945 F.3d 322
5th Cir.2019Background
- Punch was terminated by NASA on August 7, 2013 and alleged discrimination and CSRA violations (a “mixed case”).
- She first appealed to the MSPB (Option 1) on September 5, 2013; MSPB affirmed on February 9, 2016.
- While the MSPB appeal was pending, Punch filed an EEO complaint with NASA ODEO on December 9, 2013 (Option 2); ODEO denied discrimination and Punch appealed to the EEOC.
- After MSPB denial, Punch submitted an EEOC petition (March 8, 2016), then petitioned the Federal Circuit (April 5, 2016) purportedly waiving discrimination claims (Option 1.A), and later filed a district-court suit on her EEO claims (May 17, 2016).
- The Federal Circuit found the filings impermissibly bifurcated and transferred the case to district court; the district court dismissed; the Fifth Circuit affirmed, holding Punch elected inconsistent, mutually exclusive forums and thus pled herself out of court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Election between MSPB (Option 1) and agency EEO (Option 2) — which forum governs when both filed | Punch argued NASA ODEO severed and adjudicated claims so her Option 2 proceedings should stand | NASA argued the regulation makes the forum election (whichever filed first) binding, so later EEO filing was a nullity for overlapping matters | Court held the first-filed election (MSPB) was binding; the later EEO complaint was precluded as to the same matter |
| EEOC petition timing and subject-matter jurisdiction for Federal Circuit review | Punch proceeded to the Federal Circuit after filing EEOC petition, contending review was proper | NASA argued premature Federal Circuit filing lacked jurisdiction because EEOC had not declined review or concurred | Court held Federal Circuit lacked jurisdiction because Punch filed there before EEOC decided, so MSPB decision was not yet judicially reviewable |
| Bifurcation / waiver: may employee pursue CSRA claims in Federal Circuit while litigating discrimination claims elsewhere? | Punch claimed she effectively waived discrimination claims for Federal Circuit review and could litigate both tracks | NASA and precedent argued mixed cases cannot be bifurcated; waiver must be genuine and not accompanied by parallel district litigation | Court held an employee cannot bifurcate related CSRA and discrimination claims; Punch’s contemporaneous and later discrimination filings defeated any valid waiver |
| Timeliness / equitable tolling of district-court mixed-case filing after MSPB decision | Punch argued equitable tolling should save her late district-court filing (she filed 58 days after MSPB decision) | NASA argued statutory 30-day deadline applies and Punch missed it; no tolling warranted given she received clear notice and elected options with counsel | Court declined to equitably toll and held Punch’s district-court claims time-barred |
Key Cases Cited
- Kloeckner v. Solis, 568 U.S. 41 (explaining mixed-case options under the CSRA)
- Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975 (describing review routes for MSPB mixed cases)
- Williams v. Dep’t of Army, 715 F.2d 1485 (Fed. Cir.) (holding mixed cases cannot be bifurcated between forums)
- Tolbert v. United States, 916 F.2d 245 (5th Cir.) (requiring exhaustion of chosen administrative remedy)
- Randel v. U.S. Dep’t of Navy, 157 F.3d 392 (5th Cir.) (treating statutory review prerequisites as jurisdictional constraints)
- Smith v. Potter, [citation="400 F. App'x 806"] (5th Cir.) (premature judicial filing renders claim jurisdictionally defective)
- Chappell v. Chao, 388 F.3d 1373 (11th Cir.) (rejecting bifurcated review of mixed claims)
- Pueschel v. Peters, 577 F.3d 558 (4th Cir.) (same: pursuing Federal Circuit review abandons discrimination claims)
- Devaughn v. U.S. Postal Serv., [citation="293 F. App'x 276"] (5th Cir.) (election between MSPB and EEO is binding)