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Board Announces Change to Notices of Review Rights In Mixed Cases
Mills v. USPS, 2013 MSPB 40 (2013)
by Natania Davis
| I. | Mills v. USPS, 2013 MSPB 40 (2013) and Doe v. Dept. of Justice, No. 2012-3204 (Fed. Cir. May 3, 2013) |
From now on Board notices of review rights in mixed cases will no longer give appellants the option of waiving their discrimination claim in order to seek review of the underlying action with the Federal Circuit. In other words, an appellant cannot "unmix" a mixed case even if he or she does not wish to pursue the EEO defense. Board notices will advise appellants that the district court has exclusive review authority over their mixed cases.
Mills was removed, and she appealed raising a discrimination affirmative defense. There was nothing especially exciting about the Mills case factually, but the Board used Mills to "explain how a recent court decision affects the notice of review rights that [it] provides to appellants in mixed cases." The referenced decision is a nonprecedential Federal Circuit case issued on May 3, 2013, Doe v. Dept. of Justice, No. 2012-3204. In Doe, the Federal Circuit transferred a mixed case to the district court, but the opinion does not discuss whether Doe sought to abandon his claim of discrimination or whether, if he did, it would be allowed. The court did note that Doe agreed that transfer to the district court was the appropriate remedy.
According to the Board in Mills, "although [Doe] did not seek review of the Board's conclusion that he had failed to prove his discrimination claim, the court transferred the case to district court because judicial review lay in that forum under the plain language of 5 USC 7703(b)(2)." Doe doesn't appear, at least to this reader, to be as broad as the Board inferred. Doe is a brief decision, short on specifics. Nevertheless, relying on Doe and, of course, Kloeckner v. Solis, 133 S. C. 596 (2012), the Board set forth its new rule:
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Although Kloeckner did not deal with the precise question of whether an appellant has the option of seeking judicial review in a mixed case before the Federal Circuit on issues other than discrimination, Kloeckner clearly stands for the notion that sections 7702 and 7703(b)(2) should be read literally. Although we are not bound by the Doe decision because it is nonprecedential, we follow it because it is consistent with the Supreme Court's literal reading of the statutory provisions governing mixed cases in Kloeckner. See Worley v. Office of Personnel Management, 86 M.S.P.R. 237, ¶8 (2000) (the Board is not bound by a nonprecedential decision of the Federal Circuit, but it may follow such a decision if it finds the decision persuasive).
The pertinent statutory language states that a request for review in a mixed case "shall be filed" in district court. 5 U.S.C. § 7703(b)(2). The statute does not state that the appellant can transform a mixed case into a nonmixed case after the Board has issued a decision simply by not seeking judicial review on a discrimination claim. As a result, from now on the Board will not inform appellants in mixed cases that they may seek judicial review before the Federal Circuit on issues other than discrimination. |
| II. | Rule 15 of the Federal Circuit's Rules of Practice |
Board interpretation, notwithstanding, Rule 15 of the Federal Circuit's Rules of Practice still reads:
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Review of an Agency Order-How Obtained | |
(c) Statement Concerning Discrimination. |
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(1) Petitioner's Statement. Within 14 days after a petition for review of a decision of the Merit Systems Protection Board or a decision of an arbitrator under 5 U.S.C. § 7121 is docketed, the petitioner must serve on the respondent and file with the clerk, see Form 10: |
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(A) one of the following statements: |
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(i) no claim of discrimination by reason of race, sex, age, national origin, or handicapped condition has been or will be made in the case; |
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(ii) any claim of discrimination by reason of race, sex, age, national origin, or handicapped condition raised before the Board has been abandoned and will not be raised or continued in this or any other court. |
In light of the Mills decision, Peter Broida recently filed a Rulemaking Petition with the Board, proposing that the Board amend 5 CFR 1201.21 to read (proposed language in bold):
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§1201.21 Notice of appeal rights |
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When an agency issues a decision notice to an employee on a matter that is appealable to the Board, the agency must provide the employee with the following: |
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(f) Notice that, if the employee states in his Board appeal or contract grievance that he raises an issue of discrimination under the Civil Rights laws or ADEA, judicial review of the Board's decision will only be available in a federal district court and not the Court of Appeals for the Federal Circuit. |
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Regarding the Board's reliance on Doe v. Dept. of Justice in Mills, Mr. Broida, in his petition, notes: |
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There is nothing in the Federal Circuit's brief order [Doe v. Dept. of Justice] suggesting that Doe abandoned [his EEO reprisal claim] before the Federal Circuit. There is no direct justification or even a fair implication in the Circuit's decision that an entire class of cases should be taken out of the jurisdiction of the Federal Circuit when an individual initially checks a box labeled discrimination on a Board appeal form or in an grievance document, later to abandon the claim or defense before the Board, an arbitrator, or the Federal Circuit.
The Federal Circuit or the Board, may, in time, overrule the Board's recent position, which undermines the ability of the Federal Circuit to fulfill its purpose of establishing a nationwide unified body of civil service law. Until that occurs, appellants and their counsel should be clearly warned through agency notices accompanying appealable decisions of the consequences of raising an allegation of discrimination in the MSPB appellate or grievance process. |
For more on mixed cases and practice before the Board, see MSPB Case Summaries by Broida and Davis, MSPB Guide Law and Practice by Broida and Federal Sector Equal Employment Law and Practice by Hadley.
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Briefing Conyers Oral Argument
Held on May 24, 2013
by Peter Broida
En banc argument in Conyers was presented to the Federal Circuit for about an hour by counsel for the appellant, OPM, and MSPB. Several judges' intensive questions reflected their views that, alternatively, the Board should or should not have the ability substantively to review agency decisions to terminate employees deemed ineligible to hold sensitive positions that do not require security clearances. Egan v. Dept. of Navy, 484 U.S. 518 (1988), held that the Board cannot second-guess, that is, substantively review, an agency's decision to revoke an employee's clearance and subsequently remove him or her for failure to maintain that clearance. The extent of the Board's authority in these cases, according to Egan, is to determine if the employee's job requires a clearance, whether the clearance was revoked, whether the employee received due process as to the clearance revocation, and whether an agency policy requires reassignment efforts to place the employee into a position that does not require a clearance.
Does Egan dictate the same approach to removals involving employees who are not required to hold clearances but who are in positions designated as sensitive?
One argument is that agencies have the statutory authority to summarily remove individuals for national security reasons (5 USC 7532), so anything less direct would not divest the MSPB of review jurisdiction. That argument was made and rejected in Egan.
Another argument is that if Congress wanted to divest the MSPB of jurisdiction to review the removals of individuals for lack of ability to hold a sensitive designation, it could do so by statute just as it did some years ago when Congress enacted a statute removing from MSPB jurisdiction employees terminated in designated national security agencies. By implication, the argument goes, since Congress did not act statutorily with respect to people holding sensitive designations, it meant to allow MSPB substantive review of decisions to terminate individuals for loss of the designation. The counterargument is that Egan controls on the theory that both situations involve national security interests that are substantively unreviewable, but the procedural aspects of the employees' terminations, whether based upon loss of a clearance or inability to occupy a sensitive position, can be reviewed by the Board.
It will likely take the Federal Circuit a couple of months to issue its decision. The interests are sufficiently compelling on either side that the losing party will seek Supreme Court review. The argument in the case is available in digital form for listening at http://www.cafc.uscourts.gov/oral-argument-recordings/all/conyers.html.
For more on this topic, see Security Clearance Law and Procedure by Newman, and Charges and Penalties by Fowler and Vitaro, and Adverse Actions: A Guide for Federal Managers and Personnel Specialists by Corum. |
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