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[NOT FOR PUBLICATION]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 Acos

__________________

Assistant United States Attorney, on brief for appellees.

____________________

December 20, 1996

____________________

Per Curiam.
___________

Vega

appeals

from

the

Plaintiff-appellant Luis

district

court's

order

A. Acosta-

granting

defendants-appellees' motion to

discrimination

claim against

Brown

as Secretary

("the

Department").

complaint

of

of

The

that

his

federal

the Department

on the ground

correctness

dismiss Acosta's

district

that it

employment

employer,

of Veterans

court

Jesse

Affairs

dismissed

was untimely filed.

determination

is the

sole

issue

the

The

on

appeal.1
1

To

against

be

timely, an

the federal

2000e-1 et seq.,
__ ____

of notice of

U.S.C.

discrimination complaint

government under

Title VII,

final action taken by a department .

not a

42 U.S.C.

must be filed "[w]ithin 90 days of receipt

2000e-16(c).

however, is

employment

Timely

filing

of

the

jurisdictional prerequisite to

. . ." 42

complaint,

suit. See

___

Irwin
_____

v. Department of Veterans Affairs, 498 U.S. 89, 95-96

_______________________________

(1990);

Nunnally v. MacCausland,
________
___________

1993); 3 Lex

996 F.2d 1,

2-3 (1st Cir.

K. Larson, Employment Discrimination

__________________________

64.07[5]

(2d ed. 1996).

Defendants moved for dismissal

Civ.

P. 12(b)(1) and 12(b)(6).

make

explicit the

from the

basis for the

opinion that the

pursuant to both Fed. R.

Although the

court did not

dismissal, it

dismissal was premised

is implicit

upon Rule

____________________

1
1

Acosta appeals only from the dismissal of the Title VII

claim against Secretary Brown.

-2-

12(b)(1).

The

court

considered matters

outside

of

the

pleadings and resolved disputed factual matters,

placing the

burden

defendants'

on Acosta

evidence

Arthur R.

ed.

1990)

to

of untimely

"conclusively counteract"

filing. See 5A
___

Charles A.

Miller, Federal Practice and Procedure

_______________________________

(explaining

that

district

court

may

Wright and

1350 (2d

consider

affidavits

resolve

and other

matters

a jurisdictional

proof on a

Rule 12(b)(1)

outside of

the pleadings

to

challenge and

that the

burden of

motion is on

the party

asserting

jurisdiction).

Because

2000e-16(c)

dismissal of

have

been

compliance

is

not

with

filing

jurisdictional

Acosta's complaint

premised

the

upon

for untimely

12(b)(1).

See Supermail Cargo, Inc. v.

___ ______________________

F.3d 1204,

1206 n.2

Pacific R.R. Co., 754 F.2d

_________________

Gordon
______

prerequisite,

Rule 12(b)(6)

(9th Cir.

requirements

This

1995); Espinoza v.
________

court is "'not

than

Rule

United States,
_____________

68

Missouri
________

(5th Cir. 1985);

v. National Youth Work Alliance, 675 F.2d

______________________________

(D.C. Cir. 1982).

the

filing should

rather

1247, 1248 n.1

of

356, 360

bound by the

label

employed

below'" and

pursuant to Rule

may treat

the

dismissal as

12(b)(6). Estate of Soler

_______________

one made

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

district court's express

pursuant

to

Rule

12(b)(6).

reliance upon materials

-3-

The

outside of

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)

supplementary

("the test [for

materials were

actually took cognizance

decision").

determine

inferences," viewed

show

all

filed, but

of them .

Accordingly,

whether

conversion] is not

. .

whether

whether

the court

in arriving at

its

we review the dismissal de novo to

__ ____

"competent

in the

evidence

and reasonable

light most favorable

to Acosta,

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

court when it ruled on defendants' motion to

before the

dismiss, viewed

in the light most favorable to Acosta, create a genuine issue

regarding

notice

a material

of

the

Defendants

Acosta's

course

attorney

on

Therefore,

addressed

does

the date

Department's

conceded that

addressed.

properly
________

fact:

final

action

the

certified

November

24,

the

here.

receipt remove all genuine

letter

Nor

on

received

his

letter

1993

common law

and mailed

not apply

that Acosta

was

claim.

mailed

improperly

presumption that

is

received in

does the

to

due

signed return

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

counteract defendants'

judgment, however,

It

had

evidence."

failed

to

"conclusively

On a motion

the nonmovant does not

for summary

have that burden.

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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