Nilsen v. City of Moss Point, Miss.

• Decision Date: 26 April 1982
• Docket Number: No. 81-4055,81-4055
• Citation: 674 F.2d 379
• Parties: 28 Fair Empl.Prac.Cas. 1325, 28 Empl. Prac. Dec. P 32,685, 30 Empl. Prac. Dec. P 33,106 Agnes E. NILSEN, Plaintiff-Appellant, v. The CITY OF MOSS POINT, MISSISSIPPI, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 379

674 F.2d 379

28 Fair Empl.Prac.Cas. 1325,

28 Empl. Prac. Dec. P 32,685,

30 Empl. Prac. Dec. P 33,106

Agnes E. NILSEN, Plaintiff-Appellant, v. The CITY OF MOSS POINT, MISSISSIPPI, Defendant-Appellee.

No. 81-4055.

United States Court of Appeals, Fifth Circuit.

April 26, 1982.

Phillip J. Brookins, Jackson, Miss., for plaintiff-appellant.

Dalton McBee, Jr., M. Curtiss McKee, Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, SAM D. JOHNSON and WILLIAMS, Circuit Judges.

WISDOM, Circuit Judge:

In this her fourth trip to federal court and her second appearance before this court, the plaintiff-appellant, Agnes Nilsen, seeks once more an opportunity to demonstrate the merit of her charge that the defendant-appellee, the City of Moss Point, Mississippi, discriminated against her unlawfully. Her first three suits, filed under Title VII, 42 U.S.C. § 2000e, were dismissed for various deficiencies, before Nilsen presented any evidence of discrimination. Now, Nilsen brings a fourth suit, attempting to establish liability under the fourteenth amendment and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Although the litigation raises complex and troubling issues concerning the preclusive effect of prior actions, we are persuaded that, in the special circumstances of this case, the plaintiff must at last have her day in court, where she will be put to her proof on both the timeliness and the merit of her allegations.

I.

Nilsen applied for a position as a firefighter with the Fire Department of the City of Moss Point in July 1974. When her application was rejected, she filed a charge of sex discrimination against the city with the Equal Employment Opportunity Commission in August 1974. Conciliation efforts failed, and Nilsen received a right-to-sue letter on June 5, 1975. In July 1975, she filed suit (Nilsen I ) in the United States District Court for the Southern District of Mississippi against the Chief of the Moss Point Fire Department and the Chairman of the Moss Point Civil Service Commission. That suit was dismissed because the defendants were not employers and were not named in the EEOC charge. The trial court specified that the dismissal "was without prejudice to the plaintiff to sue the proper party". ¹

On January 13, 1976, Nilsen filed a suit (Nilsen II ) against the city, certain individuals, and certain departments of city government. That complaint alleged substantially the same facts as did the complaint in Nilsen I. On July 21, 1976, Nilsen filed her third suit (Nilsen III ) against the city, the Fire Department, the Civil Service Commission, and the Mayor. It arose from a second EEOC charge that Nilsen filed on November 15, 1975, alleging continuing discrimination. On that charge, Nilsen received a right-to-sue letter on March 23, 1976. Nilsen II and Nilsen III were consolidated for consideration of the defendants' motion for summary judgment. That motion was based on the theory that Nilsen brought Nilsen II more than ninety days after the issuance of her right-to-sue letter and brought the EEOC charges leading to Nilsen III more than 180 days after she became aware of the facts supporting her charge. Title VII requires the timely invocation of EEOC conciliation procedures and of the judicial process: a Title VII plaintiff must file charges with the EEOC within 180 days of learning of his claim, 42 U.S.C. § 2000e-5(e), and, if conciliation efforts fail, and the EEOC, instead of bringing suit, issues a right-to-sue letter, the plaintiff must file suit within ninety days of receipt of that letter, id., § 2000e-5(f)(1). After settlement efforts by the parties here failed, the court scheduled a hearing on the motion for summary judgment on June 9, 1977. On June 15, 1977, before decision on the motion for summary judgment, Nilsen moved to amend her complaint to include a claim for relief under 42 U.S.C. § 1983, based on the same alleged discrimination. Not until November 28, 1978, did the magistrate file his recommendations in the consolidated cases, and on February 12, 1979, the court adopted those recommendations. The district court denied Nilsen's motion to amend and granted the defendants' motion for summary judgment on the original complaint, reasoning that the plaintiff had failed to meet the timely filing requirements of Title VII. ² Nilsen took an appeal, and a panel of this court affirmed both the denial of leave to amend and the grant of summary judgment. Nilsen v. City of Moss Point, 5 Cir. 1980, 621 F.2d 117.

Nilsen, undaunted, filed yet another suit (Nilsen IV ) on August 29, 1980, against Moss Point, seeking to assert the constitutional claims that were the subject of her proposed amendments in Nilsen II/III. The city moved for summary judgment, and the district court granted the motion on two grounds. First, the court held that the judgment in Nilsen II/III barred Nilsen IV under the doctrine of res judicata. Second, as an alternative ground, the court held that the denial of leave to amend in Nilsen II/III entailed determinations of delay and prejudice tantamount to a finding of laches. Since Nilsen was collaterally estopped to relitigate those questions, the court reasoned, her § 1983 claim was, as a matter of law, barred by laches.

On this appeal, Nilsen urges that Nilsen IV is not res judicata for two reasons. First, she contends, the summary judgment in Nilsen II/III was premised on the failure to meet "jurisdictional" timely filing requirements, and a judgment that a court lacks subject matter jurisdiction is not res judicata as to the merits of the claim. Second, Nilsen argues, Title VII and § 1983 are not the "same cause of action", so a judgment in a Title VII suit, even if on the merits, would not bar a subsequent § 1983 suit on the same facts.

Next, Nilsen attacks the alternative ground for the result in the district court. Again, she presents several arguments, any one of which, if meritorious, would undermine this ground for the district court's holding. First, she asserts that her complaint requests both legal and equitable relief, so, instead of laches, the statute of limitations governs-here, the Mississippi catch-all limitations provision, granting a six-year period. Second, even if laches does govern, she contends that the Nilsen II/III court did not find prejudice, a necessary condition for laches. Finally, she argues that the degree of delay and prejudice that justifies a denial of leave to amend under rule 15(a), Fed.R.Civ.P., does not equal the degree necessary to support a finding of laches.

Even more complex than the procedural history of this litigation are the issues now presented to us for decision. Fortunately, our disposition of the case permits us to pretermit some of the vexing problems raised. The resolution of the remainder, however, is inescapable, and our resolution requires us to reverse the judgment of the district court.

II.

Res judicata will bar an action if there has been a prior judgment on the merits on the same cause of action in a suit between the same parties. See generally Kemp v. Birmingham News, 5 Cir. 1979, 606 F.2d 1049, 1052. The trial judge here concluded that the judgment in Nilsen II/III was "based upon a statute of limitations" and therefore was a decision on the merits. Further, he concluded that Nilsen's Title VII claim and her § 1983 claim, which concededly arise out of a single occurrence, are the same cause of action.

A dismissal for lack of subject matter jurisdiction is not a bar to a later action brought in a court of competent jurisdiction on the same claim. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1350 (1969). At the same time, a dismissal based upon the statute of limitations will bar claims that, although themselves still timely, are part of the same cause of action as the previously asserted time-barred claim. See Mervin v. FTC, D.C.Cir.1978, 591 F.2d 821 (per curiam); Cemer v. Marathon Oil Co., 6 Cir. 1978, 583 F.2d 830 (per curiam). The question confronting the trial judge, then, was which of these rules governs the dismissal of a Title VII claim for failure to meet the timely filing requirements. The plaintiff argues that these requirements are jurisdictional in the res judicata sense and that, even if under current law they are not jurisdictional, the courts in Nilsen II/III characterized their decision as a dismissal for lack of jurisdiction, and that characterization is the law of the case.

The court in Nilsen II/III stated that the unfulfilled requirements were "jurisdictional", and this court used the same language in affirming. Nilsen II/III, 621 F.2d at 121. But the term "jurisdictional" does not carry the same meaning in every context in which it is employed. Thus, for instance, flaws that would not leave a judgment vulnerable to collateral attack may nonetheless be considered jurisdictional for res judicata purposes. Costello v. United States, 1961, 365 U.S. 265, 285, 81 S.Ct. 534, 544, 5 L.Ed.2d 551; see generally 9 C. Wright & A. Miller, Federal Practice and Procedure § 2373 (1971). ³ Since "jurisdictional" does not carry a single unvarying meaning, we reject the plaintiff's argument that the characterization of the requirement adopted in Nilsen II/III is the law of the case. The court there was not considering jurisdiction in the res judicata sense. On the contrary, the court was considering only whether it could continue to entertain the action. See Reeb v. Economic Opportunity Atlanta, Inc., 5 Cir. 1975, 516 F.2d 924, 927. The Nilsen II/III court's discussion of the possibility of equitable tolling, 621 F.2d at 120-21, shows that its view was that the requirements are not jurisdictional in every sense of the word.

The Title VII requirements and the parallel requirement in the Age Discrimination in Employment Act, 29 U.S.C. § 626(d)(1), have sparked a great deal of litigation...