Filed: Nov. 14, 2019
Latest Update: Mar. 03, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ALISHA R. SILBAUGH, No. 18-35756 Plaintiff-Appellant, D.C. No. v. 2:17-cv-01759- RSM ELAINE L. CHAO, Secretary of the Department of Transportation, Defendant-Appellee. OPINION Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, Chief District Judge, Presiding Argued and Submitted July 12, 2019 Seattle, Washington Filed November 14, 2019 Before: Danny J. Boggs, * Marsha S. Ber
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ALISHA R. SILBAUGH, No. 18-35756 Plaintiff-Appellant, D.C. No. v. 2:17-cv-01759- RSM ELAINE L. CHAO, Secretary of the Department of Transportation, Defendant-Appellee. OPINION Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, Chief District Judge, Presiding Argued and Submitted July 12, 2019 Seattle, Washington Filed November 14, 2019 Before: Danny J. Boggs, * Marsha S. Berz..
More
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALISHA R. SILBAUGH, No. 18-35756
Plaintiff-Appellant,
D.C. No.
v. 2:17-cv-01759-
RSM
ELAINE L. CHAO, Secretary of the
Department of Transportation,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Argued and Submitted July 12, 2019
Seattle, Washington
Filed November 14, 2019
Before: Danny J. Boggs, * Marsha S. Berzon,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Watford
*
The Honorable Danny J. Boggs, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 SILBAUGH V. CHAO
SUMMARY **
Fed. R. Civ. P. 15(c) Relation Back of Amendments
The panel reversed the district court’s dismissal of
plaintiff’s action alleging that the Federal Aviation
Administration (“FAA”) wrongfully terminated her
employment.
Plaintiff filed her action in the district court within the
30-day limitations period set by statute, see 5 U.S.C.
§ 7703(b)(2), but she mistakenly named the FAA and her
former supervisor as the defendants. Because plaintiff’s suit
alleged claims of discrimination under Title VII of the Civil
Rights Act of 1964, plaintiff was required to name as the
defendant the head of the executive agency to which the
FAA belongs – Elaine Chao, the Secretary of Transportation.
After the 30-day statute of limitations passed, the FAA
moved to dismiss on the ground that plaintiff had named the
wrong defendant. Plaintiff filed an amended complaint to
substitute Secretary Chao as the defendant. The district
court dismissed because it found that the amended complaint
did not relate back to the date of the original complaint under
the requirements of Fed. R. Civ. P. 15(c), and plaintiff’s
action was barred by the statute of limitations.
The panel held that plaintiff was entitled to relation back
under Fed. R. Civ. P. 15(c)(2). Specifically, the panel held
that the application of Rule 15(c)(2) to the facts of this case
was straightforward. The panel further held that the district
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SILBAUGH V. CHAO 3
court reached the opposite conclusion by adopting an overly
technical interpretation of the term “process” as used in Rule
15(c)(2). The panel held that the notice-giving function of
“process” under Rule 15(c)(2) was accomplished whether or
not the summons accompanying the complaint was signed
by the clerk of court.
In addition, the panel held that the requirements for
relation back were met here where both the United States
Attorney and the Attorney General were sufficiently notified
of plaintiff’s action within the 90-day period prescribed by
Fed. R. Civ. P. 4(m). The panel noted that the record did not
reveal whether plaintiff also sent a copy of the valid
summons and the amended complaint to Secretary Chao.
Because plaintiff properly served both the U.S. Attorney and
the Attorney General, she was entitled to additional time to
mail a copy of the summons and amended complaint to
Secretary Chao if necessary. Fed. R. Civ. P. 4(i)(4)(A). The
panel remanded for the district court to address that issue in
the first instance.
COUNSEL
Timothy Patrick O’Donnell, Mercer Island, Washington;
Aaron V. Rocke, Rocke Law Group PLLC, Seattle,
Washington; for Plaintiff-Appellant.
Teal Luthy Miller (argued) and Sarah K. Morehead,
Assistant United States Attorneys; Annette L. Hayes, United
States Attorney; United States Attorney's Office, Seattle,
Washington; for Defendant-Appellee.
4 SILBAUGH V. CHAO
OPINION
WATFORD, Circuit Judge:
This case involves a common problem in suits against
officers or agencies of the United States: The plaintiff files
her action within the statute of limitations, but discovers
after the limitations period has expired that she named the
wrong defendant. The problem arises with some frequency
because a plaintiff may sue the federal government only if
the United States waives its sovereign immunity, and
Congress has in some instances conditioned such a waiver
on the naming of a particular person or entity as the
defendant. Those directives are not always intuitive. For
certain types of claims, the plaintiff may be required to name
the United States itself as the defendant, while for others the
plaintiff may be required to name a designated government
official, even though that official played no role in the events
giving rise to the lawsuit. Failure to name the correct
defendant can result in dismissal of the plaintiff’s case.
Fixing a mistake of this sort is simple enough if the
statute of limitations has not yet run, for the plaintiff can file
a new action naming the correct defendant. But if the time
for filing suit has passed, the plaintiff’s claims will be time-
barred unless the plaintiff can amend her complaint to add
the correct defendant and have that amendment “relate back”
to the original, timely filed complaint. Relation back of such
amendments is the province of Rule 15(c) of the Federal
Rules of Civil Procedure. The rule governs when an
amendment that “changes the party . . . against whom a
claim is asserted” will relate back to the date of the original
complaint. Fed. R. Civ. P. 15(c)(1)(C). And it contains a
specific provision—at issue here—that governs relation
back “[w]hen the United States or a United States officer or
SILBAUGH V. CHAO 5
agency is added as a defendant by amendment.” Fed. R. Civ.
P. 15(c)(2).
The plaintiff in this case, Alisha Silbaugh, invoked Rule
15(c) because she named the wrong defendant in her lawsuit
and did not discover the mistake until after the statute of
limitations had expired. She sued the Federal Aviation
Administration (FAA) after the agency terminated her
employment and the Merit Systems Protection Board
affirmed that decision. She filed her action in the district
court within the 30-day limitations period set by statute, see
5 U.S.C. § 7703(b)(2), but she mistakenly named the FAA
and her former supervisor as the defendants. Because
Silbaugh’s suit alleges claims of discrimination under Title
VII of the Civil Rights Act of 1964, she was required to name
as the defendant the head of the executive agency to which
the FAA belongs. 42 U.S.C. § 2000e-16(c); see 5 U.S.C.
§§ 101, 105. In this case, that person is Elaine Chao, the
Secretary of Transportation.
After the 30-day statute of limitations had expired, the
FAA moved to dismiss Silbaugh’s action on the ground that
she had named the wrong defendant. Silbaugh responded by
immediately filing an amended complaint that dropped the
FAA and her former supervisor as defendants and
substituted in their place Secretary Chao. In light of that
amendment, the district court struck the FAA’s motion to
dismiss as moot.
Secretary Chao then filed her own motion to dismiss.
She argued that Silbaugh’s action is barred by the statute of
limitations because her amended complaint was filed outside
the 30-day limitations period. Secretary Chao further argued
that Silbaugh’s amended complaint cannot relate back to the
date of her original complaint because the requirements for
relation back under Rule 15(c) have not been met. The
6 SILBAUGH V. CHAO
district court agreed and dismissed Silbaugh’s action with
prejudice.
The only issue before us is whether relation back is
permitted under Rule 15(c). The text of the provision
provides in full:
(c) Relation Back of Amendments.
(1) When an Amendment Relates Back.
An amendment to a pleading relates back to
the date of the original pleading when:
(A) the law that provides the
applicable statute of limitations allows
relation back;
(B) the amendment asserts a claim or
defense that arose out of the conduct,
transaction, or occurrence set out—or
attempted to be set out—in the original
pleading; or
(C) the amendment changes the party
or the naming of the party against whom
a claim is asserted, if Rule 15(c)(1)(B) is
satisfied and if, within the period
provided by Rule 4(m) for serving the
summons and complaint, the party to be
brought in by amendment:
(i) received such notice of the
action that it will not be prejudiced in
defending on the merits; and
SILBAUGH V. CHAO 7
(ii) knew or should have known
that the action would have been
brought against it, but for a mistake
concerning the proper party’s
identity.
(2) Notice to the United States. When the
United States or a United States officer or
agency is added as a defendant by
amendment, the notice requirements of Rule
15(c)(1)(C)(i) and (ii) are satisfied if, during
the stated period, process was delivered or
mailed to the United States attorney or the
United States attorney’s designee, to the
Attorney General of the United States, or to
the officer or agency.
Fed. R. Civ. P. 15(c). As explained below, we conclude that
Silbaugh is entitled to relation back under subsection (c)(2),
which obviates any need for us to decide whether she would
be entitled to relation back under subsection (c)(1).
Before parsing the language of the rule, it is helpful to
bear in mind the rule’s overriding purpose. The provisions
of Rule 15(c) are aimed at “the elimination of unjust
dismissals” resulting from pleading mistakes that cause no
prejudice to the defendant. Miles v. Department of the Army,
881 F.2d 777, 783 n.4 (9th Cir. 1989). If the conditions
specified in subsection (c)(1)(C) are satisfied, the defendant
brought in by amendment will be no worse off, in terms of
her ability to defend the action, than if she had been named
as a defendant initially. She will have received adequate
notice of the action within the period allowed for service of
the summons and complaint, and she will have realized (or
had a basis for realizing) that the action would have been
8 SILBAUGH V. CHAO
brought against her but for the plaintiff’s inadvertent
mistake. The plaintiff, by contrast, would suffer extreme
prejudice—dismissal of the action as time-barred—if the
amendment were not allowed to relate back to the date of the
original complaint. In these circumstances, the drafters of
the rule concluded, “to deny relation back is to defeat
unjustly the claimant’s opportunity to prove his case.”
Advisory Committee’s Notes on 1966 Amendments to Fed.
R. Civ. P. 15(c),
39 F.R.D. 69, 83 (1966).
The same rationale—absence of any prejudice to the
defendant but potentially severe prejudice to the plaintiff—
underlies the government-specific rule in subsection (c)(2).
That rule applies when the party to be added as a defendant
is the United States or one of its officers or agencies. It
provides that the notice requirements of subsection (c)(1)(C)
are satisfied if “process” was delivered or mailed to one of
several government officials during the period permitted for
service of the summons and complaint under Rule 4(m)—
i.e., within 90 days after the complaint is filed. When that
condition is satisfied, a responsible government official will
have received notice of the plaintiff’s action and will be
aware that the plaintiff seeks to sue the government even if
she has named the wrong defendant. In other words, the
government will have been “put on notice of the claim within
the stated period,” id., thereby negating any prejudice the
government might have suffered as a result of the plaintiff’s
pleading error.
The application of Rule 15(c)(2) to the facts of this case
is straightforward. No one disputes that the provision
applies here, as Silbaugh’s amended complaint seeks to add
“a United States officer”—Secretary Chao—as a defendant.
To satisfy the requirements for relation back, Silbaugh
needed to deliver or mail “process,” within the 90-day period
SILBAUGH V. CHAO 9
permitted under Rule 4(m), to one of the following officials:
the United States Attorney for the Western District of
Washington; the Attorney General of the United States; or
Secretary Chao herself. Rule 15 does not define the term
“process,” but it is commonly understood in this context to
mean a copy of the summons and complaint. See Miles,
881 F.2d at 782; cf. Fed. R. Civ. P. 4(c)(1). It is undisputed
that Silbaugh mailed a copy of the summons and complaint
to both the United States Attorney and the Attorney General
within the 90-day period permitted under Rule 4(m). It
would seem, then, that the requirements for relation back
under Rule 15(c)(2) have plainly been met.
The district court reached the opposite conclusion by
adopting what we regard as an overly technical interpretation
of the term “process” as used in Rule 15(c)(2). The court
held that Silbaugh’s mailing of the summons and complaint
did not count as “process” because the summons she sent
was not signed by the clerk of court. It is true that service of
a valid summons is necessary before the district court may
exercise personal jurisdiction over the defendant, and to be
valid a summons must indeed be signed by the clerk. Omni
Capital International, Ltd. v. Rudolf Wolff & Co., 484 U.S.
97, 104 (1987); Ayres v. Jacobs & Crumplar, P.A.,
99 F.3d
565, 568–69 (3d Cir. 1996); Fed. R. Civ. P. 4(a)(1)(F). But
if a summons contains the information otherwise required by
Rule 4(a)(1), we do not think the absence of the clerk’s
signature alone deprives the summons of its status as a
component of “process” under Rule 15(c)(2). As discussed
above, the rule’s requirement that process be mailed or
delivered to one of several specified officials is designed to
ensure that “the government was put on notice of the claim
within the stated period.” Advisory Committee’s Notes on
1966 Amendments to Fed. R. Civ. P.
15(c), 39 F.R.D. at 83.
The notice-giving function of “process” under subsection
10 SILBAUGH V. CHAO
(c)(2) is accomplished whether or not the summons
accompanying the complaint has been signed by the clerk.
This interpretation of the term “process” best accords
with our prior precedent interpreting Rule 15(c). Most on
point is Miles v. Department of the Army. There, we
interpreted an earlier version of the rule, which provided
(much as it does today) that “[t]he delivery or mailing of
process” to the United States Attorney or the Attorney
General satisfies the notice requirements necessary to permit
relation back. 881 F.2d at 781 n.3 (quoting the rule). The
plaintiff in that case served a copy of the summons and
complaint not on the United States Attorney or the Attorney
General, but on the local Staff Judge Advocate’s Office; that
office then mailed the documents to the United States
Attorney’s Office.
Id. at 779. We noted that even though
the plaintiff himself had not mailed or delivered process to
the United States Attorney, process had in fact been mailed
to that official, thus ensuring that a responsible government
official received adequate notice of the plaintiff’s claim.
Id.
at 782–83. In holding that the requirements for relation back
were therefore met, we stressed that “the central concern in
determining whether an amendment to a pleading should
relate back is not whether a particular service procedure is
employed to place the government on notice, but rather
whether the appropriate government official is in fact
sufficiently notified of the action” within the required time
period.
Id. at 783. 1
1
At the time we decided Miles, Rule 15(c) required mailing or
delivery of process within the period prescribed by the applicable statute
of limitations. See, e.g., Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir.
1986) (per curiam); Allen v. Veterans Administration,
749 F.2d 1386,
1389 (9th Cir. 1984); Cooper v. U.S. Postal Service,
740 F.2d 714, 717
SILBAUGH V. CHAO 11
Our decision in Miles shows that the requirements for
relation back were met here as well. Both the United States
Attorney and the Attorney General were “in fact sufficiently
notified” of Silbaugh’s action within the 90-day period
prescribed by Rule 4(m). To be sure, the test is not whether
either of those officials became aware of the action through
any means whatsoever. Unlike subsection (c)(1)(C), which
permits relation back if the defendant received notice of the
action through any means at all, including informal means,
see Miles, 881 F.2d at 783, subsection (c)(2) requires notice
through one specific means—the summons and complaint.
But, as we said in Miles, “the drafter’s clear lack of concern
regarding whether formal procedures are employed to place
the defendant on notice for purposes of the general notice
provision [in subsection (c)(1)(C)] is highly relevant in
determining whether formal notice should be required when
the government notice provision is implicated.”
Id. at 783
n.4. That line of reasoning supports the conclusion that
mailing or delivering the summons and complaint is
sufficient to permit relation back under subsection (c)(2)
even if, as a formal matter, the summons is deficient because
it lacks the clerk’s signature.
In sum, Silbaugh’s mailing of the summons and
complaint to either the United States Attorney or the
Attorney General satisfied the requirements for relation back
under Rule 15(c)(2), notwithstanding the fact that the
summons was not signed by the clerk of court. Her amended
(9th Cir. 1984). The 1991 amendments to Rule 15(c) changed that
requirement by specifying that the period permitted for service of
process under Rule 4(m) governs instead. See 6A Charles Alan Wright
et al., Federal Practice and Procedure § 1498.1, at 132–33 (3d ed. 2010).
12 SILBAUGH V. CHAO
complaint naming Secretary Chao as the proper defendant
therefore relates back to the date of her original complaint.
For the district court to exercise personal jurisdiction
over Secretary Chao, however, Silbaugh must have served
her with a valid, properly signed summons and the amended
complaint. Under Rule 4(i), to effect service on Secretary
Chao (who is sued here only in her official capacity),
Silbaugh was required to mail or deliver a copy of a valid
summons and the amended complaint to: (1) the United
States Attorney for the Western District of Washington; (2)
the Attorney General; and (3) Secretary Chao. See Fed. R.
Civ. P. 4(i)(1)–(2). The record reflects that Silbaugh sent a
copy of a valid summons and the amended complaint by
registered mail to both the United States Attorney and the
Attorney General within 90 days of filing her amended
complaint. See McGuckin v. United States, 918 F.2d 811,
813 (9th Cir. 1990); Fed. R. Civ. P. 4(m). The record does
not reveal whether Silbaugh also sent a copy of those
documents to Secretary Chao within the authorized time
period. Nonetheless, Rule 4(i)(4) states that the district court
must grant a plaintiff additional time to effect service under
Rule 4(i)(2) if the plaintiff has properly served either the
United States Attorney or the Attorney General. Fed. R. Civ.
P. (4)(i)(4)(A). Because Silbaugh properly served both of
those officials within the period permitted under Rule 4(m),
she is entitled to additional time to mail a copy of the
summons and amended complaint to Secretary Chao if
necessary. The district court may address that issue in the
first instance on remand.
REVERSED and REMANDED.
