MEMORANDUM OPINION AND ORDER
HAIGHT, Senior District Judge:
This action arises under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. Plaintiff Lyman Tsai alleges that she was harassed, denied a promotion and transferred to an undesirable location by the Federal Deposit Insurance Company ("FDIC") and its Chairman, Ricki Tigert Helfer, on account of her age. Defendants move to dismiss under Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P., claiming that plaintiff failed to properly exhaust her administrative remedies and thus filed this action prematurely. Alternatively, defendants contend that they were not properly served with process, and seek dismissal pursuant to Rule 12(b)(2).
Plaintiff's first formal complaint of discrimination was filed with the FDIC's Office of Equal Employment Opportunity (FDIC-EEO) on July 21, 1994. The complaint alleges discrimination on the basis of race, sex, age and national origin, as well as retaliation for complaining of the discrimination. Plaintiff was represented by counsel at the FDIC-EEO stage, and that representation has continued throughout the course of this litigation.
On September 9, 1994, while plaintiff's discrimination claims were being processed by the FDIC-EEO, counsel for plaintiff wrote to the Equal Employment Opportunity Commission ("EEOC") notifying the Commission of plaintiff's intent to sue in federal court under the ADEA. In the letter, plaintiff acknowledges the fact that her complaint before the FDIC-EEO contains allegations of age discrimination, but goes on to say that "the matter of age was not raised at the informal complaint stage and is therefore not properly before the FDIC." Defendants' Exh B. This letter prompted a subsequent correspondence from the EEOC to the FDIC-EEO which served as formal notice to the FDIC-EEO of plaintiff's intent to sue, and directed the FDIC-EEO to conduct an inquiry into the merits of plaintiff's age discrimination claim, in hopes of resolving the case amicably.
On October 18, 1994, the FDIC-EEO issued an opinion dismissing Tsai's claims as untimely pursuant to 29 C.F.R. 1614.107(a), 1614.107(b), and 1614.107(c), and the next day, wrote a letter to the EEOC expressing its view, formed upon independent inquiry, that plaintiff's allegations of age discrimination were meritless. Based upon this assessment, the EEOC wrote to plaintiff's counsel on November 4, 1994, informing him that it did not intend to take further action concerning Tsai's allegations and advising that he "may wish to file a civil action in federal district court for an adjudication on the merits of [his] client's claim." Defendants' Exh. E. Rather than doing so immediately, however, plaintiff appealed the FDIC-EEO decision to the EEOC, filing her notice of appeal on November 11, 1994. In her appeal papers, plaintiff contended once again that the FDIC-EEO did not have jurisdiction to determine the merits of the ADEA action because prior to that decision, she had notified the EEOC, and thus the FDIC, of her intent to sue in federal court. On January 27, 1995, while the appeal was still pending, plaintiff commenced the instant action. Plaintiff served the United States Attorney for the Southern District of New York and the FDIC with the summons and complaint, but neglected to serve the Attorney General of the United States.
On October 19, 1995, the EEOC denied plaintiff's appeal. On the charge of age discrimination, the EEOC wrote:
On appeal, appellant . . . argues that the agency has no jurisdiction over her claim of age discrimination because she filed a civil action in a federal district court on January 27, 1995. The Commission finds that appellant did raise the basis of age discrimination in her EEO complaint. The Commission finds that appellant's argument amounts to a withdrawal of her age discrimination claim. Therefore, we shall not consider the basis of age discrimination in this appeal.
EEOC Decision at 3.
Defendants now move jointly to dismiss the complaint, urging that plaintiff did not allow the EEOC a sufficient amount of time to decide her appeal before she commenced this action, and therefore failed to exhaust her administrative remedies under 29 C.F.R. § 1614. Defendants alternatively argue that plaintiff's failure to serve the United States Attorney General in accordance with the terms of Rule 4 is fatal to her complaint. For reasons that follow, I dismiss on grounds related to defendants' first contention. I therefore do not reach the second.
Under the ADEA, a federal employee wishing to assert a claim for discrimination has the option of "invoking the EEOC's administrative process and then filing a civil action in federal district court if he is not satisfied with his administrative remedies" or "presenting the merits of his claim to a federal court in the first instance." Stevens v. Department of the Treasury, 500 U.S. 1, 5-6, 114 L. Ed. 2d 1, 111 S. Ct. 1562 (1991) (citing 29 U.S.C. § 633a(b), (c) and (d)); see also 29 C.F.R. § 1614.201. If an employee chooses the administrative route, a question arises as to whether he is required to fully exhaust all administrative remedies before proceeding to federal court, and if so, whether the remedies were in fact exhausted. That is the primary question posed by the instant motion. Before proceeding to it, however, I must first consider plaintiff's contention, raised before the EEOC and alluded to again in these proceedings, that she never invoked the administrative process in the first place. The contention is without merit. Plaintiff plainly and undeniably asserted her claim of age discrimination in the original FDIC-EEO complaint. That simple act of checking the box marked "age" on the FDIC-EEO form complaint set the administrative wheels in motion, and vested the FDIC-EEO with jurisdiction to consider the merits of the claim. That plaintiff may have neglected to raise her claim at the informal complaint stage does not in any way effect or alter the express allegations of the formal complaint. Nor did plaintiff's filing of an intent to sue letter with the EEOC somehow divest the FDIC-EEO of jurisdiction to decide her ADEA claim. That claim was, quite simply, subject to agency review once the formal complaint had been filed.
This brings me to the issue of exhaustion, that is: under the law of this circuit and the Code of Federal Regulations (the "CFR") as they now stand, was plaintiff required to exhaust her administrative remedies once she invoked them, and if so, did she succeed in doing so? The issue has been the subject of some debate among the circuits. However, I limit my analysis to two decisions from the Second Circuit with divergent views on the issue of exhaustion: Bornholdt v. Brady, 869 F.2d 57 (1989) and Wrenn v. Secretary, Dept. of Veterans Affairs, 918 F.2d 1073 (1990).
Bornholdt provides unambiguous support for the view of plaintiff that exhaustion is not required in the case at bar. In that case, Bornholdt, an ADEA plaintiff employed by the Internal Revenue Service, commenced administrative proceedings before the Merit Systems Protections Board ("MSPB"). Before the MSPB had a chance to issue a final decision on the claim, Bornholdt withdrew it. The MSPB then issued an order dismissing the claim with prejudice, an order which the Second Circuit said did not constitute a final agency decision for the purposes of exhaustion since MSPB did not reach the merits of the claim. In considering whether exhaustion was required, the court looked to the terms of 29 C.F.R. § 1613.513, a provision which, at the time of Bornholdt, applied to all actions filed after November 30, 1987. See 869 F.2d at 63. It provides that "the filing of a civil action terminates [agency] processing of that complaint." Were this provision to be coupled with an exhaustion requirement, a plaintiff who abandoned his administrative remedies midstream by filing a civil action "would find both [avenues] automatically closed." Id. In light of this, the Second Circuit wrote: "the . . . view that exhaustion is not required even if the ADEA claimant has initiated administrative proceedings is undoubtedly correct for suits commenced after November 30, 1987." Id. This language, however, was dicta, since Bornholdt's claim was filed in 1983, prior to the effective date of 29 U.S.C. § 1613.513. See Bak v. Postal Service, 52 F.3d 241, 243-44 (9th Cir. 1995) (referring to Bornholdt language requiring exhaustion as dicta). Since the regulatory framework in effect prior to 1987 explicitly provided that the filing of a civil action did not terminate agency proceedings, the court imputed an exhaustion requirement in cases commenced prior to that date and dismissed Bornholdt's claim for failure to comply with that requirement.
Just as the Bornholdt dicta supports plaintiff's view, Wrenn, decided a year after Bornholdt, provides unequivocal support for the contrary view urged by defendants. In Wrenn, the Second Circuit noted the split among other circuits as to whether an ADEA claimant is required to exhaust his administrative remedies, but curiously overlooked its own decision in Bornholdt. The court wrote:
We appear never to have addressed this question. We agree with the Purtill court's reasoning that "allowing a plaintiff to abandon the administrative remedies he has initiated would tend to frustrate the ability of the agency to deal with complaints." [ Purtill v. Harris, 658 F.2d 134, 138 (3d Cir. 1981).] Wrenn, having initiated administrative proceedings on his ADEA claim, was thus obliged to exhaust such proceedings before filing a civil action under the ADEA.