The opinion of the court was delivered by: BECKER
On June 6, 1975, the Treasury Department made its decision to reject plaintiffs' discrimination claim. Notice of that decision was received by McCall and Seymore on June 10 and 11, 1975 respectively. The notice letters from the Treasury Department included the following paragraph:
You have the right to appeal this decision to the U.S. Civil Service Commission, Appeals Review Board, Washington, D.C. 20415. Your appeal must be in writing, signed by you, and received in that office within fifteen (15) calendar days of the receipt of this letter; or, if you wish, you may file a civil action in an appropriate U.S. District Court within thirty (30) calendar days of the receipt of this letter.
Plaintiffs' appeal to the Civil Service Commission Board of Appeals (Board), however, was not sent until July 1, 1975, several days after the 15 day period had passed.
That appeal was sent to the Board by the plaintiffs' non-lawyer union representative, Jeffrey Williams (this procedure is apparently common in the administrative complaint and review process). The appeal included an explanation that the lateness in filing resulted from Mr. Williams' inability to obtain a copy of the Treasury Department's decision due to the occurrence of a death in the family of one of the complainants and a two-week vacation by the other.
On November 18, 1975, notwithstanding the proffered explanation for late filing, the Board rejected the plaintiffs' appeal as untimely filed even though under 5 C.F.R. § 713.233(b) the Board had the power to extend the fifteen day filing period of § 713.233(a) in accordance with the following standard:
(b) The time limit in paragraph (a) of this section may be extended in the discretion of the Appeals Review Board, upon a showing by the complainant that he was not notified of the prescribed time limit and was not otherwise aware of it or that circumstances beyond his control prevented him from filing an appeal within the prescribed time limit.
Within thirty days of the November 18, 1975, decision, the plaintiffs, now represented by counsel, filed their action in this court.
On September 13, 1976, after a hearing on defendants' motion to dismiss the complaint as time barred, we entered an order remanding this case to the Board: (1) to determine whether the plaintiffs themselves, in addition to their union representative, had been given a subsequent opportunity in September of 1975 to provide a further explanation of the reasons for their late appeals (see n. 4), and (2) to consider again whether the plaintiffs had an acceptable excuse. Thereafter, plaintiffs' counsel, in response to a letter from the Board (pursuant to the remand), provided the Board with an affidavit by Jeffrey Williams stating that as plaintiffs' union representative he never received from the agency a copy of its decision letter of June 6, 1975. Counsel for plaintiffs also argued that the agency departed from ordinary practice in failing to give Williams notice, and that such failure contributed to the lateness in the filing of the appeals. It further appeared in Williams' affidavit that a death in Seymore's family occurred around, but not during, the appeal period; that McCall was on sick leave from June 12 to June 16, 1975 (his appeal period commenced on June 10 but did not terminate until June 25); and that Williams himself was on administrative leave from June 23 through June 27, 1975.
Upon reviewing the information as provided after our remand, the Board again found against plaintiffs stating that "the information of record does not establish that the complainants were prevented by circumstances beyond their control from filing a timely appeal."
The defendants in their motion to dismiss argue that plaintiffs, having filed a late and unexcused appeal which was ultimately rejected by the Board, are also barred from proceeding judicially because the thirty-day period for filing the district court action began upon plaintiffs' receipt of the notice of the adverse Treasury Department decision on June 10 and 11, 1975. Counsel for plaintiffs argues, however, that the fifteen day period for appeal provided in 5 C.F.R. § 713.233(a) is invalid on the ground that it violates the intent of Congress in extending Title VII to federal employees by unreasonably restricting and jeopardizing the ability of government employees, generally unskilled in the technical procedures and not usually represented by counsel, to proceed administratively without risking the sudden loss of the right to proceed judicially. However, because of the way in which we view the issues raised by defendants' motion to dismiss, we need not reach the issue of the validity of § 713.233(a), nor need we decide whether the Board abused its discretion by declining to extend the administrative appeal period.
Our view of the issues raised by defendants' motion is that they turn upon an interpretation of 42 U.S.C. § 2000e-16(c) as juxtaposed to 5 C.F.R. § 713.233(a) and (b) and upon the limited contents of the form of notice of adverse agency action and the peculiar circumstances of this case. As we see it, the ultimate question is whether the date of notice of "final action" from which the district court filing time should be measured is the date on which plaintiffs received notice of the employing agency action (by the Treasury Department) or the date on which they received the Board's notice of rejection of their late appeal. For the reasons expressed below, we conclude that ...