United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 1997 Decided October 10, 1997
No. 96-5091
Geraldine Harris,
Appellant
v.
Secretary, U.S. Department of Veterans Affairs,
and
U.S. Department of Veterans Affairs,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 92cv01785)
Karl W. Carter, Jr. argued the cause and filed the briefs
for appellant.
Marina Utgoff-Braswell, Assistant U.S. Attorney, argued
the cause for appellees, with whom Eric H. Holder, Jr., U.S.
Attorney at the time the brief was filed, and R. Craig
Lawrence, Assistant U.S. Attorney, were on the brief.
Before: Edwards, Chief Judge, Wald and Garland, Circuit
Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: This case requires the court to
decide what course the District Court should take when a
party raises the affirmative defense of statute of limitations
for the first time in a dispositive motion, rather than in a
responsive pleading as required by Rule 8(c) of the Federal
Rules of Civil Procedure. Appellant Geraldine Harris (Geral-
dine Harris Coombs at the time of the events in question)
sued Appellee Department of Veterans Affairs ("Depart-
ment") for racial discrimination under Title VII, 42 U.S.C.
s 2000e et seq. (1994). She filed her complaint in District
Court ninety-one days after the date on the certified mail
return receipt attached to the notice of final agency decision
against her, one day beyond the statutory limit. See 42
U.S.C. s 2000e-16(c) (1994). The Department did not raise
the defense of untimeliness in any of its answers. After
discovery, during which the Department made inquiries about
the date Harris received notice, the Department filed for
summary judgment on untimeliness grounds. Although Har-
ris contended that the date on the mail receipt was in error,
the District Court rejected her explanation, granted summary
judgment in favor of the Department, and then dismissed
Harris's reprisal claims for want of jurisdiction.
We reverse and remand. Rule 8(c) means what it says:
affirmative defenses must be raised in a responsive pleading,
not a dispositive motion. This requirement permits the par-
ties to chart the course of litigation in advance of discovery
and motions thereon. Because the Department did not raise
the defense in a responsive pleading and did not apply to the
District Court for leave to amend its answer under Rule
15(a), the Court should not, without more, have considered
the defense of untimeliness. However, this procedural error
need not necessarily cause loss of the defense. On remand,
the government may seek leave to amend its answers. We
also reverse and remand the District Court's dismissal of
Appellant's reprisal claims. Because untimeliness is not a
jurisdictional defense under Title VII, the District Court had
discretion under 28 U.S.C. s 1367(c) (1994) to retain jurisdic-
tion over supplemental reprisal claims even if it dismissed the
underlying Title VII claim for untimeliness.
I. Background
By a complaint filed on July 31, 1992, Appellant brought
suit in District Court charging the Department with discrimi-
nation under Title VII. During her deposition on June 23,
1993, Harris initially stated that she received a copy of the
agency's final decision on May 2, 1992. Deposition of Geral-
dine Harris Coombs, Appendix for Appellees ("App. for Ap-
pellees") 13. The Assistant U.S. Attorney ("AUSA") conduct-
ing the deposition showed Harris her signature on a certified
mail receipt dated May 1, 1992; Harris then stated that she
received the notice on May 1, and that her mistake resulted
from her noting "May 2" on the envelope. Id. at 14. Her
testimony also suggested that she erred in counting the days
by assuming that each month had thirty days. Id. at 17.
Harris twice moved to amend her complaint to include
allegations that the Department engaged in reprisal against
her by changing her job duties and denying her requests for
leave. The District Court granted those motions to amend.
The Department did not raise the affirmative defense of
untimeliness in any of its answers to the initial complaint or
the amendments. It was not until after discovery when the
Department moved for dismissal of the case as untimely in a
motion for summary judgment. On April 24, 1995, the Magis-
trate Judge recommended dismissal. Harris excepted to the
Magistrate's recommendation, supporting her exception with
a new affidavit, dated May 4, 1995. There, she stated that
she had in fact received the notice on Saturday, May 2, 1992,
and had so noted on the envelope. She further stated that
she was at work on May 1, 1992, from 10:00 a.m. until 5:30
p.m. according to her time sheet, which she submitted. She
added that she could not have received the letter on May 1,
because according to a postal supervisor with whom she had
spoken, mail was not delivered before 10:00 a.m. and after
5:30 p.m. She further asserted that the "May 1" date
stamped on both the postal delivery notice and return receipt
was in error. Plaintiff's Affidavit in Support of Her Excep-
tion to the Magistrate's Report and Recommendation, Appel-
lant's App. 47-48. The delivery notice, which Appellant
submitted as evidence, was dated April 30, and said "You may
pick up your mail after 8:30 a.m. [on] 5/1." Delivery Notice,
reproduced in Appellant's App. at 50. It was stamped May 1,
1992, and signed "Geraldine H. Coombs." Id. The return
receipt was also stamped May 1, 1992 and signed "Geraldine
Harris Coombs." Domestic Return Receipt, reproduced in
Appellant's App. at 51.
The District Court granted the Department's motion, which
it treated as one for summary judgment. Coombs v. Secre-
tary of the Department of Veterans Affairs, No. 92-1785, slip
op. at 2 n.1 (D.D.C. July 20, 1995), reprinted in Appellant's
App. at 21. The District Court judge found that there was no
genuine issue of material fact as to the timeliness of Harris's
filing. Id. at 5-7. He noted that the time sheet made no
specific showing that Harris did not leave work, and that the
postal supervisor's statement did not address 1992 practices
and was in any case hearsay. Id. at 6-7. He further
observed that a delivery notice left at Harris's home on April
30 indicated that she could pick up mail at the post office on
May 1 any time after 8:30 a.m., allowing Harris time to pick
up the notice and then arrive at work by 10:00 a.m. Id. at 7
n.2. Next, he found that there was no basis for equitable
tolling of the statute. Id. at 7-9.
Finally, the District Court rejected Harris's contention that
the Department had waived the statute of limitations defense
by failing to plead it in any of its three answers to Harris's
initial complaint and two subsequent amended complaints.
Citing caselaw from other circuits, the District Court held
that a party could raise an unpled affirmative defense by
motion if the late raising did not prejudice the opposing party
by denying it notice. Id. at 10. The District Court noted
that Harris did not claim prejudice and found that Harris did
not suffer prejudice as a result of the late raising of the issue,
because she had two opportunities to respond to the claim:
one in her exception to the Magistrate's report, the other in
her opposition to the Department's motion for summary
judgment. Id. at 10-11.
Subsequently, the District Court dismissed Appellant's re-
prisal claims. The court explained that it lacked supplemen-
tal jurisdiction because the original claim was never properly
before the court. Coombs v. Secretary of the Department of
Veterans Affairs, No. 92-1785, order at 2 (D.D.C. Feb. 23,
1996), reprinted in Appellant's App. 58. Appellant appealed
the summary judgment and dismissal of the reprisal claims to
this court.
II. Analysis
A. Timeliness of Affirmative Defenses
The issue in this case regarding the timeliness of affirma-
tive defenses requires construction of Rule 8(c). Because this
is a legal issue, we review the District Court's interpretation
of Rule 8(c) de novo. Harbeson v. Parke Davis, Inc., 746
F.2d 517, 520 (9th Cir. 1984).1 This court has not heretofore
decided whether a defendant may raise an affirmative defense
__________
1 Appellee suggests that the standard of review should be
abuse of discretion, citing a case in which the Third Circuit held
that the trial court did not abuse its discretion by considering an
affirmative defense raised for the first time on dispositive motion.
Brief for Appellees 7 n.3 (citing Kleinknecht v. Gettysburg College,
989 F.2d 1360, 1374 (3rd Cir. 1993)). Although the court in Klein-
knecht apparently analyzed the waiver issue in terms of abuse of
discretion, it did not have to determine afresh the legal question of
whether Rule 8(c) permitted unpled defenses to be raised on
dispositive motion, because the Third Circuit had already decided
the issue. See Charpentier v. Godsil, 937 F.2d 859, 863-64 (3rd Cir.
1991). Unlike the court here, which must interpret Rule 8(c) for
itself and hence reviews de novo, the court in Kleinknecht merely
had to apply the Third Circuit's analysis to see if the District Court
had abused its discretion.
for the first time in a dispositive motion, or whether failure to
raise the defense in pleadings constitutes forfeiture under
Rule 8(c). The language of Rule 8(c) itself requires that the
defense of statute of limitations be raised affirmatively in "a
pleading to a preceding pleading." Fed. R. Civ. P. Rule 8(c).
Although the Rules do not explicitly mention waiver or forfei-
ture as the consequence of failure to follow Rule 8(c), it is
well-settled that "[a] party's failure to plead an affirmative
defense ... generally 'results in the waiver of that defense
and its exclusion from the case.' " Dole v. Williams Enter-
prises, Inc., 876 F.2d 186, 189 (D.C. Cir. 1989) (emphasis in
original, quoting 5 Charles Alan Wright & Arthur R. Mil-
ler, Federal Practice and Procedure s 1278 (1990)). More
specifically, "[r]eliance on a statute of limitations is an affir-
mative defense and is waived if a party does not raise it in a
timely fashion." Banks v. Chesapeake and Potomac Tele-
phone Co., 802 F.2d 1416, 1427 (D.C. Cir. 1986) (citations
omitted).2
The Supreme Court has explained that the purpose of the
pleading requirement of Rule 8(c) "is to give the opposing
party notice of the plea of estoppel and a chance to argue, if
__________
2 Although the courts appear uniformly to use the term "waiv-
er" to describe the consequence of failure to plead an affirmative
defense, the more precise term "forfeiture" better captures the
courts' meaning: "Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the intentional relinquishment
or abandonment of a known right." U.S. v. Olano, 507 U.S. 725,
733 (1993) (internal quotation and citations omitted). Failure to
plead an affirmative defense under Rule 8(c) constitutes failure to
make a timely assertion of the defense. The failure to plead need
not be intentional for the party to lose its right to raise the defense.
The possibility of subsequent recovery of the defense through
formal or de facto amendment under Rule 15, see discussion infra,
supports the conclusion that loss of the affirmative defense under
Rule 8(c) constitutes forfeiture, not waiver. A Rule 15 amendment,
if allowed by the trial court, will cure any problem of timeliness
associated with forfeiture. However, if a party "waives," i.e.,
intentionally relinquishes or abandons an affirmative defense, no
cure is available under Rule 15.
he can, why the imposition of an estoppel would be inappro-
priate." Blonder-Tongue Lab. v. University Found., 402
U.S. 313, 350 (1971). The same rationale the Court invoked
regarding collateral estoppel applies with equal or greater
force to the defense of the statute of limitations, where a
party may require notice and time not only to frame legal
arguments, but to establish relevant facts that might affect
the applicability of the statute of limitations. The pleading
requirement of Rule 8(c) gives the opposing party notice of
the defense of untimeliness and permits the party to develop
in discovery and to argue before the District Court various
responses to the affirmative defense. These responses could
include, for example, facts and legal arguments that require
the tolling of the statute, whether by action of law, by
agreement of the parties, or by equitable means.
As its name implies, notice pleading relies on the principle
of fair notice "to secure the just, speedy, and inexpensive
determination" of actions, Fed. R. Civ. P. Rule 1. Where the
old forms of action delimited the kinds of arguments that
parties could make according to the forms they chose, notice
pleading aims to produce a general chart of possible claims
and defenses available to the parties before they embark on
the voyage of litigation. Cf. Conley v. Gibson, 355 U.S. 41, 47
(1957) (purpose of Rules is to give "fair notice of what the ...
claim is"). A party must make strategic decisions about how
to proceed, and can plot its course adequately only if it can
anticipate which issues will dispose of the case. Failure to
raise an affirmative defense in pleadings deprives the oppos-
ing party of precisely the notice that would enable it to
dispute the crucial issues of the case on equal terms. The
structure of the Federal Rules therefore demands notice
pleading of affirmative defenses as a crucial element of its
overall conception of the progress of a lawsuit.
At the same time, the Rules "reject the approach that
pleading is a game of skill in which one misstep by counsel
may be decisive to the outcome and accept the principle that
the purpose of pleading is to facilitate a proper decision on
the merits." Conley, 355 U.S. at 48. For this reason, Rule
15 provides a mechanism whereby a party who harmlessly
failed to plead an affirmative defense may find satisfaction.
Rule 15(a) permits amendment of any pleading "as a matter
of course" before a response or within twenty days for a
pleading to which no response is appropriate. Fed. R. Civ. P.
Rule 15(a). This provision permits easy amendment in a
situation where no significant developments in the case have
occurred and where little time has passed. Subsequently, "a
party may amend the party's pleading only by leave of court
or by written consent of the adverse party; and leave shall be
freely given when justice so requires." Id. Where a matter
has gone to trial and parties have litigated the unpled issues
by express or implied consent, Rule 15(b) may render a
failure to amend irrelevant.3 Here, the case was decided on a
motion for summary judgment, and so Rule 15(b) did not
apply.
The provision of Rule 15(a) allowing amendment with leave
of court gives the District Court discretion and direction. It
instructs the District Court to determine the propriety of
amendment on a case by case basis, using a generous stan-
dard:
In the absence of any apparent or declared reason--such
as undue delay, bad faith or dilatory motive on the part
__________
3 Rule 15(b) applies "[w]hen issues not raised by the pleadings
are tried by express or implied consent of the parties," and envisag-
es a somewhat different scheme of burdens than Rule 15(a), com-
mensurate with the later stage of the proceedings. Because a case
decided on motion for summary judgment does not reach trial, Rule
15(b) does not apply in deciding the question of whether a party has
forfeited unpled affirmative defenses when it raises them for the
first time in dispositive motion. See Crawford v. Gould, 56 F.3d
1162, 1168-69 (9th Cir. 1995) ("The present case did not go to trial;
it was decided on motions for summary judgment. Therefore, the
situation which Rule 15(b) addresses simply did not arise in the
present case.") But cf. Walton v. Jennings Community Hospital,
875 F.2d 1317, 1321 n.3 (7th Cir. 1989) ("[A]lthough the amendment
was effected during consideration of a motion for summary judg-
ment rather than at trial, it is fully consonant with the spirit of Rule
15(b) and existing case law to view the pleadings as constructively
amended here.").
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of the amendment, etc.--the leave sought should,
as the rules require, be "freely given."
Foman v. Davis, 371 U.S. 178, 182 (1962). The District
Court possesses sufficient familiarity with the circumstances
of a case to exercise its discretion wisely and determine
whether any of the five enumerated Foman factors, or others
implied by the Court's "etc.," apply in a given case.
We recognize that, rather than requiring amendment under
Rule 15(a), some circuits permit parties to raise affirmative
defenses for the first time in dispositive motions where no
prejudice is shown. See, e.g., Blaney v. United States, 34
F.3d 509, 512 (7th Cir. 1994) (unpled untimeliness defense
could be raised in motion to dismiss); Camarillo v. McCar-
thy, 998 F.2d 638, 639 (9th Cir. 1993) (affirmative defense
may be raised at summary judgment absent prejudice);
Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1374 (3d
Cir. 1993) (affirmative defense may be raised at summary
judgment absent prejudice); Moore, Owen, Thomas & Co. v.
Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993) (affirmative de-
fense may be raised in response to summary judgment mo-
tion); Ball Corp. v. Xidex Corp., 967 F.2d 1440, 1443-44 (10th
Cir. 1992) (raising affirmative defense in summary judgment
motion preserved defense for trial three months later). This
approach subtly alters the structure dictated by Rules 8(c)
and 15(a) in two ways. First, it apparently relieves the
moving party of the need to request amendment, and the
District Court of the need to state and explain its grant of
leave to amend, so long as the opposing party does not show
prejudice. This change allows parties to omit affirmative
defenses in pleadings strategically, in violation of the notice
purpose. It will often prove difficult for a party to support a
claim of prejudice in circumstances involving only inconve-
nience or surprise. And, by the time the opposing party
raises the prejudice claim, a strategic advantage may already
have been gained by the party who failed to amend its
pleading. By contrast, if the District Court systematically
follows the procedural structure required by Rules 8(c) and
15(a), it can conduct its own inquiry in every case into the
circumstances of the delay, and need not rely solely on a
convincing showing of prejudice by one party. It likely will
articulate the basis for the amendment, and will not simply
approve it as a matter of course.
Second, automatically permitting late raising of affirmative
defenses where no prejudice has occurred reduces the multi-
farious reasons for denying leave to amend envisioned by the
Court in Foman to the single, non-exhaustive factor of preju-
dice. Improper circumstances such as "undue delay, bad
faith or dilatory motive on the part of the movant, [or]
repeated failure to cure deficiencies by amendments previous-
ly allowed," Foman, 371 U.S. at 182, do not necessarily result
in quantifiable prejudice to an opposing party. Nonetheless,
taken collectively rather than individually, they may undercut
the fairness and efficiency of litigation generally. Strategic
or merely lazy circumventions of a legal process grounded in
a sound policy have the effect of eroding the regularized,
rational character of litigation to the detriment of practition-
ers and clients alike.
When an opposing party does receive notice of a previously
unpled defense when a dispositive motion is filed, it lacks the
advance notice required by Rule 8(c) that would have enabled
it to develop factual and legal defenses fully. Although an
opposing party may introduce affidavits in response to a
motion for summary judgment, Fed. R. Civ. P. Rule 56(c), as
Appellant did in this case, affidavits will not always suffice to
provide adequate evidence for the defenses proposed. Fre-
quently, mounting a proper defense will necessitate further
discovery, which may not be possible in the time allotted to
respond to the motion. Rule 15(a) authorizes the District
Court to allow amendment, but this does not mean it would
be unduly formalistic for the District Court to deny amend-
ment to a strategic litigant who intentionally neglected to
plead a defense. To the contrary, denying leave to amend to
such a litigant would serve, not impede, the interests of
substantive justice.
In order to preserve the notice purpose of Rule 8(c) and the
discretionary structure of Rule 15(a), we hold that Rule 8(c)
means what it says: a party must first raise its affirmative
defenses in a responsive pleading before it can raise them in a
dispositive motion. The Fifth Circuit has interpreted Rule
8(c) similarly. See Ashe v. Corley, 992 F.2d 540, 545 n.7 (5th
Cir. 1993); Funding Systems Leasing Corp. v. Pugh, 530
F.2d 91, 96 (5th Cir. 1976) (unpled affirmative defense cannot
be raised on summary judgment unless summary judgment
motion is first responsive pleading). But cf. Lucas v. United
States, 807 F.2d 414, 417-18 (5th Cir. 1986) (unpled affirma-
tive defense not waived when raised at trial at "pragmatically
sufficient time").
There is no reason to fear that procedural formalism will
displace substantive justice here, because a party may re-
quest, and the District Court shall freely give, leave to amend
the pleadings under Rule 15(a) when justice requires. The
District Court must not simply consider the defense in decid-
ing the summary judgment motion. The procedural require-
ment that the District Court await a request for leave to
amend, and grant or deny leave based on the circumstances
of the case, is not empty formalism but the logical conse-
quence of a system of rules that strives to achieve fairness
without rigidity. On its face and on its logic, Rule 8(c)
requires that a party actually plead its affirmative defenses,
not that it plead them only in those cases where failure to
plead would result in prejudice to the opposing party.
On remand, if the Department petitions for leave to amend
the pleadings, the District Court may consider that request
within the framework specified by the Court in Foman in
deciding whether to grant leave to amend under Rule 15(a).
It may grant or deny leave, and thus permit or exclude the
defense of untimeliness. Our holding requires only that the
District Court await a request of leave to amend and consider
that request in its good discretion.
B. Supplemental Jurisdiction
We review the District Court's dismissal for want of juris-
diction de novo, because the District Court dismissed on the
grounds that it lacked the original jurisdiction necessary for
supplemental jurisdiction under 28 U.S.C. s 1367(a), and not
on the grounds that it was exercising its discretion to dismiss
supplemental claims remaining after dismissal of original
claims as authorized by 28 U.S.C. s 1367(c)(3). Even if the
District Court grants leave to amend the Defendant's answers
to include the untimeliness defense, and accordingly grants
summary judgment to the Department on untimeliness
grounds, it may still retain supplemental jurisdiction over
Appellant's reprisal claims. Under 28 U.S.C. s 1367(a), the
District Court has supplemental jurisdiction over related
claims when it has original jurisdiction over the initial claim.
Here, the District Court did not have original jurisdiction
over Appellant's reprisal claims, for which administrative
remedies had not been exhausted. Instead the District Court
had supplemental jurisdiction over the reprisal claims, which
arose out of the charge properly before the court. Nealon v.
Stone, 958 F.2d 584, 590 (4th Cir. 1992); Gupta v. East State
Univ., 654 F.2 411, 413 (5th Cir. 1981).
Although it did not invoke 28 U.S.C. s 1367, and cited only
an unreported case which predated the statute, Johnson v.
General Elec., 1987 WL 14821 (D.Mass. 1987), the District
Court dismissed on the grounds that it lacked the original
jurisdiction necessary for supplemental jurisdiction under
s 1367(a). It wrote that "[t]his Court cannot exercise supple-
mental jurisdiction over plaintiff's reprisal claims ... because
the original Title VII claim was never properly before this
court [sic]." Appellant's App. 59 (emphasis in original).
The District Court erred in this analysis. We have held
that the statute of limitations in Title VII cases under 42
U.S.C. s 2000e-16(c) is not jurisdictional. Mondy v. Secre-
tary of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988). Thus,
when the District Court dismissed Harris's Title VII suit on
untimeliness grounds, it did not follow that the original claim
was never properly before the court. The claim was before
the court as a jurisdictional matter, but purportedly failed on
a substantive defense.
When the District Court has dismissed claims properly
before it, it retains discretion to decide whether or not to
dismiss other claims as to which it may exercise supplemental
jurisdiction. 28 U.S.C. s 1367(c)(3). It may decline to exer-
cise supplemental jurisdiction if "the district court has dis-
missed all claims over which it has original jurisdiction." Id.
The discretionary language of the statute makes it clear that
the court may also choose to preserve its supplemental juris-
diction.
In remanding to the District Court, we note that if Appel-
lant's underlying claim is dismissed for untimeliness, then the
underlying claim will remain unlitigated. Under those cir-
cumstances, it would be appropriate for the District Court to
weigh the fact that administrative remedies have not been
exhausted on the reprisal claims in deciding whether to
exercise its supplemental jurisdiction over them. Although
the District Court has discretion to entertain unexhausted
Title VII reprisal claims, and retains that discretion in this
case, it will normally hear such claims alongside the underly-
ing discrimination claim. Where the District Court will not
hear the underlying discrimination claim, requiring exhaus-
tion of administrative remedies may obviate the need to hear
the case at all.
III. Conclusion
For the foregoing reasons, the District Court's grant of
summary judgment and dismissal of Appellant's reprisal
claims are reversed and remanded for further proceedings
consistent with this opinion.
So ordered.