                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 14-1646


WALTER NIELSEN,

                  Plaintiff - Appellee,

           v.

CHUCK HAGEL, Secretary of Defense, Pentagon,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:13-cv-01581-LMB-JFA)


Argued:   September 20, 2016                 Decided:   November 15, 2016


Before KEENAN, FLOYD, and THACKER, Circuit Judges.


Vacated and remanded by unpublished opinion. Judge Keenan wrote
the opinion, in which Judge Floyd and Judge Thacker joined.


ARGUED: Lowell Vernon Sturgill, Jr., UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant.     Mindy Gae Farber,
FARBER LEGAL, LLC, Potomac, Maryland, for Appellee.    ON BRIEF:
Joyce R. Branda, Acting Assistant Attorney General, Marleigh D.
Dover, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Dana J. Boente, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellant.    Theodore P. Stein, FARBER LEGAL, LLC, Bethesda,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
BARBARA MILANO KEENAN, Circuit Judge:

       In   this      appeal,    we     consider    whether    the    district   court

erred    in     remanding       an    employment    discrimination      case   to   the

Department       of   Defense        (Department)   for   further      administrative

proceedings.          Walter Nielsen, an employee of the Department,

filed a pro se action in the district court under Title VII of

the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et

seq.    He asked the district court (1) to order the Department to

comply with its regulations for processing his equal employment

opportunity (EEO) complaint; and (2) to consider his substantive

allegations of employment discrimination.

       The district court concluded that the Department failed to

follow required procedures during its processing of Nielsen’s

administrative          complaint,      and   issued   an     order    remanding    the

matter to the Department for compliance with those procedures.

The district court also dismissed without prejudice Nielsen’s

substantive claims of discrimination alleged under Title VII.

Upon our review, we conclude that neither Title VII nor the

Administrative Procedure Act (APA), 5 U.S.C. §§ 701–06, provided

authority for the district court’s remand order.                        Accordingly,

we     vacate     the    district        court’s    order     remanding    Nielsen’s

administrative          claim    to     the   Department,     vacate    the    court’s

dismissal without prejudice of Nielsen’s substantive complaint



                                              3
under Title VII, and remand the case to the district court for

further proceedings.


                                        I.

        We begin with a discussion of the statutes and regulations

governing EEO claims brought by federal employees.

                                        A.

     Title VII prohibits employment discrimination on the basis

of “race, color, religion, sex, or national origin.”                        42 U.S.C.

§ 2000e-2.       These substantive protections are applicable to the

actions of federal executive agencies, such as the Department of

Defense, as well as to the actions of private entities.                       See id.

§ 2000e-16(a).

     A federal employee alleging a violation of Title VII must

first    raise     the     issue   within       his   agency.        Initially,   the

aggrieved employee must consult with an EEO counselor in the

employee’s       federal     agency   within       45   days    of    the   allegedly

discriminatory act.          29 C.F.R. § 1614.105(a).           The EEO counselor

is required to conduct an initial counseling session, during

which the counselor must inform the aggrieved party in writing

of his rights and responsibilities, and offer the employee the

option of pursuing alternative dispute resolution (ADR).                          Id.

§ 1614.105(b)(1), (2).             If the aggrieved party opts to pursue

ADR, the EEO counselor must conduct a “final interview” with the


                                            4
aggrieved party within 90 days of the initial interview. 1                           Id.

§ 1614.105(d), (f).          If the matter has not been resolved at the

end    of   this    90-day     “pre-complaint            processing     period,”     the

counselor must issue a written notice of right to file a formal

complaint within the agency.            Id. § 1614.105(d)–(f).

      When the pre-complaint processing period has expired, and

the notice of right to file a formal complaint has been issued,

the aggrieved party must file a formal complaint within 15 days

of    receiving     notice     from    the       agency.      Id.     §§ 1614.105(d),

1614.106(b).         The     agency     may      dismiss     untimely     complaints,

although the 15-day time limit is subject to “waiver, estoppel,

and equitable tolling.”         29 C.F.R. § 1614.604(c).

      After the agency issues a final decision or dismissal of

the employee’s administrative complaint, the aggrieved party may

appeal      the    decision     to     the       Equal     Employment     Opportunity

Commission (EEOC), or may file a civil action under Title VII in

federal district court.               See 42 U.S.C. § 2000e-16; 29 C.F.R.

§§ 1614.110,       1614.401.      Any    such      civil    action    must   be    filed

within 90 days of the agency’s final action or, if an appeal

with the EEOC is filed, within 90 days of the EEOC’s final

      1If the aggrieved employee opts not to pursue ADR, the EEO
counselor must conduct the final interview within 30 days of the
initial counseling session, or extend the period by no more than
60 additional days with the agreement of the aggrieved employee.
29 C.F.R. § 1614.105(d), (e).



                                             5
decision.        42    U.S.C.     § 2000e-16(c);     29    C.F.R.    § 1614.407(a),

(c).    In addition, the regulations provide an opportunity for

the aggrieved party to file a civil action under Title VII in

the district court if the agency fails to issue a final decision

within 180 days of receiving the formal complaint, or if the

EEOC fails to rule on an appeal within 180 days of its filing.

29   C.F.R.    § 1614.407(b),        (d).       Finally,     the    APA   provides   a

remedy for judicial review of “[a]gency action made reviewable

by statute and final agency action for which there is no other

adequate      remedy    in    a   court.”       5   U.S.C.    § 704.      With   this

statutory and regulatory scheme in mind, we turn to the facts of

the present dispute.

                                         B.

       Walter Nielsen is a Latino employee of the Department of

Defense,    in    the    Pentagon     Renovation     and     Construction    Program

Office (PENREN).         Nielsen alleged that while employed at PENREN

from April 2000 to April 2010, he was subjected to a pattern of

employment discrimination.            In early 2010, Nielsen applied for a

position within PENREN that provided a higher pay grade than his

existing position.           Nielsen alleged that, despite being the most

qualified applicant, he was denied the promotion on the basis of

his Latino heritage.

       Nielsen filed an informal grievance with the Department on

May 25, 2010.         At the initial counseling session, Nielsen agreed

                                            6
to pursue resolution of his grievance through the ADR procedures

prescribed        by    29   C.F.R.       § 1614.105(b)(2).          However,       certain

scheduling conflicts prevented the ADR process from occurring

within      the        prescribed     90-day        time     limit      in    29    C.F.R.

§ 1614.105(f).               These     scheduling          conflicts     included      the

unavailability of Nielsen’s supervisor to participate in the ADR

process at the beginning of the 90-day pre-complaint counseling

period, and the fact that Nielsen took emergency leave near the

end of the counseling period, from August 9 to August 20, 2010,

to   tend   to     matters     in    Texas    relating       to   his   mother’s      final

illness and death.

      On August 18, 2010, while Nielsen was still in Texas and

five days before the 90-day pre-complaint counseling period was

set to expire, the Department issued a notice informing Nielsen

of   his    right       to   file     a    formal    complaint       within    15    days.

However, the Department did not conduct a final interview or

produce a written counselor’s report, both of which are required

by Department procedures.

      Attached to the Department’s notice to Nielsen was a copy

of DD Form 2655, the Department’s official form for filing a

formal EEO complaint.               DD Form 2655 includes instructions that

provide:

      Your complaint must be filed within 15 calendar days
      of the date of your final interview with the Equal
      Employment Opportunity Counselor.  If the matter has

                                              7
      not been resolved to your satisfaction within 30
      calendar days of your first interview with the Equal
      Employment  Opportunity  Counselor   and  the  final
      counseling interview has not been completed within
      that time, you have the right to file a complaint at
      any time thereafter up to 15 days after the final
      interview.

      These time limits may be extended if you show that you
      were not notified of the time limits and were not
      otherwise aware of them, or that you were prevented by
      circumstances beyond your control from submitting the
      matter within the time limits, or for other reasons
      considered sufficient by the agency.

(emphasis added).         After attending his mother’s funeral, Nielsen

returned to work on August 23, 2010.                     One day later, on August

24, 2010, Nielsen received a certified mailing informing him of

his right to file a formal EEO complaint, and an email notifying

him   that    the    15-day    period     to     file    such     a    complaint      began

running as of that day.

      During     a     portion     of    this     15-day        period,     Nielsen     was

required to report for jury duty.                       On September 7, 2010, the

day before his formal complaint was due, Nielsen requested an

extension of time to file his EEO complaint.                          He spoke with his

EEO   counselor,        citing     his   jury         service    and      his   increased

workload after returning from emergency leave.                            The counselor

advised      Nielsen    that     although       the    filing     deadline      could    be

extended,      the     counselor    could       not     guarantee       that    Nielsen’s

formal complaint would be accepted after the deadline.                           Nielsen

ultimately submitted his formal EEO complaint on September 28,



                                            8
2010, 35 days after receiving notice of his right to file the

complaint.

       The Department dismissed Nielsen’s complaint as untimely,

without considering its merits.                 The dismissal was based on a

finding that Nielsen had “not provided sufficient evidence to

show that because of [Nielsen’s] workload, death of [Nielsen’s]

mother,      or    jury      duty[,]   [Nielsen    was]       unable     to   meet   the

deadline of September 8, 2010.”                  Nielsen filed an appeal from

this    decision       to    the   EEOC,   which   affirmed       the     Department’s

dismissal of the EEO complaint.

       Nielsen later filed a pro se action under Title VII in the

district court, alleging that he had suffered from employment

discrimination, and that the Department had failed to follow its

own    procedures       in    processing    his    EEO    complaint.          Nielsen’s

pleadings         in   the    district     court   further       alleged      that   the

Department’s “disturbing number of procedural errors and process

irregularities”           prevented    Nielsen     from       properly     filing    his

discrimination complaint with the Department.

       The government filed a motion to dismiss or for summary

judgment.         In its motion, the government argued that Title VII

does not authorize a private right of action for irregularities

in     the   administrative         processing     of     a     grievance      alleging

employment discrimination, that the Department complied with all



                                            9
relevant procedural regulations, and that Nielsen had failed to

exhaust his administrative remedies.

       After     a     hearing       on     the     motion,       the    district      court

determined      that    the    Department’s          email      notice    of    August   24,

2010,    was    insufficient          to    qualify       as    the   “final     interview”

required by regulation.                Concluding that Nielsen had not been

afforded the procedural rights to which he was entitled, the

district court held that the “appropriate way to handle this

case is to remand it back to the [Department’s EEO Programs

Office],       [and]    let    the    plaintiff          get    his   interview.”        The

district     court     also    held        that    the    mandatory      final    interview

would afford Nielsen “a new 15-day time period to file his [EEO]

complaint,” and entered an order remanding the matter to the

Department and dismissing Nielsen’s substantive discrimination

claims without prejudice.              The government timely appealed.


                                             II.

        We   first      address           Nielsen’s       argument       that     we     lack

jurisdiction to review the district court’s order because it is

not a “final decision,” within the meaning of 28 U.S.C. § 1291.

Generally, this Court only reviews appeals from “final decisions

of the district courts.”                   28 U.S.C. § 1291.            However, we also

have    jurisdiction      to     review      “collateral”         orders    that    satisfy

three    requirements.           To    qualify       as    an    appealable      collateral


                                              10
order, an order must (1) “conclusively determine the disputed

question”; (2) “resolve an important issue completely separate

from     the   merits      of    the     action”;        and    (3) be       “effectively

unreviewable on appeal from a final judgment.”                          Stringfellow v.

Concerned      Neighbors        in    Action,      480     U.S.       370,   375   (1987)

(citation omitted); see also Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546–47 (1949).

       We have held that the collateral order exception applies to

appeals    brought    by    an       agency    challenging        a   district     court’s

order that, by its terms, would require the agency to conduct

administrative proceedings under a legal standard with which the

agency disagrees.          Shipbuilders Council of Am. v. U.S. Coast

Guard, 578 F.3d 234, 239 (4th Cir. 2009).                             An order of this

nature     compelling       agency       action       under       disputed      standards

qualifies as a collateral order because it would be “effectively

unreviewable” following a resolution of the merits of the case

on remand.      Id. at 240 (quoting W. Va. Highlands Conservancy,

Inc. v. Norton, 343 F.3d 239, 244 (4th Cir. 2003)).

       The district court’s order in the present case is analogous

to the effectively unreviewable order in Shipbuilders Council

because, contrary to the Department’s interpretation of its own

EEO procedures, the present order would require the Department

to   afford    Nielsen      additional         time   to       file    his   formal   EEO

complaint.       We     conclude,       therefore,       that     the    present    order

                                              11
satisfies all three of the above requirements to qualify as a

reviewable collateral order.                 See Stringfellow, 480 U.S. at 375;

Shipbuilders      Council,         578     F.3d    at    240.            First,      the       district

court’s     order          “conclusively       determine[d]”               that          Nielsen      is

entitled    to    a    final       interview      with        an    EEO       counselor         at   the

Department.       See Stringfellow, 480 U.S. at 375.                                     Second, the

court’s     order      resets        the     time       allowed          to     file       a    formal

employment       discrimination            complaint          with        the       Department,        a

potentially      dispositive          issue       “completely             separate         from      the

merits” of Nielsen’s discrimination claim.                               See id.          And third,

because the Department lacks the ability to appeal from its own

decisions,       the         district        court’s          order           is         “effectively

unreviewable” regarding the actions that the court ordered the

agency to take on remand.                   See id.           Accordingly, we hold that

the district court’s remand order is a collateral order that we

presently have jurisdiction to review.


                                             III.

      We turn to consider whether the district court erred by

remanding Nielsen’s administrative complaint to the Department,

and    by     dismissing             without        prejudice                 his        substantive

discrimination         claims        filed    in        the        district         court.           The

government       argues       that       Nielsen’s       allegations                of    procedural

deficiencies          in     the     administrative                EEO     process          are      not


                                              12
cognizable as a “standalone” claim under either the APA or Title

VII. 2       We agree with the government that neither of these sources

of law authorizes the filing of a “standalone” claim challenging

procedural          deficiencies      in    an     agency’s      handling      of    an   EEO

complaint.

                                              A.

         The APA provides for judicial review of “[a]gency action

made reviewable by statute and final agency action for which

there is no other adequate remedy in a court.” 5 U.S.C. § 704.

The portion of Section 704 addressing “final agency action for

which there is no other adequate remedy in a court” is available

only         when   Congress   has    not     otherwise       provided      “special       and

adequate review procedure[s]” for an agency action.                             See Bowen

v.   Massachusetts,        487     U.S.     879,      903   (1988).      The    remedy      of

judicial        review   in    this    part      of    Section    704    also       has   been

described as a “default” remedy under the APA.                           Women’s Equity

         2
       The government argued in the district court that Nielsen’s
district court complaint alleged only procedural deficiencies
and did not allege a substantive Title VII claim.        However,
because the government did not raise this argument in its
opening brief, that argument is waived. See Elderberry of Weber
City, LLC v. Living Ctrs.-Se., Inc., 794 F.3d 406, 415 (4th Cir.
2015).     In any event, Nielsen’s pro se complaint, which
discussed the substantive claims in a section titled “Pertinent
Backstories” and attached his substantive claims originally
filed within the Department, should be liberally construed to
include the same substantive Title VII claims alleged in his
administrative complaint.    See Kerr v. Marshall Univ. Bd. of
Governors, 824 F.3d 62, 72 (4th Cir. 2016).



                                              13
Action League v. Cavazos, 906 F.2d 742, 750–51 (D.C. Cir. 1990).

This remedy ordinarily is not available when a different statute

provides “an opportunity for de novo district-court review” of

an agency decision.     See Garcia v. Vilsack, 563 F.3d 519, 522

(D.C. Cir. 2009) (quoting El Rio Santa Cruz Neighborhood Health

Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1270

(D.C. Cir. 2005)); see also Women’s Equity Action League, 906

F.2d at 750–51.

     We   conclude   that   these    principles   apply   irrespective

whether the alleged discriminating entity is a private party or

a governmental agency.      As we have explained above, Title VII

provides a private cause of action in district court when a

federal employee is “aggrieved by the final disposition of his

[EEO] complaint.”     42 U.S.C. § 2000e-16(c).     Such an employee-

plaintiff is entitled to litigate the civil action de novo in

the district court on his substantive claim of discrimination. 3

See Chandler v. Roudebush, 425 U.S. 840, 861 (1976).          Because



     3 We disagree with the government’s contention that our
decision in Georator Corp. v. Equal Employment Opportunity
Commission, 592 F.2d 765 (4th Cir. 1979), requires dismissal of
Nielsen’s district court complaint. Our holding in Georator was
based on the finality requirement of Section 704, which is not
at issue in this case. We held that the APA does not permit an
employer to seek review of an EEOC determination that was not a
“final agency action.” See id. at 767–68 (explaining that “[n]o
such finality exists” with respect to the challenged EEOC
determination).



                                    14
the agency in a Title VII civil action is not entitled to any

deference to its findings of fact or conclusions of law, see

id., any procedural errors by the agency’s EEO office generally

will have no impact on the de novo district court proceedings,

unless the agency raises a defense that the plaintiff failed to

exhaust       administrative          remedies.             Moreover,     in        that

circumstance, the agency’s failure to observe its own procedural

requirements     will     only    be    relevant       to    resolution       of    that

affirmative defense, not to the question whether the plaintiff’s

substantive complaint has merit.                 We therefore conclude that the

cause   of    action     provided      by    Title    VII   afforded     Nielsen      an

“adequate      remedy”     of    judicial         review    for    his   claims       of

employment discrimination, thereby precluding judicial review of

the Department’s action under Section 704 of the APA.

                                            B.

       Because   the     APA     did    not      provide     the   district        court

authority to review the Department’s alleged violation of its

own EEO procedures, we next address whether the district court’s

remand directive was an available remedy under Title VII.                            The

provisions of Title VII authorize a district court to order a

wide range of injunctive relief, but only “[i]f the court finds

that    the    [employer]       has    intentionally         engaged     in    or    is

intentionally      engaging      in     an       unlawful    employment       practice

charged in the complaint.”             42 U.S.C. § 2000e-5(g)(1); see also

                                            15
id. § 2000e-16(d) (“The provisions of section 2000e-5(f) through

(k) of this title, as applicable, shall govern civil actions

brought [by federal employees].”).                             Accordingly, we read the

plain language of Title VII as authorizing a district court to

order relief only after a plaintiff has proved a substantive

claim of unlawful discrimination, which did not occur in the

present case.

      We additionally conclude that Title VII does not provide an

implied    cause        of   action         permitting        a     plaintiff    to      challenge

procedural      deficiencies            in      an      agency’s      handling      of      an     EEO

complaint.         As    the       Seventh      Circuit        has    explained,        a    federal

employee     may        only       challenge         under        Title   VII      an       agency’s

disposition of his substantive discrimination complaint.                                     Jordan

v.   Summers,      205       F.3d     337,      342     (7th      Cir.    2000).         Once      the

employee    files        a     Title      VII    action        in    district      court,        “any

earlier    mishandling              [of      the        administrative          complaint]          is

essentially moot.”              Id.       Thus, when there have been procedural

irregularities          in    an    agency’s         handling        of   an   employee’s          EEO

complaint, the employee does not have a right under Title VII to

file a separate procedural claim, but must seek redress for the

alleged    discrimination              by    filing       a    substantive       claim        to    be

adjudicated de novo in the district court.                                See id.; see also

Weick v. O’Keefe, 26 F.3d 467, 471 (4th Cir. 1994).



                                                   16
     Applying these principles to the present case, we conclude

that the district court lacked authority to remand this matter

to the Department to remedy any procedural deficiencies in the

processing of Nielsen’s administrative complaint.                      The district

court instead should have proceeded to consider the merits of

Nielsen’s substantive claims of discrimination, as well as any

defenses raised by the government to those substantive claims.


                                        IV.

     The government separately argues that the district court

should    have      dismissed      Nielsen’s       substantive       claims      with

prejudice,     because     Nielsen’s     alleged     noncompliance        with    the

Department’s     filing    deadlines     is    evidence     of   his    failure    to

exhaust his administrative remedies.               We decline to decide this

issue in the first instance, which is a defense asserted by the

government     in     response    to    the    substantive       allegations      of

Nielsen’s action under Title VII.

     We also observe that if the government raises an exhaustion

defense   on     remand,    the    issue      of   the   Department’s        alleged

mishandling      of    Nielsen’s       complaint     will    “come      to    life.”

Georator Corp. v. Equal Emp’t Opportunity Comm’n, 592 F.2d 765,

768 (4th Cir. 1979).         Nielsen will be afforded the opportunity

to argue that his formal complaint was timely filed because the

15-day period to file his formal complaint never began to run.


                                         17
See Weick, 26 F.3d at 469–70 (holding that the 15-day period to

file a formal complaint never began to run because the agency’s

failure to follow regulations caused the triggering event not to

occur).    And, in the event that the district court determines

that   Nielsen’s   complaint   was   not   timely   filed,   the   district

court also may consider whether any untimeliness on Nielsen’s

part should be excused on equitable grounds.         See id. at 470–71.


                                     V.

       For these reasons, we vacate the district court’s judgment,

reinstate Nielsen’s substantive Title VII complaint, and remand

the case for further proceedings consistent with the principles

expressed in this opinion.

                                                    VACATED AND REMANDED




                                     18
