Unpublished Disposition, 883 F.2d 1024 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1024 (9th Cir. 1989)

Richard STRAND, Plaintiff-Appellant,v.DEFENSE LOGISTICS AGENCY, Defendant-Appellee.

No. 88-3747.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 10, 1989.* Decided Aug. 17, 1989.

Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.


MEMORANDUM** 

The district court dismissed appellant's complaint for jurisdictional defects. We affirm.

* The Defense Logistics Agency fired appellant after appellant failed to meet a job prerequisite. Appellant sought review before the Merit Systems Protection Board ("MSPB") and the Equal Employment Opportunity Commission ("EEOC"). After the MSPB sustained the Agency's decision to terminate appellant and the EEOC denied consideration of the MSPB determination under 5 U.S.C. § 7702(b) (2), appellant lodged a civil rights complaint in district court. Eventually the EEOC decided to consider and to concur in the MSPB decision, whereupon appellant attempted to amend his complaint. The district court dismissed appellant's complaint for jurisdictional defects. Appellant timely appeals.

II

We review a Rule 12(b) motion to dismiss de novo. Morrison Knudsen Co. v. CGH, Int'l, Inc., 811 F.2d 1209, 1215 (9th Cir. 1987).

The district court dismissed Strand's complaint on alternative grounds of (1) failure to timely file and (2) failure to name the proper defendant.1  Because we conclude that the second ground is dispositive, we do not reach the alternative ground.

III

This circuit construes the jurisdictional requirements of 42 U.S.C. § 2000e-16 strictly. Hymen v. Merit Systems Protection Bd., 799 F.2d 1421, 1422 (9th Cir. 1986) ("Cases in this circuit hold that the naming of the proper defendant within the 30-day period is a jurisdictional requirement" even though the plaintiff is a pro se); Koucky v. Department of the Navy, 820 F.2d 300, 302 (9th Cir. 1987) (plaintiff must name "the head of the department, agency or unit" as defendant) (citations omitted).2 

Here, the statute states plainly that " [w]ithin thirty days of receipt of notice of final action taken by a department, agency, or unit ... an employee ... may file a civil action ... in which civil action the head of the department ... shall be the defendant." 42 U.S.C. § 2000e-16(c) (emphasis added). Likewise the EEOC right-to-sue letter states that the complainant "MUST NAME THE APPROPRIATE OFFICIAL AGENCY OR DEPARTMENT HEAD AS THE DEFENDANT" (emphasis in original).

Appellant, though warned, failed to name the Secretary of Defense as the defendant in both his original and amended complaint.3  Therefore, dismissal was not error.

Because appellant failed to meet the statutory jurisdictional requirements, the district court properly dismissed the complaint.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 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 Ninth Circuit Rule 36-3

 1

Statute defines the Defense Logistics Agency as a "combat support agency" under the Department of Defense. 10 U.S.C. § 193(f). The Secretary of Defense has oversight over the agency. 10 U.S.C. § 192(a). The Department of Defense is an executive agency, defined in 5 U.S.C. § 101, and thus liable to suit as an executive agency under 42 U.S.C. § 2000e-16(a). Thus, the Secretary, as head of the Defense Department, was the proper defendant

 2

We note that had appellant filed papers which identified the Secretary of Defense as the defendant, today's harsh result would not be necessary. Cf. Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1085-86 (9th Cir. 1983) (plaintiff failed to name proper defendant but attached papers which identified proper defendant); Cupp v. Veterans Admin. Hosp., 677 F. Supp. 1018, 1019 (N.D. Cal. 1987) (same)

 3

We note that appellant's pleadings clarify that he intended the Defense Logistics Agency to be the defendant. Appellant reasoned that because the appellee has dismissed him, appellee, not the Secretary, was the proper defendant