United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2021 Decided June 29, 2021

No. 19-5343

ANDREW H. FARRAR,

APPELLANT

v.

BILL NELSON, IN HIS OFFICIAL CAPACITY AS THE 

ADMINISTRATOR OF THE NATIONAL AERONAUTICS AND SPACE 

ADMINISTRATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-00846)

Kathryn A. Robinette, appointed by the court, argued the 

cause as amicus curiae in support of appellant. With her on the 

briefs was Matthew M. Collette, appointed by the court.

Andrew H. Farrar, pro se, argued the cause and filed the 

briefs for appellant.

Katherine B. Palmer-Ball, Assistant U.S. Attorney, argued 

the cause for appellee. With her on the brief was R. Craig 

Lawrence, Assistant U.S. Attorney.
2

Before: SRINIVASAN, Chief Judge, WILKINS and WALKER, 

Circuit Judges.

Opinion for the Court filed by Circuit Judge WALKER.

WALKER, Circuit Judge: Andrew Farrar sued NASA for

disability discrimination. The district court dismissed the 

action because he accepted administratively-awarded damages 

before filing suit. But NASA has pointed to no federal statute 

or regulation that requires Farrar to return, or offer to return,

that money before suing in district court. We therefore reverse 

the district court’s order and remand for further proceedings. 

I

Andrew Farrar began working for NASA’s Equal 

Opportunity and Diversity Management Division in 2010. 

When NASA fired him five months later, he filed an 

administrative action alleging disability discrimination under 

the Rehabilitation Act of 1973, as amended. 29 U.S.C. §§ 791

–794g.

1

For the most part, Farrar prevailed. NASA’s Associate 

Administrator for Diversity and Equal Employment issued a 

Final Agency Action concluding that NASA had discriminated 

against Farrar. NASA awarded him compensatory damages, 

costs, and fees totaling just under $13,000. 

Not satisfied with this award, Farrar appealed the Final 

Agency Action to the Equal Employment Opportunity 

Commission. See 29 C.F.R. § 1614.401(a). Again, Farrar 

1 Farrar’s administrative complaint alleged disability discrimination, 

failure to accommodate a disability, and retaliation. Farrar did not 

bring a retaliation claim in district court. 
3

prevailed. See Farrar v. Bridenstine, EEOC Appeal No. 

0120161456 (2018). The Commission agreed that NASA 

discriminated against him and increased the amount NASA 

would pay Farrar to about $35,000. Id. at 13. By default an 

agency has 120 days after the Commission’s decision to pay an 

employee damages, but here the Commission ordered NASA 

to pay Farrar within 60 days. Id.; 29 C.F.R. § 1614.502(c). 

After exhausting his administrative appeals, Farrar 

enjoyed two options: “either accept the [Commission’s] 

disposition and its award, or file a civil action” in district court. 

Scott v. Johanns, 409 F.3d 466, 472 (D.C. Cir. 2005). Farrar 

had 90 days after the Commission’s decision to file suit. 42 

U.S.C. § 2000e-16(c).

2

 That put Farrar’s deadline to file suit

30 days beyond NASA’s deadline to pay him.

After NASA paid him, Farrar filed a civil action, alleging 

disability discrimination under the Rehabilitation Act. But 

because Farrar had already accepted and retained the monetary 

award from NASA, the district court said “he does not get 

another bite at the apple” and dismissed his case. Farrar v. 

Bridenstine, No. 19-846, 2019 WL 4889251, at *2 (D.D.C. 

Oct. 3, 2019). 

Farrar appealed. We have jurisdiction, 28 U.S.C. § 1291,

and we review the district court’s decision to dismiss de novo. 

Statewide Bonding, Inc. v. U.S. Department of Homeland 

Security, 980 F.3d 109, 114 (D.C. Cir. 2020). 

2 See also 29 U.S.C. § 794a(a)(1) (adopting the “remedies, 

procedures, and rights” under Title VII of the Civil Rights Act of 

1964 for federal employees filing civil actions).
4

II

In Scott v. Johanns, this court held that federal employees 

suing agencies for discrimination in district court may not 

challenge only an administrative remedy without also placing 

liability at issue. 409 F.3d 466, 472 (D.C. Cir. 2005). In other 

words, under Scott, a federal employee can’t bind the 

government to an administrative finding of liability and then 

litigate only the remedy in court. Employees who roll the dice

in federal court might come out ahead, lose everything, or end 

up somewhere in between.

Scott did not address the question presented by Farrar’s 

suit: whether a federal employee who has retained an 

administrative remedy must disgorge, or offer to disgorge, the

award upon filing a de novo lawsuit. When the Fifth Circuit

took up that question in Massingill v. Nicholson, it held that

“there is nothing in the statute creating the right of action which 

precludes suit if the award has been partially or even 

completely rendered.” 496 F.3d 382, 386 (5th Cir. 2007)

(cleaned up). In Massingill, “the administrative scheme ha[d]

played out, the plaintiff ha[d] ninety days to sue, and she d[id]

so within that time.” Id. As far as statutory requirements, 

Massingill said — and we agree — they demand nothing more.

Several district courts have reached the opposite 

conclusion. They found it dispositive that the plaintiff didn’t 

express an intent to return an administrative award. See Farrar 

v. Bridenstine, No. 19-846, 2019 WL 4889251, at *2 (D.D.C. 

Oct. 3, 2019) (“As Farrar never mentions any desire or 

agreement to return the money he has received pending the 

outcome of this suit, he cannot proceed.”); see also St. John v. 

Potter, 299 F. Supp. 2d 125, 129 (E.D.N.Y. 2004) (granting 

summary judgment to the government because, among other 

things, “the plaintiff ha[d] not offered to return the money she 
5

has received and deposited”); cf. Legard v. England, 240 F.

Supp. 2d 538, 546 (E.D. Va. 2002) (“plaintiff could have 

avoided today’s result by notifying defendant that he intended, 

or even that he contemplated, filing an appeal or a civil 

action”). 

In this case, Farrar has also expressed no such intent. But 

so what? Farrar sued under the Rehabilitation Act, which gives 

employees 90 days from the Commission’s decision — without 

referring to its award — to file a civil action. 42 U.S.C. 

§ 2000e-16(c). The Act says nothing about requiring an 

employee to first disgorge, or offer to disgorge, an 

administrative remedy already received. Although Farrar 

could have returned, or offered to return, his award before 

filing suit, the statute doesn’t require it. And we cannot read 

that requirement into the statute without rewriting it.

In addition, the Commission’s regulations show it is aware 

that it sometimes orders agencies to pay an employee’s 

damages before the employee files a civil action. That’s why, 

in 2012, the Commission extended agencies’ usual deadline to 

pay an employee’s administrative damages from 60 to 120 

days. See Federal Sector Equal Employment Opportunity, 77

Fed. Reg. 43,498, 43,503 (July 25, 2012) (“[T]he Commission 

believes that agencies should not be required to provide relief 

before the expiration of the complainants’ 90-day right to file 

suit period.”). The Commission nevertheless retained

discretion to order payment before 120 days. 29 C.F.R. 

§ 1614.502(c) (“The relief shall be provided in full not later 

than 120 days after receipt of the final decision unless 

otherwise ordered in the decision.”) (emphasis added). 

That’s precisely what the Commission did here. Knowing 

full well that Farrar might file a de novo action in district court, 

the Commission used its discretion to “otherwise order[]” a 
6

shorter deadline for relief. If NASA didn’t want to pay Farrar 

until the clock for Farrar to file suit had run out, NASA could 

have asked the Commission to reconsider its order to pay Farrar 

before his 90-day filing deadline. Oral Arg. Tr. at 16; see also

29 C.F.R. § 1614.502(b)(2) (an agency may request 

reconsideration of a payment decision). 

Notably, when the Commission considered changing 

agencies’ payment deadline, it received comments 

“suggest[ing] that EEOC should allow complainants to certify 

that they will not file suit, and then require agencies to provide 

relief within 30 or 60 days of certification.” 77 Fed. Reg. at

43,503. That the Commission declined to adopt a certification 

requirement or even make it an option lends further support to

our conclusion.

Of course, Farrar risked losing his previously-awarded 

damages when he filed his civil action. The district court may 

find no liability on his claim, and NASA could file a 

counterclaim to recover the administrative award, although we 

express no opinion on its propriety or timeliness. Oral Arg. Tr. 

at 7. This is a risk Farrar appears willing to take. See Pro Se 

Appellant’s Br. at 27 (“Farrar invoked his statutory right to 

judicial trial de novo . . . in the District Court”); Oral Arg. Tr. 

at 4 (“We’re not arguing that Mr. Farrar would not be required 

to return his administrative award if he ultimately was 

unsuccessful . . . .”). 

For now, we hold only that the Rehabilitation Act and 

governing regulations do not foreclose Farrar’s civil action in 

this case. And because NASA did not advance any equitable 

defenses to Farrar’s complaint, see NASA’s Motion to 

Dismiss, we do not consider whether Farrar is otherwise 

estopped from filing suit, cf. Fed. R. Civ. P. 8(c) (“Affirmative 

Defenses”). 
7

* * *

Farrar did not need to disgorge (or offer to disgorge) his 

administrative award before filing suit. We reverse the district 

court’s order dismissing his suit and remand for further 

proceedings.