Dennis C. Barsten v. Department of the Interior

Appellant Dennis C. Barsten brought this action under the Rehabilitation Act, 29 U.S.C. § 794a(a)(l), alleging that he had been unlawfully terminated from employment at the Department of the Interior because of a physical handicap. The Department moved to dismiss for lack of subject matter jurisdiction because Barsten named the Department, rather than the Secretary, as defendant. The district court granted the Department’s motion, and Bar-sten appealed. We reverse and remand the case to the district court.

The Rehabilitation Act, 29 U.S.C. § 794a(a)(l), makes the rights, remedies and procedures set forth in the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, applicable to claims of handicap discrimination asserted by federal employees. Under § 2000e-16(c), Barsten should have named the Secretary of the Interior, not the Department of the Interior, as the defendant in his complaint. This court has viewed as jurisdictional a failure to name and serve the proper defendant within the thirty-day time period for filing a complaint. Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir.1986).

We have held, however, that even if an improper defendant is indicated in the caption, we may…