Appeal from the United States District Court for the Western District of Washington. Ricardo S. Martinez, District Judge, Presiding. D.C. No. 2:08-cv-00354-RSM.
The opinion of the court was delivered by: Tallman, Circuit Judge
Argued and Submitted January 14, 2010 -- Seattle, Washington.
Before: Andrew J. Kleinfeld, A. Wallace Tashima, and Richard C. Tallman, Circuit Judges.
John C. Carver ("Carver") is a former Assistant United States Attorney ("AUSA") who took an early buy-out from federal service in 1994. He filed a complaint under the Age Discrimination in Employment Act, 29 U.S.C. § 633a, against the United States Department of Justice ("DOJ" or "Department") after he sought to be rehired for a vacant position in 1996 with the United States Attorney's Office in Tacoma, Washington. A younger individual with less experience was selected to fill the vacancy. The Equal Employment Opportunity Commission ("EEOC") made a finding of age discrimination against the DOJ for its refusal to rehire Carver. The EEOC required, inter alia, that the DOJ offer Carver another AUSA position, pay him back wages and benefits he would have earned during his tenure, and issue a final report of compliance.
Though Carver originally agreed with the DOJ's method of calculating back pay and benefits, he was unsatisfied when the DOJ offset his award of accrued federal sick and annual leave with leave he was awarded during his interim public employment with the State of Washington and King County. He complained about the DOJ's calculation, but the EEOC announced it was satisfied with the payment of $262,304.16 to Carver and closed the file on his case. Carver then filed suit in the Western District of Washington for enforcement of the EEOC's determination, claiming that he was entitled to more -i.e., both the leave awarded to him at his other jobs and the leave that would have accrued had he been re-employed by the DOJ.
The district court originally denied the DOJ's motion to dismiss and held that Carver could bring suit for enforcement of the EEOC's award because the DOJ had not yet issued its final report of compliance. However, after the DOJ issued this report and sent it to the EEOC, the district court granted summary judgment against Carver, reasoning that, under 29 C.F.R. § 1614.503(g), it now lacked the ability to hear the case because Carver had received a favorable determination by the EEOC and the DOJ had fully complied with the requirements set forth in the EEOC's decision. Carver took the position that although he was suing to expand the EEOC's monetary award, he was merely seeking to enforce the remedy. He disclaimed that he was filing a de novo civil action which could potentially reopen both the administrative finding of liability for age discrimination and the remedy ordered by the agency.
Carver now appeals the district court's decision. Because the DOJ has fully complied with the EEOC's decision, and hence no portion of the order remains unenforced, Carver's only remedy is to bring the civil action he denies he is pursuing-a suit for de novo review of his claim. We hold that he cannot parse his action to increase the remedy without relitigating the liability issue in pursuing his claim in federal court. Therefore, we affirm the district court's determination that the DOJ is entitled to summary judgment.
Carver was an AUSA in the Western District of Washington from August 1985 until December 1994, and prior to that time he was employed in other positions elsewhere within the Department. In December 1994, he accepted a voluntary incentive payment of $25,000 during a buy-out period offered by the DOJ and subsequently left his AUSA position. Sometime after he left the United States Attorney's Office in Seattle, he accepted employment with two other public entities: first, with the Attorney General's Office for the State of Washington, and then later with the King County Prosecuting Attorney's Office in Seattle. Though he had already accepted the $25,000 buy-out from the DOJ, in 1996 he applied to return to federal service upon learning of a vacant AUSA position in Tacoma-also located in the Western District of Washington. He was not hired for the job and the vacancy was filled by an individual thirteen years his junior.
Carver brought his age discrimination complaint before the EEOC. Following an investigation into his claims, the case was heard by an Administrative Law Judge ("ALJ"). The ALJ found that the DOJ's reasons for not offering the position to Carver were mere pretext, and concluded that the DOJ had acted in a discriminatory manner. The DOJ rejected these findings and appealed the ALJ's determination to the full Commission.
On August 8, 2005, the Office of Federal Operations (the "OFO")-the appellate branch of the EEOC-issued its decision, which agreed with the ALJ's conclusion. It held that Carver had been the subject of age discrimination and ordered that the DOJ provide adequate relief to Carver. It instructed the DOJ, inter alia, to offer re-employment as an AUSA to Carver, as well as to determine the appropriate amount of back pay due him, including interest and other benefits. Additionally, the DOJ was required to submit a final report of compliance with documentation of its back pay and benefits calculations.
In response to the OFO's ruling regarding the AUSA position, the DOJ extended an offer of re-employment to Carver, which he accepted on November 8, 2005. After Carver had accepted the position, but before he returned to duty, the Department proposed the option of accepting a Voluntary Early Retirement buy-out that had been offered to eligible employees in 2005. Carver elected this option and declined his offer for ...