Stan Laber v. Francis J. Harvey, Secretary of the Army

376-404 course, to be “is not one prejudice, Stockton, F.2d at

casually invoked.” case, how- of this circumstances

745. The

ever, invocation. justify than its more

C. to demonstrate entitle-

Finally, in order evidentiary hearing, Robinson

ment to an fac- the Townsend one of

must establish

tors, find that the district and we must him denying its discretion court abused LABER, Plaintiff-Appellant, Stan each of hearing. Robinson satisfies such a v. First, concluding requirements.

these HARVEY, Secretary did not entitle J. allegations Francis that Robinson’s Army, Defendant-Appellee. relief, Rob- him the MAR denied claim hearing on the Bible inson a without No. 04-2132. satisfies any facts. Thus Robinson finding factor, Appeals, United States Court the fifth Townsend at least Fourth adequately Circuit. facts were “the material hearing.” 372 developed at the state-court 27, 2005. Argued Oct. Second, 313, 745. U.S. at 16, Decided Feb. committed an error of law district court evidentiary hearing an denying Robinson the law students’ affida-

on the basis that to warrant eviden-

vits were insufficient allega- it is settled that

tiary hearing, for alone are sufficient to warrant

tions where, true, they entitle

hearing taken as to relief. See id. at petitioner True, 745;

S.Ct. Walker Cir.2005). (4th definition, By such an

error of law constitutes an abuse of discre- Ebersole, 411

tion. States v. See United Cir.2005).

II. foregoing, Robinson is

Pursuant evidentiary hearing to an on the

entitled claim, and I and re-

Bible would vacate proceedings

mand for further such appropriate.

be respect, strenuously I dis-

With most

sent. Jeffrey

ARGUED: Greger, Howard Fairfax, Virginia, Appellant. Charles Wylie Scarborough, United Depart- States Justice, ment of Division, Civil Appellate Section, D.C., Washington, for Appellee. ON BRIEF: Paul McNulty, J. United States Attorney, Mikolashek, Kevin J. Special Assistant Attorney, United States Office of the Attorney, United States Alex- andria, Virginia; Captain Steven Michael Ranieri, United Army Legal States Ser- Agency, vices Arlington, Virginia, Ap- pellee. WILKINS,

Before Judge, Chief WIDENER, WILKINSON, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, GREGORY, SHEDD, DUNCAN, and Judges. Circuit in part, Reversed vacated and remanded part, in part by and affirmed in published opinion. Judge WILLIAMS wrote the opinion, in Judge WILKINS, which Chief WILKINSON, LUTTIG, Judge Judge Judge MICHAEL, MOTZ, Judge Judge TRAXLER, KING, Judge Judge GREGORY, SHEDD, Judge Judge and joined. DUNCAN Judge WILKINSON separate wrote a concurring opinion. Judge separate WIDENER wrote a opinion in concurring part and dissenting part. Judge in NIEMEYER wrote a separate opinion concurring part and dissenting part.

OPINION WILLIAMS, Judge. Circuit Laber, employee Stan a civilian Army, complained Equal to the Employ- Opportunity ment Commission’s Office of complaint, wherein amend his (OFO) a motion to oc- that on two Operations Federal un- Army’s at issue the job sought put him a he give not Array did casions the religious of liability Title on his claim derlying violated reasons that promotion 1964, as denied district court Rights Act The Civil discrimination. VII of the (West amended, motions, appeals. 2000e-16 42 U.S.C.A. and Laber these VII) (Title Age Dis- and Supp.2005) subject-mat that it lacked concluding In Act of Employment crimination for ad over Laber’s claim jurisdiction ter (West § 633a amended, 29 U.S.C.A. relief, court overlooked the district ditional Laber (ADEA). particular, Supp.2005) (4th Heckler, Cir. 801 F.2d 709 Pecker v. Army once failed that asserted Rice, F.2d 143 1986), and Morris discrim- religious him because promote Cir.1993). Those cases stand him promote later failed ination and federal-employee plain proposition in re- and age because of the OFO on before prevails tiff who Equal Employment prior taliation for his with the is unsatisfied liability but issue (EEO) OFO The filings. Opportunity a civil ac award file remedial OFO’s discriminated Army had found that seeking additional court tion in the district religion and the basis Laber on against issue putting also relief without relief, although certain him awarded finding of discrimination. OFO’s sought. all him did award Army had nei- found OFO also panel as- argument After oral Laber on the against discriminated ther case, request at the this signed to hear against him. retaliated nor age basis majority of the active panel, of that court suit Laber filed to re- agreed judges on this circuit (1) remedy was the OFO’s alleging that en banc to consider hear this case him for compensate insufficient viability of Pecker and Morris. continuing (2) the religious discrimination Pecker and Morris now overrule We him against Army discriminated plaintiff who federal-employee hold that a him. and retaliated age basis of the issue of the OFO on before prevails claim, contended On his first with the is unsatisfied liability but who found because the OFO employing remedy place must OFO’s against him on unlawfully discriminated in order issue agency’s discrimination required religion, he was the basis of a more to to claim entitlement properly to liability in order the issue of relitigate to in award favorable remedial claim. The relief on that seek additional with this failure to comply court. Laber’s Army’s motion granted the district court defect, but it jurisdictional was not rule of Laber’s judgment on both summary summary judgment Army to entitle the did (1) it lacked sub- claims, concluding that only. We additional relief on his claim for claim Laber’s jurisdiction over ject-matter however, conclude, the district also (2)(a) relief, age and Laber’s for additional La- denying in its discretion court abused he had failed because claim mo- and for reconsideration motion ber’s job in for the qualified he was not shown in bad did not act Laber tion to amend: (b) claim Laber’s retaliation question, and would not faith, amendment his proposed made the hiring officer failed because Army, and the any prejudice cause him the officer not to select before decision is not futile. proposed amendment activity. After prior EEO knew about that the district Finally, we hold La- entry judgment, court’s the district in summary judgment correctly granted reconsideration a motion for ber filed Army age on claim of favor of the Laber’s criminated him on the basis of religion failing discrimination and retaliation. Laber in to job. select him for the qualified job Army accepted to he for the complaint and, failed show was after question conducting and did not demonstrate that an internal investigation, Army’s concluded that Laber legitimate, non-discriminatory suffered no discrimi- nation. appealed Laber pretext reason for his non-selection was a the OFO. for retaliation. 22, 1998, On December the OFO re- versed and Army, alia, ordered the

For reasons that are inter extensively more pay any Laber herein, backpay and benefits for explained we reverse the district which Army determined he eligi- court’s denial of Laber’s motion for recon- was appoint ble and to amend, Laber as an sideration and motion to Industrial vacate the Specialist in Israel or find a similar grant Army’s posi- district court’s motion tion 25, 1999, for him. January On summary judgment on Laber Laber’s claim reconsideration, filed a motion for relief, for additional in- which remand with the OFO denied April on structions to allow In Laber amend his May Army determined put Army’s that La- issue the al- ber was entitled backpay to no leged religious because his discrimination. We also pay job at his current higher was grant summary affirm the than it judgment to would have been had he Army working been age Laber’s claims of dis- Israel and that he was entitled to no over- crimination retaliation.

seas benefits because he actually had not been overseas. The Army also offered I. position Laber a Specialist as an Industrial appeal This involves arising claims out Germany, contending that it had no two occasions Army when the denied positions open similar in Israel. Laber a promotion. The administrative job refused the in Germany and instead proceedings were protracted, and our reso- filed a petition for enforcement with the lution of the appeal requires briefly us OFO, alia, claiming, inter that the proceedings consider those and the facts backpay and benefits calculations and its that underlie them. job offer were insufficient. Soon thereaf- ter, Army posi- re-offered Laber the A. in Germany, tion he accepted, which and in Laber, a male so, born was em- doing expressly any waived claim ployed by an Operations Re- Germany position not compli- Analyst Sheridan, search at Fort Illinois. portion ant with that of the OFO’s remedi- mid-1990, part by motivated in his Jew- al award. He therefore withdrew that heritage, applied position ish Laber for a portion petition of his for enforcement Aviv, a Specialist as Industrial in Tel Isra- challenging Army’s job the Germany offer. interview, During job el. the selecting the 23, 2002, January On the OFO issued a officer, Sleight, Leo asked Laber if he petition decision on the remainder of the objective could be dealing when with Jew- for enforcement. part, relevant the ish contractors. Laber answered affirma- OFO determined that the record was un- tively, job Sleight but offered the to anoth- respect clear with backpay to Laber’s and applicant. er arguments, required benefits and it the Army

Laber filed a formal complaint EEO to redetermine whether Laber was Army alleging with the Sleight backpay that dis- entitled to additional and benefits. Form examined Laber’s Scott 2002, Army so title. 29, the did May or about On office, concluded, like the personnel and entitled was that Laber concluded and for “minimally qualified” that Laber was that backpay, but $9,000 in additional over 426.) (J.A. there- at Scott position. the any overseas receive not entitled he was sup- that he request called Laber 4, 2002, a fore Laber filed On March benefits. in- additional 2302 with OFO, his Form plement as- with for clarification petition for regarding qualifications formation and back- Army’s benefits serting that the avers that Laber position. particular deficient. On still were pay calculations Scott, conversation, who knew during this 2003, that 10, the OFO affirmed March candidate, asked priority a that Laber was with OFO’s complied Army fully had activity EEO prior had he him whether 22,1998 decision. December why had he received order to determine alleges further Laber status. priority B. prior had EEO that he informed Scott to this giving rise event second The immediately became activity and Scott returning After in 1993. lawsuit occurred the con- ended quickly him and short with as a employed Laber was Germany, from sup- reviewing Laber’s After versation. Lo- Analyst at the Defense Management information, determined Scott plemental Illinois when Chicago, gistics Agency partic- for the qualified not Laber was Ana- Research Operations for an position Instead, male can- job. Scott chose ular Division of Analysis Economic in the lyst not years age who was under 40 didate Analysis Agency Economic Cost and candidate list. priority on the Church, available. Virginia became Falls complaint with filed a Laber for the candidate” “priority was a Laber and retaliation. alleging age discrimination activity.1 prior EEO because position complaint, investi- Army accepted The 405.) (J.A. agree parties The and found that allegations, gated Laber’s compete candidates need priority against Laber. had not discriminated Scott rather, candidates; if quali- other and, on June to the OFO appealed Laber they have which for positions for the fied Army’s the OFO affirmed be selected. they must applied, findings. de- office personnel civilian “minimally quali- that Laber termined II. Analyst Operations Research for the fied” 4, 2003, unhappy with On June (J.A. 457), La- and forwarded position, religious dis on his 2302, Rich- the OFO’s decision form, Form application ber’s an anticipating and unfa claim officer, crimination Scott, for further selecting ard age on his discrimination decision vorable is “minimal- applicant who An evaluation. claims, se pro filed a Laber retaliation necessarily qualified is not ly qualified” alleging only satis- job vacancy, but particular (1) religious claims requirements competency the basic fies (2) retaliation.2 age discrimination grade and job pay within a generic one, priority was a he became type activ- however exactly of EEO what 1. It is unclear candidate. priority employee candi- ity qualifies ambiguity this not We need resolve date. judicial com- Laber filed his At the time however, here, evidence the demon- because age and retaliation plaint, discrimination his contest, strates, Army not does and the yet Those claims were exhausted. claims alleged background Laber as infor- costs religious While because of the discrimina- Army mation that the had discriminated did, (and however, tion.3 Laber allege put against religion, him on the basis of his issue) at Army that the had discriminated complaint explicitly seeking refrained from him against on the of age basis and retali- judicial a determination of whether the against ated him for prior EEO com- Army against had discriminated him on plaints. (J.A. (“Plaintiff at 7 basis. is not Army filed a motion for sum

appealing finding [religious] the discrim- relief.”).) mary judgment, which the ination, district court but seeks additional Be- granted. concluded, The district court cause believed that the in Laber OFO’s find- alia, subject-matter ter that it lacked ing religious juris discrimination settled that favor, in only sought issue he additional diction over Laber’s claim for additional benefits, backpay, attorney’s fees and arising relief out of Army’s religious exhausted, however, (Mem. Supp. became on June in of PL's forMot. Summ. J. at appeal 1.) when the OFO decided his Similarly, pre-trial in his Statement of those claims. Facts, Uncontested Laber stated that he “filed Army [suit] in Federal Court to force the 3. Some concern arose at the en banc oral (PL's obligations." meet its Statement of Un- argument complaint over whether Laber’s ac- 4.) Likewise, filing contested Facts at in a in tually put alleged Army's religious dis- support of his motions for reconsideration believe, crimination at issue. We like the amend, argued and to Laber that "the bottom court, that it did not. As noted in the Army] simply line is that pay [the refused to text, complaint while the does state that the [compensation to which I due.] am Plain- Army against discriminated Laber on ba- respectfully requests tiff the Court to rule on religion, background sis of so does the basis of the make information; (Sup- whole issue....” words, in other while Laber al- plemental Supp. Mem. in of PL's leges Motions For underlying oc- Recons, curred, 2.) explicitly Leave to seeking refrained Amend and from These judicial clarify determination of the discrimination. religious statements Laber's dis- appealing Laber’s statement that he “is not claim crimination was one for re- additional discrimination,” (J.A. 7), finding had addition, (and only. Army early lief In simply the same effect as if Laber had not often) characterized that claim as one for Army stated that discriminated (Mem. compensation.” Supp. "additional him at all. 1.) Def.’s Mot. For Summ. J. at Not once support Other documents the record grant summary before the district court’s put Army's conclusion that Laber did not judgment attempt did Laber to disabuse ei- underlying religious discrimination at issue. Army any ther the or the district court of support In Laber's memorandum in of his alleged misunderstanding religious of his dis- summary judgment, motion for he described claim. crimination following his suit in the manner: below, argued discussed As [Army] pay has [T]he refused Plaintiff his put district court that he intended to pay stemming back and benefits from Plain- Army’s religious discrimination at issue. complaint tiff’s successful [OFO] based on however, interpreting pro complaint, se our being reassigned position his not to a unexpressed task not to is discern the intent Israel that became vacant in 1989. The of the plaintiff, but what the words in the ordered [OFO] Plaintiff to be made whole complaint mean. And while we must con Army] but [the allowed to make the relevant pro complaints liberally, Hemphill strue se see Army] determination and found that [the Melton, 590-91 Cir. requirements.... met all of the [OFO's] 1977), to hold that Laber’s seeks Army] Plaintiff maintains that [the failed to judicial Army’s alleged determination of the provide pay him all of the back and benefits discrimination, religious would not be liberal period due he is for the 1990 to 2004 and interpretation, complete rewriting. but that [OFO's] [that decision has obligations] fulfilled its error. motion to amend. Laber also sideration and did not discrimination because alia, not intend that he did argued, inter underlying discrimination Army’s put the of whether he was question the put conclusion, the on this Based at issue.4 at issue relief to additional entitled Army’s motion the granted district court contended, rather, in- he complaint; on this claim.5 judgment summary for judicial determina- also to tended seek that concluded addition, court district the of the discriminated tion whether of facie case prima made a not Laber had religion. La- the him on basis not he had discrimination because age the complaint to amended attached an ber job, and the qualified for he was shown com- The amended motion to amend. facie case prima make a that he did com- original to the identical plaint was made the decision Scott retaliation because “Plaintiff for one sentence: plaint except knew Scott even him before not to select [religious] dis- finding appealing the filed previously that he had ” (Pl.’s .... Com- Amended crimination court therefore district The complaints. added).) The district plaint (emphasis Laber’s judgment on summary granted recon- for Laber’s motion court construed as retaliation claims and age discrimination under Fed.R.Civ.P. as a motion sideration well. 59(e) motion as a and his motion amend 15(a), both and denied under court entered Fed.R.Civ.P. the district After motions.6 for recon- filed a motion judgment, Laber claim "must be dis- par- religious discrimination that neither appears the record 4. It from subject-matter Heckler, of the lack of missed” because 801 F.2d ty brought Pecker v. (J.A. 49), docket sheet Rice, jurisdiction, at the (4th Cir.1986), 985 F.2d 143 or Morris district court did not that the demonstrates (4th Cir.1993), court’s attention. to the district it had actually claim until after that dismiss (J.A. Army. judgment already granted banc oral also arose at the en Some concern 5.) that the therefore clarifies at The record court’s district argument over whether the actually Laber’s did not dismiss district court summary judg- grant motion for of the relief, granted but claim for additional rather relief claim for additional on Laber’s ment Army. judgment on claim to that Al- actually that claim. a dismissal of was crys- opinion is not though district court’s course, district court believed Of if the record point, a review of tal clear on this jurisdiction over La- subject-matter it lacked grant did court convinces us that district relief, proper claim for additional ber’s In re that claim. See summary judgment on the claim course would have been dismiss Cir.1997) (4th Tomlin, judgment granting summary on it. instead of ("When ambiguous, a court must order is Inc., Dairy, Coburg Dixon v. Cf. meaning, doing and in so construe its banc) Cir.2004) (en (reversing dis- judgment upon resort to record which entry summary judgment and trict court's (internal quotation marks omit- was based.” remanding court remand district ted)). opinion, court the district written In its juris- lacked court where district court state [Army entitled to was] "the concluded claim). do not re- We diction over removed claim for of law” on the judgment a matter however, we ground, because verse on this hold, (J.A. (emphasis at 40-41 below, relief. additional that the in detail as discussed added).) indicated district also it lacked sub- conclusion that district court's Summary Army's] "granted Motion [the ad- jurisdiction over claim for ject-matter ” to enter Judgment erroneous, the clerk "direct[ed] it therefore was ditional relief ” (J.A. Army' in favor judgment 'JUDGMENT for the power to enter had Likewise, added).) , (emphases 56-c Army. 56a— "JUDGMENT” sheet reflects that docket (J.A. also for reconsideration against Laber the claim. 6.Laber’s motion entered also, grant court's challenged 5.) con- the district court While summary judgment on his Army’s motion for opinion Laber’s fusingly, in its stated

415 appeals grant the district court’s We construe the light facts most summary motion for judg- Laber, favorable to the non-moving party. ment and its denial of his motions for Inc., See Anderson Liberty v. Lobby, 242, 255, reconsideration and to amend. 2505, We have U.S. 106 S.Ct. 91 L.Ed.2d jurisdiction (1986). § 2000e-5(j) under U.S.C.A.

(West 2003) (West § and 28 U.S.C.A. In examining argument this we first 1993). consider legal background in which the argument Next, arises. we consider the III. implications of Roudebush, Chandler v. argues Laber first that the district court 840, 1949, 425 U.S. 96 S.Ct. 48 L.Ed.2d 416 granting erred in summary judgment (1976), prior on our cases and hold that on his claim for additional relief requires Chandler us to overrule those arising Army’s religious out of the discrim- Finally, cases. we decide the rule we ination. He contends that Title VII au- announce is not deprived one that the dis- a federal-employee plaintiff thorizes who trict subject-matter court of jurisdiction prevailed before the on OFO the issue of because it involved the interpretation of a liability but is unsatisfied with the OFO’s federal law.

remedial award to file a alleg- civil action ing only that he is entitled to additional A.

relief. 1.

We review de novo the district court’s grant of summary judgment Army. amended, As Title VII of the Civil See Hill v. Lockheed Martin Logistics Rights Act of 1964 a right creates of action (4th 277, Cir.2004) Mgmt., 354 F.3d private-sector for both and certain7 feder (en banc). Summary judgment appro- al employees alleging employment discrim priate “if pleadings, depositions, race, an- color, ination on the basis of religion, sex, swers to interrogatories, and admissions or national origin. See 42 U.S.C.A. file, affidavits, 5(f)(1)(West 2003) together § with the if any, (private-sector 2000e— show that there is no genuine 2000e-16(c) issue as to employees); § 42 U.S.C.A. (federal any material fact and that the moving par- employees).8 employees, All pri ty is entitled to a judgment federal, as a matter of vate-sector or alleging such dis 56(c) (West 1992); law.” must, however, Fed.R.Civ.P. see crimination exhaust their Catrett, Corp. 317, also Celotex administrative exercising remedies before 2548, (1986). right. L.Ed.2d 265 this See Patterson v. McLean Cred- age 1995) (en banc) claims of discrimination and (declining retaliation. 993 n. 7 Cir. however, appeal, arguments On Laber's litigant re address issues that “failed to brief or garding argue”), his motion for reconsideration focus and we confine our consideration of only on correctly whether the district court Laber’s motion for reconsideration to the con religious denied his religious motion to amend his dis text of Laber's discrimination claim. crimination claim. Laber has therefore any argument waived additional undisputed that the dis It is that Laber falls within the erroneously trict court employees denied his protected by motion for class of federal Title pertained age reconsideration as it to his dis VII. claims, crimination and retaliation see Fed. 28(a)(9) R.App. (noting Appellant's P. right 8. Title VII also creates a of action for see, employees, brief must contain e.g., “contentions and the rea state 42 U.S.C.A. them”); Blvd., 2000e-5(e) (West 2003), sons 11126 Baltimore right Inc. but this does Md., George’s County, v. Prince figure appeal. in this "rH claim. U.S.C.A. See. 164, 181, 109 S.Ct. Union, 491 U.S. n 5(f)(1); § 1601.28. § 29 C.F.R. (1989), by superceded 132 L.Ed.2d 2000e— 105 42 by U.S.C.A. grounds

statute on other employee who believes federal A 2003) em 1981(b) (West (private-sector § agency discriminated employing that his Admin., v. Gen. Servs. Brown ployees); Title must him in violation of VII against 1961, 48 820, 832, 96 S.Ct. 425 U.S. complaint with the file an administrative (federal (1976) employees). 402 L.Ed.2d § 1614.106. The See 29 C.F.R. agency. for remedies available The administrative claim, 29 the see investigates agency significantly broad are employees federal 1614.108-109, and, if it concludes § C.F.R. remedies than the administrative er discrimination, it issues no there was gen See private sector. employees the that-effect, see 29 agency final decision 1559, Devine, 780 F.2d Moore v. erally may then employee 1614.110.The § C.F.R. Cir.1986) (discussing differences 1562 to the OFO. agency’s decision appeal the 1614.401(a).9 private-sec § remedies Unlike in administrative 29 C.F.R. See context, if finds employees). the OFO private-sector the tor and federal discrimination, the to order power it has sector private in the 42 U.S.C.A. employee An action. See corrective 2000e-16(b); § has dis 1614.405. employer § 29 C.F.R. that who believes fact, agency Title if the- OFO finds that him in of violation against criminated for em against applicant an discriminated charge administrative an must file VII Laber, must like the OFO ployment, Equal Employment Opportunity with for which employee position award the (EEOC) employer. Commission (or equivalent) its substantial applied he (2004). EEOC § 1601.7 29 C.F.R. See 29 C.F.R. pay. See back determine investigates 1614.501(b). may also award § The OFO to be cause is reasonable there whether see West v. Gib damages, compensatory 29 allegations. See employee’s lieve the 1906, 144 son, 119 527 U.S. S.Ct. 1601.15, Because §§ 1601.21. C.F.R. (1999), attorney’s fees L.Ed.2d private- to order the power has no EEOC 1614.501(e). costs, § 29 C.F.R. see action take employer to corrective sector ex cause if it such reasonable even finds has employing agency While the the dis ists, attempt must eliminate “it judicial review right no to seek informal through claim, criminatory practice employee’s of an resolution OFO’s Moore, employee two provide methods conciliation.” regulations First, § If 1562; 29 C.F.R. 1601.24. into federal court. separate see also avenues fail, has a “civil right if the EEOC to file attempts or has the these the employee cause, judicial is of his dis seeking the EEOC review reasonable action” found no “aggrieved” if he is ex claim right-to-sue letter crimination employee sues 42 U.S.C.A. the OFO’s decision. See bring a action” may “civil plaining 2000e-16(e) if em- exists (right § action judicial seeking review federal appeal right employee’s to file an may opt-out of employee also 9. The federal employing appeal point by OFO’s decision on process at this the administrative See, e.g., C.F.R. findings. agency's U.S.C.A. action. See 42 filing a de civil novo may 1614.407(c) employee (providing (West 2003); § 2000e-16(c) 29 C.F.R. days of OFO's action within 1614.407(a) (2004) employ- file a civil (providing § file his appeal). did not days no within 90 if decision a civil action ee file point administrative this agency's deci- civil action appeal from final is filed process. sion). prejudice the does not to do so Failure ployee “aggrieved”); stead only C.F.R. whether the employing agency 1614.407(c). right This of action is iden has complied with the administrative dis- right possessed by tical to the of action a position.”); White, Timmons v. private-sector employee who has received (10th Cir.2003) (concluding that letter. right-to-sue See Chandler v. “[p]laintiff seeking [was] enforce- Roudebush, 840, 844-45, 96 S.Ct. ment of a final EEOC order” because he (1976) (holding 48 L.Ed.2d 416 “requested more relief than the EEOC employees right “federal the same [have] awarded”). enj private employees as sector [of action] Second, oy”).10 regulations provide 2. employee may, that an in certain circum applied provisions We have these before. stances, the contours of which are not Heckler, In Pecker v. 801 F.2d 709 here, judicial relevant seek enforcement of Cir.1986), the federal-employee plaintiff underlying by OFO’s decision either filed an complaint administrative against a filing suit for “enforcement of the her employing agency alleging unlawful decision,” by “seeking] judicial or [OFO’s] employment discrimination in failing to agency’s review of the to imple refusal promote her. Id. at 710. agency The ordered pursuant ment the relief to the agreed that it had against discriminated Act, Administrative Procedures 5 U.S.C. plaintiff provide indicated would statute, § seq., 701 et and the mandamus priority her job consideration for the next § 1361.” 28 U.S.C. 29 C.F.R. opening. plaintiff Id. The appealed to the enforcement, 1614.503(g). § In a suit for OFO, contending agency’s that the remedy liability not remedy, the issue is or the as insufficient, was and the action, OFO affirmed the it is a civil but rather whether agency’s decision. Id. plaintiff The then employer complied the federal has with filed suit in the court seeking, OFO’s remedial order. inter See Scott v. Jo (D.C.Cir.2005) alia, hanns, a agency declaration that the discrimi- (“In actions, ... injunction enforcement the court nated her and an requir- reviews neither the finding ing agency immediately to promote remedy imposed, nor the in- examining agency her. Id.11The summary moved for unit, creating 10. a employee applicant employ- section cause of action for an or ment, employees provides federal aggrieved in full: by disposition if the final complaint, by days or receipt failure to take final Within of notice of final by complaint, may department, agency, action taken a action on his file a or civil (a) provided unit referred to in section, action subsection of this as in section 2000e-5 of this title, by Equal Employment Op- or in which civil action the head of the portunity unit, upon appeal department, agency, Commission from appropriate, or a department, decision or order of such shall be the defendant. agency, 2000e-16(c) or unit on a of discrimi- (emphasis § 42 U.S.C.A. add- race, color, religion, ed). nation based sex or provides private Section 2000e-5 that a origin, brought pursuant national to subsec- employee may bring sector also a "civil ac- section, (a) tion of this Executive Order alleging employment tion” discrimination. orders, any succeeding 11478 or Executive 2000e-5(f)(l). 42 U.S.C.A. days filing or after [180] from the charge department, agency, plaintiff initial with the 11. It is unclear whether the in Pecker Equal Employment Op- brought or unit or with the a civil action or a suit for enforce- hand, portunity appeal Commission on from a ment. On the one the court character- agen- department, decision or order of such ized the suit as a "suit to enforce a decision of cy, (4th Cir.1986). or unit until such time as final action [OFO].” 801 F.2d hand, may department, agency, be taken a or On the other the court allowed the affirmed, Pecker for the con- citing Id. the OFO’s We contending judgment, plaintiff “[federal-employee] sufficient, clusion that and the district award limit and action] files a civil agency. summary judgment [who granted review, rais- request for de novo tailor his Id. remedy without about the ing questions reversed, holding that the appeal, we On review of himself to de novo exposing the declaration was entitled employee Id. finding of discrimination.” by the bound [agency is] “the because Id. at findings propo- for the discrimination.” and Morris stand [OFOJ’s Pecker addition, the OFO’s despite n. authorizes a federal that Title VII sition was enti- plaintiff that the action wherein he bring determination employee civil award, for the only priority remedial tled consideration the OFO’s challenges concluded job opening, employing agency’s next we put but does that she was demonstrated A plaintiff had issue.12 underlying discrimination Id. at promotion. to an immediate announced in entitled rule application fair the 712. to the facts of this case and Moms Pecker reverse the district require us to would (4th Rice, F.2d 143 v. In Morris for Army’s motion grant court’s an ad- Cir.1993), employee filed a federal reasons we ex- summary judgment. For employing against claim ministrative below, however, we do in more detail plain in discrimination agency alleging unlawful Pecker Morris because apply and at 144. The Id. failing promote him. was inconsis- cases announced rule those oc- that discrimination had agency agreed prior statutory scheme tent with the curred, he was entitled but found that case law. Supreme Court pay because position nor back neither the if promoted even not have he would been B. Id. at no discrimination.

there had been remedy, 145. Dissatisfied with OFO, af- which employee appealed to requiring in the inter As all cases then filed a civil Id. The employee

firmed. statute, begin analy our of a we seeking pretation review in action the district of the statute itself. language with the of discrimina- sis determination of the OFO’s Abuagla, 336 F.3d court See United States remedy. Id. The district tion and its Cir.2003). first “We must employee’s motion for sum- granted the issue language at liability. determine whether on his claim of mary judgment arguable the broad statements in remedy 12. It is greater than award- plaintiff to seek a that, OFO, dicta because the em- ed a form of relief Pecker and Morris were III.A.l, supra, is outside the in Part agency discussed those cases admit- ploying in both end, In the scope of a suit for enforcement. process liability during ted the administrative type in Pecker precise of action issue employer’s actually put employee and the a civil If Pecker was makes no difference. action, The rule announced discrimination issue. text, we in the would as we assume fact, turn on this how- in those cases did not holding allowing employ- federal overrule its ever, question of whether and we think the litigate before plaintiffs ee in such actions holding enough is close rule was dicta or only additional the issue of the district courts overrule, of distin- require us to instead hand, If, was a suit on the Pecker relief. other guish, the cases. enforcement, holding that a federal its may seek employee plaintiff such actions than that greater in the district court relief by the OFO was incorrect. awarded plain unambiguous meaning has with present does fact an administrative find- ing regard particular liability court.”); Scott, to the dispute in the to the (“[I]n (internal F.3d at 470 quotation case.” Id. federal-sector marks omit- Title case, ted). any VII remedial order must on rest judicial findings liability, nothing The relevant statutory language here is language statute’s suggests that such minimal, significant: but nevertheless findings are unnecessary cases where a provides employee that a federal has the final administrative disposition already has right bring a “civil seeking judi- action” found relief.”); discrimination and awarded claim, cial review U.S.C.A. Timmons, (“[A] 314 F.3d at 1235 2000e-16(c), § and that the district court court, which applicable under the statutes, provide equitable certain remedies must ‘find’ prior to award- only the claim the court “[i]f finds” ing relief, relief, cannot new award or ex- agency intentionally discriminated pand awarded, the relief already without him, 42 U.S.C.A. 2000e-5(g) determining first itself whether (West 2003).13 By authorizing the district occurred.”).14 alleged discrimination has equitable court to award remedies if phrase While the “civil action” does not it makes certain findings, Title con- VII have a self-evident meaning that answers templates that the civil action authorized us, the question before Supreme Court requires therein the agency’s underlying given meaning has phrase. discrimination to be issue in the case. Roudebush, Chandler v. (William) Rumsfeld, See Morris v. 1949, (1976), S.Ct. 48 L.Ed.2d 416 (3d Cir.2005) (“This 287, language plaintiff, a employee, federal filed a dis- contemplate judicial to a appears that rem- crimination with her employing depend judicial must edy adminis- agency, —not which found no discrimination. findings discrimination, of and no 842, Id. at agency’s S.Ct. 1949. The trative — other statutory language suggests that this decision was affirmed on administrative change should if requirement a claimant appeal,15 and employee filed a civil provisions 13.One governing govern hereunder, of brought' civil actions § 2000e-5 "civil action” states: compensate the same delay interest to for in payment shall be available as cases involv- respondent the court that the in has If finds ing nonpublic parties.”). intentionally engaged intentionally or is in engaging employment in prac- an unlawful 14. plaintiffs right Title VII jury have the ato charged complaint, tice in the the court they compensatory punitive trial if seek or may enjoin respondent engaging from damages. 1981a(c) (West § See 42 U.S.C.A. employment in such practice, unlawful 2003). today We need decide not whether such may order action affirmative as be § require equi- 1981a would a court to award include, appropriate, may which but is not § 2000e-5(g)(l) table relief under jury’s if the to, limited hiring reinstatement or of em- finding verdict included a of intentional dis- ployees, pay (payable with or without back purposes crimination. For appeal, of this by employer, employment agency, or import language of the "court finds” be, organization, labor as the case re- 2000e-5(g)(l) § simply is that no one—nei- sponsible employment for the unlawful ther jury may the court nor the make a — practice), any equitable or other relief as finding of discrimination in the civil action if court appropriate. deems put the discrimination not even at issue § 2000e-5(g)(l) (emphasis 42 U.S.C.A. add- place. the first ed). governs This section also the "civil ac- time, tion” created employees federal 15. At the the Civil Service Commission § 2000e-16(d) 2000e-16. See 42 U.S.C.A. appeals agency heard from decisions aon ("The 2000e-5(f) provisions of section employee’s federal Title VII administrative (k) title, through applicable, complaint. of this as shall 1817, court. Id. dis- U.S. 93 S.Ct. 36 L.Ed.2d 668 in the district The action (1973), court, reviewing example, Supreme the administrative Court trict deference, grant- private-sector employee a of that a degree decision with concluded agency. Id. summary genuine to a judgment required ed introduce issue affirmed, appeals The at fact on Title VII claim material findings agreeing that the administrative despite the fact the EEOC had made a Id. entitled to deference. were that finding of reasonable cause on claim. 801-02, at If a private- Id. 93 S.Ct. 1817. reversed, noting Supreme Court employee sector must introduce the exis- that Title it was “well established” genuine tence of material fact issue “private-sector employees the gave VII employer discriminated to ‘de novo consideration of their right summary judgment, him off to stave [employment discrimination] claims’ with- necessarily follows that discrimination give courts requiring out the district to must an issue case. be Because finding rea- EEOC no deference employees Chandler teaches federal at cause.” Id. 844. Because fed- sonable rights have private-sector the “same” as employees’ bring “civil ac- right eral employees, 425 U.S. is, statute, tion” identical that of holding employees may put that federal private-sector employees, Supreme only issue the OFO’s remedial award syllogistically held that it “followed] Court would by giving violate Chandler federal are to a employees that federal entitled employees rights greater private than sec- employment de novo on their discrim- trial Scott, tor in a civil employees action. See (emphasis ination claims.” Id. at 846 add- (“Requiring F.3d at 470 federal-sector ed). plaintiffs prove liability puts them in Chandler, course, directly does approximately pri- position same It control here. held a federal who, plaintiffs unable to obtain vate-sector right bring a “civil employee’s action” legally-binding findings, [OFO] must liti- him to a “trial de novo” on his entitles (citations gate liability remedy.” both in the district court discrimination claims omitted)). allegations rejects the OFO of where discrimination; expressly it did not hold Second, plain meaning “the term employee brings that a federal who a civil ‘trial used de novo’ in Chandler dem- [as ] action in the court must put employee] onstrates that a who [federal underlying employing agency’s discrimina- brings a ... is not entitled [‘civilaction’] to accepts at if tion issue the OFO those limit the to the issue of Court’s review however, allegations. logic, Chandler’s ex- Timmons, only.” F.3d remedy at a holding. tends to such example, 1233. Dictionary For Black’s Law

First, it time trial was clear at the of Chan- defines “trial de novo” new “[a] as is, private-sector employees only questions dler entire case—that on both right judicial had the to novo of fact as a de consid- and issues law—conducted if eration of their there been no in- discrimination claims with- had trial in first regard finding Dictionary out to of rea- stance.’’ Black’s Law the EEOC’s ed.2004) added). cause, 844-45, (emphasis id. sonable S.Ct. This definition employee’s makes they but also were unable use the clear federal finding compel finding right bring EEOC’s a “civil action” does not right only to seek an the district court. include the additional (and Green, practical purposes for all Douglas Corp. remedy; McDonnell below), a noting with one caveat discussed trial de that “[p]rior findings administrative as if no proceeds proceedings novo earlier made with respect to an employment dis- completed had at all. Numerous been Su may, course, crimination claim be admit- preme Court cases use the term “trial de ted as evidence at a federal-sector trial de See, in the same manner. e.g., novo” Col Moreover, novo. ... many potential is- 104, 116-117, Kentucky, ten v. 92 sues can be by eliminated stipulation or in (1972) 1953, 32 L.Ed.2d 584 (rioting S.Ct. pretrial course of proceedings in the represents that “trial de novo” a “com Chandler, District Court.” 425 U.S. at 863 pletely fresh determination of [the (citations issues]” omitted). n. 96 S.Ct. 1949 If during which “the de novo court [is not] Supreme Court had believed that the asked to find error another court’s employee need not put even employ- work”); Timmons, see also 314 F.3d at underlying issue, er’s discrimination at (collecting examples other of the Su there would be no need prior to admit preme usage Court’s of the term “trial de evidence, findings as employ- because the judicial novo” to indicate de novo examina er’s discrimination would not be relevant case). tion of the usages entire Such are Timmons, in the case. See inconsistent with the view that the federal- 1235. The fact that administrative find- employee plaintiff relitigate seek to ings merely that, are any like evidence— part of his discrimination claim. evidence, other can accepted rejected be or by the trier of requires the conclu-

Third, language additional from Chan fact— sion that the federal-employee plaintiff implies phrase dler that the “trial de novo” put must his employing agency’s underly- entails a de novo examination of both lia ing discrimination at issue in the case.16 bility remedy. and the For example, response agency’s argument 2. permitting employ

Chandler that federal ees to obtain a trial de novo after the OFO Laber does not mount a serious chal already Rather,, had ruled on their claims lenge would be to this conclusion. he as judicial an inefficient allocation of re serts that we should continue to adhere sources, responded, by the Court in part, to our decisions in Pecker and Morris.17 Moreover, allowing employee bring encourage, cient. This rule would therefore challenging only civil action the OFO’s reme- discourage, rather than resolution of suits dy goal resolving many would thwart administrative, judicial, opposed means. complaints judicial administrative without in- Tenet, (4th See Chris v. 221 F.3d accomplished by affording tervention that Cir.2000) (”[P]ermitting solely a suit attor- power require the OFO the to corrective ac- ney's during fees and costs incurred the precluding employing agency tion and the process course of the Title VII administrative seeking from review of the OFO decision in congressional would run counter to the aim Gibson, federal court. See West v. formal, quick, of expensive less and less reso- 212, 219, 144 L.Ed.2d 196 employment disputes.”). lution of (1999) (holding may that OFO award com- pensatory damages opposite because the hold- his,claim argue 17. Laber does for addi- ing would "force into court matters that the arising Army’s religious tional relief out of the resolved.”). might [OFO] otherwise have Af- proper Army discrimination was because the fording employees prevail federal who before n liability by. failing admitted a both to file mo- question liability the OFO on the of but who tion for reconsideration of the OFO’s decision are unsatisfied with the OFO’s remedial by partially complying and with that decision. right award the to come into federal court arguments widely little, These mark. greater miss the Be- remedy provides seek a if any, filing complaint judi- cause Laber's disincentive from a does not seek a civil action asserting only remedy that their was insuffi- cial determination of whether the dis- may request .... enforcement decision] The in Pecker courts agree. cannot

We analyze statutory requesting not the court by and Morris did the district without impli claim.”). they address the language, By nor did trying merits of and the the Rather, only au the cations of Chandler. contrast, specifi- the had plaintiff before it in of then- they support cited thority asked court to evaluate cally the district Devine, v. 780 F.2d holdings Moore were (“[W]here his entire claim de novo. Id. Nimmo, (11th Cir.1986), Houseton v. asking a employee ... the files (9th Cir.1982), and Has 670 F.2d 1375 the case the district court consider Dept. Army, the kins United States of of proceeds the merits and trial de novo Cir.1987). Pecker, See F.2d [OFO], by very the claims resolved the Morris, 3; F.2d at 711 n. complain or she cannot when the district cases, however, lend no 145-46. These independently claim on court resolves the and Morris. support to Pecker merits.”). situation, court the In this the Moore, plaintiff federal-employee In the not concluded that the district court did on the issue of prevailed before the OFO judgment against plain- in the issuing err liability but unsatisfied with the OFO’s tiff. Id. 1561. He award. 780 remedial Houseton, federal-employee In the action, asking court filed a civil the district prevailed employing plaintiff against her of hearing [his to “conduct on the merits agency before the OFO on the issue trial, the dis- Id. After bench claim].” liability and filed an judgment in favor trict court entered court enforce- seeking Id. action federal agency. plaintiff employing the court arguing that ment of OFO’s remedial award. appealed, finding of dis- was bound the OFO’s F.2d at The district ordered Eleventh crimination. Id. at 1562. The enforcement, af- Ninth Circuit and its Title carefully Circuit dissected VII firmed discussion. Id. at 1378. without explained, accompanying regulations The court set no hold- Houseton forth have, who employees that federal as we ing, but the that the disposition suggests file decision aggrieved by are an OFO law applied rule of it was that the district (1) novo seeking action de either civil finding accept court is bound OFO’s (2) claim, accept or consideration of his liability in a suit and its remedial award and, agency OFO decision event for enforcement. See id. file a suit for enforce- comply, does not Haskins, plain- the federal-employee court. In a suit for ment the district the issue prevailed tiff before OFO on enforcement, observed, plain- the court liability request but the OFO denied her underlying put tiff does not OFO’s damages because found that at 1564 finding liability at issue. Id. (“[A]n would have hired employing agency of an employee who seeks redress in the of discrim- agency’s comply plaintiff with OFO’s even absence [the refusal Moreover, him, Army liability. Army we against the had admitted criminated whether held, context, any simply to never that a failure has admitted that fact is irrelevant have words, assuming, as In to file a motion for reconsideration serves his suit. other even Army underlying the the decision argument, the sake of somehow an admission that agree La- liability, be ex- was correct. And we cannot with admitted Laber would not compliance Army’s liability Army’s with the putting cused from is- ber that sue; rather, put OFO's award serves an admission would have to remedial appeal alleged given Army rights no at issue in order for that the has finding OFO the district to make decision. plaintiff case, F.2d at 1194. The ination. 808 such a the district court is not requesting judicial action “a de filed a civil bound findings. administrative of the facts.” Id. at novo determination Id. at 1199 and n. 4. employing agency stipulated 1195. Her her, against that it had discriminated reveals, Moore, As this discussion accordingly the district court entered sum- Houseton, and simply Haskins do not bear mary judgment plaintiff favor of the on the inference the court in Pecker and liability. the issue of Id. After a bench placed upon sure, Morris them. To be damages, trial on the issue of the district state, Moore and Haskins and Houseton judgment court entered favor of the suggests, that a federal-employee plaintiff OFO, employing agency, finding, like the can, circumstances, in some avoid de novo agency that the would not have hired the underlying review of his claims of discrimi- plaintiff even absent discrimination. Id. at nation. But Moore explicitly and Haskins plaintiff appealed, 1196. The arguing that limit that statement to the context of a suit entry summary the district court’s judg- enforcement,18 and Houseton’s facts liability ment to her on the issue of neces- similarly reveal that its holding is limited sarily requested entitled her to receive her to the enforcement By context. citing damages. Id. Moore, Houseton, and Haskins for the disagreed, holding The Sixth Circuit proposition that federal-employee agency’s liability that the admission of did plaintiff may seek an remedy additional encompass corollary admission that only, incorrectly Pecker and Morris ap- plaintiff it would have hired the even in the plied to civil governing actions the law absence of discrimination. The court stat- suits for enforcement. ed that [plaintiffs] take issue with the [did not] that a employee

assertion federal can 3. request a federal court to enforce a fa- reasons, foregoing For the we having vorable EEOC order without overrule Pecker and Morris and hold that risk de novo review on the merits.... Title does not VII authorize federal- Thus, employing agency cannot chal- employee bring sector a civil action lenge against issues decided it if the alleging only that the remedy OFO’s plaintiff does not seek de novo review. Rather, properly insufficient.19 in order However, a plaintiff is entitled to a de claim entitlement to a more favorable re hearing requested. novo if one is Chan- Roudebush, award, 840, 861-64, medial employee place dler v. must U.S. (1976). ... employing agency’s S.Ct. 48 L.Ed.2d 416 discrimination at is- England, argues In Ellis v. 432 F.3d 1321 19. The also that Pecker and Mor- Cir.2005), expressly they the Eleventh Circuit lim- ris must be overruled because allow a ited type government Moore to the enforcement context. Id. at broad of suit Moore, that, ("In ...we held where an contravention of the command that waivers of employee sovereign immunity strictly seeks of a favorable must be con- enforcement See, Shaw, ruling, e.g., Library [OFO] we do not review Congress the merits of strued. employee’s claim de novo .... While some 92 L.Ed.2d 250 circuits, (1986). text, particularly the Fourth and the Because the and the Court in Ninth, it, interpretation have read our decision in Moore Chandler's leads us to fragmentary allow de novo review a civil [in conclude that Pecker and Morris incor- were action], decided, permitting rectly we do not read Moore as we need not address the review.”). fragmentary Army’s sovereign immunity argument. such de novo holding, join put employing of our that not the complaint we each does sue.20 In so at issue agency’s but-alleges the discrimination that have addressed sister circuits remedy to a greater arising entitlement question. England, Ellis See (1) Cir.2005) suffers from (11th (“Here, out of discrimination a [the defect, jurisdictional see Fed.R.Civ.P. sought under 2000e- plaintiff] [§ ... relief (2) or, 12(b)(1), instead, subject is either to such, 16(c)]____As reject argu- [his] we upon claim for “failure to state a dismissal to a de novo he is entitled ment that R. relief can be Fed. granted,” which Civ. dam- question to of ... limited the review 12(b)(6), or, if does P the defendant not (William) Morris, 420 F.3d at ages”); dismiss, judgment move to entitled to as a (“We that, employee when a federal hold matter of law under Rule 56. or in challenge, in whole comes to court disposition of his part, administrative the the support argument In of its de- claims, the or her discrimination jurisdictional, complaint fect Laber’s is novo, those de and is must consider claims Tenet, cites Chris v. F.3d of the administra- by not bound results (4th Cir.2000). Chris, fed- ”); Scott, 409 F.3d at 469 process.... tive eral-employee plaintiff filed a discrimina- [may “a court review a (holding that not] employing agency, claim with her tion remedial disposition’s final administrative agency settled claim. Id. at 649- disposition’s reviewing award without however, parties agree, 50. The could not Timmons, finding liability”); underlying costs, on the amount fees and and the (holding plaintiff at 1233 that “a petition a plaintiff filed with the OFO for a de novo civil is [who action] files costs. The fees and Id. 650. OFO litigate of an portions entitled to those costs, her some but awarded fees less wrong, believed to be EEOC decision Undeterred, sought. than she Id. binding the [em- while at the same time plaintiff filed a claim in district court seek- ploying agency] on the issues resolved Id. ing additional and costs. fees favor”).21 or her district court dismissed the suit want of

subject-matter jurisdiction. Id. C. affirmed, concluding that Title We VII’s jurisdiction-conferring provision Anticipating “[e]aeh that we would over — ... United States district court shall have Morris, Army argues rule Pecker and jurisdiction brought under actions this by alleging only to addi entitlement 2000e-5(f)(l)— subchapter,” U.S.C.A. relief, complaint Laber’s suffers tional did not extend actions for fees and costs jurisdictional deprived from defect only: juris subject-matter district court of under phrase brought diction over claim. None of our sister ‘actions this [T]he directly subchapter’ [only] legal pro- circuits has addressed whether refers Rubin, question federal-employ- In Girard v. 62 F.3d 1244 20. The whethér Cir.1995), the held that an agen- Ninth Circuit OFO plaintiff put employing who does ee plaintiff’s decision that administrative require cy's may issue any argument complaint timely was waived finding liability district court to make a employing agency in a federal-court finding the OFO’s based on of discrimination suit that the administrative however, note, today. not before us We untimely. Id. at 1247. It is far from certain inexorably logic of that the Chandler leads interpret Ninth that the Circuit would Girard the conclusion that he not. bring federal-employee plaintiff to allow a seeking only a suit additional relief.

425 Moreover, in court of law to enforce the since ceedings Chris was de § provides cided we have held that 1331 rights guaranteed by Title substantive jurisdictional additional basis suits aris VII, right to be from specifically free VII, ing under Title see v. Venkatraman discrimination on the basis employment Inc., (4th 418, Sys., 417 F.3d REI 420 color, sex, race, religion, or national of . Cir.2005), and a strong majority of our brought ‘action under origin.... [A]n same, sister circuits has held the see ... must involve a subchapter’ this Burgh Borough v. Borough Council remedy an employ- claim to unlawful of of (3d Montrose, 465, Cir.2001); 251 F.3d 469 practice, only rather than contain ment Ashland, Inc., 1167, Smith v. 250 F.3d attorney’s claim for fees and single (8th Cir.2001); English 1169 v. Dept. Colo. costs. Corr., (10th 1002, 248 F.3d 1007 Cir. of added). (emphasis Id. at 652 2001); Cleveland, City v. 137 Rutherford of argues that a claim for additional relief (6th 905, Cir.1998); F.3d 908 Sanders v. only, attorney’s a claim for fees and like Stores, Inc., 771, (7th 56 F.3d 772 Venture only, not an under “action[ ] [Title costs is Cir.1995); Broad., v. Int’l 50 Vera-Lozano subject-matter to confer sufficient VII]” (1st 67, Cir.1995); 68 v. Intlekofer jurisdiction in court. 42 the district (9th 773, Turnage, Cir.1992); 973 F.2d 774 2000e-5(f)(l). § U.S.C.A. Palmer v. Dist. St. Petersburg Bd. of Tr. of disagree. assuming We Even we Coll., 595, Junior Cir. Chris, agreed with the extension of 1984). A subject-matter district court has subject-matter that case held that' jurisdiction § under right 1331 when “the § jurisdiction lacking under 2000e- petitioners to recover under their Because, according to the court 5(f)(1). complaint will be sustained if the Constitu it, of ‘description Chris the issue before tion and laws of the United States are argue subject-matter did not Chris given one construction and will be defeated jurisdiction existed under 28 U.S.C.A Hood, they if given are another.” Bell v. (West 1993) (“The § 1331’ district courts 678, 681, 685, 773, original jurisdiction all civil shall have of (1946), Because, L.Ed. 939 as this opinion Constitution, arising under actions reveals, claim for resolution Laber’s ad States.”), laws, or treaties of the United required interpretation ditional relief the court Chris did not consider wheth- VII, law, Title a federal the district court §er 1331 could have beeh an alternate jurisdiction subject had matter over La subject-matter jurisdiction. source course, § ber’s claim under 1331. Of dis subject- did not Chris therefore hold jurisdiction trict lack over fu courts § jurisdiction lacking matter under claim ture claims similar to Laber’s under attorney’s for a claim of fees and costs insubstantiality Hagans, doctrine. See subject-matter juris- only, much less that (“[Fed 536-37, 415 U.S. at 94 S.Ct. 1372 lacking diction is under 1331 for a claim power without to entertain eral courts are only. Hagans of additional relief jurisdiction if claims otherwise within their Cf. Lavine, 533 n. U.S. S.Ct. they are so attenuated and unsubstantial (1974) (“[W]hen L.Ed.2d merit,- absolutely wholly be devoid jurisdiction questions passed insubstantial, frivolous, have been obviously plainly silentio, prior insubstantial, on in longer open decisions sub this or no to discus (internal quotation Court has never considered itself bound sion.” citations and n omitted)). finally subsequent brings say when a case the marks But we cannot us.”). jurisdictional question presented by issue Laber’s before federal 426 however, the responsive pleading, federal-employee files

complainN-whether complaint only by may may amend his plaintiff the OFO prevails before plaintiff who by in the court or written consent of relief the district leave of only additional seek court&wkey;was 15(a) defendant, id., deprive as to but Rule directs insubstantial the so jurisdiction under freely given court of to “shall be the district that leave amend 1331, considering that Pecker especially § liberal justice requires.” so This when Laber’s arguably authorized policy and Morris gives effect to the federal rule Coburg Dairy, Dixon v. complaint. merits resolving cases on their favor Cf. (en (4th Cir.2004) 811, n. 5 F.3d 817 369 disposing of them on technicali- instead banc) allegation that (concluding that Gibson, 41, Conley 355 See v. U.S. ties. applies private to Amendment the First (1957) (“The 99, 48, 2 L.Ed.2d 80 78 S.Ct. too insubstantial “would be employers reject that approach the Federal Rules jurisdiction be- question federal invoke one game is a of skill which pleading apply Amendment does not the First cause by may decisive to the misstep counsel be de- We therefore private employers”). accept principle outcome beyond its limited cline to extend Chris proper is to facilitate a purpose pleading and, facts, resolution of Laber’s because merits.”); decision on Ostrzenski interpretation of a federal required claim (4th Cir.1999) 245, 177 252-53 Seigel, law, that the district court had we conclude (“The policy deciding federal rule cases jurisdiction over Laber’s subject-matter in- rights on the basis of the substantive relief and that for additional claim on technicalities re- rather than volved mat- judgment as a Army was entitled plaintiff given every quires [the] be on the claim.22 ter of law opportunity to cure a formal defect (quoting 5A Allen

pleading.” Charles Miller, Arthur R. Federal Prac- Wright & IV. (2d ed.1990))). tice & Procedure argues that the district Laber nex± denying his motion abused its discretion 15(a) Rule interpreted We have and to amend. He ar- for reconsideration pleading to amend a that “leave provide justice given that he be gues requires the amend should be denied when opportunity to amend prejudicial opposing be ment would Army’s underlying religious dis- put party, part there been bad faith on the has crimination issue. moving party, or the amendment have been futile.” See Johnson v. would complaint one A amend his plaintiff Co., 503, Foods Oroweat a matter of course before time as Cir.1986) Davis, (citing Foman v. responsive pleading. defendant files 227, 15(a). 83 S.Ct. 9 L.Ed.2d Once the defendant Fed.R.Civ.P. disagree. holding ny job We Whether Laber holding to its offer. In a alternative lacking jurisdiction remedy may may over subject-matter accepted part or has damages for additional because Laber’s claim evaluating not be relevant in whether Laber’s put Army's underlying also he did not by is barred an affirmative defense —such suit issue, the district court also discrimination at judicata, estoppel, election of reme- as res or subject-matter juris- it lacked concluded that that La- dies—but it does not affect the fact religious Laber's diction over arising a "civil under action[] ber's suit was accepted already he had claim because States.” the ... laws ... of United part of the ordered not return OFO’s could (West 1993). § 1331 U.S.C.A. claim; i.e., remedy Army’s Germa- on that (1962)).23 prej- judgment preju- an amendment is before was entered —for Whether dice, faith,’or Foman, futility. bad will often be determined See udicial 227; Johnson, timing. and its U.S. at nature of the amendment (dicta). A example prejudicial A of a amend- F.2d at 509-510 moment’s re- common reveals, however, legal theory a new flection ment is one that “raises that the further gathering progressed judgment and anal- the case before require that would was entered, by already likely not considered the -more it is that ysis of facts [defendant, shortly prejudice is offered before amendment will the defendant or and] An is not that a court will find during or trial.” Id. amendment bad faith on the Gould, contrast, by merely plaintiffs part. if it adds Adams v. prejudicial, 739 F.2d (3d Cir.1984) (“[T]he 858, theory recovery of 864 factors that an additional guide may before must already pled facts and is offered our review be affected discovery Pip- summary judgment occurred. Davis v. the fact that a any has (4th 606, Corp., granted plaintiffs sought 615 F.2d 613 before leave to er Aircraft Cir.1980) (“Because complaint.”). defendant was from amend their fully the outset made aware of the events There is one difference be action, an giving rise to the allowance pre— post-judgment tween a and a motion any way prej- the amendment could not may grant to amend: the district court not of the defendant’s preparation udice the post-judgment judg motion unless the case.”). 59(e) pursuant ment is vacated to Rule or 60(b). alone, however, in Delay Cooper is an Fed.R.Civ.P. See Shum (10th Cir.1985) 27, deny way, mo 780 F.2d 29 plaintiffs sufficient reason to (“[0]nce Davis, judgment filing 615 F.2d at 613. is entered the tion to amend. See reason, complaint is permissible this a district court amended not For judgment pur it until is set or deny simply such a motion because has aside vacated 59(e) 60(b).”); suant to Fed.R.Civ.P. or judgment against plaintiff entered —be (7th dismissal, Schmidt, 160, judgment summary Scott v. 773 F.2d 163 it Cir.1985) same); (holding a trial on 6 Charles Allen judgment, judgment or a after See, Foman, Miller, Mary Kay e.g., Wright, at Arthur R. & the merits. U.S.

182, Kane, Federal Practice & Procedure (reversing 83 S.Ct. 227 district court’s 1489; § see also Murrow Furniture Gal denial of motion to amend made after leries, In Inc. v. Thomasville Furniture judgment district court entered of dismiss (4th dust., Inc., al); F.2d 526 n. 3 Wright, Allen Arthur R. 6 Charles Cir.1989) (“The Miller, Kane, their Mary Kay [Rule] Federal Prac Court denied & 59(e) (2d ed.1990) (col motion, thereby effectively denying Procedure tice & 15(a) Ostrzenski, well.”); cases); Du their motion as lecting [Rule ] cf. Cir.1999) Enters., Inc., (noting that district Buit v. Harwell 252-53 (4th Cir.1976) (“[T]he final order court should not dismiss a with 12(b)(6) of all of the issues disposed of the court prejudice under Fed.R.Civ.P. plaintiffs these two and the defen giving plaintiff without first leave to between amend). Instead, dants, appeals and since no were taken post-judgment motion finality judgment became a and terminated to amend is evaluated under the same them. these circum- legal as a similar motion filed the case as to Under standard Army argue came after the deadline set in the does not that we should amend We scheduling in this case. apply "good legal in Fed. order issued cause” standard 16(b) therefore do not consider the issue. R.Civ.P. because Laber’s motion to rule, theory present- stances, reopened could be or ed how we would the case provisions enough question prior under the ed a close under our order revised ”). necessary grant A conclusion that the 59 or 60.... cases we deemed Rule deny- rehearing its discretion en banc to overrule those eases. abused amend, however, Moreover, suffi- ing diligence filing a motion Laber’s to reverse the dis- grounds on which the district court cient motion to amend after 59(e) of a Rule motion. summary any trict court’s denial judgment dispels entered Foman, See inference of bad faith. of motion for reconsider- (reversing denial Second, the record reveals that where dis- judgment of dismissal ation prejudiced by not have been would denying trict abused its discretion Although proposed Laber’s amendment. amend); Dussouy v. Coast motion to Gulf summary judg- progressed the case (5th 594, n. 1 Corp., Inv. 660 F.2d 597 ment, Army significant conducted no Cir.1981) (“Where judgment has en- been discovery, likely because of the factual de- pleadings, holding that the tered on the velopment of Laber’s claims that occurred permitted amend- trial court should have proceedings. Any in the administrative necessarily implies judg- that [the] ment discovery dupli- it did conduct need not be inappropriate ... was and that ment proposed complaint Laber’s cated because should have therefore the motion to vacate put any does not new facts at issue but Adams, granted.”); 739 F.2d 864 been merely theory” states an “alternative for Dussouy). set forth in (adopting standard Foman, 182, recovery. 371 U.S. at 83 motion to Regardless of whether (reversing entry S.Ct. 227 district court’s we pre— post-judgment, amend is filed or judgment of of dismissal and denial of for abuse of discretion the district

review plaintiffs motion to amend where “the on a motion to amend. court’s decision have done no more than amendment would Foman, 182, See theory recovery.”). state an alternative for believe that under the unusual We Moreover, Army argument made no here, presented Laber’s mo circumstances if prejudiced that it would be Laber were First, granted. must tion amend be granted leave to amend. here, important most there is no indication Third, original complaint that Laber’s omission from his amended legal theory Although artfully seeks is not futile. draft complaint of the he now fact, ed, allege was in bad faith. La it does a cause of action for the pursue religious original complaint arguably alleged was discrimination. ber’s Army argues Laber’s now proper under Pecker and Morris.- While Laber’s untimely claim religious not a run-of-the-mill case where the discrimination is case is theory recovery than plaintiffs first is based because he filed his more 10, days it reading April on his own of our cases and 90 after the OFO’s 2000 misinterpreted turns out that he how that denial of Laber’s motion reconsidera tion, argument not raise this theory would.apply to the facts his case. did Instead, misinterpret- opposing while Laber indeed Laber’s motion amend below.24 Army Army 24. The asserts that it did make its un- And while the did make timeliness argument argument support of its motion for sum- timeliness below. The timeliness however, argument, entirely mary judgment, a close review of the record absent from Army argued only Army's opposition that La- to Laber's motion to reveals that the (Def.'s Amend.) request attorney’s costs was Opp. amend. Mot. to ber's fees and PL's

429 faith, Because Laber did not act bad exceptional circum- In the absence Army argues stances, of which the none proposed preju- amendment would not here, nonjurisdictional25 argu- present are Army, the amendment is not dice the court are to the district not made ments futile, district court we conclude that Big v. See Holland appeal. on waived denying its discretion in Laber’s abused 597, 605 Corp., 181 F.3d River Minerals and to amend.26 motion for reconsideration Cir.1999). (4th States, 744, (3d days 749 Cir. 90 United 404 F.3d untimely it came more than because 30, decision, 178, (2d 2005); January Runyon, Boos v. 201 F.3d 183 the OFO’s after Widnall, Cir.2000); religious claim not that Belhomme v. 127 F.3d 1214, (10th Cir.1997); untimely it came more than because itself n. 1 Bowden v. 11, August States, 433, days (D.C.Cir. 2000 deni- after the OFO's United 106 F.3d (Mem. Bentsen, for reconsideration. 1997); al of his motion 31 F.3d White v. 8.) J. at Supp. Force, Def.’s Mot. For Summ. 1994); Dept. Cir. Ynclan v. Air entirely, arguments are different 1991). These (5th Cir. 943 F.2d preserve other. making does not the one Nothing opinion precludes the in this White, United States Cf. argument raising its untimeliness from (4th Cir.2005) (noting pre-serving n. 5 remand. Sentencing Guide- States claim that United mandatorily incorrectly applied is lines were good colleague Judge Niemeyer 26. Our would mandatory preserve that to claim insufficient deny opportunity to amend his Laber the creates a Sixth application of the Guidelines complaint, because he believes that Laber's error). Amendment Judge Niemeyer complaint futile. amended is arguments support Army’s argument that Laber’s reli two of this con- The makes 25. first, untimely complaint claim was is the amended gious discrimination tention: challenging argument the district not an initiate a "civil action” because Laber will not jurisdiction hear the subject-matter remedy, already accepted court’s a has the OFO’s Affairs, Dept. Vet. 498 In Irwin v. place claim. impossible it for him to fact that makes 453, 89, 111 S.Ct. 112 L.Ed.2d U.S. remedy question appropriate before (1990), Supreme the time consideration; Court held that de novo and sec- the court for 2000e-16(c), § like all federal statutes limit in ond, complaint Laber’s amended is creating of action the federal a cause remedy acceptance of the OFO's barred his pre government, subject to a rebuttable is estoppel equitable notions of and based on 95, equitable tolling. sumption Id. at mootness. language S.Ct. That section contains no disagree Judge respectfully with Niem- We presumption that tend to rebut the that would eyer’s argument Laber's amended com- 90-day equitable tolling applies time La- plaint a “civil action.” does not initiate 2000e-16(c). equita § If limit. 42 U.S.C.A. undoubtedly seeks a amended ber’s does, tolling applies, the time which it ble proper judicial rem- evaluation of de novo jurisdictional, rather in but are limits are ("Plaintiff (Pl.’s Complaint edy. Amended a statute-of-limitations defense. the nature of pecuniary, non-pecuniaiy compensato- claims Airlines, Inc., See, e.g., Zipes v. Trans World ry damages, be made whole absent the and to 1127, 385, 393, 102 S.Ct. 71 L.Ed.2d 455 U.S. ap- accordance with all discrimination ... (1982) charge (noting "filing timely a (and laws.”).) plicable As we have observed not a with the EEOC is of discrimination deciding), may be that one refrained from prerequisite in federal jurisdictional to suit defenses, on re- if raised that, or more affirmative court, requirement like a statute of but a mand, obtaining prevent such waiver, Laber from limitations, will estoppel, subject case, a Laber’s "civil an evaluation. In such equitable tolling”). conclude We therefore fail, cease to be a will but it will not action” argument is in the that the timeliness words, affir- In other certain "civil action.” defense that nature of a statute-of-limitations remand, defenses, if raised Every mative court of can be—and was—waived. judicial operate deny de novo consid- Laber appeals this issue has conclud- that addressed claim, 2000e-16(c) but this fact does not eration of his § is not that the time limit in ed complaint does Hedges mean that Laber's amended jurisdictional requirement. See v. a case, plaintiff V. facie must demonstrate (1) that: of a protected he was member finally argues that the district class, i.e., old; years that he was at least 40 erroneously granted summary judg- (2) employer open position had age on his claims of ment to the (3) applied qualified; which he and was He con- discrimination and retaliation. rejected despite was qualifications; (a) prima tends that he has made a facie (4) position open remained or was age case of discrimination because he was by similarly qualified applicant filled who (b) job in qualified question for the substantially younger plain- than the activity prior knew about his EEO Scott tiff, or outside the class whether within making before the decision not to select protected by the ADEA. See v. O’Connor position.27 him for the We review this 308, Corp., Consol. Coin Caterers argument under the standards of review 310-312, 1307, 134 L.Ed.2d 433 summary judgment as set forth in Part (1996). III, supra. plaintiff pri Once a this makes A. case, ma facie a presumption he creates discrimination, ADEA produc creates a cause of and the burden of employees action for certain28 federal over tion shifts to the defendant articulate a age allege legitimate, non-discriminatory of 40 who discrimination on reason for age. See 29 its employment basis U.S.C.A. 633a. adverse decision. See Prods., apply Douglas the familiar Plumbing We McDonnell Reeves Sanderson Inc., burden-shifting framework to resolve U.S. S.Ct. (2000); age claims of Douglas, discrimination when the L.Ed.2d 105 McDonnell 802-03, plaintiff produces no direct or 411 circumstan U.S. at 93 S.Ct. 1817. If the burden, tial evidence of discrimination sufficient to pre defendant satisfies this the analysis. sumption disappears plaintiff warrant a “mixed-motive” See and the must Palace, Costa, 90, Desert pre Inc. v. show that the articulated reason U.S. is 101-02, 2148, Reeves, age S.Ct. 156 L.Ed.2d 84 text for discrimination. See Hill, (2003); 142-43, 2097; 354 F.3d at 285. Under this 530 U.S. at framework, plaintiff Douglas, the must first estab McDonnell U.S. at prima so, lish a facie plaintiff case of discrimination. S.Ct. 1817. To do the do must Douglas, simply McDonnell at 93 more than U.S. show the articulated rea false; prima S.Ct. 1817. To establish such a son is also must show that the judicial arguments, not seek consideration of tiróse issues but it is clear that neither the otherwise, place. quote any in the To portion Army’s first hold nor other of the Judge Niemeyer suggests, remotely argument would convert affir- Judge brief resembles arguments mative defenses from that must be Niemeyer’s Army dissent makes. If defendant, wishes, by remand, raised see Fed Civ. P. argument R. it can raise the 8(c), plaintiff to threshold hurdles that and the district court can address the issue holding must surmount. We believe such is briefing. with the benefit full incorrect. undisputed 27. It is that the district court Judge Niemeyer's had argument— As to second subject-matter jurisdiction on these claims or that Laber's suit is barred under the doctrines timely. that the claims were estoppel equitable and mootness —we de- argument cline to address the because the Judge Niemeyer undisputed did make it. cites It is that Laber falls within the suggests employees a sentence from the brief it class of federal covered estoppel equitable raises the mootness ADEA. experience people give him from the that we on the discriminated employer Reeves, at 146- try age. give basis of See them. We them the best cases, In some howev- 120 S.Ct. 2097. ..., or qualified got and then he she’s er, employer’s reason is that proof look to decide from there and for [sic] discrimina- age to show false is sufficient they things person that need this be plaintiffs with the tion when combined able to do. 147-48, id. at facie case. See prima 502-03.) (J.A. testimony that La- employ- “once the (noting that S.Ct. 2097 “minimally qualified” ge- for the ber was eliminated, dis- justification has been er’s position Operations neric Research Ana- likely be the most crimination well not, therefore, lyst support does Laber’s explanation”). argument qualified perform that he was held that Laber The district court requirements Opera- of the specific age prima made a facie case of had not Analyst position tions Research for which he failed to show he discrimination because interviewing. was Scott Research qualified Operations was for the that he Analyst argues Laber position. Moreover, that the record shows Scott position for the because the qualified was determined, reviewing sup- after Laber’s concluded that he personnel civilian office information, was plemental position. “minimally qualified” for the eligible” Operations “not for the Research however, reveals, The record (J.A. Analyst sought to fill. position Scott “minimally qualified” does not phrase 470.) position testified that the Scott applicant actually quali is mean that the analysis, functional required cost benefit Instead, job in question. fied for the analysis, independent economic cost applicant qualified means Army’s weapons systems, estimates of job solely of the generic duties based and that Laber’s Form 2302 revealed title, it does not pay grade on the but requisite edu- Laber did not have the necessarily qualified that he is mean cation, job training for the experience, or requirements particular specific conclusory of his requirements.29 Short job applications being for which are to conduct the assertions that he was able the record is full of evi sought. While analyses appro- and make the appropriate effect, testimony of Rox dence to this estimates, present Laber does not priate Dent, staffing specialist, a makes anne education, experi- that his any evidence succinctly: point job. ence, him the training qualified or staffing specialist per- A the civilian [at & Serv. Applications Evans v. Tech. to Cf. sonnel made a determination office] Cir.1996) (“[The (4th Co., qualifica- basic minimum [Laber’s] allegations employee’s] unsubstantiated that tions .... But that doesn’t mean own concerning her and bald assertions pick something .... manager can’t also ... fail to ... show discrimi- qualifications job job, only in his special that’s nation.”). that La- therefore conclude look for that kind of We description and concluded he didn't argues 2302] Form [Laber’s 29. Laber the Form 2302 in experience Scott appropriate is not the actual Form 2302 that which would record have applied Opera- for the being examined when qualify position recruited.” him for the Analyst position. Even assum- tions Research 278.) (J.A. argues nor sub- Laber neither affidavit, true, ing Scott's which was this is testimony was any this mits evidence given shortly after Scott’s non-selection of Form 2302. review of an incorrect based on position, states that his "review Laber for satisfy showing by introducing cannot his burden of a lection evidence that Laber ber Evans, age job, prima qualified facie case of discrimination. was not for the (“[E]mployee qualifications F.3d at 960 are B. valid, widely recognized as non-discrimina- tory any employment bases for adverse age claims of Like discrimina decision.”), and, age as we concluded in the tion, apply Douglas we also the McDonnell context, in- Laber did not framework to claims of retaliation.30 See troduce sufficient evidence to create a fac- Labs., Beall v. Abbott 130 F.3d qualified tual issue on whether he was Cir.1997). prima To establish a facie specific position seeking Scott was retaliation, plaintiff case of must demon fill. We therefore conclude that Laber did (1) engaged protected strate that: satisfy demonstrating not his burden of (2) activity; employment adverse action Army’s justification proffered was (3) him; taken there was false. protected a causal link between the activi ty and the adverse action. If See id. VI. case, plaintiff prima establishes a facie we reasons, foregoing For the we reverse apply then the remainder of the McDon the district court’s denial Laber’s mo- Douglas nell employer test —whether the amend, tions for reconsideration and to produced legitimate, has non-diserimina vacate the district grant court’s tory employee’s reason for the non-selec summary judgment motion for on and, so, if tion whether the employee can relief, Laber’s claim for additional and re- false, and, show that the reason ulti mand with instructions to allow Laber to mately, employer retaliated put amend his at issue the against him. See id. Army’s alleged religious discrimination. The district court held that Laber had grant also affirm the summary judg- We prima not amade facie case of retaliation age ment to the on Laber’s claims of because the evidence showed that Laber discrimination and retaliation. prior informed Scott about his EEO activi- PART, IN REVERSED VACATED ty after Scott made the decision not to PART, AND REMANDED IN AND AF- position. select Laber for the We need FIRMED IN PART. holding decide whether this was erro- Kimel, neous. See Jackson WILKINSON, Judge, Circuit (4th Cir.1993) (“In reviewing concurring: grant summary judgment, we can affirm any legal ground supported by the rec- I pleased Judge am to concur ord grounds and are not limited to the thorough opinion Williams’s in this case. I court.”). relied on the district post-judgment Even do note that motions filed assuming pri- that Laber demonstrated a complaint leave to amend a are not retaliation, Army ma facie case of the sat- favored under law. It a great takes deal producing legitimate, isfied its burden of a party any of time and effort for a to win non-discriminatory reason for his judgment. non-se- This effort should not be rou- and, squarely 30. We have never held that either because we affirm the district court’s give employees Title VII or the ADEA federal resolution of Laber’s retaliation claim on oth- right bring the to a retaliation claim. The grounds, right er we assume that such a Army argue employees does not that federal exists. claim, right bring do not have a to such a Indeed, complaint may a decision of the dis- Laber’s initial have finely undone after the losing party proper prior today’s to to and ruling, court alerts been trict in its case. this would have obviated the need to deficiencies the in the In complaint place. amend first au in the Rules for Provision is made circumstances, -unique agree this set of I in the complaint amendment of tomatic that Laber should be allowed his to amend and liberal for a certain circumstances circumstances, complaint. ordinary cir to amend in other of leave granting post-judgment motions to .amend for-leave 15(a), cumstances, but see Fed.R.Civ.P. string litigation serve to out. finality that to interest in attaches the necessity weigh judgment must of every WIDENER, Judge, concurring Circuit dis the district court’s in the exercise of dissenting: and See, e.g., filing in a such as this. cretion Inc., Distribs., I from respectfully majority dissent Stanley v. Morgan Benzon Cir.2005) assért, (6th (noting holding permits plaintiff 420 F.3d assert, or to amend to again “in the context” the post-judgment discrimination, religious his claim of he take into “must also consideration having protecting previously successfully prose- and competing interest accepted cuted the same and the adminis- finality judgments expeditious and the (internal agree trative award. I with the district quota of litigation”) termination Military omitted); subject court that it Doe v. Howe was without matter tion marks (7th h., jurisdiction as aspect to this of the case. Cir. Sc 2000) day had in court (although be Laber at least when “leave amend shall justice accepted freely granted requires, so the administrative award. when in justice may require something less majority I in concur decision to over- than post-judgment pre-judg- situations in rule the Pecker and Morris cases. situations”) (internal quotation ment in majority I concur decision affirm- Co., omitted); v. marks Vielma Eureka ing grant summary judgment (5th Cir.2000) (noting F.3d plaintiffs age defendant on dis- claims court’s to allow district discretion crimination retaliation. and considerably after amendments “narrows judgment”). entry of Abuse of discretion NIEMEYER, concurring Judge, Circuit all, standard, is, after deferential part: part dissenting courts in the position are best I, II, III, I concur Parts and V of justice so requires” determine “when majority opinion, I Parts and dissent from litigant permitted be his com- amend below, I given IV and VI. For the reasons 15(a). plaint. Fed.R.Civ.P. judgment affirm would of the district case, In this I concur Part IV’s rever court. solely for abuse of because a sal discretion namely, as special circumstance exists— I out, v. Judge points Williams that Morris (4th Rice, Cir.1993), Laber, employee 985 F.2d 143 Stan a civilian Heckler, Army, that on occasions Pecker Cir. U.S. claims two 1986), appeared squarely promotion by and affirma denied him reason religion Army and tively plaintiffs attempt age authorize to seek of his that the agency against filing retaliated him for claims with putting additional relief without EEOC, in of the finding liability of defendant’s issue. violation Title VII Rights Age Civil Act of and the Dis- diction plaintiff accepted because the “has Employment crimination in Act of 1967. the remedies afforded him in the adminis- Operations added). of Federal The EEOC’s Office process” (emphasis trative As the in found did fact discrimi- court explained: against religion nate Laber based on his accepted Plaintiff relief the adminis- relief, and awarded him not all that albeit including attorney’s fees, trative level EEOC, however, he had claimed. The Sunday premium pay, position and a in age-discrimina- on ruled his Germany. accepted Because he tion claim and his retaliation claim. After remedies afforded him at the adminis- Laber filed various motions for reconsider- level, trative plaintiff cannot now re- ation and for enforcement of the remedies quest additional relief ... because he is awarded, ultimately the EEOC affirmed unhappy with the award he in received (1) an award in favor of Laber for over process. administrative $9,000 (2) backpay, position in as an (3) specialist Germany, industrial II $15,000 attorneys over fees. After La- The district reasoning court’s and con- ber all accepted agency-awarded of the correct, clusions were ánd I take issue remedies, he commenced this action con- only with its final observation that as a tending agency-awarded that the remedies result reasoning conclusions, of its religion-discrimination for the claims were jurisdiction. did not have I would con- inadequate and prosecuting age-dis- clude that reasoning its and conclusions crimination and retaliation claims de novo. lead clearly more to dismissal under Fed- On the summary motion for 12(b)(6) eral Rule of Civil Procedure judgment, the district court all dismissed failure to upon state a claim which relief claims, concluding respect Laber’s with granted. can be But the district court’s religion-discrimination claim that the 12(b)(1) breach of the line between Rule jurisdiction court did not have review 12(b)(6) and Rule not require does us to claim simply made for additional remedies reverse the district court’s conclusion to where “the substantive claims were decid- dismiss this case. See Montana-Dakota ed at the administrative level and where Co., Utils. Co. v. Northwestern Pub. Serv. plaintiff accepted the relief afforded 246, 249, U.S. S.Ct. 95 L.Ed. him at the administrative level.” The (1951) (noting, frequently hap- “[a]s respect court with age- concluded pens jurisdiction depends subject where discrimination and retaliation claims that matter, question jurisdiction whether proof. Laber lacked sufficient exists has been confused with question In dismissing Laber’s claim that his whether states a cause of action”). agency-awarded remedies religion- Indeed the line separating the based discrimination were inadequate, recently two has become even more inde- this, court reasoned that recognize because Title finable. To only one need VII proceeding authorized de novo compare holding Gwaltney court, jurisdiction Smithfield, did not have Ltd. v. Chesapeake Bay Found., Inc., claim simply consider his to enhance the 484 U.S. agency (1987), remedies. Its reasoning parallels L.Ed.2d 306 where the Court held 505(a) which is written Part III question of the that the whether addition, majority opinion. In the district Clean Water Act wholly allows suits for juris- court concluded that it did not past have jurisdic- violations was a matter of

435 tion, remedy; seek additional for all only the in Steel Co. v. Citi an holding with Environment, a Better ... a practical purposes pro zens trial de novo for 1003, (1998), 210 83, 140 L.Ed.2d 118 S.Ct. proceedings ceeds as if no earlier had been - question the the that where Court held completed (citing at all.” Ante 420 21 Planning and Emergency whether 104, 116-17, Kentucky, 407 Colten v. U.S. RighU-to-Know Act of 1986 Community (1972) (not 1953, 32 L.Ed.2d 584 wholly past for violations was allows suits ing that novo a “com represents trial de disposable under Rule question a merits pletely fresh determination of [the issues]” 12(b)(6). Moreover, be a mean it would added))); (emphasis see v. also Timmons act for us to remand dismissal ingless Cir.2003) White, 12(b)(6) than Rule rather Rule under (collecting Supreme sup Court decisions 12(b)(1).* same). porting the 12(b)(1) under or Rule Rule Whether Thus a to- state cause of action 12(b)(6), the district court was correct novo, him would entitle to a trial de Laber had concluding that case to be Laber’s prepared place would have to be to all could not assert a de dismissed because he (cid:127) issues, liability remedy, and on the both possibility under The novo claim Title VII. place table anew. Yet he could not reme- by trial foreclosed of a de novo dy issues on the table anew. He has agency remedies. More- acceptance remedies, accepted agency-awarded over, precisely the conclusion that this is Thus, if in which are not now retrievable. majority opinion must be drawn from the a trial Laber were to lose on his de'novo in this case. claim, religion-discrimination he would holding Explaining Chandler nothing, already ac- having stand to 'lose Roudebush, U.S. S.Ct. cepted reme- agency-awarded and received (1976), to conclude that the L.Ed.2d with dies. Laber would' therefore be left plaintiffs cause of in a case action such only possibility seeking an addition- novo, only us be de the one before can type just al Yet this of claim is remedy. concluded, plain majority has “The mean- ‘ it majority what forecloses when the term ‘trial de novo as used in ing of states,' to right employee’s “the federal demonstrates that a federal em- Chandler bring a action does not include civil brings ployee who a ‘civilaction’ ... is not remedy.” right to an additional seek limit review the entitled to the Court’s added). (emphasis Despite Ante (inter- remedy only.” Ante at issue law, majori- this accurate statement alterations, marks, cita- quotation nal amend, with ty; remanding right omitted). thus majority The reasons tion downside. gives a new claim with no right bring employee’s that “the federal plain I this is error. right action’ include the conclude that a ‘civil does not * course, turns blinders majority suggests because Of this conclusion Laber's ac- "initiate[s] amended ‘civil proceedings to date Laber did in which ” “undoubtedly seeks a tion' de novo in the court and file civil action judicial proper remedy,” evaluation of the already precisely did district court dismiss from, might precluded prose- fact that he be already agency pursued had because Laber cuting already he has action because de not now a civil action action and could file agency proceeding accept- prosecuted an majority running procedure novo. The remedy ed its should be raised on remand circles, expensive in this ones case through affirmative defenses. See ante at n. judicial . administration.

III might limited relief still be appropriate us, from we stated that even limited relief In urging affirmance of the district “would require the Class 6 creditors to Army ruling, court’s also contends that advantage,” surrender then- they which “there is no within ... provision Title VII had not done. Id. at 96. In dismissing a complainant accept allows to certain appeal, we stated: portions of an EEOC award and seek de judicial novo review of the rest.” The Orders confirming plans reorganiza- Army argues that it would be inconsistent tion do not become appel- immune from to allow to keep the remedies late review upon partial, their or even by agency awarded and at the same substantial, implementation. On the judicial time seek de novo review. While hand, other dismissal appeal of the on argument this rings estoppel or moot- grounds mootness required when im- ness, Army suggests nonetheless created, plementation plan of the has these conclusions should lead to dismissal extinguished or rights, particu- modified jurisdiction. for lack of larly persons court, not before the Regardless proper legal pigeon- such an judicial extent that effective re- place hole which to argu- lief is no longer practically available. ment, I agree Army with the indeed —and (internal omitted) Id. (emphasis citations the district court—-that Laber “cannot added). Articulating the doctrine more have his cake eat it too.” He cannot Panel, completely in Mac we said: retain remedy by awarded him equitable [T]he doctrine of mootness is a agency and at urge the same time us to pragmatic principle, grounded in permit him the no- pursue judicial a de novo that, tion complaint; passage with the they mutually are of time after inconsistent. judgment in equity and implementa- Army Even as the has mislabeled its tion of that judgment, effective relief on argument jurisdictional, as the mislabeling appeal impractical, becomes imprudent; bury does not the point. Because Laber inequitable. and therefore cannot fulfill the elements of his de novo by risk, claim putting all the remedies at 283 F.3d at 625. only by must be barred not inability While I continue to believe that Laber allege remedies, a claim for de novo but . should not now be pursue allowed to by also estoppel equitable notions of or claim because he cannot set forth a de See, e.g., mootness. Mac Panel Co. v. upon novo claim grant- which relief can be Virginia Panel Corp., 283 F.3d ed and therefore would affirm the district (4th Cir.2002); Central States Pension basis, just on that I am prepared as Inc., Fund v. Central Transport, to affirm the dismissal under the doctrine (4th Cir.1988). equitable' mootness. Although the States, In Central a pension plan sought Army specifically did not argu- label its to overturn a bankruptcy court’s confirma- doctrine, ment with the name of that tion of a plan reorganization of a truck- vigorously argued nonetheless the sub- ing company. Pending however, appeal, brief, stance of the point just in its as the pension plan did not file a supersedeas district court relied on it justify its bond, required stay, for a dismissal. court, time the case reached plan this substantially had been implemented. reasons, all re- For of these I would affirm sponse pension argument fund’s judgment granting the district court La- summary judgment claim. religious-discrimination

ber’s America, STATES

UNITED

Plaintiff-Appellant,

v. NICHOLS, Defendant- David

James

Appellee. America, States

United

Plaintiff-Appellee, Nichols, Defendant- David

James

Appellant. Martens, Matthew Theodore ARGUED: 04-5020, 04-5021. Nos. Attorney, Office Assistant United States Charlotte, Attorney, the United States Appeals, States Court United Carolina, Appellant/Cross-Ap- for North Fourth Circuit. Lee, Charlotte, Marshall Randolph pellee. 28, 2005. Argued Oct. Carolina, Appellee/Cross-Appel- North 28, 2006. Decided Feb. Shap- C.F. BRIEF: Gretchen lant. ON Charlotte, Attorney,

pert, United States Carolina, Appellant/Cross-Ap- North pellee. WILKINS, Judge, and Chief

Before TRAXLER, Circuit MICHAEL Judges. by published and remanded

Vacated wrote Judge WILKINS opinion. Chief Judge MICHAEL opinion, which joined. Judge TRAXLER OPINION WILKINS, Judge. Chief W. WILLIAM David James appeals States The United robbery, see for bank Nichols’ sentence 2113(a) (West 2000), arguing U.S.C.A.

Case Details

Case Name: Stan Laber v. Francis J. Harvey, Secretary of the Army

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 16, 2006

Citation: 438 F.3d 404

Docket Number: 04-2132

Court Abbreviation: 4th Cir.