Ynclan v. Department of Air Force, 89-5522

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 943 F.2d 1388
• 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.
• Decision Date: 23 September 1991

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.

Page 1389

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

Page 1390

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

Page 1391

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...