Summary
The Ninth Circuit reversed summary judgment for the Secretary of Defense in a Rehabilitation Act employment-discrimination action. The court held that the 90-day limitations period for filing suit did not begin until the plaintiff’s attorney received an accessible, decrypted copy of the agency’s final decision, and alternatively held that equitable tolling applied. The case was remanded for consideration of the merits.
Topics
Practice areas
Questions Presented
- When did the 90-day limitations period for a federal employee's Rehabilitation Act action begin where the agency transmitted an encrypted final agency decision but errors prevented the plaintiff's attorney from accessing it?
- Whether equitable tolling applied because the plaintiff's attorney diligently sought access to the agency decision and extraordinary circumstances prevented timely access.
- Whether the district court properly granted summary judgment on timeliness.
Holdings
- For an electronically transmitted final agency decision, the 90-day limitations period does not begin until the claimant's attorney can realistically be held responsible for having access to the decision and learning what the agency decided. Under the circumstances, Asuncion's attorney did not have effective notice until December 5, 2022, when he received an accessible, decrypted copy.
- Asuncion was entitled to equitable tolling because his attorney diligently pursued access to the agency's decision and extraordinary circumstances prevented timely access. Applying equitable tolling, the limitations period began on December 5, 2022, and the complaint was timely.
Key quotations
“We hold that the 90-day limitation period did not begin until Luiz could realistically be held responsible for having access to the FAD and learning what the agency had decided.” (17)
“We hold that Asuncion is entitled to equitable tolling.” (18)
“Applying equitable tolling, Asuncion’s statute of limitations period did not begin to run until he received the decrypted copy of the FAD on December 5.” (19)
Factual background
Rodolfo Asuncion worked for the Defense Logistics Agency for approximately 30 years and alleged that PTSD and other impairments required reasonable accommodation. The DLA indefinitely suspended him without pay after workplace incidents and concluded that he had not established disability discrimination, harassment, or reprisal. The agency transmitted its final agency decision through an encrypted DoD SAFE system, but repeatedly supplied incorrect or confusing case numbers and passphrases, preventing Asuncion's attorney from accessing the decision until the agency emailed a decrypted copy on December 5, 2022. Asuncion filed suit 88 days later.
Procedural history
Asuncion sued his former employer, the Defense Logistics Agency, alleging disability discrimination under the Rehabilitation Act. The district court held that the complaint was filed more than 90 days after presumed receipt of the agency's final agency decision, declined to apply equitable tolling, and granted summary judgment to the Secretary of Defense. The district court denied reconsideration, and Asuncion timely appealed.
Remand instructions
The district court must address the merits of Asuncion's Rehabilitation Act claim.