LESLIE A. KERR, Petitioner
MERIT SYSTEMS PROTECTION BOARD, Respondent
Petition for review of the Merit Systems Protection Board in
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.
Prost, Chief Judge, Dyk and Moore, Circuit Judges.
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
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.
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.
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.
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)).
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.
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).
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