Opinion
1:00CV1163
June 4, 2003
MEMORANDUM OPINION and ORDER
This matter is now before the court on Defendant's motion to strike the amended complaint. For the reasons discussed below, the court will grant Defendant's motion.
In the alternative, Defendant requests an extension of time to respond to the amended complaint. Because the motion to strike the amended complaint will be granted, the motion for extension of time will be denied as moot.
I. BACKGROUND
Plaintiff Mary R. Vester, a former employee of the United States Postal Service ("USPS"), brought this suit, through counsel, against Defendant John E. Potter, the Postmaster General of the United States and head of the USPS, seeking remedy for alleged violations by the USPS of her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("section 1981"); and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (the "ADA"). Defendant timely answered the complaint. Plaintiff later filed an amended complaint naming six additional individual defendants, each acting in his or her capacity as a USPS employee, against whom Plaintiff alleges discrimination under Title VII, section 1981, and the ADA. Aside from the addition of these six new defendants and the allegations against them, the amended complaint is materially identical to the original complaint. Defendant now moves to strike the amended complaint.
From the time of the filing of this suit until May 9, 2003, Plaintiff was represented by attorney Knox Kent Lively III. On May 9, 2003, Chief Judge Tilley accepted Mr. Lively's resignation from the bar of this court. In re: Knox Kent Lively, Attorney at Law, No. 1:00MC85 (M.D.N.C. May 9, 2003). As a result, Plaintiff is left without an attorney and must proceed pro se unless and until she retains new counsel. The court is sensible of the hardship this places on Plaintiff through no fault of her own. The court is also aware, however, that this case has suffered many delays already, and, unless the parties present well-founded requests for extension of time, the case must now proceed in the normal course despite Mr. Lively's absence. Plaintiff is therefore advised that she should act quickly to retain new counsel or be prepared to proceed appropriately pro se.
II. DISCUSSION
Under Federal Rule of Civil Procedure 15(a), the decision to allow an amended complaint after the defendant has answered the initial complaint lies with the discretion of the district court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962). "[L]eave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile." Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986) (citing Foman, 371 U.S. at 182, 83 S.Ct. at 230). Except in such circumstances, "leave [to amend] shall be freely given." Fed.R.Civ.P. 15(a).
In this case, the amended complaint adding six defendants is futile. Where an "amendment may clearly be seen to be futile because of substantive or procedural considerations," it may be disallowed. Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980). The well-settled principle of sovereign immunity provides that the United States may not be sued, either directly or through its agents, unless federal legislation specifically and unequivocally waives sovereign immunity by authorizing the suit. See, e.g., Esau v. Victor, No. 1:02CV147, 2003 WL 1522946 at *3 (M.D.N.C. March 21, 2003). The sovereign immunity of the United States renders meaningless the addition of defendants in the amended complaint.
Plaintiff's first claim, that of a federal employee suing for employment discrimination under Title VII, is governed by the provisions of 42 U.S.C. § 2000e-16, which specifies that "the head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. § 2000e-16 (c). Section 2000e-16 thus operates as a waiver of sovereign immunity, allowing such suits, but "§ 2000e-16(c) is a condition to the waiver of sovereign immunity and thus must be strictly construed." Irwin v. Department of Veterans Affairs, 498 U.S. 89, 94, 111 S.Ct. 453, 456 (1990) (citing Library of Cong. v. Shaw, 478 U.S. 310, 106 So. Ct. 2957 (1986)). "Title VII thus defines the extent of the government's waiver of sovereign immunity: a federal employee may sue the government over alleged workplace discrimination, but he may only name the head of the agency, department, or unit for which he works as the defendant." Chergosky v. Hodges, 975 F. Supp. 799, 801 (E.D.N.C. 1997) (citations omitted); see also Soto v. United States Postal Serv., 905 F.2d 537 (1st Cir. 1990) (Postmaster General only properly named defendant in Title VII employment discrimination action against USPS by former postal worker); Mahoney v. United States Postal Serv., 884 F.2d 1194 (9th Cir. 1989) (same). Because the Postmaster General is the only proper defendant in a Title VII suit by a USPS employee, Plaintiff's amended complaint adding six USPS employees as defendants can do nothing to further her Title VII claim.
The attempt to add defendants to Plaintiff's section 1981 and ADA employment discrimination claims is likewise futile because the United States retains sovereign immunity from such claims, leaving no proper defendants in such a suit by a federal employee. Congress established Title VII to "provide the exclusive judicial remedy for claims of discrimination in federal employment," leaving no waiver of sovereign immunity for such suits under section 1981. Brown v. General Servs. Admin., 425 U.S. 820, 835, 96 S.Ct. 1961, 1969 (1976). Similarly, in an express invocation of sovereign immunity, the statutory language of the ADA specifically excepts the United States from the definition of employers who may be sued for employment discrimination under the ADA. 42 U.S.C. § 12111 (5)(B)(I); see Dodd v. Blue Cross and Blue Shield Ass'n, 835 F. Supp. 888, 891 (E.D. Va. 1993) ("The [ADA] defines "employer' to exclude the United States."). Therefore, because the United States retains sovereign immunity and cannot be sued, either directly or through its employees, for employment discrimination under section 1981 or the ADA, Plaintiff's amended complaint adding six USPS employees as defendants can do nothing to further those claims.
The court accordingly finds that Plaintiff's amended complaint is futile. Considering that futility, and after a review of the submissions of the parties, the court, in its discretion, will grant Defendant's motion to strike the amended complaint.
III. CONCLUSION
For the foregoing reasons:
IT IS ORDERED that Defendant's Motion to Strike Amended Complaint [23-1] is GRANTED;
IT IS FURTHER ORDERED that the Amended Complaint [20] is STRICKEN;
IT IS FURTHER ORDERED that Defendant's Motion to Extend Time to Respond [23-2] is DENIED as moot.
IT IS FURTHER ORDERED that pursuant to Kent Lively's request and the order of Chief Judge Tilley allowing Mr. Lively to withdraw from the attorney's list in the Middle District of North Carolina that Kent Lively shall no longer be listed as counsel of record in this matter and that copies of all pleadings hereafter shall be directed to Mrs. Vester and not to Mr. Lively.
The court urges Plaintiff to expeditiously retain legal counsel or be prepared to proceed appropriately pro se in this matter.