Johnny Granado, Jr. v. Department of Justice

721 F.2d 804, 1983 U.S. App. LEXIS 13702, 32 Empl. Prac. Dec. (CCH) 33,928

Opinions

SKELTON, Senior Circuit Judge.

The question presented in this ease is whether this court has jurisdiction of the present appeal from a Merit Systems Protection Board (MSPB) decision dated November 6, 1981, which dismissed for lack of jurisdiction a probationary employee’s complaint dealing solely with discrimination based on national origin. Granado v. Department of Justice, MSPB Docket No. DA315H8210001. We hold that we do not, and accordingly, we dismiss the appeal.

I

Petitioner, Johnny Granado, Jr., was formerly employed as a border patrol agent with the Immigration and Naturalization Service (INS). By a letter dated August 27, 1981, petitioner was informed that he was being terminated effective September 11, 1981, prior to the completion of his one year probationary period, due to deficiencies in his work performance. The letter advised petitioner that he could appeal the removal decision to the MSPB if he believed the discharge was based upon discrimination because of partisan political reasons or marital status. If he felt the termination was due to discrimination because of race or national origin, he was advised to consult an INS Equal Employment Opportunity Counselor within 30 days of the effective date of the termination.

Petitioner filed a complaint with an INS Equal Employment Opportunity Counselor on September 29,1981, alleging that he was discharged because of his national origin. On September 30, 1981, he filed an appeal with the Dallas Regional Office of the MSPB, also alleging discrimination based on national origin. Petitioner contended that the MSPB had jurisdiction of such a complaint under Section 8-4a(5) of Chapter 315 of the Federal Personnel Manual (FPM). The Dallas Regional Office dismissed the appeal for lack of jurisdiction, holding that under 5 C.F.R. § 315.806(b) and (d),¹ a probationary employee could allege discrimination based on national origin only if he raised such discrimination in addition to alleging discrimination based on partisan political reasons or marital status. By an order dated March 23, 1982, the MSPB denied petitioner’s petition for review of the initial decision, after which petitioner brought this appeal.

II

A

The jurisdiction of this court over appeals from the MSPB is governed by 28 U.S.C. (a)(9) (Federal Courts Improvement Act of 1982 (“the Act”), Pub.L. No. 97-164, § 127(a), 96 Stat. 25) and by 5 U.S.C. § 7703(b) and (d) (as amended by the Act, § 144). 28 U.S.C. § 1295(a)(9) gives the United States Court of Appeals for the Federal Circuit exclusive jurisdiction “of an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to §§ 7703(b)(1) and 7703(d) of title 5 * * ² Section 7703(b)(1) of title 5 states that “except as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the board (MSPB) shall be filed in the United States Court of Appeals for the Federal Circuit.” Paragraph (2) of § 7703(b) provides that “cases of discrimination subject to the provisions of § 7702 of this title shall be filed under § 717(c) of the Civil Rights Act of 1964 * * Section 7702 of title 5 and § 717(c) of the Civil Rights Act provide a very elaborate and detailed procedure to follow in actions dealing with discrimination, which involves the Equal Employment Opportunity Commission and the federal district courts, but not the Court of Appeals for the Federal Circuit. Williams v. Department of the Army, 715 F.2d 1485 (Fed.Cir.1983).

In this case, petitioner’s claim of discrimination based upon national origin would have brought him under the provisions of § 7702 if he had not been a probationary employee. However, as a probationary employee his rights of appeal were restricted by statute and regulation. Although 5 U.S.C. § 7701(a) grants an employee in the competitive service who is not serving a probationary period the right to appeal to the MSPB, 5 U.S.C. §§ 7501(1) and 7511(a)(1) specifically exclude individuals in their probationary period from the definition of “employee” for purposes of the type of removal action involved here. A limited right of appeal is granted to a probationary employee, however, by the regulation quoted at note 1, supra. As noted above, the MSPB dismissed petitioner’s appeal because of failure to comply with this regulation. It is clear from the statutes and regulations quoted above, that we have jurisdiction to review the MSPB’s decision only if it is granted to us by 5 U.S.C. § 7703(b)(1).

’ Prior to the enactment of the Federal Courts Improvement Act of 1982, appeals from decisions of the MSPB could be filed under § 7703(b)(1) in either the Court of Claims or one of the courts of appeal. The same exception for cases of discrimination applied then as applies now. Under 5 U.S.C. § 7703(b)(2), those cases followed an entirely different route of appeal. The Court of Claims had the opportunity on more than one occasion to rule upon its jurisdiction in discrimination cases involving probationary employees. In the case of Hadley v. Department of the Navy, Ct.Cl. App. No. 7-80 (order of November 13, 1981), a probationary employee alleged that he was dismissed in violation of the Rehabilitation Act of 1973, because he was a reformed alcoholic.³ The court held in Had-ley that it not only lacked jurisdiction to review an order of the MSPB on the merits, but it also lacked jurisdiction to review the MSPB’s order dismissing the appeal for lack of jurisdiction. The court relied principally on the Supreme Court case of Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). In that case, the Supreme Court held that § 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(c) (1976), (which section is referred to by 5 U.S.C. § 7703(b)(2)) “provides the exclusive judicial remedy for claims of discrimination in federal employment.” Id. at 835, 96 S.Ct. at 1969. This remedy permits an employee to file suit in a district court to review his claim of employment discrimination. Because of the exclusiveness of this remedy, the Court of Claims held in Hadley that it was barred from reviewing any order of the MSPB in this type of case.

The Court of Claims followed Hadley in the subsequent case of Richardson v. Department of Justice, Bureau of Prisons, Ct.Cl.App. No. 40-81 (order of January 29, 1982). In that case a probationary employee was removed from his job as a correctional officer at a prison. He appealed to the MSPB, alleging that his dismissal was unlawful because it was due to his race. The MSPB dismissed the appeal for lack of jurisdiction. The court, citing Hadley and Brown, held that it, too, was without jurisdiction to review the case. It noted that since Brown, it had “consistently held that ‘any jurisdiction this court may have had over back pay claims based on racial discrimination has been divested by the Equal Employment Act of 1972,’ ” which added § 717 to the Civil Rights Act. Richardson, supra at 3, citing Clark v. United States, 212 Ct.Cl. 590, 553 F.2d 104 (1970). It is clear, therefore, that the Court of Claims did not have jurisdiction to review this type of discrimination claim under old § 7703(b)(1).

The facts in the instant case are so similar to the facts in Hadley and Richardson that the decisions in those cases are dispositive of the issue involved here, unless the Act changed some critical aspect of our jurisdiction that renders these precedents inapplicable.⁴ The Act gives our court exclusive jurisdiction of appeals from the MSPB under new § 7703(b)(1) of title 5, except § 7702 discrimination eases. However, the grant of “exclusive jurisdiction” to this court in § 1295(a)(9) of the Act does not create any new rights in petitioner, but merely grants jurisdiction to this court if the petitioner already has such a right. Williams v. Department of the Army, supra. The Act allocates jurisdiction between circuits by combining the jurisdictions of the Court of Claims and that of the various courts of appeals in MSPB eases, other than those involving discrimination, into the jurisdiction of this court. Williams, supra. But both before and after the passage of the Act, jurisdiction of discrimination cases was placed in the district courts. The Act does not evidence an intent by Congress to extend our jurisdiction to appeals from the MSPB involving claims of discrimination. We find nothing in the Act which would change the result mandated by Hadley and Richardson. Therefore, in accordance with these precedents, which we are required to follow, we hold that we have no jurisdiction under 5 U.S.C. § 7703(b)(1) to review the MSPB’s decision in this case.⁵ Because petitioner has pursued his administrative remedy separately by filing a complaint with an INS Equal Employment Opportunity Counselor, we do not find it necessary in the interests of justice to transfer the case to the district court. Accordingly, the appeal is dismissed.

DISMISSED.

Footnotes

1

. 5 C.F.R. § 315.806(b) and (d), referring to employees in a probationary period, provide, in pertinent part:

(b) On discrimination. An employee may appeal under this paragraph a termination not required by statute which he or she alleges was based on partisan political reasons or marital status.

(d) an employee may appeal to the Board under this section a termination which the employee alleges was based on discrimination because of race, color, religion, sex, or national origin; or age, provided that at the time of the alleged discriminatory action the employee was at least 40 years of age; or physical handicap, only if such discrimination is raised in addition to one of the issues stated in paragraph (b) * * *.

A probationary employee is one who in his first year of service is in one of the several categories listed in 5 C.F.R. § 315.801.

2

. 5 U.S.C. § 7703(d) is not applicable to this case.

3

. The Rehabilitation Act of 1973 made available all of the “remedies, procedures, and rights” of the Civil Rights Act of 1964. 29 U.S.C. § 794a(a)(l).

4

. The decisions of the Court of Claims are binding precedent upon our court. South Corp. v. United States, 690 F.2d 1368 (Fed.Cir.1982).

5

. Our decision is strengthened by the recent in banc decision of this court in Williams v. Department of the Army, supra, which held that an appeal from an MSPB decision in a case having a discrimination issue and also a nondiscrimination issue could not be bifurcated so as to allow the appealing employee to pursue his discrimination issue in the district court and his nondiscrimination issue in this court, and both issues must be tried in the district court under 5 U.S.C. § 7703(b)(2), and that we lack jurisdiction under 5 U.S.C. § 7703(b)(1) over such cases.