Bolton v. Colvin

Decision Date05 January 2017
Docket NumberNo. 15-1907,15-1907
PartiesZONNYTTA BOLTON, Plaintiff - Appellant, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security; OFFICE OF PERSONNEL MANAGEMENT, Defendants - Appellees.
CourtU.S. Court of Appeals — Fourth Circuit


Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Loretta C. Biggs, District Judge. (1:14-cv-00151-LCB-LPA)

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.

ARGUED: Phillip R. Kete, Chesapeake Beach, Maryland, for Appellant. Sydney Foster, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Norman B. Smith, SMITH, JAMES, ROWLETT & COHEN, LLP, Greensboro, North Carolina, for Appellant. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Marleigh D. Dover, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.


After being demoted from her paralegal specialist position with the Social Security Administration ("SSA"), Zonnytta Bolton appealed to the Merit Systems Protection Board ("MSPB"), contending that her demotion resulted from discrimination and improper personnel procedures. After Bolton provided notice that resolution of her claim involved interpretation of regulations promulgated by the Office of Personnel Management ("OPM"), the MSPB sua sponte bifurcated her appeal into an individual challenge to her demotion and a claim seeking review of those OPM regulations. Because of this bifurcation, which Bolton did not request and consistently questioned, the MSPB decided her claim regarding the applicable regulations first, and Bolton appealed that decision to the Court of Appeals for the Federal Circuit.

After exhausting MSPB remedies with regard to the individual demotion claim, Bolton then sought review of that claim in the Middle District of North Carolina, raising two discrimination claims and six non-discrimination claims. The district court concluded that when Bolton filed her appeal with the Federal Circuit, she waived district court review of her discrimination claims. Therefore, it dismissed her entire case for lack of subject matter jurisdiction. For the reasons thatfollow, we affirm in part, reverse in part, and remand for further proceedings.


On October 24, 2011, Bolton, a hearing-impaired employee with the SSA, was demoted from a GS-12 paralegal specialist position to a GS-8 senior case technician position. She filed an administrative appeal with the MSPB, claiming that her demotion violated 5 U.S.C. § 4303 (providing rights and safeguards to which a government employee is entitled before demotion); 5 C.F.R. § 432.104 (providing criteria necessary to demote an employee); and the Rehabilitation Act of 1973, 29 U.S.C. § 791 (prohibiting disability discrimination by programs receiving federal financial assistance). She also argued that her demotion involved an improper personnel procedure, that is, the SSA did not have an OPM-approved performance appraisal system as required by 5 C.F.R. § 432.104.

A few months later, Bolton filed a "motion for notice to the O[PM]," explaining "the interpretation of an OPM regulation [wa]s at issue" in her case. J.A. 58 (capitalization omitted);1 see also 5 U.S.C. § 7701(d)(2) ("The [MSPB] shall promptly notify the Director [of the OPM] whenever theinterpretation of any civil service law, rule, or regulation under the jurisdiction of the O[PM] is at issue in any proceeding under this section."). Thereafter, the MSPB did not rule on the motion, but rather, bifurcated Bolton's case into one claim based on discrimination and improper personnel procedures, see Bolton v. Soc. Sec. Admin., No. DC-0432-12-0121-I-1 (the "individual case"), and one claim seeking review of OPM regulations, see Bolton v. Office of Pers. Mgmt., No. CB-1205-12-0011-U-1 (the "regulation-review case"). Bolton had not requested bifurcation; the MSPB simply bifurcated of its own accord, relying solely on Bolton's motion for notice. The cases then progressed on two different tracks, despite the fact that Bolton filed a statement with the MSPB in March of 2012 stating, "The record should be clear that Ms. Bolton did not file a . . . request for [regulation] review . . ." J.A. 144.

On June 5, 2012, a single administrative law judge for the MSPB (the "ALJ") issued its initial decision in the individual case. The ALJ upheld the SSA's decision to demote Bolton, concluding: the SSA's performance appraisal system was properly approved by OPM; it remained an "approved" system at the time Bolton was demoted; and the SSA's performance standards were valid, permitted [an] accurate evaluation of Bolton's job performance, and were adequately communicated to her. J.A. 77-84. As for Bolton's allegations of disability discrimination,the ALJ found that Bolton did not present sufficient evidence of harassment, retaliation, failure to accommodate, or discrimination based on disparate treatment. Finally, the ALJ found that the SSA did not violate Bolton's due process rights in ordering her demotion. Bolton filed a petition for review of this decision with the full three-judge MSPB.

Three days later, on June 8, 2012, Bolton filed a statement in the regulation-review case, arguing generally that OPM's regulations "result in the commission of prohibited personnel practices," and suggesting that the problem may be "government-wide" rather than limited to the SSA. J.A. 146 (capitalization omitted). Then, while the petition for review in the individual case was pending, the MSPB issued a final decision in the regulation-review case on April 2, 2013, declining to review Bolton's claim in part because it "ha[d] been reached . . . in her individual [MSPB] appeal." J.A. 190.

On June 4, 2013, Bolton filed an appeal of the MSPB's regulation-review decision with the Federal Circuit. See ECF No. 1, Bolton v. Office of Pers. Mgmt., No. 13-3123 (Fed. Cir. June 4, 2013); see also J.A. 199. The sole issue in that appeal was whether the Federal Circuit should "set aside [the] MSPB decision to not review certain OPM regulations," because the MSPB failed to "explain why th[ose] regulations should not be reviewed." J.A. 224, 231.

On July 25, 2013, Bolton filed a motion to stay in the Federal Circuit pending a final decision from the MSPB in her individual case. She explained, "The peculiar history of the case . . . makes it unlikely, albeit not impossible, that a decision by this court will be necessary, because any judicial review Ms. Bolton seeks will be provided by an appropriate federal district court." J.A. 203. OPM opposed the motion and filed a motion to dismiss for lack of jurisdiction because the MSPB did not decide the regulation-review case on its merits. The Federal Circuit denied the stay and motion to dismiss without explanation. Then, on January 24, 2014, the full MSPB denied Bolton's petition for review in the individual case.

With her regulation-review appeal still pending in the Federal Circuit, on February 21, 2014, Bolton filed the instant action against OPM and the Acting Commissioner of the SSA (collectively, "Appellees") in the Middle District of North Carolina. The operative complaint, amended on August 15, 2014, contains the following eight claims:

• discriminatory demotion (Count One);
• failure to accommodate Bolton's hearing disability (Count Two);
• failure to establish, communicate, and use statutory performance standards in demoting Bolton (Count Three);• improper demotion of Bolton without certain statutory and regulatory preconditions (Count Four);
• improper use of statute for demoting Bolton without OPM review for compliance (Count Five);
• due process violations (Counts Six and Seven); and
• administrative challenge to OPM's approval of 50 agencies' performance appraisal systems, and OPM's promulgation of requirements for such approval (Count Eight).

On April 1, 2014, Bolton filed a request to voluntarily dismiss her regulation-review appeal, which the Federal Circuit granted the following day.

In the district court, Appellees filed a motion to dismiss, arguing, inter alia, that Bolton waived her discrimination claims, depriving the district court of jurisdiction. The motion was referred to a magistrate judge, who recommended the motion be granted. The district court dismissed the amended complaint on July 7, 2015, adopting the magistrate judge's explanation that "absent any authority to the contrary, this Court cannot ignore [Bolton]'s waiver of her discrimination claims at the Federal Circuit and give her another opportunity to litigate them when the Fourth Circuit has plainly foreclosed that maneuver." Bolton v. Colvin, No. 1:14-cv-151, 2015 WL 2452829, at *5 (M.D.N.C. May 22, 2015) (citingPueschel v. Peters, 577 F.3d at 563-64 (4th Cir. 2009)) (emphasis supplied), report and recommendation adopted, No. 1:14-cv-151, 2015 WL 4094127 (M.D.N.C. July 7, 2015).

Bolton timely noted this appeal, which challenges the district court's dismissal. "In reviewing a district court's dismissal of a claim for lack of [subject matter] jurisdiction . . . , we review the court's factual findings for clear error and its legal conclusions de novo." Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 154 (4th Cir. 2016).


As a matter of background, under the Civil Service Reform Act of 1978 ("CSRA"), "a federal employee subjected to . . . [a] demotion may appeal her agency's decision to the M[SPB]." Kloeckner v. Solis, 133 S. Ct. 596, 600 (2012); see also 5 U.S.C. §§ 7512(3)-(4), 7701(a). In such an appeal, the employee "may claim, among other things, that the agency discriminated against her in violation of a federal statute." Kloeckner, 133 S. Ct. at 600. If an employee claims...

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