Rosa Carmina RODRIGUEZ; Alexis E. Agostini; Raymond U. Arroyo; Carl C. Christensen; Ernesto L. Cruz; Manuel Q. Cruz; Shirley Y.M. Cummins; Linda T. Kuailani; Roy Lynch; Rafael A. Martinez; Albert E. Miller; Julia Q. Norman; Hildamar Ortiz; Reginald Kenalio Puana; Ivan O. Puig; Cynthia Jean Romney; Victor L. Rosario; Celia A. Ruiz; Joel A. Tutein, Plaintiffs, Appellants, v. UNITED STATES of America; The United States Office of Personnel Management; Beth F. Cobert, Acting Director of the United States Office of Personel Management, Defendants, Appellees.
No. 15-2178
United States Court of Appeals, First Circuit.
March 24, 2017
852 F.3d 67
Thus, we find that the District Court committed no procedural error. Rather, the District Court adequately explained the sentence with reference to the statutory factors prescribed in
III.
Vázquez also challenges his sentence on the ground that it is substantively unreasonable. He does so by arguing that the sentence was too harsh in light of the fact no state criminal charges were filed against him relating to the firearm at issue here; that he obtained his GED and was attending college; that he had experienced a difficult childhood and family life; and that he had learning disabilities. But, even assuming, favorably to Vázquez, that our review of this challenge is for abuse of discretion rather than for plain error, United States v. Pérez, 819 F.3d 541, 547 (1st Cir.), cert. denied, U.S. —, 137 S.Ct. 111, 196 L.Ed.2d 90 (2016), we see no basis for reversal.
“[T]he linchpin of a reasonable sentence is a plausible sentencing rationale and a defensible result.” United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008). And, “the greater the variance, the more compelling the sentencing court‘s justification must be.” United States v. Guzman-Fernandez, 824 F.3d 173, 178 (1st Cir. 2016) (citation omitted). But, in light of the particular details of Vázquez‘s criminal history and the seriousness of the violations of the conditions of supervised release, we can discern a plausible sentencing rationale for a result that, while harsh, is defensible. That criminal history showed that Vázquez had twice before engaged in criminal activity shortly after he had been released from custody. Moreover, the violations of his conditions of supervised release included Vázquez‘s firing a weapon in a public housing project soon after his supervised release term began. Nor do the facts in mitigation require us to reach a different conclusion. See United States v. Vargas-García, 794 F.3d 162, 167 (1st Cir. 2015) (“While the defendant points to some mitigating considerations, a sentencing court is entitled to conduct an appropriate triage and weigh some factors more heavily than others.“). Thus, we find no abuse of discretion.
IV.
The sentence is affirmed.
Adam H. Charnes, with whom Christin J. Jones, Dallas, TX, Thurston H. Webb, Atlanta, GA, and Kilpatrick Townsend & Stockton LLP were on brief, for appellants.
Stephanie R. Marcus, Attorney, Appellate Staff, Civil Division, United States Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Rosa E. Rodríguez-Vélez, United States Attorney, and Marleigh D. Dover, Attorney, Appellate Staff, Civil Division, United States Department of Justice, were on brief, for appellees.
Before HOWARD, Chief Judge, DYK,** and THOMPSON, Circuit Judges.
Plaintiffs challenge the Office of Personnel Management‘s (“OPM“) regulations that exclude cost-of-living allowances (“COLAs“)1 from the calculation of retirement and other benefits. These COLAs are received by federal employees working in non-foreign areas located outside the contiguous United States. Plaintiffs allege that these regulations are unlawfully discriminatory under
I.
Although we conclude that in many respects the merits of plaintiffs’ claims are not before us, we briefly outline the issues underlying the dispute. This case concerns the calculation of retirement and other benefits for federal employees working in non-foreign areas located outside the contiguous United States. These areas include at least Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, Hawaii, and Alaska. In addition to their normal salaries, federal employees working in these areas receive cost-of-living allowances, or COLAs, calculated based on “living costs substantially higher than in the District of Columbia.”
Pursuant to that congressional authority, on September 16, 1948, President Truman issued Executive Order 10,000, 13 Fed. Reg. 5453. In the order, President Truman delegated authority to the United States Civil Service Commission (“CSC“) (predecessor of OPM) to prescribe regulations. 13 Fed. Reg. at 5455. On December 30, 1948, the CSC promulgated the regulations at issue in this case. See Territorial Post Differentials and Territorial Cost-of-Living Allowances, 13 Fed. Reg. 8725 (1948).
The 1948 CSC regulations provided for COLA payments, but they stated that COLAs are not part of the “base used in computing” entitlements such as retirement benefits. 13 Fed. Reg. at 8727, § 350.6(f). This rule excluding COLA payments from basic pay for retirement purposes persists in OPM‘s regulations today.
Plaintiffs complain that the exclusionary rule is contrary to law because, plaintiffs assert, there is no basis for the exclusionary rule in either the statute or Executive Order 10,000. The government contends that the exclusionary rule is mandated by statute. The government explains that the statutory definition of “basic pay” for federal employees in the retirement laws explicitly excludes “allowances.” See
Plaintiffs do not agree that COLAs are “allowances” within the meaning of the retirement laws. Plaintiffs argue that when COLAs were established in 1948, Congress referred to them as “additional compensation” rather than “allowances.” See 5 U.S.C. § 118h (1952). Plaintiffs contend that no interpretive significance should be attributed to the United States Code‘s 1966 recodification,3 when Congress in the COLA statute replaced the terminology “additional compensation” with the “allowances” terminology. See H.R. Rep. No. 89-901, at 117 (1965) (“The word ‘allowances’ is substituted for ‘additional compensation’ as a more apt term and for consistency.“). Plaintiffs argue that the 1966 recodification was not intended to introduce substantive changes and, thus, the COLA statute‘s mere change in terminology introducing the label “allowances” in 1966 cannot justify the exclusionary rule.
Plaintiffs further complain that the rule also unlawfully discriminates against COLA payment recipients, many of whom are minorities that make up significant populations in COLA areas. Plaintiffs contend that “today, federal employees in COLA areas are the only class of federal
II.
Plaintiffs are a group of 19 current and former federal employees working in the non-foreign COLA areas. Plaintiffs filed a class action complaint in the United States District Court for the District of Puerto Rico challenging the exclusionary rule on behalf of a putative class of similarly situated current and former employees and surviving spouses of such employees. Plaintiffs named the United States, OPM, and the Director of OPM (collectively, “the government“) as defendants. The complaint, as later amended, seeks a declaratory judgment that the exclusionary rule is arbitrary, capricious, and contrary to law under the APA and that the rule unlawfully discriminates against protected minorities in COLA areas in violation of
On August 20, 2015, upon the government‘s motion, the district court dismissed plaintiffs’ amended complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The court first held that the disparate impact claim was barred by the safe harbor provision of Title VII, which provides that “it shall not be an unlawful employment practice for an employer to apply different standards of compensation . . . to employees who work in different locations” absent an intention to discriminate because of protected status.
Plaintiffs appeal. We have jurisdiction pursuant to
III.
We review a district court‘s dismissal for lack of subject matter jurisdiction and for failure to state a claim de novo. McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006). We “accept[] the plaintiffs’ well-pleaded facts as true and indulg[e] all reasonable inferences to their behoof.” Id.
There is no contention that plaintiffs have failed to administratively exhaust their disparate impact claim, as opposed to their other claims. The question is whether the district court correctly held that this claim is barred by the safe harbor provision of
It is, thus, necessary to an understanding of the Title VII provisions applicable to the federal government to understand the provisions applicable to private employers—provisions that pre-date the federal employment provisions. The Supreme Court interpreted the Title VII provisions applicable to private employers to prohibit employment policies creating a disparate impact in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). In Griggs, the Court explained that “[t]he Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Id. at 431, 91 S.Ct. 849. Under Title VII, a claim for disparate impact covers “practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities.” Ricci v. DeStefano, 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009).
However, not all employer actions that have a disparate impact are unlawful. Section 2000e-2(h) provides a safe harbor for employers that compensate their employees differently depending on the location of employment. It provides, in relevant part,
Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment . . . to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin.
The subsection itself is not surprising. Location is often a proxy for differences in cost and other competitive circumstances; and while Congress could have made those circumstances a separate defense, the difficulties of showing that a difference in pay precisely correlated with a difference in cost would be formidable. In effect, different locations are simply a safe harbor in cases where there is no intentional discrimination.
Id. (citation omitted).
The Supreme Court has also made clear that, as to seniority plans,
The relevant legislative history of the 1964 Act also shows that Congress intended
This distinction between defining the scope of liability and providing an affirmative defense is pertinent to whether the provision applies to the federal government. Plaintiffs’ central argument is that, even if the location-based safe harbor provision limits liability in the private sector, it is inapplicable to the federal government. Plaintiffs reason that the section applies to “employers,” and Title VII excludes the federal government from the definition of “employer.” See
As originally enacted in 1964, Title VII did not apply to the federal government. See Civil Rights Act of 1964, Pub. L. No. 88-352, § 701(b), 78 Stat. 241, 253; Brown v. Gen. Servs. Admin., 425 U.S. 820, 825, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). This was accomplished by excluding the federal government from the definition of “employer.” As a result, each of the substantive provisions of Title VII prohibiting employment discrimination—as well as the safe harbor provision of
All personnel actions affecting employees or applicants for employment . . . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin.
§ 717(a), 86 Stat. at 111 (codified as amended at
Through the 1972 Act, Congress intended to “accord[ ] ‘(a)ggrieved (federal) employees or applicants . . . the full rights available in the courts as are granted to individuals in the private sector under title VII.‘” Chandler v. Roudebush, 425 U.S. 840, 841, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976) (quoting S. Rep. No. 92-415, at 16 (1971)). Thus, “[i]n general, it may be said that the substantive anti-discrimination law embraced in Title VII was carried over and applied to the Federal Government.” Morton v. Mancari, 417 U.S. 535, 547, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974).8
It is undisputed that the 1972 amendment made the prohibition on disparate impact discrimination applicable to federal employers. Because, as we have described above, the definition of disparate impact discrimination is determined, in part, by the safe harbor provision at issue here,
Plaintiffs make much of the fact that in 1972 and the years following, Congress incorporated by reference into the provision governing federal employment (
Plaintiffs argue that more recent amendments to Title VII also support their position. Plaintiffs point out that in 1991, Congress amended Title VII again, this time, among other things, to define and insert a new term, “respondent,” which includes the federal government in certain newly enacted provisions of
We hold that the rule set forth in
IV.
The next question is whether the district court correctly dismissed plaintiffs’ intentional discrimination (disparate treatment) claim for lack of administrative exhaustion. It is settled that a federal court will not entertain employment discrimination claims brought under Title VII unless administrative remedies have first been exhausted. Fantini v. Salem State Coll., 557 F.3d 22, 26 (1st Cir. 2009). The requirement of administrative exhaustion serves to “provide the employer with prompt notice of the claim and to create an opportunity for early conciliation.” Id. It is equally settled that an exhaustion requirement applies to federal employees as well as private sector employees.
In the federal employment context, the exhaustion requirement demands that, as a prerequisite to filing suit in district court, a federal employee “seek relief in the agency that has allegedly dis-
A later civil action in district court is limited to the allegations of discrimination first presented in the EEO complaint. Velazquez-Ortiz, 657 F.3d at 71 (“The fact that a complainant has filed an EEO complaint does not open the courthouse door to all claims of discrimination.“); Morales-Vallellanes v. Potter, 339 F.3d 9, 18 (1st Cir. 2003) (“[Plaintiff‘s] Title VII cause of action is limited to those discrimination and retaliation allegations in his amended complaint that were previously the subject of a formal EEO complaint.“). “This exhaustion requirement is no small matter; it ‘is a condition to the waiver of sovereign immunity’ and thus ‘must be strictly construed.‘” Vazquez-Rivera v. Figueroa, 759 F.3d 44, 47-48 (1st Cir. 2014) (quoting Irwin v. Dep‘t of Veterans Affairs, 498 U.S. 89, 94, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)).
Plaintiffs here do not dispute these general requirements or that OPM here is the relevant agency to which they needed to submit their allegations of discrimination. Rather, they contend that they satisfied the exhaustion requirements as to their disparate treatment claim.
The problem is that plaintiffs raised in their EEO complaint to OPM only a claim for disparate impact, and not disparate treatment. At the heart of a claim for disparate treatment is a showing of the defendants’ “discriminatory intent or motive.” Ricci, 557 U.S. at 577, 129 S.Ct. 2658; see also Ray v. Ropes & Gray LLP, 799 F.3d 99, 112-13 (1st Cir. 2015). Plaintiffs’ various filings with the OPM EEO office repeatedly and explicitly alleged that the exclusionary rule has a discriminatory adverse impact on protected minorities. For example, the addendum to each complaint has an entire section entitled, “The Agency‘s Exclusionary Rule Has a Disparate Impact on Racial and Ethnic Minorities in Violation of the Civil Rights Act.” J.A. 528. There is no discussion of discriminatory intent in that section or elsewhere in the addendum.
Likewise, the supporting memorandum submitted by plaintiffs to OPM makes clear that plaintiffs asserted only a claim for disparate impact. The memorandum includes a section entitled, “OPM‘s Salary Decisions Result in a Disparate Impact in Violation of 42 U.S.C. § 2000e-16,” but does not contain any discussion of discriminatory intent. J.A. 594-95. It explains that “[i]n this case, discrimination is occurring by reason of the ‘disparate impact’ of the agency‘s actions on protected minorities.” Id. at 594, 129 S.Ct. 2658. It points out that “[a] party need not show any intent or motive to discriminate” to make out a case for disparate impact. Id. It explains that “[w]hile there may be no discernible intent to discriminate against these minorities, the effect of exclusion statistically falls on racial minorities without any justifiable reason. This practice therefore has a disparate impact on these racial minorities.” Id. at 595, 129 S.Ct. 2658 (emphasis added). Elsewhere throughout the 58-page memorandum, plaintiffs refer repeatedly to the exclusionary rule‘s “disparate adverse impact” or effect. See J.A. 546, 568, 575, 589, 591.
Not only does the memorandum omit any allegation that OPM acted with discriminatory intent, but also it posits that
Although plaintiffs’ submissions are sprinkled with general allegations that the exclusionary rule “discriminates against protected minorities, in violation of 42 U.S.C. § 2000e-16,” they contain no specific allegations of intentional discrimination. E.g. J.A. 524.10 The closest plaintiffs come to alleging intentional discrimination appears in one sentence in the memorandum that ambiguously states that the agency‘s rules and practices “discriminate against employees in non-foreign areas and have a disparate adverse impact on racial and ethnic minorities in violation of 42 U.S.C. § 2000e-16.” J.A. 546 (emphasis added). Any reasonable person reviewing plaintiffs’ materials in their overall context would have understood that plaintiffs alleged only a disparate impact claim.
Nor can a disparate impact allegation somehow encompass an intentional discrimination claim on the theory that the agency would have investigated intent in connection with the disparate impact claim. See Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 31-32 (1st Cir. 2009) (“[T]he scope of a civil action is not determined by the specific language of the charge filed with the agency, but rather, may encompass acts of discrimination which the . . . investigation could reasonably be expected to uncover.“) (citation omitted); Fantini, 557 F.3d at 27; Jorge v. Rumsfeld, 404 F.3d 556, 565 (1st Cir. 2005). Courts have contrasted claims of disparate treatment and disparate impact as involving different facts and evidence,11 and given the significant differences between those theories, other circuits have held that an administrative charge raising one theory generally
Plaintiffs alternatively argue that they raised intentional discrimination in a statement later filed with the EEOC (but not with OPM in the first instance). The district court held that this statement does not satisfy the exhaustion requirement. We agree.
Federal employees pursuing a class complaint of discrimination, as plaintiffs do here, are subject to an administrative exhaustion procedure that differs in some respects from the procedures governing individual complaints. See generally
But plaintiffs point out that, after the agency EEO office receives a formal class complaint, the agency forwards the complaint and other materials to the EEOC, where the complainant has a limited opportunity to elaborate on his allegations.
In sum, plaintiffs failed to exhaust their claim for disparate treatment with the OPM EEO Office, and their later filings to the EEOC did not cure this flaw. Accordingly, the district court properly dismissed the disparate treatment claim.
V.
Finally, the district court held that plaintiffs’ nondiscrimination challenges were precluded by the CSRA. These nondiscrimination claims seek a declaratory judgment that the exclusionary rule is arbitrary, capricious, and contrary to law under the APA. See
As an initial matter, the government and the district court suggest that, because the relevant OPM regulations were published more than six years prior to the date on which plaintiffs filed their complaint in district court, the court lacks jurisdiction over plaintiffs’ non-discrimination challenges because those challenges are barred by the six-year statute of limitations applicable to APA claims. See
While this may be true for procedural challenges, the statute of limitations does not require that a substantive challenge to a regulation alleging that an agency exceeded its constitutional or statutory authority be brought within six years after the regulation is adopted when the challenge arises (1) in response to application of the regulation to the challenger; or (2) after the agency denies a plaintiff‘s petition to amend or rescind a regulation. See Dunn-McCampbell Royalty Interest, Inc. v. Nat‘l Park Serv., 112 F.3d 1283, 1287 (5th Cir. 1997); Wind River Min. Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991); Pub. Citizen v. Nuclear Reg. Comm‘n, 901 F.2d 147, 152 (D.C. Cir. 1990). Because plaintiffs assert that the regulation is invalid as applied to them, their challenge is not barred by the fact that the challenge was brought later than six years after the regulation was adopted.
A.
“The CSRA established a comprehensive system for reviewing personnel action taken against federal employees.” United States v. Fausto, 484 U.S. 439, 455, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988); see also Roth v. United States, 952 F.2d 611, 614 (1st Cir. 1991). This framework provides the exclusive mechanism for challenging adverse personnel actions in federal employment. In general, an aggrieved federal employee or applicant may appeal to the MSPB.
A federal employee generally may not pursue alternative routes of judicial review, such as by filing a civil action in district court under the APA. The Supreme Court has recognized the primacy of the CSRA administrative review process
This court has likewise recognized that “[t]he legislative history of the CSRA establishes beyond dispute that Congress intended that statute to provide an exclusive procedure for challenging federal personnel decisions.” Roth, 952 F.2d at 615 (quoting Berrios v. Dep‘t of Army, 884 F.2d 28, 31 (1st Cir. 1989)); Montplaisir v. Leighton, 875 F.2d 1, 3 (1st Cir. 1989) (noting that “the Court . . . has jealously guarded [the] CSRA against inconcinnous judicial incursions“).
These limitations apply as well to retirement claims, which are first reviewed by OPM and thereafter by the MSPB and the Federal Circuit. The CSRA and the statutory retirement systems (such as the CSRS and FERS) are overlapping statutory schemes that “specif[y] the benefits to which federal employees and their survivors are entitled, and provide[ ] a reticulated remedial regime for beneficiaries to secure review—including judicial review—of benefits determinations.” Fornaro v. James, 416 F.3d 63, 66 (D.C. Cir. 2005); see also Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 771-75, 792, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985) (“Sections 1295(a)(9) and 7703(b)(1) together appear to provide for exclusive jurisdiction over MSPB decisions in the Federal Circuit, and do not admit any exceptions for disability retirement claims.“).
This statutory regime provides that OPM “shall adjudicate all claims” regarding retirement benefits.
Plaintiffs contend that their claims are outside the scope of this remedial scheme because their challenge is to an agency regulation and not to individual benefits determinations. However, in a case similar to this one, the District of Columbia Circuit recognized that the CSRA precludes review of agency actions involving retirement benefits, even if those actions have broad application. In Fornaro, a group of federal law enforcement officers and firefighters brought an action in district court seeking declaratory relief compelling OPM to grant them greater retirement annuities. 416 F.3d at 65. The plaintiffs argued that CSRA preclusion did not apply because their claims asserted “a collateral, systemwide challenge to OPM policy.” Id. at 67. Writing for the court, then-Judge Roberts held that the CSRA‘s “remedial provisions are exclusive,” id. at 66, and “[a]llowing an alternative route to relief in the district court because plaintiffs frame their suit as a systemwide challenge to OPM policy would substitute an entirely different remedial regime for the
It does not make any difference that this case includes a challenge to an OPM regulation rather than a policy and that the MSPB has determined that it does not have jurisdiction to review substantive challenges to OPM regulations.15 In Elgin, the Supreme Court held that the CSRA review scheme was the exclusive route for discharged federal employees to contest their removal despite the fact that their petitions challenged the constitutionality of a statute. See 132 S.Ct. at 2131, 2136. The petitioners argued “that the CSRA review scheme provides no meaningful review of their claims because the MSPB lacks authority to declare a federal statute unconstitutional.” Id. at 2136. Without deciding whether the MSPB, in fact, lacks such authority, the Court explained that the constitutional issue could be “meaningfully addressed” in the Federal Circuit, “an Article III court fully competent to adjudicate petitioners’ claims.” Id. at 2137. If the CSRA requires MSPB exhaustion of challenges to federal statutes, it certainly also requires MSPB exhaustion of challenges to agency regulations, at least where the claim arises as part of a challenge to a specific agency determination applicable to the plaintiffs rather than to the adoption of the regulation in the first instance.
B.
Plaintiffs attempt to escape the preclusive effect of the CSRA by arguing that they have brought a “mixed case” involving both discrimination and non-discrimination claims. Typically a “mixed case” is one “in which an employee challenges as discriminatory a personnel action appealable to the MSPB.” Kloeckner v. Solis, — U.S. —, 133 S.Ct. 596, 602, 184 L.Ed.2d 433 (2012). Under
The government contends that, in contrast to cases involving employment actions, the mixed case framework does not excuse a claimant from exhausting non-discrimination claims for retirement benefits through the MSPB before proceeding to district court, relying on Kerr v. Jewell, 836 F.3d 1048, 1057 (9th Cir. 2016). In Kerr, the Ninth Circuit held that Whistleblower Protection Act (“WPA“) claims involved in a mixed case could not be heard in district court where the complainant had not first presented those claims to the MSPB. Id. Kerr relied in large part on the fact that the allegedly retaliating agency declined jurisdiction to decide a WPA claim. See id. at 1056.
Here, OPM plainly had authority to render a decision on the non-discrimination claims, even if particular issues (e.g., the challenge to OPM regulations) lie outside of OPM‘s jurisdiction. See Lisanti v. Office of Pers. Mgmt., 573 F.3d 1334, 1340 (Fed. Cir. 2009) (holding that OPM could entertain an employee‘s benefits claim challenging the employing agency‘s interpretation of “basic pay” under the CSRS because the CSRS is “a statute that OPM itself is required to administer“). Also, OPM did not decline to exercise jurisdiction. We need not decide whether the government‘s view is correct in the WPA context. Kerr has no application to situations such as here where the agency has jurisdiction to render a decision on the benefits claims in the first instance and has not declined jurisdiction.
Nonetheless, plaintiffs cannot bring a mixed case suit involving non-discrimination claims in district court unless there has been a “personnel action appealable to the MSPB.” Kloeckner, 133 S.Ct. at 602. The statute requires that a mixed case include “an action which the employee or applicant may appeal to the [MSPB].”
In the context of retirement benefits claims, in general, an employee may appeal to the MSPB only an OPM final decision on an application for benefits.16 See
Plaintiffs identify three OPM actions that, they contend, were appealable to the MSPB: (1) OPM‘s initial failure to respond to plaintiffs’ benefits claims, which plaintiffs styled as applications for benefits; (2) OPM‘s issuance of a Final Interview Letter terminating EEO counseling on May 17, 2013; and (3) the failure of OPM‘s EEO office to make a final decision within 120 days of the filing of plaintiffs’ formal class complaint. But none of these actions constitutes a final decision from OPM on any application for benefits, and therefore, plaintiffs have not secured a final decision from OPM that “the employee or applicant may appeal to the [MSPB].”
Plaintiffs first argue that OPM initially failed to respond to their benefits claims, styled as applications for benefits, “regarding the unlawful discrimination and miscalculation of annuities.” Plaintiffs’ Reply Br. 23. They assert—in a single sentence and with no citation to authority—that “OPM‘s failure to respond to any of [p]laintiffs’ attempts to address their claims constituted a rejection of those
Second, plaintiffs argue that the Final Interview Letter terminating counseling sent by an OPM Senior EEO Specialist was an OPM action appealable to the MSPB. Once again, however, we disagree. The OPM letter was not an OPM decision on plaintiffs’ benefits claims—let alone a final decision—under the applicable regulations. See
Third, plaintiffs suggest that their later filing of a formal EEO class complaint (described above in Part IV) gave rise to an OPM action appealable to the MSPB. Plaintiffs argue that under
Because plaintiffs did not obtain a final decision from OPM regarding their applications for benefits, they had no basis for bypassing the MSPB and filing their non-discrimination claims in district court as a mixed case.
VI.
In sum, the district court properly concluded that plaintiffs’ disparate impact claim is barred by the safe harbor provision of
AFFIRMED.