* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Ruggero J. Aldisert, Senior Circuit Judge , United States Court of Appeals for the Third Circuit, sitting by design ation.

UNITED STATES COURT OF APPEALS Filed 10/23/96 FOR THE TENTH CIRCUIT

MITCHEL DON HAWKINS, on behalf of himself and all persons similarly situated,

Plaintiff-Appellant,

v. DEFENSE LOGISTICS AGENCY OF THE DEPARTMENT OF DEFENSE, UNITED STATES OF AMERICA,

Defendant-Appellee. No. 95-6441 (D.C. No. CIV-95-1479-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA, ALDISERT, ** and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 Plaintiff’s reliance on Zipes v. Trans World Airlin es, Inc. , 455 U.S. 385

(1982), for a contrary, nonjurisdictional character ization of administrative exhaustion is misplaced. Zipes held only that the timeliness requirement for administration charges is, like a statute of limitations, subject to such equitable exceptions as waiver, estoppel, and tolling. Id. at 393. That holding does not undercut this court’s exhaustionrule--adhered to before and after Zipes --that the (continued...) -2- this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Mitchel Hawkins lost his job with the def endant Defense Logistics Agency (DLA) pursuant to a reduction in force that he contends had a disparate impact on disabled employees in violation of Sectio n 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791. While prosecuting anadministrative claim for the alleged discrimination, plaintiff brought this acti on solely for injunctive relief to nullify/preclude adverse personnel actions by DLA d uring the pendency of the administrative proceedings. Noting that the merits of the discrimination claim underpinning this action had not been exhausted, th e district court held it lacked subject matter jurisdiction and dismissed. On de n ovo review, Knopp v. MaGaw , 9 F.3d 1478, 1479 (10th Cir. 1993), we affirm for s ubstantially the reasons stated by the district court. This circuit deems the exhaustion of administrative remedies to be a prerequisite to federal court jurisdiction--whetherinvoked for legal or, as here, strictly equitable relief--in statutory discriminat ion cases. 1 See, e.g. , Knopp , 91 (...continued)

administrative process must still be pursued before jurisdiction in federal court can be invoked. AccordDavis v. North Carolina Dep’t of Correction , 48 F.3d 134, 140 (4th Cir. 1995); Bullard v. Sercon Corp. , 846 F.2d 463, 468 (7th Cir. 1988); Worrell v. Uniforms To You & Co. , 673 F. Supp. 1461, 1462-63 (N.D. Cal. 1987).

2 In contrast to unauthorized attempts by private parties to obtain premature judicial intervention in the administrative process , if the EEOC “concludes on the basis of a preliminary investigation [of a pending administrative charge] that prompt judicial action is necessary,” the EEOC (or, in federal employment cases, the Attorney General) “may bring an action [in fede ral court] for appropriate temporary or preliminary relief [under Fed. R. Civ. P. 65] pending final disposition of such charge.” 42 U.S.C. § 2000e-5(f )(2). -3- F.3d at 1479; Khader v. Aspin , 1 F.3d 968, 970-71 (10th Cir. 1993). Thus, in Knopp , we held that the district court exceeded its auth ority by granting precisely the sort of injunctive relief sought here, involvin g judicial intervention in pending administrative proceedings, because “subject matterjurisdiction must attach before the court may exercise its equitable powers. ” 2 9 F.3d at 1479-80. As plaintiff notes, however, this court has acknowl edged that, notwithstanding its jurisdictional character, the p rinciple of administrative exhaustion “is not indiscriminately applied to bloc k judicial action in every circumstance where a litigant has failed to explore his administrative avenues of relief.” New Mexico Ass’n for Retarded Citizens v. New Mexico , 678 F.2d 847, 850 (10th Cir. 1982). More specifically, we have r ecognized an exception based on considerations of delay and consequent prejudice : “Nor will exhaustion of administrative remedies be required where it would result in irreparable harm.-4-

This is especially true where time is crucial to th e protection of substantive rights and administrative remedies would involve delay.” Martinez v. Richardson , 472 F.2d 1121, 1125 n.10 (10th Cir. 1973). Plaintiff i nvokes this exception, but we deem it inapposite for several reasons. The court in Martinez faced an extraordinary situation--a valid constitutional challenge to the procedures of the v ery agency presiding over the administrative process the plaintiffs would have be en required to exhaust--that has no analogue here. Moreover, the Martinez court was not constrained, as we are, by “all fours” precedent rejecting precisely t he sort of judicial relief sought. Further, the remedial administrative process in Martinez was “long and tedious” and therefore deemed “grossly inadequate,” id. at 1125, while the statutory procedures here specifically incorporate a number o f safeguards against administrative delay. See 42 U.S.C. § 2000e-5(b), (f). Finally, as for irre parable harm, plaintiff’s vague reference to unidentified e mployment “skills which will likely be lost during administrative appeals,” Appe llants’ Brief in Chief at 9, falls far short of the imminent threat of death to the il l, elderly plaintiffs identified in Martinez

. Plaintiff prematurely invoked the jurisdiction of the district court, and his application for injunctive relief was properly dism issed under Fed. R. Civ. P. 12(b)(1) accordingly. If and when the jurisdiction al prerequisites are met and-5-

judicial review commences, this nonmerits dispositi on shall not preclude plaintiff from then seeking equitable protection of his inter ests pursuant to 42 U.S.C. § 2000e-5(g). See Fed. R. Civ. P. 41(b). The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge