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December 29, 1986


The opinion of the court was delivered by: SWEET


Plaintiff Donald P. Stewart ("Stewart") brought an action pursuant to Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-5 and § 2000e-16, naming the United States Postal Service (the "USPS" or "Postal Service") as defendant. Stewart has moved the court, pursuant to Fed.R.Civ.P. 12(f), to strike the five affirmative defenses contained in the USPS' answer. The USPS has cross-moved for an order dismissing the complaint pursuant to Fed.R.Civ.P. 12(b)(1), (6) & (7) or alternatively for summary judgment. For the reasons given below, the USPS' motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is granted.

 Prior Proceedings

 On December 1, 1979, Stewart was denied a promotion by his employer, the U.S. Postal Service. Believing that the denial was motivated by racial discrimination, he initiated an administrative discrimination action. On September 24, 1982 the Postal Service decided against Stewart, who appealed to the Equal Employment Opportunity Commission (the "EEOC"). On January 3, 1985, the EEOC affirmed the Postal Service's findings.

 A copy of the EEOC decision was to Stewart attorney, was received on January 17, 1985. *fn1" Both the decision and a letter accompanying it informed Stewart that if he was dissatisfied with the result he had thirty days from receipt of the EEOC decision to file a civil action in federal court. This statute of limitations is codified at 42 U.S.C. § 2000e-16. By regulation, the agency must notify an employee of the right to file an action within the 30-day limit. 29 C.F.R. § 1613.282.

 On February 15, 1985, Stewart, in his words, "went to the Southern District of New York . . . and wrote out a complaint by hand, based on advice I had received from the Pro Se office in the Southern District regarding the name of the party whom I should sue." Stewart named the Postal Service as the sole defendant. The complaint seeks a retroactive promotion, back pay, and legal fees. Like many other pro se plaintiffs, Stewart was apparently daunted by the complicated requirements of Fed.R.Civ.P. 4, and had difficulty effecting service. By order of June 4, 1985, the court extended Stewart's time to serve to July 22, 1985.

 On July 17, 1985 Stewart served the United States Attorney, and on July 18, 1985, he served both the United States Attorney General and the USPS. The USPS answered on November 19, 1985 and asserted the following affirmative defenses: 1) the USPS was not a proper party; 2) the complaint failed to name an indispensible party; 3) Stewart's claims were barred by the statute of limitations; 4) the court lacked subject matter jurisdiction; and 5) the complaint failed to state a claim upon which relief could be granted.

 On May 9, 1986 Stewart, now represented by counsel, filed a motion to strike these affirmative defenses. The USPS cross-moved on August 7, 1986 for an order pursuant to Fed.R.Civ.P. 12(b) dismissing the complaint for lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and failure to join a party under Fed.R.Civ.P. 19. By consent, and after a number of adjournments primarily at the government's request, the motion was submitted without oral argument on October 10, 1986. *fn2"

 The Complaint

 For the purposes of a Fed.R.Civ.P. 12(b)(6) motion, the facts as alleged by the plaintiff's complaint are taken as true. However, Stewart's pro se complaint fails to comply with 42 U.S.C. § 2000e-16 governing discrimination in employment by the federal government, which states that "the head of the department, agency, or unit, as appropriate, shall be the defendant," in all actions pursuant to that section. The Postal Service submits that under this section the only proper defendant for Stewart's § 2000e-16 action is the Postmaster General and, citing Cooper v. U.S. Postal Service, 740 F.2d 714, 716 (9th Cir. 1984), cert. denied, 471 U.S. 1022, 85 L. Ed. 2d 316, 105 S. Ct. 2034 (1985), argues that a complaint that names the Postal Service instead must be dismissed for failure to state a claim under § 2000e-16.

 Stewart puts forth three arguments in support of his complaint. First, he claims that because Congress has waived sovereign immunity with regard to suits against the USPS, 39 U.S.C. § 401 (the USPS has the power to "sue and be sued in its official name"), his complaint can be maintained as a direct discrimination action against the USPS, independent of the requirements of § 2000e-16. However, the Supreme Court has ruled that § 2000e-16 is the "exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination." Brown v. Gen. Services Admin., 425 U.S. 820, 829, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976). Stewart's complaint therefore must succeed or fail within the strict parameters of § 2000e-16. See id. at 833.

 Stewart also argues that his complaint can be saved by an amendment pursuant to Fed.R.Civ.P. 15(c) changing the named defendant from the "Postal Service" to the "Postmaster General." Rule 15(c) provides:

 Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudice in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

 Stewart's argument runs thus: 1) the Postal Service had notice within the period provided by law for service of the complaint; 2) this notice can be imputed to the Postmaster General; 3) therefore an amendment of the complaint that substitutes the Postmaster General for the Postal Service would ...

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