Unpublished Disposition, 887 F.2d 1089 (9th Cir. 1988)

No. 88-1896.

United States Court of Appeals, Ninth Circuit.

Before GOODWIN, Chief Judge, REINHARDT, Circuit Judge, and A. WALLACE TASHIMA,^**  District Judge.

MEMORANDUM^*** 

Eva Brent appeals from the dismissal with prejudice of her Title VII suit. The district court dismissed for lack of jurisdiction because Brent failed to name and serve the proper party within the thirty-day time period provided by 42 U.S.C. § 2000e-16(c) (1982). We affirm.

Eva Brent filed an administrative complaint with the Equal Employment Opportunity Commission (EEOC), claiming that the Veterans Administration refused to hire her because of her national origin and sex. Her complaint was rejected as untimely. The Office of Appeals and Review affirmed this rejection and issued a right-to-sue letter informing Brent that the official agency or department head must be named if a civil action is filed. Brent claimed to have received this notice on May 28, 1988.

On June 22, 1987, Brent filed this Title VII suit against the VA Hospital¹  and James DeNiro, the Medical Director of the VA Hospital, in Palo Alto. The complaint was served on the United States Attorney's Office on November 27, 1987, five months after the filing of this suit.

By Order of February 19, 1988, the district court granted the government's motion to dismiss (to which Brent had filed no opposition papers) on the ground that Brent had failed to name and serve the proper party and this failure deprived it of jurisdiction to consider the case.

Brent filed this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1982). Section 2000e-16(c) provides:

Within thirty days of receipt of notice of final action taken by a department, agency, or unit ..., or by the Equal Employment Opportunity Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination ..., an employee ... may file a civil action ..., in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.

This section states that "the head of the department, agency, or unit ... shall be the defendant" in Title VII actions. Thus, Thomas Turnage, Administrator of Veterans Affairs at the time of this complaint, was the proper defendant. Brent was required to name either Turnage by name or, as provided in Fed. R. Civ. P. 25(d) (2), by title. Instead, she named the Veterans Hospital and James DeNiro, the medical director of the Veterans Hospital in Palo Alto.

In this circuit the naming of the proper defendant within the thirty-day period is a jurisdictional requirement. Hymen v. Merit Systems Protection Board, 799 F.2d 1421, 1422 (9th Cir. 1986) (applying requirement to pro se litigant). An attempt to amend a complaint to correct for a deficiency after the expiration of the thirty-day period does not relate back to the date the complaint was originally filed. Cooper v. United States Postal Service, 740 F.2d 714, 716 (9th Cir. 1984).

In accordance with this circuit's practice of construing liberally the papers of pro se litigants, this circuit will find the jurisdictional requirement of Sec. 2000e-16 to be satisfied where the pro se litigant attaches to his complaint an administrative order naming the proper defendant. Hymen, 799 F.2d at 1422. The papers which Brent submitted with her complaint, however, do not name the Administrator of Veterans Affairs.

Because the district court correctly found that it lacked jurisdiction over this case, its order of February 19, 1988 is AFFIRMED.