Leslie A. Kerr, Plaintiff-Appellant,
v.
Sally Jewell, Secretary of Department of the Interior, Defendant-Appellee.
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 ...