Bowden v. U.S.

Decision Date18 February 1997
Docket NumberNo. 95-5166,95-5166
Citation323 U.S. App. D.C. 164,106 F.3d 433
Parties73 Fair Empl.Prac.Cas. (BNA) 395, 70 Empl. Prac. Dec. P 44,738, 323 U.S.App.D.C. 164 Roy E. BOWDEN, Appellant, v. UNITED STATES of America, Appellee. District of Columbia Circuit
CourtU.S. Court of Appeals — District of Columbia Circuit

Lawrence E. Williams, Jr., Washington, DC, argued the cause and filed the briefs, for appellant.

Claire M. Whitaker, Assistant U.S. Attorney, argued the cause, for appellee. With her on the brief were Eric H. Holder, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney, Washington, DC.

Before WALD, GINSBURG and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

This case involves a dispute between appellant and his former employer, the Immigration and Naturalization Service, over a Title VII settlement agreement. In a three-count complaint, appellant alleged that the INS breached the agreement by failing to bear appellant's entire tax liability on the settlement payment, that the agency violated the Back Pay Act by failing to pay interest on the award, and that it injured him by negligently failing to fulfill the legal duties alleged in the first two counts. The district court dismissed the complaint, finding that appellant had failed properly to exhaust administrative remedies required to bring the first and third counts and that the second count failed to state a claim under the Back Pay Act. Concluding that the government waived its exhaustion defense concerning appellant's first claim, we reverse the district court's dismissal of that count and remand for further proceedings. We affirm the dismissal of appellant's Back Pay Act and tort claims.


Appellant, Roy Bowden, worked for the INS from 1975 to 1982 as a detention enforcement officer. In 1978, after the INS declined to select him for several vacancies as a criminal investigator, Bowden filed a race discrimination complaint with the agency. The complaint moved slowly through the administrative process. On January 10, 1990, over a decade after filing his complaint, Bowden settled his claim in exchange for a lump-sum back-pay award. Under the settlement agreement, the INS paid Bowden $190,000 on January 31, 1990. That figure represented approximately $242,000 in back pay for the period from April 1978, the date on which Bowden had been passed over for the criminal investigator positions, to the date of the agreement, minus deductions for payroll taxes.

In April 1991, Bowden learned from the Internal Revenue Service and the Maryland Tax Department that he owed additional tax on the settlement payment. Eight months later, in December 1991, Bowden wrote to the INS, claiming that the agency had agreed to pay all taxes on the settlement payment. The INS did not respond. Bowden wrote again in May 1992, reiterating his claim and explaining that the INS staff person with whom he had negotiated the settlement agreement had assured him that the agency would pay all taxes due on the settlement amount, but that this oral agreement had inadvertently been left out of the written agreement. This time the INS responded, claiming in a July 24 letter that it had already paid the appropriate payroll taxes in accord with federal regulations and that the settlement agreement made clear that it bore no additional tax liability. One month later, on August 24, Bowden again wrote to the INS, repeating his allegations and stating that his letter should serve as the thirty-day notification required by 29 C.F.R. § 1613.217(b) (1991). In relevant part, that regulation provides: "If the complainant believes that the agency has failed to comply with the terms of the settlement agreement, the complainant shall notify the [agency's] Director of Equal Employment Opportunity, in writing, of the alleged noncompliance with the settlement agreement, within 30 days of when the complainant knew or should have known of the alleged noncompliance." 29 C.F.R. § 1613.217(b) (1991) (recodified at 29 C.F.R. § 1614.504(a) (1996)).

In October 1992, Bowden filed suit in the U.S. District Court for the District of Columbia. Agreeing with the Government that the first two counts of Bowden's complaint--those for breach of the settlement agreement and for violation of the Back Pay Act--were within the exclusive jurisdiction of the Court of Federal Claims and that Bowden had failed to exhaust his administrative remedies regarding the tort claims alleged in the third count, the district court dismissed the complaint without prejudice. Bowden then filed a new, identical complaint before the Court of Claims. There, the Government argued, directly contrary to its position in the district court, that the first two counts were not within the Court of Claims's jurisdiction. Agreeing, the Court of Claims transferred the entire matter back to the district court.

In February 1995, the district court dismissed the complaint, this time with prejudice. Again agreeing with the Government, the district court found that Bowden's attempts to exhaust his administrative remedies relating to Count One had been untimely; that Bowden had failed, as a matter of law, to establish his entitlement to interest under the Back Pay Act, as alleged in Count Two; and that Count Three was barred by the district court's earlier dismissal order finding that Bowden had failed to exhaust the administrative remedies necessary to bring a case under the Federal Tort Claims Act. Our review is de novo. See, e.g., Wilson v. Pena, 79 F.3d 154, 160 n. 1 (D.C.Cir.1996).


Section 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1994), gives the Equal Employment Opportunity Commission broad authority to enforce the Act's antidiscrimination mandate within the federal government, including responsibility for issuing regulations to control federal agencies' processing of discrimination complaints. Id. § 2000e-16(b). Pursuant to that authority, the EEOC has established detailed procedures for the administrative resolution of discrimination complaints, including a series of time limits for seeking informal adjustment of complaints, filing formal charges, and appealing agency decisions to the Commission. 29 C.F.R. §§ 1613.201-283 (1991) (recodified at 29 C.F.R. part 1614 (1996)). Complainants must timely exhaust these administrative remedies before bringing their claims to court. Brown v. GSA, 425 U.S. 820, 832-33, 96 S.Ct. 1961, 1967-68, 48 L.Ed.2d 402 (1976); Bayer v. United States Dept. of the Treasury, 956 F.2d 330, 332 (D.C.Cir.1992). Like the suit-filing time limits contained in the Act, see 42 U.S.C. § 2000e-16(c) (1994), the administrative time limits created by the EEOC erect no jurisdictional bars to bringing suit. Rather, functioning like statutes of limitations, these time limits are subject to equitable tolling, estoppel, and waiver. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990) (statutory time limit); Jarrell v. United States Postal Serv., 753 F.2d 1088, 1091 (D.C.Cir.1985) (administrative time limit); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (establishing same equitable principles apply to Title VII complaints against employers other than federal government).

The district court dismissed Count One because Bowden, by failing to comply with the thirty-day complaint-filing requirement contained in 29 C.F.R. § 1613.217(b) (1991), had not timely exhausted his administrative remedies. Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it. Brown v. Marsh, 777 F.2d 8, 13 (D.C.Cir.1985). If the defendant meets its burden, the plaintiff then bears the burden of pleading and proving facts supporting equitable avoidance of the defense. Bayer, 956 F.2d at 333; Jarrell, 753 F.2d at 1091-92; cf. 29 C.F.R. § 1613.214(a)(4) (1991) (recodified as amended at 29 C.F.R. § 1614.204(c)).

In this case, the pleadings and undisputed documents in the record establish that Bowden failed to meet the thirty-day notification requirement. As his brief concedes, Bowden did not write to the INS about its alleged failure to pay all the required taxes on the settlement award until December 1991, nearly a year after Bowden received payment from the Government and, as his complaint acknowledges, eight months after notices from the IRS and the Maryland Tax Department alerted him that he owed tax on the settlement award.

Bowden argues, as he did in his August 24, 1992, letter, that because he could not know that the INS had failed to comply with the settlement agreement until the agency clearly denied his allegations, the thirty-day clock did not begin to run until the INS first responded to his allegations of noncompliance on July 24, 1992. In some cases, notably where a complainant's knowledge of agency noncompliance depends on information in the government's possession, action by the agency may indeed be the appropriate trigger for the running of the thirty-day clock. See, e.g., Aiken v. Reilly, No.90-0987-LFO, 1991 WL 126000, at * 3 (D.D.C. June 26, 1991), aff'd sub nom. Aiken v. Browner, No. 92-5151, 1993 WL 267511 (D.C.Cir. July 7, 1993); cf. Loe v. Heckler, 768 F.2d 409, 418-19 (D.C.Cir.1985) (holding that when, because of information withheld by the government, a complainant neither knew nor reasonably could have known that the government had made a discriminatory employment decision, the limitations period for filing a discrimination complaint is tolled); Stoller v. Marsh, 682 F.2d 971, 974 (D.C.Cir.1982) (same). But this is not such a case. As both Bowden's pleading in the district court and brief on appeal admit, the documents that clearly notified him that the agency had failed to pay taxes he believed it had agreed to pay--tax bills from the IRS and the Maryland Tax Department...

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