Virginia Lawyers Weekly VA Lawyers Weekly
Where a federal employee claimed his suit challenging the Drug Enforcement Agency, or DEA’s, failure to select him for any of the GS-15 positions for which he applied was a “mixed case” under the law, but guidance from prior cases and the mechanics of the Civil Service Reform Act, or CSRA, show otherwise, the district court correctly held it lacked jurisdiction over the claims.
Background
Robert F. Zachariasiewicz Jr. challenges the district court’s dismissal of his complaint — which alleges whistleblower protection and discrimination claims relative to his employment at the DEA — for lack of subject matter jurisdiction.
Jurisdiction
Pursuant to the CSRA, an employee may appeal a “major personnel action[], such as termination,” directly to the Merit Systems Protection Board, or MSPB, and if he “does not prevail before the MSPB, [he] may seek judicial review in the Federal Circuit.” To challenge other, “[l]ess serious” personnel actions that violate certain “prohibited personnel practices,” the employee must first file a complaint in the Office of Special Counsel, or OSC, before proceeding to the MSPB. He may then seek judicial review in the Federal Circuit. But “[i]f the OSC decides not to pursue the complaint, the CSRA does not provide for any further administrative or judicial review.”
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Allegations of conduct that is prohibited by the Whistleblower Protection Act, or WPA, generally fall within the latter category of personnel actions that must be pursued before the OSC prior to the MSPB. However, even if the OSC does not act on a complaint alleging a WPA claim, the employee may “seek corrective action from the [MSPB]” via an “individual right of action,” or IRA, appeal. The employee is then entitled to seek judicial review of the MSPB’s decision on a WPA claim either in the Federal Circuit or in “any court of appeals of competent jurisdiction.”
By contrast, when a federal employee alleges unlawful discrimination prohibited by another federal statute aside from the CSRA — such as Title VII — he must first file a complaint with the agency by which he is employed. If the agency’s decision is unfavorable, the employee may appeal the decision to the Equal Employment Opportunity Commission, or EEOC, then seek judicial review of an unfavorable decision by the EEOC in federal district court, or he may forgo the appeal to the EEOC and file suit in federal district court.
The CSRA permits an employee who “has been affected by an action which [he] may appeal to the [MSPB]” and alleges that unlawful discrimination was a basis for that action to bypass the agency review process and proceed before the MSPB instead. A claim that meets these criteria is known as a “mixed case.” If the MSPB denies relief in a mixed case, the employee may seek judicial review of the MSPB’s decision in federal district court.
In this case, appellant purports to challenge as a mixed case the DEA’s failure to select him for any of the GS-15 positions for which he applied. He alleges that the DEA’s conduct is the result of retaliation against him for his whistleblower complaints and of unlawful race and gender discrimination. He further argues that since the IRA appeal he obtained after pursuing his WPA claims with the OSC allows him to proceed before the MSPB, it can serve as the basis for a mixed case when combined with his discrimination claims.
The district court held that it lacked subject matter jurisdiction over this action
because appellant has not, in fact, brought a mixed case. Specifically, the district court concluded that a mixed case can include only those “serious” personnel actions enumerated in 5 U.S.C. § 7512 that fall within the MSPB’s “original jurisdiction.”
The court agrees that only those personnel actions that an employee can challenge before the MSPB in the first instance can serve as the basis for a mixed case. Guidance from prior cases and the mechanics of the CSRA compel the court to conclude that the personnel action giving rise to an IRA appeal cannot form the core of a mixed case because that personnel action is not directly appealable to the MSPB and instead must be challenged with the OSC prior to the MSPB.
Constructive demotion
Alternatively, appellant contends that even if an IRA appeal does not satisfy § 7702(a)(1)(A), he nonetheless suffered a “constructive demotion” that is equivalent to such a personnel action. Specifically, he argues that his “categorical[] ban on being promoted” amounts to a reduction in grade or pay, both of which are personnel actions listed in § 7512. But an employee’s non-selection for a position is not equivalent to a constructive demotion and does not confer MSPB jurisdiction.
Title VII
However, the district court considered only whether appellant’s discrimination claims were properly before it as part of a mixed case, not whether it could adjudicate the Title VII claims independently of the other claims. Accordingly, the court remands for the district court to decide in the first instance whether it may address the merits of appellant’s Title VII claims.
Affirmed in part, vacated in part and remanded.
Dissenting opinion
Diaz, J., dissenting:
The Supreme Court has cautioned against reading employees’ review rights under the CSRA in a manner that protracts proceedings, increases costs and stymies employees. Rather than heed that warning, the majority prioritizes a regulation’s directive — with no statutory basis — to affirm the district court’s dismissal of a mixed-case appeal that meets the statutory requirements. Because that outcome violates § 7702(a)(1)’s unambiguous mandate, leaving duplicative litigation in its wake, I respectfully dissent.
Zachariasiewicz v. U.S. Department of Justice, Case No. 19-2343, Aug. 31, 2022. 4th Cir. (Thacker), from EDVA at Alexandria (Alston). Andrea R. Butler for Court-Assigned Amicus Counsel. Laura Day (Rottenborn) Taylor for Appellees. VLW 022-2-213. 41 pp.
