Acosta-Vega v. Brown
Procedural entryThis page is a short order in Acosta-Vega v. Brown. Read the opinion of the Court — 107 F.3d 1 →
Opinion
USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1769
LUIS A. ACOSTA-VEGA,
Plaintiff, Appellant,
v.
JESSE BROWN,
SECRETARY OF VETERANS AFFAIRS, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge] ___________________
____________________
Before
Cyr, Stahl and Lynch,
Circuit Judges. ______________
____________________
Victoria A. Ferrer on brief for appellant. __________________
Guillermo Gil, United States Attorney, and Isabel Munoz Acosta, _____________ ____________________
Assistant United States Attorney, on brief for appellees.
____________________
December 20, 1996
____________________
Per Curiam. Plaintiff-appellant Luis A. Acosta- ___________
Vega appeals from the district court's order granting
defendants-appellees' motion to dismiss Acosta's employment
discrimination claim against his federal employer, Jesse
Brown as Secretary of the Department of Veterans Affairs
("the Department"). The district court dismissed the
complaint on the ground that it was untimely filed. The
correctness of that determination is the sole issue on
appeal.1 1
To be timely, an employment discrimination complaint
against the federal government under Title VII, 42 U.S.C.
2000e-1 et seq., must be filed "[w]ithin 90 days of receipt __ ____
of notice of final action taken by a department . . . ." 42
U.S.C. 2000e-16(c). Timely filing of the complaint,
however, is not a jurisdictional prerequisite to suit. See ___
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 _____ _______________________________
(1990); Nunnally v. MacCausland, 996 F.2d 1, 2-3 (1st Cir. ________ ___________
1993); 3 Lex K. Larson, Employment Discrimination 64.07[5] __________________________
(2d ed. 1996).
Defendants moved for dismissal pursuant to both Fed. R.
Civ. P. 12(b)(1) and 12(b)(6). Although the court did not
make explicit the basis for the dismissal, it is implicit
from the opinion that the dismissal was premised upon Rule
____________________
1 Acosta appeals only from the dismissal of the Title VII 1
claim against Secretary Brown.
-2-
12(b)(1). The court considered matters outside of the
pleadings and resolved disputed factual matters, placing the
burden on Acosta to "conclusively counteract" defendants'
evidence of untimely filing. See 5A Charles A. Wright and ___
Arthur R. Miller, Federal Practice and Procedure 1350 (2d _______________________________
ed. 1990) (explaining that district court may consider
affidavits and other matters outside of the pleadings to
resolve a jurisdictional challenge and that the burden of
proof on a Rule 12(b)(1) motion is on the party asserting
jurisdiction).
Because compliance with the filing requirements of
2000e-16(c) is not a jurisdictional prerequisite, the
dismissal of Acosta's complaint for untimely filing should
have been premised upon Rule 12(b)(6) rather than Rule
12(b)(1). See Supermail Cargo, Inc. v. United States, 68 ___ ______________________ _____________
F.3d 1204, 1206 n.2 (9th Cir. 1995); Espinoza v. Missouri ________ ________
Pacific R.R. Co., 754 F.2d 1247, 1248 n.1 (5th Cir. 1985); _________________
Gordon v. National Youth Work Alliance, 675 F.2d 356, 360 ______ ______________________________
(D.C. Cir. 1982). This court is "'not bound by the label
employed below'" and may treat the dismissal as one made
pursuant to Rule 12(b)(6). Estate of Soler v. Rodriguez, 63 _______________ _________
F.3d 45, 47 n.1 (1st Cir. 1995) (citation omitted).
For the foregoing reasons, we treat the district court's
dismissal as one made pursuant to Rule 12(b)(6). The
district court's express reliance upon materials outside of
-3-
the pleadings, however, converted the motion to dismiss into
a motion for summary judgment. See Fed. R. Civ. P. 12(c); see ___ ___
also Garita Hotel Ltd. v. Ponce Federal Bank, 958 F.2d 15, 19 ____ _________________ __________________
(1st Cir. 1992) ("the test [for conversion] is not whether
supplementary materials were filed, but whether the court
actually took cognizance of them . . . in arriving at its
decision"). Accordingly, we review the dismissal de novo to __ ____
determine whether al
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