United States District Court for the District of Columbia
February 9, 2004.
CLIFFORD J. HERRON, et. al, Plaintiffs,
ANN M. VENEMAN, Secretary, United States Department of Agriculture, Defendant; CLIFFORD J. HERRON, Plaintiff, v. ANN M. VENEMAN, Secretary, United States Department of Agriculture, Defendant
The opinion of the court was delivered by: HENRY KENNEDY, District Judge
Plaintiffs Clifford J. Herron, Starendel S. Bryant, and O. Jim
Lawson, on behalf of themselves and a class of similarly-situated
plaintiffs, bring this action against defendant, Ann M. Veneman,
Secretary of the United States Department of Agriculture ("USDA"), in her
official capacity only, in order to enforce a class settlement agreement
allegedly reached in the course of litigation pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C § 2000e et seq. In
addition, plaintiff Herron, individually, requests that the court review,
in a trial de novo, the damages award in a decision rendered by an
administrative judge in his own case. Before this
court are the defendant's motions to dismiss and the parties'
cross-motions for summary judgment. Upon consideration of the motions,
the respective oppositions thereto, and the record of this case, the
court concludes that defendant's motions to dismiss must be granted and
that plaintiffs' motion for summary judgment must be denied.
In 1995, Dr. Herron, an African-American male, applied for a newly
created GS-15 position as Director of the Emergency and Noninsured
Assistance Programs Division of USDA's Farm Service Agency ("FSA"). He
did not receive the promotion and brought a claim for discrimination in
an administrative proceeding before an Equal Employment and Opportunity
Commission Administrative Judge ("EEOC Judge"). Pls.' Ex. 1 at 9-12
(Clifford J. Herron, et al., EEOC No. 100-98-7120x, et
al. (Dec. 14, 1999) (findings and conclusions)). Two years later, on
February 27, 1997, Herron, along with plaintiffs Bryant, Lawson, and
other class members, filed an administrative class complaint with EEOC.
The class included all African-American FSA employees alleging race
discrimination in the denial of a promotion or opportunity for promotion
to the GS-13, GS-14 and GS-15 levels since February 27, 1995. See
id. at 3. EEOC Judge Adria S. Zeldin found that the agency's
promotion practices did not have a disparate impact on African-Americans
as a class, but that the agency did discriminate individually against Dr.
Herron and Harold Connor, another class member who passed away shortly
after the decision. See id. at 4. The EEOC Judge found no other
instances of individual discrimination. Id. Later, after a
separate hearing on damages and relief, EEOC Judge Zeldin ordered USDA to
offer Dr. Herron a GS-15 position and provide accompanying back pay,
$10,000 in non-pecuniary compensatory damages, and $94,795.13 in
attorney's fees. Pls.' Ex. 2
at 10-11 (Clifford J. Herron, et. al, EEOC No.
100-98-7120x, et al. (Apr. 14, 2000) (recommended corrective
actions)). Dr. Herron's request for $300,000 in compensatory damages was
denied. Id. at 3-6.
USDA entered its final agency action, fully implementing the EEOC
Judge's Recommended Corrective Actions. Pls.' Ex. 3 at 3 (Clifford J.
Herron, et al., EEOC No. 100-98-7120x, et al. (USDA May
30, 2000) (final agency action). Plaintiffs Dr. Herron, other
individuals, and the administrative class timely appealed the
Final Agency Action. The EEOC's Office of Federal Operations ("OFO")
vacated the EEOC Judge's findings of no class-wide discrimination. Pls.'
Ex. 4 at 8-9 (Clifford J. Herron, et al., EEOC No. 100-98-7120x,
et al. (EEOC Office of Fed. Operations Sept. 27, 2002)
(decision)). The EEOC OFO also disposed of individual complaints,
like Dr. Herron's, this way:
We also remand each individual appeal decided by
the [EEOC Judge] as well as those not specifically
decided by the [EEOC Judge] but presently before
us on appeal, pending a decision on the class
claims. Individual complaints filed before or
after the class complaint is filed and that come
within the definition of the class claim(s) will
be subsumed within the class complaint.
Individual Complaints alleging reprisal must be
addressed on an individual basis regardless of the
[EEOC Judge]'s decision on the class complaint. As
there is no decision in the record addressing Mr.
Herron's claim of reprisal or any other individual
claim of reprisal properly raised, we remand the
issue for a decision on the merits.
Id. at 8 (internal citations omitted).
In response to the EEOC OFO's decision, Dr. Herron brought a timely
claim in Civil Action 02-02525 ("Herron I"), an individual suit
requesting that this court review the $10,000 compensatory damages award
of the EEOC Judge, adopted by USDA in its final agency action.
Plaintiff's complaint indicated that the amount was "ludicrously small"
compared to the damage
Herron suffered. Herron I Am. Compl. ¶ 17. As a
result, Dr. Herron requested a trial de novo on the compensatory damages
award. Id. ¶¶ 18, 36.
Shortly after Herron I was filed, USDA and the administrative
class of plaintiffs began to negotiate a class settlement agreement. On
February 14, 2003, plaintiffs accepted what they claimed to be a final
settlement offer made by USDA on January 31, 2003. The deal included a
$1,000,000 payment and other non-monetary relief in exchange for the
termination of class-wide discrimination claims, and related individual
claims, from February 27, 1995 to April 10, 1999. Pls.' Ex. 7 at 1-2
(Gebhardt Ltr. to Hardin, Feb. 14, 2003). Plaintiffs, however, understood
the alleged settlement agreement to apply to "the above-referenced case
only, and no other pending case"; specifically, it did not apply,
inter alia, to "any claims currently filed in a court of law, or
at the EEOC's Office of Federal Operations." Id. at 2. In
response, USDA claimed that plaintiffs' statement, purporting to limit
the scope of the claims extinguished, constituted "conditions to
[plaintiffs'] acceptance of the Department's offer" and a rejection of
USDA's final offer, which expired on February 14, 2003. See
Pls.' Ex. 8 at 1 (Hardin Ltr. to Gebhardt, Feb. 19, 2003). USDA
effectively gave plaintiffs until February 20, 2003 to accept the offer.
Id. at 2 ("If you did not intend to make a counter-offer, or to
place conditions on your acceptance of our unconditional final global
offer, please contact me in writing by the close of business (5 pm)
tomorrow."). Plaintiffs, in turn, answered that they had accepted USDA's
January 31 offer, that they did not believe the parties had agreed to a
"global settlement" but merely agreed to extinguish the claims of the
administrative class, and that they believed that USDA had engaged in
various harassing tactics aimed at "provok[ing] the class into rejecting
USDA's settlement offer." See Pls.' Ex. 9 at 1-3 (Gebhardt Ltr.
to Hardin, Feb. 20, 2003). Plaintiffs settled on
February 20, 2003 as the date on which they accepted USDA's offer
and the settlement agreement became binding. See Pls.' Mot. for
Summ. J. at 12. Plaintiffs do not indicate how, if at all, USDA responded
to allegations of its negotiating shenanigans. On March 7 and 27, 2003,
USDA sent plaintiffs draft settlement agreements, Pls.' Exs. 10 and 12,
that plaintiffs argue added new, unfavorable conditions to the agreement
without any additional consideration. See Pls.' Mot. for Summ J.
at 12-16. After receiving these drafts, on April 4, 2003, plaintiffs as
an administrative class filed suit in this court in Civil Action 03-0841
("Herron II"), claiming that USDA had breached a binding
settlement agreement reached on February 20, 2003, Herron II
Compl. ¶ 18, and seeking specific performance of the agreement.
Id. On the same day, plaintiff Herron amended his complaint to
include, in addition to his individual action, a claim requesting
enforcement of the class settlement agreement. Herron I Am.
Compl. ¶ 35. The court granted plaintiffs' motion to consolidate
Herron I and Herron II.
A. Legal Standards
1. Motion to Dismiss for Lack of Jurisdiction
In general, a motion to under Federal Rule of Civil Procedure 12(b)
should not prevail "unless plaintiffs can prove no set of facts in
support of their claim which would entitle them to relief." Kowal v.
MCI Commun. Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); Beverly
Enters., Inc. v. Herman, 50 F. Supp.2d 7, 11 (D.D.C. 1999). At the
stage of litigation when dismissal is sought, the plaintiffs' complaint
must be construed liberally, and the plaintiffs should receive the
benefit of all favorable inferences that can be drawn from the alleged
facts. See EEOC v. St. Francis Xavier Parochial Sch.,
117 F.3d 621, 624 (D.C. Cir. 1997). A court may consider such
materials outside the pleadings as it deems appropriate to resolve
the question whether it has jurisdiction to hear the case. Artis v.
Greenspan, 223 F. Supp.2d 149, 152 (D.D.C. 2002) ("A court may
consider material outside of the pleadings in ruling on a motion to
dismiss for lack of venue, personal jurisdiction or subject-matter
jurisdiction."). In spite of the favorable inferences the plaintiffs
receive on a motion to dismiss, it is still the plaintiffs' burden to
prove jurisdiction. See Am. Farm Bureau v. EPA, 121 F. Supp.2d 84,
90 (D.D.C. 2000).
2. Motion to Dismiss for Failure to State a Claim
In evaluating a Rule 12(b)(b) motion to dismiss for failure to state a
claim, unlike resolving a motion under Rule 12(b)(1), the court must
construe the complaint in a light most favorable to the plaintiff and
must accept as true all reasonable factual inferences drawn from
well-pleaded factual allegations. In re United Mine Workers of Am.
Employee Ben. Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994);
see Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)
(stating that the court must give the plaintiff "the benefit of all
inferences that can be derived from the facts alleged"). The court is
limited to considering facts alleged in the complaint, any documents
either attached to or incorporated in the complaint, matters of which the
court may take judicial notice, St. Francis Xavier Parochial
Sch., 117 F.3d at 624, and matters of public record, Marshall
County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n.6
(D.C. Cir. 1993). Factual allegations in briefs of memoranda of law
may not be considered when deciding a Rule 12(b)(6) motion, particularly
when the facts they contain contradict those alleged in the complaint.
Henthorn v. Dep't of Navy, 29 F.3d 682, 688 (D.C. Cir. 1994).
Often the introduction of factual materials by the parties
including depositions, answers to interrogatories, admissions on file and
affidavits will convert a Rule 12(b)(6) motion to dismiss to a
Rule 56(b) motion for summary judgment. Fed.R.Civ.P. 12(b) ("If, on
a [12(b)(b) motion], matters outside the pleadings are presented to and
not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56. . . .").
However, a "motion to dismiss is not automatically transformed into
a motion for summary judgment simply because matters outside the
pleadings are filed." Garita Hotel Ltd. v. Ponce Federal Bank,
F.S.B., 958 F.2d 15, 18 (1st Cir. 1992). The issue is, rather,
"whether the court actually took cognizance of them." Id.
at 19; see also Grzelak v. Calumet Publishing Co.,
543 F.2d 579, 583 (7th Cir. 1975) (finding that where a court is
concerned only with allegations in a complaint, and not the
factual materials presented, dismissal under Rule 12(b)(6) is
B. Failure to Exhaust Administrative Remedies
Jurisdiction is a threshold matter; without it, this court has no
authority to decide other potentially dispositive issues in this case.
See Ticor Title Ins. Co. v. FTC, 814 F.2d 731, 757 (D.C. Cir.
1987) (Green, J., concurring) (holding that "lower courts must always
wrestle with [jurisdictional issues] before reaching any questions of
justiciability, since courts may not decide issues over which they lack
jurisdiction"); Tuck v. Pan Am. Health Org., 668 F.2d 547, 549
(D.C. Cir. 1981) ("The federal courts are courts of limited jurisdiction,
and they lack the power to presume the existence of jurisdiction in order
to dispose of a case on any other grounds."); Am. Farm Bureau,
121 F. Supp.2d at 91 ("The court must address the issue of jurisdiction
as a threshold matter, because absent jurisdiction the court lacks the
authority to decide the case on
any other grounds."). Therefore, before considering any other
potentially dispositive arguments, the court must first consider the
jurisdictional issue defendant raises-that plaintiffs failed to exhaust
A court can exercise jurisdiction over only those claims contained in a
plaintiff's administrative complaint, or claims "like or reasonably
related to" allegations in the administrative complaint, that were
exhausted. Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir.
1995) (internal quotation marks and citation omitted); Caldwell v.
ServiceMaster Corp., 966 F. Supp. 33, 49 (D.D.C. 1997). Specific to
this case, a party who alleges a federal agency's noncompliance with a
settlement agreement must, prior to filing suit in federal district
court, notify, in writing, the EEO Director of the agency within thirty
days of when the complainant knew or should have known of the alleged
noncompliance. 29 C.F.R. § 1614.504(a). Thirty-five days after
providing notice, a party may then appeal to the EEOC or seek judicial
review. Malcolm v. Reno, 129 F. Supp.2d 1, 7 (D.D.C. 2000)
(citing Saksenasingh v. Secretary of Educ., 126 F.3d 347, 350
(D.C. Cir. 1997) and 29 C.F.R. § 1614.504(b)). A plaintiff's failure
to follow this procedure will deprive a federal court of subject matter
jurisdiction over any claims involving a settlement agreement with a
federal agency. See Sanders v. Reno, 186 F.3d 684, 685 (5th Cir.
1999) (affirming dismissal for lack of jurisdiction of federal employee's
Title VII suit for failure to notify the agency's EEO Director of alleged
noncompliance within 30 days under 29 C.F.R. § 1614.504(a)). An
agency-defendant has the burden to prove by preponderance of the evidence
plaintiffs' failure to exhaust administrative remedies. Brown v.
Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985) ("Because untimely exhaustion
of administrative remedies is an affirmative defense, the defendant bears
the burden of pleading and proving it.").
Defendants meet this burden. Plaintiffs concede that they never
notified USDA's EEO Director of noncompliance. Plaintiffs claim that the
settlement agreement became binding on February 20, 2003, and that they
became fully aware of USDA's intent not to comply with the
agreement around March 27, 2003. See Pls.' Mot for Summ J. at
12-16 (alleging that USDA's attempts to reduce settlement agreement to
writing manifested attempt to violate terms agreed upon on February 20).
They filed suit on April 4, 2003. There is no indication that plaintiffs
notified USDA's EEO director in writing, as required by
29 C.F.R. § 1614.504(a), anytime after March 27, 2003; indeed, it seems that
they never provided notification. See Pls.' Reply at 19-27.
Rather than claim that they notified USDA's EEO director, plaintiffs
implicitly acknowledge their failure to do so and, instead, attempt to
justify their omission. See id. at 20 (noting that "Plaintiffs
are well aware of the requirements stipulated in
29 C.F.R. § 1614.504" but claiming that plaintiffs "have properly exhausted
their administrative remedies by following to the letter the explicit
instructions of USDA's attorneys in this case, who directed them . . .
not to talk to any Department officials about this case but to direct all
communications to the Agency's attorneys."); id. at 23 n.9
("Defendant is being completely disingenuous in suggesting that
Plaintiffs were require to violate USDA's attorneys' explicit
instructions and make a futile appeal to the Agency's EEO Director.").
Plaintiffs provide two reasons why the court should excuse their
failure to exhaust administrative remedies: (1) that USDA effectively
misled them into failing to comply with 29 C.F.R. § 1614.504(a),
Pls.' Reply at 19-22, and (2) that USDA had effective notice of
plaintiffs' belief that USDA had failed to comply with the alleged
settlement agreement. Pls.' Reply at 22-27. Both arguments are without
In Title VII cases, the exhaustion-of-remedies requirement is not
absolute or insurmountable, and should be considered in light of the
purposes of the exhaustion rule. Brown, 777 F.2d at 14
("`Exhaustion under Title VII . . . should never be allowed to become so
formidable a demand that it obscures the clear congressional purpose of
rooting out . . . every vestige of employment discrimination within
the federal government.") (citing President v. Vance,
627 F.2d 353, 363 (D.C. Cir. 1980)) (internal quotation marks omitted). The
controlling law allows for equitable tolling, estoppel or waiver in
certain circumstances-inter alia, when a plaintiff has made
diligent but technically defective efforts to act within a limitations
period, when a plaintiff has been misled by the advice of a government
official about the running of a limitations period, or when an agency has
acted to waive the defense. See Bowden v. United States,
106 F.3d 433, 438 (D.C. Cir. 1997). Once the defendant meets its burden of
proving that the plaintiff failed to exhaust administrative remedies, the
plaintiff then bears the burden of pleading and proving facts supporting
equitable avoidance of the defense. Bayer v. Dep't of Treasury,
956 F.2d 330, 332 (D.C. Cir. 1992); Bowden, 106 F.3d at 437.
Plaintiffs fail to offer any valid grounds of equitable avoidance of
exhaustion. First, they claim that they consciously disregarded the
exhaustion requirement because USDA's counsel "directed them on three
separate occasions not to talk to any Department officials about this
case but to direct all communications to the Agency's attorneys." Pls.'
Reply at 20. As a result, plaintiffs claim that USDA should not prevail
on the failure-to-exhaust defense because USDA's "strong arm tactics,"
id., caused plaintiffs not to contact USDA's EEO director,
specifically leading plaintiffs' counsel to believe that such contact
would subject them to "claims of unethical behavior and possible bar
complaints" with their clients knowledge. Id. at 22.
Plaintiffs' argument, though they do not identify it as such, falls
under the category of "reliance on the advice of another government
official." Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1092
(D.C. Cir. 1985) (allowing for equitable tolling of statute of
limitations when "the result of justifiable reliance on the
advice of another government officer") (emphasis added) (internal
citations omitted); see also Bowden, 106 F.3d at 438. However,
as a factual matter, nothing suggests that USDA's communications misled
or otherwise prevented plaintiffs from contacting USDA's EEO Director.
Plaintiffs analyze three letters from USDA (dated February 12, February
14, and February 21, 2003) and emphasize that each demanded plaintiffs'
counsel to communicate solely with USDA's lawyers. See Pis.'
Reply at 20-22 (citing Pls.' Exs. 9 & 11; Def.'s Ex. 6). USDA's
letters, read in context, do not suggest any attempt to mislead
plaintiffs regarding their duty to contact USDA's EEO director under
§ 1614.504(a), if they believed USDA to be in breach of a binding
settlement agreement. Rather, USDA's letters-though far from
congenial-merely direct plaintiffs' attorneys to communicate only with
USDA's counsel, instead of the non-attorney USDA officials plaintiffs
apparently dealt with before, regarding the case and settlement
[T]he Department welcomes any discussions about
resolving this case made through the established
and proper channels. However, I [USDA's counsel
Robert Hardin] want to emphasize, and remind you,
that I speak for the Department in this
case. . . . As you know, it is inappropriate and
unethical for you, other class attorneys or
representatives to communicate with any Department
official while this case is in litigation. Please
do not communicate directly with [USDA's Assistant
Secretary for Administration Clyde Thompson, with
whom plaintiffs had previously negotiated] or any
other Department official regarding this case and
the ongoing settlement negotiations.
Pls.' Ex. 11 at 1 (Hardin Ltr. to Gebhardt, Feb. 14, 2003). See
also Pls.' Ex. 9; Def.'s Ex. 6 (containing similar warnings to
plaintiffs counsel with regard to their communications with
USDA officials aside from USDA's counsel). The letters make no
mention of § 1614.504(a), USDA's EEO director, or anything related to
plaintiffs' obligations to act if they believed a binding settlement
agreement to be violated. Simply put, it is neither plausible nor
reasonable that these letters, alleging potential ethics violations,*fn1
lulled or coerced plaintiffs into failing to exhaust administrative
remedies per § 1614.504(a).
Plaintiffs, as a second ground for equitable avoidance, suggest that
they provided USDA effective notice that they believed USDA to be in
noncompliance with the settlement agreement, Pls.' Reply at 22-27, even
if they did not follow § 1614.504(a) to the letter by notifying
USDA's EEO director. However, courts do not recognize "effective notice,"
by itself, to be a valid equitable ground for excusing a failure to
exhaust administrative remedies. See Bowden, 106 F.3d at 438-39.
Indeed, at least one court has dismissed a similar claim for effective
notice. Sanders, 186 F.3d at 685 (rejecting a claim that a
letter to the agency constituted "substantial compliance" with §
1614.504(a) when the letter was not addressed to agency's EEO director
and did not allege noncompliance with settlement agreement).
Even if the court were to accept plaintiffs' excuses for not notifying
USDA's EEO Director, per § 1614.504(a), plaintiffs still did
not exhaust all administrative remedies. In addition to §
1614.504(a)'s notification requirement, § 1614.504(b) obliged
plaintiffs to give USDA thirty-five days to respond to a non-compliance
complaint directed at USDA's EEO Director under § 1614.504(a). Only
after waiting thirty-five days has a plaintiff exhausted all
administrative remedies. See Saksenasingh, 126 F.3d at 351
(noting that under § 1614.504(b), a complainant can appeal to the
EEOC or file suit in federal district court "any time past thirty-five
days after notifying the agency"). In this case, plaintiffs did not wait.
They claimed to have provided USDA effective notice of USDA's failure to
comply on March 27, 2003. See Pls.' Reply at 26 ("Plaintiffs
March 27, 2003 letter put Defendant on notice of Defendant's
noncompliance with the February 20, 2003 Settlement Agreement") (citing
Def.'s Ex. 13). Plaintiffs were, therefore, compelled by §
1614.504(b) to give USDA until May 1, 2003 to respond.*fn2 Even had
plaintiffs provided proper notification on March 7, 2003
the first day they claim to have been at all aware of the USDA's
non-compliance they still would have been compelled to wait
until April 11, 2003 for a response from USDA before appealing to EEOC
or suing in district court. Instead, plaintiffs filed suit on April 4,
2003. Herron II Compl. at 19.
As a result, the court finds that plaintiffs have failed to exhaust
administrative remedies, and that it lacks subject matter jurisdiction
over the claims, in both Herron I and Herron II, that
USDA failed to comply with the settlement agreement allegedly reached on
February 20, 2003. The court does not reach the parties cross-motions for
summary judgment on the merits of the noncompliance claims, i.e. whether
there was an binding settlement agreement or not.
C. Review of Herron I Damages Claim
The dismissal of the class-wide noncompliance claims, however, does not
plaintiff Herron's individual claim for damages. The class-wide
claims, as an attempt to enforce a putative settlement
agreement, were subject to the exhaustion requirements in §
1614.504(a) and (b). Dr. Herron, on the other hand, seeks to
challenge the damages awarded by the EEOC Judge. Nevertheless,
the court grants defendant's motion to dismiss*fn3 plaintiff Herron's
individual claim because, as a matter of law, the court cannot grant the
relief he seeks. Specifically, plaintiff Herron wishes to challenge the
EEOC damages award, in a trial de novo, without having to relitigate the
issue of liability. This he is not entitled to do.
Title VII entitles federal employees to bring their agency
discrimination cases in federal court on two occasions: in order to
enforce final agency actions, which offer relief based on a finding of
discrimination, and in order to challenge them. See Houseton v.
Nimmo, 670 F.2d 1375, 1378 (9th Cir. 1982) (citing
42 U.S.C. § 2000e-5(g) as authority for federal district courts to enforce
final agency actions providing relief in Title VII claims);
42 U.S.C. § 2000e-16(c) (allowing federal employees aggrieved by final agency
determination on discrimination claim to challenge decision in district
court). Cases clearly distinguish these situations. First, in
"enforcement" actions, an aggrieved federal employee brings a suit to
enforce the terms of a final agency action in particular,
those in which an agency has found it has discriminated and committed
to certain remedies with which the agency has failed to comply.
In such cases, federal courts "have uniformly granted requests for
enforcement of favorable final agency and EEOC decisions without
requiring de novo review of the merits of the discrimination
claims. . . ."
Moore v. Devine, 780 F.2d 1559, 1563 (11th Cir. 1986). This is
because it is unjust to "require an employee who has successfully invoked
an administrative scheme designed to bind agencies to remedy
discrimination to prove his or her entire case again in federal court
when the agency refuses to take the ordered corrective action."
Id. The plaintiff, in essence, simply asks the court to uphold
what the agency was already obligated to do-no more, no less.
A federal employee may also challenge an unfavorable final agency
determinations of their employment discrimination claims by filing a
civil action. 42 U.S.C. § 2000e-16(c) ("[A]n employee . . ., if
aggrieved by the final disposition of his complaint, or by the failure to
take final action on his complaint, may file a civil action [against] the
head of the department, agency, or unit, as appropriate. . . ."). The
Supreme Court, in Chandler v. Roudebush, determined that §
2000e-16(c), and in particular, the phrase "civil action,"
entitled an aggrieved federal employee to a trial de novo.
425 U.S. 840, 862 (1976) ("[T]here is `specific statutory authorization' of a
district court `civil action,' which both the plain language of the
statute and the legislative history reveal to be a trial de novo.")
(citations omitted). Chandler eliminated any confusion as to
whether or not federal employee plaintiffs had a right to a
trial de novo in cases brought under § 2000e-16(c). See 425
U.S. at 843 n.4 (noting that, before Chandler, four federal
circuits held that § 2000e-16(c) conferred a right to a trial de
novo, while three circuits denied such a right and allowed courts to
engage in a more agency-deferential review).
This leaves, however, a lacuna. The statutory scheme assumes either
that a plaintiff is entirely satisfied with the agency's remedy, and
seeks to enforce all of it, or that she is entirely unsatisfied, and
seeks to challenge all of it. Williams v. Herman, 129 F. Supp.2d 1281,
1282 (E.D. Cal. 2001) ("The issue, however, is not so
straightforward. Plaintiffs suit does not neatly
fit within the regulatory scheme. On the one hand she is a
satisfied employee, on the other hand she is aggrieved."). Between Title
VII and Chandler, it is not clear whether plaintiffs may
challenge only part of a final agency determination in plaintiff
Herron's case, only the damages award. No controlling authority addresses
this issue. Chandler is not directly on point because it
emphasized that a federal employee plaintiff's right to a trial de novo
under § 2000e-16(c) and did not explain the scope of such a trial
de novo. See 425 U.S. at 843. Indeed, Chandler assumed,
based on the facts before it, that plaintiffs would use § 2000e-16(c)
to challenge final agency actions in civil actions only when the agencies
or EEOC failed to find discrimination. See id. at 842-43. The
Supreme Court did not seem to anticipate cases in which plaintiffs would
challenge only part of a final agency action, seeking to preserve the
remainder of the EEOC's findings. See id. Furthermore, no D.C.
Circuit cases squarely addressed the issue of the availability of limited
de novo review.*fn4
There is a wealth of persuasive authority relevant to the issue before
the court, but these cases are numerous, conflicting, and often
confusing. Amidst these conflicting cases, the better-supported and
reasoned view is that a plaintiff is not entitled to a limited or
fragmented trial de novo on damages without having to relitigate
favorable findings on liability.
One line of cases, following the Eleventh Circuit's decision in
Moore, indicates that a plaintiff may not seek a
limited de novo review of the remedy only while binding the agency to a
previous finding of discrimination. Moore itself was not a case
in which a plaintiff sought
limited review of a unfavorable administrative damages award.
Rather, it clarified Eleventh Circuit law by distinguishing actions to
enforce administrative relief from actions to challenge unfavorable
administrative decision regarding discrimination suits by federal
employees.*fn5 A long line of cases, like Moore, hold that a
plaintiff challenging (not enforcing) a final agency determination on a
Title VII claim must request a full trial de novo, allowing a district
court to determine damages and liability on its own. Timmons v.
White, 314 F.3d 1229, 1233 (10th Cir. 2003) ("[W]e believe that the
better-reasoned cases hold that a plaintiff seeking relief under §
2000e-16(c) is not entitled to litigate those portions of an EEOC
decision believed to be wrong, while at the same time binding the
government on the issues resolved in his or her favor."); Haskins v.
Dep't of Army, 808 F.2d 1192, 1199 (6th Cir. 1987) (recognizing that
a plaintiff is "entitled to a de novo hearing if requested" but that "the
district court is not bound by the administrative findings.");
Gaffney v. Potter, 2002 WL 1008460, at *6 (N.D. Ill. May 13,
2002) ("Allowing a review of only certain aspects of the agency's final
decision would not constitute a trial de novo. Instead, it would more
properly be considered an appeal of certain issues. The
statute and regulations do not allow such a review."); Simpkins
v. Runyon, 5 F. Supp.2d 1347, 1351 (N.D.Ga. 1998) (finding that a
federal plaintiff was either entitled to enforcement of an award or a
"de novo, plenary trial on the merits"); Cocciardi v.
Russo, 721 F. Supp. 735, 738 (E.D. Pa. 1989) (finding that a
plaintiff challenging a final agency must be granted "no more and no less
than a `trial de novo.'").
Some of these cases cite Moore as if it were a clear statement
against limited de novo review, which it is not. See Timmons,
314 F.3d at 1234 (citing Moore for the proposition that a
federal district court is not bound by administrative findings when
plaintiff elects to proceed under § 2000e-16(c)); Haskins,
808 F.2d at 1200 n.4 (same); Gaffney, 2002 WL 1008460, at * 4
(same); Simpkins, 5 F. Supp.2d at 1349 (same). However, these
cases do not seem to otherwise miscast relevant case law, in contrast to
the cases allowing de novo review, analyzed below.
The cases in the Moore line provide two other compelling
reasons why § 2000e-16(c) and Chandler do not allow limited
de novo trials on damages only. First, the standard definition
of "trial de novo" is a "new trial on the entire case that is,
on both questions of fact and issues of law as if there had been
no trial in the first instance." Timmons, 314 F.3d at 1233
(citing Black's Law Dictionary (7th ed. West 1999)); see
also Cocciardi, 721 F. Supp. at 737 (finding that a trial de novo
is a "new trial or retrial had in which the whole case is retried as if
no trial whatever had been had in the first place") (citing Black's
Law Dictionary (5th ed. West 1979)). The D.C. Circuit, in another
context, subscribes to this definition of "de novo." See Doe v.
United States, 821 F.2d 694, 697-98 (D.C. Cir. 1987) (finding, in
a case involving the Privacy Act, 5 U.S.C. § 552a(e)(5), that "[d]e
novo means here, as it ordinarily does, a fresh, independent
determination of `the matter' at stake; the court's inquiry is not
limited to or constricted by the administrative
record, nor is any deference due the agency's conclusion.")
(citations omitted). Second, the Supreme Court seemed to understand
"trial de novo" as an entirely new trial over all aspects of a case.
Chandler left open the possibility that
[p]rior administrative findings made with respect
to an employment discrimination claim may, of
course, be admitted as evidence at a
federal-sector trial de novo. Moreover, it can be
expected that, in light of the prior
administrative proceedings, many potential issues
can be eliminated by stipulation or in the course
of pretrial proceedings in the District Court.
425 U.S. at 864 n.39 (internal citations omitted). These statements
would be unnecessary, and indeed strange, if the Supreme Court had
thought that prior administrative findings would be binding upon a later
district court proceeding. See Timmons, 314 F.3d at 1235;
Cocciardi, 721 F. Supp. at 737-38 (citing Chandler, 425
U.S. at 864-65, and statutory authority directly, instead of
Moore, as support for holding that federal plaintiffs could not
seek "fragmented" trial de novo).
The Moore line of cases are not unassailable. Nevertheless,
the cases allowing limited de novo review are manifestly flawed.
Beginning with Pecker v. Handler, these cases diverge from the
Moore line and hold that a plaintiff is entitled
request a trial de novo over the remedy only without having to relitigate
the merits (i.e. finding of discrimination). 801 F.2d 709, 711 n.3 (4th
Cir. 1986) (finding that, in an action to review only the remedy provided
by the EEOC, the defendant federal agency defendant was "bound by the
EEOC's findings of discrimination and retaliation."); Girard v.
Rubin, 62 F.3d 1244, 1247 (9th Cir. 1995) (citing other cases
approvingly for the proposition that "an employee could seek review of
parts of a favorable EEOC decision without risking review of the
remainder of that decision); Morris v. Rice, 985 F.2d 143, 146
(4th Cir. 1993) ("[T]he plaintiff may limit and tailor his request for a
de novo review, raising questions about the remedy without
exposing himself to a de novo review of a finding of
discrimination."); see also Williams, 129 F. Supp.2d at
1284 (finding that a plaintiff was not "required to defend a non appealed
determination" of discrimination in bringing a challenge under §
2000e-16(c)). The one relevant case decided by a sister court in the
District of Columbia followed the Pecker line of cases.
Evans v. Secretary of Energy, 1990 WL 51921, at *2, *4 (D.D.C.
Jan. 30, 1990) (finding, in a "claim for more appropriate relief for
racial harassment than that offered by the agency's disposition," that
"the agency is bound by the agency's acceptance of the findings of
discrimination. . . .") (citing generally Moore, 780 F2.d 1559,
Pecker, 801 F.2d 709, and Haskins, 808 F.2d 1192).
However, as other courts have recognized, see, e.g., Timmons 314
F.3d at 1236, these cases rest on weak foundations, starting with
Pecker itself. The case erroneously cites Moore as
authority for the proposition that a federal employee may request limited
de novo review of the relief offered by a final agency determination
without relitigating the merits. Pecker, 801 F.2d at 711 n.3
(citing Moore, 780 F.2d at 1560). The passage Pecker
cites, however, merely addresses actions to enforce final agency
determinations, not actions to challenge them, whether in part or in
whole. See Moore, 780 F.2d at 1560. Pecker conflates
actions to enforce with actions to challenge final agency determinations,
which is why it allowed EEOC findings of discrimination to be binding
upon a district court even where the plaintiff challenged the
final agency action adopting the EEOC decision. See 801 F.2d at
711 n.3. Other
cases allowing limited de novo trials simply follow
Pecker, make similar mistakes in miscasting cases,*fn6 or
engage in bizarre analysis.*fn7 As a result, the Moore line of
cases forbidding limited trials de novo rests on firmer, if not
rock-solid, jurisprudential ground.
A trial de novo, as understood by the Moore line of cases,
"poses certain risks for a plaintiff who has won some relief in an
administrative proceeding but not as much as she would like-she "might
lose everything in such a complete new trial." Simpkins,
5 F. Supp.2d at 1349. However, "the Supreme Court in Chandler did
not disregard the importance of the prior
administrative process" in discrimination cases.
Cocciardi, 721 F. Supp. at 738. A prior finding of
discrimination by the EEOC, or an agency's acknowledgement of
discrimination, is clearly relevant to a district court's findings in a
trial de novo. But the better interpretation of Chandler is that
a court is not compelled to follow previous administrative
findings, however favorable to a plaintiff bringing an action under §
2000e-16(c) to challenge, not enforce, a final agency determination. As a
result, the court must grant USDA's motion to dismiss plaintiffs' claim.
The court cannot review plaintiffs' class-wide claims of noncompliance
because, until and unless they have exhausted all administrative
remedies, this court has no jurisdiction. The court also can not review
plaintiff Herron's individual claim as framed in the Amended until and
unless he seeks relief specifically a full trial de novo-that
the court is allowed to provide.
An appropriate order accompanies this memorandum.
For the reasons set forth in in the court's Memorandum Opinion docketed
this same day, it is this 9th day of February, 2004, hereby
ORDERED that Judgment is entered in favor of Defendant and
the complaints in both above-captioned actions are DISMISSED.