my name is kevin alec or i'm here on behalf of mr fenn yang stuart who's in the courtroom with us today the plaintiff appellant in this employment discrimination case we ask this court to reverse the district court for three reasons first the holding below conflicts with title seven which best the federal that is that even if you change your honor i think if if this were to go back there may be there's a there's a limitations period that didn't apply in this case that that also come from the  lose even if you lose this just believe it doesn't mean you lose well i think that's right although it's not just at the way he would also be on the second file and there was a filing fee paid in this case for four hundred dollars in the district court and he doesn't get that back up his case is dismissed if you have to go get time to look at it well i think that that gets to a couple of things and and first i think to take up to back up i want to make sure that to answer your question judge when to back up the purpose behind this scheme that we have there's a balance in the federal contacts between the administrative review process that is subsumed within the statutory one hundred a period as a matter of regulation the e e o c has said agencies can investigate beyond that one hundred eighty day period that congress put in the statute but you have this overlay between a regulatory review process and then what congress said that the employee had a right to sue under and i think that that that that bears emphasis here when congress extended title seven protection to the federal employment context in one thousand seven hundred two it did so specifically to create a judicial remedy before that extension in seventy two the civil rights act of one nine hundred sixty four won't invest judge when i appreciate the question because it gets right to the heart of what the p t o argued was should intimate that this or court's ruling or what the district court said there was some concern about which is the suggestion of gamesmanship in the administrative review process so i have two responses one is the gamesmanship concern i think is significantly overblown because as use as you said correctly claims that are amended new mistreated review process have to be like or related to the point right yes if it's not life or related to the original complaint in the administrative process it can't come in as an amendment during administrative process and but i think it's important it's not a controversial proposition of law here under the allegations in the lawsuit that are like or related to those administrative claims so in other words there's not actually in terms of for exhaustion purposes there's not an advantage that employee can leverage into waiting until one hundred seventy nine today the there may be various reasons why an employee adds administrative claims throughout the process it could be that the employer wants to give the agency an opportunity to look into it wants to notify them or it could be that the employee who is operating without the systems designed to operate doesn't actually understand that they don't have to file those claims that are likely related in the administrative process in order to ensure they can raise them in a federal lawsuit and they think they have to but they don't that's not what the rule requires and then in terms of the mechanics of this gamesmanship concern it's not like going and filing an administrative filing a complaint in a federal court we just show up in the clerk's office and say here's my amendment stamped file please the e e o c is explained in management directive one ten which is a user's manual for federal agencies to how they're supposed to operate in this process explains that what the employee has to do if they want to add claims turning existing review process is they write a letter to the agency's director and say these claims i'd like to add that you know director has to review them and determine whether they are in fact like or related to the original complaint if they are then those come in as amendments if they're not then they have to instruct that employ you have to go and start this process over at the beginning and go through informal counseling and it will proceed on its own investigation so i think he's the hypothetical of waiting to day one seventy nine it doesn't actually happen in practical effect because you have to go through this sort of screening process with the e o officer but in terms of practical effect there's not a reason to do that you don't have the argument seem to be the other way i mean if there is gamesmanship you want to go to the e e o c to make your your case the best case you can name here then you go to the district court what's where's it what's a district courts rule rol there what with the standard review but what did they do with the e e o c decision i think what they so that if there if there is a decision from the e e o c the district court does not give any deference to what they that's what i'm trying to go to right now but i think you're exactly right you're all you're getting another shot you know and i'm never met anybody that doesn't want to have several people looking at something in case the first one makes an error  a it's the particular division but using that same sort of acronym there so i think for that reason the gamesmanship some concerns are overblown but again i think it bears emphasis because the statute is something that controls in this context congress wanted to make sure that a federal employee had an avenue to get to court and and the statute language says that that employee has the right to file a civil action if the employer agency has not returned a final decision and it has been one hundred eighty days since the initial charge filed with the agency the filing of the initial charge is what starts the one hundred eighty day waiting period now my friend on the other side in the brief has suggested that there's some kind of ambiguity within the statute here because we can't say because the statute does not talk about the amendment during the administrative process i think actually this particular statute provision at two thousand six hundred c speaks only in terms of the civil right of action doesn't tether federal employees right to sue to the status of the agency's investigation except if the agency hasn't taken a final action and that you the word initial is by far the most important word in the statute for our purposes of this appeal the use of the word and mischel shows that congress was saying this one hundred ninety day waiting period which we want to institute to give an administrative review process but we want to make sure there is a finite period of time because federal employees need to be able to get to federal court under this to the seventy two extension of title seven initial shows that we're starting at the beginning of the process well then the next argument from the p t o is well the statute also says complaint and it says charge but we're not really sure which one is supposed to apply has become complaint is used throughout the regulations and charge could mean something else as a as an initial matter to that i would respond i don't think that we have to grapple with what the difference is between complaint and charge here if there is a difference it's a side note so that i would say courts have seem to freely use complain and charge back and forth and even the fact that the regulations speak in terms of complaint and don't mention charge i think shows that even that agency would think that a charge and a complaint can be the same thing but the one hundred eighty day waiting period only applies only starts excuse me with the filing of the initial charge at twenty twenty six of the p t s brief they suggest that the initial charge that's referred to in the statute is the first statement through which the employee identifies the discrimination we agree if that's true we think the case is over it should be reversed and sent back because there's no statute now the d c circuit has grappled with this one hundred a day provision albeit not in this particular factual context that we have here but has described the one hundred eighty day period as a congressional determination that providing prompt access to the courts in discrimination disputes is so important that the administrative process will be given only a finite time to deal one who think given dispute now is not to be sure mr stewart did not have to file his lawsuit after one hundred  is not so material that it needs an investigation as i said we agree you told me you can file how many of these i guess ten of them and twelve on day one seven and you are good because the next day that agency won't get investigate anything it goes straight on him to your bill in the fall i think some clarification on that as i tried to explain before judge when there's not it the motivation for doing on day one seventy nine doesn't hold up when you look and see what kinds of claims you can as the ad is amendments and like the related claims and the fact that you don't even have to raise like are related claims during the administrative process to be able to see you can still do it with or without with or without your service claims yes exactly judgments with or without that amendment on day one seventy nine those claims can come into the district court and so there's not a reason to do that now i think that what we're talking about if there is a there is a difficult scenario and i'll grant that it's difficult scenario for the employing agency because after the one hundred  eightieth day that employee now has a right to sue that congress gave under the statute but the agency under the excuse me under the e e o c has regulations has been granted an extension under the one eighty three sixty depending on you know the earlier of the two told mr stewart throughout this process he could file his lawsuit one hundred eighty days after the original complaint each time he sought to amend he was given a letter that explained these are claims what step it's like are related and these are ones that we're not going to except for an investigation at the end of th letters they said to him here are your rights under the statute you can continue to amend if you amend our investigation period can be extended to a maximum three hundred sixty days if you want if you have not yet received a final decision you may file a civil action sewer related to that question the three hundred sixty days is passed now yes so is your case moot i mean what i'm not sure what that does well under anybody's rule you can go to district court now i think that's right and even actually walt the wall of the lawsuit was while the motion to dismiss was pending in the district court the three sixty days expires you have a three hundred sixty day yes the three hundred sixty days did expire but even at another regulation came into effect when the p t o was made aware that mr stewart had filed his lawsuit and they noted that he had fathers lawsuit more than one hundred eighty days after the start of the process under the regulations as required they dismissed investigation so there are numerous ways that you can say looking at it right now in the moment we're standing in he could file his lawsuit a new now but so do we have a real controversy around was and i'm just not sure how this week we do we do it so he suffered an injury because his case he had a legal right of action and the district court dismissed his lawsuit when it shouldn't have and he's out before he did pay the four hundred dollars filing fee to start this case so he would have to go he'd have to suffer that loss and go back and refile refile again but i mean he suffered a legal wrong here by the district court saying your right to sue has invested yet when in fact ok thank you thank you certain do you have to consult with the solicitor general or anybody else about arguments you make i think the answer to that depends your honor well here you are asserting an argument that is contrary to the statute and it's contrary to your own regulations you don't ask us to defer any kind of deference because of course we couldn't give deference because it would go the other way i'm just wondering i mean i understand you i represent a state agencies along the to want to win i understand but i just don't and just just seems to be contrary to both the congressional what congress is said and what your own agency has said in formal regulation were number one the form of regulations are not an agency that i'm representing here i'm representing well but you but you are not free to disavow them no i i agree with that your honor and i would take some exception with respect to the fact that i want to win and  i was just i was trying to be even handed so so you're doing it not because you want to win but because you could because at the end this is this is a this is a position that the that that has been accepted by the district judges before  albeit firm by this court and it is something that the agency as a program matic matter considers important with respect to its ability to investigate claims investigat is at the very least ambiguous because it uses two different terms it uses the term complaint and then it uses the term charge and i think that that that that those two terms if we apply the can have strict construction that says that two different terms if congress used two different terms and has it means two different things that there is two different potential argument as to potential interpretations for those those two words one if you look at the and help me with the two different terms i see where it says initial charge right and then it says on a complaint of discrimination based on race color sex or national origin brought pursuant to subsection a of this section so there is a difference in the statutes mine or at least arguably that there is a difference between a complaint of discrimination which refers to the personnel action at issue the terminations the suspension the print the failure to promote and the charge which is the the statement made by an employee that they were the subject of discrimination but it uses the term issue joe when it uses that initial you're right but they made that distinction by giving the real definition initial seans and a charge can never be after a complaint is known to before but it worse it's at the same time because i'm charging for the first time in my complaint i can charge a complaint so how does that help you if i think it helps you if you distinguish between the terms again complaint charge there are a number of different times a what the congress wanted to do was to preclude the the the situation in which the one hundred ninety day period continued to re up after every time an employee made a new charge of discrimination that's different then an initial complaint of discrimination and then an amended complaint which is the situation we have here well that maybe maybe not but not in your regulations or i take it back not your regulation the regulation because they are there you say the agency is required to conduct an impartial and propre investigation of the complaint within one hundred eighty days of the provided up to three hundred sixty days to investigate the complaint complete its investigation yes except that the complainant may request a hearing with roman administrative judge on the consolidated cases seven to prowl a civil action in an appropriate united states district court after one hundred eighty days in the date of filing an individual or class complaint if an appeal has not been filed and final action has not been take nothing about the circumstances in which that would tend when an employee amends the complaint yeah but you go back to your original the statute itself as judge gregory is pointing out you talked about the initial charge which which seemed t that there can be amendment it certainly can be amendment of a complaint we were not disputing that and i think it also bears mentioning in this in this context that in no point during this argument or in any of our papers had we suggested that our attempts here was to prevent mr stewart from having his day court in no way shape or form our sole point here was to it require him to come back to court six months later to allow the agency to investigate the forty some odd allegations of discrimination that he articulated to the agency within that a person one hundred eighty the one hundred eighty day he cannot file in if he has amended his complaint is his is complained of discrimination before the agency he has to wait three hundred sixty days before you come to federal district more burdensome standard that so long as it relates to the same actors the same circumstances the same overall context or yes onus is like or really now you're saying it's stricter and that's what you're and but there is a decision ultimately comes from the agency that is if he does not go to federal district court yes to go home and there's no decision that is correct well there surely must be times when there's an agency decision and then he goes to federal district or of course of course you're i was explaining the circumstances in which there were and the individual goes to federal district court or the with the status right now is that after he went to federal debt or to everyone to federal district court the agency dismissed his underlying administrative complaint now if the if the plaintiff at that point had gone back to federal district court after the complaint you're out of luck and we would not make that argument well i don't know you may go on to bigger even bigger and better things in your colleagues arguing next time we'll say there's no provision the law for this we were following a law i mean i the the friendliest decision or argument that i'm going to may have total it's totally understandable that you would get annoyed at somebody who keeps making a remaking and again and again totally understandable but on the other hand endless loop telling them that you did you said that they used the agency record make this argument well i'm not sure that i can opine on an argument that it's not yet been made but what else are you backing off from that no to prevent the plaintiff from having his day that we i think we all expected that within three after the three hundred sixty day period there be a new lawsuit filed and we would go off from there and litigate this like any other of the dozens of title seven claims that argument was in in the circumstance in which he is still alive he is still allowed to file his claim in district court he only needs wait a little longer then there's no basis for equitable tolling because he has not been precluded from doing so if this were a judge when the entire inverse of the situation it worse is to say the agency told him here's our decision you have three hundred sixty days within which to file your to file your complaint in federal district court when the rule is really ninety and he files and three hundred sixty days i wouldn't be here thank you your honor i'd like to make two points on rebuttal the first about the statute the second about the regulations the first point on this question about complaint versus the charge i understand the p t o is argument about the ambiguity you essentially asked the court to disregard the statute i didn't hear them for itself right it talks about the agency's action on a complaint right the agency has taken a final action on a complaint the employee is aggrieved by the failure to take a final action on a complaint whereas there is the filing of an initial charge and i think that that suggests that a complaint is the thing that's happening at the end of the process or it is the sort of the full freight this is the whole review is about the complaint it is the consolidated you know body of allegations of discrimination whereas the waiting period that starts the one hundred eighty days is the initial charge and if you only have one charge that one charge could be the complaint at the end of the process but here we have one charge that started it and then subsequent amendments all of which become a part of the and that's sort of the principle hanging up there in the cloud is we shouldn't earlier case that this statute and regulation seemed to be at odds with anything say to me about the i would say your honor that the way that congress put you go the statute was to create a and on a beta ball one hundred eighty day period during which exhaustion can be the only thing that is happening right subject to exceptions i don't know why here and injunctions this kind of thing there's a one hundred  eighty day waiting period where the only thing that can happen is exhaustion and if you file before that then you haven't exhausted but once you have waited one hundred eighty days and you've cooperated with that investigation your right to sue isn't perfect that's a word the d c circuit used in a case that your right so we'll just go back to judge wins example you could be keeping all your best arguments to the hundred seventy nine right they were related to but your response to that is when you could do that anyway they are related to this initial yes that's right argument you could do that federal court yes i think i'm right now i'm sorry i don't know i heard that i don't i don't know that i've seen a case discussed the distinction between the like related rule in amending administrative complaint and the like related under the you know pleading standard for e e o c or for employment discrimination cases i also don't think that's an issue the court has to deal with here because the statute is quite clear about that one hundred eighty waiting period starting with the initial charge now i think at the end of the day and we talked a little bit i heard some questions about the e e o c letter to mr stewart and management directive one ten is the rule and that's it jay eight to seventy three in that we have an excerpt from management directive one ten that says you may find that the employee can file a civil action one hundred eighty days after the original complaint and language from that is even if the agency's investigation has not been completed the reason the p t o told mr stewart that is because that's what the e e o c said and the reason the e e o c said that the management because that's what the regulations require reason that's what the regulations allows because it's what congress