Filed: Patrick Fisher

F I L E D
United States Court of Appeals

Tenth Circuit
PUBLISH
MAY 6 2003
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
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.
*
KRIEGER, District Judge.
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.
1
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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.
-4-
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
Pub. L. No. 95-454, 92 Stat. 111 (codified as amended in various sections of 5

U.S.C. 1201-1222).
2
See McAdams, 64 F.3d at 1141.
-5-
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
(a)(1) Notwithstanding any other provision of law, and except

as provided in paragraph (2) of this subsection, in the case of
any employee or applicant for employment who-(A) has been affected by an action which the employee or
applicant may appeal to the Merit Systems Protection Board,
and
(B) alleges that a basis for the action was discrimination
prohibited by
(i) section 717 of the Civil Rights Act of 1964
(42 U.S.C. 2000e-16),
(ii) section 6(d) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 206(d)),
(iii) section 501 of the Rehabilitation Act of
1973 (29 U.S.C. 791),
(iv) sections 12 and 15 of the Age
Discrimination in Employment Act of 1967 (29
U.S.C. 631, 633a), or
(v) any rule, regulation, or policy directive
prescribed under any provision of law described
in clauses (i) through (iv) of this subparagraph,
the Board shall, within 120 days of the filing of the appeal,
decide both the issue of discrimination and the appealable
action in accordance with the Board's appellate procedures
under section 7701 of this title and this section.
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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
5
Any decision of the Board under paragraph (1) of this
Cases of discrimination subject to the provisions of section

7702 of this title . . . must be filed within 30 days after the
date the individual filing the case received notice of the
judicially reviewable action under section 7702.
subsection shall be a judicially reviewable action as of . . . the

date of issuance of the decision . . .
-7-
discrimination in a federal district court.

(B) Did Mr. Coffmans case lose its mixed character by virtue of the
ALJs determination?
There is no dispute, and the trial court properly found, that Mr. Coffman
initiated a mixed appeal to the MSPB. The sole issue is whether the case lost
its mixed character by virtue of the ALJs determination that Mr. Coffman did
not present sufficient evidence to prove his unlawful discrimination/retaliation
claims.
The USDA relied upon the following cases before the trial court and again
argues from them in this appeal: Meehan v. U.S. Postal Service, 718 F.2d 1069,
1073 (Fed.Cir. 1983); Hill, 796 F.2d at 1471; Blake v. Dept of the Air Force, 794
F.2d 170, 173 (5 th Cir. 1986); Ballentine v. Merit Systems Protection Bd, 738 F.2d
1244, 1248 (Fed.Cir. 1984); Stephens v. Connley, 842 F.Supp. 1457, 1459
(M.D.Ga. 1994), affd without opinion, 48 F.3d 537 (11 th Cir. 1995); Bullock v.
Widnall, 1997 WL 1876544 (M.D.Ala. 1997). 7 The USDA asserts that these cases
collectively stand for the proposition that an employees failure to present
evidence before the MSPB is considered an abandonment, waiver or elimination
of an unlawful discrimination claim thereby extinguishing its mixed character.
Due to the bifurcated scheme for review of MSPB decisions, the decisions from
the Federal Circuit include factual findings on the issue of waiver or abandonment. In
contrast, the opinion of the Fifth Circuit, like the matter at hand, involves appellate
review of the district courts factual determination.
7
-8-
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).
-9-
to exhaust applicable administrative remedies prior to seeking judicial review.

The administrative exhaustion requirement applies regardless of which
administrative path the federal employee elects. If the employee chooses to go
the EEO route, he or she simply files a complaint with the EEO department of the
employing agency. 29 C.F.R. 1614.105(a)(1), 1614.106(a) and 1614.108. The
EEO officer then conducts an investigation and comes to a conclusion. The
employee can then file an appeal to the EEOC and thereafter proceed to federal
court, without the obligation to present evidence to an ALJ in order to exhaust his
or her administrative remedies. See 42 U.S.C. 2000e-16(c); 29 C.F.R.
1614.401 and 1614.407. If the employee chooses to appeal to the MSPB,
however, the employee will have a hearing at which he or she must raise his or
her claims of discrimination and present evidence in support of those claims in
order to exhaust the administrative remedy. McAdams, 64 F.3d at 1142-44;
Williams, 983 F.2d at 180; Chaney v. Rubin, 986 F. Supp. 516, 522 (N.D. Ill.
1997).
Because exhaustion of remedies is the analytical touchstone, the instructive
value of the decisions cited by the USDA is diminished. Such cases merely offer
illustrations of circumstances in which exhaustion did not occur. Several reflect
circumstances where the employee initially asserted unlawful discrimination
claims before the MSPB, but later failed to present evidence in support of such
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claims. 7 In such circumstances, courts utilized the concepts of waiver and

abandonment to describe the legal effect of the employees failure to present
evidence. 8 Although these cases reach a consistent result that an employee who
waives or abandons a discrimination claim at the administrative level fails to
sufficiently exhaust that claim to permit district court review on the facts
presented, they fail to apply the overarching test of exhaustion that we now
announce.
This case demonstrates the confusion that can result when specific factual
determinations, such as in the cases cited by the USDA, are used to generate a
broader rule. The trial court concluded that Mr. Coffmans claims of
discrimination had been eliminated from his case by the ALJs determination
In Meehan, Blake and Bullock, the employee expressly waived discrimination

claims and declined to present evidence on them. In Stephens, the employee simply failed
to present evidence at the time of the evidentiary hearing. In Hill, no evidence was
presented because the ALJ dismissed the discrimination claims for facial insufficiency.
In Ballentine, no determination was made with regard to presentation of evidence.
Instead, the MSPB determined that it lacked jurisdiction because the appeal was
premature and such determination was affirmed.
7
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.
8
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that he presented insufficient evidence to support them. The thorough, 31-page,

decision by the ALJ reflects, however, that Mr. Coffman vigorously pursued his
unlawful discrimination claims in the evidentiary hearing. Mr. Coffman testified
that he was able to perform his duties, that he did not suffer any medical/mental
problems, that the agencys characterization of him as mentally disabled was
unjustified, and that he was terminated at age 62 in reprisal for having filed prior
age discrimination complaints and for whistle-blowing activities. He offered
descriptions of events and motivations for the agencys decision to terminate
which conflicted with that of other witnesses, notably the expert witness
testimony of Dr. John Call, the clinical and forensic psychologist called by
USDA. Mr. Coffman also called witnesses on his own behalf: Debra McAlister,
Donna Ward and Sam Cameron.
The mere length and extensive detail of the opinion belies the argument
that Mr. Coffman failed to present any evidence. After considering the
conflicting evidence, the ALJ assessed the credibility of the witnesses, 9 made
factual findings, and stated legal conclusions. For each claim of unlawful
discrimination, the ALJ set forth the elements that Mr. Coffman was required to
prove and considered the evidence, concluding that the evidence presented was
He found employees Ward, McAlister, Cameron and Berryhill to be credible but
Mr. Coffmans testimony and perceptions [were] less credible than the testimony
provided by the other RSO employees about the situation. Jt App. at 64.
9
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deficient. It is unfortunate that the ALJ repeatedly referred to Mr. Coffmans

failure to prove a prima facie case. Such language suggests that the ALJ was
considering the facial sufficiency of the allegations. See e.g. Costa v. Desert
Palace, Inc., 299 F.3d 838, 854-55 (9 th Cir. 2002) (McDonnell-Douglas burdenshifting analysis is merely a tool to assess the sufficiency of a claim prior to trial
on the merits). But reviewing the opinion as a whole, it is clear that the ALJ was
not simply assessing the sufficiency of Mr. Coffmans pleadings. He was,
instead, determining Mr. Coffmans unlawful discrimination claims on their
merits.
Although the ALJ concluded that Mr. Coffman had not proved his claims,
and therefore the claims were effectively eliminated, such determination is not
synonymous with a failure to exhaust administrative remedies. Mr. Coffman
fully exhausted his administrative remedies in the MSPB appeal process. He was
required to plead and present evidence in support of his unlawful discrimination
claims, which he did. However, he was not required to prevail on such claims in
order for the case to remain a mixed case subject to de novo review.
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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.
-14-

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F I L E D

United States Court of Appeals

UNITED STATES COURT OF APPEALS

KRIEGER, District Judge.

Pub. L. No. 95-454, 92 Stat. 111 (codified as amended in various sections of 5

See McAdams, 64 F.3d at 1141.

(a)(1) Notwithstanding any other provision of law, and except

Any decision of the Board under paragraph (1) of this

Cases of discrimination subject to the provisions of section

subsection shall be a judicially reviewable action as of . . . the

discrimination in a federal district court.

to exhaust applicable administrative remedies prior to seeking judicial review.

claims. 7 In such circumstances, courts utilized the concepts of waiver and

In Meehan, Blake and Bullock, the employee expressly waived discrimination

that he presented insufficient evidence to support them. The thorough, 31-page,

deficient. It is unfortunate that the ALJ repeatedly referred to Mr. Coffmans

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