Opinion

Timothy v. Hymen v. Merit Systems Protection Board

  • 799 F.2d 1421
  • 43 Fair Empl. Prac. Cas. (BNA) 271
  • 5 Fed. R. Serv. 3d 1408
  • 1986 U.S. App. LEXIS 30892
Court
Court of Appeals for the Ninth Circuit
Filed
Sep 19, 1986
Status
Published
On the bench
Schroeder, Hall, Browning
Cited by
31 cases
Authority
More cited than 94.2%

Overruled on other grounds by Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1991)

naming proper defendant within the thirty-day period is a jurisdictional requirement under 5 U.S.C. § 7703(b)(2) (1982) for bringing Title VII claims against the government initially brought before the Merit Systems Protection Board

How later courts described this case

  • naming proper defendant within the thirty-day period is a jurisdictional requirement under 5 U.S.C. § 7703(b)(2) (1982) for bringing Title VII claims against the government initially brought before the Merit Systems Protection Board
  • proper defendant must receive actual notice of the action within the statutory period for the amendment to relate back to the initial filing, and therefore, district judge did not err in refusing to allow plaintiff to amend complaint to name the Postmaster General
  • once the district court dismissed petitioner’s discrimination claims for lack of jurisdiction, it no longer had jurisdiction over the nondiscrimination claims, and it was appropriate to order those claims transferred to the Federal Circuit
  • applying Schiavone in pro se case

Written by the judges who cited it.

Later courts went against this

  • Overruled on other grounds by Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1991)

    799 F.2d 1421, 1423 (9th Cir.1986), overruled on other grounds by Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990).
    Supreme Court of the United StatesJan 22, 1991other groundsmedium confidenceRead it

The opinion

PER CURIAM.

Hymen appeals the dismissal by the district court of his discrimination claims brought pursuant to 5 U.S.C. § 7703 (b)(2). He also appeals the transfer of his nondiscrimination claims to the Federal Circuit and the dismissal of his Freedom of Information Act (FOIA) claims for failure to exhaust administrative remedies. We affirm all three actions of the district court.

Hymen’s discrimination claims were dismissed by the district court for lack of jurisdiction. Hymen filed his complaint within 30 days as required by 5 U.S.C. § 7703 (b)(2), but the complaint did not name the Postmaster General as a defendant in the action as required by 42 U.S.C. § 2000e-16(c). Cases in this circuit hold that the naming of the proper defendant within the 30-day period is a jurisdictional requirement.

Lofton v. Heckler,

781 F.2d 1390, 1392 (9th Cir.1986);

Cooper v. United States Postal Service,

740 F.2d 714, 716 (9th Cir.1984),

cert. denied,

471 U.S. 1022 , 105 S.Ct. 2034 , 85 L.Ed.2d 316 (1985). We have also held that the requirement is satisfied where the pro se litigant attached as part of his complaint an administrative order which named the proper defendant.

Rice v. Hamilton Air Force Base Commissary,

720 F.2d 1082, 1084-86 (9th Cir.1983). The papers which this appellant submitted with his complaint, however, did not name the Postmaster General.

The district judge did not err in refusing to allow Hymen to amend his complaint to name the Postmaster General because the attempt at amendment occurred well after the 30-day limitations period for bringing an action to review a decision of the Merit Systems Protection Board under 5 U.S.C. § 7703 (b)(2). Under Fed.R.Civ.P. 15(c), the proper defendant must be provided actual notice of the action within the statutory limitations period in order for the amendment to relate back to the date of the initial filing. This notice requirement is to be strictly construed.

Schiavone v. Fortune,

— U.S. -, 106 S.Ct. 2379 , 91 L.Ed.2d 18 (1986);

Lofton,

781 F.2d at 1392 .

Because the district court properly dismissed Hymen’s discrimination claims, it no

*1423

mination claims. 5 U.S.C. § 7703 (b)(1). Ordering these claims transferred to the Federal Circuit was therefore appropriate. longer had jurisdiction over the nondiscri-

The FOIA requires that administrative appeals be exhausted before suit may be brought in federal court. 5 U.S.C. § 552 (a).

See United States v. United States District Court,

717 F.2d 478, 480 (9th Cir.1983). The Merit Systems Protection Board has issued regulations providing for such appeals.

See

5 C.F.R. § 1204.21 , but Hymen nonetheless failed to take this route. The district court thus properly dismissed the FOIA claims for lack of subject matter jurisdiction.

Affirmed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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