Miles v. Department of Army, 87-15013
| Decision Date | 15 December 1988 |
| Docket Number | No. 87-15013,87-15013 |
| Citation | 881 F.2d 777 |
| Parties | 50 Fair Empl.Prac.Cas. 1006, 51 Empl. Prac. Dec. P 39,253, 14 Fed.R.Serv.3d 521 Gordon Lynn MILES, Plaintiff-Appellant, v. DEPARTMENT OF THE ARMY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gordon L. Miles, San Francisco, Cal., pro. per.
Stephen L. Schirle, Asst. U.S. Atty., San Francisco, Cal., for defendant-appellee.
Appeal from the United States District Court for the Northern District of California.
Before FERGUSON, BRUNETTI and LEAVY, Circuit Judges.
Appellant Gordon Miles appeals from the district court's dismissal of his Title VII employment discrimination action. Miles' complaint alleges that his nonselection for promotion on six different occasions within the Department of the Army was the result of race discrimination. In filing his complaint, Miles requested appointed counsel pursuant to 42 U.S.C. Sec. 2000e-5(f)(1)(B). Without ruling on Miles' motion for appointment of counsel, the district court granted the Government's motion to dismiss, finding that Miles had failed to exhaust his administrative remedies in a timely fashion on a majority of his claims and that he had failed to commence his action against the proper party within the relevant statutory period. We affirm in part and reverse in part.
In September 1983, while an employee of the Army, Miles applied for a promotion to GS-7 Military Personnel Relations Technician. Following the denial of his promotion request, Miles initiated an administrative claim with the Equal Employment Opportunity Commission ("EEOC"), alleging that this nonselection [hereinafter "1983 claim"], as well as four earlier incidents of nonselection [hereinafter "pre-1983 claims"], were the result of race discrimination. The Equal Employment Opportunity ("EEO") counselor declined to accept the pre-1983 claims for investigation on the ground of untimeliness. The 1983 claim was accepted by the EEO counselor. The EEOC investigation and review of the 1983 claim culminated in a final EEOC decision finding no discrimination.
Miles then brought this Title VII action in a timely manner in federal court, alleging six counts of race discrimination, based on the pre-1983 and 1983 claims as well as a sixth claim arising out of a recent 1987 nonselection for promotion [hereinafter "1987 claim"]. Miles named the Department of the Army as the defendant in the action and served process on the Staff Judge Advocate's Office in the Presidio within the 30-day statutory period for filing suit. The Staff Judge Advocate's Office then mailed the copy of the summons and complaint to the U.S. Attorney's Office, which received these documents on or before July 6, also within the period for commencing a Title VII action.
Upon filing his Title VII complaint, Miles also made a motion for appointment of counsel, pursuant to 42 U.S.C. Sec. 2000e-5(f)(1)(B). The district court clerk informed him that a ruling on his request for counsel would be deferred until the initial status conference scheduled for September 18, 1987. Miles subsequently received notice that the initial status conference had been continued to November 6.
In October 1987, the Government filed a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). In its motion, the Government asserted that Miles had failed to exhaust administrative remedies in a timely fashion with respect to the pre-1983 and 1987 claims of discrimination and argued that the district court lacked jurisdiction over the 1983 claim since Miles had failed to commence suit against the proper party within the applicable limitations period. Moreover, it contended that Miles' action should be dismissed with prejudice since an amended complaint naming the proper party would not relate back to the original filing date and thus would be barred by the statute of limitations.
On November 6, without holding a status conference or considering Miles' request for counsel, the district court granted the Government's motion to dismiss Miles' action with prejudice.
We review the dismissal of an action for lack of subject matter jurisdiction de novo. Peter Starr Production Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir.1986). A district court's action or inaction regarding appointment of counsel is reviewed for abuse of discretion. Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir.1984); United States v. McQuade, 647 F.2d 938, 940 (9th Cir.1981), cert. denied, 455 U.S. 958, 102 S.Ct. 1470, 71 L.Ed.2d 677 (1982).
As an initial matter, the district court did not err in dismissing Miles' pre-1983 and 1987 claims of discrimination. Federal regulations require that a federal employee bring his grievance to the attention of an EEO counselor within 30 calendar days of the effective date of the personnel action. See 29 C.F.R. 71613.214(a)(1). The thirty-day time limit is treated as a statute of limitations for filing suit and is subject to waiver, equitable tolling, and estoppel. Boyd v. U.S. Postal Service, 752 F.2d 410, 414 (9th Cir.1985).
The record clearly demonstrates that Miles did not seek counseling within 30 days on the pre-1983 and 1987 claims of discrimination in his Title VII action. Furthermore, Miles has offered no facts which would support the application of the doctrines of waiver, estoppel, or equitable tolling of the 30-day statute of limitations with respect to any of these pre-1983 and 1987 claims. Thus, the district court properly dismissed these claims. 1
Miles did properly exhaust his administrative remedies on the 1983 claim of discrimination. The district court, however, dismissed this claim as well, on the grounds that Miles had failed to commence his action against the proper defendant prior to the running of the statute of limitations, and that any amendment substituting the proper defendant would not relate back to the original complaint.
Miles does not dispute that he named the wrong defendant in his complaint. Instead of suing the Department of the Army, he should have filed his complaint against the head of the Department of the Army, the Secretary of the Army. See 42 U.S.C. Sec. 2000e-16(c) () (emphasis added). This circuit has held that failure to name the head of the department or agency in a Title VII action brought by a federal employee supports dismissal of the action. See Cooper v. U.S. Postal Service, 740 F.2d 714 (9th Cir.1984), cert. denied, 471 U.S. 1022, 105 S.Ct.2034, 85 L.Ed.2d 316 (1985).
Miles argues, however, that the district court should have afforded him an opportunity to amend his complaint by substituting the Secretary of the Army as defendant before dismissing the action. Miles' contention has merit if (1) Miles still had a right to amend the complaint when the district court dismissed his case, and (2) contrary to the district court's conclusion, such an amendment would relate back to the original filing date of the complaint. This latter requirement must be satisfied since the applicable limitations period for federal employees to bring a Title VII action against the Government had expired by the time the district court dismissed the action. See Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir.1986) (). 2
Under Fed.R.Civ.P. 15(a), a plaintiff may amend his complaint once, as of right, at any time prior to the filing of a responsive pleading. At the time the district court dismissed Miles' action, the Government had only filed a motion to dismiss (for lack of subject matter jurisdiction) pursuant to Fed.R.Civ.P. 12(b)(1); a motion to dismiss the complaint is not a responsive pleading. Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir.1984); Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir.1984). Thus, Miles still had a right to amend his complaint when the district court granted the Government's motion to dismiss.
To determine whether the proposed amended complaint substituting the Secretary of the Army as defendant should relate back to the original filing date of the complaint, we must look to Fed.R.Civ.P. 15(c), which governs the relation back of amendments to pleadings. 3
In order for an amended complaint changing the party against whom a claim is brought to relate back to the original complaint, the claim or defense in the amended complaint must arise out of same "conduct, transaction, or occurrence set forth" in the original pleading and the new party must have sufficient notice of the institution of the action. See Fed.R.Civ.P. 15(c). Rule 15(c) sets forth a general standard for determining whether sufficient notice has been received by the proposed new defendant, [hereinafter "general notice provision"] and a special government notice rule [hereinafter "government notice provision"] that applies only to amendments which seek to bring the United States, its agencies, or its officers into the action as defendants.
The general notice provision is satisfied if, within the statutory period for commencing the action, the party to be brought in by amendment:
(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 government notice provision of Rule 15(c) provides that "[t]he delivery or mailing of process to the United States Attorney ... or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named," satisfies the first and second clauses of the general notice...
To continue reading
Request your trial
-
Lauter v. Anoufrieva
...and the allegation is not denied. Fed.R.Civ.P. 8(b)(6). A motion to dismiss is not a responsive pleading. Miles v. Department of Army, 881 F.2d 777, 781 (9th Cir.1989). Pursuant to Rule 12(a)(4)(A) of the Federal Rules of Civil Procedure, when a motion to dismiss has been filed, a defendant......
-
In re Integrated Resources Real Estate Sec. Lit.
...counsel at the time the original complaint was filed. See Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cir.1980); Miles v. Department of Army, 881 F.2d 777 (9th Cir. 1989). Even if they had, this by itself would not be enough in the Second Circuit. In Allbrand, where both defendants shared co......
-
Rhoades v. Avon Products, Inc.
...We have held that "a motion to dismiss the complaint is not a responsive pleading" within the meaning of Rule 15(a). Miles v. Dep't of Army, 881 F.2d 777, 781 (9th Cir.1989). Therefore, DermaNew's FAC was procedurally appropriate. 6. The powers of the TTAB are limited to "determin[ing] and ......
-
Tahoe-Sierra Preserv. v. Tahoe Reg'l Planning
...motions to dismiss. A motion to dismiss is not a pleading. See Fed. R. Civ. P. 7(a) (designating "pleadings"); Miles v. Department of Army, 881 F.2d 777, 781 (9th Cir. 1989) ("[A] motion to dismiss the complaint is not a responsive pleading."). Thus, it was not until the remand following TS......