Professional Documents
Culture Documents
Filed: Patrick Fisher
Filed: Patrick Fisher
PUBLISH
MAY 6 2003
PATRICK FISHER
Clerk
DEWEY COFFMAN,
Plaintiff-Appellant,
v.
DAN GLICKMAN, Secretary of the
United States Department of
Agriculture; UNITED STATES
DEPARTMENT OF AGRICULTURE,
No. 01-6203
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-99-1797-T)
Steven M. Angel, Angel & Associates, LLC, Oklahoma City, Oklahoma, for the
Plaintiff-Appellant.
Ron Pyle, Assistant United States Attorney, Oklahoma City, Oklahoma, (Robert
G. McCampbell, United States Attorney, and Eleanor Darden, Assistant United
States Attorney, Oklahoma City, Oklahoma on the brief) for the DefendantsAppellees.
Before SEYMOUR and McCONNELL, Circuit Judges, and KRIEGER, District
Judge. *
The Honorable Marcia S. Krieger, United States District Judge for the District of
Colorado, sitting by designation.
*
Dewey Coffman brought this civil rights action following review by the Merit
Systems Protections Board (MSPB) of his termination from employment by the
United States Department of Agriculture (USDA). Both before the MSPB and in
this action, Mr. Coffman alleged that he was terminated by the USDA based upon
illegal discrimination related to age, disability and in retaliation for filing prior
discrimination complaints. Upon motion of the USDA, the district court found
that Mr. Coffmans claims of unlawful discrimination had been eliminated by
the MSPB, thereby extinguishing the mixed nature of the case. As a
consequence, the district court concluded that it lacked subject matter jurisdiction
and dismissed and transferred the action to the Court of Appeals for the Federal
Circuit. Mr. Coffman appeals from such order. We REVERSE and remand for
further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1997, Mr. Coffman was terminated from employment by the USDA for
medical inability to perform duties. He appealed the agencys termination
decision to the MSPB, asserting that he did not suffer from any medical or mental
problems and was able to perform his duties. He affirmatively contended that his
termination was the result of unlawful discrimination on the basis of an alleged
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disability, his age (62 years), and as retaliation for his filing of age discrimination
complaints and whistle-blowing disclosures. 1
At an evidentiary hearing before an Administrative Law Judge (ALJ), Mr.
Coffman testified on his own behalf and presented testimony of witnesses Debra
McAlister, Donna Ward, and Sam Cameron to support his claims of unlawful
discrimination. The ALJ evaluated the evidence presented, then issued a
thorough, 31-page written opinion affirming the USDAs decision to terminate
Mr. Coffman and determining that the unlawful discrimination claims had no
merit. The ALJ gave detailed consideration to each of Mr. Coffmans claims,
finding the evidence presented to be inadequate to prove the requisite elements.
Mr. Coffman petitioned for review to the MSPB, which was denied, making the
decision of the ALJ the final MSPB decision. Mr. Coffman then sought de novo
judicial review of the MSPB decision by filing this action.
The USDA moved to dismiss this action for lack of subject matter
jurisdiction pursuant to F ED .R.C IV .P. 12(b)(1). It argued that because the MSPB
had eliminated Mr. Coffmans unlawful employment discrimination claims, the
After initiating his appeal with the MSPB, Mr. Coffman filed a complaint with the
Equal Employment Opportunity (EEO) office of the USDA, alleging the same claims of
unlawful discrimination. In accordance with 29 C.F.R. 1614.310(b), his EEO complaint
was dismissed due to his election to pursue the claims before the MSPB. Mr. Coffman
also filed an action in the United States District Court for the Western District of
Oklahoma (Case No. Civ. 00-462-T) asserting the unlawful discrimination claims. Such
action was dismissed as premature, given the pending MSPB appeal.
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case was no longer a mixed case subject to de novo review by a federal district
court. Instead, review of the MSPB decision fell within the exclusive jurisdiction
of the United States Court of Appeals for the Federal Circuit. The district court
agreed. It dismissed and transferred the action to the United States Court of
Appeals for the Federal Circuit.
When this appeal was initiated, this Court directed the parties to address its
jurisdiction. After consideration of written arguments, we determined that this
Court had jurisdiction to review the dismissal and transfer order of the district
court.
II. ISSUE PRESENTED AND STANDARD OF REVIEW
Review of a MSPB determination which does not involve claims of
unlawful discrimination is conducted by the United States Court of Appeals for
the Federal Circuit. 5 U.S.C. 7703(b)(1)(d); 28 U.S.C. 1295(a)(9); see also
Long v. United States Department of Air Force, 751 F.2d 339, 342 n.2 (10 th Cir.
1984); Wall v. United States, 871 F.2d 1540, 1542 (10 th Cir. 1989), cert. denied,
493 U.S. 1019 (1990). However, when an appeal to the MSPB involves claims of
unlawful discrimination related to or stemming from the employment action, it is
considered a mixed appeal. 29 C.F.R. 1614.302(a)(1); see Williams v. Rice,
983 F.2d 177, 179 (10 th Cir. 1993); Williams v. Dept. of Army, 715 F.2d 1485,
1488 (Fed.Cir. 1983); Hill v. Dept of Air Force, 796 F.2d 1469, 1470 (Fed.Cir.
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1986); McAdams v. Reno, 64 F.3d 1137, 1141 (8 th Cir. 1995). Review of MSPB
determinations in mixed cases lies solely in a district court. See 5 U.S.C.
7703(b)(2); Williams, 983 F.2d at 180; Wells v. Shalala, 228 F.3d 1137, 1143
(10 th Cir. 2000).
The parties do not dispute that Mr. Coffmans proceeding before the MSPB
was a mixed appeal. Instead, the issue presented is whether the case lost its
mixed character by virtue of the ALJs determination that Mr. Coffman failed
to present sufficient evidence to prove his unlawful discrimination/retaliation
claims. Because the resolution of this issue is determinative of the district courts
subject matter jurisdiction, we review the underlying record de novo. US West
Inc. v. Tristani, 182 F.3d 1202, 1206 (10 th Cir. 1999), cert. denied, 528 U.S. 1106
(2000).
III. ANALYSIS
(A) Statutory Framework for Determination of Unlawful Discrimination
Claims by Federal Employees.
The statutes 2 and implementing regulations that create the mechanism by
which federal employees may assert claims of unlawful employment
discrimination are complex and require careful attention by the employee. 3
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Summarized briefly, the process allows a federal employee who asserts claims of
unlawful discrimination in conjunction with a challenge to an adverse
employment action to either file an EEO complaint with the employing agency or
appeal directly to the MSPB. 5 U.S.C. 7702(a); 29 C.F.R. 1614.302; 5 C.F.R.
1201.151-1201.157. Whichever action is taken first is considered an election
to proceed in that forum. 29 C.F.R. 1614.302(b).
The MSPB is authorized by 5 U.S.C. 7702(a)(1) 4 to review both the
adverse action as well as the unlawful discrimination claims. The decision of the
MSPB becomes a judicially reviewable action on the date it is issued. 5 U.S.C.
7702(a)(3)(A). 5 The employee may obtain de novo review of the MSPB decision
in a mixed appeal by filing an action in federal district court. 29 C.F.R.
1614.310(b); see also Harms v. IRS, 321 F.3d 1001, 1005 (10 th Cir. 2003); 5
U.S.C. 7703(b)(2) 6; Christo v. Merit Systems Protection Board, 667 F.2d 882,
884 (10 th Cir. 1981); Williams, 983 F.2d at 179; Wall, 871 F.2d at 1542-43; Wells,
228 F.3d at 114.
The rationale behind this statutory scheme is to promote uniformity in
treatment of unlawful discrimination claims brought by federal employees relative
to those brought by their private sector counterparts. Christo, 667 F.2d at 884-85,
citing to S. R EP . N O . 969, 95 th Cong., 2d Sess., reprinted in 1978 U.S.C.C.A.N.
2775, 2785. These statutes and regulations are designed to ensure that federal
employees, just as private sector employees, after exhausting their administrative
remedies, can seek de novo review of claims of unlawful employment
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Mr. Coffman responds that these cases are factually distinguishable. He argues
that he did not waive or abandon his claims before the MSPB. To the contrary, he
presented evidence in support of the claims and, after assessing the evidence
presented, the ALJ ruled against him.
For reasons stated more fully below, the cases cited by the USDA are not
instructive. These cases do not define a standard for determining whether, after an
MSPB appeal, a federal employee may pursue unlawful discrimination claims in
district court. They provide only examples of MSPB appeals that lost their
mixed character.
We believe that the proper standard to be applied is set forth in the
thoughtful analysis of the Eighth Circuit Court of Appeals in McAdams v. Reno,
supra, and the recent decision of this Court, Harms v. IRS, 321 F.3d 1001, 10071009 (10 th Cir. 2003). Both decisions recognize that a federal employee must
exhaust his or her administrative remedies in order to obtain de novo review of
unlawful discrimination claims by a district court. Harms, 321 F.3d at 108-109;
McAdams, 64 F.3d at 1141. This rule is consonant with the purpose of the Civil
Service Reform Act and its implementing regulations. Federal employees, like
private sector employees, can submit unlawful discrimination claims to a district
court. Like their private sector counterparts, 8 federal employees also are required
See e.g. 42 U.S.C. 2000e-5(f).
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At some point in the repetitive citation of this line of authority, the phrase
elimination of a claim was introduced, apparently as an alternative for the concepts of
waiver or abandonment. Unfortunately, the phrase elimination of a claim, unlike terms
like waiver and abandonment, has no intrinsic legal meaning. Elimination of a
claim could conceivably describe a wide variety of mechanisms by which a claim is
removed from an action, including dismissal, waiver, abandonment, and even
adjudication on the merits. The vagueness and breadth of the phrase elimination of a
claim is the apparent source of the confusion that befell the district court in this action.
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We therefore conclude that the federal district court has subject matter
jurisdiction to consider Mr. Coffmans unlawful discrimination claims. The
district courts order of dismissal and transfer is REVERSED, and the matter is
REMANDED for further proceedings.
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