APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (d.c. c/ivil No. 73-905)
Before GIBBONS, VAN DUSEN, Circuit Judges, and FISHER,*fn* District Judge
Thaddeus Dais, a black employee of the United States Department of Navy, appeals from a District Court order granting the defendant's motion for summary judgment. The appellant had intervened as a party plaintiff in an action claiming that the supervisors of the Philadelphia Naval Shipyard had been engaging in discriminatory practices against their black employees. The Court granted summary judgment against Dais on the ground that, at the time Dais intervened, he had neither waited more than 180 days after filing a complaint with the Equal Employment Opportunity Commission nor received an adverse decision from that commission. The Court concluded that since Dais had not exhausted his administrative remedies prior to intervening in the federal civil action, the Court lacked jurisdiction under 42 U.S.C. § 2000e-16(c). We agree with the appellant that the District Court erred in granting summary judgment against him on the ground that he had failed to exhaust his administrative remedies. Consequently, we reverse the District Court's order and remand the case for further proceedings.
The appellant is a federal employee working as an electrical test mechanic at the Philadelphia Naval Shipyard. On July 21, 1972, pursuant to the applicable regulations for processing equal employment opportunity complaints, Dais filed an administrative complaint with the Shipyard Commander. This complaint alleged discriminatory practices by white supervisors against Dais and other black employees. After being assured by Equal Employment Opportunity officials that the Shipyard Commander would take steps to end the racial discrimination, Dais withdrew his formal discrimination complaint on July 27, 1972, and resubmitted it as an informal letter of action addressed to the Commander. See Appendix to Appellant's Brief, at p. 42.*fn1 The Commander then directed Irene Miller, an Equal Employment Opportunity Investigator, to investigate the allegations of Dais' complaint. In the next six to eight months, however, no official decision was made by the Commander. Consequently, in March, 1973, Dais inquired of the Civil Service Commission about the status and findings of Miller's investigation. On March 21, 1973, the Shipyard Commander finally responded to Dais' July 27, 1972 letter. In that response the Commander stated that there was no evidence of racial discrimination in the shop in which Dais worked but that he had found certain administrative practices which required modification. See Appendix to Appellant's Brief, at p. 47.*fn2 The Commander did not provide Dais with a copy of the investigator's report. Dais complained about the Commander's actions in an April 17, 1973 letter to John Warner, the Secretary of the Navy. Id. at p. 52. In addition, a petition signed by many black employees and requesting that the investigator's report be released was presented to the Shipyard Commander. Id. at p. 48.
Dais filed formal discrimination complaints against the Shipyard Commander and other officials on March 30, 1973, and again on May 31, 1973. The March 30, 1973 complaint was investigated by the Equal Employment Opportunity Commission, which rendered a final decision, adverse to Dais, on November 5, 1973. On Dais' appeal, the United States Civil Service Commission affirmed this decision on March 19, 1974. On September 19, 1973, the agency rendered a final decision on the May 31, 1973 complaint, again adverse to Dais. No appeal was taken from that decision to the Civil Service Commission.
On June 13, 1973, Dais intervened as a party plaintiff, both in his individual capacity and as a representative of others similarly situated, in Richerson v. Jones, Civ. No. 73-905. On February 5, 1974, the District Court conditionally certified that the action should be maintained as a class action. After the defendant moved for reconsideration of that order, however, the Court vacated the class certification order and ordered that the case would proceed on the claims of the named plaintiffs in their individual capacities.*fn3 On September 11, 1974, the defendant filed a motion to dismiss or alternatively for summary judgment against the plaintiffs. The defendant argued that Dais had failed to exhaust his administrative remedies because, at the time Dais intervened, 180 days had not passed from the March 30, 1973, or May 31, 1973, complaints. On April 18, 1975, the District Court granted the defendant's motion, holding that since Dais had withdrawn his July 21, 1972 complaint, that complaint could not be regarded as the "initial charge", within the meaning of 42 U.S.C. § 2000e-16(c), for purposes of the 180-day exhaustion period.
Subsequently, the plaintiffs brought motions to reconsider the judgments. On July 16, 1975, the District Court vacated that part of its April 18th order granting summary judgment against Dionysius Richerson. However, since in its view all the other plaintiffs had failed to exhaust their administrative remedies, the Court denied their motions for reconsideration. On December 18, 1975, the District Court ordered that judgment be entered for plaintiff Richerson and against the defendant. Dais filed a Notice of Appeal with the District Court on January 17, 1976.
II. TIMELINESS OF DAIS' PRESENT APPEAL
Before we consider the merits of the District Court's decision, we must address a threshold issue raised by the government - the timeliness of Dais' appeal. Rule 4 of the Federal Rules of Appellate Procedure provides that the notice of appeal from a judgment in a case in which the United States is a party shall be filed within 60 days of the entry of that judgment. The government argues that, for purposes of appeal under 28 U.S.C. § 1291, the summary judgment entered against the appellant on April 18, 1975, was a final appealable order. Since the period between April 18, 1975, and January 17, 1976, the date on which Dais' notice of appeal was filed, clearly exceeded the 60 days allowed by Rule 4, the government argues, this appeal is not timely and, consequently, this court lacks appellate jurisdiction. For the reasons discussed below, we do not find the government's argument persuasive
The principal error in the government's argument is its failure to recognize that certain post-trial motions toll the 60-day time limit for taking appeal. Rule 4(a) of the Federal Rules of Appellate Procedure provides in part:
The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the district court by any party pursuant to the Federal Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from the entry of the following orders made upon a timely motion under such rules: ... (3) granting or denying a motion under Rule 59 to alter or amend the judgment;...
In order to toll the time limitation for appeal, a motion must satisfy two conditions. First, that motion must be one of the motions listed in Rule 4(a) of the Federal Rules of Appellate Procedure. Second, it must be timely. Sonnenblick-Goldman Corp. v. Nowalk, 420 F.2d 858, 859 (3d Cir. 1970). Both conditions were satisfied here. Dais fashioned his motion below as a motion to reconsider the judgment. We have previously held that, for purposes of Fed. R. App. P. 4(a), such a motion qualifies as a rule 59 motion to alter or amend the judgment. Sonnenblick-Goldman Corp. v. Nowalk, 420 F.2d 858, 859 (3d Cir. 1970); Gainey v. Brotherhood of Railway & Steamship Clerks, 303 F.2d 716, 718 (3d Cir. 1962). In addition, since Dais filed the motion in the district court within 10 days of the entry of the summary judgment against him, the motion was timely under Rule 59(e) of the Federal Rules of ...