Jerrald M. Johnson v. United States Postal Service , 861 F.2d 1475 ( 1989 )

TACHA, Circuit Judge.

This appeal is from a grant of summary judgment in favor of defendant on the grounds of lack of jurisdiction. The issue on appeal is whether the federal rules allow the plaintiff to amend his complaint in order to correct a failure to name or serve the correct party defendant within the statutory limitations period. Because we hold that the federal rules do not so allow, we hold that the action should be dismissed for failure to state a claim.¹ We affirm.

I.

On December 30, 1983, the plaintiff, Mr. Johnson, was discharged from his position as a mail handler at the Denver Bulk Mail Center. The United States Postal Service cited his unauthorized absences from work as the reason for the dismissal. Mr. Johnson alleges, however, that the actual reason for the action was the permanent disability of his right foot.

Mr. Johnson pursued his administrative appeal through the available channels. On July 13, 1985, he received from the Equal Employment Opportunity Commission (EEOC) a letter informing him that he had thirty days from the receipt of the letter to file a civil action in federal district court. On July 18, 1985, Mr. Johnson filed with the district court a motion to proceed in forma pauperis and for appointment of counsel. Four days later the plaintiff was granted his motion to proceed in forma pauperis but was denied his motion for appointment of counsel. Johnson v. United States Postal Serv., 113 F.R.D. 73, 74 (D.Colo.1986).

On August 12, 1985, Mr. Johnson timely filed his complaint under Title VII of the Civil Rights Act of 1964, naming as defendants the United States Postal Service and “The Mailhandlers Local 321.” The district court subsequently dismissed Mr. Johnson’s claim against the union. Id. That dismissal is not appealed. Because Mr. Johnson was proceeding in forma pauperis, the U.S. Marshal was ordered by the court to serve the summons and complaint. The U.S. Marshal served the U.S. Postal Service by certified mail, the summons and complaint being received on August 16, 1985. No service was made upon the United States Attorney for the federal district or upon the Attorney General of the United States, as required by Fed.R.Civ.P. 4(d)(5) and Fed.R.Civ.P. 4(d)(4).

On January 24, 1986, the district court issued an order to show cause why service of process was still incomplete. Mr. Johnson, now represented by counsel, showed sufficient cause for failing to have perfected service within the 120-day time limit of Fed.R.Civ.P. 4(j), and the court granted the plaintiff thirty days in which to perfect service. Johnson, 113 F.R.D. at 74. The plaintiff then served the U.S. Attorney, the U.S. Postal Service, and the Attorney General. Mr. Johnson also filed a second amended complaint alleging discrimination in employment on the basis of a physical handicap.

The U.S. Postal Service moved to dismiss the action for lack of subject matter jurisdiction, failure of capacity of defendant to be sued, insufficiency of service, and inability to substitute the proper defendant. The. district court held that, because the plaintiff had not served or named the correct party defendant, and was unable under the federal rules to amend his complaint to name the proper party, the action should be dismissed for lack of subject matter jurisdiction. Id. Mr. Johnson appeals.

II.

When reviewing a grant of summary judgment, we must ordinarily determine whether any genuine issue of material fact remains and, if not, whether the district court correctly applied the law. Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986). Here, however, the grant of summary judgment was based solely upon compliance or noncompliance with the federal rules of civil procedure and there were no material factual disputes. The judgment turns entirely upon legal issues. We therefore employ a de novo standard of review. Carey v. United States Postal Serv., 812 F.2d 621, 623 (10th Cir.1987).

The plaintiff brought this action, in his initial complaint, under section 706 of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-5,² and, in his second amended complaint, under sections 504 and 505 of the Rehabilitation Act of 1973 as amended, 29 U.S.C §§ 794, 794a. Employment discrimination actions filed by employees of the U.S. Postal Service under Title VII are controlled by 42 U.S.C. § 2000e-16(c). This statute sets a thirty-day limitations period for filing claims and establishes that, in such civil actions, “the head of the department, agency, or unit, as appropriate, shall be the defendant.” U.S.C. § 2000e-16(c). 42

In its present form, the Rehabilitation Act of 1973 does provide for a private cause of action against the federal government for employment discrimination based on handicap. We agree, however, with the Ninth Circuit that under the Rehabilitation Act, “section 501 is the exclusive remedy for discrimination in employment by the Postal Service on the basis of handicap.” Boyd v. United States Postal Serv., 752 F.2d 410, 413 (9th Cir.1985). Section 501— not section 504, under which the plaintiff has brought this action — provides for a private cause of action for federal employees. “ ‘[I]t is unlikely that Congress, having specifically addressed employment of the handicapped by federal agencies (as distinct from employment by recipients, themselves nonfederal, of federal money) in section 501, would have done so again a few sections later in section 504.’ ” Id. (quoting McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321 (7th Cir.1984)).

Moreover, section 505(a), 29 U.S.C. § 794a(a), provides the lens that makes section 501, 29 U.S.C. § 791, clear procedurally.³ Section 505(a)(1) provides that an action brought under section 501 operates under the procedural constraints of Title VII of the Civil Rights Act of 1964. 29 U.S.C. § 794a(a)(l). This means that such actions are subject to 42 U.S.C. § 2000e-16(c)’s requirement of naming “the head of the department, agency, or unit” as the defendant. 42 U.S.C. § 2000e-16(c). If Mr. Johnson had brought this action under section 501, he would not have escaped the procedural constraints of Title VII. We hold, furthermore, that only section 501 provides a private cause of action for federal employees bringing an action alleging employment discrimination based on handicap.⁴

III.

Mr. Johnson, therefore, must meet the clear statutory requirements of 42 U.S. C. § 2000e-16(c). His right of action is subject to the statute’s thirty-day limitations period, and he must proceed against the head of the U.S. Postal Service. Here, the proper defendant — the Postmaster General — was never named or served. The only possible avenue for the plaintiff, therefore, is the federal rules’ provision that, under certain situations, allows the relation back of amended pleadings, Fed.R. Civ.P. 15(c).

Rule 15(c) provides that:

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 a 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.

The delivery or mailing of process to the United States Attorney, or 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 requirement 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). The rule has a history of producing interpretative problems for the courts, see Cooper v. United States Postal Serv., 471 U.S. 1022, 1024, 105 S.Ct. 2034, 2035, 85 L.Ed.2d 316 (1985) (White, J., dissenting from denial of certiorari) (“the Courts of Appeals have not taken a consistent approach to this provision”), and for that reason the Supreme Court recently undertook a resolution of those problems, see Schiavone v. Fortune, 477 U.S. 21, 22, 106 S.Ct. 2379, 2381, 91 L.Ed.2d 18 (1986) (noting certiorari had been granted to resolve “apparent conflict among the Courts of Appeals”).

In Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), the United States Supreme Court attempted to clarify “Rule 15(c) of the Federal Rules of Civil Procedure and its application to a less-than-precise denomination of a defendant in complaints filed in federal court near the expiration of the period of limitations.” Id. at 22, 106 S.Ct. at 2381. The Schiavone Court stated that, under rule 15(c),

[ Relation back is dependent upon four factors, all of which must be satisfied: (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 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. There is no dispute that Mr. Johnson met the first element of this test. Our analysis therefore focuses upon the second, third, and fourth elements.

The plaintiffs, in Schiavone, timely filed complaints in federal district court alleging that they had been libeled in a cover story of Fortune magazine and naming Fortune as the defendant. Id. at 22-23, 106 S.Ct. at 2381. “ ‘Fortune,’ however, is only a trademark and the name of an internal division of Time, Incorporated....” Id. at 23, 106 S.Ct. at 2381. After the applicable statute of limitations for filing had passed, but well within the permissible period for service of process, the plaintiffs attempted to serve Time, Incorporated’s registered agent. Id. at 23, 25, 106 S.Ct. at 2381, 2382. The agent refused that service. Id. at 23, 106 S.Ct. at 2381. The plaintiffs then amended their complaints to name “Fortune, also known as Time, Incorporated” as the defendant, and served Time, Incorporated by mail. Id.

In Schiavone, the Court held that the appellate court had correctly affirmed the district court’s dismissal of the complaints. Id. at 32, 106 S.Ct. at 2386. Any notice that Time, Incorporated had received of the complaint had come after the end of the limitations period. Therefore, the fourth element of the rule 15(c) test had not been met. See id. at 30, 106 S.Ct. at 2384. This result was not altered by the fact that the initial service was mailed one day after the statute of limitations had run; that the initial complaint described Fortune as “a foreign corporation having its principal offices at Time and Life Building, Sixth Avenue and 50th Street, New York, New York 10020”; that Fortune was an internal division of Time, Incorporated; that the initial service was mailed to Time, Incorporated’s registered agent; or that the initial service, before being refused, was forwarded to Time, Incorporated’s law department with a cover letter indicating that the “papers were for Time, Incorporated as publisher of Fortune.” Id. at 23, 30, 106 S.Ct. at 2381, 2384; id. at 34, 106 S.Ct. at 2387 (Stevens, J., dissenting). The Court remained firm in the conviction that the “plain language” of the rule had not been met. Id. at 30, 106 S.Ct. at 2384.

The Schiavone Court also addressed rule 15(c)’s requirement that its provisions be met “within the period provided by law for commencing the action against [the party to be brought in].” The Court pointed out that rule 3, with its clear statement that “[a] civil action is commenced by filing a complaint with the court,” Fed.R.Civ.P. 3, governs the “commencement” of an action under the federal rules. Schiavone, 477 U.S. at 30, 106 S.Ct. at 2384. Thus, although rule 4(j) allows 120 days from the filing of a complaint for service of process, the requirements of rule 15(c) must be met by the end of the limitations period for filing a complaint; the “plain meaning of the language” of rule 15(c) is not to be changed 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.” Id.

Here, Mr. Johnson timely filed his complaint on the day that the limitations period expired. Rule 4(j) then allowed him 120 days from that point to perfect service. Because Mr. Johnson was proceeding in forma pauperis, the U.S. Marshal was directed to perfect service. The U.S. Marshal, however, served only the named defendant — the U.S. Postal Service — and not the Attorney General and the U.S. Attorney, or his or her designee, as required by rule 4. Fed.R.Civ.P. 4(d)(5); id. 4(d)(4). The district court, however, allowed Mr. Johnson to correct these service problems. See Johnson, 113 F.R.D. at 74.

In its current form, rule 15 addresses the issue of relation back based on service of the Attorney General or the U.S. Attorney in a suit against a government agency or official. That issue was incorporated into the rule in 1966 when rule 15 was amended in response to critical commentary, e.g., Byse, Suing the “Wrong” Defendant in Judicial Review of Federal Administrative Action: Proposals for Reform, 77 Harv.L.Rev. 40 (1963), and the rule was specifically amended to address problems in suits against government agencies or officials. That section of rule 15(c) now provides that:

The delivery or mailing of process to the United States Attorney, or 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 requirement[s] of [notice without prejudice and of knowledge of mistake in original complaint] 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). Rule 15(c) still instructs us, however, that these requirements must be fulfilled within the limitations period for commencing an action.⁵

Mr. Johnson failed to meet the plain language of rule 15(c)’s clear, reformed requirements. Although the U.S. Marshal failed to perfect service under rule 4(d), the court allowed those problems to be corrected. Mr. Johnson’s problems arise not from inadequate service, but from an inadequate complaint. Even if the U.S. Marshal had correctly followed rule 4(d) at the time of Mr. Johnson’s filing and had served the Attorney General or the U.S. Attorney, the above reformed provisions of rule 15(c) would not have been met unless that service had been made on the same day as Mr. Johnson’s filing. Yet, under rule 4, the U.S. Marshal had 120 days in which to perfect service. In the face of such facts, there is no reason to lay at the U.S. Marshal’s feet the blame for a mistake entirely precipitated by the inadequacy of the plaintiff’s complaint.

IV.

The plaintiff contends on appeal that the district court erred in not tolling the thirty-day limitations period based on equitable considerations. This circuit does consider that “the thirty-day time limitation of section 2000e-16(c) is not jurisdictional and may be subject to equitable tolling in appropriate cases.” Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir.1984). After consideration of the present facts and our circuit’s case law, we conclude, however, that this is not an appropriate case for equitable tolling.

The Martinez court noted that:

This circuit’s decisions have indicated that the time limits contained in Title VII will be tolled only where the circumstances of the case rise to a level of “active deception” sufficient to invoke the powers of equity. Cottrell v. Newspaper Agency Corp., 590 F.2d 836, 838-39 (10th Cir.1979). For instance, equitable tolling may be appropriate where a plaintiff has been “lulled into inaction by her past employer, state or federal agencies, or the courts.” Carlile v. South Routt School District RE 3-J, 652 F.2d 981, 986 (10th Cir.1981); see Gonzalez-Aller Balseyro [v. GTE Lenkurt, Inc.], 702 F.2d [857] at 859 [(10th Cir.1983)]. Likewise, if a plaintiff is “actively misled,” or “has in some extraordinary way been prevented from asserting his or her rights,” we will permit tolling of the limitations period. Wilkerson v. Siegfried Insurance Agency, Inc., 683 F.2d 344, 348 (10th Cir.1982); see also Cottrell, 590 F.2d at 838.

Id. Thus, in this circuit, a Title VII time limit will be tolled only if there has been “active deception.” Mr. Johnson has not been “actively misled” here and we also conclude that he was not “lulled into inaction” in any way that rises to the active deception standard of our circuit’s case law.

In Carlile v. South Routt School Dist. RE 3-J, 652 F.2d 981 (10th Cir.1981), the district court told the plaintiff explicitly that her action would be considered commenced as of the time of her filing a motion to proceed in forma pauperis, a statement subsequently relied upon by her appointed counsel. Id. at 983. This court felt obliged to acquiesce in the district court’s unilateral extension of the limitations period. Id. at 986. We note that in spite of its frequent citation as a case setting forth this circuit’s principle of equitable tolling, Carlile itself stated that it was compelled solely by the district court’s action and that “[i]n so doing we limit our holding specially to the particular facts and circumstances above related.” Id.

In Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857 (10th Cir.1983), the district court clerk unambiguously told the plaintiff that the filing of his right-to-sue letter would toll the Title VII limitations period until the plaintiff had had sufficient opportunity to obtain counsel. Id. at 859. The plaintiff, having never successfully obtained counsel and thus proceeding pro se, relied upon the clerk’s statement. Id. This court therefore determined that equitable tolling was applicable to the circumstances of that case. Id.

In Martinez, the plaintiff received a letter from the EEOC informing him that he had the right to bring suit within thirty days of his receipt of the letter. 738 F.2d at 1111. The letter also discussed the plaintiff’s “right to request reopening and reconsideration by the EEOC.” Id. The plaintiff followed the latter course of action and thereby missed his chance to bring suit, for the letter had failed “to make clear that the right to sue and the right to request reopening are distinct, independent rights, and that an election to pursue only the latter completely waives the former.” Id. This court concluded that equitable tolling was appropriate, for “Martinez was in fact misled and lulled into inaction by the EEOC.” Id. at 1112.

In contrast to these cases, Mr. Johnson was not actively misled or lulled into inaction. His failure to file an adequate complaint was not due to a false representation by any court, agency, or putative defendant. In short, “[although the propriety of equitable tolling must necessarily be determined on a case-by-case basis,” Gonzalez-Aller Balseyro, 702 F.2d at 859, the plaintiff’s case here does not merit equitable tolling of the limitations period.

Finally, the relation back of some amendments has been allowed previously under the so-called identity-of-interest exception. See Schiavone, 477 U.S. at 28 n. 7, 106 S.Ct. at 2384 n. 7 (listing circuit-level cases). The Supreme Court has summarized the exception, while only adopting it arguendo, by stating that “[t]imely filing of a complaint, and notice within the limitations period to the party named in the complaint, permits imputation of notice to a subsequently named and sufficiently related party.” Id. at 29, 106 S.Ct. at 2384. This circuit’s case law concerning the identity-of-interest exception has noted, however, that the post-1966 rule 15(c) is an explicit statement of the procedures and safeguards that make up this exception. See Travelers Indem. Co. v. United States ex rel. Construction Specialties Co., 382 F.2d 103, 106 (10th Cir.1967) (“The 1966 amendment simply clarifies, by explicitly stating, the permissive procedure and its appropriate safeguards which have existed under Rule 15(c) since its promulgation.”). Regardless of whether rule 15(c) has codified the doctrine of identity-of-interest, Mr. Johnson’s case fails, because he does not meet an essential requirement of both the rule and the doctrine: he has not given “notice within the limitations period.”

V.

In summary, Mr. Johnson’s attempt to amend his complaint falls short of the requirements clearly established by rule 15. We join those circuits which have held that Schiavone clearly controls on facts similar to this case.⁶ Discussing rule 15(c), the Supreme Court has stated:

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 any limitations period. And it is an arbitrariness imposed by the legislature and not by the judicial process.

Schiavone, 477 U.S. at 31, 106 S.Ct. at 2385.

The order of the district court is AFFIRMED.

1 . The district court held that the plaintiff was unable to amend his complaint to name the proper party, and that the action therefore should be dismissed for lack of subject matter jurisdiction. Johnson v. United States Postal Serv., 113 F.R.D. 73, 77 (D.Colo.1986). Here, the proper grounds for dismissal based on inability to amend a complaint naming an improper party is failure to state a claim upon which relief can be granted. We treat the dismissal by the district court as such a dismissal.

2 . Although the plaintiffs action perhaps is better characterized as having been brought under § 717 of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-16, see 42 U.S.C. § 2000e-16(c) (stating that federal employee who meets criteria of section "may file a civil action as provided in section 2000e-5 of this title"), the distinction is without consequence for the present case. Clearly, an employment discrimination action filed by a federal employee under Title VII must meet the procedural requirements of 42 U.S.C. § 2000e-16(c). The plaintiff, furthermore, was allowed to file a second amended complaint that more properly brought the action under the Rehabilitation Act of 1973.

3 . Section 505(a) provides that:

(a)(1) The remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), including the application of sections 706(f) through 706(k) (42 U.S.C. 2000e-5(f) through (k)), shall be available with respect to any complaint under section 791 of this title, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint. In fashioning an equitable or affirmative action remedy under such section, a court may take into account the reasonableness of the cost of any necessary work place accommodation, and the availability of alternatives therefor or other appropriate relief in order to achieve an equitable and appropriate remedy.

(2) The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.

29 U.S.C. § 794a(a).

4 . Although this holding puts us at odds with the Fifth and Sixth Circuits, the position of those circuits would render the same end result for this plaintiff. The Fifth and Sixth Circuits have held that both § 501 and § 504 provide for a private cause of action by federal employees for employment discrimination based on handicap. Smith v. United States Postal Serv., 742 F.2d 257, 260 (6th Cir.1984); Prewitt v. United States Postal Serv., 662 F.2d 292, 304 (5th Cir. Unit A Nov.1981). Those circuits, however, have held that Title VII procedural constraints are applicable to a plaintiff that does proceed with a federal employment handicap discrimination action under § 504. See Smith, 742 F.2d at 260, 262; Prewitt, 662 F.2d at 304. Following that procedural principle, such a plaintiff would be required to abide by all the requirements of 42 U.S.C. § 2000e-16(c), including its designation of the agency head or unit head as the proper defendant and its 30-day limitations period. These are the very requirements that prove fatal to Mr. Johnson’s case.

5 . To be sure, when the Attorney General and the U.S. Attorney were served as defendants under the plaintiff’s second amended complaint, that action, seen in the light of the post-1966 rule 15(c), met the second and third elements of the four-pronged Schiavone test: the elements of notice that is not prejudicial and of knowledge of mistake in the original complaint. See Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986). Rule 15(c) still requires, however, that those elements be met within the limitations period: the fourth element of the Schiavone test. Id.

6 . Mondy v. Secretary of the Army, 845 F.2d 1051, 1053 (D.C.Cir.1988); Williams v. Army & Air Force Exch. Serv., 830 F.2d 27, 29-30 (3d Cir.1987); Paulk v. Department of the Air Force, Chanute Air Force Base, 830 F.2d 79, 81 (7th Cir.1987); Gonzales v. Secretary of the Air Force, 824 F.2d 392, 394 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1245, 99 L.Ed.2d 443 (1988); Hymen v. Merit Sys. Protection Bd., 799 F.2d 1421, 1422 (9th Cir.1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987). Both Mondy and Paulk held that grounds existed for equitable tolling, and the plaintiffs in those cases therefore were allowed to amend their complaints. Mondy, 845 F.2d at 1054, 1057 (limitations period tolled during "marshal’s delay” of service; court speaks only of 30-day "deadline" and never mentions rule 4(j)’s 120-day service period); Paulk, 830 F.2d at 83 (limitations period tolled during pendency of in forma pauperis motion).