TED G. GREEN, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-1020

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

   Memorandum for the United States in Opposition

   Petitioner contends that the court of appeals, in affirming the
dismissal of his complaint, failed properly to apply Fed. R. Civ. P.
15(c).

   1. In October, 1982, petitioner filed a timely administrative claim
with the Veterans Administration alleging that he had suffered
injuries arising from medical malpractice in June, 1981, at Wadsworth
Veterans Administration Hospital in West Los Angeles.  On March 22,
1984, the Veterans Administration denied petitioner's claim (Pet. App.
A2).  From this date, petitioner had six months in which to file a
judicial action under the Federal Tort Claims Act.  See 28 U.S.C.
2401(b).

   On September 19, 1984, three days before the six-month statute of
limitations had run, petitioner filed a complaint for medical
malpractice in which he named the Veterans Administration as defendant
(Pet. App. A2).  The complaint was served on the Veterans
Administration on October 26, 1984.  /1/ The complaint was also served
on the United States Attorney and the Attorney General on December 19,
1984, and March 8, 1985, respectively (id. at A2-A3).

   The Veterans Administration moved to dismiss on the ground that it
was not a proper party.  The Federal Tort Claims Act creates a remedy
against the United States, but not against its agencies and
subdivisions, for personal injury arising out of the negligence of its
employees.  See 28 U.S.C. 1346(b), 2679(a).  The district court
granted the motion on April 10, 1985 (Pet. App. A16).

   On March 21, 1985, before his earlier complaint had been dismissed,
petitioner filed another complaint that named the United States as
defendant (Pet. App. A3).  This complaint was based on the same facts
underlying petitioner's first complaint.  The United States moved to
dismiss the complaint as untimely.  On June 27, 1985, the district
court granted the motion (id. at A13).

   Petitioner timely appealed the district court's dismissal of his
second comlaint.  /2/ The court of appeals affirmed (Pet. App. A1-A4).
 The court observed that the statute of limitations is a condition of
the government's waiver of sovereign immunity (id. at A4).  Pursuant
to 28 U.S.C. 2401(b), petitioner was required to file his complaint
against the United States within six months after his administrative
claim had been denied.  He failed to do so.  Rather, he waited until
nearly twelve months had elapsed before he filed his complaint against
the United States.  Petitioner's failure to file a timely complaint,
the court concluded, was fatal to his claim (ibid.).

   The court noted that Rule 15(c) in some cases permits the addition
of a new defendant by means of an amended complaint.  In the instant
case, however, petitioner failed even to comply with the requirements
of Rule 15(c):  "(Petitioner) never amended his complaint.  He
instituted a separate action" (Pet. App. A4).  Moreover, stated the
court, dismissal would have been appropriate even if petitioner had
attempted to amend his complaint because the United States had no
notice of the action within the six-month limitations period (ibid.).

   2. The decision of the court of appeals is clearly correct and,
indeed, is mandated by this Court's decision in Schiavone v. Fortune,
a/k/a/ Time, Inc., No. 84-1839 (June 18, 1986).

   a. Petitioner contends (Pet. 17-20) that his second complaint
should relate back to his first complaint because Rule 15(c) permits
relation back so long as the proper party receives notice of the
action within a reasonable time after the statute of limitations has
run.  This Court has expressly rejected that argument.  In Schiavone
(slip op. 9-11), this Court held that the plain language of Rule 15(c)
requires that the proper party have notice of the claim "within the
period provided by law for commencing the action:"

         We do not have before us a choice between a "liberal approach
      toward Rule 15(c), on the one hand, and a "technical"
      interpretation of the Rule, on the other hand.  The choice,
      instead, is between recognizing or ignoring what the Rule
      provides in plain language.  We accept the Rule as meaning what
      it says.

         We are not inclined, either, to temper the plain meaning of
      the language by engrafting upon it an extension of the
      limitations period equal to the asserted reasonable time,
      inferred from Rule 4, for the service of a timely filed
      complaint.  Rule 4 deals only with process.  Rule 3 concerns the
      "commencement" of a civil action.  Under Rule 15(c), the
      emphasis is upon "the period provided by law for commencing the
      action against" the defendant.  An action is commenced by the
      filing of a complaint and, so far as (the defendant here) is
      concerned, no complaint against it was filed (within the statute
      of limitations).

== * * * * *

         The linchpin is notice, and notice within the limitations
      period.  Of course, there is an element of arbitrariness here,
      but that is a characteristic of of any limitations period.  And
      it is an arbitrariness imposed by the legislature and not by the
      judicial process.

   In the instant case, as in Schiavone, the defendant did not have
notice of the filing of a complaint within the limitations period.
The six-month limitations period expired on September 22, 1984.
Petitioner waited until September 19, 1984, to file his suit, and he
named an improper party, the Veterans Administration, as defendant.
Even the Veterans Administration did not receive notice of the
complaint until October 26, 1984.  /3/ Not until December 19, 1984,
and March 8, 1985, did the United States Attorney and the Attorney
General respectively receive notice of the complaint against the
Veterans Administration.  Not until March 21, 1985, did petitioner
finally file a complaint that named the United States as defendant.
In short, the United States did not have timely notice of petitioner's
complaint.  The court of appeals correctly held that this absence of
notice was fatal to petitioner's "relation back" argument.  See
Schiavone, slip op. 9.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   FEBRUARY 1987

   /1/ By letter dated November 19, 1984, the Veterans Administration
informed petitioner that, because the agency was not a proper party to
the action, his attempt to serve the complaint was inappropriate and
ineffective.

   /2/ Petitioner did not appeal the dismissal of his first complaint.

   /3/ Because the Veterans Administration had no notice of the action
until after the statute of limitations had run, this Court need not
address petitioner's contention (Pet. 13-16) that timely notice to the
agency should have been imputed to the United States.  Cf. Schiavone,
slip op. 11 n.8;  Williams v. United States, 711 F.2d 893, 898 (9th
Cir. 1983);  Hughes v. United States, 701 F.2d 56, 58 (7th Cir. 1982).