Christo v. Merit Systems Protection Bd., 81-1121
| Decision Date | 10 February 1982 |
| Docket Number | No. 81-1121,81-1121 |
| Citation | 667 F.2d 882 |
| Parties | 29 Fair Empl.Prac.Cas. 1012, 30 Empl. Prac. Dec. P 33,085, 30 Empl. Prac. Dec. P 33,086 Rickey L. CHRISTO, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD and United States Postal Service, Respondents. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard M. Borchers, Westminster, Colo., for petitioner.
Joseph F. Dolan, U. S. Atty., and Beverly R. Buck, Asst. U. S. Atty., Denver, Colo. (Stephen E. Alpern, Associate Gen. Counsel, Washington, D. C., and Gregg R. Sackrider, Asst. Regional Labor Counsel, U. S. Postal Service, Chicago, Ill., of counsel), for respondents.
Before SETH, Chief Judge, and PICKETT and SEYMOUR, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.
Respondents Merit Systems Protection Board and the United States Postal Service seek dismissal of this appeal for lack of jurisdiction. We hold that jurisdiction in this matter is vested exclusively in the district court and accordingly dismiss this appeal.
Petitioner Christo was suspended and subsequently terminated from his position as a mail handler with the United States Postal Service in July 1979. Pursuant to provisions of the Civil Service Reform Act of 1978 (the Act), 5 U.S.C. §§ 7701(a) and 7702, he appealed his suspension and termination to the Merit Systems Protection Board (MSPB), alleging improper agency action and discrimination based on race and handicap.
Following an initial hearing and decision by the Field Office, Christo filed a petition for review with the MSPB under 5 U.S.C. § 7701(e)(1). The MSPB vacated the initial decision and remanded the matter for:
(1) Further development of the affirmative defense raised by the petitioner that the actions against him were based in whole or in part on discrimination and handicapping conditions; and
(2) A new adjudication of the appeals.
Rec., Vol. I, at 177-78. The termination of Christo was upheld after a second hearing.
Christo timely filed a petition for review with this court, citing as the basis for jurisdiction 5 U.S.C. § 7703(b)(1):
Except 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 Court of Claims or a United States court of appeals as provided in chapters 91 and 158, respectively, of title 28. 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.
(Emphasis added). Shortly thereafter, Christo filed a civil rights complaint under 42 U.S.C. § 2000e-16(c) and 5 U.S.C. § 7703(b)(2) in the United States District Court for the District of Colorado, alleging that his termination from the United States Postal Service was the result of racial discrimination. 5 U.S.C. § 7703(b)(2) reads in pertinent part:
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)) .... Notwithstanding any other provision of law, any such case ... must be filed within 30 days after the individual filing the case received notice of a judicially reviewable action under such section 7702.
The issue before this court is whether in a mixed case containing both a claim of improper agency action and a claim of discrimination, jurisdiction exists simultaneously in the court of appeals on the final agency action and in the district court on the discrimination claim.
Research has uncovered no case law dealing with this question. However, the various statutory provisions of the Act and its legislative history indicate a clear Congressional preference for combining various aspects of a single agency determination under one review proceeding, both in the administrative and judicial channels.
At the administrative level, the Board has 120 days from the time an appeal is filed to decide cases in which the employee both appeals to the MSPB under section 7702(a)(1)(A) and also "alleges that a basis for the action was discrimination" prohibited by the enumerated statutes under section 7702(a)(1) (B) (emphasis added). The House Conference Report accompanying the Act explains that "(i)n all mixed cases, that is, cases involving any action that could be appealed to the MSPB and which If the administrative time periods have run and no judicially reviewable action has been taken by the agency, the aggrieved employee is entitled to file his discrimination action under 5 U.S.C. § 7702(e)(1). Further, section 7702(e)(3) provides that:
involve an allegation of discrimination, the MSPB will hold hearings and issue a decision on both the issue of discrimination and the appealable action." H.R.Rep.No.1717, 95th Cong., 2d Sess., reprinted in (1978) U.S.Code Cong. & Ad.News 2723, 2873 (emphasis added).
Nothing in this section shall be construed to affect the right to trial de novo under any provision of law described in subsection (a)(1) of this section after a judicially reviewable action, including the decision of an agency under subsection (a)(2) of this section. ( 1
Senate Report No. 969, 95th Cong., 2d Sess., reprinted in (1978) U.S.Code Cong. & Ad.News 2775, states that the Act provides for review by the MSPB of:
(a)ll actions appealable under the other provisions of this bill, even if the appeal also involves issues of discrimination. This will allow the Board to consider, as related aspects of the same case, allegations that there had (sic ) been violations of the merit system principles implemented by title V, as well as the anti-discrimination laws. In such cases, questions of the employee's inefficiency or misconduct, and discrimination by the employer, will be two sides of the same question which must be considered together. Any provision denying the Board jurisdiction to decide certain adverse action appeals because discrimination is raised as an issue would make it impossible for the government to have a single unified personnel policy which took into account the requirements of all the various laws and goals governing Federal personnel management. In the absence of full Board jurisdiction, forum shopping and inconsistent decisions, perhaps arising out of the same facts, would result.
(Emphasis added). The explanation accompanying sections 7701(f), (h), and (i) stresses that for agency appellate review:
(t)he appeal must be to the Board whether the employees (sic ) alleges only that the agency action was unlawful under the laws prohibiting discrimination, or the employee alleges only that the procedural and substantive protection afforded him under the personnel laws in title V were (sic ) violated, or he alleges a violation of any combination of these different laws. The Board has jurisdiction whether the employee raises the discrimination laws as a defense or answer to the agency action, or whether the employee files a separate complaint against his employer under the anti-discrimination laws for proposing to take the appealable action against him.
Id. at 2778 (Emphasis added).
The need for consistency in judicial review is addressed by the Senate Report in the discussion on the judicial review provisions:
Subsection (b) specifies the forum in which an employee or applicant may bring the review proceeding. Currently employees who wish to challenge Commission decisions generally file their claims with U. S. District Courts. The large number of these courts has caused wide variations in the...
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