Opposition Brief — White v. Frank

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No. 90-47 ) AG 2 we.

3u the Supreme Court of the United States

OCTOBER TERM, 1990

BRUCE L. WHITE, JR., PETITIONER

Vv.

ANTHONY M. FRANK, POSTMASTER GENERAL

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS :

FOR THE FIFTH CIRCUIT 8:

BRIEF FOR THE RESPONDENT IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

MICHAEL JAY SINGER

WILLIAM G. COLE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether 29 C.F.R. 1613.513 permits a person who

alleges discrimination on the basis of age in federal

employment, and who chooses to pursue his adminis-

trative remedies before the EEOC, to obtain judicial

review of his allegations without first exhausting his

administrative remedies.

(I)

TABLE OF CONTENTS

Page

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This ach shin dsl lmlbnidiaiubiaisinkhians 1

ERC a eR 2

SE SRC a 5

EEE I Ee a 8

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Appendix B ........... Tc ieahatnninaiis 5a

TABLE OF AUTHORITIES

Cases:

Bornholdt v. Brady, 869 F.2d 57 (2d Cir. 1989)... 5,7

Castro v. United States, 775 F.2d 399 (ist Cir.

ES abaiimaags Ph TET ‘7

EEOC v. FLRA, 476 U.S. 19 (1986) ............00000..... 5

Langford v. U.S. Army Corps of Engineers, 839

ee OE I «suannenanennacsenanas 7

Purtill v. Harris, 658 F.2d 184 (3d Cir. 1981),

cert. denied, 462 U.S. 1181 (1988) .......... shades 7

Rogers v. Lodge, 458 U.S. 613 (1982) |........000000..... 5

Statutes and regulations:

Age Discrimination in Employment Act, 29 U.S.C.

ESS a 2

el EE A 2,5

EE 2,6

a iaeanninnia 3,5

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

Ic cnsnaneiotintnionnen 4

Rehabilitation Act § 501, 29 U.S.C. 791 et seq..... 4

Veterans’ Reemployment Act, 38 U.S.C. 2021

i. seaintisaeetiniannddibbenieetann 4

29 C.F.R.

A 2

Ee 2,3

I aosnsnianennsielinan 2

I SD 2

Regulations—Continued:

Section 1613.513 _........

Section 1613.518 (1988) 0. :

Section 1619.214......

Miscellaneous:

52 Fed. Reg. 41,922 (1987)

letitettttet h

ee

Iu the Suprene Court of the Wuited States

OCTOBER TERM, 1990

No. 90-47

BRUCE L. WHITE, JR., PETITIONER

v.

ANTHONY M. FRANK, POSTMASTER GENERAL

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The decision of the court of appeals (Pet. App. 24)

is reported at 895 F.2d 243. The decision of the dis-

trict court (Pet. App. 30) is reported at 718 F. Supp.

592."

JURISDICTION

The judgment of the court of appeals was entered

on March 1, 1990. The petition for a writ of certio-

rari was filed on May 29, 1990. The jurisdiction of

this Court rests on 28 U.S.C. 1254(1).

1 Because the appendices to the petition contain many typo-

graphical errors, including several omissions of significant

language, we are reprinting the opinion of the court of ap-

peals and the relevant portions of the district court opinion

as appendices to this brief for the convenience of the Court.

(1)

2

STATEMENT

1. The Age Discrimination in Employment Act of

1967, 29 U.S.C. 621 et seq., provides two separate

routes by which a federal employee or an applicant

for federal employment who believes he has been dis-

criminated against because of his age can obtain re-

lief. First, the aggrieved person may file an admin-

istrative claim in accordance with the rules and reg-

ulations promulgated by the Equal Employment Op-

portunity Commission (EEOC) and the employing

agency. 29 U.S.C. 633a(b). The person following

this route first seeks counseling from an EEOC coun-

selor at the employing agency. 29 C.F.R. 1613.213.

If, after counseling, the matter cannot be resolved to

the aggrieved person’s satisfaction, he may file a

formal complaint with the agency. 29 C.F.R.

1613.214.

If the agency denies the complaint, the complain-

ant may then appeal to the EEOC. 29 C.F.R.

1613.215, 1613.231. After the administrative com-

plaint is filed with the EEOC, the complainant may

abandon the administrative process in favor of a

civil suit. The filing of a civil action automatically

terminates the processing of the administrative com-

plaint. 29 C.F.R. 1613.513.°

Alternatively, the aggrieved person may bring a

civil action in any federal district court of competent

jurisdiction without pursuing his administrative

remedies at all. The ADEA provides that “[w]hen

the individual has not filed a complaint concerning

age discrimination with the Commission, no civil ac-

tion may be commenced by any individual under this

* The ADEA contains no express time limit for filing a suit

for judicial relief after a complaint has been filed with the

EEOC. 29 U.S.C. 638a(c).

Se ep

section until the individual has given the Commission

not less than thirty days’ notice of an intent to file

such action. Such notice shall be filed within one

hundred and eighty days after the alleged unlawful!

practice occurred.” 29 U.S.C. §33a(d).

2. Petitioner was employed by the United States

Postal Service for about five months before he re-

signed his job on March 31, 1985, to seek other em-

ployment. His first application for reinstatement

with the post office—on September 20, 1985—was

denied; petitioner did not seek review of this denial.

On May 23, 1986, petitioner again applied for rein-

statement; he was again denied employment on June

5, 1986. App., infra, 6a.°

Following an interview with a Postal Bervies

Equal Employment Opportunity counselor, petitioner

filed a formal complaint of discrimination on August

4, 1986. App., infra, 6a-7a.* After a hearing, an

administrative law judge found no discrimination on

the basis of race, color, or handicap, but recom-

mended a finding of age discrimination; that recom-

mendation was rejected by the Postal Service, which

found that petitioner’s reinstatement had not been

denied on the basis of his age, color, race, or handi-

cap. App., infra, Ta. On November 9, 1987, peti-

tioner filed an appeal with the EEOC Office of Re-

8 The local postmaster subsequently explained that peti-

tioner’s poor performance during his original employment

was the reason for the refusal to rehire him. Pet. 10.

4 Although petitioner states that he “filed a formal com-

plaint of discrimination with the EEOC on August 4, 1986”

(Pet. 10), it appears that he filed his initial complaint prop-

erly with his agency. See 29 C.F.R. 1619.214 (initial com-

plaint must be filed with the employee’s agency, not with the

EEOC).

dq

view and Appeals; on December 22, 1987, before

obtaining a ruling by the Commission, he filed a civil

action in federal district court. App., infra, 7a. On

March 30, 1988, the EEOC issued its final decision,

affirming the decision of the Postal Service.

3. The district court granted respondent’s motion

for summary judgment on the ADEA claim.’ It held

that when an ADEA plaintiff chooses to pursue his

administrative remedies, he must completely exhaust

those remedies before commencing suit in federal

court. Because petitioner had filed his suit before the

EEOC acted on his appeal, he had failed to exhaust

his administrative remedies; the district court there-

fore refused to consider petitioner’s ADEA claim.

App., infra, 9a-13a. The court of appeals affirmed,

“[eJorcluding that the district court correctly decided

the issues presented to [it].” App., infra, 4a.‘

®* The district court also dismissed petitioner’s claims under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e

et seg., Section 501 »>f the Rehabilitation Act, 29 U.S.C. 791

et seq., and the Veterans’ Reemployment Act, 38 U.S.C. 2021

et seq. Pet. App. 49-55. Petitioner does not raise any issues

relating to those claims in this Court.

* The court of appeals specifically agreed that “an ADEA

plaintiff who chooses to appeal the employer’s determination

to the Equal Employment Opportunity Commission (EEOC)

must await final action by that agency before filing an action

in federal district court.” App., infra, 2a.

5

ARGUMENT

1. Petitioner contends (Pet. 18) in this Court for

the first time that “[t]he critical element in the

analysis of the requirements of administrative ex-

haustion of all remedies is found in the amendment

to 29 C.F.R. 1613.513 (1988).” This argument was

not presented to the court of appeals.’ This Court

does not ordinarily address issues that have not been

properly presented to the courts below. EEOC v.

FLRA, 476 U.S. 19, 24 (1986) ; Rogers v. Lodge, 458

U.S. 613, 628 n.10 (1982). There is no reason to

depart from that practice here.”

2. We do, however, agree with petitioner’s analysis

of the relevant law. There is no statutory or regula-

tory requirement that a complainant must seek ad-

ministrative relief from the EEOC before filing suit

under the ADEA. While the Act permits the EEOC

to enforce the statutory anti-discrimination require-

ments, it also specifically provides for direct resort

to a civil action. 29 U.S.C. 633a(d). Moreover, the

Act directs the EEOC to issue rules and regulations

governing the available administrative process, “‘as

it deems necessary and appropriate.” 29 U.S.C.

633a(b).

7 Indeed, in the court of appeals, petitioner “specifically

disavow[ed] reliance upon” a recent Second Circuit decisivn,

Bornholdt v. Brady, 869 F.2d 57, 63 (1989), which explained

the significance of the amended regulation. App., infra, 2a-

8a n.2. Petitioner apparently backs away from his disavowal

before this Court, quoting Bornholdt at length in the peti-

tion. Pet. 18-19.

8 Since the EEOC denied petitioner’s administrative appeal

on March 30, 1988, he has now exhausted his administrative

remedies. There would accordingly seem to be no reason

under the lower courts’ analysis why petitioner could not now

file a new civil action in district court. See note 2, supra.

6

The ADEA is silent on the precise question at is-

sue here—whether a complainant who has filed an

appeal with the EEOC may abandon that appeal be-

fore it has been decided and seek direct judicial re-

view. But the EEOC has exercised its regulatory

authority to provide the answer to that question. For

civil actions, like this one, which are filed after No-

vember 30, 1987, 29 C.F.R. 1613.513 (1988) pro-

vides that such filing will terminate the processing

of the administrative complaint.? This regulation

clearly contemplates that a person who has filed a

complaint with the EEO€ may obtain judicial review

of the merits of his claim by filing a civil action in

district court before he has exhausted his administra-

tive remedies, and the EEOC so interprets it.”

® 29 C.F.R. 1613.518 (1988) reads:

The filing of a civil action by an employee ox applicant

involving a complaint filed under this subpart terminates

processing of that complaint.

Before its amendment on October 30, 1987 (52 Fed. Reg.

41,922), the provision was to the opposite effect:

The filing of a civil action by an employee or applicant

does not terminate agency processing of a complaint or

Commission processing of an appeal under this subpart.

The court below noted in passing that the regulation

“says nothing concerning the exhaustion requirement.” App.,

infra, 8a n.2. Although that is technically correct, the regula-

tion is evidently based on the assumption that the complain-

ant who files a civil action before administrative review is

completed will obtain judicial review on the merits in that

action. Otherwise, the termination of administrative review

would deprive him of any opportunity to obtain an adjudica-

tion on the merits. That is clearly not what the ADEA con-

templates. See 29 U.S.C. 633a(c). Indeed, petitioner escapes

this dilemma, under the interpretation of the courts below,

only because the EEOC for some reason completed its ad-

ministrative review after petitioner filed his civil action, in

7

The courts of appeals have been divided as to

whether an ADEA complainant who has elected the

administrative remedy scheme can nevertheless seek

judicial review without completing the administra-

tive process. Compare Langford v. U.S. Army Corps

of Engineers, 839 F.2d 1192 (6th Cir. 1988) (ex-

haustion of administrative remedies not required) ;

Bornholdt v. Brady, 869 F.2d 57, 63 (2d Cir. 1989)

(same), with Castro v. United States, 775 F.2d 399

(1st Cir. 1985) (exhaustion required); Purtill v.

Harris, 658 F.2d 134 (3d Cir. 1981) (same), cert.

denied, 462 U.S. 1131 (1983). Castro and Purtill

were, however, decided before the amendment of 29

C.F.R. 1613.513 (1988), when the filing of a civil

action did not terminate EEOC processing of admin-

istrative claims. See note 9, supra. The reasoning of

Langford and Bornholdt is consistent with the

EEOC’s interpretation of the amended regulation.

As noted, the issue of the application of 29 C.F.R.

1613.513 to this case was not presented to the courts

below. In addition, petitioner is not foreclosed from

seeking judicial review now that the administrative

process has been completed. Accordingly, there is no

need for this Court to consider the effect of the new

EEOC regulation in the first instance.

contravention of 29 C.F.R. 1613.513 (1988). See note 8,

supra.

8

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

MICHAEL JAY SINGER

WILLIAM G. COLE

Attorneys

AUGUST 1990

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 89-1739

Summary Calendar

BRUCE L. WHITE, JR., PLAINTIFF-APPELLANT

Vv.

ANTHONY M. FRANK, U.S. Postmaster

General, DEFENDANT-APPELLEE

Appeal from the United States District Court

for the Western District of Texas

March 1, 1990

Before WILLIAMS, HIGGINBOTHAM, and SMITH, Cir-

cuit Judges.

PER CURIAM:

The plaintiff, Bruce White, challenges the refusal

of the United States Postal Service to reinstate him

following his resignation from that employer a few

months previously. The instant suit alleges that the

refusal to reinstate was on account of his race (Cau-

casian), color (white), handicap (20% disability and

back injury), and age (50), in violation of title VII

{la)

2a

of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et seq.; § 501 of the Rehabilitation Act

of 1973, as amended, 29 U.S.C. $791 et seq.; the

Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. § 621 et seq.; and

the Veterans Reemployment Act, 38 U.S.C. § 2021

et seq.

In a thorough and able opinion, the district court

granted the defendant’s motion to dismiss or in the

alternative for summary judgment. White v. Frank,

718 F.Supp. 592 (W.D.Tex.1989). We are persuaded

that the district court reached the correct result and

for the right reasons. Accordingly, we affirm, and

we adopt the district court’s persuasive opinion.

In doing so, we of course adopt its holdings, and

specifically (but without limitation) its holding, 718

F.Supp. at 596-97, that an ADEA plaintiff who

chooses to appeal the employer’s determination to

the Equal Employment Opportunity Commission

(EEOC) must await final action by that agency be-

fore filing an action in federal district court. The

district court noted, id. at 595, that at least three

circuit courts of appeals’ have so held, leaving only

one circuit” to have held squarely to the contrary.

1 T.e., Castro v. United States, 775 F.2d 399, 404 (1st Cir.

1985) ; Limongelli v. Postmaster General of the United States,

707 F.2d 368, 373 (9th Cir. 1983) ; Purtill v. Harris, 658 F.2d

134, 138 (3d Cir. 1981), cert. denied, 462 U.S. 1131, 103 S.Ct.

3116, 77 L.Ed.2d 1365 (1983).

2T.e., Langford v. United States Corps of Eng’rs, 839 F.2d

1192, 1194-95 (6th Cir. 1988). Another circuit now has com-

mented, in dictum, that under amended regulations plaintiffs

who, like White, filed suit after November 30, 1987, were not

required to wait until an administrative determination has

been made. See Bornholdt v. Brady, 869 F.2d 57, 63 (2d Cir.

1989). However, the instant plaintiff, in his reply brief on

3a

We acknowledge, as did the district court, that

there has been some uncertainty on the matter in

this circuit because of language in Paterson v. Wein-

berger, 644 F.2d 521, 523 (5th Cir. May 1981), to

the effect that “[a]fter the administrative complaint

has been filed with the [EEOC], a civil action then

may be instituted.” However, the district court a quo

has explained persuasively, 718 F.Supp. at 596-97,

why the quoted passage in Paterson is dictum, ad-

dressing a factual scenario not before the court.

Moreover, it is not clear that the Paterson panel in-

tended to imply that an EEOC complaint once filed

would not also have to be ruled upon before a suit

could be instituted. The district court also convinc-

ingly shows, id. at 596, that the majority view is the

better reading of the statutory scheme.

We note that the passage in question from Pater-

son was quoted recently in Jrwin v. Veterans Admin.,

874 F.2d 1092, 1096 (5th Cir.1989). Jrwin involved

a plaintiff who had filed suit after receiving an ad-

verse decision from the EEOC. Thus, the court did

not comment upon the critical language from Pater-

son or address whether the plaintiff could have filed

suit before the EEOC had made its determination

As in Paterson, the sentence is, at most, dictum.

Recently we have reiterated that when a panel of

this court has opined on an issue not before it, “[wlJe

do not view [such discussion] as precluding our

consideration of the issue on the merits the first time

it has been squarely presented to us.” Powell v.

appeal, specifically disavows reliance upon Bornholdt, and the

regulation in question, 52 Fed. Reg. 41,922 (Oct. 30, 1987),

providing that “the filing of a civil action . . . terminates

[agency] processing,” says nothing concerning the exhaustion

requirement.

4a

Commissioner, 891 F.2d 1167, 1172 (5th Cir.1990).

Directly presented now with the issue, we conclude,

as did the Ninth Circuit when faced with this issue,

that “[t]o withdraw is to abandon one’s claim, to

fail to exhaust one’s remedies. Impatience with the

agency does not justify immediate resort to the

courts.” Rivera v. United States Postal Serv., 830

F.2d 1037, 1039 (9th Cir.1987), cert. denied, 486

U.S. 1009, 108 S.Ct. 1737, 100 L.Ed.2d 200 (1988).

Concluding that the district court correctly de-

cided the issues presented to it, we AFFIRM.

5a

APPENDIX B

UNITED STATES DISTRICT COURT

W.D. TEXAS

AUSTIN DIVISION

Civ. No. A-87-CA-877

BRUCE L. WHITE

Vv.

ANTHONY M. FRANK

July 18, 1989

As Amended Aug. 3, 1989

MEMORANDUM OPINION

NOWLIN, District Judge.

Before the Court is the Defendant’s Motion to Dis-

miss, or in the Alternative, for Summary J udgment.

The Court, having considered the Motion, as well as

all of the responses and replies filed thereafter, in

addition to all of the pleadings on file in this matter,

is of the opinion that the Motion is meritorious and

should be granted.'

* * . * *

‘On July 7, 1989 the Court entered an Order granting the

Defendant’s motion, and stating that a more detailed opinion

would be forthcoming. This is that opinion.

6a

Il. UNDISPUTED FACTS

In this suit, Plaintiff alleges that he was denied re-

instatement as a postal employee because of his age

and because of a handicap. Plaintiff attempts to

raise these claims under the Age Discrimination in

Employment Act, the Rehabilitation Act, the Vet-

eran’s Reemployment Act, and the conspiracy provi-

sions of 42 U.S.C. $$ 1985(2) and (3).

Based upon the Plaintitf’s Complaint and the un-

contradicted summary judgment evidence submitted

by the Defendant, the Court finds that the following

facts are not in dispute: Plaintiff is a 30 year veteran

of the United States Air Force. After retiring from

the Air Force in 1984, Plaintiff applied for and ob-

tained a position with the United States Postal Ser-

vice. He held that position from October 15, 1984

until March 31, 1985, when Plaintiff resigned his

position to seek other employment. Plaintiff’s resig-

nation followed a two week absence from work re-

sulting from a back injury received on the job. His

resignation stated that he left the Postal Service to

pursue an “opportunity on another job.”

Plaintiff reapplied for a Postal Service position on

September 20, 1985, but was denied a position. No

administrative complaint was ever filed for this de-

nial. Thereafter, on May 23, 1986, Plaintiff again

applied for reinstatement as a Postal Service em-

ployee. This request was again denied, on June 5,

1986. The Postmaster issued a clarification of the

reasons supporting the denial on July 7, 1986. Plain-

tiff filed a formal complaint of discrimination on

August 4, 1986, following an interview with a Postal

Service Equal Employment Opportunity counselor.

The complaint alleged that Plaintiff was denied rein-

7a

statement on the basis of his race, color, age and

physical handicap.

A hearing was held on the complaint on April 30,

1987. The administrative judge found no basis for

concluding that the plaintiff had been discriminated

against on the basis of race, color or handicap, but

found support for the Plaintiff’s age discrimination

complaint, and recommended a finding of discrimina-

tion. The final Postal Service decision was handed

down on October 16, 1987, and rejected the adminis-

trative judge’s conclusions on age discrimination,

finding that the Plaintiff’s request for reinstatement

had not been denied on the basis of the Plaintiff’s

age, color, race or handicap.

On November 9, 1987, the Plaintiff filed a timely

appeal to the Equal Employment Opportunity Com-

mission (“EEOC”) Office of Review ard Appeals.

On December 22, 1987, prior to any decision by the

EEOC, the Plaintiff filed this suit. On March 30,

1988, the EEOC issued its final decision, affirming

the findings of the Postal Service, finding that the

Plaintiff had failed to demonstrate a prima facie case

of discrimination, and stating that there was not any

credible evidence supporting the Plaintiff’s claims of

discrimination.

Ill. LEGAL ANALYSIS

A. Exclusive jurisdiction

As noted earlier, the Plaintiff has filed this suit

under the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 633a, the Rehabilitation Act

of 1973, 29 U.S.C. § 791, et seq., the Veterans Reem-

ployment Act, 38 U.S.C. § 2021, et seg., and the con-

8a

spiracy provisions of the Civil Rights Act, 42 U.S.C.

S$§ 1985(2) and (3). The Defendant argues that the

exclusive remedy for the Plaintiff’s alleged discrimi-

nation is the ADEA and the Rehabilitation Act.

Several courts have held that a federal employee

who claims age discrimination must proceed with this

claim solely under the provisions of the ADEA, and

that the ADEA provides the exclusive remedy for

such discrimination. See Paterson v. Weinberger,

644 F.2d 521, 524-25 (5th Cir. 1981). See also Cas-

tro v. United States, 775 F.2d 399, 404-405 (1st Cir.

1985); Purtill v. Harris, 658 F.2d 134, 187 (3d Cir.

1981), cert. denied, 462 U.S. 1131, 103 S.Ct. 3110,

77 L.Ed.2d 1365 (1983). The Fourth Circuit has

recently reached the same conclusion in a non-federal

employee situation. Zombro v. Baltimore City Police

Department, 868 F.2d 1364, 1369 (4th Cir.1989).

Thus, to the extent that the Plaintiff attempts to

allege his age discrimination complaints pursuant to

42 U.S.C. § 1985 or the Veterans Reemployment Act,

the claims must be dismissed. Plaintiff’s sole remedy

for relief from any age discrimination is the ADEA.

The Defendant makes the same argument with re-

gard to Plaintiff’s handicap discrimination com-

plaints, claiming that the sole remedy available to

Plaintiff is the Rehabilitation Act. See Prewitt v.

United States Postal Service, 662 F.2d 202, 304 (5th

Cir.1981). Prewitt holds that a Plaintiff alleging a

handicap discrimination claim may raise that claim

under either § 501 or § 504 of the Rehabilitation Act.

The Court need not address this issue, however, be-

cause the Plaintiff’s Complaint does not state a claim

for handicap discrimination under any statute other

than the Rehabilitation Act.

9a

B. Exhaustion of remedies

Both the ADEA and Rehabilitation Act contain

provisions related to exhaustion of remedies, but the

provisions differ to some extent. The Defendant ar-

gues that the Plaintiff has failed to exhaust his rem-

edies under either statute, and these claims should be

dismissed on that basis.

1. ADEA

When a Plaintiff brings an action under the ADEA

he has two choices regarding exhaustion of remedies.

First, he can choose to by-pass the administrative

track entirely, and by giving notice in a timely fash-

ion to the EEOC, he can head straight to federal

court. See Paterson, 644 F.2d at 523-24; see also 29

U.S.C. § 633a(d). His other option is to pursue his

administrative remedies first. If he makes this

choice, however, he must completely exhaust his ad-

ministrative remedies before commencing suit in fed-

eral court. See Purtill, 658 F.2d at 138; Castro v.

United States, 775 F.2d 399, 404 (1st Cir.1985) ;

Limongelli v. Postmaster General of the United

States, 707 F.2d 368, 373 (9th Cir. 1983). But see

Langford v. U.S. Army Corps of Engineers, 839 F.2d

1192, 1194-95 (6th Cir.1988). Unlike the Title VII

process (which is applicable to the Rehabilitation

Act), an ADEA Plaintiff may not choose to abandon

his administrative claims once he starts down that

track. Purtill, 658 F.2d at 138.

With respect to the Plaintiff's September 20,

1985 application, Plaintiff never filed an administra-

tive complaint. Thus, his action is proper only if he

fulfilled the requirements of 29 U.S.C. $ 633a(d).

That section requires that at least 30 days prior to

filing suit, the Plaintiff must give the EEOC notice

10a

of intent to sue. The notice must also be given no

more than 180 days after the alleged unlawful! prac-

tice occurred. No notice of intent to sue was ever

served on the EEOC, and the suit was filed more

than two years after the alleged unlawful practice.

Thus, with respect to the 1985 hiring decision, Plain-

tiff is barred from suing under the ADEA. 29 U.S.C.

§ 6338a(d).

With reference to the May 23, 1986 application

the Plaintiff chose to follow the administrative proc-

ess. He began that process by filing a formal appeal

with the Postal Service. He pursued the matter fur-

ther when he appealed the Postal Service’s decision

to the EEOC on November 9, 1987. On December 22,

1987, prior to any decision on the appeal, Plaintiff

filed suit in federal court. The EEOC handed its

decision down on March 30, 1988, affirming the Pos-

tal Service’s findings. Thus, Plaintiff did not com-

plete the administrative process prior to filing suit,

and under the cases cited above, the ADEA claims

related to the May 23, 1986 application must be dis-

missed.

Plaintiff argues that in Paterson the Fifth Circuit

held that an ADEA plaintiff need not completely ex-

haust his administrative remedies prior to filing suit.

He contends that an ADEA plaintiff is free to file

an action in federal court at any time after the ad-

ministrative process is started, and that no final

agency action is necessary. In support of this argu-

ment, he cites this statement from Paterson:

An employee who believes that he has been dis-

criminated against because of his age has two

avenues of relief. He may file an administrative

complaint with the employing federal agency,

and if the employing agency’s determination is

lla

adverse to him, he may appeal to the Civil Serv-

ice Commission * for administrative review. 29

U.S.C. §$ 633a(b); see 29 C.F.R. $§ 1613.501-

1613.521 (1980). After the administrative com-

plaint has been filed with the Commission, a

civil action then may be instituted. 29 U.S.C.

§ 633a(c), (d). Alternatively, the employee has

the option under the Act to bypass the adminis-

trative process either in part or in its entirety

and proceed directly to federal court thirty days

after notice of intent to sue has been given to

the Commission as long as such notice is given

“within one hundred and eighty days after the

alleged unlawful practice occurred.” 29 U.S.C.

§ 633a(d); see Hall v. United States, 436 F.

Supp. 505 (D.Minn.1977).

Paterson, 644 F.2d at 523-24 (footnete and empha-

sis added).

The Court does not agree that this statement sup-

ports the Plaintiff’s argument. First, the language

emphasized above is simply not supported by the

language of §$§ 633a(c) and (d). Section 633a(d)

says nothing about suit being permitted anytime af-

ter a complaint is filed with the EEOC. Rather, it

states that the requirements of that section must be

met when a complaint is not filed with the Commis-

sion. 29 U.S.C. §$ 633a(d). Further, § 633a(c) does

not even purport to address the requirements faced

by a plaintiff that elects to pursue the EEOC reme-

dies provided in § 633a(b). To construe these sec-

tions as Plaintiff suggests would effectively read the

EEOC provisions of § 633a(b) out of the statute.

2 The EEOC is now the agency designated to hear such

matters. See 92 Stat. 3781.

12a

Moreover, the Paterson court stated that if a plain-

tiff elects to bypass the administrative process in

part, he is still required to follow the dictates of 29

U.S.C. § 633a(d). The only logical reading of the

“in part” language is that it applies to one (like

Plaintiff) who commences the administrative proc-

ess, but does not complete it. As noted earlier,

§ 633a(d) requires the individual to give the EEOC

notice of his intent to sue, and to give such notice

within 180 days of the alleged unlawful practice.

Plaintiff has not complied with this section.*

Most importantly, the Fifth Circuit was not pre-

sented with the instant factual situation in Paterson.

The issue there was whether the Plaintiff had ade-

quately pled his claim under FED.R.CIV.P. 8(a) (2)

to avoid a “facial attack” on jurisdiction, as opposed

to a “factual attack.” Paterson, 644 F.2d at 524.

Indeed, the court found that the plaintiff had ‘“ex-

hausted all administrative channels then known to

him,” id. at 522, and never discusses a scenario

where the Plaintiff abandons the administrative proc-

ess mid-stream. At best, therefore, that portion of

the court’s statement emphasized above is dicta, and

this Court is not bound by it.

As noted earlier, the First, Third and Ninth Cir-

cuits have explicitly held that when an ADEA plain-

tiff commences the administrative process, he must

completely pursue his administrative remedies prior

to filing suit. Pwurtill, 658 F.2d at 134; Castro, 775

3 Even if the Court construed the Plaintiff’s appeal to the

EEOC to be a notice of intent to sue (which would be quite

a liberal reading of the appeal), the appeal, filed November 9,

1987, was not filed within 180 days of the alleged unlawful

practice, which occurred almost 18 months earlier, on June 5,

1986.

13a

F.2d at 399; Limongelli, 707 F.2d at 373. As the

Plaintiff notes, the Sixth Circuit has ruled to the

contrary, and cited Paterson in support of that re-

sult. Langford, 839 F.2d at 1194-95. As is obvious

from the above analysis, the Court finds the reason-

ing of Purtill, Castro and Limongelli more persua-

sive on this point, and considers the Sixth Circuit’s

citing of Paterson to be based upon a misreading of

that case.

Thus, the Court concludes that an ADEA Plain-

tiff does not have the choice to abandon his adminis-

trative remedies once he has commenced that process,

and the reasons for this rule are clear. If the Plain-

tiff chooses to start that process, it would be grossly

inefficient to allow him to abandon it whenever he

grows tired of it. For the EEOC procedures to work

effectively, and for the system to have integrity,

claimants must be required to pursue their adminis-

trative remedies to completion, or not pursue them

at all. Because the Plaintiff failed to allow the ad-

ministrative process to come to a conclusion prior to

filing suit, his suit must be dismissed for failure to

exhaust administrative remedies.

* * * * *

IV. CONCLUSION

Under the undisputed facts it is clear that the De-

fendant is entitled to dismissal and summary judg-

ment. The facts show that with respect to the claims

under the Veteran’s Reemployment Act and 42 U.S.C.

§ 1985(2) and (3), the Complaint fails to state a

claim upon which relief may be granted. With re-

spect to the claims under the ADEA and the Re-

habilitation Act, the Plaintiff has failed to exhaust

l4a

his administrative remedies, and summary judgment

is therefore proper.

ACCORDINGLY, IT IS ORDERED that Defend-

ant’s Motion to Dismiss, or in the Alternative for

Summary Judgment is GRANTED. An appropriate

judgment will be entered this date.

Yl ou. S. GOVERNMENT PRINTING OFFICE; 1990 262203 20093