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

                                                                            FILED
                                                                        September 16, 2008

                                     No. 07-20874                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


JACK W DEVAUGHN, JR

                                                  Plaintiff - Appellant
v.

UNITED STATES POSTAL SERVICE, John E Potter Post Master General;
PATRICK KEYS

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                    for the Southern District of Texas, Houston
                              USDC No. 4:06-CV-3233


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff Jack Devaughn appeals the district court’s judgment dismissing
his employment discrimination case. Devaughn alleges that the defendants
discriminated against him in terminating his employment with the United
States Postal Service as a letter carrier. He did not, however, properly navigate
the procedural waters necessary to bring such a claim in federal court, and as



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-20874

a result the district court dismissed his claim for failure to exhaust
administrative remedies. For the reasons that follow, we affirm the judgment
of the district court.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       Devaughn was originally employed by the United States Postal Service
(the “Postal Service”) as a letter carrier in 1983. On February 5, 2003, the Postal
Service issued to Devaughn a “Notice of Proposed Removal” charging him with
failure to maintain a regular schedule, unsatisfactory work performance, and
failure to follow instructions. The Postal Service subsequently sent Devaughn
a “Letter of Decision” on March 12, 2003, confirming its decision to terminate
Devaughn’s employment.
       The Letter of Decision described Devaughn’s right to appeal his removal
to the Merit Service Protection Board (the “MSPB”) within thirty days of the
decision’s effective date. Further, the Letter of Decision informed Devaughn
that he could challenge his termination with either the MSPB or the Postal
Service’s Equal Employment Opportunity office by stating “[i]f you believe that
the action is based in whole or in part on discrimination, you have the option of
filing an appeal with the MSPB, or filing an EEO complaint with the Postal
Service, but not both.” The Letter of Decision also instructed that “[b]efore filing
an EEO complaint, you must bring the matter to the attention of [an EEO
counselor] within forty-five calendar days of the effective date of this decision.”
       Devaughn twice applied for pre-complaint counseling with an EEO
counselor—once on February 25, 2003, based on his proposed removal and once
on March 20, 2003, based on the Letter of Decision. He alleged that he was
improperly terminated on account of his race, sex, disability, and for engaging
in prior EEO activity.1 Because the Postal Service determined these applications


       1
         Devaughn is a black male whose claimed disability is suffering from anxiety and
bipolar disorder. His earlier EEO activity consists of two separate complaints, filed in 2000,

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were “like and related”—the first was based on Devaughn’s proposed removal
and the second on the final decision to remove him—Devaughn’s first application
was amended to include his second application.
       Meanwhile, Devaughn appealed his termination to the MSPB on April 8,
2003, before receiving a Notice of Final Interview from an EEO counselor or
filing a formal EEO complaint. On June 6, 2003, he received a Notice of Final
Interview stating that he had “the right to file a formal complaint within 15
calendar days of the date you receive this notice,” but it did not properly inform
him of his alternative right to appeal to the MSPB due to the “mixed”2 nature of
his claim.3 Nonetheless, Devaughn did not file a formal complaint with the
Postal Service EEO office within the stated fifteen days.
       On July 10, 2003, Devaughn voluntarily withdrew his MSPB appeal. The
Administrative Judge (“AJ”) therefore issued an initial decision dismissing
Devaughn’s appeal as withdrawn and indicating that the decision would become
final on August 14, 2003, unless Devaughn filed a petition for review by the
MSPB. The initial decision further emphasized that “[t]his is an important date
because it is usually the last day on which you can file a petition for review with
the [MSPB]” and warned “[t]hese instructions are important because if you wish
to file a petition [for review], you must file it within the proper time period.”
       After the AJ’s decision became final on August 14, Devaughn sought to
reinstate his MSPB appeal by a letter dated September 23, 2003, explaining that
his withdrawal was inadvertent. The MSPB indicated that it would treat the


that are otherwise unrelated to the present suit.
       2
        A case is “mixed” when it involves both an adverse employment claim appealable to
the MSPB and a claim of prohibited discrimination. See 5 U.S.C. § 7702; 29 C.F.R.
§ 1614.302(a).
       3
          The defendants concede that the June 6 Notice of Final Interview was partially
defective for not informing Devaughn of his alternative right to appeal to the MSPB, a right
he utilized on April 8, 2003.

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September 23 letter as a petition for review and instructed Devaughn that he
must file a motion showing “why there is good cause for the late filing” on or
before October 24, 2003. On October 24, however, Devaughn did not file such a
motion; instead, he filed a second appeal (of the same complained-of conduct)
with the MSPB. The MSPB denied Devaughn’s petition for review on June 25,
2004, noting that he never responded to its notice to show good cause.
       Regarding Devaughn’s second MSPB appeal, the AJ dismissed Devaughn’s
appeal without prejudice on December 17, 2003, because the petition for review
of his first appeal was still pending. After the MSPB denied Devaughn’s petition
for review, he sought to re-file his appeal. The AJ dismissed Devaughn’s re-filed
appeal on November 18, 2004, because the MSPB issued a final decision on
Devaughn’s earlier—and identical—appeal.                 This decision became final on
December 23, 2004.
       While pursuing his appeal with the MSPB, Devaughn additionally
challenged his dismissal on a parallel EEO track. On September 24, 2003, an
EEO counselor sent Devaughn a corrected Notice of Final Interview based on his
mixed claim. Devaughn then filed a formal EEO complaint with the Postal
Service on October 8, 2003. The Postal Service issued a Final Agency Decision
on September 22, 2004, dismissing Devaughn’s complaint because he previously
appealed his claim to the MSPB.4 Devaughn appealed this decision to the Equal
Employment Opportunity Commission (“EEOC”), and the EEOC determined his
complaint was properly dismissed. After that decision, Devaughn brought his
discrimination claim to the district court.
       In district court, the defendants filed a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure


       4
        See 29 C.F.R. § 1614.107(a)(4) (stating the agency shall dismiss a complaint “[w]here
the complainant has raised the matter . . . in an appeal to the [MSPB] and . . . the complainant
has elected to pursue the non-EEO process”).

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arguing that Devaughn failed to exhaust his administrative remedies under
Title VII of the Civil Rights Act of 1964. The district court determined that
Devaughn elected to administratively challenge his dismissal with the MSPB,
thus foreclosing his later attempt to utilize the avenue of an EEO complaint.
Further, because Devaughn voluntarily withdrew his MSPB appeal and failed
to timely file a petition for review, the district court held that Devaughn failed
to exhaust his administrative remedies with the MSPB. The district court also
denied Devaughn’s assertion that the defendants should be estopped from
arguing that he failed to exhaust his administrative remedies. The district court
granted the motion to dismiss and entered a final judgment dismissing the case.
Devaughn timely filed notice of appeal. In it, he argues that his pre-complaint
counseling constituted an election to pursue the EEO route and that the
defendants should be estopped because (1) the Letter of Decision did not state
he had a “mixed” claim and (2) the June 6 Notice of Final interview did not
inform him of his election rights.5
                                  II. DISCUSSION
A.     Standard of Review
       We review de novo the district court’s grant of a motion to dismiss under
Rule 12(b)(1) based on a failure to exhaust administrative remedies. Pacheco v.
Mineta, 448 F.3d 783, 788 (5th Cir. 2006). The district court’s decision not to
apply equitable estoppel, however, is reviewed for an abuse of discretion.
Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 528 (5th Cir. 2000).
B.     Failure to Exhaust Administrative Remedies
       A federal employee must exhaust his administrative remedies when bringing
suit under Title VII in federal court. Brown v. Gen. Servs. Admin., 425 U.S. 820,


       5
        Devaughn also seeks a review of the merits of his discrimination claim. However,
because he failed to exhaust his administrative remedies and estoppel relief does not apply,
the merits of Devaughn’s discrimination claim cannot be reviewed by the court.

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832–33 (1976). The administrative framework established to vet “mixed” cases
under Title VII begins with a single election by the employee: he may file a
mixed-case complaint with the agency’s EEO office or file a mixed-case appeal
with the MSPB, but not both. 29 C.F.R. § 1614.302(b). Whichever is filed first
is then considered the employee’s election, id., and once chosen, the employee
must exhaust his remedies in that forum, see Tolbert v. United States, 916 F.2d
245, 248 (5th Cir. 1990) (holding that a federal employee must exhaust the
elected avenue of administrative relief under Title VII actions).
      Devaughn argues that his requests for pre-complaint counseling constitute
an election to pursue the EEO route.         This is incorrect.     Pre-complaint
counseling is a prerequisite to filing a formal EEO complaint, 29 C.F.R.
§ 1614.105(a), but it does not take the place of filing a formal complaint. During
this counseling, the complainant is to be informed of his election rights under
§ 1614.302—that is, the right to file a mixed-case appeal with the MSPB or a
mixed-case complaint with the agency’s EEO office. Id. § 1614.105(b)(1). To
hold that pre-complaint counseling constitutes a § 1614.302 election would
render § 1614.105(b)(1)’s requirement superfluous and, as the district court
reasoned, seriously limit the complainant’s options by determining he elected
one route or the other before ever being informed of the choice.
      Because Devaughn appealed his mixed case to the MSPB before filing his
formal EEO complaint, he irrevocably elected the MSPB route and was required
to exhaust his remedies there. The combination of Devaughn’s withdrawal, his
untimely petition for review, and his silence in response to the MSPB’s order to
show good cause did not exhaust the remedies in the administrative forum he
elected. As we have noted, “abandonment of the administrative process may
suffice to terminate an administrative proceeding before a final disposition is
reached, thus preventing exhaustion and precluding judicial review.” Randel v.
U.S. Dep’t of the Navy, 157 F.3d 392, 397 (5th Cir. 1998) (emphasis omitted)
(quoting Vinieratos v. U.S. Dep’t of the Air Force, 939 F.2d 762, 770 (9th Cir.


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1991)). The district court therefore correctly determined that Devaughn failed
to exhaust his administrative remedies with the MSPB.
C.    Estoppel
      Devaughn further asserts that the defendants should be estopped from
alleging that he failed to exhaust his administrative remedies because (1) the
Postal Service’s Letter of Decision did not inform Devaughn he had a “mixed”
claim and (2) the June 6 Notice of Appeal did not notify Devaughn of his right
to elect to challenge his removal with the MSPB or through the EEO process.
      At the outset, we note that this court has recognized inconsistency in our
case law regarding whether a failure to exhaust Title VII administrative
remedies is a jurisdictional requirement or a prerequisite to suit, with the former
barring further judicial review of the matter and the latter permitting equitable
considerations such as estoppel. See Pacheco, 448 F.3d at 788 n.7 (“There is
disagreement in this circuit on whether a Title-VII prerequisite, such as
exhaustion, is a prerequisite to suit, and thus subject to waiver and estoppel, or
whether it is a requirement that implicates subject matter jurisdiction.”). The
Supreme Court has held that Title VII’s filing deadlines are prerequisites to suit,
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 96, 94–95 (1990), and at least one
other circuit has characterized the late re-filing of an MSPB appeal as a “failure
to timely exhaust administrative remedies” that is not a “jurisdictional
deficiency,” Harms v. IRS, 321 F.3d 1001, 1009 (10th Cir. 2003). Devaughn’s
failure to timely petition for rehearing may likewise be painted as a failure to
timely exhaust administrative remedies, thus providing jurisdiction to consider
his estoppel arguments. We need not specifically settle this matter, however,
because we hold that the district court did not abuse its discretion in denying
Devaughn relief through estoppel. See Pacheco, 448 F.3d at 788 n.7 (“Because
neither party has a winning waiver or estoppel argument, we need not take sides
in this dispute.”).




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                                    No. 07-20874

         Establishing equitable estoppel—a doctrine “rarely valid against the
government,” Taylor v. U.S. Treasury Dep’t, 127 F.3d 470, 474 (5th Cir. 1997)
(quoting United States v. Bloom, 112 F.3d 200, 205 (5th Cir. 1997))—requires
proof:
         (1) that the party to be estopped was aware of the facts, and
         (2) intended his act or omission to be acted upon; [and] (3) that the
         party asserting estoppel did not have knowledge of the facts, and
         (4) reasonably relied on the conduct of the other to his substantial
         injury.
Id. (alteration in original) (quoting United States v. Bloom, 112 F.3d 200, 205
(5th Cir. 1997)).     Further, when seeking to establish estoppel against the
government, a party must additionally demonstrate “affirmative government
misconduct.” Id.
         Estoppel cannot be established based on the Postal Service’s Letter of
Decision. This letter clearly informed Devaughn of his alternative rights to
appeal his removal to the MSPB or complain of his removal to the EEO office
despite the absence of any language specifically describing Devaughn’s claim as
“mixed.” The letter also warned Devaughn that the available avenues of
challenging his removal could not be simultaneously pursued. The district court
correctly concluded that the letter accurately apprised Devaughn of his election
rights without the necessity of specifically describing his claim as “mixed.”
Based on these facts, Devaughn does not meet the onerous requirements of
estoppel.
         Likewise, the incorrect Notice of Final Interview does not support an
estoppel argument. Although the notice failed to inform Devaughn of his right
to appeal his removal to the MSPB, the record demonstrates Devaughn exercised
his appeal right before ever receiving the faulty notice. Additionally, despite
Devaughn’s conclusive assertion that he detrimentally relied on the notice in
withdrawing his MSPB appeal, the record contains no facts supporting this
statement. On the contrary, the facts demonstrate Devaughn was made aware
of his election rights by the Letter of Decision. The AJ’s initial decision then


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advised Devaughn of the necessity of filing a petition for review before the
decision became final on August 14. Nonetheless, when given the opportunity
to show good cause for his untimely petition for review, Devaughn neglected to
assert that he relied in any way on the faulty notice in withdrawing his appeal.
For all of these reasons, the district court did not abuse its discretion in holding
that estoppel does not apply.
                                III. CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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