Acosta-Vega v. Brown

USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 96-1769

LUIS A. ACOSTA-VEGA,

Plaintiff, Appellant,

v.

JESSE BROWN,

SECRETARY OF VETERANS AFFAIRS, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge] ___________________

____________________

Before

Cyr, Stahl and Lynch,

Circuit Judges. ______________

____________________

Victoria A. Ferrer on brief for appellant. __________________

Guillermo Gil, United States Attorney, and Isabel Munoz Acosta, _____________ ____________________

Assistant United States Attorney, on brief for appellees.

____________________

December 20, 1996

____________________

Per Curiam. Plaintiff-appellant Luis A. Acosta- ___________

Vega appeals from the district court's order granting

defendants-appellees' motion to dismiss Acosta's employment

discrimination claim against his federal employer, Jesse

Brown as Secretary of the Department of Veterans Affairs

("the Department"). The district court dismissed the

complaint on the ground that it was untimely filed. The

correctness of that determination is the sole issue on

appeal.1 1

To be timely, an employment discrimination complaint

against the federal government under Title VII, 42 U.S.C.

2000e-1 et seq., must be filed "[w]ithin 90 days of receipt __ ____

of notice of final action taken by a department . . . ." 42

U.S.C. 2000e-16(c). Timely filing of the complaint,

however, is not a jurisdictional prerequisite to suit. See ___

Irwin v. Department of Veterans Affairs, 498 U.S. 89 , 95-96 _____ _______________________________

(1990); Nunnally v. MacCausland, 996 F.2d 1, 2-3 (1st Cir. ________ ___________

1993); 3 Lex K. Larson, Employment Discrimination 64.07[5] __________________________

(2d ed. 1996).

Defendants moved for dismissal pursuant to both Fed. R.

Civ. P. 12(b)(1) and 12(b)(6). Although the court did not

make explicit the basis for the dismissal, it is implicit

from the opinion that the dismissal was premised upon Rule

____________________

1 Acosta appeals only from the dismissal of the Title VII 1

claim against Secretary Brown.

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12(b)(1). The court considered matters outside of the

pleadings and resolved disputed factual matters, placing the

burden on Acosta to "conclusively counteract" defendants'

evidence of untimely filing. See 5A Charles A. Wright and ___

Arthur R. Miller, Federal Practice and Procedure 1350 (2d _______________________________

ed. 1990) (explaining that district court may consider

affidavits and other matters outside of the pleadings to

resolve a jurisdictional challenge and that the burden of

proof on a Rule 12(b)(1) motion is on the party asserting

jurisdiction).

Because compliance with the filing requirements of

2000e-16(c) is not a jurisdictional prerequisite, the

dismissal of Acosta's complaint for untimely filing should

have been premised upon Rule 12(b)(6) rather than Rule

12(b)(1). See Supermail Cargo, Inc. v. United States, 68 ___ ______________________ _____________

F.3d 1204, 1206 n.2 (9th Cir. 1995); Espinoza v. Missouri ________ ________

Pacific R.R. Co., 754 F.2d 1247 , 1248 n.1 (5th Cir. 1985); _________________

Gordon v. National Youth Work Alliance, 675 F.2d 356 , 360 ______ ______________________________

(D.C. Cir. 1982). This court is "'not bound by the label

employed below'" and may treat the dismissal as one made

pursuant to Rule 12(b)(6). Estate of Soler v. Rodriguez, 63 _______________ _________

F.3d 45, 47 n.1 (1st Cir. 1995) (citation omitted).

For the foregoing reasons, we treat the district court's

dismissal as one made pursuant to Rule 12(b)(6). The

district court's express reliance upon materials outside of

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the pleadings, however, converted the motion to dismiss into

a motion for summary judgment. See Fed. R. Civ. P. 12(c); see ___ ___

also Garita Hotel Ltd. v. Ponce Federal Bank, 958 F.2d 15 , 19 ____ _________________ __________________

(1st Cir. 1992) ("the test [for conversion] is not whether

supplementary materials were filed, but whether the court

actually took cognizance of them . . . in arriving at its

decision"). Accordingly, we review the dismissal de novo to __ ____

determine whether all "competent evidence and reasonable

inferences," viewed in the light most favorable to Acosta,

show that there is no genuine issue as to any material fact.

Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir. 1996). ____________ _____________

As the movants on the motion to dismiss, defendants had the

burden of proving that no material facts were in dispute.

The pleadings and supplemental materials before the

court when it ruled on defendants' motion to dismiss, viewed

in the light most favorable to Acosta, create a genuine issue

regarding a material fact: the date that Acosta received

notice of the Department's final action on his claim.

Defendants conceded that the certified letter mailed to

Acosta's attorney on November 24, 1993 was improperly

addressed. Therefore, the common law presumption that a

properly addressed and mailed letter is received in due ________

course does not apply here. Nor does the signed return

receipt remove all genuine issues of material fact regarding

the date of receipt. One "Jose Vazquez" signed for the

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letter, but Vazquez had no connection to Acosta's attorney or

her firm and was not authorized to receive mail for them,

the firm's administrator stated in an "affirmation."

In granting defendants' motion to dismiss, the district

court found that Acosta had failed to "conclusively

counteract defendants' evidence." On a motion for summary

judgment, however, the nonmovant does not have that burden.

It is sufficient for the nonmovant to merely raise a genuine

issue of material fact.

The dismissal of Acosta's Title VII claim against

defendant Jesse Brown is vacated and the case is remanded for _______

further proceedings. See Loc. R. 27.1. ___

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