Edwards v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: July 7, 2023
• Docket: 22-1967
• Status: Unpublished

Opinion

Case: 22-1967 Document: 32 Page: 1 Filed: 07/07/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

JOHN S. EDWARDS, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2022-1967 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-1221-16-0227-W-1. ______________________

Decided: July 7, 2023 ______________________

PETER BROIDA, Arlington, VA, argued for petitioner.

JEFFREY GAUGER, Office of General Counsel, United States Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________

Before PROST, CHEN, and CUNNINGHAM, Circuit Judges. PROST, Circuit Judge. Case: 22-1967 Document: 32 Page: 2 Filed: 07/07/2023

John S. Edwards appeals from a Merit Systems Protec- tion Board (“Board”) decision dismissing his individual right of action (“IRA”) appeal under the Whistleblower Pro- tection Act for lack of jurisdiction. We affirm. BACKGROUND Mr. Edwards worked at the Department of Labor (“DOL”) as a director in the Office of Information Systems and Technology (“OIST”). Mr. Edwards alleged that two OIST supervisors were discriminating against Black em- ployees. In July 2015, he informed those supervisors of his observations. App’x 83. 1 Mr. Edwards then filed, on Octo- ber 16, 2015, an informal complaint with DOL’s Equal Em- ployment Opportunity (“EEO”) Office detailing his allegations of racial discrimination. App’x 34–37. On Oc- tober 27, 2015, one of the supervisors Mr. Edwards accused of discrimination reassigned him to a position with dimin- ished responsibilities. App’x 86. According to Mr. Ed- wards, this supervisor stated that she was reassigning him “because of [his] EEO complaint.” Id. A few days later, Mr. Edwards filed another complaint, this time with the Office of Special Counsel (“OSC”). App’x 38–59. This complaint repeated Mr. Edwards’s allegations of discrimination in OIST and also alleged retaliation against him for “re- port[ing those] EEO violations.” App’x 42. The OSC closed the investigation after it determined that Mr. Edwards’s allegations “are more appropriately resolved” through the Equal Employment Opportunity Commission (“EEOC”). App’x 67, 69. Mr. Edwards then filed an IRA appeal with the Board, which the Board dismissed for lack of jurisdiction. Mr. Ed- wards appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(9). See Young v. MSPB, 961 F.3d 1323, 1327–28

1 “App’x” refers to the appendix attached to Mr. Ed- wards’s principal brief. Case: 22-1967 Document: 32 Page: 3 Filed: 07/07/2023

EDWARDS v. MSPB 3

(Fed. Cir. 2020) (holding that IRA appeals do not constitute “mixed cases” under Perry v. MSPB, 582 U.S. 420 (2017), even where the underlying allegations relate to retaliation for exercising a Title VII right). DISCUSSION “We review de novo whether the Board has jurisdiction over an appeal.” Smolinski v. MSPB, 23 F.4th 1345, 1350 (Fed. Cir. 2022). For the Board to have jurisdiction over an IRA appeal, the appellant must, among other things, make nonfrivolous allegations that he made a protected disclo- sure under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) or (b)(9)(B)–(D). 5 U.S.C. § 1221(a); Smolinski, 23 F.4th at 1350. Section 1221(a) plainly excludes activities under § 2302(b)(9)(A)(ii)—“the exercise of any appeal, complaint, or grievance right . . . other than with regard to remedying a violation of [§ 2302(b)(8)]”—from IRA jurisdiction. In this case, the Board determined it lacked jurisdic- tion because Mr. Edwards’s alleged protected activity falls under 5 U.S.C. § 2302(b)(9)(A)(ii). The Board reasoned that—under Young and Spruill—Mr. Edwards’s allega- tions of EEO violations and retaliation for reporting them “may not be raised in an IRA appeal[] because IRA appeals are limited to alleged violations of whistleblower protection statutes” and reporting EEO violations “[is] a nonwhistle- blowing” activity. Edwards v. DOL, No. DC-1221-16-0227- W-1, 2022 WL 1438663, at *4 (M.S.P.B. May 5, 2022) (first citing Spruill v. MSPB, 978 F.2d 679, 680–81, 690–92 (Fed. Cir. 1992); then quoting Serrao v. MSPB, 95 F.3d 1569, 1575 (Fed. Cir. 1996); and then citing Young, 961 F.3d at 1327–28). On appeal, Mr. Edwards argues that Young and Spruill are distinguishable or otherwise do not govern the outcome of this case. We disagree. Case: 22-1967 Document: 32 Page: 4 Filed: 07/07/2023

As an initial matter, Mr. Edwards agrees that Young and Spruill dictate that filing a formal EEO complaint can- not supply the Board with IRA jurisdiction because a for- mal EEO complaint falls under 5 U.S.C. § 2302(b)(9)(A)(ii). Oral Arg. at 0:27–45, 10:21–29. 2 However, Mr. Edwards maintains that this case is different because he filed an in- formal EEO complaint. See Pet’r’s Br. 15–16. We are not persuaded. Although the appellants in Young and Spruill did file formal EEO complaints, we did not elevate the form of such complaints over their substance. See Young, 961 F.3d at 1329–30; Spruill, 978 F.2d at 690–92. As Young explains, it’s an appellant’s “exercis[e of] a Title VII right” that pushes a case into the realm of § 2302(b)(9)(A)(ii) and thus deprives the Board of IRA jurisdiction. Young, 961 F.3d at 1329. And there’s no dispute here that Mr. Ed- wards exercised Title VII rights when he filed his informal EEO complaint alleging racial discrimination in OIST. Mr. Edwards also asserts that his verbal complaints to his supervisors permit his allegations of retaliation for re- porting racial discrimination to proceed through the Board via an IRA appeal. According to Mr. Edwards, even if his informal EEO complaint falls under § 2302(b)(9)(A)(ii), his disclosure of the same allegations to his supervisors falls under § 2302(b)(8). Pet’r’s Br. 18–22; see also Oral Arg. at 8:00–32 (Mr. Edwards’s counsel arguing that “there is some duplication”). But Mr. Edwards’s disclosures to his supervisors were of the same substance as his EEO com- plaint. Per Young, this EEO complaint falls under § 2302(b)(9)(A)(ii)—i.e., is “other than with regard to rem- edying a violation of” § 2302(b)(8). We don’t see how claims of retaliation by the same actors for disclosing verbally the same alleged violation later memorialized in an EEO com- plaint can proceed separately. Spruill reinforces this

2 No. 22-1967, https://oralarguments.cafc.uscourts .gov/default.aspx?fl=22-1967_06092023.mp3. Case: 22-1967 Document: 32 Page: 5 Filed: 07/07/2023

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understanding of the interplay between § 2302(b)(8) and § 2302(b)(9)(A)(ii). Spruill counsels that appellants cannot maintain simultaneous Board and EEOC jurisdiction to re- solve the same alleged violations. Otherwise, the Board and EEOC would “duplicat[e]” effort to resolve the same dispute and thereby waste “governmental resources” and potentially generate “conflicting procedures or outcomes.” Spruill, 978 F.2d at 691–92. Mr. Edwards argues that this court’s recent Smolinski decision allows duplicative Board and EEOC proceedings to resolve alleged retaliation for disclosing Title VII viola- tions. Pet’r’s Br. 16–22. Not so. Smolinski is not instruc- tive here because it did not involve the exercise of a Title VII right. In Smolinski, Dr. Smolinski, a federal employee, alleged retaliation for testifying about another federal em- ployee’s sexual harassment of Dr. Smolinski’s wife, who was not a federal employee. See Smolinski, 23 F.4th at 1351. And while sexual harassment is a form of sex dis- crimination that Title VII covers, Title VII protection did not play a role in Smolinski because the alleged discrimi- nation wasn’t of one federal employee against another; it was of one federal employee against a non-employee. See Oral Arg. at 18:51–20:10; cf. 5 U.S.C. § 2302(b)(1) (prohib- iting employees from discriminating “against any employee or applicant for employment” (emphasis added)). Thus, the IRA jurisdiction under § 2302(b)(8) in Smolinski was based on allegations of “abuses of authority,” not based on allega- tions that would have also fallen under Title VII or § 2302(b)(1). Since Mr. Edwards seeks review of claims of retaliation for coming forward with allegations of Title VII violations, the Board lacks IRA jurisdiction, and jurisdiction instead lies exclusively with the EEOC. Case: 22-1967 Document: 32 Page: 6 Filed: 07/07/2023

CONCLUSION We have considered Mr. Edwards’s remaining argu- ments and find them unpersuasive. For the foregoing rea- sons, we affirm. AFFIRMED COSTS No costs.