White v. Bentsen, 93-3545
| Decision Date | 08 September 1994 |
| Docket Number | No. 93-3545,93-3545 |
| Citation | 31 F.3d 474 |
| Parties | 65 Fair Empl.Prac.Cas. (BNA) 948, 65 Empl. Prac. Dec. P 43,213 Nathaniel WHITE, Plaintiff-Appellant, v. Lloyd BENTSEN, Secretary of the Treasury, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Nathaniel White, pro se.
James J. Kubik, Asst. U.S. Atty., Civ.Div., Appellate Section, Chicago, IL, for defendant-appellee.
Before POSNER, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.
Nathaniel White, employed by the Internal Revenue Service as a revenue agent, believes that his race and sex explain the agency's failure to promote him to a higher grade. He filed an administrative complaint under Title VII of the Civil Rights Act of 1964 and received a hearing before an administrative law judge, who concluded that White's belief is unfounded. The ALJ informed White that he could obtain additional review in one of two ways: by filing suit in a district court within 90 days, or by filing an appeal to the Equal Employment Opportunity Commission within 20 days. See 42 U.S.C. Sec. 2000e-16(c), 29 C.F.R. Sec. 1613.233(a). White did neither. He appealed to the EEOC 60 days after receiving the notice. The EEOC dismissed the appeal as untimely, and the district court then dismissed White's complaint on the ground that the delay bars further action. (By the time the EEOC dismissed the appeal, it was too late for White to commence an independent suit under the 90-day option.)
The IRS sought to dismiss the case under Fed.R.Civ.P. 12(b)(1), contending that White's delay deprived the district court of subject-matter jurisdiction. If the time limit in 29 C.F.R. Sec. 1613.233(a) is "jurisdictional," then delay may not be excused on account of equitable tolling and related doctrines. White believes that his delay is justifiable, and the IRS contended that the court should not inquire into this contention. Magistrate Judge Bobrick filed a report observing that our court's most recent word on the subject is equivocal. McGinty v. Department of the Army, 900 F.2d 1114, 1117-18 (7th Cir.1990), rejected a claim of tolling on the merits without deciding whether a court has the power to entertain such arguments in the first place. Following the same approach, Judge Bobrick recommended that the district judge examine the tolling argument, find it wanting, and dismiss the suit. The district judge adopted this recommendation.
In this court the IRS renews its argument that the district court lacked subject-matter jurisdiction. This argument would have met with success a few years ago, for until recently courts characterized as jurisdictional any limitations on the federal government's consent to be sued. E.g., Sims v. Heckler, 725 F.2d 1143 (7th Cir.1984). But in Rennie v. Garrett, 896 F.2d 1057 (7th Cir.1990), we overruled Sims and held that the time limits for initial claims of employment discrimination by federal agencies are subject to equitable tolling and estoppel. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), held that the time limits for making claims of discrimination against private employers are not jurisdictional; Rennie concluded that because Congress has subjected private and public employers to the same substantive rules, there is no reason to give a stingy reading to the terms and conditions in the legislation applicable to public employers.
Within a year, the Supreme Court approved both the approach and the holding of Rennie. In Irwin v. Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), the Court concluded that the time limits specified in Sec. 2000e-16(c) for commencing civil actions are subject to equitable tolling: "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." 498 U.S. at 95-96, 111 S.Ct. at 457. What is true of the statutory time limit for filing suits is no less true of the regulatory...
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