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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1022

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0343%3A3. Public record. Not legal advice.