Campbell v. Department of the Navy Commander Petition for In Banc Hearing

    IN THE UNITED STATES COURT OF APPEALS 
FOURTH CIRCUIT

'hf

No. 88-3662

KENNETH E. CAMPBELL, SR.,
Plaintiff- Appellant, 

-versus-
DEPARTMENT OF THE NAVY 
COMMANDER: CHARLESTON NAVAL
SHIPYARD, EUGENE CAVE,
ANDREW B. GRAHAM,

Defendants- Appellees.
/

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF SOUTH CAROLINA 

CHARLESTON DIVISION

PETITION FOR IN BANC HEARING

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
NAPOLEON B. WILLIAMS, JR.

99 Hudson Street 
16th Floor
New York, New York 10013 
Tel: (212) 219-1900

Date: January 25, 1990
Attorneys for Plaintiff- Appellant



IN THE UNITED STATES COURT OF APPEALS 
FOURTH CIRCUIT

No. 88-3662

KENNETH E. CAMPBELL, SR.,
Plaintiff- Appellant, 

-versus-
DEPARTMENT OF THE NAVY 
COMMANDER: CHARLESTON NAVAL
SHIPYARD, EUGENE CAVE,
ANDREW B. GRAHAM,

Defendants- Appellees.
/

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF SOUTH CAROLINA 

CHARLESTON DIVISION

PETITION FOR IN BANC HEARING

PETITION FOR REHEARING PURSUANT TO RULE 40 
OF THE FEDERAL RULES OF APPELLATE PROCEDURE 

AND LOCAL RULE 35 WITH A SUGGESTION 
FOR REHEARING IN BANC

Appellant- plaintiff Kenneth E. Campbell herein requests 
rehearing of his appeal from the federal district court below with 
a suggestion for a rehearing in banc.

The petition for an in banc rehearing is based upon counsel's 
judgment that the per curiam decision by the panel in this appeal



fails to consider applicable legal principles, overlooks material 
facts, conflicts with decisions of the Supreme Court in Brandon v. 
Holt. 469 U.S. 464 (1985); Zipes v. Trans World Airlines. Inc.. 455 
U.S. 385 (1982), is inconsistent with the legislative history of 
Congressional statutes authorizing suits against the United States 
as well as 28 U.S.C.§ 1653, and contravenes Rules 8(a), 15(c), and 
25(d) of the Fed. R. Civ. P.

The request for rehearing is made pursuant to Rule 40 of the 
Federal Rules of Appellate Procedure. Appellant's suggestion for 
rehearing in banc is made pursuant to Local Rule 35 of this Court.

The panel affirmed the district court's judgment dismissing 
the action, on the ground on stare decisis. The per curiam opinion 
held that the panel was bound by a July 27, 1989 decision of 
another panel of this Court in Gardner v. Gartman. 880 F.2d 797 
(4th Cir. 1989).

The Court in Gardner v. Gartman. supra, held that 42 U.S.C.§ 
2000e-16(c) requires the head of a federal department to be named 
as defendant in a suit under 42 U.S.C.§ 2000e-16(c), and that 
amendments, under Rule 15(c), Fed. R. Civ. P., substituting the 
head of the department for the department as the defendant must be 
denied if not made within thirty days after plaintiff's receipt of 
the final notice of discharge.

Accordingly, the panel held, it was precluded by stare decisis 
from considering appellant's argument herein that "Congress did not 
intend for actions to be dismissed merely because a plaintiff sues 
a federal agency or department rather than the head of the

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department".
For the same reason, the panel said, it was unable to consider 

appellant's other argument that he had not sued the wrong defendant 
within the meaning of the Federal Rules of Civil Procedure, but 
rather had sued the right defendant although misdescribing the 
defendant sued.

The panel stated that it had no authority to overturn Gardner 
v. Gartman. supra. and that "(o)nly an en banc court can overturn 
a panel holding".

REASONS FOR GRANTING REHEARING IN BANC 
A. Failure to Consider Legislative History

The courts which have decided cases of this type have based 
their decisions upon a literal, or plain meaning, reading of 42 
U .S .C .§ 2000e-16(c) and not upon any examination of the legislative 
history of either 42 U;.S.C.§ 2000e-16(c) or of similar statutes 
waiving sovereign immunity. The panel which heard this appeal also 
decided the case without consideration of this issue.

Many of the employment discrimination cases against the United 
States are litigated pro se and, perhaps for that reason do not 
present arguments based upon legislative history or present any of 
the other types of arguments raised herein by appellant in this 
appeal.

Similarly, to the best of appellant's knowledge, none of the 
arguments raised in this appeal has been presented in any of other 
employment discrimination cases, with the exception, of course, of 
the argument based upon the Supreme Court's decision in Zipes v.

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Trans World Airlines. Inc.. 455 U.S. 385 (1982) that the 30 day
time period for filing an employment suit under 42 U.S.C.§ 2000e- 
5(e) is not jurisdictional and therefore is waivable.

Because the principal arguments made upon this appeal are new, 
and were not considered by the panel or any other court, appellant 
has filed this petition for rehearing in banc.

There are several major strands to appellant's argument. 
First, appellant has shown, in his brief on appeal, that the 
legislative history of 42 U.S.C.§ 2000e-16(c) reveals no evidence 
of any Congressional intention to deny federal employees a federal 
judicial remedy for employment discrimination based upon the 
employee's failure to name, in his or her complaint, the proper 
federal entity or official as a defendant. See. Report of the 
House Committee on Education and Labor, HR Rep. No. 92-238, June 
2, 1971, and Report of the Senate Labor Committee. See. S Rep. No. 
92-415 (1971).

Instead the legislative history shows a great concern in 
Congress with the fact that federal employees encountered 
inordinate legal difficulties and technicalities in suing the 
federal government.

Particular concern was expressed by the Congress over the fact 
that aggrieved employees did not have easy access to the courts, 
and that they "must overcome a U.S. Government defense of sovereign 
immunity ..." S. Rep. No. 92-415, p. 16. See. also House Rep. No. 
92-238, p .2 5.

In enacting 42 U .S .C .§2000e-16(c) in 1972, Congress acted to

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rectify conditions in which it found that "federal employees ... 
face legal obstacles in obtaining meaningful remedies". S Rep. No. 
92-415, p. 25.

The second strand of appellant's argument is based upon 
subsequent Congressional action in the enactment of other 
legislation permitting suits by federal employees against the 
United States for employment discrimination or permitting suits 
generally against the United States by waiving sovereign immunity.

Such action is evidenced in the Administrative Procedure Act, 
5 U .S .C .§ 702 et sea; the Age Discrimination in Employment Act of 
1967 ("ADEA"), 29 U.S.C. 621 et seq; and the Rehabilitation Act of 
1973, 29 U.S.C. 794a, as amended.

In each case, as appellant tried to show in his brief, 
Congress took care to make sure that the federal judicial remedy 
was not unavailing simply because of plaintiff's choice of the 
United States or a federal official or federal department or 
federal agency as the defendant.

With respect to the Administrative Procedure Act, 5
U.S.C. 702, Congress amended the section in 1976 to provide that:

An action ... stating a claim that an agency or an 
officer or employee thereof acted or failed to act 
in an official capacity or under color of legal 
authority shall not be dismissed nor relief therein 
denied on the ground that it is against the United 
States ...

Simultaneously, Congress enacted 703 of Title 5, U.S.C., to 
provide that:

If no special statutory review proceeding is
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applicable, the action for judicial review may be 
brought against the United States, the agency by its 
official title, or the appropriate officer.

The purposes of these two enactments are made clear in the
legislative history. For example, the House Report states that:

. . . the bill would simplify technical complexities 
concerning the naming of the party defendant in 
actions challenging Federal administrative action 
... to permit the plaintiff to name the United 
States, the agency or the appropriate officer as 
defendant. This will eliminate technical problems 
arising from plaintiff's failure to name the proper 
Government officer as defendant. HR Rep. 94-1656,
Sept. 22, 1976, at p. 1.

The Committee report goes on to state, in unequivocal terms, 
that the statutes are:

intended to eliminate technical problems arising 
from a plaintiff's failure to name the proper 
Government officer as a defendant. The first
clause of the new sentence is intended to preserve 
specific provisions regarding the naming of parties 
which have been or may in the future be established 
by Congress. Such provisions may be part of a fully 
developed review procedure or may be provisions 
which are even more narrowly directed only to the 
required naming of a particular defendant where such 
requirement has intended consequences such as the 
restriction of venue or service of process. An 
example of the latter is 16 U.S.C. 831c(b), which 
displays an intent that litigation involving actions 
of the Tennessee Valley Authority be brought against 
that agency only in its own name. See National 
Resources Council v. Tennessee Valley Authority. 459 
F .2d 255 (2d Cir. 1972). HR Rep. 94-1656, at p. 3.

Perhaps, the most explicit sections of the Report occur on 
page 18 where the Committee says that:

The size and complexity of the Federal 
Government, coupled with the intricate and technical 
law concerning official capacity and parties 
defendant, has given rise to numerous cases in which 
a plaintiff's claim has been dismissed because the 
wrong defendant was named or served.

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Nor is the current practice of naming the head 
of an agency as defendant always an accurate 
description of the actual parties involved in a 
dispute. Rather, this practice often leads to delay 
and technical deficiencies in suits for judicial 
review.

The unsatisfactory state of the law of parties 
defendant has been recognized for some time and 
several attempts have been made by Congress to cure 
the deficiencies.

Despite these attempts, problems persist 
involving parties defendant in actions for judicial 
review. In the committee's view the ends of justice 
are not served when government attorneys advance 
high technical rules in order to prevent a 
determination on the merits of what may be just 
claims.

When an instrumentality of the United States is 
the real defendant, the plaintiff should have the 
option of naming as defendant the United States, the 
agency by its official title, appropriate officers, 
or any combination of them. The outcome of the case 
should not turn on the plaintiff's choice.... HR 
Rep at p .18.

This legislative history, which has not been evaluated or 
considered by the panel or any other court, demonstrates that 
Congress never intended for suits against the United States to be 
lost because of technicalities such as whether the plaintiff sued 
the United States in the name of an agency, department, or 
official. Moreover, the Administrative Conference of the United 
States supported the result. See, HR Rep. 94-1656, Exhibit A, at 
p. 23. See, also S Rep. No. 94-996, June 26, 1976.

Despite the existence of such legislative history, the federal 
courts have, up to now, failed to consider the impact of this 
history in determining Congressional intent in applying 42 U.S.C.§ 
2000e-16(c). Rather, the courts which decide these cases do so 
on the basis of a literal, mechanistic reading of the statute with 
no attempts whatsoever to ascertain the underlying legislative

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history and purpose.

B . Inconsistencies With Other Federal Statutes
Their literal interpretation of 42 U.S.C. §2000e-16(c), 

however, has led to a paradox. For while the federal statute for 
race discrimination claims, i.e., 42 U.S.C. §2000e-16(c), is
interpreted literally, the courts have simultaneously failed to 
interprete the federal statutes for age discrimination and 
disability discrimination literally.

The reason for the inconsistency is because neither the Age
Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. 621
et sea, nor the Rehabilitation Act of 1973, 29 U.S.C. 794a, as
amended, specifies that a particular federal official or entity 

%should be named as the defendant in a suit brought under the 
statute.

The courts have nonetheless interpreted the statutes to 
require naming the agency or department head as the defendant. 
They have justified this interpretation on the ground that Congress 
undoubtedly must have intended the procedural requirements in the 
statutes to be the same as those in suits under 42 U.S.C.§2000e- 
16(c). For cases involving the ADEA see. Romain v. Shear. 799 F.2d 
1416 (9th Cir. 1986); Ellis v. U.S. Postal Service. 784 F.2d 835 
(7th Cir. 1986) ; contra; Shostak v. U.S. Postal Service. 655 
F.Supp. 764 (D. Me. 1987) . For the Rehabilitation Act, see
McGuiness v. United States Postal Service. 744 F.2d 1318 (7th Cir.

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1984) .
Thus, the literal interpretation of 42 U.S.C.§ 2000e-16(c) 

has led into a vicious circle with a pernicious result. The panel 
in this appeal confessed that it was unable to go back to square 
one with a fresh analysis of the applicable arguments because of 
the precedential force of another panel's decision in Gardner v. 
Gartman. supra. Only an in banc court, the panel held, could, at 
this juncture, freely consider all of the arguments.
C. Suits Against the Sovereign

Although the above is perhaps the strongest argument presented 
in appellant's brief, appellants raised additional arguments in the 
brief which also have not been passed upon by a court. The most 
important of these arguments is appellant's cbntention that a 
distinction must be drawn between suits against the wrong defendant 
and suits against a defendant who is afproper defendant but who is 
misdescribed.

The suit in Schiavone v. Fortune. 477 U.S. 21 (1986), upon 
which the panel in Gardner v. Gartman. supra, based its decision, 
is an example of the former while suits by federal employees 
against the United States as sovereign are examples of the latter.

The nature of this distinction was spelled out in appellant's 
brief and therefore does not need to be repeated here. The 
distinction is illustrated in Judge Posner's decision in Maxey v. 
Thompson. 680 F.2d 524, 526 (7th Cir. 1982), and, to a similar 
extent, in the Third Circuit's decision in Cervase v. Office of 
Federal Register. 580 F.2d 1166, 1171 (3rd Cir. 1978).

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The distinction requires the courts, in the context of federal 
employment suits, to recognize realistically that such suits are, 
in truth, suits against the sovereign, and that the fictional 
distinctions that are employed in injunctive suits pursuant to the 
doctrine of Ex Parte Young. 209 U.S. 123 (1908), see also Larson 
v. Domestic Foreign Corp.. 337 U.S. 682 (1949), have no place in 
employment suits for damages or injuries.

Such a realistic appraisal is exactly what the Supreme Court 
made in Brandon v. Holt. 469 U.S. 464 (1985) where it treated a 
suit for compensatory damages against a defendant municipal police 
official as being, in reality, a suit commenced against the 
municipality. No amendment substituting a party defendant was 
necessary for the Supreme Court to give recognition to this 
underlying reality.

Indeed, the Federal Rules of Civil Procedure achieves the same 
end by insuring that suits brought against named governmental 
officials for official wrongdoing, are not dismissed on the ground 
that the person named defendant has ceased to hold the office and 
has been replaced by someone newly appointed or elected.

Similarly, Rule 25(d), Fed. R. Civ. P. accomplishes the same 
purpose. It provides for automatic substitution in such cases, 
recognizing that although the suit may be styled as one against a 
certain person in his or her official capacity, it is 
neverthelesss, in law and in fact, a suit against the sovereign 
and therefore can be maintained despite the occurrence of either 
a vacancy in the position or a replacement of the official.

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Such considerations suggest that to the extent the panel in 
this case or in Gardner v. Gartman. supra. assumed that the holding 
in Schiavone v. Fortune, supra. was applicable to suits in which 
a sovereign government is sued by naming an agency, or department, 
or official, as a defendant, then, to that extent, Rule 15(c), Fed. 
R. Civ. P., was misapplied, resting as it were upon an erroneous 
assumption concerning the nature of suits against the sovereign.

CONCLUSION
Since the guestions raised in this petition have not been 

considered by the Court, appellant requests rehearing in banc for 
the reasons stated above.

Respectfully submitted,
Dated: January 25, 1990

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
NAPOLEON B. WILLIAMS, JR.

99 Hudson Street 
16th Floor
New York, New York 10013 
Tel: (212) 219-1900

Attorneys for Plaintiff- Appellant

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CERTIFICATE OF SERVICE

The undersigned member of the bar of the Court of Appeals for 
the Fourth Circuit affirms that two copies of the within 
appellant's petition for rehearing in banc appendix were served 
upon the defendant herein by mailing said copies this 25th day of 
January, 1990 to Vinton D. Lide and John H. Douglas, assistant 
United States Attorney, at the address 145 King Street, suite 409, 
Charleston, South Carolina, 29402.

NAPOLEON B. WILLIAMS, JR.

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