Petition for Writ of Certiorari — Gonzales v. Secretary of the Air Force
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IN THE
Supreme Court of the United States
October Term, 1987
> panei
JOE T. GONZALES,
Petitioner,
SECRETARY OF THE AIR FORCE AND
DEPARTMENT OF THE AIR FORCE,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
JOHN E. TOBIN WILLIAM L. ROBINSON
Counsel of Record RICHARD T. SEYMOUR
EDWARD J. PLUIMER
PATRICIA C. HAYASHI
LAWYERS’ COMMITTEE FOR
Civil RIGHTS UNDER LAW
DorSEY & WHITNEY 1400 Eye Street, N.W.
350 Park Avenue Suite 400
New York, New York 10022 Washington, D.C. 20005
(212) 415-9200 (202) 371-1212
GEORGE A. GONZALES
P.O. Box 5273
100 Chestnut, Suite 102
Abilene, Texas 79602
(905) 676-5531
Attorneys for Petitioner
Jor T. GONZALES
November 16, 1987
i
QUESTIONS PRESENTED
1. Whether the courts may dismiss the Title VII employment
discrimination claims of federal employees against the federal
government by interpreting this Court’s decision in Schiavone v.
Fortune, 477 U.S. 21, 106 S. Ct. 2379 (1986), to preclude later
amendment of the complaint to add the head of a federal agency
as a defendant, where the individual claimant mistakenly named
the agency instead of the head of the agency.
2. Whether the thirty-day filing provision of 42 U.S.C.
§ 2000e-16(c) is jurisdictional, thereby rendering courts power-
less to consider equitable factors in applying the thirty-day filing
period to an amendment adding the head of the agency as a
defendant in a Title VII action against the federal government.
PARTIES TO THE PROCEEDING
The petitioner in this application for a writ of certiorari to
review dismissal of his Title VII employment discrimination
ciaim is Joe T. Gonzales. The respondents are the Secretary of
the Air Force and the Department of the Air Force.
-ii-
TABLE OF CONTENTS
CUES THINS PIRES BaP occisccrcvnscecacscasnnsssaasionseuasans
PARTIES TO THE PROCEEDING. ...... eee
A.
B.
C.
D.
a.
Administrative Proceeding ..................scssessecessoees
Air Force Instructions Concerning The District
COMitt AREION oo iscnnisccunquecheeiemeaee ee
Decision Of The District Court 2.0.00...
Dismissal By The District Court. .................00.
Decision Of The Court Of Appeals ....................
REASONS FOR GRANTING THE WRIT OF
CER THCRAR SE an.inscvcsosniniovtcnmaaniene a ees
I.
CERTIORARI SHOULD BE GRANTED TO
REVIEW THE MISAPPLICATION OF
SCHIAVONE AND RULE 15(c) ...... ee.
A. The Lower Courts, In Applying Schiavone
To Title VII Cases, Have Not Followed
Relevant Decisions Of This Court .............
B. The Application Of Schiavone In Title VII
Cases Against The Federal Government Is
An Important Issue Which Has Never Been
Addressed By This Court But Which Will
Directly Affect Hundreds Of Individual
ClaOGG 0550.65 ee
CERTIORARI SHOULD BE GRANTED TO
PROVIDE PROMPT REVIEW OF THE FAIL-
URE OF THE COURT OF APPEALS TO AD-
DRESS THE PETITIONER’S EQUITABLE
ARGUE GSS. .s.sx::s0c;scsusvasneeeen ene
Nn > ff
see
Page
A. Review Is Warranted Because Of Conflict
Among Several Of The Circuit Courts Of
SN Seal et cates irah csecuinssbcadsahoesvsnsdaaicaandeeaninece 15
B. Review Is Warranted Because The District
Court’s Decision That Section 2000e-16(c)
Is /, Jurisdictional Prerequisite Is Contrary
To Decisions Of This Court .....0000...ce. 17
IIE reciithdanedeesns issacdseessncasgasnesaanserasenstascnrensas ai 21
-iv-
TABLE OF AUTHORITIES
Cases:
Antoine v. United States. Postal Service, 781 F.2d 433
CE Meets SOI: sais slasiinetamdeatadbadbiadsns ak pustiecedinabascie
Baldwin County Welcome Center v. Brown, 466 U.S.
DORE STE: snisnsdccchsmmiseancigincesondpsusasicneantcuaicioeunaaiens
Bell v. Veterans Administration Hospital, 826 F.2d 357
Se aes See O ciierseecinbennuibescigassateccumansaniaoces
Blair v. United States Postal Service, 657 F. Supp. 524
Us Nc IED Acaxaciscscodlnnnapaiblcusaniotieasaneatardiacoienas
Boddy v. Dean, 821 F.2d 346 (6th Cir. 1987) 20.0...
Brown v. General Services Administration, 425 U.S.
Se CEE: sicisensn dno scitadleboncecs crete elaseeenscios
Burnett v. New York Central Ry., 386 U.S. 424
MED coscsausatenihtinnslatansdabsotaciidaas cbdalasaeasoenddanaouseuk
Chandler _ vy. Roudebush, 425 US. 840
SP UPIINE tiie locas taniceasasniag Vaan aliixa cuneate pane laheaapomsassiadliwiiie
COPE cacinnsensiaimssbbuadinmnadahnnntinaareneierendelateentnaienshanin
Cooper v. United States Postal Service, 740 F.2d 714
(9th Cir. 1984), cert. denied, 471 U.S. 1022 .........
Crown, Cork & Seal Co. v. Parker, 462. U.S. 345
EMIS ccketts care caccumenaiels sha usabbamanslouncedmmmbenmeibiabaiatss
Culpepper v. Reynolds Metals Co., 421 F.2d 888 (Sth
i IN icc tthas acca hl oe oe
Eastland v. Tennessee Valley Authority, 553 F.2d 364
(Sth Cir.), cert. denied, 434 U.S. 985 (1977) .......
Ex parte Young, 209 U.S. 123 (1908)...
Fallett v. United States Postal Service, 644 F. Supp.
ne Se ic < BIND sinha sakctabbaitesidicinecdidibciasantaipuadeiie
Galvan v. Bexar County, 785 F.2d 1298 (Sth Cir.
ERE ete RY RRS A ae
Page
16,18
Gonzales v. Secretary of the Air Force, 824 F.2d 392
Cee Sil, BOE ED: sctnicntsccehicensenasnetassaiatinbeanddeganicaaiaietes
Gonzales v. Secretary of the Air Force, 638 F. Supp.
1323 (N.D. Tex. 1986), affd, 824 F.2d 392
CRN ae IEE D wethnicnascaidndelisiniaiansaccdbtinsincanigacpeliansnis
Hornsby v. United States Postal Service, 787 F.2d 87
CAIN ues” UIE <cuctikstesnsns Labinstiinkiebedssguashanistneolanmamentess
Jenkins v. United States Postal Service, No. 86-2192,
slip op. (E.D. La. December 1, 1986) 0...
Johnson v. United States Postal Service, 113 F.R.D. 73
ae SBOE cdiscsechss-nseecasuscetonicsnizteneteennenecaies
Koucky v. Department of the Navy, 820 F.2d 300 (9th
dels TUNED shaiindinaccsenap bch uahacentseniseaiadexduccainebannbomadatas
Loe v. Heckler, 768 F.2d 409 (D.C. Cir. 1985) ........
Love v. Pullman Co., 404 U.S, 522 (1972) ou...
Martinez v. Orr, 738 F.2d 1107 (10th Cir. 1984) ....
Milam v. United States Postal Service, 674 F.2d 860
CR RU GC Read ccicicloenctataceeepibdaindchteenGaciaeiadaisten ns
Miller v. Marsh, 766 F.2d 490 (11th Cir. 1985) ......
Newbold v. United States Postal Service, 614 F.2d 46
(Sth Cir.), cert. denied, 449 U.S. 878 (1980) .......
Order of Railroad Telegraphers v. Railway Express
Agency, Inc., 321 U.S. 342 (1944) wees
Paulk v. Department of the Air Force, 44 Fair Empl.
Prac. Cas. (BNA) 1473 (7th Cir. 1987) wc.
Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d
Te CE Ga FOE iadeiskciccinennansindeniamepeamndpis
Rice v. Hamilton Air Force Base Commissary, 720
Fide SOS COUN CW TSG SP sicsieescct canescens
Ross v. U.S. Postal Service, 814 F.2d 616 (11th Cir.
POET aksccssntiocnctaceidatteisnidaat cakclseabicmiaeelasdntin tes
Saltz v. Lehman, 672 F.2d 207 (D.C. Cir. 1982) .....
Sanchez v. Standard Brands, Inc., 431 F.2d 455 (Sth
Coa PIE hiscieaxceidinicctpeananuinchuare und Gente tags eran
Page
1,3,8,
11-12,14,
passim.
1,5,13
passim.
15
8-9
16,17
15,18
15-16
10
-vi-
Page
Schiavone v. Fortune, 477 U.S. 21, 106 S. Ct. 2379 — 2,59,
DTIINEEET SniisDbccisicegheeddiveshoussvainouimecebonseuiieannctamccniaee 11.17.18
passim.
Scott v. St. Paul Postal Service, 720 F.2d 524 (8th Cir.
1983), cert. denied, 465 U.S. 1083 (1984) ............ 16
Sims v. Heckler, 725 F.2d 1143 (7th Cir. 1984) ...... 16
Stewart v. United States Postal Service, 649 F. Supp.
SON CORE chs SUED | actintecicevendssitinniscpieeeriinedees 8-910
Stuckett v. United States Postal Service, 469 U.S. 898
PUTED skccceeeaas sense cundentennhobennatsuabeemvapanenebemmembntouieiess 16
Williams vy. Army & Air Force Exchange Service, 830
of eit be Se : | eho Ee 8,15
Zipes v. Trans World Airlines, Inc., 455 US. 385 — 9-10,
EUPUIIRIE DY | cikkaccsesesuasscnidisnapteicsiatgensscoanecaiceatlanaeaaaneaniaa 16-17,
18-19
Statutes
Title VII of the Civil Rights Act of 1964, Section
717(c), as amended, 42 U.S.C. § 2000e-16(c)
PRUE} devi snnsiusasccchsasebessbeeadivadephaeiieadaaanian elaine 2,4,7
Federal Rules of Civil Procedure, Rule 4(j) .............. 2
Federal Rules of Civil Procedure, Rule 8(f) .............. i)
Federal Rules of Civil Procedure, Rule 15(c) ........... 2,7-8,13
Rules of the Supreme Court of the United States, Rule
FRE? SiiaccisitucésatieSsrcainitinsacasnbniananaaeiaaeeamalemnieanduaal 6-7
p PIR A ae Bee 6) necseseriivinisveesessuasebvnsasaens l
Be Sense CED. ccccsscssienncauensbiageaisanieanmeianels 3
Miscellaneous
S. Rep. No. 92-415, 92d Cong. (1971) .................08 19
H.R. Rep. No. 1746, 92d Cong., 2d Sess. 103, reprinted
in 1972 U.S. Code Cong. & Ad. News 2157-60 .... 19
R. Stern, E. Gressman & S. Shapiro, SUPREME COURT
PAK TUCE COG GE FD: secsccisssncdeccectaclateadenns 6-7
No. 87-
IN THE
Supreme Court of the United States
October Term, 1987
>
Joe T. GONZALES,
Petitioner,
| A
SECRETARY OF THE AIR FORCE AND
DEPARTMENT OF THE AIR FORCE,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioner requests that a writ of certiorari be issued to review
the judgment and opinion of the United States Court of Appeals
for the Fifth Circuit, entered in the above proceedings on August
18, 1987.
OPINIONS BELOW
The opinion of the Court of Appeals is reported at 824 F.2d 392
(Sth Cir. 1987) and is reprinted in the appendix hereio, p. 5A,
infra. The opinion of the United States District Court for the
Northern District of Texas is reported at 638 F. Supp. 1323
(N.D. Tex. 1986) and is reprinted in the appendix hereto, p. 18A,
infra.
JURISDICTION
The decision of the Court of Appeals was entered on August
18, 1987. This Court has jurisdiction to review the decision of the
Court of Appeals by writ of certiorari pursuant to 28 U.S.C.
§ 1254(1).
x,
STATUTORY PROVISIONS INVOLVED
This case involves Rules 15(c) and 4(j) of the Federal Rules of
Civil Procedure and Title VII of the Civil Rights Act of 1964,
Section 717(c), as amended, 42 U.S.C. § 2000e-16(c) (1982).
The statutes are reprinted in the appendix hereto pp. 2A-4A,
infra.
STATEMENT OF THE CASE
The issues raised in this case are of great importance to federal
employees seeking to enforce their civil rights under Title VII of
the Civil Rights Act of 1964 (“Title VII"), Section 717(c), as
amended, 42 U.S.C. § 2000e-16(c) (1982), against agencies of
the federal government. The dismissal of petitioner’s claims typ-
ifies the harsh results of the erroneous or unintended application
of this Court's decision in Schiavone v. Fortune, 477 U.S. 21, 106
S. Ct. 2379 (1986), and Rule 15(c) of the Federal Rules of Civil
Procedure. That same misapplication of Schiavone has been used
by numerous courts to preclude Title VII claimants from litigat-
ing their claims on the merits, because they made a trivial proce-
dural mistake.
Each of these cases involves the application of Rule 15(c) to
Title VII claims against the federal government. Each claimant
exhausted his administrative remedies against the defendant
agency in a protracted adversarial proceeding. In each case, the
government agency had full knowledge of all aspects of the claims
due to adversarial administrative proceedings that included inves-
tigations, findings, and the assistance of counsel. After exhaust-
ing all administrative remedies, each employee filed his action in
federal court in a timely manner within the thirty-day filing
period, but erroneously named the agency as the defendant. The
federal employee then sought to amend his complaint to add the
proper defendant, the head of the agency.
Applying this Court’s decision in Schiavone, the courts below
have dismissed these Title VII claims, concluding erroneously
that Schiavone requires dismissal whenever a federal employee-
claimant makes one technical mistake—he names the agency,
x.
instead of its head, as the defendant in his federal action and fails
to correct his mistake within the thirty-day filing period. Asa
result, in each instance, notice of and participation in the adminis-
trative litigation was not sufficient “notice of the action” to permit
relation back of the amendment to the complaint under Rule
15(c). The results *re the frustration of congressional policy
and injustice to a large group of federal employees.
The facts of the petitioner’s case are undisputed. In 1980,
petitioner was employed by the United States Air Force (“Air
Force”) at Goodfeliow Air Force Base in San Angelo, Texas. He
applied tor and was denied a promotion. Petitioner, a Mexican-
American, claimed he was denied the promotion on the basis of
race and national origin. On January 7, 1981, he filed a formal
administrative claim against his employer, the Air Force, claim-
ing discrimination under Title VII.
A. Administrative Proceeding
Federal employees are required to exhaust certain administra-
tive remedies before filing suit in federal court. Love v. Pullman
Co., 404 U.S. 522, 523 (1972). Petitioner’s administrative pro-
ceeding was conducted in accordance with 29 C.F.R.. § 1613.
This proceeding’s history illustrates the administrative labyrinth
facing all plaintiffs in Title VII cases against the federal govern-
ment. During the four-year administrative process, petitioner
was faced with a number of short limitations periods of fifteen,
twenty, and thirty days, in which he was required to give notice,
file complaints, and submit formal requests in order to enforce his
claims against the Air Force. He satisfied each requirement in a
timely manner. As the Court of Appeals observed, petitioner
“diligently pursued his administrative remedies in accord with
Department instructions and procedures.” Gonzales v. Secre-
tary of the Air Force, 824 F.2d 392, 393 (Sth Cir. 1987).
Throughout . the four-year proceeding, the Aijr
Force—represented by legal counsel—was able to and did con-
duct a thorough investigation, interviewing all witnesses with
first-hand knowledge and reviewing relevant documents. These
-4-
documents included employee records and evaluations, position
descriptions, applications, resumes, and work force demographic
studies. The Air Force participated in an adversarial hearing, in
which it actively and vigorously defended against petitioner's
claims. Thereafter, the Air Force prepared and submitted a
post-hearing brief, and later submitted briefs upon appeal to the
Equal Employment Opportunity Commission (“EEOC”) in an
action captioned Gonzales v. Department of the Air Force. The
Air Force was thus thoroughly familiar with petitioner’s claims
and the underlying facts, and vigorously defended against those
claims during four years of adversarial litigation.
B. Air Force Instructions Concerning The District
Court Action
In mid-March 1985, petitioner received notice of the final,
adverse EEOC decision in his administrative appeal against the
Department of the Air Force. Notices from various Air Force
representatives advised petitioner of his right to file a civil action.
Petitioner, however, was never advised by the Air Force that he
was required to file his district court action against the Secretary
of the Air Force (“Secretary”) in his official capacity, or that he
could not proceed against the Air Force alone, as he had done
throughout the four years of adversarial administrative
proceedings.
C. Decision Of The District Court
On April 12, 1985, in accordance with the Air Force’s instruc-
tions and within the thirty-day filing period of Section 717(c) of
Title VII, 42 U.S.C. § 2000e-16(c) (“Section 2000e-16(c)”),
petitioner filed a complaint in the United States District Court for
the Northern District of Texas, alleging claims of employment
discrimination under Title VII. The complaint named the same
defendant against whom petitioner had been litigating for four
years. The Air Force received a copy of the summons and com-
plaint on or about April 30, 1985, and the petitioner served the
United States Attorney on July 24, 1985, both within the 1 20-day
a a
service requirement of Rule 4(j) of the Federal Rules of Civil
Procedure.
D. Dismissal By The District Court
More than a year later, on April 16. 1986, the Air Force moved
to dismiss petitioner’s complaint for failure to state a claim. The
Air Force argued that petitioner had failed to institute his action
against the “proper party,” the Secretary, within thirty days of
petitioner’s receipt of the final EEOC decision, as required under ~
Section 2000e-16(c).
On May 16, 1986, the district court denied the Air Force’s
motion and granted leave to amend the complaint to add the
Secretary as a defendant. The district court held that Section
2000e-16(c) was jurisdictional; but relying upon the liberal
application of Rule 15(c) embraced by the Fifth Circuit, it held
that petitioner had in fact complied with the jurisdictional
requirements contained in Section 2000e-16(c). The district
court noted that petitioner had satisfied the jurisdictional prereq-
uisites by commencing his action against the Air Force within the
thirty-day filing period and by serving the summons and com-
plaint upon the Air Force within a reasonable time after the
thirty-day period had run. On July 2, 1986, petitioner filed an
amended complaint naming the Secretary as a defendant.
On June 18, 1986, this Court rendered its decision in Schiavone
v. Fortune, 477 U.S. 21, 106 S. Ct. 2379 (1986). On July 17,
1986, the respondents moved for reconsideration based upon
Schiavone. The district court then dismissed the action.
Gonzales v. Secretary of the Air Force, 638 F. Supp. 1323, 1325
(N.D. Tex. 1986), aff'd, 824 F.2d 392 (Sth Cir. 1987). The
district court erroneously relied on Schiavone and held that
“there [was] no proper notice to the [Air Force] that could be
imputed to the Secretary of the Air Force,” because petitioner
did not serve the Air Force within the thirty-day period. /d. at
1325.
-6-
E. Decision Of The Court Of Appeals
On August 18, 1986, petitioner filed his notice of appeal of the
district court’s dismissal. On August 18, 1987, the Court of
Appeals for the Fifth Circuit affirmed the district court’s dismis-
sal of petitioner’s claims. The Court of Appeals did not address
petitioner’s arguments that: 1) the congressional policy on which
the remedial goals of Title VII are based requires liberal applica-
tion of the thirty-day filing provision; 2) the Air Force misled
petitioner concerning the filing requirements of his action in fed-
eral district court and thereby waived its right to assert the thirty-
day filing provision under principles of equity; and 3) Schiavone
should not be applied retroactively. 824 F.2d at 393-96.
Instead, the Court of Appeals dismissed petitioner’s claim
solely on the ground that Schiavone and Rule !5(c) require the
Secretary to receive notice of the federal lawsuit within the thirty-
day filing period. 824 F.2d at 394-96. The Court of Appeals
found it irrelevant that the Air Force had full knowledge of
petitioner’s claim and the underlying facts as a result of four
years of mandatory administrative proceedings. /d. at 396. The
Court of Appeals held that the later amendment adding the Sec-
retary did not relate back to the filing of the complaint under Rule
15(c) and affirmed the district court’s dismissal of petitioner’s
claims for failure to sue the proper party. /d.
Judge John R. Brown dissented from the majority “with a good
deal of vigor.” 824 F.2d at 399-400. He noted that “[tjhe
majority’s characterization of [Section] 2000e-16(c) and Rule
15(c) as traps to frustrate a citizen in his quest to vindicate his
civil right[s] is contrary to the spirit of our civil rights laws and
the aspirations of the drafters of the Federal Rules of Civil Proce-
dure.” /d. at 396.
REASONS FOR GRANTING THE WRIT OF
CERTIORARI
The questions presented in this petition fall squarely within
three of the categories of “special and important reasons” for
granting certiorari. R. Stern, E. Gressman & S. Shapiro,
SUPREME COouRT PRACTICE 194 (6th ed. 1986); Sup. Ct. R.
x %
17.1. First, the proper application of Schiavone and Rule 15(c)
is a federal question with recurring and systemic effect on the
rights of Title VII claimants throughout the country. Second,a —
clear conflict between the Circuit Courts of Appeals requires
immediate resolution by this Court to provide uniformity in the
application of federal law. Finally, the decision of the court
below is contrary to the decisions of this Court. This Court should
exercise its supervisory power to issue a uniform rule and correct
the existing confusion.
I
CERTIORARI SHOULD BE GRANTED TO
REVIEW THE MISAPPLICATION OF SCHIAVONE
AND RULE 15(C).
Schiavone has been applied by the lower courts in a manner
which has consistently allowed agencies of the federal govern-
ment to avoid review of Section 2000e-16(c) Title VII claims
against the federal government on the basis of a single technical-
ity—the individual claimant filed his action in a timely manner
within the thirty-day filing period but mistakenly named the
agency instead of the head of the agency as the defendant. None
of these cases involves the adequacy of notice to the defend-
ants—only the consequence of a pleading error.
Section 2000e-16(c) requires, inter alia, that the claimant file
his employment discrimination action against an agency of the
federal government within thirty days of the time he receives the
final decision in his administrative appeal to the EEOC and that
he name the head of the agency as a defendant. 42 U.S.C.
§ 2000e-16(c) (1982).
In many reported post-Schiavone Title VII cases, the claimant
sought to amend his complaint, pursuant to Rule 15(c), to add
the head of the agency as a defendant after the thirty-day filing
period had run. Rule 15(c) permits relation back of an amend-
ment changing a party where the claims of the amended com-
plaint arose out of the conduct, transaction, or occurrence set
forth in the original complaint and where, within the limitations
-8-
period, the party to be added by amendment: 1) “received such
notice of the institution of the action that he wil! not be prejudiced
in maintaining his defense on the merits” and 2) “knew or should
have known that, but for a mistake concerning the identity of the
proper party, the action would have been brought against him.”
Fed. R. Civ. P. 15(c).
Courts in the Second, Third, Fifth, Ninth, and Tenth Circuits
have applied Schiavone to preclude any later amendment adding
the head of the agency as a defendant pursuant to Rule 15(c),
despite the fact that in each case:
(1) The claimant filed the action in district court after
being required to exhaust his administrative remedies
in a full and often protracted adversarial administra-
tive proceeding, in which the defendant agency was
able to investigate the facts, preserve evidence, and
actively litigate against the claims;
(2) The claimant filed the district court action in a timely
manner within the thirty-day filing period;
(3) The claimant filed the district court action against his
adversary in the administrative litigation—the
agency;
(4) The claimant served a summons and complaint upon
the defendant agency within the 120-day service
period provided under Rule 4(j);
(5) The claimant concededly would have satisfied Rule
4(;) if he had named the head of the agency initially
and served the summons and complaint after the
thirty-day filing period had expired but before the
120-day service period had run; and
(6) The head of the agency and the agency are and were
in fact the same party.
See, e.g., Williams v. Army & Air Force Exchange Service, 830
F.2d 27 (3d Cir. 1987); Koucky v. Department of the Navy, 820 —
F.2d 300, 302 (9th Cir. 1987); Bell v. Veterans Administration
Hospital, 826 F.2d 357, 360 (Sth Cir. 1987); Gonzales v.
Secretary of the Air Force, 824 F.2d 392, 394-96 (Sth Cir.
1987); Blair v. United States Postal Service, 657 F. Supp. 524,
-9.
526 n.2 (S.D. Tex. 1987); Stewart v. United States Postal Ser-
vice, 649 F. Supp. 1531, 1534-36 (S.D.N.Y. 1986); Johnson v.
United States Postal Service , 113 F.R.D. 73, 76-77 (D. Colo.
1986); Jenkins v. United States Postal Service, No. 86-2192, slip
op. (E.D. La. December |, 1986); cf. Fallett v. United States
Postal Service, 644 F. Supp. 625, 628-29 (N.D. Tex. 1986)
(construing claim under Section 501 of the Rehabilitation Act of
1973, applying Section 2000e-16(c) filing provision).
These cases involve a substantial number of claimants under
Title VII who have had their claims dismissed based upon a
mistaken application of Schiavone and Rule 15(c) in the Title
VII context. Naming the agency instead of the head of the
agency is a trivial mistake; actual notice to the head of the agency
is not at issue. Under Title VII, each claimant files his district
court action after fully litigating his identical claims against the
agency in an administrative proceeding.
A. The Lower Courts, In Applying Schiavone To Title
VII Cases, Have Not Foliowed Relevant Decisions Of
This Court.
The decisions of courts below erroneously applying Schiavone
conflict with other decisions of this Court construing Title VII
claims. Their incorrect interpretation of Schiavune is contrary to
decisions of this Court before and after Schiavone and has
resulted in numerous dismissals based upon a rigid and unjust
application of the Federal Rules of Civil Procedure.
As this Court noted in Schiavone, Congress intended that the
Federal Rules of Civil Procedure be “construed so as to do sub-
stantial justice.” 477 U.S. at , 106 S. Ct. at 2383 (quoting
Fed. R. Civ. P. 8(f)). The “principal function of procedural
rules should be to serve as useful guides to help, not hinder,
persons who have a legal right to bring their problems before the
courts.” Jd. at___ , 106 S.. Ct. at 2383.
According to this Court, a “guiding principle for construing the
provisions of Title VII” is that literal and technical readings of the
Title VII filing provisions “would be ‘particularly inappropriate in
-10-
a statutory scheme in which laymen,’ unassisted by trained law-
yers, initiate the process.”” Zipes v. Trans World Airlines, Inc.,
455 US. 385, 397 (1982) (quoting Love v. Pullman Co., 404
U.S. 522, 527 (1972)).
The decisions cited at pp. 8-9, supra, frustrate the congres-
sional intent in enacting Title VII and conflict with this Court’s
guidance in applying it. In Brown v. General Services Adminis-
tration, 425 U.S. 820, 825, 827-29 (1976), this Court held that
Congress enacted Section 2000e-16 “to create an exclusive, pre-
emptive administrative and judicial scheme for the redress of
federal employment discrimination,” because it was concerned
that aggrieved federal employees did not have access to the courts
and were often left to overcome a United States government
defense of sovereign immunity.
The provisions of Title VII are to be liberally construed. See
Zipes, 455 U.S. at 397, 398; Love, 404 U.S. at 527. Liberal
application of procedural rules is required in order “to protect
equal opportunity among all employees and prospective employ-
ees.” Galvan v. Bexar County, 785 F.2d 1298, 1306 (Sth Cir.
1986) (construing Age Discrimination in Employment Act
(“ADEA”) claim) (quoting Sanchez v. Standard Brands, Inc.,
431 F.2d 455, 463 (Sth Cir. 1970)); accord Reeb v. Economic
Opportunity Atlanta, Inc., 516 F.2d 924, 928 (Sth Cir. 1975).
“It is ... the duty of the courts to make sure that [Title VII]
works, and the intent of Congress is not hampered by a combina-
tion of a strict construction of the statute and a battle with
semantics.” Culpepper v. Reynolds Metals Co., 421 F.2d 888,
891 (Sth Cir. 1970). “[{J]udges slight the legislature’s central
command if they fail to recall that Title VII was devised as a
measure that would be kept accessible to individuals untrained in
negotiating procedural labyrinths.” Loe v. Heckler, 768 F.2d
409, 417 (D.C. Cir. 1985); accord Zipes, 455 U.S. at 397.
1. While, as it happens, this petitioner was represented by an attorney, ine
lower courts have applied Schiavone in pro se actions, using the same technical
interpretation of that decision and Rule 15(c) to dismiss the Title VII claims of
litigants unrepresented by attorneys. E.g., Johnson, 113 F.R.D. at 74; Stewart,
649 F. Supp. at 1535.
Sim
Fair application of Schiavone clearly permits the relation back
of petitioner’s amendment of his complaint to add the Secretary.
In each of the cited post-Schiavone cases, individuals were
deprived of their opportunity to litigate their claims on the merits
before the district court because they. each made one mis-
take—they named the agency, against whom they had litigated in
the administrative proceeding, instead of the head of the agency.
The result of such an application is unjust and frustrates the
congressional policy of Title VII. Given the misapplication of
Schiavone resulting in repeated dismissals of Title VII claims
based upon the same technical pleading error, this Court should
review the decision below.
B. The Application of Schiavone In Title VII Cases
Against The Federal Government Is An Important
Issue Which Has Never Been Addressed By This
Court But Which Will Directly Affect Hundreds Of
Individual Claimants.
In Schiavone, this Court held that a plaintiff must satisfy four
requirements under Rule 15(c) to amend his complaint to name
an additional defendant after the statute of limitations has run:
(1) [T]he basic claim must have arisen out of the con-
duct set forth in the original pleading;
(2) [T]he party to be brought in must have received such
notice that it will not be prejudiced in maintaining its
defense;
(3) [T]hat party must or should have known that, but for
the mistake in identity, the action would have been
brought against it; and
(4) [T]he second and third requirements must have been
fulfilled within the prescribed limitations period.
477 US. at __ , 106 S. Ct. at 2384.
Each of the claimants in the post-Schiavone cases, and peti-
tioner in particular, satisfied all of the Schiavone requirements.
First, the claims in each amended complaint arose out of the
conduct set forth in the original pleading. In particular, as the
£3.
court below noted and all parties agreed, petitioner in this case
satisfied this requirement. 824 F.2d at 395.
Second, because the agency in each case participated in an
adversarial administrative litigation, with extensive discovery and
the assistance of counsel, there was full knowledge of the particu-
lars of the claimant’s case. As a result, the head of the agency
received such notice that he could not be prejudiced in maintain-
ing his defense in the federal court action. It would be unfair to
dismiss these claims where the head of the agency clearly had
timely and adequate notice necessary to avoid prejudicing his
defense of the merits of the suit.
In petitioner’s case, all known witnesses have been interviewed,
statements have been taken, there has been a full exchange of
pertinent documents, the Secretary had full knowledge of peti-
tioner’s claims and lega! theories, and the Secretary has been
represented by counsel for years. The court below applied Schia-
vone mechanically and erroneously. The notice requirement of
Rule 15(c) is designed to prevent prejudice to the litigant who
has not had fair notice. The agency heads in these cited cases
could not claim prejudice.
The purpose of the “notice” requirement of Rule 15(c) was
fully satisfied, but the result of the lower court’s misapplication of
Schiavone was injustice. As the dissenting judge below noted,
“Whether the Air Force or some functionary in the office of the
Secretary is served, the same people at the Department of the Air
Force will process the summons, the same Air Force representa-
tive will appear in court, and the same entity will shoulder the
burden of loss if [petitioner] prevails.” 824 F.2d at 399.
Third, because Title VII requires exhaustion of administrative
remedies against the agency before an aggrieved federal
employee can file an action against the head of the agency in
federal court, it is clear that the head of each agency knew or
should have known that, but for the mistake in identity, the
claimant would have filed his action against the head of the
agency, and not just against the agency itself.
it
Finally, the head of each agency received notice of the institu-
tion of the action within the limitations provision such that he will
not be prejudiced in maintaining his defense on the merits.
Within the thirty-day filing period, each agency was “put ... on
notice of adverse claims,” so that the evidence was fresh, memo-
ries were Clear, witnesses were identified, and testimony was pre-
served through the agency’s participation in the administrative
litigation. Cf. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345,
352 (1983); accord. Burnett v. New York Central RY., 380 U.S.
424, 428 (1965); Order of Railroad Telegraphers v. Railway
Express Agency, Inc., 321 U.S. 342, 348-49 (1944) (construing
policies underlying the application of statutes of limitations). The
policy underlying the requirment of notice within the limitations
provision was fully satisfied in each case.
Moreover, as the dissenting judge below noted, the requirement
of notice of the institution of the lawsuit within the limitations
provision is satisfied in an action against the federal government
by “delivery or mailing of process to a United States Attorney.”
824 F.2d at 399 (quoting Fed. R. Civ. P. 15(c)). Petitioner
served the United States Attorney on June 24, 1985, 100 days
after filing his complaint.
Under Rule 4(j), service upon the United States Attorney is
proper if effected within 120 days after the claimant files, his
complaint. Gonzales, 824 F.2d at 399 (Brown, J., dissenting ).
“Service of Process on the United States Attorney [gives], pursu-
ant to Rule 15(c), the proper federal government defendant
notice of the action and of the mistaken naming of the wrong
governmental defendant ....” Cf. Paulk v. Department of the
Air Force, 44 Fair Empl. Prac. Cas. (BNA) 1473, 1476 (7th Cir.
1987) (allowing relation back under Rule 15(c) in a Section
2000e-16(c) Title VII action where the thirty-day period was
extended by the filing of an in forma pauperis application and the
United States Attorney was served after the initial thirty-day
period had expired).
Petitioner satisfied each of the four requirements under
Schiavone. and his later amendment adding the Secretary should
-14-
properly relate back to the filing of his complaint under Rule
1S(c).
Schiavone should not be applied rigidly in the Title VII con-
text. Schiavone involved a claim under a state libel statute pre-
ceded by no administrative proceeding, with no apparent notice
whatsoever to the proper defendant before the filing provision
expired. The statute of limitations in Schiavone was one year, not
thirty days. The claim here is one established by explicit con-
gressional action in favor of federal employees. Title VII claims
against the federal government, unlike the claims of libel in
Schiavone, require a lengthy administrative process before a
claimant may sue in federal court. In enacting Title VII, Con-
gress contemplated a continuity between the administrative pro-
cess and the district court action. See Loe v. Heckler, 768 F.2d
409, 417 (D.C. Cir. 1985). Having benefitted from the opportu-
nity to litigate against petitioner’s claim for four years, and obvi-
ously having had adequate notice, respondents cannot claim the
unfair surprise or prejudice that may be present in cases where no
prior administrative litigation has occurred.
es
Respondents should not be able to deprive Title VII claimants
of their right to have their claims heard on the merits in federal
court because of a legal fiction that the Secretary of the Air Force
and the Air Force are not the same legal entity. As the dissenting
judge below observed: “While historically, legal fictions have
been utilized to meet the needs of justice, Ex parte Young, 204 U.
S. 123 (1908), legal fictions should never be utilized to frustrate
everyday realities.” 824 F.2d at 399. The Air Force litigated
against petitioner’s claims for four years, and the notice require-
ment of Schiavone has been satisfied.
Each of the requirements of Schiavone has been satisfied in this
case. The Secretary cannot claim prejudice. This Court should
not countenance the misapplication of Schiavone. This Court
should grant certiorari in order to correct the pervasive and unjust
consequences of the misapplication of Schiavone by courts below.
.
a8
CERTIORARI SHOULD BE GRANTED TO
PROVIDE PROMPT REVIEW OF THE FAILURE
OF THE COURT OF APPEALS TO ADDRESS THE
PETITIONER’S EQUITABLE ARGUMENTS.
A. Review Is Warranted Because Of A Conflict Among
Several Of The Circuit Courts of Appeals.
This Court should grant the writ of certiorari in order to resolve
the conflict among the Circuit Courts of Appeals as to whether
the thirty-day filing requirement of Section 2000e-16(c) is juris-
dictional. If it is not jurisdictional, the courts will be permitted to
Consider equitable factors in applying the thirty-day filing
requirement. The Court of Appeals for the Fifth Circuit did not
even consider petitioner's claim that the district court erroneously
failed to address equitable factors before dismissing petitioner's
action. The district court had held that under Fifth Circuit
decisions “Section 2000e-16(c) is jurisdictional”; that determi-
nation became law of the case. The district court was thereafter
precluded from considering equitable factors before dismissing
petitioner’s claims. The Court of Appeals did not discuss or
reject the district court’s holding. Soon thereafter, however, it
heid in another case that the thirty-day filing requirement is
jurisdictional. Bell v. Veterans Administration. Hospital, 826
F.2d 357, 360-61 (Sth Cir. 1987).
The Court of Appeals decision below that Section 2000e-16(c)
is jurisdictional is in conflict with decisions in the Courts of
Appeals for the District of Columbia, Third, Sixth, Tenth, and
Eleventh Circuits, which have held that the thirty-day provision is
not jurisdictional. Wiliams v. Army & Air Force Exchange
Service, 830 F.2d 27 (3d Cir. 1987); Ross v. U.S. Postal Service,
814 F.2d 616, 617 (1ith Cir. 1987); Hornsby v. United States
Postal Service, 787 F.2d 87, 89 (3d Cir. 1986); Martinez v. Orr.
738 F.2d 1107, 1109-10 (10th Cir. 1984); Miller v. Marsh, 766
F.2d 490, 493 (11th Cir. 1985); Milam v. United States Postal
Service, 674 F.2d 860, 862 (11th Cir. 1982); cf. Boddy v. Dean,
821 F.2d 346, 350 (6th Cir. 1987) (involving filing provision for
-16-
bringing complaint to the attention of the EEO counselor in Title |
VIL action against the federal government); Sa/tz v. Lehman, 672
F.2d 207, 208 (D.C. Cir. 1982) (involving EEOC filing provision
in Title VII action against the federal government).*
The Courts of Appeals for the Fifth, Seventh, and Ninth Cir-
cuits have held that the limitations provision is jurisdictional.
Bell, 826 F.2d at 360-61; Paulk v. Department of the Air Force,
44 Fair Empl. Prac. Cas. (BNA) 1473, 1475 (7th Cir. 1987)
(relying on Sims v. Heckler, “25 F.2d 1143, 1145-46 (7th Cir.
1984) ); Cooper v. United © 2:es Postal Service, 740 F.2d 714,
716 (9th Cir. 1984), cert. deniia, 471 U.S. 1022 (1985); Rice v.
Hamilton Air Force Base Commissary, 720 F.2d 1082, 1083-84
(9th Cir. 1983); Newbold v. United States Postal Service, 614
F.2d 46, 47 (Sth Cir.), cert. denied, 449 U.S. 878 (1980); East-
land v. Tennessee Valley Authority, 553 F.2d 364, 368 (Sth Cir.),
cert. denied, 434 U.S. 985 (1977).
Two justices of this Court have previously recognized the need
to resolve the conflict. Stuckett v. United States Postal Service,
469 U.S. 898 (1984) (White, J., joined by Rehnquist, J., dissent-
ing from denial of writ of certiorari); Cooper v. United States
Postal Service, 471 U.S. 1022 (1985) (White, J., dissenting from
denial of writ of certiorari).
The views of the District of Columbia, Third, Sixth, Tenth, and
Eleventh Circuits are well illustrated by the opinion in Milam v.
United States Postal Service, 674 F.2d 860 (11th Cir. 1982).
The Milam court relied on this Court's decision in Zipes v. Trans
World Airlines, Inc., 455 U.S. 385 (1982), which held that Title
VII filing requirements are not jurisdictional prerequisites to
bringing Title VII actions and, like statutes of limitations, are
subject to waiver, estoppel, and equitable tolling. Zipes, 455
U.S. at 397-98. While Zipes construed an EEOC filing require-
ment in a Title VII action against a private employer, the court in
2. The Eighth Circuit position, as set forth in Scott v. St. Paul
Postal Service, 720 F.2d 524, 524-25 (8th Cir. 1983), cert. denied, 465
U.S. 1083 (1984), is unclear. There the court dismissed for lack of
subject matter jurisdiction, but reviewed equitable considerations in
holding that equitable tolling was not appropriate under the facts of the
case.
-17-
Milam held that the Zipes filing provision and Section 2000e-
16(c) are analogous and that “[t]imely filing is not a prerequisite
to federal jurisdiction.” 674 F.2d at 862. Neither the Fifth nor
the Seventh Circuit has taken Zipes into account. See Beil, 826
F.2d at 360-61 & n.3; Paulk, 44 Fair Empl. Prac. Cas. (BNA) at
1475.
The uneven application of Section 2000e-16(c) by lower courts
is amply demonstrated in the cited cases. The divergent interpre-
tations of the thirtv-day filing requirement have produced grossly
unequal results in the enforcement of Title VII claims against a
single employer, the federal government. Those federal employ-
ees fortunate enough to have brought their actions in circuits
where Section 2000e-16(c) is not considered to be jurisdictional
are permitted to present equitable considerations. Federal
employees who bring their Title VII claims in other circuits are
not.
This Court should provide a uniform interpretation of the Sec-
tion 2000e-16(c) filing requirement in order that all federal
employees will be ensured equal access to the federal courts when
asserting their Title VII claims against the federal government.
B. Review Is Warranted Because The District Court’s
Decision That Section 2000e-16(c) Is A Jurisdictional
Prerequisite Is Contrary To Decisions Of This Court.
The district court’s determination that the filing provision of
Section 2000e-16(c) is jurisdictional and consequently precludes
consideration of equitable factors is not only contrary to this
Court's decision in Zipes v. Trans World Airlines, Inc., 455 U.S.
385 (1982), as discussed briefly above, but is also contrary to
other post-Zipes decisions such as Schiavone, 477 U.S. at —_ ,
106 S. Ct. at 2379, and Baldwin County Welcome Center v.
Brown, 466 U.S. 147 (1984).
In Schiavone, this Court recognized that equitable factors may
be considered in applying Rule 15(c). It noted that the
Schiavone district court, after weighing equitable considerations
under the facts of that case, determined that the equities of that
-18-
particular case did not justify affording the plaintiff relief under
Rule 15(c). 477 U.S. at __ , 106 S. Ct. at 2382.
The district court ruling in this case that Section 2000e-16(c)
is jurisdictional was based on the 1977 Fifth Circuit decision in
Eastland v. Tennessee Valley Authority, 553 F.2d 364, 368 (Sth
Cir.), cert. denied, 434 U.S. 985 (1977). Eastland, however,
was predicated upon a line of cases holding that the ninety-day
filing requirement in private sector Title VII cases was a jurisdic-
tional prerequisite. When those cases were overruled by this
Court’s decision in Zipes, 455 U.S. at 385, the conceptual under-
pinnings of Eastland were eroded. Eastland is no longer good
law. Milam v. United States Postal Service, 674 F.2d 860, 862
(11th Cir. 1982); Ross v. U.S. Postal Service, 814 F.2d 616, 616-
17 (11th Cir. 1987); see Anioine v. United States Postal Service,
781 F.2d 433, 439 n.6 (Sth Cir. 1986)(dicta). But see Bell v.
Veterans Administration Hospital, 826 F.2d 357, 360-61 (Sth
Cir. 1987).
In Zipes, 455 U.S. at 393-98, this Court endorsed the applica-
tion of equitable considerations in Title VII cases, holding that
the ninety-day filing requirement in private sector Title VII cases,
42 U.S.C. § 2000e-5(d), now codified at 42 U.S.C. § 2000e-5(e),
was not a jurisdictional prerequisite. This Court said that the
courts are free to consider this filing requirement in light of
equitable considerations such as waiver, estoppel, and tolling. Jd.
This Court noted that the “guiding principle for construing the
provisions of Title VII”—liberal construction of filing and other
provisions—must be applied:
By hoiding compliance with the filing period to be not a
jurisdictional prerequisite to filing a Title VII suit, but a
requirement subject to waiver as well as tolling when
equity so requires, we honor the remedial purpose of the
legislation as a whole without negating the particular pur-
pose of the filing requirement, to give prompt notice to the
employer.
-19-
455 US. at 397, 398. The rationale in Zipes applies with equal
force to Title VII cases filed against the federal government under
Section 2000e-16(c).
In Baldwin County, this Court addressed a claimant’s failure to
comply with a ninety-day filing provision, 42 U.S.C. § 2000e-
5(f)(1), for claims against private employers. 466 U.S. at 149.
The Court considered equitable factors and the possibility of
equitable tolling. /d. at 150-52. Although in Baldwin County
the Court found no facts to support equitable tolling, its review of
equitable considerations demonstrated that it did not consider the
filing provision jurisdictional. /d.
This Court has acknowledged the congruence between Title
VII claims filed against private employers and those filed against
the federal government. This Court has held that the “principal
goal” in enacting Section 2000e-16(c) was to “eradicate
‘entrenched discrimination in Federal Service’ by strengthening
internal safeguards and by according ‘[a]ggrieved federal
employees or applicants .. . the full rights available in the courts
as are granted to individuals in the private sector under Title
VII.” Chandler v. Roudebush, 425 U.S. 840, 841 & n.1 (1976)
(citing S. Rep. No. 92-415, 92d Cong. at 16 (1971)) (citations
omitted). Congress intended that the substantive rules gov-
erning actions by federal employees against the federal govera-
ment under Title VII should be the same as rules applicable to
Title VII actions against private employers. H.R. Rep. No.
1746, 92d Cong., 2d Sess. 103, reprinted in 1972 U.S. Code Cong.
& Ad. News 2157-60; Martinez v. Orr, 738 F.2d 1107, 1110
(10th Cir. 1984).
Compliance with Title VII filing periods is not a jurisdictional
prerequisite to filing a Title VII suit; rather, like statutes of
limitations, the filing periods are subject to waiver, estoppel, and
equitable tolling. Zipes, 455 U.S. at 398. Therefore, the Court
of Appeals erred in failing to consider and thereby rejecting
petitioner’s claim that the thirty-day filing provision involved here
is not jurisdictional and that consideration of equitable factors is
permitted.
-20-
The conflict between the decision rendered below and the
Schiavone, Zipes, and Baldwin County decisions should lead the
Court to review the decision below to ensure uniformity with its
prior decisions.
The question presented here—-whether consideration of equita-
ble factors is permitted—will determine in subsequent cases
whether a Title VII claim will be resolved on the merits or dis-
posed of summarily on a procedural technicality with harsh and
unjust results. That determination is of crucial importance to the
hundreds of plaintiffs who have Title VII claims pending in the
federal courts against the federal government, and the many
more who may seek to enforce their civil rights in the future.
Given the current divergence in the application of Section 2000e-
16(c) in the Circuit Courts of Appeals, this Court should address
the issue to ensure equal application of Title VII to all federal
employees.
31.
CONCLUSION
For the foregoing reasons, petitioner respectfully prays that
this Court issue a writ of certiorari to review the judgment of the
Court of Appeals for the Fifth Circuit.
Dated: November 16, 1987
New York, New York
Respectfully submitted,
John E. Tobin
Counsel of Record
Edward J. Pluimer
Patricia C. Hayashi
DORSEY & WHITNEY
350 Park Avenue
New York, New York 10022
(212) 415-9200
William L. Robinson
Richard T. Seymour
LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS UNDre LAW
1400 Eye Street, N.W.
Suite 400
Washington, D.C. 20005
(202) 371-1212
George A. Gonzales
P.O. Box 5273
100 Chestnut, Suite 102
Abilene, Texas 79602
(905) 676-5531
Attorneys for Petitioner
Joe T. Gonzales
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'
IN THE
Supreme Court of the United States
October Term, 1987
o>
JOE T. GONZALES,
Petitioner,
Vv.
SECRETARY OF THE AIR FORCE AND
DEPARTMENT OF THE AIR FORCE,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
JOHN E. TOBIN WILLIAM L. ROBINSON
Counsel of Record RICHARD T. SEYMOUR
EDWARD J. PLUIMER
PATRICIA C. HAYASHI
LAWYERS’ COMMITTEE FOR
CiviL RIGHTS UNDER LAW
DORSEY & WHITNEY 1400 Eye Street, N.W.
350 Park Avenue Suite 400
New York, New York 10022 Washington, D.C. 20005
(212) 415-9200 (202) 371-1212
GEORGE A. GONZALES
P.O. Box 5273
100 Chestnut, Suite 102
Abilene, Texas 79602
(905) 676-5531
Attorneys for Petitioner
JOE T. GONZALES
November 16, 1987
-1A-
APPENDIX TABLE OF CONTENTS
Page
STATUTORY PROVISIONS INVOLVED.................... 2A-4A
Title VII of the Civil Rights Act of 1964, §717(c),
as amended, 42 U.S.C. 2000e-16(c).............0.00.. 2A
Rule 15(c) of the Federal Rules of Civil
sea aiis jcsadabuasndeseansadvascvdccssnande 3A
Rule 4(j) of the Federal Rules of Civil
as ie cnbadeaevasdapecccvasbansondnon’ 4A
OPINION OF THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH CIRCUIT
PUM TUT CREO FSO SIL) cosccccccscscececsscscccsacesscees SA
OPINION OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS 4
ee es at) ee 18A
ih,
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,
§ 717(c), AS AMENDED, 42 § 2000e-16(c)
Within thirty days of receipt of notice of final action taken by a
department, agency, or unit referred to in subsection (a) of this
section, or by the Equal Employment Opportunity Commission
upon an appeal from a decision or order of such department,
agency, or unit on a complaint of discrimination based on race,
color, religion, sex or national origin, brought pursuant to subsec-
tion (a) of this section, Executive Order 11478 or any succeeding
Executive orders, or after one hundred and eighty days from the
filing of the initial charge with the department, agency, or unit or
with the Equal Employment Opportunity Commission on appeal
from a decision or order of such department, agency, or unit until
such time as final action may be taken by a department, agency,
or unit, an employee or applicant for employment, if aggrieved by
the final disposition of his complaint, or by the failure to take final
action on his complaint, may file a civil action as provided in
section 2000e-5 of this title, in which civil action the head of the
department, agency, or unit, as appropriate, shall be the
defendant.
-3A-
RULE 15(c) OF THE FEDERAL RULES OF CIVIL
PROCEDURE
Rule 15. Amended and Supplemental Pleadings
(c) Relation Back of Amendments. Whenever the claim or
defense asserted in the amended pleading arose out of the con-
duct, transaction, or occurrence set forth or attempted to be set
forth in the original pleading, the amendment relates back to the
date of the original pleading. An amendment changing the party
against whom a claim is asserted relates back if the foregoing
provision is satisfied and, within the period provided by law for
commencing the action against him, the party to be brought in by
amendment (1) has received such notice of the institution of the
action that the party will not be prejudiced in maintaining his
defense on the merits, and (2) knew or should have known that,
but for a mistake concerning the identity of the proper party, the
action would have been brought against him.
The delivery or mailing of process to the United States Attor-
ney, or the United States Attorney’s designee, or the Attorney
General of the United States, or an agency or officer who would
have been a proper defendant if named, satisfies the requirement
of clauses (1) and (2) hereof with respect to the United States or
any agency or officer thereof to be brought into the action as a
defendant.
-4A-
RULE 4(j) OF THE FEDERAL RULES OF CIVIL
PRCCEDURE
Rule 4. Process
(j) Summons: Time Limit for Service. If a service of the
summons and complaint is not made upon a defendant within 120
days after the filing of the complaint and the party on whose
behalf such service was required cannot show good cause why
such service was not made within that period, the action shall be
dismissed as to that defendant without prejudice upon the court’s
Own initiative with notice to such party or upon motion. This
subdivision shall not apply to service in a foreign country pursu-
ant to subdivision (i) of this rule.
-5A-
Joe T. GONZALES, Plaintiff-Appellant,
We
SECRETARY OF the AIR FORCE and
the Department of the Air Force,
Defendants-Appellees.
No. 86-1609.
United States Court of Appeals,
Fifth Circuit.
Aug. 18, 1987.
Appeal from the United States District Court for the Northern
District of Texas.
Before BROWN, REAVLEY and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Juage:
In this employment discrimination action, the appellant, Joe T.
Gonzales, argues that the district court erred in dismissing his
complaint for his failure to sue the proper party within the
required thirty-day statutory filing period. Based on the
Supreme Court’s decision in Schiavone v. Fortune, --- U.S. ---,
106 S. Ct. 2379, 91 L.Ed.2d 18 (1986), the district court held
that Gonzales’s amendment to his complaint naming the Secre-
tary of the Air Force (the “Secretary”) as a defendant, the only
proper party sued or served, did not relate back under
Fed.R.Civ.P. 15(c) to the original date of the filing. We affirm.
In December 1980, the Department of the Air Force (the
“Department”) did not select Gonzales for a warehouse-foreman
position at Goodfellow Air Force Base in Texas. Claiming dis-
crimination on the basis of race and national origin, Gonzales
filed a timely formal administrative claim on January 7, 1981.
During the next four years, he diligently pursued his administra-
tive remedies in accord with Department instructions and proce-
dures. After exhausting his administrative remedies, Gonzales
filed suit in the district court pursuant to Title VII of the Civil
as;
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e ef seq.,
naming the Department as the sole defendant. Gonzales filed his
federal court complaint against the Department within the thirty-
day statutory filing period as required by 42 U.S.C. § 2000e-
16(c).' He served process on the Department on April 30, 1985,
which was after the thirty-day filing period had expired, and
served the United States Attorney on July 24, 1985.
On April 30, 1986, the Department moved to dismiss Gonza-
les’s complaint, arguing that Gonzales had not complied with 42
U.S.C. § 2000e-16(c) because he failed to sue the Secretary .
within thirty days of receiving notice of the final decision of the’
Equal Employment Opportunity Commission (“EEOC”). Gon-
zales requested and was granted leave to amend his complaint,
adding the Secretary as a defendant. Based on precedent in this
circuit that interpreted Fed.R.Civ.P. 15(c)* liberally, Hendrix v.
1. Section 2000e-16(c) provides:
Within thirty days of receipt of notice of final action taken by a depart-
ment, agency or unit referred to in subsection (a) of this section, or by
the Equal Employment Opportunity Commission upon an appeal from a
decision or order of such department, agency, or unit on a complaint of
discrimination based on race, color, religion, sex or national origin,
brought pursuant to subsection (a) of this section... an employee or
applicant for employment, if aggrieved by the final disposition of his
complaint, or by the failure to take action on his complaint, may file a
civil action as provided in section 2000e-5 of this title, in which civil
action the head of the department, agency, or unit, as appropriate, shall
be the defendant.
42 USC. § 2000e-16{c) (1982).
2. Rule 15(c) provides:
Rule 15. Amended and Supplemental Pleadings
(c) Relation Back of Amendments. Whenever the claim or defense
asserted in the amended pleading arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in the original
pleading, the amendment relates back to the date of the original plead-
ing. An amendment changing the party against whom a claim is
asserted relates back if the foregoing provision is satisfied and, within the
period provided by law for commencing the action against him, the party
to be brought in’ by amendment (1) has received such notice of the
institution of the action that he will not be prejudiced in maintaining his
defense on the merits, and (2) knew or should have known that, but for a
a
-7A-
Memorial Hosp. of Galveston County, 776 F.2d 1255 (Sth
Cir.1985); Kirk v. Cronvich, 629 F.2d 404 (Sth Cir.1980), the
district court held that notwithstanding Gonzales’s failure to sue
and serve the Secretary within thirty days of receiving the
EEOC’s final decision, he could amend his complaint to add the
Secretary as a defendant. Under Hendrix, the amendment
would relate back “to the original filing date of the complaint
even though it [took] a reasonable amount of time after the
limitations period to serve process upon the original party defen-
dant.” Hendrix, 776 F.2d at 1257.
After the district court granted leave to amend the complaint,
the Supreme Court rendered its decision in Schiavone, 106 S.Ct.
2379. The district court granted the defendants’ motion to
reconsider its previous order, and, based on Schiavone, granted
the defendants’ motion to dismiss Gonzales’s complaint.
Gonzales v. Secretary of the Air Force, 638 F.Supp. 1323 (N.D.
Tex.1986). The court held that because Gonzales did not serve
the Department within the required thirty-day statutory period,
there was no proper notice to the Department that could be
imputed to the Secretary. Because no notice was given before the
time limitation had expired, Gonzales could not amend his com-
plaint to sue the proper party, and his complaint was dismissed.
Id. at 1325. Gonzales appealed.
The district court correctly held that this case is controlled by
Schiavone. in Schiavone, the plaintiffs timely sued Fortune
Magazine for libel within New Jersey’s one-year statute of limita-
tions. “Fortune,” however, was only a trademark and the name
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 any agency or
officer who would have been a proper defendant if named, satisfies the
requirement of clauses (1) and (2) hereof with respect to the United
States or any agency or officer thereof to be brought into the action as a
defendant.
-8A-
of an internal division of Time, Incorporated (“Time”). The
plaintiffs then attempted to serve process on Time’s registered
agent in New Jersey. The agent refused service because Time
was not a named defendant in the suit. After the statutory filing
period had expired, the plaintiffs amended their respective com-
plaints to add Time as a defendant, and subsequently served
process on Time. The district court dismissed the complaint,
holding that the amendment did not relate back to the date of the
original filing under Rule 15(c) because Time did not receive
notice of the institution of the libel actions “within the period
provided by law for commencing the action against [it].”
Schiavone, 106 S.Ct. at 2381-82.
The Supreme Court affirmed and set forth four factors upon
which “relation back” of an amended pleading under Rule 15(c)
depends:
(1) the basic claim must have arisen out of the conduct
set forth in the original pleading; (2) the party to be
brought in must have received such notice that it will not
be prejudiced in maintaining its defense; (3) that party
must or should have known that, but for a mistake con-
cerning identity, the action would have been brought
against it; and (4) the second and third requirements must
have been fulfilled within the prescribed limitations
period.
Id. at 2384. The Court clearly stated that all four factors must
be satisfied before relation back will apply. Jd.
Like the plaintiffs in Schiavone, Gonzales has satisfied the first
factor; the problem in this case lies with his satisfaction of the
remaining factors. Reviewing the record, we have determined
that the following dates are critical in the disposition of this case:
(1) Gonzales received notice of the final agency decision on
March 15, 1985, and he filed suit against the Department on
April 12, 1985, within the thirty-day statutory time period; (2)
on April 30, 1985, Gonzales served process on the Department,
which was after the thirty-day time period had expired; (3) Gon-
zales served the United States Attorney on July 24, 1985; (4) the
il a
-9A-
court permitted Gonzales to amend his complaint, adding the
Secretary as a defendant, on May 21, 1986; and (5) Gonzales
served the amended complaint on the Secretary on June 2, 1986.
The record thus shows that the means Gonzales used for notify-
ing the defendants of his federal action was service of process on
the Department, the United States Attorney, and the Secretary.
As the above dates indicate, however, each party received this
notice after expiration of the prescribed thirty-day limitations
period of 42 U.S.C. § 2000e-16(c).
The question before us, therefore, is whether the amendment
adding the Secretary, the only proper defendant in this case, can
relate back under Rule 15(c) to the original filing of the com-
plaint so as to make the complaint against the Secretary timely.
According to Schiavone, we must determine (1) whether the
Secretary had sufficient notice of Gonzales’s federal lawsuit such
that no prejudice will result to the Secretary in maintaining his
defense; and (2) whether the Secretary knew or should have
known that the action brought against the Department would
have been brought against him but for Gonzales’s mistake con-
cerning the named defendant in his complaint. Schiavone fur-
ther instructs us that these two considerations must have been
satisfied within the thirty-day limitations period of 42 U.S.C.
§ 2000e-16(c).
The indisputable facts show that Gonzales gave notice to the
Secretary of this Title VII action by serving process on the Secre-
tary on June 2, 1986, more than one year after the thirty-day
limitations period had expired. No colorable argument can be
made that this belated notice satisfies the second and fourth
factors of the Schiavone test. Furthermore, Gonzales’s notice to
the Department and the United States Attorney by service of
process was also received after the prescribed limitations period.
Having failed to notify the Department and the United States
Attorney within the thirty-day period, Gonzales cannot argue,
under Schiavone's third factor, that knowledge of his federal
lawsuit is imputed to the Secretary. Because Gonzales failed to
notify any party of this action within the statutory period, the
-10A-
Secretary could not have known that an action would have been
brought against him but for Gonzales’s mistake in naming the
proper defendant. Gonzales has failed to satisfy the second, third
and fourth factors of the Schiavone test and we hold, therefore,
that the amended complaint did not relate back under Rule 15(c)
to the original date of the filing of the action.
Gonzales argues, however, that the Secretary had “both formal
and informal notice of Mr. Gonzales’s action through the Air
Force’s active involvement at every stage of the administrative
process.” Brief for Appellant at 22. According to Gonzales,
because the Department and the Secretary had detailed knowl-
edge of the more than four years of administrative litigation, the
defendants were on notice that Gonzales would continue to seek
relief in federal court. Although there is no dispute that Gonzales
and the Department were involved in lengthy administrative bat-
tles for a number of years, the mere fact that administrative
proceedings occurred cannot be construed as any kind of notice,
whether “formal” or “informal,” of a subsequent federal lawsuit.
Finally, we note that the procedural posture of this case is not
dissimilar to that of Schiavone. The plaintiffs in Schiavone filed
suit in a timely manner, as did Gonzales, but did not serve anv
party until after the one-year statute*of limitations had expired.
The Court stated:
[N]otice to Time and the necessary knowledge did not
come into being within the period provided by law for
commencing the action against Time, as is so clearly
requirea by Rule 15(c). That occurred only after the
expiration of the applicable 1-year period. This is fatal,
then, to petitioners’ litigation.
Similarly, Gonzales did not serve any party within the thirty-
day statutory time period. Just as the Schiavone plaintiffs’ fail-
ure to provide notice to Time within the limitations period barred
3. Because Gonzales gave no notice to any party of his federal action within
the statutory time period, we do not decide the issue he raised concerning
whether relation back under Rule 15(c) requires formal notice, i.e., service of
process, or whether some kind of informal notice would be sufficient.
Fee
-11A-
relation back of the amended complaint under Rule 15(c),
Gonzales’s failure to notify the Secretary properly also makes the
relation back provision of Rule 15(c) inapplicable.’
In conclusion, Gonzales’s failure to notify the Secretary
“within the period provided for [sic] law for commencing the
action against him” as required by Rule 15(c) precludes relation
back of his amended complaint, naming the Secretary as defen-
dant, to the date of the original pleading. The district court’s
dismissal of Gonzales’s complaint is therefore
AFFIRMED.
JOHN R. BROWN, Circuit Judge, dissenting.
The majority’s characterization of § 2000e-16(c) and Rule
15(c) as traps to frustrate a citizen in his quest to vindicate his
civil right is contrary to the spirit of our civil rights laws and the
aspirations of the drafters of the Federal Rules of Civil Proce-
dure.’ Therefore, I must respectfully dissent.
The majority holds the United States Supreme Court’s inter-
pretation of Rule 15(c) in Schiavone v. Fortune, 477 U.S. ---,
.4. In our view, the principal error of the dissent is that it confuses filing with
notice. We do not read the word “file” in 42 U.S.C. § 2000e-16(c) to mean “file
and serve” within the thirty-day period prescribed by the statute. Filing means
filing. Notice means notice. The dissent, however, reads the word “notice” in
Rule 15(c) to be synonymous with the word “file,” which, indeed, if read
synonymously would be a legal fiction, and a proposition for which no authority
is or can be cited. In this respect our holding is simple: the Secretary did not
receive notice that a complaint had been filed against anyone until, at the very
earliest, the complaint was served on the Department, some eighteen days after
it was filed and some sixteen days after the statute of limitations had expired.
There is, therefore, simply no way that Rule 15(c)(1) and (2) could have been
satisfied within the thirty-day prescribed limitations period as required by
Schiavone.
1. Rule | of the Federal Rules of Civil Procedure provides:
“{t}hey [the rules] shall be construed to secure the just, speedy and
inexpensive determination of every action.” While the majority's affirm-
ance of the dismissal of Gonzales’ claim is, without a doubt, speedy and
inexpensive, it would be far from just.
-12A-
106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) mandates a dismissal of
Gonzales’ action. I do not find Schiavone either that controlling
on these facts or that draconian in effect. A retelling of Gonza-
les’ travels to this point in his appeal demonstrates how Gonzales
has avoided the procedural road blocks to his substantive claim.
After a four-year administrative bout with the Air Force, dur-
ing which Gonzales and his attorney crossed each procedural
hurdle successfully, Gonzales finally exhausted all appeals
through the EEOC. Gonzales came to the end of his administra-
tive rope on March 15, 1985. According to the statute, he had
“thirty days of receipt of notice of final action... [to] file a civil
action....” 42 U.S.C. § 2000e-16(c) (emphasis added).* The
civil action was filed on April 12, 1985, within the thirty-day
reauirement of the statute.
The majority opinion reads the word “file” in the statute to
mean “file and serve,” and that this implied service “requirement”
must also be done within the thirty-day period. Simply stated,
this is not what the statute says. The word “file” means just
that—file.’ A suit is filed when the complaint, that is, the legal
paper, is presented to and in the actual or constructive possession
of the clerk of the court. Compare Leggett v. Strickland, 640
F.2d 774 (Sth Cir.1981), with Jones v. Forest Oil Co., 663 F.2d
556 (Sth Cir. 1981) (applying Louisiana law, “suit is filed when
it is timely placed in the hands of the clerk of a court of competent
jurisdiction for filing”).
This court has held that filing a lawsuit within the period
prescribed by statute is sufficient without the further requirement
of service of process. See Caldwell vy. Martin Marietta Corp.,
2. According to the statute, “the Secretary of the Air Force,” not Gonzales’
old adversary “the Department of the_Air Force,” is the proper defendant.
3. Other circuits have wrestled with the definition of the word “file” and
have reached the same result. _See Rodgers v. Bowen, 790 F.2d 1550, 1552
(11th Cir. 1986) (“We therefore hold that a complaint is ‘filed’ for statute of
limitations purposes when it is ‘in the actual or constructive possession of the
clerk.’”) (citations omitted). The Tenth Circuit took the straight-forward
approach and cited the American Heritage Dictionary of the English Language
in defining “file” as “entry on official record or to apply for .. . or, more simply
‘to submit papers.” Paluso v. Mathews, 573 F.2d 4, 9 (10th Cir. 1978)
(citations omitted).
ee
-13A-
632 F.2d 1184, 1188 (Sth Cir. 1980). It is beyond argument
that Gonzales complied with § 2000e-16(c) and filed his suit
within thirty days of the final disposition of his administrative
complaint so that the District Court had subject matter jurisdic-
tion of the claim under the statute. Since the thirty-day filing
provision under § 2000e-16(c) was satisfied, there is no reason to
enter the fray of whether the miniscule thirty-day provision is
jurisdictional, or merely a statute of limitation which can be
subject to equitable tolling.’
My strongest disagreement with the majority’s opinion is their
reliance on Schiavone and Rule 15(c) while utterly ignoring Rule
4(j). In Schiavone, a diversity case brought under New Jersey’s
libel statute, the New Jersey statute of limitations required that a
libel action be commenced one year after publication of the
alleged libel. The New Jersey statute reads: “every action at law
for libel or slander must be commenced within one year after the
publication of the alleged liable [sic] or slander.” N.J.Stat.Ann.
2A:14E (West 1952). Under New Jersey law, the issuance of
process and a bona fide attempt to serve process are essential to
the institution of a suit, Bittles v. West Ridgelawn Cemetery, 155
A. 130 (N.J.Ch.1931), because the statute of limitations contin-
ues to run after a complaint is filed. Zaccardiv. Becker, 88 N.J.
245, 440 A.2d 1329 (1982).
In Schiavone, the plaintiff filed his complaint on May 9, 1982.
The limitation period expired on May 19, 1982. Not until May
20, 1982, did plaintiffs counsel attempt to serve the defendants,
and a proper complaint was not served until July 21, 1982.
4. Compare Newbold v. United States Postal Service, 614 F.2d 46 (Sth
Cir.) (jurisdictional) cert. denied, 449 U.S. 878, 101 S.Ct. 225, 66 L.Ed.2d 101
(1980); Eastland v. Tennessee Valley Authority, 553 F.2d 364 (Sth Cir.)
(jurisdictional) cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479
(1977) with Antoine v. United States Postal Service, 781 F.2d 433 (Sth
Cir.1986) (nonjurisdictional; questioning East/and’s continued vitality). Cf
Chappell v. Emco Machine Works Co., 601 F.2d 1295, 1300-02 (Sth Cir. 1979)
(90-day filing requirement in private sector cases jurisdictional); Mohasco
Corp. v. Silver, 447 U.S. 807, 811 n. 9, 100 S.Ct. 2486, 2490 n. 9, 65 L.Ed.2d
532 (1980) (same); see also, Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393-94, 102 S.Ct. 1127, 1132-33, 71 L.Ed.2d 234 (1982) (filing timely charge
under Title VII not a jurisdictional prerequisite to suit in federal court).
-14A-
- Therefore, “neither Fortune nor Time received notice of the filing
until after the period of limitations had run. Thus, there was
no proper notice to Fortune [the improper party] that could
be imputed to Time [the proper party].” Schiavone, 477 US.
at ---, 106 S.Ct. at 2384, 91 L.Ed.2d at 27. In the instant case,
however, by correctly reading Rule 15(c) in conjunction with
Ruie 4(j), a proper party did receive notice within the required
time frame.
The distinction is simple. In Schiavone, the Supreme Court
relied on the New Jersey statute that required commencement of
a law suit within the limitations period. Since no one was served
within the prescribed limitations period, the suit was not “com-
menced.” Consequently, there was no party to relate back to.
This is in sharp contrast to Gonzales’ suit: the federal statute
requires Only that a suit be filed within a thirty-day period.
Thus, since the suit was filed within the thirty-day period, we
next look to see if service was proper. Under F.R.Civ.P. 4(j),° a
party has 120 days from the filing of his complaint to serve the
summons upon the defendant. This time for service of process
takes on great significance for Gonzales in two ways.
First, Gonzales served the Department of the Air Force 18 days
after filing his suit, well within the 120 day requirement. At oral
argument, counsel for the Air Force conceded that at the :noment
the Air Force received notice of the suit, the Secretary received
notice of the suit. The majority opinion implies—if it does not
necessarily hold—that the Secretary did not receive notice until
Gonzales amended his complaint naming the Secretary person-
ally over a year later on June 2, 1986.
I am not so audacious, United States v. Holmes, 822 F.2d 481
(Sth Cir.1987) (Brown, J., dissenting), to challenge Schiavone’s
5. Ifa service of the summons and complaint is not made upon a defendant
within 120 days after the filing of the complaint and the party on whose behalf
such service was required cannot show good cause why such service was not
made within that period, the action shall be dismissed as to that defendant
without prejudice upon the court’s own initiative with notice to such party or
upon motion. This subdivision shall not apply to service in a foreign country
pursuant to subdivision (i) of this rule.
F.R.Civ.P. 4(j).
te eet eaalnaal
-15A-
holding that we are bound to use the four factors for “relation
back” of an amended pleading under Rule 15(c). Rather, I find
these factors are a help to Gonzales, not a hindrance.
(1) The basic claim must have arisen out of the conduct
set forth in the original pleading;
(2) the party to be brought in must have received notice
that it will not be prejudiced in maintaining its defense;
(3) the party must or should have known that, but for a
mistake concerning identity, the action would have been
brought against it; and
(4) the second and third requirements must have been
fulfilled within the prescribed limitations period.
Schiavone, 477 US. at ---, 106 S.Ct. at 2384, 91 L.Ed.2d at 27.
Both parties agree the first requirement is met. As for the
second, the “Secretary” received notice 18 days after the suit was
filed, well within the 120 days allowed by Rule 4(j).
It is important to remember that even if the Secretary had been
the named party, he, personaliy, probably never would have
received notice of Gonzales’ routine Title VII claim. The Secre-
tary, when sued solely in his official capacity, and the Air Force
are functionally identical for purposes of this suit and this appeal.
As far as Gonzales is concerned, they are one and the same.
With all sides knowing this to be so, I am at a loss to know why
I—and all other Judges-—cannot “know” the same.
Whether the Air Force or some functionary in the office of the
Secretary is served, the same people at the Department of the Air
Force will process the summons, the same Air Force representa-
tive will appear in court, and the same entity will shoulder the
burden of loss if Gonzales prevails. While historically, legal
fictions have been utilized to meet the needs of justice, Ex parte
Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), legal
fictions should never be utilized to frustrate everyday realities.
This fiction should not unjustly penalize a loyal government
employee whose only mistake in prosecuting his good faith claim
was that he, or his lawyer, failed to understand that even though
his adversary throughout four years of EEOC administrative
-16A-
hearings had been “the Department,” suddenly, with no explana-
tion, his opponent was transformed into “the Secretary.”
The Air Force representatives who received the first complaint
naming “The Air Force” were, in all likelihood, the same people
who received the amended complaint naming “The Secretary of
the Air Force.” {I cannot believe that the law tolerates such an
absurdity that the Secretary was “prejudiced” by this mistake.
As to the third requirement, the knowledge of the mistakenly
named defendant, it is easily met. No identity of interest and
shared knowledge can be posited that is any closer than that
between the Secretary and his Department. One commentator
‘has advanced a helpful rule in these cases: “When plaintiff
names an incorrect party, the courts probably will apply some-
thing akin to a reasonable [ person] test to determine whether the
party ‘should have known’ he was the one intended to be sued.”
Under such a rule, Gonzales’ mistake should clearly not be fatal.
The fourth requirement wraps up the above-mentioned three as
a neat package, since the other standards were met within the
time period set out in § 2000e-16(c) and Rule 4(j).
Gonzales also served the United States Attorney 100 days after
the suit. That takes on a great importance when considered in
light of Federal Rule of Civil Procedure 15(c). Service on the
United States Attorney satisfies the requirements that (i) the
Secretary of the Air Force have notice of the institution of the suit
and (ii) the party knew or should have known of a mistake in the
identity of the proper party. “The delivery or mailing of process
to a United States Attorney ... satisfies the requirement of
clauses (1-) and (2),' hereof with respect to the United States or
any agency or officer thereof to be brought into action as the
defendant.” F.R.Civ.P. 15(c).
6. 6C. Wright & A. Miller, Federal Practice and Procedure § 1498 (Supp.
1986); see also, Romain v. Shear, 799 F.2d 1416, 1417-18 (9th Cir.1986) cert.
denied, --- U.S. ---, 107 S.Ct. 2183, 95 L.Ed.2d 840 (1987); Hymen v. Merits
Systems Protection Board, 799 F.2d 1421, 1422 (9th Cir.1986) cert. denied, ---
USS. ---, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987); Jarrell v. United States Postal
Service, 753 F.2d 1088 (D.C. Cir.1985); Cooper v. United States Postal Ser-
vice, 740 F.2d 714 (9th Cir. 1984), cert. denied, 471 U.S. 1022, 105 S.Ct. 2034,
85 L.Ed.2d 316 (1985).
_ 7. These correspond to Schiavone requirements (2) and (3).
Mian 6
-17A-
Without reading Rule 15(c) to operate after the expiration of
the applicable statute of limitations, it would become a dead
letter. “The principal purpose of Rule 15(c)} is to enable a
plaintiff to correct a pleading error after the statute of limitations
has run if the correction will not prejudice [the real adversary] in
any way.” Schiavone, 477 US. at ---, 106 S.Ct. at 2389, 91
L.Ed.2d at 33 (Stevens, J., dissenting). That purpose is
defeated—and the statute becomes largely superfluous—f it is
construed to require the correction to be made before the statute
has run.
Looking at Rule 15(c) in this light, the majority clearly erred
in requiring that this suit be filed and served within the thirty-day
period for “relation back” of the amended complaint, and in
ignoring the appropriateness of Rule 4(j) in this case. I there-
fore respectfully, but with a good deal of vigor, dissent.
-18A-
Joe T. GONZALES, Plaintiff,
V.
The SECRETARY OF the AIR FORCE
and the Department of the Air
Force, Defendants.
Civ. A. No. CA-6-85-27.
United States District Court,
N.D. Texas,
San Angelo Division.
July 29, 1986.
ORDER
WOODWARD, Chief Judge.
This matter came before the court on the defendants’ Motion
To Reconsider The Court’s Order Of May 21, 1986 Denying
Defendant’s Motion To Dismiss Or, In The Alternative, For Sum-
mary Judgment. The plaintiff has filed a reply brief.
A. History of The Case
Plaintiff filed this suit on April 12, 1985, pursuant to Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e,
et seq. Plaintiff named the Department of Air Force as defen-
dant, and sought injunctive relief and compensatory relief for the
defendant’s alleged racial, religious, national origin, and sex dis-
crimination. Plaintiff sued for himself and for others similarly
situated.
On April 30, 1986, defendant moved to dismiss plaintiff's com-
plaint. Defendant claimed that plaintiffs failure to sue the Sec-
retary of the Air Force within thirty (30) days of receipt of a final
decision from the Equal Employment Opportunity Commission
under 42 U.S.C. § 2000e-16(c) required dismissal. In his
response, plaintiff stated that he intended to pursue only his indi-
vidual claim, and sought to amend his complaint to add the
Secretary of the Air Force as a defendant.
ee ees
-19A- -
On May 21, 1986, 110 F.R.D. 350, the court entered an order
denying defendant’s motion to dismiss, and granting plaintiff
leave to amend his complaint. The court based its decision upon
Federal Rule of Civil Procedure 15(c) and precedent in the Fifth
Circuit. Williams v. United States, 405 F.2d 234 (Sth
Cir.1968); Kirk v. Cronvich, 629 F.2d 404 (Sth Cir.1980);
Hendrix ¥. Memorial Hosp. of Galveston County, 776 F.2d 1255
(Sth Cir.1985). Although plaintiff did not sue and serve the
proper party within the thirty-day time period of 42 U.S.C.
§ 2000e-16(c), the court permitted plaintiff to amend because of
the Fifth Circuit’s interpretation of Rule 15(c). At that time, the
Fifth Circuit permitted an amendment to relate back “to the
original filing date of the complaint even though it may take a
reasonable amount of time after the limitations period to serve
process upon the original party defendant.” Hendrix v.
Memorial Hosp. of Galveston County, 776 F.2d at 1257.
B. Defendants’ Pending Motion
Because of the United States Supreme Court’s recent decision
in Schiavone, et al. v.fortune, AKA Time, Inc., --- U.S. ---, 106
S.Ct. 2379, 91 L.Ed.2d 18 (1986), aff'd, 750 F.2d 15, the defend-
ants now move this court to reconsider the May 21, 1986, order.
Although Schiavone is a libel suit, the Supreme Court specifically
addressed the requirements for an amendment to relate back to
the original date of filing under Rule 15(c).
There, as in the case at bar, the petitioners had filed their
complaints within the statutory period, but sued and served “For-
tune” magazine, instead of the proper party, Time, Inc.
Although petitioners later amended their complaints and effected
proper service on Time, Inc., this was done after the statutory
period. On defendant’s motion to dismiss, the district court dis-
missed the complaints, finding that the amendments did not relate
back “because.it had not been shown that Time received notice of
the institution of the suits within the period provided by law for
commencing an action against it.” /d. at ---, 106 S.Ct. at 2382.
The Third Circuit affirmed the district court.
-20A-
The Supreme Court affirmed the circuit court and found as
follows:
Timely filing of a complaint, and notice within the limita-
tions period to the party named in the complaint, permits
imputation of notice to a subsequently named and suffi-
ciently related party. In this case, however, neither For-
tune nor Time received notice of the filing until after the
period of limitations had run. Thus, there was no proper
notice to Fortune that could be imputed to Time.
Id. at ---, 106 S.Ct. at 2384 (emphasis added). Therefore, the
Fifth Circuit’s liberal application of Rule 15(c) is overruled.
Based upon the Supreme Court’s decision in Schiavone, et al. v.
Fortune, AKA Time, Inc., the court grants defendants’ motion to
reconsider.
C. Application of Schiavone to the Plaintiffs Amended
Complaint
The pleadings show that the plaintiff received notice of the
EEOC’s final decision in mid-March of 1985, and filed suit on
April 12, 1985. It is uncontroverted that plaintiff filed his suit
against the Department of the Air Force within the thirty-day
requirement of 42 U.S.C. § 2000e-16(c). Plaintiff did not serve,
however, the department until April 30, 1985, and did not serve
the United States Attorney until July 24, 1985. Based on Schia-
vone, because plaintiff did not serve the Department of the Air
Force within the required thirty-day statutory period, there is no
proper notice to the department that could be imputed to the
Secretary of the Air Force. /d. Therefore, plaintiff cannot
amend his complaint, and the complaint must be dismissed
because he failed to sue the proper party. Furthermore, plaintiff
is barred from filing suit again because the statutory period for
filing a complaint has expired.
Accordingly, the defendants’ motion to dismiss is granted, and
plaintiffs suit is dismissed with prejudice. Judgment will be
entered accordingly.
es ae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.