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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 30, 2003
FOR THE FIFTH CIRCUIT
_____________________
Charles R. Fulbruge III
Clerk
No. 02-51272
_____________________
ROBIN MARTIN,
Plaintiff - Appellant-Cross-Appellee,
versus
ALAMO COMMUNITY COLLEGE DISTRICT,
Defendant - Appellee-Cross-Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________________________________________________
Before JOLLY, SMITH, and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Robin Martin ("Martin") appeals the district court's dismissal
of her claim as time barred. Alamo Community College District
("Alamo") cross-appeals the district court's denial of Eleventh
Amendment immunity and attorney's fees. We REVERSE the district
court's dismissal of Martin's claim as time barred and DISMISS
Alamo's appeal of the district court's denial of its claim of
Eleventh Amendment immunity.
I
The procedural facts in this case are slightly offbeat. This
appeal arises from the second lawsuit filed by Martin. The first
lawsuit arose -- as indeed does this second lawsuit -- in 1999,

from Martin's charge with the Equal Employment Opportunity
Commission ("EEOC") against Alamo, her employer. Her complaint
stated claims for failure to accommodate her disability, for
harassment, and for retaliation. The EEOC investigated and, after
deciding not to file suit on Martin's behalf, it issued Martin a
"Notice of Right to Sue" on September 17, 1999, allowing 90 days fo
file suit. Accordingly, Martin filed her first suit ("Martin I")
on December 17, 1999. On the same day, however, the EEOC mailed a
second letter to Martin, which informed her that it had re-opened
its investigation and thus had rescinded the original notice of
right to sue. Based on this letter, Martin took no steps to serve
Alamo. She did not dismiss her complaint, however.
Five months later, Alamo still had not been served with the
complaint. Consequently, the district court ordered Martin to show
cause why she had not served Alamo. Martin responded that she had
not served Alamo based upon her belief that she did not have the
right to do so until she received another notice of right to sue
from the EEOC. The district court dismissed Martin's complaint
without prejudice on June 22, 2000.
On August 18, 2000, the United States Department of Justice
("DOJ") decided not to sue on Martin's behalf and issued another
2

right to sue letter.1 Martin then re-filed the instant suit
("Martin II") against Alamo on November 16, 2000.
On November 27, 2001, Alamo filed a Motion to Dismiss for Want
of Jurisdiction or, in the Alternative, Motion for Summary
Judgment. On August 9, 2002, the district court denied Alamo's
motion, ruling that Alamo was not entitled to Eleventh Amendment
immunity.
Finally, on August 21, 2002, the district court granted
Alamo's motion for summary judgment on the ground that Martin's
claim was time barred. Martin filed a motion to reconsider, which
was denied on November 1, 2002, and on November 19, 2002, Martin
filed her notice of appeal. Alamo also cross-appealed and filed a
notice of appeal with this Court on December 10, 2002.2
1This is the first letter issued by the DOJ. The EEOC had
forwarded the complaint to the DOJ which then decided not to sue.
"[I]t is the Justice Department that may sue state and local
governments" under the Americans with Disabilities Act. 2 BARBARA
LINDEMANN & PAUL GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 1532 (3d ed. 1996).
2Alamo mailed its notice of cross-appeal to the Clerk of the
Fifth Circuit Court of Appeals, Mr. Charles Fulbruge, III, on
December 6, 2002 and this letter was received on December 10, 2002.
Alamo then properly mailed notice of cross-appeal to the district
court on December 10, 2002 which was received on December 11, 2002.
"If a notice of appeal in either a civil or a criminal case is
mistakenly filed in the court of appeals, the clerk of that court
must note on the notice the date when it was received and send it
to the district clerk. The notice is then considered filed in the
district court on the date so noted." FED. R. APP. P. 4(d). Thus,
because Alamo's notice was stamped by the Fifth Circuit Court of
Appeals clerk as being received on December 10, the notice will be
considered filed as of this date.
3

Martin challenges the district court's dismissal of her claim
as time barred. Alamo, in its cross-appeal, challenges the
district court's denial of its motion to dismiss based on Eleventh
Amendment immunity.
II
A
As all who are familiar with this field of law know, if the
EEOC determines that there is no reasonable cause to believe that
an unlawful employment practice has occurred, the EEOC issues a
letter informing the aggrieved party that it has the right to sue
in federal district court ("right to sue letter") within 90 days of
the receipt of the letter. 29 C.F.R. � 1601.19(a). This letter is
prerequisite to a lawsuit.
The EEOC mailed Martin's right to sue letter on September 17,
1999. We will presume that Martin received this letter three days
later, on September 20, 1999. See Taylor v. Books A Million, 296
F.3d 376, 379-80 (5th Cir. 2002); see also Baldwin County Welcome
Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984) (citing FED. R. CIV. P.
6(e)). Thus, since Martin filed her suit on December 17, 1999 --
88 days later -- her first lawsuit was timely. The dispute in the
case arises from the fact that on the same day -- December 17, 1999
-- the EEOC mailed its Notice of Intent To Reconsider to Martin.
Title 29 of the Code of Federal Regulations � 1601.19(b),
allows the EEOC to reconsider its determination. If it decides to
reconsider, the EEOC is required to notify the parties of its
4

intent to reconsider. Crucial to this case, the regulation further
provides:
If such notice of intent to reconsider is
issued within 90 days of receipt of the final
no cause determination, and the person
claiming to be aggrieved or the person on
whose behalf a charge was filed has not filed
suit . . . the notice of intent to reconsider
shall vacate the letter of determination and
shall revoke the charging party's right to
bring suit within 90 days. If the 90 day suit
period has expired, [or] the charging party
has filed suit . . . the notice of intent to
reconsider shall vacate the letter of
determination, but shall not revoke the
charging party's right to sue in 90 days.
Id. (emphasis added).
Thus, Martin's right to sue under the first letter remained in
effect if Martin had filed suit at the time the notice of
reconsideration was issued.
The dilemma presented by this lawsuit and this appeal arises,
as we have noted, because the filing of the complaint and the
issuance of the notice to reconsider occurred on the same day. The
district court held, however, that although Martin filed her suit
on the same day that the notice to reconsider was mailed, the
notice to reconsider did not become effective until receipt of the
notice, presumed to be three days later, on December 20, 1999;
because Martin filed her complaint on December 17, 1999, her
lawsuit preceded the notice to reconsider. The notice had,
therefore, not revoked her first right to sue. It followed that
the second right to sue letter of August 18, 2000 was unauthorized
5

and thus invalid -- meaning that no lawsuit could be predicated on
this second letter. The district court further reasoned that the
legally correct 90-day limitations period, which had begun to
accrue when the first right to sue letter was received on September
17, 1999, had expired long before Martin re-filed this lawsuit on
November 16, 2000. The district court then concluded that this
suit was time barred and granted Alamo's motion for summary
judgment.
B
We review summary judgments de novo, applying the same
standards as the district court. Performance Autoplex II Ltd. v.
Mid-Continent Casualty Co., 322 F.3d 847, 853 (5th Cir. 2003). A
grant of summary judgment is proper when there is no genuine issue
of material fact such that the moving party is entitled to judgment
as a matter of law. Id.; FED. R. CIV. P. 56(c). In evaluating the
propriety of a defendant's motion for summary judgment based upon
the statute of limitations, the court must draw all reasonable
inferences in favor of the non-moving party. Chaplin v.
NationsCredit Corp., 307 F.3d 368, 372 (5th Cir. 2002) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986));
Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir.
2001). "To obtain summary judgment, `if the movant bears the
burden of proof on an issue . . . because . . . as a defendant he
is asserting an affirmative defense, he must establish beyond
6

peradventure all of the essential elements of the . . . defense to
warrant judgment in his favor.'" Chaplin, 307 F.3d at 372 (quoting
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986))
(emphasis supplied).
The question presented in this appeal focuses on the
interpretation of the term "issued" as used in 29 C.F.R. �
1601.19(b). Specifically, Martin contends that the date on which
the notice of intent to reconsider "issued" is not the date on
which the notice was presumed to be received -- December 20, 1999
-- as held by the district court. Instead, Martin argues the
notice was "issued" on the day it was mailed from the EEOC's office
-- December 17, 1999.
The term "issued" is not defined by the applicable
regulations. Thus, to resolve this case we must ascertain its
definition.
When the applicable statute or regulation has left a word
undefined, "the most basic principle of statutory construction"
requires us to give that word its ordinary meaning. Thompson v.
Goetzmann, 337 F.3d 489, 497 (5th Cir. 2003). This meaning must be
determined "from the context in which [the words] are used." Id.
(quoting United States v. Lyckman, 235 F.3d 234, 238 (5th Cir.
2001)). "Dictionaries are a principal source for ascertaining the
ordinary meaning of statutory language[.]" Id. at 498 n.20 (citing
7

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,
515 U.S. 687 (1995)).
Black's Law Dictionary defines the term "issue" as "1. To
accrue 2. To be put forth officially 3. To send out or distribute
officially." BLACK'S LAW DICTIONARY 836 (7th ed. 1999) (examples
omitted). Similarly, the American Heritage Dictionary's definition
of "issued" includes "4. To be circulated or published." THE
AMERICAN HERITAGE DICTIONARY 695 (New Coll. Ed. 1981). Contrary to the
district court's interpretation of the term, none of these
definitions imply the mere passive act of receipt by the addressee.
Instead, both of these definitions require an act of "putting
forth", "distributing", "circulating" or "publishing" on the part
of the issuer.
We hold, based on the ordinary meaning of the word "issued" in
29 C.F.R. � 1601.19(b), that circulation or distribution of the
Notice of Intent To Reconsider by the EEOC is required. Thus, the
date that the notice was "issued" in this case is the date on which
the notice was deposited in the mail by the EEOC.
The district court therefore erred in holding that the notice
to reconsider was issued on December 20, 1999. The letter was
postmarked December 17. This is the date that the letter was put
forth, distributed, circulated, and published, that is, "issued."
Thus, Martin filed her suit on the same day that the EEOC revoked
her right to sue.
8

So, where does that leave us if the notice and the complaint
are filed simultaneously? It is clear that Alamo moved for summary
judgment: Alamo had the burden to establish that there was no
material issue of fact on its affirmative defense. Ebbert v.
DaimlerChrysler Corp., 319 F.3d 103, 108 (3d Cir. 2003). Thus,
Alamo had to establish that the applicable 90-day period within
which to file suit had expired when, on November 16, 2000, Martin
filed the complaint before us; it could do so only by showing that
the August 18 -- or second -- right to sue letter was invalid; to
establish this point Alamo had to show that the first complaint was
filed before the notice of reconsideration (revoking Martin's right
to sue) was issued. Alamo has failed to carry this burden. We
hold that, under 29 C.F.R. � 1601.19(b), when the notice to
reconsider is issued on the same day that the complaint is filed,
the issuance and filing are simultaneous (irrespective of the hours
and minutes) and, consequently, the complaint has not been filed
before the issuance of the notice.3
Because Martin filed the complaint before us within 90 days of
her receipt of a valid right to sue letter -- the second letter --
3Because some offices register the hour and minute of pleading
receipts and others do not, and because mail is deposited at
different times during the day, the rule is more nearly uniform
and more easily manageable when time is calculated by the day.
9

her suit was timely. We therefore REVERSE and vacate the district
court's judgment to the contrary.4

III
Alamo cross-appeals the district court's denial of its motion
to dismiss on grounds of Alamo's Eleventh Amendment immunity.
Martin argues that we are precluded from considering the merits of
this issue because Alamo did not file a timely notice of appeal.
We need not decide whether Alamo's notice of appeal was timely
because Alamo inadequately briefed the issue and, thus, abandoned
its Eleventh Amendment arguments. Southwestern Bell Tel. Co. v.
City of El Paso, 243 F.3d 936, 940 (5th Cir. 2001) (dismissing
appeal as abandoned because the Appellant failed to challenge the
district court's application of the applicable test for Eleventh
Amendment immunity); Dardar v. Lafourche Realty Co., 985 F.2d 824,
831 (5th Cir. 1993); L & A Contracting Co. v. Southern Concrete
Servs., 17 F.3d 106, 113 (5th Cir. 1994)(holding appeal to be
abandoned because appellant cited no authority in a one-page
argument); FED. R. APP. P. 28(a)(9)(A) (requiring argument to
contain "appellant's contentions and the reasons for them, with
citations to the authorities and parts of the record on which the
appellant relies"). The appeal on this issue is DISMISSED.5
4Based upon our disposition of this issue, we need not
consider Martin's equitable tolling argument.
5Alamo requests attorney's fees in this appeal. In the light
of this opinion it is clearly not entitled to attorney's fees at
this juncture of the case; its request is therefore denied without
10

IV
Based on the reasons stated above, we REVERSE and VACATE the
district court's dismissal of the case as time barred. We DISMISS
Alamo's appeal of the district court's denial of its motion to
dismiss on Eleventh Amendment immunity grounds. Finally, we DENY
Alamo's request for fees and costs. The case is REMANDED to the
district court for further proceedings not inconsistent with this
opinion.
prejudice.
11