Bell v. Brown

• Decision Date: 20 May 1977
• Docket Number: No. 75-1378,75-1378
• Citation: 557 F.2d 849,181 U.S. App. D.C. 226
• Parties: 14 Fair Empl.Prac.Cas. 1679, 14 Empl. Prac. Dec. P 7563, 181 U.S.App.D.C. 226 Bernard BELL, Appellant, v. Harold BROWN, Secretary, Department of Defense.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 849

557 F.2d 849

14 Fair Empl.Prac.Cas. 1679, 14 Empl. Prac.

Dec. P 7563,

181 U.S.App.D.C. 226

Bernard BELL, Appellant, v. Harold BROWN, Secretary, Department of Defense.

No. 75-1378.

United States Court of Appeals, District of Columbia Circuit.

Argued March 10, 1976.

Decided May 20, 1977.

Bill Lann Lee, New York City, with whom Ronald A. Karp, Washington, D. C., Charles Stephen Ralston and Melvyn R. Leventhal, New York City, were on the brief, for appellant.

John W. Polk, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and John R. Dugan, and James F. McMullin, Asst. U. S. Attys., Washington, D. C., at the time the brief was filed, were on the brief, for appellee.

Before LEVENTHAL, ROBINSON and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBINSON.

Dissenting Opinion filed by Circuit Judge ROBB.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

The Equal Employment Opportunity Act of 1972 ¹ extended broadly to federal employees the protections against employment discrimination previously conferred generally upon private-sector employees ² by Title VII of the Civil Rights Act of 1964. ³ Section 717(c) of thus-amended Title VII enables an aggrieved federal employee to bring a civil suit in a federal district court within 30 days after receipt of notice of final administrative action on the discrimination claim. ⁴ The question on this appeal is whether the 30-day period therefor was triggered, prior to the employee's personal acquisition of notice, by transmittal of notice to the office of the employee's legal representative. We answer that question in the negative.

I

The salient facts are not in dispute. On November 14, 1972, appellant, then employed as a computer operator by the Defense Supply Agency of the Department of Defense, ⁵ filed an administrative complaint charging racial discrimination in work assignments, training opportunities and promotions. ⁶ Included in the complaint was appellant's statement that he had retained Peter D. Bewley and Roderick Boggs, ⁷ members of the local bar, to represent him. ⁸ After the Agency investigated the matter and issued notice of a proposed disposition not to appellant's liking, he demanded and was accorded a hearing before a complaints examiner, which began on October 24, 1973. Shortly before, on October 2, Richard W. Cass, an attorney in the same firm with Mr. Bewley, had advised the examiner by letter that he and Mr. Bewley would represent appellant and Johnnie Greene, a complaining co-employee, ⁹ at the upcoming hearing. ¹⁰

The Agency announced its decision on April 17, 1974, finding no discrimination. An administrative appeal was then taken to the Appeals Review Board of the Civil Service Commission which, on August 27, 1974, affirmed the Agency. ¹¹ The Board's decision warned that under Commission regulations it constituted the final administrative step, and informed that a dissatisfied complainant was statutorily authorized to sue in an appropriate federal district court within 30 calendar days of his receipt of the decision. ¹²

On the next day, a copy of the decision was sent by registered mail, with a return receipt requested, to Mr. Cass. ¹³ It arrived at his office on August 30, and was accepted for Mr. Cass by a person whose signature appears in the "addressee's agent" box of the receipt. ¹⁴ Another copy of the decision was sent, apparently by ordinary mail, to appellant at his home. We do now know, and likely no one could be certain, as to when it was delivered. In any event, appellant did not see it until September 3, when he returned from a vacation begun on August 30. ¹⁵

The record gives no indication as to when either of appellant's three legal representatives ¹⁶ may actually have learned of the Board's decision. ¹⁷ It is clear on the record, however, that appellant never heard from any of them on that score, ¹⁸ and that is not surprising. Appellant had been told in mid-August by Mr. Cass that he would be leaving the country for an extended period later that month or early the next. ¹⁹ So, from mid-August onward, appellant avows, he no longer considered Mr. Cass as his attorney, and then began to seek new counsel. ²⁰

On October 1, 1974, appellant filed a pro se complaint in the District Court against the Secretary of Defense, ²¹ charging discrimination violative of Title VII, ²² and seeking declaratory relief and backpay. ²³ The court dismissed the action for lack of subject-matter jurisdiction, concluding that it had been commenced beyond the 30-day period specified by Section 717(c), and that that section preempts any other basis of federal jurisdiction. ²⁴ In view of the Supreme Court's recent decision in Brown v. General Services Administration, ²⁵ holding that Section 717 affords the exclusive judicial remedy for claims of discrimination in federal employment, we have before us only the issue of timeliness of appellant's suit.

II

Section 717(c) authorizes a covered federal employee to file a civil action in an appropriate federal district court "(w)ithin thirty days of receipt of notice of final (administrative) action taken" on his discrimination complaint, either by the employing agency or by the Civil Service Commission on an appeal from the agency's decision, if he is aggrieved by the administrative disposition. ²⁶ Since the "receipt of notice," and not its mailing, is expressly made the event inaugurating the 30-day period, plainly it begins to run only from the time the notice comes into the recipient's hands. ²⁷ The statutory language, however, is noncommittal as to whether receipt by a representative is equivalent for this purpose to receipt by the employee, and the legislative history, though extensive, ²⁸ yields no significant indication in this regard. Nonetheless, we do not suffer from inadequate assistance toward the proper outcome here.

The initial guidepost is the consideration that "where congressional purpose is unclear, courts have traditionally resolved ambiguities in remedial statutes in favor of those whom the legislation was designed to protect." ²⁹ We have heretofore recognized "that Title VII is remedial in character and should be liberally construed to achieve its purposes"; ³⁰ "(f)or this reason," we have observed, " 'courts confronted with procedural ambiguities in the statutory framework have, with virtual unanimity, resolved them in favor of the complaining party.' " ³¹ "That approach," we have added, "reflects not only the manifest importance of Title VII rights to complaining parties, but also the broad national commitment to eliminating such discrimination and the importance of private suits in fulfilling that commitment." ³²

Not long ago, we were confronted with a problem somewhat similar to the one before us. In Coles v. Penny, ³³ a federal employee was advised by the Board that administrative review of his discrimination complaint was complete but was not told that he had a right to sue within 30 days. We held that until the employee was suitably informed on both of those counts, the 30-day period remained dormant. We stated our belief that "the term 'notice,' ³⁴ no less than the phrase 'may file a civil action,' ³⁵ requires an interpretation animated by the broad humanitarian and remedial purposes underlying the federal proscription of employment discrimination." ³⁶ We think the word "receipt" in the same statutory specification ³⁷ deserves the same treatment.

A reading of "receipt" as a call for personal receipt by the affected employee harmonizes well with the fundamental objectives of Section 717(c). It comports, too, with the everyday realities of Title VII litigation. Speaking in Coles to "the broad structure and purposes of Title VII," ³⁸ we noted that "(t)he scheme established by Congress relies upon laymen, operating without legal assistance, to initiate both administrative complaints and lawsuits," ³⁹ and admonished that "(procedural) technicalities are particularly inappropriate in (such) a statutory scheme. . . ." ⁴⁰ We declared, accordingly, that " 'legislation which evinces such concern over the burden imposed upon a working man or woman seeking to enforce Title VII rights requires a practical and reasonable construction of its enforcement provisions.' " ⁴¹ Given that construction, Section 717(c) would interpose no time barrier to appellant's litigative effort in the District Court.

Appellant was sent a copy of the Board's decision which informed him that a "complainant( ) . . . not satisfied with this decision" had a statutory right "to file a civil action in an appropriate U. S. District Court within thirty (30) calendar days of his receipt of this decision." ⁴² Nothing in the decision suggested that the period might be shortened by earlier receipt of another copy by one of his former legal representatives. We deal not with what a lawyer might have perceived as a possible problem and taken precaution against, but with what one untrained in the law might reasonably conclude; ⁴³ and in this light it can hardly be disputed that appellant was prudent in the belief that he had 30 days from the time that he first saw the decision to begin his pro se endeavor in court, or that he was understandably dismayed by the District Court's determination that the attempt came two days too late.

As much here as in Coles, "we doubt that Congress intended to provide a judicial remedy one (which) require(s) de novo consideration which is so easily forfeited by those whose rights it vindicates." ⁴⁴ And just as emphatically here as there, we say that "(a) statutory construction likely in so many cases to render meaningless the provision of a judicial remedy is hardly the 'practical and reasonable' one that we should seek." ⁴⁵ We think Section 717(c) summons a reading that would avoid these incongruities, and would permit appellant's lawsuit to continue.

III

There is another guidepost to proper interpretation of the "receipt of...