William L. Mondy v. Secretary of the Army

MacKINNON, Senior Circuit Judge,

concurring:

The majority opinion reaches a result in which I concur, i.e., that Mondy can continue with his Title VII suit, but I would premise that conclusion upon a different analysis of the complete statute. The statute authorizes an employee aggrieved by discrimination to bring a civil action in *1058 which the “head of the department, agency, or unit, as appropriate, shall be the defendant” (emphasis added). 42 U.S.C. § 2000e-16(c). Against this plain language, the majority opinion “proceed[s] on the [erroneous] assumption that Mondy erred in naming Colonel Sweeney” because he ought to have named the Secretary of the Army, i.e., that the “head of the department” was the only appropriate defendant. Maj. Op. at 1052 n. 1. The majority opinion claims that it does “not reach or purport to decide the question of who may be a proper Title VII defendant ...,” (id.), but its opinion in effect contradicts that assertion. 1 A large part of the majority’s discussion would be unnecessary if its opinion were not underlain with the assumption that Colonel Sweeney was not an appropriate Title YII defendant because he was not a head of a department.

Appellant, William M. Mondy, a black civilian Army employee, brings this Title VII action claiming racial discrimination and retaliatory discharge. Mondy was a histopathology technician at the United States Army “Institute for Dental Research” at the Walter Reed Army Medical Center. On his claim of discrimination Mondy was given a “right-to-sue” letter and had until October 24,1985 to file a civil action, pursuant to the thirty day statute of limitations for Title VII actions against the government. 42 U.S.C. § 2000e-16(c). Acting timely on October 18, 1985, six days prior to the deadline, Mondy filed with the Clerk of Court a pro se complaint based on diversity of citizenship, 28 U.S.C. § 1332 , naming as defendant the officer who had signed his discharge letter, “Col. Thomas Sweeney” of the “United States Army Institute of Dental Research.” (J.A. 13.) This “commenced ” the civil action. Fed. R.Civ.P. 3 (emphasis added). 2

On October 23, 1985, the court granted Mondy leave to proceed in forma pauper-is. At the same time, the court, sua sponte, without prior notice to Mondy or service on the defendant, dismissed the complaint for a claimed lack of jurisdiction, erroneously concluding that Mondy had not exhausted his administrative remedies. 3 Acting swiftly, on November 5, 1985 Mon-dy filed a pro se motion to alter the judgment, attaching a copy of his right-to-sue letter. This led the court to reinstate the case on February 10, 1986. Shortly thereafter Mondy engaged an attorney who filed an amended complaint substituting the Secretary of the Army as defendant. How *1059 ever, the district court dismissed the amended complaint for lack of subject matter jurisdiction, ruling that the amended complaint substituting the Secretary of the Army as the defendant could not relate back because the Secretary had not been timely served. Mondy v. Secretary of the Army, slip op. No. 85-3439 (D.D.C. Oct. 31, 1986) [Available on WESTLAW, 1986 WL 15320 ]. This ruling implicitly holds that Colonel Sweeney was not an “appropriate” defendant under the Act.

Many cases hold that the head of a “unit” may be an “appropriate” defendant for Title VII purposes. See e.g., Hackley v. Roudebush, 520 F.2d 108 , 115 n. 17 (D.C.Cir.1975); Quillen v. United States Postal Service, 564 F.Supp. 314, 321 (E.D. Mich.1983); Guilday v. Department of Justice, 451 F.Supp. 717, 726 (D.Del.1978). Guilday holds that the head of the Immigration and Naturalization Service (“INS”) is a more appropriate defendant than the Department of Justice, the INS, and individual INS employees, explaining that “[t]he wording of Title VII leaves the Court considerable discretion to decide which defendant is the ‘appropriate’ one. Some courts have concluded that the Cabinet Department head is the proper defendant, while others have held that the head of the agency or unit within a Cabinet Department is the proper defendant” (citations omitted) (emphasis added). In I.M.A.G.E. v. Bailar, 78 F.R.D. 549, 552-53 (N.D. Cal.1978), against the Postal Service, the court allows “inclusion of defendants lower in the chain of command ... who accordingly have more knowledge and actual control of actions affecting those plaintiffs ... [w]here, as here, responsibility for the acts complained of has not yet been determined and ... it would appear premature to dismiss as defendants those persons who may ultimately prove to be the parties best able to grant the relief sought.” Beasley v. Griffin, 427 F.Supp. 801, 803 (D. Mass.1977) is to the same effect, holding that since each of the defendants “may be described as a ‘head’ of the department, agency or unit in question ... I see no persuasive reason to dismiss the complaint as against any of them.”

The assumption that only the head of the Department, i.e., the Secretary of the Army, may be named as the defendant and that the head of Mondy’s “unit” may not be properly named, reflects an unduly restrictive construction of the statute and violates the clearly expressed intent of Congress. To properly interpret a statute, all of its provisions are to be considered. It is an established rule of statutory construction that courts must give effect to entire statutes, not just select provisions or words. Bowsher v. Merck & Co., 460 U.S. 824, 833 , 103 S.Ct. 1587, 1593 , 75 L.Ed.2d 580 (1982).

In my opinion, Guilday v. Department of Justice, 451 F.Supp. 717, 726 (D.Del.1978), and I.M.A.G.E. v. Bailar, 78 F.R.D. 549, 552-53 (N.D. Cal.1978), correctly interpret the jurisdictional defendant provision of Title VII. In enacting the Civil Rights Act, Congress did not intend to have claims of discrimination dismissed on a highly technical construction of the broadly worded provision designating appropriate defendants. In providing that “the head of ... a unit, as appropriate, shall be the defendant,” (emphasis added), Congress indicated that a non-technical, reasonable interpretation should be applied in determining eligible defendants. The use of the words “as appropriate” and “shall” denote a congressional intent to prescribe a wide selection of jurisdictional defendants. It is this complete statutory provision that determines the jurisdictional defendants and the words should be given their ordinary everyday meaning. Burns v. Alcala, 420 U.S. 575, 580-81 , 95 S.Ct. 1180, 1184-85 , 43 L.Ed.2d 469 (1975).

Underlying the government’s argument and the majority opinion is the assumption that Mondy’s failure to name the proper defendant in his original complaint justified the dismissal of his complaint. If the court had not erroneously dismissed Mon-dy’s complaint, however, the Marshal would have served the United States Attorney before the end of the statute of limitations period. Once the court rectified its error, Mondy’s complaint was able to proceed through normal channels, and the *1060 Marshal had no difficulty discerning that Mondy’s case required serving the United States Attorney.

An in forma pauperis plaintiff is powerless to serve process in his own action. Congress has provided that “the officers of the court [marshals] shall issue and serve all process, and perform all duties in \in forma pauperis] cases.” 28 U.S.C. § 1915 (c). Similarly, Rule 4(c)(2)(B)(i) of the Federal Rules of Civil Procedure provides, “A summons and complaint shall, at the request of the party seeking service or such party's attorney, be served by a United States Marshal ... on behalf of a party authorized to proceed in forma pauperis pursuant to title 28, U.S.C. § 1915 -” Mondy filed his complaint and in forma pauperis motion with the court well before the limitation period had run, and he was legitimately entitled to expect that the timely filed complaint would be deemed timely served. The Marshal should have served the United States Attorney, who was close by, at least as early as October 23, 1985, the date that the Judge granted Mondy in forma pauperis status. Several cases have recognized the special circumstance of in forma pauperis plaintiffs who must rely on the Marshal to serve process. See, e.g., Rochon v. Dawson, 828 F.2d 1107 (5th Cir.1987); Paulk v. Department of the Air Force, 830 F.2d 79, 83 (7th Cir.1987); Romandette v. Weetabix, Co., Inc., 807 F.2d 309, 311 (2d Cir.1986).

To my mind Mondy appropriately named Colonel Sweeney as the defendant in his timely complaint, and therefore no amended complaint changing the name of the defendant was required, though nothing adverse results from continuing the action on that basis. The two mistakes made in this case were not made by Mondy. The first error was made when the court erroneously ordered the sua sponte dismissal of Mondy’s complaint due to its mistaken conclusion that he had failed to exhaust administrative remedies. The United States Marshal made the second error. As an in forma pauperis plaintiff, Mondy was entitled and required to rely on the Marshal to serve the defendant or the United States Attorney within the statutory time period. 28 U.S.C. § 1915 (c). Instead of effecting service when the complaint was filed by delivery to the Clerk of Court, or when the Judge granted Mondy’s in forma pauperis application, the Marshall waited until after the statutory time period to serve the United States Attorney. Under such circumstances the delay was tolled and the complaint as filed against Colonel Sweeney “commenced” the action against an appropriate defendant. That the forces of litigation later caused the Secretary to be substituted as defendant does not require reliance on the relation back doctrine.

I concur in the result reached by the majority that Mondy must be allowed to proceed with his case, but for the reasons set forth above I cannot join in the underlying assumptions that the majority applies in reaching that result.

. In specific contradiction of the majority's assertion that it does not reach the proper defendant issue, its opinion states that a "procedural defect in the bringing of the suit” was that "Mondy’s complaint named the wrong defendant — his activity commander, Colonel Thomas Sweeney, rather than the Secretary of the Army.” Maj.Op. at 1052 (emphasis added). See also id. at 1054 (referring to designating Colonel Sweeney as "Mondy's error 1 ’) (emphasis added); id. at 1053, 1054 (the majority opinion asserts, "Mondy may have mistakenly believed that Colonel Sweeney was the proper Title VII defendant ...” and also refers to such designation as "His mistaken choice of defendant” and as “the original error ...’’) (emphasis added); id. at 1057 (characterizing the designation of defendant as "a mistake in naming Colonel Sweeney ...”) (emphasis added). I am not willing to let the majority's erroneous assumption creep into de-cisional law when, in my opinion, it directly violates the plain language of the statute. There is absolutely no interpretation of this statute that would restrict the appropriate defendants to the heads of departments.

. Receipt by the clerk's office of a pro se complaint accompanied by an in forma pauperis application constitutes a filing for statutory time limitation purposes. See e.g., Rodgers v. Bowen, 790 F.2d 1550, 1552 (11th Cir.1986); Lyons v. Goodson, 787 F.2d 411, 412 (8th Cir.1986); Rosenberg v. Martin, 478 F.2d 520 , 522 n. 1a (2d Cir.), cert. denied, 414 U.S. 872 , 94 S.Ct. 102 , 38 L.Ed.2d 90 (1973); Smith v. Ouzts, 629 F.Supp. 1001 (S.D.Miss.1986).

.The court's dismissal of Mondy’s original complaint was clearly erroneous for two reasons. First, failure to exhaust administrative remedies is an affirmative defense, and therefore Mondy was not required to anticipate it in his complaint. See Brown v. Marsh, 777 F.2d 8, 13 (D.C.Cir.1985) (plaintiff does not have the burden of proving exhaustion). Second, the case should not have been dismissed on a procedural defense ground such as exhaustion while the case was in the screening phase to determine if it was frivolous or malicious pursuant to 28 U.S.C. § 1915 (c). See e.g., Anger v. Revco Drug Co., 791 F.2d 956, 958 (D.C.Cir.1986) ("a pro se complaint may not be dismissed on its face under 28 U.S.C. § 1915 (d) solely on the ground that the court lacks personal jurisdiction over the defendants.”).