WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court unanimously
ruled Dec. 10 that a federal employee claiming that an agency action
appealable to the Merit Systems Protection Board (MSPB) violates an
antidiscrimination statute in 5 U.S. Code Section 7702(a)(1) should file the
appeal in a district court, not the Federal Circuit U.S. Court of Appeals (Carolyn
M. Kloeckner v. Hilda L. Solis, Secretary of Labor, No. 11-184, U.S. Sup.;
See August 2012, Page 56) (lexis.com subscribers may access Supreme Court briefs for this case) .
"[T]he intersection of federal civil rights statutes and
civil service law has produced a complicated, at times confusing, process for
resolving claims of discrimination in the federal workplace. But even
within the most intricate and complex systems, some things are plain. So
it is in this case, where two sections of the CSRA [Civil Service Reform Act],
read naturally, direct employees like [Carolyn] Kloeckner to district court,"
Justice Elena Kagan wrote for the court.
Kloeckner was a senior investigator for the Employment
Benefits Security Administration of the U.S. Department of Labor (DOL).
In June 2005, Kloeckner filed a timely administrative complaint asserting that
she had been subjected to a hostile work environment based on her age and
gender. She amended her complaint two months later to allege that in
retaliation for her June complaint, agency officials charged her with being
absent without leave, rather than on medical leave without pay, for a six-week
period beginning the day she filed her original complaint.
In late spring 2006, the DOL completed its
investigation. On June 20, 2006, Kloeckner requested a hearing before an
EEOC administrative judge. On July 18, 2006, while her complaint was
pending, the DOL terminated Kloeckner. One reason given for the
termination was Kloeckner's six-week absence without leave.
On Aug. 18, 2006, Kloeckner appealed her termination to
the MSPB. Because she alleged that her termination was the result of
discrimination, that appeal presented a mixed case. The result of the
appeal was that two related administrative proceedings, both alleging
discrimination, were pending at the same time. The mixed case was before
the MSPB, and the nonmixed case was before the EEOC administrative judge.
In September 2006, the parties filed a joint motion with
the EEOC administrative judge to amend the complaint and for extension of
discovery deadlines. In that motion, Kloeckner asked that her pending
complaint be amended to include a challenge to her July 2006 termination.
Although counsel for the parties agreed that discovery should take place in
connection with the EEOC proceeding, they were unable to agree about what
should be done regarding the pending MSPB appeal. Kloeckner's counsel
decided to file a motion asking the MSPB administrative judge to dismiss the
appeal without prejudice for four months, a period that would have lasted past
the end of the discovery deadline the parties were proposing to the EEOC
administrative judge. The MSPB judge granted the motion.
The EEOC discovery was delayed. As the deadline for
refiling the appeal with the MSPB approached, Kloeckner was left with few
options. If she refiled with the MSPB before the EEOC discovery was
complete, her complaint at the EEOC may have been dismissed. In addition,
the DOL had already taken the position that by going to the EEOC in September,
Kloeckner had forfeited her rights to pursue any appeal to the MSPB.
However, under Sections 1614.302(d)(1)(ii) and
1614.302(d)(3) of the EEOC regulations, and under Section 1201.154(a) of the
MSPB regulations, Kloeckner believed that if she continued to pursue her
agency-level complaint until there was a final agency decision by the DOL
regarding her discrimination complaint, she would at that point have an express
right to file an appeal to the MSPB. So Kloeckner chose not to refile her
appeal and instead opted to pursue her EEOC complaint.
In April 2007, the EEOC judge concluded that Kloeckner
had engaged in misconduct in connection with the discovery process and as a
sanction terminated the EEOC proceedings and returned the case to the DOL for a
final agency decision. The decision, rejecting Kloeckner's claims, was
issued in October 2007. It included a notice advising Kloeckner that she
could appeal the decision to the MSPB or that she could file a civil action in
the appropriate U.S.
Kloeckner appealed to the MSPB. But the DOL moved
to dismiss the appeal, arguing that it was precluded by the September 2006
decision of the MSPB judge. The motion to dismiss was granted.
Kloeckner then sued the secretary of Labor in the U.S.
District Court for the Eastern District of Missouri, alleging age, gender and
disability discrimination and retaliation. The District Court dismissed Kloeckner's
complaint for lack of jurisdiction. The Eighth Circuit U.S. Court of
Appeals affirmed the trial court ruling, opining that only the Federal Circuit
has jurisdiction over mixed cases in which there have been no merits decision
by the MSPB.
Kloeckner petitioned the U.S. Supreme Court.
high court rejected the government's arguments and reversed the Eighth
"The first step of the Government's argument derives from
§7703(b)(2)'s [of the CSRA] second sentence. Right after stating that
'cases of discrimination subject to [§7702]' shall be filed under specified
antidiscrimination statutes (i.e., shall be filed in district court),
§7703(b)(2) provides: 'Notwithstanding any other provision of law, any
such case filed under such [statute] must be filed within 30 days after the
date the individual filing the case received notice of the judicially
reviewable action under section 7702.' The Government reads that sentence
to establish an additional prerequisite for taking a case to district court,
instead of to the Federal Circuit. . . . The Government's second
step-that the Board's procedural rulings are not 'judicially reviewable
actions'-begins with the language of §7702(a)(3). That provision, the Government
states, 'defines for the most part which MSPB decisions qualify as "judicially
reviewable actions[s]"' by 'providing that "[a]ny decision of the Board under
paragraph (1) of this subsection shall be a judicially reviewable action as
of the date of the decision.' . . . From there, the Government
moves on to the cross-referenced paragraph-§7702(a)(1)-which states, among
other things, that the Board 'shall, within 120 days of [the employee's
filing], decide both the issue of discrimination and the appealable action in
accordance with the Board's appellate procedures.' According to the
Government, the Board only 'decide[s] . . . the issue of discrimination' when
it rules on the merits, rather than on procedural grounds. On that view,
a procedural decision is not in fact 'a decision of the Board under paragraph
(1),' which means that is also not a 'judicially reviewable action' under
§7702(a)(3)," the court held.
"If you need to take a deep breath after all that, you're
not alone. It would be hard to dream up a more roundabout way of
bifurcating judicial review of the MSPB's rulings in mixed cases. If
Congress had wanted to send merits decisions to district court and procedural
dismissals to the Federal Circuit, it could just have said so. The
Government has offered no reason for Congress to have constructed such an
obscure path to such a simple result," the high court said.
Eric Schnapper of the University of Washington School of
Law in Seattle
Solicitor General Donald B. Verrilli Jr. in Washington represents
the secretary of Labor.
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