson v. United States Veterans Admin., 790 F.2d 436(5th Cir.1986) . . . . 7 Irwin v. Department of Veterans Affairs, 498 U.S. 89(1990) . . . . 3 Oaxaca v. Roscoe, 641 F.2d 386 (5th Cir. 1981) . . . . 4 Rowe v. Sullivan, 367 F.2d 186 (5th Cir. 1992) . . . . 4, 5 Saltz v. Lehman, 672 F.2d 207 (D.C. Cir. 1982) . . . . 4 Shea v. Tisch, 870 F.2d 786 (lst Cir. 1989) . . . . 5 Wilson v. Pena, 79 F.3d 154(D.C. Cir. 1996) . . . . 5 Statutes and regulations: Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e-2(a) . . . . 2 29 C.F.R. 1613 .214( a)(l) (i) (1980) . . . . 7 (III) ---------------------------------------- Page Break ---------------------------------------- IV Regulations-Continued: Page 29 C.F.R. (1995): Section 1613. 214(a)(1)(i) . . . . 3 Section 1613.215(a)(4) . . . . 6 29 C.F.R. (1996): Section 1614.105(a)(l) . . . . 3 Section 1614.408 . . . . 8 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 96-1943 FRED STALLWORTH, PETITIONER v. ALEXIS HERMAN, SECRETARY OF LABOR ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. la-5a) is unpublished, but the decision is noted at 107 F.3d 923 (Table). The opinion of the district court (Pet. App. 8a) is unreported. JURISDICTION The court of appeals entered its judgment on January 7, 1997. A petition for rehearing was denied on March 10, 1997. Pet. App. 6a. The petition for a writ of certiorari was filed on June 6, 1997. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT 1. Petitioner Fred Stallworth is a program analyst with the United States Department of Labor (Depart- ment). Pet. App. 2a. He alleges that the Department discriminated against him on the basis of his race, color, sex, and age, in violation of Title VII of the Civil Rights Act of 1964,42 U.S.C. 2000e-2(a), when it. denied him per diem reimbursement for work per- formed in Florida. Pet. App. 2a-3a, 12a; Pet. 4. Peti- tioner contended that his October 27, 1987, transfer agreement with the Department had originally pro- vided for per diem benefits, but "that the Department unilaterally inserted new terms into the * * * agreement after he signed it." Id. at 2a. Petitioner exchanged correspondence with the Department about this matter through mid-1989. Ibid. In a letter dated September 9, 1988, the Department informed petitioner that the payment of per diem reimbursement "is not obligatory," and that the Octo- ber 27, 1987, agreement set forth the only expenses for which petitioner would be reimbursed. Pet. App. 2a-3a. Petitioner claimed, however, that he was not aware that the agency was denying him the per diem benefits until he met with an agency representative nearly a year later, on July 28, 1989. Id. at 3a. On August 16, 1989, petitioner met with an Equal Em- ployment Opportunity (EEO) counselor and filed an informal administrative complaint alleging discrimi- nation. Ibid. 2. a. At the time petitioner's claim arose, Equal Employment Opportunity Commission regulations ---------------------------------------- Page Break ---------------------------------------- 3 required persons alleging discrimination to contact the agency's EEO counselor within 30 days of the date of the alleged discriminatory event, the effective date of an alleged discriminatory per- sonnel action, or the date that the aggrieved per- son knew or reasonably should have known of the discriminatory event or personnel action, 29 C.F.R. 1613. 214(a)(l)(i) (1995).1 Failure to meet this time limit renders a complaint untimely and bars the individual from filing a Title VII action in district court. See Brown v. General Services Admin., 425 U.S. 820,832-833 (1976). The time limit operates like a statute of limitations, however, and is thus subject to waiver. See Irwin v. Department of Veterans Affairs, 498 U.S. 89,95-96 (1990). b. In March 1992, the Department determined that it had not discriminated against petitioner when it rejected his claim for per diem reimbursement. Pet. App. 9a-11a; see also id. at 12a-17a. The Department did not address the timeliness of petitioner's com- plaint. See ibid. Petitioner subsequently filed suit in the United States District Court for the District of Columbia. The district court dismissed petitioner's complaint, holding that his claims were untimely and that he had failed to exhaust his administrative remedies. See Pet. App. 2a, 8a. 3. The court of appeals affirmed, holding that petitioner's complaint was untimely because he failed ___________________(footnotes) 1 The current regulation provides that "[a]n aggrieved per- son must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. 1614.105(a)(l) (1996). ---------------------------------------- Page Break ---------------------------------------- 4 to contact the Department's EEO counselor within 30 days. Pet. App. 3a-4a. The court also ruled that the Department's administrative investigation of peti- tioner's complaint did not waive the defense of untimeliness. Id. at 4a ("[T]he fact that the Depart- ment chose to investigate the problem itself in 1988 and 1989 does not preclude it from raising the time- liness defense here,"). The court of appeals empha- sized that "[t]he Department did not delay in raising the defense before the district court, and [petitioner] has not been prejudiced by the agency's decision to investigate the merits of his complaint." Ibid. DISCUSSION Petitioner contends (Pet. 7-15) that the court of appeals erred in holding that the Department's ad- ministrative consideration of his complaint did not waive its right to assert a timeliness defense before the district court. Because the court of appeals' unpublished decision is correct and consistent with the rulings of other courts, this argument does not merit further review. 1. The courts of appeals that have addressed the question have consistently held that "[t]he mere receipt and investigation of a complaint does not waive objection to a complainant's failure to comply with the original filing time limit when the later investigation does not result in an administrative finding of discrimination." Boyd v. United States Postal Serv., 752 F.2d 410,414 (9th Cir. 1985); see also Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir. 1992); Saltz v. Lehman, 672 F.2d 207, 208 (D.C. Cir. 1982); Oaxaca v. Roscoe, 641 F.2d 386,390 & n.2 (5th Cir. 1981). ---------------------------------------- Page Break ---------------------------------------- 5 Petitioner suggests (Pet. 12-13) that the courts of appeals are in conflict over whether an agency's finding of timeliness must be express to effect a waiver of the defense, or whether a waiver can be implied from the agency's processing of the com- plaint. No such conflict exists. The courts agree that, "[i]n order to waive a timeliness objection, the agency must make a specific finding that the claim- ant's submission was timely." Rowe, 967 F.2d at 191; see also Shea v. Tisch, 870 F.2d 786, 788 (1st Cir. 1989) (per curiam) (where agency expressly found that filing was timely, it waived timeliness defense). Petitioner espies an emerging conflict between where "the District of Columbia Circuit is moving" (Pet. 12) and the decisions of other circuits "not directly addressing the precise issue raised here" (Pet, 13). This is an insufficient basis for review. The court of appeals' disposition of petitioner's appeal is the best evidence of where the D.C. Circuit "is moving" and, as noted, that decision is consistent with the requirement of an express finding of time- liness to effect a waiver. Petitioner's citation (Pet. 12) to Wilson v. Pena, 79 F.3d 154 (D.C. Cir. 1996), is inapt. That case ad- dressed whether a party's failure to provide adequate documentation to an agency constitutes a failure to exhaust administrative remedies. Id. at 164-165. The decisions of the Ninth and Second Circuits in Girard v. Rubin, 62 F.3d 1244 (9th Cir. 1995), and Briones v. Runyon, 101 F.3d 287 (2d Cir. 1996), which peti- tioner also cites (Pet. 13), address waiver in the unique situation where the Equal Employment Op- portunity Commission and the agency made two ex- press and contradictory findings on timeliness. Brio- nes, 101 F.3d at 290-291 (EEOC's express finding of ---------------------------------------- Page Break ---------------------------------------- 6 timeliness trumps agency's express finding of un- timeliness and thereby precludes timeliness defense); Girard, 62 F.3d at 1247 (same). Both Girard and Briones reconfirm, moreover, that an express finding of timeliness (which did not occur in the instant case) will waive the timeliness defense. Petitioner argues that the court of appeals' deci- sion conflicts with its recent opinion in Bowden v. United States, 106 F.3d 433 (D.C. Cir. 1997). Pet. 6-7, 12, 15. Bowden is clearly distinguishable. In Bow- den, the agency waived its timeliness defense be- cause, "[n]ot only did the [agency] fail to question [plaintiff's] timeliness during the administrative process, but it did not raise the issue either in re- sponse to [plaintiff's] initial suit in district court or later when [plaintiff took his case to the Court of Claims." 106 F.3d at 439. The court also emphasized that "the government's plainly contradictory re- sponses" to plaintiff's complaints in the district court and the Claims Court "prolonged [plaintiff's] quest for resolution of his complaint by three years." Ibid. 2 The Bowden court, moreover, carefully eschewed the creation of a "sweeping principle concerning waiver of administrative time limits under Title VII." Ibid. In any event, even if tension existed between the two D.C. Circuit opinions, an intra-circuit conflict would not warrant this Court's review. See Davis v. United States, 417 U.S. 333,340 (1974). 2. Petitioner also contends (Pet. 7-9, 13-14) that a 1987 amendment of 29 C.F.R. 1613. 215(a)(4), requires ___________________(footnotes) 2 Indeed, by noting (Pet. 7 n.2) that "Bowden also presented the issue of government conduct constituting waiver once the lawsuit was filed," petitioner acknowledges one of the crucial differences between the present case and Bowden. ---------------------------------------- Page Break ---------------------------------------- 7 agencies to reject untimely complaints and that a failure to do so waives the timeliness defense. This argument is without merit. First, petitioner errs in asserting (Pet. 7-8) that the mandatory language in the 1987 amendment worked a major diminution in agency authority to entertain untimely claims. See 29 C.F.R. 1613.214(a)(1)(i) (1980) ("agency may accept the complaint for processing in accordance with this subpart only if" the complainant had contacted an EEO counselor within the 30-day limit) (emphasis added). Second, nothing in either version of the regula- tion's language addresses the issue presented in this ease: whether an agency's failure to dismiss an un- timely claim at the administrative level precludes ap- plication of the time limit in a separate judicial pro- ceeding. Courts have concluded, though, that peti- tioner's proposed interpretation of the regulation would "discourage administrative resolution of meri- torious claims, which nevertheless are untimely." Henderson v. United. States Veterans Admin., 790 F.2d 436,441 (5th Cir. 1986); see also Brown v. Marsh, 777 F.2d 8, 15 (D.C. Cir. 1985) (court is "loath to hold that mere investigation without more constitutes a binding waiver of any agency's right to raise the timeliness issue," because such a holding would dis- courage agencies from voluntarily investigating and resolving problems of discrimination). 3 ___________________(footnotes) 3 In any event, petitioner is ill-positioned to complain (Pet. 8-9) about a perceived lack of adherence to a timeliness rule that was in fact ultimately enforced in his case and that, if enforced by the agency as he wishes, would simply have extinguished his complaint sooner. ---------------------------------------- Page Break ---------------------------------------- 8 3. Finally, petitioner asserts (Pet. 10-12) that. this Court should grant a writ of certiorari to reduce the burden of employment civil rights cases on federal courts. Petitioner's statistical speculation presents no proper basis for this Court's exercise of its certio- rari jurisdiction. Moreover, petitioner's proposal that agencies be held to have waived a timeliness defense to judicial proceedings by considering an administrative com- plaint on the merits may well increase, rather than reduce, court litigation. When an agency accepts an untimely complaint and makes a finding of discrimina- tion, it cannot appeal its own decision to the district court. E.g., Boyd, 752 F.2d at 413-414. Thus, when agencies investigate first and find discrimination, the dispute is generally resolved at the administrative level. On the other hand, if an agency rejects an administrative complaint on timeliness grounds, the claimant may challenge the agency's determination in district court. 29 C.F.R. 1614.408 (1996). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General MARLEIGH D. DOVER STEPHANIE R. MARCUS Attorneys AUGUST 1997