Sloan v. WestSloan v. West
Lead Opinion
Opinion by Judge THOMAS; Partial Concurrence and Partial Dissent by Judge REINHARDT.
In this appeal, we shall attempt to loosen the jurisdictional Gordian knot formed when Title VII and civil service administrative claims are interlaced. Under the facts presented, we conclude that this appeal must be transferred to the Court of Appeals for the Federal Circuit, but that the Title VII claims are equitably tolled.
I
From 1988 until he lost his job in 1993, Wayne Sloan was employed as an electronics technician by the U.S. Army Corps of Engineers in Camp Zama, Japan under an “Overseas Limited Appointment.” When Sloan was hired at the grade of GS-5, Department of Defense regulations required that Overseas Limited Appointment employees over the grade of GS-6 were limited to a five year employment term. DODR 1400.25-M, ¶4-2.a(l),d.(l). Employees in grades GS-6 or lower were exempt, provided the employee remained at that grade. Id. at ¶ 4.2.2.(e).4. Upon promotion to grade GS-7 or higher, the employee became subject to the five year term limitation, retroactive tо his or her hiring date. Id. at 4-2.a.(2). Thus, perhaps inspired by the management theories of Joseph Heller or Scott Adams, the regulations allowed an Overseas Limited Appointment employee to be fired through promotion.
This fate befell Sloan in April 1991 when he was promoted from a GS-5 to a GS-7 pay grade, and promptly notified he would then be terminated from employment pursuant to Department of Defense regulations on July 26, 1993.
In plain English, this meant that under the regulations Sloan should never have been hired in the first place and, once hired, should not have kept his job. Of course, this presumably presented an awkward situation because Sloan was still showing up for work each day. Thus, he was retroactively hired, promoted and converted to term employment in sufficient time so that he could be fired on schedule, which he was.
Following his termination, Sloan pursued his grievances through numerous avenues. He initiated a complaint with the Army’s Equal Opportunity Office (“EEO”) alleging, inter alia,. he was fired because of racial animus. The EEO investigator recommended a finding of no discrimination.
Appellant filed an appeal of the EEO decision with the MSPB on April 28, 1995, claiming: (1) the Army improperly classified him, resulting in an improper removal from service; (2) this improper classification was, at least in part, the result of racial animus; and (3) the Army’s alleged policy of maintaining a relatively large number of Japanese Nationals in the civilian workforce had a negative disparate impact on other racial groups employed by the Army, such as Slоan who is an African-American. An MSPB Administrative Law Judge denied Sloan’s request for a hearing, and determined that (1) the classification was proper, and therefore (2) Sloan’s term expired automatically. In' other words, Sloan had not been subjected to an “adverse action” which would allow the MSPB to exercise jurisdiction over the case. The ALJ held that Sloan was not entitled to a hearing because the case “present[ed] no disputed jurisdictional facts.” Sloan filed a petition for review to the MSPB, whiсh denied it without comment on November 1,1995.
Meanwhile, Sloan had commenced separate litigation in the Court of Federal Claims under the Tucker Act, claiming violations of the Severance Pay Act. This action was ultimately dismissed on the basis that the Court of Federal Claims was not the appropriate forum to challenge a personnel action and thus, the MSPB determination of job status was controlling. Therefore, because Sloan’s GS-7 status at termination did not place him under the Act’s coverage, his suit was dismissed. Sloan v. United States,
As part of the MSPB decision, Sloan was instructed that he had “the right to request the United States Court of Appeals for the Federal Circuit to review the Board’s final decision in your appeal.” However, rather than appealing the MSPB decision to the Federal Circuit Court of Appeals, Sloan appealed to the United States District Court for the District of Hawaii. Sloan argued in district court that because his complaint alleged discrimination, his was a- “mixed case” within the meaning of
The district court denied the motion to remand, and granted the Army’s cross motion to dismiss for lack of jurisdiction. The district court determined that, because the adverse action complained of was held not “apрealable to the MSPB,” the case was not a “mixed case” subject to district court review pursuant to § 7703(b)(2). Thus, the court reasoned, appellate review must be sought in the Federal Circuit Court of Appeals. Sloan’s timely appeal to this court followed.
II
This appeal concerns the proper appellate procedure for “mixed cases” filed before the Merit System Protection Board and the collateral consequences of a jurisdictional appeal on non-jurisdictional issues.
A
The Merit Systems Protection Board was created as a direct result of efforts to reform the political spoils system under which Federal employees were routinely fired when a new administration assumed power. After several antecedents, in 1978 Congress passed the Civil Service Reform Act,
Although the Board exercises original jurisdiction,
The Board also has pendent jurisdiction over discrimination claims brought in connection with an “adverse action” otherwise appealable to it.
However, when a federal employee claims he or she has been affected by both an “adverse employment action” and a related Title VII violation, administrative remedies may be exhausted for Title VII purposes by asserting, both claims before the MSPB. McAdams v. Reno,
An employee seeking to file a “mixed case complaint” may follow one of many possible administrative routes. First, he or she may initially file a complaint with the agency EEO, planning to appeal any unfavorable decision to the MSPB.
If a complainant wishes to preserve both claims, he or she must not pursue an appeal of the EEO decision with the EEOC. Rather, he or she must file the appeal with the MSPB, or be deemed to have waived the non-discrimination claim.
Once the MSPB issues a decision in the case, the employee may file a petition for review to the three member Board of the MSPB.
The MSPB does not possess jurisdiction over claims that do not fall into one of the five “adverse action” categories outlined in
Finally, as a general rule, an MSPB determination that it lacks jurisdiction to hear a claim is appealable only to the United States Court of Appeals for the Federal Circuit.
B
The case at bar presents the question of whether the general rule applying tо jurisdictional appeals should apply where the jurisdiction question is intertwined with the discrimination claim.
Because this problem is essentially one of statutory interpretation, we begin with the plain language of the statute. If the intent of Congress is clear from the face of the statutory language, we must give effect to the unambiguously expressed Congressional intent. Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
(a)(1) Notwithstanding any other provision of law ... in the case of any employee or applicant for employment who-
(A) has been affected by an action which the employee may appeal to the Merit Systems Protection Board, and
(B) alleges that a basis for the action was discrimination prohibited by
(i) section 717 of the Civil Rights Act of 1964 (42 U.S.C.2000e-16)....
the board shall, within 120 days of filing of the appeal, decide both the issue of discrimination and appealable action____
As noted by the district court,
Circuits that have addressed this issue have agreed with this construction. The Federal Circuit has held that, where a “mixed case” brought before the MSPB is dismissed for lack of jurisdiction, the Federal Circuit is the exclusive appellate forum. See Synan v. M.S.P.B.,
[Ojur exercise of jurisdiction over MSPB decisions until issues touching the merits of a discrimination claim are appealed comports with the intent of§ 7703(b)(1) and (2) and also allows the application of a unified body of case law concerning issueslike that actually on appeal here---[Lack of uniformity would result if the] different federal district courts (with appeals to their respective circuits) proceed to define the metes and bounds of MSPB jurisdiction.
Id. at 1247 (citations omitted). In a case directly on point, the Tenth Circuit followed Federal Circuit cases by holding that an MSPB jurisdictional decision, involving a mixed claim, was not a “mixed case” subject to district court review. See Wall v. United States,
Given the plain language of the statute, we join our sister circuits and hold that appeals of MSPB jurisdictional decisions involving mixed claims are properly venued in the Federal Circuit Court of Appeals.
HI
The government argues that an appeal of an MSPB mixed case jurisdictional decision does not toll the statute of limitations from running on the claimant’s Title VII claim. However, adoption of this theory would effectively preclude discrimination claims in mixed cases where the MSPB dismisses for lack of jurisdiction. Ordinarily, a Title VII claimant must exhaust his or her administrative remedies by: filing an EEO complaint within 45 days of the effective date of the personnel action; and either (1) appealing the EEO decision to the EEOC within 20 days of receipt of a final agency decision; or (2) filing a suit in district court within 30 days of the receipt of the EEO’s final decision.
If a Title VII claimant elects to pursue his or her MSPB remedies through a mixed case complaint and the MSPB dismisses a mixed case claim for lack of jurisdiction, the Title VII statute of limitations is tolled in order to allow the claimant to exhaust his or her EEO and/or EEOC administrative remedies and file in federal court.
Under the government’s theory, the statute would begin running again if the claimant elected to appeal the MSPB jurisdictional decision. Thus, a claimant’s Title VII statute of limitations would run before the appellate briefing was complete. The Civil Service Reform Act was not intended to present a claimant with a Hobson’s litigation choice upon exhaustion of his or her MSPB administrative remedies. Indeed, such an outcome would be antithetical to the statutory and regulatory scheme.
The Title VII statute of limitations is not a jurisdictional requirement; it may be waived, and equitably tolled. Zipes v. Trans World Airlines, Inc.,
Conclusion
We transfer this case to the Federal Circuit Court of Appeals. See Billops v. Department of Air Force,
Notes
.All of which recalls Shakespeare’s words in As You Like It:
"Thou art not for the fashion of the times Where none will sweat but for promotion And having that do give their service up Even with the having." Act I, iii.56
.
.If the complainant disagrees with the investigator’s findings and recommendations, he or she may request a hearing.
. See
. See generally, Major Robert L. Woods & Captain David L. Frishberg, Sustaining Adverse Ac
. The board’s original jurisdiction includes actions brought by the Special Counsel; hearings on removal of persons from the Senior Executive Service; and actions taken against Administrative Law Judges under
. See also
.
.
. An employee may also file in district court if, after 180 days from the date of appealing to the EEOC, the EEOC has not issued a final decision on the matter.
.
. In the case at bar, appellant initially filed an аppeal with the EEOC. However, before they could issue a decision, he requested that the case be remanded to the Army EEO for a final decision, so he could proceed in the MSPB on a "mixed case” theory. The ALJ thus properly determined he had not waived his non-discrimination claim.
.
.
.
.Under
(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; Except that in the case of discrimination brought under any section referred to in subsection (b)(2) of this section, the employee or applicant shall hаve the right to have the facts subject to trial de novo by the reviewing court.
.
.
.
. One concern about this result raised in Washington v. Garrett,
. If the complainant files an appeal with the EEOC, a notice of appeal must be sent to the Commission within 20 days. A statement or brief in support of the appeal is due within 30 days of the date on which the notice of appeal was filed.
.See e.g., Burnett v. New York Central Railroad Co.,
Concurrence in Part
concurring in part, dissenting in part:
I concur with the majority’s holding that only the Federal Circuit may review MSPB jurisdictional decisions. I also agree with its tоlling discussion. I do not agree, however, with the majority’s decision to transfer Sloan’s complaint to the Federal Circuit without first giving him the option to pursue his discrimination claim in the district court.
When an employee’s “mixed case” claim is dismissed by the MSPB for lack of jurisdiction, he has two options with respect to the federal courts. He may appeal the jurisdictional question to the Federal Circuit,
The majority appears to view Sloan’s complaint, as the district court did, as solely seeking review of the MSPB’s jurisdictional decision. Nothing in the complaint, however, suggests that its objective was so limited. While it is true that Sloan requested a remand to the MSPB, he also requested a jury trial, reinstatement, and damages. Moreover, he directly invoked the district court’s jurisdiction under Title VII.
I would remand this matter to the district court and direct it to allow Sloan the option of pursuing his discrimination claim in the district court or having the entire complaint transferred to the Federal Circuit.
. If the appeal is successful, the MSPB will consider all of the petitioner's claims on remand. If not, the employee is free to pursue the discrimination claims in district court.
. Because Slоan had received a final EEO agency decision on his discrimination claim, the district court had jurisdiction over that claim.
Although in this case a final EEO decision had issued, I believe the district court would have had jurisdiction over the discrimination claim even if it had not. When the MSPB resolves, adversely to the employee, a jurisdictional question that depends on the merits of his discrimination claim, no additional administrative proceedings should be necessary before he may file his discrimination action in district court. See Wall v. United States, 871 F.2d 1540, 1547 & n. 5 (10th Cir.1989) (Seymour, J., dissenting) (noting "conceptual difficulty” of determining jurisdictional question whether discharge was voluntary without reviewing merits of discrimination claim); Cruz v. Department of Navy,