The panel reversed the district court’s judgment in favor of the Secretary of Defense in an action alleging employment discrimination on the basis of disability in violation of the Rehabilitation Act of 1973.

The district court concluded that plaintiff’s claims were time-barred because they were not filed within 90 days of receipt of the Defense Logistics Agency’s Office of Equal Opportunity and Diversity’s final agency decision (FAD), and equitable tolling was not warranted.

Claims brought under the Rehabilitation Act are governed by the same remedies, procedures, and rights applicable to Title VII employment discrimination claims brought by federal employees against federal defendants. Under Title VII, a federal employee’s civil action must be brought within 90 days of receipt of notice of the final agency action. The 90-day period functions as a statute of limitations. The panel held that for notices transmitted via traditional mail services, the case law on Title VII statutes of limitations is clear, but electronically transmitted notices present new complications.

The panel held that the 90-day limitation period did not begin until plaintiff’s attorney could realistically be held responsible for having access to the FAD and learning what the agency had decided. Here, the agency made numerous errors when transmitting the passphrase necessary to decrypt the FAD. The panel held that under the circumstances, plaintiff’s attorney did not have effective notice of the agency’s decision until December 5, the day he received by email a decrypted copy of the FAD. Because plaintiff’s attorney filed suit in the district court within 90 days of receiving the accessible FAD, the complaint was timely.

Alternatively, the panel held that plaintiff was entitled to equitable tolling because plaintiff’s attorney was diligent in trying to gain access to the agency’s decision and extraordinary circumstances prevented him from succeeding. Applying equitable tolling, the panel held that plaintiff’s statute of limitations period did not begin to run until he received the decrypted copy of the FAD on December 5. Because he filed his complaint 88 days later, the complaint was timely filed.

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/04/23-4044.pdf