Argument preview: Finding the proper Article III forum
Howard M. Wasserman is a Professor of Law at FIU College of Law.
At next week’s oral argument in Kloeckner v. Solis, the Court will consider which Article III court – the U.S. Court of Appeals for the Federal Circuit or a district court, with an appeal to a regional circuit – has jurisdiction to review certain decisions by the Merit Systems Protection Board (“MSPB”), the administrative body primarily responsible for reviewing adverse employment actions against federal employees by federal agencies. The answer will require the Court to parse a complex array of jurisdictional statutes.
Kloeckner is the first complicated procedural case of the new Term, about which this site’s Amy Howe (channeling Justice Elena Kagan) might say, “if you understand anything I say, you have a law degree AND you had your cup of coffee.” Indeed, the statutory and factual backgrounds are sufficiently complex, and the procedural background sufficiently central to the case, to warrant extended discussion.
Under the Civil Service Reform Act (“CSRA”), federal employees who suffer adverse employment decisions, including termination, generally seek administrative review before the MSPB, with judicial review of the MSPB’s order or decision. The Federal Circuit has exclusive jurisdiction to review a final order or final decision of the MSPB; under the CSRA, its review is fairly circumscribed. A petition for review by the Federal Circuit must be filed no more than sixty days after the employee receives notice of the “final order or decision of the Board.”
A federal employee who suffers an adverse employment action and alleges that the basis for the action was discrimination prohibited by a number of federal statutes, including Title VII, the Age Discrimination in Employment Act (ADEA), and the Rehabilitation Act, can also bring a “mixed case.” Under Section 7703(b)(2) of the CSRA, discrimination cases – including mixed cases – can be pursued in accordance with the relevant employment discrimination law – that is, through a civil action in federal district court. The civil action must be filed within thirty days after the employee receives notice of the “judicially reviewable action”; in these cases, the district court resolves the disputed facts in a trial de novo and the court’s decision can be appealed to the regional circuit court of appeals.
The CSRA also empowers the MSPB to hear cases involving discrimination, including mixed cases. The question is which Article III court has jurisdiction to hear an appeal of an MSPB decision in a mixed case: the Federal Circuit in accordance with Section 7703(b)(1) of the CSRA and the ordinary practice as to Board decisions, or a federal district court, in accordance with Section 7703(b)(2) and ordinary practice under federal employment discrimination laws? The prevailing approach in the lower courts turns on whether the MSPB reached and resolved the merits of the discrimination issue. If it resolved the merits, the case goes to the district court; if it decided the case on an issue of MSPB jurisdiction or procedure rather than on the merits of the discrimination issue, the Federal Circuit has exclusive jurisdiction.
Factual and procedural background
The petitioner in this case, Carolyn Kloeckner, worked as a Senior Investigator for the Employment Benefits Security Administration of the Department of Labor (DOL). In June 2005, she left work, purportedly on a medical leave, and filed an administrative charge with DOL’s civil rights office, alleging a hostile work environment and discrimination based on age and gender. While that administrative claim was pending, DOL charged Kloeckner with being absent without leave for a six-week period in which she allegedly was using paid and unpaid leave. She then amended her agency complaint to charge that DOL had retaliated against her for filing the original discrimination complaint. Both the original and amended complaints presented “non-mixed” claims involving only discrimination claims; when DOL’s Civil Rights Center completed its investigation in June 2006, Kloeckner requested a hearing before an EEOC administrative law judge.
In July 2006, DOL fired Kloeckner, allegedly because of that six-week absence without leave. This converted the dispute into a “mixed case”; termination is a core adverse action that falls within the jurisdiction of the MSPB, although Kloeckner contended that the termination was a continuing part of the alleged discriminatory retaliation. This left her with two options: Appeal the termination to the MSPB or add the retaliatory termination claim to her pending civil rights complaint, now before the EEOC. Kloeckner initially chose the former option, but one month later – hoping to avoid overlapping administrative proceedings – she moved to dismiss the MSPB appeal without prejudice so that she could amend and pursue her EEOC complaint. The MSPB granted the motion and ordered her to refile her appeal, if necessary, by January 18, 2007. When that date arrived, however, proceedings in the EEOC were still ongoing as a result of delays in the discovery process, so she did not refile with the MSPB by the deadline. In April 2007, the EEOC ALJ canceled the proceedings as a sanction for Kloeckner’s discovery misconduct, and the case was returned to the DOL for a Final Agency Decision. That final decision came in October 2007, when DOL upheld the removal and rejected claims of gender and age discrimination and retaliation.
This put Kloeckner back where she began: She could appeal the DOL’s final decision to the MSPB or, having exhausted her remedies before the EEOC, she could file a suit in federal district court under Title VII and the ADEA. In November 2007, Kloeckner again chose the former option. An ALJ from the MSPB dismissed Kloeckner’s appeal as untimely (because it came after the January 2007 deadline for refiling); that decision became the final MSPB order in April 2008. By this point, according to her brief, Kloeckner’s various complaints had been pending in various administrative processes for 1012 days.
Rather than appeal the MSPB order to the Federal Circuit, Kloeckner filed a civil action in federal district court, asserting claims under Title VII and the Rehabilitation Act. Venue was transferred from the United States District Court for the District of Columbia to the Eastern District of Missouri, where Kloeckner had worked. The district court dismissed the action for lack of subject matter jurisdiction, and the U.S. Court of Appeals for the Eighth Circuit affirmed.
Acknowledging a split among the circuits, the Eighth Circuit followed the prevailing approach. It held that because the MSPB dismissed Kloeckner’s administrative appeal as untimely, the court lacked jurisdiction; she could only seek judicial review of the MSPB decision in the Federal Circuit.
Kloeckner’s core argument relies on the interaction of four provisions, which collectively lead to the conclusion that mixed cases must always be heard in district court and can never be heard in the Federal Circuit. Section 7702(a)(1) of the CSRA defines mixed cases as those alleging both an adverse employment action and discrimination; Section 7702(a)(1)(B) requires only that the employee “allege that a basis for the [adverse] action was discrimination”. Section 7703(b)(2) provides that “[c]ases of discrimination subject to section 7702” shall be filed in accordance with the applicable anti-discrimination law (i.e., in the district court). And Section 7703(b)(1) precludes Federal Circuit jurisdiction in cases governed by Section 7703(b)(2). The net effect of these four provisions, Kloeckner argues, is that allegations of discrimination immediately trigger district court review under Section 7703(b)(2), which in turn bars Federal Circuit review under Section 7703(b)(1). Thus, because Kloeckner alleged harassment and retaliation in her petition to the MSPB, Section 7703(b)(2) controlled, vesting the district court with jurisdiction and divesting the Federal Circuit of jurisdiction over any subsequent appeal.
The government counters with different language and different connections among the statutes. In its view, under Section 7703(b)(2), an employee challenging an MSPB determination in “[c]ases of discrimination” must do so within thirty days of receiving notice of the “judicially reviewable action under section 7702.” Section 7702(a)(1) requires the Board in a mixed case to “decide both the issue of discrimination” and the issue of the agency’s adverse employment decision within 120 days of filing. And Section 7702(a)(3) further defines the point at which “[a]ny decision of the Board under paragraph (1) of this subsection [§ 7702(a)(1)] shall be a judicially reviewable action.” Putting those provisions together, the government argues that a “judicially reviewable action” in “cases of discrimination” means a “decision of the Board” that actually “decide[s] both” the discrimination and non-discrimination issues. Absent a decision of the Board on the merits of the discrimination issue, there has been no “judicially reviewable action,” so Section 7703(b)(2) is not implicated. Instead, Section 7703(b)(1) controls and vests exclusive jurisdiction to review the MSPB decision with the Federal Circuit. Because in this case the Board rejected Kloeckner’s appeal as untimely and never addressed the “issue of discrimination,” there was no “judicially reviewable action under section 7702” that would trigger Section 7703(b)(2); instead, the default of Section 7703(b)(1) controlled, and jurisdiction fell exclusively within the Federal Circuit.
The parties also spar over the meaning of other parts of Section 7702, which allow a party to file a discrimination claim in the district court even when the MSPB has not issued a decision on the merits. For example, under subsection (a)(2), a party can bypass the MSPB altogether and go directly to the district court with a discrimination claim once the agency resolves a mixed case. Or, pursuant to subsection (e)(1)(B), having gone to the Board, a party can bring an action in district court if the Board fails to issue a “judicially reviewable action” within 120 days of filing. Kloeckner argues that these provisions all involve cases “subject to the provisions of section 7702” that are controlled by Section 7703(b)(2), requiring review in the district court (and precluding review in the Federal Circuit). It follows that a decision on the merits of the discrimination issue is never required to trigger district court review of a mixed case. The government responds that these provisions simply show that there are some cases in which judicial review may be sought in the district court in the absence of any final MSPB decision; they do not control a case in which the Board does hear a case but issues a final decision that does not reach the discrimination issue.
The parties then turn to the purposes of the CSRA and federal anti-discrimination law, again reaching conflicting conclusions. Congress sought to balance two competing interests: (1) developing a uniform body of law governing federal personnel matters and MSPB procedures by making the Federal Circuit the sole forum for judicial review of most Board decisions; and (2) protecting the right of federal employees to have discrimination claims adjudicated de novo in district court. The government argues that its narrower interpretation better balances those interests because it funnels all cases – including mixed ones – in which the Board decides matters of procedure and jurisdiction to the Federal Circuit, allowing it to develop the desired uniform body of MSPB procedural law. District courts only will adjudicate cases in which the MSPB actually decides the discrimination issue, so there is an issue of discrimination for judicial review. On the other hand, Kloeckner argues that allowing any mixed cases to go to the Federal Circuit for limited judicial review is inconsistent with federal anti-discrimination statutes, which are premised on adjudication de novo in the district court.
Kloeckner is not going to gain national media attention; do not expect “breaking news” banners the minute the Court issues its decision. But this is the type of case – involving federal procedure and statutory interpretation – that is more indicative of the bread and butter of the Supreme Court’s work.
Recommended Citation: Howard M. Wasserman, Argument preview: Finding the proper Article III forum, SCOTUSblog (Sep. 28, 2012, 12:33 PM), http://www.scotusblog.com/2012/09/argument-preview-finding-the-proper-article-iii-forum/