ELIJAH DAVIS, PETITIONER V. UNITED STATES POSTAL SERVICE No. 90-154 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 United States In Opposition TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. A15-A19) and the opinion of the district court (Pet. App. D24-D25) are unreported. JURISDICTION The judgment of the court of appeals was entered on February 6, 1990. A petition for rehearing was denied on March 20, 1990 (Pet. App. B20-B23). On June 26, 1990, Justice White extended the time for filing a petition for a writ of certiorari until July 18, 1990 (Pet. App. C23), and the petition was filed on that date. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's failure either to name the proper defendant under 42 U.S.C. 2000e-16(c), or to provide sufficient notice to the proper defendant for purposes of relation back under Fed. R. Civ. P. 15(c), warranted dismissal of his complaint alleging discrimination in employment. STATEMENT 1. Petitioner was a postal carrier for the United States Postal Service at the Dallas, Texas, post office from January 19, 1985, until his dismissal on March 21, 1986. In the first eleven months of his tenure as a postal carrier, he received one citation for unsatisfactory work performance, and two suspensions for the same reason. Pet. App. A16-A17. After these disciplinary actions, petitioner was dismissed for submitting a falsified document in an official investigation. EEOC Dec. 3 n.2. /1/ Petitioner's claim that the second suspension was discriminatory was rejected by the Postal Service after full administrative review, and by the Equal Employment Opportunity Commission on appeal from the agency decision. EEOC Dec. 1, 6. /2/ Petitioner received notice of the final EEOC action on February 17, 1988. Pet. App. A17; Pet. 5-6. /3/ On March 15, 1988, petitioner submitted to the district court an application to proceed in forma pauperis in this case. With that application, he lodged a complaint seeking $3 million in compensatory damages and identifying only the "United States Postal Service" as the defendant. Instead of filing the complaint, the clerk transmitted it directly to a magistrate with the request for leave to proceed in forma pauperis. That request was denied on March 21, 1988. On May 5, 1988, the clerk received petitioner's filing fee and his complaint was filed. Def't Mot. To Dis. 3-4; see Pet. 6. The Postal Service was served on July 7, 1988, and the United States Attorney was served on September 2, 1988. Oct. 31, 1988, Stipulation. /4/ 2. The district court granted summary judgment to the Postal Service and dismissed the complaint with prejudice on December 16, 1988. Pet. App. D24-D25. As the district court explained in denying petitioner's motion for reconsideration, the head of the U.S. Postal Service -- the Postmaster General -- was the only proper defendant in petitioner's Title VII suit, but petitioner instead named as defendant only the Postal Service itself. App., infra, 2a-3a. The court recognized that an amended complaint naming the proper defendant could "relate back" to the date of the original complaint under Fed. R. Civ. P. 15(c). But in light of Schiavone v. Fortune, 477 U.S. 21, 29 (1986), the court concluded that there could be no relation back here, because there was no service of the complaint on the U.S. Attorney or the Postmaster General within the 30-day period established by 42 U.S.C. 2000e-16(c). App., infra, 3a. /5/ The Fifth Circuit affirmed, using the same analysis as the district court. It noted that petitioner failed to name and serve the agency head within 30 days of his receipt of the final EEOC decision on February 17, 1988, and could not avail himself of the relation back doctrine because the proper party defendant did not receive actual or constructive notice until July of 1988, well after the expiration of the 30-day period. Pet. App. A17-A19. ARGUMENT 1. The United States, as sovereign, is immune from suit save as it consents to be sued, and such waivers of sovereign immunity are to be strictly construed. Lehman v. Nakshian, 453 U.S. 156, 160-161 (1981). By providing remedies against the government for violations of Title VII, Congress has provided the necessary consent (Brown v. GSA, 425 U.S. 820, 833 (1976)), but the terms of that consent strictly confine the court's jurisdiction to entertain the suit. Lehman, 453 U.S. at 160. For these reasons, the court below correctly concluded that the timely filing of a civil action that satisfied the requirements of 42 U.S.C. 2000e-16(c), including the naming of the proper defendant, is a jurisdictional prerequisite to district court consideration of a government employee's Title VII complaint. Hancock v. Egger, 848 F.2d 87 (6th Cir. 1988); Honeycutt v. Long, 861 F.2d 1346, 1350-1351 (5th Cir. 1988). Section 2000e-16(c) expressly requires that in the civil action authorized by that Section, "the head of the department, agency, or unit, as appropriate, shall be the defendant." This requirement was highlighted in the notice of the right to sue received by petitioner (see note 3, supra), which emphasized that "(i)f you file a civil action, YOU MUST NAME THE APPROPRIATE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD AS THE DEFENDANT. * * * Failure to provide the NAME OR OFFICIAL TITLE of the agency head or, where appropriate, the department head, may result in the dismissal of your case." EEOC Dec. R-1. Despite this clear instruction, petitioner nevertheless failed to name the Postmaster General in his original complaint. Instead, he named only the U.S. Postal Service. As both the district court and the court of appeals properly held, petitioner cannot cure this defect by amending the complaint and invoking the "relation back" provision of Fed. R. Civ. P. 15(c). Under Rule 15(c), an amendment changing a party against whom a claim is asserted relates back to the date the original complaint was filed only if a plaintiff has given adequate notice to the proper defendant within the applicable time period. Schiavone v. Fortune, 477 U.S. 21, 29 (1986). Petitioner has failed to satisfy that requirement. Since petitioner received the final EEOC decision denying his claim of discrimination on February 17, 1988, his time to perfect his claim for judicial relief by filing his complaint and giving actual or constructive notice to the Postmaster General expired on March 18, 1988. Even assuming petitioner's complaint was timely filed, /6/ it is clear that the Postmaster General did not receive timely notice of it. There was no service on any postal official until July 7, 1988. /7/ Service on the U.S. Attorney -- which provides constructive notice to the Postmaster General (Fed. R. Civ. P. 15(c)) -- was not effected until September 2, 1988. App. infra, 3a. Petitioner is thus plainly in error in suggesting (Pet. 10), without explanation, that "holding that (the March 15 application for in forma pauperis status) satisfied the 30-day limitations period would not seem to offend Schiavone v. Fortune (supra)." 2. Petitioner correctly observes (Pet. 9-10) that the courts of appeals are divided over the question whether the requirement of 42 U.S.C. 2000e-16(c) that discrimination complaints against the federal government be filed within thirty days of receipt of notice of final administrative action is a statute of limitations subject to equitable tolling or a jurisdictional requirement that cannot be waived or enlarged on the basis of equitable considerations. That question is presented in Irwin v. Veterans Administration, cert. granted, 110 S. Ct. 1109 (1990). There is no need for this Court to hold this case pending the decision in Irwin. The decision below turned on petitioner's failure to name the proper defendant, and the application of Schiavone to his claim of a right to "relation back" under Rule 15(c), rather than on his failure to file a timely complaint. In any event, petitioner has not suggested any viable equitable basis for tolling the statutory requirement in this case. Petitioner's sole equitable claim is that he should be relieved of compliance with the statutory requirements because he was proceeding pro se. Pet. 8-10. But this Court has held that timeliness requirements may not be disregarded simply because the plaintiff may be a "victim() of discrimination who (must) proceed without the assistance of counsel." Mohasco Corp. v. Silver, 447 U.S. 807, 824 (1980). Cf. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984) (statutory time limit for filing a Title VII action against private employer not satisfied by pro se plaintiff's timely filing of right-to-sue letter in place of complaint; plaintiff's pro se status was not a basis for excusing noncompliance with Federal Rules of Civil Procedure regarding commencement of actions or for tolling limitations period). Petitioner can claim no other grounds for equitable relief from the filing requirements. There is no basis for a claim that affirmative misconduct on the part of the defendant lulled the petitioner into inaction see Heckler v. Community Health Services, 467 U.S. 51, 59 (1984); nor is there any basis for a claim that petitioner received inadequate notice of the applicable requirements. Instead, petitioner was specifically advised in the EEOC's right to sue notice of the need to file his complaint within 30 days, and to identify the "Official Agency Head or Department Head" in that complaint (EEOC Dec. R-1). He was further warned that his failure to provide the "Name or Official Title" of that person might result in the dismissal of his case. Ibid. As this Court has held, the equities do not weigh in favor of modifying statutory requirements when the procedural default is caused by petitioner's "failure to take the minimal steps necessary" to preserve his claim. Johnson v. Railway Express Agency Inc., 421 U.S. 454, 466 (1975); Baldwin County Welcome Center v. Brown, 466 U.S. at 151 (1984) (particularly where plaintiff is informed of what he must do to preserve his claim, "(o)ne who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence"). CONCLUSION The petition for a writ of ceriorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MICHEAL JAY SINGER MICHEAL E. ROBINSON Attorneys AUGUST 1990 /1/ "EEOC Dec." refers to the final EEOC decision of February 12, 1988, rejecting petitioner's claim that his second suspension was discriminatory. We are lodging a copy of this decision and of petitioner's complaint with the Clerk of this Court. /2/ Petitioner's dismissal was not at issue in the administrative proceedings. EEOC Dec. 3 n.2. The judicial complaint and the petition for certiorari are at best ambiguous concerning whether petitioner is seeking judicial review of his dismissal. See Pet. App. A17; Pet. 5-6. /3/ The notice specifically informed petitioner (EEOC Dec. R-1): You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) DAYS of the date that you receive this decision * * *. If you file a civil action, YOU MUST NAME THE APPROPRIATE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD AS THE DEFENDANT. * * * Failure to provide the NAME OR OFFICIAL TITLE of the agency head or, where appropriate, department head, may result in the dismissal of your case. Department means the national organization, for example, Department of Health, Education, and Welfare (that agency no longer exists) and not the local administrative department where you might work. /4/ As the district court noted in denying petitioner's motion for reconsideration (App., infra, 3a n.5), petitioner's service on the Postal Service was technically insufficient because it was accomplished by serving the local Dallas, Texas, postal authorities. /5/ Petitioner's primary argument in seeking reconsideration was that his March 15, 1988, submission of his complaint to the clerk's office should be considered a timely initiation of his suit. But the court noted that even if it were to accept that contention, petitioner failed to name the proper party defendant or to provide timely actual or constructive notice to him. App., infra, 2a-3a. The court also concluded that "the summary judgment record fails to support any of (petitioner's) allegations allegations of racial discrimination." Id. at 4a. /6/ Since petitioner failed to provide timely notice to the proper defendant, it is not necessary to consider whether the submission of his complaint to the district court clerk's office on March 15 constituted a timely filing of his complaint. In our response in Hernandez v. Rice, No. 89-486, we suggested that receipt by the district court clerk's office of the discrimination complaint with a request to proceed in forma pauperis might constitute "filing" for purposes of Section 2000e-16(c). The Court granted certiorari in that case, vacated the judgment of the court of appeals, and remanded for consideration of that question. 110 S. Ct. 1314 (1990). On remand, the Fifth Circuit concluded that the plaintiff's lodging -- which named the proper defendant -- satisfied the requirement of 42 U.S.C. 2000e-16(c). Hernandez v. Aldridge, No. 88-5603 (June 5, 1990). Although Hernandez's request to proceed in forma pauperis was ultimately granted, petitioner's request was denied. Cf. Toliver v. County of Sullivan, 851 F.2d 41, 42 (2d Cir. 1988) ("At least where in forma pauperis relief is granted," Title VII employment discrimination complaint treated as timely filed when received by the clerk's office, although not formally filed and docketed until after the expiration of the statutory period.). /7/ Local postal officials were served on that date. It is far from clear that such service can be considered constructive notice to the Postmaster General under Rule 15(c) (see Schiavone v. Fortune, 477 U.S. at 29; App., infra, 3a n.5). appendix