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Simpson v. Dept. of Defense

submitted*fn*: July 16, 1991.

RAYMOND SIMPSON, PLAINTIFF-APPELLANT,
v.
DEPT. OF DEFENSE; DEFENSE CONTRACT AUDIT AGENCY; MARCIA M. MONTEZ; KEITH E. HARRIS, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Central District of California; James M. Ideman, District Judge, Presiding; D.C. No. CV-89-5815-JMI.

Wright, Goodwin, and Skopil, Circuit Judges.

MEMORANDUM

Raymond Simpson appeals pro se the district court's dismissal of his action alleging employment discrimination and reprisal for whistleblowing activities arising out of his job as an auditor for a federal agency. The district court dismissed both claims with prejudice for failing to exhaust administrative remedies. We affirm the district court's judgment dismissing the whistleblower claim with prejudice, but we vacate and remand with instructions that Simpson's Title VII claim be dismissed without prejudice.

Discussion

We agree with the district court that Simpson's whistleblower reprisal claim under 5 U.S.C. § 2302(b)(8)(A) should be dismissed with prejudice. The statutory protection against reprisals for whistleblowing by federal employees does not create a private right of action. See Rivera v. United States, 924 F.2d 948, 954 (9th Cir. 1991); Poorsina v. United States Merit Sys. Protection Bd., 726 F.2d 507, 509-10 (9th Cir. 1984).

We also agree with the district court that Simpson's Title VII claim was defective because he failed to consult with an EEO counselor within 30 days of the alleged discriminatory act. See 29 C.F.R. §§ 1613.213(a) and 1613.214(a)(1)(i) (1989); Miles v. Department of the Army, 881 F.2d 777, 780 (9th Cir. 1989). This 30 day limit is not jurisdictional, however, and is subject to equitable modification. Miles, 881 F.2d at 780; Boyd v. United States Postal Service, 752 F.2d 410, 414 (9th Cir. 1985). Simpson's contention that he was unaware of this requirement may warrant excusing his failure to comply. See Thornhill v. Marsh, 866 F.2d 1182, 1184 (9th Cir. 1989). We therefore vacate that portion of the district court's judgment dismissing Simpson's Title VII claim with prejudice. On remand the district court should dismiss that claim without prejudice to allow Simpson to pursue administrative remedies. See Ross v. United States Postal Service, 696 F.2d 720, 722 (9th Cir. 1983).

AFFIRMED in part, VACATED in part, and REMANDED. Each party shall bear its ...


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