Harris v. Brock
| Decision Date | 11 December 1987 |
| Docket Number | No. 86-2651,86-2651 |
| Citation | 835 F.2d 1190 |
| Parties | 45 Fair Empl.Prac.Cas. 931, 45 Empl. Prac. Dec. P 37,675, 56 USLW 2379 James R. HARRIS, Plaintiff-Appellant, v. William E. BROCK, Secretary of Labor, United States Department of Labor, and United States of America, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Arthur R. Ehrlich, Goldman & Marcus, Chicago, Ill., for plaintiff-appellant.
William T. Clabault, Asst. U.S. Atty., Dept. of Justice, Chicago, Ill., Anton Valukas, U.S. Atty., for defendants-appellees.
Before WOOD, POSNER and MANION, Circuit Judges.
Plaintiff, James Harris, brought this discrimination suit against a federal employer under Title VII. The district court dismissed the suit because Harris failed to file the action with the district court within the statutory time limits, thereby depriving the court of subject matter jurisdiction. We affirm.
James Harris is an employee of the Veterans Employment and Training Service (VETS), an agency of the United States Department of Labor. In 1982 and 1983, Harris requested VETS to transfer him from his station in Chicago to Waukegan, Illinois, a location closer to his residence. Because Harris's wife had recently undergone cancer surgery, Harris wished to be closer to his home. VETS did not maintain an office in Waukegan, however, and Harris's supervisor denied his transfer request. Alleging that his transfer was denied in retaliation for a previous Equal Employment Opportunity Commission (EEOC) complaint, 1 Harris filed a formal complaint of discrimination on August 8, 1983, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16 (1982).
On May 7, 1985, Harris received a letter informing him that the EEOC examiner had reached a final decision denying his complaint of discrimination based on reprisal. The letter advised Harris of his right to file a civil action with the United States District Court within thirty days.
Harris initially filed a complaint with the United States District Court for the Northern District of Illinois on June 4, 1985. Harris, however, did not properly serve the defendants. Harris merely mailed a copy of the summons and complaint to the local office of the Department of Labor. Rule 4 of the Federal Rules of Civil Procedure 2 requires a party suing a federal agency to serve the United States Attorney for that district. In addition, Rule 4 also requires a plaintiff to send both the Attorney General and the defendant agency copies of the summons and complaint by registered mail. Thus, since Harris did not use certified or registered mail to serve the Department of Labor, and completely failed to serve the U.S. Attorney or Attorney General, service of process was ineffective.
The defendants subsequently moved to dismiss the case pursuant to Rule 4(j). 3 Harris did not contest the motion. 4 Instead, Harris obtained the defendants' consent to file an Agreed Motion for Voluntary Dismissal. The United States agreed to a voluntary dismissal of the case. Harris also informed the United States of his intention to refile the action following the dismissal; the federal government, however, did not consent to Harris's intention to refile. 5
The district court granted Harris's motion for voluntary dismissal on December 5, 1985. The motion stated: "Plaintiff requests that this Court grant his Motion to take a voluntary dismissal without prejudice, and that leave be granted to refile this action." The next day, December 6, 1985, Harris filed the present action, 213 days after receiving the Secretary's final decision.
The defendants moved to dismiss the complaint because it was not filed within thirty days of receipt of the Secretary of Labor's final decision, 6 depriving the court of subject matter jurisdiction. The district court granted the defendants' motion to dismiss, 642 F.Supp. 1134.
In Wolfolk v. Rivera, 729 F.2d 1114 (7th Cir.1984), this court set forth the appropriate standard for reviewing a district court's grant of a motion to dismiss.
In reviewing the grant of a motion to dismiss, the well-pleaded factual allegations of the complaint are taken as true, Reichenberger v. Pritchard, 660 F.2d 280, 282 (7th Cir.1981), and this court must consider the facts in the light most favorable to the nonmoving party, i.e., the plaintiff in this case, Henry C. Beck Co. v. Fort Wayne Structural Steel, 701 F.2d 1221, 1223 (7th Cir.1983). We must resolve every reasonable doubt in favor of the nonmoving party. Id., at 1223-24. The grant of a motion to dismiss will be affirmed only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
Even in considering the facts in the light most favorable to Harris, it is undisputed that Harris filed his complaint well after the thirty-day limitation had expired. Harris argues, however, that we should apply the principle of equitable tolling to prevent the time bar of his complaint.
In Sims v. Heckler, 725 F.2d 1143 (7th Cir.1984), this court held that the time limits for filing employment discrimination claims against the federal government are jurisdictional. Harris insists that the present case is factually distinguishable from Sims. In Sims, the plaintiff failed to file his initial complaint with an EEOC counselor within the jurisdictional time limit. Here, Harris's initial complaint was timely. Harris, however, did not meet the time limit for filing his action in federal district court, following final action by the EEOC. Nevertheless, this court has held that the thirty-day period for filing an action in district court against federal employers is also jurisdictional. Gaballah v. Johnson, 629 F.2d 1191, 1198 (7th Cir.1980). 7 Thus, Sims and Gaballah clearly govern the factual situation presented here.
Harris next argues that if this court cannot distinguish Sims, we should overrule the Sims decision. We decline to do so.
The Sims court recognized that because the United States is generally immune from suit, the terms under which it consents to be sued define a court's jurisdiction to entertain the suit. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981); Sims, 725 F.2d at 1145. Courts must strictly construe any conditions attached to the government's waiver of sovereign immunity. Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 840 (1983); Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.1987); Sims, 725 F.2d at 1145. The filing periods that apply specifically to Title VII suits brought against federal employers are such conditions. Therefore, these time limits define a district court's subject matter jurisdiction in cases under 42 U.S.C. Sec. 2000e-16. Sims, 725 F.2d at 1145-46.
The United States Supreme Court, in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), held that filing a timely complaint of discrimination with the EEOC was not a jurisdictional prerequisite to suit in federal court. Zipes, however, involved a suit against a private employer. Therefore, the Court in Zipes did not address the issue of sovereign immunity.
Following Zipes, several courts have held that the Supreme Court's decision applies equally to actions brought against federal employers. See Henderson v. United States Veterans Administration, 790 F.2d 436 (5th Cir.1986); Hornsby v. United States Postal Service, 787 F.2d 87 (3d Cir.1986); Zografov v. V.A. Medical Center, 779 F.2d 967 (4th Cir.1985); Martinez v. Orr, 738 F.2d 1107 (10th Cir.1984); Ross v. United States Postal Service, 696 F.2d 720 (9th Cir.1983); Milam v. United States Postal Service, 674 F.2d 860 (11th Cir.1982); Saltz v. Lehman, 672 F.2d 207 (D.C.Cir.1982). See also Royall v. United States Postal Service, 624 F.Supp. 211 (E.D.N.Y.1985); Andrews v. Orr, 614 F.Supp. 689 (S.D.Ohio 1985); Neves v. Kolaski, 602 F.Supp. 645 (D.R.I.1985). Although these decisions flatly reject the Sims holding, they fail to consider the impact of the doctrine of sovereign immunity when the federal government is the defendant. 8 Therefore, we will not depart from our earlier decision in Sims. The filing deadlines under 42 U.S.C. Sec. 2000e-16(c) are jurisdictional and consequently are not subject to waiver, estoppel or equitable tolling.
Further, even if we were to overrule Sims, this would not be a proper case in which to apply equitable tolling. As this court explained in Jones v. Madison Service Corp.:
[E]quitable tolling is to be restricted and reserved only for situations in which the claimant has made a good faith error (e.g., brought suit in the wrong court) or has been prevented in some extraordinary way from filing his complaint in time. Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir.1978). See also Wolfolk v. Rivera, 729 F.2d 1114 (7th Cir.1984).
Jones, 744 F.2d 1309, 1314 (7th Cir.1984). Harris has not alleged a good faith error which necessitated filing his complaint late. In fact, Harris did file within the thirty-day period originally, but failed to properly serve his opponents. Harris has not presented any explanation of his failure to meet the service of process requirements, or any other good faith error that may have caused his delayed filing. Even viewing the facts in the light most favorable to Harris, there would be no basis on which to grant Harris an extension of the filing deadline. Thus, Harris would be ineligible for equitable tolling even if this case involved a private defendant. 9
This court's decision in Sims v. Heckler directly controls this case. Because Harris did not meet the jurisdictional time limitations for filing actions under 42 U.S.C. Sec. 2000e-16, we...
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