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Johnson v. Burnley

decided as corrected.: October 6, 1989.


Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. CA-86-60-2-CIV.

Author: Murnaghan

Murnaghan, Circuit Judge

Margaret F. Johnson appeals the district court's entry of summary judgment on her sex discrimination claim challenging her dismissal from a government secretarial job. She also seeks to have her dismissal invalidated under federal civil service law because of alleged procedural error in the disciplinary process that culminated in her firing.


Johnson was dismissed in 1986 from a secretarial job at the United States Coast Guard's Aircraft Repair and Supply Center in Elizabeth City, North Carolina. The government contends it fired her for excessive tardiness and unexcused absences which continued despite repeated warnings and reprimands from her superiors. Johnson argues that the tardiness issue is but a pretext for gender discrimination in her dismissal.

Johnson appealed her firing to the Merit Systems Protection Board, which upheld the dismissal. She then sought review in federal district court pursuant to 5 U.S.C. § 7703(b)(2), asserting a sex discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and challenging her dismissal under the Civil Service Reform Act of 1978, which authorizes judicial invalidation of personnel actions taken in violation of laws or government regulations. 5 U.S.C. § 7703(c)(2).*fn1

Although the district court expressed doubt about its jurisdiction,*fn2 it nonetheless granted summary judgment in favor of the government on grounds that Johnson had failed to bring forth evidence to support a prima facie showing of sex discrimination. Alternatively, the court held that even if Johnson had made a prima facie showing, the government had articulated a legitimate, nondiscriminatory reason for Johnson's firing, and that Johnson's evidence, as a matter of law, would be insufficient to prove the government's proffered explanation was mere pretext. The court failed to explain its reasons for rejecting Johnson's efforts to have her dismissal invalidated on grounds of alleged procedural errors in the disciplinary process.


We turn first, as we must, to the question of the district court's subject matter jurisdiction to decide Johnson's case. A federal appellate court lacks discretion to review the merits until it satisfies itself that the court below had subject matter jurisdiction over the case. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 89 L. Ed. 2d 501, 106 S. Ct. 1326 (1986); Mansfield Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U.S. 379, 382, 28 L. Ed. 462, 4 S. Ct. 510 (1884). Aside from abstract concepts of judicial power and federalism that underlie our obligation to decide the jurisdictional question, there are practical reasons that a federal court should refrain from making any pronouncement on the merits until it resolves doubts about subject matter jurisdiction. Dismissal of a case for lack of subject matter jurisdiction carries with it no claim preclusive effects. Shoup v. Bell & Howell Co., 872 F.2d 1178, 1180 (4th Cir. 1989). By contrast, disposal of a case on the merits (including a grant of summary judgment) or for failure to comply with the statute of limitations, unless the court so ruling does so on a without-prejudice basis, does operate as res judicata barring subsequent litigation of the same claim in federal court. Id. at 1180-81.

The threshold question here is whether the 30-day time limit of 5 U.S.C. § 7703(b)(2) for seeking review of a decision of the Merit Systems Protection Board ("Board") in a discrimination case is a subject matter jurisdictional requirement or, instead, is equivalent to a statute of limitations subject to equitable tolling, estoppel or waiver. Section 7703(b)(2) provides that parties may obtain judicial review of Board decisions in discrimination cases by filing

under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as applicable. Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action. ..

(Emphasis added).

Johnson failed to comply with Section 7703(b)(2)'s 30-day deadline. Because Johnson's case involved allegations of gender discrimination, she was required to file suit under Title VII of the Civil Rights Act of 1964, which specifies that "the head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. § 2000e-16(c). Naming a government department as the defendant will not satisfy Title VII's filing requirements. See Warren v. Dep't of Army, 867 F.2d 1156, 1158 (8th Cir. 1989); Cooper v. United States Postal Service, 740 F.2d 714, 715-16 (9th Cir. 1984), cert. denied, 471 U.S. 1022, 85 L. Ed. 2d 316, 105 S. Ct. 2034 (1985). Johnson initially failed to comply with Title VII because her original complaint omitted the Secretary of Transportation as a defendant, but instead named the Department of Transportation, the Coast Guard and the Aircraft Repair and Supply Center where she had worked. She later corrected the mistake by amending her complaint to name the Secretary, but failed to do so until after the expiration of Section 7703(b)(2)'s 30-day deadline for filing suit in the district court.

Johnson's amendment will be deemed to relate back to the time of the original filing only if the Secretary of Transportation had received notice of the suit prior to expiration of the 30-day deadline. See Schiavone v. Fortune, 477 U.S. 21, 29, 91 L. Ed. 2d 18, 106 S. Ct. 2379 (1986); Fed.R.Civ. P. 15(c). The record reveals no evidence that the Secretary of Transportation received notice of Johnson's suit during the 30-day period. The mere naming of the Transportation Department as defendant, without more, is insufficient as a matter of law to put the Transportation Secretary on notice of the suit. See Gardner v. Gartman, 880 F.2d 797, slip op. at 4-5 (4th Cir. 1989); Cooper, 740 F.2d at 717. There is no evidence that Johnson served the complaint on the Secretary or anyone designated to receive service on the Secretary's behalf before expiration of the 30-day deadline. Johnson therefore cannot invoke Fed.R.Civ.P. 15(c) to relate her joinder of the Secretary back to the time of the filing of her original complaint in the district court.

The government argues that Johnson's failure to comply with the filing deadline of Section 7703(b)(2) deprives the federal courts of subject matter jurisdiction over her claims. Although all other federal circuits that have decided the issue have construed the 30-day deadline as a jurisdictional requirement, we believe the time period specified in Section 7703(b)(2) is, in cases involving gender or race discrimination claims, equivalent to a statute of limitations subject to equitable tolling, waiver or estoppel in appropriate circumstances.*fn3 The district court therefore had jurisdiction to proceed to the merits of Johnson's claims.

Of the five circuits that have addressed the question, three have concluded that Section 7703(b)(2)'s time limit is jurisdictional. Hilliard v. United States Postal Service, 814 F.2d 325, 327 (6th Cir. 1987); Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir. 1986) (per curiam);*fn4 King v. Dole, 251 U.S. App. D.C. 192, 782 F.2d 274, 275-77 (D.C.Cir.) (per curiam), cert. denied, 479 U.S. 856, 107 S. Ct. 194, 93 L. Ed. 2d 126 (1986). See also Taylor v. Tisch, 686 F. Supp. 304, 307-08 (S.D. Fla. 1988) (jurisdictional). Two other circuits have left open the question. James v. United States Postal Service, 835 F.2d 1265, 1267 (8th Cir. 1988); Lee v. United States Postal Service, 774 F.2d 1067, 1068-69 & n. 2 (11th Cir. 1985) (per curiam). See also Edinboro v. Dep't of Health & Human Services, 704 F. Supp. 364, 366 (S.D.N.Y. 1988) (declining to decide the jurisdictional question). No circuit, to our knowledge, has construed Section 7703(b)(2)'s 30-day deadline as non-jurisdictional.*fn5

We part company with those circuits that have construed Section 7703(b)(2)'s deadline as jurisdictional because their interpretation is, we believe, contrary to congressional intent. Neither the plain language nor the legislative history of Section 7703(b)(2) evinces any intent to impose the 30-day deadline as a jurisdictional barrier to suit in federal court. Instead, Section 7703(b)(2), by explicitly incorporating Title VII procedures for cases involving alleged racial or gender discrimination, demonstrates Congress' intent that the 30-day deadline be interpreted as non-jurisdictional, as are various limitations periods in Title VII.

We turn first to the plain language of Section 7703(b)(2). Admittedly, the statute uses mandatory language to prescribe the time limit: "Notwithstanding any other provision of law . . . any such case . . . must be filed within 30 days. . . ." 5 U.S.C. § 7703(b)(2) (emphasis added). The District of Columbia Circuit has read the mandatory language as a "clear and emphatic" indication of congressional intent to establish the 30-day deadline as a jurisdictional requirement, rather than a traditional limitations period. See King, 782 F.2d at 276. We disagree. The Supreme Court has emphasized that mere use of mandatory language does not convert a statutory time limit into a jurisdictional requirement. Brock v Pierce County, 476 U.S. 253, 258-62, 90 L. Ed. 2d 248, 106 S. Ct. 1834 (1986) (time limit containing word "shall"). The Court has construed a time limit in Title VII as non-jurisdictional, even though it is phrased in language equally as mandatory as that used in Section 7703(b)(2)'s 30-day deadline. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982) (interpreting 42 U.S.C. § 2000e-5(e), which states that a charge "shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred. . . ." (emphasis added)). Because "must" and "shall" are virtually synonymous under traditional principles of statutory construction,*fn6 Zipes and Pierce County illustrate that the mandatory language of Section 7703(b)(2) in no way compels us to interpret the deadline as a jurisdictional barrier to tardy litigants.

The legislative history of Section 7703(b)(2) is no more helpful than the literal language of the statutory time limit in resolving the jurisdictional question. Only scant references to the 30-day deadline appear in the legislative history and none sheds any light on congressional intent. see, e.g., S.Rep. No. 969, 95th Cong., 2d Sess. 63-64, reprinted in 1978 U.S.Code Cong. & Admin.News 2723, 2785-86.

Congress has provided some guidance, however, by explicitly incorporating into Section 7703(b)(2) three anti-discrimination statutes -- Title VII, the Age Discrimination in Employment Act ("ADEA"), and the Fair Labor Standards Act ("FLSA"). Section 7703(b)(2) requires the aggrieved employee who seeks judicial review of a Board decision in a discrimination case to file suit under one of the three statutes, depending on the type of discrimination alleged. In a sex discrimination case such as Johnson's, suit must be filed under Section 717(c) of Title VII, 42 U.S.C. § 2000e-16(c). We believe that by incorporating those anti-discrimination statutes into Section 7703(b)(2), Congress intended for 7703(b)(2)'s time limit to be treated as flexibly as the deadlines in the incorporated statutes. For example, in a gender ...

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