concurring in part and dissenting in part:
I concur in Parts I, II, III, and V of the majority opinion, and I dissent from Parts IV and VI. For the reasons given below, I would affirm the judgment of the district court.
I
Stan Laber, a civilian employee of the U.S. Army, claims that on two occasions the Army denied him promotion by reason of his religion and age and that the Army retaliated against him for filing claims with the EEOC, in violation of Title VII of the *434Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. The EEOC’s Office of Federal Operations found that the Army did in fact discriminate against Laber based on his religion and awarded him relief, albeit not all that he had claimed. The EEOC, however, ruled against Laber on his age-discrimination claim and his retaliation claim. After Laber filed various motions for reconsideration and for enforcement of the remedies awarded, the EEOC ultimately affirmed an award in favor of Laber for (1) over $9,000 in backpay, (2) a position as an industrial specialist in Germany, and (3) over $15,000 in attorneys fees. After La-ber accepted all of the agency-awarded remedies, he commenced this action contending that the agency-awarded remedies for the religion-discrimination claims were inadequate and prosecuting his age-discrimination and retaliation claims de novo.
On the Army’s motion for summary judgment, the district court dismissed all of Laber’s claims, concluding with respect to his religion-discrimination claim that the court did not have jurisdiction to review a claim made simply for additional remedies where “the substantive claims were decided at the administrative level and where the plaintiff accepted the relief afforded him at the administrative level.” The court concluded with respect to the age-discrimination and retaliation claims that Laber lacked sufficient proof.
In dismissing Laber’s claim that his agency-awarded remedies for religion-based discrimination were inadequate, the district court reasoned that because Title VII authorized only a de novo proceeding in court, the court did not have jurisdiction to consider his claim simply to enhance the agency remedies. Its reasoning parallels that which is written in Part III of the majority opinion. In addition, the district court concluded that it did not have jurisdiction because the plaintiff “has accepted the remedies afforded him in the administrative process” (emphasis added). As the court explained:
Plaintiff accepted relief at the administrative level including attorney’s fees, Sunday premium pay, and a position in Germany. Because he accepted the remedies afforded him at the administrative level, plaintiff cannot now request additional relief ... because he is unhappy with the award he received in the administrative process.
II
The district court’s reasoning and conclusions were correct, ánd I take issue with only its final observation that as a result of its reasoning and conclusions, it did not have jurisdiction. I would conclude that its reasoning and conclusions lead more clearly to dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. But the district court’s breach of the line between Rule 12(b)(1) and Rule 12(b)(6) does not require us to reverse the district court’s conclusion to dismiss this case. See Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 249, 71 S.Ct. 692, 95 L.Ed. 912 (1951) (noting, “[a]s frequently happens where jurisdiction depends on subject matter, the question whether jurisdiction exists has been confused with the question whether the complaint states a cause of action”). Indeed the line separating the two has recently become even more indefinable. To recognize this, one need only compare the holding of Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), where the Court held that the question whether § 505(a) of the Clean Water Act allows suits for wholly past violations was a matter of jurisdic*435tion, with the holding in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), where the Court held that the question whether the Emergency Planning and Community RighU-to-Know Act of 1986 allows suits for wholly past violations was a merits question disposable under Rule 12(b)(6). Moreover, it would be a meaningless act for us to remand for dismissal under Rule 12(b)(6) rather than Rule 12(b)(1).*
Whether under Rule 12(b)(1) or Rule 12(b)(6), the district court was correct in concluding that Laber’s case had to be dismissed because he could not assert a de novo claim under Title VII. The possibility of a de novo trial was foreclosed by his acceptance of the agency remedies. Moreover, this is precisely the conclusion that must be drawn from the majority opinion in this case.
Explaining the holding in Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), to conclude that the plaintiffs cause of action in a case such as the one before us can only be de novo, the majority has concluded, “The plain meaning of the term ‘trial de novo ‘ as used in Chandler demonstrates that a federal employee who brings a ‘civil action’ ... is not entitled to limit the Court’s review to the issue of remedy only.” Ante at 420 (internal quotation marks, alterations, and citation omitted). The majority thus reasons that “the federal employee’s right to bring a ‘civil action’ does not include the right to seek only an additional remedy; for all practical purposes ... a trial de novo proceeds as if no earlier proceedings had been completed at all.” Ante at 420 - 21 (citing Colten v. Kentucky, 407 U.S. 104, 116-17, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) (noting that trial de novo represents a “completely fresh determination of [the issues]” (emphasis added))); see also Timmons v. White, 314 F.3d 1229, 1233 (10th Cir.2003) (collecting Supreme Court decisions supporting the same).
Thus to- state a cause of action that would entitle him to a trial de novo, Laber would have to be prepared to place all issues, both • liability and remedy, on the table anew. Yet he could not place remedy issues on the table anew. He has accepted the agency-awarded remedies, which are not now retrievable. Thus, if in a trial de'novo Laber were to lose on his religion-discrimination claim, he would stand to 'lose nothing, having already accepted and received agency-awarded remedies. Laber would' therefore be left with only the possibility of seeking an additional remedy. Yet this type of claim is just what the majority forecloses when it states,' “the federal employee’s right to bring a civil action does not include the right to seek only an additional remedy.” Ante at 421 (emphasis added). Despite this accurate statement of law, the majority; by remanding with a right to amend, gives Laber a new claim with no downside. I conclude that this is plain error.
*436III
In urging affirmance of the district court’s ruling, the Army also contends that “there is no provision within Title VII ... that allows a complainant to accept certain portions of an EEOC award and seek de novo judicial review of the rest.” The Army argues that it would be inconsistent to allow Laber to keep the remedies awarded by an agency and at the same time seek de novo judicial review. While this argument rings of estoppel or mootness, the Army nonetheless suggests that these conclusions should lead to dismissal for lack of jurisdiction.
Regardless of the proper legal pigeonhole in which to place the Army’s argument, I agree with the Army — and indeed the district court — -that Laber “cannot have his cake and eat it too.” He cannot retain the remedy awarded him by the agency and at the same time urge us to permit him to pursue a de novo judicial complaint; they are mutually inconsistent.
Even as the Army has mislabeled its argument as jurisdictional, the mislabeling does not bury the point. Because Laber cannot fulfill the elements of his de novo claim by putting all the remedies at risk, he must be barred not only by his inability to allege a claim for de novo remedies, but also by notions of estoppel or equitable mootness. See, e.g., Mac Panel Co. v. Virginia Panel Corp., 283 F.3d 622, 625 (4th Cir.2002); Central States Pension Fund v. Central Transport, Inc., 841 F.2d 92, 95 (4th Cir.1988).
In Central States, a pension plan sought to overturn a bankruptcy court’s confirmation of a plan for reorganization of a trucking company. Pending appeal, however, the pension plan did not file a supersedeas bond, as required for a stay, and by the time the case reached this court, the plan had been substantially implemented. In response to the pension fund’s argument that limited relief might still be appropriate from us, we stated that even limited relief “would require the Class 6 creditors to surrender then- advantage,” which they had not done. Id. at 96. In dismissing the appeal, we stated:
Orders confirming plans of reorganization do not become immune from appellate review upon their partial, or even substantial, implementation. On the other hand, dismissal of the appeal on mootness grounds is required when implementation of the plan has created, extinguished or modified rights, particularly of persons not before the court, to such an extent that effective judicial relief is no longer practically available.
Id. (internal citations omitted) (emphasis added). Articulating the doctrine more completely in Mac Panel, we said:
[T]he doctrine of equitable mootness is a pragmatic principle, grounded in the notion that, with the passage of time after a judgment in equity and implementation of that judgment, effective relief on appeal becomes impractical, imprudent; and therefore inequitable.
283 F.3d at 625.
While I continue to believe that Laber should not . now be allowed to pursue his claim because he cannot set forth a de novo claim upon which relief can be granted and therefore would affirm the district court on that basis, I am just as prepared to affirm the dismissal under the doctrine of equitable' mootness. Although the Army did not specifically label its argument with the name of that doctrine, it nonetheless vigorously argued the substance of the point in its brief, just as the district court relied on it to justify its dismissal.
For all of these reasons, I would affirm the judgment of the district court granting *437summary judgment to the Army on La-ber’s religious-discrimination claim.
The majority suggests that because Laber's amended complaint "initiate[s] a ‘civil action' ” that “undoubtedly seeks a de novo judicial evaluation of the proper remedy,” the fact that he might be precluded from, prosecuting that action because he has already prosecuted an agency proceeding and accepted its remedy should be raised on remand through affirmative defenses. See ante at n. 26.
Of course, this conclusion turns blinders to the proceedings to date in which Laber did file a civil action in the district court and the district court did already dismiss it precisely because Laber had already pursued an agency action and could not now file a civil action de novo. The majority is running the procedure in this case in circles, and expensive ones for . judicial administration.