In the

United States Court of Appeals

For the Seventh Circuit

No. 98-3955

Cecil W. Watson,

Plaintiff-Appellant,

v.

William J. Henderson, Postmaster General

of the United States,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 C 7044--David H. Coar, Judge.

Argued April 19, 2000--Decided July 24, 2000

 Before Posner, Chief Judge, and Coffey and

Easterbrook, Circuit Judges.

 Easterbrook, Circuit Judge. A decade ago Cecil

Watson applied for a managerial position at a

post office. He was turned down, and in 1993 the

Equal Employment Opportunity Commission concluded

that his race influenced the adverse decision.

The EEOC required the Postal Service to promote

Watson and restore salary and benefits lost

during the interim. (When the Postal Service is

the employer, the EEOC has the authority to make

decisions that become final unless contested by

the agency--and the Postal Service did not

contest the EEOC’s position, so the EEOC’s view

became the Postal Service’s final agency

decision. See 42 U.S.C. sec.2000e-16(b); 29

C.F.R. sec.sec. 1614.109, 1614.110.) But the

Postal Service did not promote Watson. His

existing position as a supervisor of customer

services had been reclassified to pay grade EAS-16

before the EEOC issued its decision, and the

Postal Service concluded that this was just as

good as promoting him. It gave Watson back pay,

but only to the day when he began receiving pay

at the EAS-16 rate. He protested to the EEOC, which

initially found that he had received his due. But

after an administrative appeal the Commission

concluded that the record did not permit a

confident decision whether the positions of

Supervisor, Customer Services, and Manager,
Customer Services, are equivalent. It directed

the Postal Service to address that question and,

if the positions are not equivalent, to promote

Watson and afford him "all benefits for makewhole relief (including, but not limited to,

backpay and interest)." After the Postal Service

informed Watson that it would do nothing further

for him, he filed this civil action under

sec.2000e-16(c), seeking enforcement of the 1993

decision. Whether sec.2000e-16(c) or the APA, 5

U.S.C. sec.706(1), is the right avenue for a

dispute of this kind, see West v. Gibson, 527

U.S. 212, 219 (1999), is an issue that the

parties have not addressed, and that we likewise

bypass.

 After a bench trial, the district court

concluded that the two positions are not

equivalent--not only because one is higher than

the other in the chain of command, but also

because the duties and often the salaries differ.

It directed the Postal Service to give Watson the

next managerial EAS-17 job that becomes available

in its Northern Illinois District, and to give

Watson the benefits of an EAS-17 position until

that promotion occurs. But the court declined to

award Watson back pay, or to determine what other

benefits (including, perhaps, promotion to EAS-18)

Watson would have received had he been promoted

in 1990, as he should have been. Accepting the

Postal Service’s argument, the district court

concluded that all forms of relief other than

promotion were forfeited when Watson’s lawyer

failed to file a timely brief in support of his

appeal within the EEOC. Under the EEOC’s

regulations, "[a]ny statement or brief in support

of the appeal must be submitted to the Director,

Office of Federal Operations, and to the agency

within 30 days of filing the appeal." 29 C.F.R.

sec.1614.403(d). (Section 1614.403 has been

rewritten, effective November 9, 1999, see 64

Fed. Reg. 37644, 37659 (July 12, 1999), but the

change does not alter the substance of the quoted

provision.) Watson filed his appeal on October

24, 1995, but did not submit a supporting

statement until December 4, 1995. The Commission

elected not to consider the untimely statement

(or a second, wildly out-of-time statement

received in April 1996). Because the EEOC

disregarded Watson’s statements, the district

judge concluded, Watson has not exhausted his

administrative remedies with respect to the

issues discussed in the statements.

 On appeal, the Postal Service has confessed

error on the subject of exhaustion. In evaluating

this new position, we must distinguish two

possibilities. First, it may be unnecessary for

an appellant ever to present arguments on

administrative appeal within the EEOC. That is to
say, "issue exhaustion" may be unnecessary, even

though it is essential to file with the agency a

charge that makes the basic claim of

discrimination. The Supreme Court recently

reached this conclusion with respect to the

Appeals Council of the Social Security

Administration, see Sims v. Apfel, 120 S. Ct.

2080 (2000), and because sec.1614.403(d) is an

invitation rather than a command to file a

statement, the EEOC may receive similar treatment.

Second, it may be unimportant what the appellant

files if the agency has addressed an issue. That

is to say, an issue may be deemed exhausted if

either presented to the EEOC in a statement or

actually addressed by the agency. An issue

neither presented in a statement nor decided by

the agency would not be preserved for judicial

review--although even then the agency’s lawyers

could forfeit the benefits of the private party’s

forfeiture, because an issue-exhaustion

requirement is not jurisdictional. See Sims, 120

S. Ct. at 2083 n.1; Gibson v. West, 201 F.3d 990,

993-94 (7th Cir. 2000). (There is a third

possibility--that because a federal employee may

obtain de novo consideration under sec.2000e16(c) without protesting to the EEOC about the

employer’s noncompliance, it does not matter what

happened before the EEOC in 1995 and 1996. But

perhaps an employee who chooses to complain

within the bureaucracy must give the agency a

reasonable opportunity to investigate and decide.

We put this third possibility to one side, as the

parties have not addressed it.)

 We assumed in Gibson that an employee engaged

in administrative adjudication must specifically

identify each form of relief the employee seeks.

Whether Sims justifies a different view is a

difficult question. The Court relied on the fact

that the Social Security Administration made

optional a statement of grounds in support of an

administrative appeal; sec.1614.403(d) also

sounds optional. But all nine Justices also

agreed that it is ordinarily essential to raise

each issue before the agency, and Justice

O’Connor, whose vote was essential to the

majority in Sims, explained her position in a way

suggesting that the Social Security

Administration is unique. That agency invited

appellants to include a statement of reasons

within the request for review and provided only

three lines for that purpose. According to the

Social Security Administration, completing the

form requires only 10 minutes. The tiny space and

short time implied to Justice O’Connor that the

Social Security Administration discourages

appellants from providing reasons and thus must

proceed without them. The EEOC, by contrast, gives

appellants 30 days to file a separate statement

in the nature of an appellate brief. It neither
discourages the filing of such statements nor

implies that grounds will be short and easy to

present. Section 1614.403(d) allows the agency to

file a statement in reply. All of the Justices in

the Sims majority deemed it important that the

Appeals Council used inquisitorial rather than

adversarial procedures. See also Johnson v.

Apfel, 189 F.3d 561 (7th Cir. 1999) (anticipating

the holding of Sims). The process the EEOC has

adopted for claims against federal agencies looks

more adversarial. Even after Sims, then, it

remains a distinct possibility that failure to

file a statement in support of an appeal to the

EEOC forfeits all arguments--or at least that the

EEOC may deem the omission a forfeiture if it

chooses.

 We need not decide what happens when the EEOC

treats a subject as forfeited, or what happens

when a line of argument is neither raised before

nor addressed by that agency. For although the

EEOC elected to disregard the two statements

Watson filed, it did not say that his delay

forfeited entitlement to any element of relief.

On the contrary, the EEOC discussed back pay,

found the record inadequate, and directed the

Postal Service to address the issue anew and

afford Watson "all benefits for make-whole relief

(including, but not limited to, backpay and

interest)." The EEOC also directed the Postal

Service to determine "what EAS level [Watson]

would now be assigned if he had not been

wrongfully denied the position in 1990." Because

the Postal Service agreed back in 1993 to his

promotion with back pay and interest, Watson is

entitled to judicial review of his contention

that the Postal Service failed to implement that

decision.

 Watson seeks an additional form of relief:

compensatory damages on account of the Postal

Service’s failure to implement the EEOC’s

decision, a failure that Watson describes as

retaliation for his continued efforts to secure

promotion and back pay. Here, however, Watson’s

forfeiture is complete. He did not present a

retaliation claim to the EEOC. A second charge of

discrimination was unnecessary, see McKenzie v.

Illinois Department of Transportation, 92 F.3d

473, 482-83 (7th Cir. 1996); Malhotra v. Cotter

& Co., 885 F.2d 1305, 1312 (7th Cir. 1989), but

because the EEOC was the adjudicator as well as

the investigator Watson had to alert it to his

theory, yet did not. The Commission did not raise

or adjudicate the subject on its own, did not

conclude that Watson is the victim of

retaliation, and did not order the Postal Service

to provide any relief. Watson’s claim of

retaliation surfaced for the first time in the

district court, which is too late.
 The Postal Service contends that remand is

unnecessary even with respect to back pay and the

appropriate EAS grade, asserting that Watson has

received full relief. Perhaps the record would

support that conclusion, but the district court

did not reach it. The only view the district

judge announced on these subjects is that Watson

had forfeited them. By directing the Postal

Service to promote Watson to a manager’s position

as quickly as possible (and to increase his grade

level to EAS-17 until the promotion occurs) the

district judge implied that back pay, at least,

may well have been appropriate had the request

been preserved. Given our conclusion that the

request has been preserved, the district judge

must determine whether Watson is entitled to

additional relief, and if so to what particular

relief. Only after that decision has been made

will it be appropriate to decide whether the

record supports the judgment.

Reversed and Remanded