Conforto v. Merit Systems Protection Board

lili ConclusioN reasons, of Interna- these the Court

For is affirmed. tional Trade’s decision AFFIRMED CONFORTO, Petitioner,

Marie C. MERIT SYSTEMS PROTECTION

BOARD, Respondent.

No. 2012-3119. of Appeals, United States Court Federal Circuit.

April "foreign Kugelfisher Georg v. United why interpreting the term like FAG AG tion of Shaefer States, (Fed.Cir.2003). product” differ- could be construed to mean things parts antidump- The court held that it was therefore reason- ent in different States, apply ing Commerce to the definition in statute. SKF USA Inc. v. United able for (Fed.Cir.2001). price-based purposes 1382-83 Fol- one subsection remand, lowing calculations for normal value under 19 U.S.C. this court noted that 19 1677b(a)(l), 1677(16) applying .§ three while the definition U.S.C. contains subsections purposes of estab- providing a different subsection for three alternative definitions for lishing 19 U.S.C. "foreign product” and that there constructed value under term like 1373-74; SKF, 1677b(e)(2)(A). just Id. at see no that Commerce use was restriction per proceeding. 263 F.3d at 1382-83. one of those subsections Zielinski, Associates, Grady

Scott L. CA, Diego, argued of San petitioner. Smith, Attorney, Katherine M. Office of Counsel, Systems General Merit Pro- Board, DC, tection of Washington, argued respondent. her on With the brief Eisenmann, were M. James General Coun- sel, Bell, Deputy and Keisha Dawn Gener- al Counsel. DYK, BRYSON, MOORE,

Before Judges. Circuit Opinion for the court filed Circuit Judge BRYSON.

Dissenting opinion filed Circuit Judge DYK.

BRYSON, Judge. Circuit Marie C. Conforto review seeks Systems Merit Protection Board’s dismiss al of appeal jurisdiction. her for lack of Although sought she review this challenges Ms. Conforto now this court’s light to hear her the Supreme Court’s recent decision in —Solis, U.S. -, Kloeckner v. 133 S.Ct. (2012). 184 L.Ed.2d 433 For the rea below, explained sons we conclude that we appeal, have over this and we affirm the Board’s decision.

I Depart-

Ms. Conforto worked for the Navy ment of the until she retired on December 2010. At the time of her retirement, she had worked in the Depart- years position ment for 39 and held the Supervisory Specialist Contract in the Ma- Management Department. terial alleges Ms. Conforto that she was forced to retire at the end of 2010 of a because agency issued its deci- that occurred at her work- October series of events complaint. year. con- sion on Ms. Conforto’s EEO place during previous She analysis factual of her by Following were motivated detailed tends that those events claims, discrimination, that Ms. as well as re- concluded age sex subjected had not been to dis- prior equal employment her Conforto taliation for (“EEO”) activity. crimination or retaliation and that she had partic- opportunity voluntarily, not because of discrimi- complained ular about which she retired incidents retaliatory by agency natory in December conduct following: are the away; personnel. was taken March parking, space promot- one of her subordinates was appealed agency’s the de- Ms. Conforto her; in position a instead of ed to vacated cision to the Board December 2010, April permission she was denied judge The administrative who was as- session; training July a and in attend advising to her case signed issued order 2010, canceling into a pressured she felt juris- might her that the Board not have training planned session that she had appeal diction over her because retirement 2010, In September following attend. presumed voluntary is to be a act. Under events, those Ms. Conforto advised her this court’s en banc decisions in Cruz v. agency’s human resources office that she 1240, Department Navy, as that wished to retire of December 31 of (Fed.Cir.1991), Depart- Garcia year. Security, ment Homeland (Fed.Cir.2006), In the months after Ms. Conforto sub- the Board lacks papers employee’s voluntary mitted her retirement but before over an effective, In resign response her retirement became several decision to or retire. order, that alleges judge’s more events occurred she to the administrative Ms. products juris- were the that replied discrimination re- Conforto the Board had taliation. In supervisor appeal October her diction over her because her retire- her work progress product criticized email and ment was the of coercion such, contended, then issued her a formal in- repri- agency. letter of As she her In voluntary mand. November Ms. retirement constituted a con- Conforto alleges, supervisor request denied her structive removal and thus fell within the leave, jurisdiction. for sick and December he issued Board’s See 5 U.S.C. 7512(1); 7513(a), (d); 7701(a); Garcia, §§ her a proposing suspend notice her for days. Finally, seven complains she 437 F.3d at 1328-30. agency after her retirement the issued her judge The administrative dismissed Ms. charging a letter improperly her with jurisdiction. for lack of Conforto’s copying comput- materials from her work According judge, to the administrative Ms. er, her a gave negative appraisal interim Conforto had failed to make nonfrivolous year give

for the and did not her a allegation that her retirement was involun- year. bonus or raise for that tary, and thus she was not entitled to unfolded, hearing jurisdiction. As these events Ms. on the issue of Ana- Conforto complaint agency lyzing allegations, filed an EEO with her Ms. Conforto’s ad- 2010, alleging judge June discrimination based ministrative found even the age reprisal prior and sex as well as most serious actions of which she com- activity. plained reprimand EEO She later amended her letter of and the —the complaint allege proposed seven-day suspension EEO that she had been not —could In support forced to retire because of harassment. a claim of coerced retirement be- they any seq. Resolving question not leave her without 1101 et cause did requires In a brief options reasonable alternative but to retire. discussion of the addition, open to a federal judge employee complaining noted administrative First, any workplace. not discrimination alleged that Ms. Conforto had employee may file an suggesting agency complaint facts that the knew it EEO with employing agency; if justify those actions. could so, agency obligated does to investi- judge out pointed The administrative gate and take final action on the complaint. provided had a detailed §§ 29 C.F.R. 1614.101-110. If dissatisfied analysis allegations of Ms. Conforto’s agency’s with the resolution of the com- legitimate had concluded that there was a plaint, employee may bring an action basis for each of the actions of which she in a United States district court. Id. According to the administra- complained. § 1614.407. In the case of discrimination judge, had “not made tive Ms. Conforto sex, based on race or that action would be allegations any specific factual to call these brought Rights under Title VII of the Civil Moreover, question.” conclusions into 2000e-16(c). Act of U.S.C. judge administrative noted that the most discrimination, age the case of that action reprimand serious actions—the letter of brought Age would be under the Discrimi- proposed suspension and the af- —occurred Act, Employment nation in 29 U.S.C. September ter when Ms. Conforto 626(c). § Alternatively, employee may agency that she advised would retire appeal agency’s Equal decision to the year. timing as of the end of the Employment Opportunity Commission incidents, according those to the adminis- (“EEOC”), and then to a district court. 29 judge, any trative assertion “undercut[] cases, §§ C.F.R. 1614.401-405. In certain prompted by” that her retirement was employee has a option third file an —to sum, those events. the administrative appeal employing agency’s from the final judge concluded that while Ms. Conforto Systems action to the Merit Protection that alleged subjectively she felt that she § Board. Id. 1614.302. retire, had no choice but to “the circum- alleges stances she would not make a rea- appeal Systems An to the Merit person sonable believe that she had no only Protection Board is available in cases resign realistic alternative but to or re- question in which the action in adverse judge tire.” The administrative ruled that falls within the such Board’s Ms. to Conforto had failed make a non- suspension as the case of removal or showing agency frivolous had 7512; § days. more than 14 5 U.S.C. see retiring coerced her into and thus that she 7701(a). 7513(a), (d), §§ If id. the Board satisfy showing had failed to her burden of jurisdiction has an action review involuntary. that her retirement was against employee, Congress has also judge’s After the administrative initial adjudicate employee’s it authorized final, ap- decision became Ms. Conforto other claims of discrimination would pealed to this court. jurisdiction. fall outside the Board’s wise 7702(a)(1); 1614.302; § Id. C.F.R. see

II Garcia, 437 F.3d at 1335. Such a case is a appeal.” The first issue we must address is referred to as “mixed case 1614.302(a)(2). jurisdiction By alleging whether this has to re court C.F.R. ruling view Board’s under the Civil forced retirement addition her dis claims, sought Service Reform Act of crimination Ms. U.S.C. Conforto court. After close con- the Board as a ferred to district bring case before the Board and a which sideration of the Kloeckner decision appeal mixed case employ- govern the adverse would review both careful review of the statutes action and the related discrimination we conclude that this appeals, ment mixed case claims. jurisdiction court has to review determi- statutory nation the Board that it lacks mixed case If an loses her appeal. employee’s over an the merits of her discrimination appeal on category That the Board’s deci- includes claim, may obtain further review of the she over Ms. sion that lacked decision, either from a district adverse appeal because her retirement Conforto’s (if from the and then court or EEOC voluntary was and therefore did not consti- necessary) a not from district but within the mean- tute an “adverse action” 7702(a)(3), §§ court. 5 U.S.C. ing of section 7512. 7703(b)(2); see 29 C.F.R. 1614.303-310.

That much is clear from the statutes regulations pertaining ap- to mixed case A peals. years, appeals For have held that we equally

It clear that the is now such as Ms. Conforto’s must come to this court’s would also ex Bd., district Sys. court. Ballentine v. Merit Prot. tend to review of a mixed case (Fed.Cir.1984); 738 F.2d 1247-48 see the Board dismissed Oja Army, Dep’t grounds, such as untimeliness. That is the (Fed.Cir.2005); Lang Sys. v. Merit holding recent de (Fed. Court’s Bd., n. 2 Prot. result, in cision Kloeckner v. Solis. As Bd., Cir.2000); Sys. v. Prot. Austin Merit court, court, the and not this is district 782, (Fed.Cir.1998); King v. 136 F.3d jurisdiction any charged with over mixed 1084, (Fed.Cir.1994); Lynch, 21 F.3d appeal case that the Board resolves either Bd., Sys. Wallace v. Merit Prot. 728 F.2d procedural grounds. on the or on merits 1456, (Fed.Cir.1984); Hopkins 1458-59 v. any That in effect means that case in Bd., 1368, Sys. Merit Prot. 725 F.2d jurisdiction which the Board exercises its (Fed.Cir.1984). ap- The court held that claim, in decide discrimination peals only should be taken to this court not which the seeks review of that in that the Board dismissed for lack cases decision, appealable to this court. is not jurisdiction, but also in cases in which Garcia, See 437 F.3d at 1348 n. 6. the Board exercised over the appeal disposed procedural but of it on requires This case us to decide what grounds reaching without the merits of the reviewing authority court has when the Thus, claim. in employee’s discrimination juris- Board decides that it does not have Ballentine, this court noted that section diction the chal- appeal over because 7702(a)(1) requires the Board to decide lenged agency action is not within the statutory power Board’s Before “both the issue of discrimination and the to review. Kloeckner, consistently judi- appealable action.” 738 F.2d at 1246. we held jurisdiction” cial review of the Board’s “no The court then reasoned that under the scheme, rulings though statutory judicially resides in this court. “the renewa- Even court, appeal by Ms. Conforto filed her in this ble action the which makes an MSPB argues, appeal she now based on a ‘case of discrimination’ under 7703(b)(2) that can ap- this court lacks over her be filed district peal and that court that the has decided ‘both her case should be trans- MSPB appeal- the issue of discrimination and employment action is not within the ” Therefore, able action.’ Id. the court con- designated MSPB’s appellate jurisdiction, cluded, judicial proper appeal review would be in the is not a ‘case of discrimination’ only 7702(a)(1),” district court if the Board decided the under accordingly merits of the discrimination claim. In oth- by should be reviewed the Federal cases, including er procedur- dismissals on Circuit. 321 F.3d at 1008. grounds, al we held that this court would Solis, (8th In Kloeckner v. 639 F.3d 834 forum proper

be to review the Board’s Cir.2011), Eighth Circuit had occasion decision. to address the conflicting precedents on adopted position Several circuits tak this issue. The court noted that by holding judicial en Harms taught case that this court was the re appeals view of mixed case dismissed in proper judicial forum for review when the by any the first instance the Board on non- Board dismissed for lack of grounds jurisdiction. merits fell our under but not when the Board dismissed for non- Vilsack, McCarthy See v. Fed.Appx. jurisdictional procedural reasons. Id. at (7th Cir.2009); Dep’t Powell v. Eighth 837. The Circuit adhered Def., (D.C.Cir.1998); F.3d 598-99 rule, however, majority holding judi- West, (9th Sloan F.3d 1261-62 cial review both classes of cases should Cir.1998); Force, Dep’t Blake v. the Air be in this court and that district courts (5th Cir.1986); 172-73 would have over mixed case cf Cohen, Burzynski v. 620-21 appeals if only the Board reached the mer- (6th Cir.2001) (holding judicial review of a employee’s its discrimination claim. dismissal the Board must Id. at 838. Circuit). be in the Federal granted Court review in departed Two circuits from approach Kloeckner and Endorsing reversed. employed in judi Ballentine and held that view, minority judicial the Court held that cial review cases in which the Board review of dismissals rejected employee’s procedur claim on must be obtained district court. grounds al in belongs district court and not Court, however, The was silent on the in this court. See Harms v. Internal Rev. question of how to treat dis- Serv., (10th Cir.2003); missals, such as the one at in issue this Downey Runyon, 144-45 case.

(2d Cir.1998). Importantly, the circuits that departed from our rule in did so cases B in jurisdiction which the Board had over Although the in Supreme Court Kloeck- employee’s appeal adverse action but ner not explicitly jurisdic- did address the did not reach the merits of employee’s here, presented statutory tional issue discrimination claim procedural due to a text, Kloeckner, the Court’s rationale in fault. Those courts did not hold that the decisions, prior our own arid the decisions wrong Federal Circuit would be the forum of other all appeal courts indicate that an ruling by to review a the Board that it ju- from the Board’s dismissal for lack of lacked employee’s over the ad belongs risdiction in this court. fact, verse action claim. In in Harms the Tenth specifically Circuit statutory point simple stated that The but 7703(b)(1) “when the MSPB decides that compelling. lacks Section of Title 5 appeal that, over an because the except excep- states for one relevant 7703(b)(2), juris actually that the Board have quires in section review provided tion claim, Systems Pro- employee’s of the Merit diction over the of a final order in the Federal Cir- Board will be merely employee allege tection 7703(b)(2) states that “cases cuit. Section in jurisdiction. As we held our en banc subject provisions to the Cruz, of discrimination in “mere assertion does not decision filed in the district of section 7702” shall be jurisdiction in provide [a] a basis for Board Therefore, appeals of Board deci- court. Cruz, voluntary resignation case.” brought be the Federal Cir- sions must 1240, 1245. F.2d subject they cuit unless are to section Supreme Court’s decision Kloeck- turn, applies 7702. Section supports employ- ner our conclusion. The “(A) employee in which an has been cases ee in Kloeckner filed her discrimination employee action which the by affected 30-day regulatory claim deadline after Systems Pro- may appeal ... to the Merit 1201.154(a). for in 5 provided C.F.R. “(B) ... alleges tection Board” and dis- Thus, proce- claim was barred under a 7702(a)(1). crimination.” 5 U.S.C. rule; the Board dismissed her case dural appeals. are the mixed case Be- These only finding after that she had failed to “may employee appeal cause an to the good delay. holding show cause for her only if Systems Merit Protection Board” claim, that the district court could hear her employee’s claim is within the Board’s only reversed the line Court plain import of appellate authority holding that “mixed cases” statutory language purported is that a dismissed the Board on appeal mixed case is reviewed a district grounds appealable were to this court. only court if Board has appeal decide the from the adverse action scope holding of the Court’s in issue.1 in light Kloeckner is clear of the issue the Court took the case to decide. The Court

It therefore sections follows- granted certiorari “to resolve a Circuit 7703(b)(1) 7702(a)(1)(A)give this court split employee seeking judi- on whether an jurisdiction to review a Board determina proceed cial review should in the Federal employee’s appeal- tion that an case is not Circuit or in a district court when the Board, regardless able of whether MSPB has dismissed her mixed case on sought has to raise claims of procedural grounds.” 133 S.Ct. Thus, example, discrimination. noted, at 603. As we have the courts of employee sought if an Board review of a appeals have addressed the issue have action, disciplinary suspen minor as such unanimously agreed that this court is the days, than sion for fewer appropriate jurisdictional forum for dis- juris plainly would be outside the Board’s missals, diction, and therefore there was no circuit and review of the Board’s decision court, split Supreme in for the Court to resolve on would be not the district court, point. even if that The Court reiterated several employee contended that throughout opinion the action was taken because of discrimi times its that it was statute, moreover, natory judicial deciding question animus. The re whether re- analysis authority 1. The dissent contends that the same true. The has the to enter- dismissals, apply procedural would to as "an appeals procedurally tain that are defective employee may only appeal also to the Board if regulations, under its own see 5 C.F.R. limits,” applicable he within the does so time 1201.12, may but it not hear a case over including procedural 30-day limit set out jurisdiction. which it lacks 1201.154(a). in C.F.R. But that is not Thus, procedural of dismissals of mixed case. Id. while Supreme view Court’s appeals go rejected should to the Federal Cir- decision in case Kloeckner Ballentine’s contrast, By at holding cuit. Id. 602-07.2 extension its to dis- missals, jurisdictional Court never mentioned dis- it did not affect portion missals, it suggest jurisdictional nor did it the rule Ballentine that dealt with reason, adopted applied any falling cases out- dismissals. For that this court’s jurisdiction. statutory analysis the Board’s jurisdictional side dismiss- als Ballentine and subsequent cases is Importantly, the Court reached its deci- law,3 good still required and we are pursuant statutory analysis sion to a simi- Oja, 1355; follow it. See 405 F.3d at Aus- lar to the one we have undertaken here. tin, 784; 136 F.3d at King, 21 F.3d at held, today, It as we do that “mixed cases” 1089. subject are those to section 7702. 133 Significantly, at Finally, S.Ct. 603-05. Court our decision in this case is con- cases, characterized mixed which held sistent with the unanimous view of the court, judicially are reviewable district circuits that have question. addressed this appealable observed, as “those to the MSPB and As we have the two circuits alleging rejected discrimination.” Id. at 604. And had analysis this court’s in Bal- pointed the Court out that Ms. Kloeckner lentine addressed Board pro- dismissals on undoubtedly grounds, had been removed and thus cedural jurisdic- not for lack of (i.e., “she was affected an action remov- tion. And the Tenth Circuit in Harms al) appealable reasoned, to the MSPB.” Id. The specifically in the course of hold- suggest Court did not that the same rule ing procedural dismissals to be reviewable apply would to cases falling outside the district it would have Board’s resignations adopted such as if different view the Board had or retirements that jurisdictional, were not shown to be dismissed the involuntary. procedural, rather than grounds. 321 F.3d at 1008.

Because Kloeckner does not bear on the us, precise question before we rule C apply today must be consistent with the Ballentine, binding dissent, law of this circuit. In Contrary to the our decision 7702(a)(1) analyzed we section con- deprive litigant does not such as Ms. cluded that it dictated that right ruling Conforto of the to a on dismissals the Board were reviewable Supreme discrimination claims. As the in this court. F.2d at Al- 1246-47. Court made clear in 133 S.Ct. though applied we that principle proce- a federal in Ms. Confor- well, dural dismissals as aspect position bypass to’s can elect to the Merit necessary Systems decision was not altogether resolve Protection Board that, light argument ignores Court's consistent dismissals, the fact unlike the "procedural” reference to we do regulatory 30-day period at issue in Kloeck- agree with the dissent that Kloeckner was ner, timing juris- issue in Ballentine was simply pro- silent on the distinction between brought dictional. Ballentine had his chal- jurisdictional cedural and limitations. lenge agency before either the had decision days passed issued or 120 had since his initial argues 3. The dissent that Kloeckner overruled Ballentine, 1248; complaint. 738 F.2d at see “Ballentine, entirety Ballentine in its because Consequently, 5 U.S.C. 7702. the Board application like involved the jurisdiction appeal. lacked over his governing filing.” rules the time for That 1120 jurisdiction, the em- the Board’s agency in dis- establish against her complaint

file to Garcia, show that he was forced ployee at 1342. must 437 F.3d See trict court. in such employee retire. The only resign affect decisions Our forced to may claim that he was employee elects to cases in which an those cases in part or whole because Systems resign or retire to the Merit by appealing proceed the agency, the but concludes of discrimination the Board Board but Protection and dis- questions two jurisdiction over the em- not have it does —involuntariness issues: present distinct ployee’s appeal. crimination — conduct the improper whether case, if that the we hold In such resign, and compelled employee the to jurisdictional rul in its Board was correct improper conduct allegedly whether the Board is of course ing, relief from Coer- product was the of discrimination. employee employee. But the closed to the proof that the cion be found without can remedy that any other pursue is free to of dis- product conduct was the improper such as a employee preserved, has crimination, and discrimination can be court. action district See Title VII that the discriminato- proof found without 1247-48; Sloan, Cruz, 140 F.2d at 934 ry compel conduct was so serious as to hand, If, on the other F.3d at 1260-61.4 resign. presence to Id. The employee jurisdic the Board' does have we hold that necessary nor suf- is neither discrimination tion, case returns to the Board give the Board over a ficient to the merits of the discrimina resolution of constructive removal claim.5 claim, ruling avail tion with review of district court. able to the issue of coer respect With precise presented in the cion—the issue to us

The dissent asserts that simply role is involuntary separation, appeals of this kind—our context of claims of has made determine whether the deciding the issue of. showing give necessarily court to decide a sufficient coercion requires this authority to a case that discrimination Board decide employee’s the merits of claim, statutory outside the the issues of discrimination would otherwise be because jurisdiction. its We established jurisdiction are “identical.” limits of and Board so, in our en banc decision in explained principle court in that That is not as this Garcia, Garcia, dissenting judge although 437 F.3d at 1341. order Cruz, ("Cruz uniformly at 1244 has stated that the deci- submitted 4. Courts have Board, court, holding indicating resigna- sion of the or of this evidence ... that his no that the Board lacks over the em- involuntary.”). rejected We also tion was ployee’s appeal, given would not be collateral Garcia, dissent's contention in estoppel effect in a discrimination action (noting juris- "differences between the 1341 Powell, brought F.3d at in district court. dictional issues and the merits of the discrimi- Sloan, 20; 2; n. 140 F.3d at 1262 n. claim,” including that "in mixed cases nation Clinton, F.Supp.2d Dews-Miller v. adjudicated claim itself is the discrimination (D.D.C.2010); Burrell v. Postal n. 19 U.S. elements, burdens, using defenses Serv., (E.D.La.2001); F.Supp.2d underlying specific discrimination stat- Frank, F.Supp. Long v. ute.”). mistaken to The dissent is therefore (E.D.N.Y.1992). jurisdic- suggest that differences between go and the discrimination claim tional issue dissent, Contrary did not hold to the Cruz only scope relief” available to the to “the any employee prove that the dis- "must employee, and not the merits of the claim prove existed in order to coercion crimination (and jurisdiction)." itself. therefore Board See

1121 decision, in this disagrees case with that retirement can involuntary be if the em- disregard we are not free to it. ployee’s agency coerced her into retiring “ ‘by creating working conditions so intol- sum, In we that plain conclude lan- ” “ erable’ that she was ‘driven to involun- 7702(a)(1) guage of section dictates that ” tarily ... Garcia, retire.’ 437 F.3d at when Board dismisses a purported 1328, quoting 260 F.3d at 1341. Shoaf mixed case for lack of any appeal from that decision is to this The test for involuntariness is ob court. We decline Ms. Conforto’s invita- jective. must overcome the tion to read the Supreme Court’s decision presumption that resignation her or retire broadly Kloeckner so as to remove this ment was voluntary and must do so jurisdiction court’s over appeals in such “ establishing ‘that a reasonable employee case, cases. the Board found that confronted with the same circumstances Conforto’s Ms. retirement was voluntary ” would feel coerced into resigning’ or re held, and therefore in accordance with the Garcia, tiring. 1329, 437 F.3d at quoting binding precedent of this that Middleton v. Dep’t Def., 1374, 185 F.3d of lacked over her claim of con- (Fed.Cir.1999); see also Terban v. reason, structive removal. For that Dep’t Energy, 1021, 216 F.3d 1024-25 exception to our described in (Fed.Cir.2000). Ms. Conforto was entitled 7702(a) 7703(b)(2) sections does not to a hearing only if she made a non- apply. We have to decide Ms. frivolous showing of coerced retirement. appeal. Conforto’s Garcia, F.3d at Ill The doctrine of coercive invol “ On the merits of the one,’ untariness ‘is a narrow requiring issue, the Board in ruling was correct that that the employee ‘satisfy a demanding ” Ms. Conforto failed to make a non-frivo legal 1329, standard.’ Id. at quoting “ showing lous that her retirement was ‘in Serv., Stoats v. 1120, Postal U.S. 99 F.3d voluntary and thus tantamount to forced (Fed.Cir.1996). An employee’s dis ” Garcia, removal.’ 1328, F.3d quoting with options satisfaction agen an Dep’t Agric., 260 F.3d Shoafv. cy has made available to him is not suffi (Fed.Cir.2001). 1340-41 We up therefore cient to his resign render decision to or hold the ruling Board’s dismissing ap involuntary. retire See Mueller v. U.S. peal without hearing. Serv., (Fed. Postal 76 F.3d 1202-03 principal The two grounds on Cir.1996); which em Taylor States, v. United ployees have sought to (Ct.Cl.1979) show that (“[T]he their F.2d fact that resignations or retirements were an employee involun is faced with unpleasant (1) tary are resignation or retire situation or has to choose between two product ment was the of misinformation or unpleasant alternatives does not make the deception by the agency, see Covington v. resulting involuntary action unless there is Servs., Dep’t Health & Human coercion, duress, deception, pressure time (2) (Fed.Cir.1984), intimidation.”). Thus, or the doctrine of resignation or retirement was product coerced involuntariness if apply does coercion agency, see resigns Dumas the employee or retires because he Sys. Bd., Merit Prot. does not like decisions such as “a (Fed.Cir.1986). Ms. Conforto transfer, relies on the new assignment, a other meas ground, latter invoking the principle ures that the agency is authorized to so findings, did agency’s according to the contin- make measures those

adopt, even if expertise. field of the selectees’ he ... that based job unpleasant so in the uation training session day-and-a-half but to for the option As no realistic that he has feels in ear- to attend wished Staats, 1124. More- that Conforto at Ms. leave.” Life,” Your “Take Back of entitled ly be “the result over, August, must the coercion Ms. Conforto concluded that agency.” agency Id. the by the acts improper attending the prevented from had not been analy- a detailed conducted agency The However, agen- the according to session. and con- allegations of Ms. Conforto’s sis for Ms. audit findings, important cy’s reasonable, non- a that there was cluded a only few was occur division to Conforto’s of the for each discriminatory explanation session, and the training days after the For complained. of which she incidents her advised agency officials responsible allegation her to respect example, with the to attend she was free although that designated her away agency the took that session, per- department’s the training that all agency explained the spot, parking responsibili- her in the audit was formance in her employees spaces for parking not to ultimately decided ty. Conforto Ms. away was taken when department were training session. attend places were parking those that discovered that and authorization being used without analysis a similar conducted agency The using have been should those individuals of discrimination allegations of each to her respect spots. With parking staff Conforto, occurred that, Ms. according to promotion, being denied about complaint advised the after she the months during promotion that no explained agency 2010, that she was September agency, rather, individual issue; another was year. of the end of to retire as going Acting De- to act as the designated was the October agency concluded The of the De- in the absence partment Head Ms. Con- sent to reprimand 2010 letter (a military position), partment Head complete failure to on her forto was based internal on an was based that the decision unprofessional tasks and her assigned her suited was best as to who recommendation super- of her dealings with one conduct More- responsibility. take over that that the stated agency further visors. eventually as- was over, Ms. Conforto seven-day proposed official who agency Acting Department signed the role (which was for Ms. Conforto suspension po- that individual vacated Head after effected) on her failure did so based never sition. violation, a leave assignments, complete As part. on her inappropriate conduct conten- Ms. Conforto’s investigating leave, agency of sick to the denial training disapproval regarding tions supervisor that Ms. Conforto’s concluded found agency opportunities, for leave because request her for had denied required training was April for a leave it was for annual that, he believed because position and Ms. Conforto’s required, presence her was considerations, day in which Confor- Ms. budgetary clarified that when Ms. Conforto only four but that to send division was able to’s reasons, he request was medical training session. April 2010 people selection, request.6 approved made the supervisor who explained complains. has not she She judge which also 6. The observed administrative already support her claim that actions had advised how those Ms. Conforto time of the product to retire at the of coercion. of her retire was the decision decision about November 2010 actions October and 1123 As judge noted, the administrative Ms. required review in district courts. See response Conforto’s to his order to show 7703(b)(2); § 5 Kloeckner, U.S.C. 568 U.S. why jurisdiction the Board -, had over her 133 S.Ct. 607.

case did not a factual response contain to I Instead, agency’s analysis. simply she re-asserted her claims that the various CSRA, Under the mixed cases are those incidents that occurred between late 2009 in which an employee or applicant for em early 2011 were all motivated un- by ployment “alleges that an appealable agen lawful discrimination and retaliation both cy effected, action was in whole or in part, prior for her EEO activities and for her because of prohibited discrimination” by appeal of her 2009 performance rating. certain federal anti-discrimination laws. § 1614.302(a)(2); C.F.R. see also 5 record,

Given the state of the the admin 7702(a)(1). § U.S.C. As majority cor judge istrative clearly was correct to hold observes, rectly §§ U.S.C. 7702 and that Ms. Conforto failed to her satisfy 7703(b)(2) specify courts, that district burden of making allegations non-frivolous circuit, this jurisdiction have to review that she had subjected been to coercive Board decisions in mixed cases. In pressures sufficient to compel a reasonable Kloeckner, Supreme Court held that person to short, retire involuntarily. In the district courts and not the Federal she did not demonstrate she no had Circuit jurisdiction have to decide whether retire, realistic alternative but to resign or a mixed by procedural case barred error and that her retirement was the result (for file). example, the failure timely “improper acts” the agency. Schultz v. U.S. -, 133 S.Ct. at 604. The ma Navy, (Fed.Cir. U.S. jority here 1987). nonetheless concludes that if reason, For that we sustain the alleged bar is not “procedural” but Board’s decision that Ms. Conforto failed instead on an alleged rests lack “juris show that her retirement was involun diction,” the case comes to us and not the tary thus tantamount to a removal —and district courts. action. Accordingly, correctly Board jurisdiction held lacked over The majority attempts find the dis- appeal. jurisdictional tinction between Board dis- procedural missals and Board dismissals in

AFFIRMED the text of the Maj. Op. statute. See 1117- DYK, Circuit Judge, dissenting. 18. majority appears The reason that a mixed case appeal to the Board is not a view, my majority’s subject “[c]ase[] of discrimination to the holding is inconsistent with the Civil Ser provisions of section 7702” within the vice Reform (CSRA), Act see 5 7703(b)(2) meaning 5of U.S.C. unless 7702-03, §§ U.S.C. and with the Supreme the employee has established Board’s Court’s decision in Solis, Kloeckner v. including proving that he or U.S. -, 133 S.Ct. 184 L.Ed.2d 433 “ she ‘has affected been an action which (2012). majority holds that cir ... may appeal to the Merit cuit has to review Merit Sys Systems Protection Maj. Board.’” See Op. (“Board”) Protection tems decisions (omission original) (quoting 5 in mixed cases involving al discrimination 7702(a)(1)(A)). U.S.C. legations even though, as the held, recently Court Congress specifically majority’s reading statute excluded those from cases our necessarily rejected Kloeckner, was for n.3, 568 U.S. Resp’t at 25 equally would majority’s approach argued that: -, It also proce- 133 S.Ct. to review our court

give gov- As the cases. in mixed issues dural between distinction [the] Kloeckner, an em- in out pointed ernment (reviewable in district dismissals [Board] Board to the may only appeal also ployee court) dis- jurisdictional [Board] and time applicable so if he does within (reviewable only in the Federal missals Opp’n in at 15- Resp’t for Br. limits. See Circuit) unpredictable. and difficult -, Kloeckner, 133 S.Ct. 16, 568 U.S. distinction procedural-jurisdictional § Sec- 1201.154. 596; C.F.R. see also 5 be- that an premise rests on 7703(b)(2) any not draw do and tions 7702 does not yond [Board]’s types different between textual distinction an action involve which decisions, is no other and there of Board Sec- Board under may appeal ... to the jurisdic- between distinguishing basis 7702(a). ap- description But that tion dismissals.1 procedural and tional [Kloeck- like appeal, to an plies equally Kloeckner, holding that Indeed, while in ner’s], timely filed. that is not to de- court lacked the district Kloeckner, 15, Opp’n in at Resp’t Br. for existed, bar procedural a whether termine (citations U.S. -, 596 and 133 S.Ct. 568 procedural- rejected Eighth Circuit omitted). Kloeckner mark quotation distinction, concluding that it jurisdictional “determining whether because agreed analy- textual unpersuasive “an rested jurisdic or procedural ruling was [Board] diffi- courts to draw require that would sis ” unpredictable.’ ‘difficult and tional can be be- distinctions unpredictable cult and Kloeckner, Pet’r at 568 Rep. Br. for See are rulings that non-merits [Board] tween Br. for -, (quoting S.Ct. 133 596 U.S. merely those that are and ‘jurisdictional,’ 15). supra, ” in Resp’t Opp’n, Solis, 639 F.3d ‘procedural.’ Kloeckner rev’d, (8th Cir.2011), 568 U.S. any distinc- parties recognized, theAs 433; L.Ed.2d see -, “jurisdic- 133 S.Ct. and “procedural” tion between Muchnick, Elsevier, Inc. v. also Reed unwork- would be Board decisions tional” 1237, 1243, 176 154, -, 130 S.Ct. frequently U.S. practice. able (“[T]he (2010) distinction be- L.Ed.2d 18 includ- grounds, cases on alternate decides claim- conditions and jurisdictional tween jurisdictional and both ing prac- confusing can be rules processing See, Dep’t Louie v. e.g., grounds. tice.”). (Fed. 942, 944 Treasury, Fed.Appx. Cir.2007) (reviewing Board’s dismissal Court, In the alternate whistleblowing on five claim any distinction parties agreed both juris- a lack of was one of which grounds, “jurisdictional” and “procedural” between Serv., Postal diction); v. U.S. Davenport For without Board decisions was merit. (dis- (M.S.P.B.2004) 417, 417 97 M.S.P.R. argued that government example, as jurisdiction and lack of missing “for pro- jurisdictional distinction between added)); see untimely (emphasis Br. filed” See “has no basis.” cedural dismissals 7703(a)(2) ("The be Board shall U.S.C. Congress to distin- Notably, intended where brought any proceeding types respondent deci- guish of Board between different named sions, subsection, expressly. See 5 U.S.C. unless em- did so pursuant 3330b(b) ("An election under this section of a final order ... seeks review ployee has [Board] ... after the may not be made (emphasis add- on the merits....” decision on the judicially reviewable decision issued a ed)). added)); (emphasis appeal.” merits also, e.g., Marshall v. Dep’t Navy, Dep’t Powell v. Def., (M.S.P.B.2000) (dis- (D.C.Cir.1998). Yet, M.S.P.R. 677-78 as the Supreme waived, missing allegations some Court in Elgin, as noted others objec “[t]he CSRA’s abandoned, creating as tive of untimely, integrated others as and still scheme of review would jurisdiction). for lack of be seriously others undermined” “parallel such litigation regarding the the broad agreement Given between the same action.” Elgin, 567 U.S. at parties that it is possible to meaning -, 132 S.Ct. at 2135. On the other fully distinguish “procedural” between hand, if the issue is reviewed “jurisdictional” Board dispositions, the Su in district and the district court preme Court’s silence as to the distinction concludes that there is jurisdic no Board hardly can approve Quite be read to it. tion, employee the pursue can other ave contrary, Supreme the the Court has re nues of relief in same the district court emphasized cently the need for “clear forum. guidance about proper the forum for [an] majority’s The justification other for its employee’s claims” the under CSRA. See approach is that our earlier decision in Elgin Dep’t v. the Treasury, 567 U.S. of Ballentine v. Systems Merit Protection -, -, 2126, 2135, 132 S.Ct. 183 Board, 738 (Fed.Cir.1984), F.2d 1244 on (2012). L.Ed.2d 1 view Court’s is also jurisdictional point “is still good law” legislative reflected the history, which after Kloeckner. Maj. Op. 1119. But Bal- explains that one of purposes the core of lentine, Kloeckner, like appli involved the was to CSRA avoid “a bureaucratic cation rules governing the time for fil maze which ... every mires personnel ac Ballentine, ing. In employee had filed red[]tape, tion in delay, and confusion.” early, Kloeckner, too whereas in the em 95-1403, (1978). H.R.Rep. No. 2 By at ployee had filed too late. See Kloeckner attempting to draw a proce line between at-, 603; 568 U.S. 133 S.Ct. at Ballen- dural issues, and majori tine, 738 F.2d at Nothing in Ballen- ty reintroduces the complexity very and any tine drew distinction between such uncertainty that the Supreme Court re procedural jurisdiction; issues rather, and jected in Kloeckner and its prior cases. the Ballentine rule applied equally to all Kloeckner, U.S. -, See 568 133 S.Ct. at Ballentine, “threshold matters.” See 604; Lindahl v. Mgmt., Pers. Office of Kloeckner, F.2d at 1246-47. gov In 768, 799, U.S. 105 S.Ct. 84 L.Ed.2d urged ernment the Supreme Court (1985) (noting the jurisdiction “bizarre adopt this statutory analysis court’s from patchwork” al result if would the fo procedural Ballentine —that jurisdic and rum judicial review of Board decisions dispositions tional not “judi do constitute depended on “whether employee’s an re cially reviewable actions” under the stat tirement was involuntary voluntary, or and at -, ute. See 568 U.S. accordingly ... whether might 604-05; Ballentine, at see S.Ct. also properly be as an characterized adverse at F.2d 1246-47. Court re action”). jected government’s approach, calling Compelling employees with claims to it “a found ] nowhere in the contrivance! Board to raise those issues in provisions judicial statute’s review” the Federal Circuit rather than the district holding that employee “[a] federal who disadvantages courts requiring them claims that an agency appealable action filing in both the Federal Circuit and the [Board] violates an antidiscrimination court to preserve district rights. 7702(a)(1) their See listed in statute should seek See, v. e.g., Garcia inoperative. in the therefore not in district judicial review Sec., F.3d Homeland Dep’t Board “de Circuit,” whether Federal banc). Garcia, (en (Fed.Cir.2006) grounds case on cided her ac that, adverse in constructive we held Kloeckner, 568 merits.” on the instead invol cases, prove employee must tion 604, 607. Noth at -, 133 S.Ct. U.S. evi preponderance aby untariness supposed preserved in Kloeckner ing jurisdiction'— in order to establish dence “juris in Ballentine that holding separate on the applicable proof the same burden re are to be dispositions dictional” Board Thus, in con at 1344. merits.4 here.2 viewed cases, the Board’s action adverse structive “ are ‘inextrica and the merits II ” it is intertwined,’ that “[i]f much so so bly majority’s misguid- from Quite apart is involun resignation established “juris- distinguish between attempt ed only has tary, [Board] disposi- “procedural” dictional” on the mer wins ‘but also ” that we lack tions, be it cannot Dep’t Agric., its.’ Shoaf cases but of mixed the “merits” to review (Fed.Cir.2001) (quoting Schultz 1336, 1341 “jurisdictional” may (Fed. review nevertheless 1136 F.2d Navy, 810 v. U.S. merits of to the words, identical Cir.1987)). issues that are in constructive In other construc- cases, juris claim in mixed in “the general, the discrimination action adverse Constructive line before action cases.3 stage tive adverse is end of dictional ‘mer cases, Board; independent the most no perhaps there is action adverse Admin., Bus. cases, Lloyd cases in v. Small phase.” its’ of mixed are type common (M.S.P.B.2004) 518, 528 contends 96 M.S.P.R. resigns but employee which Chairman, concurring).5 (McPhie, coerced, Acting resignation was that Maj. allegation See standard. pre- non-frivolous makes much of majority also 2. The Garcia, however, an em- Op. Under which other circuits 1121. cases from Kloeckner ultimately prove involuntariness ployee jurisdiction over Board must have held we See, estab- the evidence to e.g., Maj. Op. of dispositions. preponderance a jurisdictional relied, directly at 1344. jurisdiction. 437 F.3d lish cases all either 1116-17. Those approach indirectly, Ballentine on the Garcia, deemed erroneous Supreme Court which the my spelled out in dissent 5.As I See, Rev- e.g., v. Harms Internal in Kloeckner. and merits conflating (10th Serv., 2 1007 & n. F.3d enue 321 contrary On its to the statute. itself tests is States, Cir.2003) 871 (citing Wall v. United face, requirement imposes no 7702 section Cir.1989) (10th (citing F.2d 1542-43 ad- prove merits of his employee that an Ballentine)). pro- to invoke its claim in verse action order reading of section most natural cedures. type 7702(a)(1) merely is that it describes true that whére is 3. While it is may mixed cases scope allegations relief that constitute of merits of established the issues, Dep't 7702.” provisions of section “subject see Garcia to the present additional (Fed. 7703(b)(2), Sec., is how the § That F.3d U.S.C. See 5 Homeland banc), Cir.2006) (en jurisdic- in Kloeckner. can be there no Court read statute ("A -, the exis- at 607 employee establishes at S.Ct. 568 U.S. tion unless the See that an employee who claims tence of discrimination. federal violates an appealable [Board] action listed statute antidiscrimination case, Conforto found the Board In this 7702(a)(1) judicial review in seek should allegation failed even to make non-frivolous added)). (emphasis So court....” district thus involuntary, and was that her retirement too, have read is how our sister circuits jurisdic- entitled to was not held she Runyon, F.3d Downey v. E.g., majority to this statute. hearing. The refers tional majority attempts avoid this diffi- 5.Rep. 95-969, No. (1978), at 63 (and culty by suggesting that coercion U.S.C.C.A.N. 2723. jurisdiction) therefore Board might be This is also by § made 7702(e)(3), clear proof found without of discrimination. See clearly which states that “[njothing in this Maj. Op. 1120. But employee while an section shall be construed to affect the might advance such an theory alternative right to trial de novo” on employee’s relief, whose sole claim is discrimination allegations. 5 U.S.C. resignation his was coerced by dis- 7702(e)(3). Yet that is precisely what prove crimination must that the discrimi- the majority’s construction of the statute nation existed in prove order to coercion does constructive adverse action cases. (and therefore jurisdiction). See If we find that the employee has estab- Cruz v. Dep’t the Navy, lished jurisdiction, then he also necessarily (Fed.Cir.1991) (en banc). In such merits, wins on the F.3d Shoaf cases, proving the merits of the employee’s 1341, and is there thus no need for a trial discrimination claim necessary is to estab- novo, except de perhaps on the scope lish Board and the issues two relief. If we find that the employee failed are hardly therefore “distinct.”6 establish then there is no Under decision, the majority’s involun- claim the merits and no need for a trial tary retirement involving claims discrimi- Thus, is, de novo. there as a practical nation allegations will almost never be ad- matter, almost no circumstance in which dressed in the district courts. We will there can be a trial de novo the district (and either find that there court. Contrary to the majority’s insis- the employee therefore prevails on tence, under our cases an employee cannot merits) the retirement was .or establish yet “lose[ ] (and voluntary the employee therefore los- mixed appeal case on the merits of her merits). es on the This ap- anomalous discrimination claim” and then seek review proach Congress’ turns clear intent on its in district Maj. court. Op. 1115. head, requiring that we type address the of fact-intensive inquiries sum, into matters majority’s effort to preserve such as discrimination, voluntariness and our authority review “jurisdictional” is- Congress which specifically found re- sues mixed cases (particularly in con- view district courts “more appropriate.” cases) structive adverse action contrary (2d Cir.1998) (“Mixed appeals to the ute indicates that the Board lacks are appeals alleging [Board] those appeal- unless discrimination is pre- established able action affected part by ponderance in whole or in of the evidence. prohibited (emphasis discrimination.” add- ed)); Powell, 158 (defining F.3d “a majority suggests also jurisdic- that the appeal” 'mixed case' as alleging "an holding tional if identical to the mer- —even Board-jurisdictional both a agency action and give its—would not estoppel. rise to collateral a claim of unlawful (empha- discrimination" Maj. Op. See 1120 n.4. circuit cases cited added)); Bd., sis Sys. Christo Merit Prot. majority were decided before Garcia (10th Cir.1981) (describing and that the assumed mer- and a mixed case “containing as different, both a claim its issues they were were improper agency See, and action West, claim of dis- e.g., identical. Sloan v. added)), vacated, (emphasis crimination” (9th Cir.1998) ("Ordinarily, n. (10th Cir.1982). F.2d plain reading A estoppel collateral apply would not because § 7702 applies is that it to all involving cases the discrimination issues would not be actual- allegations of an allega- adverse action ly litigated and necessarily determined tions of Nothing discrimination. appeal." in the stat- (quotation omitted)). marks respectful- I the statute.

to Kloeckner ly dissent.

Case Details

Case Name: Conforto v. Merit Systems Protection Board

Court Name: Court of Appeals for the Federal Circuit

Date Published: Apr 18, 2013

Citation: 713 F.3d 1111

Docket Number: 2012-3119

Court Abbreviation: Fed. Cir.