Rann, Robert W. v. Chao, Elaine

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 2003 Decided October 14, 2003

No. 02-5200

ROBERT W. RANN,

APPELLANT

v.

ELAINE CHAO,

SECRETARY OF LABOR,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 99cv02349)

John F. Karl, Jr. argued the cause for appellant. With

him on the briefs was William P. Farley.

Michael J. Ryan, Assistant U.S. Attorney, argued the

cause for appellee. On the brief were Roscoe C. Howard, Jr.,

U.S. Attorney, and R. Craig Lawrence and G. Michael Har-

vey, Assistant U.S. Attorneys.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Before: GINSBURG, Chief Judge, and SENTELLE, Circuit

Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: Robert W. Rann claims

that the Department of Labor denied him promotion because

of his age, in violation of the Age Discrimination in Employ-

ment Act (‘‘ADEA’’), 29 U.S.C. §§ 621–634. The district

court dismissed his complaint for lack of subject-matter juris-

diction, finding that Rann had not fulfilled the prerequisites

for suit under either of the routes to court provided by the

Act. He had not exhausted his administrative remedies,

which both parties assumed was essential to suit under

§ 633a(b); nor had he provided the Equal Employment Op-

portunity Commission with notice of intent to sue, as required

by § 633a(d). See Rann v. Chao, 154 F. Supp. 2d 61 (D.D.C.

2001) (‘‘Rann I’’) (granting defendant’s motion to dismiss or

in the alternative for summary judgment); Rann v. Chao, 209

F. Supp. 2d 75 (D.D.C. 2002) (‘‘Rann II’’) (denying plaintiff’s

motion to alter or amend judgment). Rann argues that the

district court erred in both rulings. We affirm.

* * *

In November 1997 Rann, aged 64, was employed as a

Manpower Analyst, GS–13, in the Department of Labor’s

Employment and Training Administration. The Department

advertised and Rann applied for another position as Manpow-

er Analyst, at a higher GS rating, GS–14. Rann interviewed

for the position, but the Department notified him on March

16, 1998 that it had instead selected another employee, aged

37.

Believing that he had been passed over for the GS–14

position because of his age, Rann contacted a Labor Depart-

ment Equal Employment Opportunity (‘‘EEO’’) counselor and

on April 30, 1998 filed an informal complaint of discrimination

with the Labor Department’s EEO office, known as its Civil

Rights Center. (Joint Appendix at 343.) On September 15,

after an EEO counselor had investigated Rann’s informal

3

complaint, and Rann and the Labor Department had engaged

in mediation without success, Rann filed a formal complaint of

age discrimination with the Civil Rights Center.

In a letter dated October 7, 1998 the Civil Rights Center

accepted Rann’s formal complaint for investigation. The

letter told Rann that it was his responsibility to cooperate

with the EEO investigator by presenting a sworn affidavit,

and warned him that failure to provide any requested infor-

mation in the time the EEO investigator specified might

result in the dismissal of his complaint for failure to prose-

cute. A Labor Department EEO investigator followed up

with a letter dated November 12, 1998, asking Rann to submit

an affidavit answering specific questions about his case. De-

spite the investigator’s many attempts to secure Rann’s affi-

davit over the next six months, Rann never complied. A May

5, 1999 letter again demanded the affidavit, saying that

Rann’s failure to provide it within five days would lead the

investigator to recommend dismissal. Rann’s attorney plead-

ed for still more time; in response, the EEO investigator

wrote on May 18, 1999 giving Rann another 15 days and again

warning him that if he failed to deliver the affidavit, the

investigator would recommend dismissal for failure to prose-

cute. Rann never supplied the affidavit, and the Civil Rights

Center dismissed his complaint on June 7.

On September 2, 1999 Rann filed this suit in district court.

The government moved to dismiss for want of jurisdiction or

in the alternative for summary judgment; the district court

granted the motion because of Rann’s failure to meet the

statutory prerequisites to suit. In so doing, it considered

submissions outside the complaint. See Rann I, 154 F. Supp.

2d at 64. Rann argues that this was inappropriate on a

motion to dismiss. Indeed, the provision of Rule 12(b) auto-

matically converting 12(b)(6) motions into summary judgment

motions is inapplicable to 12(b)(1) motions, see Haase v.

Sessions, 835 F.2d 902, 905–08 (D.C. Cir. 1987), so the

consideration of factual submissions outside the complaint

might have involved error in the absence of the government’s

alternative motion for summary judgment. Given the motion,

however, there was no error on that score. Because the

4

district court considered facts outside the complaint, the

judgment below is properly viewed as a grant of summary

judgment. See Fed. R. Civ. P. 56. Our standard of review

under Rule 56 is de novo. Tao v. Freeh, 27 F.3d 635, 638

(D.C. Cir. 1994).

We note that the district court’s characterization of the

exhaustion default as jurisdictional raises a potential compli-

cation. We have held that the timeliness and exhaustion

requirements of § 633a(d) are subject to equitable defenses

and are in that sense non-jurisdictional. See Kennedy v.

Whitehurst, 690 F.2d 951, 961 (D.C. Cir. 1982); see also Zipes

v. Trans World Airlines, 455 U.S. 385 (1982). But we have

sometimes characterized non-compliance with similar require-

ments in comparable statutes as depriving the district court

of ‘‘authority’’ to hear the plaintiffs’ suit, see Cox v. Jenkins,

878 F.2d 414, 422 (D.C. Cir. 1989) (addressing exhaustion

under the Education for All Handicapped Children Act),

which sounds jurisdictional. As nothing turns on the charac-

terization here, we explore the matter no further.

* * *

The ADEA broadly bars age discrimination in employment.

And it provides a federal government employee two alterna-

tive avenues to judicial redress. First, the employee may

bring a claim directly to federal court so long as, within 180

days of the allegedly discriminatory act, he provides the

EEOC with notice of his intent to sue at least 30 days before

commencing suit. 29 U.S.C. §§ 633a(c), (d). Second, the

employee may invoke the EEOC’s administrative process,

and then sue if dissatisfied with the results. Id. §§ 633a(b),

(c); Stevens v. Dep’t of Treasury, 500 U.S. 1, 5–6 (1991).

Rann argues that he was rightfully in court via both of these

two routes; one, of course, would be enough.

Suit following administrative process under § 633a(b)

The district court found that Rann’s non-cooperation with

the Labor Department’s EEO investigator represented a

failure to exhaust his administrative remedies, and that there-

5

fore he could not bring his complaint to federal court under

§ 633a(b). Rann I, 154 F. Supp. 2d at 66.

There appears to be no language in the ADEA expressly

requiring a federal employee who is not relying on § 633a(d)

to have exhausted his alternative administrative remedies.

Section 633a(c) provides that a person aggrieved ‘‘may bring

a civil action in any Federal district court of competent

jurisdiction.’’ And § 633a(b) generally authorizes the Com-

mission ‘‘to enforce’’ the ban on age discrimination in federal

employment and to issue ‘‘such rules, regulations, orders and

instructions as it deems necessary and appropriate to carry

out’’ these enforcement responsibilities.

But § 633a(d) provides express prerequisites to suit (30

days advance notice of intent to sue, within 180 days of the

discriminatory act’s occurrence) by a claimant who ‘‘has not

filed a complaint concerning age discrimination with the

[Equal Opportunity Employment] Commission.’’ 29 U.S.C.

§ 633a(d) (emphasis added). The clear implication is that

other plaintiffs must have ‘‘filed’’ an appropriate administra-

tive complaint. See 29 C.F.R. § 1614.106(a) (requiring ad-

ministrative complaints to be filed with the complainant’s

agency). Because of the employee’s right to use subsection

(d), of course, this administrative filing requirement is in a

sense ‘‘optional.’’ Kennedy v. Whitehurst, 690 F.2d 951, 964

(D.C. Cir. 1982). And the ADEA is silent on whether a

plaintiff who has started the administrative process by filing

such a complaint must reasonably pursue the process, as an

exhaustion requirement would ordinarily entail. See Stevens,

500 U.S. at 9 (recognizing necessity of administrative exhaus-

tion under § 633a(b) as an open question). The circuits

appear to be split. Compare Langford v. United States

Army Corps of Eng’rs, 839 F.2d 1192, 1194–95 (6th Cir. 1988)

(finding no exhaustion necessary because, under the regula-

tions in effect at the time, the filing of a civil action by a

federal employee did not terminate the agency’s processing of

his complaint), and Bak v. Postal Service, 52 F.3d 241, 243–44

(9th Cir. 1995) (finding no exhaustion necessary because,

under the regulations in effect at the time, the filing of a civil

action by a government employee did terminate the agency’s

6

processing of his complaint), with Purtill v. Harris, 658 F.2d

134, 138 (3d Cir. 1981) (discussing policy reasons why a

plaintiff who starts administrative proceedings under

§ 633a(b) must follow those proceedings to exhaustion before

filing suit), and White v. Frank, 895 F.2d 243, 243–44 (5th Cir.

1990) (per curiam). We need not reach this issue, however,

because the parties have assumed throughout that pursuit of

the administrative remedy is required, at least during the

agency’s 180–day investigative period; in oral argument,

Rann expressly acknowledged that assumption. See 29

C.F.R. § 1614.106(e)(2) (requiring agency to investigate com-

plaint within 180 days of its filing); see also 29 U.S.C.

§ 633a(b)(3) (requiring the EEOC to provide for the accep-

tance and processing of complaints of discrimination on ac-

count of age in federal employment); 29 C.F.R. § 1614.201(c)

(discussing when administrative remedies will be considered

to be exhausted for purposes of filing a civil action); Chevron

U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S.

837, 843 (1984).

Rather than contesting the need to exhaust, Rann argues

that he fulfilled the need by meeting with the Labor Depart-

ment’s EEO counselor, providing the counselor with informa-

tion, engaging in mediation with the Labor Department and

filing a formal complaint of age discrimination. He says that

he thus provided the Labor Department’s EEO office with all

the information in his possession, so that it would have been

futile to comply with that office’s requests.

In fact, Rann in no way attempted to exhaust the adminis-

trative process. The EEO investigator, trying to see whether

Rann could establish a prima facie case of discrimination,

repeatedly asked for his signed affidavit. Rann neither com-

plied with these requests nor provided any information be-

yond his initial submission. He explained in his deposition

that he ‘‘thought [doing so] was a losing proposition; that

nothing productive could come of that; that it would drag on

forever, ever and ever.’’ See Rann I, 154 F. Supp. 2d at 65

(quoting deposition). While Rann did provide the EEO coun-

selor with information before filing his formal complaint, the

EEO investigator was reasonable both (1) in requiring Rann

7

to verify his complaint prior to beginning the investigation,

and (2) in seeking additional details that might explain why

Rann believed he was more qualified than the selected em-

ployee and what he meant when he said in his complaint that

there was ‘‘a planned management decision to pre-select the

selectee.’’ Nothing in the EEO investigator’s requests, plain-

ly aimed at facilitating the investigation, gave Rann reason to

believe a response would be futile. Cf. James v. United

States Dep’t of Health & Human Servs., 824 F.2d 1132, 1138

(D.C. Cir. 1987).

After months of Rann’s stonewalling, the Labor Depart-

ment dismissed his complaint under 29 C.F.R.

§ 1614.107(a)(7), part of the EEOC’s regulations implement-

ing the ADEA. Section 107(a)(7) calls for dismissal when a

complainant has not answered a written request for informa-

tion within 15 days of its receipt, if the request included

notice of such dismissal. Rann’s non-response proceeded

over a period more easily measured in weeks or months than

in days, and the Department’s letters of May 5 and May 18,

1999 plainly gave notice of likely dismissal.

Rann argues that the timing of this dismissal—after the

running of the 180–day deadline for the Labor Department to

have investigated his complaint—somehow renders the dis-

missal invalid or otherwise excuses his failure to exhaust.

See 29 C.F.R. § 1614.106(e)(2) (requiring agency to investi-

gate complaint within 180 days of its filing); § 1614.201(c)(1)

(considering administrative remedies to be exhausted if agen-

cy has not taken final action within 180 days of the com-

plaint’s filing). He frames this as an argument that his claim

had been ‘‘perfected’’ by the running of 180 days from his

formal September 15, 1998 complaint with the Labor Depart-

ment’s EEO office. Rann’s argument would, in effect, fault

the Labor Department for not dismissing his complaint be-

fore, or perhaps at, the moment when the 180 days passed.

We can imagine no basis for such a rule, and Rann offers

none. He does cite an EEOC decision, Koch v. Levitt, 1997

WL 106419, at *5–6 (EEOC 1997), which reversed an agen-

cy’s dismissal of a complaint where the agency’s EEO office

had dawdled until just before the 180 days had run, and then

8

dismissed because of the complainant’s refusal to respond to

demands made thereafter. But here the agency acted early

and often on Rann’s complaint. We see no sense in Rann’s

proposal to turn his own obduracy into a basis for penalizing

the agency.

Rann also claims that the Labor Department is estopped

from making a failure-to-exhaust argument because an un-

named EEOC employee told him that he could opt out of the

administrative process at any time. This is, of course, simply

a claim of equitable estoppel; we have read the Supreme

Court’s powerful cautions against application of the doctrine

to the government, see Office of Personnel Management v.

Richmond, 496 U.S. 414, 419–24 (1990), as normally barring

its use to undercut statutory exhaustion requirements, Deaf

Smith County Grain Processors, Inc. v. Glickman, 162 F.3d

1206, 1214 (D.C. Cir. 1998), and Rann offers no reason why it

should be available to him here. See also ATC Petroleum,

Inc. v. Sanders, 860 F.2d 1104, 1111 (D.C. Cir. 1988) (‘‘[Es-

toppel’s] application to the government must be rigid and

sparing.’’). Indeed, Rann has not attempted to prove the tra-

ditional elements of the estoppel doctrine, which would cer-

tainly be necessary before the court even considered whether

to apply estoppel against the government here. Id. at 1111–

12; see also Federal Crop Insurance Corp. v. Merrill, 332

U.S. 380, 384–85 (1947) (‘‘Just as everyone is charged with

knowledge of the United States Statutes at Large, Congress

has provided that the appearance of rules and regulations in

the Federal Register gives legal notice of their contents.’’);

29 C.F.R. § 1614.201(c) (setting out circumstances under

which administrative remedies will be considered to have

been exhausted).

Rann’s dogged refusal to take part in the administrative

process thus bars his ADEA suit insofar as it purports to be

outside § 633a(d).

Suit following 30 days notice under § 633a(d)

Rann also argues that the district court erred in dismissing

his complaint due to his failure to provide the EEOC with 30

days’ notice of his intent to sue. Rann argues that by filing

his formal complaint with the Labor Department’s EEO

9

office, he met the notice requirement of § 633a(d), and was

therefore properly in federal court under that section.

Section 633a(d) reads in pertinent part:

When the individual has not filed a complaint concerning

age discrimination with the Commission, no civil action

may be commenced by any individual under this section

until the individual has given the Commission not less

than thirty days’ notice of an intent to file such ac-

tionTTTT Upon receiving a notice of intent to sue, the

Commission shall promptly notify all persons named

therein as prospective defendants in the action and take

any appropriate action to assure the elimination of any

unlawful practice.

29 U.S.C. § 633a(d) (emphasis added).

While the plain language of this statute requires the filing

of a notice of intent to sue with the EEOC itself, Rann relies

on cases from our sister circuits to support his argument that

the requirement can be met with a complaint filed with the

employing agency’s EEO office. But the Third Circuit’s

decision on the point relied on EEOC regulations that

deemed complaints filed with the employing agency’s EEO

office as equivalent to ones filed with the EEOC—regulations

that no longer exist. Purtill v. Harris, 658 F.2d 134, 138 (3d

Cir. 1981). See also McIntosh v. Weinberger, 810 F.2d 1411,

1425 n.6 (8th Cir. 1987) (citing Purtill but otherwise without

discussion). The Seventh Circuit’s decision in Bohac v. West,

85 F.3d 306 (7th Cir. 1996), also deemed complaints filed with

the agency’s EEO office as filed with the EEOC, relying on

the ‘‘significant sharing of responsibilities between the EEOC

and the agencies.’’ Id. at 309–10. Supposing that the pur-

pose of the 30–day notice requirement was solely to allow the

EEOC to attempt reconciliation, the court expressed the

belief that under the prevailing regulations such efforts would

necessarily have already occurred, so that notice was unneed-

ed. Id. at 310. See also Dashnaw v. Pena, 12 F.3d 1112,

1115 (D.C. Cir. 1994) (per curiam) (stating in dicta that

10

‘‘[s]uch notice [of intent to sue] must be given to the EEOC,

or, alternatively, to the plaintiff’s employing agencyTTTT’’).

But § 633a(d) clearly specifies that the 30–day notice is to

go to the ‘‘Commission.’’ Furthermore, the statute requires

the EEOC, upon receiving a notice of intent to sue, to

‘‘promptly notify all persons named therein as prospective

defendants in the action and take any appropriate action to

assure the elimination of any unlawful practice.’’ 29 U.S.C.

§ 633a(d). Though notice to the agency’s EEO office may

lead naturally enough to notice to all prospective defendants,

it is hard to see how it would bring about the other activity

that the 30–day notice is supposed to trigger: EEOC action to

eliminate unlawful practices.

The EEOC’s current regulations also support a finding that

a plaintiff who wants to proceed under § 633a(d) must trans-

mit his intent-to-sue notice to the EEOC itself. They provide

that ‘‘an aggrieved individual may file a civil action in a

United States district court TTT after giving the Commission

not less than 30 days’ notice of the intent to file such an

action. Such notice must be filed in writing with EEOC, at

P.O. Box 19848, Washington, DC 20036TTTT’’ 29 C.F.R.

§ 1614.201(a); compare 29 C.F.R. § 1613.214 (1995) (treating

a complaint filed with an agency as filed with the EEOC)

(repealed by 60 Fed. Reg. 43,371 (Aug. 21, 1995)).

Because Rann did not meet the notice requirements of

§ 633a(d), we agree with the district court that Rann cannot

proceed to federal court by that route.

We note that Rann’s claim of having supplied the statutory

30 days’ notice turns on his assumption that his formal

complaint with Labor’s EEO office was the equivalent of

notice to sue. Because of our ruling on where the notice

must be filed, we needn’t reach the validity of that assump-

tion. See Rann II, 209 F. Supp. 2d at 81 n.4. Nor need we

address the parties’ dispute as to whether Rann filed that

complaint within the 180 days from occurrence of ‘‘the alleged

unlawful practice,’’ as required by § 633a(d) for the notice to

sue. Id. at 82.

11

* * *

The district court correctly ruled that plaintiff’s suit was

barred for failure to exhaust. Because of the consideration of

facts outside the complaint, the correct disposition was grant

of the defendant’s alternative motion for summary judgment.

As modified in that particular, the judgment of the court is

Affirmed.