Leslie A. KERR, Plaintiff-Appellant, v. Sally JEWELL, Secretary of Department of the Interior, Defendant-Appellee.
No. 14-36000
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 2, 2016 Anchorage, Alaska. Filed September 6, 2016.
833 F.3d 1089
The majority points to the inclusion of a declaration of Carol Sobel setting forth fee awards in various court cases in the Los Angeles area. See Majority Opinion, pp. 1045-46. However, the majority‘s reliance on these fee awards is problematic for two reasons: 1) the data provided was proffered for the purpose of supporting Task Force‘s request for an award of its current billing rates, and 2) the district court was not required to accept the proffered rates as controlling.
Notably, Task Force never argued that the rates set forth in the Sobel declaration established prevailing market rates for 2006 to 2008. Rather, Task Force relied on the rates in the declaration as support for an award of its current rates, particularly since the rates in the declaration encompassed 2008-2011, as opposed to the pertinent years of 2006-2008.
More importantly, the district court was not required to accept these rates as prevailing market rates for 2006-2008, not only because the rates were for different years, but also for different types of cases. Not one of the referenced cases arose under the Freedom of Information Act, as does this case.2 Rather, the rates cited were awarded in “a recent large class-action First Amendment case,” “a consumer class action,” and civil rights litigation. Absent a showing that the fees were earned in cases that were analogous to litigation under the Freedom of Information Act, the district court was not obligated to accept these rates as historical market rates. See Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007) (“[B]illing rates should be established by reference to the fees that private attorneys of an ability and reputation comparable to that of prevailing counsel charge their paying clients for legal work of similar complexity.“) (citations omitted).
In summary, because Task Force did not appeal the underlying fee award, and because the district court acted within its discretion in determining the appropriate fee award, I would affirm.
Charles W. Scarborough (argued), Stephanie R. Marcus, and Marleigh D. Dover; Karen L. Loeffler, United States Attorney; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, Department of Justice, Washington, D.C.; for Defendant-Appellee.
Before: RAYMOND C. FISHER, RICHARD A. PAEZ and ANDREW D. HURWITZ, Circuit Judges.
OPINION
FISHER, Circuit Judge:
Leslie Kerr, a former employee of the United States Fish and Wildlife Service (FWS), contended she was discriminated and retaliated against in violation of Title VII and retaliated against in violation of the Whistleblower Protection Act (WPA). Kerr presented her claims to FWS‘s Equal Employment Opportunity (EEO) office, which denied her Title VII claims on the merits and dismissed her WPA claim for lack of jurisdiction. Rather than appealing the EEO office‘s decision to the Merit Systems Protection Board (MSPB), which had jurisdiction to review the WPA claim on the merits, Kerr filed a civil action in
We hold, first, that the statutory scheme governing the Civil Service Reform Act (CSRA) and the WPA did not authorize Kerr to file her WPA claim in district court without first presenting it to the MSPB. Kerr has what is known as a “mixed case,” because she challenges a serious personnel action—her removal—on account of discrimination. In a mixed case, a decision of an agency‘s EEO office is subject to review in the district court, without an intervening stop at the MSPB. See
Second, although a federal district court can exercise federal question jurisdiction under
BACKGROUND
We described the facts underlying this case in an unpublished decision resolving a previous appeal. See Kerr v. Jewell, 549 Fed.Appx. 635, 636-38 (9th Cir. 2013). As we explained there, Kerr was employed by FWS as director of the Kodiak National Wildlife Refuge. Over a period of months, Kerr was subjected to a series of adverse personnel actions. These included a negative performance evaluation rating her “minimally successful,” a warning letter stemming from an allegedly inappropriate contact with another employee and a 60-day temporary assignment (or “detail“) to a position in Anchorage. Later, her superiors made the assignment to the Anchorage position permanent. When Kerr refused the reassignment, the agency approved her removal from employment, and Kerr involuntarily retired on the day her removal would have taken effect.
While these events were unfolding, Kerr was also subjected to alleged sex discrimination. During a performance review, a supervisor asked Kerr whether she could “learn to be more feminine.” Id. at 636. She also reported finding Playboy magazines in a cabin at the refuge. During the same period, Kerr filed a series of complaints with her superiors, the human resources office and the Department of the Interior‘s Office of Inspector General, challenging her adverse treatment, complaining about the magazines and her supervisor‘s comment and reporting what she described as gross mismanagement by her supervisors, including widespread alcohol abuse among FWS employees.
Kerr eventually asserted claims of discrimination and retaliation against FWS.
In June 2006, while the EEO complaint was pending, Kerr filed an “appeal” with the MSPB, challenging her removal.1 The MSPB appeal alleged not only discrimination and retaliation on account of sex and religion, in violation of Title VII, but also retaliation for engaging in protected whistleblower activities, in violation of the WPA and arising from her complaints of mismanagement. The WPA prohibits retaliation against an employee for disclosing “any violation of any law, rule, or regulation, or ... gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
In July 2006, FWS‘s EEO office accepted Kerr‘s claims for investigation, other than those relating to her removal. The EEO office dismissed those claims because she had decided to challenge her removal before the MSPB: “By filing with the MSPB first, you elected to pursue this matter with them.”
In October 2006, the MSPB informed Kerr it lacked original jurisdiction over her claims pertaining to the less serious adverse personnel actions—the warning letter, the negative performance evaluation and the 60-day detail. See
The MSPB also informed Kerr she had a “mixed case,” “in which an employee ... alleges that a personnel action appealable to the Board was based, in whole or in part, on prohibited discrimination.”
In September 2008, the Department of the Interior‘s Office of Civil Rights issued a final decision on Kerr‘s formal EEO complaint. The decision rejected Kerr‘s Title VII claims on the merits. To the extent Kerr claimed she was removed in violation of the WPA, however, the Civil Rights Office dismissed the claims, stating “such actions [are] outside the purview of the EEO process and, therefore, not protected activities under Title VII.” This ruling was consistent with longstanding Equal Opportunity Employment Commission (EEOC) precedent declining jurisdiction over claims of retaliation not based on discrimination. See, e.g., Petitioner v. Shinseki, 2014 WL 899672, at *1 n.1 (EEOC Feb. 27, 2014) (“[T]he Whistleblower Protection Act is a statute that is not under the Commission‘s purview.“); Remsburg v. Daley, 1998 WL 72077, at *2 (EEOC Feb. 9, 1998) (“[T]he agency properly dismissed that portion of appellant‘s complaint based on retaliation for unprotected activities ... [because] whistleblower activities are generally outside the purview of the EEO process.“).2
When the EEO process was resolved, Kerr did not file an appeal with the MSPB, as she had previously indicated she would do. Instead, she filed this civil action in federal district court, alleging violations of Title VII and the WPA. The district court granted summary judgment to the defendants. Kerr appealed, and we vacated and remanded. See Kerr, 549 Fed.Appx. 635.
On remand, the government moved to dismiss the WPA claim, arguing for the first time that the district court lacked jurisdiction over the claim because Kerr had failed to present it to the MSPB. The district court granted the motion, noting it was undisputed that Kerr failed to fully present her whistleblower retaliation claim to the MSPB before she brought her “mixed claim” action in the district court. Rather, she proceeded with her mixed case before the EEO, which has no jurisdiction to review a WPA claim, and informed her of such. Thus, she has not preserved that claim for judicial review. Indeed, when an employee bypasses the MSPB, federal courts cannot possibly apply the proper deferential standard of review to the agency‘s action, because there is no record to review, and therefore no decision to defer to. Kerr cites no authority that would allow this Court to decide the WPA claims in the first instance. See
Kerr filed a motion for relief under
“We review de novo a district court‘s dismissal for lack of subject matter jurisdiction.” Rattlesnake Coal. v. U.S. EPA, 509 F.3d 1095, 1100 (9th Cir. 2007). The district court‘s factual findings are reviewed for clear error. See id. “We review a district court‘s denial of a Rule 59(e) motion for abuse of discretion.” McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003).
DISCUSSION
Kerr‘s appeal requires us to address two questions: (1) whether the statutory scheme authorized her to assert her entirely unreviewed WPA claim in the district court without first presenting it to the MSPB and (2) if not, whether her failure to follow the statutory scheme deprived the district court of jurisdiction over the claim. We consider these questions in turn.
A. The Statutory Scheme Did Not Authorize Kerr to Present Her Unreviewed WPA Claim in District Court
We first address whether the statutory scheme authorized Kerr to present her unreviewed WPA claim in district court—i.e., whether the CSRA and the WPA affirmatively granted the district court jurisdiction over the claim. We begin by briefly describing the respective statutory and regulatory schemes through which a federal employee can obtain administrative and judicial review of claims under the WPA and Title VII.
1. Administrative and Judicial Review of WPA Claims
The WPA makes it unlawful to “take ... a personnel action with respect to any employee or applicant for employment because of ... any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences ... any violation of any law, rule, or regulation, or ... gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
The applicable statutes and regulations establish a comprehensive scheme whereby federal employees can obtain administrative and judicial review of their WPA claims. As a general matter, WPA claims must be presented initially to either the Office of Special Counsel (OSC) or the MSPB. See
2. Administrative and Judicial Review of Discrimination Claims Generally
For federal employees who claim they have been discriminated against by their respective agency in violation of Title VII (or other federal antidiscrimination laws), the process for obtaining administrative and judicial review begins with an informal complaint. Employees “who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.”
3. Administrative and Judicial Review of Discrimination Claims Involving Serious Personnel Actions (“Mixed Cases“)
A different scheme applies to mixed cases. “When an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a ‘mixed case.‘” Kloeckner v. Solis, 568 U.S. 41, 44, 133 S.Ct. 596, 601, 184 L.Ed.2d 433 (2012); see
A federal employee bringing a mixed case may proceed in a variety of ways. She may first file a discrimination complaint with the agency itself, much as an employee challenging a personnel practice not appealable to the MSPB could do. See
4. Application of These Principles to Kerr‘s Action
Under these principles, Kerr was free to present her WPA claim challenging her removal in a direct appeal to the MSPB. Her Title VII claims challenging the less serious personnel actions (the negative performance evaluation, the warning letter and the 60-day detail) had to be presented to FWS‘s EEO office. Her Title VII claims challenging her removal (her mixed case) could have been presented initially to either FWS‘s EEO office or the MSPB.
Kerr instead presented all of her claims to FWS‘s EEO office. When that office ruled against her on her Title VII claims and declined to exercise jurisdiction over her WPA claim, Kerr proceeded directly to district court, bypassing the MSPB. There is no dispute that Kerr was permitted to raise her Title VII claims in district court. The parties dispute, however, whether Kerr was also permitted to assert her WPA claim there, having failed to present it to the MSPB.
Kerr maintains her actions were authorized by the CSRA and WPA statutory scheme, relying on Wells v. Shalala, 228 F.3d 1137 (10th Cir. 2000), and
In any matter before an agency which involves—(A) any action [which the employee or applicant may appeal to the Merit Systems Protection Board]; and (B) any issue of discrimination prohibited under [section 717 of the Civil Rights Act of 1964, section 6(d) of the Fair Labor Standards Act of 1938, section 501 of the Rehabilitation Act of 1973 or sections 12 and 15 of the Age Discrimination in Employment Act of 1967]; the ... decision of the agency in any such matter shall be a judicially reviewable action unless the employee appeals the matter to the Board ....
In Wells, a federal employee alleged two claims—constructive discharge on the basis of discrimination, in violation of the Rehabilitation Act (a mixed case claim), and retaliation, in violation of the WPA. See Wells, 228 F.3d at 1140. The employee filed a formal complaint with her agency‘s EEO office, which investigated and denied the claims. See id. 1142.5 The employee then filed a civil action in district court, raising both claims and relying on
As it applies in this case, § 7702(a)(2)(B) provides that in “any matter” before an executive agency which involves “any issue of discrimination” prohibited under the Rehabilitation Act of 1973, specifically
29 U.S.C. § 791 , the agency shall resolve such matter. (emphasis added). The section then provides: “The decision of the agency in any such matter shall
be a judicially reviewable action unless the employee appeals the matter to the [MSPB].”
5 U.S.C. § 7702(a)(2)(B) . Thus, the plain language of § 7702(a)(2)(B) provides that if an employee alleges disability discrimination under § 791 as a basis for agency action, he may either file suit in the district court or pursue an administrative procedure after an adverse agency decision.5 U.S.C. § 7702(a)(2)(B) ; see also29 C.F.R. § 1614.310(a) . In addition to his [WPA] retaliation claim, Plaintiff plainly alleges disability discrimination under29 U.S.C. § 791 as a basis for his constructive discharge.
Id. The court thus concluded
Kerr relies on Wells, arguing
First, the Tenth Circuit did not discuss the practical import of its interpretation of
Second, judicial review of agency decisions on WPA claims is deferential. See Sloan v. West, 140 F.3d 1255, 1260 (9th Cir. 1998); Washington, 10 F.3d at 1428. “[T]he court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be ... (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.”
Third, the Tenth Circuit‘s reliance on the “plain language” of
Finally, the Tenth Circuit‘s decision is at odds with our decision in Sloan v. West, 140 F.3d 1255 (9th Cir. 1998). Sloan did not address a WPA claim, but it did prescribe the proper procedure to be followed when an employee asserts both a mixed case discrimination claim (i.e., a discrimination claim challenging a serious personnel action) and a nondiscrimination claim subject to the MSPB‘s original jurisdiction. We held that, “[i]f a complainant wishes to preserve both claims, he or she must not pursue an appeal of the EEO decision with the EEOC [or the district court]. Rather, he or she must file the appeal with the MSPB, or be deemed to have waived the non-discrimination claim.” Id. at 1260. “Once the MSPB issues a decision, ... the employee may ... appeal the entire case (including all claims) to the appropriate United States District Court.” Id. (citing
In light of these authorities, we are not persuaded by Kerr‘s argument that the statutory scheme in general, or
B. Because the MSPB Provides the Exclusive Avenue for Obtaining Judicial Review of a WPA Claim, the District Court Lacked Jurisdiction Over Kerr‘s WPA Claim
Even without an affirmative grant of jurisdiction by the CSRA or the WPA, district courts have general federal question jurisdiction under
In Elgin, the Court concluded it was fairly discernible from the CSRA‘s text, structure and purpose that Congress precluded district court jurisdiction over claims not proceeding through the MSPB. “Given the painstaking detail with which the CSRA sets out the method for covered employees to obtain review of adverse employment actions, it is fairly discernible that Congress intended to deny such employees an additional avenue of review in district court.” Id. at 2134. Thus, “extra-statutory review is not available to those employees to whom the CSRA grants administrative and judicial review.” Id. at 2133 (emphasis omitted).
Similarly, we have long held that the remedies set forth in the CSRA are exclusive. In Veit v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984), we held “the federal courts have no power to review federal personnel decisions and procedures unless such review is expressly authorized by Congress in the CSRA or elsewhere,” agreeing with other circuits that “the comprehensive nature of the procedures and remedies provided by the CSRA indicates a clear congressional intent to permit federal court review as provided in the CSRA or not at all.” In Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991), we likewise explained that “Congress‘s purpose in enacting the CSRA was to channel grievances and disputes arising out of government employment into a single system of administrative procedures and remedies, subject to judicial review.”
That Kerr‘s whistleblowing claim arises under a provision—
In light of these authorities, the statutory scheme under the CSRA and the WPA provided the exclusive means for Kerr to obtain judicial review of her WPA claim. That scheme “allocate[s] initial review to an administrative body“—the MSPB—rather than the district court. See Thunder Basin, 510 U.S. at 207, 114 S.Ct. 771. Because Congress intended the MSPB to have exclusive original jurisdiction over her WPA claim, the district court properly dismissed the claim for lack of jurisdiction.7
Kerr argues in the alternative that the district court should have remanded her WPA claim to the MSPB rather than dismissing it without prejudice. The district court, however, acted reasonably by declining to remand a matter to an agency that had not issued a decision. See McQuillion, 342 F.3d at 1014.
D. Further Proceedings
If Kerr wishes to pursue her WPA claim, her proper course is to file an appeal before the MSPB. At oral argument, the government acknowledged the deadlines for presenting claims to the MSPB are subject to equitable tolling. Tolling may be warranted here in light of Kerr‘s reasonable reliance on the Tenth Circuit‘s opinion in Wells. Cf. Harris v. Carter, 515 F.3d 1051, 1055-56 (9th Cir. 2008) (applying equitable tolling when a habeas petitioner relied in good faith on Ninth Circuit precedent later overruled by the Supreme Court); York v. Galetka, 314 F.3d 522, 528 (10th Cir. 2003) (applying equitable tolling when Tenth Circuit law was unsettled and the relevant statute was ambiguous). The question of tolling should be addressed in the first instance by the MSPB.
CONCLUSION
The district court properly dismissed Kerr‘s WPA claim for lack of jurisdiction. The judgment of the district court, therefore, is affirmed.
AFFIRMED.