Reversed in part, vacated and remanded in part, and affirmed in part by published opinion. Judge WILLIAMS wrote the opinion, in which Chief Judge WILKINS, Judge WILKINSON, Judge LUTTIG, Judge MICHAEL, Judge MOTZ, Judge TRAXLER, Judge KING, Judge GREGORY, Judge SHEDD, and Judge DUNCAN joined. Judge WILKINSON wrote a separate concurring opinion. Judge WIDENER wrote a separate opinion concurring in part and dissenting in part. Judge NIEMEYER wrote a separate opinion concurring in part and dissenting in part.
WILLIAMS, Circuit Judge.
Stan Laber, a civilian employee of the Army, complained to the Equal Employment Opportunity Commission's Office of
Laber filed suit in the district court alleging that (1) the OFO's remedy was insufficient to compensate him for the Army's religious discrimination and (2) the Army discriminated against him on the basis of age and retaliated against him. On his first claim, Laber contended that because the OFO found that the Army unlawfully discriminated against him on the basis of religion, he was not required to relitigate the issue of liability in order to seek additional relief on that claim. The district court granted the Army's motion for summary judgment on both of Laber's claims, concluding that (1) it lacked subject-matter jurisdiction over Laber's claim for additional relief, and (2)(a) Laber's age discrimination claim failed because he had not shown he was qualified for the job in question, and (b) Laber's retaliation claim failed because the hiring officer made the decision not to select him before the officer knew about his prior EEO activity. After the district court's entry of judgment, Laber filed a motion for reconsideration and a motion to amend his complaint, wherein he sought to put at issue the Army's underlying liability on his claim of religious discrimination. The district court denied these motions, and Laber appeals.
In concluding that it lacked subject-matter jurisdiction over Laber's claim for additional relief, the district court overlooked Pecker v. Heckler, 801 F.2d 709 (4th Cir. 1986), and Morris v. Rice, 985 F.2d 143 (4th Cir.1993). Those cases stand for the proposition that a federal-employee plaintiff who prevails before the OFO on the issue of liability but is unsatisfied with the OFO's remedial award may file a civil action in the district court seeking additional relief without also putting at issue the OFO's finding of discrimination.
After oral argument to the panel assigned to hear this case, and at the request of that panel, a majority of the active circuit judges on this court agreed to rehear this case en banc to consider the continuing viability of Pecker and Morris. We now overrule Pecker and Morris and hold that a federal-employee plaintiff who prevails before the OFO on the issue of liability but who is unsatisfied with the OFO's remedy must place his employing agency's discrimination at issue in order properly to claim entitlement to a more favorable remedial award in the district court. Laber's failure to comply with this rule was not a jurisdictional defect, but it did entitle the Army to summary judgment on his claim for additional relief only. We also conclude, however, that the district court abused its discretion in denying Laber's motion for reconsideration and motion to amend: Laber did not act in bad faith, his proposed amendment would not cause any prejudice to the Army, and the proposed amendment is not futile.
Finally, we hold that the district court correctly granted summary judgment in
For reasons that are more extensively explained herein, we reverse the district court's denial of Laber's motion for reconsideration and motion to amend, vacate the district court's grant of the Army's motion for summary judgment on Laber's claim for additional relief, and remand with instructions to allow Laber to amend his complaint to put at issue the Army's alleged religious discrimination. We also affirm the grant of summary judgment to the Army on Laber's claims of age discrimination and retaliation.
This appeal involves claims arising out of two occasions when the Army denied Laber a promotion. The administrative proceedings were protracted, and our resolution of the appeal requires us briefly to consider those proceedings and the facts that underlie them.
Laber, a male born in 1945, was employed by the Army as an Operations Research Analyst at Fort Sheridan, Illinois. In mid-1990, motivated in part by his Jewish heritage, Laber applied for a position as a Industrial Specialist in Tel Aviv, Israel. During the job interview, the selecting officer, Leo Sleight, asked Laber if he could be objective when dealing with Jewish contractors. Laber answered affirmatively, but Sleight offered the job to another applicant.
Laber filed a formal EEO complaint with the Army alleging that Sleight discriminated against him on the basis of religion in failing to select him for the job. The Army accepted the complaint and, after conducting an internal investigation, concluded that Laber suffered no discrimination. Laber appealed to the OFO.
On December 22, 1998, the OFO reversed and ordered the Army, inter alia, to pay Laber any backpay and benefits for which the Army determined he was eligible and to appoint Laber as an Industrial Specialist in Israel or find a similar position for him. On January 25, 1999, Laber filed a motion for reconsideration, which the OFO denied on April 11, 2000. In May 2000, the Army determined that Laber was entitled to no backpay because his pay at his current job was higher than it would have been had he been working in Israel and that he was entitled to no overseas benefits because he had not actually been overseas. The Army also offered Laber a position as an Industrial Specialist in Germany, contending that it had no similar positions open in Israel. Laber refused the job in Germany and instead filed a petition for enforcement with the OFO, claiming, inter alia, that the Army's backpay and benefits calculations and its job offer were insufficient. Soon thereafter, the Army re-offered Laber the position in Germany, which he accepted, and in doing so, he expressly waived any claim that the Germany position was not compliant with that portion of the OFO's remedial award. He therefore withdrew that portion of his petition for enforcement challenging the Army's Germany job offer.
On January 23, 2002, the OFO issued a decision on the remainder of the petition for enforcement. In relevant part, the OFO determined that the record was unclear with respect to Laber's backpay and benefits arguments, and it required the Army to redetermine whether Laber was entitled to additional backpay and benefits.
The second event giving rise to this lawsuit occurred in 1993. After returning from Germany, Laber was employed as a Management Analyst at the Defense Logistics Agency in Chicago, Illinois when a position for an Operations Research Analyst in the Economic Analysis Division of the Cost and Economic Analysis Agency in Falls Church, Virginia became available. Laber was a "priority candidate" for the position because of his prior EEO activity.
The Army's civilian personnel office determined that Laber was "minimally qualified" for the Operations Research Analyst position, (J.A. at 457), and forwarded Laber's application form, Form 2302, to Richard Scott, the selecting officer, for further evaluation. An applicant who is "minimally qualified" is not necessarily qualified for the particular job vacancy, but only satisfies the basic competency requirements for a generic job within the pay grade and title. Scott examined Laber's Form 2302 and concluded, like the personnel office, that Laber was "minimally qualified" for the position. (J.A. at 426.) Scott therefore called Laber to request that he supplement his Form 2302 with additional information regarding his qualifications for the particular position. Laber avers that during this conversation, Scott, who knew that Laber was a priority candidate, asked him whether he had prior EEO activity in order to determine why he had received priority status. Laber further alleges that he informed Scott that he had prior EEO activity and that Scott immediately became short with him and quickly ended the conversation. After reviewing Laber's supplemental information, Scott determined that Laber was not qualified for the particular job. Instead, Scott chose a male candidate under 40 years of age who was not on the priority candidate list.
Laber filed a complaint with the Army alleging age discrimination and retaliation. The Army accepted the complaint, investigated Laber's allegations, and found that Scott had not discriminated against Laber. Laber appealed to the OFO and, on June 25, 2003, the OFO affirmed the Army's findings.
On June 4, 2003, unhappy with the OFO's decision on his religious discrimination claim and anticipating an unfavorable decision on his age discrimination and retaliation claims, Laber filed a pro se complaint in the district court alleging claims of (1) religious discrimination and (2) age discrimination and retaliation.
The Army filed a motion for summary judgment, which the district court granted. The district court concluded, inter alia, that it lacked subject-matter jurisdiction over Laber's claim for additional relief arising out of the Army's religious
After the district court entered judgment, Laber filed a motion for reconsideration and a motion to amend. Laber argued, inter alia, that he did not intend to put only the question of whether he was entitled to additional relief at issue in his complaint; rather, he contended, he intended also to seek a judicial determination of whether the Army discriminated against him on the basis of religion. Laber attached an amended complaint to the motion to amend. The amended complaint was identical to the original complaint except for one sentence: "Plaintiff is appealing the finding of [religious] discrimination. . . ." (Pl.'s Amended Complaint (emphasis added).) The district court construed Laber's motion for reconsideration as a motion under Fed.R.Civ.P. 59(e) and his motion to amend as a motion under Fed.R.Civ.P. 15(a), and denied both motions.
Laber first argues that the district court erred in granting summary judgment to the Army on his claim for additional relief arising out of the Army's religious discrimination. He contends that Title VII authorizes a federal-employee plaintiff who prevailed before the OFO on the issue of liability but is unsatisfied with the OFO's remedial award to file a civil action alleging only that he is entitled to additional relief.
We review de novo the district court's grant of summary judgment to the Army. See Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 283 (4th Cir.2004) (en banc). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c) (West 1992); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We construe the facts in the light most favorable to Laber, the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In examining this argument we first consider the legal background in which the argument arises. Next, we consider the implications of Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), on our prior cases and hold that Chandler requires us to overrule those cases. Finally, we decide that the rule we announce is not one that deprived the district court of subject-matter jurisdiction because it involved the interpretation of a federal law.
As amended, Title VII of the Civil Rights Act of 1964 creates a right of action for both private-sector and certain
An employee in the private sector who believes that his employer has discriminated against him in violation of Title VII must file an administrative charge with the Equal Employment Opportunity Commission (EEOC) against his employer. See 29 C.F.R. § 1601.7 (2004). The EEOC investigates the complaint to determine whether there is reasonable cause to believe the employee's allegations. See 29 C.F.R. §§ 1601.15, 1601.21. Because the EEOC has no power to order the private-sector employer to take corrective action even if it finds such reasonable cause exists, "it must attempt to eliminate the discriminatory practice through informal methods of conciliation." Moore, 780 F.2d at 1562; see also 29 C.F.R. § 1601.24. If these attempts fail, or if the EEOC has found no reasonable cause, the EEOC issues the employee a right-to-sue letter explaining that he may bring a "civil action" in federal court seeking judicial review of his discrimination claim. See 42 U.S.C.A. § 2000e-5(f)(1); 29 C.F.R. § 1601.28.
A federal employee who believes that his employing agency discriminated against him in violation of Title VII must file an administrative complaint with the agency. See 29 C.F.R. § 1614.106. The agency investigates the claim, see 29 C.F.R. § 1614.108-109, and, if it concludes there was no discrimination, it issues a final agency decision to that effect, see 29 C.F.R. § 1614.110. The employee may then appeal the agency's decision to the OFO. See 29 C.F.R. § 1614.401(a).
While the employing agency has no right to seek judicial review of the OFO's resolution of an employee's claim, the regulations provide an employee two separate avenues into federal court. First, the employee has the right to file a "civil action" seeking judicial review of his discrimination claim if he is "aggrieved" by the OFO's decision. See 42 U.S.C.A. § 2000e-16(c) (right of action exists if employee
We have applied these provisions before. In Pecker v. Heckler, 801 F.2d 709 (4th Cir.1986), the federal-employee plaintiff filed an administrative complaint against her employing agency alleging unlawful employment discrimination in failing to promote her. Id. at 710. The agency agreed that it had discriminated against the plaintiff and indicated it would provide her priority consideration for the next job opening. Id. The plaintiff appealed to the OFO, contending that the agency's remedy was insufficient, and the OFO affirmed the agency's decision. Id. The plaintiff then filed suit in the district court seeking, inter alia, a declaration that the agency discriminated against her and an injunction requiring the agency immediately to promote her. Id.
On appeal, we reversed, holding that the employee was entitled to the declaration because "the [agency is] bound by the [OFO]'s findings of discrimination." Id. at 711 n. 3. In addition, despite the OFO's determination that the plaintiff was entitled only to priority consideration for the next job opening, we concluded that the plaintiff had demonstrated that she was entitled to an immediate promotion. Id. at 712.
In Morris v. Rice, 985 F.2d 143 (4th Cir.1993), a federal employee filed an administrative claim against his employing agency alleging unlawful discrimination in failing to promote him. Id. at 144. The agency agreed that discrimination had occurred, but found that he was entitled to neither the position nor back pay because he would not have been promoted even if there had been no discrimination. Id. at 145. Dissatisfied with the remedy, the employee appealed to the OFO, which affirmed. Id. The employee then filed a civil action in the district court seeking review of the OFO's determination of discrimination and its remedy. Id. The district court granted the employee's motion for summary judgment on his claim of liability. Id. We affirmed, citing Pecker for the conclusion that a "[federal-employee] plaintiff [who files a civil action] may limit and tailor his request for de novo review, raising questions about the remedy without exposing himself to de novo review of a finding of discrimination." Id.
Pecker and Morris stand for the proposition that Title VII authorizes a federal employee to bring a civil action wherein he challenges only the OFO's remedial award, but does not put his employing agency's underlying discrimination at issue.
As in all cases requiring the interpretation of a statute, we begin our analysis with the language of the statute itself. See United States v. Abuagla, 336 F.3d 277, 278 (4th Cir.2003). "We must first determine whether the language at issue
The relevant statutory language here is minimal, but nevertheless significant: it provides that a federal employee has the right to bring a "civil action" seeking judicial review of his claim, 42 U.S.C.A. § 2000e-16(c), and that the district court may provide certain equitable remedies on the claim only "[i]f the court finds" that the agency intentionally discriminated against him, 42 U.S.C.A. § 2000e-5(g) (West 2003).
While the phrase "civil action" does not have a self-evident meaning that answers the question before us, the Supreme Court has given meaning to the phrase. In Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), the plaintiff, a federal employee, filed a discrimination complaint with her employing agency, which found no discrimination. Id. at 842, 96 S.Ct. 1949. The agency's decision was affirmed on administrative appeal,
The Supreme Court reversed, noting that it was "well established" that Title VII gave "private-sector employees the right to `de novo consideration of their [employment discrimination] claims' without requiring the district courts to give deference to an EEOC finding of no reasonable cause." Id. at 844. Because federal employees' right to bring a "civil action" is, by statute, identical to that of private-sector employees, the Supreme Court held that it "follow[ed] syllogistically that federal employees are entitled to a trial de novo on their employment discrimination claims." Id. at 846 (emphasis added).
Chandler, of course, does not directly control here. It held only that a federal employee's right to bring a "civil action" entitles him to a "trial de novo" on his discrimination claims in the district court where the OFO rejects his allegations of discrimination; it did not expressly hold that a federal employee who brings a civil action in the district court must put his employing agency's underlying discrimination at issue if the OFO accepts those allegations. Chandler's logic, however, extends to such a holding.
First, it was clear at the time of Chandler that private-sector employees not only had the right to a de novo judicial consideration of their discrimination claims without regard to the EEOC's finding of reasonable cause, id. at 844-45, 96 S.Ct. 1949, but also that they were unable to use the EEOC's finding to compel a finding of discrimination in the district court. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for example, the Supreme Court concluded that a private-sector employee was required to introduce a genuine issue of material fact on his Title VII claim despite the fact the EEOC had made a finding of reasonable cause on that claim. Id. at 801-02, 93 S.Ct. 1817. If a private-sector employee must introduce the existence of a genuine issue of material fact that his employer discriminated against him to stave off summary judgment, it necessarily follows that discrimination must be an issue in the case. Because Chandler teaches that federal employees have the "same" rights as private-sector employees, 425 U.S. at 841, 96 S.Ct. 1949, a holding that federal employees may put at issue only the OFO's remedial award would violate Chandler by giving federal employees greater rights than private sector employees in a civil action. See Scott, 409 F.3d at 470 ("Requiring federal-sector plaintiffs to prove liability puts them in approximately the same position as private-sector plaintiffs who, unable to obtain legally-binding [OFO] findings, must litigate both liability and remedy." (citations omitted)).
Second, "the plain meaning of the term `trial de novo' [as used in Chandler] demonstrates that a [federal employee] who brings a [`civil action'] . . . is not entitled to limit the Court's review to the issue of remedy only." Timmons, 314 F.3d at 1233. For example, Black's Law Dictionary defines "trial de novo" as "[a] new trial on the entire case — that is, on both questions of fact and issues of law — conducted as if there had been no trial in the first instance." Black's Law Dictionary 1544 (8th ed.2004) (emphasis added). This definition makes clear that the federal employee's right to bring a "civil action" does not include the right to seek only an additional remedy; for all practical purposes (and
Third, additional language from Chandler implies that the phrase "trial de novo" entails a de novo examination of both liability and the remedy. For example, in response to the agency's argument in Chandler that permitting federal employees to obtain a trial de novo after the OFO had already ruled on their claims would be an inefficient allocation of judicial resources, the Court responded, in part, by noting that "[p]rior administrative findings made with respect to an employment discrimination claim may, of course, be admitted as evidence at a federal-sector trial de novo. Moreover, . . . many potential issues can be eliminated by stipulation or in the course of pretrial proceedings in the District Court." Chandler, 425 U.S. at 863 n. 39, 96 S.Ct. 1949 (citations omitted). If the Supreme Court had believed that the employee need not even put the employer's underlying discrimination at issue, there would be no need to admit prior findings as evidence, because the employer's discrimination would not be relevant in the case. See Timmons, 314 F.3d at 1235. The fact that administrative findings are merely evidence — that, like any other evidence, can be accepted or rejected by the trier of fact — requires the conclusion that the federal-employee plaintiff must put his employing agency's underlying discrimination at issue in the case.
Laber does not mount a serious challenge to this conclusion. Rather, he asserts that we should continue to adhere to our decisions in Pecker and Morris.
In Moore, the federal-employee plaintiff prevailed before the OFO on the issue of liability but was unsatisfied with the OFO's remedial award. 780 F.2d at 1561. He filed a civil action, asking the district court to "conduct a hearing on the merits of [his claim]." Id. After a bench trial, the district court entered judgment in favor of the employing agency. Id. The plaintiff appealed, arguing that the district court was bound by the OFO's finding of discrimination. Id. at 1562. The Eleventh Circuit carefully dissected Title VII and its accompanying regulations and explained, as we have, that federal employees who are aggrieved by an OFO decision may file either (1) a civil action seeking de novo consideration of his claim, or (2) accept the OFO decision and, in the event the agency does not comply, file a suit for enforcement in the district court. In a suit for enforcement, the court observed, the plaintiff does not put the OFO's underlying finding of liability at issue. Id. at 1564 ("[A]n employee who seeks redress of an agency's refusal to comply with [the OFO's decision]. . . . may request enforcement by the district court without requesting and trying the merits of the claim."). By contrast, the plaintiff before it had specifically asked the district court to evaluate his entire claim de novo. Id. ("[W]here . . . the employee files a complaint asking the district court to consider the case on the merits and proceeds to trial de novo of the very claims resolved by the [OFO], he or she cannot complain when the district court independently resolves the claim on the merits."). In this situation, the court concluded that the district court did not err in issuing judgment against the plaintiff. Id.
In Houseton, the federal-employee plaintiff prevailed against her employing agency before the OFO on the issue of discrimination and liability and filed an action in federal court seeking enforcement of the OFO's remedial award. 670 F.2d at 1377. The district court ordered enforcement, and the Ninth Circuit affirmed without discussion. Id. at 1378. The court in Houseton set forth no holding, but the disposition suggests that the rule of law it applied was that the district court is bound to accept the OFO's finding of liability and its remedial award in a suit for enforcement. See id.
In Haskins, the federal-employee plaintiff prevailed before the OFO on the issue of liability but the OFO denied her request for damages because it found that the employing agency would not have hired the plaintiff even in the absence of discrimination.
The Sixth Circuit disagreed, holding that the agency's admission of liability did not encompass a corollary admission that it would have hired the plaintiff even in the absence of discrimination. The court stated that it
Id. at 1199 and n. 4.
As this discussion reveals, Moore, Houseton, and Haskins simply do not bear the inference that the court in Pecker and Morris placed upon them. To be sure, Moore and Haskins state, and Houseton suggests, that a federal-employee plaintiff can, in some circumstances, avoid de novo review of his underlying claims of discrimination. But Moore and Haskins explicitly limit that statement to the context of a suit for enforcement,
For the foregoing reasons, we overrule Pecker and Morris and hold that Title VII does not authorize a federal-sector employee to bring a civil action alleging only that the OFO's remedy was insufficient.
Anticipating that we would overrule Pecker and Morris, the Army argues that by alleging only entitlement to additional relief, Laber's complaint suffers from a jurisdictional defect that deprived the district court of subject-matter jurisdiction over that claim. None of our sister circuits has directly addressed whether a complaint that does not put the employing agency's discrimination at issue but alleges entitlement to a greater remedy arising out of discrimination (1) suffers from a jurisdictional defect, see Fed.R.Civ.P. 12(b)(1), or, (2) instead, is either subject to dismissal for "failure to state a claim upon which relief can be granted," Fed. R. Civ. P 12(b)(6), or, if the defendant does not move to dismiss, entitled to judgment as a matter of law under Rule 56.
In support of its argument that the defect in Laber's complaint is jurisdictional, the Army cites Chris v. Tenet, 221 F.3d 648, 652 (4th Cir.2000). In Chris, the federal-employee plaintiff filed a discrimination claim with her employing agency, and the agency settled the claim. Id. at 649-50. The parties could not agree, however, on the amount of fees and costs, and the plaintiff filed a petition with the OFO for fees and costs. Id. at 650. The OFO awarded her some fees and costs, but less than she sought. Id. Undeterred, the plaintiff filed a claim in district court seeking additional fees and costs. Id. The district court dismissed the suit for want of subject-matter jurisdiction. Id.
We affirmed, concluding that Title VII's jurisdiction-conferring provision — "[e]ach United States district court . . . shall have jurisdiction of actions brought under this subchapter," 42 U.S.C.A. § 2000e-5(f)(1) — did not extend to actions for fees and costs only:
Id. at 652 (emphasis added). The Army argues that a claim for additional relief only, like a claim for attorney's fees and costs only, is not an "action[ ] under [Title VII]" sufficient to confer subject-matter jurisdiction in the district court. 42 U.S.C.A. § 2000e-5(f)(1).
We disagree. Even assuming we agreed with the Army's extension of Chris, that case held only that subject-matter jurisdiction was lacking under § 2000e-5(f)(1). Because, according to the court in Chris `description of the issue before it, Chris did not argue that subject-matter jurisdiction existed under 28 U.S.C.A. § 1331' (West 1993) ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."), the court in Chris did not consider whether § 1331 could have been an alternate source of subject-matter jurisdiction. Chris therefore did not hold that subject-matter jurisdiction is lacking under § 1331 for a claim of attorney's fees and costs only, much less that subject-matter jurisdiction is lacking under § 1331 for a claim of additional relief only. Cf. Hagans v. Lavine, 415 U.S. 528, 533 n. 5, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) ("[W]hen questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.").
Moreover, since Chris was decided we have held that § 1331 provides an additional jurisdictional basis for suits arising under Title VII, see Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir.2005), and a strong majority of our sister circuits has held the same, see Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 469 (3d Cir.2001); Smith v. Ashland, Inc., 250 F.3d 1167, 1169 (8th Cir.2001); English v. Colo. Dept. of Corr., 248 F.3d 1002, 1007 (10th Cir. 2001); Rutherford v. City of Cleveland, 137 F.3d 905, 908 (6th Cir.1998); Sanders v. Venture Stores, Inc., 56 F.3d 771, 772 (7th Cir.1995); Vera-Lozano v. Int'l Broad., 50 F.3d 67, 68 (1st Cir.1995); Intlekofer v. Turnage, 973 F.2d 773, 774 (9th Cir.1992); Palmer v. Dist. Bd. of Tr. of St. Petersburg Junior Coll., 748 F.2d 595, 596 (11th Cir. 1984). A district court has subject-matter jurisdiction under § 1331 when "the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another." Bell v. Hood, 327 U.S. 678, 681, 685, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Because, as this opinion reveals, resolution of Laber's claim for additional relief required interpretation of Title VII, a federal law, the district court had subject matter jurisdiction over Laber's claim under § 1331. Of course, district courts may lack jurisdiction over future claims similar to Laber's claim under the insubstantiality doctrine. See Hagans, 415 U.S. at 536-37, 94 S.Ct. 1372 ("[F]ederal courts are without power to entertain claims otherwise within their jurisdiction if they are so attenuated and unsubstantial as to be absolutely devoid of merit, wholly insubstantial, obviously frivolous, plainly insubstantial, or no longer open to discussion." (internal citations and quotation marks omitted)). But we cannot say that the federal question presented by Laber's
Laber next argues that the district court abused its discretion in denying his motion for reconsideration and to amend. He argues that justice requires that he be given the opportunity to amend his complaint to put the Army's underlying religious discrimination at issue.
A plaintiff may amend his complaint one time as a matter of course before the defendant files a responsive pleading. Fed.R.Civ.P. 15(a). Once the defendant files a responsive pleading, however, the plaintiff may amend his complaint only by leave of the court or by written consent of the defendant, id., but Rule 15(a) directs that leave to amend "shall be freely given when justice so requires." This liberal rule gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities. See Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ("The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits."); Ostrzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir.1999) ("The federal rule policy of deciding cases on the basis of the substantive rights involved rather than on technicalities requires that [the] plaintiff be given every opportunity to cure a formal defect in his pleading." (quoting 5A Charles Allen Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (2d ed.1990))).
We have interpreted Rule 15(a) to provide that "leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile." See Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir.1986) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
Delay alone, however, is an insufficient reason to deny the plaintiff's motion to amend. See Davis, 615 F.2d at 613. For this reason, a district court may not deny such a motion simply because it has entered judgment against the plaintiff—be it a judgment of dismissal, a summary judgment, or a judgment after a trial on the merits. See, e.g., Foman, 371 U.S. at 182, 83 S.Ct. 227 (reversing district court's denial of motion to amend made after the district court entered judgment of dismissal); 6 Charles Allen Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 1488 (2d ed.1990) (collecting cases); cf. Ostrzenski, 177 F.3d at 252-53 (4th Cir.1999) (noting that district court should not dismiss a complaint with prejudice under Fed.R.Civ.P. 12(b)(6) without first giving the plaintiff leave to amend). Instead, a post-judgment motion to amend is evaluated under the same legal standard as a similar motion filed before judgment was entered—for prejudice, bad faith, or futility. See Foman, 371 U.S. at 182, 83 S.Ct. 227; Johnson, 785 F.2d at 509-510 (dicta). A moment's reflection reveals, however, that the further the case progressed before judgment was entered, the more likely it is that the amendment will prejudice the defendant or that a court will find bad faith on the plaintiff's part. Adams v. Gould, 739 F.2d 858, 864 (3d Cir.1984) ("[T]he factors that must guide our review may be affected by the fact that a summary judgment was granted before plaintiffs sought leave to amend their complaint.").
There is one difference between a pre— and a post-judgment motion to amend: the district court may not grant the post-judgment motion unless the judgment is vacated pursuant to Rule 59(e) or Fed.R.Civ.P. 60(b). See Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir.1985) ("[O]nce judgment is entered the filing of an amended complaint is not permissible until judgment is set aside or vacated pursuant to Fed.R.Civ.P. 59(e) or 60(b)."); Scott v. Schmidt, 773 F.2d 160, 163 (7th Cir.1985) (holding same); 6 Charles Allen Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 1489; see also Murrow Furniture Galleries, Inc. v. Thomasville Furniture Indust., Inc., 889 F.2d 524, 526 n. 3 (4th Cir.1989) ("The Court denied their [Rule] 59(e) motion, thereby effectively denying their [Rule 15(a)] motion as well."); DuBuit v. Harwell Enters., Inc., 540 F.2d 690, 692 (4th Cir.1976) ("[T]he final order of the court disposed of all of the issues between these two plaintiffs and the defendants, and since no appeals were taken the judgment became a finality and terminated the case as to them. Under these circumstances,
We believe that under the unusual circumstances presented here, Laber's motion to amend must be granted. First, and most important here, there is no indication that Laber's omission from his original complaint of the legal theory he now seeks to pursue was in bad faith. In fact, Laber's original complaint was arguably proper under Pecker and Morris. Laber's case is not a run-of-the-mill case where the plaintiff's first theory of recovery is based on his own reading of our cases and it turns out that he misinterpreted how that theory would apply to the facts of his case. Instead, while Laber indeed misinterpreted how we would rule, his theory presented a close enough question under our prior cases that we deemed it necessary to grant rehearing en banc to overrule those cases. Moreover, Laber's diligence in filing his motion to amend after the district court entered summary judgment dispels any inference of bad faith.
Second, the record reveals that the Army would not have been prejudiced by Laber's proposed amendment. Although the case progressed to summary judgment, the Army conducted no significant discovery, likely because of the factual development of Laber's claims that occurred in the administrative proceedings. Any discovery it did conduct need not be duplicated because Laber's proposed complaint does not put any new facts at issue but merely states an "alternative theory" for recovery. Foman, 371 U.S. at 182, 83 S.Ct. 227 (reversing district court's entry of judgment of dismissal and denial of plaintiff's motion to amend where "the amendment would have done no more than state an alternative theory for recovery."). Moreover, the Army made no argument that it would be prejudiced if Laber were granted leave to amend.
Third, the amended complaint is not futile. Although not artfully drafted, it does allege a cause of action for the Army's alleged religious discrimination. While the Army now argues that Laber's religious discrimination claim is untimely because he filed his complaint more than 90 days after the OFO's April 10, 2000 denial of Laber's motion for reconsideration, it did not raise this argument in opposing Laber's motion to amend below.
Because Laber did not act in bad faith, his proposed amendment would not prejudice the Army, and the amendment is not futile, we conclude that the district court abused its discretion in denying Laber's motion for reconsideration and to amend,
Laber finally argues that the district court erroneously granted summary judgment to the Army on his claims of age discrimination and retaliation. He contends that (a) he has made a prima facie case of age discrimination because he was qualified for the job in question and (b) Scott knew about his prior EEO activity before making the decision not to select him for the position.
The ADEA creates a cause of action for certain
Once a plaintiff makes this prima facie case, he creates a presumption of discrimination, and the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for its adverse employment decision. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817. If the defendant satisfies this burden, the presumption disappears and the plaintiff must show that the articulated reason is a pretext for age discrimination. See Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097; McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. To do so, the plaintiff must do more than simply show the articulated reason is false; he must also show that the
The district court held that Laber had not made a prima facie case of age discrimination because he failed to show he was qualified for the Operations Research Analyst position. Laber argues that he was qualified for the position because the civilian personnel office concluded that he was "minimally qualified" for the position. The record reveals, however, that the phrase "minimally qualified" does not mean that the applicant is actually qualified for the job in question. Instead, it means that the applicant is qualified for the generic duties of the job based solely on the pay grade and title, but it does not necessarily mean that he is qualified for the specific requirements of the particular job for which applications are being sought. While the record is full of evidence to this effect, the testimony of Roxanne Dent, a staffing specialist, makes the point succinctly:
(J.A. at 502-03.) The testimony that Laber was "minimally qualified" for the generic position of Operations Research Analyst does not, therefore, support Laber's argument that he was qualified to perform the specific requirements of the Operations Research Analyst position for which Scott was interviewing.
Moreover, the record shows that Scott determined, after reviewing Laber's supplemental information, that Laber was "not eligible" for the Operations Research Analyst position Scott sought to fill. (J.A. at 470.) Scott testified that the position required cost benefit analysis, functional economic analysis, and independent cost estimates of the Army's weapons systems, and that Laber's Form 2302 revealed that Laber did not have the requisite education, experience, or training for the job requirements.
Like claims of age discrimination, we also apply the McDonnell Douglas framework to claims of retaliation.
The district court held that Laber had not made a prima facie case of retaliation because the evidence showed that Laber informed Scott about his prior EEO activity after Scott made the decision not to select Laber for the position. We need not decide whether this holding was erroneous. See Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir.1993) ("In reviewing a grant of summary judgment, we can affirm on any legal ground supported by the record and are not limited to the grounds relied on by the district court."). Even assuming that Laber demonstrated a prima facie case of retaliation, the Army satisfied its burden of producing a legitimate, non-discriminatory reason for his non-selection by introducing evidence that Laber was not qualified for the job, Evans, 80 F.3d at 960 ("[E]mployee qualifications are widely recognized as valid, non-discriminatory bases for any adverse employment decision."), and, as we concluded in the age discrimination context, Laber did not introduce sufficient evidence to create a factual issue on whether he was qualified for the specific position Scott was seeking to fill. We therefore conclude that Laber did not satisfy his burden of demonstrating that the Army's proffered justification was false.
For the foregoing reasons, we reverse the district court's denial of Laber's motions for reconsideration and to amend, vacate the district court's grant of the Army's motion for summary judgment on Laber's claim for additional relief, and remand with instructions to allow Laber to amend his complaint to put at issue the Army's alleged religious discrimination. We also affirm the grant of summary judgment to the Army on Laber's claims of age discrimination and retaliation.
REVERSED IN PART, VACATED AND REMANDED IN PART, AND AFFIRMED IN PART.
WILKINSON, Circuit Judge, concurring:
I am pleased to concur in Judge Williams's thorough opinion in this case. I do note that motions filed post-judgment for leave to amend a complaint are not favored under law. It takes a great deal of time and effort for a party to win any judgment. This effort should not be routinely
Provision is made in the Rules for automatic amendment of the complaint in certain circumstances and for a liberal granting of leave to amend in other circumstances, see Fed.R.Civ.P. 15(a), but the interest in finality that attaches to every judgment must of necessity weigh in the exercise of the district court's discretion in a filing such as this. See, e.g., Benzon v. Morgan Stanley Distribs., Inc., 420 F.3d 598, 613 (6th Cir.2005) (noting that "in the post-judgment context" the court "must also take into consideration the competing interest of protecting the finality of judgments and the expeditious termination of litigation") (internal quotation marks omitted); Doe v. Howe Military Sch., 227 F.3d 981, 989 (7th Cir.2000) (although "leave to amend shall be freely granted when justice so requires, justice may require something less in post-judgment situations than in pre-judgment situations") (internal quotation marks omitted); Vielma v. Eureka Co., 218 F.3d 458, 468 (5th Cir.2000) (noting that the district court's discretion to allow amendments "narrows considerably after entry of judgment"). Abuse of discretion is, after all, a deferential standard, and district courts are in the best position to determine "when justice so requires" that a litigant be permitted to amend his complaint. Fed.R.Civ.P. 15(a).
In this case, I concur in Part IV's reversal for abuse of discretion solely because a special circumstance exists—namely, as Judge Williams points out, that Morris v. Rice, 985 F.2d 143 (4th Cir.1993), and Pecker v. Heckler, 801 F.2d 709 (4th Cir.1986), appeared to squarely and affirmatively authorize plaintiff's attempt to seek additional relief without putting the agency finding of defendant's liability at issue. Indeed, Laber's initial complaint may have been proper prior to today's ruling, and this would have obviated the need to amend the complaint in the first place. In this unique set of circumstances, I agree that Laber should be allowed to amend his complaint. In ordinary circumstances, post-judgment motions for leave to amend serve only to string litigation out.
WIDENER, Circuit Judge, concurring and dissenting:
I respectfully dissent from the majority holding that permits the plaintiff to assert, or to amend his complaint to again assert, his claim of religious discrimination, he having previously and successfully prosecuted the same and accepted the administrative award. I agree with the district court that it was without subject matter jurisdiction as to this aspect of the case. Laber had his day in court at least when he accepted the administrative award.
I concur in the majority decision to overrule the Pecker and Morris cases.
I concur in the majority decision affirming the grant of summary judgment to the defendant on plaintiff's claims of age discrimination and retaliation.
NIEMEYER, Circuit Judge, concurring in part and dissenting in part:
I concur in Parts I, II, III, and V of the majority opinion, and I dissent from Parts IV and VI. For the reasons given below, I would affirm the judgment of the district court.
Stan Laber, a civilian employee of the U.S. Army, claims that on two occasions the Army denied him promotion by reason of his religion and age and that the Army retaliated against him for filing claims with the EEOC, in violation of Title VII of the
On the Army's motion for summary judgment, the district court dismissed all of Laber's claims, concluding with respect to his religion-discrimination claim that the court did not have jurisdiction to review a claim made simply for additional remedies where "the substantive claims were decided at the administrative level and where the plaintiff accepted the relief afforded him at the administrative level." The court concluded with respect to the age-discrimination and retaliation claims that Laber lacked sufficient proof.
In dismissing Laber's claim that his agency-awarded remedies for religion-based discrimination were inadequate, the district court reasoned that because Title VII authorized only a de novo proceeding in court, the court did not have jurisdiction to consider his claim simply to enhance the agency remedies. Its reasoning parallels that which is written in Part III of the majority opinion. In addition, the district court concluded that it did not have jurisdiction because the plaintiff "has accepted the remedies afforded him in the administrative process" (emphasis added). As the court explained:
The district court's reasoning and conclusions were correct, and I take issue with only its final observation that as a result of its reasoning and conclusions, it did not have jurisdiction. I would conclude that its reasoning and conclusions lead more clearly to dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. But the district court's breach of the line between Rule 12(b)(1) and Rule 12(b)(6) does not require us to reverse the district court's conclusion to dismiss this case. See Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 249, 71 S.Ct. 692, 95 L.Ed. 912 (1951) (noting, "[a]s frequently happens where jurisdiction depends on subject matter, the question whether jurisdiction exists has been confused with the question whether the complaint states a cause of action"). Indeed the line separating the two has recently become even more indefinable. To recognize this, one need only compare the holding of Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), where the Court held that the question whether § 505(a) of the Clean Water Act allows suits for wholly past violations was a matter of jurisdiction,
Whether under Rule 12(b)(1) or Rule 12(b)(6), the district court was correct in concluding that Laber's case had to be dismissed because he could not assert a de novo claim under Title VII. The possibility of a de novo trial was foreclosed by his acceptance of the agency remedies. Moreover, this is precisely the conclusion that must be drawn from the majority opinion in this case.
Explaining the holding in Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), to conclude that the plaintiff's cause of action in a case such as the one before us can only be de novo, the majority has concluded, "The plain meaning of the term `trial de novo ` as used in Chandler demonstrates that a federal employee who brings a `civil action' . . . is not entitled to limit the Court's review to the issue of remedy only." Ante at 420 (internal quotation marks, alterations, and citation omitted). The majority thus reasons that "the federal employee's right to bring a `civil action' does not include the right to seek only an additional remedy; for all practical purposes . . . a trial de novo proceeds as if no earlier proceedings had been completed at all." Ante at 420-21 (citing Colten v. Kentucky, 407 U.S. 104, 116-17, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) (noting that trial de novo represents a "completely fresh determination of [the issues]" (emphasis added))); see also Timmons v. White, 314 F.3d 1229, 1233 (10th Cir.2003) (collecting Supreme Court decisions supporting the same).
Thus to state a cause of action that would entitle him to a trial de novo, Laber would have to be prepared to place all issues, both liability and remedy, on the table anew. Yet he could not place remedy issues on the table anew. He has accepted the agency-awarded remedies, which are not now retrievable. Thus, if in a trial de novo Laber were to lose on his religion-discrimination claim, he would stand to lose nothing, having already accepted and received agency-awarded remedies. Laber would therefore be left with only the possibility of seeking an additional remedy. Yet this type of claim is just what the majority forecloses when it states, "the federal employee's right to bring a civil action does not include the right to seek only an additional remedy." Ante at 421 (emphasis added). Despite this accurate statement of law, the majority, by remanding with a right to amend, gives Laber a new claim with no downside. I conclude that this is plain error.
In urging affirmance of the district court's ruling, the Army also contends that "there is no provision within Title VII . . . that allows a complainant to accept certain portions of an EEOC award and seek de novo judicial review of the rest." The Army argues that it would be inconsistent to allow Laber to keep the remedies awarded by an agency and at the same time seek de novo judicial review. While this argument rings of estoppel or mootness, the Army nonetheless suggests that these conclusions should lead to dismissal for lack of jurisdiction.
Regardless of the proper legal pigeonhole in which to place the Army's argument, I agree with the Army—and indeed the district court—that Laber "cannot have his cake and eat it too." He cannot retain the remedy awarded him by the agency and at the same time urge us to permit him to pursue a de novo judicial complaint; they are mutually inconsistent.
Even as the Army has mislabeled its argument as jurisdictional, the mislabeling does not bury the point. Because Laber cannot fulfill the elements of his de novo claim by putting all the remedies at risk, he must be barred not only by his inability to allege a claim for de novo remedies, but also by notions of estoppel or equitable mootness. See, e.g., Mac Panel Co. v. Virginia Panel Corp., 283 F.3d 622, 625 (4th Cir.2002); Central States Pension Fund v. Central Transport, Inc., 841 F.2d 92, 95 (4th Cir.1988).
In Central States, a pension plan sought to overturn a bankruptcy court's confirmation of a plan for reorganization of a trucking company. Pending appeal, however, the pension plan did not file a supersedeas bond, as required for a stay, and by the time the case reached this court, the plan had been substantially implemented. In response to the pension fund's argument that limited relief might still be appropriate from us, we stated that even limited relief "would require the Class 6 creditors to surrender their advantage," which they had not done. Id. at 96. In dismissing the appeal, we stated:
Id. (internal citations omitted) (emphasis added). Articulating the doctrine more completely in Mac Panel, we said:
283 F.3d at 625.
While I continue to believe that Laber should not now be allowed to pursue his claim because he cannot set forth a de novo claim upon which relief can be granted and therefore would affirm the district court on that basis, I am just as prepared to affirm the dismissal under the doctrine of equitable mootness. Although the Army did not specifically label its argument with the name of that doctrine, it nonetheless vigorously argued the substance of the point in its brief, just as the district court relied on it to justify its dismissal.
For all of these reasons, I would affirm the judgment of the district court granting
Other documents in the record support the conclusion that Laber did not put the Army's underlying religious discrimination at issue. In Laber's memorandum in support of his motion for summary judgment, he described his suit in the following manner:
(Mem. in Supp. of Pl.'s Mot. for Summ. J. at 1.) Similarly, in his pre-trial Statement of Uncontested Facts, Laber stated that he "filed [suit] in Federal Court to force the Army to meet its obligations." (Pl.'s Statement of Uncontested Facts at 4.) Likewise, in a filing in support of his motions for reconsideration and to amend, Laber argued that "the bottom line is that [the Army] simply refused to pay the [compensation to which I am due.] Plaintiff respectfully requests the Court to rule on the basis of the make whole issue. . . ." (Supplemental Mem. in Supp. of Pl.'s Motions For Leave to Amend and Recons. at 2.) These statements clarify that Laber's religious discrimination claim was one for additional relief only. In addition, the Army early (and often) characterized that claim as one for "additional compensation." (Mem. in Supp. of Def.'s Mot. For Summ. J. at 1.) Not once before the district court's grant of summary judgment did Laber attempt to disabuse either the Army or the district court of any alleged misunderstanding of his religious discrimination claim.
As discussed below, Laber argued to the district court that he intended to put the Army's religious discrimination at issue. In interpreting a pro se complaint, however, our task is not to discern the unexpressed intent of the plaintiff, but what the words in the complaint mean. And while we must construe pro se complaints liberally, see Hemphill v. Melton, 551 F.2d 589, 590-91 (4th Cir. 1977), to hold that Laber's complaint seeks a judicial determination of the Army's alleged religious discrimination, would not be liberal interpretation, but complete rewriting.
Of course, if the district court believed that it lacked subject-matter jurisdiction over Laber's claim for additional relief, the proper course would have been to dismiss the claim instead of granting summary judgment on it. Cf. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 819 (4th Cir.2004) (en banc) (reversing district court's entry of summary judgment and remanding for district court to remand to state court where district court lacked jurisdiction over removed claim). We do not reverse on this ground, however, because we hold, as discussed in detail below, that the district court's conclusion that it lacked subject-matter jurisdiction over the claim for additional relief was erroneous, and it therefore had the power to enter judgment for the Army.
42 U.S.C.A. § 2000e-16(c) (emphasis added). Section 2000e-5 provides that a private sector employee may also bring a "civil action" alleging employment discrimination. 42 U.S.C.A. § 2000e-5(f)(1).
42 U.S.C.A. § 2000e-5(g)(1) (emphasis added). This section also governs the "civil action" created for federal employees in § 2000e-16. See 42 U.S.C.A. § 2000e-16(d) ("The provisions of section 2000e-5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder, and the same interest to compensate for delay in payment shall be available as in cases involving nonpublic parties.").
Nothing in this opinion precludes the Army from raising its untimeliness argument on remand.
We respectfully disagree with Judge Niemeyer's argument that Laber's amended complaint does not initiate a "civil action." Laber's amended complaint undoubtedly seeks a de novo judicial evaluation of the proper remedy. (Pl.'s Amended Complaint ("Plaintiff claims pecuniary, non-pecuniary compensatory damages, and to be made whole absent the discrimination . . . in accordance with all applicable laws.").) As we have observed (and refrained from deciding), it may be that one or more affirmative defenses, if raised on remand, will prevent Laber from obtaining such an evaluation. In such a case, Laber's "civil action" will fail, but it will not cease to be a "civil action." In other words, certain affirmative defenses, if raised on remand, may operate to deny Laber de novo judicial consideration of his claim, but this fact does not mean that Laber's amended complaint does not seek judicial consideration of those issues in the first place. To hold otherwise, as Judge Niemeyer suggests, would convert affirmative defenses from arguments that must be raised by the defendant, see Fed R. Civ. P. 8(c), to threshold hurdles that the plaintiff must surmount. We believe such a holding is incorrect.
As to Judge Niemeyer's second argument—that Laber's suit is barred under the doctrines of estoppel and equitable mootness—we decline to address the argument because the Army did not make it. Judge Niemeyer cites a sentence from the Army's brief it suggests raises the estoppel and equitable mootness arguments, but it is clear that neither the quote nor any other portion of the Army's brief remotely resembles the argument Judge Niemeyer's dissent makes. If the Army wishes, it can raise the argument on remand, and the district court can address the issue with the benefit of full briefing.
Of course, this conclusion turns blinders to the proceedings to date in which Laber did file a civil action in the district court and the district court did already dismiss it precisely because Laber had already pursued an agency action and could not now file a civil action de novo. The majority is running the procedure in this case in circles, and expensive ones for judicial administration.