FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LESLIE A. KERR, No. 14-36000
Plaintiff-Appellant,
D.C. No.
v. 3:08-cv-00230-RRB
SALLY JEWELL, Secretary of
Department of the Interior, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted August 2, 2016
Anchorage, Alaska
Filed September 6, 2016
Before: Raymond C. Fisher, Richard A. Paez
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Fisher
2 KERR V. JEWELL
SUMMARY*
Whistleblower Protection Act
The panel affirmed the district court’s dismissal for lack
of jurisdiction of plaintiff’s claim under the Whistleblower
Protection Act (“WPA”) brought against her former
employer, the United States Fish and Wildlife Service, based
on plaintiff’s failure to present the WPA claim to the Merit
Systems Protection Board.
The panel held that the statutory scheme governing the
Civil Service Reform Act and the WPA did not authorize
plaintiff to file her WPA claim in district court without first
presenting it to the Merit Systems Protection Board. The
panel further held that the district court lacked jurisdiction
over plaintiff’s WPA claim because the Merit Systems
Protection Board provides the exclusive avenue for obtaining
judicial review of a WPA claim. Finally, the panel held that
the district court did not abuse its discretion by declining to
remand her WPA claim to the Merit Systems Protection
Board.
COUNSEL
Stephani Ayers (argued) and Thad M. Guyer, T.M. Guyer &
Friends, P.C., Medford, Oregon, for Plaintiff-Appellant.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KERR V. JEWELL 3
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.
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 federal district court,
asserting both her Title VII claims and her WPA claim. The
district court dismissed the WPA claim for lack of
jurisdiction based on Kerr’s failure to present the claim to the
MSPB. Kerr appeals, and we affirm.
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
4 KERR V. JEWELL
to review in the district court, without an intervening stop at
the MSPB. See 5 U.S.C. § 7702(a)(2). Kerr was free to take
her Title VII claims directly from FWS’s EEO office to
district court, bypassing the MSPB. Nothing in § 7702(a)(2),
however, authorizes an employee to present an entirely
unreviewed WPA claim in district court without first
presenting it to the MSPB.
Second, although a federal district court can exercise
federal question jurisdiction under 28 U.S.C. § 1331, that
general grant of jurisdiction does not apply where it is fairly
discernible that Congress intended a statutory review scheme
to provide the exclusive avenue to judicial review. See Elgin
v. Dep’t of Treasury, 132 S. Ct. 2126, 2132–33 (2012). In
Elgin, the Supreme Court applied this principle to the CSRA,
holding that, “[g]iven 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. The WPA is
part of the CSRA, and nothing in the WPA alters the
conclusion the Court reached in Elgin. The statutory scheme
places exclusive original jurisdiction in the MSPB.
Accordingly, the scheme precluded the district court from
exercising original jurisdiction over Kerr’s WPA claim.
BACKGROUND
We described the facts underlying this case in an
unpublished decision resolving a previous appeal. See Kerr
v. Jewell, 549 F. App’x 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
KERR V. JEWELL 5
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. The process began in March 2006,
when Kerr filed an informal complaint with the FWS EEO
counselor. In May 2006, after the counselor failed to resolve
the case, Kerr filed a formal complaint with FWS’s EEO
office, alleging claims of sex discrimination, religious
discrimination and retaliation. As amended, the complaint
challenged, among other things, the negative performance
review, the warning letter, the 60-day detail in Anchorage, the
decision to remove her from employment and her resulting
involuntary retirement.
6 KERR V. JEWELL
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.” 5 U.S.C.
§ 2302(b)(8).
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
5 U.S.C. § 7512 (listing five serious personnel actions,
including “a removal,” over which the MSPB has
jurisdiction); 5 C.F.R. § 1201.3(a)(1) (same); see also
Reddick v. FDIC, 809 F.3d 1253, 1256 & n.1 (Fed. Cir.
2016). The MSPB advised Kerr it had jurisdiction solely
over claims related to her removal.
1
Although the statute refers to this type of filing as an “appeal,” in fact
these are original MSPB proceedings.
KERR V. JEWELL 7
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.” 5 C.F.R. § 1201.151(a)(1); see
also 29 C.F.R. § 1614.302(a). The Board gave Kerr two
options with respect to her claims relating to her removal.
She could either present the claims to FWS’s EEO office,
later appealing them to the MSPB, or she could bypass the
EEO office and present them in the first instance to the
MSPB, by filing an original “appeal” with the Board. See
5 C.F.R. § 1201.154(a) (“Where the appellant has been
subject to an action appealable to the Board, he or she may
either file a timely complaint of discrimination with the
agency or file an appeal with the Board . . . .”). But she could
not challenge her removal in both forums simultaneously.
See 29 C.F.R. § 1614.302(b) (“An aggrieved person may
initially file a mixed case complaint with an agency pursuant
to this part or an appeal on the same matter with the MSPB
pursuant to 5 CFR 1201.151, but not both.”). The Board thus
advised Kerr she could either “move to withdraw this appeal
without prejudice to the underlying claims, exhaust the
agency’s EEO procedure, then file a new appeal to the Board
concerning her removal within the time limits set forth at
5 C.F.R. § 1201.154(b),” or “she may abandon the EEO
procedure with respect to her removal only, and continue to
pursue this appeal.” Kerr chose the first option, informing the
Board “she elects to exhaust EEO procedures before filing a
new appeal with the Board concerning her removal.”
Accordingly, in November 2006, the MSPB dismissed
Kerr’s appeal “as premature, without prejudice to the
underlying claims.” The Board noted Kerr could “file a new
appeal to the Board” after conclusion of the EEO
proceedings. See 5 C.F.R. § 1201.154(b) (“If the appellant
8 KERR V. JEWELL
has filed a timely formal complaint of discrimination with the
agency . . . [a]n appeal must be filed [with the MSPB] within
30 days after the appellant receives the agency resolution or
final decision on the discrimination issue . . . .”). In light of
the MSPB dismissal, FWS’s EEO office accepted Kerr’s
claims arising from her removal for investigation.
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
2
Kerr does not challenge the agency’s decision that it lacked jurisdiction
over her WPA claim. We therefore have no occasion to address that issue.
KERR V. JEWELL 9
district court granted summary judgment to the defendants.
Kerr appealed, and we vacated and remanded. See Kerr,
549 F. App’x 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 5 U.S.C. § 7703(c) (providing for deferential judicial
review of decisions of the MSPB). Following trial, the jury
returned a verdict in favor of the government on the Title VII
claim, and the district court entered final judgment dismissing
Kerr’s case.
10 KERR V. JEWELL
Kerr filed a motion for relief under Federal Rule of Civil
Procedure 59(e), urging the district court to reconsider its
jurisdictional ruling on the WPA claim or, alternatively, to
remand the WPA claim to the MSPB. The district court
denied the motion and declined to remand the claim, noting
it could not “‘remand’ a matter to an agency that did not issue
a decision.” This timely appeal followed.
STANDARD OF REVIEW
“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
KERR V. JEWELL 11
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.” 5 U.S.C.
§ 2302(b)(8).3
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 id. §§ 1214, 1221(a); 5 C.F.R. § 1209.2. If the
employee follows the first path, she files initially with the
OSC. She may appeal an adverse decision by the OSC to the
MSPB. See 5 C.F.R. § 1209.5(a). An adverse decision by the
3
Section 2302(b)(8) was first enacted as part of the Civil Service
Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (1978).
The Whistleblower Protection Act of 1989 (WPA), Pub. L. No. 101-12,
103 Stat. 16 (1989), amended and strengthened the provision. Although
the provision derives from both laws, a claim under § 2302(b)(8) is
commonly referred to as a WPA claim, and we follow that convention
here, as do the parties.
12 KERR V. JEWELL
MSPB, in turn, is subject to judicial review. See 5 U.S.C.
§ 1214(c). If the employee follows the second path, she files
initially with the MSPB. See id. § 1221(a). The MSPB’s
decision is then subject to judicial review. See id.
§§ 1221(h); 7703(b).4
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.”
29 C.F.R. § 1614.105(a). If the matter is not resolved by the
counselor, the employee may file a formal discrimination
complaint with the agency’s EEO office. See id.
§§ 1614.105(d), 1614.106(a). When the EEO office issues a
final decision, the employee has the right to appeal the
decision to the EEOC, see id. § 1614.401, or file a civil action
in federal district court, see id. § 1614.407. When an
4
Judicial review ordinarily occurs in the Federal Circuit, subject to two
exceptions. First, cases of discrimination subject to 5 U.S.C. § 7702,
known as mixed cases, are filed in district court. See 5 U.S.C.
§ 7703(b)(2). Second, under the Whistleblower Protection Enhancement
Act of 2012, non-mixed cases involving solely whistleblower claims under
the WPA can be filed in any federal circuit court, not just the Federal
Circuit, for a five-year period. See id. § 7703(b)(1)(B); Daniels v. Merit
Sys. Prot. Bd., No. 13-73913, 2016 WL 4191522 at *5 & n.8 (9th Cir.
Aug. 9, 2016).
KERR V. JEWELL 13
employee elects to appeal first to the EEOC, the EEOC’s
decision is subject to review in district court. See id.
§ 1614.405(c).
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, 133 S. Ct. 596,
601 (2012); see 29 C.F.R. § 1614.302(a)(1) (defining a
“mixed case” as a complaint of “employment discrimination
. . . based on race, color, religion, sex, national origin, age,
disability, or genetic information related to or stemming from
an action that can be appealed to the Merit Systems
Protection Board (MSPB)”); 5 C.F.R. § 1201.151(a)(1)
(establishing rules for “any case in which an employee or
applicant for employment alleges that a personnel action
appealable to the Board was based, in whole or in part, on
prohibited discrimination”); accord Washington v. Garrett,
10 F.3d 1421, 1428 (9th Cir. 1993) (“A ‘mixed case’ brought
under 5 U.S.C. § 7703(b)(2) is one which involves both a
personnel action normally appealable to the MSPB and a
claim of discrimination.”). “The complaint may contain only
an allegation of employment discrimination or it may contain
additional allegations that the MSPB has jurisdiction to
address,” such as a claim under the WPA. 29 C.F.R.
§ 1614.302(a)(1).
A federal employee bringing a mixed case
may proceed in a variety of ways. She may
14 KERR V. JEWELL
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 5 CFR
§ 1201.154(a); 29 CFR § 1614.302(b). If the
agency decides against her, the employee may
then either take the matter to the MSPB or
bypass further administrative review by suing
the agency in district court. See 5 CFR
§ 1201.154(b); 29 CFR § 1614.302(d)(1)(i).
Alternatively, the employee may initiate the
process by bringing her case directly to the
MSPB, forgoing the agency’s own system for
evaluating discrimination charges. See 5 CFR
§ 1201.154(a); 29 CFR § 1614.302(b). If the
MSPB upholds the personnel action (whether
in the first instance or after the agency has
done so), the employee again has a choice:
She may request additional administrative
process, this time with the EEOC, or else she
may seek judicial review. See 5 U.S.C.
§§ 7702(a)(3), (b); 5 CFR § 1201.161;
29 CFR § 1614.303.
Kloeckner, 133 S. Ct. at 601.
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
KERR V. JEWELL 15
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 5 U.S.C. § 7702. Section
7702(a)(2) authorizes a direct route from the EEO office to
district court in mixed cases. It states:
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 . . . .
5 U.S.C. § 7702(a)(2).
16 KERR V. JEWELL
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. at 1142.5 The employee then filed a civil
action in district court, raising both claims and relying on
§ 7702(a)(2)(B). See id. Although the government argued
the district court lacked jurisdiction to hear the employee’s
WPA claim because he failed to exhaust the claim before the
MSPB, the Tenth Circuit disagreed:
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 also 29 C.F.R.
5
Wells does not discuss whether the agency’s EEO office declined to
exercise jurisdiction over the employee’s WPA claim, as occurred here.
KERR V. JEWELL 17
§ 1614.310(a). In addition to his [WPA]
retaliation claim, Plaintiff plainly alleges
disability discrimination under 29 U.S.C.
§ 791 as a basis for his constructive discharge.
Id. The court thus concluded § 7702(a)(2) authorizes an
employee with a mixed case to bring a WPA claim directly
from an agency’s EEO office to district court, without first
presenting it to the MSPB. See id. at 1142–43.6
Kerr relies on Wells, arguing § 7702(a)(2) authorized her
to bring her claims, including her WPA claim, directly from
the EEO office to district court. We disagree. Although
Wells offers one plausible reading of § 7702(a)(2), there are
several drawbacks to the Tenth Circuit’s analysis.
First, the Tenth Circuit did not discuss the practical
import of its interpretation of § 7702 where, as here, the EEO
declines jurisdiction over the WPA claim. When an
employee presents a WPA claim only to the EEO office, the
EEO office declines to exercise jurisdiction over the claim,
and the employee elects to bypass the MSPB, the employee
6
The Fourth Circuit also has permitted a direct path from the EEO to
district court when an employee has a mixed case that also includes a
WPA claim, albeit in different circumstances. See Bonds v. Leavitt,
629 F.3d 369, 377, 379 (4th Cir. 2011) (applying 5 U.S.C.
§ 7702(e)(1)(A), the provision that governs when an agency’s EEO office
fails to resolve a formal complaint within a reasonable period of time,
rather than § 7702(a)(2), the provision authorizing judicial review of an
unfavorable decision by the EEO office). Under § 7702(e)(1)(B), Kerr
would have been entitled to present her entire case, including her WPA
claim, in district court had she presented the claims to the MSPB and the
MSPB did not resolve them in a timely manner. See Ikossi v. Dep’t of
Navy, 516 F.3d 1037, 1043 (D.C. Cir. 2008). That did not occur here,
however.
18 KERR V. JEWELL
winds up presenting an entirely unreviewed WPA claim to the
district court. It is highly unlikely Congress intended that
result. As the Supreme Court has explained, the CSRA
“‘comprehensively overhauled the civil service system,’
creating an elaborate ‘new framework for evaluating adverse
personnel actions against federal employees.’” United States
v. Fausto, 484 U.S. 439, 443 (1988) (alterations omitted)
(quoting Lindahl v. OPM, 470 U.S. 768, 773–74 (1985)). “It
prescribes in great detail the protections and remedies
applicable to such action, including the availability of
administrative and judicial review.” Id. The WPA
strengthened the CSRA’s protections for whistleblowers,
expanding the role of the Office of Special Counsel, see
5 U.S.C. §§ 1211–15, authorizing employees to seek
corrective action directly from the MSPB, see id. § 1221(a),
and adopting a set of robust procedural rules to protect
employees in MSPB proceedings, see, e.g., id. § 1221(c)(1)
(authorizing the MSPB to stay the allegedly retaliatory
personnel action); id. § 1221(d)(1) (granting the MSPB
subpoena power); id. § 1221(e)(1) (requiring an employee to
establish only that the protected activity was a “contributing
factor” in the challenged personnel action); id. § 1221(e)(2)
(requiring the government, to avoid corrective action, to
prove by “clear and convincing evidence” that it would have
taken the same personnel action in the absence of the
employee’s protected activity); id. § 1221(g) (authorizing
broad remedies and an award of “reasonable attorney’s fees
and other reasonable costs”); id. § 1221(h)(1) (providing for
judicial review of the MSPB’s decision). Nothing in the
WPA suggests Congress intended to permit employees to
bypass this comprehensive system of administrative review.
As the D.C. Circuit has observed, “[u]nder no circumstances
does the WPA grant the District Court jurisdiction to
entertain a whistleblower cause of action brought directly
KERR V. JEWELL 19
before it in the first instance.” Stella v. Mineta, 284 F.3d 135,
142 (D.C. Cir. 2002).
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.” 5 U.S.C.
§ 7703(c). When an employee bypasses the MSPB, there is
no administrative record to review, and no decision to which
a court may defer, but rather only a decision that the EEO
lacked jurisdiction.
Third, the Tenth Circuit’s reliance on the “plain
language” of § 7702(a)(2) lacks persuasive force where, as
here, an agency’s EEO office refuses to consider the WPA
claim on the merits. The statutory language authorizes
judicial review of the “decision of the agency.” Id.
§ 7702(a)(2) (emphasis added). When the employee’s agency
declines to exercise jurisdiction over the WPA claim, there is
no decision on the merits of the WPA claim for the court to
review.
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 non-
discrimination claim subject to the MSPB’s original
20 KERR V. JEWELL
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
29 C.F.R. § 1614.310(b)). Thus, Sloan suggests the MSPB
furnishes the exclusive path for obtaining judicial review of
a WPA claim.
In light of these authorities, we are not persuaded by
Kerr’s argument that the statutory scheme in general, or
§ 7702(a)(2) in particular, granted the district court
jurisdiction over her WPA claim.
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 28 U.S.C. § 1331. See Elgin v.
Dep’t of Treasury, 132 S. Ct. 2126, 2132 (2012). This grant
of jurisdiction, however, is not absolute. As the Supreme
Court explained in Elgin, a statutory scheme precludes
district court jurisdiction when “it is ‘fairly discernible’ from
the [statute] that Congress intended covered employees
appealing covered agency actions to proceed exclusively
through the statutory review scheme.” Id. at 2132–33
(quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207
KERR V. JEWELL 21
(1994)). In applying this standard, “we examine the
[statute’s] text, structure, and purpose.” Id. at 2133.
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, “extrastatutory 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
– 5 U.S.C. § 2302(b)(8) – associated with the WPA does not
alter this conclusion. The CSRA and the WPA are integrated
22 KERR V. JEWELL
into a single statutory scheme. “The Whistleblower
Protection Act of 1989 increases protections for
whistleblowers, but it does so within the context of the
CSRA.” Rivera, 924 F.2d at 954; see also Richards v.
Kiernan, 461 F.3d 880, 885–86 (7th Cir. 2006) (citing cases)
(“[T]he CSRA provides the exclusive remedy for claims
brought pursuant to the WPA.”); Ugarte v. Johnson, 40 F.
Supp. 2d 178, 181 (S.D.N.Y. 1999) (Rakoff, J.) (“That
plaintiff claims here to have been a whistleblower does not
create any greater right for her in a district court than under
the general CSRA scheme because enactment of the WPA
left the role of the federal courts unchanged in the review of
employment decisions affecting federal employees. . . . The
WPA . . . expanded the MSPB’s jurisdiction to enable it to
hear claims of retaliation for whistleblowing which had been
previously outside its jurisdiction, but conferred no
jurisdiction in th[e district] court.” (citations omitted)).
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. 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
7
Kerr correctly points out that “[m]ost exhaustion requirements
established by Congress do not result in a loss of subject matter
jurisdiction.” Maronyan v. Toyota Motor Sales, U.S.A., Inc., 658 F.3d
1038, 1040 (9th Cir. 2011). Elgin, however, addresses a different question
– whether a statutory scheme precludes district court jurisdiction because
it is fairly discernible that Congress intended the statute’s review scheme
to provide the exclusive avenue to judicial review.
KERR V. JEWELL 23
C. The District Court Did Not Abuse Its Discretion By
Declining to Remand to the MSPB
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.