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11/15/85 James E. Brown, v. John O. Marsh

November 15, 1985

JAMES E. BROWN, APPELLANT

v.

JOHN O. MARSH, JR., SECRETARY OF THE ARMY 1985.CDC.256 DATE DECIDED: NOVEMBER 15, 1985



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-01169).

APPELLATE PANEL:

Wald, Mikva and Starr, Circuit Judges. Opinion for the Court filed by Circuit Judge Mikva. Dissenting Opinion filed by Circuit Judge Starr.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA

James E. Brown, a black, civilian employee of the United States Department of the Army, appeals pro se from the district court's dismissal of this Title VII suit alleging race discrimination in employment. Defendant-Appellee John O. Marsh, Jr., appears in his official capacity as Secretary of the Department of the Army. For convenience, we will refer to the appellee simply as "the Army." Because we find that the plaintiff did not fail to exhaust his administrative remedies and because the Army is anyway precluded from asserting that the plaintiff has failed to exhaust those remedies, we reverse and remand.

This appeal is merely the latest episode in what has been a protracted struggle between Brown and his employer. The procedural history of this case is inordinately complex and it would not be worthwhile to inventory it exhaustively even if the various filings in this case provided us with sufficient information to do so confidently and accurately, which they do not. The following broad outline must suffice.

In March 1971, the Army appointed Brown to the post of GS-5 Accounting Technician in Frankfurt, West Germany. (Although the record is not entirely clear on the matter, it appears that Brown, a disabled veteran, had been living in Germany since 1964 and had previously been employed by the Army in other capacities.) In August 1971, Brown was promoted to GS-7 and transferred to another German city, Worms. His problems with his employer apparently began when he arrived there. In Worms, the Civilian Personnel Officer denied Brown certain benefits that Brown believed he had been granted by the appointing officer. Brown believed that the CPO's actions were racially motivated and discriminatory, and he responded by filing a complaint against the CPO and others. According to Brown, the Director of Civilian Personnel contacted him shortly thereafter, pressed him to withdraw his accusations, and threatened him with dismissal and blacklisting if he failed to cooperate. Brown refused to comply and was, in fact, subsequently fired.

Alleging discrimination and retaliation, Brown successfully contested his removal and was reinstated with backpay in July 1972. Only months later, in December of 1972, he was dismissed again. Appellant again contested his removal and again won reinstatement. Although backpay was initially denied, after litigation, Brown obtained a backpay award from the United States Court of Claims. In March 1973, the Army dismissed Brown for the third time -- ostensibly as part of a reduction in force. For the third time, Brown contested his removal and won reinstatement. Following this third dismissal in less than two years, the Director of the Civil Service Commission allegedly contacted the Secretary of the Army to protest the Army's conduct and insist that such improprieties cease.

After Brown won his third reinstatement, the Army allegedly changed tactics, and adopted a policy of denying him benefits and promotion. In the ensuing months, Brown contends he met repeatedly with his Equal Employment Opportunity Counselor to complain about his treatment. From then on, the sequence of events becomes increasingly confusing and unclear. (One of the many deficiencies in the record before us is the absence of a clear and complete chronological history of this dispute.) It appears, however, that in 1974-75, Brown filed a complaint alleging that the Army was discriminating against him by improperly refusing to accurately classify his job and improperly refusing to accord him the grade allotted to non-minority personnel who performed the same job. Several months later, in the summer of 1975, a portion of Brown's duties were transferred away, and he was advised to apply for a new job; he attempted to do so but his efforts were -- in his opinion, wrongfully -- thwarted. Allegedly, the personnel officer first refused to process his applications at all and then placed Brown's name on a referral list with the obviously disqualifying annotation that Brown should not be selected because he was ineligible under Army and Department of Defense guidelines.

In November of 1975, Brown contends, he learned that the CPO had notified his supervisors that he was to be dismissed. At approximately the same time Brown says he discovered that the personnel office had refused to process a recommendation filed on his behalf by his superiors suggesting that he be granted career civil service status. Appellant also learned that the CPO had given his superiors specific orders not to promote him and had told those in charge of filling the vacancies for which he had applied not to select him. Also in November of 1975, Brown allegedly informed the EEO Counselor that he wanted to file suit in federal court and was told that he could not sue on the basis of discriminatory nonpromotion because he had raised that issue in a still pending prior complaint.

From that point on, matters further degenerated. Brown seems to have filed a number of complaints -- all loosely related and all alleging various manifestations of discrimination -- which went up and down the administrative hierarchy and eventually led to litigation in the Court of Claims, the Federal Circuit, the Middle District of Tennessee, and the district and appellate courts of the District of Columbia. The Tennessee suit survived the government's motion to dismiss for lack of subject matter jurisdiction but was transferred to the District of Columbia based on a finding of improper venue. The District of Columbia district court then issued an order to the Equal Employment Opportunity Commission to expedite its consideration of the matter which had been pending before it for approximately four years and dismissed without prejudice pending the EEOC's determination. A separate suit initially filed in the District of Columbia was dismissed by the district court (a different district judge presiding) but partially reversed and remanded by this court upon appeal. Following the EEOC's decision affirming in part but vacating and remanding to the Army with respect to issues of Brown's nonselection for the Housing Management position and the Army's failure to convert Brown to career civil status, Brown moved to reopen the case in the District of Columbia, whereupon the case was reopened and apparently consolidated with the remanded portions of the other case. The government then moved to dismiss the whole suit for failure to exhaust administrative remedies, and the district court granted the motion. This appeal ensued.

As this thumbnail sketch indicates, Brown's suits have been pursued with varying degrees of success. However, it would also appear from past litigation that the Army has previously failed to apply non-discriminatory standards to Brown's employment. It is thus not fair to say, as the government tries to, that Brown's claims are overtly frivolous and have been uniformly rebuffed by every decisionmaking body that has heard them. On the contrary, the record indicates that he succeeded in winning reinstatement following a discharge on at least three separate occasions, that he was awarded back pay and credit for leave hours by the Court of Claims in 1982, that he has succeeded in obtaining vacatur and remand of administrative decisions on more than one occasion, that he successfully resisted a motion to dismiss for lack of subject matter jurisdiction in the district court of Tennessee, and obtained the reversal and remand of a previous decision of the District of Columbia district court. The degree of success the appellant has had in keeping his various lawsuits alive is particularly notable in light of the fact that he has conducted much of the litigation pro se, while living thousands of miles away in Europe. His adversary, by contrast, has had a large staff of skilled attorneys continuously at its disposal and has been able to pursue most of the litigation in fora located only minutes away from its main offices. Indeed, if one views only the results of past litigation, it would appear that intransigence has been the Army's suit.

There can be little doubt, however, that this dispute has gone on far too long and has burdened the time and resources of more different courts and judges than was reasonably necessary. It is also true that Brown's persistence has so exasperated some of our colleagues as to occasion veritable diatribes.

In a recent opinion, the Court of Appeals for the Federal Circuit fumed that Brown "does not take 'no' for an answer." Brown v. United States, 741 F.2d 1374, 1377 (Fed. Cir. 1984). The court complained that the appellant "has succeeded in getting 17 decisions on his complaints, 12 of them now in published orders or opinions," that his suits have "required the attention of 16 federal judges on 30 occasions," and that " some judges have sat on more than one of his cases." Id. The court concluded that this waste of judicial resources must . . . end." Id. We too can only deplore the excessively lengthy history of this dispute, although we think it appropriate to point out that the piecemeal nature of this litigation cannot be blamed entirely on Brown. Some of the repetition and delay was unavoidable, some resulted from tactical decisions made by the Army in conducting its defense, and some from the manner in which the courts handled the suits.

Although we decline to accept the harsh appraisals proffered by the Army, we agree that it is long past time for this matter to be resolved. It is thus with considerable regret that we conclude that the decision of the district court cannot stand.

The district court's decision and the Army's argument on appeal turn on the plaintiff's failure to exhaust administrative remedies, with respect to his claim of discriminatory nonselection or nonpromotion to the position of GS-9 Housing Management Assistant in August 1975 and GS-8 Supervisory Space Utilization Specialist in December 1975. With respect to the first position the Army claims that Brown failed to contact an EEO Counselor within 30 days. The Army also suggests that the delay between contacting the EEO Counselor and filing the formal complaint was excessive.

Under 29 C.F.R. § 1613.214(a) (1983),

(1) . . . The agency may accept a complaint for processing in accordance with this subpart only if: (i) The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter or, if a personnel action, within 30 calendar days of its effective date. . . . . . .

(4) The agency shall extend the time limits in this section: (i) When the complainant shows that he was not notified of the time limits and was not otherwise aware of them, or that he was prevented by circumstances beyond his control from submitting the matter within the time limits or (ii) for other reasons considered sufficient by the agency.

"Insofar as is practicable," counseling is to be completed within 21 days. 29 C.F.R. § 1613.213(a). Once counseling is finished, the complainant has 15 days to file a formal complaint. Id.

The timeliness of Brown's consultation with the EEO Counselor was raised in the most oblique manner possible. The defendant's answer merely alleged that "plaintiff has failed to exhaust his administrative remedies." The Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss asserts with respect to the claim of nonselection for the Housing Management Assistant position that "the complaint was not the subject of an administrative complaint until September 6, 1976, some twelve and one half months after the selection was made on August 21, 1975." Id. at 3.

This is the only assertion made in the memorandum and is, on its face, clearly inadequate under prevailing regulations to establish the failure to exhaust administrative remedies. The regulations establish no set limitations on the amount of time that may pass between a statutory violation and the filing of a formal complaint. Time limits are placed on the number of days that may elapse between the violation and the first contact with an EEO Counselor (30 days) and between the final interview and filing the formal complaint (15 days). By contrast, the amount of time to be spent in counseling is not limited to any fixed period. 29 C.F.R. § 1613.213(a). The Army's memorandum failed to allege any breach of the fixed limitations periods and thus made no colorable showing of non exhaustion. The Army's memorandum provides no information as to when appellant first contacted an EEO Counselor or what complaints appellant presented; it provides no information about the duration of counseling and no information as to when the final interview was held. Nor does the one affidavit filed by the Army in support of its motion overcome the deficiencies of the memorandum; the affidavit merely repeats the same very limited factual assertions.

Based on these meager representations, however, the district judge concluded that the "plaintiff has failed to exhaust his administrative remedies by filing administrative complaints within thirty days of the alleged violations of Title VII." Brown v. Secretary of the Army, No. 80-01169, slip op. at 1 (D.D.C. Mar. 5, 1984) (footnotes omitted). This conclusion is puzzling. First, it misstates the law since the complainant is not required to file an administrative complaint within thirty days of the violation -- he need only contact the EEO Counselor. Second, even assuming that the district judge's reference to failure to file meant failure to contact an EEO Counselor, such failure is not adequately borne out by the record. The Army's memorandum and affidavit make no allegation as to when the plaintiff consulted the EEO Counselor. The plaintiff's various filings, however, do indicate that he was in frequent contact with the EEO Counselor and had first raised concerns about nonpromotion or nonselection for new, higher positions as early as January 1975. Third, the district court's ...


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