Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1417 (9th Cir. 1987)

Caruna D. KRISHNAN, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.Caruna D. KRISHNAN, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

Nos. 89-15454, 89-15456.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1990.* Decided Feb. 9, 1990.

Before CANBY, BRUNETTI and FERNANDEZ, Circuit Judges.


Caruna D. Krishnan, appearing pro se, appeals the district court's dismissal of his Title VII action for failure to properly serve the summons and complaint. We have jurisdiction over these consolidated cases under 28 U.S.C. § 1291 and we affirm.

We review a district court's dismissal of a complaint for failure to serve pursuant to Fed. R. Civ. P. 4(j) for abuse of discretion. See Hart v. United States, 817 F.2d 78, 89 (9th Cir. 1987).

This court may affirm a dismissal because the district court lacked jurisdiction over an action even though the district court dismissed on other grounds. See Smith v. Block, 784 F.2d 993, 996 (9th Cir. 1986). Consequently, although Krishnan's complaint contains several deficiencies, we address the fatal flaw of his failure to timely file the complaint.

Krishnan's complaint alleges a cause of action against the United States Department of the Air Force under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. A federal employee bringing a civil claim against the government under Title VII must satisfy certain procedural requirements. He must file a complaint within thirty days of his receipt of notice of a final decision from the agency or department employing him or the Equal Employment Opportunity Commission (EEOC), and he must name the head of the employing agency or department as the party defendant. 42 U.S.C. § 2000e-16(c); Lubniewski v. Lehman, 891 F.2d 216, 219 (9th Cir. 1989); Koucky v. Department of the Navy, 820 F.2d 300, 301-02 (9th Cir. 1987). A complaint may not be amended to substitute a defendant after the limitations period has expired unless the party to be substituted received notice of the action within the limitations period. Fed. R. Civ. P. 15(c); Schiavone v. Fortune, 477 U.S. 21, 31 (1986); Lubniewski, 891 F.2d at 219.

Here, Krishnan admits that he received notice of final decision and a right-to-sue letter from the EEOC on either March 10, 1987 or December 5, 1985. He did not file his complaint until December 3, 1987, and named "USA" as defendant rather than the Secretary of the Air Force as is required by the statute. See 42 U.S.C. § 2000e-16(c). He has never served the complaint. Because he did not file suit within 30 days of his receipt of the EEOC's right-to-sue letter, his action is time-barred. See 42 U.S.C. § 2000e-16(c).

Therefore, the district court properly dismissed the complaint. See 42 U.S.C. § 2000e-16(c); Lubniewski, 891 F.2d at 219; Koucky, 820 F.2d at 302.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth 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