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

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Supreme Court, U.S.

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D 9 MAY 16 1989

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f | JOSEPH F. SPANIOL,

- ee Fg RK

In The

Supreme Court of the United States

October Term, 1988

as -—--@-—-— - -

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

THOMAS L. ROBERTS

(Counsel of Record)

BRIAN E. BATES

Pryor, CARNEY & JOHNSON,

A Professional Corporation

6200 South Syracuse Way, Suite 400

Englewood, CO 80111

Telephone: (303) 771-6200

Attorneys for Petitioner

May 15, 1989

QUESTIONS PRESENTED

After finding the 30-day filing period of 42 U.S.C.

§ 2000e-16(c) to be a statute of limitation and not a

jurisdictional time limit, did the majority opinion below

misapprehend or misapply prior decisions of this Court

and cause a split of authority among the Circuits concern-

ing equitable tolling of the 30-day period when a Title VII

plaintiff moves for appointment of counsel and in forma

pauperis status or is proceeding in forma pauperis and

relies on officers of the court to serve process pursuant to

28 U.S.C. § 1915(c)?

Does the “sue and be sued” clause of 39 U.S.C.

§ 401(1) permit a Title VII plaintiff to bring an action

against the Postal Service in its name, notwithstanding

the requirement of 42 U.S.C. § 2000e-16(c) that the head

of the agency is the proper party defendant?

TABLE OF CONTENTS

Page

QUESTIONS PRESENT GG: « .sc00cs 5 eevee eee eee i

COPIES BEI. 63 bok ci eee 1

Fis ER E.SUN 8-95 d sven Vea ee ee eee 2

STATUTORY PROVISIONS INVOLVED............. 2

SIATEMENT OF "THe CAGE... ...cs00e eee eee 2

REASONS FOR GRANTING THE WRIT ........... 6

I. The Decision Below Conflicts with the Tolling

Rule Articulated by this Court and Conflicts with

Other Circuit Court Decisions Which Have Held

That a Title VII Plaintiff who Moves for or has

been Granted In Forma Pauperis Status is Entitled

to Equitable Tolling of the 30-Day Filing Period of

42 USL. § 2Me-16i) | sos cave eee 6

II. This Court’s Decision in Loeffler v. Frank Inter-

preting the “Sue and be Sued” Clause of 39

U.S.C. § 401(1) Compels the Conclusion that

the United States Postal Service May be the

Named Party Defendant in a Title VII Action

Notwithstanding the Provisions of 42 U.S.C.

§ 20000 1OC) oo. cies ca ee 13

CONCLUSION

Si a NS I

lil

TABLE OF CONTENTS - Continued

Page

APPENDIX A

(Opinion of the Court of Appeals for the Tenth

Circuit in Johnson v. U. S. Postal Service, 861 F.2d

a ES 0) | cr App. 1

APPENDIX B

(Memorandum Opinion and Order of the Dis-

trict Court for the District of Colorado in John-

son v. U.S. Postal Service, 113 F.R.D. 73 (D. Colo.

i sa Kb cee ncadavev cas App. 35

TABLE OF AUTHORITIES

Page

CASsEs:

Baldwin County Welcome Center v. Brown, 466 U.S.

147, 104 S.Ct. 1723, 80 L.Ed. 2d 196 (1984)..... b, 9, 11

Boddy v. Dean, 821 F.2d 346 (6th Cir. 1987).......... 7

Carlile v. South Routt School Dist. RE 3-J, 652 F.2d

eis aie > Dbl tamale tyme! PIA AR NE ety aA fy eer 8

Cooper v. United States Postal Serv., 471 U.S. 1022

CUO $i causa cwes sh CONSE Mbetyeeey eee weer 7

Cooper v. United States Postal Serv., 740 F.2d 714

(9th Cir. 1984), cert. denied, 471 U.S. 1022, 105

GR, Meee GD LE. Bee DEO CIP acc ie etc n cena es 7

FHA v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed.

FR RISEN cee Sa KNE REAM ARK PRE EER Ronee ee 14, 15

Franchise Tax Board of California v. U.S.P.S., 467

U.S. 512, 104 S.Ct. 2549, 81 L.Ed. 2d 446 (1984).... 13

Gonzales v. Secretary of the Air Force, 824 F.2d

392 (5th Cir. 1987), cert. denied, = US. _,

108 S.Ct. 1245, 99 L.Ed. 2d 443 (1988)........... 7, 16

Harris v. Walgreen’s Distribution Center, 456 F.2d

Pe AM i ROR ack orcad etka eras ek Ve sao re en eas 8

Hornsby v. United States Postal Serv., 787 F.2d 87

Ge Re OE ese ok ce we Voc kee ek ere on rahe eee 7

Library of Congress v. Shaw, 478 U.S. 310, 106

AL. Seay We Ld ER DO CISORK oi 5c ec ew es ccsus iZ

Loeffler v. Frank, 486 U.S. _, 108 S.Ct. 1965, 100

Leta. 20E SOP CIGBS) «ww cc. cs cccancce 13, 34, 15, 16, 17

TABLE OF AUTHORITIES - Continued

Page

Martinez v. Orr, 738 F.2d 1107 (10th Cir. 1984).... 7, 9, 11

Milam v. United States Postal Serv., 674 F.2d 860

40): Be ao. > 5 Regemenpae sete rye ner rarer ra. eee 7

Mondy v. Secretary of the Army, 845 F.2d 1051

eles Se, | oe reer ee rT er Veet Te ey re Pe ee

Paulk v. Dept. of the Air Force, 830 F.2d 79 (7th

ee SED oa eke e kee CR eee ee 4, 3;

Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379,

Pt E.2e WO CPG. cao oxcy cs os ieee 5. 9, 12, 16

Simms v. Heckler, 725 F.2d 1143 (7th Cir. 1984) ...7, 10

Stuckett v. United States Postal Serv., 469 U.S. 898

OOS cu cea weeaee ele tedt ete 8

Travelers Indemnity Co. v. United States ex rel.

Construction Specialties Co., 382 F.2d 103 (10th

CME, FPG NLU eee a aes huey ia eeu eee ewes 12

Warren v. Dept. of Army, 867 F.2d 1156 (8th Cir.

i eats ar er erry 7, 9, 10, 11

Zipes v. Trans World Airlines, Inc., 455 U.S. 385,

102 S.Ct. 1127, 71 UB. 20 258 CUSB2). «sis caees. 7

STATUTES:

BO Us REE cv cleace snc csthee ne ens cane 2

Se Rie SUE kha es ae hake areas 4, 1, 1, 12

FF As Oe hon eee ta ae ene s, i 1955 7

TABLE OF AUTHORITIES - Continued

Page

eck PNG isk iv vee cnc cces bidn wv ewin on passim

ent Wh CUNO UN es occ ea cs was veda Rea eee eek ed

RULEs:

he AD as © |) RA Sareea re i gm era 5

co ee SS SD lh | ot i ace eee or >> ms WO, ES

_—

In The

Supreme Court of the United States

October Term, 1988

JERRALD M. JOHNSON,

Petitioner,

UNITED STATES POSTAL SERVICE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The petitioner, Jerrald M. Johnson, respectfully prays

that a writ of certiorari issue to review the judgment ana

opinion of the United States Court of Appeals for the

Tenth Circuit entered in this proceeding on November 30,

1988.

OPINIONS BELOW

The majority and dissenting opinions of the Court of

Appeals are reported at 861 F.2d 1975 and appear as

Anpendix A hereto. The Memorandum Opinion and

Order of the District Court for the District of Colorado is

reported at 113 FR.D. 73 and appears as Appendix B.

JURISDICTION

Invoking federal jurisdiction under 42 U.S.C.

§ 2000e-16(c), petitioner brought suit against the Postal

Service in the District Court for the District of Coiorado.

On November 7, 1986, the District Court granted the

Postal Service’s motion to dismiss. Petitioner then

appealed to the Tenth Circuit Court of Appeals.

The judgment of the Tenth Circuit Court of Appeals

was entered on November 30, 1988. A timely petition for

rehearing and suggestion for rehearing en banc was

denied on February 15, 1989, and this petition for cer-

tiorari was filed within 90 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 1915. Proceedings in forma pauperis

process, and perform all duties in such cases. Witnesses

shall attend as in other cases, and the same remedies shall

be available as are provided for by law in other cases.

39 U.S.C. § 401. General powers of the Postal Service

The Postal Service shall have the following general

powers:

(1) to sue and be sued in its official name;

42 U.S.C. § 2000e-16. Employment by Federal

Government

action taken by a department, agency, or unit referred to

in subsection (a) of this section, or by the Equal Employ-

ment Opportunity Commission upon an appeal from a

decision or order of such department, agency, or unit ona

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 Equal Employment Oppor-

tunity Commission on appeal from a decision or order of

such department, agency, or unit untii 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 2000e-5 of this title, in which civil

action the head of the department, agency, or unit, as

appropriate, shall be the defendant.

STATEMENT OF THE CASE

The petitioner Jerrald M. Johnson was discharged on

December 30, 1983 by the Postal Service from his position

as a mail handler at the Denver (Colorado) Bulk Mail

Center.

Mr. Johnson pursued administrative remedies

through the Merit Systems Protection Board (“MSPB”)

and to the Equal Employment Opportunity Commission

(“EEOC”) contending that the reasons given for his dis-

charge (absenteeism) were false and pretextual and made

to obscure the true reason for, his termination -

discrimination based on handicap (the permanent disabil-

ity of Mr. Johnson’s right foot).

On July 13, 1985, Mr. Johnson received a “right to

sue” letter from the EEOC, and five days later, he filed in

the United States District Court for the District of Colo-

rado a motion to proceed in forma pauperis and for

appointment of counsel. Chief Judge Finesilver granted

Mr. Johnson’s motion to proceed in forma pauperis on July

22, 1985, but denied his motion for appointment of coun-

sel. On that same date, Judge Finesilver ordered the

United States Marshal to serve process in connection with

the case.

Mr. Johnson timely filed his original pro se Complaint

on August 12, 1985, naming the Postal Service — his

administrative adversary for over three years — as a

defendant. He did not, as arguably required under 42

U.S.C. § 2000e-16(c), name the Postmaster General as a

defendant.

Pursuant to Judge Finesilver’s Order and 28 U.S.C.

§ 1915, the Marshal sent the Summons and original Com-

plaint by certified mail to the United States Postal Ser-

vice, c/o E. C. Nix at 7755 E. 56th Street, Denver,

Colorado, which was received on August 16, 1985, but the

Marsha? did not serve the United States Attorney or the

Attorney General. District Court Opinion at 74; Appendix

B at App. 36.

On January 24, 1986, District Court Judge John Kane

issued an Order to Show Cause as to why service of

process was incomplete. On February 3, 1986, finding

good cause shown, Judge Kane granted a 30-day exten-

sion of time in which to perfect service. Mr. Johnson then

served the United States Attorney, the Postal Service, and

the Attorney General on February 7, 10 and 11, 1986,

respectively.

On April 1, 1986, the defendant moved to dismiss the

Complaint pursuant to Fed. R. Civ. P. 12(b) and 15(c),

asserting, among other grounds, lack of subject matter

jurisdiction based upon plaintiff's failure to name the

Postmaster General as a defendant. The court, relying

upon Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91

L.Ed.2d 18 (1986) (holding that an amendment to a Com-

plaint to name a new party will not relate back to the date

of the original filing under Fed. R. Civ. P. 15(c) if the

party to be added did not receive notice of the institution

of the civil action within the limitations period), granted

the motion to dismiss. Critical to the District Court’s

dismissal was the fact that the statutorily prescribed

defendant, the Postmaster General, did not receive notice

of the action until August 16, 1985, four days outside the

30-day time limitation for filing such actions, pursuant to

42 U.S.C. § 2000e-16(c). Under the District Court’s read-

ing of Schiavone, without timely notice to the proper

defendant, relation-back principles could not be applied,

and the Complaint could not be amended pursuant to

Fed. R. Civ. P. 15(c) in order to name the Postmaster

General.

On November 30, 1988, the Tenth Circuit Court of

Appeals, in a split two-to-one decision, affirmed the Dis-

trict Court’s dismissal of Mr. Johnson’s Complaint. While

recognizing that the 30-day time limitation imposed by 42

U.S.C. § 2000e-16(c) for filing civil actions is a limitations

period subject to the doctrine of equitable tolling, the

Circuit Court held that the doctrine was not applicable

here because the alleged inadequate service by the United

States Marshal did not rise to the level of ” ‘active decep-

tion’ sufficient to invoke the powers of equity.” Opinion

below at 1480; Appendix A at App. 13. The Circuit Court

decision also held that while Mr. Johnson relied on the

Marshal for proper service of his Complaint, he was not

“lulled into inaction by [his] past employer, state or fed-

eral agencies, or the courts.” Opinion below at 1480;

Appendix A at App. 13.

REASONS FOR GRANTING THE WRIT

The Decision Below Conflicts with the Tolling Rule

Articulated by this Court and Conflicts with Other

Circuit Court Decisions Which Have Held That a

Title VII Plaintiff whe Moves for or has been

Granted In Forma Pauperis Status is Entitled to

Equitable Tolling of the 30-Day Filing Period of 42

U.S.C. § 2000e-16(c).

In agreeing that 42 U.S.C. § 2000e-16(c) is subject to

equitable tolling,’ but refusing to toll that time period in

1 Various Circuit Courts have split on the issue as to

whether the time period at issue in this case is jurisdictional or

a statute of limitations.

(Continued on following page)

this action, the decision of the Tenth Circuit fails to follow

this Court’s directives as to circumstances which call for

the application of equitable tolling.

(Continued from previous page)

Relying principally on Zipes v. Trans World Airlines, Inc.,

455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed. 2d 234 (1982) (holding

that the 180-day filing period of 42 U.S.C. § 2000e-5(e) for suits

against private employers in Title VII actions is a statute of

limitation subject to waiver, estoppel, and equitable tolling),

most of the Circuit Courts of Appeal which have faced the

issue have determined that the 30-day period of 42 U.S.C.

§ 2000e-16(c) is a limitations period subject to equitable tolling

in appropriate circumstances. See, Warren v. Dept. of Army, 867

F.2d 1156, 1159 (8th Cir. 1989); Mondy v. Secretary of the Army,

845 F.2d 1051, 1057 (D.C.Cir. 1988); Boddy v. Dean, 821 F.2d 346,

349-50 (6th Cir. 1987); Hornsby v. United States Postal Serv., 787

F.2d 87, 89 (3d Cir. 1986); Martinez v. Orr, 738 F.2d 1107, 1110

(10th Cir. 1984); Milam v. United States Postal Serv., 674 F.2d 860,

862 (11th Cir. 1982).

Other circuits have held that the 30-day period is jurisdic-

tional, largely because as an express waiver of sovereign

immunity it must be construed narrowly. See, Gonzales v. Secre-

tary of the Air Force, 824 F.2d 392 (Sth Cir. 1987), cert. denied, __

U.S. __, 108 S.Ct. 1245, 99 L.Ed. 2d 443 (1988); Cooper v. United

States Postal Serv., 740 F.2d 714, 715-16 (9th Cir. 1984), cert.

denied, 471 U.S. 1022, 105 S.Ct. 2034, 85 L.Ed. 2d 316 (1985);

Simms v. Heckler, 725 F.2d 1143, 1145 (7th Cir. 1984).

The Seventh Circuit subsequently created a hybrid rule,

holding that the filing period prescribed by § 2000e-16(c) is

jurisdictional, but such period is nevertheless tolled during the

pendency of an in forma pauperis petition. Paulk v. Dept. of the

Air Force, 830 F.2d 79, 81-83 (7th Cir. 1987).

On at least two prior occasions, this Court has declined to

resolve this split. See, Cooper v. United States Postal Serv., 471

U.S. 1022 (1985) (White, J., dissenting from denial of certiorari);

(Continued on following page)

In Baldwin County Welcome Center v. Brown, 466 U.S.

147, 104 S.Ct. 1723, 80 L.Ed. 2d 196 (1984) (per curiam),

this Court examined various circumstances in which

equitable tolling would be appropriate and perhaps

required. Although the Court ultimately reversed the

Eleventh Circuit’s application of equitable tolling under

the facts in Baldwin County, this Court cited with approval

several Circuit Court decisions which had properly

applied the doctrine of equitable tolling. The Baldwin

County opinion suggested that the following circum-

stances justify application of equitable tolling:

[W]here a motion for appointment of counsel is

pending and equity would justify tolling the statu-

tory period until the motion is acted upon, see, Harris

v. Walgreen’s Distribution Center, 456 F.2d 588 (6th Cir.

1972); or where the Court has led the plaintiff to

believe she had done everything required of her, see,

Carlile v. South Routt School Dist. RE 3-J, 652 F.2d 981

(10th Cir. 1981).

Baldwin County, 466 U.S. at 151. Of course, combined with

his motion to proceed in forma pauperis Mr. Johnson

simultaneously moved for appointment of counsel. Had

either the District Court or the Circuit Court followed the

tolling rule of Baldwin County, the certified mailing to the

Postal Service would have fallen within the 30-day limita-

tions period of § 2000e-16(c). This distinction is especially

critical here, since the District Court indicated that if

(Continued from previous page)

Stuckett v. United States Postal Serv., 469 U.S. 898 (1984) (White,

J., joined by Rehnquist, J., dissenting from denial of certiorari).

Acceptance of Certiorari here could lead to resolution of this

division of authority among the Circuits.

timely, the certified mailing to the Postal Service would

have satisfied the notice requirement of Fed. R. Civ. P.

15(c). District Court Opinion at 76; Appendix B at App.

40. Furthermore, the District Court indicated that under

such circumstances, it would have permitted Mr. Johnson

to amend his Complaint to name the Postmaster General

and would have allowed that amendment to “relate-

back” to the date of original filing within the require-

ments of Fed. R. Civ. P. 15(c) and Schiavone v. Fortune, 477

U.S. 21, 106 S.Ct. 2379, 91 L.Ed. 2d 18 (1986). District

Court Opinion at 76; Appendix B at App. 40.

Shortly after this Court decided Baldwin County, the

Tenth Circuit Court of Appeals decided a case involving a

Title VII plaintiff who was proceeding against his former

federal employer. In that case, the Tenth Circuit held:

[T]he time limits contained in Title VII will be tolled

only where the circumstances of the case rise to a

level of “active deception” sufficient to invoke the

powers of equity. (Citation omitted). For instance,

equitable tolling may be appropriate where a plaintiff

has been “lulled into inaction by her past employer,

state or federal agencies, or the courts.”

Martinez, 738 F.2d at 1110 (citations omitted).

While the decision below properly recognized that

§ 2000e-16(c) is subject to equitable tolling, it nevertheless

found, simply, that Mr. Johnson’s was “not an appropri-

ate case for equitable tolling.” Opinion below at 1480;

Appendix A at App. 13. That holding is in direct conflict

with decisions of the District of Columbia, Seventh, and

Eighth Circuits in cases which are factually similar to this

case. See, Warren, 867 F.2d at 1159-61; Mondy, 845 F.2d at

1057; Paulk, 830 F.2d at 82-83.

For example, the Seventh Circuit has apparently

adopted a per se rule that the 30-day limitation period of

42 U.S.C. § 2000e-16(c) will be tolled during the pendency

of a petition to proceed in forma pauperis. Paulk, 830 F.2d

at 82-83. Interestingly, that rule applies notwithstanding

that the Seventh Circuit considers § 2000e-16(c) to be

jurisdictional and not a statute of limitation. Simms, 725

F.2d at 1146. The Seventh Circuit has found that the delay

in determining an in forma pauperis petition is:

fully expectable due to [the Seventh] Circuit’s rule

that the district judge may consider whether the com-

plaint is frivolous or malicious before granting leave

to proceed in forma pauperis under § 1915(a) and

authorizing issuance of the summons and service of

the complaint. .. . The delay in deciding to grant this

motion could easily consume the thirty-day limita-

tions period and make impracticable the filing of in

forma pauperis petitions in such suits. Tolling the lim-

itations period during the pendency of such a

motion, even when the federal government is the

defendant, allows 28 U.S.C. § 1915 and Rule 15(c) to

operate harmoniously, instead of denying the bene-

fits of the 1966 Amendment of Rule 15(c) to the very

plaintiffs who are most likely to need it.

Paulk, 830 F.2d at 82-83 (citations omitted).

Applying the same rationale, the Eighth Circuit con-

cluded that equitable tolling ought to apply during the

pendency of a plaintiff’s in forma pauperis petition, which

was ultimately denied. Warren, 867 F.2d at 1160. In War-

ren, as in this action, the plaintiff was lulled into inaction

or mistaken action by language of the right-to-sue letter,

which indicated that all that was required for the plaintiff

to preserve his right to sue was the filing of a complaint

within 30 days. Additionally, in Warren, plaintiff’s motion

to proceed in forma pauperis was actually pending for 32

days. Relying on Baldwin County, and Martinez, the Eighth

Circuit in Warren concluded that the 30-day period of 42

U.S.C. § 2000e-16(c) ought to be tolled under such

“unusual” and “peculiar” circumstances. Warren, 867 F.2d

at 1160-61.

In a case involving somewhat similar circumstances,

the District of Columbia Circuit tolled the 30-day limita-

tions period of § 2000e-16(c) because the United States

Marshal delayed service of the Complaint until some four

months following its filing. Mondy, 845 F.2d at 1052.

Under those circumstances, the court noted that the equi-

ties weighed in favor of the plaintiff and that fairness

demanded that the time limit be tolled. Circuit Judge

McKay adhered to this position in his dissenting opinion

below, stating:

Applying the tolling rule expounded in Baldwin

County, as well as our own precedent, it is clear that

the limitations period should be tolled in this case.

Once it granted Mr. Johnson’s in forma pauperis peti-

tion, the court, through the U.S. Marshal’s Office,

was required by federal law to properly serve defen-

dants. Nothing more was expected of, or could have

been done by, Mr. Johnson. A reasonable person in

Mr. Johnson’s position would have understood that

the court’s Order, by its terms, provided that his

complaint would be properly served in a timely man-

ner.«Unquestionably, Mr. Johnson was “lulled into

inaction” by his reasonable reliance on the process

authorized by statute and implemented by officers of

the court.

.... However, 29 U.S.C. § 1915(c) instructs that “[t]he

officers of the court shall issue and serve all process,

and perform all duties” in this type of case. In my view,

the plain language of section 1915(c) imposes a spe-

cial duty upon officers of the court to assist impecu-

nious and generally unsophisticated plaintiffs to

navigate safely through the procedural maze created

by applicable statutes and rules.

Opinion below at 1486; Appendix A at App. 26-27

(McKay, J. dissenting) (emphasis in original).

Mr. Johnson expected and relied upon the United

States Marshal to comply with the terms enunciated in

the statute which instruct that the officers of the court

shall “perform al! duties in such cases.” 28 U.S.C.

§ 1915(c). Tolling the limitations period during the pen-

dency of the in forma pauperis motion or from the time the

complaint is filed until such time it is served by the

officers of the court, consistent with their duties and

responsibilities under 28 U.S.C. § 1915(c), permits both

§ 1915(c) and Fed.R.Civ.P. 15(c) to operate harmoniously

toward the ends of fair play and substantial justice.?

2 Petitioner recognizes that equitable tolling of

§ 2000e-16(c) would allow him to proceed with his lawsuit and

name the Postmaster General as the proper party defendant

and have it relate back to the filing of the original Complaint,

only if the so-called “identity-of-interest” exception operates.

Under the “identity-of-interest” exception, recognized by this

Court in Shiavone, “ ‘an amendment that substitutes a party in

a complaint after the limitations period has expired will relate

back to the date of the filing of the original complaint’ if the

‘correct’ defendant is sufficiently identified with the

improperly-named party. 477 U.S. at 28 and n.7, 106 S.Ct. at

2384 and n.7 (citing Travelers Indemnity Co. v. United States ex

rel. Construction Specialities Co., 382 F.2d 103 (10th Cir. 1967)).”

Opinion bclow at 1487; Appendix A at App. 30, (McKay, J.,

dissenting).

Il.

This Court’s Decision in Loeffler v. Frank Interpret-

ing the “Sue and be Sued” Clause of 39 U.S.C.

§ 401(1) Compels the Conclusion that the United

States Postal Service May be the Named Party

Defendant in a Title VII Action Notwithstanding

the Provisions of 42 U.S.C. § 2000e-16(c).

Under the 1970 Postal Reorganization Act, 39 U.S.C.

§ 401, which created the Postal Service, Congress

empowered the Service “to sue and be sued in its official

name.” 39 U.S.C. § 401(1) (emphasis added). This Court

has held that this “sue and be sued” clause must be

liberally construed and that liability of the Postal Service

must be presumed to be the same as that of any other

business. Frarchise Tax Board of California v. U.S.P.S., 467

U.S. 512, 517-20, 104 S.Ct. 2549, 81 L.Ed. 2d 446 (1984). In

this Court’s recent decision, Loeffler v. Frank, 486 U.S. __,

108 S.Ct. 1965, 100 L.Ed. 2d 549 (1988), holding that an

interest award against the Postal Service in a Title VII

action was appropriate given the specific yet broad

waiver of sovereign immunity codified in the “sue and be

sued clause,” this Court stated:

By launching “the Postal Service into the commercial

world,” and including a sue-and-be-sued clause in its

charter, Congress has cast off the Service’s “cloak of

sovereignty” and given it the “status of a private

commercial enterprise.”

Loeffler, 486 U.S. at __, 108 S.Ct. at 1970, 100 L.Ed. 2d at

558, quoting Library of Congress v. Shaw, 478 U.S. 310, 317,

n.5, 106 S.Ct. 2957, 92 L.Ed. 2d 350 (1986).

When Congress chooses to waive sovereign immu-

nity of certain federal entities at their inception, by

including a “sue and be sued” clause in the original

enabling legislation, the waiver although specific is quite

broad, and is to be construed liberally. As the Court

explained in FHA v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84

L.Ed. 724 (1939):

[S]uch waivers by Congress of governmental immu-

nity . . . should be liberally construed. . . . Hence,

when Congress establishes such an agency, autho-

rizes it to engage in commercial and business trans-

actions with the public, and permits it to “sue and be

sued,” it cannot be lightly assumed that restrictions

on that authority are to be implied. Rather if the

general authority to “sue and be sued” is to be

delimited by implied exceptions, if must be clearly

shown that certain types of suits are not consistent with

the statutory or constitutional scheme, that an implied

restriction of the general authority is necessary to

avoid grave interference with the performance of a

governmental function, or that for other reasons it

was plainly the purpose of Congress to use the “sue

and be sued” clause in a narrow sense. In the absence

of such showing, it must be presumed that when

Congress launched a governmental agency into the

commercial world and endowed it with authority to

“sue and be sued,” that agency is not less amenable

to judicial process than a private enterprise under

like circumstances would be.

Burr, 309 U.S. at 245 (footnote omitted) (emphasis added).

This Court notes in Loeffler that Title VII does not

purport in any way to limit or narrow the waiver of

sovereign immunity of entities subject to “sue and be

sued” clauses. Loeffler, 486 U.S. at __, 108 S.Ct. at 1972,

100 L.Ed. 2d at 560. It is axiomatic, then, that the require-

ments of 42 U.S.C. § 2000e-16(c) to the effect that the head

of the agency, department, or unit must be the named

—

defendant cannot limit the more specific waiver of sover-

eign immunity contained in 39 U.S.C. § 401(1). Accord-

ingly, although Title VII creates the cause of action for

discrimination against federal employees in their employ-

ment, the requirement that the head of the agency, or in

this case the Postmaster General, be the named defendant

does not apply in cases involving the Postal Service given

the more specific statutory provision that the Postal Ser-

vice can sue and be sued in its own name. 39 U.S.C.

§ 401(1). Indeed, the Postmaster General in Loeffler raised

the inverted argument that prejudgment interest could

not be awarded against the Postal Service, the proper

party under 39 U.S.C. § 401(1), because the petitioner had

named the Postmaster General as the defendant. The

Court explicitly rejected this argument while noting that

such a distinction amounted to exultation of form over

substance:

Respondent also seeks comfort from the concededly

technical distinction that this suit, in accordance with

the provisions of § 717(c) of Title VII, 42 USC

§ 2000e-16(c), named the head of the Postal Service as

defendant, while § 401(1) of the Postal Reorganiza-

tion Act, 39 USC § 401(1), makes the Postal Service

amenable to suit “in its official name.” In FHA v.

Burr, 309 US, at 249-250, 84 LEd 724, 60 SCt 488,

however, we found such a distinction between a suit

against the head of an agency and a suit against the

agency itself irrelevant to the force of a “sue-and-be-

sued” clause. In Burr, the “sue-and-be-sued” clause

in § 1 of the National Housing Act, 48 Stat 1246, as

amended by § 344 of the Banking Act of 1935, 49 Stat

722, applied to the Administrator of the Federal

Housing Authority acting in his official capacity. The

Court concluded that this waiver of sovereign immu-

nity permitted actions against the Authority itself,

because under the terms of the Act, all the powers of

the Authority were exercised through the Adminis-

trator. This case presents the inverse situation: the

“sue-and-be-sued” clause authorizes suits against the

agency, and the defendant before the Court is the

head of the agency acting in his official capacity.

However, the same logic applies. Whenever the head

of the Postal Service acts in his official capacity, he is

acting in the name of the Postal Service. Thus, here,

as in Burr, the acts of the named defendant are always

chargeable as acts of the person or entity subject to the

sue-and-be-sued clause. We therefore are not persuaded by

respondent's procedural distinction.

Loeffler, 486 U.S. at__, 108 S.Ct. at 1973 n.8&, anc 100 L.Ed.

2d at 562 n.8 (emphasis added).

Thus, this Court has held that, at least in the context

of the Postal Service which operates pursuant to a “sue

and be sued” clause, the distinction between the head of

the agency and the agency itself is nothing more than a

“technical distinction,” a “procedural distinction.”

Indeed, in terms of the requirements of Shiavone, this

distinction has been similarly viewed as a matter of form

over substance, in tnat the head of the agency and the

agency itself are functionally identical for purposes of

Title VII claims. See, Opinion below at 1488, Appendix A

at App. 31-32 (McKay, I., dissenting); Gonzales, 824 F.2d at

398-99 (Brown, J., dissenting).

It is not surprising that the Postmaster General in

Loeffler attempted to draw a distinction between the

named defendant with respect to the prejudgment inter-

est issue, since he has been so successful with the

inverted argument, made both in this case and in

numerous other cases. Opinion below at 1488 n.12:

Appendix A at App. 33 n.12, and cases cited therein.

This ¢ r compels the conclu

sion that, at | the U.S. Postal Service,

which can “sue a} n its official name”, the

distinction between t tal Service and the Postmaster

General is a mere technical distinction and cannot deteat

Mr. Johnson's Title VII claim given the specific language

of 39 U.S.C. § 401(1), notwithstanding the procedural

requirements of 42 U.S.C. § 2000e-16(c). Although the

waiver of sovereign immunity contained in 39 U.S.C

§ 401(1) is much broader than the narrow waiver con

tained in 42 U.S.C. § 2000e-16(c), it is also much more

specific than the general waiver contained in

S/vyvvey 7 .

200V0e-16(c)

CONCLUSION

Under the prior decisional law of this Court and

consistent with the other Circuit Courts facing the issue

equitable tolling of the limitations period is required in

this case, consistent with notions of fair play, substantial

ustice, and the public policy underlying the remedial

nature of Title VII. Further, in light of the “sue and be

sued” clause of 39 U.S.C. § 401(1), Mr. Johnson should

have been permitted to proceed with his Title VII action

against the Postal Service, despite his failure to comply

with the procedural technicality of naming the Postmas

ter General as a defendant

For the reasons set forth above petitioner

respectfully requests that his petition for writ of certiorari

to the U.S. Court of Appeals for the Tenth Circuit be

granted.

Respectfully submitted,

THOMAS L. ROBERTS

(Counsel of Record)

BRIAN E. BATES

Pryor, CARNEY & JOHNSON,

A Professional Corporation

6200 South Syracuse Way,

Suite 400

Englewood, CO 80111

Telephone: (303) 771-6200

Attorneys for Petitioner

DATED THIS 15TH DAY OF MAY 1989.

App. 1

APPENDIX A

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JERRALD M. JOHNSON,

Plaintiff-Appellant, No. 86-2780

(Filed Nov. 30, 1988)

(Rehearing Denied

Feb. 15, 1989)

UNITED STATES POSTAL

SERVICE,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLORADO

(D.C. No. 85-K-1900)

Brian E. Bates (Thomas L. Roberts, of Pryor, Carney and

Johnson, A Professional Corporation, of Englewood, Col-

orado, with him on the brief), of Pryor, Carney and

Johnson, A Professional Corporation, of Englewood, Col-

orado, for the Plaintiff-Appellant.

Jerry R. Atencio (Robert N. Miller, United States Attor-

ney, and Colleen L. Conlin, Assistant U.S. Attorney, of

Denver, Colorado, with him on the brief), Assistant U.S.

Attorney, of Denver, Colorado, for the Defendant-

Appellee.

Before McKAY, McWILLIAMS, and TACHA, Circuit

Judges.

TACHA, Circuit Judge.

App. 2

This appeal is from a grant of summary judgment in

favor of defendant on the grounds of lack of jurisdiction.

The issue on appeal is whether the federal rules allow the

plaintiff to amend his complaint in order to correct a

failure to name or serve the correct party defendant

within the statutory limitations period. Because we hold

that the federal rules do not so allow, we hold that the

action should be dismissed for failure to state a claim.!

We affirm.

On December 30, 1983, the plaintiff, Mr. Johnson, was

discharged from his position as a mail handler at the

Denver Bulk Mail Center. The United States Postal Ser-

vice cited his unauthorized absences from work as the

reason for the dismissal. Mr. Johnson alleges, however,

that the actual reason for the action was the permanent

disability of his right foot.

Mr. Johnson pursued his administrative appeal

through the available channels. On July 13, 1985, he

received from the Equal Employment Opportunity Com-

mission (EEOC) a letter informing him that he had thirty

days from the receipt of the letter to file a civil action in

1 The district court held that the plaintiff was unable to

amend his complaint to name the proper party, and that the

action therefore should be dismissed for lack of subject matter

jurisdiction. Johnson v. United States Posial Serv., 113 F.R.D. 73,

77 (D. Colo. 1986). Here, the proper grounds for dismissal

based on inability to amend a complaint naming an improper

party is failure to state a claim upon which relief can be

granted. We treat the dismissal by the district court as such a

dismissal.

App. 3

federal district court. On July 18, 1985, Mr. Johnson filed

with the district court a motion to proceed in forma

pauperis and for appointment of counsel. Four days later

the plaintiff was granted his motion to proceed in forma

pauperis but was denied his motion for appointment of

counsel. Johnson v. United States Postal Serv., 113 F.R.D. 73,

74 (D. Colo. 1986).

On August 12, 1985, Mr. Johnson timely filed his

complaint under Title VII of the Civil Rights Act of 1964,

naming as defendants the United States Postal Service

and “The Mailhandlers Local 321.” The district court

subsequently dismissed Mr. Johnson’s claim against the

union. Id. That dismissal is not appealed. Because Mr.

Johnson was proceeding in forma pauperis, the U.S. Mar-

shal was ordered by the court to serve the summons and

complaint. The U.S. Marshal served the U.S. Postal Ser-

vice by certified mail, the summons and complaint being

received on August 16, 1985. No service was made upon

the United States Attorney for the federal district or upon

the Attorney General of the United States, as required by

Fed. R. Civ. P. 4(d)(5) and Fed. R. Civ. P. 4(d)(4).

On January 24, 1986, the district court issued an

order to show cause why service of process was still

incomplete. Mr. Johnson, now represented by counsel,

showed sufficient cause for failing to have perfected ser-

vice within the 120-day time limit of Fed. R. Civ. P. 4(j),

and the court granted the plaintiff thirty days in which to

perfect service. Johnson, 113 F.R.D. at 74. The plaintiff

then served the U.S. Attorney, the U.S. Postal Service, and

the Attorney General. Mr. Johnson also filed a second

amended complaint alleging discrimination in employ-

ment on the basis of a physical handicap.

App. 4

The U.S. Postal Service moved to dismiss the action

for lack of subject matter jurisdiction, failure of capacity

of defendant to be sued, insufficiency of service, and

inability to substitute the proper defendant. The district

court held that, because the plaintiff had not served or

named the correct party defendant, and was unable

under the federal rules to amend his complaint to name

the proper party, the action should be dismissed for lack

of subject matter jurisdiction. Id. Mr. Johnson appeals.

IT.

When reviewing a grant of summary judgment, we

must ordinarily determine whether any genuine issue of

material fact remains and, if not, whether the district

court correctly applied the law. Franks v. Nimmo, 796 F.2d

1230, 1235 (10th Cir. 1986). Here, however, the grant of

summary judgment was based solely upon compliance or

noncompliance with the federal rules of civil procedure

and there were no material factual disputes. The judg-

ment turns entirely upon legal issues. We therefore

employ a de novo standard of review. Carey v. United

States Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987).

The plaintiff brought this action, in his initial com-

plaint, under section 706 of Title VII of the Civil Rights

Act of 1964 as amended, 42 U.S.C. § 2000e-5,2 and, in his

2 Although the plaintiff’s action perhaps is better charac-

terized as having been brought under § 717 of Title VII of the

Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-16, see

42 U.S.C. § 2000e-16(c) (stating that federal employee who

(Continued on following page)

App. 5

second amended complaint, under sections 504 and 505

of the Rehabilitation Act of 1973 as amended, 29 U.S.C.

§§ 794, 794a. Employment discrimination actions filed by

employees of the U.S. Postal Service under Title VII are

controlled by 42 U.S.C. § 2000e-16(c). This statute sets a

thirty-day limitations period for filing claims and estab-

lishes that, in such civil actions, “the head of the depart-

ment, agency, or unit, as appropriate, shall be the

defendant.” 42 U.S.C. § 2000e-16(c).

In its present form, the Rehabilitation Act of 1973

does provide for a private cause of action against the

federal government for employment discrimination based

on handicap. We agree, however, with the Ninth Circuit

that under the Rehabilitation Act, “section 501 is the

exclusive remedy for discrimination in employment by

the Postal Service on the basis of handicap.” Boyd v.

United States Postal Serv., 752 F.2d 410, 413 (9th Cir. 1985).

Section 501 - not section 504, under which the plaintiff

has brought this action - provides for a private cause of

action for federal employees. “ ‘[I]t is unlikely that Con-

gress, having specifically addressed employment of the

handicapped by federal agencies (as distinct from

employment by recipients, themselves nonfederal, of fed-

eral money) in section 501, would have done so again a

(Continued from previous page)

meets criteria of section “may file a civil action as provided in

section 2000e-5 of this title”), the distinction is without conse-

quence for the present case. Clearly, an employment discrimi-

nation action filed by a federal employee under Title VII must

meet the procedural requirements of 42 U.S.C. § 2000e-16(c).

The plaintiff, furthermore, was allowed to file a second

amended complaint that more properly brought the action

under the Rehabilitation Act of 1973.

App. 6

few sections later in section 504.’ ” Id. (quoting McGuin-

ness v. United States Postal Serv., 744 F.2d 1318, 1321 (7th

Cir. 1984)).

Moreover, section 505(a), 29 U.S.C. § 794a(a), pro-

vides the lens that makes section 501, 29 U.S.C. § 791,

clear procedurally.? Section 505(a)(1) provides that an

action brought under section 501 operates under the pro-

cedural constraints of Title VII of the Civil Rights Act of

1964. 29 U.S.C. § 794a(a)(1). This means that such actions

are subject to 42 U.S.C. § 2000e-16(c)’s requirement of

naming “the head of the department, agency, or unit” as

the defendant. 42 U.S.C. § 2000e-16(c). If Mr. Johnson had

3 Section 505(a) provides that:

(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 application 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 fash-

ioning an equitable or affirmative action remedy under

such section, a court may take into account the reasonable-

ness of the cost of any necessary work place accommoda-

tion, and the availability of alternatives therefor or other

appropriate relief in order to achieve an equitable and

appropriate remedy.

(2) The remedies, procedures, and rights set forth in

title VI of the Civil Rights Act of 1964 shall be available to

any person aggrieved by any act or failure to act by any

recipient of Federal assistance or Federal provider of such

assistance under section 794 of this title.

29 U.S.C. § 794a(a).

App. 7

brought this action under section 501, he would not have

escaped the procedural constraints of Title VII. We hold,

furthermore, that only section 501 provides a private

cause of action for federal employees bringing an action

alleging employment discrimination based on handicap.*

IT.

Mr. Johnson, therefore, must meet the clear statutory

requirements of 42 U.S.C. § 2000e-16(c). His right of

action is subject to the statute’s thirty-day limitations

period, and he must proceed against the head of the U. S.

Postal Service. Here, the proper defendant — the Postmas-

ter General - was never named or served. The only possi-

ble avenue for the plaintiff, therefore, is the federal rules’

provision that, under certain situations, allows the rela-

tion back of amended pleadings, Fed. R. Civ. P. 15(c).

4 Although this holding puts us at odds with the Fifth and

Sixth Circuits, the position of those circuits would render the

same end result for this plaintiff. The Fifth and Sixth Circuits

have held that both § 501 and § 504 provide for a private cause

of action by federal employees for employment discrimination

based on handicap. Smith v. United States Postal Serv., 742 F.2d

257, 260 (6th Cir. 1984); Prewitt v. United States Postal Serv., 662

F.2d 292, 304 (5th Cir. Unit A Nov. 1981). Those circuits, how-

ever, have held that Title VII procedural constraints are appli-

cable to a plaintiff that does proceed with a federal

employment handicap discrimination action under § 504. See

Smith, 742 F.2d at 260, 262; Prewitt, 662 F.2d at 304. Following

that procedural principle, such a plaintiff would be required to

abide by all the requirements of 42 U.S.C. § 2000e-16(c), includ-

ing its designation of the agency head or unit head as the

proper defendant and its 30-day limitations period. These are

the very requirements that prove fatal to Mr. Johnson’s case.

App. 8

Rule 15(c) provides that:

Whenever the claim or defense asserted in the

amended pleading arose out of the conduct, transac-

tion, 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 amend-

ment 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 a 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 United States Attorney’s designee,

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

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.

Fed R. Civ. P. 15(c). The rule has a history of producing

interpretative problems for the courts, see Cooper v. United

States Postal Serv., 471 U.S. 1022, 1024 (1985) (White, J.,

dissenting from denial of certiorari) (“the Courts of

Appeals have not taken a consistent approach to this

provision”), and for that reason the Supreme Court

recently undertook a resolution of those problems, see

Schiavone v. Fortune, 477 U.S. 21, 22 (1986) (noting cer-

tiorari had been granted to resolve “apparent conflict

among the Courts of Appeals”).

App. 9

In Schiavone v. Fortune, 477 U.S. 21 (1986), the United

States Supreme Court attempted to clarify “Rule 15(c) of

the Federal Rules of Civil Procedure and its application to

a less-than-precise denomination of a defendant in com-

plaints filed in federal court near the expiration of the

period of limitations.” Id. at 22. The Schiavone Court

stated that, under rule 15(c),

{r]elation back is dependent upon four factors, all of

which must be satisfied: (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 iden-

tity, the action would have been brought against it;

and (4) the second and third requirements must have

been fulfilled within the prescribed limitations

period.

Id. at 29. There is no dispute that Mr. Johnson met the

first element of this test. Our analysis therefore focuses

upon the second, third, and fourth elements.

The plaintiffs, in Shiavone, timely filed complaints in

federal district court alleging that they had been libeled

in a cover story of Fortune magazine and naming Fortune

as the defendant. Id. at 22-23. “ ‘Fortune,’ however, is

only a trademark and the name of an internal division of

Time, Incorporated. .. .” Id. at 23. After the applicable

statute of limitations for filing had passed, but well

within the permissible period for service of process, the

plaintiffs attempted to serve Time, Incorporated’s regis-

tered agent. Id. at 23, 25. The agent refused that service.

Id. at 23. The plaintiffs then amended their complaints to

App. 10

name “Fortune, also known as Time, Incorporated” as the

defendant, and served Time, Incorporated by mail. Id.

In Schiavone, the Court held that the appellate court

had correctly affirmed the district court’s dismissal of the

compiaints. Id. at 32. Any notice that Time, Incorporated

had received of the complaint had come after the end of

the limitations period. Therefore, the fourth element of

the rule 15(c) test had not been met. See id. at 30. This

result was not altered by the fact that the initial service

was mailed one day after the statute of limitations had

run; that the initial complaint described Fortune as “a

foreign corporation having its principal offices at Time

and Life Building, Sixth Avenue and 50th Street, New

York, New York 10020”; that Fortune was an internal

division of Time, Incorporated; that the initial service was

mailed to Time, Incorporated’s registered agent; or that

the initial service, before being refused, was forwarded to

Time, Incorporated’s law department with a cover letter

indicating that the “papers were for Time, Incorporated

as publisher of Fortune.” Id. at 23, 30; id. at 34 (Stevens, J.,

dissenting). The Court remained firm in the conviction

that the “plain language” of the rule had not been met. /d.

at 30.

The Schiavone Court also addressed rule 15(c)’s

requirement that its provisions be met “within the period

provided by law for commencing the action against [the

party to be brought in].” The Court pointed out that rule

3, with its clear statement that “[a] civil action is com-

menced by filing a complaint with the court,” Fed. R. Civ.

P. 3, governs the “commencement” of an action under the

federa! rules. Schiavone, 477 U.S. at 30. Thus, although

rule 4(j) allows 120 days from the filing of a complaint for

App. 11

service of process. the requirements of rule 15(c) must be

met by the end of the limitations period for filing a

complaint; the “plain meaning of the language” of rule

15(c) is not to be changed 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.” Id.

Here, Mr. Johnson timely filed his complaint on the

day that the limitations period expired. Rule 4(j) then

allowed him 120 days from that point to perfect service.

Because Mr. Johnson was proceeding in forma pauperis,

the U.S. Marshal was directed to perfect service. The U.S.

Marshal, however, served only the named defendant -

the U.S. Postal Service - and not the Attorney General

and the U.S. Attorney, or his or her designee, as required

by rule 4. Fed. R. Civ. P. 4(d)(5); id. 4(d)(4). The district

court, however, allowed Mr. Johnson to correct these

service problems. See Johnson, 113 F.R.D. at 74.

In its current form, rule 15 addresses the issue of

relation back based on service of the Attorney General or

the U.S. Attorney in a suit against a government agency

or official. That issue was incorporated into the rule in

1966 when rule 15 was amended in response to critical

commentary, e.g., Byse, Suing the “Wrong” Defendant in

Judicial Review of Federal Administrative Action: Proposals

for Reform, 77 Harv. L. Rev. 40 (1963), and the rule was

specifically amended to address problems in suits against

government agencies or officials. That section of rule

15(c) now provides that:

The delivery or mailing of process to the United

States Attorney, or United States Attorney’s designee,

or the Attorney General of the United States, or an

App. 12

agency or officer who would have been a proper

defendant if named, satisfies the requirement[s] of

[notice without prejudice and of knowledge of mis-

take in original complaint] 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). Rule 15(c) still instructs us, however,

that these requirements must be fulfilled within the lim-

itations period for commencing an action.®

Mr. Johnson failed to meet the plain language of rule

15(c)’s clear, reformed requirements. Although the U.S.

Marshal failed to perfect service under rule 4(d), the

court allowed those problems to be corrected. Mr. John-

son’s problems arise not from inadequate service, but

from an inadequate complaint. Even if the U.S. Marshal

had correctly followed rule 4(d) at the time of Mr. John-

son’s filing and had served the Attorney General or the

U.S. Attorney, the above reformed provisions of rule 15(c)

would not have been met uniess that service had been

made on the same day as Mr. Johnson’s filing. Yet, under

rule 4, the U.S. Marshal had 120 days in which to perfect

service. In the face of such facts, there is no reason to lay

at the U.S. Marshal’s feet the blame for a mistake entirely

5 To be sure, when the Attorney General and the U.S.

Attorney were served as defendants under the plaintiff's sec-

ond amended complaint, that action, seen in the light of the

post-1966 rule 15(c), met the second and third elements of the

four-pronged Schiavone test: the elements of notice that is not

prejudicial and of knowledge of mistake in the original com-

plaint. See Schiavone v. Fortune, 477 U.S. 21, 29 (1986). Rule 15(c)

still requires, however, that those elements be met within the

limitations period: the fourth element of the Schiavone test. Id.

App. 13

precipitated by the inadequacy of the plaintiff's

complaint.

IV.

The plaintiff contends on appeal that the district

court erred in not tolling the thirty-day limitations period

based on equitable considerations. This circuit does con-

sider that “the thirty-day time limitation of section

2000e-16(c) is not jurisdictional and may be subject to

equitable tolling in appropriate cases.” Martinez v. Orr,

738 F.2d 1107, 1110 (10th Cir. 1984). After consideration of

the present facts and our circuit’s case law, we conclude,

however, that this is not an appropriate case for equitable

tolling.

The Martinez court noted that:

This circuit’s decisions have indicated that the

time limits contained in Title VII will be tolled only

where the circumstances of the case rise to a level of

“active deception” sufficient to invoke the powers of

equity. Cottrell v. Newspaper Agency Corp., 590 F.2d

836, 838-39 (10th Cir. 1979). For instance, equitable

tolling may be appropriate where a plaintiff has been

“lulled into inaction by her past employer, state or

federal agencies, or the courts.” Carlile v. South Routt

School District RE 3-], 652 F.2d 981, 986 (10th Cir.

1981); see Gonzalez-Aller Balseyro, 702 F.2d at 859.

Likewise, if a plaintiff is “actively misled,” or “has in

some extraordinary way been prevented from assert-

ing his or her rights,” we will permit tolling of the

limitations period. Wilkerson v. Siegfried Insurance

Agency, Inc., 683 F.2d 344, 348 (10th Cir. 1982); see also

Cottrell, 590 F.2d at 838.

Id. Thus, in this circuit, a Title VII time limit will be tolled

only if there has been “active deception.” Mr. Johnson has

App. 14

not been “actively misled” here and we also conclude

that he was not “lulled into inaction” in any way that

rises to the active deception standard of our circuit’s case

law.

In Carlile v. South Routt School Dist. RE 3-], 652 F.2d

981 (10th Cir. 1981), the district court told the plaintiff

explicitly that her action would be considered com-

menced as of the time of her filing a motion to proceed in

forma pauperis, a statement subsequently relied upon by

her appointed counsel. Id. at 983. This court felt obliged

to acquiesce in the district court’s unilateral extension of

the limitations period. Id. at 986. We note that in spite of

its frequent citation as a case setting forth this circuit’s

principle of equitable tolling, Carlile itself stated that it

was compelled solely by the district court’s action and

that “[iJn so doing we limit our holding specially to the

particular facts and circumstances above related.” Id.

In Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702

F.2d 857 (10th Cir. 1983), the district court clerk unam-

biguously told the plaintiff that the filing of his right-to-

sue letter would toll the Title VII limitations period until

the plaintiff had had sufficient opportunity to obtain

counsel. Id. at 859. The plaintiff, having never suc-

cessfully obtained counsel and thus proceeding pro se,

relied upon the clerk’s statement. Id. This court therefore

determined that equitable tolling was applicable to the

circumstances of that case. Id.

In Martinez, the plaintiff received a letter from the

EEOC informing him that he had the right to bring suit

within thirty days of his receipt of the letter. 738 F.2d at

1111. The letter also discussed the plaintiff’s “right to

request reopening and reconsideration by the EEOC.” Id.

The plaintiff followed the latter course of action and

App. 15

thereby missed his chance to bring suit, for the letter had

failed “to make clear that the right to sue and the right to

request reopening are distinct, independent rights, and

that an election to pursue only the latter completely

waives the former.” Id. This court concluded thai equita-

ble tolling was appropriate, for “Martinez was in fact

misled and lulled into inaction by the EEOC.” Id. at 1112.

In contrast to these cases, Mr. Johnson was not

actively misled or lulled into inaction. His failure to file

an adequate complaint was not due to a false representa-

tion by any court, agency, or putative defendant. In short,

“{a]lthough the propriety of equitable tolling must neces-

sarily be determined on a case-by-case basis,” Gonzalez-

Aller Balseyro, 702 F.2d at 859, the plaintiff’s case here

does not merit equitable tolling of the limitations period.

Finally, the relation back of some amendments has

been allowed previously under the so-called identity-of-

interest exception. See Schiavone, 477 U.S. at 28 n.7 (listing

circuit-level cases). The Supreme Court has summarized

the exception, while only adopting it arguendo, by stating

that “[tlimely filing of a complaint, and notice within the

limitations period to the party named in the complaint,

permits imputation of notice to a subsequently named

and sufficiently related party.” Id. at 29. This circuit’s case

law concerning the identity-of-interest exception has

noted, however, that the post-1966 rule 15(c) is an explicit

statement of the procedures and safeguards that make up

this exception. See Travelers Indem. Co. v. United States ex

rel. Construction Specialties Co., 382 F.2d 103, 106 (10th Cir.

1967) (“The 1966 amendment simply clarifies, by explic-

itly stating, the permissive procedure and its appropriate

safeguards which have existed under Rule 15(c) since its

promulgation.”). Regardless of whether rule 15(c) has

codified the doctrine of identity-of-interest, Mr. Johnson’s

App. 16

case fails, because he does not meet an essential require-

ment of both the rule and the doctrine: he has not given

“notice within the limitations period.”

In summary, Mr. Johnson’s attempt to amend his

complaint falls short of the requirements clearly estab-

lished by rule 15. We join those circuits which have held

that Schiavone clearly controls on facts similar to this

case. Discussing rule 15(c), the Supreme Court has

stated:

The linchpin is notice, and notice within the lim-

itations period. Of course, there is an element of

arbitrariness here, but that is a characteristic of any

limitations period. And it is an arbitrariness imposed

by the legislature and not by the judicial process.

Schiavone, 477 U.S. at 31.

The order of the district court is AFFIRMED.

6 Mondy v. Secretary of the Army, 845 F.2d 1051, 1053 (D.C.

Cir. 1988); Williams v. Army & Air Force Exch. Serv., 830 F.2d 27,

29-30 (3d Cir. 1987); Paulk v. Department of the Air Force, Chanute

Air Force Base, 830 F.2d 79, 81 (7th Cir. 1987); Gonzales v.

Secretary of the Air Force, 824 F.2d 392, 394 (5th Cir. 1987), cert.

denied, 108 S. Ct. 1245 (1988); Hymen v. Merit Sys. Protection Bd.,

799 F.2d 1421, 1422 (9th Cir. 1986), cert. denied, 107 S. Ct. 1900

(1987). Both Mondy and Paulk held that grounds existed for

equitable tolling, and the plaintiffs in those cases therefore

were allowed to amend their complaints. Mondy, 845 F.2d at

1054, 1057 (limitations period tolled during “marshal’s delay”

of service; court speaks only of 30-day “deadline” and never

mentions rule 4(j)’s 120-day service period); Paulk, 830 F.2d at

83 (limitations period tolled during pendency of in forma

pauperis motion).

App. 17

No. 86-2780 - JERRALD M. JOHNSON v. UNITED

STATES POSTAL-SERVICE

McKAY, Circuit Judge, dissenting:

The majority reads Shiavone v. Fortune, 477 U.S. 21

(1986), as dictating a broader principle than the Supreme

Court, in fact, articulated. This reading has led to what |

consider to be an erroneous analysis and result in this

case.

On December 30, 1983, the U.S. Postal Service dis-

charged Mr. Johnson from his position as a mail handler

at the Denver Bulk Mail Center. Mr. Johnson pursued

administrative review of his dismissal for approximately

eighteen months, first with the Merit System Protection

Board and later with the Equal Employment Opportunity

Commission (“EEOC”). In both fora the U.S. Postal Ser-

vice participated as the adversary party. On July 13, 1985,

Mr. Johnson received a final decision (“right-to-sue”) let-

ter from the EEOC notifying him that he had thirty days

from receipt of the letter to file a civil action in federal

district court.

Five days after receiving the “right-to-sue” letter Mr.

Johnson petitioned the district court for permission to

proceed in forma pauperis and requested appointment of

counsel. Four days later, on July 22, the court denied Mr.

Johnson’s motion for appointment of counsel but granted

the motion to proceed in forma pauperis,’ and ordered the

1 28 U.S.C. § 1915(a) (1982) provides:

Any court of the United States may authorize the

commencement, prosecution or defense of any suit, action

(Continued on following page)

App. 18

U.S. Marshal to serve the summons and complaint upon

the defendant without the prepayment of fees.” Johnson v.

United States Postal Serv., 113 F.R.D. 73, 74 (D. Colo. 1986).

Left with no option but to proceed pro se, Mr. John-

son filed his complaint? on August 12, 1985 - only

twenty-one days after the court’s decision and clearly

within the statutory period. However, two problems

arose: First, the complaint named the U.S. Postal Service

as defendant instead of the Postmaster General who, as

agency head, is the statutorily-prescribed defendant. Sec-

ond, Mr. Johnson unfortunately relied on the U.S. Mar-

shal to effect timely and proper service pursuant to the

court’s July 22 Order. This the Marshal failed to do. Asa

(Continued from-previous page)

or proceeding, civil or criminal, or appeal therein, without

prepayment of fees and costs or security therefor, by a person

who makes affidavit that he is unable to pay such costs or give

security therefor. Such affidavit shall state the nature of the

action, defense or appeal and affiant’s belief that he is entitled

to redress.

2 28 U.S.C. § 1915(c) (1982) requires the U.S. Marshals to

“issue and serve all process, and perform all duties in [in

forma pauperis] cases.”

3 There is some confusion in the record as to which section

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1982), served

as the basis of Mr. Johnson’s initial complaint. See ante at App.

4-5, & n.2. The issue is immaterial for purposes of this decision

since all parties agree that the critical operative section in this

appeal is 42 U.S.C. § 2000e-16(c). That section sets a 30-day

limitations period for bringing suit and which prescribes that

the department or agency head must be named as the

defendant.

App. 19

result, the Postal Service was not served until August 16

(three days after the thirty-day period), and neither the

U.S. Attorney’s Office nor the Attorney General was

served as required under Fed. R. Civ. P. 4(d).

Presumably due to the Marshal’s failure to effect

proper service, in January 1986 the court issued an Order

to Show Cause as to why service of process was incom-

plete. On February 3, 1986, Mr. Johnson, appearing

through counsel for the first time, satisfied his burden

and was granted a thirty-day extension in order to perfect

service. Within that time period, service of an amended

complaint was made upon the U.S. Attorney, the Attor-

ney General, and the U.S. Postal Service. Johnson, 113

F.R.D. at 74.

On April 1, 1986, the defendant moved to dismiss

pursuant to Fed. R. Civ. P. 12(b) and 15(c). On the basis of

the Supreme Court’s decision in Schiavone v. Fortune, 477

U.S. 21 (1986),4 the court granted defendant’s motion to

* In Schiavone plaintiffs sued Fortune magazine for libel

within New Jersey’s one-year statute of limitations. “Fortune,”

however, is only a trademark denoting an internal division of

Time, Incorporated. The Plaintiffs attempted to serve process

on Time’s registered agent in New Jersey, but the agent refused

service because Time was not a named defendant in the suit.

After the statutory filing period had expired, the plaintiffs

amended their respective complaints to add Time as a defen-

dant, and subsequently served process on Time. The district

court dismissed the complaint, holding that the amendment

did not relate back to the date of the original filing under Rule

15(c) because Time did not receive notice of the institution of

the libel action within the period provided by law for com-

mencing the action against it. The Supreme Court affirmed,

setting forth a four-part test for determining when “relation

back” of an amended pleading under Rule 15(c) will be permit-

ted. Schiavone, 477 U.S. 21.

App. 20

dismiss for lack of subject matter jurisdiction. Johnson, 113

ER.D. at 74-75. The court read Schiavone as requiring

dismissal because the proper defendant, the Postmaster

General, had not received notice within the thirty-day

limitations period. Absent timely notice, the complaint

could not be amended under Rule 15(c) to name the

proper party.

IT.

In this case, two issues with solid precedent in this

circuit, sister circuits, and the Supreme Court, intersect

for the first time before this court. The first issue is

whether 42 U.S.C. § 2000e-16(c) permits equitable tolling

of the applicable limitations period, especially in the case

of a pro se plaintiff proceeding in forma pauperis. The

second issue is whether Fed. R. Civ. P. 15(c) permits the

relation back of an amended complaint when there is

significant identity of interest between an improperly-

named defendant and the proper party.

A. Equitable tolling:

In Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984),

this court examined the policies underlying the limita-

tions period for actions brought under section 2000e-16(c)

and concluded “that the thirty-day time limitation of

section 2000e-16(c) is not jurisdictional and may be sub-

ject to equitable tolling in appropriate cases.” (footnote

omitted) Accord Mondy v. Secretary of the Army, 845 F.2d

1051, 1056-57 (D.C. Cir. 1988). Cf. Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 393 (1982) (holding that filing a

App. 21

timely charge of discrimination with the EEOC is not a

jurisdictional prerequisite to Title VII actions but rather

“a requirement that, like a statute of limitations, is subject

to waiver, estoppel, and equitable tolling.” (footnote

omitted)).5

° Zipes serves as the foundation on which our circuit has

based its determination that § 2000e-16(c), like § 2000e-5(f) is

limitational rather than jurisdictional, and thus subject to equi-

table tolling. See Martinez, 738 F.2d at 1109-10; accord, Mondy,

845 F.2d at 1054-55.

The Zipes Court, in turn, based its decision upon: (1)

Congress’s treatment of the time limit in a provision entirely

separate from the one that defines the jurisdiction of the

courts, 455 U.S. at 394-95; (2) legislative history. id.; (3) prior

cases reflecting an assumption that the filing requirement was

not jurisdictional, id. at 397-98; and (4) Title VII’s remedial

purpose, id. at 398.

The Court specifically set forth the analytical approach to

be used in addressing technical challenges to Title VII actions

by stating:

In Love v. Pullman Co., . . . we announced a guiding

principle for construing the provisions of Title VII. Declin-

ing to read literally another filing provision of Title VII, we

explained that a technical reading would be “particularly

inappropriate in a statutory scheme in which laymen,

unassisted by trained lawyers, iNitiate the process. Id., at

527. That principle must be applied [to the time limit in 42

U.S.C. 2000e-5(f)] as well.”

Zipes, 455 U.S. at 397.

The rationale of Zipes is not only applicable in the case

before us but also warrants the conclusion that courts should

show special solicitude in cases where pro se plaintiffs seek to

vindicate their civil rights.

App. 22

One situation specifically recognized by sister cir-

cuits as justifying the tolling of the statutory limitations

period - where a pro se plaintiff proceeds in forma pau-

peris in an action under 42 U.S.C. § 2000e-16(c) — arises in

this case. In Mondy v. Secretary of the Army, 845 F.2d 1051,

the District of Columbia Circuit recently addressed a case

almost factually indistinguishable from the one before

this court. Mondy involved a challenge under Title VII to

plaintiff's dismissal from Walter Reed Medical Center.

However, two procedural defects in commencing the

action jeopardized his suit: First, the complaint named

the wrong defendant, his activity commander, rather than

the Secretary of the Army. Second, although the com-

plaint was timely filed, the United States Marshals

delayed service for nearly four months, long past

§ 2000e-16(c)’s thirty-day deadline. 845 F.2d at 1052. Sev-

eral months after the complaint was served, the plaintiff

filed an amended complaint naming the proper

defendant.

The government sought dismissal on the ground that

plaintiff’s failure to meet the statutory limitations period

defeated the court’s jurisdiction. Jd. at 1054. Based on its

reading of Schiavone, the trial court agreed and granted

the motion to dismiss. Relying on Zipes, the District of

Columbia Circuit rejected the government’s contention

that the statute was jurisdictional. Moreover, the court

concluded that when a pro se plaintiff proceeding in

forma pauperis justifiably relies upon the U.S. Marshal to

effect service, and such service is made by the Marshal

after the statutory limitations period, equitable tolling

applies and service will be deemed timely. 845 F.2d at

1054-57.

App. 23

Even the Seventh Circuit, which, unlike our circuit,

views section 2000e-16(c)’s time limitation as jurisdic-

tional,® Sims v. Heckler, 725 F.2d 1143 (7th Cir. 1984), has

carved out an exception tolling the limitations period

during the pendency of a plaintiff’s motion to proceed in

forma pauperis. See Paulk v. Department of Air Force, 830

F.2d 79, 82-83 (7th Cir. 1987). Paulk involved the appeal of

a district court dismissal of a Title VII claim because the

plaintiff had named the U.S. Air Force as defendant

rather than Casper Weinberger, the Secretary of the Air

Force. In Paulk, as in this case, the plaintiff proceeded pro

se and in forma pauperis. Also, as in this case, in her

attempt to amend the defective complaint the plaintiff in

Paulk failed to give notice to the proper defendant within

the thirty-day period provided by section 2000e-16(c).

The district court, relying on Schiavone, dismissed the

suit. The Seventh Circuit reversed and remanded.

In reviewing the district court’s proceedings, the

Paulk court found the delay in service of a compliant

entrusted to the U.S. Marshal under 28 U.S.C. § 1915(a)

fully expectable due to this Circuit’s rule that the

district judge may consider whether the complaint is

frivolous or malicious before granting leave to pro-

ceed in forma pauperis under § 1915(a) and authoriz-

ing the issuance of the summons and service of the

® The circuits have split on the issue of whether the time

period specified in 42 U.S.C. § 2000e-16(c) is jurisdictional. See

Mondy v. Secretary of the Army, 845 F.2d 1051, 1057 (D.C. Cir.

1988) (non-jurisdictional); Hornsby v. United States Postal

Serv., 787 F.2d 87, 89 (3d Cir. 1986) (non-jurisdictional); Milam

v. United States Postal Serv., 674 F.2d 860, 862 (11th Cir. 1982)

(same). But see Cooper v. United States Postal Serv., 746 F.2d

714, 715-16 (9th Cir. 1984), cert. denied, 471 U.S. 1022 (1985)

(jurisdictional); Sims v. Heckler, 725 F.2d 1143, 1146 (7th Cir.

1984) (jurisdictional); Eastland v. Tennessee Valley Auth., 553

F.2d 364, 368 (5th Cir.), cert. denied, 434 U.S. 985 (1977) (same).

App. 24

complaint. . . . The delay in deciding to grant this

motion could easily consume the thirty-day limita-

tions period and make impracticable the filing of in

forma pauperis petitions in such suits. Telling-the lim-

itations period during the pendency of such a motion, even

when the federal government is the defendant, allows 28

U.S.C. § 1915 and Rule 15(c) to operate harmoniously,

instead of denying the benefits of the 1966 Amendment of

Rule 15(c) to the very plaintiffs who are most likely to

need it.

Id. at 82 (citations omitted) (emphasis added).”

7 The benefits to which the Paulk court refers are those

“remedial purposes” of the 1966 Amendment to Rule 15. The

Notes of the Advisory Committee on Rules explain:

The Problem [of knowing when an amendment shall

relate back to the date of the original pleading] has arisen

most acutely in certain actions by private parties against

officers or agencies of the United States. . . . In several

recent cases the claimants instituted timely action but mis-

takenly named as defendant the United States, the [federal

agency], . . . and a Secretary who had retired from the

office . . . . Discovering their mistakes, the claimants

moved to amend their complaints to name the proper

defendant; by this time the statutory [period for filing a

civil action] had expired. The motions were denied on the

ground that the amendment “would amount to the com-

mencement of a new proceeding and would not relate back

in time as to avoid the statutory provision . . . that suit be

brought within [the statutory period].

Relation back is intimately connected with the policy

of the statute of limitations. The policy of the statute

limiting the time for suit against the Secretary of [a federal

agency] would not have been offended by allowing rela-

tion back in the situation described above.

Fed. R. Civ. P. 15 (Notes, 1966 Amendment).

App. 25

This circuit observes a procedural rule for the evalua-

tion of in forma pauperis motions that is virtually identi-

cal in requirements and purpose to that in effect in the

Seventh Circuit. Therefore, it is reasonable to assume

that in this jurisdiction too, delay encountered while the

district court determines a plaintiff’s financial eligibility

under § 1915, or prepares a statement denying the plain-

tiff’s in forma pauperis motion, could consume the entire

limitations period.?

In Baldwin County Welcome Center v. Brown, 466 U.S.

147, 151 (1984) (per curiam), the Supreme Court gave

various examples of procedural unfairness that justify

equitable tolling. Among those cited was that “the court

has led the plaintiff to believe that she has done every-

thing required of her” (citing Carlile v. South Routt School

When presented with a motion for leave to pro-

ceed in forma pauperis, the district court should first

determine if the plaintiff satisfies the economic eligi-

bility requirement of 28 U.S.C. § 1915(a). If a findirg

of economic justification is made, the court should

allow the complaint to be docketed without prepay-

ment of fees.

Once leave has been granted, the district court

may, under § 1915(d), dismiss the complaint, even

prior to service of process, if it determines the com-

plaint to be frivolous or malicious.

McCone v. Holiday Inn Convention Center, 797 F.2d 853, 854

(10th Cir. 1986) (citations omitted).

° The risk is especially acute where, as in this case, the

limitations period is only thirty days long.

App. 26

District RE 3-J, 652 F.2d 981 (10th Cir. 1981)). Three

months after Baldwin County was decided, but without

citation to that case, this court held that

the time limits contained in Title VII will be tolled

only where the circumstances of the case rise to a

level of “active deception” sufficient to invoke the

powers of equity. For instance, equitable tolling may

be appropriate where a plaintiff has been “lulled into

inaction by her past employer, state or federal agen-

cies, or the courts.”

Martinez, 738 F.2d at 1110 (citations omitted) (emphasis

added).

In this case, Mr. Johnson filed his motion to proceed

in forma pauperis on July 18, 1985. The motion was granted

four days later in an Order in which the court directed

the U.S. Marshal to serve process. Unfortunately, the

Marshal did not serve the U.S. Postal Service until three

days after the limitations period had expired. Applying

the tolling rule expounded in Baldwin County, as well as

our own precedent, it is clear that the limitations period

should be tolled in this case. Once it granted Mr. John-

son’s in forma pauperis petition, the court, through the

U.S. Marshal’s Office, was required by federal law to

properly serve defendants. Nothing more was expected

of, or could have been done by, Mr. Johnson. A reason-

able person in Mr. Johnson’s posiiion would have under-

stood that the court’s Order, by its terms, provided that

his complaint would be properly served in a timely man-

ner. Unquestionably, Mr. Johnson was “lulled into inac-

tion” by his reasonable reliance on the process authorized

by statute and implemented by officers of the court.

App. 27

In determining the appropriateness of equitable toll-

ing to this case, a critical difference between the major-

ity’s position and my own is how we view the role of the

U.S. Marshal in discharging her responsibilities in in

forma pauperis cases. The majority takes the view that the

Marshal’s role is merely to serve the complaint as it is

received within the 120 days provided for by Rule 4 (j).

However, 29 U.S.C. § 1915(c) instructs that “[t]he officers

of the court shall issue and serve all process, and perform

all duties” in this type of case. In my view, the plain

language of section 1915(c) imposes a special duty upon

officers of the court to assist impecunious and generally

‘unsophisticated plaintiffs to navigate safely through the

procedural maze created by applicable statutes and rules.

In Mr. Johnson’s case, the Marshal failed to fulfill her

duty in two respects: First, she failed to serve all the

appropriate parties as required by Fed. R. Civ. P. 4(d)(4),

(5). Although the court later permitted Mr. Johnson to

cure the Marshal’s mistake, the need to employ counsel

(which plaintiff could ill afford), and to participate in a

special hearing, undoubtedly created unnecessary frus-

tration and confusion for this plaintiff. Second, the Mar-

shal failed to serve process in a timely manner. The

majority minimizes this error by pointing to Rule 4’s 120-

day time period as justifying its coiclusion that “there is

no reason to lay at the U.S. Marshal’s feet the blame for a

mistake entirely precipitated by the inadequacy of the

plaintiff’s complaint.” Ante, at App. 12-13. But what is the

basis of the supposed inadequacy? According to the

majority, it is that tiie complaint was filed on the last day

of the limitations period and plaintiff had no justifiable

reason to expect prompt service of process since the

App. 28

Marshal had a 120-day window. However, one brief

hypothetical demonstrates the fallacy of this reasoning.

Let us assume that Mr. Johnson had filed his pro se

complaint within one week of the court's denial of his

motion for appointed counsel instead of twenty-one days

later (I hasten to add that there is no evidence on the

record to suggest undue delay on Mr. Johnson's part).

Under Fed. R. Civ. P. 4(j), the Marshal would still have the

same 120 days within which to act. Thus, if reasonable

delays in the Marshal’s office prevented service from

being effected until fifteen or twenty days after the com-

plaint was filed, the Marshal would have complied with

Rule 4 but Mr. Johnson would still be out of court because

the thirty-day limitations period of 42 U.S.C.

§ 2000e-16(c) had not been met.'°

I cannot accept that this harsh result was intended by

either Congress or the courts in endeavoring to assist in

forma pauperis plaintiffs. In my view, § 1915(c)’s language

demands that the Marshal be cognizant of and act within

10 Under the majority’s analysis a plaintiff could be com-

pletely out of court even though the Marshal proceeded within

the time limit permitted by Fed. R. Civ. P. 4(j). 1 submit that

such an outcome rises to “active deception” which “in some

extraordinary way [prevents plaintiff] from asserting his or her

rights.” Under our case law, this is sufficient to permit equita-

ble tolling of the limuations period. See Wilkerson v. Siegfried

Ins. Agency, 683 F.2d 344, 348 (10th Cir. 1982); see also Martinez,

738 F.2d at 1110.

It was similar reasoning which led the Mondy court to

recognize the applicability of equitable tolling when a pro se

plaintiff proceeding in forma pauperis justifiably relies upon the

U.S. Marshal to effect service. 845 F.2d at 1054-57.

App. 29

the limitations period provided by statute in order to

effect timely service. Anything less would render nuga-

tory the statutes and rules designed to assist in forma

pauperis plaintiffs to access the courts.

Finally, the majority rejects the view that Mr. Johnson

was “lulled into inaction” or in other ways “actively

deceived” by his justifiable reliance upon court officials

and court processes. The majority draws an artificial dis-

tinction between circumstances where one party is explic-

itly told something that leads to the forfeiting of rights

and situations such as the present one where reliance ona

court order is not deemed overt enough to qualify. I

respectfully submit that there is no principled basis for

that distinction. The issue is reliance and how that reliance

is fostered, regardless of the method employed. This is

especially true when dealing with an unsophisticated

plaintiff such as Mr. Johnson.

I conclude that equity and our precedent require a

holding that, in this case, the limitations period was

equitably tolled and service upon the U.S. Postal Service

was timely. Furthermore, this circuit should adopt the

reasoning of the District of Columbia Circuit in Mondy

and the Seventh Circuit in Paulk, and hold that the limita-

tions period of 42 U.S.C. § 2000e-16(c) is equitably tolled

during the pendency of a plaintiff’s in forma pauperis

motion. Finally, the court should hold that under

§ 1915(c), U.S. Marshals must proceed within the applica-

ble limitations period (and not merely within Rule 4(j)’s

time period) in order to discharge the duty imposed by

statute.

App. 30

B. Relation-back under Rule 15(c):

The majority’s affirmance of summary judgment mis-

applies Schiavone to these facts. A proper reading of

Schiavone does not bar the plaintiff in this case from

having his day in court.

In Schiavone, the Supreme Court outlined four factors

governing the applicability of the relation-back provi-

sions of Fed. R. Civ. P. 15(e):

(1) the basic claim must have arisen out of the con-

duct 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 pre-

scribed limitations period.

477 U.S. at 29.

In this case there is no dispute that the first require-

ment is met. As for the second, our circuit has adopted,

and the Supreme Court in Schiavone recognized, the avail-

ability of an “identity-of-interest” exception “under

which an amendment that substitutes a party in a com-

plaint after the limitations period has expired will relate

back to the date of the filing of the original complaint” if

the “correct” defendant is sufficiently identified with the

improperly-named party. 477 U.S. 28 & n.7 (citing Trav-

elers Indemnity Co. v. United States ex rel. Construction

Specialties Co., 382 F.2d 103 (10th Cir. 1967)). Although the

Third Circuit in Schiavone rejected that approach, the

Supreme Court did not consider it applicable to the facts

App. 31

before it, the Court’s own language approves the applica-

tion of the exception in appropriate circumstances:

The object of the [identity-of-interest] exception is to

avoid the application of the statute of limitations

when no prejudice would result to the party sought

to be added.

Timely filing of a complaint, and notice within the

limitations period to the party named in the com-

plaint, permit imputation of notice to a subsequently

named and sufficiently related party.

477 U.S. at 28-29 (emphasis added).

In this case the district court recognized that timely

notice to the Postal Service would have provided the

Postmaster General with informal or constructive notice.

The dissenting opinion in an analogous case, Gonzales v.

Secretary of Air Force, 824 F.2d 392 (5th Cir. 1987) (Brown,

J., dissenting), states:

It is important to remember that even if the

Secretary had been the named party, he, personally,

probably never would have received notice of

Gonzales’ routine Title VII claim. The Secretary, when

sued solely in his official capacity, and the Air Force

are functionally ideiitical for purposes of this suit

and this appeal.

Whether the Air Force or some functionary in the

office of the Secretary is served, the same people at

the Department . . . will process the summons, the

same Air Force representative will appear in court,

and the same entity will shoulder the burden of loss

if Gonzales prevails.

The Air Force representatives who received the

first complaint naming “The Air Force” were, in all

App. 32

likelihood, the same people who received the

amended complaint naming “The Secretary of the Air

Force.” I cannot believe that the law tolerates such an

absurdity that the Secretary was “prejudiced” by this

mistake.

Id. at 398-99.

Consonant with our precedent which cannot be

rejected without en banc review, and the demands of

reality, this court should recognize what all parties recog-

nize, that is, the clear identity of interest which exists

between the Postmaster General and the U.S. Postal Ser-

vice. Under the circumstances in this case notice can be

properly imputed to the Postmaster General, resulting in

no prejudice to the defendant. | conclude that the second

requirement of the Schiavone test is met.!!

Schivone next requires that the proper party have had

knowledge that, but for the mistake, it would have been

named in the action. In Judge Brown’s words, this

requirement “is easily met” because “{Injo identity of

interest and shared knowledge can be posited that is any

closer than that between the [agency head] and his

11 The facts of Schiavone are distinguishable on this point.

First, in Schiavone, both parties were served after the limita-

tions period had run and, unlike the present case, no basis for

equitable tolling existed. Second, there is considerably greater

identity of interests between an agency head and his/her

agency than what normally exists between divisions operating

under a corporate umbrella or between the general corporate

organization and one (of many) internal divisions as was the

case in Schiavone.

App. 33

[agency].!2 The analysis which satisfies the second prong

of Schiavone also applies here, because the same people

who would serve as the Postmaster General’s representa-

tives participated as Mr. Johnson’s adversaries in almost

two years of administrative proceedings. Applying a rea-

sonable person test to determine whether a party “should

have known” of the mistake, the dissent in Gonzales con-

cludes that in this type of situation the third Schiavone

requirement should be satisfied. Gonzales, 824 F.2d at 399

(Brown, J., dissenting).

Finally, Schiavone requires that notice to the proper

party, and knowledge of its probable involvement in the

law suit, must occur during the prescribed limitations

12 The volume of case law on the subject indicates that

scores of plaintiffs have had their employment discrimination

claims against federal agencies dismissed for failure to name as

defendant the “head of the department, agency, or unit, as

appropriate.” 42 U.S.C. § 2000e-16(c). Many of these cases

specifically involve the Postal Service and, if one were of a

suspicious nature, one could easily conclude that the agency

(1) knows of the procedural pitfalls presented by the statutory

language, and (2) regularly relies on a plaintiff’s inadvertence

to win through procedural maneuvering what it might not be

able to secure through an adjudication on the merits. See, e.g.

Hymen v. Merit Sys. Protection Bd., 799 F.2d 1421 (9th Cir.

1986), cert. denied, 107 S. Ct. 1900 (1987); Jarrell v. United States

Postal Serv., 753 F.2d 1088 (D.C. Cir. 1985); Cooper v. United

States Postal Serv., 740 F.2d 714 (9th Cir. 1984), cert. denied, 471

U.S. 1022 (1985). See also McGuire v. Tisch, 44 FEP Cases 1497

(S.D.N.Y. 1987); Hale v. United States Posial Serv., 41 FEP Cases

1691 (N.D. Ill. 1986), aff'd without opinion, 826 F.2d 1067 (7th

Cir. 1987).

App. 34

period. Given the preceding discussion of equitable toll-

ing and the identity of interest exception, I conclude that

this element is met in this case.}3

Ill.

I believe that the majority’s characterization of

§ 2000e-16(c) and Rule 15(c) traps the unwary citizen

seeking to vindicate his civil rights. The disposition of

this case is contrary to the spirit of Title VII,14 and makes

a mockery of the intent which underlies the Federal Rules

of Civil Procedure.!5 Therefore, I respectfully dissent.

13 This analysis has relied on equitable tolling to satisfy

the requirement of notice to the appropriate parties within the

limitations period. Alternatively, the dissent in Gonzales per-

suasively argues that the harsh result in Schiavone was dictated

by the New Jersey statute’s requirement that the libel action

“commence” within the limitations period with “commence-

ment” (defined as “filing of the complaint plus service”). By

contrast, the language of § 2000e-16(c) requires only that the

suit be filed within the 30-day period, and, therefore, a different

result, although one not inconsistent with Schiavone, is

indicated.

I believe Judge Brown’s analysis in Gonzales is sound and

presents an alternative basis for finding that Mr. Johnson could

properly rely on the provisions of Rule 15(c) to correct the

technical error in naming the defendant. See Gonzales, 824 F.2d

at 396-400 (Brown, J., dissenting).

14 See Zipes, 455 U.S. at 397.

15 Rule 1 of the Federal Rules of Civil Procedure provides

that the rules “shall be construed to secure the just, speedy and

inexpensive determination of every action.

App. 35

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

CIVIL ACTION NO. 85-K-1900

JERRALD M. JOHNSON,

Plaintiff,

VS.

UNITED STATES POSTAL SERVICE,

Defendant.

MEMORANDUM OPINION AND ORDER

(Filed Nov. 7, 1986)

KANE, J.

BACKGROUND is

Defendant filed a Motion to Dismiss under F.R.Civ.P.

12(b) and Rule 15(c) for lack of jurisdiction over the

subject matter and for failure of capacity of defendant to

be sued, for insufficiency of service and for inability to

substitute the proper defendant. Plaintiff, a former postal

service employee brought this action under §§794 and

794(a) of the Civil Rights Act of 1964, Title VII alleging in

his Second Amended Complaint discrimination in

employment based on physical handicap. For the reasons

following, the motion to dismiss for inability to substitute

the proper defendant is granted.

On about December 20, 1983, the defendant dis-

charged plaintiff from his position as a mail handler.

Defendant contends the removal was due to plaintiff’s

App. 36

absence without leave. Plaintiff, on the other hand, main-

tains that he was removed solely for the reason that he

has a permanent disability in his right foot.

On July 10, 1985, the EEOC sent plaintiff a right to

sue letter informing him he had 30 days in which to file

an independent action. On July 18, 1985, plaintiff filed a

motion to proceed in forma pauperis and for appoint-

ment of counsel. Chief Judge Finesilver granted plain-

tiff’s motion on the 22nd of July and ordered the U.S.

Marshall to serve process but denied appointment of

counsel. Plaintiff filed an initial pro se complaint on

August 12, 1984, naming the United States Postal Service

and The Mail Handlers, Local 321 as defendants. The U.S.

Marshall sent a summons and complaint by certified mail

to the United States Postal'Service c/o E.C.Nix at 7755 E.

56th St., Denver, CO, which was received on August 16,

but did not serve the U.S. Attorney nor the Attorney

General as required under Rule 4(d). Plaintiff’s original

complaint, having been filed within 30 days of receipt of

the right to sue notice, was timely filed. 42 U.S.C. §2000 e

16(c).

On January 3, 1986, I dismissed plaintiff's claim

against Local 321 on defendant’s motion to dismiss for

failure to state a claim upon which relief could be

granted. After I issued an order to show cause on January

24, 1986 requesting plaintiff to address the Court as to

why service of process was incomplete, plaintiff submit-

ted (now with counsel) a response on February 3, 1986

showing cause for failure to perfect service within 120

days of filing the complaint pursuant to Rule 4(j). I found

App. 37

plaintiff’s response showed sufficient cause and permit-

ted plaintiff 30 days in which to perfect service on

defendant. Thereafter, plaintiff properly served the U.S.

Attorney on February 7, 1986, the United States Postal

Service in Denver on February 10, 1986 and the U.S.

Attorney General on February 11, 1986.

OPINION

As a preliminary matter, I note that the United States

Postal Service is not the proper defendant in civil rights

actions. The statute clearly states that the proper defen-

dant in a Title VII action against a federal employer is the

head of the agency or department, not the agency or

department itself. 42 U.S.C. §2000e-16(c). Cooper v. United

States Postal Service, 740 F.2d 714 (9th Cir. 1984), Balanciere

v. United States Postal Service, 648 FSupp. 38 (D.Colo.

1984). Albert Vincent Casey, Postmaster General, is there-

fore the proper defendant in the present case. In arguing

against this, plaintiff directs my attention to a recent case

in which the United States Postal Service was the named

defendant. Daubert v. United States Postal Service, 733 F.2d

1367 (10th Cir. 1984). That decision, however, did not

address the issue of who was the proper defendant, but

dismissed the case on other grounds. Therefore, it does

not affect my decision.

Defendant first contends that plaintiff’s action

should be dismissed for lack of subject matter jurisdic-

tion. Defendant maintains that plaintiff’s reliance on 28

U.S.C. §1331 as grounds for jurisdiction is improper

because Article VII has been held to be an exclusive

remedy for civil rights actions. To say that Article VII is

App. 38

an exclusive remedy for discrimination in cases involving

federal employment merely denies relief under other gen-

eral federal tort statutes. 28 U.S.C. §1331 confers iurisdic-

tion on this court regardless of the general or exclusive

nature of the underlying action providing the cause of

action was created by federal statute. Because plaintiff

has stated a claim for reljef which arises under a federal

statute, I have subject matter jurisdiction over the action.

Next defendant contends the action should be dis-

missed for insufficiency of service claiming service was

not made until after the 120 day time limit designated for

service under Rule 4(j). Rule 4(j) states: “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 defen-

dant without prejudice.” In my Minute Order dated Feb-

ruary 4, 1986, I found and now confirm that plaintiff has

shown good cause why service was not timely made.

Therefore, dismissal is not proper under Rule 4()).

Defendant further claims that plaintiff has not yet

properly served the United States Postal Service because

the designated agent for service of process specified in 39

C.FR. §2.2 was not served. Defendant has not cited any

case or statutory authority nor am I aware of any author-

ity which demands service must be made on a designated

agent. Ostensibly, service on a designated agent of a

government agency is permissive rather than mandatory

as is the case with service on a corporation under Rule

4(d)(3). Rule 4(d)(4) and (5), which governs service of

process on the United States Postal Service (39 U.S.C.

App. 39

§409), merely requires a copy of the summons and com- -

plaint be sent by registered or certified mail to the

agency. The service affected by plaintiff complies with

this rule. For the above reasons, defendant’s motion to

dismiss for insufficiency of service is denied.

The final question presented is whether plaintiff can

amend his complaint pursuant to Rule 15(c) to name the

proper defendant. Reluctantly, I conclude plaintiff may

not so amend. Rule 15(c) provides:

Whenever the claim or defense asserted in the

amended pleading arose out of the conduct, transac-

tion, 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 amend-

ment 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 he 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.

The delivery or mailing of process to the United

States Attorney, or his designee, or the Attorney Gen-

eral of the United States, or any agency or officer

who would have been a proper defendant if named,

satisfies the requirement of clause (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.

As I stated in Balanciere, supra, before an.amended plead-

ing may properly relate back to a pleading timely filed a

newly named defendant must have some kind of notice:

App. 40

actual, constructive, formal or informal, that a suit has

been filed within the time provided under the statute of

limitations. The only event in the record which might

constitute notice to the government was the certified

mailing of the summons and complaint received by the

Postal Service on August 16, 1985, three days after the

statute of limitations had expired.

The question arises whether three days after the lim-

itations period is considered notice “within the period

provided by law for commencing the action?” The cir-

cuits have split on the interpretation of the exact time in

which a new defendant must have had notice under Rule

15(c). A number of courts have held the time for notice

includes a reasonable time for service of process follow-

ing expiration of the statutory period. Ingram v. Kumar,

585 F.2d 566, (2nd Cir. 1978), Kirk v. Cronvich, 629 F.2d 404

(5th Cir. 1980), Hendrix v. Memorial Hospital of Galveston

County, 776 F.2d 1255 (5th Cir. 1985), Bagwell v. City of

Atlanta, 109 F.R.D. 290 (N.D. Ga. 1985), U.S. for the Benefit

of Arrow Electronics v. G.H. Coffey Co. Inc., 100 F.R.D. 413

(D.Me. 1983), Ratcliffe v. Insurance Co. of North America,

482 FSupp. 759 (E.D. Pa. 1980), Clark v. Southern Railway

Co., 87 F.R.D. 356 (N.D. Ill. 1980), Davis v. Krauss, 478

F.Supp. 823 (E.D.N.Y. 1979), Mitchell v. Hendricks, 68

“.R.D. 564 (E.D. Pa 1975).

A parade of other courts has determined that the

plain language of Rule 15(c) dictates that notice must be

received within the time limitation provided by law and

leaves nothing to the court’s discretion to expand on this

explicit time constraint. Archuleta v. Duffy's, Inc., 471 F.2d

33 (10th Cir. 1973), Weisgal v. Smith, 774 F.2d 1277 (4th Cir.

1985), Cooper v. United States Postal Service, 740 F.2d at 717,

App. 41

Allen v. Veteran Administration, 749 F.2d 1386 (9th Cir.

1984), Stewart v. U.S., 655 F.2d 741 (7th Cir. 1981), Varlack

v. S.W.C. Caribbean, Inc., 555 F.2d 171 (3rd Cir. 1977),

Odence v. Salmonson Ventures, 108 F.R.D. 163 (D.R.1. 1985),

Sassi v. Breir, 76 F.R.D. 487 (E.D. Wis. 1977), aff’d. 584 F.2d

234 (7th Cir. 1978). The Tenth Circuit has consistently

adhered to the view that notice of an action must be

attributed to a new party before the expiration of the

statute of limitations before Rule 15(c) relation back will

be permitted. Watson v. Unipress, Inc., 733 F.2d 1386 (10th

Cir. 1984).

The United States Supreme Court resolved the dis-

pute in its recent decision, Schiavone v Fortune, 477 US.

21, 106 S.Ct. 2379, 91 L.Ed.2d. 18 (1986), where it deter-

mined that Rule 15(c) clearly requires notice be received

before the expiration of the applicable limitations period.

The Supreme Court explicitly rejected the idea that a

court may choose between a “liberal” and a “literal”

interpretation of the Rule. The court said the plain mean-

ing of the Rule requires notice within the time provided

for commencing an action which falls under Rule 3 and

does not refer to the time for process under Rule 4.

The present case harbors several unique factors

which make adherence to a literal interpretation partic-

ularly harsh. First, the original complaint was filed pro se

which means it may be held to a less stringent standard

than formal pleadings drafted by lawyers. Hutton v. Heg-

gie, 454 FSupp. 870 (D.Colo. 1978), Haines v. Kerner, 404

U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d. 652. (1972). In addition,

the directive stated in Rule 15(a) that leave to amend

“shall be freely given when justice so requires” appears —

to be particularly appropriate when the party seeking to

App. 42

amend was permitted to proceed in forma pauperis.

Wyant v. Crittenden, 113 F.2d 179, 175 (D.C. Cir. 1940).

Second, plaintiff cannot be accused of creating the risk by

waiting until the midnight hour to file his complaint

thereby making himself unworthy of equitable consider-

ations. With a scant 30 day limitations period, plaintiff

diligently filed a petition to proceed in forma pauperis

aid for appointment of counsel. Plaintiff had only 2 to 3

weeks after receipt of the order denying his request for

counsel to locate private counsel or draft the complaint

himself. Finally, the identity of the proper defendant was

made especially difficult for a pro se plaintiff to ascertain

because the U.S. Postal Service was the only named

defendant in all EEOC documents. Harsh results, how-

ever, have not affected the determination of the U.S.

Supreme Court. See dissenting opinion Schiavone v. For-

tune, 106 S.Ct. 2379 (1986), or the opinion of the Tenth

Circuit. Archuleta v. Duffy's, Inc., 471 F.2d at 34, Watson v.

Unipress, Inc., 733 F.2d at 1390, (specifically rejecting

Ingram). See also Cooper v. U.S. Postal Service, 740 F.2d at

717. Unfortunately, the above cited authority precludes

consideration of such equities in my decision.

Absent any notice before the expiration of the 30 day

_ period, plaintiff will be unable to amend his complaint to

name the proper party. From the record before me, I find

the government did not have notice within the applicable

limitations period. For this reason, defendant’s motion to

dismiss for lack of subject matter jurisdiction is granted.

Dated at Denver, Colorado this 7th day of November

1986.

/s/ John A. Kane, Jr.

UNITED STATES DISTRICT JUDGE

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.