RICHARD STRAND, PETITIONER V. DEFENSE LOGISTICS AGENCY No. 89-6604 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 Ninth Circuit Brief For The Respondent In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A3) and the opinion of the district court (Pet. App. A5-A8) are unreported. JURISDICTION The judgment of the court of appeals was entered on August 17, 1989. A petition for rehearing was denied on September 22, 1989. The petition for a writ of certiorari was filed on December 12, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the naming of the proper defendant is jurisdictional under 42 U.S.C. 2000e-16(c), which provides that in a federal employee's Title VII employment discrimination suit "the head of the department, agency, or unit, as appropriate, shall be the defendant." STATEMENT 1. Petitioner is an Alaskan Indian who was employed by the Defense Property Disposal Office of the Defense Logistics Agency (DLA) as a forklift operator at Fort Wainwright, Alaska. As a prerequisite for his job, petitioner was required to hold a federal driver's license. Pertinent regulations required the agency to terminate an employee's federal operator's license if the employee's state license was revoked, unless that requirement was waived by the appropriate official. App., infra, 1-2. /1/ On April 8, 1979, the State of Alaska revoked petitioner's state driver's license after he was convicted for driving while intoxicated while he was on probation for a prior similar offense. Because the Post Commander denied his application for a waiver of the state license requirement of the federal license, /2/ and because petitioner refused alternative duties that would not require him to operate heavy equipment, petitioner lost his federal driver's license and DLA fired him for failing to satisfy one of the prerequisites for his job. Id. at 2-4 & n. 3. 2. Petitioner sought review before the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC). On July 15, 1983, the MSPB sustained the agency's decision, and on February 28, 1984, the MSPB denied a petition for reconsideration. Pet. App. A6. On November 3, 1986, the EEOC denied consideration of the MSPB determination under 5 U.S.C. 7702(b)(2), on the ground that the tapes comprising the record in the MSPB had been lost. Id. at A1-A2; A6. The EEOC sent petitioner a right-to-sue letter, which the petitioner received on December 6, 1986. /3/ Petitioner lodged a civil rights complaint in district court on December 22, 1986, naming DLA as defendant. The complaint, however, was not stamped filed until February 3, 1987. Pet. App. A2-A3, A6 n. 1. The complaint and summons were served on DLA and the United States Attorney on February 5, 1987. Docket Sheet Entry No. 3. After the MSPB found the transcript of the proceedings it had conducted, the EEOC considered the entire record and, on June 8, 1987, concurred in the result reached by the MSPB Board. App., infra. /4/ The record does not indicate when this opinion, with a second right-to-sue letter, was received by petitioner. Petitioner apparently attempted to amend his complaint without leave of the district court on July 21, 1987. Pet. App. A6. /5/ Petitioner eventually moved for leave to amend his complaint on September 15, 1987, and filed an affidavit of service on the United States Attorney on September 16, 1987. Id. at A7. /6/ Petitioner also filed at that time a "Notice Of Demand For Counsel Of Choice," in which he asserted the desire to proceed pro se, with "co-counsel" who is not a lawyer. The district court dismissed petitioner's complaint for lack of jurisdiction on alternative grounds. First, it held that petitioner had not filed a civil action within the 30-day filing period set forth in 42 U.S.C. 2000e-16(c). Although petitioner's initial complaint was "lodged" with the district court within 30 days of receipt of the EEOC's first right-to-sue letter, the court noted that it was not formally filed until more than 30 days after receipt of that letter. Pet. App. A8. Alternatively, the district court dismissed petitioner's suit because he failed to name the proper defendant in either his original or his amended complaint, despite the clear instructions in the right-to-sue letter indicating that the Secretary of Defense is the only proper defendant. Pet. App. A8-A9; App., infra, 6; See 42 U.S.C. 2000e-16(c). /7/ 3. The court of appeals affirmed on August 17, 1989. It held that 42 U.S.C. 2000e-16 requires that the proper defendant -- here, the Secretary of Defense -- be named within the 30-day period for the filing of a complaint. Pet. App. A2-A3. /8/ Because that holding was dispositive of the issue on appeal, the court of appeals did not reach the alternative ground relied upon by the district court for dismissal. Id. at A2. 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, 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 satisfies the requirements of Section 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, 1350-51 (5th Cir. 1988). /9/ 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 emphasized in both notices of the right to sue received by petitioner, which specifically informed petitioner that: if you file a civil action, YOU MUST NAME THE APPROPRIATE OFFICIAL AGENCY 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 loss of any judicial redress to which you may be entitled. (Please note: for this purpose, Department means the overall national organization, such as the now defunct Department of Health, Education, and Welfare, not the local administrative department where you might work.) You must be sure that the proper defendant is named when you file your civil action." App., infra, 6 (emphasis in original); Pet. App. A9. Despite these clear instructions, petitioner nevertheless failed to name the Secretary of Defense in either his original or his amended complaint. Pet. App. A3. Instead, he named DLA, reasoning that because DLA dismissed him, DLA, and not the Secretary, was the proper defendant. Id. at n.3. This was -- as petitioner was warned -- jurisdictionally inadequate. If this case were remanded to the district court, petitioner could move to amend his complaint to add the Secretary of Defense as a named defendant, but that would not cure the jurisdictional problem. Under Fed. R. Civ. P. 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 apparently failed to satisfy that requirement. His complaint was not served on the government until February 5, 1987. /10/ Therefore, even assuming petitioner's original complaint can be considered to have been filed within 30 days of his receipt of the EEOC's initial right-to-sue letter on December 6, 1986, the Secretary of Defense received neither actual nor constructive notice of the action within the prescribed period. The filing of the amended complaint does not alter this result. Although petitioner could have filed a new civil action following the second right-to-sue letter, he did not do so. Instead, he simply submitted an amended complaint that reiterated his objections to the agency action and to the original EEOC decision, without mentioning the new EEOC decision. /11/ The amended complaint still failed to identify the Secretary of Defense as the defendant. /12/ 2. The court of appeals did not consider the alternative holding of the district court: that petitioner's complaint should be dismissed on the ground that a Title VII complaint is not filed within the meaning of 42 U.S.C. 2000e-16(c) when it is "lodged" with the district court clerk's office, but not entered onto the docket sheet by the clerk's office and marked "filed" at that time. We have serious doubts about the correctness of this alternative holding, for the reasons explained in our response in Hernandez v. Rise, No. 89-486. /13/ In accordance with our suggestion, this Court recently granted certiorari in that case, vacated the judgment of the court of appeals and remanded for consideration of "whether or not, in all of the circumstances of the case, receipt of the non-defective complaint by the district court's Clerk's office constituted a 'filing' for the purposes of 42 U.S.C. Section 2000e-16(c) (1982)." 110 S. Ct. 1314 (1990). /14/ No similar disposition is appropriate in this case, because, as we have shown, the alternative ground, upon which the court of appeals relied, justified the dismissal of petitioner's suit. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MICHAEL JAY SINGER MICHAEL E. ROBINSON Attorneys JULY 1990 /1/ The relevant facts are summarized in the attached June 8, 1987, opinion of the Equal Employment Opportunity Commission. /2/ The waiver was denied because the Post Commander found petitioner could not be trusted to operate heavy equipment on the base in light of his repeated convictions for drunk driving and the fact that he continued to drive his car to work after his state license was revoked. /3/ Although petitioner's complaint states that he received the right-to-sue letter "on or about 12/5/86" (Complaint para 9; Pet. App. A6 n. 1), EEOC records indicate that it was received on December 6, 1986 (Mem. In Supp. Of Def. Mot. to Dismiss, Attachment to Affidavit of Earl L. Benson). /4/ The district court erroneously states that the EEOC issued its opinion on June 25, 1987. Pet. App. A7. /5/ The district court's docket entries do not reflect any such filing. /6/ The amended complaint did not refer at all to the June 8 EEOC decision; instead, it simply repeated petitioner's objections to the November 3 decision. Amended Complaint at paras. 15, 22. Nor did the amended complaint identify the Secretary of Defense as the defendant. Instead it identified the defendant as "the Department of Defense, Defense Logistics Agency, Property Disposal Office, Fort Wainwright Alaska et al., who are charged with the duty of shipping and receiving needed materials within the confines of the U.S. Defense Department." Amended Complaint at para. 7. /7/ DLA is a "combat support agency" under the Department of Defense (DOD). 10 U.S.C. 193(f). The Secretary of Defense has oversight over the agency. 10 U.S.C. 192(a). DOD is an executive agency, defined in 5 U.S.C. 101, and thus subject to suit as an executive agency under 42 U.S.C. 2000e-16(a). Thus, the Secretary, as head of DOD, was the proper defendant. Pet. App. A2 n.1. /8/ The court of appeals noted (Pet. App. A3 & n.3) that petitioner, though warned of this requirement, refused to name the Secretary, asserting that "because the (DLA) has dismissed him, (DLA), not the Secretary, was the proper defendant." /9/ The question whether 42 U.S.C. 2000e-16(c)'s requirement that discrimination complaints against the federal government be filed within 30 days of receipt of notice of final administrative action is jurisdictional is presented in Irwin v. Veterans Administration, cert. granted, No. 89-5867 (Feb. 20, 1990). The Court need not hold the petition for a writ of certiorari in this case pending the disposition of Irwin, however, because the court of appeals' affirmance of the dismissal of petitioner's action rested solely on an independent, alternative ground -- petitioner's failure to name the proper party defendant. /10/ Even then, it was only served on DLA and the United States Attorney's Office; the Secretary of Defense was never served. Nevertheless, as we explained in our response in Young v. National Center For Health Services Research, petition for cert. pending, No. 89-1010, at pp. 8-9, service on the United States Attorney or his designee is sufficient to provide constructive notice to the Secretary. We are providing petitioner with a copy of our response in Young. /11/ The Petition similarly appears to challenge only the original EEOC determination. Although petitioner identifies as a "Question Presented" the issue of whether the first or second EEOC decision started the 30-day time limit (Pet i, Question A), that question is not addressed in the petition. The petition's argument is based entirely on events preceding the second EEOC decision: it urges that lodging constitutes filing, and suggests that an agency decision made in the absence of the transcript denies due process. /12/ The date when the amended complaint was "filed" is unclear, since it was apparently submitted to the district court clerk's office in mid July, but no motion to amend was made until September 15. See pp. 3-4, supra. /13/ We are sending petitioner a copy of that filing. /14/ On remand, the Fifth Circuit concluded that the plaintiff's lodging satisfied the requirement of 42 U.S.C. 2000e-16(c). Hernandez v. Aldridge, No. 88-5603 (June 5, 1990). APPENDIX