Mary Bullock v. Jacqueline Berrien , 688 F.3d 613 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY E. BULLOCK,  No. 10-55866
Plaintiff-Appellant, D.C. No.
v.  3:06-cv-02329-
JACQUELINE A. BERRIEN, WQH-CAB
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted May 7, 2012*
Pasadena, California
Filed July 30, 2012
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
8549
BULLOCK v. BERRIEN 8551
COUNSEL
Gastone Bebi, LAW OFFICES OF GASTONE BEBI, San
Diego, California, for the plaintiff-appellant.
8552 BULLOCK v. BERRIEN
Timothy C. Stutler, Katherine L. Parker, UNITED STATES
ATTORNEY’S OFFICE, San Diego, California, for the
defendant-appellee.
OPINION
W. FLETCHER, Circuit Judge:
Plaintiff Mary Bullock, a former employee of the Equal
Employment Opportunity Commission (“EEOC”), appeals
from the district court’s dismissal of her disability discrimina-
tion suit under the Rehabilitation Act of 1973, 29 U.S.C.
§ 701 et seq. The district court dismissed Bullock’s complaint
for failure to exhaust administrative remedies.
Prior to filing suit, Bullock filed an administrative com-
plaint that was adjudicated by an administrative law judge
(“ALJ”). After the ALJ denied relief in part, Bullock filed an
optional administrative appeal with the Equal Employment
Opportunity Commission (“the Commission”).1 She subse-
quently withdrew her appeal without waiting 180 days as
specified in 29 C.F.R. § 1614.407(d), and filed suit in district
court based on the same claims she asserted in her administra-
tive complaint. The district court held under Rivera v. United
States Postal Service, 830 F.2d 1037 (9th Cir. 1987), cert.
denied, 486 U.S. 1009 (1988), that it lacked jurisdiction
because Bullock had not waited 180 days after filing her
administrative appeal and therefore had failed to exhaust her
administrative remedies.
In its initial briefing to us, the EEOC argued, based on
Rivera, that Bullock had failed to exhaust. We asked for sup-
1
When referring to the EEOC as an adjudicator of Bullock’s administra-
tive appeal, we use the term “Commission.” When referring to the EEOC
as Bullock’s employer or to the Chair of the EEOC as Defendant-
Appellee, we use the term “EEOC.”
BULLOCK v. BERRIEN 8553
plemental briefing discussing our decision in Bankston v.
White, 345 F.3d 768 (9th Cir. 2003), which had not been cited
by either party. In its supplemental brief, the EEOC now con-
cedes that Bullock has exhausted her administrative remedies
but contends that she has waived any exhaustion argument
based on Bankston.
We hold, based on Bankston and on a post-Rivera regula-
tion, that Bullock has exhausted her administrative remedies.
We reverse and remand to the district court for further pro-
ceedings.
I. Background
Bullock, who suffers from Multiple Sclerosis and Systemic
Lupus, worked as an ALJ for the EEOC from 1999 to 2007.
In January 2003, Bullock filed an informal complaint based
on alleged violations of the Rehabilitation Act, which incor-
porates the administrative exhaustion procedures of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(c). See
29 U.S.C. § 794a(a)(1). Bullock filed a formal complaint in
May 2003.
A hearing was held before a contract ALJ, in accordance
with EEOC policy for complaints filed by EEOC employees.
The ALJ found that Bullock was not a qualified individual
with a disability because she could not perform the essential
functions of her job even with accommodation. However, the
ALJ found that the EEOC had retaliated against Bullock for
filing her discrimination complaint. The ALJ awarded Bul-
lock $25,000 in nonpecuniary damages, $108,680 in attor-
ney’s fees, and $7,823.24 in costs.
Both Bullock and the EEOC filed administrative appeals.
Bullock filed her appeal on August 18, 2006. She withdrew
it on September 18, stating her intent to file a civil suit. On
October 18, Bullock filed suit in district court.
8554 BULLOCK v. BERRIEN
The Commission dismissed the EEOC’s appeal because
Bullock had filed suit in district court. It wrote:
The regulation found at 29 C.F.R. § 1614.409 pro-
vides that a civil action “shall terminate Commission
processing of the appeal.” Commission regulations
mandate dismissal of the EEO complaint under these
circumstances so as to prevent a complainant from
simultaneously pursuing both administrative and
judicial remedies on the same matters, wasting
resources, and creating the potential for inconsistent
or conflicting decisions, and in order to grant due
deference to the authority of the federal district
court. . . . Accordingly, since complainant raised the
same claims in her civil action as those raised in the
present complaint, the agency’s appeal is hereby dis-
missed.
The district court dismissed Bullock’s complaint without
leave to amend because she had filed suit within 180 days of
filing her administrative appeal, in violation of 29 C.F.R.
§ 1614.407(d), and therefore had failed to exhaust her admin-
istrative remedies. Bullock appealed the dismissal. We
reverse and remand.
II. Standard of Review
We review for clear error a district court’s findings of fact
in an appeal of a dismissal for failure to exhaust administra-
tive remedies. Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir.
2008). We review de novo the district court’s determinations
of law. Id.III. Discussion
A federal employee asserting a claim of discrimination
under the Rehabilitation Act must exhaust administrative rem-
edies before filing a civil action in district court. Boyd v. U.S.
BULLOCK v. BERRIEN 8555
Postal Serv., 752 F.2d 410, 413-14 (9th Cir. 1985). To
exhaust administrative remedies, the aggrieved federal
employee must first attempt to resolve the matter by filing an
informal complaint that triggers counseling by an EEOC
Counselor. 29 C.F.R. § 1614.105(a). If an informal resolution
is not achieved, the employee must then file a formal com-
plaint for decision by an ALJ. See id. §§ 1614.105(d),
1614.106. The employee may file a civil action in federal dis-
trict court within 90 days of receiving notice of final agency
action on the employee’s formal complaint by the ALJ, or
after 180 days from the filing of the complaint if no final
action has been taken by that time. 42 U.S.C. § 2000e-16(c);
29 C.F.R. § 1614.407(a)-(b).
[1] An employee has the option of filing an administrative
appeal of an ALJ’s decision, but such an appeal is not neces-
sary for exhaustion of administrative remedies. If either party
files an administrative appeal, Title VII authorizes the
employee to file suit in federal district court within 90 days
of receiving notice of final agency action on the appeal or
after 180 days from the filing of the appeal if no final agency
action has been taken by that time. See 42 U.S.C. § 2000e-
16(c). An implementing regulation provides: “A complainant
who has filed an individual complaint . . . is authorized under
title VII, the ADEA and the Rehabilitation Act to file a civil
action in an appropriate United States District Court . . . (d)
After 180 days from the date of filing an appeal with the
Commission if there has been no final decision by the Com-
mission.” 29 C.F.R. § 1614.407. An additional implementing
regulation, promulgated in 1992, provides, “Filing of a civil
action under § 1614.40[7] or § 1614.40[8] shall terminate
Commission processing of the appeal. If private suit is filed
subsequent to the filing of an appeal, the parties are requested
to notify the Commission in writing.” Id. § 1614.409
(“§ 1614.408 or § 1614.409” in the original changed to
“§ 1614.40[7] or § 1614.40[8]” to correct an obvious scriven-
er’s error).
8556 BULLOCK v. BERRIEN
[2] The question before us is whether an employee who
files an optional appeal with the Commission of an ALJ’s
decision but later files suit in district court without waiting
180 days has failed to exhaust her administrative remedies.
We addressed this question in Rivera with respect to claims
brought under Title VII and the Age Discrimination in
Employment Act (“ADEA”). We held that a plaintiff who
chooses to pursue an administrative appeal under 42 U.S.C.
§ 2000e-16(c) must maintain that appeal for 180 days before
filing suit in district court. Failing to do so, we held, results
in a failure to exhaust administrative remedies. We wrote,
“Impatience with the agency does not justify immediate resort
to the courts.” 830 F.2d at 1038; see also Greenlaw v. Gar-
rett, 59 F.3d 994, 997 (9th Cir. 1995) (“A plaintiff may not
cut short the administrative process prior to its final disposi-
tion, for upon abandonment a claimant fails to exhaust admin-
istrative relief and may not thereafter seek redress from the
courts.”).
The district court relied upon Rivera in concluding that
Bullock had failed to exhaust her administrative remedies
prior to filing a civil suit. However, the parties now agree that
Rivera is no longer good law, and that Bullock did not need
to wait 180 days after filing her optional administrative appeal
in order to file her suit in district court. For the reasons that
follow, we agree.
[3] In Bankston, we dealt with a claim of discrimination in
violation of the ADEA. The ADEA does not require exhaus-
tion of administrative remedies. As long as an aggrieved
employee notifies the EEOC of her intent to file suit, she may
proceed directly to federal district court. However, an
employee with an ADEA claim has “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.” Bankston, 345 F.3d at 770 (emphasis added).
BULLOCK v. BERRIEN 8557
In Bankston, the plaintiff was fired from his job as an
Occupational Safety and Health Administration officer for the
Department of the Army. He filed an optional administrative
appeal with the Merit Systems Protection Board, but with-
drew it 61 days later. He notified the EEOC of his intent to
file suit in federal court. The government contended that once
having filed his optional administrative appeal with the
Board, the plaintiff was required to exhaust that administra-
tive remedy. We disagreed. We noted that a regulation pro-
mulgated after our decision in Rivera required dismissal of
the administrative appeal in the event an employee filed suit
in district court. Relying in part on our earlier decision in Bak
v. United States Postal Service, 52 F.3d 241, 243 (9th Cir.
1995) (discussing 29 C.F.R. § 1613.513), we held that “a rule
based on administrative efficiency should not be applied puni-
tively where there are no simultaneous administrative and
judicial proceedings and where the plaintiff no longer has the
right to administrative review of his claim.” Bankston, 345
F.3d at 772.
[4] The rationale of Bankston applies to the case before us.
While Bullock was required to submit a formal complaint for
adjudication by an ALJ in order to exhaust her administrative
remedies, she was not required to take an administrative
appeal from the ALJ’s decision. Had neither party filed an
administrative appeal, there would be no question that Bul-
lock properly exhausted her administrative remedies, as she
filed suit within 90 days of receiving notice of final agency
action on her complaint, as required by 42 U.S.C. § 2000e-
16(c) and 29 C.F.R. § 1614.407(a). Under such circum-
stances, allowing an employee to change her mind after filing
her optional administrative appeal does not significantly
impair administrative efficiency because, pursuant to 29
C.F.R. § 1614.409, the Commission will terminate any pend-
ing administrative appeal upon the employee’s filing of a civil
action. As the Seventh Circuit wrote in Adler v. Espy:
The principal ground for [imposing an exhaustion
requirement] is that agencies shouldn’t be put to the
8558 BULLOCK v. BERRIEN
bother of conducting administrative proceedings
from which the complainant can decamp at any time
without consequence. That is a weighty consider-
ation, and we do not retreat an inch from it. But it is
a consideration designed for the benefit of the agen-
cies, not of the judges, and if the agencies don’t want
it, there is no reason for us to give it great weight.
35 F.3d 263, 265 (7th Cir. 1994) (citation omitted). Although
our holding in Bankston addressed only claims arising under
the ADEA, we agree with the EEOC’s position in its supple-
mental brief that Bankston “need not be confined to the
ADEA context” given that the EEOC regulations concerning
administrative appeals govern claims arising under the
ADEA, the Rehabilitation Act, and Title VII, “without draw-
ing any distinctions.”
As we observed in Bak, the termination of an administra-
tive proceeding leaves an employee in Bullock’s position
without any remedy if the district court refuses to entertain
her suit after she has filed and then withdrawn her administra-
tive appeal. Bak, 52 F.3d at 244. “The policy concern for
administrative efficiency expressed in earlier cases [such as
Rivera and Vinieratos v. United States Department of Air
Force, 939 F.2d 762 (9th Cir. 1991)] is attenuated or even
eliminated here because [Bullock] has no administrative rem-
edy currently pending or available in the future.” Bankston,
345 F.3d at 777.
The EEOC contends that, despite its newly announced
position that she has exhausted her administrative remedies,
Bullock should be denied relief because she has waived any
argument that Bankston and 29 C.F.R. § 1614.409 supersede
Rivera. Prior to our request for supplemental briefing, neither
party had cited Bankston. “We will not ordinarily consider
matters on appeal that are not specifically and distinctly
argued in appellant’s opening brief.” United States v. Ullah,
976 F.2d 509, 514 (9th Cir. 1992) (internal quotation marks
BULLOCK v. BERRIEN 8559
and citation omitted). However, our consideration of the
Bankston issue does not prejudice the government. The issue
is purely legal and the parties have “fully briefed it in their
supplemental brief[s] to the court. . . .” Hurlic v. S. Cal. Gas
Co., 539 F.3d 1024, 1037 n.8 (9th Cir. 2008); see also
Trigueros v. Adams, 658 F.3d 983, 988 (9th Cir. 2011). More-
over, the factual record is fully developed, and the EEOC
agrees with our substantive legal conclusion.
[5] In sum, we hold that an aggrieved employee subject to
the procedural rules of Title VII exhausts her administrative
remedies by filing a formal complaint for adjudication by an
ALJ. Once final agency action has been taken on her com-
plaint, she has the option of either filing an administrative
appeal or filing suit directly in federal district court within 90
days of receiving notice of the agency action. If the employee
files an optional administrative appeal, she may withdraw that
appeal and file suit in district court without waiting 180 days
from the filing of the notice of appeal. The employee’s law-
suit in district court may proceed even though the employee
filed and then withdrew an administrative appeal. As Bullock
filed suit within 90 days of receiving notice of final agency
action on her complaint, we have no occasion to decide
whether an employee’s lawsuit could proceed if the employee
prematurely withdrew from an administrative appeal and filed
suit more than 90 days after receiving notice of final agency
action on her complaint. See 42 U.S.C. § 2000e-16(c).
[6] Bullock did not fail to exhaust administrative remedies
by withdrawing her optional administrative appeal to the
Commission within 180 days after filing a notice of appeal.
We reverse the district court’s dismissal of her suit and
remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.