670 F.3d 1353
Fed. Cir.2011Background
- Diggs was removed from HUD for two charges: rude, disruptive or intimidating behavior and misrepresentation, based on conduct on January 17, 2008.
- The agency alleged Diggs berated a supervisor, approached another in a hostile manner, and disobeyed an instruction, with raised voice and threats toward coworkers.
- Diggs denied the charges and claimed retaliation for prior EEO activity, including sex-discrimination claims.
- The Administrative Judge upheld the removal, finding the charges proven, penalty reasonable, and no retaliation defense established.
- The Board denied review but sua sponte reopened and affirmed the AJ’s decision; the case then moved toward review in this court.
- On review, the court sua sponte addressed jurisdiction, concluding the case is a mixed case involving Title VII retaliation and falls outside our jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the retaliation defense renders the case a mixed one outside our jurisdiction | Diggs argues jurisdiction exists to review; retaliation is not a §7702 discrimination basis | The government asserts retaliation claim falls within §7702(a)(1)(B) as Title VII discrimination | Jurisdiction barred; mixed case dismissed for lack of jurisdiction |
Key Cases Cited
- Williams v. Dep't of Army, 715 F.2d 1485 (Fed.Cir.1983) (defines mixed-case jurisdiction limits under §7702)
- Gomez-Perez v. Potter, 476 F.3d 54 (1st Cir.2007) (federal-sector retaliation interpreted as prohibited discrimination)
- Bonds v. Leavitt, 629 F.3d 369 (4th Cir.2011) (retaliation barred under Title VII principles in federal context)
- Cruz v. Dep't of Navy, 906 F.2d 689 (Fed.Cir.1990) (early mixed-case jurisdiction discussion (vacated/reversed on other grounds))
- Ayon v. Sampson, 547 F.2d 446 (9th Cir.1976) (Congress intended §2000e-16 to prohibit retaliation)
- Ins. Co. of N. Am. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (U.S.1982) (agency cannot confer jurisdiction; subject-matter jurisdiction non-waivable)
- Warren v. Dep't of the Army, 804 F.2d 654 (Fed.Cir.1986) (retaliation considerations in federal-sector context discussed)