Unpublished Disposition, 888 F.2d 1394 (9th Cir. 1987)

No. 88-2442.

United States Court of Appeals, Ninth Circuit.

Before BRUNETTI and NOONAN, Circuit Judges, and HARRY L. HUPP, District Judge^* .

MEMORANDUM^** 

Appeal of plaintiff/appellant from order dismissing action for lack of subject matter jurisdiction. The judgment is AFFIRMED.

BACKGROUND

This is an action against the United States Postal Service for discrimination and reprisals in violation of Title VII. The district court dismissed appellant's complaint for lack of subject matter jurisdiction on the ground that the complaint was not timely filed. Appellant initiated proceedings with the EEOC, and on June 19, 1987 the Office of Review of the EEOC issued a finding of no discrimination or reprisals. Notice was sent to appellant's attorney, Carmen Flores, and to the appellant "c/o Ms. Flores". The office of Ms. Flores received the letters on June 22, 1987. Appellant did not personally receive notice until some time thereafter. Subsequently, Ms. Flores agreed to file this civil action on behalf of appellant. However, on July 22, 1987, Ms. Flores states that she was caught in a traffic jam on the way to the court house, and by the time she arrived, the filing office had closed. The complaint was filed on July 23, 1987, thirty-one days after the receipt of the decision of the EEOC by Ms. Flores' office.

ANALYSIS

A. THE DISTRICT COURT DID NOT ERR IN HOLDING THAT THE TIME FOR FILING AN ACTION UNDER 42 U.S.C. § 2000e-16(c) BEGAN TO RUN FROM THE DATE OF RECEIPT BY THE OFFICE OF MS. FLORES.

1. STANDARD OF REVIEW.

De novo review is appropriate where the court is required "to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles". United States v. McConney, 728 F.2d 1195, 1202 (9th Cir. 1984) (en banc), cert. denied, 469 U.S. 824, 105 S. Ct. 101, 83 L. Ed. 2d 46 (1984). Accordingly, de novo is the appropriate standard to apply in this action with respect to the issue of constructive notice. See Jordan v. Clark, 847 F.2d 1368, 1375 (9th Cir. 1988), cert. denied, Jordan v. Hodel, --- U.S. ----, 109 S. Ct. 786, 102 L. Ed. 2d 778 (1989).

2. RECEIPT BY MS. FLORES' OFFICE BEGAN THE RUNNING OF THE 30 DAY PERIOD.

Under 42 U.S.C. § 2000e-16(c) appellant was required to file this action within thirty days of receipt of notice from the Office of Review of the EEOC. Receipt of the decision of the Office of Review of the EEOC by counsel for appellant was sufficient to start the 30 day clock running. See Gonzalez v. Stanford Applied Engineering, Inc., 597 F.2d 1298, 1299 (9th Cir. 1979) (per curiam), see also Link v. Wabash Railroad Co., 370 U.S. 626, 633-34, 82 S. Ct. 1386, 8 L. Ed. 2d 734, 740 (1961) (party considered to have notice of facts chargeable to attorney).

B. THE DISTRICT COURT DID NOT ERR IN FINDING THAT THE TIME PERIOD FOR FILING AN ACTION UNDER 42 U.S.C. § 2000e-16(c) IS JURISDICTIONAL AND THEREFORE NOT SUBJECT TO EQUITABLE TOLLING.

1. THE ISSUE OF JURISDICTION IS PROPERLY BEFORE THIS COURT.

In his Supplemental Brief, appellee informed the court that he had abandoned his jurisdictional defense. However, as appellee notes, he may not waive jurisdictional requirements. Jordan v. Clark, 847 F.2d 1368, 1372 (9th Cir. 1988). Accordingly, the issue of whether the thirty day rule is jurisdictional or is a statute of limitations is properly before this court.

2. STANDARD OF REVIEW.

Whether the time period prescribed by Title VII is jurisdictional, and therefore not subject to equitable tolling, is a question of law. Accordingly, the standard of review is de novo. Jordan, 845 F.2d at 1372 (jurisdiction in Title VII case is reviewed de novo), Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir. 1986) (subject matter jurisdiction reviewed de novo) .

3. THE THIRTY DAY RULE IS JURISDICTIONAL.

The Supreme Court has not yet considered whether the rule requiring a plaintiff to file a civil action against the federal government within 30 days from notice of the right to sue, 42 U.S.C. § 2000e-16(c), is a statute of limitations or a jurisdictional prerequisite. See Mondy v. Secretary of the Army, 845 F.2d 1051, 1054 (D.C. Cir. 1988). However, like the district court, this Court relies on Koucky v. Department of the Navy, 820 F.2d 300, 302 (9th Cir. 1987) (argument that thirty day rule is not jurisdictional is "squarely rejected"), in concluding that the thirty day time period is jurisdictional. See also Cooper v. U.S. Postal Service, 740 F.2d 714, 716 (9th Cir. 1984), cert. denied, 471 U.S. 1022, 105 S. Ct. 2034, 85 L. Ed. 2d 316 (1985), c.f. Brown v. Department of Army, 854 F.2d 77 (5th Cir. 1988), Sims v. Heckler, 725 F.2d 1143 (7th Cir. 1984), but see e.g. Mondy v. Secretary of the Army, 845 F.2d at 1054-57 (D.C. Cir. 1988), Ross v. U.S. Postal Service, 814 F.2d 616 (11th Cir. 1987), Boddy v. Dean, 821 F.2d 346 (6th Cir. 1987), Hornsby v. United States Postal Service, 787 F.2d 87 (3d Cir. 1986); Martinez v. Orr, 738 F.2d 1107 (10th Cir. 1984), Rice v. New England College of Law, 676 F.2d 9 (1st Cir. 1982). Any doubt on the issue has recently been laid to rest in Mahoney v. U.S. Postal Service, 1989 D.A.R., Daily Journal 11249 (9th Cir. 9/7/89) (30 day rule is jurisdictional prerequisite to suit against Postal Service).

In his Supplemental Brief, appellee refers the court to Loeffler v. Frank, --- U.S. ----, 108 S. Ct. 1965, 100 L. Ed. 2d 549 (1988), wherein the Supreme Court held that sovereign immunity has been waived by the Postal Service in Title VII actions, in regard to his conclusion that the thirty day rule is non-jurisdictional. The reasoning behind this is the belief that Title VII time periods are jurisdictional as to federal defendants because of principles of sovereign immunity, see e.g. Williams v. U.S. Postal Service, 873 F.2d 1069, 1074 (7th Cir. 1989), and that any waiver of immunity therefore renders the periods non-jurisdictional. However, such reasoning is not persuasive. Even if failing to file suit within the thirty day period may be "failure to obtain the sovereign's consent" to be sued, and consent of the sovereign has been waived as to the Postal Service in Title VII actions, it does not necessarily follow that the thirty day rule is merely a statute of limitations without jurisdictional significance. The question remains whether the thirty day rule reflects the sovereign statutorily restricting consent to suit in the jurisdictional sense or consenting to suit subject to a statute of limitations. This court has answered the former with respect to federal defendants, including the Postal Service. See Cooper, 740 F.2d 714, Koucky, 820 F.2d 300, Mahoney, 1989 D.A.R. 11249.

C. THIS CASE DOES NOT MERIT APPLICATION OF THE DOCTRINE OF EQUITABLE TOLLING.

Even if we were to conclude that the thirty day rule is a statute of limitations without jurisdictional significance, appellant would nonetheless not be entitled to prevail since this would not be a proper case in which to apply the doctrine of equitable tolling.

Appellant argues that the facts that notice was delivered to Ms. Flores, rather than to her, that Ms. Flores proceeed dilligently in contacting appellant in order to obtain information necessary to file the instant action on behalf of appellant, that Ms. Flores proceded expeditiously in this action, and that the complaint would have been filed within thirty days but for a traffic jam, justify equitable tolling of the thirty day period. However, the doctrine of equitable tolling applies under circumstances where, for example, notice was inadequate, a motion for appointment of counsel was pending, the court had misled appellant, or affirmative misconduct of appellee "lulled" appellant into inaction, or the like. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151-52, 104 S. Ct. 1723, 80 L. Ed. 2d 196 (1984) (per curiam), reh. denied, 467 U.S. 1231, 104 S. Ct. 2691, 81 L. Ed. 2d 885 (1984). Unlike these situations wherein a party's opponent or the court was at fault, the problem in this case was counsel's failure to allow sufficient time to reach the courthouse. No case cited applies the doctrine of equitable tolling under such circumstances.

D. MOTION TO SUBSTITUTE.

The motion to substitue Anthony M. Frank as the sole appellee is GRANTED.

AFFIRMED.