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Click here for the full text of this decision FACTS: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. HOLDING:The court reverses and vacates the district court’s dismissal of the case as time barred. The court dismisses Alamo’s appeal of the district court’s denial of its motion to dismiss on 11th Amendment immunity grounds. Finally, the court denies Alamo’s request for fees and costs. The case is remanded. The dilemma presented by this suit and this appeal arises, 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 Dec. 20, 1999; because Martin filed her complaint on Dec. 17, 1999, her suit 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 Aug. 18, 2000 was unauthorized and thus invalid � meaning that no suit 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 Sept. 17, 1999, had expired long before Martin refiled this suit on Nov. 16, 2000. The district court then concluded that this suit was time barred and granted Alamo’s motion for summary judgment. 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 � Dec. 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 � Dec. 17, 1999. The term “issued” is not defined by the applicable regulations. The court holds, 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 Dec. 20, 1999. The letter was postmarked Dec. 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. 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 (3d Cir. 2003). Thus, Alamo had to establish that the applicable 90-day period within which to file suit had expired when, on Nov. 16, 2000, Martin filed the complaint; it could do so only by showing that the Aug. 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. The court holds 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. Because Martin filed the complaint within 90 days of her receipt of a valid right to sue letter � the second letter � her suit was timely. The court does not decide whether Alamo’s notice of appeal was timely because Alamo inadequately briefed the issue and, thus, abandoned its 11th Amendment arguments. OPINION:Jolly, J.; Jolly, Smith and Garza, JJ.

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