United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 22, 2013 Decided March 7, 2014

No. 12-5139

RANDOLPH S. KOCH,

APPELLANT

v.

MARY JO WHITE, IN HER CAPACITY AS CHAIRMAN, UNITED

STATES SECURITIES AND EXCHANGE COMMISSION AND

SECURITIES AND EXCHANGE COMMISSION,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-01225)

Kelly B. McClanahan argued the cause and filed the briefs

for appellant.

Peter R. Maier, Assistant U.S. Attorney, argued the cause

for appellees. With him on the brief were Ronald C. Machen

Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

Attorney.

Before: TATEL and SRINIVASAN, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.
2

RANDOLPH, Senior Circuit Judge: After Randolph Koch

took a stress test in 2007, his cardiologist recommended that

Koch enter a cardiac rehabilitation program. Koch, who was

then working for the Securities and Exchange Commission in

Washington, D.C., submitted a request for a work schedule

accommodation so that he could undergo rehabilitation without

using his work leave. He filed his request under the

Rehabilitation Act, which requires that federal agencies

reasonably accommodate “the known physical or mental

limitations” of an employee if the accommodation would not

impose an “undue hardship” on the agency’s operations. 

Woodruff v. LaHood, 777 F. Supp. 2d 33, 39 (D.D.C. 2011)

(internal quotation marks omitted); see 29 U.S.C. § 791 et seq.

When more than a year passed without Commission action

on his request, Koch began the administrative appeals process. 

He first informally consulted a counselor in the Commission’s

Office of Equal Employment Opportunity (“the Office”), see 29

C.F.R. § 1614.105(a), and he provided that counselor with

medical records in support of his request. He then filed a formal

complaint. See id. § 1614.106.

The Office assigned an investigator named Daniel Jewell to

Koch’s case. Jewell did not work for the Office but was instead

employed by a private firm the Office had engaged to handle

these investigations. An attorney from the Office informed

Koch of Jewell’s involvement via email and explained that Koch

was “obligated to cooperate” with the investigation.

Koch was uneasy about a private firm having his medical

records. According to him, the Commission could not lawfully

share Koch’s records with Jewell unless the Commission’s

contract with Jewell’s firm included certain clauses triggering

the protections of the Privacy Act. See generally 48 C.F.R. pt.

24 (regulating when federal contracts must include Privacy Act
3

language). Without those clauses—the presence or absence of

which was not immediately clear—Koch believed that the

Privacy Act would not limit what Jewell could do with the

records.1 Koch was shown a copy of the non-disclosure

agreement governing Jewell’s engagement, but he was

unmoved.

Exercising what he called “his only remaining option,”

Koch stopped participating in the investigation. Complaint at

¶ 34, Koch v. Schapiro, No. 1:09-cv-1225 (D.D.C. Jan. 27,

2010). Koch insisted that the Office not give Jewell access to

his medical records, and he refused even to provide Jewell with

testimony making his case on appeal. The Office dismissed

Koch’s complaint for failure to cooperate. See 29 C.F.R.

§ 1614.107(a)(7).

After unsuccessfully appealing his dismissal to the Equal

Employment Opportunity Commission, Koch sued the

Securities and Exchange Commission in the district court. The

district court granted summary judgment to the Commission,

holding, among other things,2

 that “Mr. Koch’s refusal to

participate in his administrative proceedings constitutes a failure

to exhaust his administrative remedies and that there is no

reason to excuse such failure.” Koch v. Schapiro, 777 F. Supp.

1

 It turned out the clauses Koch believed were necessary were

part of the contract. They were difficult to detect because they were

incorporated by reference but not actually written in. 

2

 Koch challenged the dismissal of his Rehabilitation Act request

and also raised claims under the Administrative Procedure Act, the

Privacy Act, and the Fifth Amendment. Once he located the contract

clauses he first thought were missing, he amended his complaint to

remove some of the claims. The district court granted summary

judgment for the Commission on every remaining count. Koch v.

Schapiro, 777 F. Supp. 2d 86, 91-92 & nn.4-5 (D.D.C. 2011).
4

2d 86, 91-92 (D.D.C. 2011). Koch appeals the district court’s

exhaustion decision.

The question whether a particular administrative pursuit

satisfies the exhaustion requirement is a legal question which we

review de novo.

3

 See Artis v. Bernanke, 630 F.3d 1031, 1043

(D.C. Cir. 2011). On the other hand, the decision whether to

excuse a failure to exhaust is reviewed for an abuse of

discretion. See Avocados Plus, Inc. v. Veneman, 370 F.3d 1243,

1250-51 (D.C. Cir. 2004). In that situation, the legal question

has been answered—the litigant has not exhausted his

administrative remedies—and what remains is the question

whether to dismiss the case in light of the policies the

exhaustion requirement is meant to serve. See id. That

“intensely practical” decision is entrusted to the sound discretion

of the district court. Id. at 1251 (internal quotation marks

omitted).

First, the legal question: did Koch exhaust his

administrative remedies? A plaintiff’s suit “will be barred for

failure to exhaust administrative remedies” if he “forces an

agency to dismiss or cancel the complaint by failing to provide

sufficient information to enable the agency to investigate the

claim.” Wilson v. Peña, 79 F.3d 154, 164 (D.C. Cir. 1996). 

Here, the Office made clear that its investigation would require,

at a minimum, Koch’s testimony and possibly Koch’s medical

records as well. Koch provided neither and concedes as much. 

He argues instead that the medical records he had provided

during counseling—but which he insisted be withheld from

Jewell—were sufficient to allow the investigation to proceed.

3

 That is so whether or not the particular exhaustion requirement

is “jurisdictional.” See generally Avocados Plus, Inc. v. Veneman, 370

F.3d 1243, 1247-48 (D.C. Cir. 2004). 
5

We disagree. Rann v. Chao, 346 F.3d 192 (D.C. Cir. 2003),

is materially indistinguishable from this case and controls our

analysis. Rann had filed an age discrimination complaint with

his agency’s Equal Employment Opportunity Office and, though

he provided the counselor with written information, he refused

to provide a signed affidavit. Id. at 196. The Office dismissed

his complaint, and this court ultimately found that Rann failed

to exhaust his administrative remedies. Id. at 196-97. So it

must be here. Koch “neither complied with [the Agency’s]

requests nor provided any information beyond his initial

submission.” Id. at 196. Under Rann, he provided insufficient

information to the agency and thus failed to exhaust his

administrative remedies.

Second, the discretionary question: should the district court

have excused Koch’s failure to exhaust? Koch says it should

have because he withheld his cooperation in “good faith.” 

Appellant Br. 16. At the time he decided to stop cooperating, he

believed that (1) the Privacy Act clauses were required to be

present in the contract between the Commission and Jewell’s

firm, and (2) those clauses were missing. Koch says those

beliefs were both reasonable and sincere and that, therefore, he

cannot be punished for acting in accordance with them.

Some courts hold that a “[g]ood faith effort” to cooperate

with the agency justifies a failure to exhaust administrative

remedies. E.g., Wade v. Sec’y of Army, 796 F.2d 1369, 1377

(11th Cir. 1986) (citing Mangiapane v. Adams, 661 F.2d 1388,

1390-91 (D.C. Cir. 1981)). But here, it was an effort not to

cooperate that Koch says was in good faith. Because Koch

failed to explain both how his concern over the disclosure of his

medical records justified his failure to provide his testimony to

Jewell and how the extensive privacy protections for his medical

records included in the contract between Jewell and the
6

Commission were insufficient, Koch’s refusal to cooperate was

clearly unjustified.

Koch should have complied with agency procedures before

challenging those aspects to which he objected. Cf. Ticor Title

Ins. Co. v. Fed. Trade Comm’n, 814 F.2d 731, 742-43 (D.C. Cir.

1987) (opinion of Edwards, J.). The district court was well

within its discretion to dismiss the Rehabilitation Act claim.4

The judgment of the district court is therefore

Affirmed.5

4

 The district court analyzed the reasonableness of Koch’s beliefs

by inquiring whether the Privacy Act contract clauses were required

to be present. We do not think that analysis is relevant to the

exhaustion question and thus express no view on it. We nevertheless

affirm because we review the district court’s “judgment, not its

reasoning.” EEOC v. Aramark Corp., Inc., 208 F.3d 266, 268 (D.C.

Cir. 2000).

5

 Our disposition moots Koch’s motion to supplement the

appendix. We therefore dismiss the motion. Cf. United States ex rel.

K&R P’ship v. Mass. Hous. Fin. Agency, 530 F.3d 980, 984 n.3 (D.C.

Cir. 2008).