Harris v. National Tea Company

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: MAJOR and HASTINGS, Senior Circuit , and KERNER, Circuit
• Citation: Harris v. National Tea Company, 454 F.2d 307 (7th Cir. 1971)
• Decision Date: 21 December 1971
• Docket Number: No. 71-1236.,71-1236.
• Parties: Katherine M. HARRIS, Plaintiff-Appellant, v. NATIONAL TEA COMPANY, Defendant-Appellee.

454 F.2d 307 (1971)

Katherine M. HARRIS, Plaintiff-Appellant, v. NATIONAL TEA COMPANY, Defendant-Appellee.

No. 71-1236.

United States Court of Appeals, Seventh Circuit.

December 21, 1971.

Lawrence J. Gartner, Equal Employment Opportunity Comm., Washington, D. C., Richard H. Trais, Chicago, Ill., Stanley P. Hebert, Gen. Counsel, John de J. Pemberton, Jr., Deputy Gen. Counsel, Julia P. Cooper, Chief, Appellate Section, Equal Employment Opportunity Comm., Washington, D. C., for plaintiff-appellant.

Thomas A. Gottschalk, Joseph B. Wollenberger, Chicago, Ill., for defendant-appellee; Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., of counsel.

Before MAJOR and HASTINGS, Senior Circuit Judges, and KERNER, Circuit Judge.

MAJOR, Senior Circuit Judge.

Katherine M. Harris (appellant) filed administrative charges with the Equal Employment Opportunity Commission (EEOC or Commission) in 1969, alleging that National Tea Company (appellee) violated Title VII of the 1964 Civil Rights Act, 42 U.S.C.A. Par. 2000e et seq. (the Act), by discriminating against her in employment because of her sex. We need not particularize the proceedings before the Commission as they are not involved in the instant appeal.

Section 706(e) of the Act provides:

"If within thirty days after a charge is filed with the Commission * * *, the Commission has been unable to obtain voluntary compliance with this subchapter, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge * * *." (Italics supplied.)

Pursuant to this provision, EEOC on June 24, 1970, issued to appellant a right-to-sue notice entitled, "Notice of right to sue within 30 days," by which she was advised, among other things, "* * * you are hereby notified that you may within thirty (30) days of receipt of this communication, institute a civil action in the appropriate Federal District Court. If you are unable to retain an attorney, the Federal District Court is authorized in its discretion to appoint an attorney to represent you and to authorize commencement of the suit without payment of fees, costs or security."

Dates material on this appeal are as follows: On June 29, 1970, appellant prose petitioned the district court for the appointment of an attorney, which on July 1 was denied. On July 30, appellant again petitioned the court for the appointment of an attorney, which was allowed, and an attorney appointed. On September 17, 1970, the complaint was filed by her appointed attorney. Thus, the first application for appointment of an attorney was 6 days after receipt of the right-to-sue notice, the second application 36 days after receipt of such notice and 6 days after the expiration of the 30-day period. The complaint was filed 85 days after receipt of the right-to-sue notice, and 47 days after July 30, when an attorney was appointed.

In this court, EEOC appeared as amicus curiae and was given leave to file a brief and present oral argument. Appellant adopted the brief of EEOC, which stated the issues for review:

"1. Did Appellant Katherine M. Harris satisfy the jurisdictional requirements of Section 706(e) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. Par. 2000e-5(e), by petitioning the lower Court for appointment of counsel and waiver of costs within 30 days of receipt of her statutory Notice-of-Right-to-Sue? * * *

"2. Assuming, arguendo, that Appellant\'s petition for appointment of counsel satisfied Section 706(e), does she then have a reasonable time after appointment of counsel in which to file her complaint?"

After a careful appraisement of the factual situation and a study of the many cases called to our attention, we reach the conclusion that the answer to the first issue must be "no." This appears to eliminate the second issue or, in any event, render it of little importance.

Appellee, pursuant to Rule 12 Federal Rules of Civil Procedure, moved to dismiss the complaint with prejudice for the reason that the court lacked jurisdiction of the subject matter. The motion was allowed, and from the order of dismissal the appeal comes to this court.

While perhaps not in dispute, it is well to keep in mind that the 30-day limitation period is jurisdictional. As was stated in Goodman v. City Products Corp. etc., 425 F.2d 702, 703 (CA-6):

"The statute clearly provides that `* * * a civil action may, within thirty days thereafter, be brought * * *.\' The permissive verb `may\' refers to the option of the aggrieved party to bring a lawsuit, not to a discretion in the Court to receive the case following the expiration of 30 days."

In Choate v. Caterpillar Tractor Co., 402 F.2d 357, 359, this court stated:

"A close reading of the statute indicates that there are only two additional jurisdictional prerequisites for such commencement: first, a notification to the aggrieved party by the Commission that it has been unable to obtain voluntary compliance and, second, the action must be filed within thirty days after the notification." (Italics supplied.)

The effect to be given a limitation period contained in a statutory enactment is aptly stated in Kavanagh v. Noble, 332 U.S. 535, 539, 68 S.Ct. 235, 237, 92 L.Ed. 150:

"Such periods are established to cut off rights, justifiable or not, that might otherwise be asserted and they must be strictly adhered to by the judiciary. Rosenman v. United States, 323 U.S. 658, 661 65 S.Ct. 536, 538, 89 L.Ed. 535. Remedies for resulting inequities are to be provided by Congress, not the courts."

The same section of the Act (heretofore quoted) which confers jurisdiction upon the court during the 30-day period after a complainant has received notice of right-to-sue also provides:

"Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security."

Thus, by plain language the court is given the discretionary authority to do two things, (1) appoint an attorney and (2) authorize the commencement of the action.

When Congress thus vested the court with such discretionary authority it must have been cognizant of the Rules of Civil Procedure which it had approved. Rule 3, entitled "Commencement of Action," provides, "A civil action is commenced by filing a complaint with the court." Rule 8(a), entitled "Claims for Relief," provides, "A pleading which sets forth a claim for relief, * * * shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends * * *, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled. * *"

Appellant's petition for appointed counsel was filed in the district court on June 29, 1970, and denied by the court two days later. The petition did not mention appellee; neither did it mention any charge of sex discrimination. It alleged that she was financially unable to employ counsel and clearly was for no purpose other than to obtain counsel whom the court might authorize to file a complaint on her behalf.

To hold, as EEOC would have us do, that this application represented the commencement of an action and thereby satisfied the jurisdictional requirement of Sec. 706(e) of the Act, would amount to an emasculation of the provision which Congress wrote in plain, unambiguous language. Its brief is permeated with the idea that the court should find some excuse to evade rather than comply with the statute. As illustrative, it argues that the opinion of the court below "is a narrow reading of the Title inimicable to its remedial purposes"; that grievants should be required "to do only what it is in their power to do," and that "47 days from the appointment of counsel is not an unreasonable delay for filing a formal complaint."

Surely Congress was fully aware of the remedial purposes of the Act and designed a procedure to accomplish that end. Whatever may be held as to uncertainties in the procedure to be followed before the Commission, there was no uncertainty that the jurisdiction of a court to entertain a grievance was limited to an action brought "within 30 days" after the issuance of the right-to-sue notice. See our opinion in Choate v. Caterpillar Tractor Co., supra. Congress determined that 30 days was a reasonable time for the commencement of such action, and it little behooves the Commission to argue or a court to hold that the filing of a complaint beyond the time specified is reasonable and, therefore, sufficient.

While what we have said might be dispositive of this appeal, we think, in view of EEOC's argument and cases relied upon, we should proceed further. There is nothing to show what if anything appellant did during the 30-day period after her first petition for the appointment of an attorney was denied; however, on July 30, 1970 (6 days after the expiration of the 30-day period), appellant again applied to the same court for the appointment of an attorney, which was allowed. In connection with the dismissal of the complaint, the court rendered a memorandum opinion in which it stated, "She did petition for the appointment of counsel and waiver of costs within the thirty days, but it was denied on the ground that the Commission had not made a finding of reasonable cause. However, on July 30, 1970, the order was vacated and counsel was appointed after the court found that there had been a finding of reasonable cause."

Thus, the court evidently recognized that it erred in its denial of the first application, which was corrected by its allowance of the second. While the court did not so state, it must have considered the order entered on the second application as nunc pro tunc. On this basis we hold that the running of the 30-day period was stayed when her first...