NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–184
_________________
CAROLYN M. KLOECKNER, PETITIONER
v.
HILDA L. SOLIS, SECRETARY OF LABOR
on writ of certiorari to the united states
court of appeals for the eighth circuit
[December 10, 2012]
Justice Kagan delivered the opinion of the
Court.
A federal employee subjected to an adverse
personnel action such as a discharge or demotion may appeal her
agency’s decision to the Merit Systems Protection Board (MSPB or
Board). See 5 U. S. C. §§7512, 7701. In that challenge,
the employee may claim, among other things, that the agency
discriminated against her in violation of a federal statute. See
§7702(a)(1). The question presented in this case arises when the
MSPB dismisses an appeal alleging discrimination not on the merits,
but on procedural grounds. Should an employee seeking judicial
review then file a petition in the Court of Appeals for the Federal
Circuit, or instead bring a suit in district court under the
applicable antidiscrimination law? We hold she should go to
district court.
I
A
The Civil Service Reform Act of 1978 (CSRA), 5
U. S. C. §1101
et seq., establishes a
framework for evaluating per- sonnel actions taken against federal
employees. That statutory framework provides graduated procedural
protections depending on an action’s severity. If (but only if) the
action is particularly serious—involving, for example, a removal
from employment or a reduction in grade or pay—the affected
employee has a right to appeal the agency’s decision to the MSPB,
an independent adjudicator of federal employment disputes.[
1] See §§1204, 7512, 7701. Such an
appeal may merely allege that the agency had insufficient cause for
taking the action under the CSRA; but the appeal may also or
instead charge the agency with discrimination prohibited by another
federal statute, such as Title VII of the Civil Rights Act of 1964,
42 U. S. C. §2000e
et seq., or the Age
Discrimination in Employment Act of 1967, 29 U. S. C.
§621
et seq. See 5 U. S. C. §7702(a)(1). When
an employee complains of a personnel action serious enough to
appeal to the MSPB
and alleges that the action was based on
discrimination, she is said (by pertinent regulation) to have
brought a “mixed case.” See 29 CFR §1614.302 (2012). The CSRA and
regulations of the MSPB and Equal Employment Opportunity Commission
(EEOC) set out special procedures to govern such a case—different
from those used when the employee either challenges a serious
personnel action under the CSRA alone or attacks a less serious
action as discriminatory. See 5 U. S. C. §§7702,
7703(b)(2) (2006 ed. and Supp. V); 5 CFR pt. 1201, subpt. E (2012);
29 CFR pt. 1614, subpt. C.
A federal employee bringing a mixed case may
pro- ceed in a variety of ways. She may first file a discrim-
ination complaint with the agency itself, much as an employee
challenging a personnel practice not appealable to the MSPB could
do. See 5 CFR §1201.154(a); 29 CFR §1614.302(b). If the agency
decides against her, the employee may then either take the matter
to the MSPB or bypass further administrative review by suing the
agency in district court. See 5 CFR §1201.154(b); 29 CFR
§1614.302(d)(1)(i). Alternatively, the employee may initiate the
process by bringing her case directly to the MSPB, forgoing the
agency’s own system for evaluating discrimination charges. See 5
CFR §1201.154(a); 29 CFR §1614.302(b). If the MSPB upholds the
personnel action (whether in the first instance or after the agency
has done so), the employee again has a choice: She may request
additional administrative process, this time with the EEOC, or else
she may seek judicial review. See 5 U. S. C.
§§7702(a)(3), (b); 5 CFR §1201.161; 29 CFR §1614.303. The question
in this case concerns where that judicial review should take
place.
Section 7703 of the CSRA governs judicial review
of the MSPB’s decisions. Section 7703(b)(1) gives the basic rule:
“Except as provided in paragraph (2) of this subsection, a petition
to review a . . . final decision of the Board shall be filed in the
United States Court of Appeals for the Federal Circuit.” Section
7703(b)(2) then spells out the exception:
“Cases of discrimination subject to the
provisions of section 7702 of this title shall be filed under [the
enforcement sections of the Civil Rights Act, Age Discrimination in
Employment Act, and Fair Labor Standards Act], as applicable.
Notwithstanding any other provision of law, any such case filed
under any such section must be filed within 30 days after the date
the individual filing the case received notice of the judicially
reviewable action under such section 7702.”
The enforcement provisions of the
antidiscrimination statutes listed in this exception all authorize
suit in fed- eral district court. See 42 U. S. C.
§§2000e–16(c), 2000e–5(f); 29 U. S. C. §633a(c); §216(b);
see also
Elgin v.
Department of Treasury, 567
U. S. ___, ___ (2012) (slip op., at 9–10).
Section 7702 describes and provides for the
“cases of discrimination” referenced in §7703(b)(2)’s exception. In
relevant part, §7702(a)(1) states:
“[I]n the case of any employee . . . who—
“(A) has been affected by an action which the
employee . . . may appeal to the Merit Systems Protection Board,
and
“(B) alleges that a basis for the action was
discrimination prohibited by [specified antidiscrimination
statutes],
“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.”
The “cases of discrimination” in §7703(b)(2)’s
exception, in other words, are mixed cases, in which an employee
challenges as discriminatory a personnel action appealable to the
MSPB.
The parties here dispute whether, in light of
these interwoven statutory provisions, an employee should go to the
Federal Circuit (pursuant to the general rule of §7703(b)(1)), or
instead to a district court (pursuant to the exception in
§7703(b)(2)), when the MSPB has dismissed her mixed case on
procedural grounds.
B
Petitioner Carolyn Kloeckner used to work at
the Department of Labor (DOL or agency). In June 2005, while still
an employee, she filed a complaint with the agency’s civil rights
office, alleging that DOL had engaged in unlawful sex and age
discrimination by subjecting her to a hostile work environment. At
that point, Kloeckner’s case was not appealable to the MSPB because
she had not suffered a sufficiently serious personnel action
(
e.g., a removal or demotion). See
supra, at 1–2. Her
claim thus went forward not under the special procedures for mixed
cases, but under the EEOC’s regulations for all other charges of
discrimination. See 29 CFR pt. 1614, subpts. A, D. In line with
those rules, the agency completed an internal investigation and
report in June 2006, and Kloeckner requested a hearing before an
EEOC administrative judge.
The next month, DOL fired Kloeckner. A removal
from employment is appealable to the MSPB, see
supra, at
1–2, and Kloeckner believed the agency’s action was discriminatory;
she therefore now had a mixed case. As permitted by regulation, see
supra, at 3, she initially elected to file that case with
the MSPB. Her claim of discriminatory removal, however, raised
issues similar to those in her hostile work environment case, now
pending before an EEOC judge; as a result, she became concerned
that she would incur duplicative discovery expenses. To address
that problem, she sought leave to amend her EEOC complaint to
include her claim of discriminatory removal, and she asked the MSPB
to dismiss her case without prejudice for four months to allow the
EEOC process to go forward. See App. 13, 50–51. Both of those
motions were granted. The EEOC judge accepted the
amendment,[
2] and on September
18, 2006, the MSPB dismissed her appeal “without prejudice to [her]
right to refile . . . either (A) within 30 days after a
decision is rendered in her EEOC case; or (B) by January 18,
2007—
whichever occurs first.”
Id., at 5.
Discovery continued in the EEOC proceeding well
past the MSPB’s January 18 deadline. In April, the EEOC judge found
that Kloeckner had engaged in bad-faith conduct in connection with
discovery. As a sanction, the judge terminated the EEOC proceeding
and returned Kloeckner’s case to DOL for a final decision. Six
months later, in October 2007, DOL issued a ruling rejecting all of
Kloeckner’s claims. See
id., at 10–49.
Kloeckner appealed DOL’s decision to the Board
in November 2007. That appeal was filed within 30 days, the usual
window for seeking MSPB review of an agency’s determination of a
mixed case. See 5 CFR §1201.154(a); 29 CFR §1614.302(d)(1)(ii). But
the MSPB declined to treat Kloeckner’s filing as an ordinary appeal
of such an agency decision. Instead, the Board viewed it as an
effort to reopen her old MSPB case—many months after the January 18
deadline for doing so had expired. The Board therefore dismissed
Kloeckner’s appeal as untimely. See App. 53–57.
Kloeckner then brought this action against DOL
in Federal District Court, alleging unlawful discrimination. The
District Court dismissed the complaint for lack of jurisdiction.
See
Kloeckner v.
Solis, Civ. Action No. 4:09CV804 (ED
Mo., Feb. 18, 2010). Relying on the Eighth Circuit’s ruling in
Brumley v.
Levinson, 991 F.2d 801 (1993)
(
per curiam), the court held that because the MSPB had
dismissed Kloeckner’s claims on procedural grounds, she should have
sought review in the Federal Circuit under §7703(b)(1); in the
court’s view, the only discrimination cases that could go to
district court pursuant to §7703(b)(2) were those the MSPB had
decided on the merits. The Eighth Circuit affirmed on the same
reasoning. See 639 F.3d 834 (2011).
We granted certiorari, 565 U. S. ___
(2012), to resolve a Circuit split on whether an employee seeking
judicial review should proceed in the Federal Circuit or in a
district court when the MSPB has dismissed her mixed case on
procedural grounds.[
3] We now
reverse the Eighth Circuit’s decision.
II
As the above account reveals, the intersection
of fed- eral civil rights statutes and civil service law has
produced a complicated, at times confusing, process for resolving
claims of discrimination in the federal workplace. But even within
the most intricate and complex systems, some things are plain. So
it is in this case, where two sections of the CSRA, read naturally,
direct employees like Kloeckner to district court.
Begin with §7703, which governs judicial review
of the MSPB’s rulings. As already noted, see
supra, at 3–4,
§7703(b)(1) provides that petitions to review the Board’s final
decisions should be filed in the Federal Circuit—“[e]xcept as
provided in paragraph (2) of this subsection.” Paragraph (2),
i.e., §7703(b)(2), then sets out a different rule for one
category of cases—“[c]ases of discrimination subject to the
provisions of section 7702 of this title.” Such a case, paragraph
(2) instructs, “shall be filed under” the enforcement provision of
an enumerated antidiscrimination statute. And each of those
enforcement provisions authorizes an action in federal district
court. See
supra, at 3–4. So “[c]ases of discrimination
subject to the provisions of section 7702” shall be filed in
district court.
Turn next to §7702, which identifies the cases
“subject to [its] provisions.” As also stated earlier, §7702(a)(1)
de- scribes cases in which a federal employee “(A) has been
affected by an action which [she] may appeal to the Merit Systems
Protection Board, and (B) alleges that a basis for the action was
discrimination prohibited by” a listed federal statute. The
subsection thus describes what we (adopting the lingo of the
applicable regulations) have called “mixed cases.” See 29 CFR
§1614.302. Those are the “cases of discrimination subject to” the
rest of §7702’s provisions.
Now just put §7703 and §7702 together—say, in
the form of a syllogism, to make the point obvious. Under
§7703(b)(2), “cases of discrimination subject to [§7702]” shall be
filed in district court. Under §7702(a)(1), the “cases of
discrimination subject to [§7702]” are mixed cases—those appealable
to the MSPB and alleging discrimination. Ergo, mixed cases shall be
filed in district court.
And so that is where Kloeckner’s case should
have been filed (as indeed it was). No one here contests that
Kloeckner brought a mixed case—that she was affected by an action
(
i.e., removal) appealable to the MSPB and that she alleged
discrimination prohibited by an enumerated fed- eral law. And under
the CSRA’s terms, that is all that matters. Regardless whether the
MSPB dismissed her claim on the merits or instead threw it out as
untimely, Kloeckner brought the kind of case that the CSRA routes,
in crystalline fashion, to district court.
III
The Government offers an alternative view (as
did the Eighth Circuit)—that the CSRA directs the MSPB’s merits
decisions to district court, while channeling its procedural
rulings to the Federal Circuit. According to the Government, that
bifurcated scheme, though not prescribed in the CSRA in so many
words, lies hidden in the statute’s timing requirements. But we
return from the Government’s mazelike tour of the CSRA persuaded
only that the merits-procedure distinction is a contrivance, found
nowhere in the statute’s provisions on judicial review.
The Government’s argument has two necessary
steps. First, the Government claims that §7703(b)(2)’s exception to
Federal Circuit jurisdiction applies only when the MSPB’s decision
in a mixed case is a “judicially review- able action” under §7702.
Second, the Government asserts that the Board’s dismissal of a
mixed case on procedural grounds does not qualify as such a
“judicially reviewable action.” We describe in turn the way the
Government arrives at each of these conclusions.
The first step of the Government’s argument
derives from §7703(b)(2)’s second sentence. Right after stating
that “cases of discrimination subject to [§7702]” shall be filed
under specified antidiscrimination statutes (
i.e., shall be
filed in district court), §7703(b)(2) provides: “Notwithstanding
any other provision of law, any such case filed under any such
[statute] must be filed within 30 days after the date the
individual filing the case received notice of the judicially
reviewable action under section 7702.” The Government reads that
sentence to establish an ad- ditional prerequisite for taking a
case to district court, instead of to the Federal Circuit. To fall
within the §7703(b)(2) exception, the Government says, it is not
enough that a case qualify as a “case of discrimination subject to
[§7702]”; in addition, the MSPB’s decision must count as a
“judicially reviewable action.” See Brief for United States 20–21.
If the MSPB’s decision is
not a “judicially reviewable
action”—a phrase the Government characterizes as a “term of art in
this context,” Tr. of Oral Arg. 28—the ruling still may be subject
to judicial review (
i.e., “judicially reviewable” in the
ordinary sense), but only in the Federal Circuit.
The Government’s second step—that the Board’s
pro- cedural rulings are not “judicially reviewable actions”—begins
with the language of §7702(a)(3). That provision, the Government
states, “defines for the most part which MSPB decisions qualify as
‘judicially reviewable actions[s]’ ” by “providing that ‘[a]ny
decision of the Board
under paragraph (1) of this subsection
shall be a judicially reviewable action as of’ the date of the
decision.” Brief for Respondent 21 (quoting §7702(a)(3); emphasis
and brackets added by Government). From there, the Govern- ment
moves on to the cross-referenced paragraph—§7702(a)(1)—which
states, among other things, that the Board “shall, within 120 days
of [the employee’s filing], decide both the issue of discrimination
and the appealable action in accordance with the Board’s appellate
procedures.” According to the Government, the Board only “decide[s]
. . . the issue of discrimination” when it rules on the merits,
rather than on procedural grounds. On that view, a procedural
decision is not in fact a “decision of the Board under paragraph
(1),” which means that it also is not a “judicially reviewable
action” under §7702(a)(3). See Brief for Respondent 21–22. And so
(returning now to the first step of the Government’s argument),
judicial review of a procedural decision can occur only in the
Federal Circuit, and not in district court.
If you need to take a deep breath after all
that, you’re not alone. It would be hard to dream up a more round-
about way of bifurcating judicial review of the MSPB’s rulings in
mixed cases. If Congress had wanted to send merits decisions to
district court and procedural dismissals to the Federal Circuit, it
could just have said so. The Government has offered no reason for
Congress to have constructed such an obscure path to such a simple
result.
And taking the Government’s analysis one step at
a time makes it no more plausible than as a gestalt. The
Government’s initial move is to read §7703(b)(2)’s second sentence
as adding a requirement for a case to fall within the exception to
Federal Circuit jurisdiction. But that sentence does no such thing;
it is nothing more than a filing deadline. Consider each sentence
of §7703(b)(2) in turn. The first sentence defines
which
cases should be brought in district court, rather than in the
Federal Circuit; here, the full description is “[c]ases of
discrimination subject to the provisions of section 7702”—to wit,
mixed cases. The second sentence then states
when those
cases should be brought: “any such case . . . must be
filed within 30 days” of the date the employee “received notice of
the judicially reviewable action.” The reference to a “judicially
reviewable action” in that sentence does important work: It sets
the clock running for
when a case that belongs in district
court must be filed there. What it does not do is to further define
which timely-brought cases belong in dis- trict court
instead of in the Federal Circuit. Describing those cases is the
first sentence’s role.
Proof positive that the Government misreads
§7703(b)(2) comes from considering what the phrase “ju- dicially
reviewable action” would mean under its theory. In normal legal
parlance, to say that an agency action is not “judicially
reviewable” is to say simply that it is not subject to judicial
review—that, for one or another reason, it cannot be taken to a
court. But that ordinary understanding will not work for the
Government here, because it wants to use the phrase to help
determine which of two courts should review a decision, rather than
whether judicial review is available at all. In the Government’s
alternate universe, then, to say that an agency action is not
“judicially reviewable” is to say that it
is subject to
judicial review in the Federal Circuit (even though not in district
court). Small wonder that the Government must call the phrase
“judicially reviewable action” a “term of art,” s
upra, at 9:
On a natural reading, the phrase defines cases amenable to judicial
review, rather than routes those cases as between two courts.
And even were we to indulge the Government that
far, we could not accept the second step of its analysis. At that
stage, remember, the Government contends that under §7702 only
decisions on the merits qualify as “judicially reviewable actions.”
The language on which the Government principally relies, stated
again, is as follows: “[T]he Board shall, within 120 days of [the
employee’s filing], decide both the issue of discrimination and the
appealable action.” But that provision, too, is only a timing
requirement; it is designed to ensure that the Board act promptly
on employees’ complaints. We see no reason to think that embedded
within that directive is a limitation on the class of “judicially
reviewable actions.” Nor (even were we to indulge the Government on
that point as well) can we find the particular restriction the
Government urges. According to the Government, the MSPB does not
“decide . . . the issue of discrimination” when it
dismisses a mixed case on procedural grounds. But that phrase
cannot bear the weight the Government places on it. All the phrase
signifies is that the Board should dispose of the issue in some
way, whether by actually adjudicating it or by holding that it was
not properly raised. Indeed, were the Government right, §7702(a)’s
statement that the Board “shall” decide the issue of discrimination
would appear to bar procedural dismissals, requiring the Board to
resolve on the merits even untimely complaints. No one (least of
all the Government, which here is defending a procedural ruling)
thinks that a plausible congressional command.
Another section of the
statute—§7702(e)(1)(B)—puts the final nail in the coffin bearing
the Government’s argument. That section states: “[I]f at any time
after the 120th day following [an employee’s filing] with the Board
. . . , there is no judicially reviewable action[,]
. . . an employee shall be entitled to file a civil
action” in district court under a listed antidiscrimination
statute. That provision, as the Government notes, is designed “to
save employees from being held in perpetual uncertainty by Board
inaction.” Brief for Respondent 28. But if, as the Government
insists, a procedural ruling is not a “judicially reviewable
action,” then the provision would have another, surprising
effect—essentially blowing up the Government’s argument from the
inside. In that event, an employee whose suit the Board had
dismissed on procedural grounds
could bring suit in district
court under 7702(e)(1)(B) (so long as 120 days had elapsed from her
Board filing), because she would have received “no judicially
reviewable action.” And what’s more, she could do so even many
years later, because the statute’s usual 30-day filing deadline
begins to run only upon “notice of [a] judicially reviewable
action.” §7703(b)(2). So an argument intended to keep employees
like Kloeckner out of district court would paradoxically, and
nonsensically, result in giving them all the time in the world to
file suit there.
Responding to this unwelcome outcome, the
Government offers us an exit route: We should avoid “absurd
results,” the Government urges, by applying §7702(e)(1)(B) only to
“cases over which the Board continues to exert jurisdiction.” Brief
for Respondent 27, 28, n. 4. But as the Government admits,
that “gloss on the statute is not found in the text,” Tr. of Oral
Arg. 50; the Government’s remedy requires our reading new words
into the statute. We think a better option lies at hand. If we
reject the Government’s odd view of “judicially reviewable
actions,” then no absurdity arises in the first place:
§7702(e)(1)(B) would have no bearing on any case the MSPB dismissed
within 120 days, whatever the grounds. It is the Government’s own
misreading that creates the need to “fix” §7702(e)(1)(B); take that
away and the provision serves, as it was intended, only as a remedy
for Board inaction.[
4]
IV
A federal employee who claims that an agency
action appealable to the MSPB violates an antidiscrimination
statute listed in §7702(a)(1) should seek judicial review in
district court, not in the Federal Circuit. That is so whether the
MSPB decided her case on procedural grounds or instead on the
merits. Kloeckner therefore brought her suit in the right place. We
reverse the con- trary judgment of the Court of Appeals for the
Eighth Circuit, and remand the case for further proceedings
consistent with this opinion.
It is so ordered.
