Johnson v. U.S. Postal Service

• Decision Date: 30 November 1988
• Docket Number: No. 86-2780,86-2780
• Citation: 861 F.2d 1475
• Parties: 48 Fair Empl.Prac.Cas. 686, 48 Empl. Prac. Dec. P 38,520, 12 Fed.R.Serv.3d 1124 Jerrald M. JOHNSON, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1475

861 F.2d 1475

48 Fair Empl.Prac.Cas. 686,

48 Empl. Prac. Dec. P 38,520, 12 Fed.R.Serv.3d 1124

Jerrald M. JOHNSON, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.

No. 86-2780.

United States Court of Appeals,

Tenth Circuit.

Nov. 30, 1988.

Rehearing Denied Feb. 15, 1989.

Brian E. Bates (Thomas L. Roberts, of Pryor, Carney and Johnson, P.C., Englewood, Colo., with him on the brief), of Pryor, Carney and Johnson, P.C., Englewood, Colo., for plaintiff-appellant.

Jerry R. Atencio (Robert N. Miller, U.S. Atty., and Colleen L. Conlin, Asst. U.S. Atty., Denver, Colo., with him on the brief), Asst. U.S. Atty., Denver, Colo., for defendant-appellee.

Before McKAY, McWILLIAMS and TACHA, Circuit Judges.

TACHA, Circuit Judge.

This appeal is from a grant of summary judgment in favor of defendant on the grounds of lack of jurisdiction. The issue on appeal is whether the federal rules allow the plaintiff to amend his complaint in order to correct a failure to name or serve the correct party defendant within the statutory limitations period. Because we hold that the federal rules do not so allow, we hold that the action should be dismissed for failure to state a claim. ¹ We affirm.

I.

On December 30, 1983, the plaintiff, Mr. Johnson, was discharged from his position as a mail handler at the Denver Bulk Mail Center. The United States Postal Service cited his unauthorized absences from work as the reason for the dismissal. Mr. Johnson alleges, however, that the actual reason for the action was the permanent disability of his right foot.

Mr. Johnson pursued his administrative appeal through the available channels. On July 13, 1985, he received from the Equal Employment Opportunity Commission (EEOC) a letter informing him that he had thirty days from the receipt of the letter to file a civil action in federal district court. On July 18, 1985, Mr. Johnson filed with the district court a motion to proceed in forma pauperis and for appointment of counsel. Four days later the plaintiff was granted his motion to proceed in forma pauperis but was denied his motion for appointment of counsel. Johnson v. United States Postal Serv., 113 F.R.D. 73, 74 (D.Colo.1986).

On August 12, 1985, Mr. Johnson timely filed his complaint under Title VII of the Civil Rights Act of 1964, naming as defendants the United States Postal Service and "The Mailhandlers Local 321." The district court subsequently dismissed Mr. Johnson's claim against the union. Id. That dismissal is not appealed. Because Mr. Johnson was proceeding in forma pauperis, the U.S. Marshal was ordered by the court to serve the summons and complaint. The U.S. Marshal served the U.S. Postal Service by certified mail, the summons and complaint being received on August 16, 1985. No service was made upon the United States Attorney for the federal district or upon the Attorney General of the United States, as required by Fed.R.Civ.P. 4(d)(5) and Fed.R.Civ.P. 4(d)(4).

On January 24, 1986, the district court issued an order to show cause why service of process was still incomplete. Mr. Johnson, now represented by counsel, showed sufficient cause for failing to have perfected service within the 120-day time limit of Fed.R.Civ.P. 4(j), and the court granted the plaintiff thirty days in which to perfect service. Johnson, 113 F.R.D. at 74. The plaintiff then served the U.S. Attorney, the U.S. Postal Service, and the Attorney General. Mr. Johnson also filed a second amended complaint alleging discrimination in employment on the basis of a physical handicap.

The U.S. Postal Service moved to dismiss the action for lack of subject matter jurisdiction, failure of capacity of defendant to be sued, insufficiency of service, and inability to substitute the proper defendant. The district court held that, because the plaintiff had not served or named the correct party defendant, and was unable under the federal rules to amend his complaint to name the proper party, the action should be dismissed for lack of subject matter jurisdiction. Id. Mr. Johnson appeals.

II.

When reviewing a grant of summary judgment, we must ordinarily determine whether any genuine issue of material fact remains and, if not, whether the district court correctly applied the law. Franks v. Nimmo, 796 F.2d 1230,1235 (10th Cir.1986). Here, however, the grant of summary judgment was based solely upon compliance or noncompliance with the federal rules of civil procedure and there were no material factual disputes. The judgment turns entirely upon legal issues. We therefore employ a de novo standard of review. Carey v. United States Postal Serv., 812 F.2d 621, 623 (10th Cir.1987).

The plaintiff brought this action, in his initial complaint, under section 706 of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. Sec. 2000e-5, ² and, in his second amended complaint, under sections 504 and 505 of the Rehabilitation Act of 1973 as amended, 29 U.S.C. Secs. 794, 794a. Employment discrimination actions filed by employees of the U.S. Postal Service under Title VII are controlled by 42 U.S.C. Sec. 2000e-16(c). This statute sets a thirty-day limitations period for filing claims and establishes that, in such civil actions, "the head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. Sec. 2000e-16(c).

In its present form, the Rehabilitation Act of 1973 does provide for a private cause of action against the federal government for employment discrimination based on handicap. We agree, however, with the Ninth Circuit that under the Rehabilitation Act, "section 501 is the exclusive remedy for discrimination in employment by the Postal Service on the basis of handicap." Boyd v. United States Postal Serv., 752 F.2d 410, 413 (9th Cir.1985). Section 501--not section 504, under which the plaintiff has brought this action--provides for a private cause of action for federal employees. " '[I]t is unlikely that Congress, having specifically addressed employment of the handicapped by federal agencies (as distinct from employment by recipients, themselves nonfederal, of federal money) in section 501, would have done so again a few sections later in section 504.' " Id. (quoting McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321 (7th Cir.1984)).

Moreover, section 505(a), 29 U.S.C. Sec. 794a(a), provides the lens that makes section 501, 29 U.S.C. Sec. 791, clear procedurally. ³ Section 505(a)(1) provides that an action brought under section 501 operates under the procedural constraints of Title VII of the Civil Rights Act of 1964. 29 U.S.C. Sec. 794a(a)(1). This means that such actions are subject to 42 U.S.C. Sec. 2000e-16(c)'s requirement of naming "the head of the department, agency, or unit" as the defendant. 42 U.S.C. Sec. 2000e-16(c). If Mr. Johnson had brought this action under section 501, he would not have escaped the procedural constraints of Title VII. We hold, furthermore, that only section 501 provides a private cause of action for federal employees bringing an action alleging employment discrimination based on handicap. ⁴

III.

Mr. Johnson, therefore, must meet the clear statutory requirements of 42 U.S.C. Sec. 2000e-16(c). His right of action is subject to the statute's thirty-day limitations period, and he must proceed against the head of the U.S. Postal Service. Here, the proper defendant--the Postmaster General--was never named or served. The only possible avenue for the plaintiff, therefore, is the federal rules' provision that, under certain situations, allows the relation back of amended pleadings, Fed.R.Civ.P. 15(c).

Rule 15(c) provides that:

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 a 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 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.

Fed.R.Civ.P. 15(c). The rule has a history of producing interpretative problems for the courts, see Cooper v. United States Postal Serv., 471 U.S. 1022, 1024, 105 S.Ct. 2034, 2035, 85 L.Ed.2d 316 (1985) (White, J., dissenting from denial of certiorari) ("the Courts of Appeals have not taken a consistent approach to this provision"), and for that reason the Supreme Court recently undertook a resolution of those problems, see Schiavone v. Fortune, 477 U.S. 21, 22, 106 S.Ct. 2379, 2381, 91 L.Ed.2d 18 (1986) (noting certiorari had been granted to resolve "apparent conflict among the Courts of Appeals").

In Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), the United States Supreme Court attempted to clarify "Rule 15(c) of the Federal Rules of Civil Procedure and its application to a less-than-precise denomination of a defendant in complaints filed in federal court near the expiration of the period of limitations." Id. at 22, 106 S.Ct. at 2381. The Schiavone Court stated that, under rule 15(c),

[r]elation back is dependent upon four factors, all of which must be satisfied: (1) the basic claim must have arisen out of the...