Santana v. Wormuth ( 2023 )

Case: 22-50955 Document: 00516791582 Page: 1 Date Filed: 06/19/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-50955
FILED
June 19, 2023
____________
Lyle W. Cayce
Nancy Santana, Clerk
Plaintiff—Appellant,
versus
Christine Wormuth, Secretary U.S. Department of the Army,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:21-CV-745
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
This employment dispute between Plaintiff-Appellant Nancy Santana
and the U.S. Army, her former employer, was first brought before the Equal
Employment Opportunity Commission (EEOC). Santana now challenges the
district court’s holding that her appeal from the ruling of an Administrative
Judge (AJ) is untimely. Santana had 30 days from a “final [agency] action or
decision” to appeal. 29 C.F.R. §1614.402(a). An AJ’s decision becomes final
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50955
agency action if the agency fails to act within “40 days of receipt” of that
decision. 29 C.F.R. §1614.110.
The parties dispute when the clock began to run under 29 C.F.R.
§1614.110. The AJ’s decision was issued on January 8, 2020 and was available
to all parties through an online portal that day. The Army takes the position
that the EEOC received that decision on January 8, 2020, and thus had 40
days from then to act before the AJ’s decision became final agency action.
Santana notes, however, that she did not receive access to that online portal
until January 13, 2020. She thus contends that the clock for the AJ’s decision
to become a final agency action did not start to run until that date.
Reviewing this matter de novo, we affirm the district court. Walker v.
Beaumont Indep. Sch. Dist., 938 F.3d 724, 734 (5th Cir. 2019). The provision
in question, 29 C.F.R. §1614.110, pertains to when an AJ’s decision becomes
final agency action. That process specifically hinges on the agency’s failure to
act. The provision’s text as a whole—when read in context and with common
sense—dictates that “receipt of the administrative judge’s decision” refers
to the agency’s receipt. See Reed v. Taylor, 923 F.3d 411, 415 (5th Cir. 2019).
The EEOC’s ability to act on the AJ’s decision is not impacted by when
Santana received that decision. The AJ’s decision became a final agency
action on February 18, 2020. By not filing her appeal to the district court until
March 25, 2020—36 days later—Santana missed her deadline. See 29 C.F.R.
§1614.402(a).
Santana argues for estoppel on the basis of good faith, diligence, and
the COVID-19 pandemic. It is true that Santana discussed her good faith
cooperation and diligence at the district court, but she did not discuss the
impact of the pandemic in her briefing there. Santana’s argument regarding
her ability to file during the pandemic is plausible given the relevant time
frame, but the record provides no specific indication of how Santana was
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affected. We therefore decline to address it in the first instance as waived. See
Est. of Duncan v. Comm’r of Internal Revenue, 890 F.3d 192, 202 (5th Cir.
2018).
The district court’s judgment is AFFIRMED.
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