United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 22, 2013 Decided March 7, 2014
No. 12-5139
RANDOLPH S. KOCH,
APPELLANT
v.
MARY JO WHITE, IN HER CAPACITY AS CHAIRMAN, UNITED
STATES SECURITIES AND EXCHANGE COMMISSION AND
SECURITIES AND EXCHANGE COMMISSION,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01225)
Kelly B. McClanahan argued the cause and filed the briefs
for appellant.
Peter R. Maier, Assistant U.S. Attorney, argued the cause
for appellees. With him on the brief were Ronald C. Machen
Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: TATEL and SRINIVASAN, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
2
RANDOLPH, Senior Circuit Judge: After Randolph Koch
took a stress test in 2007, his cardiologist recommended that
Koch enter a cardiac rehabilitation program. Koch, who was
then working for the Securities and Exchange Commission in
Washington, D.C., submitted a request for a work schedule
accommodation so that he could undergo rehabilitation without
using his work leave. He filed his request under the
Rehabilitation Act, which requires that federal agencies
reasonably accommodate “the known physical or mental
limitations” of an employee if the accommodation would not
impose an “undue hardship” on the agency’s operations.
Woodruff v. LaHood, 777 F. Supp. 2d 33, 39 (D.D.C. 2011)
(internal quotation marks omitted); see 29 U.S.C. § 791 et seq.
When more than a year passed without Commission action
on his request, Koch began the administrative appeals process.
He first informally consulted a counselor in the Commission’s
Office of Equal Employment Opportunity (“the Office”), see 29
C.F.R. § 1614.105(a), and he provided that counselor with
medical records in support of his request. He then filed a formal
complaint. See id. § 1614.106.
The Office assigned an investigator named Daniel Jewell to
Koch’s case. Jewell did not work for the Office but was instead
employed by a private firm the Office had engaged to handle
these investigations. An attorney from the Office informed
Koch of Jewell’s involvement via email and explained that Koch
was “obligated to cooperate” with the investigation.
Koch was uneasy about a private firm having his medical
records. According to him, the Commission could not lawfully
share Koch’s records with Jewell unless the Commission’s
contract with Jewell’s firm included certain clauses triggering
the protections of the Privacy Act. See generally 48 C.F.R. pt.
24 (regulating when federal contracts must include Privacy Act
3
language). Without those clauses—the presence or absence of
which was not immediately clear—Koch believed that the
Privacy Act would not limit what Jewell could do with the
records.1 Koch was shown a copy of the non-disclosure
agreement governing Jewell’s engagement, but he was
unmoved.
Exercising what he called “his only remaining option,”
Koch stopped participating in the investigation. Complaint at
¶ 34, Koch v. Schapiro, No. 1:09-cv-1225 (D.D.C. Jan. 27,
2010). Koch insisted that the Office not give Jewell access to
his medical records, and he refused even to provide Jewell with
testimony making his case on appeal. The Office dismissed
Koch’s complaint for failure to cooperate. See 29 C.F.R.
§ 1614.107(a)(7).
After unsuccessfully appealing his dismissal to the Equal
Employment Opportunity Commission, Koch sued the
Securities and Exchange Commission in the district court. The
district court granted summary judgment to the Commission,
holding, among other things,2 that “Mr. Koch’s refusal to
participate in his administrative proceedings constitutes a failure
to exhaust his administrative remedies and that there is no
reason to excuse such failure.” Koch v. Schapiro, 777 F. Supp.
1
It turned out the clauses Koch believed were necessary were
part of the contract. They were difficult to detect because they were
incorporated by reference but not actually written in.
2
Koch challenged the dismissal of his Rehabilitation Act request
and also raised claims under the Administrative Procedure Act, the
Privacy Act, and the Fifth Amendment. Once he located the contract
clauses he first thought were missing, he amended his complaint to
remove some of the claims. The district court granted summary
judgment for the Commission on every remaining count. Koch v.
Schapiro, 777 F. Supp. 2d 86, 91-92 & nn.4-5 (D.D.C. 2011).
4
2d 86, 91-92 (D.D.C. 2011). Koch appeals the district court’s
exhaustion decision.
The question whether a particular administrative pursuit
satisfies the exhaustion requirement is a legal question which we
review de novo.3 See Artis v. Bernanke, 630 F.3d 1031, 1043
(D.C. Cir. 2011). On the other hand, the decision whether to
excuse a failure to exhaust is reviewed for an abuse of
discretion. See Avocados Plus, Inc. v. Veneman, 370 F.3d 1243,
1250-51 (D.C. Cir. 2004). In that situation, the legal question
has been answered—the litigant has not exhausted his
administrative remedies—and what remains is the question
whether to dismiss the case in light of the policies the
exhaustion requirement is meant to serve. See id. That
“intensely practical” decision is entrusted to the sound discretion
of the district court. Id. at 1251 (internal quotation marks
omitted).
First, the legal question: did Koch exhaust his
administrative remedies? A plaintiff’s suit “will be barred for
failure to exhaust administrative remedies” if he “forces an
agency to dismiss or cancel the complaint by failing to provide
sufficient information to enable the agency to investigate the
claim.” Wilson v. Peña, 79 F.3d 154, 164 (D.C. Cir. 1996).
Here, the Office made clear that its investigation would require,
at a minimum, Koch’s testimony and possibly Koch’s medical
records as well. Koch provided neither and concedes as much.
He argues instead that the medical records he had provided
during counseling—but which he insisted be withheld from
Jewell—were sufficient to allow the investigation to proceed.
3
That is so whether or not the particular exhaustion requirement
is “jurisdictional.” See generally Avocados Plus, Inc. v. Veneman, 370
F.3d 1243, 1247-48 (D.C. Cir. 2004).
5
We disagree. Rann v. Chao, 346 F.3d 192 (D.C. Cir. 2003),
is materially indistinguishable from this case and controls our
analysis. Rann had filed an age discrimination complaint with
his agency’s Equal Employment Opportunity Office and, though
he provided the counselor with written information, he refused
to provide a signed affidavit. Id. at 196. The Office dismissed
his complaint, and this court ultimately found that Rann failed
to exhaust his administrative remedies. Id. at 196-97. So it
must be here. Koch “neither complied with [the Agency’s]
requests nor provided any information beyond his initial
submission.” Id. at 196. Under Rann, he provided insufficient
information to the agency and thus failed to exhaust his
administrative remedies.
Second, the discretionary question: should the district court
have excused Koch’s failure to exhaust? Koch says it should
have because he withheld his cooperation in “good faith.”
Appellant Br. 16. At the time he decided to stop cooperating, he
believed that (1) the Privacy Act clauses were required to be
present in the contract between the Commission and Jewell’s
firm, and (2) those clauses were missing. Koch says those
beliefs were both reasonable and sincere and that, therefore, he
cannot be punished for acting in accordance with them.
Some courts hold that a “[g]ood faith effort” to cooperate
with the agency justifies a failure to exhaust administrative
remedies. E.g., Wade v. Sec’y of Army, 796 F.2d 1369, 1377
(11th Cir. 1986) (citing Mangiapane v. Adams, 661 F.2d 1388,
1390-91 (D.C. Cir. 1981)). But here, it was an effort not to
cooperate that Koch says was in good faith. Because Koch
failed to explain both how his concern over the disclosure of his
medical records justified his failure to provide his testimony to
Jewell and how the extensive privacy protections for his medical
records included in the contract between Jewell and the
6
Commission were insufficient, Koch’s refusal to cooperate was
clearly unjustified.
Koch should have complied with agency procedures before
challenging those aspects to which he objected. Cf. Ticor Title
Ins. Co. v. Fed. Trade Comm’n, 814 F.2d 731, 742-43 (D.C. Cir.
1987) (opinion of Edwards, J.). The district court was well
within its discretion to dismiss the Rehabilitation Act claim.4
The judgment of the district court is therefore
Affirmed.5
4
The district court analyzed the reasonableness of Koch’s beliefs
by inquiring whether the Privacy Act contract clauses were required
to be present. We do not think that analysis is relevant to the
exhaustion question and thus express no view on it. We nevertheless
affirm because we review the district court’s “judgment, not its
reasoning.” EEOC v. Aramark Corp., Inc., 208 F.3d 266, 268 (D.C.
Cir. 2000).
5
Our disposition moots Koch’s motion to supplement the
appendix. We therefore dismiss the motion. Cf. United States ex rel.
K&R P’ship v. Mass. Hous. Fin. Agency, 530 F.3d 980, 984 n.3 (D.C.
Cir. 2008).