
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                         -2-            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                                         -3-            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                                         -4-            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.                                 ___                                         -5-
