United States Court of Appeals
for the Federal Circuit
__________________________
MARISA E. DIGGS,
Petitioner,
v.
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT,
Respondent.
__________________________
2010-3193
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DC-0752-09-0594-I-1.
___________________________
Decided: November 1, 2011
___________________________
MARISA E. DIGGS, of Washington, DC, pro se.
KATY M. BARTELMA, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY,
JR., Assistant Director. Of counsel was MATTHEW H.
SOLOMSON, Trial Attorney.
__________________________
DIGGS v. HUD 2
Before DYK, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
Marisa E. Diggs petitions for review of the final deci-
sion of the Merit Systems Protection Board (the “Board”)
affirming Ms. Diggs’s removal from the Department of
Housing and Urban Development (the “agency”) for
misconduct. Diggs v. Dep’t of Hous. & Urban Dev., 2010
M.S.P.B. 151 (Jul. 22, 2010). Because Ms. Diggs’s petition
presents a “mixed case” involving a claim of discrimina-
tion, we dismiss for lack of jurisdiction.
BACKGROUND
The agency removed Ms. Diggs from her GS-343-09
Management Analyst Position based on two charges: (1)
rude, disruptive, aggressive, or intimidating behavior;
and (2) misrepresentation. Both charges stemmed from
Ms. Diggs’s conduct on January 17, 2008. As to the first
charge, the agency alleged that Ms. Diggs verbally be-
rated her supervisor, Ms. Charlene Dean, approached her
in a hostile manner, and told Ms. Dean that she “would be
sorry.” The agency further alleged that, later that day,
Ms. Diggs spoke to another supervisor, Ms. Renee C.
Brown, in an agitated manner with her voice raised, was
rude and threatening to a coworker, and disobeyed an
instruction from Ms. Brown. With respect to the second
charge, the agency alleged that Ms. Diggs misrepresented
some of these events to other agency officials.
Ms. Diggs appealed her removal to the Board, denying
the charges in their entirety. She also alleged that the
agency removed her in retaliation for prior Equal Em-
ployment Opportunity (“EEO”) activity, specifically ear-
lier claims of sex discrimination. After a hearing, the
Administrative Judge (“AJ”) issued an initial decision
affirming the agency’s removal action. The AJ found that
3 DIGGS v. HUD
the agency proved its charges, the penalty was reason-
able, and Ms. Diggs failed to prove her affirmative de-
fense of retaliation.
Ms. Diggs filed a petition for review, requesting that
the full Board reconsider the AJ’s Initial Decision.
Though the Board concluded that the petition did not
meet the criteria for review, it reopened the case on its
own motion pursuant to 5 C.F.R. § 1201.118. Finding no
error in the Initial Decision, the Board affirmed.
On August 31, 2010, Ms. Diggs filed a petition with
the Equal Employment Opportunity Commission
(“EEOC”) seeking review of the Board’s final decision. In
her petition, Ms. Diggs argued that her removal was in
retaliation for complaints of sex discrimination she regis-
tered with the EEOC in late 2007. Upon review of the
record, the EEOC found that, though Ms. Diggs had
established a prima facie case of discriminatory retalia-
tion given her record of prior protected activity, the evi-
dence supported the conclusion that her removal was not
motivated by retaliatory animus.
Ms. Diggs also appealed the Board’s final decision to
this court. Upon initial review of Ms. Diggs’s appeal, we
determined that, given recent developments in the law,
there was some question regarding our jurisdiction to
consider claims from federal-sector employees who assert
claims of retaliation based on earlier EEO activity. Given
our obligation to assess the contours of federal jurisdiction
in every case, we entered an order inviting supplemental
briefing from the parties regarding this important ques-
tion. Diggs v. U.S. Dep’t of Hous. & Urban Dev., No. 2010-
3193, Dkt. No. 26 (Fed. Cir. Jul. 29, 2011) (order inviting
further briefing). Both parties filed briefs asking this
DIGGS v. HUD 4
court to exercise jurisdiction over Ms. Diggs’s appeal. 1
Id., Dkt. Nos. 31, 32. Though we have considered the
parties’ submissions carefully, for the reasons set forth
below, we disagree with both Ms. Diggs and the govern-
ment regarding the scope of our jurisdiction.
DISCUSSION
Before we can reach the merits of a case, we must as-
sess whether we may exercise subject matter jurisdiction,
even if we make that assessment on a sua sponte basis.
Int’l Elec. Tech. Corp. v. Hughes Aircraft Co., 476 F.3d
1329, 1330 (Fed. Cir. 2007). Although neither party
initially raised the issue, subject matter jurisdiction
cannot be conferred by waiver, estoppel, or consent. See
Brazos Elec. Power Coop. v. U.S. Dep’t of Agric., 144 F.3d
784, 788 (Fed. Cir. 1998) (citing Ins. Corp. of Ir., Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
(1982)).
This court has limited jurisdiction over appeals from
the Board. In particular, we lack jurisdiction over
“mixed” cases – i.e., those involving both: (1) “a specific
type of action against an agency which may be appealed
to the [Board]”; and (2) “an allegation in the nature of an
affirmative defense that a basis for the action was dis-
crimination within one of the categories” listed in 5 U.S.C.
§ 7702(a)(1)(B). 2 Williams v. Dep’t of Army, 715 F.2d
1 Because Ms. Diggs is appearing before the
court pro se, the court initially appointed counsel to assist
her in complying with her obligation to file a timely brief
on the jurisdictional question posed. Ms. Diggs objected
to the appointment of counsel, however, and made it clear
that she preferred to proceed pro se. The court honored
Ms. Diggs’s request and vacated the order appointing
counsel to assist her.
2 In a mixed case involving both an adverse ac-
tion claim and a discrimination claim, we have jurisdic-
5 DIGGS v. HUD
1485, 1487 (Fed. Cir. 1983) (en banc) (emphasis in origi-
nal) (“[Section] 7702 . . . defines the types of ‘cases of
discrimination’ which are excluded from the jurisdiction of
this court . . . .”). Section 7702(a)(1)(B), in turn, sets forth
the following categories of discrimination:
(B) . . . discrimination prohibited by–
(i) section 717 of the Civil Rights Act of 1964
(42 U.S.C. 2000e–16),
(ii) section 6(d) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 206 (d)),
(iii) section 501 of the Rehabilitation Act of
1973 (29 U.S.C. 791),
(iv) sections 12 and 15 of the Age Discrimina-
tion in Employment Act of 1967 (29 U.S.C. 631,
633a), or
(v) any rule, regulation, or policy directive pre-
scribed under any provision of law described in
clauses (i) through (iv) of this subparagraph . . . .
5 U.S.C. § 7702(a)(1)(B). Because Ms. Diggs’s removal
from the agency was an action appealable to the Board,
see 5 U.S.C. § 7701; 5 C.F.R. § 1201.3, our jurisdiction
turns on whether she alleged that one of the above-listed
forms of discrimination was the basis for her removal. We
find that she did.
As an affirmative defense, Ms. Diggs alleged that the
agency removed her in retaliation for prior EEO activity,
tion over the adverse action claim if “any claim of dis-
crimination . . . raised before the Board has been aban-
doned and will not be raised or continued in this or any
other court.” Fed. Cir. R. 15(c). Ms. Diggs has not aban-
doned her discrimination claim; it is, in fact, her asserted
defense to the misconduct charges against her.
DIGGS v. HUD 6
which included complaints of sex discrimination. It is
well-established that Section 704 of Title VII (codified in
42 U.S.C. § 2000e-3) prohibits private employers from
retaliating against an employee who files an EEO com-
plaint premised on employment practices prohibited by
Title VII. See, e.g., Washington v. Garrett, 10 F.3d 1421,
1435 (9th Cir. 1993); Shirley v. Chrysler First, Inc., 970
F.2d 39, 42-43 (5th Cir. 1992); see also 42 U.S.C. § 2000e-
3(a) (“It shall be an unlawful employment practice for an
employer to discriminate against any of his employees or
applicants for employment . . . because he has opposed
any practice made an unlawful employment practice by
this subchapter . . . .”). It is less clear, however, whether
Title VII’s federal-sector provision, 5 U.S.C. § 717, incor-
porating 42 U.S.C. § 2000e-16, gives rise to a private right
of action when the government engages in such retalia-
tion. If it does, Ms. Diggs’s allegation that she was re-
moved in retaliation for EEO activity constitutes
discrimination prohibited by Section 717 of Title VII and,
thus, renders her petition a mixed case over which we
lack jurisdiction under 7702(a)(1)(B)(i). See Williams, 715
F.2d at 1487.
While two non-binding decisions of ours have reached
conflicting results, 3 our sister circuits to have addressed
3 In Cruz v. Dep’t of Navy, we rejected the govern-
ment’s “conten[tion] that reprisal for EEO involvement is
not discrimination encompassed within the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-16,” but this decision was
vacated and reversed en banc. 906 F.2d 689, 690-91 (Fed.
Cir. 1990), rev’d en banc on other grounds 934 F.2d 1240
(Fed. Cir. 1990). A decade later, however, we reached a
contrary result, holding that, notwithstanding petitioner’s
claim that an agency retaliated “against her for having
filed an EEO complaint,” petitioner failed to “allege that a
basis for the agency’s action was discrimination within
one of the categories listed in § 7702.” Baker v. Dep’t of
7 DIGGS v. HUD
the issue agree that § 717 prohibits the government from
engaging in retaliation based on the assertion of a claim
premised on discrimination prohibited by Title VII. See
Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011) (“Al-
though neither the Supreme Court nor our court has
squarely addressed whether 2000e-16(a) prohibits retalia-
tion, . . . reading [42 U.S.C. §§ 2000e-16(d) and 2000e-5(g)]
together leaves us with little doubt that Congress ’incor-
porated the protections against retaliation’ afforded to
private employees by 2000e-3(a).” (quotations and cita-
tions omitted)); Gomez-Perez v. Potter, 476 F.3d 54, 60 (1st
Cir. 2007) (“In Title VII, Congress intended for 42 U.S.C.
§ 2000e-16 . . . to incorporate the provisions applicable to
the private sector, including the private-sector anti-
retaliation provision.”), rev'd on other grounds, 553 U.S.
474 (2008); Porter v. Adams, 639 F.2d 273, 277-278 (5th
Cir. 1981) (“[B]y drafting § 717 to prohibit ‘any discrimi-
nation,’ Congress intended to bar the federal government
from engaging in all those forms of discrimination identi-
fied in §§ 703 and 704 [the private-sector anti-retaliation
provision], and others as well.”); Ayon v. Sampson, 547
F.2d 446, 450 (9th Cir. 1976) (“We conclude that in enact-
ing § 2000e-16, Congress intended to, and did incorporate
into that section the provisions of the Civil Rights Act
prohibiting harassment or retaliation for the exercise of
those remedial rights established by the Act.”).
The Supreme Court, moreover, reached a similar re-
sult when interpreting the federal-sector provision of the
Age Discrimination in Employment Act of 1967 (“ADEA”),
which “was patterned directly after Title VII’s federal-
sector discrimination” ban. See Gomez-Perez, 553 U.S. at
487, 491 (internal quotation marks omitted) (holding that
Interior, No. 00-3174, 2000 WL 1681219, at *3 (Fed. Cir.
Nov. 8, 2000).
DIGGS v. HUD 8
the ADEA’s parallel provision “prohibits retaliation
against a federal employee who complains of age dis-
crimination”). And, while it expressly declined to decide
“whether Title VII bans retaliation in federal employ-
ment,” the Supreme Court noted that, “[l]ike the ADEA’s
federal-sector provision, Title VII’s federal-sector provi-
sion[] contains a broad prohibition of ‘discrimination,’
rather than a list of specific prohibited practices.” Id. at
487, 488 n.4; compare 42 U.S.C. § 2000e-16(a) (personnel
actions affecting federal employees “shall be made free
from any discrimination based on race, color, religion, sex,
or national origin”), with 29 U.S.C. § 633a(a) (personnel
actions affecting federal employees who are at least 40
years of age “shall be made free from any discrimination
based on age”).
Thus, our sister circuits and the Supreme Court have
found that, when Congress broadly drafts provisions
prohibiting “any discrimination” by the federal govern-
ment, it intends to bar the government from engaging in,
among other practices applicable to private employers,
retaliation against an employee who complains of illegal
discrimination. We agree, as apparently did the EEOC,
when it adjudicated Ms. Diggs’s retaliation claim. 4 Ac-
cordingly, because we find that Ms. Diggs’s retaliation
claim—premised as it was on her prior EEO activity—is a
discrimination claim prohibited by Ҥ 717 of the Civil
Rights Act of 1964,” we find that her claims present a
4 Notably, after the EEOC adjudicated her
claim, Ms. Diggs was notified of her right to file a civil
action “in an appropriate United States District Court” in
order to challenge the EEOC’s conclusion.
9 DIGGS v. HUD
mixed case which falls outside our jurisdictional reach.
See 5 U.S.C. § 7702(a)(1)(B). 5
The parties’ respective arguments urging that we ex-
ercise jurisdiction in this matter do not persuade us to the
contrary. Ms. Diggs argues that, by accepting her case for
filing and placing it on the calendar for resolution, this
court necessarily has already exercised jurisdiction over
her claim and may not now revisit that conclusion. Peti-
tioner’s Supp. Br. 2-5. Indeed, Ms. Diggs contends that
this court’s inquiry into the scope of its own jurisdiction is
being conducted solely so as to delay resolution of her
appeal, particularly because the government does not
contest our authority to proceed. The government, on the
other hand, cites to our decision in Baker v. Dep’t of
Interior, supra n.2, for the proposition that a reprisal
claim, even when premised on prior EEO activity, is not a
“discrimination claim” listed in § 7702 and is, accordingly,
not excluded from our jurisdiction. Neither contention
changes our mind. 6
As for Ms. Diggs’s assertions, while we understand
how a pro se claimant might be surprised that a jurisdic-
tional bar could be raised for the first time long after her
appeal was docketed, it is the job of the panel who as-
sesses the merits of an action, and not the Clerk’s office
5 In her Supplemental Brief, Ms. Diggs con-
firms our characterization of her claim: “Petitioner con-
tends that her case #2010-3193 is an employment matter
and was appealed to the MSPB and her affirmative
defense was ‘retaliation for prior EEO activity.’”
6 The government also discounts the EEOC’s
resolution of Ms. Diggs’s retaliation claim as based on a
mistaken view of the law in this area. While the EEOC’s
interpretation of its own jurisdiction is not determinative
of ours, it is notable that the EEOC also characterizes
federal-sector retaliation claims as claims of discrimina-
tion under Title VII.
DIGGS v. HUD 10
on intake or the parties in their briefing, to police its own
jurisdiction. As noted earlier, moreover, neither the
parties’ consent to our jurisdiction nor the passage of time
while a matter is pending can confer jurisdiction on this
court where our jurisdiction is statutorily barred. See
Dunklebarger v. Merit Sys. Prot. Bd., 130 F.3d 1476, 1480
(Fed. Cir. 1997) (citing Ins. Corp. of Ir., Ltd. v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 702 (1982)) (“It is
well settled that no action of the parties can confer sub-
ject-matter jurisdiction on a tribunal and that the princi-
ples of estoppel do not apply to vest subject-matter
jurisdiction where Congress has not done so.”).
The government’s reliance on Baker is similarly un-
persuasive. First, Baker was a nonprecedential decision,
which is not binding on this panel. More importantly, the
rationale employed in Baker is precisely that urged by the
dissent and rejected by the majority in Gomez-Perez, 553
U.S. at 500-06 (Roberts, C.J., dissenting). 7 Despite the
different statutory scheme at issue there, we find no
sound basis upon which to distinguish the Supreme
Court’s analysis in Gomez-Perez from the circumstances
presented here. We also decline to create a circuit split
7 The government also cites Webster v. Dep’t of
the Army, 911 F.2d 679, 688-89 (Fed. Cir. 1990) and
Warren v. Dep’t of the Army, 804 F.2d 654, 656-58 (Fed.
Cir. 1986) in support of its claim that we possess jurisdic-
tion to consider this matter. Neither case supports the
position the government urges here, however, because
neither involved allegations of reprisal for prior EEO
activity. Webster involved alleged retaliation for union
activities and Warren involved retaliation for whistle-
blower activity. Neither form of retaliation is expressly
excluded from the scope of our jurisdiction by § 7702
because neither constitutes discrimination prohibited by
the statutory provisions enumerated therein.
11 DIGGS v. HUD
regarding the scope of 5 U.S.C. § 717 and 42 U.S.C.
§ 2000e-16.
For all of these reasons, we hold that affirmative de-
fenses of reprisal for prior EEO activity are assertion of
discrimination under Title VII and within the meaning of
5 U.S.C. § 7702. Accordingly, we dismiss Ms. Diggs’s
appeal for lack of jurisdiction because it presents a “mixed
case” which we may not review.
DISMISSED
COSTS
Each party shall bear its own costs.