United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 3, 2000 Decided June 27, 2000
No. 99-5283
Hordon H. Evono,
Appellant
v.
Janet Reno,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 97cv01893)
Brian C. Kalt argued the cause for appellant. With him on
the briefs was Langley R. Shook.
David T. Smorodin, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: Silberman, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Hordon H. Evono, a former Depu-
ty United States Marshal, appeals the dismissal of his em-
ployment discrimination complaint against the United States
Marshals Service for lack of jurisdiction. In Butler v. West,
164 F.3d 634 (D.C. Cir. 1999), the court held that Congress
intended to permit a federal employee to proceed to district
court where the Merit Systems Protection Board ("MSPB")
fails to issue a final decision on the employee's "mixed case
appeal"1 within 120 days. Id. at 641.2 Under Butler, the
district court had subject matter jurisdiction over the claims
asserted in Mr. Evono's complaint. To the extent that the
district court ruled that Mr. Evono waived his right to sue in
district court on the basis of his pro se statements to the
MSPB suggesting that the relief he sought in court differed
from the relief sought in administrative proceedings, the
district court erred. Accordingly, because the district court
had original subject matter jurisdiction over Mr. Evono's
"mixed case," it retained original jurisdiction over his retalia-
tion claims, and we reverse.
I.
Hordon H. Evono was employed in 1970 as a Deputy
United States Marshal. The Marshals Service discharged
him in 1972 for alleged misconduct, but that discharge was
held to have been animated by racial discrimination against
him. Evono v. Civiletti, C.A. No. 74-19 (D.D.C. Feb. 1, 1980),
aff'd sub nom. Evono v. Smith, No. 80-1366 (D.C. Cir. June 8,
1981). After having been reinstated in 1980, and after addi-
__________
1 "A mixed case appeal is an appeal filed with the MSPB that
alleges 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. s 1614.302(a)(2).
2 Butler was decided on January 8, 1999, approximately five
months after the district court dismissed Mr. Evono's discrimina-
tion claims and approximately seven months before it dismissed his
retaliation claims.
tional litigation to enforce the district court's 1980 judgment,
Mr. Evono was diagnosed in 1983 with a hearing loss, subse-
quently determined to have been job-related, that rendered
him unfit for his position. He was forced to retire in March
1984. In 1993, Mr. Evono formally requested reemployment
in accordance with the Priority Placement Referral System of
the Department of Justice. The Marshals Service denied
that request, and Mr. Evono filed an Equal Employment
Opportunity ("EEO") complaint alleging violations of the Civil
Service Reform Act and racial and disability discrimination
and retaliation. When the Department of Justice failed to act
on his "mixed case" complaint within 120 days, he appealed to
the MSPB on September 16, 1994.3
When no final decision was forthcoming from the MSPB,
Mr. Evono, acting pro se, filed suit on August 20, 1997, in the
district court, alleging discriminatory and retaliatory actions
by the Marshals Service.4 Thereafter, the district court
granted the government's motion to dismiss Mr. Evono's
discrimination claims.5 The district court, citing 5 U.S.C.
__________
3 A "mixed case" complaint is "a complaint of employment
discrimination filed with a Federal agency based on race, color,
religion, sex, national origin, age or handicap related to or stem-
ming from an action that can be appealed to the Merit Systems
Protection Board (MSPB)." 29 C.F.R. s 1614.302(a)(1). Where a
federal agency fails to act on a mixed case complaint within 120
days, the matter may be appealed to the MSPB. 29 C.F.R.
s 1614.302(d)(1)(i).
4 Mr. Evono filed an amended pro se complaint on December 8,
1997, for equitable relief and damages for racially discriminatory
and retaliatory actions in violation of Title VII of the Civil Rights
Acts of 1964 and 1991, 42 U.S.C. s 2000e et seq., and s 1981, the
Rehabilitation Act of 1973, 29 U.S.C. s 791 et seq., and the Consti-
tution. His amended pro se complaint essentially restated the
allegations in his original complaint. After the MSPB issued a final
decision on June 24, 1999, Mr. Evono appealed to the Equal
Employment Opportunity Commission pursuant to 5 U.S.C.
s 7702(b)(1), where the matter was pending at the time briefs were
filed in this court.
5 The district court's opinion, filed July 27, 1998, stated that the
dismissal was without prejudice to the refiling of Mr. Evono's Title
s 7702, acknowledged that Mr. Evono generally would have a
statutory right to file a "mixed case" where the MSPB had
not issued a final decision on the underlying administrative
action within 120 days, but ruled that he had waived his right
to pursue his discrimination claim in court before exhausting
his administrative remedies. The district court relied on the
fact that Mr. Evono did not refute the government's asser-
tions that Mr. Evono had represented to the MSPB "that he
ha[d] no intention of interfering with [the] administrative
proceedings" and that he was not seeking judicial review of
his full "mixed case," and on the fact that he sought summary
judgment only on the retaliation claims. The district court
retained jurisdiction over Mr. Evono's retaliation claims and
appointed counsel for him in light of "the complexity of
litigating the remaining retaliation claim." Counsel filed a
second amended complaint alleging retaliatory acts only.6
On the eve of trial, the government moved to dismiss the
second amended complaint on the ground that the district
court lacked subject matter jurisdiction over the retaliation
claims, reading the district court's dismissal of Mr. Evono's
discrimination claims to have been based on the district
court's conclusion that it lacked subject matter jurisdiction,
and arguing that hence, the district court could not exercise
"supplemental jurisdiction" over Mr. Evono's unexhausted
retaliation claims. Mr. Evono responded, by counsel, that
under Butler, subject matter jurisdiction was proper and
exhaustion established. The government replied that Mr.
Evono could not split his "mixed case" between the MSPB
__________
VII and Rehabilitation Act claims after exhaustion of his MSPB
remedy. The district court dismissed with prejudice Mr. Evono's
constitutional discrimination claims on the ground that Title VII
and the Rehabilitation Act of 1973 provide the exclusive remedies
for his employment discrimination claims. The court denied with-
out prejudice Mr. Evono's motion for summary judgment and
declaratory relief.
6 The second amended complaint, filed by counsel, alleges that
Mr. Evono's forced retirement and the thwarting of his efforts to
obtain reinstatement were in retaliation for his EEO activities,
which began in the 1970s and continued in the early 1980s.
and the court. After initially denying the government's mo-
tion to dismiss as moot, the district court, on August 2, 1999,
granted the government's motion to reconsider and dismissed
Mr. Evono's second amended complaint without prejudice on
the ground that the court lacked supplemental jurisdiction
over his retaliation claims.
II.
In contending that the district court erred in dismissing his
retaliation claims, Mr. Evono maintains that Butler controls,
and that because he was entitled to file his "mixed case" in
the district court when the MSPB failed to issue a final
decision within 120 days of his appeal, the district court had
original jurisdiction over his discrimination and retaliation
claims and thus retained original jurisdiction over his retalia-
tion claims after dismissing his discrimination claims for
failure to exhaust administrative remedies. We agree.
5 U.S.C. s 7702(e)(1) provides:
Notwithstanding any other provision of law, if at any
time after--
....
(B) the 120th day following the filing of an appeal with
the [MSPB] under subsection (a)(1) of this section, there
is no judicially reviewable action....
....
an employee shall be entitled to file a civil action to the
same extent and in the same manner as provided in
section 717(c) of the Civil Rights Act of 1964....
5 U.S.C. s 7702(e)(1). Mr. Evono's appeal to the MSPB was
a "mixed case appeal", alleging "that an appealable agency
action was effected, in whole or in part, because of discrimina-
tion," 29 C.F.R. s 1614.302 (a)(2), and thus began the process
described in s 7702(e)(1)(B). Consistent with Butler v. West,
164 F.3d at 638, the government agrees that, ordinarily, the
district court would have had original jurisdiction over Mr.
Evono's entire "mixed case," because the MSPB had not
issued a final decision within 120 days of Mr. Evono's appeal,
notwithstanding the fact that this would result in simulta-
neous administrative and judicial proceedings. See Butler,
164 F.3d at 642-43. What distinguishes Mr. Evono's case, in
the government's view, is Mr. Evono's pro se statement in the
MSPB proceeding that he was not pursuing in the district
court the full "mixed case" that was pending before the
MSPB. In other words, the government contends, Mr. Evo-
no attempted to split his claims, keeping his discrimination
claims in the MSPB and his retaliation claims in the district
court. Relying on Smith v. Chicago School Reform Board of
Trustees, 165 F.3d 1142, 1150 (7th Cir. 1999), applying the law
of claim preclusion in interpreting the compensation cap in 42
U.S.C. s 1981a(b)(3), the government maintains that because
there is "but one subject matter transaction, i.e., Mr. Evono's
non-restoration", he "may not split [it] into multiple packages
of different claims, i.e., retaliation, handicap discrimination,
racial discrimination, Civil Service merits. etc.". While ac-
knowledging that there can be no res judicata bar until a first
judgment is rendered, the government urges that splitting of
this nature should be discouraged as wasteful of judicial
resources.
Of course, the difficulty with the government's position is
clear from Butler, where the court, in holding that the
existence of simultaneous district court and administrative
proceedings could not serve as the basis for dismissal of a
complaint filed pursuant to s 7702(e)(1), noted that the pen-
dency of simultaneous proceedings was what Congress con-
templated. 164 F.3d at 640-41. To that extent it is clear, as
the government concedes, that the district court had original
jurisdiction over both Mr. Evono's discrimination claims and
his retaliation claims, his pro se complaint containing the
same claims that had been pending before the MSPB for over
120 days without a final decision.7 Although Butler did not
__________
7 In view of the unequivocal holding in Butler, that the exis-
tence of simultaneous district court and administrative proceedings
could not serve as a basis for dismissal of a complaint filed pursuant
to s 7702(e)(1), it is unclear why the government did not file a
notice of error with the district court regarding dismissal of Mr.
Evono's discrimination claims or confess error in this court.
address a situation in which the district court dismisses part
of a "mixed case" and s 7702 jurisdiction is asserted with
respect to the remaining claims, the government has cited no
authority, and we see no basis as a matter of statutory
interpretation, for treating a "mixed case" over which the
district court properly had jurisdiction but which it dismissed
in part, any differently from a "mixed case" that proceeds in
full in the district court. Section 7702(e)(1) provides an
employee with a right to file a "mixed case" in the district
court and does not suggest that the jurisdiction thereby
conferred on the district court dissolves upon dismissal of one
claim where original jurisdiction otherwise properly exists.
Contrary to the government's position, Mr. Evono was not
obligated to abandon his proceedings before the MSPB.
There thus was exhaustion and subject matter jurisdiction
over Mr. Evono's retaliation claims in the district court
pursuant to 5 U.S.C. s 7702 and 28 U.S.C. s 1331.
To the extent that the government and the district court
relied on Mr. Evono's pro se statements to the MSPB to
conclude that he waived his right to file his "mixed case" in
the district court, or was attempting to split his claims, their
reliance is misplaced. First, there was no waiver of his right
to bring his discrimination claims to the district court. Cf.
United States v. Olano, 507 U.S. 725, 733 (1993). The
statement at issue arose when Mr. Evono responded to the
government's letter of September 18, 1997, to the MSPB
administrative law judge apparently suggesting that in view
of the pending judicial complaint, Mr. Evono would have to
withdraw his administrative appeal. The government has not
made its letter a part of the record, and for that reason alone
we have no basis to view Mr. Evono's pro se remarks,
attempting to distinguish his MSPB claims and district court
claims in order to avoid dismissal of the MSPB claims, as a
waiver of his right to pursue a "mixed case" under s 7702.8
__________
8 Indeed, Mr. Evono stated to the MSPB that "[i]f it felt that
there is a conflict in some way, that would complicate matters being
decided before the [MSPB], I wish to be informed as much,"
suggesting that in his mind there was no conflict.
Moreover, Mr. Evono's remarks advised the administrative
law judge that he was seeking judicial review of the "continu-
ing violations of [his] rights," which hardly reflects the lan-
guage of waiver. Nor do Mr. Evono's statements in the
district court, responding to the government's erroneous ar-
guments about exhaustion and claim splitting, demonstrate
waiver. Cf. Olano, 507 U.S. at 733. Furthermore, that Mr.
Evono sought summary judgment only on his retaliation
claims reflects at most that he thought there were material
issues of disputed fact on his discrimination claims, not that
he was waiving his right to pursue the latter, much less
voluntarily dismissing them. In any event, as the govern-
ment acknowledged in its memorandum in support of its
motion to dismiss or for summary judgment, and again at oral
argument in this court, the claims raised by Mr. Evono in the
MSPB and the district court were indistinguishable.
Second, Mr. Evono did not split his "mixed case." His pro
se complaint contained discrimination and retaliation claims.
It was the district court that split his case in two, by
dismissing Mr. Evono's discrimination claims for failure to
exhaust and declining to dismiss his retaliation claims. As
Mr. Evono points out, that he proceeded in reliance on the
district's court dismissal, preparing for trial only on the
retaliation claims, has nothing to do with whether the district
court had jurisdiction over his case. Nor does the second
amended complaint filed by counsel after the district court
had dismissed Mr. Evono's discrimination claims, raise claims
of a different nature than those before the MSPB. The
government's reliance on Chicago School Reform Board is
simply misplaced. In that case, the Seventh Circuit held that
the applicable statutory compensation cap did not prevent
multiple suits from being filed, but noted that the doctrine of
claim preclusion would prevent litigants from "splitting into
multiple packages different claims arising out of the same
transaction". 165 F.3d at 1150. Nothing of the sort is at
issue here; as Mr. Evono notes in his reply brief, the
government can raise the defense that Mr. Evono is seeking
to avoid the damages cap if he files a second lawsuit.
Finally, the government's supplemental jurisdiction conten-
tion fares no better. The government contends not only that
the district court lacked original jurisdiction under s 7702(e)
to hear only a part of Evono's "mixed case," but that the only
basis for jurisdiction over his unexhausted retaliation claims
was supplemental jurisdiction, and that the district court
properly ruled it lacked such jurisdiction. Supplemental jur-
isdiction was never necessary in Mr. Evono's case, nor did he
ever rely upon such a theory, because the district court
always had original jurisdiction over his retaliation claims
under s 7702(e).9 Parallel proceedings in the district court
and the MSPB are contemplated by s 7702. Butler, 164 F.3d
642-43. Insofar as the government was concerned about
wasting judicial resources, the district court could have
stayed or held the judicial proceedings in abeyance pending a
decision by the MSPB.10 Id. at 643.
Accordingly, we hold that where a complaint is properly
filed under 5 U.S.C. s 7702(e)(1), the district court's dismissal
of some claims does not deprive it of original jurisdiction over
the remaining claims, notwithstanding the pendency of the
same claims before the MSPB, and we reverse the order
dismissing Mr. Evono's complaint alleging retaliation.
__________
9 The cases relied upon by the government stand only for the
unremarkable proposition that a district court need not exercise
supplemental jurisdiction over matters with respect to which it does
not have original jurisdiction, where the matters over which original
jurisdiction could have been exercised have been dismissed, and
only supplemental matters remain. See, e.g., Saksenasingh v.
Secretary of Education, 126 F.3d 347, 351 (D.C. Cir. 1997); Harris
v. Secretary, U.S. Dep't of Veterans Affairs, 126 F.3d 339, 346 (D.C.
Cir. 1997).
10 The government misconstrues Mr. Evono's point that the
district court could have stayed his case, characterizing it as an
argument that Mr. Evono sought a stay, or that the district court
erred in not granting one. To the contrary, Mr. Evono simply
reiterates what the court said in Butler, namely that the district
court may stay its proceedings if it wishes to benefit from MSPB
expertise or avoid simultaneous proceedings. Id.