Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
Concurring opinion filed by Chief Judge SPOTTSWOOD W. ROBINSON, III.
J. SKELLY WRIGHT, Circuit Judge:
Debora Gordon appeals from an order dismissing her suit against her former employer, the National Youth Work Alliance (NYWA), charging it with violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976 & Supp. III 1979), and with violations of 42 U.S.C. §§ 1981, 1985 (1976) and the District of Columbia's Human Rights Law, 1 D.C.Code § 2550 et seq. (1981). The District Court granted appellee NYWA's motion to dismiss solely on the basis that the court lacked subject matter jurisdiction because the plaintiff had not filed suit within the 90-day time limit prescribed by Title VII, see 42 U.S.C. § 2000e-5(f)(1) (1976). We reverse.
NYWA fired appellant, a black woman, in December 1979, shortly after she had a series of disputes with her white, male supervisors. She filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC) and the District of Columbia Office of Human Rights, neither of which found reasonable cause to pursue her complaint. The EEOC regional office in Baltimore accordingly sent Gordon a notice of her right to sue, dated with a stamp in the lower left corner "OCT 07 1980." The notice letter was mailed to Gordon's home address in Washington, D.C., return receipt requested, and the Postal Service eventually returned the following receipt to the Baltimore EEOC office:
It is signed by one Vinona Gordon, apparently appellant's mother, and dated, apparently in the same hand, "10-7-80." There is also a round stamp in the space marked "Postmark" showing the date as "OCT 9 1980." Appellant filed suit in the District Court on January 7, 1981 — 90 days after October 9, but 92 days after October 7.
NYWA submitted a motion to dismiss for lack of subject matter jurisdiction, citing Federal Rule of Civil Procedure 12(b)(1) and attaching copies of the right-to-sue letter and the return receipt. The gravamen of NYWA's motion was that Gordon received notice of her right to sue on October 7, the handwritten date on the return receipt. Gordon opposed the motion on the ground that it was more likely that the letter was sent on October 7 and received on October 9, given the dates stamped on the letter and the receipt. The District Court granted NYWA's motion in a brief order:
Appendix A to appellant's brief at A-1.
Title VII requires that plaintiffs file suit within 90 days of receiving notice from the EEOC of their right to sue. 42 U.S.C. § 2000e-5(f)(1) (1976). The sole question at issue in this case is how a defendant and the court should treat a motion to dismiss based on the defendant's contention that the plaintiff has filed suit after expiration of the 90-day period. NYWA moved to dismiss on this basis under Rule 12(b)(1), and it supported its theory that Rule 12(b)(1) applied with the argument that "[f]ailure to bring an action under the section within 90 days deprives a federal court of subject matter jurisdiction." Motion to Dismiss for Lack of Jurisdiction Over the Subject Matter at 2, reproduced in Appendix A to appellant's brief at A-13, citing Hinton v. CPC International, Inc., 520 F.2d 1312, 1315 (8th Cir. 1975). The sentence quoted from Hinton, however, is not apposite to this case. It refers to a long-standing dispute among the circuits as to what the Supreme Court meant by referring to the time limits for bringing suit under Title VII as "jurisdictional," see Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1975); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973).
Statutes of limitations generally create affirmative defenses. Although affirmative defenses may be raised on a motion to dismiss, the proper method for raising a defense of limitation is a motion under Rule 12(b)(6), not a motion under Rule 12(b)(1). See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1277 at 331-332 (1969 ed.). The difference between them is that under Rule 12(b)(6) the court may not consider matters outside the pleadings and accompanying legal memoranda without converting the motion into one for summary judgment and affording all parties "reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). The purpose of this proviso, added in the 1946 Amendments to the Federal Rules, was twofold: it gave the District Courts authority to consider factual material at the motion to dismiss stage, but it also sought "to avoid taking a party by surprise * * *." See Notes of Advisory Committee on 1946 Amendment to Rules, 28 U.S.C. app. at 409-410 (1976).
Precisely because of this safeguard in Rule 12(b)(6) — requiring close attention to the manner in which factual questions are resolved — it makes sense to treat motions like the one at issue here as Rule 12(b)(6) motions. In addition, Zipes makes it clear that Title VII's time limits are more like statutes of limitations than like conditions on the court's subject matter jurisdiction. Although Zipes deals only with the time limit for filing charges of discrimination with the EEOC, see 42 U.S.C. § 2000e-5(e) (1976), its logic extends to the time limit for filing suit after receiving a right-to-sue letter from the EEOC, see ___ U.S. at ___, 102 S.Ct. at 1132, 1135. Therefore, Rule 12(b)(6) and its proviso clearly apply, and it would be error to grant a motion to dismiss on factual grounds unresolved by the pleadings.
Fairness, not excessive technicality, is the guiding principle under both Title VII, see Zipes, supra, ___ U.S. at ___, 102 S.Ct. at 1134; Love v. Pullman, 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972), and the Federal Rules of Civil Procedure. The mandatory language in which Rule 12(b)'s proviso is couched underscores the importance of providing plaintiffs with the essential safeguards of summary judgment procedure whenever they face a motion to dismiss that turns on questions of fact. Even under Rule 12(b)(1), procedural safeguards equivalent to those in Rule 56 are required, with Rule 56 used selectively as a guide to ensuring fairness. See Exchange Nat'l Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976); Barrett v. United Hospital, 376 F.Supp. 791, 795 & n.14 (S.D.N.Y.), aff'd, 506 F.2d 1395 (2d Cir. 1974). Where facts material to a jurisdictional time limit are in dispute, both fairness and analogy to Rules 12(b)(6) and 56 require that the court provide the parties a full opportunity to air their factual dispute. Furthermore, they direct the court to take evidence on the question if the parties' affidavits do not suffice to eliminate all genuine issues of material fact. See Williamson v. Tucker, 632 F.2d 579, 588-589 (5th Cir. 1980).
The importance of fair procedures in factfinding at any stage requires this approach,
Accordingly, since the District Court did not so notify the parties, we may sustain the dismissal only if it meets the stringent standard for dismissal without regard to matters outside the pleadings: "[I]t appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); see Ware v. Associated Milk Producers, Inc., 614 F.2d 413, 414-415 (5th Cir. 1980) (in context of statute of limitations question). The 90-day limit aside, Gordon pleaded an adequate cause of action under Title VII. Neither her complaint nor her answer to NYWA's motion to dismiss concedes that she received notice of her right to sue before October 9. Without considering the return receipt, it is hard to imagine how the District Court could address, much less decide, NYWA's contention that the suit was not timely filed. Therefore, dismissal of Gordon's case on the pleadings alone could not have been proper.
Given that the District Court clearly considered "the entire record herein," including matters outside the pleadings, it did not provide plaintiff "reasonable opportunity" to present relevant material. It did not inform the parties that it was considering the motion as if it were a motion for summary judgment, nor did it solicit further submissions on the question of which day Debora Gordon received notice of her right to sue. The debate over possible factual inferences in both parties' papers should have put the court on notice that it needed a great deal more information before deciding that there was no material issue of fact in dispute.
The order dismissing appellant's case for lack of jurisdiction over the subject matter is therefore reversed, and the case is remanded to the District Court for further proceedings on the issue whether appellant's suit was timely filed.
Reversed and remanded.
SPOTTSWOOD W. ROBINSON, III, Chief Judge, concurring:
Manifestly, the date of Gordon's receipt of the right-to-sue notice is fairly open to
Even if the motion to dismiss had posed a bona fide problem of subject-matter jurisdiction, the District Court's action could not be sustained. Gordon's complaint charged employment discrimination violative of Title VII of the Civil Rights Act of 1964
Subject-matter jurisdiction of a federal district court may, of course, be challenged by a Rule 12(b)(1) motion,
The course pursued in the District Court, however, was quite different. The legal principle central to resolution of the squabble over timeliness of Gordon's Title VII suit was that the 90-day filing period was not triggered until the right-to-sue notice was actually received.
More fundamentally, the problem confronting the District Court was of an entirely different sort, and so too was the legal theory upon which the court should have gone forward. Correctly analyzed, the case comes to this. Timely commencement of a Title VII action ordinarily is a precondition to its maintenance, but Title VII's 90-day suit-filing requirement for private-sector litigation has no relationship to subject-matter jurisdiction. Thus, while timeliness is an essential element of the plaintiff's claim, tardiness does not affect the court's power to entertain it. For that reason, a charge of noncompliance with the 90-day provision is properly presented, not by a motion under Rule 12(b)(1), but rather by one under Rule 12(b)(6), which summons distinctive procedures. To a discussion of these propositions I now turn.
Federal courts have frequently referred to Title VII's time limitations on litigation-initiation, whether done administratively or judicially, as "jurisdictional" prerequisites.
At any rate, no reason for any dilemma remains today. Very recently, in Zipes v. TWA,
That is not to say, however, that the 90-day restriction on suit-filing lacks either certainty or importance when viewed in its proper operative mode. Like its many counterparts in a great variety of contexts, it is an instrument of repose, designed to protect employers from stale claims.
It follows that the 90-day provision may be invoked by a motion asserting that for nonobservance of its time requirement, the plaintiff's complaint does not state a claim upon which relief can be granted. Such a motion falls well within the purview of Rule 12(b)(6),
That, I believe, is the course the District Court should have followed here. Accordingly, I join in reversal and remand in order that it may now be done.
2A J. Moore & J. Lucas, Federal Practice ¶ 12.09 at 2313 (1981) (footnote omitted). Thus the impropriety of transforming Rule 12(b)(1) motions into summary-judgment motions is well-settled. Stanley v. CIA, 639 F.2d 1146, 1158 (5th Cir. 1981); Timberlane Lumber Co. v. Bank of Am., 549 F.2d 597, 602 (9th Cir. 1976); Progressive Steelworkers Union v. International Harvester Corp., 70 F.R.D. 691, 692 (N.D.Ill.1976); Sheldon v. Amperex Elecs. Corp., 52 F.R.D. 1, 10 (E.D.N.Y.), aff'd, 449 F.2d 146 (2d Cir. 1971); 5 C. Wright & A. Miller, Federal Practice § 1366 at 676 (1969); 2A J. Moore & J. Lucas, Federal Practice ¶ 12.09 at 2297 (1981). Certainly the analogy is not needed to secure for the nonmoving litigant the opportunity to battle his opponent on equal terms.
See also Gould, Inc. v. Chafee, 146 U.S.App.D.C. 206, 208, 450 F.2d 667, 669 (1971); Dale v. Hahn, 440 F.2d 633, 638 (2d Cir. 1971), cert. denied, 419 U.S. 826, 95 S.Ct. 44, 42 L.Ed.2d 50 (1974); Murphy v. Inexco Oil Co., 611 F.2d 570, 573 (5th Cir. 1980); Cooper v. Bell, 628 F.2d 1208, 1210 (9th Cir. 1980).