The opinion of the court was delivered by: ROBERTSON
In this employment discrimination case, plaintiff Larry Becton alleges that his discharge by the U.S. Department of Transportation ("DOT") was unlawful.
Defendant moved to dismiss this action for lack of subject matter jurisdiction, arguing that plaintiff filed it one day too late. On October 17, 1996, I heard oral argument on the motion and denied it. This memorandum explains that decision.
Mr. Becton was hired in 1979 as a part-time worker under a special program for mentally retarded individuals.
He was eventually converted to competitive employment status and assigned to work as a driver. On March 10, 1994, Mr. Becton was involved in an automobile accident while performing his duties at DOT. Because of injuries he suffered in that accident, DOT transferred him from the motor pool to the printing plant on a temporary detail. Mr. Becton alleges that in August 1995, DOT informed him that his employment would be terminated because of his physical and mental disability and because he was taking family medical leave. The termination was effective in September.
A Merit Systems Protection Board (MSPB) administrative law judge heard Mr. Becton's appeal of his discharge and ruled that DOT had acted reasonably. MSPB notified the plaintiff of the decision by letter. The letter, which was dated February 23, 1996, informed Mr. Becton that the decision would become "final" -- so that the time for filing a civil suit in federal court would begin to run -- on March 29, 1996, and that he would then have 30 days to file suit. Plaintiff filed this suit on April 29, 1996, thirty-one days after March 29, 1996.
The applicable statutory provision is 5 U.S.C. § 7703(b)(2), "Judicial review of decisions of the Merit Systems Protection Board." It provides in relevant part that:
Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c))
. . . . Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under section 7702.
Defendant's submission is that plaintiff "received notice of the judicially renewable motion" well before March 29, 1996, and that § 7703(b)(2) operated to require any suit to be filed, at the latest, by April 28, 1996, which was a Sunday. The statute, defendant argues, is jurisdictional because the "notwithstanding any other provision of law" clause requires strict application of the time limitation requirement. The plaintiff challenges that interpretation of the statute on two grounds.
1. 1991 amendments to Title VII
Plaintiff argues that, after the 1991 amendments to the Civil Rights Act of 1964, a Title VII plaintiff has 90 days, not 30 days, to file suit after an adverse MSPB decision. This argument is based upon a 1991 amendment to the Civil Rights Act that extended from 30 to 90 days the time a federal employee has to file a Title VII suit following an adverse determination by an employing agency or by the EEOC. 42 U.S.C. § 2000e-16(c). The amendment does not mention the MSPB.
The legislative history of § 2000e-16(c) gives no hint as to why MSPB decisions and EEOC decisions should be treated differently. In fact, the legislative history suggests that Congress considered the 30-day period an unacceptable barrier to vindication of federal employees' rights under Title VII without regard to which agency originally considers a claim. See H.R. Rep. No. 102-40. 102nd Cong., 1st Sess. 85-86, reprinted in 1991 U.S.C.C.A.N. 549, 623. The House Report concludes that "the current thirty-day limitations period for filing suit against the federal government is, in most instances, simply too short to allow plaintiffs adequate time to prepare and file their claims in federal court." Id. at 625.
The obvious inconsistency between that statement and Congress' failure to amend § 7703(b)(2) has led one court to conclude that Congress "simply assumed that the new time limits would apply to all federal employees with Title VII claims against the federal government." Nunnally v. MacCausland, 996 F.2d 1, 3 n.3 (1st Cir. 1993). It is not necessary to reach that conclusion in this case, however, or to decide whether the 1991 amendment to the Civil Rights Act implicitly repealed the 30-day limitation period in § 7703(b)(2), for the reasons set forth in the next section of this memorandum.
2. Equitable tolling and Rule 6(a).
Plaintiff's next argument, that the 30-day limitation period established by § 7703(b)(2) is no longer to be strictly applied, is dispositive of this motion. Plaintiff is correct that Hilliard v. U.S. Postal Service, 814 F.2d 325 (6th Cir. 1987), and King v. Dole, 251 U.S. App. D.C. 192, 782 F.2d 274 (D.C. Cir.), cert. denied, 479 U.S. 856, 107 S. Ct. 194, 93 L. Ed. 2d 126 (1986), upon which defendant relies most heavily, are no longer controlling law. In Hilliard, a handicapped person filed a discrimination suit after an adverse ruling by the MSPB. Just as in the instant case, the 30-day time limit established by § 7703(b)(2) had expired on a Sunday and the complaint was filed on the following Monday. The Hilliard court, affirming the District Court's dismissal, held that § 7703(b)(2) "is a jurisdictional prerequisite to judicial review of an MSPB decision and cannot be extended." 814 F.2d at 327. As a result, the court ruled that neither equitable tolling nor Rule 6(a) of the Federal Rules of Civil Procedure was available to extend the 30-day time limitation. Hilliard relied upon King v. Dole, supra. In King, ...