2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-19-2010

David Green v. Donald Winter

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1246

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Recommended Citation

"David Green v. Donald Winter" (2010). 2010 Decisions. Paper 2045.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

 No. 09-1246

 

 

DAVID L. GREEN,

 Appellant

 v.

Ray Mabus*

Secretary, Department of the Navy

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 07-02640)

Honorable Ronald L. Buckwalter, District Judge

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 18, 2009

 

BEFORE: SLOVITER, JORDAN, and GREENBERG, Circuit Judges

 (Filed: January 19, 2010)

 

OPINION OF THE COURT

 

GREENBERG, Circuit Judge.

 

*Pursuant to Fed. R. App. P. 43(c)(2).
 The District Court had jurisdiction under 42 U.S.C. § 2000e-16 and we have 1

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review on this appeal.

 There is some confusion in the record as to what motion the District Court granted 2

after it granted Green’s motion for reconsideration. Winter moved for both an order of

dismissal and for summary judgment and in its opinion the District Court set forth the

standards for consideration of both motions, thereby suggesting that it was granting both a

motion to dismiss and a motion for summary judgment. Yet at the outset of its opinion

the Court, after reciting that it was considering a “Motion to Dismiss Complaint and/or

for Summary Judgment,” indicated that “Defendant’s Motion to Dismiss is granted,” app.

2

This matter comes on before this Court on an appeal from an order of dismissal

entered in the District Court on December 19, 2008, under Fed. R. Civ. P. 12(b)(6). 

Appellant, David L. Green, an employee of the Department of the Navy, initiated this

action pro se in the District Court against Donald C. Winter, the Secretary of Navy in his

official capacity, charging that he, Green, submitted an application to his federal employer

for the position of supervisor accountant but that the Department of Navy refused to

acknowledge or accept his application “due to plaintiff[‘s] race/color/sex/reprisal, etc.” 

App. at 33. Winter moved for summary judgment and the District Court dismissed the

action because Green did not respond to Winter’s motion. Green then moved for

reconsideration and the District Court granted his motion. Nevertheless, in a December

19, 2008 comprehensive memorandum opinion and accompanying order, the Court

granted Winter’s motion to dismiss on the merits. The appeal followed.1

The District Court set forth the background of the matter and its reasons for

dismissing the action in its memorandum opinion and thus we need not restate at length

what the Court said. It is sufficient to point out that the action failed in the District Court 2
at 163, and the accompanying order closing the case did not mention summary judgment

but stated that “Defendant’s motion to Dismiss in GRANTED.” App. at 178. We,

however, will not linger on this point as we are considering the appeal exercising plenary

review of the District Court’s opinion and order and, in turn, are considering the case on

both the standards for granting motions to dismiss and for summary judgment.

 The District Court denied Green’s repeated applications for appointment of an 3

attorney to represent him in orders that he regards as “an abuse of discretion.” 

Appellant’s br. at 9. However, Green does not make a real argument supporting that

contention which therefore is not properly before us. See Pennsylvania Dep’t of Pub.

Welfare v. United States Dep’t of Health and Human Servs., 101 F.3d 939, 945 (3d Cir.

1996). In any event, the Court did not abuse its discretion in denying the appointment as

Green is an experienced litigator who should have been capable of proceeding pro se. In

this regard we point out that the statement of related cases in Winter’s brief lists one

appeal to this Court, four district court actions, and seven administrative proceedings

before the EEOC.

3

for three reasons. First, the Court held that Green did not contact an Equal Employment

Opportunity counselor at his agency within 45 days “of the date of the matter alleged to be

discriminatory or, in the case of a personnel action, within 45 days of the effective date of

the action” as 29 C.F.R. § 1614.105(a)(1) requires. Second, Green did not file a timely

notice of appeal with the Equal Employment Opportunity Commission (“EEOC”)

following a final order of the Department of the Navy mailed to him on March 2, 2002,

after a determination that there had not been discrimination against him. Third, the

doctrine of sovereign immunity barred a due process of law complaint that Green brought. 

We, however, address only the first two points as Green does not challenge the sovereign

immunity holding.3

Exercising plenary review we see no reason to reject any of the District Court’s

conclusions. To start with, Green knew on December 24, 2003, well over 45 days before
4

he contacted an EEOC counselor on February 9, 2004, that his employer did not appoint

him to the position he had been seeking, and in his brief he does not deny that he had that

knowledge. Rather, he contends that he did not know for another month after December

24, 2003, that he was deprived of the appointment by reason of what he regards as

discrimination against him. But the fact remains that he knew in December 2003 that the

alleged discriminatory act, i.e., the failure of the Navy to make the appointment he sought,

had occurred, and thus he was aware in December 2003 that he had been injured by the

Navy’s conduct. Accordingly, 29 C.F.R. § 1614.105(a)(1) bars this action. See Oshiver v.

Levin, Fishbein, Sedron, & Berman, 38 F.3d 1380, 1391 (3d Cir. 1994). 

We recognize that Green contends that an EEOC counselor advised him on

February 20, 2004, not to file a formal complaint. But we do not see why that matters as

by that time his 45-day period to contact a counselor had expired. In any event, the

counselor only gave Green advice which did not preclude him from filing a formal

complaint which, in fact, he did on May 18, 2004.

Furthermore, the District Court correctly concluded that Green’s appeal to the

EEOC was untimely. As we set forth above, the Department of the Navy mailed Green a

notice on March 2, 2002, that there had not been discrimination against him. He had 30

days plus five days added for receipt of the mail notice to him to appeal from that finding

to the EEOC. See 29 C.F.R. § 1614.402(a). Nevertheless, he did not appeal until April

12, 2002, and thus he simply did not meet the deadline for an appeal. While we recognize
5

that the EEOC in its decision affirming the dismissal of Green’s complaint recited that the

appeal was “timely,” it did not explain why it believed that to be so. In any event, the

appeal was not timely and the EEOC’s statement to the contrary does not make it so or

bind us. See Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 754 n.9 (3d Cir.

1983); superceded on another matter by 29 C.F.R. § 1601.13(a)(4). The situation is no

different than when on an appeal a court of appeals determines if a district court had

subject matter jurisdiction in the case on appeal. A district court’s conclusion that it had

jurisdiction does not bind a court of appeals on an appeal from the district court. See

Emerald Investors Trust v. Gaunt Parsippany Partners, 492 F.3d 192, 197 (3d. Cir. 2007). 

In any event, even if the EEOC was correct the action still would be barred by reason of

Green’s delay in contacting an EEOC counselor.

The order of December 19, 2009, will be affirmed.