*1 represented the Union’s defense an unrea- with the General Counsel’s authori- ference limitation ty justify does not such a serious insupportable sonable and construction of ability carry out its own on the Board’s reopen the Act. We direct the Board adjudicate complaints is- responsibility 8(b)(7)(C) proceeding and to hear section sued the General Counsel.12 defense, including the Union’s the evidence support case in of that tendered this con- The Circuit reached a similar Second clusion in NLRB v. Local 314 F.2d 53 defense.

(2nd 1963), reviewing finding a Board It is so ordered. 8(b)(7)(B), union had violated section 158(b)(7)(B) (1976), pro- which recognitional picketing hibits “within

twelve months of a valid election.” The

union had tried to defend in the unfair practice proceeding ground

labor on the the election had not been “valid” be- employer

cause the had committed unfair election, practices.

labor Prior to the how- ever, charges, the union had GORDON, filed dismissed Appellant, Debora D. Counsel, by the alleging General those same practices. ap- unfair Board therefore plied Square its Times doctrine in the un- NATIONAL YOUTH WORK ALLIANCE. fair practice proceeding labor to exclude the No. 81-1284. union’s invalidity. Judge defense Friendly’s opinion stated that the General Appeals, United States Court Counsel’s dismissal could not bar District of Columbia Circuit. Board’s consideration of the election’s valid- ity. Because a express valid election is an Argued Nov. 1981. statutory finding condition to a of a section April 1982. Decided 8(b)(7)(B) violation, questions relating all held, election, the validity of the open judicial to the Board and review.13

314 F.2d at 60.

V agree

We Fanning’s with read- Chairman

ing of the Act. The Board’s refusal to hear practice proved only proceeding union The Ninth Circuit on need had elaborated preserve authority charges the Board’s in Frito Co. v. that it had sel; with the filed General Coun- NLRB, 1964): F.2d “something it had not offered to indicate wrong It is now well settled that the General was . .. and that [the dismissal] investigate charge practices prevented Counsel’s decision to issue a in fact a fair unfair labor complaint is unreviewable proceeding at 61. In the election.” However, Board. has once decision been review, proof on the Union filed an offer complaint prosecute made to issue a and to Transcript, after the ALJ struck its defense. it, upon the General has embarked Counsel 54-55, brief, Respondent’s 64-65. In his J.A. judicial process which is reserved to the argument, counsel for the Br. at and at oral If Board. can control General Counsel Board, reviewing suggested that the Board process, this can then the General Counsel appeal, considered the offer the record usurp responsibility indeed the Board’s proof proffered insuffi- and found the evidence establishing policy by simply under the Act charge. against read- cient to defend Our withholding any from the Board issue which ing consideration. of the record reveals no such might precipitate meaningful policy deci- evidence, but the The Union came forward sion not in accord with the views of the into its introduction ALJ and the Board barred General Counsel. they their on which based decisions. the record granted The court enforcement nevertheless of the Board’s order because in the unfair labor *2 ROBINSON, Judge,

Before BA- Chief ZELON, Judge, Senior Circuit WRIGHT, Judge. Circuit Opinion filed court Circuit Judge J. SKELLY WRIGHT. *3 Concurring opinion Judge filed Chief ROBINSON, W. III. SPOTTSWOOD WRIGHT, Judge: J. SKELLY Circuit appeals from an Debora Gordon or dismissing against her suit her former der employer, the National Youth Work Alli (NYWA), charging ance it with violations Rights of Title VII of the Civil Act of (1976 Supp. 2000e et seq. Ill § 1979), and with violations of 42 U.S.C. (1976) and the District of §§ Law, Rights Human Columbia’s D.C.Code seq. (1981). 2550 et The District Court § granted appellee NYWA’s to dismiss motion solely on the basis that lacked subject jurisdiction matter because the plaintiff had not filed suit within the 90- VII, day prescribed by time limit Title see 2000e-5(f)(l) 42 U.S.C. We rev erse.1 woman, appellant,

NYWA fired a black shortly December after she had a white, disputes series of with her male su- pervisors. charges She filed of discrimina- Equal Employment Opportu- tion with the (EEOC) nity Commission and the District of Rights, Columbia Office of Human neither of which found reasonable pursue cause to her complaint. regional The EEOC office Bell, C., Robert L. Washington, D. for accordingly Baltimore sent no- Gordon a appellant. Williams, Dudley R. Wash- sue, tice of her stamp dated with a D.C., ington, entered appearance ap- in the lower left corner “OCT 07 1980.” pellant. The notice letter was mailed to Gordon’s C., D.C., Arthur W. Adelberg, Washington, Washington, home address in return D. appellee. receipt requested, Albert H. Turkus and Maxine the Postal Service Howard, C., D. Washington, eventually following receipt D. were on the returned the appellee. brief for the Baltimore office: EEOC below, 1. In addition to the discussed 421 U.S. (1975), L.Ed.2d brought we hold that the District Court had no basis for which allows such actions to be dismissing appellant’s years giving non-Title VII claims. within three harm rise to They subject only 301(8) applicable were to the stat- the cause of (1981). action. D.C.Code Columbia, ute of limitations in the District of Railway Express Agency, see Johnson v.

Upon consideration of mo- defendant’s tion to dismiss for lack of matter, subject over opposition herein, thereto, entire record to the appearing plain- tiff has failed file her complaint pursuant 2000e-5(f)(l) to 42 U.S.C. § (1976) plaintiff’s action must be dismissed jurisdiction. for lack Douglas Green, Corporation McDonnell [93 (1973); Wong v. Bon 668] * * Marche, *4 Appendix appellant’s A to brief at A-l. requires plaintiffs Title VII that suit file within 90 days receiving notice the from right EEOC of to sue. their 42 U.S.C. 2000e-5(f)(l) The § sole at issue in case is how a and this defendant the court treat should a motion to dismiss based on defendant’s that contention plaintiff has filed suit expiration after period. of the 90-day NYWA moved dismiss basis 12(bXl), on this under Rule and its Gordon, supported theory It is that Rule signed by one appar- Vinona mother, dated, ently appellant’s 12(b)(1) appar- applied argument hand, ently in the same “10-7-80.” There bring an action under sec- “[f]ailure is stamp also a round space in the marked days tion deprives within federal court showing “Postmark” the date as “OCT 9 subject, jurisdiction.” matter Motion to Appellant 1980.” filed suit in the District Dismiss for of Jurisdiction Lack Over Court January days 1981—90 after Subject reproduced Appen- Matter October days after October A-13, dix A appellant’s citing brief at NYWA submitted a motion to dismiss for International, Hinton v. CPC subject lack of jurisdiction, matter citing (8th Cir. The sentence Federal Rule of Civil 12(b)(1) Procedure Hinton, however, quoted appo- is not from copies attaching of the right-to-sue letter site to this It refers to a long-stand- case. and the return receipt. gravamen The ing among dispute the circuits as what NYWA’s motion was that Gordon received referring Court meant Supreme notice of her to sue on October bringing time suit limits under Title handwritten date on receipt. the return VII “jurisdictional,” see Alexander opposed ground the motion on the Gardner-Denver likely it was more the letter was S.Ct. 39 L.Ed.2d 147 sent on October and received on October Douglas Green, Corp. v. McDonnell given stamped the dates on the letter and 792, 798, 1817, 1822, the receipt. The granted District 36 L.Ed.2d 668 Court NYWA’s motion in a brief (1973),2 order: Supreme The sub- has now that, 2. Some courts had held like statutes of that could not tional absolutes be modified limitations, provisions Title equitable Compare VII’s time are sub- reasons. Reeb v. Economic ject equitable grounds, Atlanta, Inc., to modification on Opportunity while 516 F.2d 924 jurisdic- International, others had held that the time limits are with Hinton v. CPC stantially dispute resolved Zipes subject jurisdic- this tions on the court’s Airlines, Inc.,-U.S.-, Although Zipes Trans World tion. deals with the filing time limit for charges 71 L.Ed.2d 234 which of discrimina- EEOC, tion with the see 42 U.S.C. 2000e- “filing timely charge holds that of dis- 5(e) (1976), logic its extends to the time jurisdic- crimination with the EEOC is not a filing receiving right- limit for suit after court, prerequisite tional to suit in a federal EEOC, to-sue letter from the see-U.S. that, requirement but a like a statute of at-, 1132,1135. Therefore, limitations, waiver, estoppel, 12(b)(6) proviso clearly apply, and its -, equitable tolling.” Id. at and it grant would be error to a motion to S.Ct. at 1132. grounds dismiss on factual unresolved Statutes of limitations generally pleadings. create affirmative Although defenses. af Fairness, not excessive technical firmative defenses be raised on a mo ity, guiding is the principle under both Title dismiss, tion proper method for rais VII, at-, Zipes, supra,-U.S. see ing a defense of limitation is a motion un Pullman, S.Ct. at Love v. 12(b)(6), der Rule not a motion under Rule 30 L.Ed.2d 679 (cid:127) 12(b)(1). See C. A.& (1972), and the Federal Rules of Proce Civil Federal Practice and Procedure 1277 at dure. mandatory language in which (1969 ed.). The difference between 12(b)’s proviso is couched underscores them is that under Rule importance providing plaintiffs with may not consider matters plead outside the safeguards the essential summary judg *5 ings and accompanying legal memoranda procedure ment they whenever face a mo converting without the motion into one for tion to dismiss that questions turns on summary judgment affording par all 12(b)(1), fact. Even procedural under Rule ties “reasonable opportunity present all safeguards equivalent to those in Rule 56 material pertinent made to such a motion required, selectively Rule 56 used by Rule 56.” 12(b). Fed.R.Civ.P. pur The Exchange guide as a ensuring fairness. See pose of proviso, this added in the 1946 t’l Bank Chicago v. Touche Na Amendments Rules, to the Federal was (2d Ross & Cir. gave twofold: it the District Courts author Hospital, Barrett v. United ity to consider factual material at the mo F.Supp. aff’d, (S.D.N.Y.), 795 & n.14 tion to stage, dismiss but it also sought “to 506 F.2d 1395 Cir. Where facts * * avoid taking a party by surprise jurisdictional material to a time limit are in See Notes of Advisory Committee on 1946 dispute, both analogy fairness and to Rules Rules, Amendment app. 28 U.S.C. at 12(b)(6) and require pro the court (1976). 409-410 parties vide the a full opportunity to air Furthermore, their dispute. factual they Precisely because of safeguard this direct to take evidence on the in Rule 12(b)(6) requiring close attention — question parties’ if the affidavits do not to the manner in which questions factual suffice genuine to eliminate all issues of are resolved —it makes sense to treat mo . Tucker, material fact. See Williamson v. tions like the one at issue here as Rule 1980).3 588-589 12(b)(6) addition, motions. Zipes In makes it clear that Title VII’s time limits are more importance The procedures of fair in like statutes of limitations than like condi- factfinding any stage requires ap- this Inc., 1975), Wong (D.C.Cir.1978); Laffey v. North Marche, Inc., Airlines, Inc.,

Bon (D.C. 508 F.2d west 567 474-475 Note, generally Equitable See Modification of VII, Time (1978). Limitations Under Title 48 U.Chi.L. 55 L.Ed.2d 792 agreed Rev. 1016 This circuit with the Fifth Circuit subject that the time limits are procedures 3. Possible differences between un- equitable modification. See Shehadeh v. Ches 12(b)(1) 12(b)(6) der Rule and Rule have been apeake Telephone & Potomac trouble, see, the source of some considerable proach, parties clearly or not the Given that the District whether invoke con- precise herein,” in record including words the Federal Rules. sidered “the entire 12(b)(6), matters the pleadings, Under either or Rule outside it did not plaintiff provide opportunity” a court need not consider outside “reasonable matters present did pleadings all. But relevant material. It once it decides to parties considering consult inform it was such matters it should so inform the the motion it were a for as if motion sum- parties submitting a schedule set mary judgment, nor did it solicit further additional affidavits and documents if the day submissions on the of which parties wish. Debora Gordon received notice her right Accordingly, since the District possible to sue. The over debate factual notify parties, Court did not we may so parties’ inferences in papers both should sustain the if meets dismissal it put on notice court needed stringent without standard dismissal re great deal more information before decid- gard to pleadings: outside the matters “[I]t ing that was no there material issue of fact . appears beyond doubt that plaintiff can dispute.4 Under the mandatory phrasing prove no set support of facts his claim 12(b), provide the court’s failure which Conley would entitle him to relief.” procedure a fair for submission of affidavits Gibson, 45-46, 78 error, other factual material is reversible 101-102, see Ware v. even though Gordon did not raise the issue Producers, Associated Milk precisely opposition in her to NYWA’s mo- 1980) (in context of tion to dismiss. question). statute of limitations The 90-day dismissing appellant’s order case for aside, pleaded limit adequate lack over the cause of under action Title VII. Neither reversed, is therefore and the case is re- her complaint nor her answer to NYWA’s manded to the District Court for further motion to dismiss concedes that she received proceedings on the issue appel- whether notice of her to sue before October 9. lant’s suit was filed. considering Without receipt, the return it is Reversed and remanded. hard to how imagine the District Court *6 address, decide, could much less NYWA’s ROBINSON, III, W. SPOTTSWOOD contention that the suit not was Judge, concurring: Chief Therefore, filed. dismissal of Gordon’s case on the alone pleadings could not have been Manifestly, the date of receipt Gordon’s proper. the right-to-sue open of notice is fairly to e.g., Savings prejudice Mortensen v. First Federal & Loan ment without and then a hold limited Ass’n, evidentiary hearing 890-892 on the timeliness issue be- they particularly type are not merits, relevant to the of proceeding fore a full to trial on the presented instance, issue in this case. For procedure duplicates proper which in effect the may grant summary court a motion for procedure 12(b)(1). under Rule

judgment record, light if the the considered party, nonmoving most favorable to the dis Appellant might have been to able submit genuine fact; yet closes a issue of material showing raising affidavits several sets of facts 12(b)(1) power under Rule a court has the an did inference that she not receive notice of hearing conflicting hold a and resolve testimo right her until October has sue 9. She of- ny against plaintiff. See Menchaca v. prove fered to Baltimore office of the Chrysler Credit 511-512 letters, postdate making EEOC does not its (5th Cir.), unlikely that the letter was mailed in Baltimore (1980). where, But as Washington day. and received in on same here, plaintiff right jury has no to a trial on might She be able show that the Postal issue, a court has considerable latitude in regularly postmarks receipts Service return determining a of statute limitations issue even day delivery, of that Vinona was dispute if parties the facts remain in after the signed when for unsure the date she opportunity augment have an the record. possibilities letter. These make dismissal im- See, e.g., Reynolds, Nardone test, Conley proper under the and none is ex- 1137-1138 The obvious solu by pleadings. cluded deny summary tion judg- is to the motion for

dispute, and Gordon has had no be sustained. complaint charged chance to Gordon’s demonstrate her version of the facts bear- employment discrimination violative of Ti- ing agree thereon. Thus I that the viability Rights tle VII of the Act Civil of 19641 and of her Title VII yet claim remains issue statutory three other schemes as well.2 too, soundly agree, be determined. I motion, expressly invoking 12(b)(1), that Gordon’s non-Title VII claims faced no alleged that her suit was not launched with- untimeliness, or, problem aught from days in the statutorily prescribed presently justifica- appears, any other institution of Title VII litigation,3 and part tion for dismissal. I company my urged jurisdic- the court was without colleagues, exposition their tion on that account.4 As both the motion methodology available for fact-resolu- reflected, response6 and Gordon’s the de- tion disposition incidental of Rule bate principally focused on the discrepant 12(b)(1) formulation, motions. Their I handwritten stamped dates on the re- think, analogizes functionally different receipt,7 just turn on the 12(b)(1) (6) and, fear, procedures, I when Gordon received notice of her needlessly straightforward encumbers the soliciting sue. Without evidence or infor- factfinding processes historically which matter,8 any mation of sort to elucidate the protected litigants 12(b)(1) in Rule District granted the motion and So, controversies. while I concur unhesitat- dismissed.9 ingly in remand of this case appropriate Subject-matter jurisdiction of a proceedings, I federal my state separately. reasons course, may, district court challenged be

I motion,10 a Rule though by no if Even the motion means is that posed to dismiss had method.11 Should problem subject-matter bona fide juris- jurisdiction facts dispute, critical to be in diction, the District are,12 Court’s action could not they ofttimes the court must make (1976 seq. 1. 42 Supp. following §§ 2000e et Ill option 10. “[T]he defenses at the pleader of the be made motion: ... lack of over the matter....” Fed. Complaint (filed 1981) Jan. Gordon v. 12(b)(1). U R.Civ.P. Alliance, National Youth Work Civ.No. 81-38 (D.D.C.), Appellant’s Appendix (App.) 2. The 11. See discussion in 5 C. A.& assertedly infringed other statutes are 42 Federal Practice 1350 at U.S.C. §§ and the District of Additionally, may, sponte, inquire a court sua Act, Rights Columbia Human D.C.Code 1- §§ jurisdiction. E.g., into the basis for its Butler v. seq. (1981). 2501 et Dexter, 47 L.Ed.2d Bern- (filed 3. Defendant’s Motion to Dismiss Feb. Pictures, Inc., stein v. Universal 1981) Gordon v. National Youth Work *7 1975); Salvage 979 Cir. Pacific Towboat & Alliance, 2, 13; supra App. note see 42 U.S.C. ICC, 727, (9th 1980); v. Co. 620 F.2d 729 Cir. 2000e-5(f)(l) (1976). (court 12(h)(3) Fed.R.Civ.P. must dismiss ac- appears, by suggestion par- tion whenever it 2, (filed 4. Defendant’s Motion to Dismiss Feb. otherwise, subject-mat- ties or that court lacks 1981) 2, at Gordon v. National Youth Work jurisdiction). Alliance, ter supra 2, App. note 13. 1, App. 5. Id. at 12. course, dispute inevitably 12. Of a factual is not 12(b)(1) a concomitant of a Rule motion. The Opposition 6. Plaintiffs to Defendant’s Motion be, challenge may not to the actual existence of (filed 13, 1, 1981) to Dismiss Feb. at Gordon v. jurisdiction, merely sufficiency to the Alliance, 2, supra National Youth Work note jurisdictional allegations pleading in the at- App. 23. tacked, 8(a)(1), see Fed.R.Civ.P. and in that event, disagreement may over the facts never 7. See at 359. difficulty If arise. is no more serious than inadequate jurisdictional allegations, the defect 8. See note 20 infra. may simply by be curable amendment. See 28 (1976); 15(a); 1653 Fed.R.Civ.P. Alliance, 9. Gordon v. National Youth Work su- Co., 2, pra Kaufman (order) (filed 27, v. Western Union Tel. 224 F.2d 1981), App. note Feb. 1.

363 appropriate inquiry,13 satisfy adequate and must it- strikes me fully to meet and fairly authority exigencies self entertain case.14 fact-determination type.18 on dismissal motions of this leeway The court in has considerable devis- ing procedures direction,15 in pursued Court, The course in the District resort written live evidence submitted quite was legal different. in connection with the The non- motion.16 principle central squab- to resolution of the must, however, moving party be afforded ble over timeliness Title VII Gordon’s ample opportunity present secure 90-day period suit was that filing was evidence juris- relevant the existence triggered the right-to-sue until notice simple, diction.17 methodology This direct actually was received.19 The fact— crucial 723, denied, (5th 1973); Cooper Penitentiary, 725 cert. 350 Cir. United v. States 947, 321, (1956); 596, (10th 76 100 L.Ed. 1970); S.Ct. 825 Jones 433 F.2d 597 Cir. see also Freeman, 383, (8th 1968). LeLandais, v. 308, 400 F.2d 387 Cir. Weisman v. 532 F.2d 309 n.3 (2nd 1976). Cir. Dollar, 731, n.4, E.g., 13. Land v. 330 U.S. 735 1009, n.4, 1209, 67 S.Ct. 1011 91 L.Ed. Analogy optional to the of a conversion Rule (1947), If, however, and cases there cited. 12(b)(6) motion into Rule 56 for sum- motion jurisdiction issue on is with intertwined mary judgment nonmoving thus confers on case, jurisdiction merits of the the decision on parties safeguards 12(b)(1) no that Rule case 735, postponed should be until at trial. Id. 67 already provide. may law does not It assist an 1009, 1209; S.Ct. at L.Ed. 91 at Jaconski v. simply effort to ascertain whether an issue of 931, Corp., 1966); (3rd Avisun F.2d 359 935 Cir. subject-matter fact material Railway Express Fireman’s Fund Ins. Co. v. genuinely presented, Exchange see Nat’i Bank 780, Agency, (6th 1958); 253 F.2d 784 Cir. Zu- Co., 16, supra v. Touche Ross & note 544 F.2d Brown, 883, (8th namon v. 418 F.2d Cir. 1131, only per- but extended further it can 1969). process vert the conversion to a use never intended. For E.g., Inc., Pictures, Bernstein v. Universal 11, supra 979; note F.2d Mortenson v. motion [t]he to dismiss for to state a failure and, Ass’n, 884, First Fed’l Savs. & Loan 549 F.2d claim raises bar if sustained (3rd 1977); Co., Forney Eng’g Cir. Green v. further, plead without leave to results in a 243, (5th 589 F.2d Cir. judgment merits. on the On the other hand (l)-(5) defenses numbered and defense num- Dollar, 13, 15. Land v. note 330 U.S. at (7) 12(b) bered of Rule do not matters raise n.4, n.4, 735 n.4; at 1011 91 L.Ed. at 1214 summary in bar. Since under Rule 56 on Buck, 71-72, 66, Gibbs v. 307 U.S. 1111, 59 S.Ct. judgment only matters on the can be merits (1939); 83 L.Ed. Seth v. judgment raised if is rendered thereun- 302, Corp., British (2nd Air Overseas F.2d bar, proper integrate der it is one in it was 858, Cir.), denied, cert. defense numbered failure state a Satz ITT Fin. claim, integrate with Rule and not Corp., specified 12(b) other defenses summary judgment rule. Dollar, supra 16. Land v. note 330 U.S. at Lucas, J. 2A J. Moore & Federal Practice at 1011 91 L.Ed. at 1214 (1981) (footnote omitted). 12.09 at 2313 Thus n.4; Exchange TI the Nat’l Bank v. Touche Ross & impropriety transforming (2nd 1976); summary-judgment motions into motions is Forney Eng’g Green v. Stanley CIA, well-settled. Cooke, F.2d at Berardinelli v. Castle & 1981); Timberlane Lumber Co. v. 1978); see also Am., 1976); Bank of Urquhart v. American-La France Foamite Progressive Steelworkers Corp., Union v. Internation (N.D.Ill. Corp., al Harvester F.R.D. Amperex *8 (1944); Sheldon v. 52 43(e) (“[wjhen Elees. L.Ed. 625 Fed.R.Civ.P. 1, (E.D.N.Y.), aff’d, (2d F.R.D. 146 449 F.2d appearing motion is on based facts not of rec 1971); Miller, Cir. 5 C. & A. Federal may ord hear the matter on affidavits (1969); presented by Practice 1366 at 676 respective 2AJ. Moore &J. parties, Lucas, may Federal Practice 12.09 at 2297 court ly direct the matter heard be whol Certainly analogy partly is not to secure testimony deposition”). or needed on oral or nonmoving litigant opportunity for the Urquhart v. American-La France Foamite opponent equal on battle his terms. 16, supra 221, U.S.App.D.C. note 336, 144 F.2d at Chesapeake Local Am. Fed’n of Musi- 19. Shehadeh v. Tel. Potomac Bonatz, 433, Co., 326, n.22, cians v. U.S.App.D.C. 475 F.2d Cir. not, receipt-r-could however, litigation sector relationship the date of be has no to sub- soundly simply inspection by Thus, determined ject-matter jurisdiction. while time- receipt.20 the return The matter was not liness is an of the plain- essential element probed deeply, given more nor was Gordon claim, tiff’s tardiness does not affect supportive a chance to establish facts of her power court’s to entertain it. For that rea- instead, court, position; without benefit son, charge noncompliance with the parties’ of more than the written submis- 90-day provision presented, is properly sions, Had, dismissed the case in toto.21 12(b)(1), by a motion under Rule but rather then, question truly the motions by 12(b)(6), one under Rule which summons subject-matter jurisdiction, been this mode procedures. distinctive To a discussion of dealing require with it would reversal. propositions these I now turn. frequently

Federal courts have referred II to Title litigation- VII’s time limitations on initiation, administratively whether done fundamentally, problem More con- judicially, “jurisdictional” prerequisites.22 fronting the District Court was of an en- undoubtedly explains This why both the sort, tirely different and so too was the movant and the District Court deemed un- legal theory upon which the court should jurisdictional timeliness a auguring default gone have Correctly analyzed, forward. consequences. Usually, the cases Timely case comes to this. commencement of a have left ordinarily uncertainty Title VII action considerable as to the precon- maintenance, precise dition to its meaning particular but Title which in VII’s 90-day requirement suit-filing private- context the court intended to ascribe to the 711, cited; (1978), (5th grounds, n.22 and cases there Bell rev’d on other Brown, 226, U.S.App.D.C. 747, 1251, 229-230 (1976); 47 L.Ed.2d 444 557 F.2d 852-853 n.27 Union, cases Chicago supra Archie v. Truck Drivers cited; Chicago there Archie v. Truck Drivers Compare note 585 F.2d at 214-216. Bell v. Union, Brown, supra U.S.App.D.C. note 233-234 & 557 F.2d at 856-857 & n.65. questions conceivably 20. Two confronted the Because I am uncertain as to the basis of the District Court. The first was whether the no- ruling, particu- District Court’s dismissal tice of to sue was delivered at Gordon’s larly passed whether the court on the latter 7, 1980, days residence on October or two later. question, I do not address it here. If it did not arrive until October Gordon’s timely, action was and the motion to dismiss Alliance, 21. Gordon v. National Youth Work If, hand, should have been denied. on the other (order) (filed 27, 1981), App. Feb. delivery slightly was made on October more 7— difficulty 1. A further with the days District Court’s prior than 90 to institution of Gordon’s disposition is the additional dismissal of suit —the further Gor- would have been receipt 1981, 1985, whether don’s claims the notice under U.S.C. §§ Gordon’s legally equivalent receipt by Rights mother was and the District of Columbia Human and, not, just accompanying herself if when it reached Act. See note 2 text. may accepted my Gordon. The District agree colleagues respect I that in this the handwritten “10-7-80” on the return re- improper. the court’s action was See note 1. ceipt delivery, stamped as the date of and the part postmark signify- “OCT. 9 1980” as of the See, Evans, e.g., Airlines v. United 431 U.S. ing mailing signed receipt of the back to the 553, 560, 1885, 1890, sender, may and from that have reasoned that Co., (1977); Alexander v. Gardner-Denver 90-day October 7 was the date on which the period began. 36, 47, 1011, 1019, 39 L.Ed.2d This factual deduction be (1974); Douglas Corp. 157-158 McDonnell correct, necessarily but it does not follow from Green, 1817, 1822, alone, problem the dates nor does it touch the (1973); 36 L.Ed.2d ny, 675-676 Coles v. Pen- receipt of whether of the notice the mother receipt by was tantamount Gordon. It has Bickham v. been held that the doctrine of constructive re- 1978); Harris v. National Tea ceipt place jurisprudence, has no in Title VII City Shea v. and that a time limit therein does not com- Paul, of St. receipt by employee. mence until the affected Transp. Franks v. Bowman *9 TWA,26 oft-repeated “jurisdictional,”23 Supreme flatly word and the held that Court charges filing administratively of jurisdic- timely to any subject-matter assimilation against private-sector employer a not a is generally highly ambiguous tion has been at jurisdictional precondition to a civil action best. seldom Title VIPs But have time court, in a a requirement federal but “sub plainly jurisdic- limitations been considered waiver, ject equitable to and toll estoppel tional in the sense that nonobservance robs ing” just of like a statute limitations.28 authority hear and of to resolve The rationale decision unerr leads that plaintiff’s claim.24 To the extent that ingly to the 90-day the conclusion suit- “jurisdictional” our own characterizations filing provision juris here is involved not a of those limitations been at revealing indeed, absolute;29 had dictional Court all, they are irreconcilable with the notion year indicated so much a earlier. In Mohas that subject-matter was affect- Silver,30 plaintiff co v. missed the Corp. ed in the least.25 90-day by day, yet deadline one rate, At any any no reason for dilemma sponte did sua the plaintiff’s not dismiss today. Very recently, Zipes subject-matter remains in v. jurisdic- action for want of Co., thereafter, Shortly posi- 23. Hart J. T. Baker Id. v. Chem. we reaffirmed that (3d 1979) (“term ‘jurisdictional prereq- declaring, charge-filing tion in context crept jurisprudence uisite’ has VII ... into Title (1976), “require- § U.S.C. 2000e-16 explanation underlying logic with no of its complainant approach designated ment that a guidance determining appli- thus no real in its agency period within a set time after Co., cability”); Chappell v. Emco Mach. Works employer jurisdictional has is discriminated 1979) (“con- 601 F.2d ceptual sense,” accordingly in the strict that the apparent area). confusion” in this of what need deter- “definition is not be jur- mined with the harshness characteristic filing 24. to Failure meet Title VII oc deadlines Jefferson, requirements.” isdictional Bethel v. casionally'has destroy subject- been to held U.S.App.D.C. 119 & Int’I, jurisdiction. See Hinton v. CPC (1978). recently, n.64 More we 641 & 1975) (failure filing “that the time reiterated charges restrictions on comply limitations); suit-filing to with time subject jurisdictional, ... is not Marquette Co., Stewart v. & Tool Die deserving cases.” Shehadeh v. extension aff'd, F.Supp. (E.D.Mo.), 527 F.2d 127 Chesapeake Potomac Tel. note 1975) (failure comply adminis U.S.App.D.C. at at 718 charge-filing limitations); trative time Alston v. n.23. Allegheny 553, F.Supp. Ludlum Steel aff’d, (W.D.Pa.1978), 594 F.2d 854 - U.S.--, 1979) (failure 26. comply 102 S.Ct. 71 L.Ed.2d with administra (1982). charge-filing limitations); Geronymo tive time Joseph F.Supp. 1157, Horne (W.D.Pa.1977) (failure comply with suit-fil 2000e-5(d) (1970 ed.), cur- See 42 U.S.C. § ing limitations). time 2000e-5(e) rently codified at 42 U.S.C. § (1976). years ago, 25. Several we held that the time 2000e-5(d) (1970 ed.), limitation in U.S.C. § - TWA, Zipes currently 2000e-5(e) codified at 42 -, 102 S.Ct. at 1132. (1976), filing administratively charges against private-sector employer juris- is not a upon 29. The Court drew the text of limita- absolute, equita- dictional and thus is underlying provision, tion re- the structure appropriate ble modification in circumstances. VII, purpose medial legislative history, of Title elements Airlines, Laffey v. Northwest reasoning cert, and the of the at-, prior Id. Court’s decisions. L.Ed.2d 792 1132-1135. These considerations as in- (1978). We found that conclusion unembar- suit-filing structive for Title as its VII’s by precedent, “[njothing rassed and that in the charge-filing specifications. Cf. Saltz v. Leh- legislative history compelled] us to treat [Title man, (D.C.Cir.1982), (anal- 672 F.2d 207 at 208 jurisdictional; VII’s time on the limitations] ysis Zipes equally applicable contrary, legislative history, although very charge-filing set forth restriction in 42 U.S.C. provisions, suggested] limited on the time 2000e-5(e)-(f) (1976)). Congress operate similarly intended them to Adhering statutes of limitations.” Id. to that analogy, filing period we ruled that the could 30. 447 U.S. 65 L.Ed.2d inequitable be tolled defendant’s conduct. *10 366 Rather, consequences upon court.31 the same

tion in the district attendant tardi- merely noted that the defendant “did complying ordinary statutes of ness plaintiff’s] not assert failure to file the [the limitation.37 defense,”32 days as action within 90 90-day provision may It follows that merits of the case.33 At proceeded asserting be invoked a motion circuit has ruled that nonsatisfac- least one requirement, nonobservance of its time 90-day requirement tion of the does not plaintiff’s complaint does not state a claim deprive jurisdiction,34 of and I am the court upon granted. which relief can be Such in full accord. purview motion falls well within the say, is That not 12(b)(6)38 procedural and activates 90-day suit-filing restriction on lacks either machinery supplied for motions in that cat- certainty importance when viewed in its egory. The motion confines the court proper operative many mode. Like its complaint,39 garners face of contexts, counterparts great variety in a complaint dismissal if the itself makes repose, it an designed is instrument of evident the action is time-barred.40 protect employers from stale claims.35 Nor- Alternatively, may decide to treat mally, timeliness is an essential element of summary judgment, the motion as one for claim, employee’s indispensable and is additionally in which event look By to success on the merits.36 the same token, I believe untimeliness invites types designated extrinsic materials of the 348-349, 582, 788, 586, 90-day period 31. If observance of the were in 64 S.Ct. 88 L.Ed. 792 component subject-matter fact (1944). essential jurisdiction, sponte sua dismissal of the claim appropriate would have been the course of ac- v. EEOC Louisville & N.R.R. 11, supra. tion. See note 610, (5th denied, 1974), cert. 423 824, 39, (1975); U.S. 96 46 L.Ed.2d 41 S.Ct. Silver, 30, Corp. 32. Mohasco v. 447 Bruno, 549, (7th Cir.), Kalmich v. 553 n.9, U.S. at 811 100 S.Ct. at 2489 65 denied, 432, 940, cert. 434 U.S. 98 54 S.Ct. L.Ed.2d at 539 n.9. (1977); Ingenito Corp., L.Ed.2d 300 v. Bermec 1154, (S.D.N.Y.1974); F.Supp. 376 1165 In re 826, 2497, 33. See id. at 100 65 S.Ct. L.Ed.2d 366, Litig., F.Supp. Caesars Palace Secs. 360 at 539. (S.D.N.Y.1973); 377 cf. United States v. Sweet 1163, Corp., Dist., 1362, 34. See Brown v. Mead F.Supp. Homes Cent. School 407 (6th 1165 (W.D.N.Y.1976) (statutory Fox v. requirements Eaton 615 1364 716, denied, F.2d notice, cert. charge, investigation, determination 935, (1981); U.S. 101 S.Ct. cause, 67 L.Ed.2d 371 of reasonable and conciliation EEOC Cincinnati, University cf. Leake v. regarded action). parts are best of cause of 1979) (administrative charge- filing limitations). time Lehman, 37. See text at note Saltz v. supra note 29. Utah, Pipe 35. American & Constr. Co. v. 538, 554, 756, 766, U.S. 38 L.Ed.2d holding legion. 38. The cases so See the (1974); R„ Burnett v. New York Cent. R. Miller, Wright collections in 5 A. Federal C. & 380 U.S. (1969); Practice Lucas, 1357 at 608 2A § J. Moore & J.. (1965); Spector L.Ed.2d Freight Sys., Macklin v. ([ Federal Practice 12.10 at 2314-2316 (1981). (1973). ‘pro- “Such statutes justice by preventing surprises through mote Miller, 12(b); Wright 39. Fed.R.Civ.P. C. & A. the revival of claims that have been allowed to (1969); Federal Practice 1356 at 592 see also lost, slumber until evidence has been memories cases cited infra note 43. faded, disappeared. and witnesses have theory just is that even if one has a claim it Gibson, 41, 45-46, E.g., Conley unjust put adversary on notice to 99, 102,2 (1957); period defend S.Ct. Thom within the of limitation and that Garland, Louis, right City to be as W. Inc. v. of St. free of stale claims in time Cir.), prevail prosecute comes to F.2d 899, over the ” R.R., them.’ Burnett v. New York 62 L.Ed.2d 135 Rus Cent. su- pra, Landrieu, 380 U.S. at sell v. quoting Telegra- generally L.Ed.2d at See A. Order R.R. 5 C. phers Railway Express Agency, Federal Practice *11 may, The court by Rule 56.41 technique par-

resort to this after “all NATIONAL ASSOCIATION OF given opportunity BROADCASTERS, Petitioner, ties reasonable [are] present pertinent materials made all [thus] v. .,”42 grant cannot the motion unless .. and TRIBUNAL, COPYRIGHT ROYALTY appears from data it authorized that there Respondent, genuine nois issue of material fact and that judgment the movant is entitled to a as a Major Baseball, League al., et Motion Pic sur- matter of law43 If motion cannot America, Inc., ture Association of Chris demands, vive these the court must remit Network, Inc., Broadcasting tian Broad disputes the factual trial.44 Music, Inc., Superstation, Inc., cast Na Radio, Broadcasting tional Public Public That, believe, I is the course District Service, Collegiate National As Athletic should have followed here. Accord- sociation, Intervenors. ingly, join I and reversal remand in order now m(ty be done.45 RADIO, Petitioner, NATIONAL PUBLIC

v. TRIBUNAL, COPYRIGHT ROYALTY Respondent, Major Baseball, al., League et Motion Pic America, Inc.,

ture Association of Chris Broadcasting Network, Inc., tian Broad Music, Inc., cast National Association Broadcasters, Superstation, Public Service, Broadcasting Collegi National Association, ate Athletic Intervenors. Stanton, 12(b); present pertinent 41. Fed.R.Civ.P. Carter v. 405 all material made to such by U.S. 92 31 L.Ed.2d motion Rule 56. 569, (1972); Gould, Chafee, Chesapeake U.S.App. 572 Shehadeh See v. also Inc. v. Co., 19, 208, 206, 667, supra U.S.App. (1971); Potomac Tel. note D.C. 450 F.2d Dale v. Hahn, 633, n.41; (2d 440 F.2d D.C. at 334 595 F.2d at 719 Cir. Mazale 826, 44, Truesdale, 189, U.S.App.D.C. ski v. (1974); Murphy (1977); Fagan v. Inexco Oil 611 F.2d 562 F.2d v. National Bell, 1980); Cooper Register Cash 1980). 1126 n.25 Sims v. Mercy Hosp., 1971). Stanton, 56(c); 43. Fed.R.Civ.P. Carter v. Summary-judgment motions must be served at note 405 U.S. at days prior hearing least ten to the date. Fed.R. Prade, L.Ed.2d at 862, Taton La 56(c). interpreted Civ.P. At one has least court 10 C. A.& interplay requiring Rules and 56 as Federal Practice parties days least receive at ten notice being motion to dismiss is converted Roscoe, See Oaxaca v. by summary judg into a motion court (5th Cir. Hickey Indus., Inc., ment. See v. Arkla plain 45. The Rules call for “a short and Civil showing plead- statement claim that the 12(b), 56(c). 12(b) pro- 42. Fed.R.Civ.P. 8(a)(2). er is entitled relief.” Fed.R.Civ.P. vides: complaint any allegation Gordon’s concerning is devoid of If, asserting on the motion ... notice, the defense right-to-sue although pleading failure of the [of] to state a copy claim of the notice was attached to the com- upon granted, which relief can be (filed 7, 1981), matters plaint. Complaint Jan. pleading presented Alliance, outside the v. National Youth Work court, excluded App. the motion shall be Consequently, I would direct the Dis- summary judgment treated disposed one grant as trict Court on remand Gordon leave to provided complaint allegations receipt and all amend her parties given opportunity upon shall be reasonable action the notice.