Kerr v. Jewell

          Argued and Submitted August 2, 2016 Anchorage, Alaska

         Appeal from the United States District Court No. 3:08-cv-00230-RRB, for the District of Alaska Ralph R. Beistline, District Judge, Presiding

          Stephani Ayers (argued) and Thad M. Guyer, T.M. Guyer & Friends, P.C., Medford, Oregon, for Plaintiff-Appellant.

          Charles W. Scarborough (argued), Stephanie R. Marcus, and Marleigh D. Dover; Karen L. Loeffler, United States Attorney; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, Department of Justice, Washington, D.C.; for Defendant-Appellee.

          Before: Raymond C. Fisher, Richard A. Paez and Andrew D. Hurwitz, Circuit Judges.

         SUMMARY^[*]

         Whistleblower Protection Act

         The panel affirmed the district court's dismissal for lack of jurisdiction of plaintiff's claim under the Whistleblower Protection Act ("WPA") brought against her former employer, the United States Fish and Wildlife Service, based on plaintiff's failure to present the WPA claim to the Merit Systems Protection Board.

         The panel held that the statutory scheme governing the Civil Service Reform Act and the WPA did not authorize plaintiff to file her WPA claim in district court without first presenting it to the Merit Systems Protection Board. The panel further held that the district court lacked jurisdiction over plaintiff's WPA claim because the Merit Systems Protection Board provides the exclusive avenue for obtaining judicial review of a WPA claim. Finally, the panel held that the district court did not abuse its discretion by declining to remand her WPA claim to the Merit Systems Protection Board.

          OPINION

          FISHER, Circuit Judge

         Leslie Kerr, a former employee of the United States Fish and Wildlife Service (FWS), contended she was discriminated and retaliated against in violation of Title VII and retaliated against in violation of the Whistleblower Protection Act (WPA). Kerr presented her claims to FWS's Equal Employment Opportunity (EEO) office, which denied her Title VII claims on the merits and dismissed her WPA claim for lack of jurisdiction. Rather than appealing the EEO office's decision to the Merit Systems Protection Board (MSPB), which had jurisdiction to review the WPA claim on the merits, Kerr filed a civil action in federal district court, asserting both her Title VII claims and her WPA claim. The district court dismissed the WPA claim for lack of jurisdiction based on Kerr's failure to present the claim to the MSPB. Kerr appeals, and we affirm.

         We hold, first, that the statutory scheme governing the Civil Service Reform Act (CSRA) and the WPA did not authorize Kerr to file her WPA claim in district court without first presenting it to the MSPB. Kerr has what is known as a "mixed case, " because she challenges a serious personnel action - her removal - on account of discrimination. In a mixed case, a decision of an agency's EEO office is subject to review in the district court, without an intervening stop at the MSPB. See 5 U.S.C. § 7702(a)(2). Kerr was free to take her Title VII claims directly from FWS's EEO office to district court, bypassing the MSPB. Nothing in § 7702(a)(2), however, authorizes an employee to present an entirely unreviewed WPA claim in district court without first presenting it to the MSPB.

         Second, although a federal district court can exercise federal question jurisdiction under 28 U.S.C. § 1331, that general grant of jurisdiction does not apply where it is fairly discernible that Congress intended a statutory review scheme to provide the exclusive avenue to judicial review. See Elgin v. Dep't of Treasury, 132 S.Ct. 2126, 2132-33 (2012). In Elgin, the Supreme Court applied this principle to the CSRA, holding that, "[g]iven the painstaking detail with which the CSRA sets out the method for covered employees to obtain review of adverse employment actions, it is fairly discernible that Congress intended to deny such employees an additional avenue of review in district court." Id. at 2134. The WPA is part of the CSRA, and nothing in the WPA alters the conclusion the Court reached in Elgin. The statutory scheme places exclusive original jurisdiction in the MSPB. Accordingly, the scheme precluded the district court from exercising original jurisdiction over Kerr's WPA claim.

         BACKGROUND

         We described the facts underlying this case in an unpublished decision resolving a previous appeal. See Kerr v. Jewell, 549 F.App'x 635, 636-38 (9th Cir. 2013). As we explained there, Kerr was employed by FWS as director of the Kodiak National Wildlife Refuge. Over a period of months, Kerr was subjected to a series of adverse personnel actions. These included a negative performance evaluation rating her "minimally successful, " a warning letter stemming from an allegedly inappropriate contact with another employee and a 60-day temporary assignment (or "detail") to a position in Anchorage. Later, her superiors made the assignment to the Anchorage position permanent. When Kerr refused the reassignment, the agency approved her removal from employment, and Kerr involuntarily retired on the day her removal would have taken effect.

         While these events were unfolding, Kerr was also subjected to alleged sex discrimination. During a performance review, a supervisor asked Kerr whether she could "learn to be more feminine." Id. at 636. She also reported finding Playboy magazines in a cabin at the refuge. During the same period, Kerr filed a series of complaints with her superiors, the human resources office and the Department of the Interior's Office of Inspector General, challenging her adverse treatment, complaining about the magazines and her supervisor's comment and reporting what she described as gross mismanagement by her supervisors, including widespread alcohol abuse among FWS employees.

         Kerr eventually asserted claims of discrimination and retaliation against FWS. The process began in March 2006, when Kerr filed an informal complaint with the FWS EEO counselor. In May 2006, after the counselor failed to resolve the case, Kerr filed a formal complaint with FWS's EEO office, alleging claims of sex discrimination, religious discrimination and retaliation. As amended, the complaint challenged, among other things, the negative performance review, the warning letter, the 60-day detail in Anchorage, the decision to remove her from employment and her resulting involuntary retirement.

         In June 2006, while the EEO complaint was pending, Kerr filed an "appeal" with the MSPB, challenging her removal.^[1]The MSPB appeal alleged not only discrimination and retaliation on account of sex and religion, in violation of Title VII, but also retaliation for engaging in protected whistleblower activities, in violation of the WPA and arising from her complaints of mismanagement. The WPA prohibits retaliation against an employee for disclosing "any violation of any law, rule, or regulation, or . . . gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety." 5 U.S.C. § 2302(b)(8).

         In July 2006, FWS's EEO office accepted Kerr's claims for investigation, other than those relating to her removal. The EEO office dismissed those claims because she had decided to challenge her removal before the MSPB: "By filing with the MSPB first, you elected to pursue this matter with them."

         In October 2006, the MSPB informed Kerr it lacked original jurisdiction over her claims pertaining to the less serious adverse personnel actions - the warning letter, the negative performance evaluation and the 60-day detail. See 5 U.S.C. § 7512 (listing five serious personnel actions, including "a removal, " over which the MSPB has jurisdiction); 5 C.F.R. § 1201.3(a)(1) (same); see also Reddick v. FDIC, 809 F.3d 1253, 1256 & n.1 (Fed. Cir. 2016). The MSPB advised Kerr it had jurisdiction solely over claims related to her removal.

         The MSPB also informed Kerr she had a "mixed case, " "in which an employee . . . alleges that a personnel action appealable to the Board was based, in whole or in part, on prohibited discrimination." 5 C.F.R. § 1201.151(a)(1); see also 29 C.F.R. § 1614.302(a). The Board gave Kerr two options with respect to her claims relating to her removal. She could either present the claims to FWS's EEO office, later appealing them to the MSPB, or she could bypass the EEO office and present them in the first instance to the MSPB, by filing an original "appeal" with the Board. See 5 C.F.R. § 1201.154(a) ("Where the appellant has been subject to an action appealable to the Board, he or she may either file a timely complaint of discrimination with the agency or file an appeal with the Board . . . ."). But she could not challenge her removal in both forums simultaneously. See 29 C.F.R. § 1614.302(b) ("An aggrieved person may initially file a mixed case complaint with an agency pursuant to this part or an appeal on the same matter with the MSPB pursuant to 5 CFR 1201.151, but not both."). The Board thus advised Kerr she could either "move to withdraw this appeal without prejudice to the underlying claims, exhaust the agency's EEO procedure, then file a new appeal to the Board concerning her removal within the time limits set forth at 5 C.F.R. § 1201.154(b), " or "she may abandon the EEO procedure with respect to her removal only, and continue to pursue this appeal." Kerr chose the first option, informing the Board "she elects to exhaust EEO procedures before filing a new appeal with the Board concerning her removal."

         Accordingly, in November 2006, the MSPB dismissed Kerr's appeal "as premature, without prejudice to the underlying claims." The Board noted Kerr could "file a new appeal to the Board" after conclusion of the EEO proceedings. See 5 C.F.R. § 1201.154(b) ("If the appellant has filed a timely formal complaint of discrimination with the agency . . . [a]n appeal must be filed [with the MSPB] within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue . . . ."). In light of the MSPB dismissal, FWS's EEO office accepted Kerr's claims arising from her removal for investigation.

         In September 2008, the Department of the Interior's Office of Civil Rights issued a final decision on Kerr's formal EEO complaint. The decision rejected Kerr's Title VII claims on the merits. To the extent Kerr claimed she was removed in violation of the WPA, however, the Civil Rights Office dismissed the claims, stating "such actions [are] outside the purview of the EEO process and, therefore, not protected activities under Title VII." This ruling was consistent with longstanding Equal Opportunity Employment Commission (EEOC) precedent declining jurisdiction over claims of retaliation not based on discrimination. See, e.g., Petitioner v. Shinseki, 2014 WL 899672, at *1 n.1 (EEOC Feb. 27, 2014) ("[T]he Whistleblower Protection Act is a statute that is not under the Commission's purview."); Remsburg v. Daley, 1998 WL 72077, at *2 (EEOC Feb. 9, 1998) ("[T]he agency properly dismissed that portion of appellant's complaint based on retaliation for unprotected activities . . . [because] whistleblower activities are generally outside the purview of the EEO process.").^[2]

         When the EEO process was resolved, Kerr did not file an appeal with the MSPB, as she had previously indicated she would do. Instead, she filed this civil action in federal district court, alleging violations of Title VII and the WPA. The district court granted summary judgment to the ...