Kerr v. Merit Sys. Prot. Bd.

• Decision Date: 15 November 2018
• Docket Number: 2017-2538
• Citation: 908 F.3d 1307
• Parties: Leslie A. KERR, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

908 F.3d 1307

Leslie A. KERR, Petitioner

v.MERIT SYSTEMS PROTECTION BOARD, Respondent

2017-2538

United States Court of Appeals, Federal Circuit.

Decided: November 15, 2018

Stephani Ayers, Law Office of S.L. Ayers, Medford, OR, argued for petitioner. Also represented by Thad McIntosh Guyer, T.M. Guyer & Friends, PC, Medford, OR.

Jeffrey Gauger, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by Tristan Leavitt, Katherine Michelle Smith.

Before Prost, Chief Judge, Dyk and Moore, Circuit Judges.

Dyk, Circuit Judge.

Leslie A. Kerr petitions for review of the Merit Systems Protection Board's ("MSPB's" or "Board's") dismissal of her claim under the Whistleblower Protection Act of 1989 ("WPA"), 5 U.S.C. § 1201 et seq., as untimely filed without good cause for the delay. Because the MSPB abused its discretion in rejecting Kerr's claim of good cause, we reverse and remand.

BACKGROUND

This case was originally a "mixed case," i.e., it involved a personnel action appealable to the MSPB and a claim of prohibited discrimination. See 29 C.F.R. § 1614.302(a) ; 5 C.F.R. § 1201.151. In such cases, "the intersection of federal civil rights statutes and civil service law has produced a complicated, at times confusing, process for resolving claims of discrimination in the federal workplace." Kloeckner v. Solis , 568 U.S. 41, 49, 133 S.Ct. 596, 184 L.Ed.2d 433 (2012). As with some other mixed cases, Kerr's case has traversed a byzantine labyrinth of administrative and judicial channels of review. The procedural history has been reviewed elsewhere. Kerr v. Jewell , 549 F. App'x 635, 636–38 (9th Cir. 2013) (" Kerr I"); Kerr v. Jewell , 836 F.3d 1048, 1050–53 (9th Cir. 2016) (" Kerr II"). This opinion focuses only on those events relevant to Kerr's petition for review now before the court.

Kerr was employed by the U.S. Department of the Interior Fish and Wildlife Service ("agency") from February 1980 to her involuntary retirement in June 2006. Both parties treat Kerr's involuntary retirement as effectively a removal: we will too. Before her removal, Kerr was subjected to a series of adverse personnel actions. Kerr filed a formal complaint with the agency's Equal Employment Opportunity ("EEO") office in May 2006, challenging the adverse personnel actions and alleging claims of sex and religious discrimination and retaliation.

When Kerr was removed she did not initially seek review of her removal claim before the EEO office but instead, in June 2006, challenged her removal and the earlier adverse personnel actions by filing an appeal with the MSPB. In her MSPB appeal, Kerr alleged that the adverse personnel actions were based on sex and religious discrimination, prohibited by Title VII of the Civil Rights Act of 1964, and constituted retaliation for engaging in whistleblower activities protected under the WPA. The MSPB informed Kerr that it lacked jurisdiction over the less serious personnel decisions (i.e., warning letter, negative performance evaluation, and 60-day detail), and, because of the agency's inadequate notification of Kerr's appeal rights for her mixed case, gave Kerr the opportunity to present her removal-related claims to the agency's EEO office or have the MSPB decide them in the first instance. Kerr elected to have her claims reviewed by the EEO office first. Thus, the MSPB dismissed Kerr's appeal without prejudice in November 2006, and the EEO office accepted Kerr's removal-related claim for investigation along with her already pending claims.

In September 2008, the agency's EEO office issued a final decision rejecting Kerr's discrimination claims and concluding that the WPA claim was not within the EEO office's jurisdiction. The final decision also informed Kerr that, because she had a "mixed case," she could not appeal the constructive discharge claim to the Equal Employment Opportunity Commission ("EEOC"), but instead could either appeal the decision to the MSPB or file a civil action in district court (pursuant to 5 U.S.C. § 7702(a) and 29 C.F.R. § 1614.310(a) ).

Kerr decided to pursue review of her mixed case in district court by filing suit in the District of Alaska in October 2008. The parties litigated the discrimination and WPA claims on the merits, and, in 2011, the district court granted summary judgment in favor of the government on both claims. In 2013, the Ninth Circuit reversed and remanded for further consideration of both claims on the merits. Kerr I , 549 F. App'x at 641.

On remand to the district court, the government argued for the first time that the district court lacked jurisdiction over Kerr's WPA claim because she failed to exhaust her administrative remedies by failing to seek review of her WPA claim at the MSPB. The district court agreed and dismissed the WPA claim in July 2014 but held a jury trial for the discrimination claim. The jury returned with a verdict on the discrimination claim in favor of the government. The district court entered final judgment. Kerr appealed only the dismissal of her WPA claim. The Ninth Circuit affirmed on September 6, 2016. Kerr II , 836 F.3d at 1059. The Ninth Circuit reasoned that the district court had no jurisdiction over the WPA claim because Congress created a "comprehensive system of administrative review" for WPA claims. Id . at 1057. This scheme would be undermined if an employee could present "an entirely unreviewed WPA claim to the district court" in the first instance. Id . at 1056–57 (citing 5 U.S.C. §§ 1211 – 15 ) (emphasis in original). Because Kerr's WPA claim had not been adjudicated by the EEO or the MSPB, the court held that district court review was unavailable. The Ninth Circuit noted "Kerr's reasonable reliance" on contrary authority from the Tenth Circuit, see id . at 1059, which had held that a district court had jurisdiction over an unreviewed WPA claim as part of a mixed case, see Wells v. Shalala , 228 F.3d 1137, 1142–43 (10th Cir. 2000).

Kerr filed a petition for a writ of certiorari with the Supreme Court on December 5, 2016, which was denied on March 20, 2017. Approximately three weeks later, on April 11, 2017, Kerr filed a request with the MSPB to reopen her earlier appeal to the Board that had been dismissed without prejudice. The Board rejected Kerr's request, concluding that there was neither good cause nor equitable tolling for the untimely filing of Kerr's appeal with the MSPB from the EEO office's final decision in September 2008.

Kerr timely petitioned for review of the MSPB's dismissal to this court. We have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).¹

DISCUSSION

I. Good Cause for Delay

"If a party does not submit an appeal [to the MSPB] within the time set by statute, regulation, or order of a [Board] judge, it will be dismissed as untimely filed unless a good reason for the delay is shown." 5 C.F.R. § 1201.22(c) ; see id . § 1201.12. The appellant bears the burden of establishing "good cause" for the delay. Id. § 1201.56(b)(2)(i). We review the Board's good cause determination for abuse of discretion. See Herring v. Merit Sys. Prot. Bd. , 778 F.3d 1011, 1013 (Fed. Cir. 2015) (citing Mendoza v. Merit Sys. Prot. Bd. , 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc) ).

MSPB regulations do not delimit what constitutes good cause for delay, but "[d]elay is excusable where, under the circumstances, a petitioner exercises diligence or ordinary prudence." Mendoza , 966 F.2d at 653 (citation omitted). To evaluate whether a petitioner has demonstrated good cause, a variety of nonexclusive criteria have been considered, including:

the length of the delay; whether appellant was notified of the time limit or was otherwise aware of it; the existence of circumstances beyond the control of the appellant which affected his ability to comply with the time limits; the degree to which negligence by the appellant has been shown to be present or absent; circumstances which show that any neglect involved is excusable neglect; a showing of unavoidable casualty or misfortune; and the extent and nature of the prejudice to the agency which would result from waiver of the time limit.

Herring , 778 F.3d at 1013–14 (quoting Alonzo v. Dep't of the Air Force , 4 MSPB 262, 264, 4 M.S.P.R. 180, 184 (1980) ).

In this case, it is undisputed that Kerr's request to reopen her earlier MSPB appeal was not timely filed after the EEO office's final decision in September 2008. So the question for the Board was whether Kerr established good cause for the delay. To answer this question, the Board considered three factors: the length of delay, the reasonableness of Kerr's excuse for the delay, and the presence of attorney representation.² The Board found that the delay between the EEO office's final decision (September 2008) and Kerr's petition for reopening her earlier MSPB appeal (April 2017) was substantial (8.5 years) and that Kerr had been represented by counsel the entire time. The crux of the Board's no good cause determination was that Kerr did not have a reasonable excuse for pursuing her unreviewed WPA claim in district court in the Ninth Circuit.

We disagree. Kerr did have a reasonable basis for thinking that the district court was an appropriate forum for resolving all of her mixed case claims, including her WPA claim.

Under 5 U.S.C. § 7702(a)(2), "[i]n any matter before an agency which involves" a personnel action that is appealable to the MSPB and that is alleged to have been based, in whole or in part, on "any issue of discrimination prohibited [under the provisions described in subsection (a)(1)(B) ]," "[t]he decision of the agency in any such matter shall be a judicially reviewable action." As the Supreme Court has noted, after an adverse decision by the agency "the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court." Kloeckner , 568 U.S. at 45, 133 S.Ct. 596 (citing 5 C.F.R. §...