ELIJAH DAVIS, PETITIONER V. UNITED STATES POSTAL SERVICE

   No. 90-154

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A15-A19) and the
opinion of the district court (Pet. App. D24-D25) are unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 6,
1990.  A petition for rehearing was denied on March 20, 1990 (Pet.
App. B20-B23).  On June 26, 1990, Justice White extended the time for
filing a petition for a writ of certiorari until July 18, 1990 (Pet.
App. C23), and the petition was filed on that date.  The jurisdiction
of this Court rests on 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether petitioner's failure either to name the proper defendant
under 42 U.S.C. 2000e-16(c), or to provide sufficient notice to the
proper defendant for purposes of relation back under Fed. R. Civ. P.
15(c), warranted dismissal of his complaint alleging discrimination in
employment.

                               STATEMENT

   1. Petitioner was a postal carrier for the United States Postal
Service at the Dallas, Texas, post office from January 19, 1985, until
his dismissal on March 21, 1986.  In the first eleven months of his
tenure as a postal carrier, he received one citation for
unsatisfactory work performance, and two suspensions for the same
reason.  Pet. App. A16-A17.  After these disciplinary actions,
petitioner was dismissed for submitting a falsified document in an
official investigation.  EEOC Dec. 3 n.2.  /1/

   Petitioner's claim that the second suspension was discriminatory
was rejected by the Postal Service after full administrative review,
and by the Equal Employment Opportunity Commission on appeal from the
agency decision.  EEOC Dec. 1, 6.  /2/ Petitioner received notice of
the final EEOC action on February 17, 1988.  Pet. App. A17;  Pet. 5-6.
 /3/

   On March 15, 1988, petitioner submitted to the district court an
application to proceed in forma pauperis in this case.  With that
application, he lodged a complaint seeking $3 million in compensatory
damages and identifying only the "United States Postal Service" as the
defendant.  Instead of filing the complaint, the clerk transmitted it
directly to a magistrate with the request for leave to proceed in
forma pauperis.  That request was denied on March 21, 1988.  On May 5,
1988, the clerk received petitioner's filing fee and his complaint was
filed.  Def't Mot. To Dis. 3-4;  see Pet. 6.  The Postal Service was
served on July 7, 1988, and the United States Attorney was served on
September 2, 1988.  Oct. 31, 1988, Stipulation.  /4/

   2. The district court granted summary judgment to the Postal
Service and dismissed the complaint with prejudice on December 16,
1988.  Pet. App. D24-D25.  As the district court explained in denying
petitioner's motion for reconsideration, the head of the U.S. Postal
Service -- the Postmaster General -- was the only proper defendant in
petitioner's Title VII suit, but petitioner instead named as defendant
only the Postal Service itself.  App., infra, 2a-3a.  The court
recognized that an amended complaint naming the proper defendant could
"relate back" to the date of the original complaint under Fed. R. Civ.
P. 15(c).  But in light of Schiavone v. Fortune, 477 U.S. 21, 29
(1986), the court concluded that there could be no relation back here,
because there was no service of the complaint on the U.S. Attorney or
the Postmaster General within the 30-day period established by 42
U.S.C. 2000e-16(c).  App., infra, 3a.  /5/

   The Fifth Circuit affirmed, using the same analysis as the district
court.  It noted that petitioner failed to name and serve the agency
head within 30 days of his receipt of the final EEOC decision on
February 17, 1988, and could not avail himself of the relation back
doctrine because the proper party defendant did not receive actual or
constructive notice until July of 1988, well after the expiration of
the 30-day period.  Pet. App. A17-A19.

                               ARGUMENT

   1. The United States, as sovereign, is immune from suit save as it
consents to be sued, and such waivers of sovereign immunity are to be
strictly construed.  Lehman v. Nakshian, 453 U.S. 156, 160-161 (1981).
 By providing remedies against the government for violations of Title
VII, Congress has provided the necessary consent (Brown v. GSA, 425
U.S. 820, 833 (1976)), but the terms of that consent strictly confine
the court's jurisdiction to entertain the suit.  Lehman, 453 U.S. at
160.  For these reasons, the court below correctly concluded that the
timely filing of a civil action that satisfied the requirements of 42
U.S.C. 2000e-16(c), including the naming of the proper defendant, is a
jurisdictional prerequisite to district court consideration of a
government employee's Title VII complaint.  Hancock v. Egger, 848 F.2d
87 (6th Cir. 1988);  Honeycutt v. Long, 861 F.2d 1346, 1350-1351 (5th
Cir. 1988).

   Section 2000e-16(c) expressly requires that in the civil action
authorized by that Section, "the head of the department, agency, or
unit, as appropriate, shall be the defendant." This requirement was
highlighted in the notice of the right to sue received by petitioner
(see note 3, supra), which emphasized that "(i)f you file a civil
action, YOU MUST NAME THE APPROPRIATE OFFICIAL AGENCY HEAD OR
DEPARTMENT HEAD AS THE DEFENDANT.  * * * Failure to provide the NAME
OR OFFICIAL TITLE of the agency head or, where appropriate, the
department head, may result in the dismissal of your case." EEOC Dec.
R-1.  Despite this clear instruction, petitioner nevertheless failed
to name the Postmaster General in his original complaint.  Instead, he
named only the U.S. Postal Service.

   As both the district court and the court of appeals properly held,
petitioner cannot cure this defect by amending the complaint and
invoking the "relation back" provision of Fed. R. Civ. P. 15(c).
Under Rule 15(c), an amendment changing a party against whom a claim
is asserted relates back to the date the original complaint was filed
only if a plaintiff has given adequate notice to the proper defendant
within the applicable time period.  Schiavone v. Fortune, 477 U.S. 21,
29 (1986).  Petitioner has failed to satisfy that requirement.  Since
petitioner received the final EEOC decision denying his claim of
discrimination on February 17, 1988, his time to perfect his claim for
judicial relief by filing his complaint and giving actual or
constructive notice to the Postmaster General expired on March 18,
1988.  Even assuming petitioner's complaint was timely filed, /6/ it
is clear that the Postmaster General did not receive timely notice of
it.  There was no service on any postal official until July 7, 1988.
/7/ Service on the U.S. Attorney -- which provides constructive notice
to the Postmaster General (Fed. R. Civ. P. 15(c)) -- was not effected
until September 2, 1988.  App. infra, 3a.  Petitioner is thus plainly
in error in suggesting (Pet. 10), without explanation, that "holding
that (the March 15 application for in forma pauperis status) satisfied
the 30-day limitations period would not seem to offend Schiavone v.
Fortune (supra)."

   2. Petitioner correctly observes (Pet. 9-10) that the courts of
appeals are divided over the question whether the requirement of 42
U.S.C. 2000e-16(c) that discrimination complaints against the federal
government be filed within thirty days of receipt of notice of final
administrative action is a statute of limitations subject to equitable
tolling or a jurisdictional requirement that cannot be waived or
enlarged on the basis of equitable considerations.  That question is
presented in Irwin v. Veterans Administration, cert. granted, 110 S.
Ct. 1109 (1990).  There is no need for this Court to hold this case
pending the decision in Irwin.  The decision below turned on
petitioner's failure to name the proper defendant, and the application
of Schiavone to his claim of a right to "relation back" under Rule
15(c), rather than on his failure to file a timely complaint.

   In any event, petitioner has not suggested any viable equitable
basis for tolling the statutory requirement in this case.
Petitioner's sole equitable claim is that he should be relieved of
compliance with the statutory requirements because he was proceeding
pro se. Pet. 8-10.  But this Court has held that timeliness
requirements may not be disregarded simply because the plaintiff may
be a "victim() of discrimination who (must) proceed without the
assistance of counsel." Mohasco Corp. v. Silver, 447 U.S. 807, 824
(1980).  Cf. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152
(1984) (statutory time limit for filing a Title VII action against
private employer not satisfied by pro se plaintiff's timely filing of
right-to-sue letter in place of complaint;  plaintiff's pro se status
was not a basis for excusing noncompliance with Federal Rules of Civil
Procedure regarding commencement of actions or for tolling limitations
period).

   Petitioner can claim no other grounds for equitable relief from the
filing requirements.  There is no basis for a claim that affirmative
misconduct on the part of the defendant lulled the petitioner into
inaction see Heckler v. Community Health Services, 467 U.S. 51, 59
(1984);  nor is there any basis for a claim that petitioner received
inadequate notice of the applicable requirements.  Instead, petitioner
was specifically advised in the EEOC's right to sue notice of the need
to file his complaint within 30 days, and to identify the "Official
Agency Head or Department Head" in that complaint (EEOC Dec. R-1).  He
was further warned that his failure to provide the "Name or Official
Title" of that person might result in the dismissal of his case.
Ibid.  As this Court has held, the equities do not weigh in favor of
modifying statutory requirements when the procedural default is caused
by petitioner's "failure to take the minimal steps necessary" to
preserve his claim.  Johnson v. Railway Express Agency Inc., 421 U.S.
454, 466 (1975);  Baldwin County Welcome Center v. Brown, 466 U.S. at
151 (1984) (particularly where plaintiff is informed of what he must
do to preserve his claim, "(o)ne who fails to act diligently cannot
invoke equitable principles to excuse that lack of diligence").

                              CONCLUSION

   The petition for a writ of ceriorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   MICHEAL JAY SINGER

   MICHEAL E. ROBINSON

      Attorneys

   AUGUST 1990

   /1/ "EEOC Dec." refers to the final EEOC decision of February 12,
1988, rejecting petitioner's claim that his second suspension was
discriminatory.  We are lodging a copy of this decision and of
petitioner's complaint with the Clerk of this Court.

   /2/ Petitioner's dismissal was not at issue in the administrative
proceedings.  EEOC Dec. 3 n.2.  The judicial complaint and the
petition for certiorari are at best ambiguous concerning whether
petitioner is seeking judicial review of his dismissal.  See Pet. App.
A17;  Pet. 5-6.

   /3/ The notice specifically informed petitioner (EEOC Dec. R-1):

      You have the right to file a civil action in an appropriate
      United States District Court WITHIN THIRTY (30) DAYS of the date
      that you receive this decision * * *.  If you file a civil
      action, YOU MUST NAME THE APPROPRIATE OFFICIAL AGENCY HEAD OR
      DEPARTMENT HEAD AS THE DEFENDANT.  * * * Failure to provide the
      NAME OR OFFICIAL TITLE of the agency head or, where appropriate,
      department head, may result in the dismissal of your case.
      Department means the national organization, for example,
      Department of Health, Education, and Welfare (that agency no
      longer exists) and not the local administrative department where
      you might work.

   /4/ As the district court noted in denying petitioner's motion for
reconsideration (App., infra, 3a n.5), petitioner's service on the
Postal Service was technically insufficient because it was
accomplished by serving the local Dallas, Texas, postal authorities.

   /5/ Petitioner's primary argument in seeking reconsideration was
that his March 15, 1988, submission of his complaint to the clerk's
office should be considered a timely initiation of his suit.  But the
court noted that even if it were to accept that contention, petitioner
failed to name the proper party defendant or to provide timely actual
or constructive notice to him.  App., infra, 2a-3a.  The court also
concluded that "the summary judgment record fails to support any of
(petitioner's) allegations allegations of racial discrimination." Id.
at 4a.

   /6/ Since petitioner failed to provide timely notice to the proper
defendant, it is not necessary to consider whether the submission of
his complaint to the district court clerk's office on March 15
constituted a timely filing of his complaint.  In our response in
Hernandez v. Rice, No. 89-486, we suggested that receipt by the
district court clerk's office of the discrimination complaint with a
request to proceed in forma pauperis might constitute "filing" for
purposes of Section 2000e-16(c).  The Court granted certiorari in that
case, vacated the judgment of the court of appeals, and remanded for
consideration of that question.  110 S. Ct. 1314 (1990).  On remand,
the Fifth Circuit concluded that the plaintiff's lodging -- which
named the proper defendant -- satisfied the requirement of 42 U.S.C.
2000e-16(c).  Hernandez v. Aldridge, No. 88-5603 (June 5, 1990).
Although Hernandez's request to proceed in forma pauperis was
ultimately granted, petitioner's request was denied.  Cf. Toliver v.
County of Sullivan, 851 F.2d 41, 42 (2d Cir. 1988) ("At least where in
forma pauperis relief is granted," Title VII employment discrimination
complaint treated as timely filed when received by the clerk's office,
although not formally filed and docketed until after the expiration of
the statutory period.).

   /7/ Local postal officials were served on that date.  It is far
from clear that such service can be considered constructive notice to
the Postmaster General under Rule 15(c) (see Schiavone v. Fortune, 477
U.S. at 29;  App., infra, 3a n.5).

   appendix