*1 retary violated the Administrative Procedure by failing statute
Act and Medicare interpretation comparabil-
mulgate her
ity policy by rulemaking; notice and comment Magis- and the the ALJ’s decision denying
trate’s affirmance erred Plaintiffs’ reopening arising of claims from
reimbursement determinations made be- 29,
tween October and March 1989. arguments,
As a result of all these Plaintiffs Magistrate
contend that the erred accord- Secretary’s interpreta- to the deference regulation
tion of the statute and at issue.
We review the district court’s affir- ruling
mance of the ALJ’s de novo. See (2d Heckler,
Townley v. 748 F.2d
Cir.1984). so, doing In we review the ALJ’s applied
decision to determine whether it legal principles supported by
correct and is See, e.g., “substantial evidence.” Johnson v. (2d
Bowen, Cir.1987). judgment affirm the
We the district substantially
court for the same reasons stat- Magistrate Judge’s thorough
ed in the deci-
sion. judgment of the district court is AF-
FIRMED. DOWNEY,
Francis X. Plaintiff-
Appellant, RUNYON, Jr.,
Marvin T. Postmaster
General, Defendant-Appellee.
Docket No. 97-6239. Appeals,
United States Court
Second Circuit.
Argued Sept. 1998.
Decided Nov. 1998. Rehearing
Order Jan. Council, requests eight appealed Appeals sev- thus far resulted in have been adversely hearing ALJ decisions based on the held ALJ en of which have been determined Further, appeal. Quinn in 1992. all of these decisions Plaintiffs as of the time of this *2 Buffalo, York), Attorney, New for De- States fendant-Appellee. KEARSE, Judge,
Before: Circuit CASEY,** POLLACK* and District Judges.*** Pollack, Judge: Senior District PRELIMINARY Plaintiff, of the United States (“USPS”), having Postal Service asserted involving employment claim disability, brought on the basis Systems appeal” before the Merit Protection (“MSPB”), which dismissed the Equal Employ- for untimeliness. After the (“EEOC”) Opportunity ment Commission de- nied and determined not to re- decision, plaintiff brought view the MSPB’s suit the district court on his discrimination Held, statutory claim. the district court has jurisdiction, pursuant to the Civil Service Act, Reform the Rehabilitation and Title Rights ofVII the Civil Act of to exer- plaintiffs cise a de novo review tion claim.
BACKGROUND Francis X. was a preference eligible employee who worked for the Postal as a Service Mail Handler Buffalo Processing & Distribution Center in Buffalo, New York. 19, 1991,
On December Mr. placed off-duty, non-pay in an status due to improper workplace conduct on De- cember 1991. The Postal Service issued Proposed a Notice of on Removal Buffalo, Downey, NY, X. Francis Plaintiff- charging December him with con- Appellant Pro Se. unbecoming postal employee duct Smith, Attorney, Janet E. United States threatening his abusive and behavior to his Service, (R. Washington, Postal D.C. Andrew supervisor and others. On December German, Counsel, Managing United States 1991, Downey representative and his Union Service, D.C., Postal Washington, Patrick H. representative met with a Post Office to dis- NeMoyer, Attorney for the eomplaint against cuss the him. The matters York, Buffalo, Western District of New New York, Mary Fleming, again meetings. E. Assistant were discussed United further * *** Pollack, Judge Honorable Milton District Pursuant to 28 U.S.C. and an order United States District Court Southern judge certifying judicial the chief of this Court York, sitting by designation. District of New emergency, emergency this case was heard ** Conway Casey, Honorable Richard District panel consisting judge of one from this court and Judge of the United States District Court for the judges two of the United Slates District Court York, sitting by desig- Southern District of New sitting by designation. nation. -invoked, January grievant the Postal Service 1991 will no will have fully sup- fo- charges that the were determined rum, to, including but not limited removal ported evidence and warranted grievance/arbitration procedure, February Postal effective from the Merit plaintiff a 1992. The Postal Service issued *3 Employment Equal Opportunity Com- Decision, upholding the removal Letter of mission, appeal to other forum. or advising rights him of his and imposition The removal bewill effected grievance procedure. He and of the MSPB within 48 hours of the. writ- Grievance’s to must be was notified imposition. ten notice of 20 calendar and of his exercised within Following the execution of the Last hearing given to and was .Agreement, Chance the Postal re- copy regula- form and a of the MSPB turned to work. opted challenge tions. Plaintiff to his remov- 24,1992, signed Employee On March he through grievance procedure al (“EAP”) Program participation Assistance Bargaining Article 15 of the Collective agreement requiring that he attend at least Agreement between the Postal meetings per Anony- two week of Alcoholic Service and the National Postal Mail Han- Anonymous provide mous or Narcotics and dlers Union. documentation of his attendance to the EAP Agreement Article 15 of the National sets agreed participate office. He to in the Bea- procedure grievance-arbitration forth the out-patient program. con Center He went to employees bargaining represented of the unit only agreed the Beacon Center once. He Union, National Mail Postal Handlers sending monthly report participation plaintiff. procedure such as This consists of program. report The first such indicated steps, culminating binding four final and participating acceptable he was not to an arbitration. level. -A through resolution was achieved In September of 1992 the EAP was noti- Plaintiff, grievance process. representa- plaintiff dropped fied that had been from the tive, representative program and the Postal Service’s for non-attendance. The letter in- plaintiff dicated that had last signed Agreement a Last attended a Chance dated Feb- 10, meeting September According- on 18,1992. 1992. ruary ly, report EAP’s next to Labor Relations on Stipulation Agreement number 3 of that 10, October 1992 indicated that was states: compliance not in EAP agreement. with his grievant agrees actively partici- 1992, supervisor October issued a pate Employee in the Assistance Pro- prior reimposing notice to re- (“EAP”) gram agrees in an and to enroll moval, based on his violation of his Last approved in-patient substance abuse Agreement. Chance The effective date of program. Upon satisfactory completion that action was November 1992. Plaintiff in-patient of this substance abuse challenged through the removal action gram, grievant provide will satisfac- grievance procedure. An Arbitration hear- tory documentary evidence of his suc- on was held June 1993 before an completion program cessful of the July Arbitrator. On the Arbitrator Management. grievant Postal fur- upholding issued his decision the termination. agrees fully cooperate par- ther agen- The Arbitrator’s award held that the ticipate in program their until such time cy Agreement did not violate the National professionals EAP as the determine that implemented when it the terms Last participation longer such is no neces- Agreement appellant. Chance and terminated sary. Downey’s It this award that re- was sealed Stipulation Agreement number 8 of the moval date as of October 1992.
states: (“CSRA”) The Civil Service Reform grievant Should the fail to abide this provides postal paths two toward redress for Agreement, origi-
Last Chance allege employees service who employment wholly partly nal removal first on December action was issued Agreement. The signed the Last Chance CSRA prohibited discrimination. in- appellant again was shows that record may employees ei- aggrieved provides that January his notice of removal formed of complaint” before a “mixed bring ther 24,1992 incorporated his which Employment Office Equal postal service’s Imposition Letter rights in the Removal appeal” before the (“EEO”), aor repre- 1992. had been October 7702(a)(1) (2); & MSPB. See attorney by an at the Arbitration sented 1614.302(a)(1)(defining mixed ease C.F.R. forum, attorney a choice of and his made he 1614.302(a)(2) (de- complaint); 29 C.F.R. Arbitration, hearing was namely, and his appeal is “mixed” An fining appeal). mixed Arbitration, At the held on June alleges that an postal worker aggrieved if the capacity to en- contested his appellant never employer to the MSPB by an only but Agreement ter into a Last Chance em- effected, part, wholly or because *4 terms. ability carry out its his race, color, on ployment discrimination 20, 1995, Lee of Judge William J. On June sex, age, origin, or handi- religion, national plain- on an Initial Decision the MSPB issued 7702(a)(1); 29 C.F.R. 5 U.S.C. cap. See Judge appeal. Lee dis- tiffs Administrative 1614.302(a)(2). complaints are filed Mixed untimely; he had Downey’s appeal as missed fashion to standard processed in similar regu- Board within the failed to file with the complaints, with Title VII/Rehabilitation period. The Administrative latory time exceptions. See 29 C.F.R. notable a few al- regulations the Board’s Judge noted that 1614.302(d). appeal from Significantly, an a days request a for review lowed 25 to file complaint of a mixed an determination EEO decision. 5 C.F.R. from an Arbitrator’s MSPB, rather than must made before be 1201.154(d)(1993). He also noted that the 1614.302(d)(3). Thus, C.F.R. the EEOC. August day appellant to file was 30th for may a employee bring aggrieved an Downey’s envelope to the Board ways: in a two as appeal” the MSPB before nearly years May two post-marked employment ac- an appeal of direct later. tion, appeal of an EEO determina- or as an that an Judge Lee noted Administrative complaint. mixed tion of a may the time Judge waive Administrative 1614.302(b); 7702(a)(3); cause, good for limit in an individual ease C.F.R. 1201.151. (1993). However, appel- § 1201.12 C.F.R. proof the burden of on the issue lant bears 22, 1995, Downey filed an May On Judge Lee rea- timeliness. Administrative challenging 1992 termi- his with the MSPB years in Downey, by waiting two soned that ap- In his nation from the Postal Service. regulatory period túne in which of the excess to the peal alleged he as affirmative defenses lack of due appeal, to file his demonstrated action, phys- based on removal discrimination delay. ordinary prudence by his diligence and (Hemochromatosis) well disability as ical Judge held Administrative Among his prohibited personnel practices. beyond any circumstances his failed to show defenses, “Having sign a Last wrote me he ability comply control which affected his I while was under the Agreement Chance Accordingly, limit. regulatory with the time punishment while I imposing Also influence. having been demonstrated good no reason process was on leave. I was denied due sick regula- warrant a waiver of the which would preference eligible my rights as a veter- Judge tory period, the Administrative time disability.” because of an and discriminated and dismissed granted the USPS’s motion he was He that he believed the action stated appeal. appealing the Americans Dis- violated With Judge’s Administrative Decision ad- Freedom of Information abilities Act and the petition a for vised of his file petition appellant’s Act. Because was untime- of the Initial Decision with the MSPB review filed, ordered, days to ly he was within 15 D.C., petition Washington, or to the U.S. in regulato- of the good show cause for a waiver Appeals Circuit for Federal Court by acknowledgment ry time limit order 25, 1995, days July the date within May 1995. He filed an amended final, unless the which the decision became 10,1995. on June own motion. reopened the case on its Appellant alleged that he not afforded Thus, was might that he was notified copy regulations request of the and that he full of this initial deci- MSPB’s Board review by filing petition for review. He was drugs he sion under the influence of when how, principles expressed where and when he should Several unassailable instructed He was also instructed petition for review. decided eases exist at the threshold he was with the Board’s that if dissatisfied inquiry, e.g.: decision, petition might final he file a with employee aggrieved by 1. An an action af- Appeals the United States Court for fecting employment his may continued Circuit. He was instructed Federal recourse to the MSPB. timely, your petition must be re- “[t]o 2. An who has been affected by the Court no later than 30 calendar ceived employment by prohibited days after the date this initial decision be- complained the adverse action final.” comes to the MSPB. Plaintiff then filed an with the Full appeals 3. Mixed MSPB those September which issued decision on appeals alleging appealable action affected petition denying his for review. part by prohibited or in whole The Board’s Order advised of the tion. of the final review Board’s Ap- in the Court of rulings 4. Final appeal- of the MSPB are peals within Federal Circuit 30 calen- able to the Appeals Federal Circuit Court of receipt dar Order. except for decisions involving made cases 23,1995 September proceed- instead of illegal elements of discrimination that are *5 Circuit, ing in the Federal submitted judicially pursuant reviewable to to the EEOC to review the final 7702(a)(1) §§ & of the CSRA. Federal allegations the on his decision of MSPB of Act, Improvement 1295; § Courts 28 U.S.C. discrimination “i.e. denial of ac- reasonable §§ Civil Service Reform 5 7702 U.S.C. & commodation under the Americans with Dis- 7703(b). Act,” § 42 12101 seq. abilities U.S.C. et Additionally, produced case law has several November the De- EEOC issued a unassailable, principles equally that are nial of Consideration. follows: stated, The decision of the EEOC that “The decision of the ... MSPB becomes since the MSPB’s decision went to the timeli- judicially reviewable in district court on the Downey’s appeal ness of with the MSPB and unless, thirty days, date of its issuance within of not affirmative defense employee petitions Equal Opportuni the the tion, jurisdiction the EEOC did not have over ty the Commission consider MSPB deci Downey’s petition accordingly and the EEOC Systems sion.” Ballentine v. Merit Protec petition denied for review. The decision (Fed.Cir. tion of the EEOC stated that its determination 7702(a)(3)(A) 1984); §§ 5 U.S.C. & final was and that there was no further 7702(b)(1). stated, however, appeal. of administrative It that did have the to file' a civil reviewable, judicially “Once a ease becomes appropriate in an United States Dis- 7703(b)(2) § specify that an ac- trict Court on the decision of the appropriate tion be filed under the discrimi- MSPB within 30 calendar the date of Ballentine, nation statute.” F.2d the EEOC decision. The next action the was his I. District Court Jurisdiction Under
filing
of this law suit
the Western District
Civil
Reform Act
against
of New York. This suit is asserted
Jr.,
Runyon,
T.
Marvin
Postmaster General.
Appeals
A. Mixed
Improvement
The Federal Courts
DISCUSSION
provides
of 1982
the United States Court
question presented
to this Court in
Appeals for the Federal Circuit with exclu
appeal
this
is whether a federal
is
“of an
from a final
sive
judicial
entitled to a de novo
review feder-
order or final decision of the Merit
al district court of his
claim
discrimination
Board,” pursuant
to section
MSPB,
reaching
after the
without
the merits
7703(b)(1)
claim,
CSRA. 28 U.S.C.
dismisses
1295(a)(9).
grounds
provides
“mixed
that
untimeliness.”
Section
7702(a)(3).
express
Although
only
lim-
orders and
final
decisions
appeals of
all
an MSPB decision re-
on whether
itations
Federal
filed
to be
are
the MSPB
is to be considered
a mixed claim
garding
discrimination,”
Circuit,
except “[c]ases
temporal,4 the
“judicially reviewable”
“shall be filed”
which
in section
defined
an
supplied to the CSRA
has
Federal Circuit
5See
District Courts.1
States
in the United
Namely,
limitation.
unwritten substantive
(2).
7703(b)(1)
7702 in-
&
Section
U.S.C.
concern-
decision
in order for an MSPB
that
known as
purview cases
within its
cludes
“judicial-
considered
a mixed
“any employee
who
appeals,”2 of
courts,
by the district
ly reviewable”
by an action which
been affected
has
merits
must reach
MSPB decision
[MSPB]
employee ...
the discrimi-
appealable action and
both the
was dis-
for the action
alleges that a basis
Ballentine, 738 F.2d at
nation claim. See
by various federal
prohibited”
crimination
stated,
has
The Federal Circuit
1246-17.
791 of the
statutes,
Title VII and
including
taken to the
appeal has been
“[w]hen
7702(a)(1)
Act.3
Rehabilitation
MSPB,
issue and the
until the discrimination
added).
regulations
The EEOC
(emphasis
on the
decided
appealable action
been
ap-
appeal is “an
a mixed
provide
thus
MSPB,
appellant
granted
merits
alleges that an
the MSPB
peal filed with
in a civil action
a trial de
rights
no
novo
effected,
or in
in whole
appealable action
§ 7703.” Id. at 1246-47
7702 or
on the basis
part, because of discrimination
Circuit has exclu-
(holding that the Federal
sex,
color,
origin,
race,
religion,
national
dismissals of
jurisdiction over
sive
MSPB
1614.302(b)
handicap
age.”
jurisdictional grounds).
appeals on
mixed
(1998).
requirement
express
not
CSRA does
An
from
MSPB
shall determine the merits of
that MSPB
“judi
appeal must be a
concerning a
for the
mixed
claim order
deci-
the discrimination
*6
in
for the
cially
“judicially
action”
order
Subsec-
reviewable
sion to be
reviewable.”5
(b)(1)
provides that the
Courts to exercise de
tion
of section 7703
District
jurisdic-
shall
exclusive
claim. See Federal Circuit
novo review of the discrimination
(iii)
Act
of
Rehabilitation
section 501
the
of
provides that
be filed
suits shall
1. The statute
1964,
791),
(29
717(c)
Rights
of
42
1973 U.S.C.
§
of the Civil
Act
under
2000e-16(c),
15(c)
(iv)
Age
Age
§
§
Dis-
12 and
of the
Discrimi-
of the
sections
15
U.S.C.
’ 1967,
(29
Employment
Employment
Act
29
of 1967
U.S.C.
of
in
Act
crimination in
nation
631, 633a),
633a(c),
§
§
of
Fair Labor
and
the
or
U.S.C.
amended,
rule,
(v)
regulation,
policy
U.S.C.
any
as
29
or
directive
Standards Act of
216(b),
applicable.
any provision
See 5 U.S.C.
prescribed
where
of law de-
under
7703(b)(2).
brought pursuant
(i)
(iv)
Disability
through
§
cases
of this
in clauses
sub-
scribed
717 of
Act
filed under
paragraph,
to the Rehabilitation
shall,
Rights
filing
of 1964.
29 U.S.C.
days
Civil
Act
See
the
120
of the
within
of
the
791, 794a(a)(l).
District
The United States
appeal,
of
decide both the issue
discrimina-
the
over
filed under
Courts have
cases
appealable action in accordance
and the
tion
2000e-16(c);
42
id.
See
U.S.C.
section 717.
§
appellate procedures
Board's
under
with the
2000e-5(£)(3).
and this section.
7701 of this title
section
1614.302(b) (1998).
2. See 5 C.F.R.
states,
statute,
7702(a)(3),
5 U.S.C.
paragraph
Any
the
under
[MSPB]
decision of
brought
appeals”
appeals
un-
are those
3. "Mixed
(1)
judicially
be a
re-
of this subsection
states,
shall
7702(a)(1)(B),
which
der
as of—
viewable
(a)(1) Notwithstanding any
provision
other
(A)
of the decision if
the date of issuance
the
law,
(2)
except
provided
paragraph
and
as
petition with
employee
does not file
subsection,
any employee
of this
in the case of
(b)(1) of this
under
subsec-
[EEOC]
subsection
applicant
employment who—
or
for
tion, or
(A)
which the
has
affected
an action
been
(B)
determines not to
[EEOC]
the dale
employee
applicant
to the Merit
[MSPB’s]
decision
consider
and
(b)(2)
this
subsection
section.
(B) alleges
action was
that a basis for the
by—
prohibited
discrimination
4, supra,
the relevant
nn. 3 &
subsec-
5. See
(i)
Rights Act of 1964
of the Civil
section 717
states,
7703(b)(2),
§ 7702. 5 U.S.C.
tions
(42 U.S.C.2000e-16),
subject
provi-
(ii)
6(d)
Standards
Cases of
of the Fair Labor
section
206(d)),
(29
title shall be filed
of section 7702 of this
sions
tion of all final orders and decisions of the
nation of the merits of his claim therein.
MSPB, except
provided
as
Prior to bringing
subsection
suit under the Rehabilita
(b)(2).
(b)(2)
VII,
tion
provides
Act and
Subsection
that
Title
obliged
to exhaust the
subject
administrative
“[c]ases of discrimination
remedies at
disposal. See Brown v. General Services
visions of section 7702 of this Title shall he
Admin.,
820, 828-29,
U.S.
96 S.Ct.
provisions
under” the enforcement
filed
(Title
VII);
preserve the applicant H. Conf. courts. See in the district Title VII Board,” (1978), 95-1717, re- Cong., 139 Merit 95th R. No. 7702(a)(2)(A), It re- therefore not and is 4 U.S.C.C.A.N. printed in subject court in the district of discrimination “[c]ase[ ] mains to be determined 7703(b)(2). id., filing 7702,” limits for regulatory time visions of section whether (“if disregarded West, in See, at 1261 e.g., the MSPB will v. 140 F.3d before Sloan suit Downey’s case. have over does not the MSPB claim, not the case is then non-discrimination CONCLUSION ”). a ‘mixed case’ that, expressed, the as have concluded We (2) contends that Postmaster General The entitled meaning of the CSRA plain appeal that “is not within an MSPB a discrimination review of to seek de novo limits in the first procedural time MSPB’s after district court claim federal a “mixed case” qualify not instance” does appeal” on his “mixed MSPB dismissed disagree subject 7702. We to 5 U.S.C. reaching the without grounds of untimeliness a mat- analytical premise. Whether with the The claim. dis- of his discrimination merits depends on the case substance ter is mixed ef- of course consider the trict should court presented, not on the timeliness of the claims alleged failure to follow Downey’s fect of of their assertion. procedures. regulatory suggests that Postmaster General The is judgment of the district court vacat- of the district court should the decision ed, remanded for further the matter is relating plain- affirmed for reasons been opin- with this proceedings not inconsistent timely his failure to exhaust administra- tiffs ion. court in this case tive remedies. district jurisdiction. Neither for lack of dismissed REHEARING PETITION FOR is a matter of nor its timeliness exhaustion Jan. a matter to be jurisdiction but rather respect opin- rehearing with Petition for See, e.g., raised as an affirmative defense. 13, 1998. Petition ion filed on November States, Bowden United denied. (D.C.Cir.1997) (“untimely of ad- exhaustion makes Defendant Postmaster General ministrative remedies is an affirmative de- support principal arguments fense”). three remains The Postmaster General re- petition rehearing, each of which we assert such a defense in the district free to ject. court. (1)The argues that Postmaster General Petition denied. *8 conflicts with the decision of the
our decision Sys v. Merit Federal Circuit Ballentine 1244, 1247
tems Protection
(Fed.Cir.1984), and with decisions of other panel opin clear in the
circuits. As made
ion, disagree the Ballentine court’s we with §§ 7702
interpretation of 5 U.S.C.
DE ARTE
MUSEO
CON
FUNDACION
of other circuits in Powell v.
decisions
DE
TEMPORANEO
CARACAS - SOFIA
Department
Defense,