                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 &amp; 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-
