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June 27, 1990


The opinion of the court was delivered by: Conboy, District Judge:


Plaintiff Robert Belton, originally pro se, began this action in April of 1988, alleging that the United States Postal Service ("USPS") discriminated against him because of his race and physical handicap when it terminated him from his employment. By Memorandum Endorsement dated December 15, 1989, this Court denied the USPS's motion to dismiss for lack of subject matter jurisdiction. In addition, we denied the USPS's alternative motion for summary judgment, with leave to renew.*fn1 The USPS has renewed its motion for summary judgment. At the same time, the USPS again asks us, pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure, to dismiss for lack of subject matter jurisdiction. For the reasons given below, the motion to dismiss is granted.


Belton is a former postal worker. His claim arises out of a settlement agreement Belton and the USPS entered into in March of 1986, to resolve Belton's claim that, in removing him from his job in June of 1985, the USPS discriminated against him on the basis of his race and physical disability, a skin condition. The settlement provided that Belton would abandon his discrimination claim in exchange for the opportunity to complete letter sorting machine ("LSM") training, in preparation for a new position with the USPS. After completing a week and a half of the training, Belton dropped out of the program, apparently because he was physically unable to complete it.

On February 2, 1987, Belton petitioned the USPS to reopen his discrimination claims, alleging that the USPS had not abided by the settlement. After the USPS denied this request, Belton appealed to the EEOC, which also denied Belton's claim. Belton appealed, and the EEOC issued a final determination against Belton on March 3, 1988, concluding that it was Belton who failed to abide by the settlement when he quit the LSM training. Belton received the EEOC's final decision, along with a right-to-sue letter, on March 8, 1988. The right-to-sue letter indicated that Belton had 30 days to appeal the decision to a federal court.

Belton filed his complaint, alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1982), and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. (1982 & Supp. IV 1986), in the Pro Se Office on April 6, 1988, one day before the 30-day period expired. At the same time, he filed a petition to proceed in forma pauperis, which was granted on May 27, 1988. By July 18, 1988, however, Belton had not yet forwarded to the United States Marshals the necessary paperwork for service of the summons and complaint on the defendants. At a conference before the Court, Belton explained that this was because he was amending his complaint. Belton further indicated that he would forward the papers to the Marshals within the next few days. The United States Attorney and the USPS were served a copy of the amended complaint on August 24, 1988.*fn2 Because they were never served a copy of the original complaint, the service in August, 1988 was the first formal notice of the complaint that the defendants received.*fn3

Because Belton named the USPS, and not the Postmaster General, as a defendant, the USPS moved, in late 1988,*fn4 to dismiss the complaint for failure to name the proper party as a defendant. Section 717(c) of Title VII, 42 U.S.C. § 2000e-16(c), provides that a federal employee must file his action within 30 days of receiving his right-to-sue letter from the EEOC and "the head of the department, agency, or unit as appropriate, shall be the defendant" (emphasis supplied).*fn5 Thus, the only proper party defendant in an employment discrimination action involving the USPS is the Postmaster General. See Stewart v. United States Postal Service, 649 F. Supp. 1531, 1533 (S.D.N.Y. 1986). Belton's right-to-sue letter indicated that, if he filed a civil action, he "must name the appropriate official agency head or department head as the defendant."

  Belton sought to amend his complaint a third time, to name
the Postmaster General as a party. For an amendment adding a
new party to relate back to an original complaint under Rule
15(c) of the Federal Rules of Civil Procedure, the new
defendant must have had actual notice of the institution of
the original action before the statute of limitations as to
that new defendant has expired. Because Belton did not serve
the complaint within the statute of limitations, no one
received notice within the limitations period, not even the
party named in the complaint. It seemed therefore that Belton
could not amend his complaint. See Schiavone v. Fortune,
477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) (for amendment
changing the defendant to relate back to the date of the
original pleading, the party to be brought in must have
received notice of the action within the statute of limitations
period); Hughes v. United States Postal Service, 700 F. Supp. 779
 (S.D.N.Y. 1988) (complaint dismissed where plaintiff failed
to name Postmaster General and failed to serve the USPS within
30 days of receiving right-to-sue letter); Stewart v. United
States Postal Service, 649 F. Supp. at 1534.

Because we recognized, as have other courts, that this result, based on a technical pleading requirement in the statute, was extremely harsh, particularly for a pro se litigant, see Hughes, 700 F. Supp. at 782 (Mukasey, J.); Stewart, 649 F. Supp. at 1534-35 (Sweet, J.), we determined, in our prior ruling, that the 30-day limit should be equitably tolled, and granted Belton leave to file an amended complaint. Other circuits have allowed the limitations period to be tolled during the pendency of an in forma pauperis motion. See Mondy v. Secretary of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988); Paulk v. Department of the Air Force, Chanute Air Force Base, 830 F.2d 79, 82-83 (7th Cir. 1987). In this case, after being granted in forma pauperis status, Belton received the papers to be forwarded to the Marshals for service in mid-June. At the same time, Belton was attempting to amend his complaint. Although it took Belton a few weeks to fill out the papers and organize them for service, we believed that this short delay was excusable. We also did not believe that the USPS was prejudiced thereby, since they had learned of Belton's lawsuit from his notice of a status conference, mailed on July 1, 1988. Moreover, the Assistant United States Attorney obtained a copy of the summons and complaint from the public records room on July 18, 1988. Accordingly, we found that the statute of limitations should be equitably tolled, and that Belton could therefore amend his complaint to name the Postmaster General as a defendant.


In support of its renewed motion to dismiss for lack of subject matter jurisdiction, the USPS now argues that the 30-day period provided in 42 U.S.C. § 2000e-16(c) is jurisdictional and therefore cannot be equitably tolled. The USPS did not bring this argument to our attention in its first motion to dismiss; indeed, the USPS was "prepared to concede" that the limitations period should be tolled while a pro se litigant's application to proceed in forma pauperis is pending. Memorandum in Support of Motion to Dismiss or, in the Alternative, for Summary Judgment, dated October 24, 1988, at 11, n.*. Although it now cites cases in support of its position that were decided before it filed its first motion, including a Second Circuit case, the USPS explains that a recent Ninth Circuit case, Mahoney v. United States Postal Service, 884 F.2d 1194 (9th Cir. 1989), has persuaded it to raise the subject matter jurisdiction argument in all appropriate matters. Memorandum in Support of United States Postal Service's Renewed Motion for Summary Judgment ("Def. Mem.") at 13, n.*. Although we do not find the reasoning of the Ninth Circuit in Mahoney persuasive, we believe that Second Circuit precedent requires us to dismiss for lack of subject matter jurisdiction.

The question of the whether the 30-day limitation in Section 2000e-16(c) is a restriction on subject matter jurisdiction, or a statute of limitations subject to equitable tolling, has not yet been decided by the Supreme Court.*fn6 The circuits that have ruled have split on the issue. See Mahoney, supra, 884 F.2d at 1200 (jurisdictional); Mondy v. Secretary of the Army, 845 F.2d 1051 (D.C. Cir. 1988) (non-jurisdictional); Bell v. Veterans Admin. Hosp., 826 F.2d 357, 360-61 (5th Cir. 1987) (jurisdictional); Hornsby v. United States Postal Service, 787 F.2d 87, 89 (3d Cir. 1986) (non-jurisdictional); Zografov v. V.A. Medical Center, 779 F.2d 967 (4th Cir. 1985) (non-jurisdictional); Sims v. Heckler, 725 F.2d 1143, 1146 (7th Cir. 1984) (jurisdictional); Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984) (non-jurisdictional); Milam v. United States Postal Service, 674 F.2d 860, 862 (11th Cir. 1982) (non-jurisdictional); Brown v. General Services Admin., 507 F.2d 1300 (2d Cir. 1974) (jurisdictional).

As the USPS points out, the circuits that have held that the period is not jurisdictional have relied on a Supreme Court decision, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), which permitted equitable tolling in suits against private employers, brought pursuant to 42 U.S.C. § 2000e-5. In Zipes, the Court held that the 90-day (now 180-day) time limit for filing a Title VII claim against a private employer with the EEOC was not jurisdictional and was, "like a statute of limitations, . . . subject to waiver, estoppel, and equitable tolling." Id. at 393, 102 S.Ct. at 1132. The Court based its decision upon (1) Congress's having expressed the time limit in a provision (42 U.S.C. § 2000e-5(e)) entirely separate from the one that defines the jurisdiction of the courts (§ 2000e-5(f)), 455 U.S. at 394-95, 102 S.Ct. at 1133; (2) legislative history, id.; (3) prior cases reflecting an assumption that the filing requirement was not jurisdictional, id. at 397-98, 102 S.Ct. at 1134-35; and (4) Title VII's remedial purpose, id. at 398, 102 S.Ct. at 1135.

Relying on Zipes, the District of Columbia Circuit determined, in one of the cases which persuaded us in our prior decision to permit equitable tolling, that the 30-day period in Section 2000e-16 could be equitably tolled in an action against the government, in particular, the United States Army. Mondy v. Secretary of the Army, 845 F.2d at 1057. The court recognized that such an "[e]xtension of equitable tolling to [claims against the government] is not automatic by any means, for the government enjoys sovereign immunity, and waivers of such immunity are narrowly read." Id. at 1055 (citing United States v. Mottaz, 476 U.S. 834, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957)). The court found no "exceptionally emphatic language" in Section 2000e-16(c) which could be read as a "sign of legislative intent that a time limit should be jurisdictional." Id. at 1055-56. In addition, the court found significance in Section 2000e-16(c)'s 30-day time limit's being placed in a provision separate from the ...

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