United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-2048
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Carolyn M. Kloeckner, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Hilda L. Solis, Secretary of Labor, *
*
Defendant - Appellee. *
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Submitted: January 13, 2011
Filed: May 13, 2011
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Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.
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LOKEN, Circuit Judge.
In mid-2005, Carolyn M. Kloeckner (“Kloeckner”) left her work as a Senior
Investigator for the St. Louis office of the Department of Labor’s (DOL) Employee
Benefits Security Administration and filed an equal employment opportunity (EEO)
complaint alleging hostile work environment and discrimination on account of her sex
and age. Nearly three years later, the Secretary of Labor issued a final agency action
rejecting Kloeckner’s claims of unlawful discrimination. Kloeckner appealed to the
Merit Systems Protection Board (MSPB), which dismissed her appeal as untimely.
Kloeckner then filed this action in the District of Columbia District Court, which
transferred venue to the Eastern District of Missouri. Kloeckner now appeals the
district court’s1 dismissal on the ground that the Court of Appeals for the Federal
Circuit had exclusive subject matter jurisdiction.
The appeal requires us to again consider complex statutes governing federal
employee complaints of wrongful employment action. The jurisdictional issue arises
because Congress in the Civil Service Reform Act of 19782 bifurcated judicial review
of MSPB decisions. Most petitions for review of final MSPB decisions must be filed
in the Federal Circuit, 5 U.S.C. § 7703(b)(1), whose jurisdiction is exclusive, 28
U.S.C. § 1295(a)(9). However, actions seeking review in “[c]ases of discrimination”
are filed in an appropriate district court, as provided in federal anti-discrimination
statutes. 5 U.S.C. § 7703(b)(2). See generally Kean v. Stone, 926 F.2d 276, 282-84
(3d Cir. 1991). Reviewing the jurisdictional issue de novo, we affirm.
I.
Kloeckner filed her EEO complaint on June 13, 2005. When DOL charged her
with being “absent without leave” from June 13 to July 22, she amended the complaint
to include a charge of retaliation. Kloeckner never returned to work. She was
eventually removed from employment (terminated) effective July 21, 2006, with her
EEO complaint still pending.
Removal is one of the adverse employment actions that may be appealed to the
MSPB. See 5 U.S.C. §§ 7512(1), 7513(d). Administratively, when Kloeckner
challenged the removal while a prior EEO complaint was pending, her dispute became
a “mixed case.” See 5 U.S.C. § 7702(a)(1)-(2); 29 C.F.R. § 1614.302(a). She had the
1
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
2
Pub. L. No. 95-454, 92 Stat. 1111 (1978) (codified as amended in scattered
sections of 5 U.S.C.).
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option of immediately appealing the removal to the MSPB, or amending her EEO
complaint to add a removal charge and proceeding initially before the Equal
Employment Opportunity Commission (EEOC), which conducts hearings at the
request of EEO complainants and issues decisions that are then reviewed by the
employing agency which issues a final agency decision. See 29 C.F.R.
§§ 1614.106(d), .109-.110. But she could not pursue both avenues of appeal. 29
C.F.R. § 1614.302(b); see McAdams v. Reno, 64 F.3d 1137, 1141-42 (8th Cir. 1995).
Kloeckner initially chose to appeal her removal to the MSPB in August 2006.
However, one month later, she moved to dismiss the appeal without prejudice.
Because she was amending her EEO complaint to add a charge of discriminatory
removal, Kloeckner argued that dismissal without prejudice would “avoid the expense
of conducting discovery on these matters before both the EEOC and the MSPB.” An
MSPB administrative judge granted the motion over agency objection. The Order
provided, “This case will not be accepted for refiling after January 18, 2007.”
In the EEO proceedings, the removal claim was added to Kloeckner’s
complaint, and the EEOC scheduled a hearing. Some months later, the EEOC
cancelled the hearing on account of Kloeckner’s abuse of the discovery process and
returned her EEO complaint to DOL for decision. The Secretary’s final decision was
issued in October 2007, finding that DOL had not discriminated or retaliated against
Kloeckner on account of sex or age and upholding her removal.
The Secretary’s final decision noted that this was a “mixed case” and advised
that Kloeckner could appeal to the MSPB or file a civil action in federal district court,
but she could not do both. 5 U.S.C. § 7702(a), (e); 29 C.F.R. §§ 1614.302(d)(1)(ii),
.310(a). When she chose to appeal to the MSPB, “she was required to exhaust her
claims in that forum before filing a civil action.” McAdams, 64 F.3d at 1142; see
Ballentine v. MSPB, 738 F.2d 1244, 1246 (Fed. Cir. 1984).
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Although filed within thirty days of the Secretary’s final decision, Kloeckner’s
appeal to the MSPB was filed more than ten months after the re-filing deadline
imposed in the order dismissing her first appeal without prejudice. A different
administrative judge dismissed the appeal as an untimely re-filing, which became the
MSPB’s final Order when Kloeckner did not seek further administrative review. The
Order advised Kloeckner that she could appeal by filing a petition with the Federal
Circuit. She instead filed this action in district court, alleging that the action “is a
timely appeal from the [Secretary’s] Final Agency Decision,” and that she was a
victim of unlawful sex and age discrimination and retaliation.3
II.
The jurisdictional issue turns on the meaning of the term “[c]ases of
discrimination” in 5 U.S.C. § 7703(b)(2). In Ballentine, a federal employee appealed
the MSPB’s dismissal of his appeal as premature to the Federal Circuit. The MSPB
moved to transfer the case to an appropriate district court, arguing lack of Federal
Circuit jurisdiction because it was a “mixed case.” The Federal Circuit denied the
motion and affirmed the MSPB’s dismissal on the merits, explaining:
The disposition of this appeal depends upon when our jurisdiction
under [5 U.S.C.] § 7703(b)(1) is precluded by § 7703(b)(2) and § 7702.
. . . Section 7702(a)(1) requires that the MSPB “decide both the issue of
discrimination and the appealable action” within 120 days . . . . Once a
case becomes judicially reviewable, § 7702 and § 7703(b)(2) specify that
an action be filed under the appropriate discrimination statute. . . .
3
If the district court did have jurisdiction because this is a “case of
discrimination” under 28 U.S.C. § 7703(b)(2), it could only review the MSPB’s
decision to dismiss Kloeckner’s appeal as untimely. See Harms v. IRS, 321 F.3d
1001, 1010 (10th Cir.), cert. denied, 540 U.S. 858 (2003).
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. . . [T]he judicially reviewable action by the MSPB which makes
an appeal a “case of discrimination” under § 7703(b)(2) that can be filed
in district court is that the MSPB has decided “both the issue of
discrimination and the appealable action. . . .” § 7702(a)(1). When an
appeal has been taken to the MSPB, until the discrimination issue and
the appealable action have been decided on the merits by the MSPB, an
appellant is granted no rights to a trial de novo in a civil action under
§ 7702 or § 7703. Yet, threshold issues such as the MSPB’s own
jurisdiction arise continually on appeal to this court, and we have taken
jurisdiction over these cases . . . .
The language of § 7703(b)(1) . . . strongly suggests that until the
merits of a “mixed” discrimination case are reached by the MSPB,
procedural or threshold matters, not related to the merits of a
discrimination claim before the MSPB, may properly be appealed to this
court. . . . [O]ur 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 issues like . . . whether good cause
has been shown for the waiver of a filing deadline.
738 F.2d at 1246-47 (emphasis in original); accord Franklin v. U.S. Postal Serv., 61
F. App’x 686, 687-88 (Fed. Cir. 2003) (unpublished).
For many years, every circuit to consider the issue followed the Federal
Circuit’s jurisdictional decision in Ballentine. See Powell v. Dep’t of Def., 158 F.3d
597, 598-99 (D.C. Cir. 1998); Sloan v. West, 140 F.3d 1255, 1261-62 (9th Cir. 1998);
Brumley v. Levinson, 1993 WL 128507, at *1 (8th Cir. April 27, 1993) (unpublished);
Wall v. United States, 871 F.2d 1540, 1543 (10th Cir. 1989), cert. denied, 493 U.S.
1019 (1990); Blake v. Dept. of Air Force, 794 F.2d 170, 172-73 (5th Cir. 1986). Our
panel opinion in Brumley adopted Ballentine’s bright-line test dividing district court
jurisdiction under § 7703(b)(2) and Federal Circuit jurisdiction under § 7703(b)(1):
“petitions to review the [MSPB]’s final decisions must be filed in the Court of
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Appeals for the Federal Circuit unless the Board has decided discrimination issues on
the merits.” 1993 WL 128507, at *1 (emphasis added).
This unanimity ended with the Second Circuit’s decision in Downey v. Runyon,
160 F.3d 139 (2d Cir. 1998). Expressly disagreeing with the Federal Circuit’s
construction of 5 U.S.C. § 7703(b) in Ballentine, and seemingly basing its analysis on
the bizarre notion that review by the Federal Circuit is not “judicial review,” the court
held:
There is nothing in any of these sections of the CSRA that suggests that
judicially reviewable actions under [§ 7702(a)(3)] are limited to
decisions on the merits, or that a matter becomes a “[c]ase[] of
discrimination” under [§ 7703(b)(2)] only after a merits decision. . . .
[T]he proper construction is that when the MSPB issues an adverse
“final decision” or “final order” concerning a “case” under section
7702(a)(1), the “case of discrimination shall be filed” in district court, as
required by Title VII.
160 F.3d at 145. The Tenth Circuit followed this reasoning in Harms, despite its prior
contrary ruling in Wall. These courts construe § 7703(b)(2) as meaning that, “when
the MSPB has jurisdiction over an appeal [in a case of discrimination] under
§ 7702(a)(1) but dismisses the appeal on procedural grounds, the federal district court
has jurisdiction to review de novo the decision of the MSPB;” the Federal Circuit
“lacks jurisdiction to review” such decisions. Harms, 321 F.3d at 1008.4
4
Two other circuits have recently upheld Federal Circuit jurisdiction in mixed
case appeals without addressing the jurisdiction/procedure distinction here at issue.
See McCarthy v. Vilsack, 322 F. App’x 456, 458-59 (7th Cir. 2009) (unpublished),
cert. denied, 130 S. Ct. 1048 (2010); Burzynski v. Cohen, 264 F.3d 611, 620-21 (6th
Cir. 2001).
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Kloeckner urges that we adopt the reasoning in Downey and Harms. She then
distinguishes the decisions in Ballentine and Brumley because in those cases the
MSPB lacked subject matter jurisdiction over appeals in purported “cases of
discrimination,” whereas here the MSPB had jurisdiction over Kloeckner’s mixed case
appeal and dismissed the appeal on the “procedural ground” that it was untimely.
Such a ruling would clearly be contrary to our decision in Brumley that review of
MSPB final decisions lies in the Federal Circuit “unless the Board has decided
discrimination issues on the merits.” 1993 WL 128507, at *1. Though Brumley was
a non-binding unpublished opinion, see 8th Cir. R. 32.1A, we conclude that it is
persuasive authority and should be followed.
The issue is one of statutory interpretation. If the plain meaning of these
statutes provided a clear answer, that would end the matter. But as the conflicting
decisions in Ballentine and Downey make clear, the meaning of “[c]ases of
discrimination” in § 7703(b)(2), when read together with the provisions of § 7702(a),
is far from clear. In resolving the resulting ambiguity, the Federal Circuit took a
functional approach to applying § 7703(b)(2), logically inferring that Congress
intended to require the de novo district court review that federal anti-discrimination
statutes provide when the MSPB has ruled on the merits of discrimination issues in
a “mixed case,” but intended that the Federal Circuit provide uniform review of
MSPB rulings on procedural, non-merits issues. See Ballentine, 738 F.3d at 1246-48.
The analysis in Downey ignored these practical, functional considerations,
substituting instead an unpersuasive textual analysis that would require courts to draw
difficult and unpredictable distinctions between MSPB non-merits rulings that are
“jurisdictional,” and those that are merely “procedural.” Cf. Bowles v. Russell, 551
U.S. 205 (2007).5
5
The MSPB in Ballentine dismissed a mixed case appeal for lack of jurisdiction
because it was filed too early. The similarity between that dismissal and the dismissal
for an untimely late filing in this case is apparent. See Ballentine, 738 F.2d at 1248.
In the context of federal employee dispute resolution, we find it conceptually difficult
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Bearing in mind that the Federal Circuit is the court with the greatest experience
when determining the intent of Congress as reflected in the CSRA, we conclude that
Brumley correctly followed the Federal Circuit’s interpretation of § 7703(b) in
Ballentine. Therefore, because in this case the MSPB did not reach the merits of
Kloeckner’s discrimination claims in dismissing her mixed case appeal as untimely,
the district court properly ruled that the Federal Circuit had exclusive jurisdiction to
review the MSPB’s dismissal.
The judgment of the district court is affirmed.
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to see why one decision is “jurisdictional” and the other is not. See 5 U.S.C.
§ 7701(a) (“Appeals shall be processed in accordance with [MSPB] regulations
. . . .”); 5 C.F.R. § 1201.154.
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