Torry v. Northrop Grumman Corp., 03-4149.

• Decision Date: 04 March 2005
• Docket Number: No. 03-4149.,03-4149.
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: Nancy E. TORRY, Plaintiff-Appellant, v. NORTHROP GRUMMAN CORPORATION, Defendant-Appellee.

399 F.3d 876

Nancy E. TORRY, Plaintiff-Appellant, v. NORTHROP GRUMMAN CORPORATION, Defendant-Appellee.

No. 03-4149.

United States Court of Appeals, Seventh Circuit.

Argued January 26, 2005.

Decided March 4, 2005.

Armand L. Andry (argued), Oak Park, IL, for Plaintiff-Appellant

John F. Kuenstler (argued), Wildman, Harrold, Allen & Dixon, Chicago, IL, for Defendant-Appellee.

Before POSNER, MANION, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

Nancy Torry filed this suit against her employer alleging a violation only of the Age Discrimination in Employment Act; although the charge she had filed with the EEOC had also alleged racial discrimination (she is black), the complaint in her court suit did not mention race. During years of pretrial proceedings, however, it quickly became apparent that she was seeking a remedy for racial discrimination, in violation of Title VII of the Civil Rights Act of 1964, as well as for age discrimination. Her brief in opposition to Northrop Grumman's motion for summary judgment was explicit on this score, and Northrop Grumman never doubted that Title VII was in the case. But Torry's lawyer never moved to amend the complaint to add a Title VII charge, and Northrop argued that the failure to amend was fatal and barred a claim of racial discrimination. The judge disagreed and went on to consider the merits of both the age discrimination and racial discrimination charges. He ruled in favor of Northrop Grumman on both claims; but the defendant, while defending the judge's ruling on the merits, also insists that he should never have reached the merits of the racial claim.

The courts typically resolve such disputes by invoking the doctrine of "constructive amendment" (of a complaint). E.g., Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 829 n. 1, 122 S.Ct. 1889, 153 L.Ed.2d 13 (2002); Bennett v. Roberts, 295 F.3d 687, 699 (7th Cir.2002); Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1357 n. 1 (Fed.Cir.2004); Green Country Food Market, Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1278 (10th Cir.2004); City of Rome v Verizon Communications, Inc., 362 F.3d 168, 181-82 (2d Cir.2004). A typical formulation of the doctrine is that "parties may constructively amend the complaint by agreeing, even implicitly, to litigate fully an issue not raised in the original pleadings." Stemler v. City of Florence, 126 F.3d 856, 872 (6th Cir.1997). It is said to be "a judicially created doctrine that courts have extrapolated from the language of Federal Rule of Civil Procedure 15(b)." City of Rome v. Verizon Communications, Inc., supra, 362 F.3d at 181.

The word "constructive" is a common legal term of art, but it should be avoided wherever possible. The operative meaning of "constructive" in law is, as our cases have stressed, "no," Eckstein v. Balcor Film Investors, 58 F.3d 1162, 1168 (7th Cir.1995); Parker v. Sullivan, 898 F.2d 578, 579 (7th Cir.1990); Shacket v. Philko Aviation, Inc., 841 F.2d 166, 171 (7th Cir.1988), and how helpful can it be to have a "no amendment" doctrine? Cf. Astor v. Wells, 17 U.S. (4 Wheat.) 466, 477-79, 4 L.Ed. 616 (1819). When a court says that the defendant received "constructive notice" of the plaintiff's suit, it means that he didn't receive notice but we'll pretend he did; and when a court says that the defendant had "constructive possession" of a gun, it means that he didn't possess it but we'll pretend he did. How much more illuminating it would be if the court said that notice isn't always required to make a person suable, or that possession of a gun isn't always required to make a person guilty of a gun offense. And coming to the present case, how helpful can it be to say that we'll pretend a plaintiff has amended his complaint when he hasn't?

Of all "constructive" doctrines, that of "constructive amendment" may be the most otiose, because the ground that it traverses is fully and clearly occupied by Fed.R.Civ.P. 15(b), which provides in language that could not be clearer that "when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." In other words, provided the issue that wasn't in the complaint — in this case, the issue of racial discrimination — was tried (or, in this case, pretried, Ryan v. Illinois Dept. of Children & Family Servs., 185 F.3d 751, 763 (7th Cir.1999); Kulkarni v. Alexander, 662 F.2d 758, 762 (D.C.Cir.1978); but cf. Independent Petroleum Ass'n v. Babbitt, 235 F.3d 588, 596 (D.C.Cir.2001)), without objection by either party, it doesn't matter that it wasn't mentioned in the complaint.

The doctrine is a throwback to the days before the Federal Rules of Civil Procedure, promulgated in 1938 (so it is a pretty long throwback), demoted the complaint in federal civil litigation from its queenly role. The rules contemplate that the complaint will be superseded by pretrial orders (see Rule 16(e)), which among other things will define the issues for adjudication. Rule 15(b) is another supersession rule. When issues not mentioned in the complaint (whether originally or by amendment) are nevertheless litigated with the consent of the parties, the complaint is not "constructively amended"; it is simply an irrelevance so far as those issues are concerned.

Were there any doubt about the meaning of Rule 15(b), it would be dispelled by the sentence that follows the one we quoted from the rule: "Such amendment of the pleadings as may be necessary to cause them to conform...