Federal Circuit Finds that it is the Appropriate Forum to Hear Appeal of Board's Dismissal for Lack of Jurisdiction

Maria Conforto worked for the Department of the Navy until her retirement in December 2010. Following a string of events which she alleged were motivated by age and sex discrimination and retaliation for prior equal employment opportunity activity, Conforto advised her agency’s human resources office in September 2010 that she wished to retire as of December 31 of that year.


Following Conforto’s submission of retirement papers, other events occurred which she alleged were products of discrimination or retaliation, culminating in the issuance of a notice proposing to suspend Conforto for seven days. Conforto filed an EEO complaint with her agency in June 2010, alleging discrimination based on age and sex and reprisal for prior EEO activity, which she later amended to allege that she had been forced to retire because of harassment. The agency issued its decision in October 2011, concluding that the agency did not subject Conforto to discrimination or retaliation and that she had retired voluntarily. Conforto appealed the agency’s decision to the Merit Systems Protection Board.

On appeal, the administrative judge issued an order advising Conforto that the Board might not have jurisdiction over her appeal because “retirement is presumed to be a voluntary act,” and the Board does not have jurisdiction over an employee’s voluntary decision to retire. Conforto alleged that the Board did, in fact, have jurisdiction over her appeal because her retirement was a product of coercion by the agency, and, therefore, her involuntary retirement was a constructive removal and fell within the Board’s jurisdiction. The administrative judge disagreed and dismissed Conforto’s appeal for lack of jurisdiction and Conforto appealed to the U.S. Court of Appeals for the Federal Circuit.

The Federal Circuit ultimately found that it had jurisdiction over Conforto’s appeal. The appellate court first looked at the Supreme Court’s recent decision in Kloeckner v. Solis, which held that the appropriate forum to review a mixed case appeal that the Board dismissed on procedural grounds is the district court, not the Federal Circuit. However, the appellate court distinguished the issue raised in Kloeckner and the issue presented in this case, which was whether it had the authority to hear an appeal stemming from a dismissal for a jurisdictional issue, not a procedural one. The court explained that the Supreme Court in Kloeckner “was silent on the question of how to treat jurisdictional dismissals,” and, therefore, the Federal Circuit looked at its own prior decisions to decide the case.

In Ballentine v. Merit Systems Protection Board, the appellate court found that the pertinent statutory text dictated that it, not the district court, had the authority to hear jurisdictional dismissals of the Board. The court continued to explain that the holding of Kloeckner, which only applied to procedural dismissals, left the holding of Ballentine pertaining to jurisdictional dismissals undisturbed. Therefore, the rule that the Federal Circuit has the authority to hear jurisdictional dismissals “is still good law,” and the Court is “required to follow it.”

Thus, the Federal Circuit found that it was the appropriate forum to hear Conforto’s appeal of the Board’s dismissal for lack of jurisdiction.

The case is Conforto v. Merit Systems Protection Board and is available here.

Posted in Case Law Update




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