Green-Victory, et al v. USA, et al

* Because plaintiffs sued the Secretary of Interior in an official capacity, Gale A. Norton is automatically
substituted for the previous Secretary. See FED. R. APP. P. 43(c)(2).
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 01-60849
Summary Calendar
_______________
MARY GREEN-VICTORY; J.W. WILEY; JAMES L. SPENCER;
ALFRED SMITH; AND ANDREW ROBINSON, JR.,
Plaintiffs-Appellants,
VERSUS
UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF INTERIOR;
NATIONAL PARK SERVICE; AND GALE A. NORTON,* SECRETARY OF INTERIOR,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
m 5:99-CV-173-BrS
_________________________
December 27, 2002

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Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
PER CURIAM:**
Mary Green-Victory, J.W. Wiley, James
Spencer, Alfred Smith, and Andrew Robinson,
Jr., appeal the dismissal of their employment
discrimination suit against their employers, the
United States, the Department of Interior
(“Department”), and the National Park Ser-
vice. Reviewing the dismissal de novo, Ram-
ming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001), and finding no error, we affirm.
Plaintiffs allege various kinds of racial dis-
crimination or harassment in violation of title
VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. The district court did not ad-
dress the merits of these allegations, because it
dismissed for want of subject matter jurisdic-
tion. See FED. R. CIV. P. 12(b)(1). In par-
ticular, the court held that plaintiffs had not
timely exhausted their administrative remedies.
A federal employee must satisfy certain ad-
ministrative procedures before suing for em-
ployment discrimination in federal court. At
the outset, he must consult with his agency’s
equal employment opportunity counselor in an
effort to resolve his complaint informally. 29
C.F.R. § 1614.105(a). If that fails, he must file
a formal complaint with his agency. 29 C.F.R.
§ 1614.106(a).
If the agency denies or dismisses the com-
plaint, the employee may appeal to the Equal
Employment Opportuni ty Commission
(“EEOC”), 29 C.F.R. § 1614.401(a), or he
may file suit in federal court within 90 days, 42
U.S.C. § 2000e-16(c). If he appeals to the
EEOC, he may sue in federal court within 90
days of the EEOC’s final decision or 180 days
after filing the appeal with the EEOC if the
EEOC has not acted. 42 U.S.C. § 2000e-
16(c).
These administrative procedures are juris-
dictional: “Failure to comply with [them] . . .
wholly deprives the district court of jurisdic-
tion over the case.” Tolbert v. United States,
916 F.2d 245, 247 (5th Cir. 1990). The plain-
tiff bears the burden to prove essential jurisdic-
tional facts. Ramming, 281 F.3d at 161. For
instance, a federal employee must prove that
he complied with these administrative pro-
cedures before the court may exercise jur-
isdiction over his suit.
The court properly dismissed the suit as to
Spencer, Smith, and Robinson, because they
failed to cooperate with the Department’s in-
vestigation of their administrative complaint.
The Department asked each to provide addi-
tional relevant information, but they never re-
sponded. The Department therefore dismissed
their complaint. 29 C.F.R. § 1614.107(a)(7).
“If the agency does not reach the merits of the
complaint because the complainant fails to
comply with the administrative procedures the
Court should not reach the merits either.”
Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir.
1997). By not cooperating with the Depart-
ment, those three plaintiffs failed to exhaust
their administrative remedies. Id. at 409.1
** Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 Spencer, Smith, and Robinson argue for
equitable tolling of limitations, because they claim
they did not receive the letters notifying them of the
Department’s dismissal. Even if true, this fact
(continued...)

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The court properly dismissed the suit as to
Green-Victory and Wiley, because they sued in
federal court outside the limitations period of
§ 2000e-16(c). Both concede that their suit
was untimely under the first option of
§ 2000e-16(c), i.e., the 90-day period after the
Department dismissed. They contend, how-
ever, that their suit was timely under the sec-
ond option of § 2000e-16(c), i.e., appealing
from the Department to the EEOC and filing
suit after the EEOC takes final action or 180
days after filing the appeal if the EEOC has not
acted. Yet, the hefty record initially before the
court contained no evidence of an appeal to
the EEOC or a right-to-sue letter from the
EEOC (which would have implied an earlier-
filed appeal) beyond the assertions of Green-
Victory and Wiley during their depositions.
Rather than dismiss the appeal, though, the
court generously gave Green-Victory and
Wiley fifteen days to submit additional docu-
mentary evidence of an appeal to the EEOC.
They then submitted the letter notifying them
of the Department’s dismissal of their adminis-
trative complaint, which of course does not
prove a perfected appeal to the EEOC.2 The
court therefore dismissed their suit as un-
timely.3
AFFIRMED.
(...continued)
does not justify their failure to respond to the De-
partment’s earlier requests for additional informa-
tion. Moreover, they did not raise this argument in
the district court, so we need not address it. Little
v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th
Cir. 1994) (en banc).
2 Green-Victory also submitted what appears to
be an EEOC appeal form, but there was no proof
that the form was filed.
3 Within ten days after entry of judgment,
(continued...)
(...continued)
Green-Victory and Wiley filed a motion to recon-
sider, which the court treated as a Rule 59(e) mo-
tion to amend the judgment. See FED. R. CIV. P.
59(e); Bass v. United States Dep’t of Agric., 211
F.3d 959, 962 (5th Cir. 2000) (stating that a mo-
tion to reconsider is treated as a motion to amend
judgment if filed within ten days of judgment).
They attached to the motion their right-to-sue let-
ters, which prove that they in fact appealed the
Department’s final action to the EEOC (though it
does not prove a timely appeal). They argue that
the court abused its discretion by denying the mo-
tion. Yet, they do not explain why this evidence
was unavailable before judgment. This silence
alone justifies the court’s denial of the motion.
Russ v. Int’l Paper Co., 943 F.2d 589, 593 (5th
Cir. 1991).
Furthermore, Green-Victory and Wiley admit
that in the ten-day window after the entry of judg-
ment “they contacted EEOC and had EEOC to
[sic] send them a copy of the EEOC final decisions
and right to sue.” They just as easily could have
contacted the EEOC in the fifteen-day window
given them by the court to submit additional
documentary evidence of their EEOC appeal.
Thus, we conclude that the court did not abuse its
discretion by denying the motion to amend
judgment.

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