United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge.
September 8, 2014, plaintiff David Donald Webster filed a
motion in the U.S. Court of Appeals for the Ninth Circuit,
purportedly appealing a decision of the U.S. Equal Employment
Opportunity Commission ("EEOC"). The Ninth Circuit
construed Mr. Webster's motion as an attempt to file a
civil action under 42 U.S.C. § 2000e (Title VII) against
his former employer, the U.S. Patent and Trademark Office
("PTO"), and transferred it here. This Court
permitted Mr. Webster to file the operative Complaint [Dkt.
is Defendants' Motion to Dismiss or for Summary Judgment
[Dkt. 18].Defendants contend that this action is
untimely. They also assert that Mr. Webster has failed to
state a claim upon which relief may be granted and that he
was fired for legitimate, nondiscriminatory reasons related
to his poor work performance. The Court agrees that this
action is untimely, and it finds no support for equitable
tolling. Accordingly, Defendants' motion will be granted
solely on the untimeliness ground.
October 27, 2008, PTO hired Mr. Webster as a GS 12 Patent
Examiner. Mr. Webster was hired as part of the Federal Career
Intern Program. His continued employment depended on his
successful completion of a two-year probationary period. Mr.
Webster first participated in a training program at the
Patent Academy. In April 2009, he was assigned to the Art
Unit. Mr. Webster was fired on August 13, 2009, for alleged
subpar work performance.
September 24, 2009, Mr. Webster filed an EEO complaint,
alleging discrimination based on his age and disability,
retaliation for his prior EEO activity, and a hostile work
environment. The Agency finally denied Mr. Webster's
complaint on August 10, 2012, and he filed an appeal with the
EEOC on September 23, 2012. On March 15, 2013, the EEOC
denied Mr. Webster's appeal as untimely filed. On March
14, 2014, the EEOC denied Mr. Webster's request for
reconsideration. Its "Denial" contained a section
captioned: "Complainant's Right to File a Civil
Action, " which stated:
This decision of the Commission is final, and there is no
further right of administrative appeal from the
Commission's decision. You have the right to file a
civil action in an appropriate United States District Court
within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you
must name as the defendant in the complaint the person who is
the official Agency head or department head, identifying that
person by his or her full name and official title. Failure to
do so may result in the dismissal of your case in court.
"Agency" or "department" means the
national organization, and not the local office, facility or
department in which you work.
Ex. 2 [Dkt. 18-2, ECF p. 20] (emphasis added). Nearly six
months later, on September 8, 2014, the Ninth Circuit
received Mr. Webster's "Motion for Writ of Corbis
[sic] Nobis and Extension of Time to File Appeal With U.S.
District Federal Ninth Court" [Dkt. 1-1, ECF p. 4],
which is the initiating pleading that was transferred to this
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim challenges the adequacy
of a complaint on its face. A complaint must be sufficient
"to give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests."
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation and internal quotation marks omitted). In deciding
a motion under Rule 12(b)(6), a court may consider the facts
alleged in the complaint, documents attached to the complaint
as exhibits or incorporated by reference, and public matters
about which the court may take judicial notice. Abhe
& Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.
Cir. 2007). Public matters include the records of other
courts, see Rogers v. District of Columbia, 880
F.Supp.2d 163, 166 (D.D.C. 2012) (citing cases), and those of
administrative proceedings, see Hourani v.
Psybersolutions LLC, No. 15-933, 2016 WL 659669, at *4
(D.D.C. Feb. 18, 2016).
the exhaustion of administrative remedies, a federal employee
may bring a timely civil action by filing suit with a federal
district court within 90 days of final administrative action.
See Price v. Greenspan, 374 F.Supp.2d 177, 184
(D.D.C. 2005), affd, Price v. Bernanke, 470 F.3d 384
(D.C. Cir. 2006); accord 42 U.S.C. §
2000e-16(c) (federal employees must file a civil action
within ninety days after "receipt of notice of final
action"). Courts apply the ninety-day time limit
strictly and will dismiss a suit for missing the deadline by
even one day because it constitutes a waiver of sovereign
immunity. McAlister v. Potter, 733 F.Supp.2d 134,
142 (D.D.C. 2010) (examining cases). Nonetheless, the
ninety-day time period is not jurisdictional-it functions as
a statute of limitations and is subject to waiver, estoppel,
and equitable tolling. SeeMondyv. Sec. of the Army,
845 F.2d 1051, 1054, 1057 (D.C. Cir. 1988). Tolling applies
only in "extraordinary and carefully circumscribed
instances." Id. At 1057. Courts may allow
a claimant has received inadequate notice, . . . where a
motion for appointment of counsel is pending and equity would
justify tolling the statutory period until the motion is
acted upon, . . . where the court has led the plaintiff to
believe that [he] had done everything required of [him], . .
. [or] where affirmative misconduct on the part of a
defendant lulled the plaintiff into inaction.
Id. (quoting Baldwin Cnty. Welcome Ctr. v.
Brown,466 U.S. 147, 151 (1984)). Courts are not
forgiving where late filings are simply due to a plaintiffs
failure to exercise due diligence. Irwinv. Dep
't of Veterans Affairs,498 U.S. 89, 96 (1990). In
other words, to warrant equitable tolling, a plaintiff must
have exercised due diligence and his excuse for the delayed
filing must reflect "more than a garden variety claim of
excusable neglect." Battle v. Rubin, 121
F.Supp.2d 4, 8 (D.D.C. 2000) (citation and internal quotation
marks omitted). The burden of pleading and proving any excuse