715 F.2d 1485 (Fed. Cir. 1983), 72-82, Williams v. Department of Army

Docket Nº:Appeal No. 72-82.
Citation:715 F.2d 1485
Party Name:Joseph F. WILLIAMS, Petitioner, v. DEPARTMENT OF the ARMY, Respondent.
Case Date:September 06, 1983
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1485

715 F.2d 1485 (Fed. Cir. 1983)

Joseph F. WILLIAMS, Petitioner,

v.

DEPARTMENT OF the ARMY, Respondent.

Appeal No. 72-82.

United States Court of Appeals, Federal Circuit

September 6, 1983

Page 1486

        Robert E. Riley, of Chicago, Ill., for petitioner. With him on the brief was Gerald Goldman, Chicago, Ill.

        Eileen P. Fennessy, Washington, D.C., for respondent. With her on the brief were J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director and Sandra P. Spooner, Asst. Director, Washington, D.C.

        Before MARKEY, Chief Judge, and FRIEDMAN, RICH, DAVIS, NICHOLS, BALDWIN, KASHIWA, BENNETT, MILLER, SMITH and NIES, Circuit Judges.

        OPINION AND ORDER

        NIES, Circuit Judge.

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

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

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

        Having reviewed the record of proceedings and the submissions of the parties in banc, 1 and finding a lack of jurisdiction to hear the appeal, we transfer the case to the

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district court in which the discrimination suit is pending.

        I

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

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

* * *

* * *

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

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

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

        5 U.S.C. § 7703(b)(2) provides:

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

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

        (a)(1) ... the case of any employee or applicant for employment who--

        (A) has been affected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and

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

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

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

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

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

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

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

        An examination of petitioner's appeal to the MSPB discloses that the petition is founded upon a removal action appealable to the board under § 7701 and contains an allegation of prohibited racial discrimination

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under the Civil Rights Act referenced in § 7702(a)(1)(B)(i). Thus, the case is one which falls squarely within § 7702.

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

        II

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

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

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

        We recognize that the Congress sought as a general rule to vest jurisdiction of appeals from Board decisions not involving discrimination claims in the courts of appeals; as noted above, the Congress desired thereby to reduce the wide variations in decisions which resulted from appeals to district courts. However, this concern must be tempered with the fact that district court decisions in such cases are themselves appealable to the courts of

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appeals, and must be balanced against the tremendous waste of judicial resources that bifurcation of one case between district and circuit courts would inevitably entail. If an individual appeal from the Board were divided into separate discrimination and non-discrimination cases, the district and circuit courts each would be required initially to hear the case, and each would be forced to consider the case in the absence of some claims which may be dispositive. In the context of these concerns we are convinced that the statutory language should be read literally, that is, to vest initial jurisdiction in the district courts over any "case" in which an employee alleges discrimination...

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