CARLOS M. LAVERNIA, PETITIONER V. UNITED STATES BUREAU OF PRISONS No. 90-7603 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 Eleventh Circuit Brief For The Respondent In Opposition OPINIONS BELOW The order of the court of appeals affirming the district court's judgment (Pet. App. 1a-2a) /1/ is not reported, but the decision is noted at 925 F.2d 1475 (Table). The opinion of the district court (Pet. App. 3a-7a) is not reported. JURISDICTION The judgment of the court of appeals was entered on January 31, 1991. The petition for a writ of certiorari was filed on April 4, 1991. The petitioner incorrectly invokes this Court's jurisdiction under the All Writs Act, 28 U.S.C. 1651(a). This Court has jurisdiction under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, when petitioner's original complaint under the Federal Tort Claims Act failed to name the United States as a defendant and the United States received no notice of the suit within the period of limitations, the lower courts erred in concluding that an amendment to the complaint adding the United States as a defendant would not relate back, under Fed. R. Civ. P. 15(c), to the date on which the original complaint was filed. STATEMENT 1. In February 1984, petitioner was taken into custody by the Immigration and Naturalization Service and incarcerated in the federal prison in Atlanta, Georgia. Later that year, petitioner was transferred to Austin, Texas, to stand trial on state charges. Petitioner alleges that the Bureau of Prisons instructed him to leave his personal property at the Atlanta facility until his return. Because petitioner was convicted in Texas and incarcerated there, however, he was not returned to the Atlanta prison. Petitioner alleges that he wrote several letters asking the Bureau of Prisons to forward his property and that, on May 6, 1988, he was notified that his property could not be located. Pet. App. 3a-4a. On August 26, 1988, petitioner filed an administrative claim with the Bureau of Prisons requesting $1,440 for the loss of his property. Ruling that petitioner's claim had accrued on September 13, 1984 (the day petitioner was transferred to Texas), the Bureau denied the claim as untimely under 28 U.S.C. 2401(b). That statute requires an administrative claim under the Federal Tort Claims Act to be filed within two years after a claim has accrued. Petitioner's request for reconsideration was denied on September 23, 1988. Pet. App. 4a. 2. Under 28 U.S.C. 2401(b), petitioner had six months from the date his motion for reconsideration was denied (until March 23, 1989) to file an FTCA action against the United States. On February 23, 1989, petitioner lodged a complaint, invoking the FTCA and naming the Bureau of Prisons as the sole defendant, in the district court. Pet. App. 4a. The complaint was accompanied by a motion for leave to proceed in forma pauperis. An order granting that motion was entered on April 6 or July 6, 1989. /2/ The United States Attorney was served on July 27, 1989, by a U.S. Marshal. Ibid. The Bureau of Prisons moved to dismiss. It argued, inter alia, that the United States was the only proper defendant in petitioner's FTCA action and that, because the United States had not received notice of the action within the period of limitations, any amendment to the complaint adding the United States as a defendant would not relate back, under Fed. R. Civ. P. 15(c), to the date on which the original complaint was filed. Pet. App. 4a. /3/ The district court granted the motion to dismiss. Pet. App. 3a-7a. Although it deemed the original complaint to have been filed on February 23, 1989 (the day it was received by the clerk of the district court), the court concluded that that complaint was insufficient because it failed to name the United States as the defendant. Id. at 6a. The court also held that any amendment to the complaint seeking to cure that defect would not satisfy Rule 15(c)'s requirements for relation back. The court noted that Rule 15(c) resquires that the party named in an amended complaint, here the United States, "have actual notice of a complaint within the applicable limitations period." Pet. App. 7a. In this case, the court found, the complaint was not served on the United States until July 27, 1989, and there was "no evidence that the United States had actual notice of the filing of the complaint nor any knowledge that it was the proper defendant in this action" prior to that time. Ibid. Thus, the court concluded, "the notice required by Rule 15(c) did not come into being until July 27, 1989, after the expiration of the six month limitation period, and the complaint cannot now be amended to add the United States as the defendant." Ibid. 3. In an unpublished order, the court of appeals affirmed the dismissal of the action for the reasons stated in the district court's opinion. Pet. App. 1a-2a. ARGUMENT The lower courts' disposition of this case is compelled by this Court's decision in Schiavone v. Fortune, 477 U.S. 21 (1986). Moreover, the Court has transmitted to Congress an amendment to Rule 15(c). Unless Congress takes action to block that amendment, the question presented will have no continuing significance. Further review is therefore not warranted. 1. In Schiavone v. Fortune, 477 U.S. at 29, this Court noted that an amendment adding a new defendant to an action does not relate back to the filing of the original complaint unless four conditions are satisfied: (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. Schiavone, like the instant case, turned on the last three of these requirements. Three individuals, who alleged that they had been libelled by Fortune magazine, filed complaints naming "Fortune" as the defendant. Fortune was not a proper defendant, however, since it was only a division of Time, Inc., and not an entity subject to suit. The original complaints were filed, but not served, within the applicable period of limitations. After the statute of limitations had expired, the plaintiffs filed amended complaints identifying Time, Inc., as the defendant. Time moved to dismiss, arguing that the amendments did not relate back to the date on which the original complaints were filed. In this Court, the plaintiffs argued that Time and Fortune "had such commonality of interest that notice to one was in fact notice to the other" and that, because Time received notice within the period within which the original complaint could be served, the amended complaints should be allowed to relate back. This Court rejected both of these arguments and held (477 U.S. at 29): Timely filing of a complaint, and notice within the limitations period to the party named in the complaint, permit imputation of notice to a subsequently named and sufficiently related party. In this case, however, 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 that could be imputed to Time. The Court acknowledged that Rule 15(c) could mandate harsh results, but found no reason "to temper the plain meaning of (its) language." Id. at 30. "The linchpin is notice," the Court explained, "and notice within the limitations period. Of course, there is an element of arbitrariness here, but that is a characteristic of any limitations period. And it is an arbitrariness imposed by the legislature and not by the judicial process." Id. at 31. As the courts below recognized, this case is on all fours with Schiavone. Petitioner failed to name the proper defendant in his original complaint, and the period of limitations expired before the named defendant (the Bureau of Prisons) or the proper defendant (the United States) received any notice of the suit. Consequently, Schiavone compels the conclusion that an amendment of petitioner's original complaint naming the United States as the defendant would not relate back to the date on which the original complaint was filed. 2. Petitioner complains that a delay in the issuance of the summons, which he characterizes as "mysterious" and "unexplained" (Pet. 7, 8), deprived him of the opportunity to cure the defect in his original pleading. The fact that a summons was not immediately issued when the clerk received petitioner's complaint was, however, a result of procedures that applicable statutes and rules prescribe for in forma pauperis actions. Under 28 U.S.C. 1914(a), a district court "shall require the parties instituting any civil action" to pay a $120 filing fee. In accordance with 28 U.S.C. 1914(c), the rules of the Northern District of Georgia require payment of that fee before the filing of a complaint in any civil action; if a plaintiff seeks to proceed in forma pauperis, the complaint is held by the clerk of the court until the in forma pauperis motion is granted. N.D. Ga. R. 210. Under Fed. R. Civ. P. 4(a), a summons is issued forthwith "(u)pon the filing of the complaint." In accordance with these provisions, petitioner's complaint was not filed (and a summons was not issued) until the court had acted upon petitioner's motion for in forma pauperis status and had waived payment of the filing fee. In the meantime, the statute of limitations expired. The effect of this procedure was to make it impossible for petitioner to amend his complaint to cure a defect in his original pleading. That fact, however, provides no legal basis for reversal of the court of appeals' judgment. The district court had no obligation to act on petitioner's in forma pauperis motion within any fixed period of time or to structure its procedures to protect litigants against the consequences of defects in their pleadings. Nor was the court authorized to issue a summons while the in forma pauperis motion remained pending. Thus, the dismissal of petitioner's action did not violate the Federal Rules of Civil Procedure or the in forma pauperis statute. The particular facts of this case do not, therefore, provide any basis for a departure from Schiavone. /4/ 3. On April 30, 1991, this Court transmitted to Congress an amendment to Rule 15(c) that would alter the result in Schiavone and in this case. Under the proposed rule, an amendment substituting a correct defendant for a misnamed defendant would relate back if, "within the period provided by Rule 4(m) for service of the summons and complaint," the party to be brought in by amendment receives sufficient notice of the action. Proposed Rule 4(m), in turn, ordinarily allows for service of the summons and complaint within 120 days after the filing of the complaint. Unless Congress takes action to prevent the new rule from going into effect, it will become effective on December 1 of this year. The question presented by this case is therefore unlikely to have any continuing significance. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General BARBARA L. HERWIG KATHERINE S. GRUENHECK Attorneys JUNE 1990 /1/ The opinions of the court of appeals and the district court are not paginated in the appendix to the petition. For ease of reference, we have numbered the portions of the appendix containing those opinions 1a through 7a. /2/ The first page of the docket entries (which are attached to the petition as "Appendix No. Two") indicates that the action was filed on April 6, 1989, and the district court's opinion states that the motion for leave to proceed in forma pauperis was granted on that date. Pet. App. 4a, 6a. However, the second page of the docket entries reflects that the order allowing the action to proceed in forma pauperis was entered on July 6, 1989. The discrepancy is not material to the question presented, since both dates were outside the period of limitations for petitioner's action. It does not matter, therefore, whether (as petitioner suggests) service was delayed for some period after his complaint was filed. /3/ Rule 15(c) provides: 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 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 the party to be brought in by amendment that party (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 the party. The delivery or mailing of process to the United States Attorney, 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. On April 30, 1991, this Court transmitted an amendment to Rule 15(c) to Congress. Under Rule 15(c) as revised, an amendment to a complaint adding a new defendant would relate back if the new defendant received sufficient notice of the action within the time allowed for service of the summons and complaint (ordinarily 120 days after the filing of the complaint). Unless Congress blocks that amendment, it will become effective on December 1, 1991. /4/ The issue of equitable tolling was not raised in the lower courts. Cf. Irwin v. Veterans Administration, 111 S. Ct. 453 (1990). However, this is not a case in which that doctrine could properly be invoked. Here, Rule 15(c) specifies the circumstances under which a defendant not named within the period of limitations may be brought into an action; the doctrine of equitable tolling may not be employed to circumvent those limitations. In any event, the error involved in this case -- the failure to name the correct defendant in an FTCA suit -- gives rise at best to "a garden variety claim of excusable neglect." 111 S. Ct. at 458. Of course, as this Court recognized in Irwin, "(b)ecause the time limits imposed by Congress in a suit against the Government involve a waiver of sovereign immunity, it is evident that no more favorable tolling doctrine may be employed against the Government than is employed in suits between private litigants." Ibid.