[NOT FOR PUBLICATION]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.
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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
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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 all "competent evidence and reasonable
inferences," viewed in the light most favorable to Acosta,
show that there is no genuine issue as to any material fact.
Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir. 1996).
As the movants on the motion to dismiss, defendants had the
burden of proving that no material facts were in dispute.
The pleadings and supplemental materials before the
court when it ruled on defendants' motion to dismiss, viewed
in the light most favorable to Acosta, create a genuine issue
regarding a material fact: the date that Acosta received
notice of the Department's final action on his claim.
Defendants conceded that the certified letter mailed to
Acosta's attorney on November 24, 1993 was improperly
addressed. Therefore, the common law presumption that a
properly addressed and mailed letter is received in due
course does not apply here. Nor does the signed return
receipt remove all genuine issues of material fact regarding
the date of receipt. One "Jose Vazquez" signed for the
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letter, but Vazquez had no connection to Acosta's attorney or
her firm and was not authorized to receive mail for them,
the firm's administrator stated in an "affirmation."
In granting defendants' motion to dismiss, the district
court found that Acosta had failed to "conclusively
counteract defendants' evidence." On a motion for summary
judgment, however, the nonmovant does not have that burden.
It is sufficient for the nonmovant to merely raise a genuine
issue of material fact.
The dismissal of Acosta's Title VII claim against
defendant Jesse Brown is vacated and the case is remanded for
further proceedings. See Loc. R. 27.1.
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