Williams v. Court Services and Offender Supervision Agency for Dc

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
LINWOOD A. WILLIAMS, JR., )
)
Plaintiff, )
)
v. ) Civil Action No. 08-1538 (RWR)
)
COURT SERVICES AND OFFENDER )
SUPERVISION AGENCY FOR D.C. )
et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Pro se plaintiff Linwood A. Williams, Jr. has sued the Court
Services and Offender Supervision Agency for the District of
Columbia (“CSOSA”) and its former director, associate director,
and branch chief alleging sex discrimination and retaliation
under Title VII of the Civil Rights Act of 1964. The defendants
have moved to dismiss under Federal Rule of Civil Procedure
12(b)(6), arguing that Williams failed to timely file his
complaint. Because Williams failed to timely file his complaint
and no equitable relief from that failure is warranted, the
defendants’ motion to dismiss will be granted.1
1
The defendants have also moved to dismiss under Rule
12(b)(5) claiming that Williams failed to name and serve properly
the individual defendants in their individual capacities. Those
issues need not be addressed given the disposition of the motion
under Rule 12(b)(6).
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BACKGROUND
Williams served as a Supervisory Community Supervision
Officer with CSOSA. (Compl., Ex., Initial Decision at 1-2.)
After several years of employment, Williams began to file what he
termed whistleblower complaints against the agency, alleging
various violations of federal law. Williams alleges that after
he filed his complaints, the defendants denied him performance
awards, assigned him duties inconsistent with his experience and
grade, and placed him on a Performance Improvement Plan. (Compl.
at 3.) CSOSA issued a notice proposing Williams’ removal and
later terminated him. (Id., Ex., Initial Decision at 3-4.)
Williams appealed his termination to the Merit Systems Protection
Board (“MSPB”), raising several affirmative defenses including
gender discrimination and retaliation. (Id., Ex., Initial
Decision at 4.) An MSPB administrative judge affirmed the agency
action. (Id., Ex., Initial Decision at 1.) Williams then
petitioned the full MSPB board to reconsider the administrative
judge’s decision. The full board denied his petition on June 20,
2008. (Id., Ex., Final Order at 1-2.)
The order denying the petition notified Williams that he
could file a civil action in a United States district court
against the agency, and that if he chose to pursue such an
action, 5 U.S.C. § 7703(b) required him to file a complaint “no
later than 30 calendar days after [his] receipt of this order.”
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(Id., Ex., Final Order at 2.) Williams alleges that he received
the order on June 27, 2008. (Pl.’s Mem. of Law in Supp. of Pl.’s
Opp’n to Def.’s Mot. to Dismiss the Compl. (“Pl.’s Mem.”) at 3.)
On July 28, 2008, he filed in this court an improperly formatted
civil complaint and a petition to proceed in forma pauperis
(“IFP”), which was denied on August 5, 2008. (Id. at 5, Ex. 1,
Ex. 4.2) Williams filed a proper complaint on September 4, 2008
and paid the filing fee on September 5, 2008. (Id., Ex. 5.) The
defendants have filed a motion to dismiss, arguing that Williams
failed to timely file his complaint.3 (Defs.’ Mem. of Law in
Supp. of Their Mot. to Dismiss the Compl. at 8.)
DISCUSSION
In considering a motion under Rule 12(b)(6) to dismiss for
failure to state a claim upon which relief can be granted, a
court must construe the complaint in the light most favorable to
the plaintiff, Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002), and “the court must assume the truth of all well-pleaded
allegations.” Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C.
Cir. 2004). To determine if a complaint has failed to state a
2
Although the exhibits attached to Williams’ opposition are
not attached to or referred to in the complaint, considering them
will not convert the motion under Rule 12(d) to one for summary
judgment because they are judicially noticeable public documents.
See Savage v. Scales, 310 F. Supp. 2d 122, 129 n.8 (D.D.C. 2004).
3
Williams filed a motion for an extension of time to
supplement his response to the defendants’ motion to dismiss.
That motion will be granted nunc pro tunc.
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claim, a court may consider “the facts alleged in the complaint,
any documents either attached to or incorporated in the complaint
and matters of which [a court] may take judicial notice.” EEOC
v. Saint Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.
Cir. 1997). Pro se plaintiffs are afforded leniency, and a court
“must make a concerted effort to discern a cause of action from
the record presented if an action is in fact discernable.”
Howerton v. Ogletree, 466 F. Supp. 2d 182, 183 (D.D.C. 2006).
Employees may file a “mixed case appeal” to the MSPB by
combining an appeal of an adverse personnel action with a claim
that discrimination motivated the action. Butler v. West, 164
F.3d 634, 638 (D.C. Cir. 1999); 5 U.S.C. § 7702(a)(2). “[W]ithin
thirty days of receiving a final decision from the MSPB,” a
complainant may “appeal the entire claim (or any parts thereof)
to the appropriate district court.”4 Butler, 164 F.3d at 639
4
A 1991 amendment to the Civil Rights Act of 1964 changed
the period for a federal employee to file suit in district court
after an adverse EEOC decision from thirty to ninety days but did
not alter § 7703(b)’s thirty-day filing period after an adverse
MSPB decision. See P.L. 102-166. One court in this district
noted that the amendment “created a procedural anomaly that
[Congress] likely did not intend” but found it unnecessary to
reach the conclusion that the ninety-day period applied to both
EEOC and MSPB appeals. Becton v. Pena, 946 F. Supp. 84, 85-86
(D.D.C. 1996); see also Nunnally v. MacCausland, 996 F.2d 1, 3
n.3 (1st Cir. 1993) (“[I]n 1991, when Congress increased from 30
to 90 days the time allotted for judicial review under 42 U.S.C.
§ 2000e-16(c), it simply assumed that the new time limits would
apply to all federal employees with Title VII claims against the
federal government.”). The thirty-day period is clear and
unequivocal on its face, and resort to the legislative history to
resolve the procedural anomaly is disfavored. See Lamie v. U.S.
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(citing 5 U.S.C. § 7703(b); 5 C.F.R. § 1201.175; 29 C.F.R.
§ 1614.310(b)). The time period is tolled when a pro se
plaintiff files a complaint and motion to proceed IFP with the
Clerk’s Office, but it resumes running if the motion is denied.
Baker v. Henderson, 150 F. Supp. 2d 17, 21 (D.D.C. 2001); Simmons
v. Dennison, Civil Action No. 90-1885 (MB), 1991 WL 148544, at *1
(D.D.C. July 17, 1991).
The D.C. Circuit held in King v. Dole, 782 F.2d 274, 275-76
(D.C. Cir. 1986), that the thirty-day period in § 7703(b)(2) is
not subject to equitable tolling. However, in the Title VII case
of Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96 (1990),
the Supreme Court stated that deadlines for filing actions
against the federal government are presumptively subject to
equitable tolling. While the D.C. Circuit has not yet
reconsidered in the wake of Irwin its holding in King, many
circuits have held that the filing period for mixed-review cases
is now subject to equitable tolling because § 7703(b)(2) by its
Tr., 540 U.S. 526, 534 (2004) (“It is well established that ‘when
the statute’s language is plain, the sole function of the courts
–– at least where the disposition required by the text is not
absurd –– is to enforce it according to its terms.’” (quoting
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530
U.S. 1, 6 (2000))); United States v. Oregon, 366 U.S. 643, 648
(1961) (finding no need to resort to the legislative history of
statutory language that was clear and unequivocal on its face).
Moreover, Congress has not since amended the provision, even in
light of regulations promulgated after 1991 that reaffirm the
thirty-day period. See James v. United States, 888 F. Supp. 944,
947-48 (S.D. Ind. 1995). Therefore, the thirty-day period will
be applied here.
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text incorporates 42 U.S.C. § 2000e-16(c), the Title VII filing
deadline that Irwin held to be subject to equitable tolling.
See, e.g., Montoya v. Chao, 296 F.3d 952, 956-57 (10th Cir.
2002); Nunnally v. MacCausland, 996 F.2d 1, 4 (1st Cir. 1993);
Williams-Scaife v. Dep’t of Def. Dependent Schs., 925 F.2d 346,
348 (9th Cir. 1991).5 In light of Irwin, therefore, it appears
that a plaintiff who does not timely file his civil action under
§ 7703(b)(2) may demonstrate that the circumstances are
appropriate for equitable tolling of the deadline. See Becton,
946 F. Supp. at 87 (noting that a “court has the option of
extending the time limitation period in § 7703(b)(2) by . . .
applying the equitable tolling doctrine”).
“The claim of untimeliness is an affirmative defense that
must be pled by the defendant. The plaintiff shoulders the
burden, however, of proving facts which support a ruling that he
may equitably avoid the consequences of his untimeliness.” Tyler
v. Henderson, Civil Action No. 00-60 (RWR), 2001 WL 194930, at *4
(D.D.C. Feb. 22, 2001) (internal citation omitted). To invoke a
court’s power to toll a limitations period, a plaintiff must
demonstrate extraordinary circumstances. Strong-Fischer v.
5
But see Dean v. Veterans Admin. Reg’l Office, 943 F.2d
667, 670 (6th Cir. 1991) (reasoning that § 7703(b)(2) does not
incorporate the provisions of Title VII that Irwin held were
subject to equitable tolling because § 7703(b)(2) applies
“[n]otwithstanding any other provision of law”), vacated and
remanded on other grounds, 503 U.S. 902 (1992).
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Peters, 554 F. Supp. 2d 19, 24-25 (D.D.C. 2008). A pro se
plaintiff seeking to invoke equitable tolling is not relieved of
the burden to make this showing. See Wilkins v. Daley, 49 F.
Supp. 2d 1, 2-3 (D.D.C. 1999).
Equitable tolling is appropriate where a plaintiff can
demonstrate that he acted diligently to preserve his claim. See
Koch v. Donaldson, 260 F. Supp. 2d 86, 90 (D.D.C. 2003). In Cox
v. Consol. Rail Corp., 557 F. Supp. 1261, 1263 (D.D.C. 1983), the
plaintiff filed a complaint alleging a violation of Title VII
within the requisite ninety-day time period, but the Clerk
rejected the complaint for failure to comply with the local rules
requiring that the complaint be signed by counsel, include the
residence of the plaintiff, and include a caption describing the
nature of the action. On the same day that the plaintiff filed
the defective complaint, he mailed to the defendant and the
defendant’s counsel a copy of the complaint, which was “virtually
identical to that eventually accepted by the Clerk[.]” Id. at
1263-64. The plaintiff filed his properly drafted complaint six
days late, but the court equitably tolled the filing deadline on
the ground that the defendant had not been prejudiced by the
delay because the defective complaint provided adequate timely
notice of the plaintiff’s claims to the defendant. Id. In
Baker, 150 F. Supp. 2d at 20, a pro so plaintiff filed with the
Clerk’s Office a motion to proceed IFP before her ninety-day
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filing period expired. The court denied the plaintiff’s motion
three months later but misplaced the file and did not send her
notice of the denial. One month later, the plaintiff visited the
courthouse to ask about the status of her request, and the
Clerk’s Office located her file and informed her that the court
had denied her request. The plaintiff paid the filing fee and
filed her complaint seven days after receiving notice from the
Clerk’s Office, and the court equitably tolled the filing
deadline on the ground that the plaintiff had diligently pressed
the action. Id. at 22.
Here, Williams filed a motion to proceed IFP on July 28,
2010, the last day of the filing period.6 This tolled the filing
period until he received notice that leave to file was denied.
Williams implies that he received notice of the August 5, 2008
denial on September 4, 2008, citing a September 4 date stamp on
that Order. (Pl.’s Mem. at 3, 5, Ex. 4.) However, the date
stamp does not support Williams’ receipt of notice on that date.
Rather, he attached a copy of the Order as an exhibit to the
complaint he filed on September 4, and the Clerk’s Office date
stamped it as the first page of the attachment. (See Compl.,
Ex.) Because Williams provides no other evidence of when he
6
Assuming that Williams received notice of the MSBP’s final
order on June 27, 2008 as he claims (Pl.’s Mem. at 3), the
thirty-day filing period expired on July 28, 2008, not July 27,
2008, which fell on a Sunday. See Fed. R. Civ. P. 6(a)(1)(C).
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received actual notice of the denial, he is presumed to have
received notice on August 8, three days after the Clerk posted
the order denying leave to file. See Baker, 150 F. Supp. 2d at21 n.3 (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147,
148 n.1 (1984), and earlier version of the current Fed. R. Civ.
P. 6(d)). The filing period resumed running on that day and
expired on August 11, 2008, since Williams filed the motion to
proceed IFP on the last day of the filing period.7
Williams provides no explanation for why he waited an
additional twenty-four days to refile his complaint. While
Williams argues that “his repeated visits to the clerk[’s] office
for revisions of the instant complaint” demonstrate his diligence
(Pl.’s Suppl. Resp. to Defs.’ Mot. to Dismiss the Compl. at 3),
he does not assert that he made any of these visits to the
Clerk’s Office between receiving notice of the August 5, 2008
denial and refiling his complaint on September 4, 2008. Unlike
in Cox or Baker, where courts excused respectively six and seven-
day delays in relation to a ninety-day filing period, Williams
delayed for twenty-four days, taking nearly twice the statutorily
allowed period to file his complaint. Cf. Brooks v. Derwinski,
741 F. Supp. 963, 964-65 (D.D.C. 1990) (equitably tolling
limitations period when pro se plaintiff filed complaint one day
7
August 8, 2008 fell on a Friday, so the period continued
to run until the next Monday. See Fed. R. Civ. P. 6(a)(1).
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after the expiration of a thirty-day filing period). Also unlike
in Cox, there is no evidence that Williams provided the
defendants actual notice of his claim before the filing period
expired. Without evidence or even an explanation that supports
the notion that he diligently pressed his claim between the time
the tolled filing period resumed running and the time he properly
filed his complaint, Williams has not satisfied his burden to
show that he should equitably avoid the consequences of his
untimeliness. See Wilkins, 49 F. Supp. 2d at 2-3 (refusing to
invoke equitable tolling where pro se plaintiff offered “no
evidence that plaintiff acted diligently to preserve her claim”).
The defendants’ motion to dismiss therefore will be granted.
CONCLUSION
Williams did not timely file his complaint, and he has
failed to demonstrate an entitlement to equitable tolling, even
when his filings are read with the leniency accorded a pro se
plaintiff. Accordingly, the defendants’ motion [7] to dismiss
will be granted. An appropriate Order accompanies this
Memorandum Opinion.
SIGNED this 25th day of March, 2011.
__________/s/_______________
RICHARD W. ROBERTS
United States District Judge