ABEL H. HERNANDEZ, PETITIONER V. DONALD B. RISE, SECRETARY OF THE AIR FORCE No. 89-486 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The Respondent TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statute involved Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1A-11A) is reported at 866 F.2d 800. The opinion of the district court (App., infra, 1a-4a) is unreported. The Air Force decision (App., infra, 5a-16a), and the EEOC recommended decision (App., infra, 17a-34a), are also unreported. JURISDICTION The judgment of the court of appeals was entered on March 1, 1989. The petition for a writ of certiorari was filed on May 27, 1989. This Court has jurisdiction under 28 U.S.C. 1254(1). STATUTE INVOLVED Section 717(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16(c), provides in pertinent part: 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 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 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. QUESTIONS PRESENTED 1. Whether the time limit of 42 U.S.C. 2000e-16(c), which requires a government employee to file a Title VII employment discrimination suit in federal court within thirty days of receipt of notice of final administrative action on his complaint, is jurisdictional. 2. Whether a properly prepared Title VII complaint is filed within the meaning of 42 U.S.C. 2000e-16(c) when it is submitted to the district court clerk's office and stamped "received," even though it is not entered onto the docket sheet by the clerk's office and marked "filed" at that time. STATEMENT Petitioner is an American Indian who has been employed since 1982 as a mechanic at Kelly Air Force Base in Texas. At the time of the incident giving rise to this suit, petitioner was employed in the Hydraulic Section repairing equipment, primarily aircraft pumps. The Section required each mechanic to become "certified" for each different type of equipment that the mechanic repaired, and to indicate that certification by stamping the paperwork accompanying each piece of equipment he repaired with his individually assigned number. App., infra, 20a-21a. In the course of an audit of previously repaired equipment, it was discovered that petitioner had repaired and stamped several pumps for which he had no certification. As a result, petitioner was reprimanded on October 10, 1985, for falsifying government documents -- i.e. falsely asserting, through the stamp, that he was authorized to perform the repairs. Id. at 18a, 21a-22a. Petitioner filed an informal complaint of discrimination against the Air Force, alleging that other mechanics who were not Indians were not reprimanded for performing work for which they were not certified. Id. at 18a, 22a-23a. After an informal inquiry failed to resolve the complaint to petitioner's satisfaction, he filed a formal complaint of discrimination on October 30, 1985. Pet. App. 3A. On administrative review, an Administrative Law Judge of the EEOC issued a Recommended Decision concluding that petitioner had established a prima facie case of racial discrimination, and that the agency's articulated nondiscriminatory reasons for the reprimand were pretextual. App., infra., 17a-24a. After further review of the record, on February 16, 1988, the Air Force issued a final decision concluding that the stated reasons for the reprimand were legitimate and adequate, and explaining the basis for that decision. It accordingly rejected the Recommended Decision. App., infra, 5a-16a. In notifying petitioner of its decision, the Air Force informed him that he could either seek further administrative review by an appeal to the EEOC, or alternatively file a civil action "in an appropriate United States District Court within 30 calendar days of receipt of the decision" (App., infra, 15a). /1/ Petitioner received notice of the final Air Force decision and his right-to-sue letter on February 18, 1988. App., infra, 2a & n.1. /2/ On March 10, 1988, petitioner submitted his civil complaint alleging discrimination to the Clerk of the United States District Court for the Western District of Texas. The Clerk marked the complaint "received" on that date. Pet. App. 4A. At the same time (as instructed in his right-to-sue letter, App., infra, 16a) the petitioner also filed a motion to proceed in forma pauperis and a motion for appointment of counsel. These motions were referred to a United States Magistrate who, on March 29, 1988, granted petitioner's request to proceed in forma pauperis. Pet. App. 4A. /3/ On that same day -- forty days after the petitioner received notice of the final agency decision and his right-to-sue letter -- the district court Clerk formally filed petitioner's complaint by entering it onto the court's docket sheet. Pet. App. 4A-5A. The district court dismissed the petitioner's complaint for lack of jurisdiction. App., infra, 1a-4a. The district court concluded the petitioner's complaint was barred by 42 U.S.C. 2000e-16(c), which requires a government employee to file a Title VII employment discrimination suit in federal district court within thirty days of receipt of notice of a final agency decision, because the petitioner's suit was not filed until March 29, 1988, more than thirty days after his receipt of notice of the final administrative decision and his right-to-sue letter. Id. at 3a. Although it concluded that the petitioner had not been negligent or dilatory in pursuing his Title VII claim in federal court, the court of appeals affirmed the dismissal on the ground that it was bound by Circuit precedent holding the thirty-day filing requirement in Section 2000e-16(c) to be jurisdictional. Pet. App. 9A-11A. ARGUMENT 1. The United States, as sovereign, is immune from suit save as it consents to be sued. Title VII remedies against the government, which constitute such consent, thus necessarily implicate issues of governmental immunity, see Brown v. GSA, 425 U.S. 820, 833 (1976). Accordingly, the terms of the statutory consent to be sued in any court define that court's jurisdiction to entertain the suit, Lehman v. Nakshian, 453 U.S. 156, 160 (1981), and such waivers of sovereign immunity are to be strictly construed. Id. at 161. For these reasons, the court below correctly concluded that the timely filing requirement in Section 2000e-16(c) is a jurisdictional prerequisite to district court consideration of a federal employee's Title VII complaint. Accord Sims v. Heckler, 725 F.2d 1143, 1145-1146 (7th Cir. 1984); Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1083 (9th Cir. 1983). See also Hallstrom v. Tillamook County, 110 S. Ct. 304 (1989) (where a party suing under the citizen suit provisions of the Resource Conservation and Recovery Act of 1976 fails to meet the notice and 60-day delay requirements of 42 U.S.C. 6972(b), the district court must dismiss the action as barred by the terms of the statute). But see Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984) (thirty-day limitation period in 42 U.S.C. 2000e-16(c) is not jurisdictional); Milam v. United States Postal Service, 674 F.2d 860, 862 (11th Cir. 1982) (same); Saltz v. Lehman, 672 F.2d 207, 208 (D.C. Cir. 1982) (same). 2. There is, however, no need for this Court to address the apparent conflict in the Circuits on that issue in this case (cf. Stuckett v. United States Postal Service, 469 U.S. 898 (1984) (White, J., dissenting from denial of certiorari petition, citing conflict in Circuits)), because it is not clear that petitioner's complaint was not timely filed. The court below did not expressly address the question whether receipt by the district court Clerk's office of a properly completed discrimination complaint was sufficient to constitute "filing" for purposes of Section 2000e-16(c). See, e.g., Toliver v. County of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988) (per curiam) (at least where in forma pauperis status is granted, Title VII employment discrimination complaint should be treated as timely filed where it was received by the office of the pro se clerk prior to expiration of the limitations period, even though it was not formally "filed" and entered on the docket sheet until almost a month later); Sonicraft, Inc. v. NLRB, 814 F.2d 385, 386 (7th Cir. 1987) (notice of appeal or petition for review is filed when received); Rice v. Hamilton Air Force Base Commissary, 720 F.2d at 1085 ("(I)n the specific context of Title VII, the statutory requirement that an action be 'brought' within the time period is satisfied by presenting a right-to-sue letter to the court and requesting the appointment of counsel") (quoting Wingfield v. Goodwill Industries, 666 F.2d 1177, 1179 n.3 (8th Cir. 1981)). The court of appeals appears to have assumed that petitioner's complaint was not filed until it was so stamped by the Clerk's office (Pet. App. 4A-5A, 6A), and thus that the filing was jurisdictionally out-of-time. The court reluctantly concluded that two previous opinions of the Circuit, Bell v. Veterans Administration Hospital, 826 F.2d 357, 360-361 (5th Cir. 1987), and Brown v. Department of Army, 854 F.2d 77, 78 n.1 (5th Cir. 1988), required this result. See Pet. App. 8A-10A. We disagree. The facts in those cases were significantly different from the situation here, and the reasoning in those cases does not require dismissal of petitioner's suit. In both Bell and Brown, the complaining federal employee made a timely filing identifying as the defendant the employing agency, rather than the agency head -- as required by Section 2000e-16(c). 826 F.2d at 359; 845 F.2d at 78. The Fifth Circuit concluded in both cases that a subsequently filed amendment identifying the proper party defendant would not relate back to save the original filing. 826 F.2d at 360-361; 854 F.2d at 78-79. By contrast, petitioner here named the proper party in his federal complaint, and there was thus no need to consider the effect of an amendment filed after the expiration of the statutory time limit. Thus, neither Brown nor Bell requires the result reached by the court of appeals. /4/ Because neither party below briefed the issue whether a non-defective complaint submitted to the district court Clerk's office within thirty days of receipt of a right-to-sue letter satisfies the statute's filing deadline, the court of appeals did not address that issue. Had it done so, it might well have reached a different result under the circumstances of this case. See Toliver v. County of Sullivan, 841 F.2d at 42; Pet. App. 9A. It would therefore be appropriate to remand this case to the court of appeals for consideration of whether receipt of a non-defective discrimination complaint by the Clerk's office constitutes "filing" for purposes of Section 2000e-16(c). CONCLUSION The petition for a writ of certiorari should be granted, the judgment of the court of appeals should be vacated, and the case remanded for consideration of the issue identified above. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General ROBERT S. GREENSPAN MICHAEL E. ROBINSON Attorneys DECEMBER 1989 /1/ The notification also informed petitioner that "if you file a civil action, you must name the appropriate Department or Agency head as the defendant. Failure to name the head of the Department or Agency may result in the loss of any judicial redress you may be entitled to." App., infra, 16a. /2/ Although both the district court (App., infra, 1a-2a), and the court of appeals (Pet. App. 4A) indicate that the final administrative decision was issued by the EEOC on February 16, 1988 and received by petitioner on February 18, 1988, the record indicates that it was the final Air Force decision that was issued and received on those dates, thereby triggering the time limits for filing the civil action. App., infra, 5a; see 42 U.S.C. 2000e-16(c). /3/ Petitioner's motion for appointment of counsel was later denied. Pet. App. 4A. /4/ Indeed, the district court in Bell assumed that the original complaint was timely filed when it was presented to the Clerk's office and marked "received" within 30 days after Bell received the final agency decision, even though the complaint was not stamped "filed" until the 47th day after his receipt of that decision. The court of appeals did not question that assumption. See 826 F.2d at 359. Accordingly, to the extent that Bell is relevant to the instant case, it suggests that petitioner's complaint was timely filed. APPENDIX