Rodriguez, et al v. US, et al

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Timothy Belcher Dyk**, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. **Of the Federal Circuit, sitting by designation. [15-2178]

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United States Court of Appeals
For the First Circuit
No. 15-2178
ROSA CARMINA RODRIGUEZ; ALEXIS E. AGOSTINI; RAYMOND U. ARROYO;
CARL C. CHRISTENSEN; ERNESTO L. CRUZ; MANUEL Q. CRUZ; SHIRLEY
Y.M. CUMMINS; LINDA T. KUAILANI; ROY LYNCH; RAFAEL A. MARTINEZ;
ALBERT E. MILLER; JULIA Q. NORMAN; HILDAMAR ORTIZ; REGINALD
KENALIO PUANA; IVAN O. PUIG; CYNTHIA JEAN ROMNEY; VICTOR L.
ROSARIO; CELIA A. RUIZ; JOEL A. TUTEIN,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA; THE UNITED STATES OFFICE OF PERSONNEL
MANAGEMENT; BETH F. COBERT, Acting Director of the United States
Office of Personnel Management,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Nancy Torresen, Chief U.S. District Judge]

Before

Dyk,



Howard, Chief Judge,
and Thompson, Circuit Judges.

Adam H. Charnes, with whom Christin J. Jones, Thurston H.
Webb, and Kilpatrick Townsend & Stockton LLP were on brief, for
appellants.
Stephanie R. Marcus, Attorney, Appellate Staff, Civil
Division, United States Department of Justice, with whom Benjamin



Of the District of Maine, sitting by designation.
Of the Federal Circuit, sitting by designation.

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C. Mizer, Principal Deputy Assistant Attorney General, Rosa E.
Rodríguez-Vélez, United States Attorney, and Marleigh D. Dover,
Attorney, Appellate Staff, Civil Division, United States
Department of Justice, were on brief, for appellees.

March 24, 2017

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DYK, Circuit Judge.

Date Filed: 03/24/2017

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Plaintiffs challenge the Office of

Personnel Management’s (“OPM”) regulations that exclude cost-ofliving allowances (“COLAs”)1 from the calculation of retirement
and other benefits.

These COLAs are received by federal employees

working in non-foreign areas located outside the contiguous United
States.

Plaintiffs allege that these regulations are unlawfully

discriminatory under Title VII of the Civil Rights Act of 1964,
Pub L. No. 88-352, 78 Stat. 241, 253–66, and are arbitrary,
capricious, and contrary to law under the Administrative Procedure
Act (“APA”).

The district court dismissed plaintiffs’ complaint.

We affirm.
I.
Although we conclude that in many respects the merits of
plaintiffs’ claims are not before us, we briefly outline the issues
underlying the dispute.

This case concerns the calculation of

retirement and other benefits for federal employees working in
non-foreign areas located outside the contiguous United States.
These areas include at least Puerto Rico, the U.S. Virgin Islands,
Guam, the Northern Mariana Islands, Hawaii, and Alaska.

1

In

These cost-of-living allowances, which are based on
differences in geographic location of employment, are distinct
from “cost-of-living adjustments” (also confusingly known as
“COLAs”), which are annual adjustments to federal employment pay
schedules based on inflation. See Beer v. United States, 696 F.3d
1174, 1177 (Fed. Cir. 2012) (en banc).
The cost-of-living
adjustments are not at issue in this case.
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addition to their normal salaries, federal employees working in
these

areas

receive

cost-of-living

allowances,

or

COLAs,

calculated based on “living costs substantially higher than in the
District of Columbia.”

5 U.S.C. § 5941(a)(1).

Congress first

provided for such payments (then called “additional compensation”)
in 1948, and Congress provided the President with authority to
issue regulations governing the payments.2
Pursuant to that congressional authority, on September
16, 1948, President Truman issued Executive Order 10,000, 13 Fed.
Reg. 5453.

In the order, President Truman delegated authority to

the United States Civil Service Commission (“CSC”) (predecessor of
OPM) to prescribe regulations.

13 Fed. Reg. at 5455.

On December

30, 1948, the CSC promulgated the regulations at issue in this
case.

See Territorial Post Differentials and Territorial Cost-

of-Living Allowances, 13 Fed. Reg. 8725 (1948).
The 1948 CSC regulations provided for COLA payments, but
they stated that COLAs are not part of the “base used in computing”
entitlements such as retirement benefits.
§ 350.6(f).

13 Fed. Reg. at 8727,

This rule excluding COLA payments from basic pay for

retirement purposes persists in OPM’s regulations today.

2

5 C.F.R.

See Independent Offices Appropriations Act of 1949, Pub. L.
No. 80-491, § 207, 62 Stat. 176, 194 (1948); Supplemental
Independent Offices Appropriations Act of 1949, Pub. L. No. 80862, § 104, 62 Stat. 1196, 1205 (1948); see also 5 U.S.C. § 5941(a)
(“[T]he allowance is paid only in accordance with regulations
prescribed by the President . . . .”).
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§ 591.239(b).

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The consequence, under the regulations, is that

employees receiving COLA payments earn lower retirement annuities
than they would earn were the COLA payments included in their basic
pay.

We refer to this exclusion of COLA from base pay as the

“exclusionary rule.”
Plaintiffs

complain

that

the

exclusionary

rule

is

contrary to law because, plaintiffs assert, there is no basis for
the exclusionary rule in either the statute or Executive Order
10,000.

The government contends that the exclusionary rule is

mandated by statute.

The government explains that the statutory

definition of “basic pay” for federal employees in the retirement
laws explicitly excludes “allowances.”

See 5 U.S.C. § 8331(3)

(“‘basic pay’ . . . does not include . . . allowances” under the
Civil Service Retirement System (“CSRS”)); see also id. § 8401(4)
(incorporating the CSRS definition of “basic pay” into the Federal
Employees’

Retirement

System

(“FERS”)).

The

current

statute

governing COLA payments refers to those payments as “allowances.”
Id. § 5941(a)(1).

Therefore, the government reasons, COLAs are

allowances and must be excluded from basic pay.

The government

also notes that COLAs are exempt from federal income tax.

See 26

U.S.C. § 912(2).
Plaintiffs do not agree that COLAs are “allowances”
within the meaning of the retirement laws.

Plaintiffs argue that

when COLAs were established in 1948, Congress referred to them as
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“additional compensation” rather than “allowances.”

See 5 U.S.C.

§

interpretive

118h

(1952).

Plaintiffs

contend

that

no

significance should be attributed to the United States Code’s 1966
recodification,3 when Congress in the COLA statute replaced the
terminology
terminology.

“additional

compensation”

with

the

“allowances”

See H.R. Rep. No. 89-901, at 117 (1965) (“The word

‘allowances’ is substituted for ‘additional compensation’ as a
more apt term and for consistency.”).

Plaintiffs argue that the

1966 recodification was not intended to introduce substantive
changes and, thus, the COLA statute’s mere change in terminology
introducing the label “allowances” in 1966 cannot justify the
exclusionary rule.
Plaintiffs

further

complain

that

the

rule

also

unlawfully discriminates against COLA payment recipients, many of
whom are minorities that make up significant populations in COLA
areas.

Plaintiffs contend that “today, federal employees in COLA

areas are the only class of federal employees in the United States
whose regular compensation for normal working hours in their place
of permanent residence is not included in their retirement base.”
Plaintiffs’ Br. 11–12.

3

Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 378, 512–

13.
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II.
Plaintiffs are a group of 19 current and former federal
employees working in the non-foreign COLA areas.

Plaintiffs filed

a class action complaint in the United States District Court for
the District of Puerto Rico challenging the exclusionary rule on
behalf of a putative class of similarly situated current and former
employees and surviving spouses of such employees.
named

the

United

States,

OPM,

and

the

(collectively, “the government”) as defendants.

Plaintiffs

Director

of

OPM

The complaint, as

later amended, seeks a declaratory judgment that the exclusionary
rule is arbitrary, capricious, and contrary to law under the APA
and

that

the

rule

unlawfully

discriminates

against

protected

minorities in COLA areas in violation of Title VII, 42 U.S.C.
§ 2000e-16.
complaint

With respect to the discrimination claims, the

alleges

both

that

the

rule

is

the

product

of

discriminatory intent (“disparate treatment” claim) and that it
improperly and adversely impacts minorities (“disparate impact”
claim).
On August 20, 2015, upon the government’s motion, the
district court dismissed plaintiffs’ amended complaint pursuant to
Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

The court first held that

the disparate impact claim was barred by the safe harbor provision
of Title VII, which provides that “it shall not be an unlawful
employment practice for an employer to apply different standards
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of compensation . . . to employees who work in different locations”
absent an intention to discriminate because of protected status.
42 U.S.C. § 2000e-2(h).

The court next determined that plaintiffs

had failed to administratively exhaust their disparate treatment
claim

before

OPM.

nondiscrimination

Finally,

claims

were

the

court

precluded

by

held
the

that

Civil

the

Service

Reform Act of 1978 (“CSRA”), which required plaintiffs to pursue
their claims at the Merit Systems Protection Board (“MSPB”), with
appeal to the Federal Circuit.
Plaintiffs appeal.

We have jurisdiction pursuant to 28

U.S.C. § 1291.
III.
We review a district court’s dismissal for lack of
subject matter jurisdiction and for failure to state a claim de
novo.
We

McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006).

“accept[]

the

plaintiffs’

well-pleaded

facts

as

indulg[e] all reasonable inferences to their behoof.”

true

and

Id.

There is no contention that plaintiffs have failed to
administratively exhaust their disparate impact claim, as opposed
to their other claims.

The question is whether the district court

correctly held that this claim is barred by the safe harbor
provision of 42 U.S.C. § 2000e-2(h).

Answering this question

requires first determining whether § 2000e-2(h) is a definitional
provision

that

encompasses

disparate
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impact

for

both

private

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employers and the federal government, or—as plaintiffs argue—an
affirmative defense that only applies to private employers.
It is, thus, necessary to an understanding of the Title
VII provisions applicable to the federal government to understand
the provisions applicable to private employers—provisions that
pre-date the federal employment provisions.
interpreted

the

Title

VII

provisions

The Supreme Court

applicable

to

private

employers to prohibit employment policies creating a disparate
impact in Griggs v. Duke Power Co., 401 U.S. 424 (1971).

In

Griggs, the Court explained that “[t]he Act proscribes not only
overt discrimination but also practices that are fair in form, but
discriminatory in operation.”

Id. at 431.

Under Title VII, a

claim for disparate impact covers “practices that are not intended
to discriminate but in fact have a disproportionately adverse
effect on minorities.”

Ricci v. DeStefano, 557 U.S. 557, 577

(2009).
However, not all employer actions that have a disparate
impact are unlawful.

Section 2000e-2(h) provides a safe harbor

for

compensate

employers

that

their

depending on the location of employment.

employees

differently

It provides, in relevant

part,
Notwithstanding any other provision of this subchapter,
it shall not be an unlawful employment practice for an
employer to apply different standards of compensation,
or different terms, conditions, or privileges of
employment . . . to employees who work in different
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locations, provided that such differences are not the
result of an intention to discriminate because of race,
color, religion, sex, or national origin.
Id. (emphasis added).
intentional

This section does not preclude claims of

discrimination,

disparate impact.

but

it

does

preclude

claims

of

Candelario Ramos v. Baxter Healthcare Corp. of

Puerto Rico, 360 F.3d 53, 62 (1st Cir. 2004). In Candelario Ramos,
this

court

explained

that

“different

treatment

in

different

locations is permissible absent an intent to discriminate.”
at 61.

Id.

The court also explained that § 2000e-2(h) does not merely

provide a defense to disparate impact claims, but it instead serves
to define unlawful discrimination.

See id. at 62.

Differences in

compensation depending on location of employment, by itself, is
not unlawful discrimination.

The court concluded:

The subsection itself is not surprising. Location is
often a proxy for differences in cost and other
competitive circumstances; and while Congress could have
made those circumstances a separate defense, the
difficulties of showing that a difference in pay
precisely correlated with a difference in cost would be
formidable. In effect, different locations are simply
a safe harbor in cases where there is no intentional
discrimination.
Id. (citation omitted).
The Supreme Court has also made clear that, as to
seniority

plans,

§

2000e-2(h)

is

“a

provision

that

itself

‘delineates which employment practices are illegal and thereby
prohibited and which are not.’”4

4

Lorance v. AT & T Techs., Inc.,

The portion of § 2000e-2(h) relating to seniority plans is
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490 U.S. 900, 908 (1989), superseded on other grounds by statute,
Civil Rights Act of 1991, Pub. L. No. 102-166, sec. 112, 105 Stat.
1071, 1078–79 (quoting Franks v. Bowman Transp. Co., 424 U.S. 747,
758 (1976)); see also NAACP, Detroit Branch v. Detroit Police
Officers Ass’n, 900 F.2d 903, 908 (6th Cir. 1990) (explaining that
under Lorance, § 2000e-2(h) “has been regarded as a definitional
provision”).

Plaintiffs argue that the key language of Lorance

(quoted above) is inapposite because that case addressed only the
seniority plan provision of § 2000e-2(h) and not the locationbased safe harbor provision, and that the location-based safe
harbor is an affirmative defense.
However, we see no reason to read these two portions of
§ 2000e-2(h) differently or to regard the location-based safe
harbor as an affirmative defense. To the extent that circuit cases
before Lorance treated § 2000e-2(h) generally as an affirmative
defense,5 we think they are no longer good law after Lorance.

Nor

is it significant that certain provisions of the Equal Pay Act,

contained in the same clause as the location-based safe harbor;
the clause provides in relevant part, “it shall not be an unlawful
employment practice for an employer to apply different standards
of compensation, or different terms, conditions, or privileges of
employment pursuant to a bona fide seniority or merit system, . . .
or to employees who work in different locations, provided that
such differences are not the result of an intention to discriminate
because of race, color, religion, sex, or national origin.”
5

See Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992,
1013 (11th Cir. 1982).
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which bear some resemblance to several provisions in § 2000e-2(h),
have been characterized as affirmative defenses.
Cty.

v.

Gunther,

452

U.S.

161,

168–69

(1981);

See Washington
Rodriguez

v.

Smithkline Beecham, 224 F.3d 1, 6 (1st Cir. 2000).6
The relevant legislative history of the 1964 Act also
shows that Congress intended § 2000e-2(h) to explain what is not
unlawful discrimination.

See 110 Cong. Rec. 12,723 (June 4, 1964)

(Statement of Sen. Humphrey) (explaining that the provision “makes
clear that it is only discrimination on account of race, color,
religion, sex, or national origin, that is forbidden by the title.
The [provision] does not narrow application of the title, but
merely clarifies its present intent and effect.”); see also Am.
Tobacco Co. v. Patterson, 456 U.S. 63, 73 n.11 (1982).
This distinction between defining the scope of liability
and providing an affirmative defense is pertinent to whether the
provision applies to the federal government.

6

Plaintiffs’ central

This is not to suggest that every aspect of § 2000e-2(h)
defines the offense. It may be that the “Bennett Amendment,” a
separate portion of § 2000e-2(h), provides an affirmative defense.
The Bennett Amendment provides, “[i]t shall not be an unlawful
employment practice under this subchapter for any employer to
differentiate upon the basis of sex in determining the amount of
the wages or compensation paid or to be paid to employees of such
employer if such differentiation is authorized by the provisions
of section 206(d) of Title 29.”
§ 2000e-2(h).
Unlike the
location-based safe harbor, the Bennett Amendment cross-references
29 U.S.C. § 206(d), which as noted above includes four provisions
that have been described as affirmative defenses under the Equal
Pay Act.
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argument is that, even if the location-based safe harbor provision
limits liability in the private sector, it is inapplicable to the
federal government.

Plaintiffs reason that the section applies to

“employers,” and Title VII excludes the federal government from
the definition of “employer.”

See 42 U.S.C. § 2000e(b) (“The term

‘employer’ . . . does not include . . . the United States . . . .”).
This court previously assumed, without explanation, that § 2000e2(h) applies to the federal government.

Cartagena v. Sec’y of

Navy, 618 F.2d 130, 134–35 (1st Cir. 1980) (per curiam).

We now

confirm that this is so and provide further explanation.
As originally enacted in 1964, Title VII did not apply
to the federal government.

See Civil Rights Act of 1964, Pub. L.

No. 88-352, § 701(b), 78 Stat. 241, 253; Brown v. Gen. Servs.
Admin., 425 U.S. 820, 825 (1976).

This was accomplished by

excluding

from

the

“employer.”

federal

government

the

definition

of

As a result, each of the substantive provisions of

Title VII prohibiting employment discrimination—as well as the
safe harbor provision of § 2000e-2(h)—applied at that time only to
non-government “employers.”7
In 1972, Congress extended Title VII coverage to federal
employees.

See Equal Employment Opportunity Act of 1972, Pub. L.

7

Title VII also applied to employment agencies, labor
organizations, and various types of training programs.
See
generally 42 U.S.C. § 2000e-2.
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No. 92-261, § 11, 86 Stat. 103, 111–13 (codified as amended at 42
U.S.C. § 2000e-16).

Rather than simply amend the definition of

“employer” to include the United States, Congress created an
entirely

new

section

of

Title

VII

applicable to federal employment.

specifically

(and

only)

See 42 U.S.C. § 2000e-16.

It

provided in general that
All personnel actions affecting employees or applicants
for employment . . . in executive agencies . . . shall
be made free from any discrimination based on race,
color, religion, sex, or national origin.
§ 717(a), 86 Stat. at 111 (codified as amended at 42 U.S.C. § 2000e16(a)).
Through the 1972 Act, Congress intended to “accord[]
‘(a)ggrieved (federal) employees or applicants . . . the full
rights available in the courts as are granted to individuals in
the private sector under title VII.’”

Chandler v. Roudebush, 425

U.S. 840, 841 (1976) (quoting S. Rep. No. 92-415, at 16 (1971)).
Thus, “[i]n general, it may be said that the substantive antidiscrimination law embraced in Title VII was carried over and
applied to the Federal Government.”

Morton v. Mancari, 417 U.S.

535, 547 (1974).8

8

See Ponce v. Billington, 679 F.3d 840, 844 (D.C. Cir. 2012)
(“It is well-established that [42 U.S.C. § 2000e-16(a)] legislated
for federal employees essentially the same guarantees against . . .
discrimination that previously it had afforded private employees.
Thus, the general provisions of Title VII apply with equal force
in both private and federal-sector cases.” (quotation marks and
citations omitted) (ellipses in original)); Mlynczak v. Bodman,
442 F.3d 1050, 1057 (7th Cir. 2006) (“[T]he substance of the
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It
prohibition

is
on

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undisputed
disparate

federal employers.

that

impact

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the

1972

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amendment

discrimination

made

applicable

the
to

Because, as we have described above, the

definition of disparate impact discrimination is determined, in
part, by the safe harbor provision at issue here, § 2000e-2(h),
the safe harbor provision necessarily applies equally to federal
employers.

In other words, because § 2000e-2(h) limits the scope

of liability, rather than providing an affirmative defense, the
1972

amendments

incorporating

disparate

impact

liability

necessarily included the location-based safe harbor.
Plaintiffs make much of the fact that in 1972 and the
years

following,

provision

Congress

governing

private-sector

incorporated

federal

provisions

employment

of

Title

by
(§

VII,

reference
2000e-16)
but

chose

incorporate the safe harbor provision of § 2000e-2(h).
U.S.C.

§

2000e-16(d),

(f).

For

example,

§

into

the

several
not

to

See 42

2000e-16(d)

now

federal employee's right in [§ 2000e-16(a)] is the same as the
more familiar rights assured to all other employees . . . .”);
Larson on Employment Discrimination § 63.02 (2015) (explaining
that § 2000e-16(a) “has usually been interpreted by the courts to
mean that substantive Title VII standards applicable to private
employment were intended to apply to federal workers”); see also
Morales-Vallellanes v. Potter, 605 F.3d 27, 35–36 (1st Cir. 2010)
(“Unlike its private-sector counterpart, Title VII does not
contain an express antiretaliation provision applicable to the
federal government as employer. Nonetheless, we have assumed that
the antiretaliation provision applicable to private employers
operates to prohibit retaliation in the federal sector.” (citation
omitted)).
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provides, “[t]he provisions of section 2000e-5(f) through (k) of
this title, as applicable, shall govern civil actions brought
hereunder, and the same interest to compensate for delay in payment
shall be available as in cases involving nonpublic parties.”

The

incorporated sections relate only to enforcement procedures.

The

failure to incorporate the substantive provisions into § 2000e-16
in the years after 1972 hardly suggests that Congress intended
that the substantive standards applicable to private employees
would not apply to federal employees given that was the central
purpose of the 1972 amendments.9
Plaintiffs argue that more recent amendments to Title
VII also support their position.

Plaintiffs point out that in

1991, Congress amended Title VII again, this time, among other
things, to define and insert a new term, “respondent,” which
includes

the

federal

provisions of § 2000e-2.

government

in

certain

newly

enacted

See Civil Rights Act of 1991, Pub. L.

No. 102-166, § 104, 105 Stat. 1071, 1074.

9

As amended, § 2000e

The specific incorporation of certain procedural aspects of
the private-sector Title VII sections into the federal provision
was necessary because § 2000e-16 deviated from Title VII’s
procedural scheme.
Through § 2000e-16, Congress created “an
exclusive, pre-emptive administrative and judicial scheme for the
redress of federal employment discrimination.” Brown, 425 U.S. at
829; see also 42 U.S.C. § 2000e-16(b) (permitting the Equal
Employment Opportunity Commission (“EEOC”), inter alia, to
promulgate regulations providing for appropriate remedies); id.
§ 2000e-16(c) (providing the right to file a civil action following
administrative review procedures specific to federal employees).
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defines “respondent” in relevant part as “an employer . . . or
Federal entity subject to section 2000e-16 of this title.” 42
U.S.C. § 2000e(n).

But Congress did not amend the safe harbor

provision of § 2000e-2(h) to include “respondents.”

Plaintiffs

suggest that this inaction evidences congressional intent that the
safe harbor not apply to the federal government.

We disagree.

Plaintiffs’ inference hardly follows since Congress in 1991 did
not amend any other existing subsections of § 2000e-2 to include
the term “respondent,” and those subsections generally have been
held to apply with equal force to federal employers in keeping
with the purposes of the 1972 amendment.

Adopting plaintiffs’

argument would mean that the substantive provisions applicable to
private employers would not apply to the federal government, a
position inconsistent with established authority.
We hold that the rule set forth in § 2000e-2(h) applies
to discrimination claims brought against the federal government.
Because plaintiffs conceded that their disparate impact claim
would be precluded by this rule if it applies in this case, we
affirm the district court’s dismissal of the disparate impact
claim.
IV.
The
correctly

next

dismissed

question

is

plaintiffs’

whether

the

intentional

district

court

discrimination

(disparate treatment) claim for lack of administrative exhaustion.
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It is settled that a federal court will not entertain employment
discrimination

claims

brought

under

Title

VII

administrative remedies have first been exhausted.
Salem

State

Coll.,

557

F.3d

22,

26

(1st

Cir.

unless

Fantini v.
2009).

The

requirement of administrative exhaustion serves to “provide the
employer

with

prompt

notice

of

the

opportunity for early conciliation.”

claim
Id.

and

to

create

an

It is equally settled

that an exhaustion requirement applies to federal employees as
well as private sector employees.

42 U.S.C. § 2000e-16(c); Green

v. Brennan, 136 S. Ct. 1769, 1775 (2016); Velazquez-Ortiz v.
Vilsack, 657 F.3d 64, 71 (1st Cir. 2011).
In

the

federal

employment

context,

the

exhaustion

requirement demands that, as a prerequisite to filing suit in
district court, a federal employee “seek relief in the agency that
has allegedly discriminated against him.”

Brown, 425 U.S. at 832.

This means that a complainant must first file a formal complaint
with

the

Equal

Employment

Opportunity

allegedly discriminating agency.
The

complaint

“must

be

(“EEO”)

office

of

the

See 29 C.F.R. § 1614.106(a).

sufficiently

precise

to

identify

the

aggrieved individual and the agency and to describe generally the
action(s) or practice(s) that form the basis of the complaint.”
Id. § 1614.106(c).
A later civil action in district court is limited to the
allegations

of

discrimination

first

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presented

in

the

EEO

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complaint.

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Velazquez-Ortiz, 657 F.3d at 71 (“The fact that a

complainant has filed an EEO complaint does not open the courthouse
door to all claims of discrimination.”); Morales-Vallellanes v.
Potter, 339 F.3d 9, 18 (1st Cir. 2003) (“[Plaintiff’s] Title VII
cause of action is limited to those discrimination and retaliation
allegations in his amended complaint that were previously the
subject of a formal EEO complaint.”). “This exhaustion requirement
is no small matter; it ‘is a condition to the waiver of sovereign
immunity’ and thus ‘must be strictly construed.’”

Vazquez-Rivera

v. Figueroa, 759 F.3d 44, 47–48 (1st Cir. 2014) (quoting Irwin v.
Dep’t of Veterans Affairs, 498 U.S. 89, 94 (1990)).
Plaintiffs

here

do

not

dispute

these

general

requirements or that OPM here is the relevant agency to which they
needed to submit their allegations of discrimination.

Rather,

they contend that they satisfied the exhaustion requirements as to
their disparate treatment claim.
The problem is that plaintiffs raised in their EEO
complaint to OPM only a claim for disparate impact, and not
disparate treatment.

At the heart of a claim for disparate

treatment is a showing of the defendants’ “discriminatory intent
or motive.”

Ricci, 557 U.S. at 577; see also Ray v. Ropes & Gray

LLP, 799 F.3d 99, 112–13 (1st Cir. 2015).

Plaintiffs’ various

filings with the OPM EEO office repeatedly and explicitly alleged
that the exclusionary rule has a discriminatory adverse impact on
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protected minorities.

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For example, the addendum to each complaint

has an entire section entitled, “The Agency’s Exclusionary Rule
Has a Disparate Impact on Racial and Ethnic Minorities in Violation
of the Civil Rights Act.”

J.A. 528.

There is no discussion of

discriminatory intent in that section or elsewhere in the addendum.
Likewise,

the

supporting

memorandum

submitted

by

plaintiffs to OPM makes clear that plaintiffs asserted only a claim
for disparate impact.

The memorandum includes a section entitled,

“OPM’s Salary Decisions Result in a Disparate Impact in Violation
of 42 U.S.C. § 2000e-16,” but does not contain any discussion of
discriminatory intent.

J.A. 594–95.

It explains that “[i]n this

case, discrimination is occurring by reason of the ‘disparate
impact’ of the agency’s actions on protected minorities.”
594.

Id. at

It points out that “[a] party need not show any intent or

motive to discriminate” to make out a case for disparate impact.
Id.

It explains that “[w]hile there may be no discernible intent

to discriminate against these minorities, the effect of exclusion
statistically falls on racial minorities without any justifiable
reason.

This practice therefore has a disparate impact on these

racial minorities.”

Id. at 595 (emphasis added).

Elsewhere

throughout the 58-page memorandum, plaintiffs refer repeatedly to
the exclusionary rule’s “disparate adverse impact” or effect.
J.A. 546, 568, 575, 589, 591.

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See

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Not only does the memorandum omit any allegation that
OPM acted with discriminatory intent, but also it posits that when
the CSC promulgated the rule excluding COLAs from the retirement
base, “the agency simply acted in haste and erred as a result.”
J.A. 578–79.

This suggests that plaintiffs were not alleging

intentional discrimination.
Although

plaintiffs’

submissions

are

sprinkled

with

general allegations that the exclusionary rule “discriminates
against protected minorities, in violation of 42 U.S.C. § 2000e16,”

they

contain

discrimination.

no

specific

E.g. J.A. 524.10

allegations

of

intentional

The closest plaintiffs come to

10

See also J.A. 800 (Formal EEO Class Complaint of Rosa C.
Rodriguez: “The agency’s failure to include COLA in the retirement
base discriminates against the large numbers of racial and ethnic
minorities employed in non-foreign areas. Such discrimination has
been unlawful since 1964. This discrimination was compounded in
1990, when the locality pay program was enacted. By continuing to
exclude COLA from the retirement base, while locality pay is
included, OPM has increased the discrimination which previously
existed.”). The EEO complaints filed by other class members in the
record include similar language.
For background, in 1990 “locality pay” was established and
made available to federal employees working within the contiguous
United States.
See Federal Employees Pay Comparability Act of
1990, Pub. L. No. 101-509, § 529, 104 Stat. 1389, 1427 (1990).
Like COLAs, locality pay is compensation that employees receive
due to higher costs of living in certain geographic areas. See 5
U.S.C. § 5304(d)(1). But locality pay is different from COLAs for
benefits purposes.
Unlike COLAs, locality pay is included in
“basic pay” for purposes of retirement calculations, 5 U.S.C.
§ 5304(c)(2)(A).
In 2009, Congress created a transition program to make
locality pay available to federal employees living in COLA areas.
Non-Foreign AREA Retirement Equity Assurance Act, Pub. L. No. 111- 21 -

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alleging intentional discrimination appears in one sentence in the
memorandum that ambiguously states that the agency’s rules and
practices “discriminate against employees in non-foreign areas and
have a disparate adverse impact on racial and ethnic minorities in
violation of 42 U.S.C. § 2000e-16.”

J.A. 546 (emphasis added).

Any reasonable person reviewing plaintiffs’ materials in their
overall context would have understood that plaintiffs alleged only
a disparate impact claim.
Nor can a disparate impact allegation somehow encompass
an intentional discrimination claim on the theory that the agency
would have investigated intent in connection with the disparate
impact claim.

See Thornton v. United Parcel Serv., Inc., 587 F.3d

27, 31–32 (1st Cir. 2009) (“[T]he scope of a civil action is not
determined by the specific language of the charge filed with the
agency, but rather, may encompass acts of discrimination which the
. . . investigation could reasonably be expected to uncover.”)
(citation omitted); Fantini, 557 F.3d at 27; Jorge v. Rumsfeld,
404 F.3d 556, 565 (1st Cir. 2005).

Courts have contrasted claims

of disparate treatment and disparate impact as involving different
facts and evidence,11 and given the significant differences between

84, tit. XIX, subtitle B, §§ 1911-19, 123 Stat. 2190, 2619-27
(2009).
There is no contention that the 2009 Act affects this
appeal.
11

See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
252 n.5 (1981) (“We have recognized that the factual issues, and
therefore the character of the evidence presented, differ when the
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those theories, other circuits have held that an administrative
charge raising one theory generally does not exhaust the other.12
We reach the same conclusion.
Plaintiffs

alternatively

argue

that

they

raised

intentional discrimination in a statement later filed with the
EEOC (but not with OPM in the first instance).
held

that

requirement.

this

statement

does

not

The district court

satisfy

the

exhaustion

We agree.

Federal
discrimination,

employees
as

pursuing

plaintiffs

do

a

here,

class
are

complaint
subject

to

of
an

administrative exhaustion procedure that differs in some respects

plaintiff claims that a facially neutral employment policy has a
discriminatory impact on protected classes.”); Jones v. City of
Boston, 752 F.3d 38, 46 (1st Cir. 2014) (“Notably, a disparate
impact claim can succeed even where the employer did not intend to
discriminate. This distinguishes the disparate impact cause of
action from the more traditional disparate treatment approach to
proving discrimination.” (citation omitted)).
12

See Abdus-Shahid v. Mayor and City Council of Baltimore,
No. 15-2181, 2017 WL 35725, at *7 (4th Cir. Jan. 4, 2017)
(disparate treatment charge did not exhaust disparate impact);
Burgis v. N.Y. City Dep’t of Sanitation, 798 F.3d 63, 71 (2d Cir.
2015) (same); Pacheco v. Mineta, 448 F.3d 783, 792 (5th Cir. 2006)
(same); Diersen v. Walker, 117 F. App’x 463, 465–66 (7th Cir. 2004)
(same); Brown v. Puget Sound Elec. Apprenticeship & Training Trust,
732 F.2d 726, 730 (9th Cir. 1984) (“Any investigation of whether
[plaintiff’s] application was rejected as the result of disparate
impact would not have encompassed her subsequent claim that when
she reapplied to the program she was subjected to intentional sex
discrimination.”); but cf. Gomes v. Avco Corp., 964 F.2d 1330,
1334–35 (2d Cir. 1992) (disparate treatment allegation exhausted
disparate impact claim where disparate treatment allegation was
based on instances of alleged differential treatment related to a
facially neutral rule).
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from

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the

procedures

Page: 24

governing

generally 29 C.F.R. § 1614.204.

Date Filed: 03/24/2017

individual

Entry ID: 6078947

complaints.

See

But even with respect to class

complaints, the complainant must submit his allegations to the
allegedly discriminating agency.

The complainant must file the

class complaint “with the agency that allegedly discriminated.”
Id. § 1614.204(c)(2).

The class complaint “must identify the

policy or practice adversely affecting the class as well as the
specific

action

or

§ 1614.204(c)(1).

matter

affecting

the

class

agent.”

Id.

Plaintiffs did not satisfy this requirement

with respect to their disparate treatment claim.
But plaintiffs point out that, after the agency EEO
office receives a formal class complaint, the agency forwards the
complaint and other materials to the EEOC, where the complainant
has a limited opportunity to elaborate on his allegations.
§ 1614.204(d)(1).

Id.

Here, OPM forwarded plaintiffs’ class complaint

materials to the EEOC on June 19, 2013.

On January 15, 2014, the

EEOC requested that the parties submit briefing as to whether
plaintiffs

met

the

certification

requirements

complaint (such as commonality, numerosity, etc.).

for

a

class

In response,

plaintiffs filed with the EEOC a “Statement in Support of Class
Certification,” in which they alleged for the first time that
“[t]he acts and omissions of OPM . . . were based at least in part
on discriminatory intent by the agency and its predecessor, the
[CSC].” J.A. 640, 643. Plaintiffs assert that this was sufficient
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for exhaustion.

Page: 25

We disagree.

Date Filed: 03/24/2017

Entry ID: 6078947

Plaintiffs were required to present

their claims in the first instance to the agency alleged to have
engaged in discrimination.13
Plaintiffs rely on several non-federal-sector district
court

cases

sufficient

which

to

incomplete.14

suggest

exhaust,

that

even

if

later
the

EEOC

initial

filings
EEOC

might

charge

be
was

But these cases do not excuse presenting the claim

first to the relevant agency in the federal employer context.
In sum, plaintiffs failed to exhaust their claim for
disparate treatment with the OPM EEO Office, and their later
filings to the EEOC did not cure this flaw.

Accordingly, the

district court properly dismissed the disparate treatment claim.

13

To be sure, the regulations appear to contemplate that in
some instances the EEOC may remand to the agency for consideration
of new allegations. See 29 C.F.R. § 1614.204(d)(3) (explaining
that if an allegation was not previously discussed with the
counselor, and the agent provides a satisfactory explanation for
this omission, the “administrative judge shall refer the
allegation to the agency for further counseling” before
consolidating the allegation with the class complaint); id.
§ 1614.204(d)(4) (explaining that if the agent provides
information that “contains new allegations outside the scope of
the complaint, the administrative judge shall advise the agent how
to proceed on an individual or class basis concerning these
allegations”).
No such remand occurred here, and none was
requested.
14

See Benbow v. State Univ. of N.Y.-New Paltz, No. 1:11-CV0870 LEK/CFH, 2014 WL 1871863, at *4 (N.D.N.Y. May 8, 2014) (“A
plaintiff may exhaust her claims not only in her initial
administrative charge, but also in subsequent submissions to the
EEOC.”); Huda v. Lockheed Martin, No. CIV. A. 07-9090, 2008 WL
191300, at *3 (E.D. La. Jan. 22, 2008).
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V.
Finally, the district court held that plaintiffs’ nondiscrimination challenges were precluded by the CSRA.
discrimination

claims

seek

a

declaratory

judgment

These nonthat

the

exclusionary rule is arbitrary, capricious, and contrary to law
under the APA.

See 5 U.S.C. § 706.

As an initial matter, the government and the district
court suggest that, because the relevant OPM regulations were
published more than six years prior to the date on which plaintiffs
filed

their

jurisdiction

complaint
over

in

district

plaintiffs’

court,

the

court

non-discrimination

lacks

challenges

because those challenges are barred by the six-year statute of
limitations applicable to APA claims.

See 28 U.S.C. § 2401(a);

Trafalgar Capital Assocs., Inc. v. Cuomo, 159 F.3d 21, 34 (1st
Cir. 1998).
While this may be true for procedural challenges, the
statute

of

limitations

does

not

require

that

a

substantive

challenge to a regulation alleging that an agency exceeded its
constitutional or statutory authority be brought within six years
after the regulation is adopted when the challenge arises (1) in
response to application of the regulation to the challenger; or
(2) after the agency denies a plaintiff’s petition to amend or
rescind a regulation.

See Dunn-McCampbell Royalty Interest, Inc.

v. Nat’l Park Serv., 112 F.3d 1283, 1287 (5th Cir. 1997); Wind
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River Min. Corp. v. United States, 946 F.2d 710, 715 (9th Cir.
1991); Pub. Citizen v. Nuclear Reg. Comm’n, 901 F.2d 147, 152 (D.C.
Cir. 1990).

Because plaintiffs assert that the regulation is

invalid as applied to them, their challenge is not barred by the
fact that the challenge was brought later than six years after the
regulation was adopted.
A.
“The
reviewing

CSRA

personnel

established
action

a

taken

comprehensive

against

federal

system

for

employees.”

United States v. Fausto, 484 U.S. 439, 455 (1988); see also Roth
v. United States, 952 F.2d 611, 614 (1st Cir. 1991).

This

framework provides the exclusive mechanism for challenging adverse
personnel actions in federal employment.

In general, an aggrieved

federal employee or applicant may appeal to the MSPB.
§ 7701(a).

5 U.S.C.

Subject to limited statutory exceptions, the appellant

may then petition for review of the MSPB’s decision to the Federal
Circuit.

Id. § 7703(b)(1)(A).
A federal employee generally may not pursue alternative

routes of judicial review, such as by filing a civil action in
district court under the APA. The Supreme Court has recognized the
primacy of the CSRA administrative review process starting at the
MSPB and culminating in judicial review at the Federal Circuit.
In Fausto, the Court explained that “[a] leading purpose of the
CSRA was to replace the haphazard arrangements for administrative
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and judicial review of personnel action, part of the ‘outdated
patchwork of statutes and rules built up over almost a century’
that was the civil service system.” 484 U.S. at 444 (quoting S.
Rep. No. 95–969, at 3 (1978)).

Given the remedies provided at the

MSPB and on appeal to the Federal Circuit, “Congress intended to
deny such employees an additional avenue of review in district
court.”

Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 2134 (2012).
This

court

has

likewise

recognized

that

“[t]he

legislative history of the CSRA establishes beyond dispute that
Congress intended that statute to provide an exclusive procedure
for challenging federal personnel decisions.”

Roth, 952 F.2d at

615 (quoting Berrios v. Dep’t of Army, 884 F.2d 28, 31 (1st Cir.
1989)); Montplaisir v. Leighton, 875 F.2d 1, 3 (1st Cir. 1989)
(noting that “the Court . . .

has jealously guarded [the] CSRA

against inconcinnous judicial incursions”).
These limitations apply as well to retirement claims,
which are first reviewed by OPM and thereafter by the MSPB and the
Federal Circuit.

The CSRA and the statutory retirement systems

(such as the CSRS and FERS) are overlapping statutory schemes that
“specif[y] the benefits to which federal employees and their
survivors
regime

are

for

entitled,

beneficiaries

and
to

provide[]
secure

review—of benefits determinations.”

a

reticulated

remedial

review—including

judicial

Fornaro v. James, 416 F.3d

63, 66 (D.C. Cir. 2005); see also Lindahl v. Office of Pers. Mgmt.,
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470

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U.S.

768,

771–75,

Page: 29

792

Date Filed: 03/24/2017

(1985)

(“Sections

Entry ID: 6078947

1295(a)(9)

and

7703(b)(1) together appear to provide for exclusive jurisdiction
over MSPB decisions in the Federal Circuit, and do not admit any
exceptions for disability retirement claims.”).
This

statutory

regime

provides

that

OPM

adjudicate all claims” regarding retirement benefits.
§ 8347(b) (CSRS); accord id. § 8461(c) (FERS).

“shall
5 U.S.C.

After OPM renders

a final decision, the statutes provide for review of OPM benefits
determinations by the MSPB.
(FERS).

Id. §§ 8347(d)(1) (CSRS), 8461(e)(1)

Employees dissatisfied by the decision of the MSPB may

petition for review in the Federal Circuit.

Id. § 7703(b)(1).

The consequence of this extensive remedial framework is that
generally the plaintiff must pursue retirement benefits claims
first at OPM, then at the MSPB, and finally at the Federal Circuit.
Plaintiffs contend that their claims are outside the
scope of this remedial scheme because their challenge is to an
agency regulation and not to individual benefits determinations.
However, in a case similar to this one, the District of Columbia
Circuit recognized that the CSRA precludes review of agency actions
involving retirement benefits, even if those actions have broad
application.

In Fornaro, a group of federal law enforcement

officers and firefighters brought an action in district court
seeking declaratory relief compelling OPM to grant them greater
retirement annuities.

416 F.3d at 65.
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CSRA preclusion did not apply because their claims asserted “a
collateral, systemwide challenge to OPM policy.”

Id. at 67.

Writing for the court, then-Judge Roberts held that the CSRA’s
“remedial provisions are exclusive,” id. at 66, and “[a]llowing an
alternative

route

to

relief

in

the

district

court

because

plaintiffs frame their suit as a systemwide challenge to OPM policy
would substitute an entirely different remedial regime for the one
Congress intended to be exclusive,” id. at 68.
It does not make any difference that this case includes
a challenge to an OPM regulation rather than a policy and that the
MSPB has determined that it does not have jurisdiction to review
substantive challenges to OPM regulations.15

In Elgin, the Supreme

Court held that the CSRA review scheme was the exclusive route for
discharged federal employees to contest their removal despite the
fact that their petitions challenged the constitutionality of a
statute.

See 132 S. Ct. at 2131, 2136.

The petitioners argued

“that the CSRA review scheme provides no meaningful review of their
claims because the MSPB lacks authority to declare a federal
statute unconstitutional.”

Id. at 2136.

15

Without deciding whether

See Latham v. U.S. Postal Serv., 2012 M.S.P.B. 20, ¶ 18
(2012), superseded on other grounds by regulation, Practices and
Procedures, 80 Fed. Reg. 4489, 4496 (Jan. 28, 2015) (codified at
5 C.F.R. § 1201.57(a)(4), (b)), as recognized in Lojewski v. U.S.
Postal Serv., AT-0353-16-0069-I-1, 2016 WL 5939682, at ¶ 18
(M.S.P.B. Oct. 11, 2016), and Kingsley v. U.S. Postal Serv., 2016
M.S.P.B. 21, ¶ 10 (2016).
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the MSPB, in fact, lacks such authority, the Court explained that
the constitutional issue could be “meaningfully addressed” in the
Federal

Circuit,

“an

Article

III

adjudicate petitioners’ claims.”

court

fully

competent

Id. at 2137.

to

If the CSRA

requires MSPB exhaustion of challenges to federal statutes, it
certainly also requires MSPB exhaustion of challenges to agency
regulations, at least where the claim arises as part of a challenge
to a specific agency determination applicable to the plaintiffs
rather

than

to

the

adoption

of

the

regulation

in

the

first

instance.
B.
Plaintiffs attempt to escape the preclusive effect of
the CSRA by arguing that they have brought a “mixed case” involving
both discrimination and non-discrimination claims.
“mixed

case”

discriminatory

is
a

one

“in

personnel

which

an

action

employee

appealable

Kloeckner v. Solis, 133 S. Ct. 596, 602 (2012).

Typically a

challenges
to

the

as

MSPB.”

Under 5 U.S.C.

§ 7702, a federal employee can bring a mixed case in district court
without following the MSPB route.

“A federal employee bringing a

mixed case . . . may first file a discrimination complaint with
the agency itself” (here, the OPM EEO office) and “[i]f the agency
decides against her, the employee may then either take the matter
to the MSPB or bypass further administrative review by suing the

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agency in district court.”

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Entry ID: 6078947

Kloeckner, 133 S. Ct. at 601; see also

5 U.S.C. § 7702(a)(2).
The

government

contends

that,

in

contrast

to

cases

involving employment actions, the mixed case framework does not
excuse a claimant from exhausting non-discrimination claims for
retirement benefits through the MSPB before proceeding to district
court, relying on Kerr v. Jewell, 836 F.3d 1048, 1057 (9th Cir.
2016).

In

Kerr,

the

Ninth

Circuit

held

that

Whistleblower

Protection Act (“WPA”) claims involved in a mixed case could not
be heard in district court where the complainant had not first
presented those claims to the MSPB.

Id.

Kerr relied in large

part on the fact that the allegedly retaliating agency declined
jurisdiction to decide a WPA claim.

See id. at 1056.

Here, OPM plainly had authority to render a decision on
the non-discrimination claims, even if particular issues (e.g.,
the

challenge

to

OPM

regulations)

lie

outside

of

OPM’s

jurisdiction. See Lisanti v. Office of Pers. Mgmt., 573 F.3d 1334,
1340

(Fed.

employee’s

Cir.

2009)

benefits

(holding

claim

that

challenging

OPM
the

could

entertain

employing

an

agency’s

interpretation of “basic pay” under the CSRS because the CSRS is
“a statute that OPM itself is required to administer”).
did not decline to exercise jurisdiction.

Also, OPM

We need not decide

whether the government’s view is correct in the WPA context.

Kerr

has no application to situations such as here where the agency has
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jurisdiction to render a decision on the benefits claims in the
first instance and has not declined jurisdiction.
Nonetheless, plaintiffs cannot bring a mixed case suit
involving non-discrimination claims in district court unless there
has been a “personnel action appealable to the MSPB.”
133 S. Ct. at 602.

Kloeckner,

The statute requires that a mixed case include

“an action which the employee or applicant may appeal to the
[MSPB].”

5 U.S.C. § 7702(a)(1)(A), (a)(2)(A).

The regulations

likewise define a “mixed case complaint” with an EEO office as “a
complaint of employment discrimination filed with a federal agency
. . . related to or stemming from an action that can be appealed
to the [MSPB].”

29 C.F.R. § 1614.302(a)(1).

This does not mean

that an employee must actually appeal the action to the MSPB, but
he must identify an action that could be appealed to the MSPB.

If

there is such an appealable action, it is possible to bypass the
MSPB and file a mixed case in district court as explained above.
But here, it is clear that plaintiffs never secured an action
appealable to the MSPB.
In

the

context

of

retirement

benefits

claims,

in

general, an employee may appeal to the MSPB only an OPM final
decision on an application for benefits.16 See 5 C.F.R. §§ 831.110,

16

Plaintiffs argue that the MSPB has broad jurisdiction to
review any OPM actions “affecting the rights or interests of an
individual or of the United States under” the federal retirement
laws.
5 U.S.C. §§ 8347(d), 8461(e).
Contrary to plaintiffs’
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Entry ID: 6078947

A final decision by OPM is a written decision that is

either designated as final by OPM, see id. §§ 831.109(f)(2),
841.307, or a reconsideration decision issued by OPM after its
initial decision, see id. §§ 831.109(f)(1), 841.306(e).

See Keira

v. Merit Sys. Prot. Bd., 396 F. App’x 703, 704 (Fed. Cir. 2010)
(per curiam).
Plaintiffs

identify

three

OPM

actions

that,

they

contend, were appealable to the MSPB: (1) OPM’s initial failure to
respond to plaintiffs’ benefits claims, which plaintiffs styled as
applications for benefits; (2) OPM’s issuance of a Final Interview
Letter terminating EEO counseling on May 17, 2013; and (3) the
failure of OPM’s EEO office to make a final decision within 120
days of the filing of plaintiffs’ formal class complaint.

But

none of these actions constitutes a final decision from OPM on any
application

for

benefits,

and

therefore,

plaintiffs

have

not

secured a final decision from OPM that "the employee or applicant
may appeal to the [MSPB]."

5 U.S.C. § 7702(a)(1)(A), (a)(2)(A).

Plaintiffs first argue that OPM initially failed to
respond to their benefits claims, styled as applications for
benefits,

“regarding

the

unlawful

miscalculation of annuities.”

discrimination

and

Plaintiffs’ Reply Br. 23.

They

suggestion, these statutes do not provide broad MSPB jurisdiction
untethered to the regulations providing for MSPB review of a “final
decision” of OPM. See Poole v. Dep’t of Army, 2012 M.S.P.B. 32,
¶ 10 (2012).
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Entry ID: 6078947

assert—in a single sentence and with no citation to authority—that
“OPM’s failure to respond to any of [p]laintiffs’ attempts to
address their claims constituted a rejection of those claims.”
Id.

But such a failure to respond does not amount to a final

decision

under

the

applicable

regulations,

see

5

C.F.R.

§§ 831.109(f), 841.306(e), 841.307 (requiring a final decision
from OPM to be in writing), though OPM’s failure to respond may
sometimes be considered an appealable action.17

Because plaintiffs

eschewed any effort to meaningfully develop the argument that OPM’s
initial failure to respond constituted a rejection of plaintiffs’
claims (or to support that argument with any authority), we need
not consider it.

See United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied

by

some

effort

at

developed

argumentation,

are

deemed waived.”).18

17

The MSPB “has recognized a limited exemption to” the finaldecision jurisdictional rule and “has found this exception
applicable where it appeared that OPM had no intention of issuing
a reconsideration decision or other further decision in the case”
or “where OPM ‘improperly failed to respond to [a claimant’s]
repeated requests for a decision.’” Keira, 396 F. App’x at 705
(quoting McNeese v. Office of Pers. Mgmt., 61 M.S.P.R. 70, 74
(1994)).
18

We have no occasion in this case to address the application
of the appealability requirement of a mixed case under 5 U.S.C. §
7702(a)(1)-(2) in circumstances where, although OPM has not issued
a final decision on an application for benefits, the MSPB would
determine that it has jurisdiction to entertain an appeal under
the limited exception to the final-decision rule. See supra note
17. We therefore express no opinion on this issue.
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Second, plaintiffs argue that the Final Interview Letter
terminating counseling sent by an OPM Senior EEO Specialist was an
OPM action appealable to the MSPB.
disagree.

Once again, however, we

The OPM letter was not an OPM decision on plaintiffs’

benefits claims—let alone a final decision—under the applicable
regulations.

See

841.306(e), 841.307.

5

C.F.R.

§§

831.109(c),

claims:

was

841.305(a),

For one thing, the letter did not purport to

address plaintiffs’ non-discrimination claims.
specialist

(f),

clearly

“Management’s

addressing
response

Instead, the EEO

plaintiffs’
into

the

discrimination
allegations

of

discrimination was that the issues are a matter of law and the
‘statutes allow for no discretion on the part of OPM.

In the

absence of discretion, there can be no improper discrimination.’”
J.A. 976 (emphasis added and omitted).

Indeed, the letter was

sent along with the notice informing plaintiffs of their right to
file a formal discrimination complaint with OPM’s EEO office in
accordance with 29 C.F.R. § 1614.105(d).19
Third, plaintiffs suggest that their later filing of a
formal EEO class complaint (described above in Part IV) gave rise

19

Because plaintiffs failed to raise the issue in their brief,
we need not decide whether the OPM letter constituted an implicit
denial of their benefits claims. See Adkins v. Office of Pers.
Mgmt., 2006 M.S.P.B. 351, ¶¶ 9-10 (2006) (concluding that MSPB had
jurisdiction to review OPM’s implicit denial of a claim for
retirement benefits); cf. Adams v. Shinseki, 568 F.3d 956, 961
(Fed. Cir. 2009) (explaining the “implicit denial” rule applicable
to veterans benefits determinations).
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to an OPM action appealable to the MSPB.

Entry ID: 6078947

Plaintiffs argue that

under 5 U.S.C. § 7702(e)(2), the OPM EEO office’s failure to
resolve plaintiffs’ administrative class complaint within 120 days
is an action (or inaction) that is appealable to the MSPB.

To be

sure, an employee may appeal a mixed case complaint originally
filed with an agency EEO office to the MSPB (or pursue the claims
in district court) if the agency EEO office fails to resolve the
complaint within 120 days.

5 U.S.C. § 7702(e)(1)(A), (2).

But

this framework requires the existence of a valid mixed case
complaint in the first place—i.e., an administrative complaint
alleging some other agency action that is within the MSPB’s
appellate jurisdiction.

The statute and regulations are clear

that in order to be a “mixed case complaint,” an EEO complaint
must identify some agency action that is appealable to the MSPB.
There was no such action here.
Because plaintiffs did not obtain a final decision from
OPM regarding their applications for benefits, they had no basis
for bypassing the MSPB and filing their non-discrimination claims
in district court as a mixed case.
VI.
In

sum,

the

district

court

properly

concluded

that

plaintiffs’ disparate impact claim is barred by the location-based
safe harbor provision of 42 U.S.C. § 2000e-2(h); that plaintiffs
have not exhausted their administrative remedies as to their
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disparate treatment claim; and that plaintiffs’ non-discrimination
claims were precluded by the CSRA.
AFFIRMED.

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Accordingly, we affirm.