* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20874

Summary Calendar

JACK W DEVAUGHN, JR

Plaintiff - Appellant

v.

UNITED STATES POSTAL SERVICE, John E Potter Post Master General;

PATRICK KEYS

Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas, Houston

USDC No. 4:06-CV-3233

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Plaintiff Jack Devaughn appeals the district court’s judgment dismissing

his employment discrimination case. Devaughn alleges that the defendants

discriminated against him in terminating his employment with the United

States Postal Service as a letter carrier. He did not, however, properly navigate

the procedural waters necessary to bring such a claim in federal court, and as

United States Court of Appeals

Fifth Circuit

F I L E D

September 16, 2008

Charles R. Fulbruge III

Clerk
No. 07-20874

1 Devaughn is a black male whose claimed disability is suffering from anxiety and

bipolar disorder. His earlier EEO activity consists of two separate complaints, filed in 2000,

2

a result the district court dismissed his claim for failure to exhaust

administrative remedies. For the reasons that follow, we affirm the judgment

of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Devaughn was originally employed by the United States Postal Service

(the “Postal Service”) as a letter carrier in 1983. On February 5, 2003, the Postal

Service issued to Devaughn a “Notice of Proposed Removal” charging him with

failure to maintain a regular schedule, unsatisfactory work performance, and

failure to follow instructions. The Postal Service subsequently sent Devaughn

a “Letter of Decision” on March 12, 2003, confirming its decision to terminate

Devaughn’s employment. 

The Letter of Decision described Devaughn’s right to appeal his removal

to the Merit Service Protection Board (the “MSPB”) within thirty days of the

decision’s effective date. Further, the Letter of Decision informed Devaughn

that he could challenge his termination with either the MSPB or the Postal

Service’s Equal Employment Opportunity office by stating “[i]f you believe that

the action is based in whole or in part on discrimination, you have the option of

filing an appeal with the MSPB, or filing an EEO complaint with the Postal

Service, but not both.” The Letter of Decision also instructed that “[b]efore filing

an EEO complaint, you must bring the matter to the attention of [an EEO

counselor] within forty-five calendar days of the effective date of this decision.”

Devaughn twice applied for pre-complaint counseling with an EEO

counselor—once on February 25, 2003, based on his proposed removal and once

on March 20, 2003, based on the Letter of Decision. He alleged that he was

improperly terminated on account of his race, sex, disability, and for engaging

in prior EEO activity.1 Because the Postal Service determined these applications
No. 07-20874

that are otherwise unrelated to the present suit.

2 A case is “mixed” when it involves both an adverse employment claim appealable to

the MSPB and a claim of prohibited discrimination. See 5 U.S.C. § 7702; 29 C.F.R.

§ 1614.302(a).

3 The defendants concede that the June 6 Notice of Final Interview was partially

defective for not informing Devaughn of his alternative right to appeal to the MSPB, a right

he utilized on April 8, 2003.

3

were “like and related”—the first was based on Devaughn’s proposed removal

and the second on the final decision to remove him—Devaughn’s first application

was amended to include his second application.

Meanwhile, Devaughn appealed his termination to the MSPB on April 8,

2003, before receiving a Notice of Final Interview from an EEO counselor or

filing a formal EEO complaint. On June 6, 2003, he received a Notice of Final

Interview stating that he had “the right to file a formal complaint within 15

calendar days of the date you receive this notice,” but it did not properly inform

him of his alternative right to appeal to the MSPB due to the “mixed”2 nature of

his claim.3 Nonetheless, Devaughn did not file a formal complaint with the

Postal Service EEO office within the stated fifteen days.

On July 10, 2003, Devaughn voluntarily withdrew his MSPB appeal. The

Administrative Judge (“AJ”) therefore issued an initial decision dismissing

Devaughn’s appeal as withdrawn and indicating thatthe decision would become

final on August 14, 2003, unless Devaughn filed a petition for review by the

MSPB. The initial decision further emphasized that “[t]his is an important date

because it is usually the last day on which you can file a petition for review with

the [MSPB]” and warned “[t]hese instructions are important because if you wish

to file a petition [for review], you must file it within the proper time period.”

After the AJ’s decision became final on August 14, Devaughn sought to

reinstate his MSPB appeal by a letter dated September 23, 2003, explaining that

his withdrawal was inadvertent. The MSPB indicated that it would treat the
No. 07-20874

4 See 29 C.F.R. § 1614.107(a)(4) (stating the agency shall dismiss a complaint “[w]here

the complainant has raised the matter . . . in an appeal to the [MSPB] and . . . the complainant

has elected to pursue the non-EEO process”).

4

September 23 letter as a petition for review and instructed Devaughn that he

must file a motion showing “why there is good cause for the late filing” on or

before October 24, 2003. On October 24, however, Devaughn did not file such a

motion; instead, he filed a second appeal (of the same complained-of conduct)

with the MSPB. The MSPB denied Devaughn’s petition for review on June 25,

2004, noting that he never responded to its notice to show good cause.

Regarding Devaughn’s second MSPB appeal, the AJ dismissed Devaughn’s

appeal without prejudice on December 17, 2003, because the petition for review

of his first appeal was still pending. After the MSPB denied Devaughn’s petition

for review, he soughtto re-file his appeal. The AJ dismissed Devaughn’s re-filed

appeal on November 18, 2004, because the MSPB issued a final decision on

Devaughn’s earlier—and identical—appeal. This decision became final on

December 23, 2004.

While pursuing his appeal with the MSPB, Devaughn additionally

challenged his dismissal on a parallel EEO track. On September 24, 2003, an

EEO counselor sent Devaughn a corrected Notice of Final Interview based on his

mixed claim. Devaughn then filed a formal EEO complaint with the Postal

Service on October 8, 2003. The Postal Service issued a Final Agency Decision

on September 22, 2004, dismissing Devaughn’s complaint because he previously

appealed his claim to the MSPB.4 Devaughn appealed this decision to the Equal

Employment Opportunity Commission (“EEOC”), and the EEOC determined his

complaint was properly dismissed. After that decision, Devaughn brought his

discrimination claim to the district court.

In district court,the defendants filed a motion to dismiss for lack of subject

matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure
No. 07-20874

5 Devaughn also seeks a review of the merits of his discrimination claim. However,

because he failed to exhaust his administrative remedies and estoppel relief does not apply,

the merits of Devaughn’s discrimination claim cannot be reviewed by the court.

5

arguing that Devaughn failed to exhaust his administrative remedies under

Title VII of the Civil Rights Act of 1964. The district court determined that

Devaughn elected to administratively challenge his dismissal with the MSPB,

thus foreclosing his later attempt to utilize the avenue of an EEO complaint.

Further, because Devaughn voluntarily withdrew his MSPB appeal and failed

to timely file a petition for review, the district court held that Devaughn failed

to exhaust his administrative remedies with the MSPB. The district court also

denied Devaughn’s assertion that the defendants should be estopped from

arguing that he failed to exhaust his administrative remedies. The district court

granted the motion to dismiss and entered a final judgment dismissing the case.

Devaughn timely filed notice of appeal. In it, he argues that his pre-complaint

counseling constituted an election to pursue the EEO route and that the

defendants should be estopped because (1) the Letter of Decision did not state

he had a “mixed” claim and (2) the June 6 Notice of Final interview did not

inform him of his election rights.5

II. DISCUSSION

A. Standard of Review

We review de novo the district court’s grant of a motion to dismiss under

Rule 12(b)(1) based on a failure to exhaust administrative remedies. Pacheco v.

Mineta, 448 F.3d 783, 788 (5th Cir. 2006). The district court’s decision not to

apply equitable estoppel, however, is reviewed for an abuse of discretion.

Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 528 (5th Cir. 2000).

B. Failure to Exhaust Administrative Remedies

A federal employee must exhaust his administrative remedies when bringing

suit under Title VII in federal court. Brown v. Gen. Servs. Admin., 425 U.S. 820,
No. 07-20874

6

832–33 (1976). The administrative framework established to vet “mixed” cases

under Title VII begins with a single election by the employee: he may file a

mixed-case complaint with the agency’s EEO office or file a mixed-case appeal

with the MSPB, but not both. 29 C.F.R. § 1614.302(b). Whichever is filed first

is then considered the employee’s election, id., and once chosen, the employee

must exhaust his remedies in that forum, see Tolbert v. United States, 916 F.2d

245, 248 (5th Cir. 1990) (holding that a federal employee must exhaust the

elected avenue of administrative relief under Title VII actions).

Devaughn argues that his requests for pre-complaint counseling constitute

an election to pursue the EEO route. This is incorrect. Pre-complaint

counseling is a prerequisite to filing a formal EEO complaint, 29 C.F.R.

§ 1614.105(a), but it does not take the place of filing a formal complaint. During

this counseling, the complainant is to be informed of his election rights under

§ 1614.302—that is, the right to file a mixed-case appeal with the MSPB or a

mixed-case complaint with the agency’s EEO office. Id. § 1614.105(b)(1). To

hold that pre-complaint counseling constitutes a § 1614.302 election would

render § 1614.105(b)(1)’s requirement superfluous and, as the district court

reasoned, seriously limit the complainant’s options by determining he elected

one route or the other before ever being informed of the choice.

Because Devaughn appealed his mixed case to the MSPB before filing his

formal EEO complaint, he irrevocably elected the MSPB route and was required

to exhaust his remedies there. The combination of Devaughn’s withdrawal, his

untimely petition for review, and his silence in response to the MSPB’s order to

show good cause did not exhaust the remedies in the administrative forum he

elected. As we have noted, “abandonment of the administrative process may

suffice to terminate an administrative proceeding before a final disposition is

reached, thus preventing exhaustion and precluding judicial review.” Randel v.

U.S. Dep’t of the Navy, 157 F.3d 392, 397 (5th Cir. 1998) (emphasis omitted)

(quoting Vinieratos v. U.S. Dep’t of the Air Force, 939 F.2d 762, 770 (9th Cir.
No. 07-20874

7

1991)). The district court therefore correctly determined that Devaughn failed

to exhaust his administrative remedies with the MSPB. 

C. Estoppel

Devaughn further asserts that the defendants should be estopped from

alleging that he failed to exhaust his administrative remedies because (1) the

Postal Service’s Letter of Decision did not inform Devaughn he had a “mixed”

claim and (2) the June 6 Notice of Appeal did not notify Devaughn of his right

to elect to challenge his removal with the MSPB or through the EEO process.

At the outset, we note that this court has recognized inconsistency in our

case law regarding whether a failure to exhaust Title VII administrative

remedies is a jurisdictional requirement or a prerequisite to suit, with the former

barring further judicial review of the matter and the latter permitting equitable

considerations such as estoppel. See Pacheco, 448 F.3d at 788 n.7 (“There is

disagreement in this circuit on whether a Title-VII prerequisite, such as

exhaustion, is a prerequisite to suit, and thus subject to waiver and estoppel, or

whether it is a requirement that implicates subject matter jurisdiction.”). The

Supreme Court has held thatTitle VII’s filing deadlines are prerequisites to suit,

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 96, 94–95 (1990), and at least one

other circuit has characterized the late re-filing of an MSPB appeal as a “failure

to timely exhaust administrative remedies” that is not a “jurisdictional

deficiency,” Harms v. IRS, 321 F.3d 1001, 1009 (10th Cir. 2003). Devaughn’s

failure to timely petition for rehearing may likewise be painted as a failure to

timely exhaust administrative remedies, thus providing jurisdiction to consider

his estoppel arguments. We need not specifically settle this matter, however,

because we hold that the district court did not abuse its discretion in denying

Devaughn relief through estoppel. See Pacheco, 448 F.3d at 788 n.7 (“Because

neither party has a winning waiver or estoppel argument, we need nottake sides

in this dispute.”).
No. 07-20874

8

Establishing equitable estoppel—a doctrine “rarely valid against the

government,” Taylor v. U.S. Treasury Dep’t, 127 F.3d 470, 474 (5th Cir. 1997)

(quoting United States v. Bloom, 112 F.3d 200, 205 (5th Cir. 1997))—requires

proof:

(1) that the party to be estopped was aware of the facts, and

(2) intended his act or omission to be acted upon; [and] (3) that the

party asserting estoppel did not have knowledge of the facts, and

(4) reasonably relied on the conduct of the other to his substantial

injury.

Id. (alteration in original) (quoting United States v. Bloom, 112 F.3d 200, 205

(5th Cir. 1997)). Further, when seeking to establish estoppel against the

government, a party must additionally demonstrate “affirmative government

misconduct.” Id.

Estoppel cannot be established based on the Postal Service’s Letter of

Decision. This letter clearly informed Devaughn of his alternative rights to

appeal his removal to the MSPB or complain of his removal to the EEO office

despite the absence of any language specifically describing Devaughn’s claim as

“mixed.” The letter also warned Devaughn that the available avenues of

challenging his removal could not be simultaneously pursued. The district court

correctly concluded that the letter accurately apprised Devaughn of his election

rights without the necessity of specifically describing his claim as “mixed.”

Based on these facts, Devaughn does not meet the onerous requirements of

estoppel.

Likewise, the incorrect Notice of Final Interview does not support an

estoppel argument. Although the notice failed to inform Devaughn of his right

to appeal his removal to the MSPB, the record demonstrates Devaughn exercised

his appeal right before ever receiving the faulty notice. Additionally, despite

Devaughn’s conclusive assertion that he detrimentally relied on the notice in

withdrawing his MSPB appeal, the record contains no facts supporting this

statement. On the contrary, the facts demonstrate Devaughn was made aware

of his election rights by the Letter of Decision. The AJ’s initial decision then
No. 07-20874

9

advised Devaughn of the necessity of filing a petition for review before the

decision became final on August 14. Nonetheless, when given the opportunity

to show good cause for his untimely petition for review, Devaughn neglected to

assert that he relied in any way on the faulty notice in withdrawing his appeal.

For all of these reasons, the district court did not abuse its discretion in holding

that estoppel does not apply.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.