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Bolton v. Colvin

United States District Court, M.D. North Carolina

May 22, 2015

CAROLYN COLVIN, Acting Commissioner of Social Security, and OFFICE OF PERSONNEL MANAGEMENT, Defendants.


L. PATRICK AULD, Magistrate Judge.

This case comes before the Court for a recommended ruling on Defendants' Motion to Dismiss for Lack of Jurisdiction (Docket Entry 16) and Plaintiff's Motion for Partial Summary Judgment (Docket Entry 20). For the reasons that follow, the Court should dismiss this case because the Court lacks subject-matter jurisdiction.


Plaintiff, an employee of the Social Security Administration ("SSA"), filed an Amended Complaint in this Court appealing a determination of the Merit Systems Protection Board ("MSPB") which upheld her demotion by SSA. (Docket Entry 11 at 1.)[1] In disputing her demotion, Plaintiff's Amended Complaint asserts a claim for disability discrimination under the Rehabilitation Act, challenges various regulations and procedures of the MSPB and the Office of Personnel Management ("OPM"), and asserts the facial unconstitutionality of 5 U.S.C. § 7701(c)(1)(A), requiring the MSPB to uphold agency employment decisions if supported by substantial evidence. (Id. at 1-2, 16-17.)

In late 2011, SSA demoted Plaintiff from a Paralegal Specialist to a Legal Assistant. (Docket Entry 17 at 17-18; Docket Entry 21 at 10.) Plaintiff then appealed that decision to the MSPB, asserting both improper procedures and disability discrimination. (Docket Entry 17 at 19; Docket Entry 21 at 10.) During the pendency of that appeal, Plaintiff moved for the MSPB to notify OPM that she challenged various OPM regulations and, further, to compel discovery from OPM. (Docket Entry 17 at 20; Docket Entry 21 at 11.) Rather than rule on those motions, the MSPB apparently opened a separate case against OPM to determine whether it should review the challenged OPM regulations. (Docket Entry 17 at 20-21; Docket Entry 21 at 11.) The ALJ subsequently affirmed Plaintiff's demotion (in the case against SSA) and Plaintiff petitioned the full board to review the ALJ's decision. (Docket Entry 17 at 19-20; Docket Entry 21 at 10.)

Then, in April 2013, the MSPB declined to review the challenged OPM regulations and Plaintiff shortly thereafter appealed that decision to the United States Court of Appeals for the Federal Circuit. (Docket Entry 17 at 21; Docket Entry 21 at 12.) In January 2014, the full MSPB affirmed Plaintiff's termination and Plaintiff then filed the instant action in this Court. (Docket Entry 17 at 22-23; Docket Entry 21 at 14.) In April 2014, the Federal Circuit granted Plaintiff's request for a voluntary dismissal of her case against OPM. (Docket Entry 17 at 23; Docket Entry 21 at 14.)

Defendants subsequently filed their instant Motion, asserting that Plaintiff's appeal to the Federal Circuit in the OPM case precludes her from now bringing a mixed case in district court. (Docket Entry 16; see Docket Entry 17 at 8.) Plaintiff responded in opposition and moved for summary judgment as to certain claims. (Docket Entry 20.) Defendants replied as to their Motion to Dismiss and responded in opposition to summary judgment. (Docket Entry 24.) Plaintiff replied as to her Motion for Partial Summary Judgment (Docket Entry 27) and responded a second time to Defendants' Motion to Dismiss (Docket Entry 29).


Under the Civil Service Reform Act of 1978 ("CSRA"), "a federal employee subjected to... [a] demotion may appeal her agency's decision to the [MSPB]." Kloeckner v. Solis, ___ U.S. ___, ___, 133 S.Ct. 596, 600 (2012); see 5 U.S.C. §§ 7512(3)-(4), 7701(a). "In that challenge, the employee may claim, among other things, that the agency discriminated against her in violation of a federal statute." Kloeckner, 133 S.Ct. at 600 (citing 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.'" Id . (emphasis in original) (citing 29 C.F.R. § 1614.302).

"An employee who is dissatisfied with the MSPB's decision is entitled to judicial review in the United States Court of Appeals for the Federal Circuit." Elgin v. Department of Treasury, ___ U.S. ___, ___, 132 S.Ct. 2126, 2130 (2012). As a general rule, "[t]he Federal Circuit has exclusive jurisdiction over appeals from a final decision of the MSPB." Id. at 2131 (internal quotation marks omitted). Mixed cases represent the sole exception to that general rule within the CSRA. See id. at 2134. If the MSPB upholds the agency's personnel action in a mixed case, "[t]he employee may appeal [that] MSPB decision to either the U.S. Court of Appeals for the Federal Circuit or the appropriate federal district court." Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 2009).

However, "[i]f the employee pursues the mixed case in the Federal Circuit, then she abandons her discrimination claims because the Federal Circuit lacks jurisdiction to entertain discrimination claims." Id . Accordingly, once an employee elects to appeal a mixed case from the MSPB to the Federal Circuit, she "waives her right to bring a discrimination claim in district court based on the same or related facts." Id . For that reason, the Federal Circuit requires such employees to certify, by completing Federal Circuit Claim Form 10, either that no claim of discrimination has been or will be made, or that any such claim has been abandoned. Id. at 564.

For instance, in Pueschel, a federal employee challenged her termination before the MSPB and alleged discrimination and retaliation by her agency employer. Id. at 562. That employee also raised as an affirmative defense that her agency employer had improperly failed to allow her to "buy back" three thousand hours of leave. Id . The MSPB affirmed the employee's termination and she appealed to the Federal Circuit, which also affirmed. Id . That employee later brought an action in district court (this time bypassing the MSPB) in which she alleged a hostile work environment and "that she was subjected to gender and disability-based discrimination and retaliation when [her agency employer] interfered with [her efforts] to buy back 3, 000 hours of leave." Id . Because the employee had already raised (in the first case) the allegation concerning her inability to buy back 3, 000 hours of leave before the MPSB and then appealed that decision to the Federal Circuit (rather than bringing a mixed case in a federal district court), the district court dismissed the action for lack of subject-matter jurisdiction. Id . The Fourth Circuit affirmed, noting that the employee "[could not] create a superficial distinction between her claims that have gone before the Federal Circuit and the district courts, since they ar[o]se out of the same set of facts." Id. at 564.

In the instant case, Plaintiff does not dispute that she submitted Form 10 upon appealing her case against OPM to the Federal Circuit. (See Docket Entry 21 at 13.) In fact, the record reflects that Plaintiff's counsel signed a copy of Form 10 and indicated that "[n]o claim of discrimination by reason of... handicapped condition has been or will be made in this case." (Docket Entry 31 at 141.) Instead, Plaintiff asserts that "[Plaintiff's] case in the Federal Circuit has nothing to do with her demotion at SSA, which was the subject of the MSPB decision being challenged in this [C]ourt." (Docket Entry 21 at 8.) That argument fails in light of the Fourth Circuit's holding in Pueschel.

Plaintiff admits that both actions arose from her demotion by SSA and, further, that the OPM case derived from the SSA case. (See Docket Entry 21 at 12-14.) However, she appears to assert that the OPM case, because it represented a facial ...

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