Sloan v. West, 96-16830.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation140 F.3d 1255
Docket NumberNo. 96-16830.,96-16830.
PartiesWayne SLOAN, Plaintiff-Appellant, v. Togo WEST, Jr., officially as Secretary of the Army; Office of Personnel Management, Defendants-Appellees.
Decision Date07 April 1998

Stephanie R. Marcus, United States Department of Justice, Civil Division, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii; Alan C. Kay, District Judge, Presiding. D.C. No. CV-95-00942-ACK.

Before: REINHARDT, LEAVY and THOMAS, Circuit Judges.

Opinion by Judge THOMAS; Partial Concurrence and Partial Dissent by Judge REINHARDT.

THOMAS, Circuit Judge:

In this appeal, we shall attempt to loosen the jurisdictional Gordian knot formed when Title VII and civil service administrative claims are interlaced. Under the facts presented, we conclude that this appeal must be transferred to the Court of Appeals for the Federal Circuit, but that the Title VII claims are equitably tolled.


From 1988 until he lost his job in 1993, Wayne Sloan was employed as an electronics technician by the U.S. Army Corps of Engineers in Camp Zama, Japan under an "Overseas Limited Appointment." When Sloan was hired at the grade of GS-5, Department of Defense regulations required that Overseas Limited Appointment employees over the grade of GS-6 were limited to a five year employment term. DODR 1400.25-M, ¶ 4-2.a(1),d.(1). Employees in grades GS-6 or lower were exempt, provided the employee remained at that grade. Id. at ¶ 4.2.2.(e).4. Upon promotion to grade GS-7 or higher, the employee became subject to the five year term limitation, retroactive to his or her hiring date. Id. at 4-2.a.(2). Thus, perhaps inspired by the management theories of Joseph Heller or Scott Adams, the regulations allowed an Overseas Limited Appointment employee to be fired through promotion.

This fate befell Sloan in April 1991 when he was promoted from a GS-5 to a GS-7 pay grade, and promptly notified he would then be terminated from employment pursuant to Department of Defense regulations on July 26, 1993.1 In reviewing Sloan's file in January 1993, the Corps decided that his original appointment and promotion had been approved under improper legal authority. To remedy this, the Corps sought and received retroactive authority from the Office of Personnel Management under an exception to Military Pay Procedures to hire, promote and convert. The net result of this facially legitimized, but did not alter, Sloan's status.

In plain English, this meant that under the regulations Sloan should never have been hired in the first place and, once hired, should not have kept his job. Of course, this presumably presented an awkward situation because Sloan was still showing up for work each day. Thus, he was retroactively hired, promoted and converted to term employment in sufficient time so that he could be fired on schedule, which he was.

Following his termination, Sloan pursued his grievances through numerous avenues. He initiated a complaint with the Army's Equal Opportunity Office ("EEO") alleging, inter alia, he was fired because of racial animus. The EEO investigator recommended a finding of no discrimination.2 Sloan requested a hearing before an Equal Employment Opportunity Commission ("EEOC") complaints examiner, and a hearing was held in August of 1994.3 However, before the EEOC could issue a decision in the case, Sloan requested that the matter be remanded to the Army's EEO office for final determination, so that he could appeal his case to the Merit System Protection Board ("MSPB" or "the Board") as a "mixed claim" of civil service procedural violations and discrimination rather than pursuing the discrimination claim alone through the EEOC.4 The EEOC remanded the case, and a final Army EEO decision, with a finding of no discrimination, was issued on May 16, 1995.

Appellant filed an appeal of the EEO decision with the MSPB on April 28, 1995, claiming: (1) the Army improperly classified him, resulting in an improper removal from service; (2) this improper classification was, at least in part, the result of racial animus; and (3) the Army's alleged policy of maintaining a relatively large number of Japanese Nationals in the civilian workforce had a negative disparate impact on other racial groups employed by the Army, such as Sloan who is an African-American. An MSPB Administrative Law Judge denied Sloan's request for a hearing, and determined that (1) the classification was proper, and therefore (2) Sloan's term expired automatically. In other words, Sloan had not been subjected to an "adverse action" which would allow the MSPB to exercise jurisdiction over the case. The ALJ held that Sloan was not entitled to a hearing because the case "present[ed] no disputed jurisdictional facts." Sloan filed a petition for review to the MSPB, which denied it without comment on November 1, 1995.

Meanwhile, Sloan had commenced separate litigation in the Court of Federal Claims under the Tucker Act, claiming violations of the Severance Pay Act. This action was ultimately dismissed on the basis that the Court of Federal Claims was not the appropriate forum to challenge a personnel action and thus, the MSPB determination of job status was controlling. Therefore, because Sloan's GS-7 status at termination did not place him under the Act's coverage, his suit was dismissed. Sloan v. United States, 36 Fed. Cl. 163, 167 (Fed.Cl.1996). Thus, Sloan's retroactive promotion also meant that he was not entitled to severance pay.

As part of the MSPB decision, Sloan was instructed that he had "the right to request the United States Court of Appeals for the Federal Circuit to review the Board's final decision in your appeal." However, rather than appealing the MSPB decision to the Federal Circuit Court of Appeals, Sloan appealed to the United States District Court for the District of Hawaii. Sloan argued in district court that because his complaint alleged discrimination, his was a "mixed case" within the meaning of 5 U.S.C. § 7702, and that district court was the proper venue for appeal of the MSPB decision. He sought reversal of the MSPB's determination that the Board lacked jurisdiction, with remand to the MSPB for a decision on the merits.

The district court denied the motion to remand, and granted the Army's cross motion to dismiss for lack of jurisdiction. The district court determined that, because the adverse action complained of was held not "appealable to the MSPB," the case was not a "mixed case" subject to district court review pursuant to § 7703(b)(2). Thus, the court reasoned, appellate review must be sought in the Federal Circuit Court of Appeals. Sloan's timely appeal to this court followed.


This appeal concerns the proper appellate procedure for "mixed cases" filed before the Merit System Protection Board and the collateral consequences of a jurisdictional appeal on non-jurisdictional issues.


The Merit Systems Protection Board was created as a direct result of efforts to reform the political spoils system under which Federal employees were routinely fired when a new administration assumed power. After several antecedents, in 1978 Congress passed the Civil Service Reform Act, 5 U.S.C. § 1201 et. seq., with the hope of simplifying and revising the rules and regulations governing federal employees.5 The Act created the Merit Systems Protection Board as a quasi-judicial Government agency to adjudicate Federal employee appeals of agency personnel actions. See 5 U.S.C. § 1201 et. seq.; see also, 5 C.F.R. § 1200.1 (1997). The MSPB is charged with overseeing and protecting the merit system, and adjudicating conflicts between Federal employees and employers.

Although the Board exercises original jurisdiction,6 this appeal concerns MSPB's appellate jurisdiction. The Board's appellate jurisdiction is not plenary, but rather is limited to those appeals authorized by law, rule, or regulation. 5 U.S.C. § 7701(a).7 Generally, the Board is authorized to review "adverse employment actions," which fall into one of five categories: a removal, a suspension for more than 14 days, a reduction in grade, a reduction in pay, or a furlough of 30 days or less. 5 U.S.C. § 7512(1)-(5); 5 C.F.R. § 1201.3 (1997). An appeal must be filed within 30 days of the adverse employment action. 5 C.F.R. § 1201.22 (1997).

The Board also has pendent jurisdiction over discrimination claims brought in connection with an "adverse action" otherwise appealable to it. 29 C.F.R. § 1614.302 (1997). This presents an employee with an option not usually available when he or she seeks to pursue a claim of discrimination. Ordinarily, a federal employee asserting a discrimination claim pursuant to Title VII of the Civil Rights Act of 1964 must exhaust his or her administrative remedies before filing in Federal District Court. He or she must initially file a complaint with the Equal Employment Office of his or her agency.8 Once the agency issues a final decision, the complainant may file an appeal of the agency resolution with the Equal Employment Opportunity Commission,9 or alternatively, file a civil suit in federal district court.10 29 C.F.R. § 1614.310(a) (1997); 32 C.F.R. § 588.26(f) (1997); 32 C.F.R. § 588 app. A, 1 (1997).

However, when a federal employee claims he or she has been affected by both an "adverse employment action" and a related Title VII violation, administrative remedies may be exhausted for Title VII purposes by asserting both claims before the MSPB. McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir.1995). This type of case constitutes the paradigmatic "mixed case complaint," that is, a complaint which alleges the employee suffered an adverse employment action that was affected, in whole or in part, by unlawful discrimination. 29 C.F.R. § 1614.302 (1997). A "mixed case appeal" is a case...

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