Campbell v. Department of the Navy Commander Brief 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.

/

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

CHARLESTON DIVISION

BRIEF FOR PLAINTIFF- APPELLANT

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

March 7, 1989



TABLE OF CONTENTS

PAGE

Table of Authorities..................................... ii
Interest of Amici......................................... 1
Statement of the Case..................................... 1
Statement of Facts........................................ 2
Summary Of Argument...................................... 9
ARGUMENT................................................. 12

I. THE LEGISLATIVE HISTORY OF 42 U.S.C.
H2000e-16(c) DOES NOT SHOW THAT CONGRESS 
INTENDED THE FEDERAL COURTS TO DISMISS 
ACTIONS IN WHICH THE DEFENDANT IS A 
DEPARTMENT OR AN AGENCY............. .. ....... 12
A. REBANK LEGISLATIVE HISTORY OF

U.S.C. ^2000e-16(c)....................... 12
B. LEGISLATIVE HISTORY OF THE ADEA

AND REHABILITATION ACT....................16
II. THE HISTORY OF CONGRESSIONAL EFFORTS 

TO CURTAIL THE DEFENSE OF SOVEREIGN 
IMMUNITY AND TO ELIMINATE JURISDICTIONAL 
AND SUBSTANTIVE PROBLEMS ARISING IN 
ERRONEOUS CHOICES OF FEDERAL DEFENDANT 
SUPPORT REVERSAL OF THE JUDGMENT BELOW.........19

III. A PROPER ANALYSIS OF THE CONCEPT OF 
SUITS AGAINST THE SOVEREIGN, OF THE 
GOVERNMENT, DEMONSTRATES THAT ACTIONS 
SHOULD NOT BE DISMISSED FOR NAMING THE
WRONG FEDERAL DEFENDANT........................ 24

IV. THE 30-DAY REQUIREMENT IS NOT A 
JURISDICTION.' L REQUIREMENT AND CAN BE
WAIVED OR FVOUSED............................. 3 2

CONCLUSION...............................................3 6
- i -



Cases Page
Arvayo v. United States, 766 F.2d 1416 (10th

Cir. 1985)..................................... 7,12
Brandon v. Holt, 469 U.S. 464 (1985)................  25
Brown v. General Services Administration, 507

F. 2d 1416 (10th Cir. 1985)....................  7,12
Brown v. General Services Administration

425 U.S. 820 (1976).................... .. 14,19,12
Canino V .  EEOC, 707 F.2d 468 (11th Cir. 1983 ........  8,9,32
Cervase v. Office of Federal Register,

580 F. 2d 1166, 1171 (3rd Cir. 1978)............  27,12
Cooper v. U. S. Postal Service, 740 F.2d 714

(9th Cir. 1984).............................. • 7,9
Cooper v. United States Postal Service,

471 U.S. 1022 (1985)..........................  11
Cosgrove v. Bolger, 775 F.2d 1078 (9th Cir.

1985)........................................... 9
Davis v. Califano, 613 F.2d 957 (D.C.Cir.

1980 ........................................... 9
Ellis v. U.S. Postal Service, 784 F.2d 835

(7th Cir. 1986)................................  8,18,12
Gonzales v. Secretary of the Air Force, 824

F. 2d 392 (5th Cir. 1987)......................  7,9
Larsons, v. Domestic S Foreign Corp

337 U.S. 682 (1949)............................  23
Maxey v. Thompson, 60 F.2d 524

(7th Cir. 1982). ...............................  26,27,28
McGuiness v. United States Postal Service,

744 F. 2d 1318 (7th Cir. 1984)..................  8,12
Mondy v. Secretary of the Army, 845 F.2d

1051 (D.C. Cir. 1988)............................... 32

Table of Authorities

XI



National Resources Cour.cil v. Tennessee 
Valley Authority, 459 F. 2d 255
(2nd Cir. 1972)................................  23

Richardson v. Department of the N a v y ..............  18,19,28,

Richardson v. Departme cf the Navy, (C.A. No.
87-0289), April 18, 1988 .................... 4,7,9

Romain v. Shear, 799 F.2d 1416 (9th Cir. 1986 . . . .  8,9
Schiavone v. Fortune, 477 U.S. 21 (1986)............  5,6
Shostak v. U.S. Postal Service, 655 F. Supp.

764 (D. Me. 1987 ..............................  8,17
Snyder V. Buck, 340 U.S. 15 (1950)..................  25
Stuckett v. United States Postal Service,

469 U.S. 898 (1984)............................  32
Sunshine Anthracite Co. v. Adkins,

310 U.S. 381 (194u, ............................  24
Tait v. Western Maryland Ry. Co.,

289 U.S. 620 (1933)..............................  24
Young v. National Center for Health Services Research

No. 88- 1 0 1 7 ..................................... 11
Zipes V. Trans World Airlines, Inc.,

455 U.S. 385 (1 ̂ 3 2 ) ............................  32

Statutes
Title VII, 42 U .S.C.H2000e-16(c)...................... 1,2,4,5,7,8,9,10,11,12,13,14,17,18,19,20,28,33,34,35,36,37

Age Discrimination in Employment Act of 1967,
29 U.S . C. .......................................... 9 / 28

Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. H63 3a........................... -’,11,1718,19,20

Rehabilitation Act of 1973, 29 J.S.C. 794 .............. 9,11

iii



.21,23,30,36
Administrative Procedure Act, 5 U.S.C.

1(702 ................................
Administrative Procedure Act, 5 U.S.C.

[̂7 03 ................................ ...... 21,22,23,30,36

28 U.S.C. f1653 ..........................

Federal Rules of Civil Procedure

........ 32

Rule 15(c)................................ ........  6,7,31,32
34,37

Rule 25 (d) ..............................

0

iv



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.
________________________________________ /

STATEMENT OF ISSUES
1. Whether the court below correctly decided that plaintiff 
could not amend his complaint to add the Secretary of the Navy as 
a defendant and have the amendment relate back to the date of 
filing of the complaint?
2. Whether the court below correctly decided that an action 
under 42 U.S.C. f2000e-16(c) must be dismissed if the plaintiff 
fails to sue the Secretary of the Navy, as head of the department 
of the.United States Government employing him, and instead sues 
the Department of the Navy and cannot amend the complaint to add 
the Secretary of the Navy as a defendant and have the amendment 
relate back to the date of filing of the complaint or otherwise 
sue the Secretary of the Navy within the 30- day limitation 
period prescribed by ^[2000e-16 (c) ?
3. Whether the court below correctly decided, after plaintiff's 
time to amend the complaint to add the Secretary of the Navy as a 
party had expired, that the complaint below should be dismissed 
on the ground of sovereign immunity and the need to construe 
strictly statutes waiving sovereign immunity?

STATEMENT OF THE CASE
On January 22, 1938, the United States Department of the 

Navy issued a final notice giving plaintiff- appellant herein a 
right to sue for employment discrimination. The notice was sent 
to plaintiff on February 24, 1988, and received by pla.’nciff on

1



Plaintiff commenced t'~is action on March 25, 1989 under 42 
U.S.C. ^2000e-16(c) ag inr.t the Department of the Navy. The 
United States moved to dismiss or summary judgment on the grounds 
that plaintiff had failed to comply with the requirements of 
l[2000e-16 (c) that the defendant in such actions be the head of 
the department and that plaintiff had failed to file the action 
within the time period prescribed by the statute.

The motion was referred to a United States Magistrate for 
report and determination. On July 21, 1988, the Magistrate filed 
a report recommending dismissa] of the action. Plaintiff fled 
objections to the report. On October 11, 1988, the district court 
entered an order dismissing the lawsuit with prejudice.

Plaintiff filed his notice of appeal from the judgment on 
December 5, 1988. On February 17, 1989, this Court extended the 
time for appellant to serve his brief to March 7, 1989.

STATEMENT OF FACTS
Plaintiff, Kenneth E. Campbell, Sr. commenced this action 

pro se in the district court below on March 25, 1988. Plaintiff, 
an electrian employed by the Department of the Navy at the 
Charleston Naval Shipyard at Charleston, South Carolina, applied 
for a temporary promotion to the position of electrician leader.

Plaintiff was not chosen and informed the EEO counselor at 
the Charleston Naval Shipyard that plaintiff believed that ne had 
been denied the promotion because he was black. On March 25, 
1987, the EEO counselor n'^ified plaintiff that he was entitled

March 7, 1988.

2



The notice stated that the complaint must be in writing and 
"may be filed in person or by mail with the activity head who is 
the Equal Employment Opportunity Officer: Commander, Charleston
Naval Shipyard, Naval Base, Charleston, SC 29408".

The March 25, 1987 notice also stated that a complaint "may 
also be filed with the Secretary of the Navy, the Deputy 
Assistant Secretary of the Navy (Civilian Personnel Policy , and 
Equal Employment Opportunity), the Navy's Federal Women's Program 
Manager, or the Navy's Hispanic Employment Program Manager".

On April 29, 1987, plaintiff filed a forma? complaint of
racial discrimination, requesting retroactive promotion with back 
pay and other benefits.

On January 22, 1988, the Navy issued a notice entitled
"Final Decision on Your Discrimination Complaint" stating that 
plaintiff's claim for relief had been denied. The notice stated 
that plaintiff could appeal to the Equal Employment Opportunity 
Commission in Washington, D.C. or, in lieu of an appeal to the 
Commission, that plaintiff "may file a civil action in an

o

appropriate U.S. District Court within 30 days of receipt of the 
decision".

No mention was made in the notice of the persons whom 
plaintiff should sue. The notice stated, however, that, it was 
from the "Commander, Charl>_ = Lon Naval Shipyard".

The notice was ser.l to plaintiff by regular mail, postmarked 
February 24, 1988. It was received by plaintiff at his post

to file a discrimination complaint.

3



eighteen days later, on March 25, 1988. The defendants n.med by
plaintiff in the lawsuit were:

Department of the Navy 
Commander: Charleston Naval Shipyard 
Eugene K. Cave 
Andrew B. Graham

The complaint alleged that defendants were responsible for the 
adverse discriminatory action taken against plaintiff. Plaintiff 
requested relief in the form of back pay, restoration of 
seniority, attorney's fees, punitive damages, and such ether a:.J 
further relief as may be just.

In the district court, the United States moved to dismiss 
the action or, in the alternative, for summary judgment. The 
government assigned two grounds for the motion to dismiss. The 
first was plaintiff's alleged failure to comply with the terms of 
42 U ,S. C. ̂[2000e-16 (c) requiring employment discrimination suits 
by federal employees to be brought against the "the head of the 
department, agency, or unit, as appropriate".

The second ground for dismissal was plaintiff's alleged 
failure to commence the action, as required by 42 U. S. C. ̂ 2000e- 
16(c), within 30 days after receiving notice of final action by 
government of the disposition of plaintiff's employment 
discrimination claim.

In his response to the motion to dismiss, plaintiff included 
an affidavit signed by him. The affidavit stated that plaintiff 
had received the Navy's final notice disposing of his claim on 
March 7, 1988, that he had served the Secretary of the Navy by

office box on March 7, 1988. Plaintiff commenced thin lawsuit

4



certified mail, on or abort April 20, 1988, and that, subsequent 
service by mail had been nade upon the Secretary on May 18, 1988
and June 7, 1988.

The motion to dismiss was referred to the United States 
Magistrate for a report and recommendation. The Magistrate filed 
a report on July 21, 1988, recommending that defendants' motion
to dismiss be granted.

In support of his report recommending dismissal, the 
Magistrate said that plaintiff had failed to comply with the 
letter of 42 U. S. C. ̂ [2000e-16 (c) , that the statute must be 
strictly construed, that plairtiff had failed to name the 
Secretary of the Navy as a defendant, and that an unpublished 
opinion of the Court of Appeals for the Fourth Circuit in 
Richardson v. Department of the Navy. (C.A. No. 87-0289), April 
18, 1988, was on all "fours" with this case and supported 
dismissal of plaintiff's action.

The unpublished decision in Richardspn v. Department of the 
Navy, supra. was an action brought under 42 U. S. C. ̂[2 000e-16 (c) 
against the Navy Department in which the Secretary of the Navy 
was not named as a defendant. This Court affirmed summary 
judgment against the plaintiff, giving as the ground for its 
decision the rule that "statutes waiving sovereign immunity must 
be strictly construed".

Plaintiff filed objections to the Magistrate's report and 
recommendation in which he stated that it was inappropriate, 
under Rule 18(c), and (d) cf tne rules of the Fourth Circuit, for

5



unpublished decisions of this Court to be cited.
Plaintiff further stated, in his objections, that he served 

the "head" of the Navy Department on April -20, 1988, and referred 
the Magistrate to his "affidavit of return." This service upon 
the Secretary, the plaintiff said, entitled him, under Fed. R. 
Civ. P. 15(c), to amend his complaint to add the Secretary of the 
Navy as a defendant and to have the amendment relate back to the 
date of filing of the original complaint.

The district court received the Magistrate's report and 
recommendation, and plaintiff's objections to the report. On 
October 11, 1988, the district c>urt entered an order dismissing 
the lawsuit with prejudice.

For purposes of the motion to dismiss, the district court 
said -chat he assumed that plaintiff received his right to sue 
letter on March 25, 1988. Because plaintiff wrought the lawsuit 
pro se. the district judge said, he would construe broadly 
plaintiff's objections to the Magistrate's report, and treat 
plaintiff's service upon the Secretary of the Navy as a request 
for leave to amend the complaint by naming the Secretary of the

o
Navy as the defendant and having the amendment, pursuant to Fed. 
R. Civ. P. 15(c), relate back to the date of the filing of the 
original complaint.

The court, however, denied plaintiff's request for leave to 
amend, and granted the govr^r^ent's motion to dismiss the action. 
The Supreme Court's deci^Io;, in Schiavone v. Fortune. 477 U.S. 21 
(1986), the district judge said, was controlling on plaintiff's

6



The district court reviewed the decision in Schiavone v. 
Fortune. supra. in which the Supreme Court held that, 'or the 
purposes of Rule 15(c), Time, Inc. could not be deemed t? have 
received notice of a lawsuit against it merely because plaintiff 
had served it with a complaint and summons naming Fortune, a 
trademark and one of Time, Inc.'s internal division, as a 
defendant. Therefore, the Court said, an amendment '.o the 
complaint naming Time, Inc. as a defendant did not relate back to 
the filing of the initial complaint.

The district judae applied the decision in Schiavone v. 
Fortune. supra. to the instant action, implicitly assuming the 
decision there to be equally applicable to suits under 42 U.S.C. 
f2000e-16(c) involving an amendment adding the head of a 
department of government as defendant in a suit originally 
brought against the department and several of its officials below 
the level of the head of the department.

On this basis the district judge held that the notice which 
the Navy Department had received of the lawsuit against it could 
not be deemed, under Rule 15(c) as construed by the Supreme Court 
in Schiavone v. Fortune, supra. to be notice to the Secretary of 
the Navy of a lawsuit commenced against it.

Insofar as plaintiff's service of the complaint and summons 
upon the Secretary of the Navy on April 20, 1988, was concerned, 
the court said, this occurred more than 30 days after plaintiff 
had received his right to sue letter. Accordingly, the district

right to amend the complaint and have it relate back.

7



court concluded, it could not, "consistently with Schiavone v. 
Fortune, permit any attempted amendment of the complaint to 
relate back to the original filing date."

Having denied plaint:if's request to amend, the district 
court concluded its decision with the statement that, "(f)or the 
above reasons . . . adopts the report and recommendation of the 
Magistrate in its entirety with the exception that this court 
will dismiss the case with prejudice". The district court then 
said that the Magistrate's report was made a part of its order 
"by specific reference".

The Magistrate, however, based his report and recommendatior 
upon this Court's unpublished opinion in Richardson v. Department 
of the Navy. (C.A. -87-0289), April 18, 1988, and two cases cited 
therein, Arvavo v. United States. 766 F. 2d 1416 (10th Cir. 
1985); and Brown v. General Services Administration. 507 F.2d 
1300 (2nd Cir. 1974) .

The effect of the district court's incorporation of the 
Magistrate's report and recommendation, therefore, was to make 
this Court's unpublished opinion in Richardson v. Department. 
supra, on the application of 42 U.S.C.^2000e-16 (c) and the 
construction of statutes waiving sovereign immunity, along with 
the district court's decision on plaintiff's request to amend 
under Rule 15(c), the basis for the decision below.

Plaintiff appealed the decision of the district court on 
December 5, 1988.

8



SUMMARY OF ARGUMENT

The issues; raised in this lawsuit under Rule 15(c) and 42 
TJ. S . C. H2000e-16(c) are being addressed with an increasing 
frequency by this Court and other Courts of Appeals. See. for 
example, Richardson v. Department of the Navy, supra; Arvavo v. 
United States. 766 F.2d 1416 (10th Cir. 1985); Brown v. General
Services Administration. 507 F.2d 1300 (2nd Cir. 1974); Gonzales 
v. Secretary of the Air Force. 824 F. 2d 392 (5th Cir. 1987) ; 
Cooper v. U. S. Postal Service. 740 F.2d 714 (9th Cir.. 1984); 
Canino v. EEOC. 707 F.2d 468 (11th Cir. 1983).

A substantial percentage of the federal employment 
disciimination cases raising the i .sues addressed in this appeal 
are prosecuted pro se. The majority of these cases have been 
decided against the pro se plaintiff. Purporting to h~ guided by 
the literal expression Of the statutory command in 42 U.S.C.
K2000e-16(c), the courts have held that suits for employment
discrimination on the basis of race or sex can be maintained only 
if the defendant sued in the action is the head of the federal 
agency, department, or entity employing the plaintiff.

A number of decisions have extended the holdings of these
o

cases to employment discrimination actions under the Age 
Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C.1(621
et seq. 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. Pos+^i service. 655 F.Supp. 764 (D. Me.
1987) ; and to employment discrimination actions on the basis of
handicap brought under the Rehabilitation Act of 1973, 29



U .S.C.^794a, as amended. See. McGuiness v. United States Postal 
Service. 744 F.2d 1318 (7th Cir. 1984).

The courts have reached this result under the Age 
Discrimination in Employment Act and the Rehabilitation Act 
despite the fact that these statutes do not contain provisions 
providing that suits under the statutes must be brought against 
the head of the employing agency, or department, or entity, as 
appropriate.

The rationale for the decisions in the cases under 42 
U. S. C. 5[200ue-l€ (c) , have ranged from purported compliance with 
the doctrine of sovereign immunity and the concomitant rule that 
"statutes waiving sovereign immunity must be strictly construed," 
see. Richardson v. Department of the Navy, supra; to plaintiff's 
noncompliance with the literal requirement of 42 U.S.C. 1[2000e- 
16(c) that the defendant in the action must be the head of the 
agency, department, or entity, see. McGuiness v. United States 
Postal Service, supra; Canino v. U.S. E.E.O.C.. 707 'p’-ld 468 
(11th Cir. 1983); Cosgrove v. Bolqer. 775 F.2d 1078 (9th Cir. 
1985); Davis v. Califano. 613 F.2d 957, n.l (D.C.Cir. 1980); to 
plaintiff's noncompliance with the literal requirements of both 
42 U.S.C. ^[2000e-16(c) and Fed. R. Civ. P. Rule 15(c). See. 
Gonzales v. Secretary of the Air Force, supra; Romain v. Shear, 
supra; and Cooper v. U.S. Postal Service, supra.

The pro se nature of much of the litigation in this matter 
has, perhaps, contributed to the tendency of many of the courts 
to decide the issues adversely to the plaintiff without having

10



properly identified and addressed all of the fcictors relevant to 
a decision.

As a result, this Court; and other courts, have failed, in 
trying to interpret the intent of Congress in the meaning of the 
statute, to give any consideration to the legislative history of 
42 U.S.C. 52000e-16(c), and related statutes such as the Age 
Discrimination in Employment Act and the Rehabilitation Act.

Rather, the courts have simply followed what they thought 
were the literal words of the statute. The courts have not been 
consistent in this approach, however, since they have often 
ignored the literal words of the statute in resolving kindred 
issues under the Age Discrimination Act and the Rehabilitation 
Act.

The courts, in analyzing the issues which these cases posed, 
have also been deficient in examining the history of Congress's 
continuous efforts to reduce, or eliminate, the problems caused 
in federal litigation by a plaintiff's wrong choice of a federal 
defendant, and in determining the significance of this history 
for the problem before them.

This defect has been most glaring since the most dramatic of 
Congress's efforts to eliminate such technicalities occurred 
almost immediately in the aftermath of Congress's enactment of 
the statutes creating a cause of action for federal employment 
discrimination under Title VII, the Age Discrimination ’n 
Employment Act, and the Rehabilitation Act.

In addition, the analysis in the cases under 42 U.S.C.

11



l[2000e-16 (c) disir issing the plaintiff's action failed to examine 
carefully what a suit against the government, or sovereign, 
me^nt, and to ascertain whether, in dismissing suits under 42 
7.S.C. l[2000e-16 (c) brought against a department rather than the 
head of the department, they were dealing with a question of 
error in the naming or description of the proper defendant rather 
than whether the defendant was sued and given notice.

By not addressing this issue, the courts indulged a fiction, 
and forced innocent pro se litigants, and others, to suffer the 
adverse effects of the indulgence. Moreover, the failure of the 
courts in this respect caused them to overlook changes in the 
area which Fed. R. Civ. P. Rules 25(d) sought to bring about.

Plaintiff submits that the above considerations require 
reversal of the judgment below. In addition, plaintiff submits 
that defects in naming or describing the proper federal defendant 
can be cured either through use of a statute such as 28 U.S.C. 
1(1653 or Fed. R. Civ. P. 15(c) construed in light of Rule 
4(d) (5) .

Finally, plaintiff will show that the decision below should
o

be reversed because the 30- day limitation for bringing suit 
under 42 U.S.C. j[2000e-16 (c) is not jurisdictional and can be 
waived or excused in proper circumstances such as the ones 
presented herein. See. Zipes v. TRans World Airlines. Inc., 455 
U.S. 385 (1982). Also. see Cooper v. United States Postal
Service. 471 U.S. 1022 (1985) (White, J., dissenting from denial
of certiorari).

1 T



I.
THE LEGISLATIVE HISTORY OF 42 U. S . C. l[2000e-16 (c) DOES NOT
SHOW THAT CONGRESS INTENDED THE FEDERAL COURTS TO DISMISS> 

ACTIONS IN WHTCII THE DEFENDANT IS A DEPARTMENT OR AN AGENCY
A. Relevant Legislative History of 42 U. S . C. f 2000e-16 fc) .
Because this Court has recently reviewed some of the issues 

raised in this appeal in Richardson v. Department of the Navy. 
supra. and heard argument in February, 1989, on the same issue in 
a case entitled Young v. National Center for Health Services 
Research. No. 88- 1017 (Appeal from the U.S. District Court,
Md.), plaintiff will not, for the purposes of this brief, review 
in detail the various cases which have addressed the issue of 
whether an action under 42 U.S.C.H2000e-16(c) can be maintained 
in which plaintiff amends the complaint, more than 30 days after 
receipt of plaintiff's right to sue letter, to add the head of 
the department as a defendant.

At the same time, plaintiff believes that this appeal must 
be taken since this Court and the various other courts which have 
considered the issues presented in this appeal have failed to 
identify and address all of the relevant legal factors which 
should influence decision on these issues. This appeal is not 
frivolous, and plaintiff believe it is important to set forth the 
issues raised in this brief in order to help resolve an issue 
which has become troubling to the administration of justice in 
the federal courts.

The single most important fact concerning the issues raised

A R G U M E N T

13



in this appeal is that this Court and other courts have decided 
cases like the instant one agairst plaintiffs without benefit of 
an examination of the legislative history of 42 U.S.C.H2000e- 
16(c), and related statutes. Joe, Richardson v. Department of 
the Navy, supra; Arvavo v. United States, supra; Brown v . 
General Services Administration, supra; Gonzales v. Secretary of 
the Air Force, supra; Cooper v. U. S. Postal Service, supra; 
Canino v. EEOC, supra; Ellis v. J.S. Postal Service, supra; 
McGuiness v. United States Postal Service, supra. But see 
Cervase v. Office of the Federal Register. 580 F.2d 1166, 1171 
(3rd Cir. 1978).

The relevant legislative history is straightforward. In 
1972, Congress extended the provisions of Title VII of the Civil 
Rights Act of 1964 to federal employment. Title 42, U.S.C. 
f2000e-16(c) was thus enacted. The legislative* history of the 
statute can be found in the Report of the House Committee on 
Education and Labor which considered the statute, see, HR Rep. 
No, 92-238, June 2, 1971, and in the Report of the Senate Labor 
Committee. See. S Rep. No. 92-415 (1971).

Neither report paid attention to any distinction between 
actions against a department and actions against the head of a 
department. Both reports, in the section analysis, recited in 
cursory and summary form the provision of the statute providing 
federal employees with a civil remedy against the head of an> 
department or agency which discriminated against them.

Both reports, however, pr^uasized that Congress was

14



concerned with the fact that federal employees often faced
substantial legal difficulties and technicalities in suing the 
federal government, and that the statute was one means of helping 
to correct this problem.

The Senate Report, which emphasized federal employees' 
substantive rights against racial discrimination under the due 
process clause and under 5 U .S .C . 1 5 1 ,  stated that
notwithstanding, the Committee had found that aggrieved employees 
d:.d not have easy access to the courts, and that "the employee 
must overcome a U.S. Government defense ot sovereign immunity
..." p. 16.

Similarly, the House Report, in explaining the need for the 
statute, stated that "(f)ederal employees ... face legal
obstacles in obtc.ining meaningful remedies. There is serious
doubt that court review is available to the agyneved Federal 
employee." Id.. at 25. See. Brown v. General Services
Administration. 415 U.S. 820, 826, 828, 833 (1976), for a review
of some of these difficulties.

In discussing the United States's obligation to avoid racial
o

and other unlawful discrimination against its employees, the two 
reports focused almost entirely upon the responsibilities of the 
agencies and departments rather than upon the responsibilities of 
their heads. For example, the House Report states that
’̂ Consistent with Federal Law iu jls expected that the Civil 
Service Commission and the Fed*-*̂ ..! Agencies will continue their 
commitment ..." and that "In all of these cases, the primary

15



responsibility shall rest with the Civil Service Commission and 
the other Federal agencies", p. 25.

Like the House Report, the Senate Report gave no und^e 
mention to the fact that the remedy provided to federal employees 
by the proposed statute was a suit against the head of the 
federal agency or department employing them.

The Senate Report, however, stressed, at numerous points in 
its analysis, the role and obligations of the departments and 
agencies. pp. 15- 16. Moreoever, it talked about an agency's 
decision rather than a decision by the head of an agency.

For example, the Report mentioned that "An important adjunct 
... is the statutory provision of a private right of action in 
the courts by Federal employees who are not satisfied with the. 
agency or Commission decision". p. 16. At any event, the 
analysis was conducted without apparent awareness that a critical 
distinction was being made in the statute between an agency, or 
department, and its head.

Nowhere did the Report show that the Committee or the 
Congress was aware of, or had given sanction to, a distinction in 
the statute which would result in depriving federal employees of 
their newly established right to sue the government for 
employment discrimination if the suit was brought against the 
federal agency or department rather than the head of the agency 
or department.

An omission, or oversight, of this magnitude would be 
inconsistent with the notion that Congress, in establishing a

16



remedial scheme for federal employees to lessen the impact of its 
finding that "(f)ederal employees .. face legal obstacles in 
obtaining meaningful remedies," ii. , at 25, simultaneously 
intended, with the new right established under 42 U. S. C. ̂ 2000e- 
16(c), to make an error in identifying the proper governmental 
official to sue under ^2000e-16(c) fatal to the employee's 
substantive right to be free of employment discrimination from 
the federal government.

B. Legislative History of the ADEA and Rehabilitation Act.
Two years after amending Title VII through enactment of 42 

U . S . C. l[2000e-16 (c) , Congress extended sir.ilar protection against 
employment discrimination to older Americans by amending the Age 
Discrimination in Employment Act of 1967, 29 U.S.C.^621 et seq. 
to enact 29 U. S. C. }[633a (c) to give older America ns employed by 
the United States the right to sue the federal government for 
employment discrimination on account of age.

The statute, enacted in 1974, provided that "Any person 
aggrieved may bring a civil action in any Federal district court 
of competent jurisdiction for such legal or equitable relief as
will effectuate the purposes of this Act". Unlike 42
U.S.C.fl2000e-16(c) , the statute did not specify what persons
should be named as defendants in suits under the statute.

Nothing in the legislative nistory of ^[633a(c), however, 
indicated that Congress intended victims of race discrimination 
under Title VII to have more restrictive choices in suing federa.l 
defendants under 42 U. S. C. ̂ 2000e-16 (/~) than older Americans have

17



under 29 U . S - C. }[633a (c) in suing for age discrimination. See Sen 
Rep Nc 94-25, June 25, 1975; HR Rep No. 94-67, March 14, 1975; 
and HR Conf Rep No. 94-670, Nov. 17-, 1975.

In fact, the legislative history suggests that the Congress 
did not see distinctions in terms of whether a department was 
named the defendant in a federal employment discrimination suit 
or the head of the department was named as the defendant. The 
following curious circumstance supports this view. .

Originally, according to the Senate Report, the House bill 
provided, in section 307, "that any person aggrieved may obtain 
judicial review of any such action by the head of a Federal 
agency ..." Sen Rep No. 94-25, at p. 53. This language is 
somewhat more similar to that in 42 U.S.C.^2000e-16(c). It rooms 
to imply that the House bill originally contemplated older 
Americans as having a cause of action, or claim for relief, 
against the agency head rather than against the agency itself.

The restrictive language, however, never made its way into 
f633a(c) as enacted More striking, there was no commentary in 
the committee reports constituting the legislative history on theo
change or why the change was made or on its significance. The 
two Congressional reports shed absolutely no light on why the 
final version of ^[633a(c) failed to contain a clause requiring 
the head of the agency, or department, to be the defendant in 
suits under the statute.

The lack of commentary, hovrov'- .., in the legislative history 
on the differences in wording between ^[2000e-16(c) and <][633a(c),

18



and between the initial House version of ^633a(c) and }[633 i(c) as 
finally enacted, is some evidence that Congress attached l.'ttle 
significance, in terms of subtantive rights, to whether a ^oeral 
employee sued his, or her, department for employment 
discrimination rather than the head of the department.

Unfortunately, the federal courts, in construing }[633a(c) in 
light of the different phraseology used in ^[2000e-16 (c) , have 
reached conflicting results on the significance of the absence of 
a provision in the statute parallel to that in ^[2000e-16 (c) .

In Shostak v. United States Postal Service. 655 F.Suup. 764 
(D Me. ±987), for example, the district court upheld the right of 
plaintiff to sue the Postal Service rather than to sue the head 
of the Postal Service.

The court, in Shostak, supra. based its decision on the 
literal langr.^ye of the statute rather than on the underlying 
legislative history. The district judge said that the absence of 
a limitation in the statute on who should be named as a defendant 
"clearly indicate(s) Congress's contemplation that a variety of 
persons could be named as defendants in a suit under ADEA". Id.- 
655 F. Supp. at 765.

In Ellis v. United States Postal Service, supra. however, 
the Seventh Circuit reached a totally opposite result. It held 
that defendants in suits under the ADEA must be heads of 
agencies, departments, or units. The reason which the court gave 
for its holding was the following: "(T)he portion of the ADEA 
applicable to federal employees was patterned after a sir-liar

19



provision in Title VII. When a section of the ADEA can be traced 
to a similar section of Title VII, the two provisions should be 
construed consistently". It  784 F.2d at 838.

Like the court in Snostak. supra. however, the Seventh 
Circuit failed to review the legislative history of Title VII and 
the ADEA.

II.
THE HISTORY OF CONGRESSIONAL EFFORTS TO CURTAIL THE 

DEFENSE OF SOVEREIGN IMMUMTY AND TO ELIMINATE JURISDICTIONAL 
AND SUBSTANTIVE PROBLEMS ARISING IN ERRONEOUS CHOICES OF 
FEDERAL DEFENDANTS SUPPORT REVERSAL OF THE JUDGMENT BELOW

The courts which have construed f633a(c) and f2000e- 
16(c) against the plaintiff employee have made the difference 
between suits against heau& of federal departments and suits 
against federal departments a matter of substantive law and 
jurisdictional law. This Court, in Richardson v. Department of 
the Navy, supra. adopted this approach when it affirmed summary 
judgment against the plaintiff in that case, for naming the 
Department of the Navy rather than the Secretary of the Navy as 
defendant, on the ground that "statutes waiving sovereign 
immunity must be strictly construed".

This approach runs counter to the history of Congressional 
efforts, both before and after the enactment of [̂633a(c) and 
f2000e-16(c), to prevent differences in a plaintiff's choice of 
federal defendants from causing differences in the substantive 
outcome of the litigation.

This point is nicely illustrated in both the text and the 
legislative history of the 1976 amendments to the Administrative



Procedure Act, 5 U.S. C. flf702, 703. As will be seen in the
discussion below, it shows Congress's concern that litigants 
should not be prejudiced by the fact that they sued a federal 
agency, or department, and not the federal official heading the 
agency, or department.

The legislative history of 5 U.S.C. 702, 703 is all the
more revealing since Congress enacted the 1976 amendments almost 
in the immediate aftermath of the Supreme Court's decision in 
Brown v. General Services Administration. 425 U.S. 820 (1976).

In Brown v. General Services Administration, cupra. the 
Supreme Court held that 42 U.S.C.r 200Ce-16(c) was the exclusive 
judicial remedy available to federal employees complaining about 
job discrimination. Any other decision, the Court said, in
reasoning reminiscent of this Court's decision in Richardson v. 
Department of the Navy, supra. raised "problems of sovereign' 
immunity", id., 425 U.S. at 833.

A few months after Brown. supra. was decided, Congress 
amended the Administrative Procedure Act by enacting, in 1976, 5 
U.S.C.f702. The statute provided 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 ..." In addition, 
the statute provided that the ''United States may be named as a 
defendant in any such action, and a judgment or decree may be 
entered against the United States".



Section 703 of Title 5, U.S.C., was enacted at the same 
time. It fixed the venue and form of the action. As such, it 
was not concerned with substantive rights,. It provided thau "If 
no special statutory review proceeding is applicable, the action 
for judicial review may be brought against the United States, the 
agency by its official title, or the appropriate officer".

The two statutes were part of Congress's latest efforts to 
keep federal litigants from being penalized, by losing their 
substantive rights, because they had sued a federal department, 
or agency, rather than the head of the department, or agency.

The legislative history of the two 197 6 amendments to the 
APA is contained in Sen Rep No. 94-996, June 26, 1976, and HR Rep 
94-1656, September 22, 1976. The House Report begins its
discussion and analysis with the statement that the proposed 
legislation would amend the APA "so as to remove the defense of 
sovereign immunity as a bar to judicial review of Federal 
administrative action otherwise subject to judicial review." HR 
Rep at p.l.

The Report goes on, however, to discuss some of the issues 
raised in this appeal. It says that:

Further, 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 at p. 1.

The Report explains the division of labor between ^702 and

22



1[7 03 in the following terms: "The amendment to section 702 is 
meant to eliminate only the doctrine of sovereign immunity as a 
bar to naming the United States. It is not addressed to the 
issue of proper parties defendant. That is treated in the second 
sentence added to section 703 by the bill". Id. at p. 3.

By drawing the distinction between the two sections in terms 
of the issue of sovereign immunity and the issue of proper 
parties defendants, the Report gives emphasis to the fact that 
section 702 is about the right to review while section 703 
concerns venue and the form of the proceeding.

The Committee clarifies the issue further with its remarks 
that the bill is:

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 ar» 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 at p. 3

Section C of the Report which is entitled "Parties 
Defendant", further refines the distinction. The Committee says 
that:

The size and comp_'"xity of the Federal 
Government, coupled with the intricate and

23



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.

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.

These recommendations were supported by the Administrative 
Conference of the United States. Id., HR Rep, Exhibit A, at p.
23 .

Although the Report states that the amendment preserves 
specific provisions regarding the naming of parties that have 
been specified by Congress, the House Report is nonetheless 
careful to note that these provisions are preserved only where 
they are part of a fully dev'.loped review procedure and are 
preserved, in any event, for the purposes of venue requirements 
or for maintaining the form of -t-he proceedings rather than for



the purpose of curtailing or affecting substantive rights.
The Report shows that Congress's concern in making thir 

preservation was to prevent litigants from doing things ? ike- 
suing the TVA in any place but Tennessee. See. See National 
Resources Council v. Tennessee Valiev Authority. 459 F.2d 255 (2d 
Cir. 1972). HR Rep at p. 3.

III.
A PROPER ANALYSIS OF THE CONCEPT OF SUITS AGAINST THE
SOVEREIGN, OR THE GOVERNMENT, DEMONSTRATES THAT ACTIONS 

SHOULD NOT BE DISMISSED FOR NAMING THE WRONG FEDERAL DEFENDANT

The cases dismissing employment discrimination suits brought 
against a department of the United States because the plaintiff 
did not sue the head of the department, fail to recognize tnat
the issue is one of using the wrong name of the defendant rather
than failing to sue the proper defendant. In failing to analyze 
the cases this way, the courts have taken too literally the 
fiction that injunctive suits against officers are not really 
suits against the sovereign. See. Larson v. Domestic & Foreign 
Corp.. 337 U.S. 682 (1949).

This fiction crept into legal analysis throught the Supreme 
Court's adoption of the doctrine of sovereign immunity. See.
Larson v. Domestic & Foreign Corp., supra. Once implanted, the 
courts proceeded to adopt criteria for determining when a suit 
was in fact a suit against the sovereign, that is, the
Government.

The answer the courts gave was that suits against the 
sovereign were (1) suits naming the government as a defendant,

25



(2) suits for money damages naming federal officials as 
defendants in their official capacity whether sued by name or 
title, and (3) suits naming federal departments, agencies, or 
entities as defendants.

Suits against departments of government could, of course, 
also be decided adversely to the plaintiff on the ground that the 
department was an internal division of the government without 
capacity to sue or be sued. By contrast, injunctive suits 
naming individual officials as defendants, whether the person was 
sued in their individual capacity, official capacity, or sued by 
name or job title, were often, depending upon the 
circumstances, not considered as suits against the sovereign. 
See, Larson, supra; Land v. Dollar. 330 U.S. 731 (1947); Ex Parte 
Young. 209 U.S. 123 (1908).

But these concepts were fictions. The fictions were, 
however, sometimes disregarded for the reality as when a judgment 
against a federal officer was held res judicatci against another 
federal officier in litigation involving the sama opposing party. 
See, Sunshine Anthracite Co. v. Adkins. 310 U.S. 381 (1940); Tait 
v. Western Maryland Rv. Co.. 289 U.S. 620 (1933) .

In allowing the Supreme Court to promulgate Fed. R. Civ. P. 
25(d), Congress gave authorization to the federal courts to 
ignore the fiction that a suit against an official is not a suit 
against the government.

The Rule accomplishes this by providing that when a pub! in­
official who is a party to an action dies, or is otherwise

26



removed from office, during the pendency of the action, the 
action does not abate and the officer's successor is 
?utomatically substituted as a party irrespective of whether an 
jrder of substitution is entered or not. The common law rule was 
otherwise, that is, death or removal of the officer abated the 
action since it was not considered to be against the government 
or the officer's successor. See. Snyder v. Buck. 340 U.S. 15 
(1950) .

By allowing the promulgation of Rule .’5, Congress and the 
Supreme Court continue on their joint course to reduce the impact 
of an erroneos choice of federal 1efenaants to sue upon a 
litigant's substantive right.

The Supreme Court has achieved a similar result in a more 
striking contest. In Brandon v. Holt. 469 U.S. 464 (1985), the 
Court disregarded the fiction that a suit against a governmental 
official is not a suit against the government itself. The 
plaintiff in Brardon v. Holt, supra. won, in the district court 
below, compensatory damages against the director of the Memphis 
police department in a suit against the officer in his official 
capacity.

The Supreme Court held that the judgment against the officer 
in his official capacity imposed liability against the City of 
Memphis, and that the City, having received notice of the lawsuit 
with adeguate opportunity to rerpcna, was liable for the damages 
even though it had not been warned as a defendant in the 
complaint.

27



The Supreme Court relied upon three of its precedents : n 
making this decision. It said that these cases had assumed that 
a government would be liable for an award imposed again*t 
officials sued in their official capacities. These precedents 
the Court said, like the case before it, distinguished between 
suits against officials in their individual capacities and suits 
against officials in their official capacities in which only the 
liability of the government was really at issue. Id., 469 U.£. 
at 472.

Since the government had received adequate notice of the 
suit, the Court said, it war- proper to make it liable for damages 
assessed against its officials for wrongs committed in their 
official capacities.

Thus, the Court, in essence, treated the issue as one in 
which, where adequcLe notice had been given, naming the official 
rather than the governmental entity as the defendant was a 
misnomer. The misnomer, the Court observed, had no prejudicial 
effect on any substantive rights.

A 1982 decision by the Seventh Circuit in Maxev v. Thompson. 
680 F.2d 524 (7th Cir. 1982) arrived at a similar result. The 
plaintiff, an employee of the "Illinois Department of Revenue, 
brought suit under Title VII of the Civil Rights Act of 1964, 42 
U. S. C. H2000e et seq. . and under the ADEA, 29 U.S.C.^621 et sea. 
Tho complaint named J. Thomas Johnson as a defendant and 
described him in the complaint as "Successor- Director" of the 
Department of Revenue.

28



The plaintiff's EEOC charge named only the Illinois 
Department of Revenue as a respondent. Suit under Title VII 
could be brought only against the -respondent named in the charge. 
The district court dismissed -ci.e Title VII charges against 
Johnson, the "Successor- Director" of the Department of Revenue. 
The Court of Appeals reversed.

Judge Posner, writing for the court, held that:
It is clear from this method of styling Johnson in 
the complaint that the plaintiff wanted to sue him 
in his official rather than personal capacity- 
wanted, in other words, to sue the Department of 
Revenue, as of course he could since state agencies 
are suable under Title VII. ... The Department 
should have been named as the defendant rather than 
Johnson, but we cannot see what possible prejudice 
could have been caused to Johnson or anyone else by 
the plaintiff's inartful bur unmistakable effort to 
sue the Department. It would be different if the 
plaintiff were seeking relief against Johnson 
personally; ... . Since the defendant .. - the
Department- was put on notice, by the charge the 
plaintiff had filed with EEOC, that it might be 
sued, and since it should have known that but for 
the plaintiff's mistake the action would have been 
brought against it, Rule 15(c) of the Federal Rules 
of Civil Procedure reguired that the amendment be 
allowed and that it relate back to the date of the 
original complaint... Id. 680 F.2d at 526.

For a somewhat similar case, see Cervase v. Office of 
Federal Register. 580 F.2d 1166, 1171 (3rd Cir. 1978). Also.
see Fed. R. Civ. P. 25(d)(1) providing that "Proceedings 
following the substitution shall be in the name of the 
substituted party, but any misnomer not affecting the substantial 
righrs of the parties shall be disregarded".

Cases like Maxev v. Thompson, supra; and Cervase v. Office 
of Federal Register. supra. in injunction with procedural

29



reforms such as those provided by 55702, 703 of the APA, Fed. R. 
Civ P. 15(c) and 25(d), and 28 U.S.C.51653, provide the courts 
with, tools to keep the use of fictions in check.

They enable the courts to prevent misnomers and erroneous 
descriptions in pleadings from causing injustice. Both Maxev v. 
Thompson, supra, and Brandon v. Holt, supra. demonstrate this in 
a graphic way. They illustrate, fictions aside, that suits 
against officials in their official capacity are, in reality, 
suits against the governmental body or department for whom the 
officials work, and are, in the final analysis, suits against the 
sovereign itself. It is for this reasov that plaintiff insists 
that such suits are cases of misnaming rather than suing the 
wrong party.

The decision :.n Maxev v. Thompson, supra. like that in 
Richardson v. Department of the Nav. supra. is also on all fours 
with the facts of tne present case. The court in Maxev. supra. 
saw clearly, that the issue was one of misnaming rather than 
failing to sue the right defendant or to give notice to the right 
defendant. Plaintiff requests the Court to make the same 
analysis in the instant action.

A description of the facts of this case easily demonstrate 
which the analogy holds true. Campbell's filing of charges at the 
Charleston Naval Shipyard put the Secretary of the Navy on notice 
that he might be sued by Campbell fo_- employment discrimination, 
and was sufficient to let the v^cretary know that but for 
plaintiff Campbell's mistake in naming the Department of the Navy

30



as a defendant the lawsuit would have named him, as head of the 
Navy Department, as defendant.

The only additional notice of the lawsuit which the 
Secretary would have received would have come from service of the 
summons and complaint in accordance with the procedures 
prescribed by Fed. R. Civ. P. 4(d)(5).

But Rule 4(d)(5) provides, whether the named defendant is 
the Department of the Navy or the Secretary of the Navy, that 
service shall include service upon the United States. See, Rule 
4(d)(4). The remainder of the service is effectuated by sending a 
copy of the summons and of the complaint by registered or 
certified mail to the department (or agency) or officer.

As Secretary of the Navy, it is the responsibility of the 
Secretary to keep abreast of lawsuits against the Department of 
the Navy to the same extent that he or she would keep abreast of 
suits against the Secretary in his or her official capacity.

Whatever differences might arise from sending a copy of the 
summons and complaint by registered mail to the Secretary of the 
Navy as opposed to the Department of the Navy, is insignificant 
where where liability is based upon acts committed by lower 
officials and where the notice is sufficient for meeting the 
requirements of Rule 15(c). In reality, a substitution of the 
Secretary for the Navy Department is not an amendment "changing 
the party" but rather giving a different name to the defendant.

The point is especially relevant where, as here, neither the

31



district judge below nor the Magistrate, in dismissing 
plaintiff's complaint, pointed co any prejudice that the 
Secretary would suffer if the ?ct:on were permitted to be 
maintained against him.

To the extent that this Court, in its decision in Richardson 
v. Department of the Navy, supra. decided the issue of compliance 
with Rule 15(c) without considering whether the Secretary 
received sufficient notice of the institution of the lawsuit to 
prevent him from being "prejudiced in maintaining his defense on 
the merits," this Court erred.

Once the issue is formulated in this way, it becomes clear 
that a motion to dismiss, or grant summary judgment, for the 
-failure of plaintiff, in the complaint, to list the right name of 
the proper defendant is merely a matter of procedure and not a 
matter either of jurisdiction or substantive law.

In this context, the Court should heed the admonition of 
Fed. R. Civ. P. 8(f) which provides that "All pleadings shall be 
so construed to do substantial justice," and of Fed. R. Civ. P. 1 
which states that the Federal Rules of Procedure "shall be 
construed to secure the just, speedy, and inexpensive 
determination of every action".

Provisions of the Federal Rules of Civil Procedure, such as 
Rules 15(c) and 25(d) are expressly designed to assist the Court 
in carrying out its obligation tc "do substantial justice" and 
"to secure the just, speedy, and inexpensive determination" of 1 
actions.

32



Thus, for example, Rule 25(d)(1), concerning substitution of 
parti as, changes the common law rule and provides that when a 
public officer is a party to an action in his official capacity 
and ceases to hold the office, for whatever reason, during the 
pendency of the action, the action does not abate, the former 
officer's successor is automatically substituted as a party, and 
subsequent proceedings shall be in the name of the substituted 
party but that misnomers and failure to enter orders of 
substitution shall be disregarded and not affect the 
subst itution.

Also, the Judicial Code, in 28 U. S . C. j[1653 , is designed eor 
the same purpose. It reminds the courts that, even when there 
are defective allegations of jurisdiction, that "Defective 
allegations of jurisdiction may be amended, upon terms, in the 
trial or appellate courts".

IV.
THE 30- DAY REQUIREMENT IS NOT A JURISDICTIONAL 

REQUIREMENT AND CAN BE WAIVED OR EXCUSED
In addition to the above, the judgment below should be 

reversed for the reason prescribed by Mr. Justice White in his 
dissent from denial of a writ of certiorari in Cooper v. United 
States Postal Service. 471 U.S. 1022 (1985) . The petitioner in
Cooper, supra, filed a charge of sex discrimination against her 
employer the Postal Service. Petitioner timely filed suit the 
day before the expiration of the 30 days limit under 42 
U.S.C.H2000e-lb(c). The complaint was served by petitioner upon 
the U.S. Attorney, or Attorney Genera1 in several months later.

33



The Postal Service, rather than the Postmaster General, was named 
as defendant.

The district court dismissed the complaint for failure to 
name the Postmaster General as the proper defendant. Petitioner 
sought leave to amend by naming the Postmaster General as 
defendant and to have the amendment relate back to the date of 
filing of the complaint. The district court denied the motion on 
the ground that the Postmaster General had not received notice 
within the requisite 30- day period.

Upon appeal, the Ninth Circuit affirmed, holding that the 
only proper defendant was the Postmaster General, that the 30- 
day period was a jurisdictional requirement, and that notice was 
not proper under Rule 15(c).

In dissenting from the denial of a writ of certiorari, 
Justice White questioned whether in light of the Supreme Court's 
decision in Zipes v. Trans World Airlines. Inc.. 455 U.S. 385 
(1982), holding that the 30 day limit for filing private 
employment suits under 42 U .S .C .52000e-5(e) was not a 
jurisdictional prerequisite for suing under the sta-tute, the 
similar 30- day limitation contained in f2000e-16(c) for federal 
employment discrimination suits could be deemed a jurisdictional 
prerequisite for bringing suit.

Justice White also questioned the Circuit Court's strict 
reading of Ruling 15(c) that the added party must have had notice 
of the institution of the action within the period provided by 
law for commencing the action against him when the original

34



defendant need not have been given such notice.
Numerous courts have held that tho 30 days limitation for 

bringing an employment discriminati 'n suit against a federal 
employer is not a jurisdictional prerequisite to suing under 
^[2000e-16 (c) . See. Stuckett v. United States Postal Service. 469 
U.S. 898 (1984) (White, J., dissenting from denial of 
certiorari); Mondv v. Secretary of the Army. 845 F.2d 1051 (D.C. 
Cir. 1988) ; Hornsby v. United States Postal Service. 787 F. 2d 87 
(3rd Cir. 1986); Martinez v. Orr. 738 F.2d 1110 (10th Cir. 1984); 
Milam v. United States Postal Service. 674 F.2d 860 (11th Cir. 
1982) .

Analytically, there is little to distinguish such a 
limitations period from a typical statute of limitations. Nor is 
there any reason to erect a different rule for federal employment 
discrimination suits than exists for private employment 
discrimination suits. The legislative history accompanying the 
enactment of ^[2000e-16(c) makes it clear that Congress desired to 
change the fact that "Federal employees, unlike th)se in the 
private sector to whom Title VII is applicable, face legal 
obstacles in obtaining meaningful remedies." HR Rep. No. 92-238, 
1972 U.S. Code Congressional and Administrative News, at p.2160.

In addition, plaintiff's failure to abide by the 30 day 
limitation period can be excused or waived since he had good 
reasons for thinking that he could sue the Navy Department and 
officials other than the Secretary. The notice which he got from 
the Shipyard stated that the administretive complaint "may be

35



filed in person or by nail with the activity head who is the 
Equal Employment Opportunity Officer: Commander, Charleston Naval 
Shipyard. Naval Base, Charleston, SC 29408", and that the 
adminis: tracive complaint "may also be filed with the Secretary of 
the Navy, the Deputy Assistant Secretary of the Navy (Civilian 
Personnel Policy and Equal Employment Opportunity), the Navy's 
Federal Women's Program Manager, or the Navy's Hispanic 
Employment Program Manager".

Filially, this Court should hold that Schiavone v. Fortune. 
477 U.S. 21 (1986) is inapplicable to a case like the instant one 
where the part} to be added as a defendant if not only simply th^ 
alter ego of the original defendant and of the United States but, 
in addition, had notice of the lawsuit by virtue of th?- 
administrative charges filed, and knew, in light of the 
requirements of }[2000e-16 (c) that any lawsuit brought had to name 
him as a proper party and that any lawsuit naming the Department 
of the Navy as a defendant would not be in compliance with 
[̂2 000e-16 (c) .

The Court should a]so hold that Schiavone v. Fortune, supra. 
is inapplicable to a suit under ^[2000e-16 (c) in light of the 
provisions of the legislative history of ^2000e-16(c) and of 
HH702, 703 of the APA showing that Congress, with respect to 
suits against the federal government, wanted to remove and 
"simplify technical complexities conc-i.nng the naming of the 
party defendant in actions challenging Federal administrative 
action ... to permit the plaintiff to name the United States, the

36



agency, or the appropriate officer as defendant." HR Rep No. 94- 
1656, at p.l.

In view of this professed desire of Congress, it is 
difficult, if not impossible, to show that the United States 
would suffer prejudice in maintaining its "defenses on the 
merits"(emphasis supplied) as required by Rule 15(c) if the 
judgment below were reversed.

In view of the fact that the head of the department or 
agency in a suit under <][2000e-16 (c) brought against the 
department will invariably receive whatever notice he or she 
would have received if the action had been brought against the 
head of the department, and would have had notice of the 
proceedings during the administrative proceedings, these 
differences between the instant case and the facts in Schiavone 
v. Fortune. supra. make the rule of that case totally 
inapplicable to these proceedings.

CONCLUSION
For the reasons given above, the judgment below should be 

reversed.
Respectfully submitted

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 brief and appendix were s-wed upon the defendant 
herein by mailing a copy of same this 7th day of March, 1989 to 
John H. Douglas, assistant United States Attorney, at the address 
19 Hagood Avenue, 10th Floor, Summerall Center, Charleston, South
Carolina, 29403

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