                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                                 In the                                August 23, 2005
            United States Court of Appeals                         Charles R. Fulbruge III
                       for the Fifth Circuit                               Clerk
                           _______________

                             m 05-30037
                           Summary Calendar
                           _______________




                        LIONEL ROLLAND, JR.,

                                                Plaintiff-Appellant,

                                VERSUS

       UNITED STATES DEPARTMENT OF VETERANS AFFAIRS;
                     ANTHONY J. PRINCIPI,
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, IN HIS INDIVIDUAL CAPACITY;
                           JIM NICHOLSON,
 SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, IN HIS OFFICIAL CAPACITY;
                        JOHN D. CHURCH, JR.,
           DIRECTOR OF THE DEPARTMENT OF VETERANS AFFAIRS,
                IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
                        CASSANDRA HOLIDAY,
                             INDIVIDUALLY,

                                                Defendants-Appellees.


                     _________________________

               Appeal from the United States District Court
                  for the Eastern District of Louisiana
                            m 2:03-CV-570
                           m 2:03-CV-3584
                 ______________________________
Before DAVIS, SMITH, and DENNIS,                           Americans with Disabilities Act,3 the Rehabil-
  Circuit Judges.                                          itation Act,4 the Family Medial Leave Act
                                                           (“FMLA”),5 title VII of the Civil Rights Act of
PER CURIAM:*                                               1964,6 and 42 U.S.C. §§ 1981, 1983, 1985,
                                                           and 1986. He bases federal jurisdiction on title
   Lionel Rolland, Jr., appeals a summary                  VII and 42 U.S.C. §§ 1983, 1985, and 1986.
judgment and dismissal of his suit against his
former employer, the United States Depart-                     The district court dismissed the title VII,
ment of Veterans Affairs (“VA”).1 Finding no               FMLA, and Rehabilitation Act claims for lack
error, we affirm, essentially for the reasons set          of jurisdiction for failure to exhaust available
forth by the district court in its comprehensive,          administrative remedies. The claims under the
twenty-nine-page opinion.                                  ADA and the civil rights statutes were dis-
                                                           missed for failure to state a claim on which
                      I.                                   relief could be granted and as preempted.
   Rolland alleges discriminatory treatment at
the workplace, including retaliation and termi-               On appeal, both parties limit their briefing
nation, on the basis of sex, race, color, and              to the issues surrounding the title VII claims;
disability.2 He bases these claims on the                  therefore, our review is limited likewise. We
                                                           review both a dismissal under Federal Rule of
                                                           Civil Procedure 12(b) and a summary judg-
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-        ment under Federal Rule of Civil Procedure 56
termined that this opinion should not be published         de novo.7
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
                                                              2
                                                               (...continued)
   1
     Rolland also names as defendants, in their var-       of Civil Procedure 12(b)(6). Rolland does not
ious capacities, certain VA officials and employ-          appeal this decision.
ees. The district court found that these individuals
were not properly before the court as defendants:             3
                                                                  42 U.S.C. § 12101 et seq.
“[T]here is no allegation that either Secretary
Principi or Director Church committed any act or              4
                                                                  29 U.S.C. § 701 et seq.
omission with regard to [Rolland’s] complaints and
certainly not in any capacity other than an official          5
                                                                  29 U.S.C. § 2601 et seq.
one . . . . Nowhere in Rolland’s complaints has he
                                                              6
alleged or described any conduct by Holiday in an                 42 U.S.C. § 2000e et seq.
individual capacity . . . .” On appeal these parties
                                                              7
remain nominally part of the suit, but Rolland does            Hebert v. United States, 53 F.3d 720, 722
not appeal the district court’s finding that these         (5th Cir. 1995) (“We review de novo a district
persons are not proper defendants. Therefore, we           court’s granting of a motion to dismiss for lack of
treat this matter as though Rolland had sued               subject matter jurisdiction.”); Armstrong v. City of
Principi in his professional capacity as Secretary         Dallas, 997 F.2d 62, 65 (5th Cir. 1993) (“We
and thereby the VA itself.                                 review the grant of summary judgment de novo,
                                                           applying the same standard as the district court.”).
   2
    In addition he alleged a state law claim,              For summary judgment, the Court views all evi-
which was dismissed pursuant to Federal Rule               dence in the light most favorable to the non-moving
                                     (continued...)                                               (continued...)

                                                       2
                      II.                                    the federal government in cases alleging dis-
   Rolland initially complained to the Equal                 crimination in a government workplace if all
Employment Opportunity Commission                            administrative remedies are exhausted first.9
(“EEOC”) of his perceived workplace dis-
crimination; he chose to appeal the EEOC’s                      In Tolbert v. United States, 916 F.2d 245
final decision to the Merit System Protection                (5th Cir. 1990), we defined title VII’s exhaus-
Board (“MSPB”). After sending a letter to the                tion standard as requiring a plaintiff to file his
MSPB, requesting dismissal of his appeal, he                 lawsuit timelySSnot before and not after the
received an initial decision from the MSPB                   statutorily allotted time. “It seems obvious
stating that his case had been dismissed. In                 that [a complainant] who files too early, has,
this document he was informed that the deci-                 by definition, filed before [he] has exhausted
sion would become final in 30 days and would                 [his] administrative remedies . . . .” Id. at 247-
become appealable at that point. He sued in                  48. We reasoned that filing too early is not a
federal court 27 days later.                                 defect that can be cured by the passage of
                                                             time. Id. at 249.
                      III.
   The VA is a federal agency. Sovereign im-                    Title 5 U.S.C. § 7703(b) permits a judicial
munity protects the federal government and its               appeal of an MSPB final ruling. Rolland sued
agencies from being sued without consent.8                   in federal court three days before the MSPB
Sovereign immunity is waived by clear and un-                decision became final. He therefore did not
equivocal statutory language. United States v.               exhaust the available administrative remedies.
Dalm, 494 U.S. 596, 608 (1990); Shanbaum,                    Consequently, jurisdiction has not vested in
32 F.3d at 181. Title VII permits suit against               federal court.

                                                                Rolland attempts to invoke the doctrine of
   7
    (...continued)                                           equitable tolling.10 As the district court point
party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000) (“In [entertaining
a motion for summary judgment] the court must
                                                                9
draw all reasonable inferences in favor of the                     42 U.S.C. § 2000e-16(a) (1994); Brown v.
nonmoving party . . . .”).                                   Gen. Servs. Admin., 425 U.S. 820 (1976) (holding
                                                             that title VII requires compliance with administra-
   8
     United States v. Testan, 424 U.S. 392, 399              tive procedures before the federal courts acquire
(1976) (“It long has been established, of course,            jurisdiction).
that the United States, as sovereign, ‘is immune
                                                                10
from suit save as it consents to be sued . . . and the             This argument is intermingled, in Rolland’s
terms of its consent to be sued in any court define          brief, with the contention that federal courts ac-
that court’s jurisdiction to entertain the suit.’”)          quired jurisdiction of the claim 180 days after he
(quoting United States v. Sherwood, 312 U.S. 584             filed his first complaint with the EEOC. This ar-
(1941)); Shanbaum v. United States, 32 F.3d 180,             gument is incorrect. After Rolland received a final
181 (5th Cir. 1990) (noting that the federal govern-         decision from the EEOC, he was given a choice of
ment may be sued only on clearly stated consent);            pursuing an appeal in federal court or with the
Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471               MSPB. He elected the MSPB and thereby commit-
(1994) (“Absent a waiver, sovereign immunity                 ted himself to abide by these administrative proce-
shields the Federal Government and its agencies              dures. See Vinieratos v. United States Dep’t of
from suit.”)                                                                                      (continued...)

                                                         3
ed out, however, this doctrine is applicable in
only very limited circumstances.11           A               AFFIRMED.
complainant’s failure to follow administrative
procedures, particularly where he is repre-
sented by counsel, is not one of the grounds
for equitable tolling.

                     IV.
    Rolland’s employment discrimination claims
under §§ 1983, 1985, and 1986 are precluded
by our caselaw. “Title VII provides the exclu-
sive remedy for employment discrimination
claims raised by federal employees.” Jackson
v. Widnall, 99 F.3d 710, 716 (5th Cir. 1996)
(citing Brown, 425 U.S. at 835). The district
court properly dismissed those claims.


   10
      (...continued)
Air Force, 939 F.2d 762 (9th Cir. 1991) (“[Title
VII] requires an aggrieved federal employee to
elect one exclusive remedy and to exhaust whatever
remedy he chooses.”).
   11
      As eloquently stated by the district court,
“[t]he doctrine of equitable tolling . . . may be
invoked when: (1) the claimant actively pursued his
judicial remedies in the prescribed time period; (2)
he was induced or tricked by his adversary’s
misconduct into allowing the deadline to pass;
(3) the court leads a plaintiff to believe that he has
done all that is required; (4) the plaintiff has re-
ceived inadequate notice . . . .” See Irwin v. Dep’t
of Veterans Affairs, 498 U.S. 89, 96 (1990) (not-
ing instances of equitable tolling where the com-
plainant pursued judicial remedies within the
appropriate statutory time or was tricked by his
adversary as to the filing deadline, but refusing to
receive an untimely filing where the claimant did
not exercise due diligence); Teemac v. Henderson,
298 F.3d 452, 457 (5th Cir. 2002) (stating lack of
proper notice is ground for equitable tolling); South
v. Saab Cars USA, Inc., 28 F.3d 9, 11-12 (2d Cir
1994) (listing a court’s behavior, leading plaintiff
to believe no more is required, as a reason for
equitable tolling).

                                                         4
