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

                                                                            FILED
                                                                         October 21, 2008

                                     No. 08-30565                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


JONATHAN JAY PARKER

                                                  Plaintiff - Appellant
v.

BOARD OF SUPERVISORS UNIVERSITY OF LOUISIANA - LAFAYETTE

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                  for the Western District of Louisiana, Lafayette
                             USDC No. 6:07-CV-1760


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Jonathan Jay Parker appeals the district court’s judgment dismissing his
age discrimination suit. He alleges that the defendant university discriminated
against him based on his age when it barred him from trying out for its football
team. Because Parker failed to provide the statutorily required notice for such
a suit, the district court dismissed his claim. For the reasons that follow, we
affirm the judgment of the district court.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-30565

            I. FACTUAL AND PROCEDURAL BACKGROUND
       Earlier this year, we considered a related issue in Parker’s same age
discrimination suit, in which he seeks compensatory and punitive damages
totaling $7,000,000. Parker v. Bd. of Supervisors Univ. of Louisiana-Lafayette,
270 F. App’x 314 (5th Cir. 2008). There, we described in detail the facts giving
rise to Parker’s suit.1 Here, we briefly restate the basis for Parker’s claim before
laying out the currently relevant facts.
       In 2001 and at the age of thirty-one, Parker attempted to try out for the
University of Louisiana-Lafayette’s (the “University”) football team, but the
coach allegedly told Parker that he was too old for the ranks of the Ragin’
Cajuns. Parker then filed an age discrimination claim, which the district court
dismissed for failure to exhaust administrative remedies. His subsequent
pursuit of administrative remedies resulted in the University’s then-president,
Ray Authement, signing a Commitment to Resolve the claim (the “CTR”) that
was negotiated with the United States Department of Education, Office for Civil
Rights (“OCR”).
       Six years later and proceeding pro se, Parker refiled his age discrimination
complaint, which the district court dismissed as barred by the applicable statute
of limitations. Because the record did not reveal any facts following the signing
of the CTR, we remanded the case for the district court to determine if Parker
satisfied the statutory requirements to bring such a suit, including exhausting
administrative remedies and providing notice to the proper individuals. Id. at
316, 318; see 42 U.S.C. § 6104(e)–(f); 34 C.F.R. § 110.39.
       In attempting to demonstrate that he met the statute’s prerequisites,
Parker submitted to the district court an explanatory memorandum with


       1
        We also noted that, although Parker seeks $7,000,000, he may only be entitled to
attorney’s fees and the costs of bringing this ADA action. Id. at 318 n.3 (citing 34 C.F.R.
§ 110.39(b)).

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attached exhibits. The exhibits included: (1) an October 9, 2001 letter from OCR
stating that “OCR has determined that the discrimination complaint is complete
and that OCR has jurisdiction”; (2) a July 2, 2004 letter from OCR informing
Parker that “the University has successfully completed all action items
committed to in the [CTR],” including writing two “invitations for [Parker] to try
out for its football team”; (3) an April 4, 2001 letter from Parker to President
Authement describing the alleged incident of age discrimination and indicating
that Parker planned to file suit in federal court; (4) a September 4, 2001 letter
from Parker to a regional director of OCR requesting OCR’s investigation into
the University’s alleged discrimination and stating that Parker “sent a copy of
all paper work to the U.S. Attorney General and the U.S. Secretary of Health
and Human Services”; and (5) a March 2, 2001 letter from Parker to the
University informing the University of Parker’s intent to file an age
discrimination suit.
      Based on these letters, the district court concluded that Parker failed to
meet the statute’s presuit requirements and dismissed his suit for lack of
jurisdiction.   The court held that although the letters were sufficient to
demonstrate that Parker exhausted his administrative remedies, they were
insufficient to satisfy the statute’s notice requirements. First, the district court
noted that the letters were not sent by registered mail and that they did not
“specifically set forth the relief requested or whether attorneys’ fees will be
sought.” And second, the district court held that Parker did not provide evidence
demonstrating that he sent notice to the Attorney General of the United States
and to the Secretary of Health and Human Services. Parker timely filed notice
of appeal. In it, he asserts that the doctrine of primary jurisdiction applies and
he prays that we vacate and remand with instructions to dismiss without
prejudice.
                               II. DISCUSSION


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       We review a dismissal for lack of jurisdiction de novo.                     Hager v.
Nationsbank N.A., 167 F.3d 245, 247 (5th Cir. 1999).
       In order to bring an age discrimination claim against a recipient of federal
financial assistance, such as the University, a plaintiff must satisfy two
requirements. First, the plaintiff must exhaust administrative remedies. 42
U.S.C. § 6104(f); 34 C.F.R. § 110.39(a). Second, the plaintiff “shall give notice by
registered mail not less than 30 days prior to the commencement of that action
to the Secretary of Health and Human Services, the Attorney General of the
United States, and the person against whom the action is directed.” 42 U.S.C.
§ 6104(e)(1); see also 34 C.F.R. § 110.39(b)(3)(iii) (“[T]he complainant shall give
30 days notice by registered mail to the Secretary [of the Department of
Education], the Secretary of Health and Human Services, the Attorney General
of the United States, and the recipient [of federal financial assistance] . . . .”).
       To exhaust his administrative remedies, Parker must have filed a
complaint with OCR, and OCR must have either (1) made no finding within 180
days of that filing or (2) made a finding in favor of the University. See 34 C.F.R.
§ 110.39(a)(1)–(2). Based on the letters submitted by Parker, we agree with the
district court’s conclusion that Parker did exhaust his remedies. He filed a
complaint with OCR, and as a result OCR entered into the CTR with the
University. Further, OCR informed Parker that the University satisfied all of
the CTR’s provisions and that OCR “consider[ed] this complaint closed.”
Although the record does not contain a letter from OCR notifying Parker of his
right to sue, he alleges that OCR verbally informed him of his right and pointed
him toward 34 C.F.R. § 110.39 for information regarding his right.2 Given that
Parker’s complaint resulted in the University’s instituting various policies in

       2
         As the district court noted, nothing in 34 C.F.R. § 110.39 requires that the notice of
a claimant’s right to sue be in writing. See 34 C.F.R. § 110.39(b)(2) (requiring that the
Department of Education promptly “advise[] the complainant of his or her right to bring a civil
action for injunctive relief”).

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conformance with the CTR, there is now little question that he exhausted his
administrative remedies.
      However, the record does not contain facts sufficient to show that Parker
provided adequate notice of his intention to file suit. According to 42 U.S.C.
§ 6104(e)(1), 30 days’ notice must be sent by registered mail to the Secretary of
Health and Human Services, the Attorney General of the United States, and the
person against whom the action is directed. Notice must also be sent to OCR,
as required by 34 C.F.R. § 110.39(b)(3)(iii).       The statute and regulation
additionally require that the notice “shall state the nature of the alleged
violation, the relief requested, the court in which the action will be brought, and
whether or not attorney’s fees are being demanded.” 42 U.S.C. § 6104(e)(2); see
also 34 C.F.R. § 110.39(b)(3)(iv). The district court held that Parker’s letters to
the University and to OCR failed to meet these requirements because they were
not sent by registered mail and they did not set forth the relief requested.
Further, the court held that Parker’s unsupported allegation that he sent notice
to the Attorney General and the Secretary of Health and Human Services, found
in his September 4, 2001 letter to OCR, failed to demonstrate that Parker in fact
sent notice to such parties. It then concluded that it lacked jurisdiction over
Parker’s claim.
      Again, we agree with the district court insofar as it concluded Parker did
not send sufficient notice to all proper parties; however, we need not go so far as
to characterize this necessary notice as a jurisdictional requirement. Parker’s
April 4, 2001 letter to Ray Authement may have been adequate notice for the
University: it describes the alleged violation; it states that Parker will file suit
in federal court; it seeks a “remedy [to] the discriminatory practices of the
University”; and it was, according to Parker, hand-delivered to Mr. Authement’s




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office.3 However, his September 4, 2001 letter to OCR was insufficient notice as
required by statute. The letter does not notify the agency of Parker’s intent to
file suit; instead, it describes Parker’s earlier, unsuccessful suit that was
dismissed for failure to exhaust administrative remedies and states that Parker
“will appeal [that] decision.” And finally, Parker relies on this letter to establish
that he sent proper notice to the Attorney General and the Secretary of Health
and Human Services. The letter states that he “also sent a copy of all paper
work to the U.S. Attorney General and the U.S. Secretary of Health and Human
Services,” and the record contains no other evidence that such notice was sent.
The letter on which Parker relies is, of course, unsworn and is not competent
summary judgment evidence. It amounts to no more than an unsubstantiated
assertion. See Grimes v. Tex. Dep’t of Mental Health & Mental Retardation, 102
F.3d 137, 139 (5th Cir. 1996) (“Needless to say, unsubstantiated assertions are
not competent summary judgment evidence.”). Accordingly, we must conclude
that Parker did not properly notify the Attorney General or the Secretary of
Health and Human Services. Thus, he failed to meet the statutory requirements
to filing his age discrimination claim.
       To reach this conclusion, we are not required to determine whether 42
U.S.C. § 6104(e)(1)–(2)’s required notice is a jurisdictional requirement or a
prerequisite to suit. Cf. Pacheco v. Mineta, 448 F.3d 787, 788 n.7 (5th Cir. 2006)
(describing the conflict in Title VII cases regarding whether exhaustion of
administrative remedies is a jurisdictional requirement or a prerequisite to suit,
with the former barring any further judicial review and the latter permitting




       3
        We assume without deciding that this letter was, in fact, sufficient notice to the
University. Indeed, this letter might be considered inadequate notice for various reasons: it
does not specify which federal court Parker intended to file suit in; it did not indicate that
“remedy[ing] the discriminatory practices of the University” was the specific goal of the
threatened litigation; and it was not sent by registered mail.

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equitable considerations). In either case, Parker has failed to demonstrate that
he met, or attempted to meet, the statute’s requirements.
      And finally, Parker’s contention that the doctrine of primary jurisdiction
applies is unpersuasive. That doctrine arises when properly adjudicating a
claim in federal court involves “some issue within the special competence of an
administrative agency,” and the doctrine requires the court to “enable a ‘referral’
to the agency” so that the parties may seek an administrative ruling on the
issue. Reiter v. Cooper, 507 U.S. 258, 268 (1993). Primary jurisdiction is
inapplicable here, where the sole issue is whether Parker satisfied the statutory
requirements to bringing his suit in federal court.
                              III. CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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