Margaret F. Johnson v. James Burnley, Secretary of the Department of Transportation , 887 F.2d 471 ( 1991 )

GORDON, Senior District Judge,

dissenting:

I believe that the time limit prescribed in Section 7703(b)(2) is mandatory and jurisdictional. Because Johnson failed to timely file her appeal from the Board’s decision, I would dismiss this appeal without addressing the merits on the ground that the district court lacked subject matter jurisdiction.

I.

The majority’s conclusion that the thirty day time limit prescribed in Section 7703(b)(2) is non-jurisdictional depends upon its finding that Congress intended for this provision to be interpreted in the same manner as the time limits contained in the anti-discrimination statutes incorporated into Section 7703(b)(2). In support, the majority cites Brock v. Pierce County, 476 U.S. 253, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986), and Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), to “illustrate that the mandatory language of Section 7703(b)(2) in no way compels [the court] to interpret the deadline as a jurisdictional barrier to tardy litigants.” Supra at 9. In my view, these cases are insufficient to permit this court to infer an intent contrary to the plain language of the statute.

At issue in Brock was whether the Secretary of Labor lost the power to recover misused CETA funds under Section 106(b) of the Comprehensive Employment and Training Act, which provided that the Secretary “shall” issue a final determination as to the misuse of CETA funds within 120 days after receiving a complaint, once the 120 day period expired. 476 U.S. at 255, 106 S.Ct. at 1836. The Court unanimously held that the 120 day time limit “does not, standing alone, divest the Secretary of jurisdiction to act after that time.” Id. at 266, 106 S.Ct. at 1842.

In so holding, the Court distinguished the case before it from Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), wherein it held that an action filed by a private plaintiff after the expiration of the 300 day time period provided in Section 706(e) of the Civil Rights Act of 1964 was jurisdictionally barred. First, the Court noted that Section 106(b) required the Secretary to resolve the entire dispute within 120 days. Because the statute required a task far more substantial than the mere filing of a complaint, the Court concluded that there was less reason to believe that Congress intended for the time limit to serve as a jurisdictional bar. In contrast, the Court stated that “legislatures routinely create statutes of limitations for the filing of complaints, and Congress’ intention to create a statute of limitations in Section 706(e) [in Mohasco ] was certainly unexceptional.” 476 U.S. at 261, 106 S.Ct. at 1839.

Second, the Court found that public rights were at stake to the extent that the Secretary’s delay prejudiced the rights of the taxpaying public rather than an individual plaintiff. In contrast, “Mohasco involved a private right of action, and the plaintiff’s failure to file a complaint prejudiced only that plaintiff.” Id.

In view of these facts, I contend that the analysis in Brock would give controlling weight to the literal meaning of statutory provisions prescribing deadlines for the filing of complaints which involve a private right of action.¹

In Zipes, the Court was asked whether the timely filing of an EEOC charge was a jurisdictional prerequisite to the bringing of a Title VII suit in federal court. The Court concluded that the provision granting federal courts jurisdiction under Title VII, which provided that charges of discrimination “shall be filed [with the EEOC] within one hundred and eighty days,” did not constitute a jurisdictional prerequisite to suit in federal court. The Court emphasized that “[t]he structure of Title VII, the congressional policy underlying it, and the reasoning of our cases all lead to this conclusion.” 455 U.S. at 393, 102 S.Ct. at 1132. However, I also find Zipes to be distinguishable from the present case.

First, the Court in Zipes noted that “[t]he provision specifying the time for filing charges with the EEOC appears as an entirely separate provision, and it does not speak in jurisdictional terms or refer in any way to the jurisdiction of the courts.” Id. at 394, 102 S.Ct. at 1133. In contrast, there is a clear relationship between the time requirement in Section 7703(b)(2) and the authority of the district court to hear the case, and, to the best of my knowledge, all courts rendering an opinion on the issue have held that this language plainly limits jurisdiction to those cases in which there has been a timely filing with a federal court. Hilliard v. United States Postal Service, 814 F.2d 325, 327 (6th Cir.1987); King v. Dole, 782 F.2d 274, 275-77 (D.C. Cir.) (per curiam), cert. denied, 479 U.S. 856, 107 S.Ct. 194, 93 L.Ed.2d 126 (1986); Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir.1986); Taylor v. Tisch, 686 F.Supp. 304, 307-08 (S.D.Fla.1988).

Second, the Court in Zipes stated that its interpretation of the statute vindicated the purpose served by the filing requirement, to give prompt notice to the employer. 455 U.S. at 398, 102 S.Ct. at 1135. Adopting the interpretation of the majority, however, would contravene the underlying purpose of the Civil Service Reform Act, which is to “reduce substantially both the amount of time consumed by the appellate process and the courts’ role in reviewing federal agencies’ decisions to discipline and dismiss their employees; these goals would be ill-served by a potentially limitless expansion of the length of the appellate process.” Devine v. White, 697 F.2d 421, 430 (D.C.Cir.1983) (footnotes omitted) (addressing Section 7703(b)(1)). Instead, the court should hold that the time limit of Section 7703(b)(2) is a jurisdictional prerequisite, which would accord with the objective of giving finality to the decisions of federal agencies.

Finally, the majority’s application of Zipes to the present case is inappropriate because the Court in Zipes was guided by legislative history which revealed the congressional intent, 455 U.S. at 394-95, 102 S.Ct. at 1133-34, and its result was foreshadowed by prior decisions, id. at 395-98, 102 S.Ct. at 1133-35. Yet, the majority recognizes that the legislative history accompanying Section 7703(b)(2) does not reveal any congressional intent, supra at 476-477, and cites no authority involving the filing of untimely petitions for judicial review by federal employees.

II.

Section 7703(b)(2) incorporates three anti-discrimination statutes. According to the majority, this fact, standing alone, evinces the congressional intent that the deadline contained in Section 7703(b)(2) and the time limits prescribed in the incorporated statutes are to be interpreted identically. Cf. King, 782 F.2d at 277. In particular, the majority contends that “Section 7703(b)(2)’s 30-day deadline would be construed as a jurisdictional requirement only if the 30-day filing deadline prescribed in 42 U.S.C. section 2000e-16(c) were also considered jurisdictional.” Supra at 477.

I disagree. Section 7703(b)(2) provides that ‘‘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 such section 7702” (emphasis added). This language is clearly mandatory and jurisdictional, and the quantum of “congressional intent” found by the majority is insufficient, in my opinion, to justify a conclusion to the contrary. It is well established that a court must not ignore the plain meaning of a statute “[ajbsent a clearly expressed legislative intention to the contrary.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980).

Moreover, the analysis undertaken by the majority in which it refers to analogous statutory provisions should be foreclosed by the “notwithstanding” language of Section 7703(b)(2). Under a plain language reading of this phrase, if it is to be accorded any meaning, it must stand for the proposition that Section 7703(b)(2) is not to be governed by analogous statutory filing periods incorporated therein. Taylor, 686 F.Supp. at 307. Any other reading would render this language mere surplusage.

But even if the court needs to turn “to other statutes for guidance in determining whether the deadline should be treated as a jurisdiction requirement,” supra at 477, I submit that Section 7703(b)(1) is the most analogous statute. King, 782 F.2d at 275; Taylor, 686 F.Supp. at 308. The majority concedes that the thirty day deadline of Section 7703(b)(1) is “virtually identical” to that of Section 7703(b)(2). Supra at 476 n. 5. The courts unanimously agree that the deadline in Section 7703(b)(1) is jurisdictional. Id. (citing cases). I feel no need to depart from this existing authority and would extend the reasoning to Section 7703(b)(2).

Accordingly, I respectfully dissent from the opinion of the majority and would dismiss the appeal for lack of jurisdiction.

1 . The Court in Brock also looked to the House and Senate Hearings and the Congressional Record to determine the jurisdictional effect of the 120 day limit, and concluded that interpreting the provision as a jurisdictional bar would contravene the policies that motivated the 1978 amendments to the Act. 476 U.S. at 262-65, 106 S.Ct. at 1840-42. The majority has decided against the plain meaning of Section 7703(b)(2) without the benefit of such legislative documentation.