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

                                                 FILED
                                                                         November 27, 2009

                                     No. 09-60401                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



DAVID ATKINS,

                                                   Plaintiff-Appellant,
v.

DIRK KEMPTHORNE, Secretary, Department of the Interior,

                                                   Defendant-Appellee.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                           U.S.D.C. Case No. 07CV314


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant David Atkins appeals the district court’s grant of the
Department of the Interior’s (“DOI”) motion to dismiss. The district court found
that it lacked jurisdiction over his Rehabilitation Act discrimination claim
because he failed to exhaust his administrative remedies prior to filing suit. We
AFFIRM, and modify to reflect dismissal without prejudice.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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       I.      BACKGROUND
       Atkins began his employment with the DOI’s National Park Service as a
Park Ranger on May 12, 1984. In 1986, Atkins was diagnosed with Type I
diabetes.      On June 27, 2000, pursuant to the National Park Service’s
Occupational Medical Standards, Atkins was found not medically qualified to
perform the essential functions of his job due to his poor vision and uncontrolled
diabetes. On July 31, 2002, Atkins was granted a medical waiver from the
Medical Review Board (“MRB”), with specific conditions that he was ordered to
follow. In 2003, the MRB once again conducted a medical review and again
found that Atkins could not perform the essential functions of his job due to his
poor vision and diabetes. The MRB granted him another medical waiver on
June 30, 2003.
       Atkins came under medical review yet again in 2005, and once again, the
MRB concluded that he was not medically qualified to complete the essential
functions of his job. This time, however, the MRB declined to issue another
waiver–due to Atkins’ non-compliance with the conditions imposed in the
previous medical waivers. On August 12, 2005, Atkins received a Medical Board
of Review Determination Memorandum informing him of the denial of his
requested waiver of his medical condition. Consequently, his employment as a
law enforcement employee was terminated on September 6, 2005, and he was
offered a Staff Ranger position. He accepted that position and still holds the
position today.
       Atkins alleges that this downgrade violated Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794(a) (1994).1 He filed a complaint with the
DOI’s Equal Employment Office (“EEO”) to challenge his downgrade. After a

       1
         Section 504 provides that “[n]o otherwise qualified individual with a disability ... shall,
solely by reason of his or her disability ... be subjected to discrimination under any program
or activity receiving Federal financial assistance or under any program or activity conducted
by any Executive agency.” 29 U.S.C. § 794(a) (1994).

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hearing, the Administrative Judge issued his decision concluding that Atkins
had not been discriminated against based on his alleged disability, and on July
2, 2007, the DOI issued its Final Agency Decision affirming the Administrative
Judge’s finding.   Atkins appealed that decision to the Equal Employment
Opportunity Commission (“EEOC”) on August 6, 2007.
      On December 14, 2007, only 130 days after filing with the EEOC, he filed
the instant action in the district court. The DOI filed a Motion to Dismiss
arguing that the district lacked subject matter jurisdiction because Atkins had
failed to exhaust his administrative remedies. On March 2, 2009, the district
court dismissed Atkins’ complaint with prejudice for failure to properly exhaust
his administrative remedies. Atkins appeals.
      II.    ANALYSIS
             A.    STANDARD OF REVIEW
      This Court reviews the district court’s grant of a motion to dismiss
pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, including the
determination of whether the exhaustion requirement is satisfied, de novo.
Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir.2006); Herbert v. United States, 53
F.3d 720, 722 (5th Cir. 1994) (“We review de novo a district court’s granting of
a motion to dismiss for lack of subject matter jurisdiction.”).
             B.    ATKINS’ FAILURE TO EXHAUST
      A federal employee who wishes to sue for discrimination under Title VII,
the ADEA, or the Rehabilitation Act, must first exhaust his administrative
remedies. See Tolbert v. United States, 916 F.2d 245, 248 (5th Cir. 1990); 29
C.F.R. § 1614.407 (a federal employee otherwise eligible to proceed to district
court with    her Title    VII, ADEA, or Rehabilitation           Act employment
discrimination claim may only do so “[w]ithin 90 days of the Commission’s final
action on appeal,” or “after 180 days from the date of the filing of an appeal with



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the Commission if there has been no final decision by the Commission”) 2 ; see also
Fitzgerald v. Sec 32, U.S. Dep’t of Veterans Affairs, 121 F.3d 203, 206 (5th Cir.
1997) (Before bringing suit under the Rehabilitation Act, an aggrieved federal
employee must exhaust the available administrative remedies).
       Atkins filed suit in the district court before the EEOC issued its “final
action” on his appeal, and before the 180 days had passed after the filing of his
appeal with the EEOC. Such a premature filing constitutes a failure to exhaust
administrative remedies and requires dismissal of the complaint for lack of
jurisdiction. Tolbert, 916 F.2d at 249; see also Prewitt v. United States Postal
Serv., 662 F.2d 292, 303-04 (5th Cir. 1981) (“[W]e must read the exhaustion of
administrative remedies requirement of section 501 into the private remedy
recognized by both section 501 and section 504 for federal government handicap
discrimination.”).
       Given that Atkins fully admits that he filed his complaint in the district
court 130 days after filing with the EEOC, and before the EEOC had issued its
“final action” on its appeal, it is quite clear that the district court did not err
when it dismissed Atkins’ complaint for lack of subject matter jurisdiction.3

       2
        The regulation our court interpreted in Tolbert was succeeded by 29 C.F.R. § 1614.407,
which applies the 90- and 180-day windows to claims under Title VII, the ADEA, and the
Rehabilitation Act.
       3
          On appeal, Atkins argues that the Supreme Court’s decision in Arbaugh v. Y&H
Corp., 546 U.S. 500 (2006), and this Court’s subsequent decision in EEOC v. Agro Distribution,
LLC, 555 F.3d 462 (5th Cir. 2009), both overrule Tolbert’s holding that the exhaustion of
administrative remedies is a jurisdictional prerequisite. This argument is completely
unavailing and contains no merit. The fact that the Arbaugh Court found that Congress did
not intend for the employee numerosity requirement in Title VII to be jurisdictional has
absolutely no bearing on this Court’s prior conclusion in Tolbert that Congress intended for
the exhaustion of administrative remedies to be a jurisdictional prerequisite to filing a civil
action in federal court. In Tolbert, we concluded that the exhaustion of administrative
remedies was jurisdictional through our adoption of the Third Circuit’s reasoning that:
“[a]bsent an indication of contrary congressional intent, we will not countenance
circumventing the administrative process in this manner.” Tolbert, 916 F.2d at 249 (quoting
Purtill v. Harris, 658 F.2d 134, 138 (3rd Cir. 1981). The fact that the Supreme Court has now
decided that the employee numerosity requirement contained within Title VII is not

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However, “[b]ecause we dismiss [his] clai[m] for lack of subject matter
jurisdiction, the district court’s decision must be modified to reflect a dismissal
without prejudice.” Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994).
       Thus, for the aforementioned reasons, we affirm the district court’s
decision to dismiss Atkins’ complaint, and we modify the district court’s
judgment to reflect dismissal without prejudice.




jurisdictional is of no relation to this Court’s conclusion in Tolbert that plaintiffs should not
be permitted to thwart congressional intent and circumvent the administrative process.


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