Gantt v. Mabus , 857 F. Supp. 2d 120 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IBEN GANTT,
Plaintiff,
v. Civil Action No. 11-1392 (JDB)
RAY MABUS,
Secretary of the Navy,
Defendant.
MEMORANDUM OPINION
Plaintiff Iben Gantt brings this action against defendant Ray Mabus, Secretary of the
Navy, for discriminatory and retaliatory employment practices under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Now before the Court is the Secretary’s
motion to dismiss or, in the alternative, for summary judgment. Upon consideration of the record
and for the reasons stated below, the Court will grant defendant’s motion for summary judgment.
I. Background
Gantt was hired in 2003 by the Naval Research Laboratory (“NRL”) as a security guard.
Compl. ¶ 5 [Docket Entry 1]. Subsequently, he received security clearance, which was then
rescinded due to concerns with Gantt's financial situation. Id. ¶ 6. Although he remained at NRL
despite having his clearance revoked, in 2005 Gantt was involuntarily transferred to the Navy
Yard because he did not have the required security clearance. Id. ¶ 8. Gantt claims that he was
eligible to be reconsidered for a Secret security clearance in April 2005, and such clearance was
granted in 2006. Id. ¶ 9. The Department of the Navy contacted Gantt in January 2009 and
offered him one of two open positions at NRL. Id. ¶ 11. Gantt expressed concern that he would
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not be selected because of his prior history with NRL. Id. According to Gantt, the selection
agent had assured him that there would be no problem and that the NRL security manager,
Barton Bodt, had approved the appointment. Id. Gantt would be required to obtain a Top Secret
security clearance for the new position. Id. ¶ 12. At the time, Gantt had only a Secret clearance.
Id. ¶ 13. NRL later refused to sponsor Gantt’s application for the required clearance, claiming
that he had lied on the application for the background investigation. Id. ¶ 19. Hence, the new job
and accompanying promotion were rescinded. Id. ¶ 16.
Gantt, who is black, alleges that NRL’s refusal to sponsor his application for a Top Secret
clearance was discriminatory, and contends that a white officer had been selected for the
promotion and position, and was given the opportunity to apply for a Top Secret security
clearance. Id. ¶¶ 15-16. Gantt also claims that the denial of a promotion and refusal to hire was in
retaliation for his participation in a coworker’s complaint before the Equal Employment
Opportunity Commission ("EEOC"). Id. ¶¶ 10, 21.
On June 22, 2009, Gantt filed a Formal Complaint of Employment Discrimination
alleging discrimination and retaliation based on the rescission of his promotion and position.
Mem. P. & A. Supp. Def.’s Mot. Dismiss or for Summ. J. at 1 [Docket Entry 3] (“Def.’s Mot.
Summ. J.”). On July 17, 2009, the Secretary dismissed Gantt’s complaint, having concluded that
it involved security clearance determinations that could not be reviewed through the EEOC
complaint process. See Dismissal of Formal Complaint for Discrimination, Def.’s Mot. Summ.
J., Ex. 2. On the same day, the Secretary faxed a copy of the Final Agency Decision (“FAD”) to
Gantt’s listed representative, attorney Clarissa Edwards.1 Id. Gantt received a copy of the FAD by
1
The documents in the record refer to "Clarissa Thomas Edwards" or some variation
thereof, without any consistency. Because many of the relevant documents discussed herein refer
to Gantt's attorney as "Clarissa Edwards," the Court will do the same.
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certified mail on July 21, 2009. Gantt Aff. ¶ 7. The FAD stated that Gantt could appeal to the
EEOC within thirty days of receipt of the decision or could file a civil action within ninety days
of receipt of the decision. Gantt filed a Notice of Appeal with the EEOC on August 20, 2009,
thirty-four days after Gantt's attorney received the FAD. Def.’s Mot. Summ. J. at 2.
On April 28, 2011, the EEOC dismissed the appeal as untimely, noting that Gantt failed
to provide an adequate justification for extending the time limit for filing his appeal. Def.’s Mot.
Summ. J., Ex. 7. Gantt then filed this action alleging that the Secretary engaged in discriminatory
and retaliatory employment practices in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e et seq. The Secretary has now filed a motion to dismiss or for
summary judgment, on the basis that Gantt has failed to exhaust his administrative remedies. He
also argues that equitable tolling of the appeals deadline is unwarranted. Gantt opposes this
motion, arguing that dismissal of the appeal below was improper because the appeal was in fact
timely filed and, in any event, that the faxed FAD was improperly received by his attorney
because it was illegible.
II. Standard of Review
Because the parties have presented -- and the Court has considered -- matters outside the
pleadings, the Court will analyze the Secretary’s motion as one for summary judgment. See Fed.
R. Civ. P. 12(d). Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
appropriate “if the pleadings . . . and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Material facts are those that “might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial
burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
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477 U.S. 317, 322 (1986). The moving party may successfully support its motion by identifying
those portions of "the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of motion
only), admissions, interrogatory answers, or other materials," which it believes demonstrate the
absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1); see Celotex, 477 U.S. at
323.
In determining whether there exists a genuine dispute of material fact sufficient to
preclude summary judgment, the court must regard the non-movant's statements as true and
accept all evidence and make all inferences in the non-movant's favor. See Anderson, 477 U.S. at
255 (1986). A non-moving party, however, must establish more than the "mere existence of a
scintilla of evidence" in support of its position. Id. at 252. The party opposing a motion for
summary judgment “may not rely merely on allegations or denials in its own pleading; rather, its
response must -- by affidavits or as otherwise provided in this rule -- set out specific facts
showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). The nonmoving party must do more
than simply “show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). By pointing to the absence of
evidence proffered by the non-moving party, a moving party may succeed on summary judgment.
Celotex, 477 U.S. at 322. Moreover, "if the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations
omitted). Summary judgment, then, is appropriate if the non-movant fails to offer "evidence on
which the jury could reasonably find for the [non-movant]." Id. at 252.
III. Discussion
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A federal employee bringing a lawsuit under Title VII of the Civil Rights Act is generally
required to exhaust his administrative remedies. See Bowden v. United States, 106 F.3d 433, 437
(D.C. Cir. 1997); see also Hines v. Bair, 594 F. Supp. 2d 17, 22 (D.D.C. 2009) (“Before filing a
Title VII suit [against a federal agency], a federal employee must timely pursue [his]
administrative remedies, following the requirements set forth in 29 C.F.R. § 1614.”). Failure to
do so will ordinarily bar a judicial remedy. The exhaustion requirement provides the EEOC the
opportunity to investigate and “serves the important purpose of giving the charged party notice of
the claim and ‘narrow[ing] the issue for prompt adjudication and decision.’” Park v. Howard
Univ., 71 F.3d 904, 907 (D.C. Cir.1995) (quoting Laffey v. Northwest Airlines, Inc., 567 F.2d
429, 472 n.325 (D.C. Cir.1976)).
Gantt had two appeal choices following the receipt of a FAD. Within thirty days of
receipt, he could have appealed the decision to the EEOC Office of Federal Operations. If a
complainant is represented by an attorney, the thirty day time period is measured from the
attorney's receipt of the FAD. See 29 C.F.R. § 1614.402(a). “If the complainant is represented by
an attorney of record, then the [thirty] day time period . . . shall be calculated from the receipt of
the required document by the attorney.” 29 C.F.R. § 1614.402(b). Alternatively, a complainant
can file a civil action within ninety days of receipt of the FAD. See 29 C.F.R. § 1614.407(a). “If
a plaintiff misses both deadlines, his complaint is time-barred and subject to dismissal.” Miller v.
Rosenker, 578 F. Supp. 2d 67, 70 (D.D.C. 2008). More than ninety days elapsed in this case
between Gantt’s receipt of the FAD and the filing of this complaint. “Therefore, for the Plaintiff
to have timely filed his claim in federal court, his administrative appeal with the EEOC must
have been timely filed.” Id.A. Exhaustion
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Gantt appealed the FAD thirty-four days after his attorney was faxed the notice, but thirty
days after he received the letter himself by certified mail. Gantt claims that the relevant time
period should be calculated from his receipt of the FAD, because either (1) his attorney was not
representing him at the time that the FAD was issued or (2) the facsimile sent to his attorney was
illegible upon receipt and so it should not constitute notice. Pl.’s Opp’n to Def.’s Mot. Summ. J.
at 6 [Docket Entry 5] (“Pl.’s Opp’n”).
1. Representation and Notice
Gantt contends that because his attorney, Clarissa Edwards, never filed an Entry of
Appearance, she was not his “attorney of record” at the time the FAD was issued and, hence,
calculating the receipt of the FAD from the date she received the facsimile is improper. Id.However, as the Secretary rightly points out, Gantt does not cite to any rule or regulation
requiring that an attorney of record file a formal Entry of Appearance. See Def.’s Reply to Pl.’s
Opp’n at 3 [Docket Entry 6] ("Reply"). Indeed, a formal Entry of Appearance is not necessary by
a representative for a EEO complainant; only written notice is required. See 29 C.F.R.
§ 1614.605. Gantt provided the required written notice when he indicated that he was
represented by Edwards, both on his Formal Complaint of Employment Discrimination and on
his Notice of Appeal to the Equal Employment Opportunity Commission. See Def.’s Mot.
Summ. J., Ex. 1, Ex. 3 [Docket Entry 3-1]. On both forms he provided her name, address, and
phone number. In response to the question “Is your representative an attorney?” on the Formal
Complaint, he checked "yes". Id., Ex. 1. On the Notice of Appeal, Gantt filled out the section
marked “Attorney name” with Edwards’s name. Id., Ex. 3.
Gantt also claims that Edwards told the EEOC that she had not been “retained” by him
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for these matters and so should not have been considered his attorney of record. Pl.’s Opp’n at 5.
In support of this contention, Gantt points to an email sent by Edwards to Ray Goldstein,
Counsel for the Navy. Id., Ex. 8. However, this email does not support Gantt’s argument that he
did not retain Edwards for the EEOC proceedings; indeed, in this email, Edwards discusses filing
motions and makes reference to emailing and mailing information to opposing counsel. Id.Moreover, while Edwards mentions difficulties with her fax machine, she does not claim in the
email that she failed to receive any faxes. Id.The record is replete with instances where Edwards held herself out as Gantt's
representative both in early attempts to resolve his dispute informally, and throughout the EEO
process. In a letter dated April 4, 2008, and on letterhead from “The Law Office of C. Thomas,
Chartered,” Edwards wrote: “Please note that our office represents Iben Gant [sic] regarding his
grievance.” See Pl.’s Opp’n, Ex. 1. Later, Edwards sent another letter on the same letterhead,
titled “RE: Rescinding of Promotion” and stating, “Please note that our office represents Iben
Gant [sic].” Letter from Clarissa Edwards, Esq., to Captain Paul Stewart, Commanding Officer
of the Naval Research Laboratory (March 10, 2009) [Docket Entry 3-5]. Edwards participated in
mediations, see “EEO ADR Meeting Points” [Docket Entry 3-7], and attended Gantt’s final EEO
Counselor interview, see Def.’s Mot. Summ. J., EEO Counselor’s Inquiry Report [Docket Entry
3-8]. And although Gantt did sign the Formal Complaint himself, he listed Edwards as his
attorney on that document. See id., Ex. 1.
There is no evidence that Gantt at any time sent written notice, as required, either
appointing new representation or removing Edwards as his representative. See 29 C.F.R.
§ 1614.605(d) (“Unless the complainant states otherwise in writing, after the agency has received
written notice of the name, address and telephone number of a representative for the
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complainant, all official correspondence shall be with the representative with copies to the
complainant.”) (emphasis added). Gantt only indicates in an email that he has designated Doryce
Moore as an “addition[al] representative,” Pl.’s Opp’n, Ex. 4, although Edwards continued to be
listed as his designated representative, included on correspondence, and involved in setting
schedules and filing briefs.
Gantt does contend in an affidavit that he "originally retained" counsel "to represent [him]
in a grievance and several issues that [he] had against the agency." Gantt Aff. ¶ 1. Gantt does not
indicate what these "several issues" could be, but as previously noted, both Edwards and Gantt
held Edwards out as Gantt's representative and attorney during the grievance, but also throughout
the EEO proceedings. Gantt stated that he originally met with the EEO officer himself, and filed
the informal and formal complaints on his own. But Gantt listed Edwards as his attorney, and
she attended Gantt's final meeting with his EEO counselor. Gantt also cryptically states that he
"did retain counsel for the same until sometime on or about when the Motion to Dismiss had
been filed." Gantt Aff. ¶ 6. It is unclear what "Motion to Dismiss" Gantt's affidavit references,
but the Court construes it as referring to the underlying EEOC proceedings and the “Agency
Response Brief in Support of Dismissal,” filed by Ray Goldstein, counsel for the Naval District
of Washington, in response to Gantt's appeal of the FAD.2 See Def.’s Mot. Summ. J., Ex. 4.
It appears that Gantt, through his affidavit, attempts to raise a dispute as to whether
2
The Court draws this inference in part because it is most favorable to plaintiff. Further, Gantt
notes that: “After the motion to dismissal (sic) was filed by defendant, counsel was retained by Iben Gant
to represent him in the instant formal matter.” Pl.’s Opp’n at 5. While “the instant formal matter” would
seem to refer to this civil suit, that would be an illogical reading of the facts. Gantt’s counsel submitted
and signed Gantt’s Complaint, and so Gantt must have retained her prior to the Secretary’s motion to
dismiss in this civil action. The phrase “motion to dismissal” instead supports the reading that Gantt
refers to the “Agency Response Brief in Support of Dismissal” filed in response to Gantt’s EEOC appeal.
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Edwards had been retained for the EEOC proceedings. However, a review of the record
indicates that a "genuine dispute" over this fact is completely lacking. In order to defeat
summary judgment, the dispute over a material fact must be “genuine”; a dispute is "genuine" if
“a reasonable jury could return a verdict for the nonmoving party.” Galvin v. Eli Lilly and Co.,
488 F.3d 1026, 1031 (D.C. Cir. 2007) (quoting Anderson, 477 U.S. at 248 (1986)). A non-
movant cannot create such a factual dispute by asking the court to draw inferences contrary to the
evidence. Matsushita Elec. Indus. Co., 475 U.S. at 586–87. Based on the overwhelming
evidence in the record, there is no genuine dispute of fact such that a reasonable fact finder could
conclude that Edwards was not representing Gantt when the FAD was delivered.
Notwithstanding Gantt’s affidavit to the contrary -- which -- even when construed in the most
favorable light to Gantt, remains vague and unclear, Gantt does not dispute that he had
designated Edwards as his attorney and that she was his attorney at the time the FAD was
received. All other evidence indicates that Edwards was acting as Gantt’s attorney both prior to
and throughout the EEOC proceedings. See Bant v. Bd. of Trs. of Univ. of Ill., No. 05-2132,
2006 WL 3386732 at *4 (C.D. Ill. Nov. 21, 2006) (noting in a similar dispute that the Court need
not “determine the parameters of the relationship between [the attorney] and Plaintiff,” only that
the attorney “was Plaintiff’s ‘designated attorney’ for the purposes of notification”).
Whether Gantt had a retainer agreement or other fee arrangement with Edwards is not at
issue. Here, the only relevant question in measuring the timeliness of Gantt's appeal is whether
he designated Edwards as his representative, indicating that she should receive notice on his
behalf. Although the Secretary also mailed Gantt a copy of the FAD, that act is not evidence --
as Gantt suggests -- that the Secretary believed Gantt was representing himself, but instead
indicates that the agency was complying with its own notification requirements. See 29 C.F.R.
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§ 1614.605(d) (“[S]ervice of all official correspondence shall be made on the attorney and the
complainant . . . .”)
2. Adequacy of Notice
Even assuming that Edwards was the proper recipient of the FAD for measuring the
timeliness of appeal, Gantt argues that the faxed FAD should not constitute sufficient notice or
service because “most of the pages were [not] legible and not visible.” Pl.’s Opp’n at 6. He does
not contend that Edwards failed to receive the fax or that she did not know its subject matter. To
the contrary, Gantt concedes that Edwards received the fax but argues, without any
substantiation, that the fax was “not legible and had to be discarded.” Pl.’s Opp’n at 6.3 Among
Gantt’s exhibits is a fax transmission, submitted as an intended exemplar of the quality of faxes
from Edwards’s fax machine. See Pl.’s Opp’n, Ex. 9.
The initial burden rests with the Secretary to provide proof of service. See Celotex, 477
U.S. at 322 (noting that the party moving for summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of material fact). The Secretary points to the fax
confirmation page to demonstrate that the fax was successfully transmitted on July 17. Def.’s
Mot. Summ. J., Ex. 2. This confirmation strongly implies that the document at issue was likely
received, as the fax confirmation cover page states: "Here is the letter dismissing Iben Gantt's
formal complaint of discrimination." Id.; see also Laouini v. CLM Freight Lines, Inc., 586 F.3d
473, 478–79 (7th Cir. 2009) (observing that a fax confirmation is “strong evidence of receipt”).
However, more significantly, Gantt does not dispute that his attorney received the fax, and does
not dispute that the subject matter of the fax was clear, even though he claims that there were
3
The Secretary notes that earlier in the appeal process Gantt claimed that only “several pages”
were not legible, but he now claims it is "most" pages. See Reply at 7; Complainant’s Br. in Supp. of
Appeal at 3 [Docket Entry 3-3].
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pages from the fax that were either unclear or illegible and that the fax was ultimately discarded.
See Pl.’s Opp’n at 6.
Gantt’s "example" of an illegibly received fax provides him no help. Assuming that the
discarded fax was of the same quality as the one submitted as an exhibit to Gantt's pleadings, the
fax -- while admittedly not the best quality -- is still readable and the character of the message
unambiguous. Cf. Moeslein v. F.A.A., 331 F. App'x 752, 754 (D.C. Cir. 2009) (noting that
despite typographical errors in his name and certificate number, plaintiff had notice that the
complaint was directed at him); Lucht v. Encompass Corp., 491 F. Supp. 2d 856, 865 (S.D. Iowa
2007) (noting that while typographical errors in the EEOC notice were “puzzling,” the document
as a whole was sufficiently coherent to give notice despite claimant’s assertion that she did not
understand what the notice meant).
The evidence in the record indicates that the parties communicated by fax a great deal in
discussing Gantt’s grievance. See Pl.’s Opp’n, Ex. 1 (April 4, 2008 letter from Edwards
regarding Gantt’s grievance said to be transmitted “by fax” to the opposing parties); Pl.’s Opp’n,
Ex. 2 (fax cover page and the first page of a letter sent on March 13, 2009 from the Department
of the Navy to Edwards); Def.’s Mot. Summ. J., Ex. 6-1 [Docket Entry 3-4] (fax cover pages
showing information received by the Secretary on May 4, 2009, from The Law Office of C.
Thomas, regarding Gantt); Def.’s Mot. Summ. J., Ex. 10 [Docket Entry 3-7] (document titled
“EEO ADR Meeting Points,” faxed April 28, 2009 from the Law Office of C. Thomas). The only
communication Gantt has brought forth regarding possible problems with the fax machine was a
September 22, 2009 email between Edwards and Goldstein, noting problems with Edwards' fax
machine. See Pl.’s Opp’n, Ex. 8. That was after the July 17, 2009 transmission of the FAD, and
no evidence in the record indicates, nor has Gantt argued, that the September 2009 problems with
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the fax machine existed in July 2009. Indeed, before the receipt of the FAD, all evidence in the
record indicates that communication by fax was acceptable and unproblematic. Accordingly, this
Court finds that there is no genuine dispute that Edwards was Gantt’s attorney on July 17, 2009,
that the time limit for filing an appeal began when she received the FAD by fax on July 17, 2009,
and that the faxed FAD constituted sufficient notice.
B. Equitable Tolling
Although Gantt does not explicitly argue that equitable tolling should apply, his pleadings
suggest an attempt to make such a claim.4 Gantt argues that even if this Court were to find that
the appeal was untimely, the Court should nonetheless allow the action to proceed because Gantt
made a “diligent effort to comply with the mailing requirement.” Pl.’s Opp’n at 8–9. The
Secretary maintains that equitable tolling is unwarranted in this situation. The Court agrees with
the Secretary.
The doctrine of equitable tolling customarily applies to filing requirements in civil
lawsuits between private litigants. See Honda v. Clark, 386 U.S. 484, 501 (1967) (discussing the
traditional equitable tolling principle) . The same standard applies to statutory time limits in
lawsuits against employers under Title VII. See Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393–94 (1982); Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 95–96 (1990). “Generally, a
litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). "The court's equitable power to toll the
4
Gantt points the Court to Bowden v. United States, 106 F.3d 433 (D.C. Cir 1997), for this
principle. Pl.’s Opp’n at 8. Bowden examined the defenses of equitable tolling and waiver. Because the
facts of this case do not lend themselves to a discussion of waiver, the Court will assume Gantt wishes
the Court to consider equitable tolling.
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statute of limitations will be exercised only in extraordinary and carefully circumscribed
instances." Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988).
Equitable tolling has been applied in limited situations, such as where a party, particularly
one proceeding pro se, was misled about the running of a limitations period. See Gray v. Phillips
Petroleum Co., 858 F.2d 610, 616 (10th Cir. 1988) (finding equitable tolling warranted when
employee was misled into a late filing by the actions of an adversary); Jarrell v. U.S. Postal
Service, 753 F.2d 1088, 1092 (D.C. Cir. 1985) (noting that the timely filing requirement may be
tolled due to justifiable reliance on the advice of a government officer); see also Bowden, 106
F.3d at 438. Courts have also granted equitable tolling when a complainant timely files a
technically deficient petition. See Mondy, 845 F.2d at 1057 (permitting equitable tolling when
plaintiff, bringing suit in forma pauperis, named the wrong government official in his original,
timely-filed petition). However, the courts are “less forgiving when the claimant has failed to
exercise due diligence in preserving his legal rights.” Irwin, 498 U.S. at 96. In Irwin, the
petitioner requested equitable tolling because his attorney was out of the country at the time the
EEOC notice was received by his office. Id. at 91. The Supreme Court found that this was, at
best, a “garden variety claim of excusable neglect” and equitable tolling did not extend to such
circumstances. Id. at 96.
So, too, the facts in this case support at most a case of excusable neglect. Gantt does not
claim, nor is there any evidence in the record, that his attorney failed to receive the document or
that the nature of the document was unknown to her. While Edwards may have preferred a more
easily readable copy, that does not mean that she failed to receive notice in her office on July 17.
Cf. Rowe v. Merit Sys. Prot. Bd., 802 F.2d 434, 437 (Fed. Cir. 1986) (finding that although the
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client relied on his attorney’s erroneous advice regarding the filing time period, strict adherence
to the time limit was proper). Having appointed an attorney as a representative, the claimant is
“bound by the consequences of his representative's conduct, which includes both [her] acts and
omissions." Id. The Court may have some sympathy for Gantt, but it concludes that he has not
demonstrated any extraordinary circumstances that stood in the way of him exercising his rights.
Accordingly, the Court declines to apply equitable tolling to Gantt's untimely appeal.
IV. Conclusion
Because there is no genuine factual dispute that Edwards was Gantt's attorney and
representative at the time the FAD was delivered, and that Gantt received proper notice and
service of the FAD, the time period for Gantt's appeal must be calculated from the receipt of the
FAD by his counsel on July 17, 2009. Hence, Gantt’s administrative appeal was untimely and
Gantt has failed to exhaust his administrative remedies. Accordingly, the Court will grant the
Secretary's motion for summary judgment. A separate order accompanies this memorandum
opinion.
SO ORDERED.
/s
JOHN D. BATES
United States District Judge
Dated: April 30, 2012
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