JOE T. GONZALES, PETITIONER V. SECRETARY OF THE AIR FORCE, ET AL.

   No. 87-789

   In the Supreme Court of the United States

   October Term, 1987

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

   Memorandum for the Respondents in Opposition

   Petitioner contends that the courts below misapplied Fed. R. Civ.
P. 15(c) in holding that he could not amend his complaint to add a new
party after the statute of limitations had expired.

   1. In 1981, petitioner filed an administrative claim of
discrimination against the Air Force.  At that time, and at all
subsequent stages of this litigation, petitioner was represented by
counsel.  The Air Force rejected petitioner's claim, and on March 15,
1985, that decision was finally affirmed by the Equal Employment
Opportunity Commission (EEOC).  Pet. App. 5A-6A.

   Under Section 717(c) of Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e-16(c), petitioner then had 30 days within which to
file an action in district court against "the head of (his)
department." On April 12, 1985, two days before the expiration of the
statutory period, petitioner filed a suit against the Department of
the Air Force (Department), rather than against the head of that
Department, the Secretary of the Air Force (Secretary).  Petitioner
served process on the Department on April 30, 1985, 16 days after
expiration of the 30-day Title VII filing period.  Almost three months
later, on July 24, 1985, petitioner also served the United States
Attorney.  Pet. App. 8A.

   On April 30, 1986, the Department moved to dismiss petitioner's
complaint because he had failed to file suit against the head of his
department -- the Secretary -- within the Title VII filing period.  In
response, petitioner sought leave to amend his complaint by adding the
Secretary as a defendant.  The district court initially granted this
motion under Fed. R. Civ. P. 15(c), and on June 2, 1986, petitioner
served an amended complaint on the Secretary.  Shortly afterwards,
however, this Court decided Schiavone v. Fortune, No. 84-1839 (June
18, 1986), which addressed the circumstances in which an amended
complaint that is filed after expiration of a statute of limitations
may, under Rule 15(c), "relate back" to the date of filing of the
original complaint.  Finding Schiavone controlling, the district court
dismissed petitioner's complaint, holding that petitioner could not
add the Secretary as a defendant because the Secretary had not
received notice of the suit prior to expiration of the 30-day Title
VII statute of limitations.  The district court explained that
petitioner's original complaint failed to name the proper party and
that his amended complaint was out of time.  Pet. App. 6A-9A, 18A-20A.

   The court of appeals affirmed (Pet. App. 5A-11A).  The court noted
(id. at 8A (citation omitted)) that Schiavone had

      set forth four factors upon which "relation back" of an amended
      pleading under Rule 15(c) depends:  "(1) the basic claim must
      have arisen out of the conduct set forth in the original
      pleading;  (2) the party to be brought in must have received
      such notice that it will not be prejudiced in maintaining its
      defense;  (3) that party must or should have know that, but for
      a mistake concerning identity, the action would have been
      brought against it;  and (4) the second and third requirements
      must have been fulfilled within the prescribed limitations
      period."

   Here, noting that petitioner gave notice of the suit to the
Secretary more than a year after expiration of the statute of
limitations, the court of appeals explained that "(n)o colorable
argument can be made that this belated notice satisfies the second and
fourth factors of the Schiavone test" (Pet. App. 9A).  Similarly, the
court found that petitioner's service of process on the Department and
the United States Attorney "was also received after the prescribed
limitations period.  Having failed to notify the Department and the
United States Attorney within the thirty-day period, (petitioner)
cannot argue, under Schiavone's third factor, that knowledge of his
federal lawsuit is imputed to the Secretary." Id. at 9A-10A (emphasis
in original).  Because petitioner therefore "failed to satisfy the
second, third and fourth factors of the Schiavone test," the court of
appeals held that "the amended complaint did not relate back under
Rule 15(c) to the original date of the filing of the action" (id. at
10A).  The court also noted that, while petitioner and the Department
"were involved in lengthy administrative battles for a number of
years, the mere fact that administrative proceedings occurred cannot
be construed as any kind of notice, whether 'formal' or 'informal,' of
a subsequent federal lawsuit" (ibid. (footnote omitted)).  /1/

   2. The court below found its conclusion compelled both by the plain
language of Rule 15(c) and by this Court's holding in Schiavone v.
Fortune, supra.  That conclusion plainly was correct, and it is
consistent with the decision of every court to address the "relation
back" of amended complaints under Rule 15(c) since the ruling in
Schiavone.  Further review accordingly is unwarranted.

   a. Under Rule 15(c) (emphasis added), an amendment changing the
party against whom a claim is asserted relates back to the date of
filing of the original complaint only if, "within the period provided
by law for commencing the action against the party to be brought in by
amendment that part (1) has 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) knew 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." Here, the Secretary
(concededly the proper defendant "to be brought in by amendment") /2/
did not receive notice of the institution of the action "within the
period provided by law for commencing the action against the party" --
that is, within Title VII's 30-day limitations period.  The plain
language of Rule 15(c) therefore requires rejection of petitioner's
assertion that his attempt to amend his complaint should relate back
to the original filing date.

   The propriety of this reading of the Rule is confirmed by the
Court's decision in Schiavone v. Fortune, supra.  In that case, as in
this one, the plaintiff named the wrong party as the defendant;  in
that case, as in this one, the plaintiff failed to name the proper
defendant in the original complaint;  in that case, as in this one,
the plaintiff then attempted to amend its complaint to name the proper
defendant.  Applying the plain language of Rule 15(c), the Court found
it "inevitably to follow (from the failure to serve any party within
the limitations period) that notice to (the proper defendant) and the
necessary knowledge did not come into being 'within the period
provided by law for commencing the action against' (the proper
defendant), as is so clearly required by Rule 15(c)" (slip op. 9).
The Court concluded that "(t)his is fatal * * * to petitioners'
litigation" (ibid.) because "the Rule's phrase 'within the period
provided by law for commencing the action' means 'within the
applicable limitations period'" (id. at 10 (quoting Fed. R. Civ. P. 15
advisory committee notes)).  The Court added that its holding would
apply even if there had been an "identity-of-interest" between the
defendants named in the original and amended complaints, since
"neither (defendant) received notice of the filing until after the
period of limitations had run" (id. at 8).

   Petitioner nevertheless argues that the conditions set forth in
Schiavone for compliance with Rule 15(c) were satisfied (Pet. 11-14).
He contends that the proper defendant, the agency head, received
essentially the same notice that he would have received had he been
properly named, by virtue of the fact that Air Force litigation is
handled the same way "'(w)hether the Air Force or some functionary in
the office of the Secretary is served.'" Pet. 12 (quoting Pet. App.
15a (Brown, J., dissenting)).  /3/ Petitioner also argues that the
proper defendant was in no way prejudiced by the initial failure to
name him, because the extensive prior administrative proceedings in
the case put the Secretary on notice as to the particulars of the
case, and should have made the Secretary realize that, but for a
mistake, the suit would have been brought against him.

   Such an argument is almost identical to that rejected by the Court
in Schiavone.  There, as the dissent pointed out, "the notice that the
defendant actually receive(d) (was) just as timely and just as
informative as that which would have been received if no mistake(s)
had occurred" (slip op. 7 (Stevens, J., dissenting)).  The original
complaint there put the defendant on notice of the plaintiff's
intention to bring suit concerning specifically identified activities
being carried on by one of the defendant's internal divisions, which
was not itself a suable entity (id. at 1-2).  As here, however,
because service was not effectuated "within the period provided by law
for commencing the action" -- that is, "within the applicable
limitations period" (Schiavone, slip op. 10) -- the Court found
relation back inappropriate because the proper defendant did not
receive notice in a manner that was timely under the rule.  /4/

   Without acknowledging this deficiency in his position, petitioner
argues that Title VII should be liberally construed (Pet. 9-10, 14).
But the Court has made it clear that there is no basis "for giving
Title VII actions a special status under the Rules of Civil
Procedure." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 150
(1984).  /5/

   There is, however, good reason to apply Rule 15(c) with special
force in suits against the federal government.  The second paragraph
of the Rule was specifically intended to provide persons suing the
government a means to protect themselves against the consequences of
naming the wrong federal defendant.  That paragraph provides that
"(t)he delivery or mailing of process to the United States Attorney *
* * or an agency or officer who would have been a proper defendant if
named, satisfies the requirements of clauses (1) and (2) hereof with
respect to the United States or any agency or officer thereof to be
brought into the action as a defendant" (Fed. R. Civ. P. 15(c)).
Accordingly, if the delivery or mailing of process to any of those
persons is accomplished "within the period provided by law for
commencing the action against (the proper defendant)" (ibid.), an
amendment of the complaint naming the proper defendant will relate
back to the date of filing of the original complaint.  But by failing
to serve the United States Attorney within the 30-day limitations
period -- indeed, until July 24, 1985, more than three months after
expiration of the limitations period -- petitioner failed to take
advantage of this provision.

   The legislative background makes it clear that the second paragraph
of Rule 15(c) was intended to give uncertain plaintiff's a means of
avoiding the risk of failure, by oversight, to name the proper federal
defendant.  That paragraph was added to the Rule in 1966 in response
to four district court decisions that had dismissed suits brought
pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.
405(g).  In each case the plaintiff named a defendant other than the
Secretary of Health, Education, and Welfare (the only proper
defendant), and in each case the district court denied the plaintiff
leave to amend to name the proper defendant.  See Byse, Suing the
"Wrong" Defendant in Judicial Review of Federal Administrative Action:
 Proposals for Reform, 77 Harv. L. Rev. 40 (1963).  The second
paragraph of Rule 15(c) was intended to address this problem by
allowing amendments naming the proper federal defendant to relate back
to the filing of the initial complaint -- so long as the United States
Attorney or other specifically denominated federal official is served
within the limitations period.  See Kaplan, Continuing Work of the
Civil Committee:  1966 Amendments of the Federal Rules of Civil
Procedure (I), 81 Harv. L. Rev. 356, 407-410 (1967).  But as the plain
language of the second paragraph of Rule 15(c) indicates, the drafters
intended this safety net to come into play only when the plaintiff
served the United States Attorney (or other denominated federal
official) within the limitations period.  /6/ See also Schiavone, slip
op. 11 n.8.  It plainly would be inappropriate to read an additional
limitation into the language of Rule 15(c) to benefit plaintiffs who
fail to take advantage of the one safety net provided by the Rule.

   Given this background, it is not surprising that, as petitioner
concedes (Pet. 8-9), there is no decision that conflicts with the
holding below:  every court to address the question since Schiavone
has held that a Title VII complaint must be dismissed when it names
the wrong defendant and when the plaintiff failed to serve any party
within the statutory limitations period.  /7/ And the courts are
unlikely to have additional opportunities to rule on the issue, since
the situation that gave rise to this case is unlikely to recur.  Since
January 1987, the right-to-sue letter sent to Title VII plaintiff's by
the EEOC has stated in capital, underlined type:  "YOU MUST PROVIDE
THE NAME OF THE APPROPRIATE DEPARTMENT OR AGENCY HEAD, i.e., one
acting in an official capacity, named as defendant" (App., infra, 1a).
 The letter also warns that "(f)ailure to provide the name of the HEAD
OF THE DEPARTMENT OR AGENCY may result in the loss of any judicial
redress you may be entitled to" (ibid.).  See EEOC Dec. Letter,
"Notice of Right to File a Civil Action" (Jan. 9, 1987) (ibid.).  /8/
In these circumstances, review of the decision below plainly is not
warranted.

   b. Petitioner also argues that, even if relation back of his
amended complaint is improper under Rule 15(c), the courts below
should have considered whether equitable factors allowed the tolling
of Title VII's 30-day statute of limitations;  he urges the Court to
grant review to resolve an asserted conflict in the circuits on the
question whether the 30-day filing requirement is jurisdictional (Pet.
15-20).  That question, however, is not presented in this case.
Petitioner did not argue the equitable tolling issue before the
district court, and, though he briefed it at the appellate level,
petitioner acknowledges (Pet. 15) that the question was not addressed
by the court of appeals.  If this Court is to consider the nature of
the 30-day filing requirement, it plainly would be preferable to do so
in a case where the issue was the subject of a ruling by the court
below.

   In any event, this case is not a suitable vehicle in which to
address the nature of Title VII's statute of limitations because, even
if equitable tolling were available in Title VII litigation against
the federal government, there would be no equitable grounds here that
would excuse petitioner's failure to file a proper complaint within
the 30-day period.  Like Baldwin County Welcome Center, "(t)his is not
a case in which a claimant has received inadequate notice;  or where a
motion for appointment of counsel is pending and equity would justify
tolling the statutory period until the motion is acted upon;  or where
the court has led the plaintiff to believe that ()he had done
everything required of (him) * * * (or) where affirmative misconduct
on the part of a defendant lulled the plaintiff into inaction" (466
U.S. at 151 (citations omitted)).  Petitioner contends only (Pet. 4)
that the government failed specifically to inform him that he was
required to name the Secretary as a defendant in his Title VII action.
 But this hardly amounts to affirmative misconduct by the government.
Petitioner was not a layman who needed special instruction on the
mechanics of Title VII and who was laid low by a statutory
technicality;  he was represented by counsel throughout the
litigation.  Section 717(c) on its face specifies the proper
defendant, and there was no excuse for the failure by petitioner and
his attorney to comply with that explicit requirement.  Since
petitioner thus could not benefit from a ruling that equitable tolling
is allowed under Section 717(c), further review of his claim would be
inappropriate.

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

   CHARLES FRIED

      Solicitor General

   FEBRUARY 1988

   /1/ Judge Brown dissented (Pet. App. 11A-17A), reasoning that
"(w)hether the Air Force or some functionary in the office of the
Secretary is served, the same people at the Department of the Air
Force will process the summons, the same Air Force representative will
appear in court, and the same entity will shoulder the burden of loss
if (petitioner) prevails" (id. at 15A).

   /2/ Petitioner does not challenge the holding below that only the
head of the plaintiff's agency is a proper defendant in a suit under
Section 717(c) of Title VII, as the lower courts have uniformly held.
See, e.g., McGuinness v. USPS, 744 F.2d 1318, 1322-1323 (7th Cir.
1984) (alternative holding);  Cooper v. USPS, 740 F.2d 714, 716 (9th
Cir. 1984), cert. denied, 471 U.S. 1022 (1985);  Canino v. EEOC, 707
F.2d 468, 472 (11th Cir. 1983);  Hall v. SBA, 695 F.2d 175, 180 (5th
Cir. 1983);  White v. GSA, 652 F.2d 913, 916 n.4 (9th Cir. 1981);
Newbold v. USPS, 614 F.2d 46, 47 (5th Cir.), cert. denied, 449 U.S.
878 (1980);  Davis v. Califano, 613 F.2d 957, 958 n.1 (D.C. Cir.
1979).  See also Morgan v. USPS, 798 F.2d 1162, 1165 n.3 (8th Cir.
1986), cert. denied, No. 86-5979 (Mar. 30, 1987) (Rehabilitation Act);
 Ellis v. USPS, 784 F.2d 835, 838 (7th Cir. 1986) (Age Discrimination
in Employment Act).  Indeed, Congress has not enacted a law permitting
agencies to be named as parties defendant in employment discrimination
suits, and it is "well established that federal agencies are not
subject to suit eo nomine unless so authorized by Congress in
"explicit language.'" Midwest Growers Cooperative Corp. v. Kirkemo,
533 F.2d 455, 465 (9th Cir. 1976) (citation omitted;  emphasis in
original).  See Blackmar v. Guerre, 342 U.S. 512, 515 (1952).

   /3/ Petitioner appears to suggest (Pet. 13) that the Secretary had
actual notice of the suit within the 30-day limitations period.  But
that simply is not so:  petitioner failed to serve anyone until April
30, 1985, 16 days after expiration of the statutory period, when he
served the Department of the Air Force.

   /4/ This holding is applicable here even if notice to the
Department may be deemed notice to the Secretary for purposes of Rule
15(c), a proposition which we do not concede, since the Department was
not served within the limitations period.  And as the court of appeals
correctly noted, "the mere fact that administrative proceedings
occurred cannot be construed as any kind of notice, whether 'formal'
or 'informal,' of a subsequent federal lawsuit" (Pet. App. 10A
(footnote omitted)).

   /5/ In fact, the Court in Schiavone cited a Title VII case that is
virtually identical to this one, in which the court of appeals held
that an amendment to a complaint could not relate back when no
defendant (let alone the proper one) had been served within the
statutory limitations period (slip op. 1 n.1, citing Cooper v. USPS,
740 F.2d 714, 716 (9th Cir. 1984), cert. denied, 471 U.S. 1022
(1985)).  The Schiavone Court also cited with approval Justice White's
observation, made in dissent from the denial of a petition for a writ
of certiorari in Cooper, that the contention of the plaintiff in that
case that notice to a federal agency should be imputed to the head of
the agency was "'somewhat weak * * * because, while the complaint was
filed within the requisite 30 days, no party was served with process
within that period.'" Slip op. 11 n.8 (quoting Cooper v. USPS, 471
U.S. 1022, 1025 n.3 (1985) (White, J., dissenting from the denial of
certiorari)).

   /6/ See Fed. R. Civ. P. 15(c) advisory committee notes (emphasis
added) (in the four district court cases giving rise to the 1966
amendment, "the government was put on notice of the claim within the
stated period -- in the particular instances, by means of the initial
delivery of process to a responsible government official").

   /7/ See Williams v. Army & Air Force Exchange Service, 830 F.2d 27
(3d Cir. 1987);  Koucky v. Department of the Navy, 820 F.2d 300, 302
(9th Cir. 1987);  Bell v. Veterans' Administration Hosp., 826 F.2d
357, 360 (5th Cir. 1987);  Blair v. USPS, 657 F. Supp. 524, 526 n.2
(S.D. Tex. 1987);  Stewart v. USPS, 649 F. Supp. 1531, 1534-1536
(S.D.N.Y. 1986);  Johnson v. USPS, 113 F.R.D. 73, 76-77 (D. Colo.
1986).  See also Romain v. Shear, 799 F.2d 1416 (9th Cir. 1986), cert.
denied, No. 86-1568 (May 18, 1987);  Cooper v. USPS, 740 F.2d 714, 716
(9th Cir. 1984), cert. denied, 471 U.S. 1022 (1985).  Petitioner
attempts (Pet. 13) to find support in Paulk v. Department of the Air
Force, 44 Fair Empl. Prac. Cas. (BNA) 1473, 1476 (7th Cir. 1987).  In
that case, however, the court allowed relation back of an amendment
where the 30-day Title VII limitations period had been extended to
permit a ruling on the plaintiffs' in forma pauperis petition, a
ruling that local rules required to be made prior to service.  See
ibid.  Petitioner does not claim that the holding of Paulk, which was
grounded on the peculiar facts of that case, conflicts with the
decision here.

   /8/ When a Title VII plaintiff elects to take his claim directly to
district court rather than to the EEOC after an adverse agency
decision (see 29 C.F.R. 1613.221(e)), the agency is now similarly
obligated to inform the plaintiff "that if you file a civil action,
you must name the appropriate Department or Agency head as the
defendant.  Failure to name the head of the Department or Agency may
result in the loss of any judicial redress you may be entitled to.
The head of the (insert official name of Department or Agency) is
(insert name and official title of Department or Agency Head)." EEOC,
Federal Sector Complaint Processing Manual MD-107 (Sept. 1, 1987)
(App., infra, 6a).

   APPENDIX