Petition for Writ of Certiorari — Bates v. Tennessee Valley Authority
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98-1548
Year 20 ysRS
EPdl F. SPANION, JR,
CLERK
{ seprame Court, US,
| FILED
No. 88-
IN THE
Hupreme Court of the United Htates
October Term, 1988
THOMAS E. BATES,
Petitioner,
Vv.
TENNESSEE VALLEY AUTHORITY AND
ORVIS ENGELSTAD, DIRECTOR, DIVISION
OF AGRICULTURAL DEVELOPMENT,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
JOHNR. BENN
SLUSHER & BENN ATTORNEYS
425 NORTH COURT STREET
FLORENCE, AL 35630
(205-764-4011)
Attorney for Petitioner
March 15, 1989
QUESTIONS PRESENTED
|. Whether in view of the 1966 Amendments to Rule 15(c),
this Court’s decision involving private party litigation in
Schiavone v. Fortune, 477 U.S. 21, 106 S. Ct. 2379 (1986)
should be applied to foreclose amendments in litigation
against the federal government which are timely filed but
mistakenly name the wrong federal entity.
2. Whether the permissive language “as appropriate” in 42
U.S.C. § 2000e-16(c) precludes naming the Tennessee Valley
Authority as an entity pursuant to its corporate status under
16 U.S.C. § 831c(b).
PARTIES TO THE PROCEEDING
The petitioner in this application for a writ of certiorari to re-
view dismissal of his Title VII employment discrimination
claim is Thomas E. Bates. The respondents are the Tennessee
Valley Authority, a federal corporation, and Orvis Engelstad.
sits
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED...........c:scscssesesssesesesenenenenananssnenees i
PARTIES TO THE PROCEEDING .........:.cccssseesseseeeseereeeeees i
TABLE OF CONTENTS. .......:::cccsssseesseeseeeeeeesesensesreeeneesnneens ii
TABLE OF AUTHORITIEG..........:cc:cccsseeseeeseeeneeereeenereneeeees iv
OPINIONS BELOW.........::::scssssssscessesetecseseeeseeeseeeseesenseseneens 1
JURISDICTION .........:ccccsccssssescssscesescesseesseeesnaessseesseereeneesnes 2
STATUTORY PROVISIONS INVOLVED...........:ccccesseeeeees 2
STATEMENT OF THE CASE. .......::cccsseeseeeseeeeeeeeeseeeseenneees 2
A. Administrative ProceedingS...........::cssseesessrseeeereeeees 4
B. Denial Notice And Instructions..........esereseeseeeeeesens 5
C. Decision Of The District COurt..........cccceeseceeeeerees 6
D. Decision Of The Court of Appeals..........:ecccceeseeees 7
REASONS FOR GRANTING THE WRIT OF
CERTIORARI ........c:ccsssessscsssccsssssssscsreceessssesesesscsssssesrees 8
1. CERTIORARI SHOULD BE GRANTED TO
REVIEW THE ERRONEOUS APPLICATION
OF SCHIAVONE TO CASES INVOLVING
THE FEDERAL GOVERNMENT...........:ccsesseseeeees 9
A. The Application Of Schiavone To Cases
Involving The Federal Government Conflicts
With The Intent Of The 1966 Amendments
To Rule 15(C)......ccccccscocssnsocesssessscessasssesvscessnsseses 14
B. The Application of Schiavone To Cases
Involving The Federal Government Conflicts
With The Clear Language Of Rule 15(c).......... 20
C. The Rationale Of Schiavone Does Not Apply
To Cases Involving The Federal Government.. 21
- ili -
D. Review Is Warranted Because Of A Conflict
Among The Lower Courts ......-.-:-seseessesesssrreees 22
II. CERTIORARI SHOULD BE GRANTED TO
REVIEW THE STATUS OF TVA AS A
CORPORATE ENTITY UNDER TITLE VII........ 24
~ CONCLUSION ........:.ceccssscsssssseessesssssrsscrssenssenssenssenscennsenens 28
-1vV-
TABLE OF AUTHORITIES
Cases:
Algerion Blair Industrial Contractors, Inc. v.
Tennessee Valley Authority, 552 F. Supp. 972
(M.D. Ala. 1982).......cccccceeesseesseseseeeseeeeresereeseenanens
Bell v. Veterans Administration Hospital, 826
F.2d 357 (Sth Cir. 1987).....:ccccccccceceeeeeeeeeereeseeeeeeees
Brown v. Department of Army, 854 F.2d 77 (Sth
Cir. 1988)...........ccccscccsscssssccrccccseccessrscessscsonscsssersess
Carborundum Company v. Tennessee Valley
Authority, 521 F. Supp. 590 (E.D.
Ter. 198 1))....cccccccoccscrvecsesecscccssccccscesesocesenssosocssees
Cohn v. Federal Security Administration, 199 F.
Supp. 884 (W.D.N.Y. 1961) ..ssssssssssssssssssseeseeeeeeee
Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99
(1957) ....cccccccsccccsccesscecssenssscocccovconcscsceccsssosencssascnsees
Cunningham v. United States, 199 F. Supp. 541
(W.D. Mo. 1959).........cccccccsseesrceesscesseessserrscersesenees
Cupp v. Veterans Administration Hospital, 677
F. Supp. 1018 (N.D. Cal. 1987)....ssssssssssssccesesssseee
Drayton v. Veterans Administration, 654 F. Supp.
558 (S.D.N.Y. 1987)......c.cccccssceercessersssecssesecsers
Fallett v. United States Postal Service, 644 F.
Supp. 625 (N.D. Tex. 1986)........cccceeseseseeeeeeeenens
Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227
canes 12
Page
eeeeeeee —
connate 15
jecintan 13
sevhiese 15
lesen 23
-
Gonzales v. Department of the Air Force, 824
F.2d 392 (Sth Cir. 1987), cert. denied, __
U.S. _, 108 S. Ct. 1245 (1988)... eceeeceeeteeeteeneeeneees 12
Hall v. Department of Health, Educ. & Welfare,
199 F. Supp. 833 (S.D. Tex. 1960)......:ecereeereeeseeeeeeees 15
Harris v. U.S. Dept. of Transportation, 843 F.2d
219 (Sth Cir. 1988)... cccscccseeecseeeeeneeeeeeeceesereeaeeneneeenees 12
Healy v. United States Postal Service, 677 F. Supp.
1284 (E.D.N.Y. 1987).....scccccscseeseseeseesessetssresereeeeenanees 12
Hendrick v. Department of Agricultural Agency,
677 F. Supp. 465 (W.D. La. 1987).....ccccccseeeeeeeeeneteees 12
Honeycutt v. Long, 861 F.2d 146 (Sth Cir. 1988)... 12
Hughes v. U.S. Postal Service, 700 F. Supp. 779
(S.D.N.Y. 1988)......ssccssccssscssscecscessesssscsscssrsesrseenseennsenees 12
Hymen v. Merit Systems Protection Board, 799 F.2d
1421 (Oth Cir. 1986).......cccccceeseesecseereeeeeeeceesseeesneeenees 12
Johnson v. U.S. Postal Service, 861 F.2d 1475
(LOth Cir, 1988)... ccccecseseeesseeerseeesteessrereseeeseseeeeenens 12
Kouchky v. Department of the Navy, 820 F.2d 300
(Dth Cir. 1987)........cccccccsrcessscsscosesecccsnccssscsessssssenerseesens 12
Lamb v. U.S. Postal Service, 852 F.2d 845 (Sth
Cir. 1968) .c.ceocosesccecccssscosenesesassesscosssevneserssosssensassssvsseness 12
Lubniewski v. Department of the Navy, 682 F.
Supp. 462 (N.D. Cal. 1988)......:cesecescecsesrsesnseseeeteenenenens 12
Mondy v. Secretary of the Army, 845 F.2d 1051
(D.C. Cig. 1988) wnecresvcccscessoscessessvesavenacsnssnseseconces 23, 25, 26
- Vi-
Morris v. Bonneville Power Adminstration, 683 F.
Supp. 228 (D. Or. 1987)....s.sessesecesesseeneneneenensanenensssnscnnes 12
Painter v. Tennessee Valley Authority, 476 F.2d 943
(Sth Cir, 1973).....scsscsescecesesesessesessnsnenssessesesnsessnesnsnensnees 27
Peoples National Bank of Huntsville, Alabama v.
Meredith, 812 F.2d 682, (11th Cir. 1987)... 26
Portis v. Department of the Navy, 117 F.R.D. 579
(E.D. Va. 1987)....scsscsescessesesesneessnssesessssnesesenensenens 12, 13
Rice v. Hamilton Air Force Base Commissary, 720
F.2d 1081 (Oth Cir. 1983).........:scsssscceseesseeeeeeeessrersees ..23
Ridgell v. Unites States Postal Services, 678 F.
Supp. 167 (E.D. Mich. 1987).......ssssecssesesnereneeeensessrenes 12
Sandridge v. F olsom, Secretary of Health, Educ. &
Welfare, 200 F.Supp. 25 (M.D. Tenn. 1DTD)....n.ceccovsesvee hd
Schiavone v. Fortune, 477 U.S. 21, 106 S. Ct.
2379 (19B6)......cccccssscsessvesceccscrscecsecsssesensosees y ey RR
Sinichak v. Tennessee Valley Authority , 650 F.
Supp. 310 (M.D. Tenn. 1986)........:s-cssesseseenenereneneneneeees 12
Stewart v. United States Postal Service, 649 F.
Supp. 1531 (S.D.N.Y. 1986).......ccseseceseeseseeneneenensrnnens 12
Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 86
S, Ct. B45 (19G66)...ccccrccccesccercssssescrsocesscccscvssccsesenesssenseess 20
Vernell v. United States Postal Service, 819 F.2d 108
(Sth Cir. 1987)......sccccssscscsssccsesssssncsseceosenseessnssssssssenseesees 12
Williams v. Army and Air Force Exchange Service,
830 F.2d 27 (3rd Cir. 1987).............cccccscsrrecsesssccseeseeseoes 12
- Vil-
Statutes:
Title VII of the Civil Rights Act of 1964, Section
717(c), as amended, (1982) 42 U.S.C.
Federal Rules of Civil Procedure, Rule 4())..........:..::cceeee 6
Federal Rules of Civil Procedure, Rule 15(c)......... 11,14, 17
16 U.S.C. $ B31C(OK19B2)..0....cccscccrcrscsscccrsscssesesessrecoeseeess 26
ZB U.S.C. 8 1ZSAC1) vccsececscrerssssssesscscsssccvesssescsessssesevesentessousane 2
Miscellaneous:
Advisory Committee on Civil Rules. 39 F.R.D. 82
Byse, Suing the “Wrong” Defendant in Judicial
Reviw of Federal Administrative Action: Proposals
for Reform, 77 HARV. L. REV. 40 (1963)...... 15, 16, 17
R. Stern, E. Gressman & S. Shapiro, SUPREME COURT
PRACTICE CG OG.. TDDB ic ericcccscceeicicicsescscisncczsscssaceccinsicna 8
Sep. Ce. BR. 17D. acecscccsnecesnissssecassscncssrecsvoncensseesenensonssasweesoones 8
6 C. Wright & A. Miller, FEDERAL PRACTICE AND
PROCEDURE § 1502 (1983)...cccccsssscessssesssssesessseesssvesenee 19
No. &8-
IN THE
Hupreme Court of the United Htlates
October Term, 1988
THOMAS E. BATES,
Petitioner,
Vv.
TENNESSEE VALLEY AUTHORITY AND
ORVIS ENGELSTAD, DIRECTOR, DIVISION
OF AGRICULTURAL DEVELOPMENT,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Petitioner requests that a writ of certiorari be issued to re-
view the judgment and opinion of the United States Court of
Appeals for the Eleventh Circuit, entered in the above pro-
ceedings on August 10, 1988, and for which Rehearing was
denied on December 21, 1988
OPINIONS BELOW
The opinion of the Court of Appeals is reported at 851
F.2d 1366 (11th Cir. 1988) and is reprinted in the appendix
hereto, p. A6, infra. The opinion of the United States District
os
Court for the Northern District of Alabama was not reported.
The opinion in Bates v. Tennessee Valley Authority, No. 87-
AR-5214-NW (N.D. Ala. Oct. 6, 1987) is reprinted in the ap-
pendix hereto, p. A12, infra.
JURISDICTION
The decision of the Court of Appeals was entered on
August 10, 1988, and the request for Rehearing was denied
on December 21, 1988. This Court has jurisdiction to review
the decision of the Court of Appeals by writ of certiorari pur-
suant to 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
This case involves Rules 15(c) and 4(j) of the Federal
Rules of Civil Procedure, Title VII of the Civil Rights Act of
1964, Section 717(c), as amended, 42 U.S.C. § 2000e-
16(c)(1982) and the enabling legislation for the Tennessee
Valley Authority codified in 16 U.S.C. § 831c(b)(1982). The
statutes are reprinted in the appendix hereto pp. A2-A5, infra.
STATEMENT OF THE CASE
The issues raised in this Petition are of great importance to
the hundreds of citizens involved in litigation against the fed-
eral government each year. The present case typifies the er-
roneous and unjustified application of this Court’s decision in
Schiavone v. Fortune, 477 U.S. 21, 106 S. Ct. 2379 (1986) to
deny amendments correcting the technical naming of federal
entities as parties in timely filed complaints. This mistaken
application of Schiavone has created a “sporting theory of
se
justice” resulting in minor pleading errors depriving citizens
with legitimate claims of their day in court.
The harsh results of these cases ultimately involve the re-
fusal to permit a Rule 15(c) amendment changing the named
entity in claims filed against the federal government. In each
case the claimants successfully cleared all the hurdles of the
administrative process during which the involved federal
agency acquired full knowledge of the claim being presented.
In each instance, the claims had been thoroughly investigated
by the government agency and a written report and recom-
mendation prepared. After exhausting these administrative
remedies the claimants filed timely complaints which mis-
takenly named the wrong federal official or entity as defen-
dant. The aggrieved claimants then sought to amend the
complaints to add the technically designated federal defen-
dant.
After the Schiavone decision the lower courts have con-
sistently misinterpreted and erroneously extended the deci-
sion to refuse these technical correction amendments in cases
strictly involving the federal government as a defendant. As
a result the complaints, although filed in a timely fashion, are
repeatedly dismissed for failure to name the technically des-
ignated federal defendant. These results are an unintended
extension of this Court’s holding in Schiavone and a com-
plete frustration of the curative action taken in 1966 to amend
Rule 15(c) to avoid this specific result.
To a lesser extent the case is also important to that com-
ponent of employees that are involved in Title VII litigation
1. Schiavone, 477 U.S. 21, 33, 106 S. Ct. 2379, 2386 (Stevens,
J., dissenting).
_ O
with TVA. Based upon the clear language of the corporate
endowment granted to TVA, and codified in 16 U.S.C. §
831c(b), it should be permissible to name the federal corpo-
rate entity in compliance with the statutory requirement
under 42 U.S.C. § 2000e-16(c) requiring the naming of the
“head of the department, agency, or unit, as appropriate, [to]
be the defendant.”
The facts of Petitioner’s case are undisputed. Petitioner
is a white, male that was employed by the Agricultural
Research Branch, Division of Agricultural Development,
within the Tennessee Vailey Authority (“TVA”). As a result
of a series of job reclassifications, Petitioner claimed that he
was discriminated against on the basis of race when a simi-
larly situated black, male employee was promoted. In 1983,
a formal administrative claim against “Orvis Engelstad”? was
filed claiming discrimination under Title VII.
A. Administrative Proceedings
Petitioner commenced timely administrative proceedings
in furtherance of his claim of discrimination in 1983 alleging
that he had been sybject to racial discrimination resulting
from TVA’s failure to reclassify him when a similarly situat-
ed black employee was promoted. During the nearly four
years that followed, Petitioner complied with every request
for information and meticulously followed all of Tennessee
Valley Authority’s internal administration procedures.
Throughout all of the internal proceedings the administrative
2. Orvis Engelstad was listed throughout the administrative pro-
ceedings as the “Alleged Discriminating Official(s)”. Mr. Engelstad held
the position of Director, Division of Agricultural Development,
Tennessee Valley Authority.
Sa
reports and forms the “Involved Unit” was listed as
“Agficultural Research Branch, Division of Agricultural
Development and “Orvis Engelstad” was named as _ the
“Alleged Discriminating Official(s)”.
The Tennessee Valley Authority was intimately familiar
with Petitioner’s claims having conducted an extensive inves-
tigation. A TVA employee was assigned to handle the back-
ground investigation which culminated in the preparation and
filing of a multi-volume report. The investigation included
interviewing witnesses, obtaining signed statements, collect-
ing numerous documents involving Petitioner’s employment
with TVA and several conferences. Importantly, Petitioner
was never advised throughout this administrative process that
it was necessary to name the individual board members of
TVA as parties to the proceedings. The names of the board
members do not appear in any of the administrative docu-
ments generated by TVA’s investigation and never appeared
in any of the notices or correspondence received during the
two years of TVA internal processing. After TVA’s denial of
his internal administrative claim, Petitioner pursued his claim
to the Equal Employment Opportunity Commission.
B. Denial Notice And Instructions
On April 22, 1987, Petitioner received notice of the final
action by the EEOC denying his administrative appeal
against TVA. The notice received by Petitioner advised him
of his right to commence a civil action in United States
District Court. Petitioner, while provided with some caution-
ary language in the notice, was never advised that the only
proper parties that could be named in the proceeding were the
board members of TVA nor that he would prohibited from
ahs
proceeding against the same entities which had repeatedly
been listed in the administrative proceedings.
Petitioner timely filed his complaint within the thirty-day
filing period of Section 717(c) of Title VII, 42 U.S.C. §
2000e-16(c) alleging employment discrimination under Title
VIIL3 The complaint named the same individual who had
been listed in all previous administrative proceedings during
the preceding four years. As a precautionary matter the
“Tennessee Valley Authority” was also named since this was
the employing entity. A copy of the summons and complaint
was mailed pursuant to Rule 4 on May 29, 1987, and re-
ceived by the TVA business office on June 2, 1987. Service
on the U.S. Attorney was perfected on August 17, 1987.
Both aspects of service were completed within the 120-day
service requirement of Rule 4(j) of the Federal Rules of Civil
Procedure.
C. Decision Of The District Court
More than sixty days after receiving service, TVA filed a
motion for summary judgment charging that the “proper
party” (in this case the TVA board of directors) had not been
technically named within the 30-day period stated under
Section 2000e-16(c). Petitioner immediately sought to
amend his complaint under Rule 15(a) of the Federal Rules
of Civil Procedure to add the individual board members.
3. Petitioner’s counsel was first contacted about filing the appeal
on May 19, 1987\Dhe“fcucral complaint was drafted the same day local
counsel was retained and mailed to the local satellite office of the Clerk
for the Northern District of Alabama some forty-five miles distant. The
timely complaint was filed by the Clerk two days later on May 22, 1987.
The summons and complaint after being filed were returned by postal
mail to Petitioner’s counsel to perfect service of process.
rh
On October 6, 1987, the district court disallowed the of-
fered amendment and granted TVA’s summary judgment re-
quest. The district court relying on this Court’s decision in
Schiavone v. Fortune, 477 U.S. 21, 106 S. Ct. 2379 (1986)
held that although the lawsuit was timely commenced the
amendment naming the TVA Board of Directors to correct
the technical defect was untimely since Petitioner had failed
to serve board of director members within the 30-day period
that expired on May 22, 1987.
D. Decision Of The Court Of Appeals
On October 15, 1987, Petitioner appealed the district
court’s dismissal of his case. On August 10, 1988, the Court
of Appeals for the Eleventh Circuit affirmed the denial of
Petitioner’s offered amendment. The Court of Appeals held
that although Schiavone did not involve litigation with the
federal government the decision clearly required that the
United States Attorney must be served within the applicable
limitations period in order to satisfy the requirements of Rule
15(c).
On September 19, 1988, the Court of Appeals directed
TVA_to respond to issues raised in the petition for
Rehearing.’ After considering these additional arguments the
4. Petitioner’s request for Rehearing included those arguments
covered in detail during oral arguments before the Panel which were not
addressed by the Court of Appeals’ written opinion including the histori-
cal basis for the 1966 amendment to Rule 15(c) which provided a special
procedure for amending actions involving the federal government as well
* 831 specific corporate status for lawsuits granted to TVA in 16 U.S.C.
Ic(b).
Counsel for TVA has attempted to characterize these issues as un-
umely. This commentary fails to acknowledge the substantive effect this
a es
Court of Appeals denied Rehearing on December 21, 1988.
REASONS FOR GRANTING THE WRIT OF
CERTIORARI
The questions presented in this Petition fall within two
categories of “special and important reasons” for granting
certiorari. R. Stern, E. Gressman & S. Shapiro, SUPREME
COURT PRACTICE 194 (6th ed. 1986); Sup. Ct. R. 17.1. First,
the proper application of Rule 15(c) to actions involving the
federal government as 4 defendant as well as the status of
TVA as a corporate entity are significant questions of federal
law which have not been settled by this Court. Importantly,
the procedural aspects of the Rule 15(c) question is a recur-
ring problem affecting hundreds of claimants each year. The
Court should also consider granting the petition due to the
conflict between the Circuit Courts of Appeals. While some
Circuits have erroneously extended Schiavone to litigation in-
volving federal defendants others have devised ways of
avoiding the inequitable consequences by finding nuances
where none exist. This Court should exercise its supervisory
authority to issue a uniform rule and clarify the existing con-
fusion.
Court’s denial of certiorari in Gonzales v. Secretary of the Air Force, 824
F.2d 392 (Sth Cir. 1987), cert. denied, __ US.__, 108 S. Ct. 1245
(1988) had on some of the arguments originally raised in appellant’s
brief.
In oral argument before the Court of Appeals, Petitioner refined the
issues to exclude those mooted by Gonzales. Petitioner has continuously
.
ing the federal government and that 16 U.S.C. § 831c(b) permits TVA
being sued in its corporate capacity under Title VII. It is absolutely in-
correct that assert that these issues are being raised before this Court for
the first time.
athe
I
CERTIORARI SHOULD BE GRANTED TO
REVIEW THE ERRONEOUS APPLICATION OF
SCHIAVONE TO CASES INVOLVING THE
FEDERAL GOVERNMENT.
The Court in its 6-3 decision’ in Schiavone addressed the
requirements for relation back of an amended pleading under
Rule 15(c) in actions involving private litigants. The Court
held that a plaintiff must satisfy four requirements under Rule
15(c) to permit such an amendment:
(1) [T]he basic claim must have arisen out of the conduct
set fort in the original pleading,
(2) {T]he party to be brought in must have received such
notice that it will not be prejudiced in maintaining its
defense;
(3) [T)he party must or should have known that, but for a
mistake concerning identify, the action would have
been brought against it; and
(4) [T]he second and third requirements must have been
fulfilled within the prescribed limitations period.
477 USS. at 29, 106 S. Ct. at 2384. This Petitioner squarely
5. Schiavone v. Fortune, 477 U.S. 21, 106 S. Ct. 2379 (1986).
Justice Blackmun authored the majority opinion in Schiavone which was
joined by Justices Brennan, Marshall, Powell, Rehnquist and O'Connor.
Justice Stevens filed a dissenting opinion in which Justices Burger and
White joined.
+
raises the issue of whether the Schiavone holding should be
extended to cases involving federal defendants.°
The requirements announced in Schiavone were derived
from Rule 15(c) which states:
Whenever the claim or defense asserted in the amend-
ed pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in 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
him, the party to be brought in by amendment (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 him.
FED. R. CIV. P. 15(c). Considered within the context of liti-
gation between private parties Schiavone is certainly the con-
trolling interpretation of Rule 15(c). There exists on the
other hand a different set of requirements - not discussed in
Schiavone - for litigation involving the federal government.
In these proceedings Rule 15(c) diminishes the requirements
6. This issue is of immense importance to a multitude of citizens
filing claims against the federal government each year. Whether or not
this Petitioner can adequately articulate the reasons justifying the need for
review by this Court, the Court will eventually need to address the issue.
Applying Schiavone to cases involving the federal government as a de-
fendant as has been done by the lower courts represents the most basic
misapplication of a Supreme Court decision in history.
«Ets
when service has been perfected on the United States
Attorney or the Attorney General. This second tier of Rule
15(c) states:
The delivery or mailing of process to the United
States Attorney, or the United States Attorney's des-
ignee, or the Attorney General of the United States, or
an agency or officer who would have been a proper
defendant if named, satisfies the requirement of claus-
es (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.
FED.R. CIV.P. 15(c).
The lower courts in choosing the ignore the broad man-
date of this special proviso have routinely and erroneously
applied Schiavone to cases involving the federal government
as a defendant.’
There is an alarming and increasing number of decisions
in which complaints filed within the applicable limitations
a Professor Byse in his seminal article on Rule 15(c) reform
identificd the problem in securing effective, and thorough, appellate con-
sideration of the specific procedural issue contemplated in this Petition
when he noted:
It is to be regretted that none of the courts considered the problem in
this manner and it is hoped that when a similar cases arises in the fu-
ture, the court will feel free to do so. But it must be recognized that
the lower federal courts understandably are reluctant to try to second-
guess the Supreme Court. Accordingly, it is possible - perhaps one
should say, probable - that in deciding future cases of this kind, busy
district judges will continue to travel the quick, easy, and safe route
of stare decis rather than attempting the more arduous, ime-consum-
ing, and risky course of independent analysis. Nor is there any assur-
- .
period have been dismissed for failure to correctly name a
specific federal entity. See Johnson v. U.S. Postal Service,
861 F.2d 1475 (10th Cir. 1988); Honeycutt v. Long, 861 F.2d
146 (Sth Cir. 1988); Brown v. Department of Army, 854 F.2d
77 (Sth Cir. 1988); Lamb v. U.S. Postal Service, 852 F.2d 845
(Sth Cir. 1988); Harris v. U.S. Dept. of Transportation, 843
F.2d 219 (5th Cir. 1988); Williams v. Army and Air Force
Exchange Service, 830 F.2d 27 (3rd Cir. 1987); Bell v.
Veterans Administration Hospital, 826 F.2d 357 (Sth Cir.
1987); Gonzales v. Department of the Air Force, 824 F.2d
392 (5th Cir. 1987), cert. denied, __ U.S. ___, 108 S. Ct.
1245 (1988); Kouchky v. Department of the Navy, 820 F.2d
300 (9th Cir. 1987); Vernell v. United States Postal Service,
819 F.2d 108 (Sth Cir. 1987); Hymen v. Merit Systems
Protection Board, 799 F.2d 1421 (9th Cir. 1986); Hughes v.
U.S. Postal Service, 700 F. Supp. 779 (S.D.N.Y. 1988);
Morris v. Bonneville Power Adminstration, 683 F. Supp. 228
(D. Or. 1987); Lubniewski v. Department of the Navy, 682 F.
Supp. 462 (N.D. Cal. 1988); Ridgell v. United States Postal
Services, 678 F. Supp. 167 (E.D. Mich. 1987); Healy v.
United States Posial Service, 677 F. Supp. 1284 (E.D.N.Y.
1987); Hendrick v. Department of Agricultural Agency, 677
F. Supp. 465 (W.D. La. 1987), Drayton v. Veterans
Administration, 654 F. Supp. 558 (S.D.N.Y. 1987); Stewart
v. United States Postal Service, 649 F. Supp. 1531 (S.D.N.Y.
1986); Sinichak v. Tennessee Valley Authority, 650 F. Supp.
310 (M.D. Tenn. 1986); Fallett v. United States Postal
Service, 644 F. Supp. 625 (N.D. Tex. 1986); Portis v.
ance that appellate - including the Supreme Court - review will be
sought or that it would be successful.
Byse, Suing The “Wrong” Defendant in Judicial Review of Federal
Administrative Action: Proposals for Reform,” 77 HARV. L. REV. 40, 51-
52 (1963).
« PEs
Department of the Navy, 117 F.R.D. 579 (E.D. Va. 1987).
In some cases the mistake in naming the defendant is as
practically inconsequential as listing the federal agency as the
defendant instead of the agency head even though service
was perfected at the same address and the same governmental
attorney represented both parties.*
This injustice, while predominantly occurring in Title
VII cases, also covers the spectrum of litigation against the
federal government.’ In each instance, the formal district
court action is merely an extension of the identical claims in-
vestigated and determined in the administrative proceedings.
This Court has specifically rejected an approach to the
federal civil procedure rules which make pleadings a game of
skill in which one misstep may be decisive. Conley v.
Gibson. 355 U.S. 41, 48, 78 S. Ct. 99 (1957). Consistent
with the mandate of Rule 1 that the rules “shall be construed
to secure the just, speedy and inexpensive determination of
every action,” the Court also recognizes that decisions on the
merits are not to be avoided on the basis of “mere technicali-
8. See Johnson v. United States Postal Service, 861 F.2d 1475
(10th Cir. 1988)(complaint named “United States Postal Service” - failure
to name technically required “Postmaster General.”); Honeycutt v. Long,
861 F.2d 1346 (Sth Cir. 1988)complaint named “John Long, Major
General Commander, Army & Air Force Exchange Service” - failure to
name “Secretary of Defense”); Daly v. United States Department of the
Army, 860 F.2d 591 (3rd Cir. 1988)(complaint named “United States
Department of the Army - failure to name “Secretary of the Army”). “
9. The misapplication of Schiavone to effectively preclude judi-
cial consideration of timely filed complaints is not solely restricted to
Title VII cases. See Martin's Food & Liquor, Inc. v. United States
Department of Agriculture, 702 F. Supp. 215 (N.D. Ill. 1988)(7 U.S.C. §
2023); Vernell v. United States Postal Service, 819 F.2d 108 (Sih Cir.
1987\(28 U.S.C. § 2401); Hughes v. United States, 701 F.2d 56 (7th Cir.
» hs
ties.” Foman v. Davis, 371 U.S. 178,181, 83 S. Ct. 227, 229
(1962). Granting certicran in this case will permit the Court
to rectify a very fundamental, yet mistaken, interpretation of
Schiavone when applied to litigation involving the federal
government.!°
A. The Application Of Schiavone To Cases Involving
The Federal Government Conflicts With The
Intent Of The 1966 Amendments To Rule 15(c).
As originally promulgated, Rule 15(c) consisted of what
is now the first sentence. The Rule provided:
Whenever the claim or defense asserted in the amend-
ed 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.
FED. R. CIV. P. 15(c)(pre-1966). This provision led to some
extremely harsh results when claimants, confronted with the
shortest limitation periods in civil practice, mistakenly named
the wrong federal entity as a defendant.
1982)(28 U.S.C. § 2671 et seq.); Lofton v. Heckler, 781 F.2d 1390 (9th
Cir. 1986)(5 U.S.C. § 7703).
10. The Court should not allow the significance of the denial of
certiorari in Gonzales to be overplayed. The petition in Gonzales dealt
chiefly with claims for equitable tolling of the limitations period. The pe-
ution did not address the significance of the historical development of the
federal tier of Rule 15(c) nor the proper construction of this rule. Given
the immense importance of the 1966 amendments to Rule 15(c) to correct
exactly the problem confronted in this case, the present Petition is appar-
ently the first to exhaustively examine the purpose of the 1966 rule
changes and the historical rationale leading to the amendments.
- 15-
The most infamous of these cases were reported in suc-
cessive volumes of the Federal Supplement. Cunningham v.
United States, 199 F. Supp. 541 (W.D. Mo. 1959); Sandridge
v. Folsom, Secretary of Health, Educ. & Welfare, 200 F.
Supp. 25 (M.D. Tenn. 1959); Hall v. Department of Health,
Educ. & Welfare, 199 F. Supp. 833 (S.D. Tex. 1960); Cohn v.
Federal Security Administration, 199 F. Supp. 884
(W.D.N.Y. 1961).
These four cases, while perhaps unnoticed by many,
caught the attention of then Harvard law professor Clark
Byse. Shocked by the apparent injustices resulting from nam-
ing the “wrong” defendant, Professor Byse closely examined
each of the four cases, analyzed Supreme Court precedents
and presented specific proposals for reform.'' Byse, Suing
the “Wrong” Defendant in Judicial Review of Federal
Administrative Action: Proposals for Reform, 77 HARV. L.
REV. 40 (1963).
This historical retrospective is especially important to the
present Petition. In examining the seminal cases that led to
Rule 15(c) reform, the parallels to the present case are most
apparent.
Limitations Period Date of Service
Case" Expiration US. Attomey
Cunningham Oct. 6, 1958 Oct. 7, 1958
11. Professor Byse commented that the “(flour decisions ...
reached results so at odds with my sense of justice as to provoke this at-
tempt to suggest a remedy.” 77 HARV. L. REV. 40 (1963).
12. Petitioner’s counsel was unable to ascertain the correct date
. service on the U.S. Attorney with respect to the limitations period in
ohn.
~~
Hall Nov. 1958 Mar. 25, 1959
Sandridge Aug. 19, 1958 Sept. 5, 1958
Bates May 22, 1987 Aug. 17, 1987
In Sandridge, Hall and Cohn requests to amend the pleadings
to name the technically required defendant were filed after
the statutory limitation period had expired.
Professor Byse proposed that Rule 21 be amended to in-
clude the following language:
Relation Back In Actions Against the United States,
Its Agencies or Officers. Whenever, in any action
against the United States, an agency thereof, or an of-
ficer thereof in his official capacity, a copy of the
summons and of the complaint shall have been deliv-
ered or sent, in compliance or attempted compliance
with Rule 4(d)(4) or (5), to the United States attorney
for the district in which the action is brought, or to a
person designated by him, or to the Attorney General
of the United States, or to any agency which or officer
who would have have been a proper defendant, if
named, the addition or replacemert of a party defen-
dant relates back to the date of the commencement of
the action.
Id. at 55-56. The linchpin of Professor Byse’s proposal was
service:
The heart of both of the proposals presented is the
aes
provision that, if process has been served upon the
United States attorney, the Attorney General of the
United States, or an agency or official who would .
have been a proper defendant if named, the amend-
ment bringing in the proper defendant relates back to
the commencement of the action. Such service af-
fords some responsible official of the Government
timely notice that the plaintiff is seeking judicial re-
view.
Id. at 58 (emphasis added).
Professor Byse’s proposal did not go unnoticed. In 1966,
Rule 15(c) was significantly changed. Not only was the Rule
clarified as to when an amendment of the pleading changing
the party against whom a claim is asserted related back - the
private litigant aspect considered in Schiavone - but also
Professor Byse’s proposal was implemented. The “federal”
tier of Rule 15(c) was added which stated:
The delivery or mailing of process to the United
States Attorney, or the United States Attorney’s des-
ignee, or the Attorney General of the United States, or
an agency or officer who would have been a proper
defendant if named, satisfies the requirement of claus-
es (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.
F=D.R. Civ. P. 15(c)(1966).
Throughout its commentary the Advisory Committee
proposing this change was conversant with the inequities of
2
Cohn, Cunningham, Hall and Sandridge. The Advisory
Committee left no doubt that the proposed revision would not
be a problem in these cases. Noting the linchpin of effective
service instead of notice, the Committee observed:
[T]he government was put on notice of the claim
within the stated period - in the particular instances,
by means of the initial delivery of process to a re-
sponsible government office (see Rule 4(d)(4) and
(5)). In these circumstances, ciaracterization of the
amendment as a new proceeding, is not responsive to
reality, but is merely question-begging; and to deny
relation back is to defeat unjustly the claimant’s op-
portunity to prove his case.
Advisory Committee on Civil Rules. See 39 F.R.D. 82, 83
(1966). As Justice Blackmun remarked in Schiavone, the
construction given by the Advisory Committee is “of
weight.” /d. at 2385 (quoting Mississippi Publishing Corp. v.
Murphree, 326 U.S. 438, 444, 66 S. Ct. 242, 245 (1946)).
At least one commentator has acknowledged the signifi-
cance of service in the Rule 15(c) revision noting:
The last sentence of Rule 15(c), which was added in
1966 ... is intended to avoid the harsh results that oc-
curred prior to the amendment. It establishes an irre-
buttable presumption that if proper service has been
made on the United States attorney, or his designee,
or the Attorney General, or an agency or officer who
would have been a proper defendant if named, then
the requirements set forth in clauses (1) and (2) of
Rule 15(c) for the relation back of an amendment
- 19-
changing a party are to be deemed satisfied.... The
1966 amendment should have the desirable effect of
facilitating a citizen’s suit against his sovereign by
eliminating an unnecessary trap for the unwary.
6 C. Wright & A. Miller, FEDERAL PRACTICE AND
PROCEDURE § 1502 p. 529 (1983).
Analyzed against this historic backdrop the Court’s deci-
sion in Schiavone applying the non-federal tier of Rule 15(c)
should not be considered applicable in cases involving the
federal government. Instead of testing the allowance of an
amendment correcting the technical designation of a federal
defendant by the linchpin of “notice”, it should be apparent
that the drafters envisioned the more correct test of whether
service is perfected in accordance with Rule 4.
Fundamentally, the Court’s decision in Schiavone does
not address how Rule 15/c) applies to cases involving the
federal government. Instead, it should be obvious from a his-
torical perspective that the special requirements set forth in
Schiavone would negate - even contradict - the ameliorative
changes made in 1966. If the Schiavone holding is extended
to litigation against the federal government, as it has been by
the lower courts, nothing was changed by the 1966 amend- ©
ments and the results in Cohn, Cunningham, Sandridge, and
Hall would remain as unjust and inequitable today as in
1960.'3
13. One article has noted that the “four social security cases that
provoked Professor Byse to urge reform, and that prompted revision of
Rule 15(c), almost certainly would come out the same way today under
the Schiavone Court’s construction of Rule 15(c).” Brussack, Outrageous
Fortune: The Case for Amending Rule 15(c) Again, 61 S. CAL. L. REV.
671, 672 (1988).
. -
The Court should perceive that this was not the intent of
the 1966 amendment. Granting certiorari will permit to the
Court to more thoroughly analyze this separate - and distinct
- aspect of Rule 15(c) and the adverse effect it has on hun-
dreds of litigants each year.
B. The Application Of Schiavone To Cases Involving
The Federal Government Conflicts With The
Clear Language Of Rule 15(c).
Although the fundamental error of extending Schiavone
to federal cases in view of the historical development of Rule
15(c) is the predominant reason justifying certiorari, the same
conclusion is merited by construing the language of the rule.
The Court has often admonished that the federal rules are not
to be given a narrow and formalistic construction. Rather,
they should be interpreted with a view toward allowing a
hearing on the mérits. See, e.g. Surowitz v. Hilton Hotels
Corp., 383 U.S. 363, 373, 86 S. Ct. 845, 851 (1966).
Perfecting service in accordance with Rule 4 has a dra-
matic effect on the technical wording of Rule 15(c).
Eliminating the subsidiary requirements of paragraphs (1)
and (2), Rule 15(c) would provide:
Whenever the claim or defense asserted in the amend-
ed pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in 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
se
him, the party to be brought in by amendment-4-has
siadiaiiad Sie taiiiinel Fa
Standing alone in this fashion the final requirement stated in
Schiavone - notice within the prescribed limitations period -
becomes superfluent. Each of the requisites of the “federal”
tier of Rule 15(c) is met by perfecting service. Nothing with-
in the second paragraph of Rule 15(c) mandates that this ser-
vice take place before the expiration of the proscribed limita-
tions period. Given this misapplication of Schiavone based
upon a false interpretation of the “federal” tier, this Court
should review the decision below.
C. The Rationale Of Schiavone Does Not Apply To
Cases Involving The Federal Government.
The Court in Schiavone reviewed a case that was vastly
dissimilar to any of the cases that involve the federal govern-
ment as a defendant. It is difficult, if not impossible, to ex-
tend the rationale noted by the Court in Schiavone to litiga-
tion against the federal government.
The majority in Schiavone concluded that notice within
the limitations period is the “linchpin” of Rule 15(c).
Schiavone at 2385. The underlying facts in Schiavone estab-
lished that the first notice defendant Time had of plaintiff’s
complaint was with the filing of the lawsuit some two months
-
after the expiration of the limitations period and more than
fourteen months after the tortuous conduct. /d. at 2385.
The factual constraints of the present case, as repeated in
nearly every case in which Schiavone has been misapplied,
belay any question about knowledge of the underlying claim.
In the present case TVA participated in adversarial adminis-
trative proceedings for three years before the commencement
of suit in district court. Further, even if the TVA board of di-
rectors had been technically named, they probably would
never have received notice of the filing. Whether TVA or the
individual board members were named, the same official ad-
dress would be used to perfect service, the same employees
of TVA would review the complaint, the same TVA legal
representative would appear as counsel, and TVA would pay
any judgment.
Unless the Court permits these legal fictions to predomi-
nate over reason and reality, the requirements of Schiavone
should not be applied. The Court should certainly recognize
that petitioner did not abuse the limitations period. Instead,
his only error, albeit a technical and fatal one according to
the lower court, was to not recognize that the “Alleged
Discriminating Official(s)” suddenly changed from “Orvis
Engelstad” to the TVA board of directors.
The present case apparently falls directly within the
“scrivener’s” error forecast by Justice Stevens in
Schiavone.'4 The Court should grant certiorari to review
whether extension of Schiavone is justifiable in this context.
. 2
D. Review is Warranted Because Of A Conflict
Among The Lower Courts
The lower courts have developed interesting holdings to
avoid the inequitable results of Schiavone. Either these cases
are conflicting with how the Court would apply Rule 15(c) to
litigation against the government or they provide additional
impetus justifying certiorari.'*
One example of this is Mondy v. Secretary of the Army,
845 F.2d 1051 (D.C. Cir. 1988) in which the appellate court
engaged in the fiction that Schiavone would permit additional
time for processing service when the United States marshal is
involved. The court in Mondy permitted service four months
after the limitations period had expired to relate back to save
the offered amendment. In essence the court avoided
Schiavone by finding that reliance on the United States mar-
shal to perfect service on the United States attorney would
toll the Rule 15(c) time period.
Another example of indirect refusal to follow Schiavone
is Cupp v. Veterans Administration Hospital, 677 F. Supp.
1018 (N.D. Cal. 1987). The district court in this case held
that the act of attaching a copy of the administrative decision
to the complaint was sufficient to satisfy the statutory re-
quirement even though the complaint failed to name the ad-
ministrator of the Veterans Administration. The Ninth
Circuit has previously confirmed this technique as a means to
15. In presenting this argument, Petitioner does not represent
that this rises to the level of “conflict between the Circuits” as envisioned
by Supreme Court Rule 17.1. Instead, the discussion is presented to indi-
cate the character of the problem posed by Rule 15(c) and how the lower
courts are circumventing the Schiavone holding.
- 24 -
avoid dismissal. Rice v. Hamilton Air Force Base
Commissary , 720 F.2d 1081 (9th Cir. 1983).
These cases are reflective of the growing dissatisfaction
the lower courts have in confronting Rule 15(c) and
Schiavone.'® At the very least, the Court should grant Certio-
rari to once and for all resolve the correct application of Rule
15(c) to cases involving federal defendants. The harsh and
unintended consequences certainly justify review by this
Court.
II
CERTIORARI SHOULD BE GRANTED TO
REVIEW THE STATUS OF TVA AS A
CORPORATE ENTITY UNDER TITLE VII.
This Court should grant the writ of certiorari in order to
resolve a fundamental misinterpretation of the Title VII filing
requirements as they relate to 16 U.S.C. § 831c(b). The
lower court in its application of Section 2000e-16(c) judicial-
ly added a filing requirement that not only fails to exist but
also overlooked the clear language of Section 831c(b). In
16. In the aftermath of Schiavone several appellate decisions
have voiced vigorous dissent over the application of the decision to cases
against the federal government. See Johnson v. U.S. Postal Service, 861
F.2d 1475 (10th Cir. 1988)(McKay, J. dissenting); Honeycutt v. Long,
861 F.2d 1346 (Sth Cir. 1988)(Brown, J. dissenting noting “[t)he Court
over my somewhat spirited defense, has ruled in Gonzales v. Secretary of
Air Force, 824 F.2d at 395; therefore as a loyal trooper I am bound al-
though still convinced of the error of our - and with utmost deference, the
Supreme Court’s - way”); Gonzales v. Secretary of Air Force , 824 F.2d
392 (Sth Cir. 1987)(Brown, J. dissenting).
_-*.
doing so, the lower court decision conflicts with other prece-
dents within the Circuit and is contrary to Congressional in-
tent in creating TVA.
In the present case, there is no dispute that Petitioner
timely filed his district court action against “TVA.” Direct
action against the federal government for Title VII employ-
ment discrimination is contemplated by Section 2000e-16(c).
In relevant part, this statute provides:
Within thirty days of receipt of notice of final action
... an empioyee or applicant for employment, if ag-
grieved by the final disposition of his complaint, may
file a civil action as provided in section 2000e-5 of
this title, in which civil action the head of the depart-
ment, agency, or unit, as appropriate, shall be the de-
fendant.
42 U.S.C. § 2000e-16(c)(emphasis added).'? One lower
court, noting the permissive phrase “as appropriate”, com-
mented on this specific language:
In enacting the Civil Rights Act, Congress did not in-
tend to have claims of discrimination dismissed on a
highly technical construction of the broadly worded
provision designating appropriate defendants. In pro-
viding that “the head of ... a unit, as appropriate,
shall be the defendant,” (emphasis added), Congress
indicated that a non-technical, reasonable interpreta-
tion should be applied in determining eligible defen-
17 The section of Section 2000e does not specify what is
meant by “head”, “department”, “agency” or “unit”. See generally 42
U.S.C. § 2000e.
= 26-
dants. The use of the words “as appropriate’ and
“shall” denote a congressional intent to prescribe a
wide selection of jurisdictional defendants. It is the
this complete statutory provision that determines the
jurisdictional defendants and the words should be
given their ordinary meaning. Burns v. Alcala, 420
U.S. 575, 580-81, 95 S. Ct. 1180, 1184-85 (1975).
Monay v. Secretary of the Army, 845 F.2d 1051 (D.C. Cir.
1988)(MacKinnon, J. concurring)(emphasis in original).
The specific language of Section 2000e does not answer
who or what entity needs to be named in the Title VII pro-
ceeding in district court. For guidance on this issue, courts
naturally must examine other federal statutes.
Congress in creating the Tennessee Valley Authority spe-
cifically endowed the federal corporation with certain private
corporate-like characteristics. One of these included the right
to sue and be sued in TVA’s corporate name. This
Congressional authorization was codified in 16 U.S.C. §
831c(b) which permits:
Except as otherwise specifically provided in this chapter,
the Corporation [Tennessee Valley Authority] -
(a) Shall have succession in its corporate name.
(b) May sue and be sued in its corporate name.
16 U.S.C. § 831c(b).
With the exception of the present case, all other lower
a. 2
courts which have thoroughly considered Section 831c(b)
have consistently held that federal actions can be filed against
TVA as a corporate entity.'* Peoples National Bank of
Huntsville, Alabama v. Meredith, 812 F.2d 682, 684-85 (11th
Cir. 1987)(“the doctrine of sovereign immunity does not bar
suit against TVA; indeed its enabling act provides that it may
sue and be sued in its corporate name”); Painier v. Tennessee
Valley Authority, 476 F.2d 943, 944 (Sth Cir. 1973); Algerion
Blair Industrial Contractors, Inc. v. Tennessee Valley
Authority, 552 F. Supp. 972, 974 (M.D. Ala. 1982)(“TVA al-
ways has been liable to direct lawsuit like any other liti-
gant”); Carborundum Company v. Tennessee Valley
Authority, 521 F. Supp. 590, 594 (E.D. Tenn. 1981)(“While
the Court can take judicial notice that the individual defen-
dants are Directors of the TVA, no cause of action is alleged
against them in their individual or official capacity.
Moreover, lawsuits involving TVA’s activities are to be
brought against TVA in its corporate name and not against a
director or other official of that agency.”).
The uneven application of Section 831c(b) certainly mer-
its review by this Court. Since the Court has not previously
reviewed Section 831c(b), granting this Petition will permit
review of both this provision as well as the meaning of the
phrase “as appropriate” in Section 2000e-16(c).
18. In proceedings before the Eleventh Circuit, TVA provided a
compendium of unreported cases that were represented as addressing this
issue. These cases do not consider the permissive language “as appro-
priate” and apparently reflect litde judicial analysis of this issue.
~.
CONCLUSION
For the foregoing reasons, Petitioner respectfully prays
that this Court issue a writ of certiorari to review the judg-
ment of the Court of Appeals for the Eleventh Circuit.
Dated: March 15, 1989
Florence, Alabama
Respectfully submitted,
John R. Benn
Counsel of Record
Slusher & Benn Attorneys
425 North Court Street
Florence, AL 35630
(205-764-4011)
Attorney for Petitioner
Thomas E. Bates
No. 88-
IN THE
Hupreme Court of the United Htates
October Term, 1988
THOMAS E. BATES,
Petitioner,
Vv.
TENNESSEE VALLEY AUTHORITY AND
ORVIS ENGELSTAD, DIRECTOR, DIVISION
OF AGRICULTURAL DEVELOPMENT,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
JOHN R. BENN
SLUSHER & BENN ATTORNEYS
425 NORTH COURT STREET
FLORENCE, AL 35630
(205-764-4011)
Attorney for Petitioner
March 15, 1989
ENT RT RS OU BE A mR
7
APPENDIX TABLE OF CONTENTS
STATUTORY PROVISIONS INVOLVED............: A2-A5
Rule 15(c) of the Federal Rules of Civil
PLOCECUIE .......esceesessccsscercscsseeseseccssesresessnnereren snes A2
Rule 4(j) of the Federal Rules of Civil
PLOCECUIE .......cecceeesccesscessssceeseecesecessseeeesenesenenesen sees A3
16 U.S.C. § 831c. Tennessee Valley Authority
Corporate powers generally ........:.s:ssssseeeereereeees A4
Title VII of the Civil Rights Act of 1964, § 717(c)
as amended 42 U.S.C. § 2000e-16(C).......:::+eeeee A5
OPINION OF THE UNITED STATES COURT
OF APPEALS FOR THE ELEVENTH
CIRCUIT
August 18, 1988 (851 F.2d 1366) ........-.--sesseeceereees A6
OPINION OF THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF
ALABAMA
October 6, 1987 (87-AR-5214-NW) .....:::sseeeeeeeeees Al12
oe
RULE 15(c) OF THE FEDERAL RULES OF CIVIL
PROCEDURE
Rule 15. Amended and Supplemental Pleadings
(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 at-
tempted to be set forth in the original pleading. An amend-
ment changing the party against whom a claim is asserted re-
lates back if the foregoing provision is satisfied and, within
the period provided by law for commencing the action
against him, the party to be brought in by amendment (1) has
received such notice of the institution of the action that the
party wiil not be prejudiced in maintaining his defense on the
merits, and (2) knew or should have known that, bui for a
mistake concerning the identity of the proper party, the ac-
tion would have been brought against him.
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 an agency or offic-
er who would have been a proper defendant if named, satis-
fies 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.
ee
RULE 4(j) OF THE FEDERAL RULES OF CIVIL
PROCEDURE
Rule 4. Process
(j) Summons: Time Limit for Service. If a service of
the summons and complaint is not made upon a defendant
within 120 days after the filing of the complaint and the party
on whose behalf such service was required cannot show good
cause why such service was not made within that period, the
action shall be dismissed as to that defendant without preju-
dice upon the court’s own initiative with notice to such party
or upon motion. This subdivision shall not apply to service in
a foreign country pursuant to subdivision (i) of this rule.
- A4-
16 U.S.C. § 83lc. Corporate powers generally; eminent
domain; construction of dams, transmission lines, etc.
Except as otherwise specifically provided in this chapter, the
Corporation -
(a) Shall have succession in its corporate name.
(b) May sue and be sued in its corporate name.
(c) May adopt and use a corporate seal, which shall be
judicially noticed.
(d) May make contracts, as herein authorized.
(e) May adopt, amend, and repeal bylaws. ....
>
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,
§ 717(c), AS AMENDED, 42 § 2000e-16(c)
Within thirty days of receipt of notice of final action
taken by a department, agency, Or unit referred to in subsec-
tion (a) of this section, or by the Equal Employment
Opportunity Commission upon an appeal from a decision or
order of such department, agency, OF 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, OF unit or with the
Equal Employment Opportunity Commission on appeal from
a decision or order of such department, agency, OF 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, may file a
civil action as provided in section 2000e-5 of this title, in
which civil action the head of the department, agency, Or
unit, as appropriate, shall be the defendant.
- A6-
Thomas E. BATES, Plaintiff-Appellant,
v.
TENNESSEE VALLEY AUTHORITY and
Orvis Engelstad, Director, Division
of Agricultural Development, Defendants-Appellees.
No. 87-7626
United States Court of Appeals,
Eleventh Cirduit,
Aug. 10, 1988
Appeal from the United States District Court for the
Northern District of Alabama.
Before HATCHETT and EDMONDSON, Circuit
Judges, and GIBSON, Senior Circuit Judge. [Honorable
Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth
Circuit, sitting by designation]
HATCHETT, Circuit Judge:
In this Title VII action, the appellant sought to add
the proper parties to his lawsuit after the expiration of the
limitations period for filing suit. Applying Schiavone v.
Fortune, 106 S. Ct. 2379 (1987), we affirm the district
court’s ruling denying the amendment.
a ATs
FACTS
The appellant, Thomas E. Bates, is an employee of
the Tennessee Valley Authority (TVA). Appellee, Engelstad,
is the director of the TVA division in which Bates is em-
ployed. In 1983, Bated filed suit with the EEOC alleging that
TVA and Engelstad discriminated against him on the basis of
race. The EEOC denied relief on April 22, 1987, and on May
21, 1987, Bates filed a complaint in the District Court for the
Northern District of Alabama against TVA and Engelstad,
thereby complying with the statutory requirement that a liti-
gant file a Title VII complaint in the district court within thir-
ty days after the EEOC decision. 42 U.S.C. § 2000e-16(c).
On August 6, 1987, TVA and Engelstad filed motions
to dismiss asserting that neither was a “head of the depart-
ment, agency, or unit . . .” under that portion of 42 U.S.C. §
2000e-16(c) which delineates the proper parties in Title VII
actions. On August 17, 1987, Bates filed a motion to amend
his complaint to add the proper parties, TVA Board members
Charles H. Dean, Jr., and John B. Waters (Board members).
On October 6, 1987, the district court dismissed TVA and
Engelstad and denied Bates’s motion to amend his complaint
to add the Board members as defendants. The Board mem-
bers have not filed any motions or pleadings in this action.
This appeal tests the district court’s ruling denying
the right to amend and granting dismissal.
-A8-
DISCUSSION
Motion to Dismiss TVA and Engelstad
The controlling statute in this case is 42 U.S.C. §
2000e-16(c) which states:
Within thirty days of receipt of notice of final action
taken by... the Equal Employment Opportunity
Commission..., an employee or applicant for employ-
ment...may file a civil action as provided in section
2000e-5 of this title, in which civil action the head of the
department, agency, Or unit, as appropriate, shall be the
defendant.
Bates filed a complaint naming TVA and Engelstad as defen-
dants within the thirty-day time limit. Neither TVA nor
Engelstad, however, fit the statutory requirement that the
civil action be against “the head of the department, agency,
or unit.” The TVA is headed by a three-member board of di-
rectors. Accordingly, the district court correctly dismissed
TVA and Engelstad because they were not proper parties
under 42 U.S.C. § 20003-16(c).
Motion to Add Board Members
Before the district court dismissed TVA and
Engelstad, but more than thirty days after receipt of the
FEOC notice, Bates moved to add the Board members as
proper parties. The district court denied the motion. The de-
cision of the district court denying leave to amend will not be
reversed absent an abuse of discretion. Wright v. Newsome,
795 F.2d 964, 967 (11th Cir. 1986), Rhodes v. Amarillo
-A9-
Hospital District, 654 F.2d 1148, 1153 (Sth Cir. 1981)(bind-
ing).
Although the motion to amend came after the thirty-
day time limit had expired, the delay was not fatal for juris-
dictional purposes. The Supreme Court and this circuit are
consistent in holding that the time limitations within Title
VII are not jurisdictional. Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 393, 102 S. Ct. 1127, 1132, 71 L. Ed.2d 234
(1982); Ross v. U.S. Postal Service, 814 F.2d 616 (11th Cir.
1987); Miller v. Marsh, 766 F.2d 490 (11th Cir. 1985);
Milam v. United States Postal Service, 674 F.2d 860 (11th
Cir. 1982). See also Boddy v. Dean, 821 F.2d 346, 350 (6th
Cir. 1987); Jarrell v. United States Postal Service, 753 F.2d
1088 (D.C.Cir. 1985); Martinez v. Orr, 738 F.2d 1107, 1109
(10th Cir. 1984); Saltz v. Lehman, 672 F.2d 207, 208
(D.C.Cir. 1982). Instead of a jurisdictional requirement, the
thirty-day time limit is “‘a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable toll-
ing.” Zipes 455 U.S. at 393, 102 S. Ct. at 1132. Our holding
in this case does not impact upon this longstanding rule.
Although Bates urged relief based on equitable toll-
ing in this court, he did not do so in the district court. In the
absence of the equitable tolling issue being properly before
this court, the case involves only the right to amend under the
circumstances of this case.
The relevant legal requirements for an amendment to
a complaint are found in Federal Rule of Civil Procedure 15.
Rule 15(c) authorizes amendments which “relate back”’ to the
-A10-
original complaint.' The four prerequisite to a “relation
back” amendment under rule 15(c) are: (1) the basic claim
must have arisen out of the conduct set forth in the original
pleading; (2) the party to be brought in must have received
such notice that it will not be prejudiced in maintaining its
defense; (3) that party must or should have known that, but
for a mistake concerning identity, the action would have been
brought against it; and (4) the second and third requirements
must have been fulfilled within the prescribed limitations pe-
riod. Schiavone v. Fortune, 477 U.S. 21, 106 S. Ct. 2379,
2384, 91 L. Ed.2d 18 (1986).
The fourth element requires that a court consider
whether a party to be added was on notice within the limita-
tions period. In this case, the Board members did not receive
notice of Bates’s allegations until the thirty-day limitations
period had run. Because the second and fourth elements of
Schiavone went unsatisfied, thereby barring a rule 15(c) re-
lation back amendment, the district court properly denied the
motion to amend. See Gonzales v. Secretary of the Air Force,
824 F.2d 392, 396 (Sth Cir. 1987); Cooper v. U.S. Postal
Service, 740 F.2d 714, 717 (9th Cir. 1984), cert. denied,
471 U.S. 1022, 105 S. Ct. 2034, 85 L. Ed.2d 316 (1985).
1. Bates also argues that he should be allowed to amend his
complaint as a matter of course because the defendants had not yet filed a
“responsive pleading.” Fed.R.Civ.P. 15(a); McClellan v. Mississippi
Power and Light Co., 526 F.2d 870, 873 (Sth Cir. 1976), vacated on
other grounds, 545 F.2d 919 (Sth Cir. 1977). We agree that appellee’s
motion to dismiss was not a responsive pleading under rule 15(a).
McClellan, 526 F.2d at 872 n. 2. Nevertheless, we will not allow an
amendment under 15(a) in direct contradiction of rule 15(c)’s more spe-
cific requirement that the amendment “relate back” to the original com-
plaint once the limitations period has run.
-All-
Even if Bates had raised equitable tolling, it would
have not changed the result in this case. Because the district
court correctly denied Bates’s motion to add parties, on the
basis of Schiavone, the issue of equitable tolling was irrele-
vant. Only with the Board members properly in this case
could Bates have benefited from equitable tolling.
Bates also argues that Schiavone is inapposite be-
cause it did not involve a federal defendant. The second para-
graph of rule 15(c) states that the requirement that the proper
defendant be on notice before the perioc of limitation expires
is satisfied if the plaintiff serves process on the United States
Attorney. We construe this paragraph to mean that a plaintiff
must serve the United States Attorney within the applicable
limitations period in order to satisfy the requirement that the
proper federal defendant be on notice within that period. See
Cooper v. U.S. Postal Service, 740 F.2d 714, 717 (9th Cir.
1984), cert. denied, 471 U.S. 1022, 105 S. Ct. 2034, 85 L.
Ed.2d 316 (1985). Because Bates did not serve the United
States Attorney until August 17, 1987, well after the thirty-
day period had run, rule 15(c) provides no relief.
2. Bate’s claim that the period tolled because appelice’s pay-
ment of disparate wages is a continuing violation of Title VII is unavail-
ing. A continuing violation tolls the period in which a intiff may pur-
sue administrative remedies. The thirty-day time limit for filing court ac-
tion is tolled only by failure to receive a Right to Suc letter, misrepresen-
tations of the agency, or other administrative obstacles.
Our holding that the district court properly denied amendment ren-
ders spurious Bate’s argument that only the proper parties (Board mem-
bers) could raise the statute of limitations bar bringing into issue equita-
ble tolling. Obviously, the Board members will never be parties in this
lawsuit. Perhaps, in a new lawsuit the equitable tolling issue may be
reached.
~fAi2-
Accordingly, the order of the district court is af-
firmed.
AFFIRMED.
-Al3-
Thomas E. BATES, Plaintiff-Appellant,
Vv.
TENNESSEE VALLEY AUTHORITY and
Orvis Engelstad, Directgr, Division :
of Agricultural Development, Defendants-Appellees.
No. 87-AR-5214-NW
United States District Court,
Northern District of Alabama,
Northwestern Division
Oct. 06, 1988
Appeals from the United States District Court for the
Northern District of Alabama.
Before William M. ACKER, Jr., District Judge.
ACKER, District Judge:
The court has for consideration the alternative mo-
tions by defendants Tennessee Valley Authority (TVA) and
Orvis Engelstad for a dismissal and for summary judgment.
Additionally, the court is presented with plaintiff Thomas E.
Bates’ motion for leave to amend his complaint. Defendants’
motions are due to be granted; plaintiff's motion is due to be
denied.
-Al4-
Pertinent Undisputed Facts
On May 22, 1987, plaintiff filed his complaint in this
court against TVA under Title VII of the Civil Rights Act of
1964, as amended, and 42 U.S.C. § 1981, claiming that TVA
had discriminated against him because of his race. The com-
plaint also named Orvis Engelstad, Director of the Division
of Agricultural Development of TVA, as a defendant.
Subsequent to the filing of the complaint wita the Clerk of
this court, the summons and a copy of the complaint were
mailed to TVA on May 29, 1987, with receipt by TVA on
June 2, 1987.
Prior to filing, Bates pursued his administrative reme-
dies through TVA itself and through the Equal Employment
Opportunity Commission (EEOC). The EEOC rendered its
final decision on April 17, 1987, concluding that Bates was
not a victim of discriraination. That decision was communi-
cated to Bates on or about April 22, 1987.
On August 6, 1987, defendants filed their present mo-
tions, contending that a suit under 42 U.S.C. § 2000e-16
against the members of TVA’s Board of Directors in their of-
ficial capacity, and not against TVA as an entity or
Engelstad, is plaintiff's exclusive statutory remedy for his
claims. On August 17, 1987, plaintiff filed his motion for
leave to amend his complaint. He argues that his proposed
amendment is necessary in order to clarify the causes of ac-
tion stated in the original complaint and to add as defendants
the members of the Board of Directors of TVA, Charles H.
Dean, Jr. and John B. Waters. This would seem to concede
that Dean and Waters are necessary parties defendant. The
question is “Did Bates get to them in time?”
-Al5-
Conclusions of Law
The disposition of these motions depends upon the
resolution of several legal issues: (1) whether TVA and
Engelstad are proper defendants in the present action under
42 U.S.C. § 2000e-16(c); (2) whether plaintiff’s proposed
amendment, if allowed, would relate back to the date of fil-
ing of the original complaint, so as to avoid the statutory bar
presented by 42 US.C. § 2000e-16(c), which requires that
employment discrimination actions against the federal gov-
ernment be commenced within 30 days of receipt of a final
decision from the EEOC; and (3) whether plaintiff has a sep-
arate cause of action against these defendants under 42
U.S.C. § 1981 which would not be barred except by
Alabama’s six-year statute of limitations.
Title VII Action Against TVA and Engelstad
In authorizing suit against the federal government, 42
U.S.C. § 2000e-16(c) directs in clear and unambiguous lan-
guage that in a civil action “the head of the department, agen-
cy, Or unit, as appropriate, shall be the defendant.” In accor-
dance with this statutory direction, the “Notice of Right to
File a Civil Action,” which accompanies final decisions of
the EEOC, points out:
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 de-
fendant by official title rather than by name. Failure to
provide the NAME OR OFFICIAL TITLE of the agency
- Al6-
head or, where appropriate, the department head, may
result in the loss of any judicial redress to which you are
entitled. (Please note: For this purpose, Department
means the overall national organization, such as the now
defunct Department 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 acticn.
Affidavit of Thomas F. Fine (Exhibit 1} (emphasis in origi-
nal}.
Case Law has further emphasized that an agency head
is the only proper Title VII defendant under § 2000e-16(c).
Canino v. United States Equal Employment Opportunity
Commission, 707 F.2d 468, 472 (1 1th Cir. 1983); Brickley v.
Tennessee Valley Authority, No. 77-M-0580, slip op. at 2
(N.D. Ala. 1977). TVA is under the direction of a three-
member Board of Directors, as 16 U.S.C. § 831 makes clear;
courts have unhesitatingly relied upon this provision in find-
ing that the “head” of TVA is its Beard of Directors. Bell v.
Tennessee Valley Authority, Nos. 77-P-0240-NE and 77-P-
0418-NE, slip op. at 3 (N.D. Ala. 1977); Horton v. Tennessee
Valley Authority, No. 79-W-5028, slip. op. at 3 (N.D. Ala.
1980). Accordingly, as the Bell court explicitly pointed out,
only TVA’s named directors are proper defendants. Neither
TVA as a corporate entity nor other supervisory personnel
may be properly named as defendants. Brickley at 2. It is
clear, then, that plaintiff's original complaint did not name
the proper defendants for his Title VII action.
-A17-
Relation Back of Plaintiff?s Proposed Amendment
Plaintiff seeks to avoid dismissal of his Title Vii
claims by the expedient of amending his complaint to name
the proper defendants, the members of TVA’s Board of
Directors. Plaintiff asserts that the date of any such amend-
ment should relate back to the date of filing of his original
complaint, under Rule 15(c), F.R.Civ.P., so that his claims
against TVA’s Board members will be deemed timely filed.
However, in light of the Supreme Court’s holding in
Schiavone v. Fortune, US. , 106 S. Ct.
2379 (1986), any such amendment would not relate back in
this case. In Schiavone, plaintiff filed his libel suit several
days prior to the expiration of the statutory period for filing
suit. He named the publication containing the allegedly libel-
ous article, Fortune, as defendant, and attempted to serve
process several days later, by which time the statutory period
for commencing the action had run. Service of process was
refused because “Fortune” was, in fact, only a trademark of
Time, Incorporated, which was the proper defendant. Several
weeks thereafter, the plaintiff amended his complaint to in-
clude Time, Incorporated. In holding that the date of the
amendment did not relate back to the date of filing of the
original complaint, the Supreme Court articulated four fac-
tors, all of which must be satisfied, if relation back 1s to take
place:
(1) the basic claim must have arisen out of the
conduct set forth in the original pleading;
2) the party to be brought in must have re-
ceived such notice that it will not be prejudiced in main-
taining its defense,
-A18-
(3) that party must or should have known that,
but for a mistake concerning identity, the action would
have been brought against it; and
(4) the second and third requirements must have
been fulfilled within the prescribed limitations period.
106 S. Ct. at 2384.
The Court pointed out that the notice thus required in
Schiavone had not been given until after the expiration of
the statutory period for commencing suit, therefore, the nec-
essary knowledge did not come into being until after the ex-
piration of the statutory period. Noting that Rule 15(c),
F.R.Civ.P., refers to the period provided by law for “com-
mencing” the action, and that Rule 3, F.R.Civ.P., provides
that suit is “commenced by filing a complaint,” the Court
stated:
We are not inclined, either, to temper the plain
meaning 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.
106 S. Ct. at 2385.
Accordingly, the amendment in Schiavone did not relate
back io the date of original filing, and the dismissal of the ac-
tion was affirmed.
The Fifth Circuit very recently found Schiavone dis-
positive in a case remarkably similar to the case at bar. In
Gonzales v. Secretary of the Air Force, 824 F.2d 392 (1987),
-Al19-
that court held that an amendment in a Title VII suit naming
the Secretary of the Air Force as a defendant did not relate
back to the date of the original complaint, where the
Department of the Air Force was named as the sole defen-
dant originally. In Gonzales, as in the present case, the plain-
tiff had timely filed his complaint but had not effected ser-
vice of process until after the expiration of the thirty-day pe-
riod allowed by § 2000e-16(c). Since neither the Department
nor the Secretary had received notice during the thirty-day
period, in light of Schiavone, the Fifth Circuit held that the
plaintiff's amendment did not relate back and the district
court’s dismissal of the action was affirmed.
The Eleventh Circuit has not yet ruled on this precise
issue. However, this court finds the reasoning of the Fifth
Circuit in Gonzales persuasive, and, applying Schiavone,
finds that any amendment by the plaintiff in the present case
would not relate back to the date of the original complaint.
Accordingly, plaintiff's motion to amend is due to be denied
because it would not accomplish its only real purpose.
The Supreme Court has cautioned against highly
technical readings of the provisions of Title VII. See Zipes v.
TransWorld Airlines, Inc., 455 U.S. 385, 102 S. Ct. 1127
(1982); Love v. The Pullman Co., 404 U.S. 522, 92 S. Ct.
616 (1972). However, this admonition does not change the
result in the present case. In Baldwin County Welcome
Center v. Brown, after pointing out that there is “no ‘satisfac-
tory basis for giving Title VII actions a special status under
the Rules of Civil Procedure,” the Court went on to say:
Procedural requirements established by Congress
for gaining access to the federal courts are not to be dis-
- A20-
regarded by courts out of a vague sympathy for particu-
lar litigants. As we stated in Mohasco Corp. ¥. Silver,
“liJn the long run, experience teaches that strict adher-
ence to the procedural requirements specified by the leg-
islature is the best guarantee of even-handed administra-
tion of the law.”
466 U.S. 147, 153, 104, S. Ct. 1723, 1726 (1984) (per curi-
am) (citations omitted.)
The concern of the Court in Baldwin County is par-
ticularly apt in the present case, where the previously men-
tioned “Notice of Right to File a Civil Action” attached to
the EEOC’s final decision and given to the plaintiff, empha-
sizes not only that the proper defendant must be named but
also that any civil action must be filed within 30 days from
the date of receipt of the EEOC decision. (Affidavit of
Thomas F. Fine, Exhibit 1).
Section 1981 Claim
It is by now well established that Title VII provides
the exclusive judicial remedy for discrimination claims of
federal employees. There is an abundance of cases like the
present one wherein plaintiffs have claimed violations of
both Title VII and § 1981. Equally abundant are the dismiss-
als of the § 1981 claims, with consistent findings by the
courts that Title VII is the exclusive remedy. See, e.g., Brown
v. General Services Administration, 425 U.S. 820, 96 S. Ct.
1961 (1976); Canino v. United States Equal Employment
Cpportunity Commission, 707 F.2d 468 (11th Cir. 1983);
Newbold v. United States Postal Service, 614 F.2d 46 (Sth
Cir. 1980). In his brief plaintiff cites Penn v. Schlesinger,
- A21 -
490 F.2d 700 (Sth Cir. 1974) (en banc), cert denied, 426 US.
934 (1976), for the proposition that § 1981 creates a cause of
action against the federal government for discrimination in
employment. Penn was decided prior to the amendment of
Title VII to allow suit against the federal government under §
2000e-16. The Penn court specifically noted that the federal
government was not within the definition of employer under
the Civil Rights Act of 1964. 490 F.2d at 701, n.4. If Penn
represented the law when it was decided, it does not repre-
sent the law after Title VII was amended.
The fact that plaintiff’s Title VII claim is barred, due
to his failure to timely name the proper defendant, does noth-
ing to save his § 1981 claim. As the court noted in Eastland
y. Tennessee Valley Authority, in dismissing the Title VII
claims of ten of twelve plaintiffs for failure to timely file,
“the exhaustion and limitation requirements of [§ 2000e-
16][can] not be circumvented by bringing federal employ-
ment discrimination claims under less demanding statutes
such as § 1981.” 553 F.2d 364, 371 (Sth Cir. 1977).
According, plaintiff’s § 1981 claims are due to be dismissed.
Plaintiff failed to timely sue the proper defendant in
his Title VII action. An amendment to the complaint would
not cure this defect since any such amendment would not 7e-
late back to the date of original filing. Nor does plaintiff have
a separate cause of action under 42 U.S.C. § 1981.
Accordingly, plaintiff’s motion to amend is due to be denied,
and defendants’ motion to dismiss or alternatively for sum-
mary judgment is due to be granted.
An appropriate separate order will be entered.
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.