Garcia v. Department of Homeland Security

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United States Court of Appeals for the Federal Circuit

04-3442

LOURDES M. GARCIA,

Petitioner,

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

Katherine A. McDonough, Baptiste & Wilder, P.C., of Washington, DC, argued for
petitioner.

Todd M. Hughes, Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. On
the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director;
Deborah A. Bynum, Assistant Director; and Steven J. Abelson, Attorney. Of counsel on
the brief was Francesca Alvaro, Attorney, Associate Chief Counsel’s Office, United
States Customs and Border Protection, United States Department of Homeland
Security, of Miami, Florida.

Joyce G. Friedman, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, argued for amicus curiae Merit Systems
Protection Board. With her on the brief were Neil A.G. McPhie, Chairman; Martha B.
Schneider, General Counsel; and Rosa M. Koppel, Deputy General Counsel.

Appealed from: United States Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit

04-3442

LOURDES M. GARCIA,

Petitioner,

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

__________________________

DECIDED: February 10, 2006
__________________________

Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, Circuit Judges,
CLEVENGER, Senior Circuit Judge, RADER, SCHALL, BRYSON, GAJARSA, LINN,
DYK and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST, in which Chief Judge MICHEL and
Circuit Judges MAYER, LOURIE, Senior Circuit Judge CLEVENGER, Circuit Judges
RADER, SCHALL, BRYSON, GAJARSA, and LINN join. Dissenting opinion filed by
Circuit Judge DYK, in which Circuit Judge NEWMAN joins.

PROST, Circuit Judge.

Lourdes Garcia appeals the dismissal of her claim for constructive reduction in

grade by the Merit Systems Protection Board (the “MSPB” or “Board”). The Board

determined that Ms. Garcia had not proven that her actions were involuntary and

therefore dismissed Ms. Garcia’s case for lack of jurisdiction without granting her a

hearing. Garcia v. Dep’t of Homeland Sec., No. DC0752040110-I-1, slip op. at 3

(M.S.P.B. Jan. 22, 2004) (“Initial Decision”). Because the Board did not adequately
determine whether or not Ms. Garcia had presented non-frivolous allegations, we

vacate and remand.

I

An adverse action is an official action taken by a federal agency and imposed on

an employee, such as an actual removal from employment or an actual reduction in

grade or pay. 5 U.S.C. § 7512 (2000). Such official action is by statute clearly within

the jurisdiction of the Board, and an aggrieved employee can appeal such an action to

the Board for a determination as to whether the action was proper. 5 U.S.C. § 7513(d)

(2000). This case, however, does not involve an official adverse action. Instead, it

deals with what is known as a constructive adverse action. A constructive adverse

action arises when an agency’s conduct leaves an employee no alternative but for the

employee, involuntarily, to impose the adverse action on himself or herself. For

example, although a resignation is ostensibly a voluntary separation from employment,

it is possible that an employee can be coerced into resigning by actions of the

employing agency. In other words, the facially voluntary action by the employee may

actually be involuntary. Such an involuntary adverse action is known as a constructive

adverse action, and a long line of cases has established that the Board’s jurisdiction

extends to an involuntarily imposed adverse action. Here, Ms. Garcia alleges that she

applied for and involuntarily accepted a reduction in grade because her employer failed

to accommodate her disability. Further, Ms. Garcia alleges that the constructive

adverse action was prompted by a violation of her rights to be free from discrimination in

the workplace. Because her case presents questions both of possible adverse action

and possible discrimination, it is a “mixed” case in the vernacular of our case law.

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 In Cruz v. Department of the Navy, we held that, when presented with a mixed

case of constructive removal and discrimination, the Board only had authority to decide

the discrimination issue if the Board had jurisdiction over the alleged constructive

adverse action. 934 F.2d 1240, 1251-53 (Fed. Cir. 1991) (en banc). Cruz failed to

prove that a constructive adverse action had been taken against him. In other words,

Cruz had failed to prove that his resignation was involuntary. Accordingly, we

concluded that the Board correctly dismissed his case for want of jurisdiction without

reaching his discrimination claim. Furthermore, though not explicitly mentioned in Cruz,

the standards set forth in Cruz are consistent with the Board’s own regulation that

places the burden on the claimant to establish jurisdiction by a preponderance of the

evidence. See 5 C.F.R. § 1201.56 (2004). Since Cruz, the typical procedure in

constructive adverse action cases first grants a claimant a jurisdictional hearing if the

employee makes non-frivolous allegations that, if proven, could establish the Board’s

jurisdiction. Then, at that hearing, the claimant has the burden of establishing the

Board’s jurisdiction by a preponderance of the evidence.

In Spruill v. Merit Systems Protection Board, this court dealt with a case involving

allegations of discrimination and violations of the Whistleblower Protection Act (the

“WPA”). 978 F.2d 679 (Fed. Cir. 1992). Neither Spruill, nor the WPA, nor the Board’s

jurisdiction under the WPA are before us today. However, because Ms. Garcia and the

Board argue that we should import Spruill’s reasoning to the jurisdictional burdens

under 5 U.S.C. § 7512, a discussion of Spruill as background is important.

Spruill dealt with the WPA which provides appeal rights for whistleblowers

through the Individual Right of Action (the “IRA”). Codified at 5 U.S.C. § 1221(a), the

04-3442 3
IRA gives the Board jurisdiction over certain cases in which whistleblowers allege that

they have suffered reprisals for their disclosures. Our court in Spruill stated that the

Board’s jurisdiction over such claims is established by non-frivolous allegations.

Though Spruill dealt with the IRA, later cases have cited to language in Spruill and have

stated that non-frivolous allegations establish the Board’s jurisdiction over a constructive

adverse action. See Dorrall v. Dep’t of the Army, 301 F.3d 1375, 1380 (Fed. Cir. 2002);

Dick v. Dep’t of Veterans Affairs, 290 F.3d 1356, 1362 (Fed. Cir. 2002).

In constructive adverse action cases, whether the Board’s jurisdiction under 5

U.S.C. § 7512 is established on a showing of preponderant evidence or a non-frivolous

allegation is an issue of considerable importance, especially in mixed cases. We sua

sponte decided to hear Ms. Garcia’s case en banc in order to resolve issues concerning

the appropriate test for Board jurisdiction under the relevant statutes and regulation.

For the reasons set forth below, we hold that, under 5 U.S.C. § 7512, non-frivolous

allegations do not establish the Board’s jurisdiction. We further hold that the Board’s

regulation, 5 C.F.R. § 1201.56, which requires an employee to prove the Board’s

jurisdiction by a preponderance of the evidence, is entitled to deference and is therefore

lawful. Finally, we reaffirm our en banc holding in Cruz that in a constructive adverse

action case, a claimant must prove that the action was involuntary and that the Board

may not reach discrimination issues in mixed cases unless jurisdiction is established

with respect to the adverse action alleged.

II

Lourdes Garcia assumed the position of Assistant Chief Inspector, GS-14, with

the Washington, D.C. Headquarters Office of the Immigration and Naturalization Service

04-3442 4
(the “INS” or “agency”) in 1993. The INS is now part of the Department of Homeland

Security (the “DHS”). In May 2000, she injured her back and shoulder, and thereafter

requested a specially adjusted ergonomic office space. A year later, Ms. Garcia

provided her supervisors with a physical therapist’s ergonomic report that listed a

number of deficiencies in her workplace. As a result, the INS purchased a different

chair for her.

On July 2, 2001, Ms. Garcia filed a complaint of discrimination and reprisal with

the Equal Employment Opportunity Commission (the “EEOC”). She alleged racial and

national origin harassment and discrimination, retaliation, and refusal to provide a

reasonable accommodation for her injured shoulder and back as required by § 501 of

the Rehabilitation Act. See 29 U.S.C. § 791 (2000).

In May of 2002, another ergonomic survey found that her workplace did not meet

her medical needs. She provided the report to her supervisors but no action was taken.

Thereafter, in July 2002, Ms. Garcia tore two tendons in her right rotator cuff while at

work. She received worker’s compensation for the injury and was permitted to work

from home on light duty assignment until January 2, 2003. During that time at home,

Ms. Garcia learned of a vacancy for a GS-13 Deputy Assistant District Director position

with the INS Miami office. She submitted an application for the position on October 18,

2002.

On November 26, 2002, Ms. Garcia was advised that her Washington, D.C.

supervisor, Colleen Manaher, had been authorized to renovate Ms. Garcia's workspace

to accommodate Ms. Garcia’s needs. In a memo sent to Ms. Garcia on that date, Ms.

Manaher “remained hopeful” that the renovations to Ms. Garcia’s workspace would be

04-3442 5
completed by the time Ms. Garcia had to return to work. That same memo also stated

that “[i]f the work station is delayed and if your doctor continues to authorize light duty

only, your duties when you return to the Office will involve only those with minimal

computer usage such as operational telephonic support, scheduling, coordination issues

and staff assistance.”

When Ms. Garcia returned to the office as required on January 2, 2003, she

discovered that, due to a lack of funding, renovations to her workspace had not yet

started. On January 13, 2003, Ms. Garcia was selected for the position in Miami. She

accepted that position and ultimately became a permanent employee in Miami.

Just ten days after being selected for the position in Miami, Ms. Garcia amended

her discrimination complaint pending before the EEOC to allege that her acceptance of

the job in Miami was an involuntary reduction in grade (i.e., a constructive demotion)

that had been forced upon her because the INS in Washington refused to provide a

reasonable accommodation for her disability. In accordance with its procedures, the

EEOC sent that portion of the case back to the INS.

When the INS failed to act on Ms. Garcia’s case, Ms. Garcia appealed her

constructive demotion directly to the Board where she requested a hearing. Her case

was directed to an administrative judge who decided, without holding a hearing, that

“having found that the appellant has not met her burden to prove that her reduction in

grade was involuntary, . . . the Board does not otherwise have jurisdiction over [Ms.

Garcia’s] affirmative defenses of discrimination and reprisal.” Initial Decision, slip op.

at 7. Ms. Garcia petitioned the full Board to review the decision by the administrative

judge. On July 23, 2004, the Board determined that “the administrative judge made no

04-3442 6
error in law or regulation that affects the outcome” and denied the petition. Garcia v.

Dep’t of Homeland Sec., No. DC0752040110-I-1, slip op. at 1 (M.S.P.B. July 23, 2004).

Ms. Garcia appealed the Board’s dismissal of her case to this court. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9), and we sua sponte took this case en

banc. In addition to the briefs from the petitioner, Ms. Garcia, and the respondent, the

Department of Homeland Security, we invited the Board to submit a brief as amicus

curiae. We asked that the following questions be addressed:

(1) Whether 5 U.S.C. § 7701 should be construed to incorporate a non-frivolous

allegation standard for establishing the jurisdiction of the Merit Systems Protection

Board;

(2) Whether, if 5 U.S.C. § 7701 is ambiguous as to the standard for jurisdiction,

the Board’s regulation at 5 C.F.R. § 1201.56(a)(2) is entitled to Chevron deference; and

(3) Whether if 5 U.S.C. § 7701 incorporates a non-frivolous allegation standard

for establishing the jurisdiction of the Board, it should be construed to also incorporate a

standard that requires a non-frivolous allegation be supported by some evidence.

III

A

The Board is an independent, quasi-judicial federal administrative agency

created by the Civil Service Reform Act of 1978 (the “CSRA”). See Pub. L. No. 95-454,

92 Stat. 1111 (codified at 5 U.S.C. §§ 1101, 1201 (2000)). Congress gave the Board

the responsibility, inter alia, to adjudicate appeals of adverse personnel actions taken by

a federal agency against its employees. 5 U.S.C. §§ 1204(a)(1), 7512, 7513(d), and

7701(a) (2000).

04-3442 7
 The scope of the Board’s subject matter jurisdiction is defined by 5 U.S.C.

§ 7701(a), which provides that

[a]n employee, or applicant for employment, may submit an appeal to the
Merit Systems Protection Board from any action which is appealable to the
Board under any law, rule, or regulation. . . . Appeals shall be processed
in accordance with regulations prescribed by the Board.

5 U.S.C. § 7701(a) (2000). As this court has stated:

The jurisdiction of the MSPB is not plenary, but is “limited to those areas
specifically granted by statute or regulation.” The board has the power to
hear and adjudicate all matters “within the jurisdiction of the Board under
this title [5], section 2023 of title 38, or any other law, rule or regulation.” In
other words, jurisdiction for the board to hear a particular type of action
must be granted by some law, rule or regulation. 5 U.S.C. § 7701(a)
governs specifically the appellate jurisdiction of the MSPB.

Antolin v. Dep’t of Justice, 895 F.2d 1395, 1396 (Fed. Cir. 1989) (citations omitted)

(quoting Cowan v. United States, 710 F.2d 803, 805 (Fed. Cir. 1983) and Schaffer v.

Merit Sys. Prot. Bd., 751 F.2d 1250, 1252 (Fed. Cir. 1985) respectively). See also Peter

Broida, A Guide to the Merit Systems Protection Board Law and Practice 22-26 (2005).

Section 7513(d) of Title 5 of the United States Code grants the Board jurisdiction

to hear appeals over certain enumerated adverse actions taken by an agency against

an employee. The enumerated adverse actions are:

(1) a removal;
(2) a suspension for more than 14 days;
(3) a reduction in grade;
(4) a reduction in pay; and
(5) a furlough of 30 days or less.

5 U.S.C. § 7512 (2000). Thus, jurisdiction under § 7512 is established if and when a

claimant shows that he or she is, in fact, a covered employee as required by the statute

and that the agency took one of the enumerated actions in § 7512 against the claimant.

See also 5 U.S.C. § 7511 (2000) (defining covered employees for the purposes of

04-3442 8
subchapter 75). In addition, 5 U.S.C. § 7701(a) states that “[a]ppeals shall be

processed in accordance with regulations prescribed by the Board.” Accordingly, the

Board promulgated 5 C.F.R. § 1201.56, which states that “[t]he appellant has the

burden of proof, by a preponderance of the evidence, with respect to . . . [i]ssues of

jurisdiction.” 5 C.F.R. § 1201.56 (2004).

Furthermore, where the Board has jurisdiction over the appeal of an agency’s

adverse action against an employee, Congress has also allowed certain discrimination

claims that are not otherwise within the Board’s jurisdiction to be decided as part of the

appeal even though discrimination claims are generally made directly to the EEOC.

Section 7702(a)(1) of Title 5 of the United States Code instructs the Board that:

in the case of any employee or applicant for employment who—

(A) has been affected by an action which the employee or applicant may
appeal to the [Board], and
(B) alleges that a basis for the action was discrimination prohibited by [the
Civil Rights Act, the Fair Labor Standards Act, the Rehabilitation Act, the
Age Discrimination in Employment Act, or any rule, regulation, or policy
directive prescribed under those Acts],

the Board shall . . . decide both the issue of discrimination and the
appealable action . . . .

5 U.S.C. § 7702(a)(1) (2000). This statutory provision describes the Board’s jurisdiction

over “mixed cases.” As this title suggests, “mixed cases” are ordinary appeals of

adverse agency actions that are accompanied by allegations of discrimination. See

Austin v. Merit Sys. Prot. Bd., 136 F.3d 782, 783 (Fed. Cir. 1998).

B

Nothing in 5 U.S.C. § 7512, which enumerates specific adverse actions over

which the Board has jurisdiction, extends the Board’s jurisdiction to facially voluntary

04-3442 9
acts. A long line of cases, however, starting with the Board’s predecessor, the Civil

Service Commission (the “CSC”), dealt with this question, and generally held that

seemingly voluntary actions in some circumstances may be considered adverse

actions. As this court recently stated, although an “employee who voluntarily resigns or

retires has no right to appeal to the MSPB[,] . . . the MSPB possesses jurisdiction over

an appeal filed by an employee who has resigned or retired if . . . his or her resignation

or retirement was involuntary and thus tantamount to forced removal.” Shoaf v. Dep’t of

Agric., 260 F.3d 1336, 1340-41 (Fed. Cir. 2001) (citations omitted). In other words, “it is

hornbook law . . . that an involuntary resignation constitutes an adverse action by the

agency.” Gratehouse v. United States, 512 F.2d 1104, 1108 (Ct. Cl. 1975).

Claimants have alleged involuntariness in a number of different ways. See

Shoaf, 260 F.3d at 1341. In Cruz v. Department of the Navy, the allegation of

involuntariness with regard to a resignation was based on the agency’s threats of an

adverse action against the employee. 934 F.2d 1240, 1251-53 (Fed. Cir. 1991) (en

banc). In Covington v. Department of Health and Human Services, involuntariness was

based on the agency’s alleged misinformation or deception. 750 F.2d 937, 942 (Fed.

Cir. 1984). Also, claimants have alleged that the agency coerced them “by creating

working conditions so intolerable for the employee that he or she is driven to

involuntarily resign or retire.” Shoaf, 260 F.3d at 1341; Staats v. U.S. Postal Serv., 99

F.3d 1120, 1123 (Fed. Cir. 1996); Christie v. United States, 518 F.2d 584, 587 (Ct. Cl.

1975). Ms. Garcia’s claim falls into this last category. She alleges that her reduction in

grade was involuntary because she was coerced into leaving the INS in Washington,

D.C. due to intolerable working conditions.

04-3442 10
 This court has adopted the so-called Fruhauf test for establishing involuntary

coercion by an agency:

[T]o establish involuntariness on the basis of coercion this court requires
an employee to show: (1) the agency effectively imposed the terms of the
employee’s resignation or retirement; (2) the employee had no realistic
alternative but to resign or retire; and (3) the employee’s resignation or
retirement was the result of improper acts by the agency.

Shoaf, 260 F.3d at 1341; see also Fruhauf Sw. Garment Co. v. United States, 111 F.

Supp. 945, 951 (Ct. Cl. 1953); Staats, 99 F.3d at 1124; Christie, 518 F.2d at 587. In

evaluating involuntariness, the proper test is “an objective one,” Christie, 518 F.2d at

587, and one that “consider[s] the totality of the circumstances,” Shoaf, 260 F.3d at

1342. The employee must “establish that a reasonable employee confronted with the

same circumstances would feel coerced into resigning.” Middleton v. Dep’t of Defense,

185 F.3d 1374, 1379 (Fed. Cir. 1999); see also Shoaf, 260 F.3d at 1342. In other

words, when adjudicating a claim of coercive involuntariness, the three elements of the

Fruhauf test are evaluated from the perspective of the reasonable employee confronted

with similar circumstances. Shoaf, 260 F.3d at 1341-42.

In applying this objective test, our case law has also emphasized that freedom of

choice is a central issue. For example, in Christie, our predecessor court held that

[w]hile it is possible plaintiff, herself, perceived no viable alternative but to
tender her resignation, the record evidence supports CSC’s finding that
plaintiff chose to resign and accept discontinued service retirement rather
than challenge the validity of her proposed discharge for cause. The fact
remains, plaintiff had a choice. She could stand pat and fight. She chose
not to.

518 F.2d at 587; see also Covington, 750 F.2d at 942. As described more recently by

this court in Staats,

04-3442 11
 [coercive involuntariness] does not apply to a case in which an employee
decides to resign or retire because he does not want to accept a new
assignment, a transfer, or other measures that the agency is authorized to
adopt, even if those measures make continuation in the job so unpleasant
for the employee that he feels that he has no realistic option but to leave.
As this court has explained, the fact that an employee is faced with an
unpleasant situation or that his choice is limited to two unattractive options
does not make the employee’s decision any less voluntary.

99 F.3d at 1124.

Our cases recognize that most resignations and retirements are not constructive

removals, and that “the doctrine of coercive involuntariness is a narrow one” requiring

that the employee “satisfy a demanding legal standard.” Id. Thus, it has long been held

that “[e]mployee resignations are presumed voluntary [and] [t]his presumption will

prevail unless plaintiff comes forward with sufficient evidence to establish that the

resignation was involuntarily extracted.” Christie, 518 F.2d at 587. “The MSPB

possesses jurisdiction over an appeal filed by an employee . . . if the employee proves,

by a preponderance of the evidence, that [his or her action] was involuntary and thus

tantamount to [a forced enumerated adverse action].” Shoaf, 260 F.3d at 1341; see

also Dabney v. Freeman, 358 F.2d 533, 536 (D.C. Cir. 1965).

IV

In this case, Ms. Garcia alleges that the administrative judge erred by requiring

her to prove the Board’s jurisdiction by a preponderance of the evidence. Instead, Ms.

Garcia argues that non-frivolous allegations are sufficient to establish the Board’s

jurisdiction. Because she contends that she has met this low threshold, she argues that

she is entitled to a hearing to decide the merits of her claim. This case, therefore,

squarely presents the questions of how and when the Board’s jurisdiction attaches in

constructive adverse actions. In more formalistic terms, it turns on the elements needed

04-3442 12
to establish Board jurisdiction and, furthermore, the burden of proof required to establish

each of those elements.

The existing procedure for establishing jurisdiction in an adverse action can be

summarized as a two step process. If a claimant makes non-frivolous allegations, in

other words, allegations that, if proven, can establish the Board’s jurisdiction, then the

claimant is entitled to a hearing. If at the hearing the claimant establishes the Board’s

jurisdiction by a preponderance of the evidence, then jurisdiction attaches to the case

and the Board has the power to decide the merits of the claim. The claimant’s burden

of proof for establishing jurisdiction is found in the Board’s regulation 5 C.F.R.

§ 1201.56, which states that “[t]he appellant has the burden of proof, by a

preponderance of the evidence, with respect to . . . [i]ssues of jurisdiction.” 5 C.F.R.

§ 1201.56 (2004).

Recently the jurisdictional procedures outlined above for 5 U.S.C. § 7512 have

been called into question and several of this court’s opinions have led to suggestions

that the existing procedure should be reevaluated and changed. The different

approaches advocated by the parties derive from two conflicting lines of cases. The

DHS relies on Cruz and its progeny along with the Board’s regulation 5 C.F.R.

§ 1201.56. On the other hand, Ms. Garcia relies on cases like Dick and Dorrall that

have taken Spruill’s non-frivolous standard from the IRA and imported it into the

jurisdictional burdens of constructive adverse actions. Our analysis begins with a

discussion of Cruz and Spruill.

A

1

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 In Cruz, this court addressed the Board’s jurisdiction under 5 U.S.C. § 7512,

focusing specifically on the Board’s jurisdiction over facially voluntary resignations

especially where issues of involuntariness were mixed with claims of discrimination.

Julio Cruz was an Education Services Specialist in the United States Navy (the “Navy”).

On January 29, 1988, the Navy sent Cruz a Notice of Proposed Removal that listed

specific instances of insubordination and unsatisfactory performance. Shortly thereafter

and presumably in reaction to the proposed removal, Cruz submitted a resignation.

Cruz subsequently appealed to the Board alleging that the proposed removal

was a reprisal for his previously filed EEOC complaints and that, because of the

proposed removal, Cruz was coerced into resigning. The administrative judge found

that Cruz had presented non-frivolous allegations and therefore granted him a hearing

after which his case was dismissed for lack of jurisdiction. The administrative judge

concluded that the resignation was voluntary and that the agency had reasonable

grounds to propose the removal. Furthermore, the administrative judge decided that the

proposed removal was not the product of discrimination. Cruz, 934 F.2d at 1242.

The Board reviewed the administrative judge’s decision and concluded that Cruz

failed to establish that his resignation constituted an appealable action and that the

administrative judge did not err in concluding that his resignation was voluntary. But the

Board also held that, because of the administrative judge’s conclusion on voluntariness,

the administrative judge was wrong to have also addressed the discrimination claim

because the Board lacked an independent jurisdictional basis for reviewing that claim.

Id.

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 Cruz appealed the Board’s decision to this court. The original panel opinion,

thereafter vacated en banc, remanded the case to the Board with instructions to decide

“the discrimination issue.” Id. This court then accepted the Navy’s suggestion for en

banc consideration of the following question: “Whether an allegation of title VII

discrimination presented by a former employee expands the jurisdiction of the Merit

Systems Protection Board to decide that discrimination issue where the board had

already determined that it lacked jurisdiction under 5 U.S.C. § 7512 because the former

employee had resigned voluntarily.” Id. at 1243.

Addressing that question, this court sitting en banc held that

[t]he Board has only that jurisdiction conferred on it by Congress. The
Board’s limited jurisdiction as here applicable is set by a statute, 5 U.S.C.
§ 7512, which grants the Board jurisdiction to hear and determine
challenges to specific adverse actions of agencies, including removals and
four other adverse actions not here involved. . . .
....
If Cruz had withdrawn his resignation . . . and if the agency
procedures thus triggered had resulted in his removal, the Board would
have had jurisdiction over any appeal he might have filed from that
appealable adverse agency action. In that event 5 U.S.C. § 7702 would
have come into play and required the Board to decide the merits of the
removal action and any discrimination issue Cruz might have presented;
but § 7702 merely describes what the Board must do when it has
jurisdiction; it is not a grant of jurisdiction. Moreover to apply § 7702 to a
case in which there is no appealable action is to re-write the statute by
deleting its subsection (a)(1)(A) [from § 7702].

Id. at 1243-44 (citations omitted). In sum, this court concluded that in § 7702, Congress

instructs the Board to hear discrimination claims only where the employee or applicant

has been “affected by an action” which may be appealed to the Board. Thus, the en

banc court held that even where there are claims of discrimination mixed with an

adverse action, the Board’s jurisdiction is still solely determined by considering the

Board’s jurisdiction over the adverse action alone.

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 According to Cruz, the Board’s jurisdiction over a constructive removal or

demotion claim will not attach until an employee carries his or her burden of establishing

that a self-initiated personnel action was coerced or otherwise involuntary. Id. at 1244.

Although this requisite threshold determination often requires consideration and

resolution of certain factual claims, the power to make these determinations is the result

of the Board simply exercising its “jurisdiction to determine its jurisdiction.” Id.

Ultimately, the Board “never acquired jurisdiction” because the claimant failed to prove

that his resignation was involuntary. Id. at 1248. Furthermore, this court in Cruz held

that a non-frivolous allegation only entitles the employee to a hearing where he or she

will have the opportunity to prove the existence of an adverse action within the Board’s

jurisdiction by proving his or her claim of constructive removal/demotion. Id. at 1253.

A long line of this court’s opinions, consistent with and approvingly citing Cruz,

have elucidated the details of involuntariness determinations. See Shoaf, 260 F.3d at

1341 (citing Cruz for the proposition that the Board “possesses jurisdiction over an

appeal filed by an employee who has resigned or retired if the employee proves, by a

preponderance of the evidence, that his or her retirement or resignation was involuntary

and thus tantamount to forced removal”) (citations omitted); Terban v. Dep’t of Energy,

216 F.3d 1021, 1023-26 (Fed. Cir. 2000) (holding that the Board correctly dismissed the

appeal for lack of jurisdiction under Cruz where the appellant’s evidence did not show

that his retirement was involuntary); Starkey v. Dep’t of the Navy, 198 F.3d 851, 853

(Fed. Cir. 2000) (holding that voluntary actions are not within the Board’s jurisdiction,

but the Board may take jurisdiction if the employee can show that his retirement or

resignation was involuntary); Tretchick v. Dep’t of Transp., 109 F.3d 749, 751 (Fed. Cir.

04-3442 16
1997) (citing Cruz for the proposition that the Board “lacks jurisdiction to hear an appeal

from an employee who has voluntarily resigned,” and that “[a]n employee asserting that

his or her resignation was involuntary must show that it was the result of duress,

coercion, or misinformation provided by the agency,” otherwise the Board lacks

jurisdiction over the alleged involuntary action); Staats, 99 F.3d at 1123 (holding that an

employee is not entitled to a hearing on the issue of involuntariness unless he “makes a

non-frivolous allegation that, if proved, would establish Board jurisdiction”); see also

Bartels v. U.S. Postal Serv., 98 M.S.P.R. 280, 286-87 (2005) (Marshall, concurring)

(listing cases since Spruill that favorably cite Cruz and its procedures for Board

jurisdiction).

2

In contrast, language in this court’s opinion in Spruill has been adopted in a later

line of cases to support a wholly different approach for establishing the Board’s

jurisdiction. To begin, Spruill deals with the Board’s jurisdiction under 5 U.S.C. § 1221

rather than 5 U.S.C. § 7512. In 1989, Roland Spruill filed a complaint with the EEOC

alleging he was the victim of racial discrimination. One year later, the Department of

Veterans Affairs “suspended Spruill for three days without pay. It stated that the

sanction was for Spruill’s abuse of sick leave. Spruill, alleg[ed] that the suspension was

in reprisal for his filing of the EEOC complaint . . . .” Spruill, 978 F.2d at 681. Spruill

sought the Board’s review of his claim under the Individual Right of Action (the “IRA”)

provision of 5 U.S.C. § 1221. He argued before the Board that filing an EEOC

complaint constituted protected whistleblowing activity under 5 U.S.C. § 2302(b)(8).

The panel in Spruill held that the EEOC claim did not constitute protected

04-3442 17
whisteblowing, and therefore affirmed the Board’s dismissal of the case for lack of

jurisdiction. Id. at 689. As later summarized in Lloyd v. Small Business Administration,

5 U.S.C. § 1221 empowers the Board to hear a claim for corrective action
by an individual who believes that a personnel action was threatened,
taken, or not taken because of his whistleblowing. In [Spruill], the court
held that, when “a non-frivolous claim for relief has been asserted before
the Board [in an IRA appeal], and the outcome is determined by whether
the facts support that claim, a decision by the Board that they do not is a
failure to prove the claim, not a lack of jurisdiction in the Board.” The court
opined that, in an IRA appeal, the Board should take jurisdiction based on
a “well-pleaded complaint.” The court recognized that this approach
differed from that of Cruz where the court made clear that a non-frivolous
constructive removal claim is not sufficient to establish jurisdiction.

96 M.S.P.R. 518, 522-23 (2004) (citations omitted).

Later panel decisions relying on Spruill have continued to apply a non-frivolous

standard for IRA jurisdiction. See e.g., Spencer v. Dep’t of the Navy, 327 F.3d 1354,

1356 (Fed. Cir. 2003); Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.

Cir. 2001); Schmittling v. Dep’t of the Army, 219 F.3d 1332, 1336 (Fed. Cir. 2000); Willis

v. Dep’t of Agric., 141 F.3d 1139, 1142 (Fed. Cir. 1998). The Board has similarly

followed these cases. See Rusin v. Dep’t of the Treasury, 92 M.S.P.R. 298 (2002).

3

Although Spruill dealt exclusively with the IRA statute, a few opinions from this

court have taken the so-called Spruill view regarding Board jurisdiction and applied it to

other statutory frameworks, including § 7512 and constructive actions. See Dorrall, 301

F.3d at 1380; Dick, 290 F.3d at 1362; Walley v. Dep’t of Veterans Affairs, 279 F.3d

1010, 1019 (Fed. Cir. 2002). Noting this conflict in Lloyd the Board observed that

“statements from Dorrall and Dick cannot be reconciled with the unmistakable holding of

Cruz, which is that the Board ‘never acquire[s] jurisdiction’ over the appeal if the

04-3442 18
appellant fails to prove that he was constructively removed.” 96 M.S.P.R. at 525. We

agree.

In Dick, this court addressed the Board’s jurisdiction over a voluntary demotion

under the IRA. Although Dick did deal with an IRA appeal, the issue in Dick was

whether the claimant had established the threshold jurisdictional fact of whether he had

been subjected to a personnel action under 5 U.S.C. § 2302(a)(2)(A)(iii). Dick alleged

that his reprisal personnel action was a constructive demotion under 5 U.S.C. § 7512.

Instead of relying on the existing standard for establishing jurisdiction over an allegation

of a constructive demotion, the court in Dick approvingly cited Spruill for the proposition

that “[t]he Board has jurisdiction over [a constructive demotion appeal] if the government

employee makes non-frivolous allegations of jurisdiction supported by affidavits or other

evidence.” Dick, 290 F.3d at 1361. Thus, in Dick the non-frivolous allegation standard

was expanded to cover involuntary demotions under the IRA.

Furthermore, in Walley, this court also cited Spruill as supporting the lower non-

frivolous standard for jurisdiction. “Based on a long line of this court’s decisions, we

concluded that the Board can properly reach the merits of a claim because a non-

frivolous allegation is sufficient to confer jurisdiction.” Walley, 279 F.3d at 1018.

Echoing the distinction made in Spruill, the Walley court stated that

[t]here are issues before the Board that are at one and the same time
jurisdictional issues requiring a non-frivolous allegation for Board
jurisdiction and merits issues requiring a determination in favor of the
employee if relief is to be awarded. As we discuss below, in the present
context the question of whether a termination occurred because of a
compensable injury is one of those issues. Board jurisdiction is
established by a non-frivolous allegation of a termination because of a
compensable injury, but the employee can succeed on the merits only if
after a hearing there is a finding that such a termination occurred. Section
1201.56 of the regulations, placing the burden of proof on the employee

04-3442 19
 with respect to “jurisdictional issues,” is plainly not concerned with the first
issue of technical jurisdiction (the need for a non-frivolous allegation), but
rather with the second issue (concerning the ultimate merits). It places the
burden of proof on the employee at a merits hearing with respect to merits
issues that are also jurisdictional issues. Thus, although the regulation
characterizes the issues with which it is concerned as “jurisdictional” in
nature, the regulation is directed, in fact, to the allocation of the burden of
proof on the merits. The consequence is that if a merits issue is one that is
also “jurisdictional,” the burden of proof on that merits issue remains with
the employee even though, as a technical matter, the Board's jurisdiction
is established by a non-frivolous allegation.

Id. at 1019.

Dick was followed shortly by Dorall. James H. Dorall retired from the United

States Army Material Command on August 20, 2000. Prior to his retirement, Dorall had

been the subject of potential discipline for allegedly deliberately deceiving a supervisor.

Dorall’s supervisors made it clear that disciplinary action was not imminent and that the

supervisors did not intend to coerce Dorall to retire. Nonetheless, Dorall retired and

then appealed his retirement to the Board. Thus, the case involved an allegation of a

constructive removal and was squarely a removal case under 5 U.S.C. § 7512.

This court affirmed the Board’s dismissal for lack of jurisdiction because Dorall

had not produced sufficient evidence to support a non-frivolous allegation that he was

coerced into involuntary retirement. But in so deciding, this court also stated that “[t]he

Board has jurisdiction over an appeal if the government employee makes non-frivolous

allegations of jurisdiction supported by affidavits or other evidence.” Dorall, 301 F.3d at

1380 (citing Dick, 290 F.3d at 1361). Dorall deals not only with § 7512, but also with

involuntariness. Thus by citing to Dick, the opinion in Dorall directly introduced the non-

frivolous allegation standard that originated with Spruill and its analysis of the IRA into

the procedural framework of constructive adverse actions.

04-3442 20
 In addition to the handful of opinions from this court that reference a non-frivolous

jurisdictional standard for § 7512 and constructive adverse actions, the Board has

recently also advocated adopting the Spruill approach regarding jurisdiction for

constructive adverse actions. For example, in his concurring opinion in Lloyd, Board

Chairman McPhie stated that “[b]ut for the en banc decision in Cruz, I would follow the

Federal Circuit panel decision in [Spruill], and find that jurisdiction attaches when the

appellant non-frivolously alleges that the appellant’s retirement or resignation was

involuntary.” Lloyd, 96 M.S.P.R. at 526 (McPhie, concurring). Similarly, in Bartels v.

United States Postal Service, the Board opined:

In sum, we believe that the jurisdictional framework set out in the panel
decisions in Spruill, Dorrall, [and] Dick, . . . is superior to the jurisdictional
framework described in Cruz. If we were free to choose, we would adopt
the former framework, and would hold that Board jurisdiction attaches
when the appellant makes non-frivolous allegations that he was
constructively removed. We are not free to choose, however, and instead
are constrained to follow the earlier en banc decision in Cruz as opposed
to the later panel decisions in Spruill, Dorrall, [and] Dick . . . . The initial
decision in the present case is consistent with Cruz, and for that reason
we affirm it. Still, it would be helpful to all concerned—parties,
practitioners, administrative judges, Board members, even panels of the
Federal Circuit—for the full court to revisit Cruz and to clarify whether it
remains the law.

98 M.S.P.R. 280, 285 (2005) (citation omitted).

B

Questions of jurisdiction are of fundamental importance generally. The proper

standard for when and how the Board’s jurisdiction attaches in an adverse action case

is especially important here because 5 U.S.C. § 7702 grants the Board the power to

04-3442 21
hear discrimination claims if and only if the Board otherwise has jurisdiction to hear the

related adverse action.

Under the approach advocated by the Board, if a non-frivolous claim is presented

to the Board, jurisdiction would attach and the Board would be obligated to hear any

and all discrimination claims alleged with the constructive adverse action. This would

hold even where the Board later determines that the claimant has not proven

(presumably by a preponderance of the evidence) the issue of involuntariness. See

Bartels, 98 M.S.P.R. at 283-84. In that circumstance, the constructive action claim

would be dismissed for failure to state a claim upon which relief can be granted but the

discrimination claim would still be heard by the Board.

In contrast, the outcome is quite different if the Board’s jurisdiction is established

only when the claimant has proven by a preponderance of the evidence that he or she

has been subjected (officially or constructively) to one of the enumerated adverse

actions in § 7512. If at any point during the case the Board determines that the claimant

has not carried this burden, then jurisdiction never attaches to the adverse action case

and the Board never has the power to decide the discrimination issue. Thus, although

this case revolves around the proper burden of proof to establish the Board’s jurisdiction

under § 7512, the proper delineation of a claimant’s jurisdictional burden has far

reaching implications for the Board’s power.

Against this background, we now address the following:

(1) whether 5 U.S.C. § 7701 compels a non-frivolous burden of proof for

jurisdiction;

04-3442 22
 (2) whether the Board’s own regulation (5 C.F.R. § 1201.56(a)(2)(i)) is

inconsistent with the statute; and

(3) whether this court en banc should change anything in our earlier en banc

decision in Cruz, and specifically, whether the Board’s cases under § 7701 should be

dismissed for lack of jurisdiction or failure to state a claim when the claimant fails to

carry the burden on jurisdictional issues by a preponderance of the evidence.

1

Ms. Garcia, interpreting § 7701, alleges that jurisdiction attaches when an

employee makes non-frivolous claims. She relies on the historical context and

precedent that existed prior to the formation of the Board and cites Supreme Court case

law supporting the rule that non-frivolous allegations of a federal claim establish Article

III federal question jurisdiction. See, e.g., Duke Power Co. v. Carolina Envtl. Study

Group, Inc., 438 U.S. 59, 71-72 (1978); Montana-Dakota Utils. Co. v. Nw. Pub. Serv.

Co., 341 U.S. 246, 249 (1951); Bell v. Hood, 327 U.S. 678, 682 (1946); The Fair v.

Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913). Ms. Garcia also cites a number of

Supreme Court cases for the proposition that Congress is presumed to enact legislation

with knowledge of the law and a newly-enacted statute is presumed to be harmonious

with existing law and judicial concepts. See Cannon v. Univ. of Chi., 441 U.S. 677, 696-

98 (1979); see also MidAtlantic Nat’l Bank v. N.J. Dep’t Envtl. Prot., 474 U.S. 494, 501

(1986); Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 266-67

(1979); Raney v. Fed. Bureau of Prisons, 222 F.3d 927, 932 (Fed. Cir. 2000).

Against this backdrop, Ms. Garcia first argues that consistency with these

Supreme Court cases concerning Article III federal question jurisdiction would counsel

04-3442 23
adoption of a standard under which non-frivolous allegations also establish the Board’s

jurisdiction. Secondly, Ms. Garcia, citing to Dabney, a Civil Service Commission case

that preceded the CSRA, submits that Congress intended a non-frivolous allegation

standard to establish the Board’s jurisdiction and entitle the employee to a hearing on

the merits. See Dabney v. Freeman, 358 F.2d 533, 536 (D.C. Cir. 1965). Ms. Garcia

argues that, when considered in the proper historical context of the Dabney case,

§ 7701 clearly incorporates a non-frivolous allegation standard for establishing the

Board’s jurisdiction.

The Board presses a similar argument for its conclusion, shared by Ms. Garcia,

that the correct standard for jurisdiction is described in Spruill. Accordingly, the Board

has stated that in cases where the jurisdictional issues and the merits are intertwined,

then, but for being bound by the Cruz decision, it would follow the Spruill approach. In

its statement of interest in its amicus curiae brief, the Board makes its objectives clear.

The Board believes that its jurisdiction should attach when an appellant makes non-

frivolous allegations supported by some evidence in cases where the merits and

jurisdictional issues are intertwined. In particular, it approves of the statements in

Bartels that stated that

[t]he uniform view in federal courts is that in such a situation, where
jurisdictional elements and merits elements are intertwined, the court
should find that jurisdiction has attached when the requisite non-frivolous
allegations are made. . . . As compared to Cruz, the established approach
in federal court is more logical, as it does not require the appellant to
prove his entire case on the merits in order to invoke the power of the
Board to decide his case in the first place.

98 M.S.P.R. at 284. Furthermore, the Board cites approvingly the concurring opinion of

Board Chairman McPhie in Lloyd. In that case, Chairman McPhie stated that “[i]f

04-3442 24
federal courts find subject matter jurisdiction based on non-frivolous allegations and

decide proof issues on the merits, I see no reason why the Board should not also do

so.” Lloyd, 96 M.S.P.R. at 529.

The line of reasoning outlined above does not persuade us that the statute

compels a non-frivolous standard for the Board’s jurisdiction. There is nothing in the

plain language of the statute requiring or even suggesting a non-frivolous standard. Nor

have the parties pointed to anything in the legislative history of the CSRA specifically

indicating that Congress intended that, in cases in which jurisdictional issues and merits

issues overlap, the Board is required to follow the standards for jurisdiction applicable to

Article III courts.

We agree with Ms. Garcia that indeed one of the many canons of statutory

interpretation presumes that Congress is understood to legislate against a background

of common-law adjudicatory principles. We are not persuaded, however, that this

canon controls in this specific instance. First, it is not entirely clear to us that what the

Board characterizes as “the uniform view in federal courts” is the type of “well

established” common-law principle to which this canon applies. See Astoria Fed. Sav.

& Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (stating that the rules of preclusion

are “well established” common-law principles). In the case of threshold jurisdictional

questions analogous to the threshold jurisdictional question of whether an employee

has been removed from his position within the meaning of 5 U.S.C. § 7512(1), the

courts have applied the preponderance test. For example, diversity jurisdiction requires

that, as a jurisdictional predicate, the plaintiff allege (and if challenged, prove) that there

is diversity among the parties. The proof may follow a jurisdictional hearing and will

04-3442 25
require a showing of the elements of diversity by a preponderance of the evidence. The

Supreme Court has so held with respect to the amount in controversy issue, McNutt v.

Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936) (stating that “the court may . .

. insist that the jurisdictional facts be established or the case be dismissed, and for that

purpose the court may demand that the party alleging jurisdiction justify his allegations

by a preponderance of evidence”), and the lower federal courts have so held with

respect to the allegation of diversity of citizenship, Teal Energy USA, Inc. v. GT, Inc.,

369 F.3d 873, 878 n.16 (5th Cir. 2004); Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.

1974). See also Connolly v. Spielman, 999 F. Supp. 270, 273 (N.D.N.Y. 1998) (“The

party invoking the Court’s jurisdiction has the burden of proving complete diversity at the

time the action was commenced by a preponderance of the evidence.”).

Second, and more importantly, inasmuch as the Board is not an Article III court,

we fail to see how the backdrop of standards applicable to Article III court jurisdiction

suggests that Congress intended those standards to apply to this quasi-judicial

administrative agency. In fact, there are suggestions that Congress specifically did not

intend concepts from Article III courts to be used by the Board. As the DHS argues in

its submission to this court, for example,

[t]o the extent the legislative history even mentions concepts from the
Federal Rules [of Civil Procedure], it does so explicitly to reject their
application. See H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 137 (1978),
1978 U.S.C.C.A.N. 2723, 2871. . . . Congress did explicitly decline to
adopt a complementary procedure that would have permitted a summary
decision similar to the summary judgment procedure under the Federal
Rules.

See also Crispin v. Dep’t of Commerce, 732 F.2d 919, 922-23 (Fed. Cir. 1984).

04-3442 26
 Moreover, Dabney does not support Ms. Garcia’s position. In Dabney, the

United States Court of Appeals for the District of Columbia Circuit affirmed a decision of

the Civil Service Commission dismissing a case for lack of jurisdiction because the

claimant failed to produce a “preponderance of credible evidence” that she had suffered

an adverse action. Dabney, 358 F.2d at 536. Furthermore, although Dabney does

state that “if and when the Commission’s relieving authority is invoked by non-frivolous

allegations of coercion, the Commission should entertain the appeal and hear and

determine the allegations,” id. at 535, the mention of a non-frivolous standard only

regards the Commission’s power to grant a hearing. Closely following this statement,

Dabney reaffirms that “[i]f [the allegations of coercion] are not sustained, the appeal is to

be dismissed as outside the limits of the Commission’s jurisdiction.” Id. In other words,

under Dabney, non-frivolous claims themselves do not establish jurisdiction; rather, they

only entitle the claimant to a hearing where jurisdiction will be decided. If, during or

after that hearing, jurisdiction is not established, then the court must dismiss the case

for lack of jurisdiction. Id. at 537.

Accordingly, there is nothing in the statute, the legislative history, or applicable

case law that compels a non-frivolous standard for the Board’s jurisdiction.

2

In 5 U.S.C. § 7701, Congress has not “directly spoken” to an employee’s burden

of proof for establishing the Board’s jurisdiction. See Chevron v. Natural Res. Def.

Council, 467 U.S. 837, 842 (1984). If Congress has spoken, the court’s inquiry is at an

end. Kilpatrick v. Principi, 327 F.3d 1375, 1384 (Fed. Cir. 2003). On the other hand, if

the statute is silent or ambiguous, then the court must resort to other means of statutory

04-3442 27
construction. Id. In this case, § 7701 is silent as to the burden of proof required to

establish jurisdiction.

The statute, however, is not silent on a related matter. As the Supreme Court

noted in Cornelius v. Nutt, “the [CSRA] provides . . . that the Board ‘may prescribe

regulations to carry out the purpose of [§ 7701].’” 472 U.S. 648, 657-58 (1985)

(reversing this court where it followed an alternate interpretation of § 7701 in lieu of the

Board’s regulation 5 C.F.R. § 1201.56). Pursuant to this statutory authority, the Board

has promulgated regulations to carry out § 7701. Under 5 C.F.R. § 1201.56, “[t]he

appellant has the burden of proof, by a preponderance of the evidence, with respect

to . . . [i]ssues of jurisdiction.” This specific regulation is neither “arbitrary, capricious, or

manifestly contrary to the statute,” and is therefore entitled to deference and is lawful.

See Chevron, 467 U.S. at 844. The dissent cites a scholarly treatise which states that

“[t]he Court has never definitively held . . . that Chevron applies to jurisdictional

disputes.” Richard J. Pierce, Administrative Law Treatise § 3.5, at 157 (4th ed. 2002).

But that same treatise also states that “[m]ost circuit courts apply Chevron to

jurisdictional disputes” and furthermore that “[j]udging by the Court’s pattern of

decisions, it seems clear that Chevron applies to cases in which an agency adopts a

construction of a jurisdictional provision of a statute it administers.” Id. See also Miss.

Power & Light Co. v. Mississippi, 487 U.S. 354, 381 (1988) (Scalia, J. concurring) (“[I]t

is settled law that the rule of deference applies even to an agency’s interpretation of its

own statutory authority or jurisdiction.”). The preponderance standard in the regulation,

and especially a preponderance standard for proving involuntariness, is consistent with

the statutory framework for adverse actions established by Congress.

04-3442 28
 In addition to being consistent with statute, there is no reason to read the

regulation in a manner inconsistent with its plain language. Ms. Garcia does not argue

that the Board’s regulation is invalid; she argues that according to her reading of the

statute and the regulation, the two can co-exist because the non-frivolous standard

applies before any hearing takes place and the preponderance standard from the

regulation applies once there is a hearing on the merits. In short, she interprets the

regulation to narrow its applicability. Thus, according to Ms. Garcia, a non-frivolous

allegation of constructive removal/demotion establishes the Board’s jurisdiction and

entitles the employee to a hearing where the merits are decided, while the Board’s

regulation, 5 C.F.R. § 1201.56(a)(2)(i), controls the burden of proof once the employee

reaches a hearing on the merits.

We disagree. There is nothing to suggest that the regulation should be applied

any less generally for cases under 5 U.S.C. § 7512 than the plain language of the

regulation dictates. Ms. Garcia’s effort to reconcile the regulation and her reading of the

statute is therefore unavailing. She points to no authority outside of Walley for her

position, and we are not persuaded by her reliance on certain language in that opinion.

Specifically in Walley, the court described the scope of the Board’s regulation as

follows:

Section 1201.56 of the regulations, placing the burden of proof on the
employee with respect to “jurisdictional issues,” is plainly not concerned
with the first issue of technical jurisdiction [the need for a non-frivolous
allegation], but rather with the second issue [concerning the ultimate
merits]. The consequence is that if a merits issue is one that is also
“jurisdictional,” the burden of proof on that merits issue remains with the
employee even though, as a technical matter, the Board’s jurisdiction is
established by a non-frivolous allegation. The Board itself has interpreted
this regulation as governing the burden of proof on those issues that the
Board has viewed as “jurisdictional.” Smith v. Dep’t of Energy, 89

04-3442 29
 M.S.P.R. 430, 434 (2001); Giove v. Dep’t of Transp., 89 M.S.P.R. 560,
564 (2001); Mobley v. U.S. Postal Serv., 86 M.S.P.R. 161, 164 (2000).
We owe deference to the Board’s interpretation.

279 F.3d at 1019. The three Board cases cited in Walley certainly do not support Ms.

Garcia’s position nor, for that matter, do they compel this court’s interpretation of the

regulation in Walley. Indeed, we find that these cases all support a view of the

regulation opposite to that proposed by Ms. Garcia. In Smith v. Department of Energy,

the Board held that

[t]he appellant has the burden of proving Board jurisdiction over his
appeal. He is only entitled to a jurisdictional hearing if he makes a non-
frivolous allegation that the Board has jurisdiction over his appeal. A non-
frivolous allegation of jurisdiction is an allegation of fact which, if proven,
could establish a prima facie case that the Board has jurisdiction in the
matter.

89 M.S.P.R. at 434. Similarly, in Giove v. Department of Transportation, the Board held

that

[t]he existence of Board jurisdiction is a threshold issue in adjudicating an
appeal, and the appellant bears the burden of establishing jurisdiction by a
preponderance of the evidence. The issue of Board jurisdiction is always
before the Board and may be raised by either party or sua sponte by the
Board at any time during a Board proceeding.

89 M.S.P.R. at 564. Lastly, we also find no support for the cited proposition in Mobley

v. United States Postal Service, where the Board approvingly cites its regulation and

holds that “[t]he appellant has the burden of proof to establish the Board’s jurisdiction

over his appeal.” 86 M.S.P.R. at 165.

Furthermore, this court’s view in Walley and Ms. Garcia’s proposed reading of

the regulation are inconsistent with our earlier en banc opinion in Cruz. As we stated

there, “[l]ack of jurisdiction is lack of jurisdiction.” Cruz, 934 F.2d at 1246. In other

words, there is no part of jurisdiction that could be considered “technical” as if part of

04-3442 30
jurisdiction is only a technical concern without substantive impact. Jurisdiction is always

a substantive concern, and if at any time a court determines that it lacks jurisdiction, it

cannot decide the merits of the case. Rather, the court is limited to dismissing or

transferring the case. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,

818 (1988).

In addition, Ms. Garcia’s reading of the regulation is inconsistent with its plain

meaning. The regulation is not directed at the burden of proof on the merits once

jurisdiction has been established. As discussed above, the regulation clearly requires

that the claimant establish jurisdiction by a preponderance of the evidence, independent

of whether facts relevant to deciding the merits overlap with the facts relevant to

deciding jurisdiction. Accordingly, to the extent that our decision in Walley suggests

interpreting the Board’s regulation to apply a preponderance standard only after

jurisdiction has attached, we reject that suggestion.

3

Although the Board argues that its current regulation should be afforded

deference, it appears that the Board’s principal reason for not changing its own

regulation is its belief that Cruz prevents it from doing so. Its position is outlined in

detail in the majority opinion in Bartels and in the concurring opinion in Lloyd. See

Bartels, 98 M.S.P.R. at 283-85; Lloyd, 96 M.S.P.R. at 522-23. In his concurring opinion

in Lloyd, Chairman McPhie recites various legal and policy arguments that advocate for

the non-frivolous standard. He argues that allowing jurisdiction to be determined by a

non-frivolous allegation would make it easier for discrimination claims to be heard on

the merits by the Board. According to the Chairman, claimants would thus “at least

04-3442 31
have the satisfaction of knowing that the Board examined their claims on the merits,

rather than dismissing them on jurisdictional grounds.” Id. at 530. In his view, the goal

of having the Board decide these discrimination claims outweighs certain other potential

drawbacks:

Finally, some may argue that finding subject matter jurisdiction based on
non-frivolous allegations of jurisdiction would substantially increase the
number of constructive removal appeals that are filed with the Board and
require more lengthy decisions. So be it. The Board’s authority and
obligation to review appellants’ claims should not be determined by
considerations of convenience and workload. Such an outcome would be
offensive to the principles of justice.

Id. And the Chairman concludes by reiterating that, in his view, “the Cruz approach to

determining jurisdiction over constructive removals is unfair, illogical, and inconsistent

with other courts.” Id.

In sharp contrast, the DHS argues for the preponderance standard based on

institutional concerns. Noting the potential to substantially increase the Board’s ability

to hear “mixed-cases,” the DHS argues that the preponderance standard ensures the

primacy of the EEOC in addressing discrimination complaints and also that claims

involving a particular adverse agency action are not arbitrarily and inefficiently

bifurcated between the MSPB and the EEOC process. The DHS also argues that even

outside of mixed-cases, the preponderance of the evidence standard prevents the

Board from “expend[ing] its limited resources in conducting evidentiary hearings even

when an appellant fails to make a substantial claim.”

We find the various rationales advocated by the Board unpersuasive. First, we

do not view the Cruz standard to be illogical. In a constructive action case, the

jurisdictional fact at issue is almost always whether the facially voluntary action was

04-3442 32
involuntary. Involuntariness is essential for jurisdiction and it must be proven by the

claimant. But while jurisdiction is established under 5 U.S.C. § 7512, the merits of the

case are determined by the agency’s compliance with § 7513(a)-(b). In other words, the

jurisdictional determination is not identical to the merits determination. Cf. Rusin v.

Dep’t of Treasury, 92 M.S.P.R 298, 303 (2002) (noting in the context of the IRA that

there is a near complete overlap between the merits and the jurisdictional

determinations: “the making of such [non-frivolous] allegations [for IRA claims]

establishes the Board’s jurisdiction to adjudicate the appellant’s claim on the merits. To

prevail on the merits, the appellant is then required to prove these elements by

preponderant evidence.”). Furthermore, in mixed constructive adverse action cases,

there are additional differences between the jurisdictional issues and the merits of the

discrimination claim. As stated by the administrative judge in this case,

evidence of discrimination goes to the ultimate question of coercion, i.e.,
whether under all of the circumstances working conditions were made so
difficult by the agency, that a reasonable person in the employee’s
position would have felt compelled to request a reduction in grade. Once
the Board’s jurisdiction has been established in a constructive demotion
appeal, issues of discrimination and reprisal may be adjudicated under the
standards applicable for proof of discrimination and/or retaliation under
Title VII as the case is then a mixed case.

Initial Decision, slip op. at 3 (citing Markon v. Dep’t of State, 71 M.S.P.R. 574, 578

(1996)). Thus, in a mixed constructive adverse action case, jurisdiction is determined

by 5 U.S.C. § 7512 and the legal standards applicable to establishing involuntariness.

Discrimination issues may be considered insofar as they illuminate involuntariness. In

contrast, the merits of the discrimination claim are determined by the applicable anti-

discrimination statute.

04-3442 33
 In these cases, undoubtedly, facts relevant to jurisdiction may also be relevant

when deciding the merits. We fail to see, however, how this circumstance makes the

current approach illogical. As a practical matter, there need not be any duplicative

effort. If a fact determined for jurisdiction is later relevant for the merits determination,

there is no reason why that previous finding cannot easily be applied to the merits

determination. See also Markon, 71 M.S.P.R. at 580 (noting that “if the appellant

establishes that she has been constructively discharged, much of the same evidence of

discrimination or retaliation relied upon to establish coercion may also be relevant to

proof of discrimination and retaliation under Title VII and/or the WPA”). Importantly, as

noted, in mixed cases the discrimination claim itself is adjudicated using the elements,

burdens, and defenses specific to the underlying discrimination statute.

Second, we disagree that the present procedure is unfair. The Board

contemplates a scenario where non-frivolous allegations allow the Board’s jurisdiction to

attach and the Board, therefore, is granted the power to decide the underlying

discrimination case. The Board feels that “principles of justice” demand that,

independent of “considerations of convenience and workload,” the Board should be able

to address these discrimination claims on the merits. We fail to see how allowing the

Board to hear the discrimination claims after a claimant makes non-frivolous

jurisdictional claims is the only way to achieve these ends. Indeed, the very case that is

being relied upon for the non-frivolous standard expresses similar concerns about

expanding the scope of the Board’s jurisdiction in the discrimination arena. As this court

stated in Spruill:

At [the time the CSRA was passed] the issue of discrimination was a
known and abhorred evil that had long been of concern to Congress.

04-3442 34
 Years before, Congress passed the Civil Rights Act of 1964 to combat
discrimination. That Act set up the EEOC, and established procedures to
encourage the disclosure of discriminatory practices. Upon passage of the
CSRA, enforcement and related functions regarding discrimination in
Federal employment were placed with the EEOC. This executive action
“place[d] the Commission at the center of equal employment opportunity
enforcement . . . [giving] coherence and direction to the government’s
efforts by developing strong uniform enforcement standards to apply
throughout the government: standardized data collection procedures, joint
training programs, programs to ensure the sharing of enforcement related
data among agencies, and methods and priorities for complaint and
compliance reviews.”
....
There is good reason for Congress to have structured the act in the
manner it did. . . . It acknowledges the EEOC’s role as an expert agency in
discrimination matters, facilitates EEOC consolidation of important
statistical data, and provides an efficient division of decision making labor.
In short, it promotes efficiency and economy. Our conclusion today
reinforces Congress’ efforts to provide the MSPB with a workload that is
within its resources and to provide the EEOC with a continuing leadership
role in the ongoing battle to eradicate discrimination.

978 F.2d at 691-92 (citations omitted) (quoting Reorganization Plan No. 1 of 1978, 43

F.R. 19807, 92 Stat. 378 (message of the President) (reprinted in 42 U.S.C.A. § 2000e-

4, note (West 1981 & Supp.1992))). Similarly, we note that the dissent’s concerns that

“[t]he majority eliminates the statutorily prescribed role of the EEOC and the district

courts in the adjudication of the merits of the discrimination claims in constructive action

cases” were considered and laid to rest in Cruz. Where there is a bona fide

constructive action, the Board can certainly hear the discrimination claims. On the other

hand, as we noted in Cruz, where the Board finds that there was not a constructive

action,

an appeal from the Board may not be the only route for presentation of
Cruz’ reprisal “Title VII” claim, a claim that would appear to fall within the
subject matter jurisdiction of fora other than the Board. First, the district
court has subject matter jurisdiction over Title VII claims. If Cruz believes
he has been the victim of discriminatory acts violative of Title VII, he may
file a complaint and obtain a de novo trial in the district court under 42

04-3442 35
 U.S.C. § 2000e-5(f)(3). Further, if Cruz filed a complaint with the EEOC
and the EEOC dismissed his complaint because he was presenting the
same issues to a court, the EEOC may reopen its proceedings on that
complaint after the Board has dismissed his appeal for lack of jurisdiction.
Lastly, Cruz may submit his reprisal claim to the Office of Special Counsel
which may, if warranted, take full remedial action.

Cruz, 934 F.2d at 1247-48 (citations omitted).

Accordingly, we see no reason to overrule Cruz. Cruz correctly articulated that

“[t]he Board has not been granted jurisdiction over Title VII claims per se, i.e., over

‘pure’ or ‘naked’ Title VII claims unaccompanied by an appealable action over which the

Board does have jurisdiction.” Cruz, 934 F.2d at 1245. Similarly, we see no reason to

disturb the analysis in Cruz that rejected the notion that the Board “may, after learning

[that] a fact ‘necessary to its principal jurisdiction’ is absent, go on to decide issues

within its pendent or ancillary jurisdiction.” Id. at 1249. Cruz is consistent with both the

Board’s regulation and with the overall statutory scheme for adverse actions.

Based on our reaffirming of Cruz, we also conclude that certain language in Dick

is at odds with Cruz. In Dick, this court stated that “[t]he Board has jurisdiction over an

appeal [alleging a constructive demotion] if the government employee makes non-

frivolous allegations of jurisdiction supported by affidavits or other evidence.” Dick, 290

F.3d at 1361. Accordingly, we overrule Dick and Dorrall to the extent that they are

inconsistent with Cruz.

As noted above, the Board has also explicitly suggested that it would adopt the

standard in Spruill but feels it cannot do so because of this court’s en banc decision in

Cruz. Thus, while arguing that this court should defer to the current regulation, the

Board also urges this court to defer to any future regulation that adopts a non-frivolous

standard for jurisdiction. We decline that invitation for several reasons.

04-3442 36
 This court does not provide advisory opinions on hypothetical regulations; we

decide actual cases or controversies. The Board has an existing regulation, and if the

Board has a sufficient basis on which to change that regulation, it must do so in

accordance with the Board’s notice and comment rulemaking procedures. As described

recently in Tunik v. Merit Systems Protection Board:

[Because the regulation at issue] is a substantive rule not subject to the
exemption in section 553(b)(A) and because it is not subject to the agency
management or personnel exception of section 553(a)(2), the Board could
only repeal the rule through the notice and comment procedures required
by section 553(b). United States v. Nixon, 418 U.S. 683, 695-96 (1974)
(“So long as this regulation remains in force the Executive Branch is
bound by it, and indeed the United States as the sovereign composed of
the three branches is bound to respect and to enforce it.”); Am. Fed’n of
Gov’t Employees, AFL–CIO, Local 3090 v. Fed. Labor Relations Auth.,
777 F.2d 751, 758-60 (D.C. Cir. 1985) (“[U]nless and until it amends or
repeals a valid legislative rule or regulation, an agency is bound by such a
rule or regulation.”); see also United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260, 267-68 (1954) (holding that the Attorney
General may not act in contravention of valid regulations “as long as the
regulations remain operative”).

407 F.3d 1326, 1345 (Fed. Cir. 2005).

Finally, while the current regulation is entitled to deference, as this court noted in

Tunik,

where an earlier panel decision on statutory construction was based on
deference to an agency interpretation, a later panel of this court is free to
consider whether a new agency interpretation is reasonable without en
banc reconsideration of the earlier panel decision [even though] . . .
panels of the court are bound by prior panel decisions. . . . [A] panel
should be free to consider whether the new interpretation is permissible in
keeping with our role as a reviewing court under the Chevron framework.

407 F.3d at 1338. Cruz was not a case in which an agency promulgated regulation was

being challenged. Thus, independent of any statement in Cruz, our procedure is clear:

when faced with an actual case or controversy that includes a challenge to an agency

04-3442 37
regulation, this court will address the validity of that regulation by the procedures and

standards set forth in Chevron and its progeny.

V

To summarize, under 5 U.S.C. §§ 7701 and 7512, once a claimant makes non-

frivolous claims of Board jurisdiction, namely claims that, if proven, establish the Board’s

jurisdiction, then the claimant has a right to a hearing. At the hearing, the claimant must

prove jurisdiction by a preponderance of the evidence. If the Board determines that the

claimant fails to prove jurisdiction by a preponderance of the evidence, then the Board

does not have jurisdiction and the case is dismissed for lack of jurisdiction.

A

In this case, the administrative judge’s recitation of the applicable standards

regarding jurisdiction appears to be correct. She correctly noted that pursuant to 5

C.F.R. § 1201.56(a)(2) “[t]he appellant has the burden of proving by preponderant

evidence that her appeal is within the Board’s jurisdiction.” Initial Decision, slip op. at 1.

She also correctly stated the elements necessary to establish involuntariness.

Furthermore, she correctly stated that “non-frivolous allegation[s] of jurisdiction entitl[e]

[a claimant] to a hearing.” Id., slip op. at 3. Yet, the administrative judge’s decision is

deficient for three reasons.

First, there is a lack of clarity as to what standard was ultimately applied to Ms.

Garcia’s case and a lack of specificity as to how the decision was reached. While the

administrative judge did not grant a hearing on the question of jurisdiction, she never

explicitly stated that Ms. Garcia presented frivolous claims. Indeed, in her opinion, the

administrative judge found “that the appellant has not met her burden to prove that her

04-3442 38
reduction in grade was involuntary,” which arguably suggests that instead a

preponderance of evidence standard was being applied.

Second, if indeed the administrative judge decided that Ms. Garcia’s allegations

were frivolous, this court requires that the Board further elaborate on its decision by

providing some specificity. A denial of a request for a hearing would be proper where

the claimant has failed to make allegations that, if proven, could satisfy one or more of

the elements necessary to establish Board jurisdiction. If that is the conclusion reached

by the administrative judge here, it is incumbent upon her to explain the basis for that

decision.

Third, and lastly, some of the administrative judge’s reasoning appears

misplaced. The administrative judge held that

[t]he appellant appears to allege that she was forced to request a
reduction in grade when she returned to the office on January 2, 2003, as
required, and found that the renovations had not begun and were
unfunded. . . . In any event, the information appellant received in January
did not cause her to request a reduction in grade because she applied for
the position that resulted in her reduction in grade on October 18, 2002.

Id., slip op. at 6. The administrative judge determined that there could be no causal

relationship between the unfunded renovation and her alleged involuntary reduction in

grade because Ms. Garcia learned of the unfunded renovation after she had already

applied for the job in Miami. The analysis appears to ignore, however, that Ms. Garcia

did not accept the position in Miami until after learning that the renovation was deemed

unfunded. Without more explanation, it would appear that simply applying for (as

opposed to actually accepting) a position could have been nothing more than prudent

contingency planning by Ms. Garcia. We therefore question the weight that the

04-3442 39
administrative judge gave this factor, especially because the administrative judge

labeled the chronology of these events as “the most probative evidence.” Id.

B

Because the Board did not adequately determine whether or not Ms. Garcia had

presented non-frivolous allegations while denying Ms. Garcia a hearing, we find that the

administrative judge obtained her decision without procedures required by law. We

vacate the Board’s dismissal and remand the case to the Board for further consideration

of the issue of non-frivolousness of Ms. Garcia’s claim consistent with this opinion.

COSTS

No costs.

VACATED AND REMANDED

04-3442 40
 United States Court of Appeals for the Federal Circuit

04-3442

LOURDES M. GARCIA,

Petitioner,

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

DYK, Circuit Judge, dissenting, with whom NEWMAN, Circuit Judge, joins.

Today this court overrules this court’s decisions holding that the Board must

apply a non-frivolous allegation standard for jurisdiction in constructive adverse action

cases alleging unlawful discrimination.1 In my view, the majority decision reflects a

profound misunderstanding of the statutory scheme.

The effect of today’s decision is that in a constructive adverse action case

questions of the agency’s compliance with the Rehabilitation Act, 29 U.S.C. § 791, or

any other federal anti-discrimination statutes will be determined by the Board in a

“jurisdictional” hearing, with the appeal from an adverse Board decision coming to this

court. That result is directly contrary to 5 U.S.C. § 7702, which requires that the merits

of discrimination claims be resolved under the Board’s section 7702 pendent

jurisdiction, with quite different appeal procedures thereafter, designed to protect the

1
See, e.g., Dorrall v. Dep’t of the Army, 301 F.3d 1375, 1380 (Fed. Cir. 2002);
Stephens v. Dep’t of Agric., No. 05-3270, Slip op. at 2 (Fed. Cir. 2005); Colbath v. Dep’t
of Army, 89 Fed. Appx. 727, 730 (Fed. Cir. 2004).
rights of federal employees alleging discrimination. In constructive adverse action

cases, cases which represent an important aspect of Board jurisdiction, the court has

read those protections out of the statute. The majority has, moreover, declined to

interpret the statutory grant of Board jurisdiction in accordance with the traditional well-

pleaded complaint rule that applies when the merits and jurisdictional issues overlap -- a

rule that the majority inexplicably continues to approve in other areas of Board

jurisdiction. I respectfully dissent.

I

Section 7701 confers jurisdiction on the Board over adverse action claims

(removals, suspensions for more than 14 days, reductions in grade or pay, and

furloughs for 30 days or less). 5 U.S.C. §§ 7512, 7701(a) (2000). The purpose of

section 7702 is to allow federal employees to litigate statutory antidiscrimination claims

(involving adverse actions) before the Board with the right of appeal thereafter to the

Equal Employment Opportunity Commission (“EEOC”) and the district courts. The

Rehabilitation Act is one of these statutes. See 5 U.S.C. § 7702(a); 29 U.S.C. 791

(2000). The Supreme Court has recently made clear that constructive discharges

based on discrimination are prohibited by the antidiscrimination laws. Pennsylvania

State Police v. Suders, 542 U.S. 129 (2004). The same is true of constructive

demotions, the adverse action alleged here.2

2
See Fenney v. Dakota, Minnesota & Eastern R. Co., 327 F.3d 707, 717-18 (8th
Cir. 2003); Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 876 (7th Cir.1999);
Sharp v. City of Houston, 164 F.3d 923, 933-34 (5th Cir.1999); cf. Diaz-Gandia v.
Dapena-Thompson, 90 F.3d 609, 614 (1st Cir.1996) (recognizing “constructive
demotion” in a veteran’s rights discrimination case).

04-3442 2
 In this case the petitioner explicitly bases her constructive demotion claim on the
3
Rehabilitation Act. In her appeal to the Board, Garcia alleged that her employer

discriminated against her based on “disability.” (J.A. at 58.) Before the Board, the

agency argued that “appellant was not entitled to reasonable accommodation because

she has not established that she was disabled under the Rehabilitation Act.” (J.A. at 5.)

In this court she continues to argue that the agency failed to “meet the standards of the

Rehabilitation Act.” Pet. Reply Br. at 3-4; see also Pet. Br. at 6. The majority

acknowledges that Garcia alleges “refusal to provide a reasonable accommodation for

her injured shoulder and back as required by § 501 of the Rehabilitation Act.” Maj. Op.

at 5. The majority agrees that the petitioner has, or may have, asserted non-frivolous

allegations of Rehabilitation Act discrimination. Maj. Op. at 37-38. The question is

whether as a result the Board has jurisdiction over this discrimination claim related to

the adverse action.4 The majority holds that the Board has no jurisdiction until the

petitioner proves her discrimination claim by a preponderance of the evidence. In my

view the majority’s rule significantly undermines the congressional purpose.

II

At the time of the enactment of sections 7701 and 7702, Congress carefully

crafted procedures for the adjudication of the merits of discrimination claims before the
3
She also alleged race, national origin and sex discrimination. Those
discrimination claims are not pursued in this appeal.
4
The majority opinion appears to suggest that the Board has jurisdiction under
section 7702 over claims unrelated to the constructive adverse action claims. Maj. Op.
at 22. But Board jurisdiction under section 7702 does not extend that far. Under
sections 7701 and 7702 the Board can only address adverse action claims and claims
relating to discrimination on which those adverse actions were based. 5 U.S.C.
7702(a)(1) (“in the case of any employee . . . who – (A) has been affected by an
[appealable action] . . . and (B) alleges that a basis for the action was discrimination . . .
the Board shall decide both [issues] . . . .”).

04-3442 3
Board, that is, in situations where the adverse action was claimed to be the result of

discrimination in violation of federal law, including the Rehabilitation Act (29 U.S.C.

§ 791), the Age Discrimination in Employment Act (29 U.S.C. § 631), the Fair Labor

Standards Act (29 U.S.C. § 206(d)), and Title VII of the Civil Rights Act (42 U.S.C.

§ 2000e-16). Those procedures are laid out in 7702.

Section 7702(a)(1) provides:

the Board shall, within 120 days of the filing of the [adverse action] appeal,
decide both the issue of discrimination and the appealable action in
accordance with the Board’s appellate procedures under section
7701 . . . .

5 U.S.C. § 7702(a)(1). Section 7702(b) guarantees an employee the right to EEOC

and district court review of an adverse Board decision on such discrimination claims.5

Thus, an employee who loses on the merits of the employee’s pendant discrimination

5
Under section 7702(b), once the Board issues an initial decision and the initial
decision becomes final, the employee can file a petition for review with the EEOC. 5
U.S.C. §§ 7702(b), 7702(e). If the employee seeks review before the EEOC, the EEOC
can either concur in the Board's final decision or issue a new final decision. See 5
U.S.C. § 7702(b). In making this determination, the EEOC “consider[s] the entire record
of the proceedings of the Board.” It may issue a new decision if the Board decision “is
not supported by the evidence in the record as a whole,” or “constitutes an incorrect
interpretation of [the discrimination statutes specified in (a)(1)(B)].” 5 U.S.C.
§ 7702(b)(3). “In considering [the] decision of the Board . . . the Commission may refer
the case to the Board, or provide on its own, for the taking . . . of additional
evidence . . . .” 5 U.S.C. § 7702(b)(4).
If the EEOC concurs in the Board’s final decision, the Board decision becomes
judicially reviewable in federal district court, and the Board has no further jurisdiction to
review the matter. 5 U.S.C. § 7702(b)(5)(A); see Williams v. United States Postal Serv.,
967 F.2d 577, 579 (Fed. Cir. 1992). On the other hand, if the EEOC issues its own
decision, then the Board must consider that decision and either adopt it or reaffirm its
prior decision, with modifications if necessary. If the Board does not adopt the EEOC
decision, a “special panel” then considers and decides the case. 5 U.S.C. § 7702(d)(1)-
(2). The special panel is composed of one Board member, one EEOC member, and a
Chairman appointed by the president with the advice and consent of the Senate. 5
U.S.C. § 7702(d)(6).

04-3442 4
claim can appeal the Board’s decision to the EEOC and thereafter to the district court.

These procedural rights were viewed as critical.

The role of the EEOC in this process was a central focus. Before the enactment

of the 1978 legislation which created the MSPB and sections 7701 and 7702, the EEOC

played no role in the enforcement of antidiscrimination laws in the federal workplace.

Reorganization Plan No. 1 of 1978, 43 F.R. 19807, 92 Stat. 378 (message of the

President) (reprinted in 42 U.S.C.A. § 2000e-4, note (West 1981 & Supp.1992)). This

was seen as unsatisfactory, and a proposed Presidential reorganization plan transferred

to the EEOC the entire responsibility for enforcement of the antidiscrimination laws in

the federal workforce. Id. Ultimately, through the enactment of section 7702, this

responsibility was shared between the EEOC and the Board. Section 7702 “provide[s]

for an active role in the process by the [EEOC] where questions of discrimination are

involved,” and “preserves an important policy role for the EEOC which it may invoke,

consistent with the requirements of law, regardless of the outcome of a particular case.”

S. Rep. No. 95-969, 95th Cong., 2d Sess. 137 (1978), 1978 U.S.C.C.A.N. 2723, 2775

(“Senate Report”); H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 137 (1978), 1978

U.S.C.C.A.N. 2860, 2873 (“House Report”). This is achieved by providing for appeals to

the EEOC from adverse Board decisions on discrimination claims.

The legislative history of the 1978 Act and prior decisions of this court have

likewise confirmed the importance of the district courts in this process. The district

courts review the decision of the Board if the EEOC agrees with the Board’s rejection of

the discrimination claim. The Senate Report made clear that

District Court is a more appropriate place than the Court of Appeals for
these cases since they may involve additional fact-finding. Furthermore,

04-3442 5
 discrimination complaints involving employees outside the Federal
government are now considered by U.S. District Courts. To encourage
uniformity in judicial decisions in this area both kinds of cases should
continue to be considered by the U.S. District Court.

Senate Report at 2785; King v. Lynch, 21 F.3d 1084, 1089 (Fed. Cir. 1994); Wiggins v.

United States Postal Serv., 653 F.2d 219, 221 (1981); see also Williams v. Dep’t of

Army, 715 F.2d 1485, 1488-90 (Fed. Cir. 1983) (“From the standpoint of judicial

economy, consideration of all issues by a single tribunal is clearly preferable.”).6

The majority eliminates the statutorily prescribed role of the EEOC and the

district courts in the adjudication of the merits of discrimination claims in constructive

action cases. To be sure the review mechanism of 7702, including the EEOC and

district courts, is not triggered in adverse action cases unless the Board initially has

jurisdiction. Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1246 (Fed. Cir. 1991) (en banc).

Typically the question of whether there has been an adverse action (e.g., a removal) is

not in dispute and, even if disputed, is almost entirely separate from the merits of the

discrimination claim. If necessary, the Board appropriately conducts a jurisdictional

hearing to determine whether there has been an adverse action (for example whether

there has been a removal), with the petitioner’s bearing the burden of proof to establish

jurisdiction by a preponderance of the evidence. If the Board determines that there has

been an adverse action (e.g., a removal), the Board can then consider under section

7702 whether the adverse action was the result of discrimination. If the Board rejects

6
Under the 1978 statute, this court can review the merits of a mixed case only if
the petitioner waives his discrimination claims. The court can review the Board’s
dismissal of a discrimination claim for want of jurisdiction. See, e.g., Austin v. Merit
Systems Protection Bd. 136 F.3d 782, 784 (Fed. Cir. 1998); King v. Lynch, 21 F.3d
1084, 1089 (Fed.Cir.1994); Ballentine v. Merit Sys. Protection Bd., 738 F.2d 1244,
1247-48 (Fed.Cir.1984).

04-3442 6
the discrimination claim on the merits, the mixed case review procedure of section 7702

is triggered.

Constructive adverse action cases involving discrimination are, however,

different. In those cases, the merits of the discrimination claim and the question

whether there has been an adverse action substantially overlap. Nonetheless, under

the majority’s view, the petitioner must establish the existence of discrimination by a

preponderance of the evidence before the Board has jurisdiction. The consequence is

that the Board never has jurisdiction unless the petitioner prevails on the merits. If the

petitioner fails on the merits, the Board has no jurisdiction, the mixed case procedures

are never triggered, the EEOC has no role to play, and this court, rather than the district

court, reviews the Board’s dismissal.

Even if a Board determination that it lacked jurisdiction because of a failure to

prove discrimination by a “preponderance of the evidence” would not preclude the

employee from initiating a new proceeding before the EEOC challenging the

constructive adverse action, the statutory purpose is still undermined in significant ways.

The employee would be compelled to initiate, and the agency to participate in, a

second, original proceeding before the EEOC that would require the assembling of a

record; Board participation would be eliminated, and the stringent time limits imposed by

section 7702 would not govern. Allowing adverse action cases to proceed before the

EEOC without Board involvement would hinder the congressional purpose of creating a

“single, unified personnel policy which [takes] into account the requirements of all the

various laws and goals governing Federal personnel management.” Senate Report at

2775. Congress also made clear that the mandatory time limits “impose[ ] a statutory

04-3442 7
requirement that [eliminates] the delays that have been experienced in the past in

processing discrimination complaints . . . .” House Report at 2874.

The majority’s perplexing construction of the statute simply makes no sense in

terms of the statutory purpose, as the Board itself has recognized. See Bartels v. U.S.

Postal Serv., 98 M.S.P.R. 280, 284 (2005) (“[T]he established approach in federal court

is more logical [and] better reflects the reality of the way the Board adjudicates a case in

which the appellant claims that the agency’s actions were motivated by prohibited

discrimination.”); see also Lloyd v. Small Bus. Admin., 96 M.S.P.R. 518, 526-530 (2004)

(concurring opinion of Chairman McPhie).

III

Our prior decisions have adopted an alternative construction of the jurisdictional

provisions of section 7701 that avoids this conflict with section 7702 and preserves the

statutory right to mixed case procedures.7 That construction recognizes that the Board

has jurisdiction in constructive adverse action cases if the employee has made non-

frivolous allegations of discrimination. Under this interpretation, the Board has section

7702 jurisdiction when resolving the discrimination issues, and the procedural

protections of the statute remain in place.

The majority rejects this interpretation. The opinion, on the one hand, may be

read as holding that under our earlier en banc decision in Cruz, the statute must be read

as compelling a preponderance standard.8 On the other hand the majority may hold

7
See, e.g., Dorrall, 301 F.3d at 1380.
8
“Furthermore, this court in Cruz held that a non-frivolous allegation only entitles
the employee to a hearing where he or she will have the opportunity to prove the
existence of an adverse action within the Board’s jurisdiction by proving his or her claim
of constructive removal/demotion.” Maj. Op. at 16.

04-3442 8
that the statute is ambiguous and, under Chevron,9 the court should defer to a Board

regulation, 5 C.F.R. § 1201.56(a)(2), which generally establishes a preponderance

standard for Board jurisdiction (although not dealing specifically with constructive

adverse action cases). Whether based on an independent construction of the statute or

on Chevron, in my view the majority has reached the wrong result. Even assuming that

the majority’s opinion is based on Chevron and that this general regulation should be

viewed as applicable to constructive actions, “deference to [an agency’s] statutory

interpretation is called for only when the devices of judicial construction have been tried

and found to yield no clear sense of congressional intent.” Gen. Dynamics Land Sys. v.

Cline, 540 U.S. 581, 600 (2004). 10

A traditional approach to statutory construction requires a quite different result.

Statutes must be construed in accordance with their statutory purpose. As the Supreme

Court has recently held, when the text of a statute is ambiguous, “we must look beyond

the bare text of [the statute] to the context in which it was enacted and the purposes it

was designed to accomplish.” Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377

(2004).11 We too have held that where there is “ambiguity in the statutory language,”

9
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
10
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 448 (1981) (“’If a court, employing
traditional tools of statutory construction, ascertains that Congress had an intention on
the precise question at issue, that intention is the law and must be given effect.’”)
(quoting Chevron U.S.A. Inc., 467 U.S. at 843 n.9 (1984)); Delverde, SrL v. United
States, 202 F.3d 1360, 1363 (Fed. Cir. 2000) (traditional tools of statutory construction,
for Chevron purposes, include “the statute’s text, structure, and legislative history,
and . . . the relevant canons of interpretation”).
11
See also, e.g., Johnson v. United States, 529 U.S. 694, 710 n. 10 (2000) (“Our
obligation is to give effect to congressional purpose so long as the congressional
language does not itself bar that result.”); Holloway v. United States, 526 U.S. 1, 9
(1999) (noting that “statutory language should be interpreted consonant with 'the
provisions of the whole law, and . . . its object and policy’”) (quoting John Hancock Mut.

04-3442 9
we must “look beyond the statutory language to [legislative history and] the statute’s

purpose to determine its meaning.” Candle Corp. of Am. v. U.S. Intern. Trade Com’n,

374 F.3d 1087, 1093-94 (Fed. Cir. 2004) (citing Jones, 541 U.S. at 377).12 Moreover,

the Supreme Court has instructed us that Chevron deference should not lightly be

afforded to an agency disclaimer of jurisdiction that would work a “fundamental revision

of the statute.” MCI Telecomms. Corp. v. Am. Telephone & Telegraph Co., 512 U.S.

218, 231-32 (1994).13

Where, as here, the agency’s jurisdictional determination would conflict with a

core congressional purpose, the statute must be interpreted to deny the agency

authority to either expand or contract its jurisdiction. See FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 161 (2000); MCI, 512 U.S. at 229-31; see also Crowell v.

Benson, 285 U.S. 22 (1932) (requiring de novo judicial review of agency determinations

of jurisdictional fact). As discussed at length above, the purpose of section 7702 can

only be preserved by use of a non-frivolous allegation standard for jurisdiction.

Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U.S. 86, 94-95 (1993)); Chapman v.
Houston Welfare Rights Org., 441 U.S. 600, 608 (1979) (“As in all cases of statutory
construction, our task is to interpret the words of these statutes in light of the purposes
Congress sought to serve.”).
12
See also, e.g., Warner-Lambert Co. v. Apotex Corp., 316 F.3d 1348, 1355
(Fed.Cir.2003) (“When interpreting a statute, the court will not look merely to a particular
clause in which general words may be used, but will take in connection with it the whole
statute (or statutes on the same subject) and the objects and policy of the law, as
indicated by its various provisions, and give it such a construction as will carry into
execution the will of the Legislature.”) (quoting Kokoszka v. Belford, 417 U.S. 642, 650
(1974)).
13
It appears that “[t]he Court has never definitively held . . . that Chevron applies to
jurisdictional disputes.” Richard J. Pierce, Administrative Law Treatise § 3.5, at 157 (4th
ed. 2002); see also Mississippi Power & Light Co. v. Mississippi, 487 U.S. 357, 386-87
(1988) (Brennan, J., dissenting) (Justices Brennan, Marshal, and Blackmun urge that
Chevron does not apply to jurisdictional disputes).

04-3442 10
 Another canon of construction compels the same result. The majority does not

dispute that Congress conferred “jurisdiction” on the Board to adjudicate adverse action

and other appeals, 5 U.S.C. § 1204(a)(1) (“The [MSPB] shall . . . adjudicate . . . all

matters within [its] jurisdiction”). Nor does the majority dispute that in federal court the

non-frivolous allegation standard for jurisdiction is well established where the issue of

jurisdiction and merits overlap. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95

(1998); Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 203 n.19 (1974); Montana-

Dakota Utils. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246, 249 (1951); Bell v. Hood, 327

U.S. 678, 681-82 (1946); Land v. Dollar, 330 U.S. 731, 734-35 (1946); The Fair v.

Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913). The majority itself appears to agree

that in overlap situations where the cause of action is not established a “dismissal of the

case would be on the merits, not for want of jurisdiction.” Bell, 327 U.S. at 682.

Given this established federal rule, as the Board itself has urged, see Bartels, 98

M.S.P.R. at 283-85; see also Lloyd, 96 M.S.P.R. at 526-530 (Chairman McPhie,

concurring), the non-frivolous allegation standard for Board jurisdiction is compelled by

the rule of statutory construction that absent an indication of contrary intent, Congress is

understood to legislate against the backdrop of well-established legal principles. As the

Supreme Court has held, “where a common-law principle is well established . . . the

courts may take it as given that Congress has legislated with an expectation that the

principle will apply.” Astoria Fed. Savs. & Loan Ass’n v. Solimino, 501 U.S. 104, 108

(1991).14

14
See also MidAtlantic Nat’l Bank v. N.J. Dep’t Envtl. Prot., 474 U.S. 494, 501
(1986) (“The normal rule of statutory construction is that if Congress intends for
legislation to change the interpretation of a judicially created concept, it makes that

04-3442 11
 The majority appears to reject this approach for three reasons. First, it states,

without elaboration, that “it is not entirely clear . . . that [this approach to jurisdiction] is

the type of ‘well established’ common-law principle to which this canon applies.” Maj.

Op. at 25. But the majority does not provide any reason to treat federal jurisdictional

principles differently than other well-established principles. For example, the Supreme

Court has only recently interpreted the term “arising under” in a limitations provision to

have the same meaning as in federal “statutes governing the scope of federal subject-

matter jurisdiction.” Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383 (2004).

The Court emphasized that courts “should avoid reading [the statute] in such a way as

to give the familiar statutory language a meaning foreign to every other context in which

it is used.” Id.

This principle has been applied directly in determining the meaning of the very

rule involved here – the well pleaded complaint rule for subject matter jurisdiction, and

the Supreme Court in that case reversed our contrary interpretation. In Holmes Group,

Inc. v. Vornado Air Circulation Systems, Inc. 535 U.S. 826 (2002), the Supreme Court

confronted the scope of 28 U.S.C. §§ 1295(a)(1) and 1338(a), which define this court’s

jurisdiction over patent appeals. Section 1295(a)(1) confers jurisdiction over appeals

from district courts when the district court’s jurisdiction is based on section 1338.

Section 1338(a), in turn, confers jurisdiction on district courts over civil actions “arising

under” the patent laws. Id. at 829. In Holmes Group, the court concluded that a civil

intent specific.”); Cannon v. Univ. of Chi., 441 U.S. 677, 696-98 (1979) (construing Title
IX to provide a private remedy because several cases had so construed Title VI at the
time Title IX was adopted); Raney v. Fed. Bureau of Prisons, 222 F.3d 927, 932 (Fed.
Cir. 2000) (construing “reasonable attorney fees” in the Back Pay Act against the
backdrop of cases construing other fee-shifting statutes that were in effect when the
CSRA was enacted).

04-3442 12
action “arises under” the patent laws when the patent-law claim appears on the face of

the plaintiff’s well-pleaded complaint. The court held that “[b]y limiting the Federal

Circuit's jurisdiction to cases in which district courts would have jurisdiction under

§ 1338, Congress referred to a well-established body of law that requires courts to

consider whether a patent-law claim appears on the face of the plaintiff's well-pleaded

complaint.” Id. at 834 (emphasis added). We have likewise applied the rule to

jurisdictional provisions.15

Second, the majority urges that the adverse action determination is somehow

similar to diversity or amount in controversy determinations where proof by a

preponderance is required. Diversity jurisdiction is a quintessential example of a

situation in which the jurisdictional issue is separate from the merits, see, e.g., Pratt

Central Park Ltd. Partnership v. Dames & Moore, Inc., 60 F.3d 350, 361 n.8 (7th Cir.

1995); Williamson v. Tucker, 645 F.2d 404, 415 n.9 (5th Cir. 1981), and the

jurisdictional amount in controversy (even if considered to overlap with the merits) is

determined by “good faith” allegations, not proof after trial of the amount in controversy

by a preponderance of the evidence. St. Paul Mercury Indemnity Co. v. Red Cab Co.,

303 U.S. 283, 288 (1938); 14B Charles Alan Wright & Arthur R. Miller, Federal Practice

& Procedure § 3702, at 27.

Third, the majority states that “inasmuch as the Board is not an Article III court,

we fail to see how the backdrop of standards applicable to Article III court jurisdiction

15
See Durr v. Nicholson, 400 F.3d 1375, 1382 (Fed. Cir. 2005) (where Rule 3(c) of
the Rules for the Court of Appeals for Veterans Claims (“CAVC”) was enacted against
the background of FRAP, the term “notice of appeal” in CAVC Rule 3(c) is given the
same meaning as in FRAP 3(c)).

04-3442 13
suggests that Congress intended those standards to apply to this quasi-judicial

administrative agency.” Maj. Op. at 26.

While the adjudicatory procedures and evidentiary rules in courts and

administrative agencies may differ, we deal here with a jurisdictional issue that the

majority agrees is of “fundamental importance.” Maj. Op. at 22. Under these

circumstances, cases such as MCI teach us that agency disclaimers of jurisdiction must

be carefully examined. Given this mandate, it seems particularly appropriate to look to

the traditional treatment of jurisdictional issues in the judicial context for guidance.

Indeed, in Cornelius v. Nutt, on which the majority relies, Maj. Op. at 28, and which

involved the very same statue and regulation as are involved here, the Supreme Court

recognized the pertinence of the judicial harmful error rule to the interpretation of the

administrative harmful error rule in 5 USC § 7701 and 5 CFR § 1201.56(c)(3), stating

that it “would be natural . . . to assume that Congress intended the term ‘harmful error’

in § 7701(c)(2)(A) to have the same meaning that it has in the judicial context, that is,

error that has some likelihood of affecting the result of the proceeding.” Cornelius v.

Nutt, 472 U.S. 657, 658 n.9 (1985) (emphasis added).16

16
In Cornelius the Court deferred to the Board’s determination that the standard
should be applied to arbitrations as well as Board-adjudicated cases. Cornelius, 472
U.S. at 660-61.
See also Steadman v. S.E.C., 450 U.S. 91, 102 (1981) (section 7(c) of the APA
providing for agency sanction proceedings interpreted to adopt “the traditional
preponderance-of-the-evidence standard” for decisions on the merits); U.S. v. Euge,
444 U.S. 707, 711 (1980) (IRS may compel production of handwriting samples because
the “duty to appear and give testimony . . . has traditionally encompassed a duty to
provide some forms of nontestimonial, physical evidence, including handwriting
exemplars.”); Bieber v. Dep’t of Army, 287 F.3d 1358, 1361-63 (Fed. Cir. 2002)
(applying the standard of recusal of federal judges to assess the bias of an
administrative judge).

04-3442 14
 There is nothing in the text, structure or history of the statute here to suggest that

Congress intended to authorize the agency to adopt a restrictive jurisdictional standard

and to depart from the well established non-frivolous allegation standard. The rejection

of the federal-court summary judgment procedure (relied on by the majority) can hardly

be read to reflect a congressional purpose to restrict Board jurisdiction. To the contrary,

Congress’ decision to preclude summary judgment and thus require an automatic merits

hearing forcefully demonstrates the congressional purpose to protect the rights of

federal employees to have their claims addressed on the merits. See Crispin v. Dep’t of

Commerce, 732 F.2d 919, 922 (Fed. Cir. 1984). Absent any indication that Congress

desired to adopt a more restrictive rule than the federal non-frivolous allegation

standard, we should assume that Congress enacted section 7701 with the expectation

that these long-standing jurisdictional principles would apply.17

IV

If there were any doubt about the appropriateness of applying the non-frivolous

allegation standard in the constructive action context, that doubt would be dispelled by

the majority’s own opinion. Ironically, the majority today leaves in place Spruill v. Merit

Systems Protection Board, 978 F.2d 679 (Fed. Cir. 1992), and its progeny, which

utilized the same approach to determining Board jurisdiction in the Whistleblower

Protection Act (“WPA”) context that the majority rejects in the context of section 7701.

17
The majority also relies on a pre-CSRA case, Dabney v. Freeman, 358 F.2d 533
(D.C. Cir. 1965), as holding that non-frivolous claims do not establish jurisdiction. Maj.
Op. at 27. There is no indication that Congress was aware of Dabney; that the
jurisdictional issue was argued in Dabney; or that the court considered the uniform
federal jurisdictional rule where the merits and jurisdiction overlap. And, of course,
Dabney did not address section 7702 since it had not yet been enacted.

04-3442 15
 As with adverse action cases, in Individual Right of Action (“IRA”) appeals the

issues of jurisdiction--the making of a protected disclosure and the determination that

the protected disclosure was a contributing factor in the agency’s decision to take or fail

to take a personnel action--overlap with the merits. In the IRA context the “plain

language” of the very same Board regulation on which the majority relies here requires

that jurisdiction be determined by a “preponderance of the evidence.” 5 C.F.R.

§ 1201.56. In the IRA context also, until Spruill, the Board required proof of jurisdiction

by a preponderance of the evidence. Geyer v. Dep’t of Justice, 63 M.S.P.R. 13, 16-17

(1994), overruled by Rusin v. Dep’t of Treasury, 92 M.S.P.R. 298 (2002).

Nevertheless, relying on fundamental principles of federal jurisdiction and citing

federal jurisdiction cases such as Montana-Dakota Utilities Co. v. Northwestern Public

Service Co., 341 U.S. 246 and Bell v. Hood, 327 U.S. 678, Spruill concluded that the

Board’s IRA jurisdiction must be determined by a non-frivolous allegation standard.

Spruill, 978 F.2d at 687-88. The Spruill court held that as a general matter, “jurisdiction

existed [ ] as long as the petition asserted nonfrivolous claims.” The court applied the

“basic principle” of federal court jurisdiction that “jurisdiction . . . exist[s] on the basis of

well-pleaded allegations in the complaint . . . .” Id. at 686, 688. The court then criticized

Board decisions that dismissed claims containing non-frivolous allegations “for lack of

jurisdiction,” when those claims should have been dismissed on the merits. Id. at 688.18

18
The Spruill court explained:

[W]hen we refer to cases involving the “jurisdiction” of the MSPB, we do
not include cases the merits of which turn on the existence of a state of
facts when those facts happen also to be the factual predicate for
jurisdiction. When a nonfrivolous claim for relief has been asserted before
the Board, and the outcome is determined by whether the facts support

04-3442 16
Spruill has been repeatedly reaffirmed. Yunus v. Dep’t of Veterans Affairs, 242 F.3d

1367, 1367, 1372 n.1 (Fed. Cir. 2001); see also Spencer v. Dep’t of the Navy, 327 F.3d

1354, 1356 (Fed. Cir. 2003); Schmittling v. Dep’t of the Army, 219 F.3d 1332, 1336

(Fed. Cir. 2000); Willis v. Dep’t of Agric., 141 F.3d 1139, 1142 (Fed. Cir. 1998).

Ironically, the majority today repeatedly cites Spruill as authority while rejecting

the application of its foundational reasoning in the constructive action context. If a non-

frivolous allegation standard applies to IRA appeals before the Board and requires

rejection of the Board’s preponderance standard in that context, there is simply no basis

for rejecting an identical jurisdictional standard for constructive adverse action cases. In

fact, Spruill itself explicitly and at some length made clear that the non-frivolous

allegation standard did apply to constructive action cases generally.19

While approving the non-frivolous allegation standard for IRA appeals, the

majority opinion, in an ultimate incongruity, overrules our decision in Dick v. Department

of Veterans Affairs, 290 F.3d 1356 (Fed. Cir. 2002), even though it too was a decision

that claim, a decision by the Board that they do not is a failure to prove the
claim, not a lack of jurisdiction in the Board.
Spruill, 978 F.2d at 689.
19
The court stated in full:

[I]n a case in which a petitioner before the MSPB alleges that he has been
wrongly terminated from Federal employment, the Government's defense
is sometimes that the petitioner voluntarily resigned, in which case there
could not be a wrongful removal. The MSPB, after full hearing and upon
concluding from the evidence that there was a voluntary resignation, will
sometimes dismiss the claim “for lack of jurisdiction.” . . . . The difficulty
with this is that obviously the MSPB had jurisdiction to hear and decide the
case. The failure was simply petitioner's inability to establish a key factual
element of his cause of action. The MSPB correctly concluded that it could
not grant relief on those facts, but it was not for lack of jurisdiction.

Spruill, 978 F.2d at 688.

04-3442 17
applying a non-frivolous allegation standard in an IRA appeal. As best I can make out,

the majority holds that in all IRA appeals other than those involving constructive adverse

actions a non-frivolous allegation standard applies, but in IRA appeals involving

constructive adverse actions jurisdiction must be established by a preponderance of the

evidence. The majority does not, and cannot, explain why those two situations should

be treated differently.

V

A final word should be said about our earlier en banc decision in Cruz, which the

Board identified as the barrier to the application of a non-frivolous allegation standard

and which the majority states may continue to bar the Board from adopting such a

standard. See Maj. Op. at 37; Lloyd, 96 M.S.P.R. 518, 522; Id. at 526-27 (McPhie,

Chairman, concurring); see also Bartels v. United States Postal Serv., 98 M.S.P.R. 280,

285 (2005). The en banc court is not, of course, bound by Cruz. Indeed, one question

the majority addresses is “whether this court en banc should change anything in our

earlier en banc decision in Cruz . . . .” Maj. Op. at 23. In any event, Cruz did not decide

this issue.

The en banc court in Cruz considered the issue of whether section 7702 provides

the Board with jurisdiction over both the adverse action claim and the discrimination

claim.20 We held that section 7702 was not an independent source of jurisdiction. The

Board could not adjudicate a discrimination claim under section 7702 unless it

independently had jurisdiction under section 7701. See Cruz, 934 F.2d at 1248. I do
20
The question presented to the en banc court in Cruz was: “Whether an allegation
of title VII discrimination . . . expands the jurisdiction of the [Board] . . . where the board
had already determined that it lacked jurisdiction under 5 U.S.C. § 7512 . . . .” 934 F.2d
at 1243 (emphases added).

04-3442 18
not take issue with that holding, but Cruz did not present the issue of the jurisdictional

standard. The question presented in Cruz inherently assumed that the question of

section 7701 jurisdiction had already been decided adverse to the employee, and did

not require the court to choose between a preponderance of the evidence standard and

a non-frivolous allegation standard for section 7701 jurisdiction. The standard for

section 7701 jurisdiction was likewise not briefed by the parties.

The Board, and the Department of Homeland Security on appeal, have

nonetheless found it significant here that we stated in Cruz that “the Board never had

jurisdiction” under section 7701. Id. at 1247. But in finding an absence of Board

jurisdiction under section 7701, we did not endorse the preponderant evidence standard

used by the administrative judge. Rather, we found that “Cruz [ ] submitted no evidence

. . . indicating that his resignation was involuntary.” Id. at 1244. Thus, to the extent that

Cruz said anything at all about the proper standard under section 7701, it only rejected

the sufficiency of bare allegations, unsupported by evidence, to support jurisdiction. It

did not address the issue of whether the proper standard for jurisdiction under section

7701 is a non-frivolous allegation standard or a preponderance of the evidence

standard. Cruz, 934 F.2d at 1244. The non-frivolous allegation standard was thus not

rejected by Cruz. Nor should it be rejected here.

***

Today’s decision crafts an unfortunate and ill-conceived exception to our

jurisprudence applying the non-frivolous allegation standard to determine the jurisdiction

of the Board. The effect of the decision is to defeat Board jurisdiction over an important

class of cases involving discrimination. Unlike the majority I would hold that the Board’s

04-3442 19
jurisdiction is established by non-frivolous allegations. Because Garcia has without

question made a non-frivolous allegation of a violation of the Rehabilitation Act, I would

hold that the Board has jurisdiction over her claim, and remand for a hearing on the

merits.

04-3442 20