Frank Rembisz v. Jacob Lew, 590 F. App'x 501

Rembisz, an IRS criminal investigator, filed an EEO charge after not being selected for a supervisory position; the Department issued a final agency decision on March 15, 2013.
Rembisz’s complaint in federal court alleges he received the agency decision on March 25, 2013 and was filed on June 21, 2013.
42 U.S.C. § 2000e-16(c) requires federal employees to file suit within 90 days of receipt of the final agency decision; 29 C.F.R. 1614.605(d) provides that when a complainant designates counsel, time is computed from attorney’s receipt.
The Secretary attached postal records showing certified-mail delivery: plaintiff received a certified copy on March 22 and plaintiff’s counsel received a certified copy on March 25; the agency also sent first-class mail copies on March 15.
The district court relied on a presumption (from Graham-Humphries) that mailed notice is received within five days and deemed notice received March 20, making Rembisz’s June 21 filing untimely; it granted dismissal.
The Sixth Circuit reversed, holding that at the Rule 12(b)(6) stage the court must accept the complaint’s allegation of receipt on March 25 and cannot resolve the timeliness affirmative defense by crediting the Secretary’s presumptions and attachments.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rembisz filed within the 90-day window	Rembisz alleges he received the final decision on March 25, so June 21 filing is timely	Agency argues mailing presumption and certified-mail records show counsel received notice by March 20, making the filing late	Reversed: at Rule 12(b)(6) the court must accept plaintiff's receipt allegation; dismissal premature
Whether the district court could resolve receipt via presumptions/evidence on motion to dismiss	Plaintiff asserts allegation of receipt controls at pleading stage; evidence belongs to summary judgment	Secretary contends presumption of delivery and attached postal records justify dismissal	Held that affirmative defenses require proof; court cannot resolve factual receipt dispute on Rule 12 motion; may be decided later if unrebutted at summary judgment

Graham-Humphries v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552 (6th Cir. 2000) (presumption that mailed EEOC notice is received within five days)
Board of Com’rs of Montgomery County, Ohio v. Federal Housing Finance Agency, 758 F.3d 706 (6th Cir. 2014) (standard of review for Rule 12(b)(6) dismissal)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleadings)
Jones v. Bock, 549 U.S. 199 (2007) (plaintiff need not plead affirmative defenses to avoid dismissal)
Surles v. Andison, 678 F.3d 452 (6th Cir. 2012) (statute of limitations is an affirmative defense)