Carver v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN C. CARVER, 
Plaintiff-Appellant,
No. 09-35084
v.
ERIC H. HOLDER JR., United States  D.C. No.
2:08-cv-00354-RSM
Attorney General; UNITED STATES
OPINION
DEPARTMENT OF JUSTICE,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted
January 14, 2010—Seattle, Washington

Filed May 27, 2010

Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
Richard C. Tallman, Circuit Judges.

7707
7710 CARVER v. HOLDER

COUNSEL

John C. Carver (argued); Judith A. Lonnquist, Law Offices of
Judith A. Lonnquist, P.S., Seattle, Washington, for the
plaintiff-appellant.

Marion J. Mittet (argued), Helen J. Brunner, United States
Attorney’s Office, Seattle, Washington; Jeffrey C. Sullivan,
United States Attorney, for the defendants-appellees.

OPINION

TALLMAN, Circuit Judge:

John C. Carver (“Carver”) is a former Assistant United
States Attorney (“AUSA”) who took an early buy-out from
federal service in 1994. He filed a complaint under the Age
Discrimination in Employment Act, 29 U.S.C. § 633a, against
the United States Department of Justice (“DOJ” or “Depart-
ment”) after he sought to be rehired for a vacant position in
1996 with the United States Attorney’s Office in Tacoma,
Washington. A younger individual with less experience was
selected to fill the vacancy. The Equal Employment Opportu-
nity Commission (“EEOC”) made a finding of age discrimi-
nation against the DOJ for its refusal to rehire Carver. The
EEOC required, inter alia, that the DOJ offer Carver another
AUSA position, pay him back wages and benefits he would
have earned during his tenure, and issue a final report of com-
pliance.

Though Carver originally agreed with the DOJ’s method of
calculating back pay and benefits, he was unsatisfied when
 CARVER v. HOLDER 7711
the DOJ offset his award of accrued federal sick and annual
leave with leave he was awarded during his interim public
employment with the State of Washington and King County.
He complained about the DOJ’s calculation, but the EEOC
announced it was satisfied with the payment of $262,304.16
to Carver and closed the file on his case. Carver then filed suit
in the Western District of Washington for enforcement of the
EEOC’s determination, claiming that he was entitled to more
—i.e., both the leave awarded to him at his other jobs and the
leave that would have accrued had he been re-employed by
the DOJ.

The district court originally denied the DOJ’s motion to
dismiss and held that Carver could bring suit for enforcement
of the EEOC’s award because the DOJ had not yet issued its
final report of compliance. However, after the DOJ issued this
report and sent it to the EEOC, the district court granted sum-
mary judgment against Carver, reasoning that, under 29
C.F.R. § 1614.503(g), it now lacked the ability to hear the
case because Carver had received a favorable determination
by the EEOC and the DOJ had fully complied with the
requirements set forth in the EEOC’s decision. Carver took
the position that although he was suing to expand the EEOC’s
monetary award, he was merely seeking to enforce the rem-
edy. He disclaimed that he was filing a de novo civil action
which could potentially reopen both the administrative find-
ing of liability for age discrimination and the remedy ordered
by the agency.

Carver now appeals the district court’s decision. Because
the DOJ has fully complied with the EEOC’s decision, and
hence no portion of the order remains unenforced, Carver’s
only remedy is to bring the civil action he denies he is
pursuing—a suit for de novo review of his claim. We hold
that he cannot parse his action to increase the remedy without
relitigating the liability issue in pursuing his claim in federal
court. Therefore, we affirm the district court’s determination
that the DOJ is entitled to summary judgment.
7712 CARVER v. HOLDER
I

Carver was an AUSA in the Western District of Washing-
ton from August 1985 until December 1994, and prior to that
time he was employed in other positions elsewhere within the
Department. In December 1994, he accepted a voluntary
incentive payment of $25,000 during a buy-out period offered
by the DOJ and subsequently left his AUSA position. Some-
time after he left the United States Attorney’s Office in Seat-
tle, he accepted employment with two other public entities:
first, with the Attorney General’s Office for the State of
Washington, and then later with the King County Prosecuting
Attorney’s Office in Seattle. Though he had already accepted
the $25,000 buy-out from the DOJ, in 1996 he applied to
return to federal service upon learning of a vacant AUSA
position in Tacoma—also located in the Western District of
Washington. He was not hired for the job and the vacancy
was filled by an individual thirteen years his junior.

Carver brought his age discrimination complaint before the
EEOC. Following an investigation into his claims, the case
was heard by an Administrative Law Judge (“ALJ”). The ALJ
found that the DOJ’s reasons for not offering the position to
Carver were mere pretext, and concluded that the DOJ had
acted in a discriminatory manner. The DOJ rejected these
findings and appealed the ALJ’s determination to the full
Commission.

On August 8, 2005, the Office of Federal Operations (the
“OFO”)—the appellate branch of the EEOC—issued its deci-
sion, which agreed with the ALJ’s conclusion. It held that
Carver had been the subject of age discrimination and ordered
that the DOJ provide adequate relief to Carver. It instructed
the DOJ, inter alia, to offer re-employment as an AUSA to
Carver, as well as to determine the appropriate amount of
back pay due him, including interest and other benefits. Addi-
tionally, the DOJ was required to submit a final report of
 CARVER v. HOLDER 7713
compliance with documentation of its back pay and benefits
calculations.

In response to the OFO’s ruling regarding the AUSA posi-
tion, the DOJ extended an offer of re-employment to Carver,
which he accepted on November 8, 2005. After Carver had
accepted the position, but before he returned to duty, the
Department proposed the option of accepting a Voluntary
Early Retirement buy-out that had been offered to eligible
employees in 2005. Carver elected this option and declined
his offer for rehire as an AUSA on January 3, 2006. His
retirement was deemed retroactively effective as of June 1,
2005.

To satisfy the OFO’s requirement regarding past wages, the
parties agreed that they would calculate back pay based on
gross wages Carver would have earned as an AUSA between
September 29, 1996—the agreed upon start date but for the
DOJ’s discrimination—and June 1, 2005. From these gross
wages, the Department deducted Carver’s total outside earn-
ings, an amount comprised of wages he earned while
employed by the Washington Attorney General’s Office and
the King County Prosecuting Attorney’s Office. Based on this
computation, the DOJ transferred $262,304.16 into Carver’s
bank account on January 12, 2006. This amount equaled the
total calculated back pay of $287,304.16—the amount he
would have made as an AUSA, minus the gross earnings from
his interim employment—less the $25,000 voluntary incen-
tive payment he had initially received in 1996.

Carver disputed the Department’s calculation of benefits. In
particular, he claimed that his federal leave benefits had a
monetary value which should have been added to the back-
pay amount awarded by the DOJ. The Department, on the
other hand, argued that the value of the leave benefits Carver
earned while employed at his interim employment had to be
offset against federal annual and sick leave he would have
accrued had he been employed as an AUSA. The Department
7714 CARVER v. HOLDER
made this calculation and determined that Carver was not
entitled to any additional back pay as offsetting compensation
for benefits. It sent an explanation of its accounting to Carver
in an e-mail dated February 3, 2006.

Carver filed a Petition for Enforcement with the EEOC on
February 28, 2006, and then filed a supplement on April 28,
2006, and a second supplement on May 20, 2006. In his peti-
tion, Carver sought enforcement of the OFO’s decision,
claiming, in relevant part, that the DOJ had not properly cred-
ited him for the annual and sick leave benefits he would have
accrued had he been hired by the DOJ in 1996. Among other
things, he requested that the EEOC clarify the extent to which
the Department was required to credit him federal annual
leave and sick leave benefits from September 29, 1996, until
June 1, 2005. He also asked that the EEOC direct the Depart-
ment to issue its final report of compliance, detailing the exact
amount of back pay it had awarded him.

On December 12, 2007, the EEOC issued its “Decision on
a Petition for Enforcement.” It said: “Except for submission
of its final compliance report, we find that the agency has
completed its obligation to petitioner under our Order and that
the agency has complied with our Order.” The decision con-
cluded: “[W]e find that the agency is in compliance with the
Commission’s Order in John C. Carver v. Department of Jus-
tice, EEOC Appeal No. 07A30025 (August 8, 2005). Accord-
ingly, petitioner’s Petition for Enforcement is DENIED.”

Carver then brought suit in the Western District of Wash-
ington on January 29, 2008. He sought an order from the
court directing the Department to (1) credit him with federal
annual and sick leave he would have accrued between Sep-
tember 29, 1996, and June 1, 2005, (2) pay him for an addi-
tional 113 days of leave he would have accrued while he was
an AUSA, (3) calculate back pay based only upon gross earn-
ings during the interim period offset by the gross wages he
would have earned as an AUSA, and (4) issue a final report
 CARVER v. HOLDER 7715
of compliance regarding back pay. The DOJ moved to dismiss
the complaint, arguing that the regulatory scheme that gov-
erns federal sector employment discrimination claims barred
judicial review of Carver’s claims unless Carver sought de
novo review of both the EEOC’s discrimination and remedy
findings. It based its argument on 29 C.F.R. §§ 1614.407 and
1614.503(a), the regulations governing discrimination claims
in federal employment.

The district court initially denied the Department’s motion
to dismiss, stating that 29 C.F.R. § 1614.503(g) permitted a
complainant to bring an action in the federal courts where the
“Commission has determined that an agency is not complying
with a prior decision, or where an agency has failed or refused
to submit any required report of compliance.” It noted that the
EEOC had specifically stated in its Decision on a Petition for
Enforcement that the DOJ had not yet issued a final report of
compliance as required by the OFO’s August 8, 2005, order.
Because this report of compliance had yet to be filed, the dis-
trict court could not conclude that suit was improper under 29
C.F.R. § 1614.503(g), and held that Carver was entitled to
seek enforcement of the August 8, 2005, order.

Following this decision, on August 28, 2008, Carver filed
a motion requesting that summary judgment be entered on his
behalf, again claiming that the DOJ improperly offset benefits
he accrued from his interim employment and that he was enti-
tled to a final report of compliance by the DOJ. On October
2, 2008, the Department hand-delivered a document to the
OFO entitled “Final Compliance Report, Complaint of Dis-
crimination, John C. Carver.” This report detailed how the
Department had calculated the total amount of back pay—
$262,304.16—and declared that it was now in full compliance
with the OFO’s August 8, 2005, order. The document also
included about forty pages of e-mail communications between
the DOJ and Carver’s attorney, which explained the DOJ’s
computations and accounting. Just four days after filing this
“Final Compliance Report,” the DOJ filed its cross-motion for
7716 CARVER v. HOLDER
summary judgment, claiming that it was now in complete
compliance with the OFO’s order, and that, under 29 C.F.R.
§ 1614.503(g), the case could not be heard in federal court
unless Carver was willing to risk relitigating the EEOC’s age
discrimination determination.

This time the district court granted the DOJ’s motion. It
found that the Department had fully complied with all
requirements set forth under the regulations, particularly 29
C.F.R. § 1614.503(g). The court held that it now lacked the
ability to hear Carver’s claims for additional compensation.
The district court found that although Carver claimed he was
merely requesting that the court review the EEOC’s own
compliance decision by limiting his lawsuit to enforcement of
the remedy awarded by the EEOC, in reality he was asking
the court to reopen the damages award and order the Depart-
ment to increase his compensation. This, it held, was imper-
missible under the plain language of the regulation.

Carver appeals the district court’s grant of summary judg-
ment against him. We have jurisdiction to review this claim
under 29 U.S.C. § 633a and 28 U.S.C. § 1291.

II

Carver argues that the DOJ is not in complete compliance
with the OFO’s August 8, 2005, order because the Depart-
ment failed to calculate properly the value of his benefits and
because it did not submit an acceptable Final Compliance
Report.

We review a district court’s decision to grant summary
judgment de novo. Legal Aid Servs. of Or. v. Legal Servs.
Corp., 587 F.3d 1006, 1015 (9th Cir. 2009). We apply the
same standards employed by the district court in determining
whether summary judgment is appropriate in a specific case.
Meade v. Cedarapids, Inc., 164 F.3d 1218, 1221 (9th Cir.
1999). “Summary judgment is to be granted only if the plead-
 CARVER v. HOLDER 7717
ings and supporting documents, viewed in the light most
favorable to the non-moving party, show that there is no gen-
uine issue as to a material fact, and the moving party is enti-
tled to judgment as a matter of law.” Legal Aid Servs., 587
F.3d at 1015 (citing Fed. R. Civ. P. 56(c)).

Our sister circuits have also examined the question when an
action for enforcement of an EEOC decision may be brought
in the district court. Though the issue is one of first impres-
sion in our circuit, we choose to follow in the footsteps of
those circuits that have gone before us.

A

[1] Section 15 of the Age Discrimination in Employment
Act (the “ADEA”) provides a right of action for federal
employees who allege employment discrimination on the
basis of age. 29 U.S.C. § 633a. The statute grants discretion
to the EEOC to promulgate any necessary rules and regula-
tions to ensure enforcement. Id. § 633a(b). It also provides
that “[a]ny person aggrieved may bring a civil action in any
Federal district court of competent jurisdiction for such legal
or equitable relief as will effectuate the purposes of [the stat-
ute].” Id. § 633a(c).

[2] We have said that, “[u]nder the ADEA, an employee
has two alternative options for seeking judicial redress.” Whit-
man v. Mineta, 541 F.3d 929, 932 (9th Cir. 2008). First, “an
employee [can] invoke[ ] the EEOC’s administrative claims
process, and then may appeal any loss therein to the federal
court.” Id. (citing 29 U.S.C. § 633a(b), (c)). Alternatively,
“[w]hen the individual has not filed a complaint . . . with the
Commission,” 29 U.S.C. § 633a(d), he may give notice of the
discriminatory action to the EEOC within 180 days of that
action, and then give notice of his intent to sue at least thirty
days before commencing suit. Whitman, 541 F.3d at 932 (cit-
ing 29 U.S.C. § 633a(c), (d)); see also Girard v. Rubin, 62
F.3d 1244, 1247 (9th Cir. 1995) (“An employee seeking rem-
7718 CARVER v. HOLDER
edies under the ADEA may either pursue a direct action in
federal court after notifying the EEOC, or may pursue admin-
istrative remedies by filing a complaint with the EEOC and
then seek review in district court if he is not satisfied with the
result.”).

[3] If an employee chooses to invoke the administrative
claims process promulgated by the EEOC, as Carver chose to
do, he must follow the procedures set forth in the regulations
issued under 29 U.S.C. § 633a(b). These regulations require
that the employee file a complaint with the agency that alleg-
edly discriminated against him, stating what discriminatory
action was taken. 29 C.F.R. § 1614.106(a). An investigation
ensues, id. § 1614.108, and a hearing before an ALJ of the
EEOC may be requested by the employee, id. § 1614.109.
Following the ALJ’s determination, the agency must issue its
final decision regarding the ALJ’s findings. Id. § 1614.110.

An aggrieved complainant can then appeal this final agency
decision to the EEOC, where the case is then sent to the
EEOC’s appellate arm, the OFO. Id. § 1614.401. The OFO
considers the substance of the employee’s complaint and
reviews the ALJ’s determination for substantial evidence. Id.
§ 1614.405. If the OFO issues a decision favorable to the
employee, and the agency fails to comply with that decision,
the employee can then file a petition for enforcement with the
EEOC. Id. § 1614.503(a). The OFO must then ascertain
whether the agency is in complete compliance with its prior
order and issue a decision regarding the adequacy of the agen-
cy’s response. Id. § 1614.503(b).

[4] Upon conclusion of the administrative process, the
employing agency has no right to seek judicial review of the
OFO’s resolution of an employee’s claim. See Girard, 62
F.3d at 1247 (noting that an agency may not bring suit against
a prevailing employee). However, an employee who prevails
on his claim has two avenues into federal court. First, the
employee can bring an enforcement action against the agency.
 CARVER v. HOLDER 7719
Ellis v. England, 432 F.3d 1321, 1324 (11th Cir. 2005) (“[A]
federal employee who prevails may sue in a federal district
court to enforce an administrative decision with which an
agency has failed to comply.”); see also Yamaguchi v. U.S.
Dep’t of the Air Force, 109 F.3d 1475, 1484 n.2 (9th Cir.
1997). In an enforcement action, a prevailing employee may
not challenge the OFO’s decision regarding either discrimina-
tion or what it found to be appropriate remedies. Instead, “[i]n
a suit for enforcement, the issue is not liability or the remedy,
. . . but rather whether the federal employer has complied with
the OFO’s remedial order.” Laber v. Harvey, 438 F.3d 404,
417 (4th Cir. 2006) (en banc); Timmons v. White, 314 F.3d
1229, 1232 (10th Cir. 2003) (holding that the “[p]laintiff
[was] not seeking the enforcement of a final EEOC order”
because he “specifically requested more relief than the EEOC
awarded”).

[5] If the prevailing employee opts not to seek enforce-
ment, he can alternatively choose to bring a civil action
against the agency. 29 U.S.C. § 633a(c). Our sister circuits
have concluded that such a civil action must be de novo, put-
ting at issue both the OFO’s liability determination—i.e., its
decision that an agency has acted in a discriminatory manner
—and its finding with regard to remedies. See Laber, 438
F.3d at 423-24; Scott v. Johanns, 409 F.3d 466, 472 (D.C. Cir.
2005); Timmons, 314 F.3d at 1234. However, Carver insists
he wishes only to enforce the OFO’s August 8, 2005, order.
We must consider whether Carver’s action in federal court
can progress as an enforcement action.1 We conclude that his
1
Some of our sister circuits appear to believe that we answered this
question in the affirmative in Girard, 62 F.3d 1244. See Ellis, 432 F.3d
at 1324-25; Scott, 409 F.3d at 471; but see Laber, 438 F.3d at 424 n.21
(“It is far from certain that the Ninth Circuit would interpret Girard to
allow a federal-employee plaintiff to bring a suit seeking only additional
relief.”). However, we do not read Girard so broadly. The statement in
Girard that “an employee could seek review of parts of a favorable EEOC
decision without risking a review of the remainder of that decision,” is
7720 CARVER v. HOLDER
suit for enforcement only fails and we affirm the district
court’s grant of summary judgment.

B

[6] Carver’s overriding argument is that he seeks only to
enforce the EEOC’s August 8, 2005, remedial order. We do
not think that Carver can so selectively choose which aspect
of the administrative disposition of his claim he wishes to
enforce. In particular, his argument ignores the petition for
enforcement that he filed with the EEOC on February 28,
2006, and the EEOC’s resulting determination that the DOJ
had fully complied with its remedial order.

We believe that the EEOC’s response to Carver’s petition
for enforcement is as much a part of the administrative dispo-
sition as is the remedial order itself. Indeed, the regulations at
issue explicitly grant the EEOC the power to issue a clarifica-
tion of its prior order in response to a petition for enforce-
ment. See 29 C.F.R. § 1614.503(c) (“[T]he Office of Federal
Operations may, . . . in response to a petition for enforcement
. . . issue a clarification of a prior decision.”). In our view,
OFO’s decision on Carver’s petition for enforcement was pre-
cisely such a clarification.

[7] Thus, to the extent Carver characterizes his action as a
suit for enforcement, we hold that his suit is limited to the
enforcement of the EEOC’s administrative disposition as a
whole. Carver must either accept the administrative disposi-

ambiguous in the context of the opinion. 62 F.3d at 1247. The phrase
refers to a case that distinguished between enforcement of the EEOC
award and de novo review, as do all the subsequent citations. Id. Further-
more, Girard’s holding is limited to the agency’s waiver of a timeliness
issue. Id. at 1247-48. Neither party in Girard was asking the court to
review only part of the EEOC’s ruling on the merits; in fact, the employee
was seeking de novo review of an unfavorable decision by the EEOC. Id.
at 1246.
 CARVER v. HOLDER 7721
tion in its entirety or bring a de novo action in the district
court. See Scott, 409 F.3d at 469 (“In . . . enforcement actions,
the court reviews neither the discrimination finding nor the
remedy imposed, examining instead only whether the employ-
ing agency has complied with the administrative disposi-
tion.”). Because the administrative disposition before us
includes a finding that the DOJ was in full compliance with
the EEOC’s order, the district court properly granted sum-
mary judgment to defendants.2

Carver advances two additional arguments as to why his
action should have survived summary judgment. First, he
argues that the text of 29 U.S.C. § 633a(c) permits this court
to enforce DOJ’s compliance with the EEOC’s August 8,
2005, order, notwithstanding its ruling on his petition for
enforcement. Carver is mistaken. While the wording of
§ 633a(c) is quite expansive—the statute allows an aggrieved
person to bring “a civil action . . . for such legal or equitable
relief as will effectuate the purposes of [the statute]”—context
establishes that it provides for no more than a de novo action
in federal court.

The federal employment provisions of the ADEA, includ-
ing § 633a(c) were adapted from Title VII. See Lehman v.
Nakshian, 453 U.S. 156, 163-64, 166-67 & n.15 (1981). In the
Title VII context, the Supreme Court has expressly held that
the phrase “civil action” means de novo trial. Chandler v.
Roudebush, 425 U.S. 840, 844-45 (1976). Although techni-
cally Chandler held that the plaintiff was entitled to a de novo
trial in federal court, our sister circuits have relied on the case
2
We do not decide whether the Administrative Procedure Act (“APA”)
would have allowed the district court to review Carver’s claim that the
EEOC’s ultimate disposition of his claim ran contrary to the regulations
governing back pay awards. See 29 C.F.R. § 1614.501(b)(1)(ii); 5 C.F.R.
§ 550.805; cf. Houseton v. Nimmo, 670 F.2d 1375 (9th Cir. 1982) (relying
on the APA to review the EEOC’s action in a discrimination case). Carver
did not invoke the APA before the district court, and expressly disclaimed
any reliance on it in his reply brief.
7722 CARVER v. HOLDER
to hold that plaintiffs are limited to de novo trials when they
seek to challenge the outcomes of their administrative pro-
ceedings. See Laber, 438 F.3d at 419-21; Ellis, 432 F.3d at
1323-25; Scott, 409 F.3d at 469-71; Timmons, 314 F.3d at
1233-37.

[8] Given the strong parallels between the ADEA and Title
VII, we follow our sister circuits and hold that “civil action”
in § 633a(c) means de novo trial. Thus, Carver’s assertion that
his suit can proceed under § 633a(c) fails.

Finally, Carver insists that summary judgment was
improper because the Department neglected to submit its final
report of compliance, as required by the OFO’s August 8,
2005, order. Indeed, in its decision on the petition for enforce-
ment, the EEOC stated that “[e]xcept for submission of its
final compliance report,” the DOJ was in compliance with the
OFO’s order. The district court agreed with Carver that he
could bring suit in federal court so long as the DOJ had not
fulfilled this requirement. However, after this ruling by the
district court, the Department submitted to the EEOC a “Final
Compliance Report.” It contained a detailed accounting of its
back-pay calculation, as well as justifications for the Depart-
ment’s computations. Once the DOJ sent this “Final Compli-
ance Report” to the EEOC, the district court determined that
“the only basis” for its previous holding no longer existed.

The DOJ’s initial failure to supply this report permitted
Carver’s case to go forward. However, once it was submitted,
there remained no portion of the OFO’s order left to enforce.
The district court’s holding that the “DOJ has fulfilled its
obligations” under the EEOC’s order was correct. Therefore,
we can find no reason to permit an enforcement action to con-
tinue against the DOJ, and agree with the district court that
summary judgment against Carver was proper.

III

[9] We conclude that because the EEOC found the Depart-
ment in compliance with the requirements set forth in its
 CARVER v. HOLDER 7723
appellate decision dated August 8, 2005, and because the DOJ
has submitted all required reports of compliance as contem-
plated by that decision, summary judgment in favor of the
DOJ was proper. Carver cannot bring a suit for enforcement
when there is no portion of the EEOC’s final determination
left to enforce. Each party is to bear its own costs on appeal.

AFFIRMED.