[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1413
JULIA TIRADO, ET AL.,
Plaintiffs, Appellants,
v.
U.S. DEPARTMENT OF VETERANS AFFAIRS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
Emilio F. Soler for appellant.
Lowell V. Sturgill, Jr., with whom Frank W. Hunger,
Assistant Attorney General, Guillermo Gil, United States
Attorney, and Robert S. Greenspan, Appellate Staff, Department of
Justice, were on brief, for appellees.
March 11, 1997
Per Curiam. We affirm the judgment below on the basis
Per Curiam.
of the district court's well-reasoned order dated February 5,
1996. We add only a brief comment.
The concept of an ordered liberty requires that the law
draw temporal lines. Any time such a line is drawn, however,
there will always be litigants who fall just short. Holding the
line in those instances may seem harsh, but it is essential to
the proper functioning of our legal system.
This is such a case. Under a valid and concededly
applicable regulation, 29 C.F.R. 163.214(a)(1)(ii) (1992), the
plaintiff had to file her complaint charging discrimination in
employment with the EEOC within 15 days of receipt of the Notice
of Final Interview. The plaintiff missed the deadline by eight
days. And, while equitable tolling, as the plaintiff argues, is
available in an appropriate case, see, e.g., Irwin v. Department
of Veterans Affairs, 498 U.S. 89, 95-96 (1990), the contours of
the exception are narrow and its use is rare, see Jensen v.
Frank, 912 F.2d 517, 521 (1st Cir. 1990); Mack v. Great Atl. &
Pac. Tea Co., 871 F.2d 179, 185 (1st Cir. 1989).
In this case, we agree with the lower court that the
facts of record, even when taken in the light most favorable to
the plaintiff, do not permit the invocation of the doctrine.
See, e.g., Kelley v. NLRB, 79 F.3d 1238 (1st Cir. 1996). Among
other things, there is no factual support for a finding that the
untimely filing resulted either from conduct attributable to the
defendants or from circumstances beyond the plaintiff's control.
2
Applying the test laid down in Kelley, 79 F.3d at 1249-50 an
appeal which, on the facts, perhaps presented a more compelling
(but, nonetheless, still unsuccessful) case for equitable tolling
the plaintiff is plainly not entitled to relief. Her Union's
blunder, like the plaintiff's lawyer's error in Kelley, is fully
chargeable to her.
We need go no further. The judgment below is
Affirmed.
Affirmed
3