No. 95-1613 In the Supreme Court of the United States OCTOBER TERM, 1995 LUTHER C. PERKINS, PETITIONER v. JESSE BROWN, SECRETARY OF VETERANS AFFAIRS ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION DREW S. DAYS,III Solicitor General FRANK W. HUNGER Assistant Attorney General MARLEIGH D. DOVER MARK C. NILES Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the failure of petitioner's counsel to file petitioner's age discrimination complaint in time provides a basis for equitable tolling of the statute of limitations. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Argument . . . . 3 Conclusion . . . . 6 TABLE OF AUTHORITIES Cases: Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984) . . . . 5 Carter v. City of Memphis, 636 F.2d 159 (6th Cir. 1980) . . . . 5 Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195 (5th Cir. 1975) . . . . 5 Gilbert v. HHS, 51 F.3d 254 (Fed. Cir. 1995) . . . . 4 Hassenflu v. Pyke, 491 F.2d 1095 (5th Cir. 1974) . . . . 5 Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990) . . . . 3, 4, 5 Link v. Wabash R.R., 370 U.S. 626 (1962) . . . . 4 Murray v. Gamier, 477 U.S. 478 (1986) . . . . 4 Volk v. Multi-Media, Inc., 516 F. Supp. 157 (S.D. Ohio 1981) . . . . 5 Statute: Age Discrimination in Employment Act, 29 U.S.C. 626(e) . . . . 2, 3 (III) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-1613 LUTHER C. PERKINS, PETITIONER v. JESSE BROWN, SECRETARY OF VETERANS AFFAIRS ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1- A2) is unpublished, but the judgment is noted at 70 F.3d 1252 (Table). The opinion of the district court (Pet. App. A3-A4) is unreported. JURISDICTION The judgment of the court of appeals was entered on December 5, 1995. The petition for a writ of certio- rari was filed on February 27, 1996. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT Petitioner was hired in July, 1988, by the Veterans Administration (VA) as Chief of Pharmacy at its Medical Center in Castle Point, New York. Pet. App. A6. In February, 1989, the VA reclassified the posi- tion of Chief of Pharmacy, which made petitioner eligible for a promotion and pay increase. Id. at A21. Petitioner did not receive a promotion, however, and he alleges that the decision not to promote him was based on his age, which was 64 at the time. Id. at A8. On January 24, 1991, petitioner filed an employment discrimination complaint with the VA, alleging that the failure to promote him violated the Age Discrim- ination in Employment Act (ADEA), 29 U.S.C. 621 et seq. On February 18, 1993, the VA denied petitioner's claim, finding that there had been no discrimination. On March 18, 1993, petitioner appealed the VA's final decision to the Equal Employment Opportunity Com- mission (EEOC). The EEOC affirmed the VA's de- cision on September 21, 1993. Pet. App. A8, A10, A21. Petitioner received notice of the EEOC's decision on September 23, 1993. Pet. 3. Under the ADEA, petitioner was required to file a judicial action within 90 days after receiving notice of the EEOC decision, or by December 22, 1993. See 29 U.S.C. 626(e). Following the EEOC's decision, petitioner contact- ed Daniel Cochran, an attorney in East Kingston, New Hampshire. Cochran allegedly assured petition- er that he would file a complaint on petitioner's behalf, but he failed to do so. Pet. App. A11. After petitioner became aware that no complaint had been filed, he filed a pro se age discrimination complaint in district court, on July 8, 1994. Ibid. ---------------------------------------- Page Break ---------------------------------------- 3 The VA moved to dismiss the case on the ground that the complaint, filed seven and one-half months after the expiration of the limitation period imposed by 29 U.S.C. 626(e), was untimely. The district court dismissed the case and stated that, although peti- tioner's failure to file a timely claim "resulted solely from the gross error of [petitioner's] attorney," the case did not warrant equitable tolling of the statute of limitations under the "narrow view of the doctrine" expressed in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). Pet. App. A3. The court of appeals affirmed the dismissal, stating that, although it was "not unsympathetic with [petitioner's] plight," under the circumstances petitioner's sole remaining remedy was an action against his attorney. Id. at A1- A2. ARGUMENT Under the statute of limitations applicable to the ADEA, 29 U.S.C. 626(e), an aggrieved employee must file a judicial action within 90 days after receiving notice of the final decision of the EEOC. Petitioner received notice of the EEOC's final decision denying his administrative claim on or before September 23, 1993. Pet. 3. Accordingly, petitioner's deadline for filing an action under the ADEA was December 22, 1993. Petitioner's complaint was not filed until July 8, 1994. Pet. App. A11. It is undisputed that petitioner's suit was not timely filed. The only question is whether the failure of petitioner's counsel to file a complaint, after assur- ing petitioner that he would do so, provides a basis for tolling the limitation period. The lower courts held that equitable tolling would not be proper in this case. ---------------------------------------- Page Break ---------------------------------------- 4 In Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990), this Court ruled that the statute of limitations in Title VII of the Civil Rights Act of 1964 is subject to equitable tolling. The Court also held, however, that the statute should not be tolled on the facts of Irwin itself, in which the employee's counsel did not file a complaint until after the ex- piration of the limitation period. The Court stated that, although equitable tolling may be appropriate "in situations where the claimant has actively pur- sued his judicial remedies by filing a defective plead- ing during the statutory period, or where the com- plainant has been induced or tricked by his adver- sary's misconduct into allowing a filing deadline to pass," the Court has "generally been much less for- giving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights." Ibid. In this case, as in Irwin, neither petitioner nor his attorney filed a discrimination complaint within the prescribed period. Although petitioner argues that he should not be penalized for the default of his counsel, "[u]nder our system of representative litigation, each party is deemed bound by the acts of his lawyer- agent," Irwin, 498 U.S. at 92. See also Murray v. Carrier, 477 U.S. 478, 488,492 (1986); Link v. Wabash R.R., 370 U.S. 626, 633-634 (1962). A discrimination plaintiff ordinarily cannot avoid the requirement that he actively pursue his remedies and employ due dili- gence in protecting his legal rights by asserting that his attorney failed to protect his rights. See Gilbert v. HHS, 51 F.3d 254, 257 (Fed. Cir. 1995); Edwards v. ---------------------------------------- Page Break ---------------------------------------- 5 Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1200 n.8 (5th Cir. 1975). 1. Petitioner relies (Pet. 6) on cases such as Carter v. City of Memphis, 636 F.2d 159 (6th Cir. 1980), and Hassenflu v. Pyke, 491 F.2d 1095 (5th Cir. 1974). The issue in those cases, however, was whether dismissal of a case was the appropriate sanction for counsel's failure to comply with court orders governing dis- covery and other deadlines. 2. In those cases, the courts of appeals noted that district courts have avail- able a variety of sanctions to punish the failure to abide by court orders, and concluded that the severe sanction of dismissal should be reserved for the most extreme cases. The usual consequence of the failure to file an action within a period prescribed by a stat- ute of limitations, however, is dismissal of the case. Equitable relief from that consequence is to be af- forded "only sparingly," and not in "garden variety" cases of neglect. Irwin, 498 U.S. at 96. See also Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984). ___________________(footnotes) 1 Petitioner relies (Pet. 6) on Volk v. Multi-Media, Inc., 516 F. Supp. 157 (S.D. Ohio 1981), in which the court concluded that the failure of the plaintiff's counsel to present a discrim- ination charge within the prescribed time provided a basis for equitable tolling of the statute of limitations. Id. at 162. As the district court in this case recognized, however (Pet. App. A3), Volk is not consistent with this Court's subsequent formulation of the principles of equitable tolling in Irwin. 2 In Carter, the court also noted that, although all attorney misconduct might not support dismissal of a client's action, a complete "failure to prosecute" would do so. 636 F.2d at 161. ---------------------------------------- Page Break ---------------------------------------- 6 CONCLUSION The petition for writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General MARLEIGH D. DOVER MARK C. NILES Attorneys MAY 1996 ---------------------------------------- Page Break ----------------------------------------