United States Court of Appeals

Fifth Circuit

FILED

August 23, 2005

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 05-30037

Summary Calendar

_______________

LIONEL ROLLAND, JR.,

Plaintiff-Appellant,

VERSUS

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS;

ANTHONY J. PRINCIPI,

SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, IN HIS INDIVIDUAL CAPACITY;

JIM NICHOLSON,

SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, IN HIS OFFICIAL CAPACITY;

JOHN D. CHURCH, JR.,

DIRECTOR OF THE DEPARTMENT OF VETERANS AFFAIRS,

IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;

CASSANDRA HOLIDAY,

INDIVIDUALLY,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

m 2:03-CV-570

m 2:03-CV-3584

______________________________
2

Before DAVIS, SMITH, and DENNIS, 

Circuit Judges.

PER CURIAM:

*

Lionel Rolland, Jr., appeals a summary

judgment and dismissal of his suit against his

former employer, the United States Department of Veterans Affairs(“VA”).1

 Finding no

error, we affirm, essentially for the reasonsset

forth by the district court in its comprehensive,

twenty-nine-page opinion.

I.

Rolland alleges discriminatory treatment at

the workplace, including retaliation and termination, on the basis of sex, race, color, and

disability.2 He bases these claims on the

Americans with Disabilities Act,3the Rehabilitation Act,4

the Family Medial Leave Act

(“FMLA”),5title VII of the CivilRights Act of

1964,6 and 42 U.S.C. §§ 1981, 1983, 1985,

and 1986. He bases federal jurisdiction on title

VII and 42 U.S.C. §§ 1983, 1985, and 1986.

The district court dismissed the title VII,

FMLA, and Rehabilitation Act claims for lack

of jurisdiction for failure to exhaust available

administrative remedies. The claims under the

ADA and the civil rights statutes were dismissed for failure to state a claim on which

relief could be granted and as preempted. 

On appeal, both parties limit their briefing

to the issues surrounding the title VII claims;

therefore, our review is limited likewise. We

review both a dismissal under Federal Rule of

Civil Procedure 12(b) and a summary judgment under FederalRule ofCivil Procedure 56

de novo.

7

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published

and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 Rolland also names as defendants, in their various capacities, certain VA officials and employees. The district court found that these individuals

were not properly before the court as defendants:

“[T]here is no allegation that either Secretary

Principi or Director Church committed any act or

omissionwith regard to [Rolland’s] complaints and

certainly not in any capacity other than an official

one . . . . Nowhere in Rolland’s complaints has he

alleged or described any conduct by Holiday in an

individual capacity . . . .” On appeal these parties

remain nominally part of the suit, but Rolland does

not appeal the district court’s finding that these

persons are not proper defendants. Therefore, we

treat this matter as though Rolland had sued

Principi in his professional capacity as Secretary

and thereby the VA itself.

2

In addition he alleged a state law claim,

which was dismissed pursuant to Federal Rule

(continued...)

2

(...continued)

of Civil Procedure 12(b)(6). Rolland does not

appeal this decision.

3

 42 U.S.C. § 12101 et seq.

4

 29 U.S.C. § 701 et seq.

5

 29 U.S.C. § 2601 et seq.

6

 42 U.S.C. § 2000e et seq.

7 Hebert v. United States, 53 F.3d 720, 722

(5th Cir. 1995) (“We review de novo a district

court’s granting of a motion to dismiss for lack of

subject matter jurisdiction.”); Armstrong v. City of

Dallas, 997 F.2d 62, 65 (5th Cir. 1993) (“We

review the grant of summary judgment de novo,

applying the same standard as the district court.”).

For summary judgment, the Court views all evidence in the light most favorable to the non-moving

(continued...)
3

II.

Rolland initially complained to the Equal

Employment Opportunity Commission

(“EEOC”) of his perceived workplace discrimination; he chose to appeal the EEOC’s

final decision to the Merit System Protection

Board (“MSPB”). After sending a letter to the

MSPB, requesting dismissal of his appeal, he

received an initial decision from the MSPB

stating that his case had been dismissed. In

this document he was informed that the decision would become final in 30 days and would

become appealable at that point. He sued in

federal court 27 days later.

III.

The VA is a federal agency. Sovereign immunity protectsthe federal government and its

agencies from being sued without consent.8

Sovereign immunity is waived by clear and unequivocalstatutory language. United States v.

Dalm, 494 U.S. 596, 608 (1990); Shanbaum,

32 F.3d at 181. Title VII permits suit against

the federal government in cases alleging discrimination in a government workplace if all

administrative remedies are exhausted first.9

In Tolbert v. United States, 916 F.2d 245

(5th Cir. 1990), we defined title VII’s exhaustion standard as requiring a plaintiff to file his

lawsuit timelySSnot before and not after the

statutorily allotted time. “It seems obvious

that [a complainant] who files too early, has,

by definition, filed before [he] has exhausted

[his] administrative remedies . . . .” Id. at 247-

48. We reasoned that filing too early is not a

defect that can be cured by the passage of

time. Id. at 249. 

Title 5 U.S.C. § 7703(b) permits a judicial

appeal of an MSPB final ruling. Rolland sued

in federal court three days before the MSPB

decision became final. He therefore did not

exhaust the available administrative remedies.

Consequently, jurisdiction has not vested in

federal court.

Rolland attempts to invoke the doctrine of

equitable tolling.10 As the district court point 7

(...continued)

party. Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 150 (2000) (“In [entertaining

a motion for summary judgment] the court must

draw all reasonable inferences in favor of the

nonmoving party . . . .”).

8 United States v. Testan, 424 U.S. 392, 399

(1976) (“It long has been established, of course,

that the United States, as sovereign, ‘is immune

from suit save as it consents to be sued . . . and the

terms of its consent to be sued in any court define

that court’s jurisdiction to entertain the suit.’”)

(quoting United States v. Sherwood, 312 U.S. 584

(1941)); Shanbaum v. United States, 32 F.3d 180,

181 (5thCir. 1990) (noting that the federal government may be sued only on clearly stated consent);

Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471

(1994) (“Absent a waiver, sovereign immunity

shields the Federal Government and its agencies

from suit.”) 

9

42 U.S.C. § 2000e-16(a) (1994); Brown v.

Gen. Servs. Admin., 425 U.S. 820 (1976) (holding

that title VII requires compliance with administrative procedures before the federal courts acquire

jurisdiction).

10 This argument is intermingled, in Rolland’s

brief, with the contention that federal courts acquired jurisdiction of the claim 180 days after he

filed his first complaint with the EEOC. This argument is incorrect. After Rolland received a final

decision from the EEOC, he was given a choice of

pursuing an appeal in federal court or with the

MSPB. He elected the MSPB and thereby committed himself to abide by these administrative procedures. See Vinieratos v. United States Dep’t of

(continued...)
4

ed out, however, this doctrine is applicable in

only very limited circumstances.11 A

complainant’s failure to follow administrative

procedures, particularly where he is represented by counsel, is not one of the grounds

for equitable tolling. 

IV.

Rolland’s employment discrimination claims

under §§ 1983, 1985, and 1986 are precluded

by our caselaw. “Title VII provides the exclusive remedy for employment discrimination

claims raised by federal employees.” Jackson

v. Widnall, 99 F.3d 710, 716 (5th Cir. 1996)

(citing Brown, 425 U.S. at 835). The district

court properly dismissed those claims.

AFFIRMED.

10(...continued)

Air Force, 939 F.2d 762 (9th Cir. 1991) (“[Title

VII] requires an aggrieved federal employee to

elect one exclusive remedy and to exhaust whatever

remedy he chooses.”).

11 As eloquently stated by the district court,

“[t]he doctrine of equitable tolling . . . may be

invoked when:(1) the claimant actively pursued his

judicial remedies in the prescribed time period; (2)

he was induced or tricked by his adversary’s

misconduct into allowing the deadline to pass;

(3) the court leads a plaintiff to believe that he has

done all that is required; (4) the plaintiff has received inadequate notice . . . .” See Irwin v. Dep’t

of Veterans Affairs, 498 U.S. 89, 96 (1990) (noting instances of equitable tolling where the complainant pursued judicial remedies within the

appropriate statutory time or was tricked by his

adversary as to the filing deadline, but refusing to

receive an untimely filing where the claimant did

not exercise due diligence); Teemac v. Henderson,

298 F.3d 452, 457 (5th Cir. 2002) (stating lack of

proper notice is ground for equitable tolling); South

v. Saab Cars USA, Inc., 28 F.3d 9, 11-12 (2d Cir

1994) (listing a court’s behavior, leading plaintiff

to believe no more is required, as a reason for

equitable tolling).