Johnson v. Burnley

Decision Date02 January 1990
Docket NumberNo. 88-3645,88-3645
Parties54 Fair Empl.Prac.Cas. 944, 51 Empl. Prac. Dec. P 39,377, 58 USLW 2217, 14 Fed.R.Serv.3d 880 Margaret F. JOHNSON, Plaintiff-Appellant, v. James BURNLEY, Secretary of the Department of Transportation, Defendant-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Van Hewes Johnson, Elizabeth City, N.C., for plaintiff-appellant.

Rudolf A. Renfer, Asst. U.S. Atty., Raleigh, N.C. (Margaret Person Currin, U.S. Atty., Stephen A. West, Asst. U.S. Atty., on brief), for defendant-appellee.

Before MURNAGHAN and SPROUSE, Circuit Judges, and GORDON, Senior District Judge for the Middle District of North Carolina, sitting by designation.

MURNAGHAN, Circuit Judge:

Margaret F. Johnson appeals the district court's entry of summary judgment on her sex discrimination claim challenging her dismissal from a government secretarial job. She also seeks to have her dismissal invalidated under federal civil service law because of alleged procedural error in the disciplinary process that culminated in her firing.


Johnson was dismissed in 1986 from a secretarial job at the United States Coast Guard's Aircraft Repair and Supply Center in Elizabeth City, North Carolina. The government contends it fired her for excessive tardiness and unexcused absences which continued despite repeated warnings and reprimands from her superiors. Johnson argues that the tardiness issue is but a pretext for gender discrimination in her dismissal.

Johnson appealed her firing to the Merit Systems Protection Board, which upheld the dismissal. She then sought review in federal district court pursuant to 5 U.S.C. Sec. 7703(b)(2), asserting a sex discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and challenging her dismissal under the Civil Service Reform Act of 1978, which authorizes judicial invalidation of personnel actions taken in violation of laws or government regulations. 5 U.S.C. Sec. 7703(c)(2). 1

Although the district court expressed doubt about its jurisdiction, 2 it nonetheless granted summary judgment in favor of the government on grounds that Johnson had failed to bring forth evidence to support a prima facie showing of sex discrimination. Alternatively, the court held that even if Johnson had made a prima facie showing, the government had articulated a legitimate, nondiscriminatory reason for Johnson's firing, and that Johnson's evidence, as a matter of law, would be insufficient to prove the government's proffered explanation was mere pretext. The court failed to explain its reasons for rejecting Johnson's efforts to have her dismissal invalidated on grounds of alleged procedural errors in the disciplinary process.


We turn first, as we must, to the question of the district court's subject matter jurisdiction to decide Johnson's case. A federal appellate court lacks discretion to review the merits until it satisfies itself that the court below had subject matter jurisdiction over the case. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986); Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884). Aside from abstract concepts of judicial power and federalism that underlie our obligation to decide the jurisdictional question, there are practical reasons that a federal court should refrain from making any pronouncement on the merits until it resolves doubts about subject matter jurisdiction. Dismissal of a case for lack of subject matter jurisdiction carries with it no claim preclusive effects. Shoup v. Bell & Howell Co., 872 F.2d 1178, 1180 (4th Cir.1989). By contrast, disposal of a case on the merits (including a grant of summary judgment) or for failure to comply with the statute of limitations, unless the court so ruling does so on a without-prejudice basis, does operate as res judicata barring subsequent litigation of the same claim in federal court. Id. at 1180-81.

The threshold question here is whether the 30-day time limit of 5 U.S.C. Sec. 7703(b)(2) for seeking review of a decision of the Merit Systems Protection Board ("Board") in a discrimination case is a subject matter jurisdictional requirement or, instead, is equivalent to a statute of limitations subject to equitable tolling, estoppel or waiver. Section 7703(b)(2) provides that parties may obtain judicial review of Board decisions in discrimination cases by filing

under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as applicable. Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action ....

(Emphasis added).

Johnson failed to comply with Section 7703(b)(2)'s 30-day deadline. Because Johnson's case involved allegations of gender discrimination, she was required to file suit under Title VII of the Civil Rights Act of 1964, which specifies that "the head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. Sec. 2000e-16(c). Naming a government department as the defendant will not satisfy Title VII's filing requirements. See Warren v. Dep't of Army, 867 F.2d 1156, 1158 (8th Cir.1989); Cooper v. United States Postal Service, 740 F.2d 714, 715-16 (9th Cir.1984), cert. denied, 471 U.S. 1022, 105 S.Ct. 2034, 85 L.Ed.2d 316 (1985). Johnson initially failed to comply with Title VII because her original complaint omitted the Secretary of Transportation as a defendant, but instead named the Department of Transportation, the Coast Guard and the Aircraft Repair and Supply Center where she had worked. She later corrected the mistake by amending her complaint to name the Secretary, but failed to do so until after the expiration of Section 7703(b)(2)'s 30-day deadline for filing suit in the district court.

Johnson's amendment will be deemed to relate back to the time of the original filing only if the Secretary of Transportation had received notice of the suit prior to expiration of the 30-day deadline. See Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986); Fed.R.Civ.P. 15(c). The record reveals no evidence that the Secretary of Transportation received notice of Johnson's suit during the 30-day period. The mere naming of the Transportation Department as defendant, without more, is insufficient as a matter of law to put the Transportation Secretary on notice of the suit. See Gardner v. Gartman, 880 F.2d 797, 799 (4th Cir.1989); Cooper, 740 F.2d at 717. There is no evidence that Johnson served the complaint on the Secretary or anyone designated to receive service on the Secretary's behalf before expiration of the 30-day deadline. Johnson therefore cannot invoke Fed.R.Civ.P. 15(c) to relate her joinder of the Secretary back to the time of the filing of her original complaint in the district court.

The government argues that Johnson's failure to comply with the filing deadline of Section 7703(b)(2) deprives the federal courts of subject matter jurisdiction over her claims. Although all other federal circuits that have decided the issue have construed the 30-day deadline as a jurisdictional requirement, we believe the time period specified in Section 7703(b)(2) is, in cases involving gender or race discrimination claims, equivalent to a statute of limitations subject to equitable tolling, waiver or estoppel in appropriate circumstances. 3 The district court therefore had jurisdiction to proceed to the merits of Johnson's claims.

Of the five circuits that have addressed the question, three have concluded that Section 7703(b)(2)'s time limit is jurisdictional. Hilliard v. United States Postal Service, 814 F.2d 325, 327 (6th Cir.1987); Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir.1986) (per curiam ); 4 King v. Dole, 782 F.2d 274, 275-77 (D.C.Cir.) (per curiam ), cert. denied, 479 U.S. 856, 107 S.Ct. 194, 93 L.Ed.2d 126 (1986). See also Taylor v. Tisch, 686 F.Supp. 304, 307-08 (S.D.Fla.1988) (jurisdictional). Two other circuits have left open the question. James v. United States Postal Service, 835 F.2d 1265, 1267 (8th Cir.1988); Lee v. United States Postal Service, 774 F.2d 1067, 1068- 69 & n. 2 (11th Cir.1985) (per curiam ). See also Edinboro v. Dep't of Health & Human Services, 704 F.Supp. 364, 366 (S.D.N.Y.1988) (declining to decide the jurisdictional question). No circuit, to our knowledge, has construed Section 7703(b)(2)'s 30-day deadline as non-jurisdictional. 5

We part company with those circuits that have construed Section 7703(b)(2)'s deadline as jurisdictional because their interpretation is, we believe, contrary to congressional intent. Neither the plain language nor the legislative history of Section 7703(b)(2) evinces any intent to impose the 30-day deadline as a jurisdictional barrier to suit in federal court. Instead, Section 7703(b)(2), by explicitly incorporating Title VII procedures for cases involving alleged racial or gender discrimination, demonstrates Congress' intent that the 30-day deadline be interpreted as non-jurisdictional, as are various limitations periods in Title VII.

We turn first to the plain language of Section 7703(b)(2). Admittedly, the statute uses mandatory language to prescribe the time limit: "Notwithstanding any other provision of law ... any such case ... must be filed within 30 days...." 5 U.S.C. Sec. 7703(b)(2) (emphasis added). The District of Columbia Circuit has read the mandatory language as a "clear and emphatic" indication of congressional intent to establish the 30-day...

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