[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ OCTOBER 28, 2004
THOMAS K. KAHN
No. 03-14750 CLERK
________________________
D. C. Docket No. 01-02070-CV-CC-1
RICHARD CHAPPELL, SR.,
Plaintiff-Appellant,
versus
ELAINE L. CHAO, Secretary,
Department of Labor,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 28, 2004)
Before BIRCH, BARKETT and COX, Circuit Judges.
BARKETT, Circuit Judge:
Richard Chappell appeals the grant of summary judgment in favor of the
Department Of Labor (DOL) for lack of subject matter jurisdiction in this
employment discrimination case. Chappell filed several administrative complaints
against his supervisors in the Department of Labor alleging discriminatory
treatment based on race and age, and retaliation for filing complaints on his own
behalf and affidavits in support of other employees. When the Department of
Labor’s Equal Employment Office ruled against him, he appealed to federal district
court. At the same time, he appealed his termination claim to the United States
Court of Appeals for the Federal Circuit. The 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. Because Chappell elected to appeal his termination
claim to the Federal Circuit, which disposed of it, and his discrimination and
termination claims were based on the same facts, we affirm the dismissal of
Chappell’s suit in federal district court.
BACKGROUND
Chappell filed his first administrative complaint with the Department of
Labor’s Equal Employment Office (EEO) in March 1997, alleging disparate
treatment based on race in violation of Title VII of the Civil Rights Act, 42 U.S.C.
2
§§ 2000e et seq. He claims that he was reassigned to another post shortly
thereafter but given inadequate training and resources to perform satisfactorily at
his new position. Over the next three years, he filed several additional complaints
with the EEO, alleging discrimination based on race and age, as well as retaliation
for filing previous EEO complaints and helping other employees with their
complaints. In June 2000, he requested a hearing before an administrative law
judge with the Equal Employment Opportunity Commission (EEOC).
While Chappell’s EEO complaints were pending, he was placed on a
Performance Improvement Plan (PIP) in January 2000. When he failed to meet the
requirements of the PIP, he was terminated in July 2000. On July 28, 2000,
although his discrimination claims were still being considered by the EEOC,
Chappell filed a parallel appeal of his termination to the Merit Systems Protection
Board (MSPB), an administrative agency that has jurisdiction over specified
“adverse employment actions” affecting federal civil servants, including
terminations, demotions, and suspensions. See 5 U.S.C. § 7512.1 When a federal
employee has been subject to one of these adverse actions, he is entitled to appeal
to the MSPB. See 5 U.S.C. § 7513(d). Although the MSPB does not have
1
Congress created the MSPB in 1978 as part of the Civil Service Act. See 5 U.S.C. §
1201 et seq. MSPB review of adverse employment actions was designed to protect federal
employees from widespread politically motivated terminations whenever the party in power
changed hands. See Sloan v. West, 140 F.3d 1255, 1258 (9th Cir. 1998).
3
jurisdiction over discrimination claims that are not related to adverse actions,2 it
can entertain appeals in “mixed cases,” where an employee alleges a Title VII
violation in relation to one of the specified adverse employment actions. See 5
U.S.C. § 7702; 29 C.F.R. § 1614.302; Sloan v. West, 140 F.3d 1255, 1259 (9th Cir.
1998).3 In a mixed case, a final decision from the MSPB exhausts an employee’s
administrative remedies and allows him to seek judicial review. See McAdams v.
Reno, 64 F.3d 1137, 1141 (8th Cir. 1995). In the MSPB appeal, Chappell
challenged the fairness of the performance reviews and alleged that his termination
was based in part on discrimination and retaliation for formal EEO complaints
regarding the PIP.
Before the MSPB entered its order in his agency appeal of the termination,
the EEOC, on May 1, 2001, found that Chappell had not made an adequate
showing to establish his discrimination claims. Pursuant to 42 U.S.C. § 2000e-
5(f)(1), which gave him the right to file a civil action in federal district court within
2
Federal employees with Title VII claims that are not mixed with adverse actions within
the MSPB’s jurisdiction must file an initial complaint with their agency EEO to pursue their
claims. See Sloan, 140 F.3d at 1259. After the employee exhausts administrative remedies, she
may file a civil action in federal district court. See 42 U.S.C. § 2000e-5; E.E.O.C. v. Joe’s Stone
Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002).
3
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, handicap or age.” 29 C.F.R. § 1614.302.
4
90 days of a decision by the EEOC, Chappell filed an action in the Northern
District of Georgia on August 3, 2001, which forms the basis of this appeal.
After Chappell filed this suit, the MSPB appeals board issued a final order
upholding Chappell’s termination on September 28, 2001. The MSPB order
informed Chappell that he had three options for appeal: (1) He could seek EEOC
review of his discrimination claims pursuant to 5 U.S.C. § 7702(b)(1); (2) He
could file a civil action in federal district court on both his discrimination and his
termination claims under 5 U.S.C. § 7703(b)(2); or (3) He could request the United
States Court of Appeals for the Federal Circuit to review the termination decision,
but he could only pursue this avenue if he did not seek review of his discrimination
claims, because the Federal Circuit does not have jurisdiction to hear
discrimination appeals. See 5 U.S.C. § 7703(b)(1)-(2).4 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.
In November 2001, Chappell elected to appeal the MSPB decision
4
See also Williams v. Dept. of the Army, 715 F.2d 1485, 1491 (Fed. Cir. 1983)
(“[W]here jurisdiction lies in the district court under 5 U.S.C. § 7703(b)(2), the entire action falls
within the jurisdiction of that court and this court has no jurisdiction, under 5 U.S.C. §
7703(b)(1), over such cases.”).
5
pertaining to his termination to the Federal Circuit. Upon filing a petition for
review of an MSPB final order, the Federal Circuit requires the filing of a
Statement Concerning Discrimination, which Chappell submitted through his
attorney. To complete the form, he had to select one of five statements to describe
his appeal. He checked a box in front of the following statement: “Any claim of
discrimination by reason of race, sex, age, national origin, or handicapped
condition raised before the employing agency or the Merit Systems Protection
Board or arbitrator has been abandoned or will not be raised or continued in this or
any other court.” Nothwithstanding the fact that the form itself strictly prohibited
“alter[ing] or add[ing] to any of the statements,” Chappell’s attorney submitted the
form with a line drawn through the words “or any other” between “this” and
“court,” so that the sentence read: “[a]ny claim of discrimination by reason of race,
sex, age, national origin, or handicapped condition raised before the employing
agency or the Merit Systems Protection Board or arbitrator has been abandoned or
will not be raised or continued in this or any other court.” The attorney’s initials
were written below the crossed-out words.
In January 2002, while the Federal Circuit appeal of his termination was
pending, Chappell attempted to amend his petition in the district court proceeding
in Georgia, to add his termination claims to the existing discrimination suit. The
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court rejected the attempt because Chappell never filed a motion for leave to
amend. Although the court indicated that it would consider such a motion if
Chappell wanted to file the petition again, Chappell never did so. Instead,
Chappell moved the Federal Circuit to transfer his termination claims to the district
court in Georgia. In July 2002, the Federal Circuit denied Chappell’s motion,
citing 28 U.S.C. § 1631, which permits transfer to a court in which the action could
have been brought “at the time it was filed or noticed.” Because the termination
claim would have been untimely if filed in district court at the time of Chappell’s
motion to transfer, the Federal Circuit denied the transfer. Thereafter, the Federal
Circuit dismissed Chappell’s termination appeal on the merits. The DOL then
moved for summary judgment on Chappell’s discrimination complaint in the
district court because it contained claims related to events already litigated in the
Federal Circuit. The district court granted summary judgment in favor of the DOL,
holding that it lacked subject matter jurisdiction over the case, and Chappell now
appeals.
DISCUSSION
Summary judgment decisions are reviewed de novo. Lucas v. W.W.
Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). We may affirm the district
court's decision for reasons different than those stated by the district court. See
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Securities & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 88 (1943) (stating that
the decision of the lower court must be affirmed if the result is correct even though
the lower court relied upon a wrong ground or gave a wrong reason); Lucas, 257
F.3d at 1256.
The Federal Circuit has held that a federal employee cannot split a mixed
case into discrimination and non-discrimination claims in order to pursue two
separate appeals from an MSPB final order. See Williams, 715 F.2d at 1490
(stating that “Congress did not direct or contemplate bifurcated review of any
mixed case,” and explaining that 5 U.S.C. § 7702, which gives the MSPB
jurisdiction over mixed cases, reflects the understanding that in mixed cases,
claims of adverse action and discrimination “will be two sides of the same question
and must be considered together”). Once an employee appeals a discrimination
claim to the district court, he or she may no longer go to the Federal Circuit to
appeal related adverse action claims. See id. (dismissing adverse action claims
because they could have been raised before the district court).
Similarly, the District of Columbia Circuit has held that an employee waives
discrimination claims by appealing to the Federal Circuit after an MSPB ruling on
a mixed appeal. In Smith v. Horner, 846 F.2d 1521, 1523 (D.C. Cir. 1988), the
court held that an employee waived the right to pursue his Title VII claims in
8
district court when he rejected an opportunity to transfer his claims to the district
court and misleadingly told the Federal Circuit that his “appeal involve[d] no claim
of discrimination and no claim of discrimination was raised before the agency or
before the [MSPB],” when he had a Title VII retaliation action pending in district
court. The court also remarked that even aside from this waiver, “Smith could
also be held precluded from litigating his Title VII claim because . . . . [he] had the
opportunity to litigate both claims in a court of competent jurisdiction (here, the
district court), but instead chose to split them.” Id. at 1524 n.3. See also Otiji v.
Heyman, 47 F.Supp.2d 6, 7 (D.D.C. 1998) (holding that an employee who had
raised mixed claims before the MSPB and then appealed to the Federal Circuit
waived his discrimination claims when he checked the first box on the Statement
Concerning Discrimination, stating that “[n]o claim of discrimination . . . has been
or will be made in this case”).5
The Eighth Circuit has analogously found that, at the administrative level, an
employee may waive discrimination claims by failing to include them in an MSPB
appeal based on “similar issues arising out of overlapping facts.” McAdams v.
5
In both Smith and Otiji, the courts found it significant that the employees had
attorneys. In Smith, the court noted that because the employee “was represented by counsel . . .
his response appears designed to circumvent the Federal Circuit’s effort to prevent litigants from
seeking, in this area of review of government personnel decision, ‘two bites at the apple.’” 846
F.2d at 1524. See also Otiji, 47 F.Supp.2d at 7.
9
Reno, 64 F.3d 1137, 1142-43 (8th Cir. 1995). In McAdams, a federal employee
who was fired brought a sex discrimination action in district court and also
appealed her demotion and termination to the MSPB. Id. at 1140-41. The district
court dismissed her discrimination action, holding that the claims should have been
included in her MSPB appeal. Id. at 1141. On appeal, McAdams argued that the
district court should have heard her discrimination claims because they were
unrelated to the discrimination claims she had raised before the MSPB. Id. at
1142. The Eighth Circuit rejected this argument, finding that all of her
discrimination claims were based on the same underlying facts.6 The court held
that by electing to proceed with an appeal to the MSPB, rather than the EEOC, the
employee had to bring all of her mixed claims there in order to exhaust her
administrative remedies and have the right to sue in district court. See id. Because
she did not, her discrimination claims were “abandoned” and could not be brought
in district court. Id.
In this circuit we have not addressed this issue. However, we are persuaded
by the Federal Circuit’s interpretation of the governing statutory scheme, and agree
6
“McAdams’ demotion and removal appeals to the MSPB included allegations of sex
discrimination and reprisal. She attached a copy of her EEO complaint to her demotion appeal.
Her removal appeal also included attachments related to charges of discrimination. Moreover,
her complaint in [the district court] action lists her demotion and removal as examples of the
discriminatory actions taken against her.” McAdams, 64 F.3d at 1142.
10
that the language, legislative history, and underlying policies of 5 U.S.C. § 7702
indicate that “Congress did not direct or contemplate bifurcated review of any
mixed case.” Williams, 715 F.2d at 1490. Because “the issues of a mixed case are
tied together for resolution at the same time,” id. at 1489,7 and because the Federal
Circuit does not have jurisdiction over appeals of mixed cases, see 5 U.S.C.
7703(b)(1), federal district court is the only forum in which a federal employee
may seek judicial review of a mixed case after a final order from the MSPB. We
are further persuaded by the D.C. Circuit and the Eighth Circuit that it necessarily
follows from this statutory scheme 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.
Accordingly, an employee who chooses to appeal an adverse action to the Federal
Circuit 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.
Although the district court has subject matter jurisdiction to consider
7
We also agree that this holds true both in administrative proceedings and for the
purposes of judicial review. See id. at 1490.
11
Chappell’s discrimination and termination claims,8 we conclude that Chappell
waived his right to proceed on his discrimination action in district court when he
elected to appeal his termination claim to the Federal Circuit, rather than bringing
his related discrimination and termination claims in one forum, as required. First,
although the MSPB order stated explicitly that Chappell could pursue both claims
only in district court, Chappell decided to appeal to the Federal Circuit, where he
could only appeal the termination decision. In addition, despite the suggestion of
the district court, he chose not to file a motion for leave to amend his district court
action to add an appeal of the MSPB decision. Similarly, when he attempted to
appeal his termination claims to the Federal Circuit, he submitted, through his
attorney, a form stating that he did not plan to pursue related discrimination claims
elsewhere. His attempts to alter that form despite instructions to the contrary
cannot be countenanced. See Otiji, 47 F.Supp.2d at 7 (“To hold otherwise,
especially where, as here, petitioner was represented by counsel, would be to
encourage tactics ‘designed to circumvent the Federal Circuit’s effort to prevent
8
Title VII gives the district court subject matter jurisdiction over federal employees’
employment discrimination claims when administrative remedies have been exhausted. See 42
U.S.C. 2000e-16(c); Brown v. General Servs. Admin., 425 U.S. 820, 832-33 (1976). The district
court also has jurisdiction to review a final order of the MSPB in a mixed case. See 5 U.S.C. §§
7702-7703. No statutory provision strips the district court of subject matter jurisdiction in a
mixed case like Chappell’s. Although the federal district court had subject matter jurisdiction
over all of Chappell’s claims once the MSPB issued its final order, Chappell waived his right to
file in that court by proceeding in the Federal Circuit.
12
litigants from seeking, in this area of review of government personnel decision,
“two bites of the apple.”’”) (quoting Smith, 846 F.2d at 1524). Thus, Chappell had
ample notice of the consequences of filing his appeal in the Federal Circuit and
numerous opportunities to avoid those consequences.
This waiver applies even though Chappell contends he raised different
discrimination claims before the MSPB and the district court. Chappell relies on
an untenable distinction when he claims that he should be able to proceed with his
discrimination claims in district court because the discrimination claims he brought
before the MSPB were unrelated to those he brought in district court. As in
McAdams, Chappell’s “various administrative filings raised related issues” and
“arose out of overlapping facts.” 64 F.3d at 1142-43. Before the MSPB, Chappell
alleged that the DOL was acting out of discrimination and retaliation when it
imposed the Performance Improvement Plan in January 2000. Before the district
court, he raised claims referring to events ending in late 1999, including allegations
that the DOL used unreasonable performance standards and failed to provide
Chappell with the training and staff he needed to perform his job. All of these
complaints related to Chappell’s work environment and ability to do his job,
including the conditions leading up to his termination. Indeed, Chappell’s 2000
performance review and termination are more accurately seen as the culmination of
13
his years of conflict with the DOL over his work conditions, rather than as entirely
separate issues.
We therefore conclude that all of Chappell’s discrimination claims were
related to his termination claims, and could have been brought before the MSPB as
mixed claims. Because all of these claims could have been brought together, they
should have been brought together – before the district court, if not before the
MSPB. See Williams, 715 F.2d at 1490 (citing with approval the description of
adverse action claims and discrimination claims in mixed cases as “two sides of the
same question [that] must be considered together”). Chappell’s decision not to
bring these claims together in district court when he had the opportunity to do so
constitutes a waiver of the right to pursue his discrimination claims now.
Accordingly, summary judgment in favor of the DOL is
AFFIRMED
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