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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.
