Conforto v. Merit Systems Protection Board
2013 U.S. App. LEXIS 7767
| Fed. Cir. | 2013Background
- Conforto retired from the Department of the Navy on December 31, 2010 after 39 years as Supervisory Contract Specialist.
- She alleged a sequence of workplace events in 2009–2010—parking space loss, subordinates' promotion, training denials, and later reprimand/suspension proposals—were discriminatory and retaliatory.
- She filed an EEO complaint in June 2010 alleging age/sex discrimination and retaliation, later adding harassment in the retirement context.
- The agency found no discrimination or retaliation and concluded she retired voluntarily, not due to agency conduct.
- She appealed the agency’s EEO decision to the MSPB in December 2011, arguing the retirement was involuntary and a constructive removal; the MSPB dismissed for lack of jurisdiction.
- This court now reviews the MSPB’s jurisdictional ruling over the mixed-case/constructive-removal issue in light of Kloeckner v. Solis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this court has jurisdiction to review a Board ruling that it lacks jurisdiction | Conforto contends Kloeckner requires district-court review for mixed cases, not Federal Circuit review. | MSPB jurisdictional rulings are reviewable here under Ballentine-era precedent, consistent with 7702/7703. | Yes; this court has jurisdiction over Board jurisdictional dismissals. |
| Whether the Board correctly held retirement was voluntary and not an involuntary constructive removal | Conforto argues coercive circumstances and discrimination forced retirement. | Board conducted a thorough, non-frivolous analysis showing legitimate nondiscriminatory explanations for each action. | Board’s finding of voluntary retirement stands; no coercion proven. |
| Impact of Kloeckner on jurisdictional vs procedural dismissals in mixed cases | Kloeckner requires district court review for procedural dismissals of mixed cases; it should apply to jurisdictional dismissals too. | Kloeckner does not override this court’s jurisdiction over jurisdictional dismissals; Ballentine-based approach remains valid for jurisdictional dismissals. | Kloeckner supports district-court review for procedural dismissals, but jurisdictional dismissals remain reviewable here; this case involved a jurisdictional dismissal. |
| Whether the dissent’s view on the Merits/Jurisdictional divide is correct under Garcia and Shoaf | Coercion and involuntariness are merits questions; if jurisdiction is established, merits follow. | Jurisdiction and merits are intertwined in constructive adverse-action cases; proving involuntariness is necessary for jurisdiction. | Agreement with majority; jurisdiction exists and merits addressed therein. |
Key Cases Cited
- Kloeckner v. Solis, 568 U.S. _ (2012) (mixed cases reviewable in district court; procedural bar discussed; jurisdictional issue unresolved by Court)
- Garcia v. Department of Homeland Security, 437 F.3d 1322 (Fed.Cir.2006) (en banc; coercion and involuntariness in constructive adverse action claims; jurisdictional merits interplay)
- Cruz v. Department of the Navy, 934 F.2d 1240 (Fed.Cir.1991) (voluntary resignation; jurisdictional framework for mixed cases)
- Ballentine v. Merit Systems Protection Board, 738 F.2d 1244 (Fed.Cir.1984) (jurisdictional dismissals reviewable here; procedural dismissals later limited by Kloeckner)