Sixth Circuit: Appeals of Enforcement Petitions Must Go to Federal Circuit
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
On October 14, 2020, the Sixth Circuit Court of Appeals held that appeals of MSPB decisions on petitions for enforcement must be heard by the U.S. Court of Appeals for the Federal Circuit, even appeals of petitions stemming from a “mixed case” typically appealable to federal district court for adjudication of discrimination claims.
An Air Force employee was removed from federal service after the agency found that her inability to work full time due to a disability was affecting the agency’s mission. Subsequently, the Department of Labor found she was no longer disabled, and she applied for fast-track reemployment for employees who have recovered from a disability pursuant to 5 U.S.C. § 8151(b) and 5 C.F.R. § 353,301(b). The Air Force did not act on her request.
With no action on her reemployment request, the employee appealed to the Merit Systems Protection Board, arguing that she had been unjustly removed from her civil service position and that the removal was motivated by disability discrimination. Thus, the employee brought a “mixed case” to the MSPB. A “mixed case” is a case where an employee is “affected by an action which [she] may appeal to the Merit Systems Protection Board” and “alleges that a basis for the action was [unlawful] discrimination.” Here, the employee’s removal was appealable to the MSPB (5 U.S.C. § 7512-13), as was the Air Force’s failure to put her on the reemployment list (5 C.F.R. § 353.301, 353.304, 330.214). And the employee alleged that a basis for the action was disability discrimination, unlawful under Title VII, therefore meeting both requirements for a “mixed case.”
The MSPB held that the employee’s removal was justified and was not motivated by discriminatory animus. However, the MSPB also held that the Air Force should have, and did not, put the employee on the priority reemployment list. To remedy the agency’s inaction, the MSPB ordered the Air Force to appoint the employee to any position she would have received if it had put her on the reemployment list when she first asked. Because it was a mixed case decision, the employee had the right to appeal the decision to federal district court or the Federal Circuit. At first, the employee did pursue an appeal in federal district court. But she withdrew it, and decided to instead pursue a new position through the MSPB’s order.
The Air Force offered the employee two jobs at her pay grade. Dissatisfied with the agency’s choice of positions, the employee alleged that the agency’s job offer was not in good faith and petitioned the MSPB for enforcement of its order.
The MSPB disagreed with the employee, and issued a decision denying the employee’s petition for enforcement. The employee appealed the MSPB’s enforcement decision to federal district court, which found that it lacked jurisdiction to hear the appeal because the Federal Circuit had exclusive jurisdiction over appeals of final orders of the MSPB in non-mixed cases. The employee appealed the decision to the Sixth Circuit Court of Appeals.
“This time, [the employee] didn’t have a mixed case.” The appeals court held that if the employee’s second case, the appeal of the petition for enforcement, was an appeal of an agency action, then it “could have qualified as a mixed case reviewable by the district court.” But since the discrimination issue had already been decided and it wasn’t an appeal of an agency action (instead it was a petition for enforcement based on bad faith negotiation following an MSPB order), it could not be a mixed case. And if it was not a mixed case, then the federal district court could not take jurisdiction. Instead, the appeals court found, the employee had only one proper avenue available to her: an appeal to the United States Court of Appeals for the Federal Circuit.
For the above stated reasons, the United States Court of Appeals for the Sixth Circuit affirmed the district court decision dismissing the employee’s appeal for lack of jurisdiction.
Read the full case: Fuerst v. Secretary of the Air Force.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.