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Kerr v. Merit Systems Protection Board

United States Court of Appeals, Federal Circuit

November 15, 2018

LESLIE A. KERR, Petitioner

          Petition for review of the Merit Systems Protection Board in No. SF-0752-17-0362-I-1.

          Stephani Ayers, Law Office of S.L. Ayers, Medford, OR, argued for petitioner. Also represented by Thad McIntosh Guyer, T.M. Guyer & Friends, PC, Medford, OR.

          Jeffrey Gauger, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by Tristan Leavitt, Katherine Michelle Smith.

          Before Prost, Chief Judge, Dyk and Moore, Circuit Judges.


         Leslie A. Kerr petitions for review of the Merit Systems Protection Board's ("MSPB's" or "Board's") dismissal of her claim under the Whistleblower Protection Act of 1989 ("WPA"), 5 U.S.C. § 1201 et seq., as untimely filed without good cause for the delay. Because the MSPB abused its discretion in rejecting Kerr's claim of good cause, we reverse and remand.


         This case was originally a "mixed case," i.e., it involved a personnel action appealable to the MSPB and a claim of prohibited discrimination. See 29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.151. In such cases, "the intersection of federal civil rights statutes and civil service law has produced a complicated, at times confusing, process for resolving claims of discrimination in the federal workplace." Kloeckner v. Solis, 568 U.S. 41, 49 (2012). As with some other mixed cases, Kerr's case has traversed a byzantine labyrinth of administrative and judicial channels of review. The procedural history has been reviewed elsewhere. Kerr v. Jewell, 549 Fed.Appx. 635, 636-38 (9th Cir. 2013) ("Kerr I"); Kerr v. Jewell, 836 F.3d 1048, 1050-53 (9th Cir. 2016) ("Kerr II"). This opinion focuses only on those events relevant to Kerr's petition for review now before the court.

         Kerr was employed by the U.S. Department of the Interior Fish and Wildlife Service ("agency") from February 1980 to her involuntary retirement in June 2006. Both parties treat Kerr's involuntary retirement as effectively a removal: we will too. Before her removal, Kerr was subjected to a series of adverse personnel actions. Kerr filed a formal complaint with the agency's Equal Employment Opportunity ("EEO") office in May 2006, challenging the adverse personnel actions and alleging claims of sex and religious discrimination and retaliation.

         When Kerr was removed she did not initially seek review of her removal claim before the EEO office but instead, in June 2006, challenged her removal and the earlier adverse personnel actions by filing an appeal with the MSPB. In her MSPB appeal, Kerr alleged that the adverse personnel actions were based on sex and religious discrimination, prohibited by Title VII of the Civil Rights Act of 1964, and constituted retaliation for engaging in whistleblower activities protected under the WPA. The MSPB informed Kerr that it lacked jurisdiction over the less serious personnel decisions (i.e., warning letter, negative performance evaluation, and 60-day detail), and, because of the agency's inadequate notification of Kerr's appeal rights for her mixed case, gave Kerr the opportunity to present her removal-related claims to the agency's EEO office or have the MSPB decide them in the first instance. Kerr elected to have her claims reviewed by the EEO office first. Thus, the MSPB dismissed Kerr's appeal without prejudice in November 2006, and the EEO office accepted Kerr's removal-related claim for investigation along with her already pending claims.

         In September 2008, the agency's EEO office issued a final decision rejecting Kerr's discrimination claims and concluding that the WPA claim was not within the EEO office's jurisdiction. The final decision also informed Kerr that, because she had a "mixed case," she could not appeal the constructive discharge claim to the Equal Employment Opportunity Commission ("EEOC"), but instead could either appeal the decision to the MSPB or file a civil action in district court (pursuant to 5 U.S.C. § 7702(a) and 29 C.F.R. § 1614.310(a)).

         Kerr decided to pursue review of her mixed case in district court by filing suit in the District of Alaska in October 2008. The parties litigated the discrimination and WPA claims on the merits, and, in 2011, the district court granted summary judgment in favor of the government on both claims. In 2013, the Ninth Circuit reversed and remanded for further consideration of both claims on the merits. Kerr I, 549 Fed.Appx. at 641.

         On remand to the district court, the government argued for the first time that the district court lacked jurisdiction over Kerr's WPA claim because she failed to exhaust her administrative remedies by failing to seek review of her WPA claim at the MSPB. The district court agreed and dismissed the WPA claim in July 2014 but held a jury trial for the discrimination claim. The jury returned with a verdict on the discrimination claim in favor of the government. The district court entered final judgment. Kerr appealed only the dismissal of her WPA claim. The Ninth Circuit affirmed on September 6, 2016. Kerr II, 836 F.3d at 1059. The Ninth Circuit reasoned that the district court had no jurisdiction over the WPA claim because Congress created a "comprehensive system of administrative review" for WPA claims. Id. at 1057. This scheme would be undermined if an employee could present "an entirely unreviewed WPA claim to the district court" in the first instance. Id. at 1056-57 (citing 5 U.S.C. §§ 1211-15) (emphasis in original). Because Kerr's WPA claim had not been adjudicated by the EEO or the MSPB, the court held that district court review was unavailable. The Ninth Circuit noted "Kerr's reasonable reliance" on contrary authority from the Tenth Circuit, see id. at 1059, which had held that a district court had jurisdiction over an unreviewed WPA claim as part of a mixed case, see Wells v. Shalala, 228 F.3d 1137, 1142-43 (10th Cir. 2000).

         Kerr filed a petition for a writ of certiorari with the Supreme Court on December 5, 2016, which was denied on March 20, 2017. Approximately three weeks later, on April 11, 2017, Kerr filed a request with the MSPB to reopen her earlier appeal to the Board that had been dismissed without prejudice. The Board rejected Kerr's request, concluding that there was neither good cause nor equitable tolling for ...

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