The Case of the Lawyer Who Filed Too Late

Abstract

This article previews the issues and arguments in Irwin v. Veterans Administration, on the Supreme Court’s 1990-91 appellate docket. The first issue the Court will address is whether the 30-day filing requirement under Title VII for employment discrimination claims brought by federal employees is jurisdictional, so that failure to meet this requirement bars a claim. If the 30-day filing requirement is not jurisdictional, as in non-federal employment discrimination cases, is the time limit subject to the doctrine of equitable tolling? That is, can a federal claimant be excused for failing to file on time because of various circumstances that made the filing difficult or impossible? The second issue is whether the running of this 30-day period begins from actual receipt of a notice of a right to sue or from constructive notice of the right to sue.

When a private person files a late claim under Title VII alleging employment discrimination, the claim is not automatically dismissed for tardiness. It is well established that private-sector Title VII claims are subject to the doctrines of waiver, estoppel, and equitable tolling. In other words, depending on the circumstances and the judge, it is possible for the procrastinating claimant to be forgiven the sin of delayed action.

Irvin v. Veterans Administration will answer the question whether government employees suing the federal government under Title VII are entitled to the same dispensation as their civilian counterparts. This, then, is the story of a lawyer who filed toolate and who seeks a kind of equal justice for government employee late filers.

There is a conflict among the circuits concerning the event that triggers the 30-day filing period. The Fifth Circuit holds that constructive notice of the right to sue, such as mere receipt in the lawyer's office, begins the applicable time period for filing a suit in district court. The Sixth and D.C. Circuits, on the contrary, have determined that actual notice to the claimant is the event that triggers the running of the 30-day period. Other circuits, such as the Seventh, Eight, and Ninth Circuits, have taken more forgiving approaches to construing what facts or series of facts constitute sufficient notice to trigger the 30-day filing period.T

he government contends that the characterization issue of actual or constructive notice is irrelevant, because under the Federal Rules of Civil Procedure service is made upon a party's representative, acting as an agent for the client. Therefore, under the provisions relating to government employee suits, notice is effective from the time of delivery to the attorney's office without regard to whether the lawyer actually reads the notice.

Irwin's lawsuit is fairly straightforward and basically requires the Supreme Court to determine whether Congress intended a separate filing deadline for government employees bringing Title VII discrimination claims. The case, of course, is of great importance for all federal employees who may need to avail themselves of these remedial statutes in prosecuting grievances against their federal employer.