Acosta-Vega v. Brown ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-1769



                                 LUIS A. ACOSTA-VEGA,



                                Plaintiff, Appellant,



                                          v.



                                     JESSE BROWN,

                        SECRETARY OF VETERANS AFFAIRS, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                   [Hon. Salvador E. Casellas, U.S. District Judge]
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                                 ____________________



                                        Before



                                 Cyr, Stahl and Lynch,

                                   Circuit Judges.
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            Victoria A. Ferrer on brief for appellant.
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            Guillermo Gil,  United States Attorney,  and Isabel Munoz  Acosta,
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        Assistant United States Attorney, on brief for appellees.





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                                  December 20, 1996

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                      Per  Curiam.   Plaintiff-appellant Luis  A. Acosta-
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            Vega  appeals  from  the  district  court's   order  granting



            defendants-appellees' motion to  dismiss Acosta's  employment



            discrimination  claim against  his  federal  employer,  Jesse



            Brown  as Secretary  of  the Department  of Veterans  Affairs



            ("the  Department").    The   district  court  dismissed  the



            complaint  on the ground  that it   was untimely filed.   The



            correctness  of  that  determination  is the  sole  issue  on



            appeal.1
1



                 To  be  timely, an  employment  discrimination complaint



            against  the federal  government under  Title VII,  42 U.S.C.



             2000e-1 et seq.,  must be filed "[w]ithin 90 days of receipt
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            of notice of  final action taken by a department .  . . ." 42



            U.S.C.   2000e-16(c).    Timely   filing  of  the  complaint,



            however, is  not a  jurisdictional prerequisite to  suit. See
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            Irwin  v. Department of Veterans  Affairs, 498 U.S. 89, 95-96
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            (1990);  Nunnally v. MacCausland,  996 F.2d 1,  2-3 (1st Cir.
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            1993); 3 Lex  K. Larson, Employment  Discrimination  64.07[5]
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            (2d ed. 1996).



                 Defendants moved for dismissal  pursuant to both Fed. R.



            Civ.  P. 12(b)(1) and 12(b)(6).   Although the  court did not



            make  explicit the  basis for the  dismissal, it  is implicit



            from the  opinion that the  dismissal was premised  upon Rule






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               1  Acosta appeals only from the dismissal of the Title VII
1

            claim against Secretary Brown.



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            12(b)(1).    The  court  considered matters  outside  of  the



            pleadings and resolved disputed factual matters,  placing the



            burden  on Acosta  to  "conclusively counteract"  defendants'



            evidence  of untimely  filing. See 5A  Charles A.  Wright and
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            Arthur R.  Miller, Federal  Practice and Procedure   1350 (2d
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            ed.  1990)  (explaining  that  district  court  may  consider



            affidavits  and other  matters  outside of  the pleadings  to



            resolve  a jurisdictional  challenge and  that the  burden of



            proof on a  Rule 12(b)(1)  motion is on  the party  asserting



            jurisdiction).



                 Because  compliance  with  the  filing  requirements  of



             2000e-16(c)  is  not   a  jurisdictional  prerequisite,  the



            dismissal of  Acosta's complaint  for untimely  filing should



            have  been  premised  upon  Rule 12(b)(6)  rather  than  Rule



            12(b)(1).   See Supermail Cargo,  Inc. v.  United States,  68
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            F.3d 1204,  1206 n.2  (9th Cir.  1995); Espinoza v.  Missouri
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            Pacific  R.R. Co., 754 F.2d  1247, 1248 n.1  (5th Cir. 1985);
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            Gordon  v. National  Youth Work  Alliance, 675 F.2d  356, 360
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            (D.C. Cir. 1982).   This  court is "'not  bound by the  label



            employed  below'" and  may treat  the  dismissal as  one made



            pursuant to Rule  12(b)(6). Estate of Soler  v. Rodriguez, 63
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            F.3d 45, 47 n.1 (1st Cir. 1995) (citation omitted).



                 For the foregoing reasons, we treat the district court's



            dismissal  as  one  made  pursuant  to  Rule  12(b)(6).   The



            district court's express  reliance upon materials  outside of







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            the pleadings, however, converted  the motion to dismiss into



            a motion for summary judgment. See Fed. R. Civ. P. 12(c); see
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            also Garita Hotel Ltd. v. Ponce Federal Bank, 958 F.2d 15, 19
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            (1st Cir. 1992)  ("the test [for  conversion] is not  whether



            supplementary  materials were  filed, but  whether  the court



            actually took cognizance  of them .  . .  in arriving at  its



            decision").  Accordingly,  we review the dismissal de novo to
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            determine  whether  all  "competent  evidence  and reasonable



            inferences," viewed  in the  light most favorable  to Acosta,



            show  that there is no genuine issue as to any material fact.



            Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir. 1996).
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            As the movants on  the motion to dismiss, defendants  had the



            burden of proving that no material facts were in dispute.



                 The  pleadings  and  supplemental  materials  before the



            court when it ruled on defendants' motion to  dismiss, viewed



            in the light most favorable to Acosta, create a genuine issue



            regarding  a material  fact:  the date  that Acosta  received



            notice  of  the  Department's  final  action  on  his  claim.



            Defendants  conceded that  the  certified  letter  mailed  to



            Acosta's  attorney  on  November   24,  1993  was  improperly



            addressed.   Therefore,  the  common law  presumption that  a



            properly  addressed  and mailed  letter  is  received in  due
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            course  does  not apply  here.   Nor  does the  signed return



            receipt remove all genuine  issues of material fact regarding



            the  date  of receipt.   One  "Jose  Vazquez" signed  for the







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            letter, but Vazquez had no connection to Acosta's attorney or



            her firm and  was not  authorized to receive  mail for  them,



            the firm's administrator stated in an "affirmation."



                 In  granting defendants' motion to dismiss, the district



            court  found   that  Acosta   had  failed  to   "conclusively



            counteract defendants'  evidence."   On a motion  for summary



            judgment, however,  the nonmovant does not  have that burden.



            It  is sufficient for the nonmovant to merely raise a genuine



            issue of material fact.



                 The  dismissal  of  Acosta's  Title  VII  claim  against



            defendant Jesse Brown is vacated and the case is remanded for
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            further proceedings. See Loc. R. 27.1.
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