## F I L E D 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. ELAINE L. CHAO, Secretary of the United States Department of Labor, Defendant - Appellee. No. 01-1357

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 plain tiff-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 S afety and Health Administration (“MSHA”), appeals the district court ’s dismissal of his national--2-

origin and age discrimination claims against the MS HA for lack of jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), due to his fa ilure to file his suit in a timely manner. Montoya argues that the period of limitati on prescribed by the Civil Service Reform Act (“CSRA”) for bringing an action in federal court is not jurisdictional and that this limitations period sho uld be equitably tolled to excuse his late filing. We agree with Montoya that the pe riod 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 s pecialist but resigned in May 1998 after his superiors began form al removal procedures, claiming that he failed to perform his duties satis factorily. Montoya appealed his employer’s actions to the Merit System Protection B oard (“Board”), alleging before the Board’s Administrative Law Judge (“ALJ”) that he was the victim of both age and national-origin discrimination. The A LJ 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 EmploymentOpportunity Commission-3-

(“EEOC”), and on June 30, 2000, the EEOC affirmed t he Board’s order and mailed a copy of its affirmance to Montoya. Montoy a 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 J uly 26, 2000. According to Montoya, his attorney advised him on J uly 26, 2000, to request an extension of the deadline to file suit i n 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 Depart ment 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 authori ty to grant such an extension. Because he was no longer represented by counsel, Mo ntoya proceeded to obtain a pro se packet from the clerk’s office of the distri ct court but determined that he was incapable of filling out the requisite paperwor k without assistance. After contacting a number of attorneys and legal aid orga nizations, none of whom agreed to assist him, he eventually found an attorn ey to help him. Montoya commenced the present action against the Un ited States Department of Labor in district court on September 29, 2000, alleging violations of the Age Discrimination in Employment Act and Tit le VII of the Civil Rights Act of 1964. Defendant moved to dismiss the compla int for lack of subject--4-

matter jurisdiction because the case was untimely f iled, and the district court granted the motion. This appeal followed.
II We review a dismissal for lack of subject-matter ju risdiction de novo, accepting the district court’s findings of jurisdic tional 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 ju dicially reviewable decision to bring an action in federal court: Cases of discrimination subject to the provisions o f section 7702 of this title shall be filed under [the Civil Rights A ct of 1964, the Age Discrimination in Employment Act of 1967, or the Fa ir Labor Standards Act of 1938] as applicable. Notwithstand ing any other provision of law, any such case filed under any suc h 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 EEO C’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 t hat he did not actually receive a copy of the decision until August 8, 2000. Even if we were to assume that the1 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) (“A lthough this court has never explicitly addressed the issue of mailing time presumptions, we have implicitly sanctioned applying either a five-day ora three-day presumption.”). -5- 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 f orth 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 plaint iff has filed his action in a timely manner. Federal courts are courts of limite d 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 meri ts 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 pr evail if jurisdiction were denied. See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 93–94 (1998) (disapproving a federal court’s exercise of “hypoth etical jurisdiction” because “it carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of pow ers”). 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).-6-

There is presently a “circuit split” with respect t o the question whether the period of limitation set forth in § 7703(b)(2) of t he 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 presumpt ion, 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 a gainst the United States where the government has waived its sovereign immunity by statute. Irwininvolved 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 decis ion 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 tol led. Id. at 92. However, recognizing that this type of issue would arise rep eatedly in the future with respect to ascertaining Congress’s intent in settin g forth other such limitation periods, the Court opined that “a continuing efforton our part to decide each case on an ad hoc basis, as we appear to have done in th e past, would have the disadvantage of continuing unpredictability withoutthe corresponding advantage-7-

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 p rivate litigants are customarily subject to equitable tolling, the Courtdecided that a similar presumption should apply in suits against the Government: “Once Congress has made such a waiver [of sovereign immunity], we thin k that making the rule of equitable tolling applicable to suits against the G overnment, in the same way that it is applicable to private suits, amounts to littl e, if any, broadening of the congressional waiver.” Id. Characterizing the principle as a “realistic asse ssment of legislative intent as well as a practically usef ul principle of interpretation,” the Court went on to state unequivocally, “We therefore hold that the same rebuttable presumption of equitable tolling applicable to suit s against private defendants should also apply to suits against the United State s. Congress, of course, may provide otherwise if it wishes to do so.” Id. at 95–96. In the wake of Irwin , the First Circuit determined that the period of limitation in § 7703(b)(2) is not jurisdictional an d is therefore subject to equitable tolling. That court noted that the limitations per iod of § 7703(b)(2) “is not only similar to, but intersects with, the [Equal Employm ent Opportunity Act] provision directly addressed in Irwin .” Nunnally v. MacCausland , 996 F.2d 1, 3 (1st Cir.-8-

1993); see also id. at 3 n.3 (explaining that the “interdependence of the two statutes is rooted in their histories”). The FirstCircuit 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 th e period of limitation in § 7703(b)(2) of the CSRA is subject to equitable to lling. See Blaney v. United
States , 34 F.3d 509, 512–13 (7th Cir. 1994) (stating that“a time limit like the one in § 7703(b)(2) is not jurisdictional,” but providi ng no analysis); Williams-Scaife v. Dep’t of Def. Dependent Sch. , 925 F.2d 346, 348 (9th Cir. 1991) (holding that Irwinoverruled all prior Ninth Circuit cases that denie d equitable tolling under statutes and regulations relating to federal employ ee discrimination suits, including one which had denied tolling under § 7703 (b)(2)). Standing alone is the Sixth Circuit, which comparedthe language of the statute in Irwinwith that of § 7703(b)(2) and concluded that the m andatory nature of the wording in § 7703(b)(2)—“[n]otwithstanding any other provision of law . . . any such case filed . . . must be filed withi n 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 emp loyee . . . 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-9-

King v. Dole , 782 F.2d 274, 276 (D.C. Cir. 1986) (deploying sim ilar reasoning and reaching the same result, but in a case decided before Irwin ). We find the Sixth Circuit’s approach untenable in l ight of the IrwinCourt’s reluctance to try to ascertain congressional intentby parsing too finely the language of limitations statutes. Indeed, after qu oting from § 2000e, the Court noted that “[t]he phraseology of this particular st atutory 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 94–9 5. As an example, the Court quoted from another statute wherein Congress provid ed 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 unequ ivocally mandatory language was not “enough to manifest a different congression al 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 intende d to make equitable tolling2 The Supreme Court has determined that a time limi tation expressed in

“unusually emphatic form” will be sufficient to ove rcome 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 t ax code, the Court noted that “[o]rdinarily limitations statutes use fairly simpl e 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 limitat ions in a highly detailed technical manner, that, linguistically speaking, cannot easil y 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 toll ing by stating directly in the statutory language that equitable tolling will be u navailable to a plaintiff. -10- unavailable to plaintiffs. 2 We thus conclude that the period of limitation se t forth in the CSRA, § 7703(b)(2), is not jurisdictional.
III We review a district court’s decision whether to eq uitably 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 tol ling of Title VII periods of limitation only if circumstances “rise to the le vel of active deception which might invoke the powers of equity to toll the limitations period.” Cottrell v. Newspaper Agency Corp. , 590 F.2d 836, 838–39 (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, i f a plaintiff-11-

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 cou rts have typically extended equitable relief only sparingly,” and that [w]e have allowed equitable tolling in situations w here the claimant has actively pursued his judicial remedies by filin g a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s miscondu ct into allowing the filing deadline to pass. We have generally bee n much less forgiving in receiving late filings where the claim ant failed to exercise due diligence in preserving his legal righ ts. Irwin , 498 U.S. at 96 (footnotes omitted). Montoya proposes that equitable tolling in the inst ant case is appropriate for two reasons. First, he suggests that tolling i s warranted because he was “misdirected by the federal agencies involved regar ding the appropriate manner in which to proceed to effectuate the timely prosecuti on 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 t ime and was referred to the Civil Rights Center, (2) was forced to leave a tele phone message for the director of the Center and the message was never returned, a nd (3) sent a letter to the Center only to then be told that it had no authority to waive the filing deadline.-12-

(Id. at 4, 12–13.) Montoya himself acknowledges, howev er, 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 circ umstances in this case surrounding the timeliness of the filing of his Complaint.” ( Id. at 10.) Given these facts, we conclude that the district court di d 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 prese nt case. Montoya also argues that equitable tolling is warranted because he has a limited education and little understanding of the l aw or of the “intricacies of the procedural framework of Title VII actions or the ap propriate manner in which to file an action in federal court.” ( Id. at 13–14.) Again, we conclude that the district court did not abuse its discretion in find ing that Montoya’s difficulties are those faced by many plaintiffs who nonetheless mana ge to file suit in a timely manner. To the contrary, the instant case is preci sely 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

.