Unpublished Disposition, 914 F.2d 263 (9th Cir. 1988)
Annotate this CaseClifford SMYTHE, III Plaintiff-Appellant,v.SECRETARY OF THE NAVY, Defendant-Appellee.
No. 88-15798.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 18, 1990.* Decided Sept. 21, 1990.
Before GOODWIN, Chief Judge, and HUG and BEEZER, Circuit Judges.
MEMORANDUM**
Clifford Smythe, appearing pro se, appeals the district court's dismissal for lack of jurisdiction of his action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
We review de novo the district court's dismissal of a complaint for lack of jurisdiction. Lubniewski v. Lehman, 891 F.2d 216, 218 (9th Cir. 1989).
Smythe's complaint alleged a cause of action against the Secretary of the Navy. A federal employee bringing a Title VII claim against the government must file a complaint within thirty days of his receipt of notice of a final decision from the Equal Employment Opportunity Commission (EEOC).1 42 U.S.C. § 2000e-16(c); Lubniewski, 891 F.2d at 219; Koucky v. Department of the Navy, 820 F.2d 300, 301-02 (9th Cir. 1987). Under the EEOC regulations in effect before November 30, 1987, the filing of a request to reopen a final EEOC decision did not extend the time for filing a civil complaint. See Mahroom v. Defense Language Institute, 732 F.2d 1439, 1441 (9th Cir. 1984) (per curiam).2
Here, Smythe admits that he received notice of the final EEOC decision and a right-to-sue letter on October 14, 1986. He did not file a civil complaint at that time, but instead filed a request to reopen with the EEOC on November 1, 1986.3 After receiving notice of the EEOC's denial of the request on January 2, 1988, Smythe filed a motion to sue in forma pauperis on January 29, 1988 and filed his civil complaint on February 12, 1988. Because he did not file his complaint within thirty days of his receipt of notice of the EEOC's final action on October 14, 1986, his action is time-barred.4 See 42 U.S.C. § 2000e-16(c); Lubniewski, 891 F.2d at 219.
Therefore, the district court properly dismissed Smythe's claim. See 42 U.S.C. § 2000e-16(c); Lubniewski, 891 F.2d at 219.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
Smythe also raises a claim under the Rehabilitation Act, but that Act merely adopted the rights, remedies and procedures of Title VII and made them applicable to handicapped persons. See 29 U.S.C. § 794(a) (1) (1985); Mahoney v. United States Postal Service, 884 F.2d 1194, 1196 n. 1 (9th Cir. 1989). Thus, the analysis of timeliness and jurisdiction under Title VII also applies to Smythe's Rehabilitation Act claim
In contrast, under current EEOC regulations the timely filing of a request to reopen prevents an EEOC decision from becoming final and thus extends the time for filing a civil complaint to thirty days after the EEOC's final resolution of the request. See 29 C.F.R. Sec. 1613.234(b) (1989). This amendment took effect on November 30, 1987 and is not retroactive. See 52 Fed.Reg. 41,920 (1987)
On appeal, Smythe alleges apparently for the first time that his attorney caused him not to timely file the complaint while his request to reopen was pending. This court will not ordinarily consider claims raised for the first time on appeal. See Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986), cert. denied, 481 U.S. 1050 (1987). Even if we were to consider this allegation, however, it would not alter the outcome of this appeal because the thirty-day limit is jurisdictional and not subject to equitable tolling. See Koucky, 820 F.2d at 301-02
Smythe alleges, inter alia, that the EEOC misled him by erroneously issuing a second right-to-sue letter with the denial of his request to reopen. While the issuance of a second right-to-sue letter may have been misleading, it did not create any new rights because Smythe's time to sue had expired thirty days after his receipt of the first letter on October 14, 1986, over a year before he received the second letter on January 2, 1988. See Mahroom, 732 F.2d at 1441
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