NORMAN R. WOOD, JR., PETITIONER V. UNITED STATES POSTAL SERVICE No. 90-6553 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The Respondent In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1) is unreported. JURISDICTION The judgment of the court of appeals was entered on April 12, 1989. On July 17, 1989, Justice White extended the time within which to file a petition for a writ of certiorari to and including July 31, 1989. On August 10, Justice White further extended the time to and including August 7, and on August 21, Justice White issued a further extension of time to and including August 9, 1989. The petition for a writ of certiorari was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court correctly applied Rule 15 of the Federal Rules of Civil Procedure when it denied petitioner's motion for leave to file an amended complaint that would relate back to the date of the original complaint and that named the proper party defendant. STATEMENT 1. On January 19, 1985, the United States Postal Service fired petitioner from his job as a letter carrier. Petitioner believed that his termination was discriminatory. As a result, on February 19, 1985, petitioner sought a meeting with an Equal Employment Opportunity counselor at the Postal Service. The counselor's efforts did not resolve petitioner's grievance. See Wood v. United States Postal Service, No. 3-1-2776-5 (E.E.O.C. Feb. 11, 1986); Pet. 1. Petitioner later filed a formal discrimination complaint with the Postal Service. The Service rejected that complaint on the ground that petitioner had not sought a meeting with an EEO counselor within thirty days of the allegedly discriminatory action. See 29 C.F.R. 1613.213(a), 1613.214(a)(1). The Equal Employment Opportunity Commission affirmed the Postal Service's decision on February 11, 1986. Petitioner received notice of this decision on February 18. The statement accompanying the EEOC's decision informed petitioner of his right to file a civil action under Section 717(c) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16(c), which provides that "(w)ithin thirty days of receipt of notice of (the EEOC's) final action," an aggrieved employee may file a civil action in which "the head of the department, agency, or unit, as appropriate, shall be the defendant." 2. On March 14, 1986, petitioner filed this federal court action. Petitioner's complaint named the "United States Postal Service" and "Carlos E. Morris EEO Counselor" as the defendants. Compl. 1. At the same time, petitioner filed a motion for leave to proceed in forma pauperis. The district court granted that motion on March 24. Pet. 2-3. On April 1, a United States Marshal served petitioner's summons and complaint on Carlos Morris (the EEO counselor), Emilio Garcia (the local Postmaster), and Helen Eversberg (then the United States Attorney for the Western District of Texas). On April 7, 1986, the Attorney General of the United States was similarly served with process. Pet. 3. On June 2, 1986, the defendants filed a motion to dismiss or in the alternative for summary judgment. The defendants contended, among other arguments, that the action should be dismissed because of petitioner's failure to sue the proper party defendant, the Postmaster General, within the statutory limitations period. In opposition, petitioner sought leave, under Rules 15(a) and (c) of the Federal Rules of Civil Procedure, to file an amended complaint that would relate back to the date of the original complaint and that named the Postmaster General as a defendant. In August 1988, after a hearing, the district court denied petitioner's request, granted the defendants' motion, and therefore dismissed petitioner's complaint. Pet. App. 2-14; Pet. 3-4. 3. The court of appeals affirmed. Pet. App. 1. In the court of appeals, petitioner contended that since poverty accounted for his failure to name and serve the proper defendant within the statutory thirty-day period, the district court's refusal to allow him to file an amended complaint that would relate back to the date of the original complaint amounted to a "denial of equal protection of the laws." Pet. App. 1. The court of appeals summarily affirmed the district court's decision, citing Bell v. Veterans Admin. Hosp., 826 F.2d 357 (5th Cir. 1987). There, the court held that a plaintiff may not amend his complaint to name a new defendant if he did not serve process on any proper defendant until after the limitations period had expired. Id. at 360. The court of appeals declined to consider petitioner's constitutional claim, since it "was not advanced to the trial court." Pet. App. 1. ARGUMENT 1. Petitioner contends (Pet. 4-9) that the district court erred in applying Rule 15(a) and (c) of the Federal Rules of Civil Procedure to deny his motion for leave to file an amended complaint that would relate back to the date of the original complaint and that named the proper party defendant. As this Court recently held in Schiavone v. Fortune, 477 U.S. 21 (1986), such an amendment will otherwise cure the plaintiff's failure to name and serve the proper party defendant within the applicable limitations period only if the plaintiff makes the following showing: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. Id. at 29. Here, as petitioner concedes, he has not satisfied the four Schiavone factors. See Pet. 7 ("Petitioner has met none of the literal requirements of Rule 15(c) or of the Schiavone case * * *.") No defendant, named or unnamed, received any notice of this case until after the statutory limitations period had run. For that reason alone, the district court correctly denied petitioner's motion. /1/ 2. Petitioner further contends (Pet. 9-11) that since poverty accounted for his failure to name and serve the proper defendant within the statutory thirty-day period, the district court's refusal to allow him to amend the complaint amounted to a violation of the Equal Protection component of the Fifth Amendment. Since the court of appeals declined to address that issue, see Pet. App. 1, petitioner's claim is not properly before this Court. In any event, petitioner's claim is meritless. Petitioner's precarious financial status did not prevent him from prosecuting this civil action. First, nothing prevented petitioner from naming the proper party defendant in his original complaint. The statutory provision granting petitioner's right to sue, 42 U.S.C. 2000e-16(c), states expressly that the defendant must be "the head of the department, agency, or unit, as appropriate." Second, petitioner's poverty did not preclude him from giving the proper party defendant adequate notice of the action, as required by the Federal Rules of Civil Procedure. Although petitioner could not have served process on the proper defendant within the limitations period, because a district court will not formally file a complaint and issue a summons in a case until either the filing fee is paid or a motion to proceed in forma pauperis is granted, /2/ Rule 15 requires only notice. Indeed, this Court has pointed out that such notice "need not be formal." Schiavone, 477 U.S. at 31 (citation omitted). Petitioner's limited financial means did not impede him from informing the Postmaster General of the filing of the lawsuit, whether by sending him a copy of the complaint or notifying him by other informal means satisfying Rule 15. At bottom, the dismissal of this lawsuit was caused not by petitioner's financial condition but by his failure to name the proper party defendant in the complaint, together with his failure to provide the proper party with any notice of the action. In these circumstances, the courts below did not deny petitioner equal protection of the laws. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MARLEIGH D. DOVER JONATHAN R. SIEGEL Attorneys MARCH 1991 /1/ The Court's recent decision in Irwin v. Veterans Admin., 111 S. Ct. 453 (1990), does not affect the validity of the judgment below. In Irwin, the Court held that the thirty-day limitations period of 42 U.S.C. 2000e-16(c) may be subject to equitable tolling. 111 S. Ct. at 457-458. The Court had no occasion to address the issue resolved in Schiavone, namely, the prerequisites under Rule 15(c) for the filing of an amended complaint that names the proper party defendant and that relates back to the date of the original complaint. /2/ See Martin v. Demma, 831 F.2d 69, 71 (5th Cir. 1987); Krajci v. Provident Consumer Discount Co., 525 F. Supp. 145, 149 (E.D. Pa. 1981), aff'd, 688 F.2d 822 (3d Cir. 1982).