BRUCE L. WHITE, JR., PETITIONER V. ANTHONY M. FRANK, POSTMASTER GENERAL No. 90-47 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The Respondent In Opposition TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The decision of the court of appeals (Pet. App. 24) is reported at 895 F.2d 243. The decision of the district court (Pet. App. 30) is reported at 718 F. Supp. 592. /1/ JURISDICTION The judgment of the court of appeals was entered on March 1, 1990. The petition for a writ of certiorari was filed on May 29, 1990. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). QUESTION PRESENTED Whether 29 C.F.R. 1613.513 permits a person who alleges discrimination on the basis of age in federal employment, and who chooses to pursue his administrative remedies before the EEOC, to obtain judicial review of his allegations without first exhausting his administrative remedies. STATEMENT 1. The Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq., provides two separate routes by which a federal employee or an applicant for federal employment who believes he has been discriminated against because of his age can obtain relief. First, the aggrieved person may file an administrative claim in accordance with the rules and regulations promulgated by the Equal Employment Opportunity Commission (EEOC) and the employing agency. 29 U.S.C. 633a(b). The person following this route first seeks counseling from an EEOC counselor at the employing agency. 29 C.F.R. 1613.213. If, after counseling, the matter cannot be resolved to the aggrieved person's satisfaction, he may file a formal complaint with the agency. 29 C.F.R. 1613.214. If the agency denies the complaint, the complainant may then appeal to the EEOC. 29 C.F.R. 1613.215, 1613.231. After the administrative complaint is filed with the EEOC, the complainant may abandon the administrative process in favor of a civil suit. The filing of a civil action automatically terminates the processing of the administrative complaint. 29 C.F.R. 1613.513. /2/ Alternatively, the aggrieved person may bring a civil action in any federal district court of competent jurisdiction without pursuing his administrative remedies at all. The ADEA provides that "(w)hen the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred." 29 U.S.C. 633a(d). 2. Petitioner was employed by the United States Postal Service for about five months before he resigned his job on March 31, 1985, to seek other employment. His first application for reinstatement with the post office -- on September 20, 1985 -- was denied; petitioner did not seek review of this denial. On May 23, 1986, petitioner again applied for reinstatement; he was again denied employment on June 5, 1986. App., infra, 6a. /3/ Following an interview with a Postal Service Equal Employment Opportunity counselor, petitioner filed a formal complaint of discrimination on August 4, 1986. App., infra, 6a-7a. /4/ After a hearing, an administrative law judge found no discrimination on the basis of race, color, or handicap, but recommended a finding of age discrimination; that recommendation was rejected by the Postal Service, which found that petitioner's reinstatement had not been denied on the basis of his age, color, race, or handicap. App., infra, 7a. On November 9, 1987, petitioner filed an appeal with the EEOC Office of Review and Appeals; on December 22, 1987, before obtaining a ruling by the Commission, he filed a civil action in federal district court. App., infra, 7a. On March 30, 1988, the EEOC issued its final decision, affirming the decision of the Postal Service. 3. The district court granted respondent's motion for summary judgment on the ADEA claim. /5/ It held that when an ADEA plaintiff chooses to pursue his administrative remedies, he must completely exhaust those remedies before commencing suit in federal court. Because petitioner had filed his suit before the EEOC acted on his appeal, he had failed to exhaust his administrative remedies; the district court therefore refused to consider petitioner's ADEA claim. App., infra, 9a-13a. The court of appeals affirmed, "(c)oncluding that the district court correctly decided the issues presented to (it)." App., infra, 4a. /6/ ARGUMENT 1. Petitioner contends (Pet. 18) in this Court for the first time that "(t)he critical element in the analysis of the requirements of administrative exhaustion of all remedies is found in the amendment to 29 C.F.R. 1613.513 (1988)." This argument was not presented to the court of appeals. /7/ This Court does not ordinarily address issues that have not been properly presented to the courts below. EEOC v. FLRA, 476 U.S. 19, 24 (1986); Rogers v. Lodge, 458 U.S. 613, 628 n.10 (1982). There is no reason to depart from that practice here. /8/ 2. We do, however, agree with petitioner's analysis of the relevant law. There is no statutory or regulatory requirement that a complainant must seek administrative relief from the EEOC before filing suit under the ADEA. While the Act permits the EEOC to enforce the statutory anti-discrimination requirements, it also specifically provides for direct resort to a civil action. 29 U.S.C. 633a(d). Moreover, the Act directs the EEOC to issue rules and regulations governing the available administrative process, "as it deems necessary and appropriate." 29 U.S.C. 633a(b). The ADEA is silent on the precise question at issue here -- whether a complainant who has filed an appeal with the EEOC may abandon that appeal before it has been decided and seek direct judicial review. But the EEOC has exercised its regulatory authority to provide the answer to that question. For civil actions, like this one, which are filed after November 30, 1987, 29 C.F.R. 1613.513 (1988) provides that such filing will terminate the processing of the administrative complaint. /9/ This regulation clearly contemplates that a person who has filed a complaint with the EEOC may obtain judicial review of the merits of his claim by filing a civil action in district court before he has exhausted his administrative remedies, and the EEOC so interprets it. /10/ The courts of appeals have been divided as to whether an ADEA complainant who has elected the administrative remedy scheme can nevertheless seek judicial review without completing the administrative process. Compare Langford v. U.S. Army Corps of Engineers, 839 F.2d 1192 (6th Cir. 1988) (exhaustion of administrative remedies not required); Bornholdt v. Brady, 869 F.2d 57, 63 (2d Cir. 1989) (same), with Castro v. United States, 775 F.2d 399 (1st Cir. 1985) (exhaustion required); Purtill v. Harris, 658 F.2d 134 (3d Cir. 1981) (same), cert. denied, 462 U.S. 1131 (1983). Castro and Purtill were, however, decided before the amendment of 29 C.F.R. 1613.513 (1988), when the filing of a civil action did not terminate EEOC processing of administrative claims. See note 9, supra. The reasoning of Langford and Bornholdt is consistent with the EEOC's interpretation of the amended regulation. As noted, the issue of the application of 29 C.F.R. 1613.513 to this case was not presented to the courts below. In addition, petitioner is not foreclosed from seeking judicial review now that the administrative process has been completed. Accordingly, there is no need for this Court to consider the effect of the new EEOC regulation in the first instance. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MICHAEL JAY SINGER WILLIAM G. COLE Attorneys AUGUST 1990 /1/ Because the appendices to the petition contain many typographical errors, including several omissions of significant language, we are reprinting the opinion of the court of appeals and the relevant portions of the district court opinion as appendices to this brief for the convenience of the Court. /2/ The ADEA contains no express time limit for filing a suit for judicial relief after a complaint has been filed with the EEOC. 29 U.S.C. 633a(c). /3/ The local postmaster subsequently explained that petitioner's poor performance during his original employment was the reason for the refusal to rehire him. Pet. 10. /4/ Although petitioner states that he "filed a formal complaint of discrimination with the EEOC on August 4, 1986" (Pet. 10), it appears that he filed his initial complaint properly with his agency. See 29 C.F.R. 1619.214 (initial complaint must be filed with the employee's agency, not with the EEOC). /5/ The district court also dismissed petitioner's claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., Section 501 of the Rehabilitation Act, 29 U.S.C. 791 et seq., and the Veterans' Reemployment Act, 38 U.S.C. 2021 et seq. Pet. App. 49-55. Petitioner does not raise any issues relating to those claims in this Court. /6/ The court of appeals specifically agreed that "an ADEA plaintiff who chooses to appeal the employer's determination to the Equal Employment Opportunity Commission (EEOC) must await final action by that agency before filing an action in federal district court." App., infra, 2a. /7/ Indeed, in the court of appeals, petitioner "specifically disavow(ed) reliance upon" a recent Second Circuit decision, Bornholdt v. Brady, 869 F.2d 57, 63 (1989), which explained the significance of the amended regulation. App., infra, 2a-3a n.2. Petitioner apparently backs away from his disavowal before this Court, quoting Bornholdt at length in the petition. Pet. 18-19. /8/ Since the EEOC denied petitioner's administrative appeal on March 30, 1988, he has now exhausted his administrative remedies. There would accordingly seem to be no reason under the lower courts' analysis why petitioner could not now file a new civil action in district court. See note 2, supra. /9/ 29 C.F.R. 1613.513 (1988) reads: The filing of a civil action by an employee or applicant involving a complaint filed under this subpart terminates processing of that complaint. Before its amendment on October 30, 1987 (52 Fed. Reg. 41,922), the provision was to the opposite effect: The filing of a civil action by an employee or applicant does not terminate agency processing of a complaint or Commission processing of an appeal under this subpart. /10/ The court below noted in passing that the regulation "says nothing concerning the exhaustion requirement." App., infra, 3a n.2. Although that is technically correct, the regulation is evidently based on the assumption that the complainant who files a civil action before administrative review is completed will obtain judicial review on the merits in that action. Otherwise, the termination of administrative review would deprive him of any opportunity to obtain an adjudication on the merits. That is clearly not what the ADEA contemplates. See 29 U.S.C. 633a(c). Indeed, petitioner escapes this dilemma, under the interpretation of the courts below, only because the EEOC for some reason completed its administrative review after petitioner filed his civil action, in contravention of 29 C.F.R. 1613.513 (1988). See note 8, supra. APPENDIX