Ballard v. Tennessee Valley Authority, 84-5464

• Decision Date: 29 July 1985
• Docket Number: No. 84-5464,84-5464
• Citation: 768 F.2d 756
• Parties: 38 Fair Empl.Prac.Cas. 904, 38 Empl. Prac. Dec. P 35,538, 54 USLW 2108 John W. BALLARD, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 756

768 F.2d 756

38 Fair Empl.Prac.Cas. 904,

38 Empl. Prac. Dec. P 35,538, 54 USLW 2108

John W. BALLARD, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY, et al., Defendants-Appellees.

No. 84-5464.

United States Court of Appeals Sixth Circuit.

Argued April 3, 1985.

Decided and Filed July 29, 1985.

John W. Ballard (Pro Se) Green & Gothard, Mary Ann Green, argued, Chattanooga, Tenn., for plaintiff-appellant.

Herbert S. Sanger, Jr., Gen. Counsel, Justin M. Schwamm, Sr., Asst. Gen. Counsel, Thomas F. Fine, argued, James G. Touhey, Jr., Tennessee Valley Authority, Knoxville, Tenn., for defendants-appellees.

Before LIVELY, Chief Judge, ENGEL, Circuit Judge, and COHN, District Judge. ^*

COHN, District Judge.

Under the Civil Service Reform Act of 1978, P.L. 95-454, most federal employees may appeal adverse employment decisions to the Merit Systems Protection Board (the Board) and then to federal court. ¹ The Act sets forth special procedures for processing "mixed" cases, ² that is, cases which include allegations of discrimination. See 5 U.S.C. Sec. 7702. In a mixed case a federal employee adversely affected by a decision of the Board may seek review in a federal district court and have the facts tried de novo. 5 U.S.C. Sec. 7703(b)(2); see Williams v. Department of the Army, 715 F.2d 1485 (Fed.Cir.1983); Christo v. Merit Systems Protection Board, 667 F.2d 882 (10th Cir.1981). A petition for judicial review in a mixed case must be filed within 30 days of receiving notice of the Board's decision unless the individual asks the Equal Employment Opportunity Commission (EEOC) to review the discrimination issue. See 5 U.S.C. Secs. 7703(b)(2) and 7702(a)(3). The question on appeal is whether the 30 days begins to run when the appellant receives notice of the initial decision made by a presiding official ³ or from the point in time the initial decision becomes the final decision of the Board. Here appellant John W. Ballard (Ballard) filed for review in federal district court more than 30 days after receiving notice of the initial decision of the presiding official, but exactly 30 days after that decision became the final decision of the Board. The district judge dismissed the case as untimely. For the reasons that follow, we reverse.

I.

Ballard was employed at the Watts Bar Nuclear Plant in Spring City, Tennessee, as a captain in the Tennessee Valley Authority's (TVA) Public Safety Service. He was demoted and transferred to another nuclear power plant for failing to act when one of his subordinates showed him an obscene racial slur on the job. Ballard appealed ⁴ his demotion to the Atlanta Regional Office of the Board on November 12, 1982. ⁵ He claimed TVA's action was (1) unsupported by the facts, (2) the culmination of a harassment campaign directed against him by other employees, (3) a violation of his right to due process, and (4) racially discriminatory. ⁶ A hearing was held before a presiding official ⁷ on March 2, 1983. The presiding official, in a decision issued July 18, 1983, reviewed the facts and Ballard's claims and affirmed the TVA's action. The opinion stated:

"This is an initial decision. It will become a final decision of the Merit Systems Protection Board on August 22, 1983 unless a petition for review is filed with the Board or the Board reopens the case on its own motion.

Any party to the proceeding, the Director of the Office of Personnel Management, and the Special Counsel may file a petition for review ....

....

The Appellant has the right to petition the Equal Employment Opportunity Commission to consider the Board's final decision on the issue of discrimination. The appellant also has the right to file a civil action under the antidiscrimination laws in any appropriate United States district court. Either a petition or a civil action may be filed, but not both, no later than 30 days after the Board's decision becomes final." (emphasis in original)

No one sought review of the initial decision of the presiding official and by its own terms it became the final decision of the Board on August 22, 1983. Faithfully following the explicit instructions in the opinion, Ballard filed a complaint seeking review of the Board's decision in the United States District Court for the Eastern District of Tennessee on September 21, 1983, exactly 30 days after August 22, 1983.

Defendants moved to dismiss on November 23, 1983. Their primary contention was that Ballard's suit was untimely because more than 30 days had gone by since Ballard received notice of the decision issued on July 18, 1983. On April 25, 1984, the district judge dismissed Ballard's suit finding it was not timely filed. The district judge construed the provisions of 5 U.S.C. Secs. 7701-7703 to require that Ballard file for review within 30 days of the date he received the decision issued on July 18, 1983.

II.

This appeal turns on the meaning of the term "decision of the Board" as used in 5 U.S.C. Sec. 7702(a)(3). In a mixed case an appellant has 30 days to file for review in federal district court "after the date the individual filing the case received notice of the judicially reviewable action under such section 7702." 5 U.S.C. Sec. 7703(b)(2). Section 7702 describes 6 different types of decisions during the administrative process which are judicially reviewable actions. ⁸ Section 7702(a)(3)(A) describes the decision which was the "judicially reviewable action" in this case:

"Any decision of the Board under paragraph (1) of this subsection shall be a judicially reviewable action as of--the date of issuance if the employer or applicant does not file a petition [for review] with the Equal Employment Opportunity Commission ...."

Appellees argue the decision which issued on July 18, 1983, which was the initial decision of the presiding official, is the decision which starts the 30 day limitations clock ticking. Ballard insists the clock does not begin to tick until the initial decision becomes the final decision of the Board which in this case, under Board regulations and pursuant to the very terms of the decision issued on July 18, 1983, did not occur until August 22, 1983.

We conclude that the "decision of the Board" mentioned in Sec. 7702(a)(3), which begins the running of the limitations period for seeking judicial review of a Board decision in a mixed case, is the final decision of the Board and not the initial decision of the presiding official. This is the only reasonable interpretation in light of the statutory provisions in 5 U.S.C. Secs. 7701-7703 which must be considered as a whole. This interpretation is also supported by the legislative history of the Civil Service Reform Act of 1978, P.L. 95-454 (the Act). Finally, the regulations of the Board, the agency charged by statute with administering civil service appeals, clearly indicate that an appeal in a mixed case is taken from a final decision of the Board and not from an initial decision of a presiding official.

A.

In deciding this case we begin with the language of the statute. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 110, 103 S.Ct. 986, 990, 74 L.Ed.2d 845 (1983); Rubin v. United States, 449 U.S. 424, 429, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981). Section 7702(a)(3) does not by its terms specify if the decision of the Board which constitutes a "judicially reviewable action" is the initial decision of the presiding official or the final decision of the Board. ⁹ However, Sec. 7703(a)(1) makes it crystal clear that in all cases an appeal is taken from the final decision of the Board:

"Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision." (emphasis added)

The legislative history of Sec. 205 of the Act, which amended Chapter 77 of Title 5 U.S.C., conclusively shows that Sec. 7703(a)(1) applies to all cases before the Board, including mixed cases. While being considered by Congress Sec. 205 underwent significant revision. However, throughout its consideration Congress consistently took the position that judicial review in a mixed case was to be sought from a final Board decision. Congress never intended to treat a mixed case any differently than an appealable action case which raised no discrimination issues.

Before passage of the Act Ch. 77 of Title 5, U.S.C., consisted of a single section, Sec. 7701, titled "Appeals of preference eligibles." ¹⁰ S. 2640 and H.R. 11280, bills to reform the federal civil service laws, were introduced into the Senate and the House of Representatives, respectively, on March 3, 1978. Sec. 205 of these bills amended Ch. 77 to contain two sections. Section 7701, titled "Appellate procedures", set forth the governing procedures in all cases before the Board. Section 7702, titled "Judicial review of decisions of the Merit Systems Protection Board", made no distinction between mixed cases and appealable action cases which raised no discrimination issues. In all cases a petition for review had to be filed in federal court within 30 days after receiving notice of the final order or decision of the Board. ¹¹

Sec. 205 of H.R. 11280 remained essentially unchanged when the House passed the bill on August 24, 1978. In contrast during consideration of S. 2604 by the Senate Sec. 205 underwent significant revision. S. 2640 was referred to the Senate Governmental Affairs Committee which approved an amendment dealing with appellate procedures in mixed cases. ¹² This amendment provided a substantial role to the EEOC in mixed cases ¹³ and was the source of the procedures set forth in Sec. 7702 as it currently reads. ¹⁴ Under Sec. 205 of S. 2640 as passed by the Senate on September 13, 1978, Ch. 77 was amended to contain two sections. Section 7701 was amended and titled "Appellate procedures" and within that section subsections (f)-(i) specifically dealt with procedures in mixed cases. ¹⁵ With the...