Wall v. U.S.

• Decision Date: 31 March 1989
• Docket Number: No. 86-2004,86-2004
• Citation: 871 F.2d 1540
• Parties: 49 Fair Empl.Prac.Cas. 794, 49 Empl. Prac. Dec. P 38,870 Richard J. WALL, Plaintiff-Appellant, v. UNITED STATES of America, Department of Health and Human Services, Otis Bowen; Merit Systems Protection Board; and Herbert Ellingwood, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1540

871 F.2d 1540

49 Fair Empl.Prac.Cas. 794,

49 Empl. Prac. Dec. P 38,870

Richard J. WALL, Plaintiff-Appellant, v. UNITED STATES of America, Department of Health and Human Services, Otis Bowen; Merit Systems Protection Board; and Herbert Ellingwood Defendants-Appellees.

No. 86-2004.

United States Court of Appeals Tenth Circuit.

March 31, 1989.

Rehearing Denied May 24, 1989.

J. Larry Louk (Michael L. Snider and Timothy J. Arehart of Thomas, McDonald, Maier, Dykes & Johnston, Chartered, with him on the brief), Overland Park, Kan., for plaintiff-appellant.

E. Yvonne M. Ernzen (Benjamin L. Burgess, Jr., U.S. Atty., D. Kan., Julie Robinson Trice, Asst. U.S. Atty., Kansas City, Kan., Paul P. Cacioppo, Chief Counsel, Region VII, Dept. of Health and Human Services, and Frances Reddis, Asst. Regional Counsel, of counsel), Kansas City, Mo., for defendants-appellees.

Before SEYMOUR and McWILLIAMS, Circuit Judges, and BOHANON, Senior District Judge. ^*

McWILLIAMS, Circuit Judge.

Richard J. Wall, a resident of Kansas, was employed by the Department of Health and Human Services (Department) from October, 1973, to September 28, 1984, when his employment was terminated. Shortly prior to September 28, 1984, Wall executed an application for retirement with an effective date of September 28, 1984.

Notwithstanding his application to retire, Wall thereafter filed a timely appeal to the Merit Systems Protection Board (Board) protesting his termination. Wall's position was that on September 18, 1984, the Department informed him that he would be "removed" from his civil service position on September 28, 1984, because a physical disability prevented him from performing his employment duties and, further, that there was no existing possibility of lateral transfer. According to Wall, at the suggestion of the Department, he then sought advice concerning his retirement rights and that he was misinformed and misled by employees of the Department concerning those rights, all of which led to his application for retirement. Wall claimed that his employment was terminated by the Department because of his age, 65 years of age, and his physical handicap, his left leg having been amputated below the knee in 1981, apparently the result of a diabetic condition.

A hearing was held before a Presiding Official of the Board, which hearing was limited, in the first instance, to the single issue of whether Wall "voluntarily" retired on September 28, 1984. Evidence was taken by the Presiding Official on the issue of the voluntariness of Wall's application for retirement, and the Presiding Official held that Wall's retirement was voluntary. Because a voluntary retirement is not an adverse action which is appealable, ¹ the Presiding Officer dismissed Wall's appeal on the ground that the Board had no jurisdiction to hear Wall's claim of wrongful employment termination because of his age or physical handicap. ² Wall filed a timely petition for review by the Board of the Presiding Official's ruling. On May 2, 1985, the Board denied Wall's petition for review.

On May 29, 1985, Wall filed an action in the United States District Court for the District of Kansas, naming as defendants the United States of America; the Department and Margaret Heckler, then Secretary of the Department; and the Board and its head, Herbert Ellingwood. In his complaint, Wall stated that, after being advised that the Department was going to remove him from his civil service position, he sought advice from the Department concerning possible retirement; in the course of that inquiry he was misled and misinformed by the Department; and as a result he applied for retirement. Wall then set forth two claims for relief, the first based on age discrimination, 29 U.S.C. Sec. 621, et seq., and a second based on handicap discrimination, 29 U.S.C. Sec. 701, et seq.

On May 30, 1985, Wall filed a parallel petition for review of the May 2 decision of the Board with the United States Court of Appeals for the Federal Circuit. By agreement of the parties, Wall's proceeding in the Federal Circuit has been stayed pending final resolution of the action filed by Wall in the United States District Court for the District of Kansas.

In the Kansas proceeding the defendants filed a motion to dismiss on the ground that the district court in Kansas lacked subject matter jurisdiction and that because of Wall's voluntary retirement, the Federal Circuit had exclusive jurisdiction to review the ruling of the Board. The district court granted the defendants' motion to dismiss and dismissed Wall's action for lack of subject matter jurisdiction. Wall appeals the district court's order of dismissal. We affirm.

The Memorandum and Order of the district court was published and appears as Wall v. United States, Dep't of Health and Human Services, 637 F.Supp. 90 (D.Kan.1986). Although the matter is not necessarily free of all doubt, we believe the district court properly construed the statutes in question, and we are in accord with the result reached by the district court and the supporting rationale. We could well let the entire matter rest here, but brief additional comment is in order.

The statutory provisions with which we are primarily concerned are 5 U.S.C. Secs. 7703(b)(1), 7703(b)(2), and 7702. Under Sec. 7703(b)(1), "[e]xcept as provided in paragraph (2) of this subsection, 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." The exception in Sec. 7703(b)(2) provides, in effect, that cases of alleged discrimination "subject to the provisions of section 7702" shall be filed under the applicable statute in a United States District Court. Discrimination cases "subject to the provisions of section 7702" include cases where an employee or an applicant for employment (1) has been affected by an action of an agency which may be appealed to the Board and (2) alleges that the basis for the agency's action was discrimination prohibited by, inter alia, the Rehabilitation Act of 1973 and the Age Discrimination in Employment Act of 1967. See 5 U.S.C. Sec. 7702.

The district court in the instant case construed those statutory provisions to mean that where, in a given case, the Board determines that the agency action complained of may be appealed to the Board and where the Board further finds that there was no discrimination, the case falls within the exception mentioned in Sec. 7703(b)(1), and detailed in Secs. 7703(b)(2) and 7702. Coming within the exception, the employee, in such circumstance, may then file a discrimination action in a United States District Court, and the Federal Circuit would have no jurisdiction to review such an order of the Board. However, the district court also construed those statutory provisions to mean that where the Board determines, as it did in the instant case, that an employee's appeal to the Board is "not appealable" under the statute, and the Board does not consider the employee's claim of discrimination on its merits, review of the Board's determination that it lacks jurisdiction to hear the employee's claim lies exclusively in the Federal Circuit. As the district court noted, if, in the instant case, the Federal Circuit reverses the Board's determination that Wall's retirement was voluntary, the matter will then be remanded to the Board to hear Wall's discrimination claim on its merits. Should Wall then suffer an adverse ruling on the discrimination issue, he could then file an action in the district court. It would seem to follow that should the Federal Circuit on appeal uphold the Board's finding that Wall voluntarily retired, such would rule out any claim of discrimination. If Wall, in fact and in law, voluntarily retired, he cannot argue that his termination was the result of agency discrimination.

In support of the district court's construction of these statutory provisions, see Synan v. Merit Systems Protection Bd., 765 F.2d 1099 (Fed.Cir.1985); Ballentine v. Merit Systems Protection Bd., 738 F.2d 1244 (Fed.Cir.1984); and Williams v. Dep't of Army, 715 F.2d 1485 (Fed.Cir.1983).

In Synan a postal employee appealed a seven-day suspension order to the Board contending that his suspension was the result of agency discrimination because of physical handicap. The Board dismissed the appeal for lack of subject matter jurisdiction and did not reach the discrimination issue. On review, the Federal Circuit affirmed the Board, holding that the jurisdiction of the Board is not plenary, but is limited to those actions which are made appealable to it by law, rule or regulation, and that the applicable statute provides only for review of a suspension order of more than 14 days. Synan, 765 F.2d at 1100. The Federal Circuit rejected the employee's alternative argument that the appeal should be transferred to a United States District Court because of lack of jurisdiction by the Federal Circuit, since an appellant is granted no rights to a trial de novo in a civil action under Sec. 7702 or Sec. 7703 until the discrimination issue and the appealable action have been decided on the merits by the Board. Id. at 1101.

Ballentine was the basis for Synan, and neither, in our view, is at odds with Williams.

Such cases as Covington v. Dep't of Health and Human Services, 750 F.2d 937 (Fed.Cir.1984) and Christo v. Merit Systems Protection Bd., 667 F.2d 882 (10th Cir.1981), relied on by Wall, are inapposite. In Covington, which does not involve alleged discrimination, the Board found "voluntary retirement," and, on appeal, the Federal Circuit held that because of misinformation the retirement was involuntary as a matter of law, and remanded the case to the Board for further proceedings. Covington, 750 F.2d at 944. As indicated, should the Federal Circuit reverse the Board's findings that Wall voluntarily retired, the matter presumably will be remanded to the Board with directions to hear the...