Joseph F. WILLIAMS, Petitioner, v. DEPARTMENT OF the ARMY, Respondent

715 F.2d 1485, 1983 U.S. App. LEXIS 13660, 37 Empl. Prac. Dec. (CCH) 35,441, 36 Fair Empl. Prac. Cas. (BNA) 1518

• Court: Court of Appeals for the Federal Circuit
• Decided: September 6, 1983
• Docket: Appeal 72-82
• Status: Published

Opinions

OPINION AND ORDER

NIES, Circuit Judge.

This appeal is from a decision of the Merit Systems Protection Board (MSPB) dated August 4, 1982, affirming the action of the Department of the Army removing Joseph L. Williams, Sr., (petitioner) from his position as a Supervisory Staff Administrative Assistant in the 327th Military Police Battalion, Chicago, Illinois. Williams v. Department of the Army, MSPB Docket No. CH03518210087.

In the MSPB proceedings Williams attacked the action taken against him on the ground that it was not supportable on the merits and that a basis for his removal was race discrimination. Upon affirmance of the agency action by the MSPB, Williams pursued two avenues for review of the MSPB decision. By appeal to the United States Court of Claims (a predecessor of this court) pursuant to 5 U.S.C. § 7703(b)(1), Williams sought review on the record of the non-discrimination issues, and by a complaint in the United States District Court for the Northern District of Illinois, Eastern Division, under § 717(c) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(c) (1976), he asked de novo review of the discrimination issues.

The Department of the Army has filed a motion to dismiss the instant appeal for lack of jurisdiction, asserting that the jurisdictional statutes do not allow bifurcation of an MSPB decision for purposes of review and that only the district court has jurisdiction.

Having reviewed the record of proceedings and the submissions of the parties in banc,¹ and finding a lack of jurisdiction to hear the appeal, we transfer the case to the district court in which the discrimination suit is pending.

I

The jurisdiction of the United States Court of Appeals for the Federal Circuit is set out in the Federal Courts Improvement Act of .1982, 28 U.S.C. § 1295, which provides:

(a) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction—

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(9) of an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to section 7703(b)(1) ... of Title 5.

5 U.S.C. § 7703(b)(1), referred to therein, provides an employee aggrieved by a final order or decision of the MSPB with the following avenues of review:

Except as provided in paragraph (2) of this subsection [5 U.S.C. § 7703(b)(2) ], a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit.[²] Notwithstanding any other provision of law, any petition for review must be filed within 30 days after the date the petitioner received notice of the final order or decision of the Board.

5 U.S.C. § 7703(b)(2) provides:

(2) Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as applicable. Notwithstanding any other provision of law, any such case filed under any section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under section 7702.

Finally, we must consider § 7702, which defines the types of “cases of discrimination” which are excluded from the jurisdiction of this court, as follows:

(a)(1) ... 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 Merit Systems Protection Board, and

(B) alleges that a basis for the action was discrimination prohibited by—

(i) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16),

(ii) section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d))

(iii) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791),

(iv) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), or

(v) any rule, regulation, or policy directive prescribed under any provision of law described in clauses (i) through (iv) of this subparagraph.

Thus, a case under § 7702 must involve a specific type of action against an employee which may be appealed to the MSPB and an allegation in the nature of an affirmative defense that a basis for the action was discrimination within one of the categories above listed. Cases falling within § 7702 have been termed “mixed.”³

An examination of petitioner’s appeal to the MSPB discloses that the petition is founded upon a removal action appealable to the board under § 7701 and contains an allegation of prohibited racial discrimination under the Civil Rights Act referenced in § 7702(a)(1)(B)(i). Thus, the case is one which falls squarely within § 7702.

Taking the language of § 7703(b)(1) literally, one would conclude that the appeal in this case is clearly beyond our jurisdiction. However, our review of decisions of other circuit courts, which were faced with construing this statute prior to the lodging of exclusive jurisdiction of § 7703(b)(1) appeals in this court, indicates that the issue is not entirely without doubt. Nevertheless, these circuits each concluded that the statutory scheme as a whole indicates that Congress intended to authorize unitary, rather than bifurcated, review of an MSPB decision involving an adverse personnel action, and that the statutory provisions of § 7703(b)(1) must be given the meaning that appears on first reading. We agree. .In reaching this decision we are mindful that the United States Court of Claims has, in two MSPB appeals, referred to the possible “severability” of discrimination claims. Patterson v. United States, No. 730-81C (Ct.Cl. Order entered April 27, 1982) (case dismissed and transferred to district court), and Poppos v. Department of the Navy, No. 81-81 (Order entered August 20, 1982) (MSPB’s dismissal affirmed because agency’s action was not an appealable adverse action). The results or decisions in those cases do not conflict with the result herein. To the extent that the analysis differs, this decision is controlling.⁴

II

The Fifth Circuit decision in Wiggins v. U.S. Postal Service, 653 F.2d 219 (1981), appears to be the first to have considered the issue of whether bifurcation of an appeal from an MSPB decision in a mixed case was either permissible or required. The court approached the problem by determining the scope of the jurisdiction of a district court in a “mixed” case, stating:

Our analysis begins with the language of the statute. Section 7702 is not limited to individual claims of discrimination, but is instead extended to any “case of any employee ... who alleges that a basis for the action was discrimination ....” 5 U.S.C. § 7702(a)(1) (emphasis added). This language echoes descriptions found in the legislative history of the Act. The Senate Report, for example, refers to the district courts’ jurisdiction over decisions and orders of the board “involving discrimination complaints.” S.Rep. No. 95-969, supra, at 63. Thus, both the statute and its legislative history define jurisdiction in terms of “cases” which “involve discrimination,” and not in terms of “discrimination claims;” this suggests that the Congress intended district court jurisdiction to extend to all claims in any case involving a charge of discrimination.

Indeed, this interpretation is consistent with the statute’s treatment of mixed cases in previous stages of the process: section 7702 explicitly requires the Board in appealable cases alleging both discrimination and non-discrimination claims to decide both issues. 5 U.S.C. § 7702(a)(1)(B).

We recognize that the Congress sought as a general rule to vest jurisdiction of appeals from Board decisions not involving discrimination claims in the courts of appeals; as noted above, the Congress desired thereby to reduce the wide variations in decisions which resulted from appeals to district courts. However, this concern must be tempered with the fact that district court decisions in such cases are themselves appealable to the courts of appeals, and must be balanced against the tremendous waste of judicial resources that bifurcation of one case between district and circuit courts would inevitably entail. If an individual appeal from the Board were divided into separate discrimination and non-discrimination cases, the district and circuit courts each would be required initially to hear the case, and each would be forced to consider the case in the absence of some claims which may be dispositive. In the context of these concerns we are convinced that the statutory language should be read literally, that is, to vest initial jurisdiction in the district courts over any “case” in which an employee alleges discrimination as “a basis for the action.”

Id. at 221-22. (Emphasis in original and footnotes omitted.)

At the time the Wiggins case was under submission, a similar appeal of the non-discrimination issues of a mixed case was before the Tenth Circuit in Christo v. MSPB, 667 F.2d 882 (10th Cir.1981). The Christo court held, in dismissing the appeal, that “jurisdiction in this matter is vested exclusively in the district court.” Id. at 883. The court’s analysis begins:

Research has uncovered no case law dealing with this question. However, the various statutory provisions of the Act and its legislative history indicate a clear Congressional preference for combining various aspects of a single agency determination under one review proceeding, both in the administrative and judicial channels.

Id.

A reading of § 7702 confirms this conclusion. Throughout § 7702, the issues of a mixed case are tied together for resolution at the same time. Section 7702(a)(2) requires an “agency” (i.e., not the MSPB) to decide “both the issue of discrimination and the appealable action” within 120 days and “the decision” is judicially reviewable or appealable to the board. Similarly, § 7702(a)(1)(B) requires the Board (i.e., the MSPB) also to decide all issues in the case within 120 days. Moreover, throughout § 7702, the word “decision” is used in referring to the administrative result of the proceeding in a mixed case, and the words “judicially reviewable action,” again in the singular, is used concerning the review which may follow from the decision, whether the decision be that of an agency, the Board, the Equal Employment Opportunity Commission, or a special panel to which a matter may be certified. Having used “issue of discrimination” in § 7702(a)(1)(B) and again in § 7702(a)(2)(B), if that issue were to be severable from the rest of the case for purposes of judicial review, Congress could have easily provided for a decision on that “issue” to be the subject of a “judicially reviewable action.” Congress did not so provide, and we find no sound reason to interpret “a decision” to mean “decisions” or to read “action” as “action and appeal.”

In Hayes v. United States Government Printing Office, 684 F.2d 137, 140-41 (D.C. Cir.1982), the District of Columbia Circuit also undertook a thorough study of the problem of review of mixed cases, noting:

Every court of appeals considering the issue of appropriate disposition of mixed cases has concluded that, in the light of this language and legislative history, and of the policies involved as well, such cases must be treated as a unit and must go first to the district courts.²

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[I]n view of the language of the statute itself, the intent of the legislature, and the strong policies favoring initial district court review of mixed cases, we dismiss Hayes’s petition for review. When the administrative procedure advances to fruition, Hayes may bring his entire mixed case before the district court for review. April 30, 1981), cert, denied, 454 U.S. 1032 [102 S.Ct. 569, 70 L.Ed.2d 475] (1981).

Accord Vauls v. Veterans Administration, 693 F.2d 232 (D.C.Cir.1982).

Thus, we are led to conclude for similar reasons that Congress did not direct or contemplate bifurcated review of any mixed case. Rather, § 7702 reflects the statement in the legislative history:

In such cases, questions of the employee’s inefficiency or misconduct, and discrimination by the employer, will be two sides of the same question and must be considered together.

S.Rep. No. 95-969, 95th Cong., 2d Sess. 53, reprinted in 1978 U.S.Code Cong. & Ad. News 2723, 2775.

III

We do not find anything in the Federal Courts Improvement Act or its legislative history which leads us to conclude that bifurcation of appeals is appropriate by virtue of the amendment of § 7703(b) and the grant of “exclusive” jurisdiction to this court in 28 U.S.C. § 1295(a)(9). The latter section in itself is not the basis of appellant’s right but merely a grant of jurisdiction to the court if the appellant has such right. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1975).

To hold that “exclusive” in the preamble of § 1295(a) means exclusive of the district court would have no more validity with respect to subparagraph (9) than any other subparagraph in § 1295(a).⁵ The language clearly operates to allocate jurisdiction between circuits as it does throughout the chapter (e.g., § 1292(c)).

IV

Policy considerations also support unitary appeal rather than bifurcated treatment. From the standpoint of judicial economy, consideration of all issues by a single tribunal is clearly preferable. As stated by the Hayes court, 684 F.2d at 140-41,

Second, as the Wiggins court noted, to split the discrimination and nondiscrimination claims, which are closely related both logically and as a factual matter, would result in a tremendous waste of judicial resources while the district court and court of appeals twice consider the identical issues.⁴

H.R.Rep. No. 1403, 95th Cong., 2d Sess. 107 (1978).

The above considerations which led to consolidation at the administrative level apply equally to an appeal. Merely because separate findings are made by the MSPB on each issue does not mean that the issues are logically severable in reaching a conclusion on the propriety of an employee’s removal. In a district court suit, the employee will charge that discrimination motivated the adverse action and the Government defense inevitably must include the merits of the administrative action to justify the action taken and negate discrimination. Petitioner has been removed only once and has proceeded through one administrative proceeding. It is well settled that a cause of action may not be split. Cf. Everett Plywood Corp. v. United States, 206 Ct.Cl. 244, 247, 512 F.2d 1082, 1087 (Ct.Cl.1975); Alyeska Pipeline Service Co. v. United States, 688 F.2d 765 (Ct.Cl.1982).

Finally, the interests of the litigant do not lead in the direction of bifurcation. While petitioner here seeks, indeed, urges an interpretation of the statute which would require dual routes of review, the expense and inconvenience of this procedure on private parties cannot be discounted. On the other hand, we do not believe that this decision will enable litigants to forum shop between district courts and this court by merely alleging discrimination. The district courts have ample authority to dismiss cases based on frivolous or sham discrimination claims. They need not transfer even legitimate merits issues where a litigant has made abusive use of the judicial system.

V

We hold that where jurisdiction lies in the district court under 5 U.S.C. § 7703(b)(2), the entire action falls within the jurisdiction of that court and this court has no jurisdiction, under 5 U.S.C. § 7703(b)(1), over such cases. This holding is limited to situations in which the employee is challenging judicially the board’s determinations of both the discrimination and the nondiscrimination issues. We express no view on whether we would have jurisdiction over cases in which the employee initially raised both issues before the board, but either abandoned the discrimination claim during the board proceeding or eschewed any judicial challenge of the board’s ruling on that issue. Such a case is not before us. Petitioner here is actively pursuing review of all issues decided by the board.

Because the pleadings in the proceedings before the district court do not track the issues of this appeal in all respects, we find it in the interests of justice to transfer this case to the district court.

Accordingly, IT IS ORDERED THAT:

The case is transferred to the United States District Court for the Northern District of Illinois, Eastern Division.

1 . After consideration of this motion by a panel of the court, the court voted, sua sponte, for consideration of the matter in banc, requesting additional briefs and oral argument by the parties. The Bar Association of the District of Columbia participated as amicus curiae.

2 . This court was substituted as the specified appellate court in place of “the Court of Claims or a United States court of appeals” by the Federal Courts Improvement Act of 1982, Pub.L. 97-164, § 144, 96 Stat. 25, 45 (1982). The present appeal, timely filed in the Court of Claims, was transferred to this court pursuant to that Act.

3 . “Mixed” must be understood as discrimination mixed with an appealable action. Under § 7702 an employee may challenge an adverse action on non-discrimination and discrimination grounds or solely on discrimination grounds. See Christo v. MSPB, 667 F.2d 882, 884 n. 1 (10th Cir.1981).

4 . Patterson was a case comparable to this one where dual review was being pursued and the appeal was transferred by the Court of Claims to a district court. Poppos raised an issue of jurisdiction of the MSPB over a probationary employee’s appeal. In that case, while racial and age discrimination were alleged, the case did not become a mixed case under § 7702 because it failed to pass the first criterion of “an action which the employee ... may appeal to the board.” Contrary to the dissent, a probationary employee has the burden to prove that his appeal is within the board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2). Were jurisdiction to rest on mere allegations, probationary employees would in all cases be able to secure as complete review as non-probationary employees.

2 Chang v. MSPB, 677 F.2d 173 (1st Cir. 1982); Christo v. MSPB, 667 F.2d 882 (10th Cir.1981), mandate recalled, dismissal vacated and petition transferred, 667 F.2d 882, 885 (1982); Wermers v. MSPB, No. 80-7675 (9th Cir. Sept. 9, 1981); Wiggins v. United States Postal Service, 653 F.2d 219 (5th Cir.1981); Von Minden v. Nuwes, No. 80-7764 (9th Cir.

5 . Section 1295(a)(4)(B) provides exclusive jurisdiction, inter alia, of appeals from the Trademark Trial and Appeal Board, which may, nevertheless, be reviewed alternatively by suit in district court and appeal to a regional circuit. 15 U.S.C. § 1071 (1976) and 15 U.S.C. § 1121, as amended by the Federal Courts Improvement Act, supra.

4 The difficulty involved in separating discrimination and nondiscrimination claims at the administrative level was brought to the attention of the Congress in a letter from the Comptroller General, which was reproduced in the House report on the CSRA:

[a] clear distinction between an equal employment and merit principle complaint is difficult, if not impossible, and employees frequently perceive their problems to be both. We believe that placing the adjudication of these complaints in different organizations will invite duplicate or two track appeals on the same issues simultaneously, or sequentially, to EEOC and MSPB. In addition to wasting time, effort and money, this situation poses a very real potential for differing definitions of issues, inconsistent interpretations of laws, regulations and irreconcilable decisions.