Leslie Kerr v. Sally Jewell
836 F.3d 1048
| 9th Cir. | 2016Background
- Leslie Kerr, an FWS employee, alleged sex discrimination and retaliation (Title VII) and whistleblower retaliation (WPA) arising from a series of adverse personnel actions culminating in her removal/involuntary retirement.
- Kerr filed a formal EEO complaint with FWS (challenging lesser actions and her removal) and, while that complaint was pending, filed an ‘‘appeal’’ with the MSPB challenging her removal and asserting Title VII and WPA claims.
- The MSPB said it had jurisdiction only over the removal-related claims and informed Kerr she had a ‘‘mixed case’’; she elected to exhaust EEO procedures and withdrew the MSPB appeal as premature.
- The agency’s EEO office dismissed Kerr’s WPA claims for lack of EEO jurisdiction and adjudicated (and rejected) her Title VII claims on the merits. Kerr then sued in district court asserting Title VII and WPA claims without first presenting the WPA claim to the MSPB.
- The district court dismissed the WPA claim for lack of jurisdiction; after trial the jury found for defendants on Title VII. Kerr appealed; the Ninth Circuit affirmed dismissal of the WPA claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kerr could bring an unpresented WPA claim in district court without first going to the MSPB | §7702(a)(2) permits mixed-case plaintiffs to take their entire matter (including WPA claims) from the agency EEO decision to district court (relying on Wells) | WPA/CSRA require initial presentation to OSC or MSPB; permitting district-court origination would bypass the CSRA/WPA administrative scheme | Kerr could not; WPA claims must be presented to OSC or MSPB first; district court lacked jurisdiction |
| Whether 28 U.S.C. §1331 federal-question jurisdiction allows district-court review despite the CSRA/WPA scheme | General federal-question jurisdiction allows the court to hear the WPA claim | Elgin and CSRA structure show Congress intended the MSPB/CSRA review scheme to be exclusive for covered personnel claims | §1331 does not overcome CSRA exclusivity; statutory scheme channels review to the MSPB, precluding district-court original jurisdiction |
| Whether the district court should have remanded the WPA claim to the MSPB instead of dismissing | Kerr asked for remand to MSPB to allow merits review there | Government argued remand inappropriate because MSPB had not issued a decision and Kerr failed to present the claim there | District court did not abuse discretion in refusing remand; Kerr’s remedy is to file with the MSPB (equitable tolling may apply) |
Key Cases Cited
- Elgin v. Department of the Treasury, 132 S. Ct. 2126 (2012) (CSRA’s detailed review scheme precludes district-court review where Congress intended exclusive administrative route)
- Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) (framework for determining when statutory review scheme precludes district-court jurisdiction)
- Kloeckner v. Solis, 133 S. Ct. 596 (2012) (definition and handling of mixed cases under CSRA/EEO rules)
- Wells v. Shalala, 228 F.3d 1137 (10th Cir. 2000) (held §7702(a)(2) authorized district-court review of mixed-case WPA claim — rejected here)
- Sloan v. West, 140 F.3d 1255 (9th Cir. 1998) (procedural rule: to preserve non-discrimination MSPB claims, appeal must be to MSPB rather than to EEOC/district court)
- United States v. Fausto, 484 U.S. 439 (1988) (CSRA comprehensively overhauled civil-service review and channels remedies)
- Veit v. Heckler, 746 F.2d 508 (9th Cir. 1984) (CSRA provides exclusive judicial review for federal personnel decisions)