Andrew Farrar v. Bill Nelson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 19, 2021 Decided June 29, 2021
No. 19-5343
ANDREW H. FARRAR,
APPELLANT
v.
BILL NELSON, IN HIS OFFICIAL CAPACITY AS THE
ADMINISTRATOR OF THE NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-00846)
Kathryn A. Robinette, appointed by the court, argued the
cause as amicus curiae in support of appellant. With her on the
briefs was Matthew M. Collette, appointed by the court.
Andrew H. Farrar, pro se, argued the cause and filed the
briefs for appellant.
Katherine B. Palmer-Ball, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
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Before: SRINIVASAN, Chief Judge, WILKINS and WALKER,
Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge: Andrew Farrar sued NASA for
disability discrimination. The district court dismissed the
action because he accepted administratively-awarded damages
before filing suit. But NASA has pointed to no federal statute
or regulation that requires Farrar to return, or offer to return,
that money before suing in district court. We therefore reverse
the district court’s order and remand for further proceedings.
I
Andrew Farrar began working for NASA’s Equal
Opportunity and Diversity Management Division in 2010.
When NASA fired him five months later, he filed an
administrative action alleging disability discrimination under
the Rehabilitation Act of 1973, as amended. 29 U.S.C. §§ 791–794g.1
For the most part, Farrar prevailed. NASA’s Associate
Administrator for Diversity and Equal Employment issued a
Final Agency Action concluding that NASA had discriminated
against Farrar. NASA awarded him compensatory damages,
costs, and fees totaling just under $13,000.
Not satisfied with this award, Farrar appealed the Final
Agency Action to the Equal Employment Opportunity
Commission. See 29 C.F.R. § 1614.401(a). Again, Farrar
1
Farrar’s administrative complaint alleged disability discrimination,
failure to accommodate a disability, and retaliation. Farrar did not
bring a retaliation claim in district court.
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prevailed. See Farrar v. Bridenstine, EEOC Appeal No.
0120161456 (2018). The Commission agreed that NASA
discriminated against him and increased the amount NASA
would pay Farrar to about $35,000. Id. at 13. By default an
agency has 120 days after the Commission’s decision to pay an
employee damages, but here the Commission ordered NASA
to pay Farrar within 60 days. Id.; 29 C.F.R. § 1614.502(c).
After exhausting his administrative appeals, Farrar
enjoyed two options: “either accept the [Commission’s]
disposition and its award, or file a civil action” in district court.
Scott v. Johanns, 409 F.3d 466, 472 (D.C. Cir. 2005). Farrar
had 90 days after the Commission’s decision to file suit. 42
U.S.C. § 2000e-16(c).2 That put Farrar’s deadline to file suit
30 days beyond NASA’s deadline to pay him.
After NASA paid him, Farrar filed a civil action, alleging
disability discrimination under the Rehabilitation Act. But
because Farrar had already accepted and retained the monetary
award from NASA, the district court said “he does not get
another bite at the apple” and dismissed his case. Farrar v.
Bridenstine, No. 19-846, 2019 WL 4889251, at *2 (D.D.C.
Oct. 3, 2019).
Farrar appealed. We have jurisdiction, 28 U.S.C. § 1291,
and we review the district court’s decision to dismiss de novo.
Statewide Bonding, Inc. v. U.S. Department of Homeland
Security, 980 F.3d 109, 114 (D.C. Cir. 2020).
2
See also 29 U.S.C. § 794a(a)(1) (adopting the “remedies,
procedures, and rights” under Title VII of the Civil Rights Act of
1964 for federal employees filing civil actions).
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II
In Scott v. Johanns, this court held that federal employees
suing agencies for discrimination in district court may not
challenge only an administrative remedy without also placing
liability at issue. 409 F.3d 466, 472 (D.C. Cir. 2005). In other
words, under Scott, a federal employee can’t bind the
government to an administrative finding of liability and then
litigate only the remedy in court. Employees who roll the dice
in federal court might come out ahead, lose everything, or end
up somewhere in between.
Scott did not address the question presented by Farrar’s
suit: whether a federal employee who has retained an
administrative remedy must disgorge, or offer to disgorge, the
award upon filing a de novo lawsuit. When the Fifth Circuit
took up that question in Massingill v. Nicholson, it held that
“there is nothing in the statute creating the right of action which
precludes suit if the award has been partially or even
completely rendered.” 496 F.3d 382, 386 (5th Cir. 2007)
(cleaned up). In Massingill, “the administrative scheme ha[d]
played out, the plaintiff ha[d] ninety days to sue, and she d[id]
so within that time.” Id. As far as statutory requirements,
Massingill said — and we agree — they demand nothing more.
Several district courts have reached the opposite
conclusion. They found it dispositive that the plaintiff didn’t
express an intent to return an administrative award. See Farrar
v. Bridenstine, No. 19-846, 2019 WL 4889251, at *2 (D.D.C.
Oct. 3, 2019) (“As Farrar never mentions any desire or
agreement to return the money he has received pending the
outcome of this suit, he cannot proceed.”); see also St. John v.
Potter, 299 F. Supp. 2d 125, 129 (E.D.N.Y. 2004) (granting
summary judgment to the government because, among other
things, “the plaintiff ha[d] not offered to return the money she
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has received and deposited”); cf. Legard v. England, 240 F.
Supp. 2d 538, 546 (E.D. Va. 2002) (“plaintiff could have
avoided today’s result by notifying defendant that he intended,
or even that he contemplated, filing an appeal or a civil
action”).
In this case, Farrar has also expressed no such intent. But
so what? Farrar sued under the Rehabilitation Act, which gives
employees 90 days from the Commission’s decision — without
referring to its award — to file a civil action. 42 U.S.C.
§ 2000e-16(c). The Act says nothing about requiring an
employee to first disgorge, or offer to disgorge, an
administrative remedy already received. Although Farrar
could have returned, or offered to return, his award before
filing suit, the statute doesn’t require it. And we cannot read
that requirement into the statute without rewriting it.
In addition, the Commission’s regulations show it is aware
that it sometimes orders agencies to pay an employee’s
damages before the employee files a civil action. That’s why,
in 2012, the Commission extended agencies’ usual deadline to
pay an employee’s administrative damages from 60 to 120
days. See Federal Sector Equal Employment Opportunity, 77
Fed. Reg. 43,498, 43,503 (July 25, 2012) (“[T]he Commission
believes that agencies should not be required to provide relief
before the expiration of the complainants’ 90-day right to file
suit period.”). The Commission nevertheless retained
discretion to order payment before 120 days. 29 C.F.R.
§ 1614.502(c) (“The relief shall be provided in full not later
than 120 days after receipt of the final decision unless
otherwise ordered in the decision.”) (emphasis added).
That’s precisely what the Commission did here. Knowing
full well that Farrar might file a de novo action in district court,
the Commission used its discretion to “otherwise order[]” a
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shorter deadline for relief. If NASA didn’t want to pay Farrar
until the clock for Farrar to file suit had run out, NASA could
have asked the Commission to reconsider its order to pay Farrar
before his 90-day filing deadline. Oral Arg. Tr. at 16; see also
29 C.F.R. § 1614.502(b)(2) (an agency may request
reconsideration of a payment decision).
Notably, when the Commission considered changing
agencies’ payment deadline, it received comments
“suggest[ing] that EEOC should allow complainants to certify
that they will not file suit, and then require agencies to provide
relief within 30 or 60 days of certification.” 77 Fed. Reg. at
43,503. That the Commission declined to adopt a certification
requirement or even make it an option lends further support to
our conclusion.
Of course, Farrar risked losing his previously-awarded
damages when he filed his civil action. The district court may
find no liability on his claim, and NASA could file a
counterclaim to recover the administrative award, although we
express no opinion on its propriety or timeliness. Oral Arg. Tr.
at 7. This is a risk Farrar appears willing to take. See Pro Se
Appellant’s Br. at 27 (“Farrar invoked his statutory right to
judicial trial de novo . . . in the District Court”); Oral Arg. Tr.
at 4 (“We’re not arguing that Mr. Farrar would not be required
to return his administrative award if he ultimately was
unsuccessful . . . .”).
For now, we hold only that the Rehabilitation Act and
governing regulations do not foreclose Farrar’s civil action in
this case. And because NASA did not advance any equitable
defenses to Farrar’s complaint, see NASA’s Motion to
Dismiss, we do not consider whether Farrar is otherwise
estopped from filing suit, cf. Fed. R. Civ. P. 8(c) (“Affirmative
Defenses”).
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* * *
Farrar did not need to disgorge (or offer to disgorge) his
administrative award before filing suit. We reverse the district
court’s order dismissing his suit and remand for further
proceedings.