Ynclan v. Department of Air Force

• Decision Date: 23 September 1991
• Docket Number: No. 89-5522,89-5522
• Parties: 57 Fair Empl.Prac.Cas. (BNA) 32, 57 Empl. Prac. Dec. P 41,044, 20 Fed.R.Serv.3d 1290 Rene Ynclan YNCLAN, Plaintiff-Appellant, v. DEPARTMENT OF the AIR FORCE, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1388

943 F.2d 1388

57 Fair Empl.Prac.Cas. (BNA) 32, 57 Empl.

Prac. Dec. P 41,044,

20 Fed.R.Serv.3d 1290

Rene Ynclan YNCLAN, Plaintiff-Appellant, v. DEPARTMENT OF the AIR FORCE, et al., Defendants-Appellees.

No. 89-5522

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 23, 1991.

Rene Ynclan Ynclan, pro se.

Winstanley F. Luke, Ray Nowak, Asst. U.S. Attys., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, KING and JOLLY, Circuit Judges.

KING, Circuit Judge:

Rene Ynclan appeals the district court's dismissal, with prejudice, of his Title VII suit against his former employer, the Air Force. The district court found that it was without jurisdiction over Ynclan's complaint, since he had failed to name and serve the proper defendant within the thirty-day period from receipt of his EEOC right-to-sue letter, as provided in 42 U.S.C. § 2000e-16(c). During the pendency of this appeal, this circuit's interpretation of the nature of the thirty-day period has been overturned by a Supreme Court decision. Since the district court's decision rests on cases whose precedential value has been negatively affected by the Supreme Court's decision, we REVERSE the district court's order and REMAND the case for further consideration.

I. BACKGROUND

In October 1984, Rene Ynclan was dismissed from his job with the San Antonio Regional Property Maintenance Agency ("SARPMA"), an appropriated fund agency with the Air Force. He contends that his dismissal was due to a lower back condition, and that the dismissal was thus discriminatory. ¹ In January 1988, after receiving a right-to-sue letter from the Equal Employment Opportunity Commission, Ynclan timely filed suit in district court under Title VII. However, his suit named only the Department of the Air Force and SARPMA as defendants, while 42 U.S.C. § 2000e-16(c) requires that Title VII suits against government employers be brought against "the head of the department...." In this case, the only proper defendant was the Secretary of the Air Force ("Secretary"). See Gonzales v. Secretary of the Air Force, 824 F.2d 392 (5th Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1245, 99 L.Ed.2d 443 (1988).

Ynclan subsequently attempted to amend his complaint to add the Secretary, but the district court dismissed for lack of subject matter jurisdiction. Amendment was not proper, according to the district court, because the Secretary had not received notice of the suit prior to the expiration of the limitations period, and thus Rule 15(c) did not permit relation back. See Gonzales, 824 F.2d at 395-96 (citing Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), for proposition that amendment to complaint, adding defendant, is invalid unless the added defendant received notice of the action prior to the expiration of the limitations period). Ynclan appeals the Rule 12(b)(1) dismissal.

II. STANDARD OF REVIEW

A motion to dismiss for lack of jurisdiction may be decided by the district court on one of three bases: the complaint alone, the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). In this case, although the court held a hearing on the government's Rule 12(b)(1) motion, the order granting the motion does not include any findings of fact. The basis for the dismissal, in accordance with the legal reasoning outlined by the district court in its order, is, however, evident from undisputed facts in the record. ² In such a circumstance, our review is limited to determining whether the district court's application of the law is correct and whether the facts are indeed undisputed. Id. Our review of the district court's application of the law is, of course, de novo.

III. ANALYSIS

In Title VII claims against government employers, 42 U.S.C. § 2000e-16(c) imposes a number of strictures on plaintiffs wishing to sue following adverse agency action. First, the suit must be filed within thirty days following receipt of notice of such action. ³ Second, the action must be taken against the "head" of the department. In this case, the district court, following Fifth Circuit precedent as it then stood, interpreted these two requirements, operating together, as prohibiting Ynclan from amending his complaint to remedy its jurisdictional defect.

A. Equitable Tolling of the Limitations Period

Until June 1989 we had consistently held that § 2000e-16(c)'s limitation period of thirty days was a waiver of sovereign immunity. See Irwin v. Veterans Admin., --- U.S. ----, 111 S.Ct. 453, 456, 112 L.Ed.2d 435 (1990), aff'g on other grounds 874 F.2d 1092 (5th Cir.1989); Brown v. Dep't of Army, 854 F.2d 77, 78 n. 1 (5th Cir.1988); Bell v. Veterans Admin. Hospital, 826 F.2d 357, 360-61 (5th Cir.1987). This conclusion had two significant implications. First, such a waiver must be strictly construed. Second, the thirty-day period was considered jurisdictional, and thus was not subject to equitable tolling principles.

This holding was disputed among other circuit courts and the conflict was addressed by the U.S. Supreme Court in Irwin, in an opinion handed down December 3, 1990. The Supreme Court held that our prior interpretation of the statute was incorrect. Although the provision does constitute a waiver of sovereign immunity, the thirty-day period in § 2000e-16(c) should be treated like any other statute of limitations, including subjecting it to equitable tolling. 111 S.Ct. at 457.

B. Amending the Complaint to Add a Party

Rule 15 of the Federal Rules of Civil Procedure permits amendment of pleadings under certain circumstances. If amendment is sought prior to the filing of the responsive pleading, Rule 15(a) permits amendment once with no need to seek the court's permission. Here, the responsive pleading had already been filed, so Rule 15(a) requires leave of the court in order to amend. It also provides, however, that "leave shall be freely granted when justice so requires." Fed.R.Civ.P. 15(a).

We have held that "leave to amend should not be given automatically." Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, 1163 (5th Cir.1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). Nonetheless, the circumstances in which the rule permits denial of leave to amend are limited. The Supreme Court has held that a court may deny leave to amend where there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

Here, none of these grounds was alleged before the district court or this court, and the district court dismissed the case on the ground that Rule 15(c), as interpreted by this court, did not permit the amendment. Since we find that the cases on which the district court relied are no longer good law, however, the court will have to consider Ynclan's motion for leave to amend on remand. For this reason, we set out here the standards for granting such leave.

In cases changing the designation of the party being sued, we have consistently held that mistakenly failing to sue the proper party does not itself constitute the kind of circumstance which would permit denial of leave to amend. See Darby v. Pasadena Police Dept., 939 F.2d 311 (5th Cir.1991); Chancery Clerk of Chickasaw County v. Wallace, 646 F.2d 151 (5th Cir. Unit A 1981). Wallace stated that such a mistake constituted "[nothing] more than a remedial pleading defect...." 646 F.2d at 160.

C. Relation Back

Rule 15(c) provides that an amendment to a pleading, changing the party against whom a claim is asserted, relates back to the date of the original pleading as long as two prerequisites are met. The party to be added must

(1) [have] received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) [have known] or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

Fed.R.Civ.P. 15(c). The Supreme Court, in Schiavone v. Fortune, 477 U.S. 21, 29-30, 106 S.Ct. 2379, 2384-85, 91 L.Ed.2d 18 (1986), interpreted this provision to require that the party to be added must have received notice before the expiration of the limitations period. ⁴

In Gonzalez v. Secretary of the Air Force, 824 F.2d 392 (5th Cir.1987), as in this case, the plaintiff named the Department of the Air Force, instead of the Secretary, as the defendant in his Title VII suit. Although his suit had been timely filed, he did not serve process on the Department and the U.S. Attorney until after the limitations period had expired. The district court permitted the plaintiff to amend his complaint, but on reconsideration in light of Schiavone, dismissed the suit for lack of subject matter jurisdiction. Id. at 394 (citing Schiavone). We affirmed the dismissal, holding that in order for an amendment adding a party in a Title VII suit to relate back to the original date of filing, the added party must have had notice within the statutory period. This determination was based on Schiavone 's interpretation of Rule 15(c). See 477 U.S. at 29, 106 S.Ct. at 2384.

D. Application to This Case

Here, the district court relied on the rule in Gonzales, finding that the court lacked subject matter jurisdiction to permit Ynclan to amend his complaint, since none of the defendants had been served prior to the expiration of the limitations period. Although the...