           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 6, 2009

                                     No. 08-31179                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JEROME SMITH,

                                                   Plaintiff–Appellant,
v.

ANTHONY J. PRINCIPI, SECRETARY, DEPARTMENT OF VETERANS
AFFAIRS,

                                                   Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 1:04-CV-55


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Jerome Smith appeals the district court’s dismissal of his complaint filed
pursuant to § 706(f) of the Civil Rights Act of 1964 for lack of subject matter
jurisdiction.    Because we hold that the district court had subject matter
jurisdiction to consider the complaint, we reverse the dismissal and remand for
further proceedings.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                         No. 08-31179

                                              I
      Smith was an escort nursing assistant at the Little Rock, Arkansas
Veterans Affairs facility. He alleges that the facility retaliated against him
because he gave a statement to an administrative investigation board regarding
patient abuse and sexual harassment in the facility.      Smith filed a formal
complaint of employment discrimination with the Department of Veterans
Affairs (VA) and requested a hearing before the Equal Employment Opportunity
Commission (EEOC). The EEOC administrative judge (AJ) concluded that
Smith was discriminated against and recommended an award of compensatory
damages, but the VA rejected the AJ’s recommendation and Smith appealed to
the EEOC Office of Federal Operations (OFO). The OFO determined that Smith
was discriminated against and ordered the VA to award Smith damages. The
VA awarded Smith $30,000, paying by a check that Smith subsequently cashed.
Smith then appealed the amount of the award to the OFO, and the OFO
increased the award to $80,000. The VA issued another check for the remaining
$50,000 to Smith, who subsequently cashed the check.
      Smith then brought this action in the district court pursuant to the Equal
Opportunity Employment Act of 1972, which permits government employees to
sue their employers under Title VII.1 The VA filed a motion to dismiss for lack
of jurisdiction. The case was assigned to a magistrate judge, who recommended
dismissal of the complaint for lack of jurisdiction. The magistrate judge noted
that the statute only allowed two types of appeals: those to enforce the
administrative award and those seeking de novo review of the administrative
decision. Construing Smith’s complaint to only seek review of the award and not
de novo review of the full administrative decision, the magistrate judge




      1
          See 42 U.S.C. § 2000e-16(c).

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                                       No. 08-31179

concluded that the court lacked subject matter jurisdiction. The district court
adopted the magistrate’s recommendation and Smith subsequently appealed.
                                              II
      We review a district court’s dismissal for lack of subject matter jurisdiction
de novo.2 We have previously held that a federal-sector employee suing under
Title VII cannot request a partial de novo review of the agency’s decision, but
may only seek either a suit to enforce the final administrative disposition or a
de novo review of the entire agency decision, including both liability and the
remedy.3        Here, Smith does not seek enforcement of the administrative
disposition, since the award has already been rendered. The question is whether
Smith’s complaint seeks a partial or complete de novo review of the agency
decision.
      In Massingill v. Nicholson, we faced a similar situation.                There, the
plaintiff’s complaint was unclear as to whether it sought only a review of the
award or of the entire decision.4 The complaint both stated that “the amount of
the compensatory damages awarded . . . was not appropriate” and asked that
“the Court allow Massingill a trial on the merits as to the discrimination issues
alleged in this case.” 5 Reviewing the complaint “with an eye towards our liberal
notice pleading standards,” we concluded that Massingill had requested a
complete trial. 6 We further held that Massingill did not need to disgorge the
money she had already received from her award in order to proceed with the
case, noting that “there is nothing in the statute creating the right of action, 42


      2
          E.I. DuPont de Nemours & Co. v. Sawyer, 517 F.3d 785, 792 (5th Cir. 2008).
      3
          Massingill v. Nicholson, 496 F.3d 382, 384-85 (5th Cir. 2007).
      4
          Id. at 385-86.
      5
          Id. at 386.
      6
          Id.

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                                       No. 08-31179

U.S.C. § 2000e-16(c), which precludes suit if the award has been partially or
even completely rendered.”7
      Here, Smith’s original complaint was filed pro se, though Smith later hired
an attorney. “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se
complaint, however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.’” 8 Reading Smith’s pro se complaint
liberally, we hold that it did seek full de novo review of the agency’s decision.
      Smith initially filed a form complaint for a § 706(f) action. He later filed
an “Amended Complaint” which stated that “[t]he Plaintiff would like to Amend
the complaint by attaching the following.” “An amended complaint supersedes
the original complaint and renders it of no legal effect unless the amended
complaint specifically refers to and adopts or incorporates by reference the
earlier pleading.” 9 We liberally construe Smith’s language stating that he was
“attaching the following” to the “complaint” as incorporating the previous
complaint by reference. Thus, we will read the original complaint and the
amended complaint together.
      Neither the original complaint nor the amended complaint clearly explains
what type of review Smith seeks. In the original complaint, he described the
factual basis for his discrimination claim against the VA. In response to the
form’s prompt, “[I]f you disagree with any of the EEOC’s findings or conclusions,
state why,” Smith referred to an affidavit and amendment to the affidavit filed
with the complaint that described in depth the details of the alleged
discrimination and reprisals against Smith, as well as the mental health issues



      7
          Id.
      8
        Erikson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citation omitted)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
      9
          King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994).

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from which Smith alleged he suffered due to the reprisals. In his amended
complaint, Smith stated that “[t]he reason of [sic] this Civil Suit is because I am
suffering from on going [sic] Mental Health problems that has [sic] resulted in
physical problems as well,” and goes on to discuss those problems.
      The VA argues that the amended complaint demonstrates that Smith was
only dissatisfied with the amount of compensatory damages awarded and thus
did not seek de novo review of the entire EEOC decision. While it may be true
that Smith’s dissatisfaction derives from the amount of the EEOC’s award, that
alone does not establish that Smith sought only a partial review of the EEOC’s
decision. The fact that Smith included in his complaint and amended complaint
all of the facts underlying the discrimination claim and not just those relating
to the damages award, combined with the absence of any statement clearly
requesting only review of the award, is enough for us to conclude, construing the
complaint liberally, that Smith seeks review of the EEOC’s full decision and not
just the award amount.            Therefore, the district court had subject matter
jurisdiction to consider the merits of Smith’s claim.
      Moreover, as we held in Massingill, the fact that Smith has cashed the
checks from the previous award and has not returned those amounts to the VA
does not preclude him from bringing this suit.10 However, if, as a result of the
de novo review, no liability is found or a lower award is granted, the VA may
counterclaim against Smith to recover the amounts paid in excess of the
ultimate award.
                                      *        *         *
      We REVERSE the district court’s grant of the motion to dismiss and
REMAND for further proceedings.




      10
           See Massingill, 496 F.3d at 386.

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