dissenting.
The majority’s characterization of § 2000e-16(c) and Rule 15(c) as traps to frustrate a citizen in his quest to vindicate his civil right is contrary to the spirit of our civil rights laws and the aspirations of the drafters of the Federal Rules of Civil Procedure.1 Therefore, I must respectfully dissent.
*397The majority holds the United States Supreme Court’s interpretation of Rule 15(c) in Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) mandates a dismissal of Gonzales’ action. I do not find Schiavone either that controlling on these facts or that draconian in effect. A retelling of Gonzales’ travels to this point in his appeal demonstrates how Gonzales has avoided the procedural road blocks to his substantive claim.
•After a four-year administrative bout with the Air Force, during which Gonzales and his attorney crossed each procedural hurdle successfully, Gonzales finally exhausted all appeals through the EEOC.
Gonzales came to the end of his administrative rope on March 15, 1985. According to the statute, he had “thirty days of receipt of notice of final action ... [to] file a civil action_” 42 U.S.C. § 2000e-16(c) (emphasis added).2 The civil action was filed on April 12, 1985, within the thirty-day requirement of the statute.
The majority opinion reads the word “file” in the statute to mean “file and serve,” and that this implied service “requirement” must also be done within the thirty-day period. Simply stated, this is not what the statute says. The word “file” means just that — -file.3 A suit is filed when the complaint, that is, the legal paper, is presented to and in the actual or constructive possession of the clerk of the court. Compare Leggett v. Strickland, 640 F.2d 774 (5th Cir.1981), with Jones v. Forest Oil Co., 663 F.2d 556 (5th Cir.1981) (applying Louisiana law, “suit is filed when it is timely placed in the hands of the clerk of a court of competent jurisdiction for filing”).
This court has held that filing a lawsuit within the period prescribed by statute is sufficient without the further requirement of service of process. See Caldwell v. Martin Marietta Corp., 632 F.2d 1184, 1188 (5th Cir.1980). It is beyond argument that Gonzales complied with § 2000e-16(c) and filed his suit within thirty days of the final disposition of his administrative complaint so that the District Court had subject matter jurisdiction of the claim under the statute. Since the thirty-day filing provision under § 2000e-16(c) was satisfied, there is no reason to enter the fray of whether the miniscule thirty-day provision is jurisdictional, or merely a statute of limitation which can be subject to equitable tolling.4
My strongest disagreement with the majority’s opinion is their reliance on Schia-vone and Rule 15(c) while utterly ignoring Rule 4(j). In Schiavone, a diversity case brought under New Jersey’s libel statute, the New Jersey statute of limitations required that a libel action be commenced one year after publication of the alleged libel. The New Jersey statute reads: “every action at law for libel or slander must be commenced within one year after the publication of the alleged liable or slander.” N.J.Stat.Ann. 2A:14E (West 1952). Under New Jersey law, the issuance of process *398and a bona fide attempt to serve process are essential to the institution of a suit, Bittles v. West Ridgelawn Cemetery, 155 A. 130 (N.J.Ch.1931), because the statute of limitations continues to run after a complaint is filed. Zaccardi v. Becker, 88 N.J. 245, 440 A.2d 1329 (1982).
In Schiavone, the plaintiff filed his complaint on May 9, 1982. The limitation period expired on May 19,1982. Not until May 20, 1982, did plaintiff’s counsel attempt to serve the defendants, and a proper complaint was not served until July 21, 1982. Therefore, “neither Fortune nor Time received notice of the filing until after the period of limitations had run. Thus, there was no proper notice to Fortune [the improper party] that could be imputed to Time [the proper party].” Schiavone, 477 U.S. at-, 106 S.Ct. at 2384, 91 L.Ed.2d at 27. In the instant case, however, by correctly reading Rule 15(c) in conjunction with Rule 4(j), a proper party did receive notice within the required time frame.
The distinction is simple. In Schiavone, the Supreme Court relied on the New Jersey statute that required commencement of a law suit within the limitations period. Since no one was served within the prescribed limitations period, the suit was not “commenced.” Consequently, there was no party to relate back to. This is in sharp contrast to Gonzales’ suit: the federal statute requires only that a suit be filed within a thirty-day period.
Thus, since the suit was filed within the thirty-day period, we next look to see if service was proper. Under F.R.Civ.P. 4(j),5 a party has 120 days from the filing of his complaint to serve the summons upon the defendant. This time for service of process takes on great significance for Gonzales in two ways.
First, Gonzales served the Department of the Air Force 18 days after filing his suit, well within the 120 day requirement. At oral argument, counsel for the Air Force conceded that at the moment the Air Force received notice of the suit, the Secretary received notice of the suit. The majority opinion implies — if it does not necessarily hold — that the Secretary did not receive notice until Gonzalés amended his complaint naming the Secretary personally over a year later on June 2, 1986.
I am not so audacious, United States v. Holmes, 822 F.2d 481 (5th Cir.1987) (Brown, J., dissenting), to challenge Schia-vone’s holding that we are bound to use the four factors for “relation back” of an amended pleading under Rule 15(c). Rather, I find these factors are a help to Gonzales, not a hindrance.
(1) The basic claim must have arisen out of the conduct set forth in the original pleading;
(2) the party to be brought in must have received notice that it will not be prejudiced in maintaining its defense;
(3) the party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and
(4) the second and third requirements must have been fulfilled within the prescribed limitations period.
Schiavone, 477 U.S. at-, 106 S.Ct. at 2384, 91 L.Ed.2d at 27.
Both parties agree the first requirement is met. As for the second, the “Secretary” received notice 18 days after the suit was filed, well within the 120 days allowed by Rule 4(j).
It is important to remember that even if the Secretary had been the named party, he, personally, probably never would have received notice of Gonzales’ routine Title VII claim. The Secretary, when sued solely in his official capacity, and the Air Force are functionally identical for purposes of this suit and this appeal. As far as Gon*399zales is concerned, they are one and the same. With all sides knowing this to be so, I am at a loss to know why I — and all other Judges — cannot “know” the same.
Whether the Air Force or some functionary in the office of the Secretary is served, the same people at the Department of the Air Force will process the summons, the same Air Force representative will appear in court, and the same entity will shoulder the burden of loss if Gonzales prevails. While historically, legal fictions have been utilized to meet the needs of justice, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), legal fictions should never be utilized to frustrate everyday realities. This fiction should not unjustly penalize a loyal government employee whose only mistake in prosecuting his good faith claim was that he, or his lawyer, failed to understand that even though his adversary throughout four years of EEOC administrative hearings had been “the Department,” suddenly, with no explanation, his opponent was transformed into “the Secretary.”
The Air Force representatives who received the first complaint naming “The Air Force” were, in all likelihood, the same people who received the amended complaint naming “The Secretary of the Air Force.” I cannot believe that the law tolerates such an absurdity that the Secretary was “prejudiced” by this mistake.
As to the third requirement, the knowledge of the mistakenly named defendant, it is easily met. No identity of interest and shared knowledge can be posited that is any closer than that between the Secretary and his Department. One commentator has advanced a helpful rule in these cases: “When plaintiff names an incorrect party, the courts probably will apply something akin to a reasonable [person] test to determine whether the party ‘should have known’ he was the one intended to be sued.”6 Under such a rule, Gonzales’ mistake should clearly not be fatal.
The fourth requirement wraps up the above-mentioned three as a neat package, since the other standards were met within the time period set out in § 2000e-16(c) and Rule 4(j).
Gonzales also served the United States Attorney 100 days after the suit. That takes on a great importance when considered in light of Federal Rule of Civil Procedure 15(c). Service on the United States Attorney satisfies the requirements that (i) the Secretary of the Air Force have notice of the institution of the suit and (ii) the party knew or should have known of a mistake in the identity of the proper party. “The delivery or mailing of process to a United States Attorney ... satisfies the requirement of clauses (1) and (2),7 hereof with respect to the United States or any agency or officer thereof to be brought into action as the defendant.” F.R.Civ.P. 15(c).
Without reading Rule 15(c) to operate after the expiration of the applicable statute of limitations, it would become a dead letter. “The principal purpose of Rule 15(c) is to enable a plaintiff to correct a pleading error after the statute of limitations has run if the correction will not prejudice [the real adversary] in any way.” Schiavone, 477 U.S. at-, 106 S.Ct. at 2389, 91 L.Ed.2d at 33 (Stevens, J., dissenting). That purpose is defeated — and the statute becomes largely superfluous — if it is construed to require the correction to be made before the statute has run.
Looking at Rule 15(c) in this light, the majority clearly erred in requiring that this suit be filed and served within the thirty-day period for “relation back” of the amended complaint, and in ignoring the appropriateness of Rule 4(j) in this case. I *400therefore respectfully, but with a good deal of vigor, dissent.
. Rule 1 of the Federal Rules of Civil Procedure provides:
"[t]hey [the rules] shall be construed to secure the just, speedy and inexpensive determination of every action." While the majority’s affirmance of the dismissal of Gonzales' claim is, without a doubt, speedy and inexpensive, it would be far from just.
. According to the statute, "the Secretary of the Air Force,” not Gonzales’ old adversary "the Department of the Air Force,” is the proper defendant.
. Other circuits have wrestled with the definition of the word "file" and have reached the same result. See Rodgers v. Bowen, 790 F.2d 1550, 1552 (11th Cir.1986) (“We therefore hold that a complaint is 'filed' for statute of limitations purposes when it is ‘in the actual or constructive possession of the clerk.”') (citations omitted). The Tenth Circuit took the straightforward approach and cited the American Heritage Dictionary of the English Language in defining "file” as "entry on official record or to apply for ... or, more simply ‘to submit papers.’ ” Paluso v. Mathews, 573 F.2d 4, 9 (10th Cir.1978) (citations omitted).
.Compare Newbold v. United States Postal Service, 614 F.2d 46 (5th Cir.) (jurisdictional) cert. denied, 449 U.S. 878, 101 S.Ct. 225, 66 L.Ed.2d 101 (1980); Eastland v. Tennessee Valley Authority, 553 F.2d 364 (5th Cir.) (jurisdictional) cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977) with Antoine v. United States Postal Service, 781 F.2d 433 (5th Cir.1986) (non-jurisdictional; questioning Eastland’s continued vitality). Cf. Chappell v. Emco Machine Works Co., 601 F.2d 1295, 1300-02 (5th Cir.1979) (90-day filing requirement in private sector cases jurisdictional); Mohasco Corp. v. Silver, 447 U.S. 807, 811 n. 9, 100 S.Ct. 2486, 2490 n. 9, 65 L.Ed.2d 532 (1980) (same); see also, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-94, 102 S.Ct. 1127, 1132-33, 71 L.Ed.2d 234 (1982) (filing timely charge under Title VII not a jurisdictional prerequisite to suit in federal court).
. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not mace within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. This subdivision shall not apply to service in a foreign country pursuant to subdivision (i) of this rule.
F.R.Civ.P. 4(j).
. 6 C. Wright & A. Miller, Federal Practice and Procedure § 1498 (Supp.1986); see also, Romain v. Shear, 799 F.2d 1416, 1417-18 (9th Cir.1986) cert. denied, — U.S. -, 107 S.Ct. 2183, 95 L.Ed.2d 840 (1987); Hymen v. Merits Systems Protection Board, 799 F.2d 1421, 1422 (9th Cir.1986) cert. denied, — U.S. -, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987); Jarrell v. United States Postal Service, 753 F.2d 1088 (D.C.Cir.1985); Cooper v. United States Postal Service, 740 F.2d 714 (9th Cir.1984), cert. denied, 471 U.S. 1022, 105 S.Ct. 2034, 85 L.Ed.2d 316 (1985).
. These correspond to Schiavone requirements (2) and (3).