Unpublished Disposition, 937 F.2d 611 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 611 (9th Cir. 1991)

Paula BLOODSAW, Plaintiff-Appellant,v.SECRETARY OF the DEPARTMENT OF the TREASURY, Defendant-Appellee.

No. 90-16223.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 1991.Decided July 15, 1991.

Before HUG, SCHROEDER and WIGGINS, Circuit Judges.


MEMORANDUM* 

Paula Bloodsaw appeals from the district court's order dismissing her employment discrimination action against the Department of the Treasury for lack of subject matter jurisdiction. The district court concluded that Bloodsaw failed to exhaust her administrative remedies because she refused to prepare an affidavit requested by the administrative investigator. This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We affirm the judgment of the district court.

DISCUSSION

Claims of race and sex discrimination are governed by Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-16. A Title VII plaintiff must exhaust her administrative remedies prior to filing suit in federal court. Ong v. Cleland, 642 F.2d 316, 318 (9th Cir. 1981). Failure to exhaust administrative remedies deprives the district court of subject matter jurisdiction over the plaintiff's action. See Miles v. Department of Army, 881 F.2d 777, 780 (9th Cir. 1989). In the instant case, the district court concluded that Bloodsaw had not exhausted her administrative remedies because she failed to prepare an affidavit in response to investigator Castro's request; consequently, the court dismissed Bloodsaw's action for lack of subject matter jurisdiction. The existence of subject matter jurisdiction presents a question of law which we review de novo. Id.; Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990).

The parties debate whether or not the administrative investigation regulations, 29 C.F.R. Sec. 1613.216-1613.220, either require a claimant to file an affidavit or allow the investigator to require an affidavit. Because we determine that Bloodsaw totally failed to cooperate in good faith with the administrative process, we need not reach these questions.

One important element of a claimant's exhaustion of administrative remedies is good faith cooperation with the administrative investigation. As the court in Wade v. Secretary of the Army, 796 F.2d 1369 (11th Cir. 1969), explained: "Good faith effort by the employee to cooperate with the agency and EEOC and to provide all relevant, available information is all that exhaustion requires." Wade, 796 F.2d at 1377 (citing Mangiapane v. Adams, 661 F.2d 1388, 1390-91 (D.C. Cir. 1981)); see also Munoz v. Aldridge, 894 F.2d 1489, 1493 (5th Cir. 1990) (quoting Wade) ; Wrenn v. Secretary, Dept. of Veterans Affairs, 918 F.2d 1073, 1078 (2nd Cir. 1990), cert. denied, 111 S. Ct. 1625 (1991) ("Judicial elaboration of the exhaustion requirement has imposed an additional obligation of good faith participation in the administrative process on claimants who wish to bring civil actions."); United States v. Burzynski Cancer Research Institute, 819 F.2d 1301, 1313 (5th Cir. 1987), cert. denied, 484 U.S. 1065 (1988) (noting that the claimant failed to make "good faith effort to ... exhaust his administrative remedies.").

In the instant case, Bloodsaw completely failed to participate in good faith in the administrative process. Castro's request for an affidavit was reasonable, as there is every indication that an affidavit would have been a valuable element of Castro's investigation. Both Bloodsaw and her counsel, Thomas Jackson, continually mislead Castro as to the dates on which an affidavit would be available. Further, once it became obvious that an affidavit would not be prepared, Bloodsaw and Jackson failed to inform Castro of the reason for their refusal to prepare it. Clearly, Castro was patient with Bloodsaw and was willing to facilitate the preparation of the affidavit; she even offered to assist physically in its preparation.

Bloodsaw argues that punishing her for not preparing an affidavit would value form over substance. This argument relies on the assumption that Castro had enough information, without the affidavit, to proceed effectively with the investigation. There was a debate in the district court as to whether, absent an affidavit from Bloodsaw, the agency possessed sufficient information.1  Our decision, however, rests on Bloodsaw's total refusal to comply with a reasonable administrative request. Bloodsaw's willful inaction constitutes a total failure on her part to participate in good faith in the investigation. Once filed, Bloodsaw made no effort to have her administrative claim resolved. Based on this total lack of cooperation, we find that Bloodsaw failed to exhaust her administrative remedies.

CONCLUSION

The judgment of the district court dismissing Bloodsaw's action for lack of subject matter jurisdiction is AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Our review of the testimony given in the district court indicates that the affidavit would have provided necessary information for a comprehensive investigation. Castro indicated that the affidavit would have included information which she did not learn directly from Bloodsaw at their initial meeting. Regional Director Young testified that, had Bloodsaw filed an affidavit, the Agency would have considered the claims on the merits rather than dismissing for failure to prosecute. The district court concluded from this testimony that "the central factor in the Agency's decision to dismiss the complaint was not how much information that the Agency possessed, but rather the way it was expressed." This conclusion is not warranted. Young also testified that, while having testimony in affidavit form was important, that she also understood that "there was not sufficient evidence available for ... Castro to continue her investigation." Young testified that the Agency requires affidavits because experience has proven them to be valuable in the investigatory process