David L. Green v. Ray Mabus Secretary, Department of the Navy On Appeal from the United States…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1246
DAVID L. GREEN,
Appellant
v.
Ray Mabus*
Secretary, Department of the Navy
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 07-02640)
Honorable Ronald L. Buckwalter, District Judge
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 18, 2009
BEFORE: SLOVITER, JORDAN, and GREENBERG, Circuit Judges
(Filed: January 19, 2010)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
*Pursuant to Fed. R. App. P. 43(c)(2).

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The District Court had jurisdiction under 42 U.S.C. § 2000e-16 and we have1
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review on this appeal.
There is some confusion in the record as to what motion the District Court granted2
after it granted Green’s motion for reconsideration. Winter moved for both an order of
dismissal and for summary judgment and in its opinion the District Court set forth the
standards for consideration of both motions, thereby suggesting that it was granting both a
motion to dismiss and a motion for summary judgment. Yet at the outset of its opinion
the Court, after reciting that it was considering a “Motion to Dismiss Complaint and/or
for Summary Judgment,” indicated that “Defendant’s Motion to Dismiss is granted,” app.
2
This matter comes on before this Court on an appeal from an order of dismissal
entered in the District Court on December 19, 2008, under Fed. R. Civ. P. 12(b)(6).
Appellant, David L. Green, an employee of the Department of the Navy, initiated this
action pro se in the District Court against Donald C. Winter, the Secretary of Navy in his
official capacity, charging that he, Green, submitted an application to his federal employer
for the position of supervisor accountant but that the Department of Navy refused to
acknowledge or accept his application “due to plaintiff[‘s] race/color/sex/reprisal, etc.”
App. at 33. Winter moved for summary judgment and the District Court dismissed the
action because Green did not respond to Winter’s motion. Green then moved for
reconsideration and the District Court granted his motion. Nevertheless, in a December
19, 2008 comprehensive memorandum opinion and accompanying order, the Court
granted Winter’s motion to dismiss on the merits. The appeal followed.1
The District Court set forth the background of the matter and its reasons for
dismissing the action in its memorandum opinion and thus we need not restate at length
what the Court said. It is sufficient to point out that the action failed in the District Court2

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at 163, and the accompanying order closing the case did not mention summary judgment
but stated that “Defendant’s motion to Dismiss in GRANTED.” App. at 178. We,
however, will not linger on this point as we are considering the appeal exercising plenary
review of the District Court’s opinion and order and, in turn, are considering the case on
both the standards for granting motions to dismiss and for summary judgment.
The District Court denied Green’s repeated applications for appointment of an3
attorney to represent him in orders that he regards as “an abuse of discretion.”
Appellant’s br. at 9. However, Green does not make a real argument supporting that
contention which therefore is not properly before us. See Pennsylvania Dep’t of Pub.
Welfare v. United States Dep’t of Health and Human Servs., 101 F.3d 939, 945 (3d Cir.
1996). In any event, the Court did not abuse its discretion in denying the appointment as
Green is an experienced litigator who should have been capable of proceeding pro se. In
this regard we point out that the statement of related cases in Winter’s brief lists one
appeal to this Court, four district court actions, and seven administrative proceedings
before the EEOC.
3
for three reasons. First, the Court held that Green did not contact an Equal Employment
Opportunity counselor at his agency within 45 days “of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of the effective date of
the action” as 29 C.F.R. § 1614.105(a)(1) requires. Second, Green did not file a timely
notice of appeal with the Equal Employment Opportunity Commission (“EEOC”)
following a final order of the Department of the Navy mailed to him on March 2, 2002,
after a determination that there had not been discrimination against him. Third, the
doctrine of sovereign immunity barred a due process of law complaint that Green brought.
We, however, address only the first two points as Green does not challenge the sovereign
immunity holding.3
Exercising plenary review we see no reason to reject any of the District Court’s
conclusions. To start with, Green knew on December 24, 2003, well over 45 days before

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4
he contacted an EEOC counselor on February 9, 2004, that his employer did not appoint
him to the position he had been seeking, and in his brief he does not deny that he had that
knowledge. Rather, he contends that he did not know for another month after December
24, 2003, that he was deprived of the appointment by reason of what he regards as
discrimination against him. But the fact remains that he knew in December 2003 that the
alleged discriminatory act, i.e., the failure of the Navy to make the appointment he sought,
had occurred, and thus he was aware in December 2003 that he had been injured by the
Navy’s conduct. Accordingly, 29 C.F.R. § 1614.105(a)(1) bars this action. See Oshiver v.
Levin, Fishbein, Sedron, & Berman, 38 F.3d 1380, 1391 (3d Cir. 1994).
We recognize that Green contends that an EEOC counselor advised him on
February 20, 2004, not to file a formal complaint. But we do not see why that matters as
by that time his 45-day period to contact a counselor had expired. In any event, the
counselor only gave Green advice which did not preclude him from filing a formal
complaint which, in fact, he did on May 18, 2004.
Furthermore, the District Court correctly concluded that Green’s appeal to the
EEOC was untimely. As we set forth above, the Department of the Navy mailed Green a
notice on March 2, 2002, that there had not been discrimination against him. He had 30
days plus five days added for receipt of the mail notice to him to appeal from that finding
to the EEOC. See 29 C.F.R. § 1614.402(a). Nevertheless, he did not appeal until April
12, 2002, and thus he simply did not meet the deadline for an appeal. While we recognize

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5
that the EEOC in its decision affirming the dismissal of Green’s complaint recited that the
appeal was “timely,” it did not explain why it believed that to be so. In any event, the
appeal was not timely and the EEOC’s statement to the contrary does not make it so or
bind us. See Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 754 n.9 (3d Cir.
1983); superceded on another matter by 29 C.F.R. § 1601.13(a)(4). The situation is no
different than when on an appeal a court of appeals determines if a district court had
subject matter jurisdiction in the case on appeal. A district court’s conclusion that it had
jurisdiction does not bind a court of appeals on an appeal from the district court. See
Emerald Investors Trust v. Gaunt Parsippany Partners, 492 F.3d 192, 197 (3d. Cir. 2007).
In any event, even if the EEOC was correct the action still would be barred by reason of
Green’s delay in contacting an EEOC counselor.
The order of December 19, 2009, will be affirmed.

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