BOLTON v. BERRYHILL et al
Filing
32
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 5/22/2015. It is RECOMMENDED that Defendants' Motion to Dismiss for Lack of Jurisdiction (Docket Entry 16 ) be granted and that Plaintiff's Motion for Partial Summary Judgment (Docket Entry 20 ) be denied as moot.(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ZONNYTTA BOLTON,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN COLVIN, Acting
Commissioner of Social
Security, and OFFICE OF
PERSONNEL MANAGEMENT,
Defendants.
1:14CV151
MEMORANDUM OPINION AND RECOMMENDATION
This case comes before the Court for a recommended ruling on
Defendants’ Motion to Dismiss for Lack of Jurisdiction (Docket
Entry 16) and Plaintiff’s Motion for Partial Summary Judgment
(Docket Entry 20).
dismiss
this
case
For the reasons that follow, the Court should
because
the
Court
lacks
subject-matter
jurisdiction.
BACKGROUND
Plaintiff, an employee of the Social Security Administration
(“SSA”), filed an Amended Complaint in this Court appealing a
determination of the Merit Systems Protection Board (“MSPB”) which
upheld her demotion by SSA.
(Docket Entry 11 at 1.)1
In disputing
her demotion, Plaintiff’s Amended Complaint asserts a claim for
1
All pin citations to documents in the record refer to the
page numbers in the footer appended upon filing via the CM/ECF
system.
disability discrimination under the Rehabilitation Act, challenges
various regulations and procedures of the MSPB and the Office of
Personnel
Management
(“OPM”),
and
asserts
the
facial
unconstitutionality of 5 U.S.C. § 7701(c)(1)(A), requiring the MSPB
to uphold agency employment decisions if supported by substantial
evidence.
In
(Id. at 1-2, 16-17.)
late
2011,
SSA
demoted
Plaintiff
from
a
Paralegal
Specialist to a Legal Assistant. (Docket Entry 17 at 17-18; Docket
Entry 21 at 10.)
Plaintiff then appealed that decision to the
MSPB,
both
asserting
discrimination.
improper
procedures
and
disability
(Docket Entry 17 at 19; Docket Entry 21 at 10.)
During the pendency of that appeal, Plaintiff moved for the MSPB to
notify
OPM
that
she
challenged
various
further, to compel discovery from OPM.
Docket Entry 21 at 11.)
OPM
regulations
and,
(Docket Entry 17 at 20;
Rather than rule on those motions, the
MSPB apparently opened a separate case against OPM to determine
whether it should review the challenged OPM regulations.
Entry 17 at 20-21; Docket Entry 21 at 11.)
affirmed
Plaintiff’s
demotion
(in
the
(Docket
The ALJ subsequently
case
against
SSA)
and
Plaintiff petitioned the full board to review the ALJ’s decision.
(Docket Entry 17 at 19-20; Docket Entry 21 at 10.)
Then,
challenged
in
OPM
April
2013,
the
regulations
and
MSPB
declined
Plaintiff
to
shortly
review
the
thereafter
appealed that decision to the United States Court of Appeals for
-2-
the Federal Circuit.
12.)
In
January
(Docket Entry 17 at 21; Docket Entry 21 at
2014,
the
full
MSPB
affirmed
Plaintiff’s
termination and Plaintiff then filed the instant action in this
Court.
(Docket Entry 17 at 22-23; Docket Entry 21 at 14.)
In
April 2014, the Federal Circuit granted Plaintiff’s request for a
voluntary dismissal of her case against OPM.
(Docket Entry 17 at
23; Docket Entry 21 at 14.)
Defendants subsequently filed their instant Motion, asserting
that Plaintiff’s appeal to the Federal Circuit in the OPM case
precludes her from now bringing a mixed case in district court.
(Docket Entry 16; see Docket Entry 17 at 8.)
Plaintiff responded
in opposition and moved for summary judgment as to certain claims.
(Docket Entry 20.)
Defendants replied as to their Motion to
Dismiss and responded in opposition to summary judgment.
Entry 24.)
Judgment
(Docket
Plaintiff replied as to her Motion for Partial Summary
(Docket
Entry
27)
and
responded
a
second
time
to
Defendants’ Motion to Dismiss (Docket Entry 29).
DISCUSSION
Under the Civil Service Reform Act of 1978 (“CSRA”), “a
federal employee subjected to . . . [a] demotion may appeal her
agency’s decision to the [MSPB].”
Kloeckner v. Solis, __ U.S. __,
__, 133 S. Ct. 596, 600 (2012); see 5 U.S.C. §§ 7512(3)-(4),
7701(a).
“In that challenge, the employee may claim, among other
things, that the agency discriminated against her in violation of
-3-
a federal statute.”
§ 7702(a)(1)).
Kloeckner, 133 S. Ct. at 600 (citing 5 U.S.C.
“When an employee complains of a personnel action
serious enough to appeal to the MSPB and alleges that the action
was based on discrimination, she is said (by pertinent regulation)
to have brought a ‘mixed case.’”
Id. (emphasis in original)
(citing 29 C.F.R. § 1614.302).
“An employee who is dissatisfied with the MSPB’s decision is
entitled to judicial review in the United States Court of Appeals
for the Federal Circuit.” Elgin v. Department of Treasury, __ U.S.
__, __, 132 S. Ct. 2126, 2130 (2012).
As a general rule, “[t]he
Federal Circuit has exclusive jurisdiction over appeals from a
final decision of the MSPB.” Id. at 2131 (internal quotation marks
omitted). Mixed cases represent the sole exception to that general
rule within the CSRA.
See id. at 2134.
If the MSPB upholds the
agency’s personnel action in a mixed case, “[t]he employee may
appeal [that] MSPB decision to either the U.S. Court of Appeals for
the Federal Circuit or the appropriate federal district court.”
Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 2009).
However, “[i]f the employee pursues the mixed case in the
Federal
Circuit,
because
the
then
Federal
she
abandons
Circuit
discrimination claims.”
Id.
lacks
her
discrimination
jurisdiction
to
claims
entertain
Accordingly, once an employee elects
to appeal a mixed case from the MSPB to the Federal Circuit, she
“waives her right to bring a discrimination claim in district court
-4-
based on the same or related facts.”
Id.
For that reason, the
Federal Circuit requires such employees to certify, by completing
Federal
Circuit
Claim
Form
10,
either
that
no
claim
of
discrimination has been or will be made, or that any such claim has
been abandoned.
Id. at 564.
For instance, in Pueschel, a federal employee challenged her
termination
before
the
MSPB
and
alleged
retaliation by her agency employer.
discrimination
Id. at 562.
and
That employee
also raised as an affirmative defense that her agency employer had
improperly failed to allow her to “buy back” three thousand hours
of leave.
Id.
The MSPB affirmed the employee’s termination and
she appealed to the Federal Circuit, which also affirmed.
Id.
That employee later brought an action in district court (this time
bypassing the MSPB) in which she alleged a hostile work environment
and
“that
she
discrimination
was
subjected
to
and
retaliation
gender
when
and
[her
disability-based
agency
employer]
interfered with [her efforts] to buy back 3,000 hours of leave.”
Id.
Because the employee had already raised (in the first case)
the allegation concerning her inability to buy back 3,000 hours of
leave before the MPSB and then appealed that decision to the
Federal Circuit (rather than bringing a mixed case in a federal
district court), the district court dismissed the action for lack
of subject-matter jurisdiction.
noting
that
the
employee
Id.
“[could
-5-
The Fourth Circuit affirmed,
not]
create
a
superficial
distinction between her claims that have gone before the Federal
Circuit and the district courts, since they ar[o]se out of the same
set of facts.”
Id. at 564.
In the instant case, Plaintiff does not dispute that she
submitted Form 10 upon appealing her case against OPM to the
Federal Circuit.
(See Docket Entry 21 at 13.)
In fact, the record
reflects that Plaintiff’s counsel signed a copy of Form 10 and
indicated that “[n]o claim of discrimination by reason of . . .
handicapped condition has been or will be made in this case.”
(Docket
Entry
31
at
141.)
Instead,
Plaintiff
asserts
that
“[Plaintiff’s] case in the Federal Circuit has nothing to do with
her demotion at SSA, which was the subject of the MSPB decision
being challenged in this [C]ourt.”
(Docket Entry 21 at 8.)
argument
Fourth
fails
in
light
of
the
Circuit’s
That
holding
in
Pueschel.
Plaintiff admits that both actions arose from her demotion by
SSA and, further, that the OPM case derived from the SSA case.
(See Docket Entry 21 at 12-14.)
However, she appears to assert
that the OPM case, because it represented a facial challenge to a
regulation, somehow did not concern the facts of her case:
At no point in the Bolton v. OPM proceeding did
[Plaintiff] ask the MSPB to review whether the OPM
regulations were being invalidly implemented by SSA.
[Plaintiff’s] brief did not argue that the OPM
regulations discriminated against her on the basis of
disability or otherwise, and it made no arguments limited
to the facts in her case; her sole argument was that the
-6-
regulations
statute.
(Id. at 12.)
on
their
face
failed
to
implement
the
That argument fails because a plaintiff lacks
standing to bring a facial challenge in federal court divorced from
the specific facts which give rise to her case.
See, e.g.,
Northeast Plaza Assocs. v. President and Comm’rs of Town of North
East, No. 90-2738, 935 F.2d 1286 (table), at *2 (4th Cir. 1991)
(unpublished) (explaining that facial challenges still require
allegations of direct injury to plaintiff).
In fact, Plaintiff
sought review of the OPM regulation as part of her ongoing efforts
to reverse her demotion by SSA.
See Bolton v. Office of Pers.
Mgmt., No. CB–1205–12–0011–U–1, 2013 WL 9672770, at *1 (M.S.P.B.
Apr. 2, 2013) (unpublished).
Moreover, the MSPB declined to review the OPM regulation
largely because that case overlapped significantly with her initial
case
against
SSA,
see
id.
at
*3
(“[A]s
the
agency
notes,
[Plaintiff’s] claims could be reached through ordinary channels of
appeal — and, indeed, have been reached, at least in her individual
Board appeal.”), as Defendants observed (see Docket Entry 24 at
19).
Ultimately,
in
spite
of
Plaintiff’s
assertion
of
the
purported unrelatedness of the two cases before the MSPB (Docket 21
at 8), she identifies no factual distinctions between those cases
(see id. at 8-15).
The relevant standard looks to whether both
cases arose from the same or related facts - not the legal theories
of
those
cases
-
and
Plaintiff
-7-
“cannot
create
a superficial
distinction between her claims . . . since they ar[o]se out of the
same set of facts.”
Pueschel, 577 F.3d at 546.
Plaintiff additionally asserts that, in Kloeckner, the United
States Supreme Court “held that the maneuver of abandoning one’s
discrimination claim in order to get the rest of the case reviewed
in the Federal Circuit rather than district court never was legally
possible.”
(Docket Entry 21 at 8.)
In that regard, Plaintiff
contends that “an employee who has filed a mixed case appeal with
the MSPB can have judicial review by the Federal Circuit only if he
or she abandons his or her discrimination claim before the MSPB
holds a hearing on the case.”
(Id. at 9 (emphasis added).)
In
other words, Plaintiff seems to argue that, because (according to
her interpretation of Kloeckner) she never could have properly
abandoned her discrimination claim for purposes of appealing to the
the Federal Circuit, the fact that she actually did appeal to the
Federal
Circuit
does
not
preclude
this
Court’s
jurisdiction,
contrary to the Fourth Circuit’s holding in Pueschel.
8-9.)
(See id. at
That contention lacks merit for several reasons.
First, Kloeckner did not address the current situation, where
Plaintiff previously appealed a decision of the MSPB to the Federal
Circuit and now seeks review of a related decision of the MSPB by
the district court.
See Kloeckner, 133 S. Ct. at 600.
Instead,
Kloeckner resolved this specific issue:
The question presented in this case arises when the MSPB
dismisses an appeal alleging discrimination not on the
-8-
merits, but on procedural grounds. Should an employee
seeking judicial review then file a petition in the Court
of Appeals for the Federal Circuit, or instead bring a
suit
in
district
court
under
the
applicable
antidiscrimination law? We hold that she should go to
district court.
Id.
Kloeckner thus assumes a scenario in which an employee with a
mixed case at the MSPB wishes to appeal the entire case rather than
abandon the discrimination claim(s).
See id.
Accordingly, the
Supreme Court in Kloeckner considered neither the effects of
appeals from multiple, related actions at the MSPB nor the case of
employees who, after an MSPB decision on a mixed case, elect to
abandon their discrimination claims in order to appeal their other
claims to the Federal Circuit.
See id. at 600-07.
Second, as Defendants have noted, subsequent decisions by the
Federal
Circuit
do
not
support
Plaintiff’s
contention
that
Kloeckner invalidated Pueschel’s holding that an employee may
appeal an MSPB decision in a mixed case to the Federal Circuit, but
that by doing so that employee waives the right to bring any
related case in district court.
cases).)
(Docket Entry 24 at 12-14 (citing
In fact, the Federal Circuit has rejected Plaintiff’s
argument concerning Kloeckner’s effect on its jurisdiction over
mixed cases in which employees have abandoned their discrimination
claim(s). See New-Howard v. Department of Veterans Affairs, 590 F.
App’x 972, 973-74 (Fed. Cir. 2014) (“[The agency employer] asserts
that this is a mixed case involving allegations of discrimination
and that this court consequently does not possess jurisdiction to
-9-
hear this case.
But [the employee] has expressly waived her
discrimination claim that the agency’s denial of her sick leave was
motivated by discrimination.
As such, this case is no longer
mixed, and although it may have been more efficient for the
district court to hear this appeal, we do possess jurisdiction.”
(internal citations and quotation marks omitted)); accord Thurman
v. Merit Sys. Prot. Bd., 566 F. App’x 957, 960-61 (Fed. Cir. 2014);
Taylor v. Merit Sys. Prot. Bd., 544 F. App’x 973, 976 (Fed. Cir.
2013).2
Finally, even assuming the validity of Plaintiff’s reading of
Kloeckner - that it stands for the proposition that an employee
2
Plaintiff offers some support for the contrary position that mixed cases cannot be converted into non-mixed cases through
abandonment of discrimination claims - in two decisions of the
MSPB. (See Docket Entry 21 at 9 n.16 (citing Richard v. United
States Postal Serv., No. DE-0752-12-0398-I-1, 2014 WL 5339313, at
*6 (M.S.P.B. July 14, 2014) and Mills v. United States Postal
Serv., 119 M.S.P.R. 482, 486 (2013)).)
Those cases take the
position that Kloeckner requires a literal reading of the CSRA and
that the CSRA does not describe waiver of discrimination claims.
See, e.g., Mills, 119 M.S.P.R. at 487 (“The statute does not state
that the [employee] can transform a mixed case into a nonmixed case
after the [MSPB] has issued a decision simply by not seeking
judicial review on a discrimination claim.”).
Of course, as
Defendants argue, such an interpretation engenders a perverse
result for an employee who wishes to appeal only the nondiscrimination claims from a decision of the MSPB. (See Docket
Entry 24 at 13 n.1.)
Such an employee must then appeal a
discrimination claim that the employee wishes to abandon to a
federal district court (because, as discussed above, the CSRA
otherwise bars the district court’s jurisdiction).
Given that
Kloeckner did not address this scenario, see Kloeckner, 133 S. Ct.
at 600-07, and that subsequent decisions of the Federal Circuit
contradict the MSPB, Plaintiff’s position in that regard lacks
persuasive value.
-10-
cannot waive discrimination claims maintained at the MSPB to appeal
to the Federal Circuit - Plaintiff offers no support for her
contention that such interpretation gives this Court subject-matter
jurisdiction over her case (see Docket Entry 21 at 8-9). Plaintiff
states that, “even if in June 2013 [Plaintiff] had informed the
MSPB that she was withdrawing her discrimination claim, that would
not have changed the fact that she had litigated a mixed case at
the board, and that the only forum available for judicial review of
her case as a whole was the district court.”
(Id. at 9.)
In other
words, Plaintiff suggests that, in light of Kloeckner, the Federal
Circuit never should have permitted her appeal and therefore this
Court should proceed as if that appeal did not occur.
(See id.)
Plaintiff correctly states that federal district court represented
the only forum for her to appeal her entire case, see Kloeckner,
133 S. Ct. at 600, but ignores that she chose to forgo that
opportunity.
Simply put, absent any authority to the contrary,
this Court cannot ignore Plaintiff’s waiver of her discrimination
claims at the Federal Circuit and give her another opportunity to
litigate them when the Fourth Circuit has plainly foreclosed that
maneuver, see Pueschel, 577 F.3d at 563-64.
Plaintiff
next
contends
that,
even
if
this
Court
lacks
jurisdiction over her mixed-case appeal from the MSPB, it retains
an independent basis for subject-matter jurisdiction under the
Administrative Procedure Act (“APA”) over her challenge to various
-11-
OPM regulations.
(Docket Entry 21 at 14-15; see also Docket Entry
11 at 19-20 (Count VIII of Plaintiff’s Amended Complaint).)
That
contention lacks merit because the CSRA represents the exclusive
scheme by which a federal employee can challenge OPM regulations
and the CSRA vests exclusive jurisdiction of such challenges
(unless brought as part of a mixed case) with the MSPB and the
Federal Circuit, see Elgin, 132 S. Ct. at 2133-34
(“Given the
painstaking detail with which the CSRA sets out the method for
covered employees to obtain review of adverse employment actions,
it is fairly discernible that Congress intended to deny such
employees an additional avenue of review in district court.”); see
also 5 U.S.C. § 1204(a)(4) (“The Merit Systems Protection Board
shall . . . review . . . rules and regulations of the Office of
Personnel Management.”).
Accordingly, the Fourth Circuit has ruled that a federal
employee may not rely on the APA to circumvent the CSRA’s exclusive
scheme.
See Mann v. Haigh, 120 F.3d 34, 38 (4th Cir. 1997) (citing
United States v. Fausto, 484 U.S. 439, 452-55 (1988)) (“[I]n view
of the comprehensiveness of the CSRA as interpreted by the Supreme
Court
in
Fausto,
the
CSRA
prevents
[federal]
employees
from
obtaining judicial review of an adverse employment decision under
the APA.”).
In sum, given that this Court lacks subject-matter
jurisdiction over Plaintiff’s discrimination claims (the only basis
on which an employee may appeal a decision of the MSPB to a federal
-12-
district court), it lacks subject-matter jurisdiction over her
entire action challenging her demotion by SSA.
As a final matter, given that the Court has no subject-matter
jurisdiction
over
this
case,
the
Court
should
deny
as
moot
Plaintiff’s Motion for Partial Summary Judgment (Docket Entry 20).
CONCLUSION
This Court lacks subject-matter jurisdiction to hear this
case.
IT IS THEREFORE RECOMMENDED that Defendants’ Motion to Dismiss
for Lack of Jurisdiction (Docket Entry 16) be granted.
IT IS FURTHER RECOMMENDED that Plaintiff’s Motion for Partial
Summary Judgment (Docket Entry 20) be denied as moot.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 22, 2015
-13-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?