Case: 13-11053 Date Filed: 11/18/2013 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11053
Non-Argument Calendar
________________________
D.C. Docket No. 3:11-cv-00295-HES-JRK
ANTHONY T. LEE,
Plaintiff-Appellant,
versus
USA, et al.,
Defendants,
SECRETARY OF THE ARMY,
United States Army Corp of Engineers,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 18, 2013)
Case: 13-11053 Date Filed: 11/18/2013 Page: 2 of 8
Before PRYOR, MARTIN and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Anthony Lee, proceeding pro se, appeals from the district court’s
judgment of dismissal for lack of subject matter jurisdiction of his employment
discrimination case, brought under Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e-3(a), and 42 U.S.C. § 1981. Lee filed several complaints
with the Equal Employment Office (“EEO”) of the U.S. Army Corps of Engineers
(“Corps”), alleging that the Corps had discriminated against him on the basis of
race and age and as reprisal for his whistleblowing activity and EEO complaints.
Lee initially filed a formal complaint with the Equal Employment Opportunity
Commission (“EEOC”) containing those same claims, but the EEOC dismissed
that complaint when Lee requested a right to sue letter. The EEOC sent the claims
back to the Corps’s EEO to issue a final agency decision, and, when the EEO ruled
against him, Lee filed the instant suit in federal district court. When the Corps
subsequently terminated Lee’s employment, he appealed his termination to the
Merit Systems Protection Board (“MSPB”), alleging that he was terminated in
retaliation for whistleblowing activity and filing EEO complaints. The MSPB’s
administrative judge determined that Lee’s termination was proper and was not
based on any whistleblowing or EEO activity, and Lee unsuccessfully appealed
that decision to the United States Court of Appeals for the Federal Circuit
2
Case: 13-11053 Date Filed: 11/18/2013 Page: 3 of 8
(“Federal Circuit”). The district court dismissed Lee’s instant complaint, finding
that it lacked subject matter jurisdiction over Lee’s “mixed” claims of termination
and discrimination because he had waived his right to appeal those “mixed” claims
when he appealed to the Federal Circuit the MSPB’s order upholding his
termination.
On appeal, Lee’s arguments are hard to follow, but he appears to contend
that: (1) the Corps was responsible for creating a “mixed” case; (2) the district
court did not litigate his claims of retaliation and hostile work environment; (3) he
never pursued or elected to file a “mixed” case with the MSPB; and (4) the MSPB
never had jurisdiction over his discrimination claim. Lee claims that his EEOC
complaint was a “pure” discrimination claim, and that his MSPB complaint was a
“pure” premature-termination claim, and that those claims were not related or
based on the same conduct.
We review a district court’s order dismissing a complaint for lack of subject-
matter jurisdiction de novo. Dalrymple v. United States, 460 F.3d 1318, 1324
(11th Cir. 2006). “We may affirm the district court’s judgment on any ground that
appears in the record, whether or not that ground was relied upon or even
considered by the court below.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,
1364 (11th Cir. 2007).
3
Case: 13-11053 Date Filed: 11/18/2013 Page: 4 of 8
When a federal employee has been subject to an “adverse employment
action,” including a termination, a demotion, or a suspension, he is entitled to
appeal that adverse action to the MSPB. 5 U.S.C. §§ 7512, 7513(d). The MSPB
does not have jurisdiction over discrimination claims that are not related to adverse
actions, but it can entertain appeals in “mixed cases,” where an employee alleges
discrimination in relation to one of the specified adverse employment actions.
5 U.S.C. § 7702(a)(1)(B); 29 C.F.R. § 1614.302(a). Specifically, for a case to
qualify as a mixed case appeal, an employee must “allege[] that an appealable
agency action was effected, in whole or in part, because of discrimination on the
basis of race, color, religion, sex, national origin, disability, age, or genetic
information.” 29 C.F.R. § 1614.302(a)(2). When a federal employee has a Title
VII claim that is not mixed with an adverse action within the MSPB’s jurisdiction,
he must file an initial complaint with his agency’s EEO to pursue his claim.
Chappell v. Chao, 388 F.3d 1373, 1375 n.2 (11th Cir. 2004). Once the employee
has exhausted his administrative remedies, he may file a civil action in federal
district court. Id.; 42 U.S.C. § 2000e-5(f)(3).
When the MSPB issues a final decision in a mixed case, the employee is
permitted to seek judicial review. Chappell, 388 F.3d at 1375. If the MSPB
rejects an employee’s claims in a mixed case, the employee may: (1) seek the
EEOC’s review of his discrimination claims; (2) file a civil action in federal
4
Case: 13-11053 Date Filed: 11/18/2013 Page: 5 of 8
district court raising both his discrimination and termination claims; or (3) petition
the Federal Circuit for review of the termination decision. 5 U.S.C. §§ 7702(b)(1),
7703(b)(1)-(2). The Federal Circuit does not have jurisdiction to hear
discrimination appeals. Chappell, 388 F.3d at 1375. “Thus, according to the
statutory scheme governing review of MSPB final orders, if a federal employee
wants to pursue any type of discrimination claim on appeal, the employee must file
a complaint in a federal district court, as the federal district court is the only forum
in which an employee can appeal both parts of a mixed claim.” Id. at 1375-76.
We have concluded that “[t]he statutory scheme established by Congress for
federal employees requires them either to combine their related employment
discrimination and termination claims and pursue them in federal district court, or
to appeal their termination claims to the Federal Circuit and waive any
discrimination claims.” Id. at 1374.
In Chappell, the plaintiff, an employee of the Department of Labor
(“DOL”), filed several EEO complaints over a period of three years alleging
discrimination based on his age and race, and retaliation for previously filing
complaints with the EEO of the DOL. Id. Chappell was placed on a Performance
Improvement Plan (“PIP”) in January 2000, and was terminated in July 2000 for
failure to comply with the PIP. Id. While his EEOC discrimination claims were
still pending, he separately appealed the termination decision to the MSPB, which
5
Case: 13-11053 Date Filed: 11/18/2013 Page: 6 of 8
had jurisdiction over his “mixed case” of discrimination and termination claims.
Id. at 1375. Prior to the MSPB entering its findings, the EEOC found that
Chappell had failed to present an adequate showing for his discrimination claims.
Id. Chappell then filed a lawsuit in the Northern District of Georgia in August
2001. Id. In September 2001, the MSPB upheld Chappell’s termination from the
DOL. Id. The MSPB outlined Chappell’s remaining avenues of relief for him,
which included (1) seeking EEOC review of his discrimination claims, (2) filing a
civil action on both his discrimination and termination claims, or (3) requesting
review by the Federal Circuit of his termination decision. Id. Chappell opted to
appeal the MSPB decision regarding his termination to the Federal Circuit. Id. at
1376. While Chappell’s appeal in the Federal Circuit was pending, he attempted to
amend his discrimination lawsuit filed in the Northern District of Georgia to
include his termination claims, which the district court rejected because he had
failed to file a motion for leave to amend. Id. After the Federal Circuit dismissed
Chappell’s termination appeal on the merits, the DOL moved the district court for
summary judgment, arguing that the discrimination claims were related to events
already litigated in the Federal Circuit. Id. The district court granted summary
judgment, finding that it lacked subject matter jurisdiction. Id.
On appeal, we upheld the grant of summary judgment in favor of the DOL,
explaining that the district court had subject matter jurisdiction over Chappell’s
6
Case: 13-11053 Date Filed: 11/18/2013 Page: 7 of 8
discrimination and termination claims, but that Chappell had waived his right to
bring the discrimination action in the district court by electing to appeal his
termination claim to the Federal Circuit. Id. at 1378 & n.8. We considered “the
language, legislative history, and underlying policies” of the statutes in question
and held that “a federal employee who wants to preserve both discrimination and
non-discrimination claims after a final order from the MSPB must do so by
bringing all his related claims in federal district court.” Id. at 1378. Therefore, if
the federal employee appeals a decision to the Federal Circuit, he “waives his right
to pursue not only any discrimination claims he raised before the MSPB, but also
any other discrimination claims arising out of the same facts.” Id. Thus, by
appealing his termination claim to the Federal Circuit, rather than bringing his
discrimination and related termination claims in the district court, Chappell waived
his right to bring the claims before the district court. Id. at 1378-79. We noted that
Chappell had “ample notice” of the consequences of filing his appeal in the Federal
Circuit and that he had “numerous opportunities to avoid those consequences.” Id.
(noting that the MSPB order explicitly stated that both claims could only be
pursued in a district court, that the district court had provided him the opportunity
to move for leave to amend his complaint to include an appeal of the MSPB
termination decision, and that Chappell had informed the Federal Circuit that he
did not plan on pursuing his discrimination claims elsewhere). We also concluded
7
Case: 13-11053 Date Filed: 11/18/2013 Page: 8 of 8
that, despite Chappell’s arguments that his discrimination claims before the MSPB
and the district court were different, “Chappell’s various administrative filings
raised related issues and arose out of overlapping facts.” Id. at 1379 (internal
quotation marks omitted) (“All of these complaints related to Chappell’s work
environment and ability to do his job, including the conditions leading up to his
termination.”).
Because Lee appealed the MSPB’s adverse decision on his termination
claim to the Federal Circuit, which disposed of it, and his discrimination and
termination claims were based on the same facts, we conclude that Lee waived his
right to bring this suit in federal district court. The district court correctly
dismissed Lee’s complaint, although it incorrectly determined it lacked subject
matter jurisdiction over the case.
AFFIRMED.
8