Kloeckner v. Solis

• Decision Date: 10 December 2012
• Docket Number: No. 11–184.,11–184.
• Citation: 184 L.Ed.2d 433,568 U.S. 41,133 S.Ct. 596
• Parties: Carolyn M. KLOECKNER, Petitioner v. Hilda L. SOLIS, Secretary of Labor.
• Court: U.S. Supreme Court

568 U.S. 41

133 S.Ct. 596

184 L.Ed.2d 433

Carolyn M. KLOECKNER, Petitioner

v.Hilda L. SOLIS, Secretary of Labor.

No. 11–184.

Supreme Court of the United States

Argued Oct. 2, 2012.

Decided Dec. 10, 2012.

Eric Schnapper, Seattle, WA, for Petitioner.

Sarah E. Harrington, Washington, DC, for Respondent.

Eric Schnapper, Counsel of Record, Seattle, WA, Larry J. Stein, Fairfax, VA, Anthony J. Franze, R. Reeves Anderson, R. Stanton Jones, Arnold & Porter LLP, Washington, DC, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Acting Assistant Attorney General, Sri Srinivasan, Deputy Solicitor General, Sarah E. Harrington, Assistant to the Solicitor General, Marleigh D. Dover, Stephanie R. Marcus, Attorneys, Department of Justice, Washington, DC, for Respondent.

Justice KAGAN delivered the opinion of the Court.

A federal employee subjected to an adverse personnel action such as a discharge or demotion may appeal her agency's decision to the Merit Systems Protection Board (MSPB or Board). See 5 U.S.C. §§ 7512, 7701. In that challenge, the employee may claim, among other things, that the agency discriminated against her in violation of a federal statute. See § 7702(a)(1). The question presented in this case arises when the MSPB dismisses an appeal alleging discrimination not on the merits, but on procedural grounds. Should an employee seeking judicial review then file a petition in the Court of Appeals for the Federal Circuit, or instead bring a suit in district court under the applicable antidiscrimination law? We hold she should go to district court.

I

A

The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et seq., establishes a framework for evaluating personnel actions taken against federal employees. That statutory framework provides graduated procedural protections depending on an action's severity. If (but only if) the action is particularly serious—involving, for example, a removal from employment or a reduction in grade or pay—the affected employee has a right to appeal the agency's decision to the MSPB, an independent adjudicator of federal employment disputes.¹ See §§ 1204, 7512, 7701. Such an appeal may merely allege that the agency had insufficient cause for taking the action under the CSRA; but the appeal may also or instead charge the agency with discrimination prohibited by another federal statute, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., or the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq . See 5 U.S.C. § 7702(a)(1). When an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a "mixed case." See 29 CFR § 1614.302 (2012). The CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC) set out special procedures to govern such a case—different from those used when the employee either challenges a serious personnel action under the CSRA alone or attacks a less serious action as discriminatory. See 5 U.S.C. §§ 7702, 7703(b) (2) (2006 ed. and Supp. V); 5 CFR pt. 1201, subpt. E (2012); 29 CFR pt. 1614, subpt. C.

A federal employee bringing a mixed case may proceed in a variety of ways. She may first file a discrimination complaint with the agency itself, much as an employee challenging a personnel practice not appealable to the MSPB could do. See 5 CFR § 1201.154(a) ; 29 CFR § 1614.302(b). If the agency decides against her, the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court. See 5 CFR § 1201.154(b) ; 29 CFR § 1614.302(d)(1)(i). Alternatively, the employee may initiate the process by bringing her case directly to the MSPB, forgoing the agency's own system for evaluating discrimination charges. See 5 CFR § 1201.154(a) ; 29 CFR § 1614.302(b). If the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review. See 5 U.S.C. §§ 7702(a)(3), (b) ; 5 CFR § 1201.161 ; 29 CFR § 1614.303. The question in this case concerns where that judicial review should take place.

Section 7703 of the CSRA governs judicial review of the MSPB's decisions. Section 7703(b)(1) gives the basic rule: "Except as provided in paragraph (2) of this subsection, a petition to review a ... final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit." Section 7703(b)(2) then spells out the exception:

"Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under [the enforcement sections of the Civil Rights Act, Age Discrimination in Employment Act, and Fair Labor Standards Act], as applicable. Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702."

The enforcement provisions of the antidiscrimination statutes listed in this exception all authorize suit in federal district court. See 42 U.S.C. §§ 2000e–16(c), 2000e–5(f) ; 29 U.S.C. § 633a(c) ; § 216(b); see also Elgin v. Department of Treasury, 567 U.S. ––––, ––––, 132 S.Ct. 2126, 2134–2135, 183 L.Ed.2d 1 (2012).

Section 7702 describes and provides for the "cases of discrimination" referenced in § 7703(b)(2)'s exception. In relevant part, § 7702(a)(1) states:

"[I]n the case of any employee ... who—

"(A) has been affected by an action which the employee ... may appeal to the Merit Systems Protection Board, and

"(B) alleges that a basis for the action was discrimination prohibited by [specified antidiscrimination statutes],"the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board's appellate procedures."

The "cases of discrimination" in § 7703(b)(2)'s exception, in other words, are mixed cases, in which an employee challenges as discriminatory a personnel action appealable to the MSPB.

The parties here dispute whether, in light of these interwoven statutory provisions, an employee should go to the Federal Circuit (pursuant to the general rule of § 7703(b)(1) ), or instead to a district court (pursuant to the exception in § 7703(b)(2) ), when the MSPB has dismissed her mixed case on procedural grounds.

B

Petitioner Carolyn Kloeckner used to work at the Department of Labor (DOL or agency). In June 2005, while still an employee, she filed a complaint with the agency's civil rights office, alleging that DOL had engaged in unlawful sex and age discrimination by subjecting her to a hostile work environment. At that point, Kloeckner's case was not appealable to the MSPB because she had not suffered a sufficiently serious personnel action (e.g., a removal or demotion). See supra, at 600 – 601. Her claim thus went forward not under the special procedures for mixed cases, but under the EEOC's regulations for all other charges of discrimination. See 29 CFR pt. 1614, subpts. A, D. In line with those rules, the agency completed an internal investigation and report in June 2006, and Kloeckner requested a hearing before an EEOC administrative judge.

The next month, DOL fired Kloeckner. A removal from employment is appealable to the MSPB, see supra, at 600 – 601, and Kloeckner believed the agency's action was discriminatory; she therefore now had a mixed case. As permitted by regulation, see supra, at 601, she initially elected to file that case with the MSPB. Her claim of discriminatory removal, however, raised issues similar to those in her hostile work environment case, now pending before an EEOC judge; as a result, she became concerned that she would incur duplicative discovery expenses. To address that problem, she sought leave to amend her EEOC complaint to include her claim of discriminatory removal, and she asked the MSPB to dismiss her case without prejudice for four months to allow the EEOC process to go forward. See App. 13, 50–51. Both of those motions were granted. The EEOC judge accepted the amendment,² and on September 18, 2006, the MSPB dismissed her appeal "without prejudice to [her] right to refile ... either (A) within 30 days after a decision is rendered in her EEOC case; or (B) by January 18, 2007—whichever occurs first ." Id., at 5.

Discovery continued in the EEOC proceeding well past the MSPB's January 18 deadline. In April, the EEOC judge found that Kloeckner had engaged in bad-faith conduct in connection with discovery. As a sanction, the judge terminated the EEOC proceeding and returned Kloeckner's case to DOL for a final decision. Six months later, in October 2007, DOL issued a ruling rejecting all of Kloeckner's claims. See id., at 10–49.

Kloeckner appealed DOL's decision to the Board in November 2007. That appeal was filed within 30 days, the usual window for seeking MSPB review of an agency's determination of a mixed case. See 5 CFR § 1201.154(a) ; 29 CFR § 1614.302(d)(1)(ii). But the MSPB declined to treat Kloeckner's filing as an ordinary appeal of such an agency decision. Instead, the Board viewed it as an effort to reopen her old MSPB case—many months after the January 18 deadline for doing so had expired. The Board therefore dismissed Kloeckner's appeal as untimely. See App. 53–57.

Kloeckner then brought this action against DOL in Federal District Court, alleging unlawful discrimination. The District Court dismissed the complaint for lack of jurisdiction. See Kloeckner v. Solis, Civ. Action No. 4:09CV804, 2010 WL 582590 (E.D.Mo., Feb. 18, 2010). Relying on the Eighth Circuit's ruling in Brumley v. Levinson, 991 F.2d 801 (1993) (per curiam ), the court held that because the MSPB had dismissed Kloeckner's...