Andrew Hofer v. Alan K. Campbell, Chairman, U. S. Civil Service Commission , 581 F.2d 975 ( 1978 )

Opinion for the Court filed by Senior District Judge DAVIES.

Dissenting opinion filed by WILKEY, Circuit Judge.

RONALD N. DAVIES, Senior District Judge:

This is an appeal from a judgment entered by the district court dismissing appellant’s complaint for lack of subject matter jurisdiction.

The appellant, Andrew Hofer, an employee of the Social Security Administration, Department of Health, Education and Welfare (Agency), of Hungarian descent, is a naturalized citizen of the United States. On June 21, 1972, appellant filed a formal administrative complaint with his employer pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., alleging discrimination based on national origin. The Agency, following a hearing by a Complaints Examiner, issued its final decision on March 19, 1974, adopting the recommended decision of the Examiner that “Hofer was not discriminated against on the basis of his national origin as alleged.”

The letter notifying appellant of the Agency’s decision advised him that:

If dissatisfied with this decision, Mr. Hofer may appeal by submitting his request in writing within fifteen (15) calendar days after receipt of this letter to the Board of Appeals and Review, U. S. Civil Service Commission, Washington, D. C. 20415. In the alternative, he may seek judicial relief by filing a civil action in an appropriate U. S. District Court within thirty (30) calendar days after receipt of this letter. Please note: If Mr. Hofer requests an appeal from the Civil Service Commission, his right to file a civil action will be preserved. In that case, he may file the civil action within thirty (30) calendar days after receipt of the Commission’s decision; or, if the Commission has not issued its decision, 180 calendar days after the date the Board of Appeals and Review accepted his request for appeal.

Appellant chose to pursue his administrative remedies and appealed to the Board of Appeals and Review (now Appeals Review Board) of the Civil Service Commission. On August 21,1974, the Board affirmed the final Agency decision. It also concurred with the recommended corrective action of the Complaints Examiner, adopted by the Agency, that “the Deputy Assistant Commissioner, along .with members of his staff make every effort to have the complainant placed in a comparable position in another area of the Social Security Administration where he will not come under the influence, supervision or control of any official of the Office of Public Affairs.” The Board’s decision notified appellant that:

Civil Service regulations provide that the Board’s decision is final and there is no right of administrative appeal. However, if the complainant is not satisfied with the Board’s decision in this case, he is authorized by section 717(c) of the Civil Rights Act of 1964, as amended by the Act of March 24, 1972, to file a civil action in an appropriate U. S. District Court within thirty (30) calendar days of his receipt of the Board’s decision in this case.

On September 19, 1974, appellant wrote the Appeals Review Board:

On August 28 I received a copy of the letter you sent on August 21 to Mr. Samuel Hoston of HEW, enclosing the Board’s decision in my case.

In this connection I would like to inform the Board that I have tentatively accepted a position, remaining in SSA’s Office of Public Affairs. I accepted this offer because the agency assured me that I will start with a clean slate, assuming some of the functions that have been taken away from me. I accepted this tentatively and with reluctance, because contrary to the Board’s decision that the agency place me elsewhere, the agency did not find another job for me but reassigned me to OPA. I was given the assurance that OPA will treat me fairly and equitably, and will let me function in a meaningful way. I accepted this offer in good faith, and presently I do not plan to pursue my complaint in the courts.

I consider the offer a good cause to postpone my pursuit of judicial remedy in the expectation that OPA will live up to its promise. This action on my part, however, is not to be construed a waiver of my right to pursue my complaint in the courts. In fairness, I would like to see how this works out for me, and will decide within a reasonable time what course to pursue. I will inform the Board my decision then whether to drop the complaint or revive it.

On June 16, 1975, appellant, unsatisfied with the Social Security Administration’s compliance with the Board’s decision, wrote the Civil Service Commission requesting review of the August 1974 decision. On September 2, 1975, the appellant was informed that his request to reopen and reconsider was denied. Within 30 days appellant filed this action in the district court.

Section 717(c) of the Act, 42 U.S.C. § 20006-16,¹ requires that an aggrieved employee must file a civil action within 30 days after receipt of notice of final administrative action. This limitation is jurisdictional. Richardson v. Wiley, 186 U.S.App. D.C. 309, 569 F.2d 140 (1977).

When appellant received the Board’s August 21, 1974, adverse decision holding that he had not been discriminated against on the basis of national origin, the 30 day jurisdictional period in which to file a civil action commenced. His election to accept that determination and to rely on the Board’s mandatory recommendations that the Social Security Administration take corrective action precludes an attempt, over a year later, to pursue judicial remedies. Appellant’s contention that the 30 day time limit did not commence until denial of his request of the Civil Service Commission to reopen and reconsider the Board’s decision was presented and rejected in Chickillo v. C. O., Naval Air Engineering Ctr., 406 F.Supp. 807 (E.D.Pa.1976), aff’d, 547 F.2d 1159 (3d Cir. 1977): Third, with respect to plaintiff’s request of the Civil Service Commission to reevaluate his case, if this Court were to accept such an argument, it would in effect deny finality to any decision of the Commission. The Fourth Circuit, in Clark v. Goode, 499 F.2d 130, 133-34 (4th Cir. 1974), pointed out the absurdity of such a result:

[A]n aggrieved claimant could revive at any time his claim, however stale, by the simple expedient of filing, as the plaintiff did in this case, a request to reopen. It would not matter that he may already have requested and been denied a reopening. Similarly, it would be of no moment that, after final action by the Commission either on his original claim or on his request to reopen, he had not filed suit within thirty days. That requirement could be frustrated merely by filing a new request to reopen, and when that was denied, suit could be filed. Such a result would thus mock the thirty-day limitation for the institution of the suit, incorporated in the statute, and would do violence to the obvious legislative purpose evident in the statute.

We agree. As aggrieved employee cannot provisionally accept the Board’s decision, await the outcome of mandated Agency corrective measures, and, if dissatisfied, request the Civil Service Commission to reopen and reconsider the decision and thereby revive his claim.

Appellant also challenges the dismissal for lack of subject matter jurisdiction when the complaint contained an alleged colorable constitutional due process denial. In Richardson v. Wiley, supra, where the complaint “alleged violations of section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the Fifth Amendment (emphasis added),” this court held, citing Brown v. GSA, 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), that “If Richardson has a judicial remedy here, it is under Title VII because it is settled ‘§ 717 of the Civil Rights Act of 1964, as amended, provides the exclusive judicial remedy for claims of discrimination in federal employment.’ ”

Affirmed.

1 . “Within thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Civil Service Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section ... an employee . . . if aggrieved by the final disposition of his complaint . . . may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.” Title VII, Civil Rights Act of 1964, as amended, § 717(c), 42 U.S.C. § 2000e-16(c).