Minnie M. Honeycutt v. John E. Long, Major General Commander, Army and Air Force Exchange Service , 861 F.2d 1346 ( 1988 )

JERRE S. WILLIAMS, Circuit Judge:

Minnie E. Honeycutt instituted this employment discrimination suit against Major General John E. Long, in his role as Commander of the Army & Air Force Exchange Service (“AAFES”). The district court dismissed Honeycutt's suit for failure to name the proper party defendant and for insufficiency of process under Fed.R.Civ.P. 4(d)(4) and (5). We affirm.

I. Facts and Prior Proceedings

Honeycutt has been employed by the AAFES since October 23, 1967. On September 6, 1985, Honeycutt contacted an AAFES Equal Employment Opportunity counselor to complain that she had not been promoted because of her sex, age, and handicap. Honeycutt proceeded through the appropriate administrative channels, and on January 14, 1987, she received a final adverse decision from the AAFES. Honeycutt filed this suit on February 4, 1987 under Title VII, 29 U.S.C. § 2000e-16, the Rehabilitation Act, 29 U.S.C. § 791, and the Age Discrimination in Employment Act ("ADEA”), 29 U.S.C. § 633a, naming Long as the sole defendant. Honeycutt served process on Long on February 11, 1987.

On April 9, 1987, Long filed a motion to dismiss or, in the alternative, for summary judgment on the grounds that Long was not the proper party defendant and that service of process was insufficient under Fed.R.Civ.P. 4(d)(4) and (5).¹ Honeycutt responded to the motion by asserting she had sued the correct party and by requesting leave to amend her complaint to add the Secretary of Defense as the named defendant under Fed.R.Civ.P. 15(c). Honeycutt also proceeded to perfect process by serving the United States Attorney for the Northern District of Texas on June 2, 1987.

A memorandum order and final judgment were issued on July 23, 1987. The district court granted the Commander’s motion to dismiss or, in the alternative, for summary judgment and denied Honeycutt’s request to amend her complaint. This appeal followed.

II. The Proper Party Defendant

A government employee has thirty days from the receipt of the final agency ruling informing her of her rights to appeal by filing a Title VII employment discrimination action.² 42 U.S.C. § 2000e-16(c); Brown v. General Serv. Admin., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Bell v. Veterans Admin. Hosp., 826 F.2d 357, 360-61 (5th Cir.1987). In this case, Honeycutt had until February 13, 1987 to file her complaint against the proper defendant. She timely filed her complaint on February 4,1987; however, she mistakenly chose Long as the defendant.

Under Title VII and the Rehabilitation Act the proper defendant is “the head of the department, agency, or unit, as appropriate.” 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 794a(a)(l) (adopts Title VII procedures). The Supreme Court has also held that the ADEA is to be construed in accordance with Title VII. Lehman v. Nakshian, 453 U.S. 156, 168 n. 15, 101 S.Ct. 2698, 2705 n. 15, 69 L.Ed.2d 548 (1981) (“measures used to protect Federal employees [from age discrimination] would be substantially similar to those” in Title VII); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979) (stating the parallel provisions of the ADEA should be construed consistently with Title VII); see also Smith v. Office of Personnel Management, 778 F.2d 258, 262 (5th Cir.1985), cert. denied, 476 U.S. 1105, 106 S.Ct. 1949, 90 L.Ed.2d 358 (1986) (stating Title VII case law will be used to construe the ADEA). Thus, the appropriate defendant to be sued under the ADEA is the same person as under Title VII and the Rehabilitation Act.

Both Title VII and the ADEA specifically state that this law identifying the proper defendant applies to personnel actions affecting employees in military departments as defined in 5 U.S.C. § 102, and in executive agencies as defined by 5 U.S. C. § 105. See 42 U.S.C. § 2000e-16(a) and 29 U.S.C. § 633a(a). Military departments are defined as the Department of Army, the Department of Air Force, and the Department of Navy. 5 U.S.C. § 102. Aii executive agency means an executive department, a government corporation, and an independent establishment. 5 U.S.C. § 105. The Department of Defense is an executive department. 5 U.S.C. § 101. An independent establishment means an establishment in the executive branch which is not an executive department, military department, or part thereof. 5 U.S.C. § 104. The AAFES is a part of the Department of Defense.³ Thus, the AAFES by statutory definition is not an executive department, military department, executive agency, or independent establishment.

Clearly, the Commander of AAFES is then not the head of a “department, agency, or unit” so that he would be a proper defendant under the statute.⁴ A proper defendant in this case would be the head of the Department of Defense, the Secretary of Defense, since the Department of Defense is an executive department.⁵ Thus, Honeycutt incorrectly sued the wrong party.

III. Relation back under Fed.R. Civ.P. 15(c)

Honeycutt asserts the district court was incorrect in denying Honeycutt’s motion to amend her complaint to add the Secretary of Defense as the proper party. Under 15(c) of the Fed.R.Civ.P., this amendment would allow for relation back to the original filing date so that Honeycutt would be deemed to have filed timely against the Secretary.⁶ This Court is bound by Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), which sets out four requirements for relation back of an amended pleading that brings in a new party under Rule 15(c):

(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) the party must or should have known 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.

Id. at 29,106 S.Ct. at 2384. In order for an amended pleading to relate back, all four factors must be satisfied. It is not disputed that Honeycutt satisfies the first factor. It is the other three factors that are at issue on appeal.

The questions before us then are (1) whether the Secretary of Defense had sufficient notice of Honeycutt’s federal law suit so that no prejudice would result to the Secretary in maintaining a defense, (2) whether the Secretary knew or should have known that the action brought against Long would have been brought against him but for Honeycutt’s mistake in the complaint naming Long, and (3) whether the above two requirements were satisfied within the 30-day limitations period of 42 U.S.C. § 2000e-16(c). Thus, the focus is on notice within the limitations period.

In Schiavone, the Supreme Court did not decide the type of notice required to satisfy the set out requirements but it did decide proof of some notice was necessary. It also indicated the focus should not be on when notice is given, but when it is received. The court concluded that Rule 15(c) should be applied literally:

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.

Id. at 30, 106 S.Ct. at 2385.

This Court has applied the Schiavone factors in three recent decisions. Gonzales, supra; Brown v. Department of the Army, 854 F.2d 77 (5th Cir.1988); Lamb v. United States Postal Service, 852 F.2d 845 (5th Cir.1988). In these cases, we upheld the District Court’s ruling denying the plaintiff the benefit of Rule 15(c). In each case, it was clear that no government entity had any notice within the 30 day period.

Honeycutt’s situation is distinguishable since AAFES, a government entity, had actual notice within the statutory period. Nevertheless, relief must be denied because of the failure of any notice of any kind to the proper government defendant within the required time period. In Gonzales, this Court expressly left open whether some kind of informal notice to the proper defendant within the statutory period would be sufficient under 15(c). 824 F.2d at 396, n. 3. In Barkins v. International Inns Inc., 825 F.2d 905, 907 (5th Cir.1987), this Court said that Schiavone did not affect this Circuit’s precedent concerning what constitutes notice under 15(c), suggesting that as long as there is evidence of some kind of notice to the proper party, whether formal or informal, within the appropriate period, the Schiavone factors might be satisfied. Thus, Honey-cutt needed to prove some kind of notice to the Secretary of Defense that prevented prejudice. Otherwise she could not claim the benefit of rule 15(c).

Honeycutt argues that by serving process on Long on February 4, eight days before the statutory time period ran out, knowledge of the suit can be assumed to have reached, or at least can be imputed to, the Secretary of the Defense. The district court found it unconvincing that there was sufficient identity⁷ between the AAFES and the Department of Defense for purposes of service or for purposes of notice of the pending lawsuit. Based upon Schia-vone, we are compelled to agree. Honey-cutt failed to submit any evidence on the issue other than the fact Long was served.

First, we cannot conclude that service of Long within the statutory period resulted in actual notice to the Secretary of Defense. The lack of evidence compels the conclusion that notice did not make it through the ranks of the military in eight days, the amount of time remaining in the period from the day Long was served with process. The only evidence in the record reflects that there was no notice. Service was not even acknowledged in the AAFES office until February 11, 1987, which was only two days before the statutory period ended. It is highly unlikely that in two days the Secretary of Defense’s office became aware of the suit.

Honeycutt also failed to prove that notice should be imputed. The District Court correctly held a lack of “identity of interest” between the two defendants. The AAFES is a subdivision of the Department of Defense, but it is located in a different city and does not share counsel with the Department.⁸

Honeycutt’s case is distinguishable from prior cases in which we have found enough relation between the original party sued and the one sought to be added to infer sufficient notice. In Hendrix v. Memorial Hospital of Galveston County, 776 F.2d 1255, 1257-58 (5th Cir.1985), the evidence showed that the original party and the party sought to be added used the same mailing address, same counsel, and were located in the same complex. This Court was willing to infer notice. Honeycutt’s facts are far removed from such focussed service.

In Marks v. Prattco, Inc., 607 F.2d 1153, 1156 (5th Cir.1979), we allowed relation back where counsel for the party sought to be added had participated in the original hearing and in its answer to the original complaint had made it clear that it was aware of the law suit within the relevant period. In the case before us, Secretary of Defense’s counsel did not participate in any way.

In Montalvo v. Tower Life Building, 426 F.2d 1135, 1146-47 (5th Cir.1970), plaintiffs named the Tower Life Building in the original complaint and sought to amend to name the Tower Life Insurance Company. We allowed relation back, holding that the allegation of the name of the party was simply a misnomer. We found relevant the fact that it was through the general counsel of the Company that the Building answered. Also, the Company was officed in the Building and kept the records of the Building. Id. at 1146.

Finally, in Barkins, we also allowed relation back. The original party and the party sought to be added shared counsel who had represented the employer at the EEOC hearing and had received a copy of the EEOC’s right to sue letter. 825 F.2d at 907. Honeycutt’s situation does not fall into any of these fact patterns.

It is the utmost importance to emphasize that a person doubtful about whom to sue in the federal government has a safe and effective option under Rule 15(c). Realizing that the appropriate party defendant can be confusing when suing the government, Congress amended Fed.R.Civ.P. 15(c) in 1966 to provide specific guidance:

The delivery or mailing of process to the United States Attorney, or the United States Attorney’s designee, or the Attorney General of the United States, 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.

Thus, Honeycutt could have preserved her right to use Rule 15(c) simply by serving the United States Attorney within the 30 day period. Service upon the United States Attorney within the statutory limitations period allows relation back under Rule 15(c). Edwards v. United States, 755 F.2d 1155, 1156 (5th Cir.1985). If she had followed the clear language of 15(c), she would have achieved adequate service to allow later amendment.⁹

In addition, we must recognize that the concerns with allowing relation back when the government is the defendant are more stringent than in private civil cases. The Federal Government is clothed with the cloak of sovereign immunity. 453 U.S. at 161, 101 S.Ct. at 2701. Waivers of sovereign immunity are to be strictly construed. Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986). Title VII allows for suits against the Government; thus, it must be strictly construed.

IV. Equitable Tolling and the ADEA Statute of Limitations

Honeycutt raises for the first time on this appeal the claim that the district court erred in applying the 30 day statute of limitations to her ADEA claim and in not addressing equitable considerations before dismissing the suit based on the statute of limitations.

An issue raised for the first time on appeal may be considered by this Court where exceptional circumstances are present, provoking a miscarriage of justice. Ayers v. Western Line Consolidated School District, 691 F.2d 766, 768 (5th Cir.1982). Exceptional circumstances include 1) when a pure question of law is involved and a refusal to consider it would result in a miscarriage of justice, Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1144-45 (5th Cir.1981); and 2) where the interests of substantial justice are at stake, Edwards v. Sears, Roebuck, and Company, 512 F.2d 276, 286 (5th Cir.1975). Honeycutt has failed to show exceptional circumstances in light of the established law under Schiavone and the protections to proper service procedure in Rule 15(c). Honeycutt’s failure to raise the application of the statute of limitations and the equitable claim of relief from the application of the statute at the District Court level precludes the consideration of either one as grounds for reversal.

V. Conclusion

We hold that appellant’s suit was properly dismissed for failure to designate the Secretary of Defense as the proper defendant or to substitute for that failure service on the United States Attorney or the Attorney General under Fed.R.Civ.P. 15(c). Further, we hold that the District Court was correct in denying Honeycutt’s motion to amend her petition under the same rule. We must affirm.

AFFIRMED.

1 . Rule 4(d)(4) and (5) provide a uniform and comprehensive method of service of the federal government:

(4) Upon the United States, by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court and by sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to such officer or agency.

(5) Upon an officer or agency of the United States, by serving the United States and by sending a copy of the summons and of the complaint by registered or certified mail to such officer or agency. If the agency is a corporation the copy shall be delivered as provided in paragraph (3) of this subdivision of this rule.

2 . Honeycutt could have filed a complaint with the Equal Employment Opportunity Commission ("EEOC”) and awaited the EEOC’s decision before filing a lawsuit. 42 U.S.C. § 2000e-16(c). She elected instead to bypass the EEOC and institute this action.

3 . The AAFES is a Nonappropriated Fund Instrumentality (“NAFI”) of the United States operating under the Department of Defense. It is directed by a board of directors composed of Army and Air Force members. In the Department of Defense Directive 1401.1-M, Personnel Policy Manual for NAFI’s, NAFI employees are stated to be federal employees within the Department of Defense.

4 . Unit as set out in 42 U.S.C. § 2000e-16(c) is a unit of the District of Columbia or the federal legislative and judicial branches having positions in the competitive service. AAFES, therefore, cannot be a unit as NAFI employees are not civil servants.

5 . Also, since the AAFES is run jointly by the Department of the Air Force and the Department of the Army, Honeycutt could properly have sued the Secretary of the Air Force and the Secretary of the Army jointly. See Gonzales v. Secretary of the Air Force, 824 F.2d 392 (5th Cir.1987), cert. denied, — U.S.-, 108 S.Ct. 1245, 99 L.Ed.2d 443 (1988).

6 . Fed.R.Civ.P. 15(c) reads as follows:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment that party (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, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

7 . Generally "identity of interest” means the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of litigation to the other. See Kirk v. Cronvich, 629 F.2d 404, 408 n. 4 (5th Cir.1980) (the court found a sufficient identity between the sheriff and the sheriff department to impute notice).

8 . It is noteworthy that only the General Counsel of the Department of Defense may accept service of process for the Secretary. 32 C.F.R. § 257.5(a).

9 . The earlier holdings of our Circuit in Hendrix and in Kirk that the period for notice includes a reasonable time to perfect service were explicitly rejected in Schiavone. 477 U.S. at 30, 106 S.Ct. at 2385. Thus, the fact that service was perfected on June 2 by serving the United States Attorney does not help Honeycutt here. She had to accomplish it in the 30 day period to be protected under 15(c).