FILED

United States Court of Appeals

Tenth Circuit

JUL 11 2002

PATRICK FISHER

Clerk PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ERNESTO L. MONTOYA,

Plaintiff - Appellant,

v. No. 01-1357

ELAINE L. CHAO, Secretary of

the United States Department

of Labor,

Defendant - Appellee.

Appeal from the United States District Court

for the District of Colorado

(No. 00-B-1942)

Barry Douglas Roseman of Roseman & Kazmierski, LLC, Denver, Colorado (Paul

A. Baca, Denver, Colorado, on the brief), for plaintiff-appellant.

Peter J. Krumholz, Assistant United States Attorney, Denver, Colorado (John W.

Suthers, United States Attorney, Denver, Colorado, with him on the brief), for

defendant-appellee.

Before LUCERO, HOLLOWAY, and MURPHY, Circuit Judges.

LUCERO, Circuit Judge.

Ernesto L. Montoya, formerly employed by the Mine Safety and Health

Administration ("MSHA"), appeals the district court's dismissal of his national-

origin and age discrimination claims against the MSHA for lack of jurisdiction,

pursuant to Fed. R. Civ. P. 12(b)(1), due to his failure to file his suit in a timely

manner. Montoya argues that the period of limitation prescribed by the Civil

Service Reform Act ("CSRA") for bringing an action in federal court is not

jurisdictional and that this limitations period should be equitably tolled to excuse

his late filing. We agree with Montoya that the period of limitation is not

jurisdictional and is subject to equitable tolling, but conclude that the district

court did not abuse its discretion in finding that Montoya failed to show that

equitable tolling is warranted in the present case. Exercising jurisdiction pursuant

to 28 U.S.C.  1291, we affirm.

I

Montoya was employed by the MSHA as a ventilation specialist but

resigned in May 1998 after his superiors began formal removal procedures,

claiming that he failed to perform his duties satisfactorily. Montoya appealed his

employer's actions to the Merit System Protection Board ("Board"), alleging

before the Board's Administrative Law Judge ("ALJ") that he was the victim of

both age and national-origin discrimination. The ALJ affirmed Montoya's

constructive termination in December 1998, and on appeal the Board affirmed this

decision in a final order issued in February 2000. Montoya sought timely review

of the Board's decision before the Equal Employment Opportunity Commission ("EEOC"), and on June 30, 2000, the EEOC affirmed the Board's order and

mailed a copy of its affirmance to Montoya. Montoya claims not to have received

a copy of the opinion until August 8, 2000, though he concedes he received

notification of the decision from his attorney on July 26, 2000.

According to Montoya, his attorney advised him on July 26, 2000, to

request an extension of the deadline to file suit in federal court from the EEOC

because that deadline was approximately a week away. The EEOC referred him

to the Civil Rights Center ("Center") of the Department of Labor, which Montoya

attempted to reach by telephone and later by letter. Montoya was eventually

informed by the Center that it did not have authority to grant such an extension.

Because he was no longer represented by counsel, Montoya proceeded to obtain a

pro se packet from the clerk's office of the district court but determined that he

was incapable of filling out the requisite paperwork without assistance. After

contacting a number of attorneys and legal aid organizations, none of whom

agreed to assist him, he eventually found an attorney to help him.

Montoya commenced the present action against the United States

Department of Labor in district court on September 29, 2000, alleging violations

of the Age Discrimination in Employment Act and Title VII of the Civil Rights

Act of 1964. Defendant moved to dismiss the complaint for lack of subject-

matter jurisdiction because the case was untimely filed, and the district court

granted the motion. This appeal followed.

II

We review a dismissal for lack of subject-matter jurisdiction de novo,

accepting the district court's findings of jurisdictional facts unless they are clearly

erroneous. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir.

2001).

Pursuant to the CSRA, a plaintiff alleging age and national-origin

discrimination has thirty days from receipt of a judicially reviewable decision to

bring an action in federal court:

Cases of discrimination subject to the provisions of section 7702 of

this title shall be filed under [the Civil Rights Act of 1964, the Age

Discrimination in Employment Act of 1967, or the Fair Labor

Standards Act of 1938] as applicable. 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 section

7702.

5 U.S.C.  7703(b)(2); see also 29 C.F.R.  1614.310(d). The parties agree that

Montoya had thirty days from his receipt of the EEOC's decision of June 20,

2000, to file the present action. As noted above, Montoya claims that he was not

informed of the decision until July 26, 2000, and that he did not actually receive a

copy of the decision until August 8, 2000. Even if we were to assume that the period of limitation did not begin to run until the August 8 date, Montoya's

September 29, 2000 filing of the present action was indisputably untimely.(1)

Defendant urges that the period of limitation set forth in  7703(b)(2) is

jurisdictional, meaning that a federal court has no power to hear a case that is

subject to the CSRA's time limits unless the plaintiff has filed his action in a

timely manner. Federal courts are courts of limited jurisdiction and, as such,

must have a statutory basis to exercise jurisdiction. See Morris v. City of Hobart,

39 F.3d 1105, 1111 (10th Cir. 1994). Jurisdiction is a threshold question that a

federal court must address before reaching the merits of a statutory question, even

if the merits question is more easily resolved and the party prevailing on the

merits would be the same as the party that would prevail if jurisdiction were

denied. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93Ä94 (1998)

(disapproving a federal court's exercise of "hypothetical jurisdiction" because "it

carries the courts beyond the bounds of authorized judicial action and thus

offends fundamental principles of separation of powers"). The burden of

establishing subject-matter jurisdiction is on the party asserting jurisdiction.

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

(1) We note that, absent evidence of the actual date of receipt, a three-day or

five-day presumption of receipt after mailing will ordinarily be appropriate. See

Lozano v. Ashcroft, 258 F.3d 1160, 1165 (10th Cir. 2001) ("Although this court

has never explicitly addressed the issue of mailing time presumptions, we have

implicitly sanctioned applying either a five-day or a three-day presumption.").

There is presently a "circuit split" with respect to the question whether the

period of limitation set forth in  7703(b)(2) of the CSRA is jurisdictional, but we

conclude that it is not and that it may be subject to equitable tolling. Key to the

resolution of this issue is the rebuttable presumption, mandated by the Supreme

Court in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), that

equitable tolling doctrine is applicable to suits against the United States where the

government has waived its sovereign immunity by statute.

Irwin involved a "mixed" discrimination claim, alleging discrimination

motivated by both race and physical disability. Id. at 91. Petitioner lost his

appeals before the EEOC, then filed a complaint in district court approximately a

month after the deadline established by 42 U.S.C.  2000e, et seq.-allegedly

because he never received notice of the final decision of the EEOC because his

lawyer was out of the country. Id. The Court granted certiorari to decide the

specific question whether the period of limitation in  2000e-16(c) was

jurisdictional or whether it could be equitably tolled. Id. at 92. However,

recognizing that this type of issue would arise repeatedly in the future with

respect to ascertaining Congress's intent in setting forth other such limitation

periods, the Court opined that "a continuing effort on our part to decide each case

on an ad hoc basis, as we appear to have done in the past, would have the

disadvantage of continuing unpredictability without the corresponding advantage

of greater fidelity to the intent of Congress." Id. at 95. The Court therefore

chose to "adopt a more general rule to govern the applicability of equitable tolling

in suits against the Government." Id.

Noting that time requirements in lawsuits between private litigants are

customarily subject to equitable tolling, the Court decided that a similar

presumption should apply in suits against the Government: "Once Congress has

made such a waiver [of sovereign immunity], we think that making the rule of

equitable tolling applicable to suits against the Government, in the same way that

it is applicable to private suits, amounts to little, if any, broadening of the

congressional waiver." Id. Characterizing the principle as a "realistic assessment

of legislative intent as well as a practically useful principle of interpretation," the

Court went on to state unequivocally, "We therefore hold that the same rebuttable

presumption of equitable tolling applicable to suits against private defendants

should also apply to suits against the United States. Congress, of course, may

provide otherwise if it wishes to do so." Id. at 95Ä96.

In the wake of Irwin, the First Circuit determined that the period of

limitation in  7703(b)(2) is not jurisdictional and is therefore subject to equitable

tolling. That court noted that the limitations period of  7703(b)(2) "is not only

similar to, but intersects with, the [Equal Employment Opportunity Act] provision

directly addressed in Irwin." Nunnally v. MacCausland, 996 F.2d 1, 3 (1st Cir.

1993); see also id. at 3 n.3 (explaining that the "interdependence of the two

statutes is rooted in their histories"). The First Circuit saw "no principled reason

for failing to extend Irwin's rebuttable presumption" to  7703(b)(2). Id. at 3.

Two other circuits have similarly concluded that the period of limitation in

 7703(b)(2) of the CSRA is subject to equitable tolling. See Blaney v. United

States, 34 F.3d 509, 512Ä13 (7th Cir. 1994) (stating that "a time limit like the one

in  7703(b)(2) is not jurisdictional," but providing no analysis); Williams-Scaife

v. Dep't of Def. Dependent Sch., 925 F.2d 346, 348 (9th Cir. 1991) (holding that

Irwin overruled all prior Ninth Circuit cases that denied equitable tolling under

statutes and regulations relating to federal employee discrimination suits,

including one which had denied tolling under  7703(b)(2)).

Standing alone is the Sixth Circuit, which compared the language of the

statute in Irwin with that of  7703(b)(2) and concluded that the mandatory nature

of the wording in  7703(b)(2)-"[n]otwithstanding any other provision of law

. . . any such case filed . . . must be filed within 30 days"-distinguished its time

limitation from the one in  2000e-16(c), which stated that "within thirty days of

receipt of final action taken by [the EEOC], an employee . . . may file a civil

action." See Dean v. Veterans Admin. Reg'l Office, 943 F.2d 667, 670 (6th Cir.

1991), vacated and remanded on other grounds, 503 U.S. 902 (1992); see also

King v. Dole, 782 F.2d 274, 276 (D.C. Cir. 1986) (deploying similar reasoning

and reaching the same result, but in a case decided before Irwin).

We find the Sixth Circuit's approach untenable in light of the Irwin Court's

reluctance to try to ascertain congressional intent by parsing too finely the

language of limitations statutes. Indeed, after quoting from  2000e, the Court

noted that "[t]he phraseology of this particular statutory time limit is probably

very similar to some other statutory limitations on suits against the Government,

but probably not to all of them." 498 U.S. at 94Ä95. As an example, the Court

quoted from another statute wherein Congress provided that "[e]very claim . . .

shall be barred unless the petition . . . is filed . . . within six years." Id. at 95

(quotation omitted). To the Court, even this unequivocally mandatory language

was not "enough to manifest a different congressional intent with respect to the

availability of equitable tolling." Id. We find that the language of  7703(b)(2)is

likewise insufficient to show that Congress intended to make equitable tolling unavailable to plaintiffs.(2) We thus conclude that the period of limitation set forth

in the CSRA,  7703(b)(2), is not jurisdictional.

III

We review a district court's decision whether to equitably toll a period of

limitation for abuse of discretion. See Arnold v. Air Midwest, Inc., 100 F.3d 857,

861 (10th Cir. 1996).

This Circuit has generally recognized equitable tolling of Title VII periods

of limitation only if circumstances "rise to the level of active deception which

might invoke the powers of equity to toll the limitations period." Cottrell v.

Newspaper Agency Corp., 590 F.2d 836, 838Ä39 (10th Cir. 1979). Equitable

tolling might be appropriate, for example, where a plaintiff has been "lulled into

inaction by her past employer, state or federal agencies, or the courts." Carlile v.

S. Routt Sch. Dist., 652 F.2d 981, 986 (10th Cir. 1981). "Likewise, if a plaintiff

(2) The Supreme Court has determined that a time limitation expressed in

"unusually emphatic form" will be sufficient to overcome the presumption.

United States v. Brockamp, 519 U.S. 347, 350 (1997). In Brockamp, a case

involving a period of limitation set forth in the tax code, the Court noted that

"[o]rdinarily limitations statutes use fairly simple language, which one can often

plausibly read as containing an implied `equitable tolling' exception," but that the

tax code provision at issue "sets forth its limitations in a highly detailed technical

manner, that, linguistically speaking, cannot easily be read as containing implicit

exceptions." Id.

We note also that Congress may, of course, overcome the presumption that

a period of limitation is subject to equitable tolling by stating directly in the

statutory language that equitable tolling will be unavailable to a plaintiff.

is actively misled, or has in some extraordinary way been prevented from

asserting his or her rights, we will permit tolling of the limitations period."

Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984) (quotations omitted). The

Supreme Court has similarly noted that "federal courts have typically extended

equitable relief only sparingly," and that

[w]e have allowed equitable tolling in situations where the claimant

has actively pursued his judicial remedies by filing a defective

pleading during the statutory period, or where the complainant has

been induced or tricked by his adversary's misconduct into allowing

the filing deadline to pass. We have generally been much less

forgiving in receiving late filings where the claimant failed to

exercise due diligence in preserving his legal rights.

Irwin, 498 U.S. at 96 (footnotes omitted).

Montoya proposes that equitable tolling in the instant case is appropriate

for two reasons. First, he suggests that tolling is warranted because he was

"misdirected by the federal agencies involved regarding the appropriate manner in

which to proceed to effectuate the timely prosecution of his claim in federal

court." (Appellant's Br. at 11.) The "misdirection" Montoya complains about

stems from the "bureaucratic `runaround'" he claims to have experienced after he

(1) contacted the EEOC asking for an extension of time and was referred to the

Civil Rights Center, (2) was forced to leave a telephone message for the director

of the Center and the message was never returned, and (3) sent a letter to the

Center only to then be told that it had no authority to waive the filing deadline.

(Id. at 4, 12Ä13.) Montoya himself acknowledges, however, that he "does not

assert that he was actively or intentionally misled by his employer or any of those

persons involved in the complex set of factual circumstances in this case

surrounding the timeliness of the filing of his Complaint." (Id. at 10.) Given

these facts, we conclude that the district court did not abuse its discretion in

finding that Montoya was not actively deceived and that equitable tolling of the

limitations period was not appropriate in the present case.

Montoya also argues that equitable tolling is warranted because he has a

limited education and little understanding of the law or of the "intricacies of the

procedural framework of Title VII actions or the appropriate manner in which to

file an action in federal court." (Id. at 13Ä14.) Again, we conclude that the

district court did not abuse its discretion in finding that Montoya's difficulties are

those faced by many plaintiffs who nonetheless manage to file suit in a timely

manner. To the contrary, the instant case is precisely the type of "garden variety

claim of excusable neglect" that the Supreme Court deemed unworthy of meriting

equitable tolling in Irwin. 498 U.S. at 96.

IV

The dismissal of Montoya's claims is AFFIRMED.