Garcia v. Department of Homeland Security, No. 04-3442.

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtProst
Citation437 F.3d 1322
PartiesLourdes M. GARCIA, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Respondent.
Decision Date10 February 2006
Docket NumberNo. 04-3442.
437 F.3d 1322
Lourdes M. GARCIA, Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY, Respondent.
No. 04-3442.
United States Court of Appeals, Federal Circuit.
February 10, 2006.

Page 1323

Katherine A. McDonough, Baptiste & Wilder, P.C., of Washington, DC, argued for petitioner.

Todd M. Hughes, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. On the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Deborah A. Bynum, Assistant Director; and Steven J. Abelson, Attorney. Of counsel on the brief was Francesca Alvaro, Attorney, Associate Chief Counsel's Office, United States Customs and Border Protection, United States Department of Homeland Security, of Miami, Florida.

Joyce G. Friedman, Attorney, Office of the General Counsel, United States Merit Systems Protection Board, of Washington, DC, argued for amicus curiae Merit Systems

Page 1324

Protection Board. With her on the brief were Neil A.G. McPhie, Chairman; Martha B. Schneider, General Counsel; and Rosa M. Koppel, Deputy General Counsel.

Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, Circuit Judges, CLEVENGER, Senior Circuit Judge, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST, in which Chief Judge MICHEL and Circuit Judges MAYER, LOURIE, Senior Circuit Judge CLEVENGER, Circuit Judges RADER, SCHALL, BRYSON, GAJARSA, and LINN join.

Dissenting opinion filed by Circuit Judge DYK, in which Circuit Judge NEWMAN joins.

PROST, Circuit Judge.


Lourdes Garcia appeals the dismissal of her claim for constructive reduction in grade by the Merit Systems Protection Board (the "MSPB" or "Board"). The Board determined that Ms. Garcia had not proven that her actions were involuntary and therefore dismissed Ms. Garcia's case for lack of jurisdiction without granting her a hearing. Garcia v. Dep't of Homeland Sec., No. DC0752040110-I-1, slip op. at 3 (M.S.P.B. Jan.22, 2004) ("Initial Decision"). Because the Board did not adequately determine whether or not Ms. Garcia had presented non-frivolous allegations, we vacate and remand.

I

An adverse action is an official action taken by a federal agency and imposed on an employee, such as an actual removal from employment or an actual reduction in grade or pay. 5 U.S.C. § 7512 (2000). Such official action is by statute clearly within the jurisdiction of the Board, and an aggrieved employee can appeal such an action to the Board for a determination as to whether the action was proper. 5 U.S.C. § 7513(d) (2000). This case, however, does not involve an official adverse action. Instead, it deals with what is known as a constructive adverse action. A constructive adverse action arises when an agency's conduct leaves an employee no alternative but for the employee, involuntarily, to impose the adverse action on himself or herself. For example, although a resignation is ostensibly a voluntary separation from employment, it is possible that an employee can be coerced into resigning by actions of the employing agency. In other words, the facially voluntary action by the employee may actually be involuntary. Such an involuntary adverse action is known as a constructive adverse action, and a long line of cases has established that the Board's jurisdiction extends to an involuntarily imposed adverse action. Here, Ms. Garcia alleges that she applied for and involuntarily accepted a reduction in grade because her employer failed to accommodate her disability. Further, Ms. Garcia alleges that the constructive adverse action was prompted by a violation of her rights to be free from discrimination in the workplace. Because her case presents questions both of possible adverse action and possible discrimination, it is a "mixed" case in the vernacular of our case law.

In Cruz v. Department of the Navy, we held that, when presented with a mixed case of constructive removal and discrimination, the Board only had authority to decide the discrimination issue if the Board had jurisdiction over the alleged constructive adverse action. 934 F.2d 1240, 1251-53 (Fed.Cir.1991) (en banc). Cruz failed to prove that a constructive

Page 1325

adverse action had been taken against him. In other words, Cruz had failed to prove that his resignation was involuntary. Accordingly, we concluded that the Board correctly dismissed his case for want of jurisdiction without reaching his discrimination claim. Furthermore, though not explicitly mentioned in Cruz, the standards set forth in Cruz are consistent with the Board's own regulation that places the burden on the claimant to establish jurisdiction by a preponderance of the evidence. See 5 C.F.R. § 1201.56 (2004). Since Cruz, the typical procedure in constructive adverse action cases first grants a claimant a jurisdictional hearing if the employee makes non-frivolous allegations that, if proven, could establish the Board's jurisdiction. Then, at that hearing, the claimant has the burden of establishing the Board's jurisdiction by a preponderance of the evidence.

In Spruill v. Merit Systems Protection Board, this court dealt with a case involving allegations of discrimination and violations of the Whistleblower Protection Act (the "WPA"). 978 F.2d 679 (Fed.Cir. 1992). Neither Spruill, nor the WPA, nor the Board's jurisdiction under the WPA are before us today. However, because Ms. Garcia and the Board argue that we should import Spruill's reasoning to the jurisdictional burdens under 5 U.S.C. § 7512, a discussion of Spruill as background is important.

Spruill dealt with the WPA which provides appeal rights for whistleblowers through the Individual Right of Action (the "IRA"). Codified at 5 U.S.C. § 1221(a), the IRA gives the Board jurisdiction over certain cases in which whistleblowers allege that they have suffered reprisals for their disclosures. Our court in Spruill stated that the Board's jurisdiction over such claims is established by non-frivolous allegations. Though Spruill dealt with the IRA, later cases have cited to language in Spruill and have stated that non-frivolous allegations establish the Board's jurisdiction over a constructive adverse action. See Dorrall v. Dep't of the Army, 301 F.3d 1375, 1380 (Fed.Cir.2002); Dick v. Dep't of Veterans Affairs, 290 F.3d 1356, 1362 (Fed.Cir.2002).

In constructive adverse action cases, whether the Board's jurisdiction under 5 U.S.C. § 7512 is established on a showing of preponderant evidence or a non-frivolous allegation is an issue of considerable importance, especially in mixed cases. We sua sponte decided to hear Ms. Garcia's case en banc in order to resolve issues concerning the appropriate test for Board jurisdiction under the relevant statutes and regulation. For the reasons set forth below, we hold that, under 5 U.S.C. § 7512, non-frivolous allegations do not establish the Board's jurisdiction. We further hold that the Board's regulation, 5 C.F.R. § 1201.56, which requires an employee to prove the Board's jurisdiction by a preponderance of the evidence, is entitled to deference and is therefore lawful Finally, we reaffirm our en banc holding in Cruz that in a constructive adverse action case, a claimant must prove that the action was involuntary and that the Board may not reach discrimination issues in mixed cases unless jurisdiction is established with respect to the adverse action alleged.

II

Lourdes Garcia assumed the position of Assistant Chief Inspector, GS-14, with the Washington, D.C. Headquarters Office of the Immigration and Naturalization Service (the "INS" or "agency") in 1993. The INS is now part of the Department of Homeland Security (the "DHS"). In May 2000, she injured her back and shoulder, and thereafter requested a specially adjusted ergonomic office space. A year later,

Page 1326

Ms. Garcia provided her supervisors with a physical therapist's ergonomic report that listed a number of deficiencies in her workplace. As a result, the INS purchased a different chair for her.

On July 2, 2001, Ms. Garcia filed a complaint of discrimination and reprisal with the Equal Employment Opportunity Commission (the "EEOC"). She alleged racial and national origin harassment and discrimination, retaliation, and refusal to provide a reasonable accommodation for her injured shoulder and back as required by § 501 of the Rehabilitation Act. See 29 U.S.C. § 791 (2000).

In May of 2002, another ergonomic survey found that her workplace did not meet her medical needs. She provided the report to her supervisors but no action was taken. Thereafter, in July 2002, Ms. Garcia tore two tendons in her right rotator cuff while at work. She received worker's compensation for the injury and was permitted to work from home on light duty assignment until January 2, 2003. During that time at home, Ms. Garcia learned of a vacancy for a GS-13 Deputy Assistant District Director position with the INS Miami office. She submitted an application for the position on October 18, 2002.

On November 26, 2002, Ms. Garcia was advised that her Washington, D.C. supervisor, Colleen Manaher, had been authorized to renovate Ms. Garcia's workspace to accommodate Ms. Garcia's needs. In a memo sent to Ms. Garcia on that date, Ms. Manaher "remained hopeful" that the renovations to Ms. Garcia's workspace would be completed by the time Ms. Garcia had to return to work. That same memo also stated that "[i]f the work station is delayed and if your doctor continues to authorize light duty only, your duties when you return to the Office will involve only those with minimal computer usage such as operational telephonic support, scheduling, coordination issues and staff assistance."

When Ms. Garcia returned to the office as required on January 2, 2003, she discovered that, due to a lack of funding, renovations to her workspace had not yet started. On January 13, 2003, Ms. Garcia was...

To continue reading

Request your trial
162 practice notes
  • Kaplan v. Conyers, 2011-3207
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 20, 2013
    ...deference to Board interpretations of the CSRA. See Cornelius v. Nutt, 472 U.S. 648, 659 (1985); Garcia v. Dep't of Homeland Sec., 437 F.3d 1322, 1338 (Fed. Cir. 2006) (en banc); Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326, 1336 (Fed. Cir. 2005); see also Lovshin v. Dep't of the Navy, 767 ......
  • Kaplan v. Conyers, No. 2011–3207.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 20, 2013
    ...of the CSRA. See Cornelius v. Nutt, 472 U.S. 648, 659, 105 S.Ct. 2882, 86 L.Ed.2d 515 (1985); Garcia v. Dep't of Homeland Sec., 437 F.3d 1322, 1338 (Fed.Cir.2006) (en banc); Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326, 1336 (Fed.Cir.2005); see also Lovshin v. Dep't of the Navy, 767 F.2d 82......
  • Kirkendall v. Department of Army, No. 05-3077.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • March 7, 2007
    ...that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling."); Garcia v. Dep't of Homeland Sec., 437 F.3d 1322, 1331 (Fed.Cir.2006) (en banc) (The board has "jurisdiction to determine its jurisdiction.") (quoting Cruz v. Dep't of Navy, 934 F.2d 1240, 1244 (Fe......
  • Conforto v. Merit Sys. Prot. Bd., No. 2012–3119.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • April 18, 2013
    ...en banc decisions in Cruz v. Department of the Navy, 934 F.2d 1240, 1248 (Fed.Cir.1991), and Garcia v. Department of Homeland Security, 437 F.3d 1322, 1328 (Fed.Cir.2006), the Board lacks jurisdiction over an employee's voluntary decision to resign or retire. In response to the administrati......
  • Request a trial to view additional results
163 cases
  • Kaplan v. Conyers, 2011-3207
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 20, 2013
    ...deference to Board interpretations of the CSRA. See Cornelius v. Nutt, 472 U.S. 648, 659 (1985); Garcia v. Dep't of Homeland Sec., 437 F.3d 1322, 1338 (Fed. Cir. 2006) (en banc); Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326, 1336 (Fed. Cir. 2005); see also Lovshin v. Dep't of the Navy, 767 ......
  • Kaplan v. Conyers, No. 2011–3207.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 20, 2013
    ...of the CSRA. See Cornelius v. Nutt, 472 U.S. 648, 659, 105 S.Ct. 2882, 86 L.Ed.2d 515 (1985); Garcia v. Dep't of Homeland Sec., 437 F.3d 1322, 1338 (Fed.Cir.2006) (en banc); Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326, 1336 (Fed.Cir.2005); see also Lovshin v. Dep't of the Navy, 767 F.2d 82......
  • Kirkendall v. Department of Army, No. 05-3077.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • March 7, 2007
    ...that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling."); Garcia v. Dep't of Homeland Sec., 437 F.3d 1322, 1331 (Fed.Cir.2006) (en banc) (The board has "jurisdiction to determine its jurisdiction.") (quoting Cruz v. Dep't of Navy, 934 F.2d 1240, 1244 (Fe......
  • Conforto v. Merit Sys. Prot. Bd., No. 2012–3119.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • April 18, 2013
    ...en banc decisions in Cruz v. Department of the Navy, 934 F.2d 1240, 1248 (Fed.Cir.1991), and Garcia v. Department of Homeland Security, 437 F.3d 1322, 1328 (Fed.Cir.2006), the Board lacks jurisdiction over an employee's voluntary decision to resign or retire. In response to the administrati......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT