Zonnytta Bolton v. Carolyn Colvin

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1907

ZONNYTTA BOLTON,

Plaintiff - Appellant,

v.

CAROLYN W. COLVIN, Acting Commissioner of Social Security;
OFFICE OF PERSONNEL MANAGEMENT,

Defendants - Appellees.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Loretta C. Biggs,
District Judge. (1:14-cv-00151-LCB-LPA)

Argued: December 6, 2016 Decided: January 5, 2017

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.

ARGUED: Phillip R. Kete, Chesapeake Beach, Maryland, for
Appellant. Sydney Foster, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees. ON BRIEF: Norman B. Smith,
SMITH, JAMES, ROWLETT & COHEN, LLP, Greensboro, North Carolina,
for Appellant. Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Marleigh D. Dover, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Ripley Rand,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

After being demoted from her paralegal specialist

position with the Social Security Administration (“SSA”),

Zonnytta Bolton appealed to the Merit Systems Protection Board

(“MSPB”), contending that her demotion resulted from

discrimination and improper personnel procedures. After Bolton

provided notice that resolution of her claim involved

interpretation of regulations promulgated by the Office of

Personnel Management (“OPM”), the MSPB sua sponte bifurcated her

appeal into an individual challenge to her demotion and a claim

seeking review of those OPM regulations. Because of this

bifurcation, which Bolton did not request and consistently

questioned, the MSPB decided her claim regarding the applicable

regulations first, and Bolton appealed that decision to the

Court of Appeals for the Federal Circuit.

After exhausting MSPB remedies with regard to the

individual demotion claim, Bolton then sought review of that

claim in the Middle District of North Carolina, raising two

discrimination claims and six non-discrimination claims. The

district court concluded that when Bolton filed her appeal with

the Federal Circuit, she waived district court review of her

discrimination claims. Therefore, it dismissed her entire case

for lack of subject matter jurisdiction. For the reasons that

3
follow, we affirm in part, reverse in part, and remand for

further proceedings.

I.

On October 24, 2011, Bolton, a hearing-impaired

employee with the SSA, was demoted from a GS-12 paralegal

specialist position to a GS-8 senior case technician position.

She filed an administrative appeal with the MSPB, claiming that

her demotion violated 5 U.S.C. § 4303 (providing rights and

safeguards to which a government employee is entitled before

demotion); 5 C.F.R. § 432.104 (providing criteria necessary to

demote an employee); and the Rehabilitation Act of 1973, 29

U.S.C. § 791 (prohibiting disability discrimination by programs

receiving federal financial assistance). She also argued that

her demotion involved an improper personnel procedure, that is,

the SSA did not have an OPM-approved performance appraisal

system as required by 5 C.F.R. § 432.104.

A few months later, Bolton filed a “motion for notice

to the O[PM],” explaining “the interpretation of an OPM

regulation [wa]s at issue” in her case. J.A. 58 (capitalization

omitted); 1 see also 5 U.S.C. § 7701(d)(2) (“The [MSPB] shall

promptly notify the Director [of the OPM] whenever the

1
Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.

4
interpretation of any civil service law, rule, or regulation

under the jurisdiction of the O[PM] is at issue in any

proceeding under this section.”). Thereafter, the MSPB did not

rule on the motion, but rather, bifurcated Bolton’s case into

one claim based on discrimination and improper personnel

procedures, see Bolton v. Soc. Sec. Admin., No. DC-0432-12-0121-

I-1 (the “individual case”), and one claim seeking review of OPM

regulations, see Bolton v. Office of Pers. Mgmt., No. CB-1205-

12-0011-U-1 (the “regulation-review case”). Bolton had not

requested bifurcation; the MSPB simply bifurcated of its own

accord, relying solely on Bolton’s motion for notice. The cases

then progressed on two different tracks, despite the fact that

Bolton filed a statement with the MSPB in March of 2012 stating,

“The record should be clear that Ms. Bolton did not file a . . .

request for [regulation] review . . .” J.A. 144.

On June 5, 2012, a single administrative law judge

for the MSPB (the “ALJ”) issued its initial decision in the

individual case. The ALJ upheld the SSA’s decision to demote

Bolton, concluding: the SSA’s performance appraisal system was

properly approved by OPM; it remained an “approved” system at

the time Bolton was demoted; and the SSA’s performance standards

were valid, permitted [an] accurate evaluation of Bolton’s job

performance, and were adequately communicated to her. J.A. 77-

84. As for Bolton’s allegations of disability discrimination,

5
the ALJ found that Bolton did not present sufficient evidence of

harassment, retaliation, failure to accommodate, or

discrimination based on disparate treatment. Finally, the ALJ

found that the SSA did not violate Bolton’s due process rights

in ordering her demotion. Bolton filed a petition for review of

this decision with the full three-judge MSPB.

Three days later, on June 8, 2012, Bolton filed a

statement in the regulation-review case, arguing generally that

OPM’s regulations “result in the commission of prohibited

personnel practices,” and suggesting that the problem may be

“government-wide” rather than limited to the SSA. J.A. 146

(capitalization omitted). Then, while the petition for review

in the individual case was pending, the MSPB issued a final

decision in the regulation-review case on April 2, 2013,

declining to review Bolton’s claim in part because it “ha[d]

been reached . . . in her individual [MSPB] appeal.” J.A. 190.

On June 4, 2013, Bolton filed an appeal of the MSPB’s

regulation-review decision with the Federal Circuit. See ECF

No. 1, Bolton v. Office of Pers. Mgmt., No. 13-3123 (Fed. Cir.

June 4, 2013); see also J.A. 199. The sole issue in that appeal

was whether the Federal Circuit should “set aside [the] MSPB

decision to not review certain OPM regulations,” because the

MSPB failed to “explain why th[ose] regulations should not be

reviewed.” J.A. 224, 231.

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 On July 25, 2013, Bolton filed a motion to stay in the

Federal Circuit pending a final decision from the MSPB in her

individual case. She explained, “The peculiar history of the

case . . . makes it unlikely, albeit not impossible, that a

decision by this court will be necessary, because any judicial

review Ms. Bolton seeks will be provided by an appropriate

federal district court.” J.A. 203. OPM opposed the motion and

filed a motion to dismiss for lack of jurisdiction because the

MSPB did not decide the regulation-review case on its merits.

The Federal Circuit denied the stay and motion to dismiss

without explanation. Then, on January 24, 2014, the full MSPB

denied Bolton’s petition for review in the individual case.

With her regulation-review appeal still pending in the

Federal Circuit, on February 21, 2014, Bolton filed the instant

action against OPM and the Acting Commissioner of the SSA

(collectively, “Appellees”) in the Middle District of North

Carolina. The operative complaint, amended on August 15, 2014,

contains the following eight claims:

• discriminatory demotion (Count One);

• failure to accommodate Bolton’s hearing
disability (Count Two);

• failure to establish, communicate, and
use statutory performance standards in
demoting Bolton (Count Three);

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 • improper demotion of Bolton without
certain statutory and regulatory
preconditions (Count Four);

• improper use of statute for demoting
Bolton without OPM review for
compliance (Count Five);

• due process violations (Counts Six and
Seven); and

• administrative challenge to OPM’s
approval of 50 agencies’ performance
appraisal systems, and OPM’s
promulgation of requirements for such
approval (Count Eight).

On April 1, 2014, Bolton filed a request to voluntarily dismiss

her regulation-review appeal, which the Federal Circuit granted

the following day.

In the district court, Appellees filed a motion to

dismiss, arguing, inter alia, that Bolton waived her

discrimination claims, depriving the district court of

jurisdiction. The motion was referred to a magistrate judge,

who recommended the motion be granted. The district court

dismissed the amended complaint on July 7, 2015, adopting the

magistrate judge’s explanation that “absent any authority to the

contrary, this Court cannot ignore [Bolton]’s waiver of her

discrimination claims at the Federal Circuit and give her

another opportunity to litigate them when the Fourth Circuit has

plainly foreclosed that maneuver.” Bolton v. Colvin, No. 1:14-

cv-151, 2015 WL 2452829, at *5 (M.D.N.C. May 22, 2015) (citing

8
Pueschel v. Peters, 577 F.3d at 563–64 (4th Cir. 2009))

(emphasis supplied), report and recommendation adopted, No.

1:14-cv-151, 2015 WL 4094127 (M.D.N.C. July 7, 2015).

Bolton timely noted this appeal, which challenges the

district court’s dismissal. “In reviewing a district court’s

dismissal of a claim for lack of [subject matter] jurisdiction

. . . , we review the court’s factual findings for clear error

and its legal conclusions de novo.” Al Shimari v. CACI Premier

Tech., Inc., 840 F.3d 147, 154 (4th Cir. 2016).

II.

As a matter of background, under the Civil Service

Reform Act of 1978 (“CSRA”), “a federal employee subjected to

. . . [a] demotion may appeal her agency’s decision to the

M[SPB].” Kloeckner v. Solis, 133 S. Ct. 596, 600 (2012); see

also 5 U.S.C. §§ 7512(3)-(4), 7701(a). In such an appeal, the

employee “may claim, among other things, that the agency

discriminated against her in violation of a federal statute.”

Kloeckner, 133 S. Ct. at 600. If an employee claims she was

demoted via an improper personnel procedure and alleges that the

demotion was based on discrimination, this is called a “mixed

case.” Id. at 601; see also 29 C.F.R. § 1614.302. It is

undisputed that Bolton’s initial filing with the MSPB was a

mixed case appeal.

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 The MSPB is not only the main adjudicatory body for

federal employees subject to a termination, demotion, or other

adverse employment action, see 5 U.S.C. § 1204(a); it also has a

“regulation review” function. For example, pursuant to 5 U.S.C.

§ 1204(a)(4), the MSPB is tasked with “review[ing] . . . rules

and regulations of the O[PM].” The MSPB “shall review any

provision” of an OPM rule or regulation “on [the MSPB’s] own

motion” or “on the granting . . . of any petition for such

review filed with [MSPB] by any interested person.” 5 U.S.C.

§ 1204(f)(1)(A)-(B). The MSPB also has the authority to

determine whether an OPM regulation has been invalidly

implemented by an agency such as the SSA. See id.

§ 1204(f)(2)(B).

If an employee is displeased with her adverse

employment action, she can file an appeal to the MSPB, and an

administrative judge will issue an “initial decision.” 5 C.F.R.

§ 1201.111. If the initial decision is adverse to the employee,

she may then petition the full MSPB for review. See 5 U.S.C.

§ 7701(e). If the full MSPB denies the petition for review, the

initial decision becomes the final decision. See 5 C.F.R.

§ 1201.113(b).

“An employee who is dissatisfied with the MSPB’s

decision is entitled to judicial review in the United States

Court of Appeals for the Federal Circuit.” Elgin v. Dep’t of

10
Treasury, 132 S. Ct. 2126, 2130 (2012); see also 5 U.S.C.

§ 7703(b)(1)(A). Generally, the Federal Circuit “has exclusive

jurisdiction over appeals from a final decision of the MSPB.”

Elgin, 132 S. Ct. at 2131 (internal quotation marks omitted).

There is an exception that is relevant here: if the MSPB upholds

the agency’s personnel action in a mixed case, “[t]he employee

may appeal [the] MSPB decision to either the U.S. Court of

Appeals for the Federal Circuit or the appropriate federal

district court.” Pueschel v. Peters, 577 F.3d 558, 563 (4th

Cir. 2009) (emphasis supplied) (citing 5 U.S.C. § 7703); see

also Kloeckner, 133 S. Ct. at 604. But we have held, “If the

employee pursues the mixed case in the Federal Circuit, then she

abandons her discrimination claims because the Federal Circuit

lacks jurisdiction to entertain discrimination claims.”

Pueschel, 577 F.3d at 563.

A.

It is well established that the federal district

courts possess authority to review “mixed case” appeals from

MSPB decisions. See Kloeckner, 133 S. Ct. at 604 (citing 5

U.S.C. §§ 7703(b)(2), 7702(a)(1)); Pueschel, 577 F.3d at 563.

The district court’s conclusion does not deny this proposition;

rather, it rests on Bolton’s waiver of the right to seek such

review.

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 “[W]aiver is the intentional relinquishment or

abandonment of a known right.” Wood v. Crane Co., 764 F.3d 316,

326 n.9 (4th Cir. 2014) (emphasis supplied) (quoting United

States v. Olano, 507 U.S. 725, 733 (1993)); see also Johnson v.

Zerbst, 304 U.S. 458, 464 (1938); Little Beaver Enters. v.

Humphreys Rys., Inc., 719 F.2d 75, 79 (4th Cir. 1983)

(explaining that waiver is effective “if the acts or conduct of

one party evidences an intention to” give up certain rights

(emphasis supplied)).

The district court relied on two distinct actions to

conclude that Bolton waived her right to pursue her

discrimination claims in the district court: (1) the filing of

her appeal in the Federal Circuit, and (2) her representations

made on the Federal Circuit’s “Statement Concerning

Discrimination,” also known as “Form 10.” We disagree that

these actions demonstrated an intentional relinquishment of

Bolton’s right to district court review.

1.

Federal Circuit Appeal

The district court’s decision that Bolton waived

review of her mixed case in district court relied heavily on

this court’s decision in Pueschel v. Peters, 577 F.3d 558 (4th

Cir. 2009). There we held, “If the employee pursues [a] mixed

case in the Federal Circuit, then she abandons her

12
discrimination claims because the Federal Circuit lacks

jurisdiction to entertain discrimination claims.” Id. at 562;

see also Williams v. Dep’t of the Army, 715 F.2d 1485, 1490

(Fed. Cir. 1983). We also stated that a petitioner “cannot

create a superficial distinction between her claims that have

gone before the Federal Circuit and the district courts [when]

they arise out of the same set of facts.” Pueschel, 577 F.3d at

564.

But the case at hand is markedly different than

Pueschel. Deborah Pueschel, the erstwhile employee, was

terminated and denied the opportunity to buy back annual leave

from her employer. She pursued a mixed case with the MSPB.

There, she raised a discrimination defense, but the MSPB

rejected it and upheld the termination. See Pueschel, 577 F.3d

at 563. Then Pueschel, pursuing her non-discrimination claims,

appealed that decision to the Federal Circuit. See id. After a

decision on the merits from the Federal Circuit, Pueschel then

pursued her disability-based discrimination claims in the

Eastern District of Virginia. See id. at 564. Thus, Pueschel

herself “bifurcate[d]” her claims by filing an appeal from her

mixed case in the Federal Circuit and separately pursuing her

discrimination claims in district court. Id. In other words,

Pueschel sought “a second bite at the apple” on her

discrimination claims. Id. (internal quotation marks omitted).

13
 Here, in contrast, the MSPB itself bifurcated Bolton’s

claim, and Bolton did not wait for a decision from the Federal

Circuit, but rather, voluntarily dismissed it after she filed

her district court action. Moreover, Bolton made numerous

filings in both the MSPB and Federal Circuit, explaining that

she did not intend for the claims to be separate and that she

wanted to preserve review of her individual case. See, e.g.,

J.A. 144 (March 26, 2012 filing with MSPB: “[Bolton] did not

file a . . . request for [regulation] review, at least not

consciously.”); id. (same: “Bolton has in no way abandoned her

right to have proper litigation of her prohibited personnel

practices claim in her individual case.”); id. at 117 (June 12,

2012 filing with MSPB: requesting an extension of time to file a

petition for review of the individual case “in order to avoid

duplication” with the regulation-review case); id. at 202 (July

15, 2013 filing with Federal Circuit: “Bolton respectfully

requests the court . . . to suspend the [briefing] schedule

. . . at least until the M[SPB] issues a decision in [the

individual case]”); id. at 228 (May 13, 2015 brief filed in

Federal Circuit: “The motion [for notice to OPM] did not assert

that the OPM regulations were invalid.”); id. at 229 (same:

“[T]he merits of [Bolton’s arguments] are in no way before this

court.”).

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 Furthermore, the government agencies involved have

sent mixed signals to Bolton. For example, Appellees admitted

“judicial review would be available in district court to

challenge . . . the [MSPB]’s review of [her] mixed case against

SSA,” despite the fact that she had already filed the Federal

Circuit appeal. J.A. 278 n.7; see also id. at 218. And on

April 2, 2013, 14 months after the MSPB itself docketed the

regulation review case separately, the MSPB then turned around

and said it could not review her claim because the regulation

review issue “ha[d] been reached . . . in her individual [MSPB]

appeal.” Id. at 190. In order to preserve her appeal of that

issue, however, Bolton was required to file an appeal to the

Federal Circuit within 60 days. See 5 U.S.C. § 7703(b)(1)(A)

(“Notwithstanding any other provision of law, any petition for

review shall be filed within 60 days after [MSPB] issues notice

of the final order or decision . . . .”).

In short, Bolton was between a rock and a hard place:

she could file her appeal with the Federal Circuit and risk

losing her discrimination claims (which had not even been

finalized yet), or she could wait until the final decision in

the individual case and potentially lose her opportunity to

appeal the regulation-review issue. And it was the Government

15
who put her in this position. Pueschel simply did not

contemplate this type of situation. 2

Appellees understandably rely on Pueschel’s admonition

that a plaintiff cannot create a “superficial distinction”

between the Federal Circuit and district court claims when they

“arise out of the same facts.” Pueschel, 577 F.3d at 564. But

this case presents no “superficial distinction.” Rather, it is

a distinction created by the administrative body that reviewed

the claims. No case relied on by Appellees possesses this

unique fact. See, e.g., Chappell v. Chao, 388 F.3d 1373, 1375-

76 (11th Cir. 2004) (employee filed a mixed case appeal with the

MSPB; while it was pending, he filed separate discrimination

action in district court based on the same conduct; after that,

he appealed the MSPB decision to the Federal Circuit); McAdams

2
To make matters worse, at oral argument, the Government
stated that Bolton’s two cases were “effectively merged” and
“reconsolidate[d]” before she appealed to the Federal Circuit;
thus, she could have chosen not to appeal the regulation-review
case to the Federal Circuit but still somehow preserve her
review of that case. Oral Argument at 32:15-32:37, 33:20-33:30,
Bolton v. Social Security Admin., No. 15-1907 (Dec. 6, 2016),
available at http://www.ca4.uscourts.gov/oral-argument/listen-
to-oral-arguments. But the Government could not demonstrate
that Bolton received explicit notice of formal reconsolidation.
In any event, the deadline for filing a Federal Circuit appeal
of the regulation-review case expired before the MSPB issued its
final decision in the individual case. Therefore, as previously
noted, if Bolton had waited to appeal the regulation-review
issues in the district court, she risked losing her regulation-
review appeal in the Federal Circuit. See 5 U.S.C.
§ 7703(b)(1)(A).

16
v. Reno, 64 F.3d 1137, 1140 (8th Cir. 1995) (after successfully

winning at the MSPB level, employee sought additional Title VII

damages in the district court); Smith v. Horner, 846 F.2d 1521,

1521 (D.C. Cir. 1988) (employee filed denial of disability claim

with MSPB and appealed to Federal Circuit; after adverse

decision there, he filed a discrimination action in district

court).

In all, Bolton did not “pursue[] the mixed case in the

Federal Circuit,” nor did she “cho[o]se to split” her

discrimination claims. Pueschel, 577 F.3d at 563 (internal

quotation marks omitted). Therefore, Pueschel does not support

the conclusion that Bolton intentionally abandoned review of her

discrimination claims.

2.

Form 10

The district court accurately acknowledged that “the

Federal Circuit requires . . . employees [appealing MSPB cases

to the Federal Circuit] to certify, by completing Federal

Circuit Claim Form 10, either that no claim of discrimination

has been or will be made, or that any such claim has been

abandoned.” Bolton, 2015 WL 2452829, at *2. Bolton filed the

Form 10, but a close look at the form reveals she did not

certify “no claim of discrimination has been or will be made,”

17
nor did she certify that her discrimination claim “has been

abandoned.”

For example, Bolton checked the line next to the

following statement: “No claim of discrimination by reason of

race, sex, age, national origin, or handicapped condition has

been or will be made in this case.” J.A. 201 (emphasis

supplied). Indeed, “this case,” i.e., the case being appealed

to the Federal Circuit, stemmed from a request for review of

cross-agency OPM regulations -- not discrimination -- and the

briefing only challenged the MSPB’s failure to explain its

decision in the regulation-review case.

Also on the Form 10, Bolton answered “No” to the

question: “Have you filed a discrimination case in a United

States district court from the [MSPB]’s . . . decision?” J.A.

201. She did not check the blank next to this statement: “Any

claim of discrimination . . . raised before and decided by

[MSPB] has been abandoned or will not be raised or continued in

this or any other court.” Id.

None of these indications on the Form 10 demonstrate

that Bolton intentionally relinquished her discrimination claims

by appealing the regulation-review case to the Federal Circuit.

Cf. De Santis v. Merit Sys. Prot. Bd., 826 F.3d 1369, 1372 n.2

(Fed. Cir. 2016) (noting that the employee “no longer ha[d] a

discrimination claim” where “he did not pursue his

18
discrimination claim with the [MSPB], and he informed th[e]

[Federal Circuit], in his Form 10 filing, that no claim of age

discrimination ‘has been or will be made in this case’”

(citation omitted) (emphasis supplied)); Stribling v. Dep’t of

Educ., 309 F. App’x 396, 398 (Fed. Cir. 2009) (explaining that

employee “explicitly waived her discrimination claims by

completing this court’s . . . Form 10[], and checking the box

stating that ‘Any claim of discrimination . . . raised before

and decided by the M[SPB] has been abandoned or will not be

raised or continued in this or any other court’”). We note,

however, that as a rule, a litigant cannot waive a

discrimination claim solely by checking a certain box on the

Form 10, nor can he or she avoid waiver by doing so. Our

holding is simply that, on the strange facts of this particular

case, the district court’s reliance on Bolton’s Form 10 to reach

its waiver conclusion was inappropriate, as her discrimination

claims were simply not part of the “case” being appealed to the

Federal Circuit. See Pueschel, 577 F.3d at 564.

Bolton’s Form 10 likewise fails to demonstrate waiver

of her discrimination claims. Therefore, we reverse the

district court’s holding that Bolton waived her right to review

of her discrimination claims and that it lacked subject matter

jurisdiction over those claims.

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 B.

Relying on its conclusion that it lacked jurisdiction

over the discrimination claims (Counts One and Two), the

district court proceeded to dismiss the other six counts in

Bolton’s amended complaint, explaining, “[G]iven that this Court

lacks subject-matter jurisdiction over [Bolton’s] discrimination

claims (the only basis on which an employee may appeal a

decision of the MSPB to a federal district court), it lacks

subject-matter jurisdiction over her entire action challenging

her demotion by SSA.” Bolton, 2015 WL 2452829, at *5. Because

we have reversed this conclusion, we remand for consideration of

Counts Three through Seven.

As to Count Eight, Bolton contends the district court

possessed jurisdiction only on the basis of the Administrative

Procedure Act (“APA”). See Appellant’s Br. 1. The APA provides

in relevant part, “A person suffering legal wrong because of

agency action, or adversely affected or aggrieved by agency

action . . . is entitled to judicial review thereof.” 5 U.S.C.

§ 702. However, “competitive service employees, who are given

review rights by [the CSRA] cannot expand these rights by resort

to judicial review outside of the CSRA scheme.” Elgin, 132 S.

Ct. at 2133 (emphasis omitted); see also Hall v. Clinton, 235

F.3d 202, 206 (4th Cir. 2000) (“[T]he comprehensive grievance

procedures of the CSRA implicitly repealed all other then-

20
existing statutory rights of federal employees regarding

personnel decisions.” (footnote omitted)). Bolton has already

taken advantage of the CSRA scheme, as Count Eight is basically

the same claim raised in the regulation-review case and

voluntarily dismissed in the Federal Circuit. Therefore, the

APA cannot provide a basis for review of Count Eight, and we

affirm the dismissal of that claim.

III.

For the foregoing reasons, we affirm the district

court’s dismissal of Count Eight of Bolton’s amended complaint.

We reverse its dismissal of Bolton’s remaining seven counts, and

remand for further proceedings on those claims.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

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