222 F.3d 320 (7th Cir. 2000)
Cecil W. Watson, Plaintiff-Appellant,v.William J. Henderson, Postmaster General  of the United States, Defendant-Appellee.
No. 98-3955
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 19, 2000Decided July 24, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 96 C 7044--David H. Coar, Judge.
Before Posner, Chief Judge, and Coffey and  Easterbrook, Circuit Judges.
Easterbrook, Circuit Judge.


1
A decade ago Cecil  Watson applied for a managerial position at a  post office. He was turned down, and in 1993 the  Equal Employment Opportunity Commission concluded  that his race influenced the adverse decision.  The EEOC required the Postal Service to promote  Watson and restore salary and benefits lost  during the interim. (When the Postal Service is  the employer, the EEOC has the authority to make  decisions that become final unless contested by  the agency--and the Postal Service did not  contest the EEOC's position, so the EEOC's view  became the Postal Service's final agency  decision. See 42 U.S.C. sec.2000e-16(b); 29  C.F.R. sec.sec. 1614.109, 1614.110.) But the  Postal Service did not promote Watson. His  existing position as a supervisor of customer  services had been reclassified to pay grade EAS-16  before the EEOC issued its decision, and the  Postal Service concluded that this was just as  good as promoting him. It gave Watson back pay,  but only to the day when he began receiving pay  at the EAS-16 rate. He protested to the EEOC, which  initially found that he had received his due. But  after an administrative appeal the Commission  concluded that the record did not permit a  confident decision whether the positions of  Supervisor, Customer Services, and Manager,  Customer Services, are equivalent. It directed  the Postal Service to address that question and,  if the positions are not equivalent, to promote  Watson and afford him "all benefits for make-  whole relief (including, but not limited to,  backpay and interest)." After the Postal Service  informed Watson that it would do nothing further  for him, he filed this civil action under  sec.2000e-16(c), seeking enforcement of the 1993  decision. Whether sec.2000e-16(c) or the APA, 5  U.S.C. sec.706(1), is the right avenue for a  dispute of this kind, see West v. Gibson, 527  U.S. 212, 219 (1999), is an issue that the  parties have not addressed, and that we likewise  bypass.


2
After a bench trial, the district court  concluded that the two positions are not  equivalent--not only because one is higher than  the other in the chain of command, but also  because the duties and often the salaries differ.  It directed the Postal Service to give Watson the  next managerial EAS-17 job that becomes available  in its Northern Illinois District, and to give  Watson the benefits of an EAS-17 position until  that promotion occurs. But the court declined to  award Watson back pay, or to determine what other  benefits (including, perhaps, promotion to EAS-18)  Watson would have received had he been promoted  in 1990, as he should have been. Accepting the  Postal Service's argument, the district court  concluded that all forms of relief other than  promotion were forfeited when Watson's lawyer  failed to file a timely brief in support of his  appeal within the EEOC. Under the EEOC's  regulations, "[a]ny statement or brief in support  of the appeal must be submitted to the Director,  Office of Federal Operations, and to the agency  within 30 days of filing the appeal." 29 C.F.R.  sec.1614.403(d). (Section 1614.403 has been  rewritten, effective November 9, 1999, see 64  Fed. Reg. 37644, 37659 (July 12, 1999), but the  change does not alter the substance of the quoted  provision.) Watson filed his appeal on October  24, 1995, but did not submit a supporting  statement until December 4, 1995. The Commission  elected not to consider the untimely statement  (or a second, wildly out-of-time statement  received in April 1996). Because the EEOC  disregarded Watson's statements, the district  judge concluded, Watson has not exhausted his  administrative remedies with respect to the  issues discussed in the statements.


3
On appeal, the Postal Service has confessed  error on the subject of exhaustion. In evaluating  this new position, we must distinguish two  possibilities. First, it may be unnecessary for  an appellant ever to present arguments on  administrative appeal within the EEOC. That is to  say, "issue exhaustion" may be unnecessary, even  though it is essential to file with the agency a  charge that makes the basic claim of  discrimination. The Supreme Court recently  reached this conclusion with respect to the  Appeals Council of the Social Security  Administration, see Sims v. Apfel, 120 S. Ct.  2080 (2000), and because sec.1614.403(d) is an  invitation rather than a command to file a  statement, the EEOC may receive similar treatment.  Second, it may be unimportant what the appellant  files if the agency has addressed an issue. That  is to say, an issue may be deemed exhausted if  either presented to the EEOC in a statement or  actually addressed by the agency. An issue  neither presented in a statement nor decided by  the agency would not be preserved for judicial  review--although even then the agency's lawyers  could forfeit the benefits of the private party's  forfeiture, because an issue-exhaustion  requirement is not jurisdictional. See Sims, 120  S. Ct. at 2083 n.1; Gibson v. West, 201 F.3d 990,  993-94 (7th Cir. 2000). (There is a third  possibility--that because a federal employee may  obtain de novo consideration under sec.2000e-  16(c) without protesting to the EEOC about the  employer's noncompliance, it does not matter what  happened before the EEOC in 1995 and 1996. But  perhaps an employee who chooses to complain  within the bureaucracy must give the agency a  reasonable opportunity to investigate and decide.  We put this third possibility to one side, as the  parties have not addressed it.)


4
We assumed in Gibson that an employee engaged  in administrative adjudication must specifically  identify each form of relief the employee seeks.  Whether Sims justifies a different view is a  difficult question. The Court relied on the fact  that the Social Security Administration made  optional a statement of grounds in support of an  administrative appeal; sec.1614.403(d) also  sounds optional. But all nine Justices also  agreed that it is ordinarily essential to raise  each issue before the agency, and Justice  O'Connor, whose vote was essential to the  majority in Sims, explained her position in a way  suggesting that the Social Security  Administration is unique. That agency invited  appellants to include a statement of reasons  within the request for review and provided only  three lines for that purpose. According to the  Social Security Administration, completing the  form requires only 10 minutes. The tiny space and  short time implied to Justice O'Connor that the  Social Security Administration discourages  appellants from providing reasons and thus must  proceed without them. The EEOC, by contrast, gives  appellants 30 days to file a separate statement  in the nature of an appellate brief. It neither  discourages the filing of such statements nor  implies that grounds will be short and easy to  present. Section 1614.403(d) allows the agency to  file a statement in reply. All of the Justices in  the Sims majority deemed it important that the  Appeals Council used inquisitorial rather than  adversarial procedures. See also Johnson v.  Apfel, 189 F.3d 561 (7th Cir. 1999) (anticipating  the holding of Sims). The process the EEOC has  adopted for claims against federal agencies looks  more adversarial. Even after Sims, then, it  remains a distinct possibility that failure to  file a statement in support of an appeal to the  EEOC forfeits all arguments--or at least that the  EEOC may deem the omission a forfeiture if it  chooses.


5
We need not decide what happens when the EEOC  treats a subject as forfeited, or what happens  when a line of argument is neither raised before  nor addressed by that agency. For although the  EEOC elected to disregard the two statements  Watson filed, it did not say that his delay  forfeited entitlement to any element of relief.  On the contrary, the EEOC discussed back pay,  found the record inadequate, and directed the  Postal Service to address the issue anew and  afford Watson "all benefits for make-whole relief  (including, but not limited to, backpay and  interest)." The EEOC also directed the Postal  Service to determine "what EAS level [Watson]  would now be assigned if he had not been  wrongfully denied the position in 1990." Because  the Postal Service agreed back in 1993 to his  promotion with back pay and interest, Watson is  entitled to judicial review of his contention  that the Postal Service failed to implement that  decision.


6
Watson seeks an additional form of relief compensatory damages on account of the Postal  Service's failure to implement the EEOC's  decision, a failure that Watson describes as  retaliation for his continued efforts to secure  promotion and back pay. Here, however, Watson's  forfeiture is complete. He did not present a  retaliation claim to the EEOC. A second charge of  discrimination was unnecessary, see McKenzie v.  Illinois Department of Transportation, 92 F.3d  473, 482-83 (7th Cir. 1996); Malhotra v. Cotter  & Co., 885 F.2d 1305, 1312 (7th Cir. 1989), but  because the EEOC was the adjudicator as well as  the investigator Watson had to alert it to his  theory, yet did not. The Commission did not raise  or adjudicate the subject on its own, did not  conclude that Watson is the victim of  retaliation, and did not order the Postal Service  to provide any relief. Watson's claim of  retaliation surfaced for the first time in the  district court, which is too late.


7
The Postal Service contends that remand is  unnecessary even with respect to back pay and the  appropriate EAS grade, asserting that Watson has  received full relief. Perhaps the record would  support that conclusion, but the district court  did not reach it. The only view the district  judge announced on these subjects is that Watson  had forfeited them. By directing the Postal  Service to promote Watson to a manager's position  as quickly as possible (and to increase his grade  level to EAS-17 until the promotion occurs) the  district judge implied that back pay, at least,  may well have been appropriate had the request  been preserved. Given our conclusion that the  request has been preserved, the district judge  must determine whether Watson is entitled to  additional relief, and if so to what particular  relief. Only after that decision has been made  will it be appropriate to decide whether the  record supports the judgment.

Reversed and Remanded
