Petition for Writ of Certiorari — Sutherland v. United States Postal Service

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88-1279 4h ED

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1 YOStAH € SPAN

No. oO re i -

IN THE

Supreme Court of the United States

OcrosBER TERM, 1988

WALTON SUTHERLAND,

Petitioner,

vs.

THE UNITED STATES POSTAL SERVICE

and EDWARD R. TISCH, POSTMASTER GENERAL

OF THE UNITED STATES,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

WALTON SUTHERLAND

Petitioner Pro Se

P.O. Box 16277

Jersey City, NJ 07306

(201) 332-4357

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QUESTIONS PRESENTED

A. Whether a federal court can

dismiss a timely filed complaint for

lack of proper service if the Clerk of

the court failed to issue a summons

forthwith and tender the summons to

the plaintiff so that the plaintiff

might be able to timely serve the

summons and complaint upon the defendants

of an action.

B. Whether a federal court may

deny a pro se plaintiff his request

for counsel merely upon the basis that

he is articulate in the presentation

of a case.

C. Whether a federal court can

dismiss a complaint for failure to

name the proper defendant if:

(1) the notice of the right

to sue contained an error which misled

the plaintiff to name the wrong party;

and

a3

(2) if the statute of

limitations is equitably tolled; and

(3) if notice was timely

given to the party to be amended in

the lawsuit.

D. Whether the federal court can

dismiss a complaint for failure to

follow the instructions for service

placed upon a notice of the Equal

Employment Opportunity Commission if

said notice contained no instructions

with which to follow.

E. Whether a federal court can

dismiss an amended complaint if the

Original complaint was timely forwarded

to the U.S. Marshal rather than the

Attorney General of the United States

or the U.S. Attorney or his designee.

iii

PARTIES TO THE PROCEEDING

The petitioner is WALTON SUTHERLAND,

a former Postal Mechanic of the United

States Postal Service appearing pro

se. The respondent is the UNITED

STATES POSTAL SERVICE and EDWARD

TISCH POSTMASTER GENERAL OF THE UNITED

STATES. Said respondents were repre-

sented by Samuel A. Alito, Jr.,

United States Attorney of Newark, New

Jersey.

iv

TABLE OF CONTENTS

Page

Questions Presented........ceceees i

Table Of Authorities. ..ccccsssccss vi

Opinion Below...... isc danaceaneunne 2

Constitutional and Statutory

PFOVISiONS TNVOLVOG. «ccccccccscses 4

Statement of the Case... sccscccccs 5

Reason for Granting the Petition.. 12

1. The District Court and the

Court of Appeals are Mistaken

as to the Meaning of Federal

RulS APG) 6 abc ccceesennenesdessees 12

2. The Amended Complaint Should

Stand Because Forwarding of Process

for Service of the Complaint Issued

to the United States Marshal

Within the Statutory Period....... 20

3. The Statute of Limitations

Herein is Equitably Tolled........ 21

4. The Petitioner was Denied Due

Process of Law by the Court's

Denial of Effective Access to

CHO COUPE 6 sia bees sce eaeueeee an sae 23

5. The District Court's Holding

Was £6: BECOEs ccc ccs &e cd aoe ee eee 24

COMBI UGIOR, 64s hed 4K Ree 2>

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

Appendix H

vi

TABLE OF AUTHORITIES

Page

Cases:

Milam v. United States Postal

Service, 674 F.2d 860 (llth

it Sa | ree arer a 22

Schiavone v. Fortune,

28 * esc. ) ee 13-15

Sims v. Heckler,

725 F.2d 1143 (7th Cir.,

L9BE) cc ccccccscecccsscesceses 22

Williams v. Army and Air Force

Exchange Service,

830 F.2d 27 (3d Cir. 1937)... 8,14,

16

CONSTITUTION, STATUTES AND RULES

U.S. Constitution Article V... 4,24

United States Code

2B U.E.C. $509. cc cccccccccesec 4,21

426 U.S.C. BSG). cccccscscsasecs 4,21

28 U.S.C. 569 (CC)... eee eeeeeee 4,21

28 U.S.C. §1254 (1).........2.. 4

28 U.S.C. $1291. cc ccccccccces 4,11

49 U.S.C. OTFL a cecsceessecesan 4,12

29 U.S.C. $794(a) 2. cc ccc eccees 4,21

29 U.S.C. §$794(C).. cece ceeceee 4,12

vil

Page

42 U.S.C. 2000e et seg...... 4,11

42 U.S.C. 2000e-16(c)....... 4,21

Federal Rules of Civil Procedure

DEP Cs eae ee eae Leeuw an 4,5,24

Federal Rule of Civil Procedure

DO Ciucs SKK Ree Oe eee 4,7

Federal Rule of Civil Procedure

eT Eg reer eer em ees 4,8

Federal Rule of Civil Procedure

RN bs gaa aw ol eb ka oe eo 4,7,12-

i3,20

TOs cssvidens césssaskeéseenees 4,7

Federal Rule of Civil Procedure

DGD aa weodns Owe Ke be hae cere 4,11

NO:

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

WALTON SUTHERLAND,

Petitioner,

vs.

THE UNITED STATES POSTAL SERVICE

and EDWARD R. TISCH, POSTMASTER

GENERAL OF THE UNITED STATES,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Petitioner, WALTON SUTHERLAND,

respectfully prays that a writ of

certiorari issue to review the orders

of the United States Court of Appeals

for the Third Circuit dated September

9, 1988 and October 31, 1988.

OPINION BELOW

The order of the Court of Appeals

for the Third Circuit affirming the

judgment of the District Court for

the District of New Jersey (Newark)

is dated September 9, 1988 and is set

forth as Appendix "A" (App. A). The

order of the Court of Appeals for the

Third Circuit denying petitioner's

request for a rehearing en banc and

of the panel is dated October 31,

1988 and is set forth as Appendix

"B". Upon information and belief,

both orders are not reported.

The order of the District Court

of the District of New Jersey (Newark),

dated January 13, 1988, which dismissed

the original complaint of the petitioner

is set forth as Appendix "Cc".

The District Court order of the

aforesaid Court, dated March 15,

1988, which dismissed petitioner's

complaint and amended complaint is

set forth as Appendix "D". Upon

information and belief, both orders

are unreported.

The Opinion of the District Court,

herein, which is not dated, is set

forth as Appendix "E". The letter

opinion of the District Court herein,

which is dated March, 1988 is set forth

as Appendix "F".

JURISDICTION

Upon information and belief, the

orders of the United States Court of

Appeals for the Third Circuit were

entered on September 9, 1988 and

October 31, 1988. The Petition for

Certiorari is filed within the time

permitted for filing. This Court's

jurisdiction to review the case rests

upon 28 U.S.C. §1254 (1).

CONSTITUTIONAL AND STATUTORY

PROVISION INVOLVED

United States Constitution,

Articie V, 28 U.:8.¢. $1254, 28 ¥.8.¢.

$i291, 29 U.S.C. $791, 29 8.8...

$794(a)S (c), 42 U.S.C. 2000e-16(c),

28 U.S.C., §§509, 561 and 569(c) and

Federal Rules of Civil Procedure

4(a), 12(b), 15(a), 15(c), 56, and

60(b) are reproduced in pertinent

part in Appendix "G".

STATEMENT OF THE CASE

The appeal to the United State

Court of Appeals for the Third Circuit

arose out of a Title VII action filed

by the petitioner, Sutherland, in the

United States District Court for the

District of New Jersey. Sutherland's

complaint named only the federal

agency for which he worked, the Postal

Service, as defendant. Although

timely filed, process did not issue

to the petitioner in order that the

summons and complaint could be served

before the statute of limitations had

run. The petitioner herein filed his

complaint as a pro se litigant in the

District Court of New Jersey on July

23, i987. Subsequently, the Clerk

of the District Court never issued a

summons to petitioner who awaited

delivery of the summons to him pursuant

to Federal Rules of Civil Procedure 4

(a) so that he might affect proper

and timely service. After having

filed his complaint, the petitioner

herein contacted the Postmaster

General's office by telephone. He did

SO because the notice supplied to him

failed to delineate the address for

service of the summons and complaint.

The petitioner made clear that he had

commenced an Equal Employment

Opportunity suit for discrimination.

The petitioner asked for and obtained

the address with which to serve

papers.

Petitioner continued to await the

delivery of the summons to him yet it

never came inasmuch as the Clerk of

the District Court herein issued the

Summons on July 28, 1987 and forwarded

the same to the U.S. Marshal and not

to the petitioner.

The Marshal never effected timely

service upon the defendant within the

statute of limitations. The statutory

period for commencing the lawsuit and

effecting service was 30 days after

petitioner's receipt of his notice of

right to file a civil complaint.

Petitioner received said notice on

June 29, 1987 and thus July 29, 1987

constituted the end of the statutory

period for commencing and serving the

defendants to the lawsuit.

The United States filed a motion

to dismiss pursuant to Fed. R. Civ.

P. 12(b) and/or for summary judgment,

pursuant to Fed. R. Civ. P. 56,

alleging that the wrong party had

been named and that leave to amend

should not be granted because it

would be futile since relation back

under Fed. R. Civ. P. 15(c) was

unavailable. The United States

asserted that under the recent decisions

in Schiavone v. Fortune, 977 U.S. 21

(1986) and Williams v. Army and Air

Force Exchange Service, 830 F.2d 27

(3d Cir. 1987), Sutherland's failure

to name and serve the correct defendant

within a limitations period was

fatal to his complaint.

After the United States' motion

was filed but before the return date

thereof, Sutherland, without leave of

Court, filed pursuant to Federal Rule

15(a), an amended complaint which

added Edward Tisch, Postmaster General

of the United States, as a named

defendant to the caption of the

complaint.

By letter to the Court dated

November 25, 1987, the United States

requested that the Court also dismiss

the amended complaint for the reasons

contained in its motion papers.

a

The District Court accepted the United

States' arguments and granted summary

judgment dismissing the complaint and

amended complaint.

By letter dated January 25, 1988,

Sutherland asked the Court for relief

from the Final Order dismissing the

complaint and amended complaint on

the grounds that: the complaint was

filed in a timely fashion; the court

failed to consider his request for

appointment of counsel; and the notice

("Notice") informing Sutherland of

his right to file a civil suit within

thirty (30) days from the date he

received the Equal Employment

Opportunity Commission's ("EEOC")

decision, was ambiguous inasmuch as

Said Notice directed petitioner to

name as defendant the aforesaid agency

or department head.

The District Court rejected

10

Sutherland's arguments finding that

he did not present the Court with

such extraordinary circumstances to

justify relief from the Final Order.

The District Court reiterated its

position that the complaint and

amended complaint were dismissed and

would remain dismissed, since Sutherland

failed to name the proper party in

his original complaint pursuant to

the instructions on the EEOC Notice,

and the amended complaint cannot

relate back to the original complaint,

Since it was not filed and served

within the statutory period. The

District Court also determined that

its failure to appoint counsel for

Sutherland did not warrant vacation

of the Final Order. The Court,

thereupon, determined that Sutherland

was not entitled to the appointment

of counsel.

11

Sutherland appealed to the United

States Court of Appeals for the Third

Circuit from the District Court's

Final Orders dismissing the complaint

and amended complaint and the March

15, 1988 Order denying his Rule 60(b)

application for relief from the Final

Order. The Court of Appeals affirmed

on September 9, 1988 the orders of

the District Court and denied petitioner

the right to have a rehearing en banc

and of the panel on October 31, 1988.

The jurisdiction of the Court

of Appeals for the Third Circuit to

review the orders of the District

Court of New Jersey emanated from

28 U.S.C. §1291. The District Court

of New Jersey's jurisdiction to enter-

tain the action herein emanated from

Title VII of the Civil Rights Act

of 1964, 42 U.S.C. 2000(e) et seg.,

as amended, and the Rehabilitation

12

Act of 1963, 29 U.S.C. 791 and 794(c),

as amended.

THE REASONS FOR GRANTING THE PETITION

This petition presents substantial

questions of law having a widepsread

effect on the rights of all pro se

litigants to file a Title VII cause

of action. This petition should be

granted because this case involves

monumental issues of constitutional

and procedural importance.

1. The District Court and the

Court of Appeals are Mistaken as to

the Meaning of Federal Rule 15(c).

The District Court as affirmed by

the Court of Appeals held that since

the plaintiff failed to name the

proper party in his original complaint,

any attempt to amend the complaint

must fail because the amendment cannot

relate back to the original complaint

Since the complaint was not filed and

served within the statutory period.

—— eee

13

The above holding does not reflect

the law as stated by Federal Rule

15(c) or in Schiavone v. Fortune, 977

U.S. 21 (1986). The key issue is not

service but notice within the statute

of limitations. In the case at bar,

the petitioner placed the Office of

the Postmaster General on notice as

to his commencing the instant lawsuit.

It is true that the petitioner did

not effect service within the statutory

period simply because process did not

issue to the petitioner to permit him

to effect timely service. However,

the petitioner herein is not barred

from amending his original complaint

so long as the defendant who is

subsequently amended to the lawsuit

had notice of the action within the

Statutory period. Timely service of

the complaint is not necessary to

allow a complaint to be amended

———a7”~

14

pursuant to Rule 15(c).

Review of the instant case is

urgently needed in order to correct

any possible misinterpretation of

the law by the Court of Appeals for

the Third Circuit. The Court has

taken upon itself by nature of its

holding in Williams v. Army and Air

Force Exchange Service, supra, to

twist the meaning of the clear holding

of the Supreme Court in Schiavone

v. Fortune, supra:

(1) The holding in Schavone v.

Fortune, supra, pertained to private

parties and not governmental agencies.

Nevertheless, the Court of Appeals

for the Third Circuit has attempted

to apply the Schiavone holding applicable

to governmental agencies.

(2) The Supreme Court in theSchiavone

decision addressed itself as to the

requirement of notice as required

ere

15

by the Federal Fules of Civil Procedure

15 (c). The Court of Appeals for

the Third Circuit has required as

a result of the Schiavone decision

that there be timely service as opposed

to timely notice in order to make

Federal Rules of Civil Procedure 15(c)

operable. Such is not the law.

(3) The Court of Appeals for the

Third Circuit has based its holding

vis-a-vis the meaning of Federal

Rules of Civil Procedure 15(c) upon a

case that never involved a ruling by

the District Court below on whether

Federal Rule 15(c) should or should

not be granted. As an appellate

court, the Court of Appeals for the

Third Circuit could only sustain or

reverse solely upon the rulings of

the District Court below.

(4) The holding of the Court of

Appeals for the Third Circuit in the

I

Ne

16

Williams decision, supra, completely

contradicts the holding of the Court

of Appeals for the Third Circuit in

the case at bar. This is so because

in both cases, the issue of equitable

tolling was raised. In the Williams

decision, the Court held that, since

the government engaged in no mis-

representations to the plaintiff

therein, the doctrine of equitable

tollings was inapplicable.

In the instant case, even though

there waS apparent misrepresentation

by the government as to who was the

proper party to be named as defendant,

the Court nevertheless failed to rule

that the doctrine of equitable tolling

waS inapplicable.

Guidance from the Supreme Court of

the United States is urgently needed in

order to rectify the Court of Appeals for

the Third Circuit's possible confusion.

17

Furthermore, the U.S. Attorney in

his papers before the Court of Appeals

for the Third Circuit set forth

erroneous information and factual

statements. The U.S. Attorney in his

appellate brief said: "Sutherland did

not serve the postal service until

August 20, 1987, twenty-two (22) days

after the expiration of the time

period provided by law for commencing

the action." The truth of the matter

is that process did not issue to

Sutherland at all to allow him to

effect timely service of the original

complaint since the Clerk of the

District Court forwarded process to

the U.S. Marshal and not to Sutherland.

It must be emphasized, therefore,

that Sutherland did not serve the

Postal Service at all with the original

complaint since he was not delivered

process. However, the U.S. Attorney

ee

argued that Sutherland did not make

tardy service to the Postal Service on

August 20, 1987. Such is utterly not

the truth.

Furthermore, the U.S. Attorney

argued in the same brief before the

Appellate Court herein, that: "It is

also undisputed that the Postmaster

General did not have notice of this

action within the thirty (30) day

period for commencing it." Once again

the Appellate Court may have been

misled by possible fraud on the part

of the U.S. Attorney. Sutherland did

not enter into any stipulation with

the U.S. attorney to the effect that

the Postmaster General did not have

notice of this action within the thirty

(30) day period for commencing it. In

fact, the record below is silent as to

any claims as to notice to the

Postmaster General having been made by

Sutherland. In addition, the U.S.

Attorney failed to produce into evidence

an affidavit from the Postmaster

General attesting to lack of receipt

of notice during the aforementioned

period. It is evident, therefore,

that the statement of the U.S. Attorney

as to "undisputed" lack of notice to

the Postmaster General may clearly be

a falsehood. The petitioner Sutherland

was never questioned by the U.S.

Attorney as to the notice issue of the

case. Furthermore, the petitioner

never made any statements as to the

notice issue in hisS moving papers.

The truth is that the U.S. Attorney

had no evidence to support his claim

of "undisputed" lack of notice and

thus should have merely stated to the

Appellate Court that the petitioner

Sutherland has made no statement as to

notice because he was never questioned

20

on that issue.

2. The Amended Complaint Should

Stand Because Forwarding

of Process for Service of

the Complaint Issued to the

United States Marshal Within

the Statutory Period.

It is well established that

pursuant to Rule 15(c) of the Federal

Rules of Civil Procedure that the

mailing or delivery of a process to

the United States Attorney, or his

designee, or the Attorney General of

the United States, or any agency or

officer who would have been a proper

defendant if named satisfies the

requirements of the law as to adequate

notice to any federal agency. In the

case at bar, process was forwarded to

the U.S. Marshal within the required

statutory period for commencing the

action. It is evident that the U.S.

Marshal is an agency of the U.S.

Department of Justice as established

21

by 28 U.S.C. §561 and following. In

addition, the U.S. Marshal is an

agency of the U.S. Attorney General

Since all functions of the Department

of Justice less any exceptions noted

by statute vest in the Attorney General

by virtue of 28 U.S.C. 509. See also

28 U.S.C. 569(c).

3. The Statute of Limitations

Herein is Equitably Tolled.

The notice tendered by the Equal

Employment Opportunity Commission to

the petitioner Sutherland (Appendix H)

was defective inasmuch as it instructed

him to "name the official agency or

department head as defendant." Naming

the official agency as defendant in

the case at bar was contrary to the

law as established by 42 U.S.C. §

2000e-16(c); 29 U.S.C. §794(a). The

statutes require the head of the

department to be named as defendant.

——-

22

The defendants argued that the

doctrine of equitable tolling does not

apply to the U.S. or its agency due to

the doctrine of sovereign immunity.

The Circuit Courts are split as

to this issue. Compare, for example,

Sims v. Heckler, 725 F.2d 1143, 1145

(7th Cir., 1984) wherein the distinction

between federal and private employers

has led the Seventh Circuit to hold

waiver, estoppel, and equitable tolling

unavailable in Title VII cases against

the government and Milam v. United

States Postal Service, 674 F.2d 860

(llth Cir. 1982) where a different

conclusion was reached.

It is prayed that the Supreme

Court resolve the issue as to whether

equitable tolling may apply toa

governmental agency or officer in

order to remedy any apparent injustice

as revealed here where the petitioner

;

was misled by the government to his

detriment to name the wrong defendant.

4. The Petitioner was Denied Due

Process of Law by the Court's

Denial of Effective Access

to the Court.

Petitioner beseeched the District

Court to appoint counsel on his behalf

at the time of filing his complaint.

The Court failed to rule upon his

timely application. When he subse-

quently asked for the appointment of

counsel, the District Court held that

a reading of plaintiff's complaint and

Supporting papers indicates that "he

is capable of presenting the facts in

a clear and articulate manner...

Therefore I do not find that counsel

would have been appointed in this

case." (See Appendix F).

Such a statement is a logical and

legal absurdity. The pro se petitioner

beseeched the Court for counsel in

24

order to properly prepare, file and

serve a proper complaint. To deny

petitioner counsel merely because he

is articulate is a denial of due

process of law as guaranteed by the

Fifth Amendment as is the Court's

failure ab initio to rule upon the

petitioner's initial application for

counsel since the Court's ruling denied

petitioner effective access to the

Court. Being articulate cannot nullify

one's opportunity to have counsel

appointed in a civil proceeding. In

addition, the Court's failure to

deliver the summons to the petitioner

pursuant to Federal Rule 4(a) also

constituted a denial of due process

and a denial of access to the Court.

5. The District Court's Holding

Was in Error.

The District Court held that if

the plaintiff complied with the

Sl

25

instructions placed on the EEOC's

notice ( See Appendices F and H) with

respect to naming the proper party

defendant and timely service, the

complaint would not have been dismissed.

The Equal Employment Opportunity

Commission's notice contained no

instructions as to proper service so

how could the petitioner herein have

followed said instructions. In

addition, process never issued to

plaintiff so that he could effect

service of the original complaint in a

timely fashion.

CONCLUSION

The petition for a Writ of

Certiorari should be granted.

Dated: Jersey City, New Jersey

January , 1989

Respectfully submitted,

WALTON SUTHERLAND

Petitioner Pro Se

APPENDIX

Order of the Court of Appeals

For the Third Circuit, dated

September 9, 1988, Appendix A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 88-5238

WALTON SUTHERLAND,

Appellant

Vv.

U.S. POSTAL SERVICE, &

EDWARD TISCH, Postmaster

General of the United States

Appeal from the United States

District Court for the District of

New Jersey (Newark)

(D.C. Civil Action No. 87-2957)

District Judge: Hon. Harold A. Ackerman

Submitted Under Third Circuit Rule 12(6)

June 14, 1988

Before: HIGGINBOTHAM, SLOVITER and

MARIS, Circuit Judges.

JUDGMENT ORDER

After consideration of all con-

tentions raised by appellant, it is

ADJUDGED AND ORDERED that the

judgment of the district court be and

is hereby AFFIRMED.

Costs taxed against appellant.

BY THE COURT,

Circuit Judge

Attest:

Sally Mrvos, Clerk

SEP 9 1988

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 88-5238

WALTON SUTHERLAND,

Appellant

Vv.

U.S. POSTAL SERVICE, &

EDWARD TISCH, Postmaster

General of the United States

(D.C. Civl No. 87-2957)

SUR PETITION FOR REHEARING

Present: GIBBONS, Chief Judge, SEITZ,

HIGGINBOTHAM, SLOVITER, BECKER,

STAPLETON, MANSMANN, GREENBERG,

NUTCHINSON, SCIRICA and COWEN,

Circuit Judges and MARIS, Senior

Circuit Judge.*

The petition for rehearing filed

by appellant in the above-entitled

case having been submitted to the

judges who participated in the decision

of this Court and to all the other

available circuit judges of the circuit

in regular active service, and no

judge who concurred in the decision

having asked for rehearing, and a

majority of the circuit judges of

the circuit in regular service not

having voted for rehearing, the petition

for rehearing by the panel and the

Court in banc, is denied.

BY THE COURT

Circuit Judge

Dated: October 31, 1988

*Honorable Albert B. Maris, Senior

Circuit Judge sat on the original

panel and does not desire rehearing

by the panel.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

WALTON SOUTHERNLAND,: Hon. Harold A.

Plaintiff,: Ackerman

V. :

UNITED STATES POSTAL: Civil Action No.

SERVICE, PRESTON : 87-2957

TISCH, Postmaster

General of the : ORDER

United States, :

Defendant.:

This matter having been opened

by the Court by Samuel A. Alito, Jr.,

United States Attorney for the District

of New Jersey (by Janice Montana,

Assistant U.S. Attorney), for an Order

dismissing the Complaint and Amended

Complaint for lack of subject matter

jurisdiction and the Court having

considered the papers submitted, without

Oral argument pursuant to Fed.R.Civ.

P. 78, and for good cause shown,

IT IS on this 13th day of January,

1988.

ORDERED that the Complaint and

Amended Complaint be and are hereby

dismissed with prejudice.

HON. HAROLD A. ACKERMAN

UNITED STATES DISTRICT

COURT JUDGE

on Ahab hdl

Order of the District Court of

New Jersey dated March 15, 1988,

Appendix D

JM:mgg - 3486S/P5

UNITED STATES

DISTRICT COURT

DISTRICT OF

WALTON SUTHERLAND, :NEW JERSEY

Plaintiff, :Hon. Harold A.

:Ackerman

Vv. :

‘Civil Action No.

UNITED STATES * 37-2957

POSTAL SERVICE,

PRESTON TISCH, :

Postmastre General :ORDER

of the United :

States,

Defendants.

This matter having been opened

to the Court by plaintiff Walton

Sutherland, Pro Se, upon plaintiff's

application for relief from the Court's

January 13, 1988 Order and decision

dismissing the Complaint and Amended

Complaint for lack of subject matter

jurisdiction and Samuel A. Alito,

Jr., United States Attorney for the

District of New Jersey (by Janice

Montana, Assistant U.S. Attorney),

submitting opposition thereto and

the Court having considered the papers

Submitted, without oral argument pur-

Suant to Fed. R.Civ. P. 78, and for

good cause shown,

IT IS on this 15th day of March,

1988,

ORDERED that plaintiff's applica-

tion for relief from the January 13,

1988 Order and decision dismissing

the Complaint and Amended Complaint

with prejudice, be and is hereby denied.

HON. HAROLD A. ACKERMAN

United States District

Court Judge

a thy ct

Opinion of the District Court of

New Jersey, Not Dated Appendix E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

WALTON SUTHERLAND, $ Civil Action

: No.87-2957

Plaintiff,:

We : OPINION

UNITED STATES :

POSTAL SERVICE :

Defendant.:

ACKERMAN, District Judge

INTRODUCTION

This employment discrimination

action is brought by plaintiff, Walton

Sutherland, a former employee of the

United States Postal Service. Before

me today is the motion of defendant,

United States of America, to dismiss

the complaint upon which this suit

is based.

PROCEDURAL HISTORY

On July 23, 1987, plaintiff,

proceeding pro se, filed his initial

complaint in federal court in which

he alleged that he was the victim

of a reprisal for statements he made

to an Equal Employment Opportunity

("EEO") counselor and handicap discrim-

ination. This complaint was served

upon the Attorney General of the United

States on August 19, 1987 and the

United States Post Office as well

as the U.S. Attorney's Office for

the District of New Jersey on August

20, 1987.

On October 16, 1987, the Clerk

of the Court granted the request of

the government for an extension of

time within which to respond to the

complaint.

a A Ce el aad 0) lal aie” SA

On November 2, 1987, the United

States moved for an order dismissing

the within complaint pursuant to Fed.

R.Civ. P. 12(b)(1) for lack of subject

matter jurisdiction on the ground

that the United States Postal Services

is not a proper party defendant to

plaintiff's claims and any attempt

to amend the complaint to name the

Postmaster Geneal as a defendant is

untimely.

On November 5, 1987, plaintiff,

without leave of court, filed an amended

complaint in which he named Postmaster

General Tisch as a defendant in this

action. On December 2, 1987, this

complaint was served upon the Attorney

General of the United States, United

States Postal Service, and the United

States Attorney's Office for the

District of New Jersey.

The government now moves to dismiss

the within complaint pursuant to Fed.R.

Civ.P. 12(b)(1). Since the motion

attacks the complaint on its face,

the court must consider the allegations

embodied in the complaint as true.

Mortensen v. First Federa Sav. & Loan

Ass'n, 549 F.2d 884, 891 (3d Cir.

1977). In reviewing the complaint,

I am simultaneously mindful that a pro

se complaint is held to less stringent

standards than formal pleadings drafted

by lawyers. See Haines v. Kerner,

404 U.S. 519, 520 (1972); Hurd v.

Romeo, 752 F.2d 68, 70 (3d Cir. 1985).

FACTS

With this standard in mind, I

find that on July 4, 1986, plaintiff

arrived at his place of employment,

the New Jersey International and Bulk

Mail Center in Jersey City, New Jersey

and his supervisior, John Boykin,

informed him that he was not permitted

to begin his shift, upon instructions

of their superintendent, Mr. Aponto-

Colon. Apparently, Mr. Aponte-Colon

informed Boykin that plaintiff could

not begin work unless he produced a

doctor's note that outlined any limita-

tions on his ability to perform his

duties as a postal mechanic that may

have been caused by his diabetic con-

dition and participation in insulin

therapy.

As a result of the refusal of

the Postal Service to permit plaintiff

to work, plaintiff was absent from

his position for five days. During

this period, plaintiff received sick

leave pay.

Plaintiff also claims that he

was denied access to the work site

because of statements he made to Mr.

Fred Kroog, an EEO counselor for the

Postal Service. The record, however,

reveals that plaintiff contacted the

EEO counselor on August 6, 1986, at

which time plaintiff claims the July

4, 1986 personnel action constituted

unlawful handicap discrimination. On

January 30, 1987, plaintiff filed an

EEO complaint of handicap and reprisal

discrimination with the United States

Postal Service. On March 5, 1987,

the agency found that plaintiff failed

to seek EEO conuseling in a timely

manner. On June 25, 1987, the Equal

Employment Opportunity Commission

("EEOC") affirmed the decision of the

agency based, in part, on the fact

that plaintiff failed to establish

that he contacted an EEO counselor in

a timely fashion. Specifically, the

EEOC found no support for plaintiff's

assertion that he contacted such a

counselor on July 7, 1986.

On June 29, 1987, plaintiff received

notice of the EEOC's final decision and

was informed that he had a right to

file a civil action in federal court

within thirty days of receipt of the

final decision of the EEOC and that

in such action he must specifically

name the official agency department

head either by name or title, and that

failure to do so "may result in the

loss of any judicial redress." See

Notice of Right to File a Civil Action,

attached to plaintiff's complaint.

Plaintiff filed his initial complaint

in federal court on July 23, 1987.

Review of that complaint reveals that

the only named defendant is the United

States Postal Service.

iene

In its motion to dismiss, the United

States argues that since the Postal

Service is not a proper party defen-

dant, this Court lacks subject matter

jurisdiction. Specifically, the

government argues that section 717

of Title VII, 42 U.S.C. §2000(e)-16(c),

requires that a federal employee who

files a civil action for employment

discrimination against a federal agency,

name as defendant the head of the depart-

ment, by title or name. The government

further argues that any attempt to

amend the complaint to name the Post-

master General as a defendant is time

barred and would not relate back to

the date the original complaint was

filed since the new defendant would

not receive notice of the action within

the applicable limitation period.

In response to this motion, plaintiff

filed an amended complaint in which

he specifically names the Postmaster

General as a party defendant.

DISCUSSION

Plaintiff alleges that conduct

on the part of agents of the Postal

Service constituted unlawful reprisal

discrimination in violatio of section

717 of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §2000e-16, and

handicap discrimination, in violation

of section 501 of the Rehabilitation

Act, 29 U.S.C. §791, et seq.

Section 717 of Title VII prohibits,

inter alia, the United States Postal

Service from taking any personnel

actions which discriminate on the basis

of race, color, religion, sex or

national origin. This provision also

protects a federal employee's right

to speak out against discriminatory

practices carried on by a federal

agency. See, e.g., Neely v. Blumenthal,

458 F.Supp. 945, 956-57 (D.D.C. 1978).

If a federal agency engages in personnel

actions which are motivated by the

employee's exercise of this right,

the agency may be liable for what

is commonly referred to as reprisal

discrimination.

Similarly, a federal agency may

be liable for acts of unlawful handicap

discrimination. Sections 501 and

504 of the Rehabilitation Act, 29

U.S.C. §791, 794, provide a statutory

basis upon which an individual may

bring a private cause of action to

obtain relief from handicap discrimina-

tion on the part of the federal govern-

ment of its agencies. See Prewitt

v. United States Postal Service, 662

F.2d 292, 304 (Sth Cir. 1981).

If a federal employee seeks to

pursue a claim of race, religion,

reprisal, sex, national origin or

handicap discrimination, he or she

must comply with the procedures

delineated in section 717(c). See 29

U.S.C. §794a, which states that a

federal employee pursuing a claim of

handicap discrimination must seek

redress in accordance with the

procedures set forth on section

717(¢).

Section 717(c) states that

Within thirty days of receipt of

notice of final action taken by

-.. the Equal Employment Opportunity

Commission upon an appeal from a

decision or order of [the United

States Postal Service] ... ona

complaint of discrimination, an

employee ..., if aggrieved by the

final disposition of his complaint

--.- may file a civil action ... in

which civil action the head of the

department, agency or unit, as

appropriate, shall be the defendant.

ee

Thus, the statute clearly requires

that the only proper defendant in suits

brought by federal employees under

Title VII and the Rehabilitation Act

is the head of the department or agency

in which the alleged discrimination

took place. Williams v. Army & Air

Force Exchange Service, 830 F.2d 27,

29 (3d Cir. 1987); Johnson v. United

States Postal Service, et al., No.

85-5596 (D.N.J. filed September 24,

1986) (unpublished). Since it is undis-

puted that the correct defendant in

this action is the Postmaster General,

as indicated by either name or title,

the initial complaint in this suit

fails to reveal a basis upon which

this court could exercise subject matter

jurisdiction.

The plaintiff, however, on November

5, 1987, amended his complaint by naming

the Postmaster General as a defendant.

This amendment was made without leave

of court. Federal Rules of Civil Pro-

cedure 15(a) provides that a party

may amend a pleading once without leave

before a responsive pleading is served.

A motion to dismiss, filed by a defen-

dant, does not constitute a sensintatve

pleading that bars a party from amend-

ing aS a matter of course. Fed.R.

CivlP. 7(a); Neifeld v. Steinberg,

438 F.2d 423, 425 n.3 (3d Cir. 1971);

Kronfeld v. First Jersey Nat'l Bank,

638 F.Supp. 1454, 1460 (D.N.J. 1986);

Markovich v. Vasad Corp., 617 F.Supp.

142, 143 (E.D. Pa. 1985) and cases

cited therein; 6 C. Wright & A. Miller

Federal Practice & Procedure §1483

at 411-12. Thus, as the defendant

has not answered plaintiff's complaint,

but rather has filed a motion to dismiss,

which is not a responsive pleading,

plaintiff may file his complaint as

a matter of right if the amendment

is made in a timely fashion and thereby |

relates back to the initial complaint

as of originally filed at that time.

Rule 15(c) governs the relation

back of an amendment to alter the party

against whom a claim asserted. The .

rule states that such an amendment

relates back to the date of the original

pleading if

(1) the basic claim arose out of

the conduct set forth in the original

complaint;

(2) the party to be brought in

received such notice of the action

as it will not be prejudiced in

maintaining its defense;

(3) that party knew or should have

known that, but for a mistake con-

cerning identity of the proper

party, the action would have been

brought againt it; and

(4) the second and third requirement

must have been fulfilled within

the prescribed limitations period.

Schiavone v. Fortune, 106 S.Ct. 2379,

2384 (1986); Williams, supra, 830

F.2d at 29; Cooper v. United States

Postal Service, 740 F.2d 714 (9th

Cir. 1984).

There is no doubt that the claim

plaintiff seeks to assert against the

Postmaster General in his amended

complaint is identical to that set

forth in the original pleading. There

is, however, a question as to whether

the Postmaster General received notice

of this action within the prescribed

limitations period of 30 days after

final action was taken by the EEOC.

In the case at bar, the EEOC took

its final action on June 25, 1987

and plaintiff received notice on June

29, 1987. Thus, according to the

30 day limitations period, the Post-

master General should have received

|

notice of the within action on July

29, 1987. Although the initial

complaint was filed on July 27, 1987,

service was not effectuated upon the

Postmaster General until December 2,

1987. The Supreme Court in Schiavone

observed that notice may be imputed

to such a "subsequently named and

sufficiently related party" by the

timely filing of a complaint and

notice, within the limitations period,

to the party named. 106 S.Ct. at

2384. Continuing, the court noted

that the "linchpin is notice ...

within the limitations period. Id at

2385. In the case at bar, the

Postmaster did not receive notice

within the limitations period.

Moreover, even substituted service

upon the Attorney General or the U.S.

Attorney failed to save the plaintiff

since neither of these substituted

defendant parties were served within

the limitations period, as both were

served on August 19 and 20, 1987,

respectively.

Thus, since the defendants failed

to receive notice within the 30 day

limitations period and since the Supreme

Court in Schiavone has admonished

the lower courts from

temper[ing] the plain meaing of

the language (of Rule 15(c)) by

engrafting upon it an extension

of the limitations period equal

to the asserted reasonable time,

inferred from Rule 4, for the

service of a timely filed

complaint([, ]

Schiavone, supra, 106 S.Ct. at 2385,

I am compelled to conclude that plain-

tiff's amendment, naming the Postmaster

General as a party defendant, cannot

relate back to the original complaint.

Therefore, since the initial complaint

fails to comply with the procedures

delineated in Section 717 of Title

VII, I find that this Court lacks

subject matter jurisdiction to resolve

the within controversy and hence the

case is dismissed despite the harshness

of the result in a case wuch as this

which involves such a short statute

of limitations (30 days) and an

untutored litigant ... [A]melioration

of these harsh results, [however] is

for the Rules Committee, not for this

Court." Williams, supra, 830 F.2d at

30.

Letter Opinion of the District Court

of New Jersey, dated March, 1988

Appendix F

UNITED STATES DISTRICT COURT

District of New Jersey

Chambers of U.S. Post Office

Harold A. Ackerman and Courthouse

Judge Newark, NJ 07101

NOT FOR PUBLICATION

LETTER OPINION

March , 1988

Mr. Walton Sutherland

P. O. Box 16277

142 Romaine Avenue

Jersey City, NJ 07306

Janice Montana, Esq.

Assistant U.S. Attorney

970 Broad Street

Room 502 ~*

Newark, NJ 07102

Re: Sutherlnd v. United States

Postal Service

Civil Action Number 87-2957

Dear Mr. Sutherland and Ms. Montana:

The court is in receipt of plain-

tiff's request that it reconsider

its decision, filed January 13, 1988,

in which it dismissed plaintiff's

complaint because this court lacked

subject matter jurisdiction to

adjudicate the within controversy.

Specifically, the court found that

plaintiff failed to name the proper

party defendant and his attempt to

amend his complaint in this respect was

not timely.

In support of his request for relief

from this decision and/or for recon-

Sideration, plaintiff argues that he

made a timely request for the appoint-

ment of counsel which the court had not

ruled upon and that with legal

representation, the complaint would not

have contained the technical error

which resulted in its dismissal.

Plaintiff also argues that the EEOC

notice of his right to file a civil

suit did not clearly state that he was

to name the agency head by title or

personal name but rather seemed to

approve of identifying the agency

itself. Specifically, he states that

the notice directed him to "Name the

appropriate official agency or Department

head as defendant." (emphasis added).

The conjunction "or" lead him to conclude

that identifying the agency was

sufficient. Plaintiff stresses that

this ambiguity should not result in

a penalty against him, especially in

light of his pro se status.

In response, the Postal Service argues

that plaintiff failed to file his

complaint in a timely fashion, and plain-

tiff did not formally file his request

for counsel within the statutorily

defined period of 30 days from the date

he received the decision of the Equal

Employment Opportunity Commission.

Moreover, the government asserts that

failure of plaintiff to obtain counsel

does not excuse him from his failure

to name the proper party defendant

and file his complaint against that

party in a timely manner. Finally,

the Postal Service asserts that the

EEOC's notice clearly states that

plaintiff was required to identify

the official title or name of the

agency head for the department against

whom he brings suit and thus his claim

that the notice is ambiguous must

fail.

Federal Rule of Civil Procedure

60(b) provides that a court may relieve

a party from a final order upon a

finding of, inter alia, mistake, in-

advertency, surprise, excusable neglect,

newly discovered evidence, fraud or

misrepresentation. The "remedy provided

by Rule 60(b) is extraordinary and

special circumstances must justify"

setting aside a judgment already entered.

Id. (quotation marks and citations

omitted) and cases cited therein.

Moolenaar v. Government of the Virgin

Islandsa, 822 F.2d 1342, 1347 (3d

Cir. 1987). Thus, the Court may relieve

a party of a final order if presented

with exceptional circumstances. Id.

In general, I do not find that

plaintiff has presented this court

with such extraordinary circumstances

to justify my disturbing the final

judgment I entered. First, as indicated

in my previous decision in this case,

plaintiff failed to file and serve

his initial complaint within the limita-

tions period. Plaintiff now asserts,

however, that this court's failure

to consider his request for counsel

resulted in the technical errors which

lead to the dismissal of his complaint.

The fact of the matter is that had

plaintiff complied with the instructions

placed on the EEOC's notice with respect

to naming the proper party defendant

and timely service, the complaint

would not have been dismissed. Thus,

even assuming his complaint of July

27, 1987, constituted a timely request

for counsel, his failure to obtain

such does not justify his failure

to timely file and serve a properly

pled complaint. See Williams v. Army

& Air Force Exchange Service, 830

F.2G 27, 30°33 (34 Cit. 1967). To

reiterate, in this case plaintiff

failed to name the proper party defen-

dant in his original complaint and

any attempt to amend the complaint

must fail because the amendment cannot

relate back to the original complaint

since it was not filed and served

within the statutory period.

Moreover, even considering plain-

tiff's request for counsel at this

time, I do not find that the circum-

Stances of this case warrant the discre-

tionary appointment of counsel. Roy

v. Robinson, 640 F.2d 474, 477 (3d

Cir. 1981). A reading of plaintiff's

complaint and supporting papers

indicates that he is capable of pre-

senting the facts in a clear and

articulate manner. Further, it appears

that he has sufficient ability to

have presented his case to the court.

Therefore, I do not find that counsel

would have been appointed in this

case.

I will next address plaintiff's

claim that the EEOC's notice is

ambiguous. The notice specifically

states tha an individual bringing a

civil action in Federal court "MUST

NAME THE APPROPRIATE OFFICIAL AGENCY

OR DEPARTMENT HEAD." (emphasis in

Original). Continuing, the notice

provides that '[fJailure to provide

the NAME OR OFFICIAL TITLE of the

agency head or, where appropriate,

the department, may result in the

loss of any judicial redress to which

you may be entitled." (emphasis in

original).

The language of the notice notifies

plaintiff of the requirement that

he or she name the proper party defen-

dant by title or personal name. While

I agree with the court in Williams,

that amending the notices to include

a paragraph that contains examples

of the proper way to denote the party

defendant would add clarification,

I do not find that the absence of

this information indicates that the

present notice is insufficient or

excuses plaintiff's failure to comply

with its requirements.

Therefore, since I do not find

that plaintiff has brought forth

evidence that indicates that this

court committed an error or

inadvertently entered the order in

any way, I will not vacate my order

of January 8, 1988. While I recognize

the harshness of the result of my

decision, I find that the law of this

Circuit requires strict compliance

with the mandates of the EEOC notice

Oe

and failure to comply results in

dismissal.

An order in conformance with this

Opinion has been filed with the court.

Constitutional and Statutory

Provisions Involved, Appendix G

The Fifth Amendment of the United

States Constitution provides:

No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment

or indictment of a Grand Jury,

except in cases arising in the

land or naval forces, or in the

Militia, when in actual service

in time of War or public danger;

not shall any person be subject

for the same offense to be twice

put in jeopardy of life or limb;

nor shall be compelled in any

criminal case to be a witness

against himself, nor be deprived

of life, liberty or property,

without due process of law; nor

Shall private property be taken

for public use, without just

compensation.

(Emphasis added to pertinent

section).

28 U.S.C. §1254 (1)

Cases in the court of appeals

may be reviewed by the Supreme Court

by the following methods:

(1) By writ of certiorari granted

upon the petition of any party to

any civil or criminal case, before

or after rendition of judgment or

decree:

268 U.S.C. §1291

The courts of appeals shall have

jurisdiction of appeals from all final

decisions of the district courts of

the United States, the United States

District Court for the District of

the Canal Zone, the District Court

of Guam, and the District Court of

the Virgin Islands, except where a

direct review may be had in the Supreme

Court.

28 U.S.C. §791

Each department, agency, and

instrumentality (including the United

States Postal Service and the Postal

Rate Commission) in the executive

branch shall, within one hundred and

eighty days after September 26, 1973,

submit to the Office of Personnel

Management and to the Committee an

affirmative action program plan for

the hiring, placement, and advancement

of handicapped individuals in such

department, agency, or instrumentality.

Such plan shall include a description

of the extent to which and methods

whereby the special needs of handicapped

employees are being met. Such plan

shall be updated annually, and shall

be reviewed annually and approved

by the Office, if the Office determines,

after consultation with the Committee,

that such plan provides sufficient

assurances, procedures and commitments

to provide adequate hiring, placement,

and advancement opportunities for

handicapped individuals.

29 U.S.C. §794(a)

(a)(1) The remedies, procedures,

and rights set forth in section 717

of the Civil Rights Act of 1964 (42

U.S.C. 2000e-16), including the applica-

tion of sections 706(f) through 706(k)

(42 U.S.C. 2000e-5(f) through (k)),

shall be available, with respect to

any complaint under section 791 of

this title, to any employee or applicant

for employment aggrieved by the final

disposition of such complaint, or

by the failure to take final action

on such complaint. In fashioning

an equitable or affirmative action

remedy under such section, a court

may take into account the reasonable-

ness of the cost of any necesary work

place accommodation, and the availability

of alternatives therefor or other

appropriate relief in order to achieve

an equitable and appropriate remedy.

29 U.S.C. §794C

There shall be established an

Interagency Coordinating Council

(hereinafter referred to as the

"Council") composed of the Secretary

of Education, the Secretary of Health

and Human Services, the Secretary of

Labor, the Assistant Secretary of the

Interior for Indian Affairs, the

Attorney General, the Chairperson of

the Office of Personnel Management,

the Chairperson of the Equal Employment

Opportunity Commission, and the

Chairperson of the Architectural and

Transportation Barriers Compliance

Board. The Council shall have the

responsibility for developing and

implementing agreements, policies, and

practices designed to maximize effort,

promote efficiency, and eliminate con-

flict, competition, duplication, and in-

consistencies among the operations, func-

tions, and jurisdictions of the various

departments, agencies, and branches of

the Federal Government responsible for

the implementation and enforcement of

the provisions of this subchapter, and

the regulations prescribed thereunder.

42 U.S.C. §2000e-16(c)

(c) Civil aciton by party aggrieved.

Within thirty days of receipt of notice

of final action taken by a department,

agency, or unit referred to in sub-

section 717(a) [subsec 9a) of this sec-

tion], or by the Civil Service Comm-

ission upon an appeal from a decision or

order of such department, agency,

Or unit on a complaint of discrimination

based on race, color, religion, sex

Or national origin, brought pursuant

to subsection (a) of this section.

Executive Order 11478 or any succeeding

Executive orders, or after one hundred

and eighty days from the filing of

the initial charge with the department,

agency, or unit or with the .Civil

Service Commission on appeal from

a decision or order of such department,

agency, or unit until such time as final

action may be taken by a 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 706

[42 USCS §2000e-5], in which civil

action the head of the department,

agency, or unit, aS appropriate, shall

be the defendant.

28 U.S.C. §509.

All functions of other officers

of the Department of Justice and all

functions of agencies and employees

of the Department of Justice are vested

in the Attorney General except the

functions -

(1) vested by subchapter II of

chapter 5 of title 5 in administrative

law judges employed by the Department

of Justice;

(2) of the Federal Prison Indus-

tries, Inc.; and

(3) of the Board of Directors

and officers of the Federal Prison

Industries, Inc.

28 U.S.C. §561

The President shall appoint,

by and with the advice and consent

of the Senate, a United States marshal

for each judicial district.

28 U.S.C. §569(c)

The Attorney General shall super-

vise and direct United States marshals

in the performance of public duties

and accounting for public monies.

Each marshall shall report his official

proceedings, receipts and disburse-

ments and the condition of his office

as the Attorney General directs.

Federal Rule of Civil Procedure 4(a)

(a) Summons: Issuance. Upon the

filing of the complaint the clerk

shall forthwith issue a summons and

deliver the summons to the plaintiff

or the plaintiff's attorney, who shall

be responsible for prompt service of the

summons and a copy of the complaint.

Upon request of the plaintiff separate

or additional summons shall issue

against any defendants.

Federal Rule of Civil Procedure 12(b)

(b) How Presented. Every defense,

in law or fact, to a claim for relief

in any pleading, whether a claim,

counterclaim, cross-claim, or third-

party claim, shall be asserted in the

responsive pleading thereto if one is

required, except that the following

defenses may at the option of the

pleader be made by motion: (1) lack of

jurisdiction over the subject matter,

(b) lack of jurisdiction over the per-

son, (3) improper venue, (4) insuffic-

iency of process, (5) insufficiency of

service of process, (6) failure to

state a claim upon which relief can be

granted, (7) failure to join a

party under Rule 19. A motion making

any of these defenses shall be made

before pleading if a further pleading

is permitted. No defense or objection

is waived by being joined with one

oO

more other defenses or objections

in a responsive pleading or motion.

If a pleading sets forth a claim for

relief to which the adverse party

is not required to serve a responsive

pleading, the adverse party may assert

at the trial any defense in law or

fact to that claim for relief. If,ona

motion asserting the defense numbered

(6) to dismiss for failure of the

pleading to state a claim upon which

relief can be granted, matters outside

the pleading are presented to and

not excluded by the court, the motion

shall be treated as one for summary

judgment and disposed of as provided

in Rule 56, and all parties shall

be given reasonable opportunity to

present all material made pertinent

to such a motion by Rule 56.

Federal Rule of Civil Procedure 15(a)

(a) Amendments. A party may

amend the party's pleading once as

a matter of course at any time before

a responsive pleading is served or,

if the pleading is one to which no

responsive pleading is permitted and

the action has not been placed upon

the trial calendar, the party may

so amend it at any time within 20

days after it is served.

Federal Rule of Civil Procedure 15(c)

(c) Relation Back of Amendments.

Whenever the claim or defense asserted

in the amended pleading arose out of

the conduct,transaction, or occurrence

set forth or attempted to be set forth

in the original pleading, the amendment

relates back to the date of the original

pleading. An amendment changing the

party against whom a claim is asserted

relates back if the foregoing provision

is satisfied and, within the period

provided by law for commencing the

action against the party to be brought

in by amendment that party (1) has

received such notice of the institution

of the action that the party will

not be prejudiced in maintaining his

defense on the merits, and (2) knew

or should have Known that, but for

a mistake concerning the identity

of the proper party, the action would

have been brought against the party.

The delivery or.mailing of process

to the United States Attorney, or

the United States Attorney's designee,

or the Attorney General of the United

States, or any agency or officer who

would have been a proper defendant

if named, satisfies the requirement

of clauses (1) and (2) hereof with

respect to the United States or any

agency or officer thereof to be brought

into the action as a defendant.

Federal Rules of Civil Procedure 56.

Rule 56. Summary Judgment

For Defending Party. A party

against whom a claim, counterclaim, or

cross-claim is asserted or a declaratory

judgment is sought may, at any time,

move with or without supporting affida-

vits for a summary judgment in the

party's favor as to all or any part

thereof.

Federal Rule of Civil Procedure 60(b)

(b) tishihen: Inadvertence; Excus-

able Neglect; Newly Discovered Evidence;

Fraud, etc.

On motion and upon such terms

as are just, the court may relieve

a party or a party's legal representa-

tive from a final judgment, order,

Or proceeding for the following reasons:

(1) mistake,- inadvertence, surprise,

Or excusable neglect; (2) newly dis-

covered evidence which by due diligence

could not have been discovered in

time to move for a new trial under Rule

59(b); (3) fraud (whether heretofore

denominated intrinsic or extrinsic),

misrepresentation, or other misconduct

of an adverse party; (4) the judgment

is void; (5) the judgment has been

satisfied, released, or discharged,

Or a prior judgment upon which it

is based has been reversed or otherwise

vacated, or it is no longer equitable

that the judgment should have prospec-

tive application; or (6) any other rea-

son justifying relief from the operation

of the judgment. The motion shall

be made within a reasonable time,

and for reasons (1), (2), and (3)

not more than one year after the judg-

ment, order, or proceeding was entered

or taken. A motion under this sub-

division (b) does not affect the

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finality of a judgment or suspend

its operation. This rule does not

limit the power of a court to entertain

an independent action to relieve a

party from a judgment, order, or pro-

ceeding, or to grant relief to a defen-

dant not actually personally notified

as provided in Title 28, U.S.C. §1655,

or to set aside a judgment for fraud

upon the court. Writs of coram nobis,

coram vobis, audita querela, and bills

of review,and bills in the nature

of a bill of review, are abolished,

and the procedure for obtaining any

relief from a judgment shall be by

motion as prescribed in these rules

or by an independent action.

U.S. Equal Opportunity Commission

Notice of Right to File a

Civil Action, Appendix H

You are hereby notified that the

attached decision in your case is final.

You have the right to file a civil

action in the appropriate United States

District Court WITHIN THIRTY (30) DAYS

from the date that you receive this

decision. If any of your claims were

based on the Age Discrimination in

Employment Act of 1967 (29 U.S.C. §633a),

AS TO THOSE CLAIMS ONLY, you MAY have

up to six years after the right of

action first accrued in which to file

a civil action. See Lehman v. Nakshian,

453 U.S. 156 (1981); 29 U.S.C. §633a(f);

and 28 U.S.C. §240l1(a). You are further

notified that if you file a civil action,

YOU MUST NAME THE APPROPRIATE OFFICIAL

AGENCY OR DEPARTMENT HEAD AS THE

DEFENDANT. Rule 25(d)(2) of the Federal

Rules of Civil Procedure provides that

you may describe the defendant by

official title rather than by name.

Failure to provide the NAME OR OFFICIAL

TITLE of the agency head or, where

appropriate, the department head, may

result in the loss of any judicial

redress to which you may be entitled.

(Please note: For this purpose, Depart-

ment means the overall national organi-

zation, such as the now defunct Depart-

ment of Health, Education and Welfare,

not the local administrative department

where you might work). You must be

Sure that the proper defendant is named

when you file your civil action.

APPOINTMENT OF COUNSEL

If you decide to file a civil action

and do not have or are unable to obtain

the services of an attorney to act

on your behalf, under Title VII of

the Civil Rights Act of 1964, 42 U.S.C.

§20003 et segq., as amended, and the

Rehabilitation Act of 1973, 29 U.S.C.

§§791 and 794c, as amended, you may

request that the Court appoint an

attorney to represent you and may

also permit you to file the civil

action without payment of fees, costs,

Or security. If you want to request

appointment of an attorney, your request

must be FILED WITH THE COURT WITHIN

THIRTY (30) DAYS from the date that

you receive the Commission's decision.

NOTICE OF RIGHT TO. REQUEST

REOPENING

The Commissioners may, in their discre-

tion, reopen and reconsider the decision

in your case if you submit a written

request and argument or evidence which

tends to establish that:

l. New and material evidence

ls available that was not

readily available when the

previous decision was issued;

or

2. The previous decision in-

volves an erroneous inter-

pretation of law or regula-

tion or misapplication of

established policy; or

3. The previous decision is

of a precedential nature

involving a new or unreviewed

policy consideration that

may have effects beyond the

actual case at hand or is

otherwise of such an ex-

ceptional nature as to

merit the personal attention

of the Commissioners.

EITHER PARTIES' REQUESTS AND ANY

SUPPORTING ARGUMENTS, must be submitted

within the 30 day time frame for

filing a request to reopen. ALL

REQUESTS must bear proof of postmark

and be submitted to the Director,

Office of Review and Appeals, Equal

Employment Opportunity Commission,

5203 Leesburg Pike, Suite 900 Falls

Church, Virginia 22041. In the

absence of a postmark, the request to

reopen shall be deemed filed on the

date it is received by the Commission.

FILING A REQUEST TO REOPEN WITH THE

COMMISSION MAY NOT EXTEND THE TIME

PERIOD ALLOWED FOR FILING A CIVIL

ACTION. IF YOU WISH TO PRESERVE YOUR

RIGHT TO FILE A CIVIL ACTION, THE

CIVIL ACTION SHOULD BE FILED WITHIN

THE TIME ALLOWED, EVEN IF YOU DECIDE

TO REQUEST REOPENING BY THE

COMMISSION.

Dolores L. Rozzi, Director

Office of Review and Appeals