On Appeal from the United States District Court for the District of New Jersey, D.C. Civil No. 86-0391.
Higginbotham, Becker and Hunter, Circuit Judges.
This is an appeal by a government employee, Lulu Williams, whose Title VII action was dismissed because she sued the wrong defendant, i.e., the agency by which she was employed instead of the agency head, and then failed to name or serve an appropriate substitute government defendant within the short (thirty day) statutory period. The appeal presents the question whether Williams may amend her complaint through the Fed. R. Civ. P. 15(c) relation back doctrine after the limitations period has passed to name the correct defendant and, if not, whether her action is saved by the doctrine of equitable tolling because of certain statements made by the government to her counsel about the corporate status of the agency and where to serve the complaint.
We hold that Schiavone v. Fortune, U.S. , 477 U.S. 21, 106 S. Ct. 2379, 91 L. Ed. 2d 18 (1986), precludes the amendment and that Williams has not made out a case of equitable tolling. Under these circumstances, Williams' complaint is time barred, hence we must affirm the district court's grant of summary judgment in favor of defendant Army and Air Force Exchange Service (AAFES). This unfortunate result, which deprives Williams of an opportunity to litigate the merits of her case, would doubtless have been avoided had the Department of Defense followed the Department of Health & Human Service's practice of identifying in the right to sue letter the person(s) properly to be sued. We therefore strongly encourage the Department of Defense to change its form right to sue letter to provide such information.
I. FACTS AND PROCEDURAL HISTORY
Williams claims that she suffered discrimination in her job as a department supervisor for AAFES in Fort Monmouth, New Jersey. After unsuccessfully pursuing administrative remedies through the EEOC, Williams received the notice of final agency decision from Thomas D. Reagor, Director of EEO and Appeals of AAFES, informing her of her right to bring this action. The notice explained that she had thirty days to sue; however, the letter did not indicate the proper party to be named as defendant.
Williams had difficulty in obtaining counsel to pursue the matter. On April 28, 1986, three days before the 30-day statute of limitations period expired, an attorney without experience in employment discrimination matters agreed to take the case because of a family friendship. Counsel filed a Title VII complaint in the District Court for the District of New Jersey under 42 U.S.C. § 2000e-16(c) (1981), but, instead of suing the Secretary of Defense or the head of the AAFES, named AAFES as the sole defendant. Additionally, nine days after the expiration of the statutory limitations period, counsel mailed a summons and copy of the complaint to AAFES, the U.S. Attorney General and the U.S. Attorney for the District of New Jersey. Counsel also made personal service on the local U.S. Attorney's Office one month later.
The government moved for summary judgment, alleging that Williams had named the incorrect party and that she could not employ Fed. R. Civ. P. 15(c) relation back to amend the complaint. Williams then moved for leave to amend the complaint to name Caspar Weinberger, Secretary of Defense, as the defendant. After a hearing, the district court granted AAFES' summary judgment motion. The court, for some reason, never formally acted on the motion for leave to amend, but the grant of summary judgment for defendant effectively denied that motion. This appeal followed.
II. FAILURE TO NAME THE CORRECT DEFENDANT
It is undisputed that the correct defendant in this action is not AAFES but the head of the Defense Department (the Secretary of Defense) or the head of AAFES. 42 U.S. § 2000e-16(c) (1981) ("the head of the department, agency, or unit, as appropriate, shall be the defendant."). We are thus presented with two questions: (1) can the plaintiff now amend her complaint under the relation back provision of Fed. R. Civ. P. 15; and (2) if relation back is unavailable, should the limitations period be equitably tolled?
The first question is squarely answered by Schiavone v. Fortune, 477 U.S. 21, 106 S. Ct. 2379, 91 L. Ed. 2d 18 (1986). Appellant argues that even though she named the wrong defendant in her complaint, and did not correct the error until the statutory period for serving the complaint had run, Fed. R. Civ. P. 4(j) allows her an additional 120 days to effect service on the proper defendant once a complaint has been filed. Schiavone has foreclosed this argument by holding that the 120-day period for service is simply not ...