Warren v. Department of Army, 88-1068

• Decision Date: 16 February 1989
• Docket Number: No. 88-1068,88-1068
• Citation: 867 F.2d 1156
• Parties: 49 Fair Empl.Prac.Cas. 141, 49 Empl. Prac. Dec. P 38,716, 13 Fed.R.Serv.3d 231 Robert WARREN, Appellant, v. DEPARTMENT OF the ARMY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1156

867 F.2d 1156

49 Fair Empl.Prac.Cas. 141,

49 Empl. Prac. Dec. P 38,716, 13 Fed.R.Serv.3d 231

Robert WARREN, Appellant, v. DEPARTMENT OF the ARMY, Appellee.

No. 88-1068.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 21, 1988.

Decided Feb. 16, 1989.

John L. Oliver, Jr., Cape Girardeau, Mo., for appellant.

Major Cathy P. Cates, Washington, D.C., for appellee.

Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Robert Warren appeals from an order dismissing his pro se action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17 (1982), which sought review of an adverse decision by the Equal Employment Opportunity Commission (EEOC). The district court held itself to be without subject matter jurisdiction because Warren incorrectly named the Department of the Army as defendant, rather than the Secretary of the Army, and because his attempts to amend the complaint occurred more than thirty days after receiving notice of the denial of his claim, and therefore under the statute untimely. We are convinced that the unusual circumstances of this case compel us to toll the applicable limitations period and to allow Warren to file an amended complaint naming the proper defendant. We therefore reverse and remand.

Warren is a black male who was employed by the Department of the Army as a temporary booking and binding clerk under the Veterans Readjustment Act, 38 U.S.C. Sec. 2014. Fired after eight months on the job, he subsequently filed charges of race and sex discrimination against the Army. After an administrative hearing, an EEOC complaints examiner found that the Army had not discriminated against Warren, and the Army later adopted the examiner's findings. On appeal, the EEOC issued a final decision affirming this determination.

On May 5, 1987, Warren received a copy of the EEOC's decision along with a "Notice of Right to File Civil Action." This letter advised Warren of his right to judicial review under 42 U.S.C. Sec. 2000e-16(c), but cautioned that he was required to file his complaint within thirty days of receiving the letter. The letter further counseled that he "must name the appropriate official agency or department head as the defendant," and it is this delphic directive that gives rise to the dispute here. On May 28, 1987, Warren delivered to the clerk of the district court a pro se complaint which named the Department of the Army as the sole defendant. On May 29, 1987, Warren filed an application for appointment of counsel and an application to proceed in forma pauperis, without prepayment of costs. Thirty-two days passed while the magistrate considered these applications.

On July 1, 1987, well after the thirty-day limitations period established by section 2000e-16(c) had expired, the magistrate denied Warren's request to proceed in forma pauperis, but allowed Warren to file a complaint provided that he pay filing fees on an installment basis. Although the clerk's office then issued summonses, several more days passed while they were processed and delivered by certified mail. The United States Attorney in St. Louis was served with Warren's complaint on July 9, sixty-five days after the thirty-day period began. The Department of the Army was served on July 13, and the United States Attorney General was served on July 14.

The Army moved to dismiss Warren's complaint, contending that it was time barred because it was not filed until July 1, 1987, more than thirty days after Warren received the EEOC right-to-sue letter. The district court disagreed, finding that Warren's complaint was filed on May 29, 1987, before the thirty-day limitations period of 42 U.S.C. Sec. 2000e-16(c) had lapsed.

The Army also argued that the only proper defendant to Warren's action was the Secretary of the Army, and that any amendment to the complaint, naming the Secretary as defendant, would not relate back under Fed.R.Civ.P. 15(c) because the Secretary did not receive timely notice of Warren's action. Accepting this second argument, the district court held itself to be without subject matter jurisdiction over Warren's claims. The court reasoned that unless an amended complaint naming the Secretary of the Army as defendant related back to May 29, 1987, Warren's claim was time barred by the thirty day limitations period of section 2000e-16(c). Concluding that the Secretary did not receive notice of the action within the limitations period, as required by Rule 15(c) to permit relation back of an amendment to Warren's pleadings, the district court dismissed Warren's complaint with prejudice. This timely appeal followed.

I.

We must resolve whether the district court erred by dismissing Warren's pro se complaint for lack of subject matter jurisdiction as a result of Warren's failure to name as defendant the Secretary of the Army. At issue in this case are two requirements established by 42 U.S.C. Sec. 2000e-16(c). First, the section provides that a plaintiff must bring suit within thirty days of receiving notice of an agency's final action. Warren fulfilled this condition when he filed his complaint on May 29, 1987. ¹

Second, section 2000e-16(c) requires a plaintiff to name as defendant the head of the appropriate department or the head of the appropriate agency. By naming the Department of the Army as the sole defendant to his lawsuit, Warren failed to comply with this condition. This defect bars Warren's action unless he may now amend his complaint to name the proper defendant and to have this amendment relate back to May 29, 1987, when the thirty-day period had not yet expired.

Determining whether Warren may do so involves analyzing the somewhat circular relationship between Federal Rule of Civil Procedure 15(c) and the thirty-day limitations period of section 2000e-16(c). Rule 15(c) allows pleading amendments to relate back to the original date of filing where the proper defendant received notice of the action prior to the expiration of the applicable limitations period. ² See Schiavone v. Fortune 77 U.S. 21, 29-31, 106 S.Ct. 2379, 2385, 91 L.Ed.2d 18 (1986) ("The linchpin is notice, and notice within the limitations period"). Here, the United States Attorney was not served until July 9, thirty-five days after the thirty-day filing period had expired. An amendment by Warren to his complaint, therefore, will not relate back to May 29 unless equity intervenes to toll the running of the thirty-day period. Should circumstances permit such tolling, the United States Attorney may be deemed to have received notice of Warren's action before the expiration of that limitations period.

To toll the thirty-day period and allow Warren to amend his complaint, in turn, we must determine that the filing period is analagous to a statute of limitations in that it is subject to equitable modification. The Supreme Court has held that the statutory time provision for filing with the EEOC a Title VII claim against a private employer is not a jurisdictional prerequisite to suit in federal court, but is instead subject to waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). Zipes did not indicate, however, whether this holding extended to section 2000e-16(c) suits filed in federal court against the government. While this court has until today reserved judgment on the issue, see James v. United States Postal Service, 835 F.2d 1265, 1267 & n. 2 (8th Cir.1988), we now follow the prevailing view and extend the reasoning of Zipes to hold that, even in suits against the government, the thirty-day filing period established by section 2000e-16(c) is not jurisdictional but instead is subject to equitable tolling. See Mondy v. Secretary of the Army, 845 F.2d 1051, 1054-57 (D.C.Cir.1988) (analyzing statutory language and structure to conclude that limits of section 2000e-16(c) are nonjurisdictional). ³ We have previously indicated that because of the remedial character of Title VII, the filing period of 42 U.S.C. Sec. 2000e-5(f)(1) is more akin to a statute of limitations than a jurisdictional prerequisite. See Thomas v. KATV Channel 7, 692 F.2d 548, 549-50 & n. 2 (8th Cir.1982) (per curiam), cert. denied, 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 790 (1983). We see no reason to distinguish section 2000e-5(f)(1) from section 2000e-16(c) for purposes of equitable tolling. See Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir.1984).

II.

Having determined that equitable tolling may apply in actions under 42 U.S.C. Sec. 2000e-16(c), we must decide whether equity warrants tolling the limitations period in this case. In Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam), the Supreme Court suggested that courts may toll a limitations period where

a claimant has received inadequate notice, * * * where a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon, * * * where the court has led the plaintiff to believe that she had done everything required of her, * * * [or] where affirmative misconduct on the part of the defendant lulled the plaintiff into inaction.

Id. at 151, 104 S.Ct. at 1725-26 (citations omitted). We conclude that under these principles equitable tolling is appropriate here.

Warren's expectations doubtlessly were shaped by the right-to-sue letter that he received from the EEOC. In describing the procedures Warren needed to follow in order to pursue his right to review, this letter used language that Warren reasonably characterizes as misleading. The letter draws on language in section 2000e-16(c) which provides that in an action challenging an EEOC decision, "the head of the department, agency, or unit, as appropriate, shall be the defendant." The EEOC's letter advised Warren:

You are further notified that if you file a civil action YOU...