Bankston v. White

• Decision Date: 01 October 2003
• Docket Number: No. 02-15547.,02-15547.
• Parties: James R. Bankston, Plaintiff-Appellant, v. Thomas E. White, Secretary of the Army; UNITED STATES of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

345 F.3d 768

James R. Bankston, Plaintiff-Appellant, v. Thomas E. White, Secretary of the Army; UNITED STATES of America, Defendants-Appellees.

No. 02-15547.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 2003 — San Francisco, California.

Filed October 1, 2003.

Jeffrey A. Dickerson, Reno, Nevada, for the plaintiff-appellant.

Gregory Addington, Assistant United States Attorney, Reno, Nevada, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding. D.C. No. CV-01-00105-HDM.

Before: Procter Hug, Jr., John R. Gibson,^* and Raymond C. Fisher, Circuit Judges.

OPINION

GIBSON, Senior Circuit Judge:

James Bankston appeals from the district court's dismissal of his Age Discrimination in Employment Act claim for lack of jurisdiction. The district court held that Bankston had failed to exhaust his administrative remedies because he voluntarily dismissed an appeal he had filed with the Merit Systems Protection Board. We reverse the district court's dismissal of Bankston's complaint.

Bankston was fired from his job as OSHA officer for the Department of the Army on February 25, 1999. He filed an appeal with the Merit Systems Protection Board on March 24, 1999, but then withdrew it on May 25, 1999, sixty-one days after filing. On May 26, the Board granted his motion to withdraw, which became the final decision of the Board on June 30, 1999. On July 14, 1999, Bankston notified the Equal Employment Opportunity Commission, or the EEOC, of his intent to file suit in federal court. He filed suit on September 23, 1999. The government moved to dismiss the suit, arguing that Bankston had to exhaust his administrative remedies and that he had not done so. The district court stayed the suit for 90 days to permit Bankston to try to reopen his appeal before the Board. Bankston tried to do so, but the Board treated his petition as an untimely appeal and dismissed it. In the meantime, the district court dismissed Bankston's suit without prejudice. On February 23, 2001, Bankston filed a second suit in federal court, which was dismissed for lack of subject matter jurisdiction.

Bankston now appeals from the dismissal of his second suit.

Whether a plaintiff has exhausted administrative remedies as required before filing suit is a question of law which we review de novo. Charles v. Garrett, 12 F.3d 870, 873(9th Cir.1993).

This suit arises under the provisions of the Age Discrimination in Employment Act (known as the ADEA) applicable to federal employees, added by the Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, § 28(b)(2), 88 Stat. 74, as amended, 29 U.S.C. § 633a (2000). Unlike Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16(c), the ADEA "contains no express requirement that a federal employee complainant seek administrative relief," Stevens v. Dep't of Treasury, 500 U.S. 1, 12, 111 S.Ct. 1562, 114 L.Ed.2d 1 (1991) (Stevens, J., concurring and dissenting), except that an employee who wishes to file suit without pursuing administrative remedies must give the EEOC notice of intent to sue at least 30 days before filing suit. See 29 U.S.C. § 633a(d)(allowing individual to file suit without filing EEOC complaint but requiring notice to EEOC of intent to sue) and 29 C.F.R. § 1614.201(a) (2002) ("As an alternative to filing a complaint under this part, an aggrieved individual may file a civil action in a United States district court under the ADEA. . ."). Federal law does, however, allow an employee the option of pursuing administrative remedies, either through the agency's EEO procedures, see 29 U.S.C. § 633a(b) and 29 C.F.R. § 1614.106 (2002), or through the Merit Systems Protection Board. See 5 U.S.C. § 7702 (providing procedures for "mixed cases" where the employment action is reviewable by the Board and also is the basis for a discrimination claim).¹

The government argues that the statute regarding the filing of "mixed cases" implicitly bars suit under the ADEA where a plaintiff has filed a Merit Systems appeal but has failed either to pursue it to an adjudication on the merits or else to allow 120 days to elapse without administrative action before filing suit. This jurisdictional bar is not set out explicitly in statute or regulation, but the government argues that it arises from the provisions of 5 U.S.C. § 7702, the Civil Service Reform Act, and that it is mandated by our cases.

I.

First, the government argues that specific provisions of 5 U.S.C. § 7702 abrogate the jurisdiction granted by the ADEA. We will not infer that one statute does away with jurisdiction expressly granted by another, see INS v. St. Cyr, 533 U.S. 289, 299, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), where the two statutes may easily be read to coexist peacefully. The government relies on the provisions of § 7702 specifying when a Merit Systems Board decision becomes judicially reviewable, 5 U.S.C. §§ 7702(a)(3), (b)(5), (c) and (d)(2)(A). Bankston has not satisfied the conditions prerequisite to such review. The government contends that Bankston's failure to satisfy these conditions bars jurisdiction over his ADEA claim. Since Bankston is not seeking review of a Merit Systems Board decision, these provisions specifying when suit can be filed for review of a Board decision are not applicable to his case and do not, by their terms, affect jurisdiction independently existing under the ADEA.

Second, the statute gives a claimant a right to file a lawsuit if the Merit Systems Board or agency fails to act on the complaint within 120 days (or, when the claimant petitions for EEOC review, if the EEOC fails to act within 180 days). 5 U.S.C. § 7702(e)(1). The government argues that the Civil Service Reform Act, by granting jurisdiction without a final agency action only after the 120- or 180-day waiting period, implicitly restricts jurisdiction granted by the ADEA at 29 U.S.C. § 633a(c). As we understand it, the government's argument is that if one could sue under the ADEA at any time, there would be no need for § 7702 to grant permission to sue after the waiting period; the government asks us to infer, from the grant of permission, that the grant was necessary. But § 7702 applies to claims that arise under statutes other than the ADEA, such as Title VII claims under 42 U.S.C. § 2000e-16, which are subject to an exhaustion of administrative remedies requirement. 5 U.S.C. § 7702(a)(1); 42 U.S.C. § 2000e-16(c). There is thus a reasonable explanation for why § 7702(e)(1) grants jurisdiction to sue after a waiting period that might be redundant for ADEA claims. Abridging jurisdiction granted under § 633a is not necessary in order for § 7702(e)(1) to make sense.

The government further argues that this court and others have interpreted § 7702(e)(1) to require that a government employee who dismisses a Merit Systems appeal cannot thereafter bring an ADEA suit on the same claim. In support of its theory that § 7702 bars jurisdiction over Bankston's lawsuit because he dismissed his Merit Systems appeal, the government relies on Title VII cases, such as Vinieratos v. United States Dep't of Air Force, 939 F.2d 762(9th Cir.1991), and McAdams v. Reno, 64 F.3d 1137 (8th Cir.1995). In Vinieratos and McAdams, the courts affirmed dismissal of the claims for lack of jurisdiction under Title VII where the claimant had abandoned Merit Systems appeals. Title VII, unlike 29 U.S.C. § 633a, contains an exhaustion of remedies requirement. 42 U.S.C. § 2000e-16(c). Both Vinieratos and McAdams relied on Title VII's exhaustion requirement. Vinieratos, 939 F.2d at 767-68 ("Title VII specifically requires a federal employee to exhaust his administrative remedies as a precondition to filing suit."); McAdams, 64 F.3d at 1141 ("Federal employees asserting Title VII claims must exhaust their administrative remedies as a precondition to filing a civil action in federal district court."). Vinieratos reasoned that "an administrative exhaustion rule is meaningless if claimants may impede and abandon the administrative process and yet still be heard in the federal courts." 939 F.2d at 772. The rationale of these cases, preventing end-runs around Title VII's exhaustion of remedies requirement, is inapplicable to a federal employee's ADEA claim, in which there is a statutory grant of jurisdiction not subject to any administrative exhaustion requirement (other than notifying the EEOC at least thirty days before filing suit, 29 U.S.C. § 633a(d), which Bankston did).

Although there are other cases holding that a federal employee who files a Merit Systems appeal becomes bound to exhaust that remedy before filing an ADEA suit, those cases are not predicated on the language of the Civil Service Reform Act, 5 U.S.C. § 7702(e)(1), but rather on prudential considerations of administrative efficiency originally developed in cases that were not decided under the Civil Service Reform Act. See, e.g., Economou v. Caldera, 286 F.3d 144, 149 n. 8 (2d Cir.2002) (stating exhaustion requirement, relying on Wrenn v. Secretary, 918 F.2d 1073, 1078(2d Cir.1990), which did not involve Civil Service Reform Act proceedings) cert. denied, 123 S.Ct. 447 (2002); Castro v. United States, 775 F.2d 399, 404 (1st Cir.1985) (relying on Purtill v. Harris, 658 F.2d 134, 138 (3d Cir.1981), which did not involve Civil Service Reform Act proceedings). But cf. Coffman v. Glickman, 328 F.3d 619, 623-24 (10th Cir.2003) (in case including age discrimination claim, stating that exhaustion of Merit Systems remedies was required because rule was "consonant with the purpose of the Civil Service Reform Act"). We therefore will deal with these cases in part II, which discusses the history and parameters of the judicially-created exhaustion rule in federal employees' ADEA cases.

II.

In addition to relying on 5 U.S.C. § 7702, the government relies on judicial precedent holding that a government employee who...