
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2302                                               ODESSA NUNNALLY,                                Plaintiff, Appellant,                                          v.                                 CHARLES MACCAUSLAND,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Frank H. Freedman, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Odessa Nunnally on brief pro se.               _______________               A. John  Pappalardo, United  States Attorney,  and Karen  L.               ___________________                                _________          Goodwin, Assistant United States Attorney, on brief for appellee.          _______                                  __________________                                    June 10, 1993                                  __________________                      Per Curiam.  Plaintiff,  a former federal employee,                      __________            appeals  pro se from  the district court's  decision granting                     ___ __            summary judgment to defendant.  The district court found that            plaintiff's suit was barred by her failure to comply with the            30-day  limitations period  set forth  in  the Civil  Service            Reform Act ("CSRA"), 5 U.S.C.   7703(b)(2).  Plaintiff argued            that  because of  a  mental  incapacity  during  the  tolling            period, the  district court should have permitted her suit to            proceed under the doctrine of "equitable tolling."                        Plaintiff's   complaint   alleged  that   she   was            discharged  from  her  position  with  the  Defense Logistics            Agency ("DLA") after  31 years' service  because of a  mental            handicap, in violation of the Rehabilitation Act, 29 U.S.C.              791.   On cross-motions for  summary judgment,  the case  was            referred to  Magistrate-Judge Ponsor.   The  magistrate found            that plaintiff had  earlier sought  administrative review  of            her claim before the Merit Systems Protection Board ("MSPB"),            as permitted  by the CSRA, 5 U.S.C.    7701, 7702.  Following            an adverse  decision by  the MSPB, plaintiff  failed to  seek            further  review in  the courts,  or in  the Equal  Employment            Opportunity Commission ("EEOC"), until  well after expiration            of the 30-day period  permitted for such suits in 5  U.S.C.              7703(b)(2).1   The  magistrate held  that  the CSRA's  30-day                                            ____________________            1.  Section 7703(b)(2) states the following:                 Cases of  discrimination subject to  the provisions                 of Section 7702 of this title shall  be filed under                                         -2-            time  limit was  "jurisdictional," and  thus  not subject  to            equitable  enlargement.  Even if subject to tolling, however,            the  magistrate held  that  plaintiff  was  not  entitled  to            equitable  relief.   Plaintiff  objected to  the magistrate's            legal  conclusions,  moved  to  supplement  the  record  with            additional   affidavits,  and   renewed  a   motion   for  an            evidentiary    hearing.    The   district    judge    allowed            supplementation, but declined to hold an evidentiary hearing.            Without directly ruling on the amenability  of the statute to            tolling, the district judge held that even if tolling were an            available legal option, plaintiff's mental illness would  not            warrant enlargement of the limitations period.                                          I.                      Under   the   Rehabilitation  Act,   29   U.S.C.               794a(a)(1), claims of handicap discrimination are governed by            the procedure set forth in Title VII of the  Civil Rights Act            of 1964, as amended  by the Equal Employment  Opportunity Act            ("EEOA"),  42  U.S.C.    2000e-16.    Since  plaintiff was  a                                            ____________________                     717(c)  of the  Civil  Rights Act  of 1964  (42                 U.S.C.  2000e-16(c),  section   15(c)  of  the  Age                 Discrimination in Employment Act of 1967 (29 U.S.C.                 633a(c))  and  section  16(b)  of  the  Fair  Labor                 Standards  Act  of  1938,  as  amended  (29  U.S.C.                 216(b)), as applicable.   Notwithstanding any other                 provision of  law, any  such case  filed under  any                 such section must be filed within 30 days after the                 date the individual filing the case received notice                 of the  judicially reviewable action  under section                 7702.                                         -3-            classified  civil   service  employee,  her  claim   is  also            controlled  by   the  procedures   established  for   federal            employees under the CSRA.                      The  Supreme Court  has  ruled that  the  statutory            filing  deadline applicable  to federal employee  suits under            the EEOA, 42  U.S.C.   2000e-16(c),2 are subject to equitable            tolling.  Irwin v. Veteran's Admin. Regional Office, 498 U.S.                      _____    ________________________________            89, 111 S.  Ct. 453 (1990).   While the opinion presents some            interpretive difficulties,  it states  that statutory  filing            deadlines governing suits against the Government "are subject            to  the  same  rebuttable  presumption  of  equitable tolling            applicable  to suits against private defendants."  Irwin, 111                                                               _____            S. Ct. at 457;  see Oropallo v. United  States, Dkt. No.  92-                            ___ ________    ______________            1983, Slip op. at 13 n.5.                        The  CSRA limitations period  in issue here  is not            only  similar to,  but intersects  with,  the EEOA  provision            directly  addressed  in  Irwin.   Together  the  two statutes                                     _____                                            ____________________            2.   42 U.S.C.   2000e-16(c) provided in relevant part:                 Within  thirty days [now ninety days] of receipt of                 notice  of  final  action taken  by  a  department,                 agency,  or unit referred  to in subsection  (a) of                 this section, or by the  [EEOC] upon an appeal from                 a decision or  order of such department,  agency or                 unit  on a complaint of discrimination ... or after                 one hundred  and eighty days from the filing of the                 initial charge with the [agency] or with the [EEOC]                 on appeal from  a decision ... of  such department,                 agency or unit ...  an  employee or  applicant  for                 employment, if  aggrieved by the  final disposition                 of  his complaint, or by  the failure to take final                 action on his complaint, may file a civil action as                 provided in section 2000e-5 of this title ....                                         -4-            provide a series of interdependent supplementary and parallel            channels for federal employees seeking administrative  review            of claims alleging prohibited discrimination.3   The statutes            expressly  cross-reference  one   another,  conditioning  the            number and  sequence of  open avenues  of administrative  and            court review on  the employee's status and the  nature of the                                            ____________________            3.  The  interdependence of  the two  statutes  is rooted  in            their histories, which  have been well  documented elsewhere.            The provision at issue in Irwin,   717 of the EEOA, 42 U.S.C.                                      _____               2000e-16, was  added  to  the civil  rights  laws in  1972            because  Congress was persuaded that federal employees had no            effective  administrative and  judicial remedies.   Brown  v.                                                                _____            General Servs.  Adm., 425  U.S. 820, 825-31  (1976).   It was            ____________________            then administered  by the  Civil Service  Commission ("CSC"),            and contained the exclusive administrative remedy for federal            employee discrimination claims.  Brown,  425 U.S. at 820.  In                                             _____            1978, however, responding  to continued discontent,  Congress            transferred jurisdiction over federal employee discrimination            claims  brought under  the EEOA  from  the CSC  to the  EEOC.            Congress  also adopted  the  CSRA,  abolished  the  CSC,  and            established the  MSPB, as one  of two agencies in  its place.            See generally Barbara  L. Schlei & Paul  Grossman, Employment            _____________                                      __________            Discrimination  Law   1188-90  (2d   ed.  1983)   (collecting            ___________________            legislative history).  Although  the CSRA and EEOA contain  a            division of jurisdiction  between the two agencies,  there is            also substantial interplay  and overlap.   5  U.S.C.    7702.            Depending on status and type of claim, federal  employees may            have  up to five options for pursuing a discrimination claim.            5  U.S.C.      7701,  7702,  7121.    See  Lee  M.  Modjeska,                                                  ___            Employment Discrimination  Law     2.7  (2d Ed.  supp. 1991).            ______________________________            The legislative history to   7703(b)(2) seems  to contain few            clues   indicating  any  separate   purpose  for  the  30-day            deadline, see,  e.g., S. Rep.  No. 969, 95th Cong.,  2d Sess.                      __________            63-64, reprinted in 1978 U.S.C.C.A.N.  2723, 2785-86.  And in                   ____________            1991, when  Congress increased  from 30 to  90 days  the time            allotted for judicial  review under 42 U.S.C.    2000e-16(c),            it simply   assumed that the  new time limits would  apply to            all  federal  employees  with Title  VII  claims  against the            federal government. Sen.  Rep. on  Pub. L.  No. 102-166  114,            reprinted in 1991 U.S.C.C.A.N. 549, 623.               ____________                                         -5-            claim.   42 U.S.C.    2000e-16(a) to  (c); 5 U.S.C.     7701-            7703.                        Plaintiff  here  initially  sought  review  of  her            termination  before   the  Merit  Systems   Protection  Board            ("MSPB").  5 U.S.C.    7701,  7702.4   Her case was  assigned            to an administrative judge who affirmed the agency.  She then            had an option  to seek further review before  the MSPB's full            Board, a district  court, or the EEOC.  She  chose full Board            review, and her petition was denied.   Again, plaintiff faced            an option.  She had thirty days to seek review in  a district            court or  in the EEOC.   5 U.S.C.    7703(b)(2), 42  U.S.C.              2000e-16(c).    It  was  at  this  juncture,  the  government            contends, that she took a  late step not subject to equitable            tolling.   She filed her  petition with the EEOC  nine months            late (which  the  EEOC  treated as  an  untimely  appeal  and            denied) and  filed in the  district court a little  more than            three months  after that.   Had  plaintiff instead  initially            sought EEOC  review, and then taken a late step from the EEOC                                     ____                                            ____________________            4.  As a permanent employee covered by 5 U.S.C.   7511(a)(1),            plaintiff  here  seems to  have  had  an  initial  option  of            pursuing her  disability  discrimination  claim  through  the            agency's EEO grievance procedure with  a choice of appeal  to            either the EEOC  or the MSPB, or bringing  her claim directly            to the  MSPB.  If she  was subject to  a bargaining agreement            with a  grievance procedure,  she would  have had  additional            options.  5 U.S.C.     7103, 7111, 7121, 7701-7702; 42 U.S.C.              2000e-16(a) to (c).  See Viniertos v. United States, 939 F.                                   ___ _________    _____________            2d 762, 767-768  (9th Cir. 1991) (describing options  open to            federal employees  under Labor-Management Relations Act).  It            is not clear  to us by which method plaintiff's case began in            the DLA, but no issue has been raised concerning it.                                          -6-            to court,  the case  would have been  on all  fours with  the            facts in Irwin.                       _____                      We see no  principled reason for failing  to extend            Irwin's   rebuttable  presumption   to  the   instant  filing            _______            deadline.   The  only  arguments to  the contrary  below were            similar to those  rejected in Irwin,  and the government  has                                          _____            not renewed them here.  Allowing equitable tolling of one but            not  the other  of  these  interrelated administrative  steps            could encourage untoward forum shopping,  especially in light            of the short time periods  involved.  Cf. Johnson v. Burnley,                                                  __  _______    _______            887 F.2d  471, 477  (4th Cir. 1989),  reh'g granted  en banc,                                                  ______________________            1990 U.S.  LEXIS 350  (in pre-Irwin  decision involving  same                                          _____            statutes, "it  makes no sense  to provide the  possibility of            equitable tolling  of the 30  day deadline for  one plaintiff            but not the  other merely because of the different procedural            routes taken ... prior to  their arrival in federal  district            court.")                           Accordingly, we join those courts which have  held,            under  the authority of Irwin, that the limitations period in                                    _____            5 U.S.C.   7703(b)(2) may  be subject to equitable tolling in            an  appropriate case.   See Williams-Scaife v.  Department of                                    ___ _______________     _____________            Defense  Dependent  Schools,  925 F.2d  346  (9th  Cir. 1991)            ___________________________            (holding  that  Irwin effectively  overruled all  prior Ninth                            _____            Circuit  cases  which  had  denied  equitable  tolling  under            statutes  and   regulations  relating  to   federal  employee                                         -7-            discrimination suits, including one  which had denied tolling            under  5 U.S.C.    7703(b)(2),  Lofton v.  Heckler, 781  F.2d                                            ______     _______            1390, 1392 (9th  Cir. 1986)); Ware v. Frank,  1992 U.S. Dist.                                          ____    _____            LEXIS 1398  (E.D. Pa.) (5  U.S.C.   7703(b)(2) is  subject to            equitable tolling under  Irwin), aff'd without op.,  975 F.2d                                     _____   _________________            1552 (3d  Cir. 1992);  Doberstein v. St.  Paul Dist.  of IRS,                                   __________    _______________________            1992 U.S. Dist  LEXIS 2391 (D. Minn.) (5  U.S.C.   7703(b)(2)            subject to equitable  tolling under Irwin).  We  are aware of                                                _____            only one decision since  Irwin which argues to  the contrary.                                     _____            Dean  v. Veteran's Admin. Regional Office, 943 F.2d 667, 669-            ____     ________________________________            70 (6th Cir. 1991), vacated on other grounds, 112 S. Ct. 1255                                ________________________            (1992).    However, in  Dean  the  instant  issue was  not  a                                    ____            dispositive one, and  the court there faced  a prior panel's,            pre-Irwin, decision.   "If we were writing on  a clean slate,                _____            we might well  be persuaded [otherwise]."  Dean,  943 F.2d at                                                       ____            670.    While we are mindful, too, of  the well-reasoned pre-            Irwin  opinion of  King v.  Dole, 782  F.2d 274  (D.C. Cir.),            _____              ____     ____            cert.  denied,  479  U.S.  856  (1986),   relied  on  by  the            _____________            magistrate,  we  think   that  Irwin  requires   a  different                                           _____            result.5                                              ____________________            5.    King's  conclusion  that  5  U.S.C.     7703(b)(2)  was                  ______            "jurisdictional" and  thus not  subject to  equitable tolling            was based on  earlier cases holding other  time provisions in            the CSRA "jurisdictional," and interpretations of the instant            statutory language similar to the those rejected in Irwin.                                                                   _____            We do not  have before us any  other section of the  CSRA and            must, in  any  event,  follow Irwin's  adoption  of  a  "more                                          _____            general  rule,"  presuming  that  once  Congress  has  waived            sovereign  immunity, there is "little, if any, broadening" of                                         -8-                                            II.                      While Irwin  increased  the number  of statutes  to                            _____            which equitable  tolling may  be applied,  it cautioned  that            federal courts have "typically extended equitable relief only            sparingly."    Irwin,  111  S.  Ct.  at  457.    Relief  from                           _____            limitations  periods through  equitable tolling  thus remains            subject to careful case-by-case scrutiny.                              Plaintiff's  argument for  equitable tolling  below            was based on the debilitating effects of her alleged insanity            during  the filing  period.   We  have declined  to adopt  an            "absolute  rule of  tolling on insanity  grounds."   Lopez v.             ________                                            _____            Citibank, N.A., 808 F.2d 905, 906 (1st Cir. 1987).  Moreover,            ______________            since the plaintiff in Lopez had been actively represented by                                   _____            counsel  in  administrative  proceedings  during his  alleged            period of illness, we held:                  It   ...  seems   unlikely  [plaintiff's]   illness                 deprived his  counsel of  the knowledge  or consent                 needed  to  file  a court  complaint  ....  In such                 circumstances, we  believe a  federal court  should                 assume  that the mental  illness was not  of a sort                 that  makes it equitable to  toll the statute -- at                 least  absent  a  strong reason  for  believing the                 contrary.                                                ____________________            the  waiver by subjecting  the statute to  equitable tolling.            Irwin, 111 U.S.  at 457.  We  note, too, that the  King court            _____                                              ____            did not face the precise statutory incongruity we  face here,            since it had earlier determined the time limit in 42 U.S.C.              2000e-16(c),  too, was "jurisdictional."   King, 782  F.2d at                                                       ____            274  n.3.   The latter  decision  has now  been overruled  by            Irwin.             _____                                         -9-            Lopez,  808 F.2d at  907.  Lopez,  however, did not  adopt an            _____                      _____            absolute  rule  against tolling  every limitations  period on                            _______            insanity grounds in  all circumstances.   The cases cited  by            the   district  court  which  suggest  such  a  bar  involved            different statutes  and substantive concerns,  with typically            longer limitations periods.                       In   holding  that   mental  illness   provides  an            available ground  for equitable tolling here, we note that we            are dealing with a broad remedial statute, the Rehabilitation            Act  of 1973.   Cf.  Bassett v.  Sterling Drug, Inc.,  578 F.                            ___  _______     ___________________            Supp.  1244, 1246-47 (S.D. Ohio 1984) (mental incompetence is            more  appropriate basis for equitable tolling under ADEA than            under Federal  Tort Claims Act).6   Moreover, we deal  with a            case  in which  mental  illness or  instability is  "the very            disability that forms  ... the basis  for which the  claimant            seeks [relief]."  Canales v.  Sullivan, 936 F.2d 755, 758 (2d                              _______     ________            Cir. 1991) (quoting Elchediak  v. Heckler, 750 F.2d 892,  894                                _________     _______            (11th Cir.  1985)) (SSDI  benefit proceeding).   Under  these            circumstances,  we think  an absolute rule  barring equitable            tolling  for a plaintiff's  insanity might conflict  with the                                            ____________________            6.  The district  court relied  in part  on caselaw  language            directed at limitations periods  in a variety of other  areas            including  the Federal  Torts Claim  Act  and the  Securities            Exchange  Act of  1934, where  plaintiffs  urged that  mental            disabilities  prevented them from discovering a tort or fraud            for  more than several years.  Different substantive concerns            and the purposes  of the limitations provisions in such cases            may dictate a different result.  Our holding is confined only            to the statute and claim before us.                                         -10-            substantive purposes  of the  Act.  Finally,  we deal  with a            very short filing period, thirty days.                        In  closely  analogous  contexts,  similarly  short            filing  periods  under  the  EEOA  have  been  recognized  as            amenable  to tolling on insanity grounds,  albeit only if the            federal employee's proof  passes very rigorous tests.   These            cases, like  Lopez, eschew  reliance solely  on a  diagnosis.                         _____            Rather,  they analogize  to state  standards for  determining            incompetence,  inquiring whether  the particular  plaintiff's            illness  rendered him  "unable to  protect  his legal  rights            because  of an  overall inability  to  function in  society,"            Decrosta v. Runyon, 1993 U.S. Dist. LEXIS 5006 (N.D.N.Y.); or            ________    ______            whether plaintiff is  unable to manage his  business affairs,            or to comprehend his legal rights and liabilities,  Miller v.                                                                ______            Gould, 1992 U.S. Dist. LEXIS 7299 (N.D. Ill.); Kien v. United            _____                                          ____    ______            States, 749 F. Supp. 286 (D.D.C. 1990); Speiser v. U.S. Dep't            ______                                  _______    __________            of HHS, 670 F. Supp. 380, 384 (D.D.C. 1986),  aff'd, 818 F.2d            ______                                        _____            95  (D.C. Cir.  1987).   Equitable  relief is  denied if  the            plaintiff   was  able  to  engage  in  rational  thought  and            deliberate  decision making  sufficient to  pursue  his claim            alone or through counsel.  Compare Decrosta, 1993 U.S.  Dist.                                       _______ ________            LEXIS  at  5006  (in   handicap  discrimination  suit,  after            preliminary evidentiary  hearing, plaintiff  denied equitable            relief  from time  limits in  regulation  because his  "major            depressive"  disorder was  not  shown  to  have  impeded  his                                         -11-            ability for rational  thought and action), with  Miller, 1992                                                       ____  ______            U.S. Dist. LEXIS at 7299 (evidence in handicap discrimination            suit sufficient to withstand summary judgment  on limitations            grounds  where plaintiff raised  genuine issue as  to whether            his  manic-depressive  illness  rendered  him  incapable   of            conducting his affairs or understanding his status); see also                                                                 ________            Kien, 749 F. Supp. at  286 (in handicap discrimination  suit,            ____            tolling denied where borderline  personality disorder did not            render  plaintiff  incapable of  handling  his  own affairs);            Speiser (in mental handicap discrimination suit, diagnosis of            _______            Atypical   Depression   leading   to   hospitalizations   not            sufficient for equitable tolling where plaintiff was aware of            facts and able to communicate with counsel).7                        Applying these  rigorous standards, we  undertake a            plenary  review of  the facts,  as  required on  review of  a            summary  judgment, "in  the  light  most  flattering  to  the                                            ____________________            7.  The government also argued that because mental disability            is not mentioned  as a possible reason for  tolling in Irwin,                                                                   _____            it cannot  be used as  a tolling factor.   A fair  reading of            Irwin, however,  shows that  the Court did  not undertake  an            _____            exhaustive  list of  factors that  may be  considered  in the            equitable weighing process.  In  addition to the recent cases            mentioned   in  the  text,  in  other  contexts  courts  have            considered the merits of equitable tolling claims on insanity            grounds  since Irwin.   See,  e.g., Char v.  Matson Terminals                           _____    __________  ____     ________________            Inc., 1992 U.S.  Dist. LEXIS 21077 (D.  Hawaii) (after Irwin,            ____                                                   _____            "mental  incompetency  may  equitably  toll  the  statute  of            limitations,  but only  in  appropriate  cases").    We  also            reject,  as neither intended by Irwin nor dictated by caselaw                                            _____            trends, the government's alternative suggestion that we apply            a rule denying  equitable tolling on insanity  grounds unless            plaintiff proves one or more predetermined plus factors.                                             -12-            [plaintiff]  indulging  all  reasonable inferences  in  [her]            favor."   Jensen v. Frank, 912 F.2d  517, 520 (1st Cir. 1990)                      ______    _____            (citation omitted).8   While  not  free from  doubt, we  find            that plaintiff's evidence  raises a genuine issue  of fact as            to whether  her mental condition  may have so  disordered her            ability to  reason and function  in society, as to  amount to            "strong  reason  why,  despite the  [earlier]  assistance  of            counsel, [s]he was unable to bring suit."  Lopez, 808 F.2d at                                                       _____            907.                       The  relevant time period here begins in May, 1988            when plaintiff's  petition for  review by  the full  MSPB was            dismissed, through  March,  and  then  November,  1989,  when            plaintiff  appeared, pro se,  seeking review before  the EEOC                                 ___ __            and the  district court.   Diagnoses prior to that  time were            only of adjustment  and personality disorders.  In May, 1987,            however, shortly after she was fired from  the DLA, plaintiff            reportedly  suffered a "schizophrenic reaction."  By then her            case  was  pending  before  the  MSPB.     Although  she  was            represented  by an attorney there, she inexplicably failed to            appear   for  a  scheduled  hearing  and  missed  two  filing            deadlines.    Her  then attorney  attempted  to  excuse these            defaults   as  caused   in   part   by  plaintiff's   medical            difficulties.                                                ____________________            8.  Pro se filings  are held to  a less stringent  procedural                ___ __            standard than others.  See, e.g., Estelle v. Gamble, 429 U.S.                                   _________  _______    ______            97, 106 (1976).                                         -13-                      In  July,  1989,  plaintiff  was  taken  to  see  a            psychiatrist by a mental health social worker who specializes            in the  homeless.9  Describing plaintiff as  "nearly a street            person," the psychiatrist diagnosed her as probable  paranoid            schizophrenic.10       Plaintiff's   thought    pattern   was            "discursive, at times illogical,  circumlocutional and highly            evasive."   She was  suffering from  auditory hallucinations,            "severely impaired  by her illness  and ... so  paranoid that            she's  not  getting   help."     In  addition   to  his   own            observations,  the psychiatrist relied  on and reported those            of the  social worker, who  had  monitored plaintiff  for the            previous  eight months, and written accounts from plaintiff's            siblings  of  plaintiff's  hostile, delusional,  evasive  and            indecisive  behavior.     The  psychiatrist   concluded  that            plaintiff's condition was of "at least" a year's duration.  A            non-examining psychologist  who reviewed  plaintiff's medical            records reported  that they  all "fit[] a  woman with  a long            standing schizophrenic disorder possibly of the paranoid type            whose life has progressively fallen  away from her due to the                                            ____________________            9.    Plaintiff lost  her right  to an  immediate pension  by            virtue of  her termination for  "cause" by the DLA.   She was            apparently evicted from  her apartment in what  was described            as a "hostile" scene and is unable to find employment.            10.  Paranoid schizophrenia is broadly defined as a psychotic            disorder causing hallucinations and other major  disturbances            in  thought,  mood,   perception,  orientation,  memory,  and            behavior,  and characterized  by  one  or  more  systematized            delusions of persecution or danger.  Sloane-Dorland Annotated            Medical-Legal Dictionary, supp. at 467-68 (1992).                                         -14-            depredations of [her]  illness."  He described  the condition            as  "crippling  and  exceedingly  disorienting"  and  causing            "massive disorganization."                      If  plaintiff was  represented  by counsel  at  all            during this time  (which we cannot tell from  the record) she            was apparently not  aware of it.  The  social worker reported            that  she kept "insisting  that [the social  worker] help her            petition this work release  through the court system when  it            has already been done and is a  finished case."  In her brief            on appeal here  plaintiff alleges for the first  time that in            fact she was not represented by counsel after the termination            of the MSPB action.                        While  not  all  the evidence  points  in  the same            direction,11 we  think it sufficient,  if proved, to  raise a            genuine  issue of  fact  as  to  whether  plaintiff's  mental            condition  rendered her  incapable of  rationally cooperating            with any counsel, and/or pursuing her claim on her own during            the limitations period.                                              ____________________            11.  We  note   that  despite  his  other   conclusions,  the            examining  psychiatrist found that plaintiff was competent to            handle  her  own money.    Such  a  finding might,  in  other            circumstances, give us pause.  However, given the evidence of            plaintiff's  extremely  limited financial  means,  the likely            unavailability  of  any  guardian able  or  willing  to serve            (plaintiff is  unmarried and receives  "general relief"), and            current cutbacks in delivery of state  social services, we do            not  find it conclusive.   Cf. Bassett, 578  F. Supp. at 1248                                       ___ _______            (in  suit  under  ADEA, mental  incompetence  will  toll EEOC            filing   period  only  for  that  period  when  claimant  was            adjudicated   incompetent   or  institutionalized   under   a            diagnosis of mental incompetence).                                         -15-                      We express no view as to the likely outcome of this            issue on the merits.   We note that plaintiff has requested a            preliminary evidentiary hearing  on the issue.   The decision            to  hold such a hearing as a means of "prevenient testing" of            the evidence, where  as here there is no objection  to it, is            entirely within the trial  court's discretion.   Rivera-Gomez                                                             ____________            v. De Castro, 900 F.2d 1 (1st Cir. 1990).  We note, too, that               _________            other motions  remain pending  in this case.   We  express no            view as to the outcome of any remaining issue.                         For  the  reasons   stated,  the  summary  judgment            against  plaintiff is  vacated  and  the  case  remanded  for                                   _______            further proceedings.                                                    -16-
