Mondy v. Secretary of Army

• Decision Date: 26 April 1988
• Docket Number: No. 86-5644,86-5644
• Citation: 269 U.S.App.D.C. 306,845 F.2d 1051
• Parties: 46 Fair Empl.Prac.Cas. 1068, 46 Empl. Prac. Dec. P 37,952, 269 U.S.App.D.C. 306, 56 USLW 2638, 10 Fed.R.Serv.3d 1323 William L. MONDY, Appellant, v. SECRETARY OF THE ARMY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1051

845 F.2d 1051

46 Fair Empl.Prac.Cas. 1068,

46 Empl. Prac. Dec. P 37,952, 269 U.S.App.D.C. 306,

56 USLW 2638, 10 Fed.R.Serv.3d 1323

William L. MONDY, Appellant, v. SECRETARY OF THE ARMY, Appellee.

No. 86-5644.

United States Court of Appeals,

District of Columbia Circuit.

Argued Oct. 27, 1987.

Decided April 26, 1988.

Appeals from the United States District Court for the District of Columbia (Civil Action No. 85-3439).

Eugene R. Fidell, with whom, Mary S. Pence, Washington, D.C., was on the brief, for appellant.

Jeffrey Hunter Moon, Asst. U.S. Atty., with whom, Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee. Robert E.L. Eaton, Jr., Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before BUCKLEY and WILLIAMS, Circuit Judges, and MacKINNON, Senior Judge.

Opinion for the Court filed by Circuit Judge WILLIAMS.

Concurring Opinion filed by Senior Judge MacKINNON.

WILLIAMS, Circuit Judge:

Appellant William Mondy brought suit in forma pauperis alleging that his dismissal from his post at Walter Reed Army Medical Center was racially discriminatory in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982) (the "Act"). As the parties present the case, there were two procedural defects in the bringing of the suit: (1) Mondy's complaint named the wrong defendant--his activity commander, Colonel Thomas Sweeney, rather than the Secretary of the Army; ¹ (2) the United States marshals, who pursuant to 28 U.S.C. Sec. 1915 (1982) issue and serve process for in forma pauperis plaintiffs, delayed service for nearly four months, long past Sec. 2000e-16(c)'s 30-day deadline. (The time runs from the date of plaintiff's receipt of notice of final action on his claim. Here the letter was delivered to Mondy's address on September 23, 1985, which is deemed the date of receipt; this made October 24, 1985 the deadline. Mondy filed his papers with the court about 9:30 A.M. on October 18, 1985, and the marshals did not serve the United States Attorney until February 14, 1986.) ²

Because of the provisions of the Federal Rules of Civil Procedure on amendment of complaints and on service of the government and its agents and officers, an error in naming the proper defendant would not be enough, standing alone, to defeat Mondy's claim. Rule 15(c) ³ allows a pleading amendment, correcting the identity of the party charged, to "relate back" to the date of the initial pleading if the correct party received adequate notice as defined by the rule. (Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), makes clear that this notice must have been received within the original time limit.) The rule specifies that when suit is brought against an agent or officer of the United States, service on the United States Attorney, his or her designee, or the Attorney General, satisfies these notice requirements. Rule 4(d)(5), in turn, explains that one serves an agent or officer of the United States by "serving the United States"; Rule 4(d)(4) makes clear that one does so by serving the United States Attorney (or his or her designee) and the Attorney General. ⁴

While Mondy may have mistakenly believed that Colonel Sweeney was the proper Title VII defendant, he used his military title in the complaint and thus clearly recognized him as an officer or agent of the United States. Had he been effecting service himself, that recognition would have led him to Rule 4(d)(5) and thence to Rule 4(d)(4). Service thereunder would have more than satisfied Rule 15(c)'s prerequisites for relation back. His mistaken choice of defendant would thus have been curable.

Mondy was, however, proceeding in forma pauperis. As such, he lawfully relied upon the marshal's office to effect service. His original complaint made clear his intent to sue a federal officer. It named Colonel Sweeney as defendant and specified his address as "United States Army, Institute of Dental Research, Walter Reed Army Medical Center." The marshal's office so understood the complaint; it delivered a copy to the U.S. Attorney on February 14. If it had completed this service by the October 24 deadline, Mondy would have been able to amend his complaint pursuant to Rule 15(c). Had it not been coupled with the marshal's delay, Mondy's error would have been readily and fully correctable.

On May 14, 1987, plaintiff, by then represented by counsel, took the appropriate step to mend the original error--he filed an amended complaint naming the Secretary of the Army as defendant. (The marshal delivered a copy to the United States Attorney's office the next day.) The Army moved to dismiss for want of subject matter jurisdiction, on the ground that plaintiff's failure to meet the 30-day limit of 42 U.S.C. Sec. 2000e-16(c) defeated the court's jurisdiction.

The district court found that as the amended complaint had not been served on any proper party defendant within 42 U.S.C. Sec. 2000e-16(c)'s 30-day period, the plaintiff had failed to meet the requirements of Rule 15(c), as clarified in Schiavone v. Fortune. And because the court believed that the time limit was jurisdictional (i.e., not subject to equitable tolling for any reason) under this court's opinion in Hofer v. Campbell, 581 F.2d 975 (D.C. Cir.1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979), it granted the motion to dismiss. Because we believe that Sec. 2000e-16(c) is subject to equitable tolling, and that this case calls for application of the doctrine, we reverse and remand.

I. AVAILABILITY OF EQUITABLE ESTOPPEL

The Supreme Court has not yet considered whether Sec. 2000e-16(c)'s 30-day limit is a jurisdictional requirement or is, instead, a statute of limitations subject to equitable estoppel. The question is one of first impression in this court. ⁵ However, in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court held that the analogous 90-day (now 180-day) time limit for filing a Title VII claim against a private employer with the Equal Employment Opportunity Commission ("EEOC") was not jurisdictional and was, "like a statute of limitations, ... subject to waiver, estoppel, and equitable tolling." Id. at 393, 102 S.Ct. at 1132. The Court based its decision upon (1) Congress's having expressed the time limit in a provision (42 U.S.C. Sec. 2000e-5(e)) entirely separate from the one that defines the jurisdiction of the courts (Sec. 2000e-5(f)), 455 U.S. at 394-95, 102 S.Ct. at 1133; (2) legislative history, id. at 394-95, 102 S.Ct. at 1133; (3) prior cases reflecting an assumption that the filing requirement was not jurisdictional, id. at 397-98, 102 S.Ct. at 1134-35; and (4) Title VII's remedial purpose, id. at 398, 102 S.Ct. at 1135.

The circuit courts have extended Zipes to Sec. 2000e-5(f)(1)'s 90-day limit for filing Title VII claims in district court against private employers. See e.g., Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir.1983); Rice v. New England College, 676 F.2d 9, 10 (1st Cir.1982); Gordon v. National Youth Work Alliance, 675 F.2d 356, (D.C. Cir.1982). Indeed, the Supreme Court in Zipes had rested its treatment of Sec. 2000e-5(e) in part on its having previously treated Sec. 2000e-5(f)(1)'s time limit as non-jurisdictional in Mohasco Corp. v. Silver, 447 U.S. 807, 811 n. 9, 100 S.Ct. 2486, 2490 n. 9, 65 L.Ed.2d 532 (1980). Zipes, 455 U.S. at 398, 102 S.Ct. at 1135.

Although closely analogous, the question before us today differs from those resolved in Zipes and Gordon. The time limit in question governs the filing of Title VII claims against the government. Extension of equitable tolling to such claims is not automatic by any means, for the government enjoys sovereign immunity, and waivers of such immunity are narrowly read. United States v. Mottaz, 476 U.S. 834, 106 S.Ct. 2224, 2229, 90 L.Ed.2d 841 (1986); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957).

In a slightly different context, however, we extended Zipes to claims against the government. In Saltz v. Lehman, 672 F.2d 207 (D.C. Cir.1982), we found that the EEOC 's 30-day time limit (29 C.F.R. Sec. 1613.214(a)(1) (1987)) for bringing Title VII complaints to the attention of the agency Equal Employment Opportunity Counselor ("EEO Counselor") was subject to equitable tolling. ⁶ After recognizing and resolving the concern that the time limit was jurisdictional, the court rejected equitable tolling on the specific facts of the case. Since dismissal without any reference to those facts would have been appropriate if the untimeliness were jurisdictional, and a court is responsible to determine its own jurisdiction regardless of the parties' views, Saltz represents a holding on the jurisdictional point even though the defendant conceded that the rule was subject to equitable tolling. Id. at 208-09. See also Jarrell v. United States Postal Service, 753 F.2d 1088, 1091 (D.C. Cir.1985) (reading Saltz to hold that the EEOC's 30-day rule was subject to equitable tolling, and remanding for application of the doctrine); cf. Kizas v. Webster, 707 F.2d 524, 545 (D.C. Cir.1983) (similar reading of Saltz in dictum).

Although the language in Saltz is broad enough to encompass all time limits for all Title VII suits where the government is the employer, e.g., Saltz, 672 F.2d at 209 ("Title VII's time requirements are subject to equitable modification"), the case does not explicitly address the time limit here in question--the one established by 42 U.S.C. Sec. 2000e-16(c). The present case might be distinguished from Saltz on the basis of differences in either (1) the language and structure of the controlling provisions (42 U.S.C. Sec. 2000e-16(c) and 29 C.F.R. Sec. 1613.214(a)(1)), or (2) the status of the provisions (here a statute, in Saltz a mere agency...