Unpublished Disposition, 851 F.2d 360 (9th Cir. 1986)

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U.S. Court of Appeals for the Ninth Circuit - 851 F.2d 360 (9th Cir. 1986)

Steven C. KELLY, Plaintiff-Appellant,v.UNITED STATES of America, DEPARTMENT OF the AIR FORCE,Defendant-Appellee.

No. 87-2346.

United States Court of Appeals, Ninth Circuit.

Submitted May 18, 1988.* Decided June 22, 1988.



Kelly appeals the district court's dismissal of his complaint for failing to name the proper party defendant within the thirty day statutory period set forth in 42 U.S.C. § 2000-16(c) 1982. We review de novo the district court's dismissal for lack of subject matter jurisdiction. Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir. 1986).

The Air Force denied Kelly's application for employment at Hickman Air Force Base. He filed a discrimination complaint with the Equal Employment Opportunity Commission. On August 13, 1986, the Commission rejected Kelly's claim. Pursuant to 42 U.S.C. § 2000-16(c), Kelly was required to file a civil suit within thirty days after the Commission's ruling, and he was required to name "the head of the [relevant] department, agency, or unit," in this case the Secretary of the Air Force, as the defendant. Id. He did not name the Secretary as the defendant within thirty days; his suit was therefore properly subject to dismissal. Cooper v. United States Postal Serv., 740 F.2d 714, 716 (9th Cir. 1984), cert. denied, 471 U.S. 1022 (1985).

Nor was Kelly entitled to amend his complaint to add the Secretary as a defendant and have the amendment relate back to the date of the original complaint. Fed. R. Civ. P. 15(c). We construe rule 15(c) strictly, and under similar circumstances have held that it does not authorize the type of amendment that would save plaintiff's lawsuit. Lofton, 781 at 1392-93 & n. 1 (applying Rule 15(c) to bar action by pro se claimant, recognizing that rule can produce harsh results); Cooper, 740 F.2d at 717 ("failure to notify the substitute defendant of the institution of [the] action until after the statutory period had run precludes the application of rule 15(c)"); Schiavone v. Fortune, 477 U.S. 21, 29-32 (1986) (plain language of Rule 15(c) controls; requirement of notice strictly construed).



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3