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. 08-31179

Summary Calendar

JEROME SMITH,

Plaintiff–Appellant,

v.

ANTHONY J. PRINCIPI, SECRETARY, DEPARTMENT OF VETERANS

AFFAIRS,

Defendant–Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:04-CV-55

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Jerome Smith appeals the district court’s dismissal of his complaint filed

pursuant to § 706(f) of the Civil Rights Act of 1964 for lack of subject matter

jurisdiction. Because we hold that the district court had subject matter

jurisdiction to consider the complaint, we reverse the dismissal and remand for

further proceedings.

United States Court of Appeals

Fifth Circuit

F I L E D

August 6, 2009

Charles R. Fulbruge III

Clerk
No. 08-31179

See 42 U.S.C. § 2000e-16(c). 1

2

I

Smith was an escort nursing assistant at the Little Rock, Arkansas

Veterans Affairs facility. He alleges that the facility retaliated against him

because he gave a statement to an administrative investigation board regarding

patient abuse and sexual harassment in the facility. Smith filed a formal

complaint of employment discrimination with the Department of Veterans

Affairs (VA) and requested a hearing before the Equal Employment Opportunity

Commission (EEOC). The EEOC administrative judge (AJ) concluded that

Smith was discriminated against and recommended an award of compensatory

damages, but the VA rejected the AJ’s recommendation and Smith appealed to

the EEOC Office of Federal Operations (OFO). The OFO determined that Smith

was discriminated against and ordered the VA to award Smith damages. The

VA awarded Smith $30,000, paying by a check that Smith subsequently cashed.

Smith then appealed the amount of the award to the OFO, and the OFO

increased the award to $80,000. The VA issued another check for the remaining

$50,000 to Smith, who subsequently cashed the check.

Smith then brought this action in the district court pursuant to the Equal

Opportunity Employment Act of 1972, which permits government employees to

sue their employers under Title VII. The VA filed a motion to dismiss for lack 1

of jurisdiction. The case was assigned to a magistrate judge, who recommended

dismissal of the complaint for lack of jurisdiction. The magistrate judge noted

that the statute only allowed two types of appeals: those to enforce the

administrative award and those seeking de novo review of the administrative

decision. Construing Smith’s complaint to only seek review of the award and not

de novo review of the full administrative decision, the magistrate judge
No. 08-31179

E.I. DuPont de Nemours & Co. v. Sawyer, 517 F.3d 785, 792 (5th Cir. 2008). 2

Massingill v. Nicholson, 496 F.3d 382, 384-85 (5th Cir. 2007). 3

Id. at 385-86.

4

Id. at 386. 5

Id.

6

3

concluded that the court lacked subject matter jurisdiction. The district court

adopted the magistrate’s recommendation and Smith subsequently appealed.

II

We review a district court’s dismissal for lack of subject matter jurisdiction

de novo. We have previously held that a federal-sector employee suing under 2

Title VII cannot request a partial de novo review of the agency’s decision, but

may only seek either a suit to enforce the final administrative disposition or a

de novo review of the entire agency decision, including both liability and the

remedy. Here, Smith does not seek enforcement of the administrative 3

disposition, since the award has already been rendered. The question is whether

Smith’s complaint seeks a partial or complete de novo review of the agency

decision.

In Massingill v. Nicholson, we faced a similar situation. There, the

plaintiff’s complaint was unclear as to whether it sought only a review of the

award or of the entire decision. The complaint both stated that “the amount of 4

the compensatory damages awarded . . . was not appropriate” and asked that

“the Court allow Massingill a trial on the merits as to the discrimination issues

alleged in this case.” Reviewing the complaint “with an eye towards our liberal 5

notice pleading standards,” we concluded that Massingill had requested a

complete trial. We further held that Massingill did not need to disgorge the 6

money she had already received from her award in order to proceed with the

case, noting that “there is nothing in the statute creating the right of action, 42
No. 08-31179

Id.

7

Erikson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citation omitted) 8

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). 

King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). 9

4

U.S.C. § 2000e-16(c), which precludes suit if the award has been partially or

even completely rendered.”7

Here, Smith’s original complaint was filed pro se, though Smith later hired

an attorney. “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se

complaint, however inartfully pleaded, must be held to less stringent standards

than formal pleadings drafted by lawyers.’” Reading Smith’s pro se complaint 8

liberally, we hold that it did seek full de novo review of the agency’s decision.

Smith initially filed a form complaint for a § 706(f) action. He later filed

an “Amended Complaint” which stated that “[t]he Plaintiff would like to Amend

the complaint by attaching the following.” “An amended complaint supersedes

the original complaint and renders it of no legal effect unless the amended

complaint specifically refers to and adopts or incorporates by reference the

earlier pleading.” We liberally construe Smith’s language stating that he was 9

“attaching the following” to the “complaint” as incorporating the previous

complaint by reference. Thus, we will read the original complaint and the

amended complaint together.

Neither the original complaint nor the amended complaint clearly explains

what type of review Smith seeks. In the original complaint, he described the

factual basis for his discrimination claim against the VA. In response to the

form’s prompt, “[I]f you disagree with any of the EEOC’s findings or conclusions,

state why,” Smith referred to an affidavit and amendment to the affidavit filed

with the complaint that described in depth the details of the alleged

discrimination and reprisals against Smith, as well as the mental health issues
No. 08-31179

See Massingill, 496 F.3d at 386. 10

5

from which Smith alleged he suffered due to the reprisals. In his amended

complaint, Smith stated that “[t]he reason of [sic] this Civil Suit is because I am

suffering from on going [sic] Mental Health problems that has [sic] resulted in

physical problems as well,” and goes on to discuss those problems. 

The VA argues that the amended complaint demonstrates that Smith was

only dissatisfied with the amount of compensatory damages awarded and thus

did not seek de novo review of the entire EEOC decision. While it may be true

that Smith’s dissatisfaction derives from the amount of the EEOC’s award, that

alone does not establish that Smith sought only a partial review of the EEOC’s

decision. The fact that Smith included in his complaint and amended complaint

all of the facts underlying the discrimination claim and not just those relating

to the damages award, combined with the absence of any statement clearly

requesting only review of the award, is enough for us to conclude, construing the

complaint liberally, that Smith seeks review of the EEOC’s full decision and not

just the award amount. Therefore, the district court had subject matter

jurisdiction to consider the merits of Smith’s claim.

Moreover, as we held in Massingill, the fact that Smith has cashed the

checks from the previous award and has not returned those amounts to the VA

does not preclude him from bringing this suit. However, if, as a result of the 10

de novo review, no liability is found or a lower award is granted, the VA may

counterclaim against Smith to recover the amounts paid in excess of the

ultimate award.

* * *

We REVERSE the district court’s grant of the motion to dismiss and

REMAND for further proceedings.