Sanders v. Department of Army, 92-1014

Decision Date22 December 1992
Docket NumberNo. 92-1014,92-1014
Citation981 F.2d 990
Parties60 Fair Empl.Prac.Cas. (BNA) 1073, 60 Empl. Prac. Dec. P 41,924, 24 Fed.R.Serv.3d 1022 Patricia Ann SANDERS, Plaintiff-Appellant, v. DEPARTMENT OF the ARMY, Defendant-Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Joseph B. Moore, Asst. U.S. Atty., St. Louis, MO, and Captain Michael J. Davidson, Dept. of the Army, Arlington, VA, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.

PER CURIAM.

In February 1988 Patricia Ann Sanders was discharged from her position as a clerk/typist for the Army Aviation Systems Command. She appealed to the Merit Systems Protection Board, alleging that she was discharged because of her race and sex. The Board's adverse decision became final in August 1988. Sanders filed this petition for review in January 1991. Such a petition "must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action." 5 U.S.C. § 7703(b)(2).

In the district court, the government filed its answer alleging the affirmative defenses of failure to state a claim and lack of jurisdiction. Two months later, the government moved to dismiss Sanders's petition as time-barred. Sanders opposed the motion, arguing to the district court, 1 as she does on appeal, that § 7703(b)(2) provides an affirmative statute of limitations defense that the government waived by failing to plead it in the answer. The government responded that compliance with the statute's time limitation is a jurisdictional prerequisite, and that such a defect cannot be waived.

Like the district court, we find it unnecessary to decide whether § 7703(b)(2) is a statute of limitations or a non-waivable jurisdictional limitation. Even if § 7703(b)(2) is a statute of limitations, it is arguable that the failure to state a claim defense in the government's answer preserved the limitations defense. Although statutes of limitations provide an affirmative defense that ordinarily must be specifically pleaded, see Fed.R.Civ.P. 8(c), a complaint is subject to dismissal for failure to state a claim "when the affirmative [limitations] defense clearly appears on the face of the complaint." White v. Padgett, 475 F.2d 79, 82 (5th Cir.), cert. denied, 414 U.S. 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973).

Moreover, even if the government's answer did not properly preserve the limitations defense, the district court had the discretion, which it expressly exercised, to...

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    ...approved the allowance of affirmative defenses first raised at various stages of litigation. See, e.g. , Sanders v. Dep't of the Army , 981 F.2d 990, 991 (8th Cir. 1992) (per curiam) (finding no abuse of discretion when the district court allowed an affirmative defense to be raised for the ......
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