Harris v. Sec'y, U.S. Dep't of the Interior
| Decision Date | 24 October 2022 |
| Docket Number | 21-14117 |
| Parties | DELTA DANIELLE HARRIS, Plaintiff-Appellant, v. SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 2:20-cv-14195-RLR Before GRANT, BRASHER, and MARCUS, Circuit Judges.
Delta Danielle Harris appeals the district court's grant of the Department of the Interior's ("DOI") motion to dismiss her lawsuit, which raised claims of discrimination and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-(3)(a), and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. On appeal, Harris argues that: (1) the Federal Circuit Court of Appeals erred in transferring her case to the United States District Court for the Southern District of Florida because her discrimination claims were untimely; (2) the district court abused its discretion in refusing to re-transfer her case to the Federal Circuit, where her nondiscrimination claims were timely filed; and (3) the district court erred in refusing to equitably toll the statutory time limit for filing her discrimination claims because she diligently pursued her claims for review of the Merit Systems Protection Board's ("MSPB") final order and the DOI was not prejudiced by her untimely filing. After careful review, we affirm.
In March 2018, a DOI supervisor issued a notice of proposed removal of Harris for cause from her position as a Fish and Wildlife Biologist, for being absent without leave, failure to follow leave procedures, lack of candor, misuses of a government vehicle, and inappropriate conduct. Based on the factors laid out in Douglas v. Veterans Administration, 5 M.S.P.B. 313 (1981), the supervisor determined that removal was the appropriate penalty for Harris's misconduct. The DOI agreed and removed Harris effective April 20, 2018. Harris then filed an Equal Employment Opportunity ("EEO") complaint alleging she was terminated based on her disabilities and in discrimination for her prior EEO activity. In February 2019, the DOI issued a final decision finding that Harris had not been subjected to employment discrimination, and informed her that she had the right to appeal the decision to the MSPB within 30 days or to file a civil action in the appropriate district court within 30 days, which was her only avenue if her claim arose under the Civil Rights Act. Harris appealed to the MSPB, challenging her removal; the MSPB affirmed the DOI's action, noted that the decision would become final on December 23, 2019 and informed her of the deadlines for an appeal.[1]
On February 21, 2020, Harris filed a petition for review of the MSPB's decision with the Federal Circuit. Because her filings indicated that she sought to pursue a discrimination claim that she'd raised as an affirmative defense before the MSPB, the Federal Circuit entered an order advising that the proper forum for discrimination cases was the district court. The order directed the parties to show cause why the case should not be transferred to a district court and asked which court would be most appropriate.
Harris responded that she intended to pursue her discrimination claims, agreed with the Federal Circuit that her case should be transferred to a district court, and urged that it be transferred to the United States District Court for the Southern District of Florida. On June 18, 2020, the Federal Circuit transferred Harris's case to the Southern District of Florida.
Once in district court, the DOI moved for dismissal, arguing that Harris's suit was untimely. It said that the MSPB decision became final on December 23, 2019, and that judicial review had to be sought with the Federal Circuit within 60 days if the claim did not involve an allegation of discrimination or with a district court within 30 days if the claim involved discrimination. Because Harris had not met these deadlines and had offered no justification for her late filing, a magistrate judge issued a report and recommendation ("R&R"), recommending that the DOI's motion to dismiss be granted. After reviewing Harris's objections to the R&R, the district court granted the DOI's motion to dismiss.
This timely appeal followed.
We have an obligation to ensure that we have jurisdiction to review a case before us. Corley v. Long-Lewis, 965 F.3d 1222, 1227 (11th Cir. 2020).
We review jurisdictional issues de novo. Adams v. Monumental Gen. Cas. Co., 541 F.3d 1276, 1277 (11th Cir. 2008). However, we review for abuse of discretion a district court's decision not to transfer a case. Richardson v. Ala. State Bd. of Educ. 935 F.2d 1240, 1247-48 (11th Cir. 1991) ().
The grant of a motion to dismiss based on the statute of limitations is reviewed de novo. United States v. Henco Holding Corp., 985 F.3d 1290, 1296 (11th Cir. 2021). We also review a district court's ruling on equitable tolling de novo. Boothv. Carnival Corp., 522 F.3d 1148, 1149 (11th Cir. 2008).
While we will liberally construe the pleadings of pro se litigants, Tannenbaum v.United States, 148 F.3d 1262, 1263 (11th Cir. 1998), liberal construction ofpro se pleadings "does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action." Campbell v. Air Jam., Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014) (quotations omitted). A district court has discretion to refuse to consider arguments that were not raised before the magistrate judge or were raised for the first time in objections to a magistrate judge's report and recommendation. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009).
Moreover, we are precluded "from reviewing an issue raised on appeal if it has been waived through the doctrine of invited error." United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir.2009).
"[T]he doctrine of invited error is implicated when a party induces or invites the district court into making an error." Id. (quotations omitted).
First, we lack jurisdiction to review the Federal Circuit's order transferring Harris's case to the United States District Court for the Southern District of Florida. The procedure for a federal employee to seek protection from adverse personnel actions was established by the Civil Service Reform Act ("CSRA"). Kloeckner v. Solis, 568 U.S. 41, 44 (2012). A serious personnel action, like removal, may be appealed to the MSPB. Id. A complaint that alleges a serious personnel action and that the action was based on discrimination is a "mixed case." Id. (quotations omitted).
When a federal employee brings a "mixed case" appealing an adverse personnel action from the MSPB and raising claims of discrimination, we review the non-discrimination claims on the administrative record using an arbitrary and capricious standard. Kelliher v Veneman, 313 F.3d 1270, 1274-75 (11th Cir. 2002). The MSPB's findings or conclusions may only be set aside if they are (1) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c). The MSPB considers factors including whether the offense was intentional or committed maliciously, the employee's potential for rehabilitation, the effect of the action on the employee's ability to perform her duties, the mission of the organization, the employee's past disciplinary record, unusual job tensions and any mental impairment. Douglas v. Vets. Admin., 5 M.S.P.B. at 331-32. The MSPB accords considerable deference to the agency's penalty determination and may modify a penalty only if the agency's judgment clearly exceeded the bounds of reasonableness, or the agency failed to conscientiously consider relevant mitigating factors. Id. at 332-33.
Generally, a petition for review of a final order of the MSPB must be filed in the Federal Circuit within 60 days of the decision becoming final. 5 U.S.C. § 7703(b)(1)(A). Judicial review of a final order of the MSPB in an action based, in whole or in part, on unlawful discrimination must be filed in an appropriate district court within 30 days. Id. § 7703(b)(2). The Federal Circuit has no authority over discrimination claims, nor does it have authority over "mixed cases." Perry v. Merit Sys. Prot. Bd., 137 S.Ct. 1975, 1979 (2017).
Whenever a civil action is filed, including a petition for review of an administrative action, and the court in which it is filed finds that it lacks jurisdiction, it shall, if it is in the interest of justice, transfer the action to any other court in which the action could have been brought when it was filed. 28 U.S.C. § 1631. When a transfer like this occurs, the action shall proceed as if it had been filed in the court to which it is transferred on the date that it is transferred. Id.
However, we lack jurisdiction to review an order transferring a case to a district court within this Circuit. Cf. Corley, 965 F.3d at 1232 ( the context of a transfer order from a district court to a district court in another circuit that "an out-of-circuit transfer order is not reviewable on appeal in the transferee circuit"); Murray v. Scott, 253 F.3d 1308, 1314 (11th Cir. 2001) ().
Our case law is clear that we lack jurisdiction to review the Federal Circuit's order transferring...
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