Opposition Brief — Karen A. Cooper v. United States Postal Service

Office Supreme Court, U.S,

FI LED

hela: eee ! JAN. 3 1985

In the Supreme Court uf the Rsited States - i

OCTOBER TERM, 1984

KAREN A. COOPER, PETITIONER

Vv.

UNITED STATES POSTAL SERVICE

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

REX E. LEE

Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney General

ROBERT S. GREENSPAN

MARILYN 8S. G. URWITZ

Attorneys

Department of Justice

Washington, D.C. 205380

(202) 633-2217

—— ee

QUESTION PRESENTED

Whether the court of appeals correctly held that

petitioner’s attempt to amend her complaint nearly

eight months after it was filed in order to name the

proper governmental defendant did not relate back

to the date on which the complaint was filed, because

petitioner had failed to satisfy the requirements spec-

ified in Fed. R. Civ. P. 15(c) for relation back in

situations in which a plaintiff fails to name the

proper federal officer as the defendant.

(1)

TABLE OF CONTENTS

Page

EEE ES ES ea 1

Jurisdiction ........... ~ 2 AAT SURES Ae eo 1

Statute and rule involved .......................................0000002-0 2

a ssdstnenaeetonmusnnnts 3

i ensssneistbuinetonnsouns 6

I ssebanenonmenene 25

TABLE OF AUTHORITIES

Cases:

Alexander vy. Lehman, No. 82-1607 (S.D. Cal. Oct.

I csnsqumenncnianesinncnsse 24

Archuleta v. Duffy’s Inc., 471 F.2d 33 —......-..... 22

Baldwin County Welcome Center v. Brown, No. 83-

I, TD I oc nceccccenscncssescccccccenves 6, 10, 11, 14, 18

Blackmar v. Guerre, 342 U.S. 512 ............................ 14

Block v. North Dakota, 461 U.S. 2738 ........................ 9

Britt v. Arvanitis, 590 F.2d 57 ......................ceccc00---- 22

Brown V. GSA, 425 U.S. 820 ..................-.......--2sececeeee 10

Canino Vv. EEOC, 707 F.2d 468 ...................-..-----2----+- 15

Carr Vv. Veterans Administration, 522 F.2d 1355.... 17, 23

Cohn v. Federal Security Administration, 199

EE 19

Cooper V. Bell, 628 F.2d 1208 _..................---------.2----- 12

Craig v. United States, 413 F.2d 854, cert. denied,

EEE ES Ee 22

Cunningham Vv. United States, 199 F. Supp. 541...... 19

Davis vV. Califano, 613 F.2d 967 ...............................- 15

Evans v. United States Veterans Administration

Hospital, 391 F.2d 261, cert. denied, 393 U.S.

EEE ES SEE A 17-18, 23

Hackley v. Roudebush, 520 F.2d 108 0... 15

Hall v. Department of HEW, 199 F. Supp. 833........ 19

I I IE PD I oc enctiscccccccsccccescenccnsccncese 15

Heckler v. Community Health Services of Craw-

ford County, Inc., No. 83-56 (May 21, 1984) ...... 9

(11)

IV

Cases—Continued: Page

Hernandez Jimenez v. Calero-Toledo, 604 F.2d 99.. 22

Hofer v. Campbell, 581 F.2d 975, cert. denied, 440

a ik 12

Holden v. Massachusetts Commission Against Dis-

crimination, 671 F.2d 30 ........................................ 22

Hughes v. United States, 701 F.2d 56 _.............-...... 17

Ingram Vv. Kumar, 585 F.2d 566, cert. denied, 440

a ceil 20, 21, 22, 23

a ee a alimisebiinaniide 9

Jones V. Brennan, 401 F. Supp. 622 _................... 15

Kirk v. Cronvich, 629 F.2d 404 .......00020000..000.... 20, 21, 22, 23

Korn v. Royal Caribbean Cruise Line, Inc., 724

I te ache 22

Lage Vv. Thomas, 585 F. Supp. 403 ............................ 15

Langster v. Schweiker, 565 F. Supp. 407 _.............. 15

Lehma ¥. Nakshian, 453 U.S. 156 ......................... 8, 10

Martir : v. Orr, 738 F.2d 1107. ........................ 7,11, 12, 13

McCurry Vv. Allen, 688 F.2d 581 ......0.202..---2--eeee- 22

Midwest Growers Cooperative Corp. Vv. Kiricemo,

gf SRE a A SE ae 14

Milam v. United States Postal Service, 674 F.2d

TD ccisicinidsctincneniienidaidetembatiaiatlel tend tet oie 7,11,12

Mosley v. United States, 425 F. Supp. 50 _.............. 15

Manos ¥. Orr, 666 F. Supp. 1017 .............................. 15

Munro v. United States, 303 U.S. 36 ...........000000...... 9

Neff v. Lehman, No. 83-186 (S.D. Cal. Oct. 26,

SETTTED - <acsninsiccidtniemsadatiainasdinladictialieiienteatibed th oT Catatal, 24

Neubold v. United States Postal Service, 614 F.2d

46, cert. denied, 449 U.S. 878 _.........0ooo eee. 15

Quillen v. United States Postal Service, 564 F.

RI, TITIIEE ssiceenenniesinsnialitinmsbieisiantaneiaidianiasiiclaiiielblittiaadbiatabaess 15

Rice v. Hamilton Air Force Base Commissary, 720

ne at 8

Ringrose V. Engelberg Huller Co., 692 F.2d 403...... 20, 21

Saltz v. Lehman, 672 F.2d 207 ................................. 7,11

Sandridge v. Folsom, 200 F. Supp. 25 ...................... 19

Schweiker v. Hansen, 450 U.S. 785 -....................--..- 9

Sessions v. Rusk State Hospital, 648 F.2d 1066...... 7,11

Shen v. Lehman, No. 83-362 (S.D. Cal. Nov. 28,

SEUTITED . Giucsesicsstrinndinnsenecinubladsiiseassiaitiied Miambaaihlintt te Saceaien eae 24

Vv

Cases—Continued : Page

Sims v. Heckler, 725 F.2d 1148 ..........................c0000- 10

Soriano v. United States, 352 U.S. 270 .................... 9, 10

Stewart v. United States, 655 F.2d 741 .................... 17

Stuckett v. United States Postal Service, No. 83-

es eabeisineidiantaae 8,13

Trace X Chemical, Inc. v. Gulf Oil Chemical Co.,

a icuianta 22

United States v. Kubrick, 444 U.S. 111 ................... 9

United States v. Sherwood, 312 U.S. 584 ............... 8, 10

United States v. Testan, 424 U.S. 392 _......0000000000.... 8, 10

Varlack v. SWC Caribbean, Inc., 550 F.2d 171 ........ 22

Walker v. Armco Steel Corp., 446 U.S. 740 _........... 23

Watson v. Unipress, Inc., 733 F.2d 1386 _............. 22

Weiss v. Marsh, 543 F. Supp. 1115 ~........................... 15

, » < 6 | / | SReaES ER eCeeeecenoe 15

Williams v. United States, 711 F.2d 893 _.....0......... 5, 17

Wood v. Worachek, 618 F.2d 1225 _.... 22

Zipes V. Trans World Airline, Inc., 455 U.S. 385.... 10

St. ‘utes, regulation and rules:

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

et seq.:

§ 706 (e), 42 U.S.C. 2000e-5 (e) 2.02.2... 10

§ 706 (f), 42 U.S.C. 2000e-5(f) eee. 7,10

§ 706 (f) (1), 42 U.S.C. 2000e-5 (f) (1) 200... 11

§ 717(a), 42 U.S.C. 2000e-16 (a) 2.0.02... 3

§ 717(c), 42 U.S.C. 2000e-16 (c) 20... passim

Federal Torts Claims Act, 28 U.S.C. 2401(b) _........ 23

Social Security Act § 205(g), 42 U.S.C. 405(g) _..... 18, 19

REE LR rae ce en SNe EARS ee Oe ee 21

RITA Se Ne ET 7

Fed. R. Civ. P.:

EE EA A eT ee ee TT 12

Rule 15 advisory committee note —.....0.0..00000..... 20

a eienieil passim

RS eee ae te ea aes ae a 12

Miscellaneous:

Byse, Suing the “Wrong” Defendant in Judicial

Review of Federal Administrative Action: Pro-

posals for Reform, 77 Harv. L. Rev. 40 (1963) ..

Kaplan, Continuing Work of the Civil Committee:

1966 Amendments of the Federal Rules of Civil

Procedure (I), 81 Harv. L. Rev. 356 (1967)......

Note, Federal Rule of Civil Procedure 15(c): Re-

lation Back of Amendments, 57 Minn. L. Rev. 83

SIUITIID ~ scccsnhedarhciecedatchdeeiicheegegeibiaheiatteaidindnnatnieanian

Page

19-20

Iu the Supreme Comet of the United States

OCTOBER TERM, 1984

No. 84-600

KAREN A. COOPER, PETITIONER

v.

UNITED STATES POSTAL SERVICE

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A8) is reported at 740 F.2d 714. The opinion of the

district court (Pet. App. A9-A1l) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App.

A12) was entered on July 12, 1984, and the petition

for a writ of certiorari was filed on October 30,

1984. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

f

(1)

2

STATUTE AND RULE INVOLVED

1. Section 717(c) of the Civil Rights Act of 1964,

42 U.S.C. 2000e-16(c), provides in pertinent part:

Within thirty days of receipt of notice of a

final action taken by a department, agency, or

unit * * * an employee or applicant for employ-

ment, if aggrieved by the final disposition of his

complaint * * *, may file a civil action as pro-

vided 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.

2. Rule 15(c) of the Fed. R. Civ. P. provides:

Relation Back of Amendments. Whenever the

claim or defense asserted in the amended plead-

ing arose out of the conduct, transaction, or oc-

currence set forth or attempted to be set forth

in the original pleading, the amendment relates

back to the date of the original pleading. An

amendment changing the party against whom a

claim is asserted relates back if the foregoing

provision is satisfied and, within the period pro-

vided 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 General of the United States, or an

agency or officer who would have been a proper

defendant if named, satisfies the requirement

3

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.

STATEMENT

1. In December 1980, petitioner filed an adminis-

trative complaint with the Western Regional Head-

quarters of the United States Postal Service alleg-

ing that she had been denied a part-tim. regular

carrier position because of her sex, in violation of

Section 717(a) of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. 2000e-16(a). Pet. App. A2, A13.

On September 30, 1982, petitioner received a letter

from the Regional Postmaster General informing her

that because she had not responded to the proposed

denial of her complaint within the time specified in

applicable regulations and the notice of proposed de-

nial, her complaint was denied. 7d. at A2, A13-A15.

The letter informed her that she either could appeal

this decision to the Equal Employment Opportunity

Commission (EEOC) within 20 days or, in lieu of

such an appeal, could file a civil action in the ap-

propriate district court within 30 days of her receipt

of the decision. Jd. at A14-A15.

Under Section 717(c) of the Civil Rights Act of

1964, 42 U.S.C. 2000e-16(c), “[w]ithin thirty days

of receipt of notice of final action” by a federal de-

partment or agency on a complaint of discrimination,

an employee or applicant for employment aggrieved

by the action “may file a civil action * * *, in which

civil action the head of the department [or] agency

* * * shall be the defendant.” On October 29, 1982,

one day before this 30-day period expired, petitioner,

represented by counsel, filed a complaint in the

4

United States District Court for the Southern Dis-

trict of California pursuant to Section 717(c). How-

ever, she named as the sole defendant the Postal

Service, rather than the Postmaster General, who is

the head of the federal agency concerned and there-

fore is, under the statute, the only proper defendant

in a Title VII suit. She did not serve copies of the

complaint on the United States Attorney or the

Attorney General until January 1983 or on the Post-

master General until February 1983. The record does

not indicate when the Postal Service was served, but

petitioner has conceded that such service did not

occur within the 30-day period that expired on Oc-

tober 30, 1982. Pet. App. A2, A10.

On April 5, 1983, the government moved to dis-

miss the complaint on the ground that petitioner had

not named the Postmaster General as the defendant,

as required by Section 717(c). On June 20, 1983,

petitioner moved to amend her complaint to substi-

tute the Postmaster General as the defendant and to

have that amendment relate back under Fed. R. Civ.

P. 15(c) to the date on which the complaint was

filed. The district court denied petitioner’s motion.

The court explained that the Postmaster General had

not received notice of the institution of the suit

within 30 days after petitioner’s receipt of the ad-

ministrative denial of her complaint and thus had

not received such notice “within the period provided

by law for commencing the action against him,” as

required by clause (1) of Rule 15(c) in order for

the amendment naming a new defendant to relate

back. The district court accordingly granted the gov-

ernment’s motion to dismiss the complaint. Pet. App.

A9-A11.

5

2. The court of appeals affirmed (Pet. App. Al-

A8). The court noted that in its prior decision in

Williams v. United States, 711 F.2d 893 (9th Cir.

1985), the plaintiff had filed a suit under the Suits

in Admiralty Act against the Federal Aviation Ad-

ministration seven days before the statutory period

for filing the suit was to expire. In Williams, the

court of appeals held that the district court had

properly denied the plaintiff's motion under Rule

15(c) to name the United States as the defendant

because the United States did not receive notice of

the action until one day after the statutory filing

period had run. 711 F.2d at 898. The court of ap-

peals concluded that the same result must obtain

here, because petitioner failed to notify the proper

defendant (the Postmaster General) of the institu-

tion of the suit until after the applicable 30-day

filing period had run and the amendment of the com-

plaint therefore could not relate back under Rule

15(c).

te court of appeals explained that although the

result might seem harsh in this particular case, that

result was “the inevitable corollary of [the court’s]

obligation in all cases to follow precedent and to

implement controlling statutes and procedural rules,”

since it could “ignore neither the limitations on the

filing of Title VII actions contained in section 2000e-

16(c) nor the notice requirement for the substitu-

tion of parties in amended pleadings established by

the plain language of rule 15(c)” (Pet. App. A7).

The court observed that Rule 15(c) had been

amended in 1966 specifically to afford relief to “dili-

gent parties litigating against the federal govern-

ment” (Pet. App. A8): under the second paragraph

of Rule 15(c), which was added by the 1966 amend-

6

ments, a party may give the necessary notice of the

institution of the action within the time allowed by

delivering or mailing process to the United States

Attorney, the Attorney General, or the federal agency

or officer who would have been a proper party if

named. “Thus,” the court concluded, “[petitioner]

could have preserved her Title VII action by serving

a copy of the complaint on either the United States

Attorney or the Attorney General before October 30,

1982,” but “[s]he failed to do so” (Pet. App. A8).

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or

another court of appeals. Review by this Court there-

fore is not warranted. Although petitioner relies on

this Court’s decision in Baldwin County Welcome

Center v. Brown, No. 83-131 (Apr. 16, 1984), the

Court’s opinion in that case undermines rather than

supports her position, because the Court there made

clear that compliance with the Federal Rules of Civil

Procedure is required in a suit under Title VII just

as in any other civil action.

1. a. Petitioner first contends (Pet. 7, 8-10, 12-

13) that the Court should grant review in this case

to consider whether compliance with the 30-day pe-

riod within which a suit must be filed against the

head of a federal agency under Title VII is jurisdic-

tional or whether that period is subject to waiver,

estoppel, or equitable tolling. Contrary to petitioner’s

contention, however, this case simply does not present

that issue.

Petitioner in fact did file a complaint within 30

days of her receipt of the notice of final agency ac-

tion. Accordingly, neither the district court nor the

7

court of appeals held that dismissal of her suit was

required because the doctrines of waiver, estoppel,

and equitable tolling are inapplicable in a federal sec-

tor Title VII suit. By contrast, the appellate decisions

indicating that the 30-day period in Section 717(c)

is not jurisdictional in nature—and which, according

to petitioner, conflict with the decision below—deal

expressly with situations in which the plaintiff did

not file an action within 30 days of receipt of the

final agency action. See Martinez v. Orr, 738 F.2d

1107 (10th Cir. 1984); Milam v. United States

Postal Service, 674 F.2d 860 (11th Cir. 1982).’ Be-

cause petitioner filed a complaint within 30 days, the

only issue presented is whether Fed. R. Civ. P. 15(c)

permitted her to amend that complaint to name a

party who was not notified of the action until months

later. See pages 14-24, infra. The court of appeals

understood the case to be limited in precisely that

manner: it stated that the “only issue” before it was

whether Rule 15(c) should be interpreted to permit

the amendment of the complaint naming the Post-

master General to relate back (Pet. App. A4). Con-

trary to petitioner’s assertion (Pet. 9, 12), the court

did not suggest that its answer to that question de-

1 Petitioner also maintains (Pet. 8) that Sessions v. Rusk

State Hospital, 648 F.2d 1066 (5th Cir. 1981), and Saltz v.

Lehman, 672 F.2d 207 (D.C. Cir. 1982), conflict with the

ruling here. As petitioner acknowledges, however, Sessions

does not involve a construction of Section 717(c) at all, but

instead addresses the 90-day limitation applicable under Sec-

tion 706(f) of Title VII, 42 U.S.C. 2000e-5 (f), in suits against

private employers and state and local governments. Nor does

the District of Columbia Circuit’s decision in Saltz concern

the suit-filing limitation of Section 717(c) ; it deals only with

the time period for filing an administrative charge. See 29

C.F.R. 1613.214(a).

8

pended on whether the 30-day suit-filing is jurisdic-

tional in nature. The court made clear that if the

requirements of Rule 15(c) had been satisfied, it

would have held that the amendment related back

even though the 30-day filing period is regarded by

the Ninth Circuit as jurisdictional.’

b. In any event, even if this case could be thought

to present the question whether compliance with the

30-day period for filing suit under Section 717(c) is

jurisdictional in nature, that issue does not warrant

review by this Court. Indeed, the Court recently de-

nied certiorari in another case in which the petitioner

sought review on precisely the same issue, Stuckett

v. United States Postal Service, No. 83-6839 (Oct. 9,

1984), and there is no reason for a different result

here.

The conclusion that compliance with the 30-day

time limit in Section 717(c) is a jurisdictional pre-

requisite to suit is supported by principles firmly es-

tablished by numerous decisions of this Court. It is

axiomatic that “ ‘the United States, as sovereign, “is

immune from suit save as it consents to be sued...

and the terms of its consent to be sued in any court

define that court’s jurisdiction to entertain the

suit”’” (Lehman v. Nakshian, 453 U.S. 156, 160

(1981), quoting United States v. Testan, 424 USS.

392, 399 (1976), and United States v. Sherwood, 312

U.S. 584, 586 (1941)). As with any condition placed

2 The court of appeals did cite its prior decision in Rice v.

Hamilton Air Force Base Commissary, 720 F.2d 1082, 1083

(9th Cir. 1983), noting in parentheses the holding in that case

that the “thirty day limit is jurisdictional” (Pet. App. A3-A4).

But the court cited the Rice decision for the proposition that

Section 717(c) “gives federal employees only thirty days

after receiving notice of final agency action on their claim in

which to file suit” (Pet. App. A3). That proposition, of course,

is evident on the face of Section 717(c).

9

on a suit against the sovereign, “this Court has long

decided that limitations * * * upon which the Govern-

ment consents to be sued must be strictly observed and

exceptions thereto are not to be implied” (Soriano

vy. United States, 352 U.S. 270, 276 (1957) ). See also

Munro v. United States, 303 U.S. 36, 41 (1938);

United States v. Kubrick, 444 U.S. 111, 117-118

(1979). Only two Terms ago, the Court reaffirmed

that “[w]hen waiver legislation contains a statute of

limitations, the limitations provision constitutes a con-

dition on the waiver of sovereign immunity” that

must. be “strictly observed” (Block v. North Dakota,

461 U.S. 278, 287 (1983) ).

In light of these principles, limitations periods in

statutes waiving the sovereign immunity of the

United States may not be waived or tolled by a court

unless Congress has explicitly so provided. See

Munro v. United States, 303 U.S. at 41; Soriano v.

United States, 352 U.S. at 275-276. Similarly, the

notion that the United States might be equitably

estopped from invoking a statutory limitations pe-

riod is inconsistent with this Court’s numerous de-

cisions holding that the United States may not be

estopped by the acts of its agents. See, e.g., Heckler

v Community Health Services of Crawford County,

Inc., No. 83-56 (May 21, 1984), slip op. 8 & nn.11,

12. Indeed, this Court has twice rejected contentions

that the government was equitably estopped from in-

voking applicable time limits prescribed by Congress.

Schweiker v. Hansen, 4u0 U.S. 785 (1981); INS v.

Hibi, 414 U.S. 5 (1973). This unbroken line of au-

thority clearly indicates that the 30-day limit in sec-

tion 717(c) is a condition placed on the consent to

suits against the federal government and thus “ ‘ “de-

fine[s] [the district court’s] jurisdiction to entertain

10

the suit”’” (Lehman v. Nakshian, 453 U.S. at 160,

quoting United States v. Testan, 424 U.S. at 399, and

United States v. Sherwood, 312 U.S. at 586). See

also Soriano v. United States, 352 U.S. at 271, 273.

ce. Petitioner does not mention, much less discuss,

these settled principles of sovereign immunity. In-

stead, she argues (Pet. 7, 8, 12-13) that this Court’s

decisions in Zipes v. Trans World Airline, Inc., 455

U.S. 385 (1982), and Baldwin County Welcome Cen-

ter vy. Brown, supra, require the conclusion that the

30-day limit in Section 717(c) may be tolled or

waived by a court. This argument is without merit.

In Zipes, the Court held that compliance with Sec-

tion 706(e) of Title VII, which requires an employee

in the private sector to file an administrative charge

of discrimination with the EEOC within 180 days

of the alleged discriminatory act, is not a jurisdic-

tional prerequisite to the subsequent bringing of a

civil action in federal district court pursuant to Sec-

tion 706(f) (455 U.S. at 393). Instead, the Court

held that the provision is “like a statute of limita-

tions, * * * subject to waiver, estoppél, and equitable

tolling” (ibid. (footnote omitted)). Zipes, however,

is inapposite here. As the Seventh Circuit has ob-

served, “[b]ecause Zipes involved a private defend-

ant, we do not think that its holding may be extended

to the case at bar, where principles of sovereign im-

munity control” (Sims v. Heckler, 725 F.2d 1143,

1145 (1984) ). See also Soriano v. United States, 352

U.S. at 275 (reliance on tolling rule announced in an-

other case “is misplaced [since] [t]hat case involved

private citizens, not the Government. It has no ap-

piicability to claims against the sovereign.”). Cf.

Brown v. GSA, 425 U.S. 820, 833 (1976). The Court

in Baldwin County Welcome Center simply reiterated

the Zipes ruling. Baldwin County Welcome Center,

|

11

slip op. 5 n.6.° That decision therefore likewise does

not suggest that the distinct 30-day period prescribed

by Section 717(c) for filing a Title VII suit against

the federal government is not jurisdictional in nature.

d. Petitioner also suggests (Pet. 8-9, 13) that re-

view is warranted beeause there is a conflict among

the circuits on the question whether the suit-filing

period under Section 717(c) is jurisdictional in na-

ture. She relies on Saltz v. Lehman, 672 F.2d 207

(D.C. Cir. 1982) ; Milam v. United States Postal Serv-

ice, 674 F.2d 860 (11th Cir, 1982); and Martinez v.

Orr, 738 F.2d 1107 (10th Cir. 1984).* The existence

of those decisions, however, would not warrant review

here even if this case actually involved the question

of whether the 30-day period is subject to waiver,

tolling, or equitable estoppel. In none of the three

cases petitioner cites did the court consider the sig-

nificance of the principles of sovereign immunity dis-

cussed above. Saltz, 672 F.2d at 208; Milam, 674

F.2d at 862; Martinez, 738 F.2d at 1110.

Moreover, these three cases all involved circum-

stances quite different from those presented here. Un-

like this case, which involves the time period for filing

3 The Court did not expressly state that the 90-day limitation

in Section 706(f) (1) on bringing a Title VII suit against

a private employer also is not jurisdictional in nature, al-

though it did indicate that the 90-day limitations period

might likewise be subject to equitable tolling in appropriate

circumstances. Slip op. 4-5.

4 Petitioner also asserts (Pet. 8) a conflict with, Sessions Vv.

Rusk State Hospital, 648 F.2d 1066 (5th Cir. 1981). But as

we have explained (see note 1, supra), that case did not in-

volve a suit against the federal government, and it therefore

has no bearing on the issue presented here.

12

a judicial action in district court, Saltz involved the

time limit for filing an administrative charge with

the agency. A court might view differently the time

limit for filing an action in district court, because

the latter is most clearly a condition on the waiver

of sovereign immunity to suit (see Cooper v. Bell,

628 F.2d 1208, 1213 n.10 (9th Cir. 1980)), and in

fact the District of Columbia Circuit, which decided

Saltz, previously had held that the 30-day suit-filing

period is jurisdictional in nature. Hofer v. Campbell,

581 F.2d 975, 977 (1978), cert. denied, 440 U.S. 909

(1979).

Although the Eleventh Circuit’s decision in Milam

does contain language to the effect that the 30-day

period is not jurisdictional (674 F.2d at 862), that

language is dicta. In Milam, the 30th day for filing a

Title VII suit fell on a Sunday and the complaint

was filed on Monday, the 31st day. The court simply

held that because the last day of the 30-day period

fell on a Sunday, under Fed. R. Civ. P. 6(a), the

deadline for filing must be considered to have been

Monday. Thus, the complaint in Milam was in effect

timely filed within the 30-day limit prescribed by

Section 717(c). The same result presumably would

obtain even if the 30-day suit-filing period is re-

garded as jurisdictional. Cf. Sup. Ct. R. 29.1.

Finally, in Martinez v. Orr, supra, the Tenth Circuit

did hold that Section 717(c) is not jurisdictional and

could be equitably tolled in the circumstances of that

ease, because, in the court’s view, the EEOC had mis-

led the plaintiff in its notice of a right to sue. See

738 F.2d at 1110-1112. There is no suggestion here

that the government misled petitioner into failing to

name the proper defendant—a requirement that, at

all events, is clear from the face of the Act. More-

13

over, aS we explained in our Supplemental Brief in

Stuckett v. United States Postal Service, supra, the

Solicitor General decided not to seek rehearing en

banc in Martinez because the EEOC informed us that

it had revised its practices to eliminate the potential

for misleading the employee in the manner the Tenth

Circuit identified, and the particular issue involved

in Martinez therefore was of no continuing impor-

tance. But as we also stated in our Supplemental

Brief in Stuckett, should the tolling issue arise again

in the Tenth Circuit in another setting that appeared

to be of broader importance, we would consider re-

questing the Tenth Circuit to reconsider the holding

in Martinez. For these reasons, it was not clear that

any circuit conflict would persist or was of sufficient

importance to warrant review by this Court. Against

this background, the Court denied the petition for a

writ of certiorari in Stuckett less than three months

ago. There have been no intervening events since

then, and there are no other factors present here that

would warrant a different disposition in this case.

e. This case would not be in any event a suit-

able vehicle in which to address the nature of the

30-day filing period prescribed by Section 717(c),

because petitioner has suggested no basis on which

her failure to file a proper complaint within that 30-

day period could be excused on equitable grounds.

Nor did she do so in the district court or court of

appeals. Petitioner likewise did not, in the courts

below, contest the proposition that the 30-day suit-

filing period is jurisdictional in nature. Petitioner’s

efforts to interject that issue into the case at this late

date should be rejected.

5 We have furnished counsel for petitioner with copies of

our briefs in Stuckett.

14

Moreover, even if it is assumed that equitable toll-

ing principles might be applicable in a Title VII suit

against the federal government in certain circum-

stances, there are no such circumstances here. Like

Baldwin County Welcome Center, “[t]his is not a

ease in which a claimant has received inadequate

notice; or where a motion for appointment of counsel

is pending and equity would justify tolling the statu-

tory period until the motion is acted upon; or where

the court has led the plaintiff to believe that she had

done everything required of her [; * * * or] where

affirmative misconduct on the part of a defendant

lulled the plaintiff into inaction.” Slip op. 4-5 (cita-

tions omitted). Section 717(c) on its face specifies

the proper defendant, and there is, quite simply, no

excuse for the failure by petitioner, who was repre-

sented by counsel, to comply with that explicit require-

ment.

2. Petitioner also contends (Pet. 10-12, 14-16)

that the Court should grant) certiorari to review

the court of appeals’ interpretation of Rule 15(c) in

the particular circumstances of this case. Petitioner

does not contest the holding by the courts below that

the Postmaster General was the only proper defend-

ant in this Title VII suit. Nor could she contest that

holding, since Section 717(c) explicitly states that

the head of the department or agency “shal! be the

defendant,” * and numerous lower court decisions

* Congress has not enacted a law permitting agencies to be

named as parties defendant in employment discrimination

suits, and it is “well established that federal agencies are not

subject to suit eo nomine unless so authorized by Congress in

‘explicit language.’” Midwest Growers Cooperative Corp. Vv.

Kirkemo, 533 F.2d 455, 465 (9th Cir. 1976). See Blackmar v.

Guerre, 342 U.S. 512, 515 (1952).

Lr en

ea a et —_

15

unanimously so hold.’ Petitioner instead argues that

her motion to amend the complaint to name the

proper defendant, which was filed almost eight

months after the original complaint and long after

the 30-day period for filing suit had expired, should

have related back to the date the complaint was filed.

The court of appeals correctly rejected that argu-

ment, and its holding does not warrant review.

a. Under Fed. R. Civ. P. 15(c), an amendment

changing the party against whom a claim is asserted

relates back only if, “within the period provided by

law for commencing an 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.” In this case, the Postmaster General

(the proper defendant “to be brought in by amend-

ment’) did not receive notice of the institution of the

7 See, e.g., Canino v. EEOC, 707 F.2d 468, 472 (11th Cir.

1983) ; Hall v. SBA, 695 F.2d 175, 180 (5th Cir. 1983) ; White

v. GSA, 652 F.2d 913, 916 n.4 (9th Cir. 1981); Newbold

v. Ugited States Postal Service, 614 F.2d 46, 47 (5th Cir.),

cert. denied, 449 U.S. 878 (1980) ; Davis v. Califano, 13 F.2d

957, 958 n.1 (D.C. Cir. 1979) ; Hackley v. Roudebush, 520 F.2d

108, 115 n.17 (D.C. Cir. 1975) ; Lage v. Thomas, 585 F. Supp.

403, 405 (N.D. Tex. 1984); Langster v. Schweiker, 565

F. Supp. 407, 412 (N.D. Ill. 1983) ; Quillen v. United States

Postal Service, 564 F. Supp. 314, 321 (E.D. Mich. 1983) ;

Munoz v. Orr, 559 F. Supp. 1017, 1020 (W.D. Tex. 1983) ;

Weiss v. Marsh, 543 F. Supp. 1115, 1117 (M.D. Ala. 1981) ;

Mosley v. United States, 425 F. Supp. 50, 54-55 (N.D. Cal.

1977) ; Jones v. Brennan, 401 F. Supp. 622, 627 (N.D. Ga.

1975).

16

action “within the period provided by law for com-

mencing an action against him”—.e., within the 30-

day period provided under Section 717 (c) for a fed-

eral employee to file a Title VII suit. Petitioner

received the notice of the administrative denial of

her complaint on September 30, 1982, and the 30-day

suit-filing period therefore expired on October 30,

1982. Yet, petitioner did not serve the Postmaster

General with a copy of the complaint until February

1983, almost four months after the 30-day period

expired, and there is no indication that the Post-

master General otherwise received actual notice of

the suit within the 30-day period.* The plain lan-

guage of Rule 15(c) therefore refutes petitioner’s

contention that the attempted amendment of the

complaint should have related back.

It also is significant that petitioner failed to comply

with the provisions of Rule 15(c) that are specifically

intended to afford'a means by which a person suing

the federal government can protect himself against

the consequences of naming the wrong defendant.

Under the second paragraph of Rule 15(c), “[t]he

delivery or mailing of process to the United States

Attorney, or his designee, or the Attorney General

of the United States, or an agency or officer who

would have been a proper defendant if named, satis-

fies the requirements 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

8 Even if notice to the Postal Service could be deemed notice

to the Postmaster General for these purposes, petitioner has

conceded that the Postal Service likewise was not served with

a copy of the complaint within the 30-day period, and the

record does not disclose when, or even if, the Postal Service

otherwise was served. See Pet. App. A2, A10.

17

defendant.” Accordingly, if the delivery or mailing

of process to any of those persons is accomplished

“within the period provided by law for commencing

the action against [the proper defendant],” an

amendment of the complaint to name the proper

defendant will relate back to the date of the filing of

the complaint. :

In this case, however, petitioner neither delivered

nor mailed process to the United States Attorney,

the Attorney General, or the Postmaster General (the

“officer who would have been a proper defendant if

named”) within the 30-day period provided by Sec-

tion 717(c) for commencing a Title VII action

against the Postmaster General. Petitioner did not

serve copies of the complaint on the Attorney Gen-

eral and United States Attorney until January 1983,

well after the 30-day period expired on October 30,

1982, and, as noted above, she did not serve the Post-

master General until even later, in February 1983

(Pet. App. A2, A10). The court of appeals there-

fore correctly held that petitioner’s amendment of

the complaint\on June 20, 1983 to name the Post-

master General could not relate back to the date of

the filing of the original complaint on October 29,

1982. This holding is consistent with the decisions

of the Ninth Circuit and every other court of appeals

that has considered tiie identical relation-back ques-

tion where the plaintiff has named the wrong federal

agency or officer as the defendant. See Williams v.

United States, 711 F.2d 893, 898 (9th Cir. 1983) ;

Hughes v. United States, 701 F.2d 56, 58-59 (7th

Cir. 1982); Stewart v. United States, 655 F.2d 741,

742 (7th Cir. 1981); Carr v. Veterans Administra-

tion, 522 F.2d 1855, 1357-1358 (5th Cir. 1975);

Evans v. United States Veterans Administration Hos-

18

pital, 391 F.2d 261 (2d Cir. 1968), cert. denied, 393

U.S. 1040 (1969).

Petitioner makes no effort to answer this interpre-

tation of Rule 15(c) in a suit against a federal agency

or officer. She instead seeks to denigrate that require-

ment as a “procedural technicalit[y]” (Pet. 9, 15) and

suggests that the court of appeals should have ignored

it in order to enable her to vindicate her civil rights.

But as this Court stressed in Baldwin County Wel-

come Center, supra, there is no basis “for giving

Title VII actions a special status under the Rules of

Civil Procedure” (slip op. 3). Nor can rules pertain-

ing to the proper parties to a suit be dismissed as

mere technicalities. It is the named defendant who

will be bound by the judgment if the plaintiff pre-

vails. Moreover, where, as in Title VII, Congress has

created a cause of action against the federal govern-

ment and specified the federal officer against whom

it must be brought, the courts may not decline to

enforce that requirement because of their own views

regarding appropriate pleading practice.

b. Petitioner also ignores the fact that the second

paragraph was added to Rule 15(c) in 1966 to ad-

dress precisely the situation presented here. The

courts below properly rejected the petitioner’s efforts

to obtain relief that goes well beyond that afforded by

the 1966 amendment.

As petitioner concedes (Pet. 14-16), Rule 15(c)

was amended in 1966 in response to four district

court decisions that dismissed suits brought pursuant

to Section 205(g) of the Social Security Act, 42

U.S.C. 405(g), seeking judicial review of the denial

of Social Security benefits. In each case, the claimant

had named a federal defendant other than the Secre-

tary of Health, Education, and Welfare, who was the

19

only proper defendant in such an action.® When they

discovered their mistakes, the plaintiffs sought to

amend their complaints to name the proper defend-

ant, the incumbent Secretary. But by that time the

60-day period within which to file a suit under 42

U.S.C. 405(g) had expired, and the courts denied

leave to amend on the ground that such an amend-

ment would have constituted the commencement of a

new action. See Byse, Suing the “Wrong” Defendant

in Judicial Review of Federal Administrative Action:

Proposals for Reform, 77 Harv. L. Rev. 40 (1963).

It was against this background that Rule 15(¢c) was

amended to provide that in a suit against the United

States or an officer or agency thereof, an amendment

to name the proper defendant would relate back if

“within the period provided by law for commencing

the action” against the proper federal defendant,

process was delivered or mailed to the Attorney Gen-

eral, the United States Attorney, or an agency or

officer who would have been a proper defendant if

named.” Kaplan, Continuing Work of the Civil Com-

® The claimants named as defendants: the United States,

the Department of HEW, the Federal Security Administra-

tion, and a former Secretary who had retired from office.

See Cohn v. Federal Security Administration, 199 F. Supp.

884 (W.D.N.Y. 1961); Hall v. Department of HEW, 199

F. Supp. 833 (S.D. Tex. 1960) ; Sandridge v. Folsom, Secre-

tary of HEW, 200 F. Supp. 25 (M.D. Tenn. 1959) ; Cunning-

ham v. United States, 199 F. Supp. 541 (W.D. Mo. 1958).

10 The second paragraph of Rule 15(c) provides that clauses

(1) and (2) of the first paragraph are deemed satisfied if

process was mailed or delivered to any of the officers described

in the text. The first paragraph of Rule 15(c) requires that

clauses (1) and (2) be satisfied “within the period provided

by law for commencing the action against [the proper defend-

20

mittee: 1966 Amendments of the Federal Rules of

Civil Procedure (I), 81 Harv. L. Rev. 356, 407-410

(1967). There is no suggestion in the Rule that it

was intended to permit relation back of an amend-

ment naming the proper federal defendant where, as

here, process was not delivered or mailed to the Attor-

ney General, the United States Attorney, or the proper

defendant “within the period for commencing the

action,’”’ but only some months after the expiration of

that period. To the contrary, the Advisory Commit-

tee notes to the 1966 amendments to Rule 15(c)

state that in the four Social Security Act cases that

had given rise to the amendments that specifically

address relation back in suits against federal defend-

ants, “the government was put on notice of the claim

within the stated period—in the particular instances,

by means of initial delivery of process to a responsible

government official (see Rule 4(d)(4) and (5)).”

Fed. R. Civ. P. 15 advisory committee note (emphasis

added).

ce. In urging this Court to grant certiorari, peti-

tioner relies (Pet. 10-12, 15-16) on decisions of the

Second, Fifth, and Sixth Circuits and contends that

the judgment below conflicts with those decisions. See

Ingram v. Kumar, 585 F.2d 566 (2d Cir. 1978), cert.

denied, 440 U.S. 940 (1979); Kirk v. Cronvich, 629

F.2d 404 (5th Cir. 1980) ; and Ringrose v. Engelberg

Huller Co., 692 F.2d 403 (6th Cir. 1982). Petitioner

contends that under these decisions, it is not necessary

that the proper defendant actually receive notice of

the commencement of the action within the statutory

period for commencing an action; in petitioner’s

ant],” and therefore requires that delivery or mailing of

process to any of the federal officials specified in the second

paragraph occur within that period.

eee 6 nee eer as

21

view, if that defendant receives notice through service

of process within a “reasonable time” after the stat-

ute of limitations has run or the complaint was filed,

the requirements of Rule 15(c) should be deemed

satisfied. Petitioner’s reliance on the Sixth Circuit’s

decision in Ringrose is wholly misplaced, because the

majority in that case expresly did not reach this issue

and instead remanded for consideration of whether

the defendant had received notice within the limita-

tions period. 692 F.2d at 405. Only the concurring

opinion of Judge Jones addressed the question peti-

tioner raises. Jd. at 406-412. For this reason, there

clearly is no conflict between the decision below and

the Sixth Circuit’s decision in Ringrose.

There likewise is no conflict with the decisions of the

Second and Fifth Circuits. Ingram v. Kumar, supra,

was a malpractice action against a physician brought

under the district court’s diversity jurisdiction, and the

state statute of limitations therefore was applicable.

The Second Circuit acknowledged that the require-

ment in Rule 15(c) that the proper defendant receive

actual notice within the period prescribed by law for

commencing the action against him “seems to mean

the applicable statute of limitations period” (585 F.2d

at 571), but it concluded that this interpretation need

not apply in jurisdictions where timely service of

process may be affected after the statute of limita-

tions has run (id. at 572). Similarly, in Kirk v. Cron-

vich, supra, which was an action under 42 U.S.C. 1983

against a state sheriff and therefore was also gov-

erned by a state statute of limitations, the court

simply followed Ingram without extended analysis

(629 F.2d at 408).

Even with regard to suits against non-federal par-

ties, as in Ingram and Kirk, the Second and Fifth

22

Circuits are in a distinct minority. Six other courts

of appeals have taken a contrary view and held that

such a defendant sought to be brought in by the

amendment must have received notice within the

period of the statute of limitations," as the plain

language of the first paragraph of Rule 15(c) re-

' quires. See Note, Federal Rule of Civil Procedure

15(c): Relation Back of Amendements, 57 Minn. L.

Rev. 83, 103-105 (1972). But whatever the proper

resolution of any conflict between Ingram and Kirk

and the decisions of the six other courts of appeals,

that conflict has no bearing on the instant case.

Neither /ngram nor Kirk involved a suit against a

federal agency or officer that was governed by the

special notice provisions in the second paragraph of

Rule 15(c) and by a congressionally prescribed federal

limitation, such as that in Section 717(c) of the

Civil Rights Act of 1964, on the period within which

a suit may be brought. Whatever the legitimacy in

a suit against a non-federal party of extending a

state statute of limitations to include a reasonable

time for service of process, on the theory that the

See Holden v. Massachusetts Commission Against Dis-

crimination, 671 F.2d 30, 37-38 (1st Cir. 1982) ; Hernandez

Jimenez v. Calero Toledo, 604 F.2d 99, 102-103 (1st Cir.

1979) ; Britt v. Arvanitis, 590 F.2d 57, 62 (3d Cir. 1978) ; Var-

lack v. SWC Caribbean, Inc., 550 F.2d 171, 174-175 (3d Cir.

1977) ; Wood v. Worachek, 618 F.2d 1225, 1229-1230 (7th

Cir. 1980) ; Trace X Chemical, Inc. v. Gulf Oil Chemical Co.,

724 F.2d 68, 70 (8th Cir. 1983) ; McCurry v. Allen, 688 F.2d

581, 584-585 (8th Cir. 1982) ; Korn v. Royal Caribbean Cruise

Line, Inc., 724 F.2d 1397, 1400-1401 (9th Cir. 1984); id. at

1402 (Wallace, J., dissenting) ; Craig v. United States, 413

F.2d 854, 857-858 (9th Cir.), cert. denied, 396 U.S. 987

(1969) ; Watson v. Unipress, Inc., 733 F.2d 1386, 1390 (10th

Cir. 1984) ; Archuleta v. Duffy’s Inc., 471 F.2d 33 (10th Cir.

1973).

23

suit is not “commenced” against a party until service

of process upon him (ef. Walker vy. Armco Steel Corp.,

446 U.S. 740, 742-743 (1980) ), there is no basis for

extending a federal limitation period in a suit against

a federal defendant in that manner. And, as noted

above (see pages 17-18, supra), the only courts of

appeals that have considered the question in the con-

text of a suit against a federal defendant have held

that the defendant must receive notice within the ap-

plicable limitations period.

Indeed, both the Second and Fifth Circuits, which

decided Ingram and Kirk, previously had reached a

different result in cases against the federal govern-

ment. See Evans v. United States Veterans Adminis-

tration Hospital, 391 F.2d 261 (2d Cir. 1968), cert.

denied, 393 U.S. 1040 (1969); Carr v. Veterans Ad-

ministration, 522 F.2d 13855 (5th Cir. 1975). In

those cases, the court of appeals, relying upon Rule

15(c), held that the amendment to the complaint in a

Federal Torts Claims Act (FTCA) suit to substitute

the United States for the agency as the named de-

fendant did not relate back to the date of the filing of

the complaint because neither the United States nor

any governmental entity on its behalf received actual

notice of the suit within the two-year period provided

under 28 U.S.C. 2401(b) for bringing an FTCA suit.

Evans, 391 F.2d at 262; Carr, 522 F.2d at 1357-

1358. In sum, there is no conflict among the courts of

appeals on the application of Rule 15(c) to a suit

against the federal government.

d. No doubt because of the explicit requirement in

Section 717(c) of the Civil Rights Act of 1964 that

the head of the department or agency be named as

the defendant, the question presented in this case does

not appear to have risen with much frequency in Title

24

VII suits.’ Nor will petitioner suffer any prejudice

from a denial of certiorari here. Petitioner held a

full-time position with the Postal Service when she

sought the part-time letter carrier’s position. Because

the part-time position would have resulted in reduced

total pay, no back pay would be awarded in this case

even if petitioner prevailed. In addition, we have

been informed by the Postal Service that petitioner

has now obtained a part-time position as a postal

clerk and that, through counsel, she has informed the

Postal Service that she no longer is interested in

obtaining the part-time position as a letter carrier

that was involved in this Title VII suit. For these

reasons, all that remains at issue in this case is the

question of attorney fees, and a major portion of

those fees is attributable to work in the court of

appeals and this Court that was made necessary

only because of the attorney’s own error in failing to

name the proper party in the complaint. Even if the

particular relation-back question otherwise warranted

review, it would be more appropriate for the Court

to consider the matter in a case in which there is

actually something at stake for the Title VII plaintiff.

12 In her December 14, 1984 letter to the Clerk of this Court,

petitioner cites three cases in the Southern District of Cali-

fornia in which suits were dismissed on the authority of the

Ninth Circuit’s decision in this case. Shen v. Lehman, No. 83-

362 (Nov. 28, 1984); Alexandey v. Lehman, No. 82-1607

(Oct. 25, 1984) ; Neff v. Lehman, No. 83-0186 (Oct. 26, 1984).

We have been informed by the United States Attorney, how-

ever, that the plaintiff in those cases was represented by the

same law firm that represented petitioner in district court.

There accordingly is no reason to believe that the error is

common among other lawyers—or, indeed, that such a failure

to comply with an explicit statutory standard might not pro-

vide a basis for a malpractice claim by a client prejudiced

thereby.

25

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

REX E. LEE

Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney General

ROBERT S. GREENSPAN

MARILYN S. G. URWITZ

Attorneys

JANUARY 1985

¥Y U. S. GOVERNMENT PRINTING Office; 1965 461531 10138