Clinton Smith v. Constance Horner, Director, Office of Personnel Management

Opinion PER CURIAM.

Concurring Opinion filed by Circuit Judge SILBERMAN.

PER CURIAM:

For the past nine years, appellant Clinton Smith, a black career civil servant, has sought disability benefits from his employer, the Office of Personnel Management (“OPM”). The Federal Circuit affirmed OPM’s denial of disability benefits pursuant to direct, if limited, review in January 1986. Smith now appeals the district court’s dismissal of a separate Title VII claim based on his contention that OPM’s denial of benefits was discriminatorily motivated. We affirm the district court’s judgment dismissing the Title VII action. We do so on the ground that appellant waived his Title VII claim.

I.

Smith, whose service in the federal government stretched from 1963 until his retirement in 1982, held a variety of jobs with the Civil Service Commission (later OPM). During the 1970s he was the Director of CSC’s Equal Employment Opportunity Office and Chairman of the Inter-agency Advisory Group for Equal Employment Opportunity. In March 1979, because of failing health, he applied for disability benefits. Although OPM found Smith had hypertension, it denied him benefits because it concluded Smith was not disabled from performing his duties. The Merit Systems Protection Board (“MSPB”) affirmed OPM’s determination on administrative appeal, and from there Smith appealed to the Federal Circuit, which has exclusive jurisdiction to review final decisions of the MSPB. 5 U.S.C. § 7703(b)(1) (1982). Our sister circuit held that it nevertheless lacked jurisdiction to review Smith’s claim because of 5 U.S.C. § 8347(c), which states that “decisions of [OPM concerning disability and dependency] are final and conclusive and are not subject to review.” Smith v. OPM, No. 83-700 (Fed. Cir. October 20, 1983) (unreported decision; tabulated at 727 F.2d 1117). The Supreme Court granted Smith’s petition for certiorari in light of its opinion in Lindahl v. OPM, 470 U.S. 768, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985), and remanded to the Federal Circuit to determine whether, quite apart from the facts of Smith’s disability claim, there were other errors, which, under Lindahl, the Federal Circuit had jurisdiction to review. 470 U.S. 1079, 105 S.Ct. 1834, 85 L.Ed.2d 135 (1985). In other words, it was open to the Federal Circuit to hear and decide “whether ‘there has been a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error going to the heart of the administrative determination.’ ” Lindahl, 470 U.S. at 791, 105 S.Ct. at 1633 (quoting Scroggins v. United States, 397 F.2d 295, 297, 184 Ct.Cl. 530, cert. denied, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968)) (internal quotes omitted).

Smith had claimed before the MSPB, inter alia, that imposing the burden of persuasion on him — to show medical grounds for disability — discriminated against him because of his race. Smith v. OPM, 12 M.S.P.B. 40, 44, 13 M.S.P.R. 456, 460 (1982). And after OPM denied his disability claim in 1980, he filed an administrative complaint with OPM, asserting that the denial of benefits was attributable to retaliation against him for his vigorous enforcement of the civil rights laws. OPM declined to proceed with his retaliation claim in early 1984; and in April of that year, Smith filed the action upon which this appeal is based in federal district court, alleging that OPM’s denial of his disability claim was discriminatory retaliation under Title VII, Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) (1982).¹

In 1985, before the Federal Circuit considered, on remand from the Supreme Court, Smith’s appeal from denial of his disability claim, the Clerk of that court by letter² notified Smith of the Federal Circuit’s then recent decision in Williams v. Department of the Army, 715 F.2d 1485 (Fed. Cir.1983), which held the Federal Circuit lacked subject matter jurisdiction to review an appeal from the MSPB if that appeal was accompanied by a discrimination claim. Notwithstanding his action previously filed in the district court, Smith responded that

[t]his appeal involves no claim of discrimination and no claim of discrimination was raised before the agency or before the Merit Systems Protection Board.... I have not filed a suit in any other court challenging the decision of the Merit Systems Protection Board challenged on this appeal.

Brief for Appellee at 9-10. The Federal Circuit then reviewed Smith’s appeal under the Lindahl standard and affirmed the MSPB. Smith v. OPM, No. 83-700 (Fed. Cir. Jan. 27, 1986) (unreported decision; tabulated at 790 F.2d 91).

In a series of opinions giving rise to this appeal, the district court held that, although Smith was entitled to litigate his Title VII retaliation claim in the district court, Smith v. Homer, 645 F.Supp. 97, 98 (D.D.C.1986), there was ultimately no relief available to him. The district court concluded that, even in the context of a Title VII suit, it was precluded from disturbing the underlying factual determinations of Smith’s disability claim made by OPM because of section 8347(c). Id. at 100. If it could not grant disability benefits directly, the court reasoned, Smith’s action under Title VII no longer represented a true case or controversy-a core requirement of Article III. Smith’s Title VII claim was thus dismissed by the district court for lack of jurisdiction. Smith v. Horner, 664 F.Supp. 576, 577 (D.D.C.1987).

II.

We disagree with the district court’s ruling that it lacked subject matter jurisdiction. That court confused or blended two discrete questions: (1) Did Smith tender a claim arising under a federal law over which the court has authority; (2) Was Smith entitled to any relief on the claim he presented. It remains the approach we are instructed to take that, except for claims “wholly insubstantial or frivolous,” a federal court has subject matter jurisdiction when

the right of the [plaintiff] to recover under [the] complaint will be sustained if the ... laws of the United States are given one construction and will be defeated if they are given another.

Wheeldin v. Wheeler, 373 U.S. 647, 649, 83 S.Ct. 1441, 1444, 10 L.Ed.2d 605 (1963) (quoting Bell v. Hood, 327 U.S. 678, 685, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946)). Smith’s Title VII action fits that description. The district court had subject matter jurisdiction over it.

We do not reach the question of the impact section 8347(c) would have should a litigant in Smith’s position follow the teachings of Williams, i.e., the direction to proceed in district court and district court only when a claim of discrimination is present. Smith failed to heed that direction, brought home to him effectively in the letter from the Federal Circuit.. His Title VII action must be turned away therefore, not for want of “subject matter” jurisdiction, but because he waived his right to proceed under that Act when he declined the transfer offered by the Federal Circuit.

III.

The government has consistently urged that Smith’s appeal should be rejected because he waived his Title VII claim. We agree and rest our affirmance on the ground that appellant relinquished that cause of action when he responded to the Federal Circuit's Clerk’s letter that he was not also asserting a discrimination claim.

The Federal Circuit in Williams adopted an eminently sensible approach to the mixed claim problem. If an appellant is simultaneously asserting both a Title VII claim as well as an appeal to that Circuit challenging an MSPB determination, the Federal Circuit will decline jurisdiction. Since a federal district court may hear both claims, see Hayes v. United States Gov’t Printing Office, 684 F.2d 137, 140-41 (D.C. Cir.1982), but the Federal Circuit may not, it makes little sense for the Federal Circuit to entertain only half of the claim. We are decidedly unsympathetic to appellant’s argument that his letter to the Federal Circuit, carefully read, does not waive his Title VII claim. He contends that he did not actually disavow a retaliation claim as opposed to a discrimination claim. But retaliation under § 2000e-3(a) is explicitly characterized as a discrimination claim, and furthermore Smith specifically relied on § 2000e-16, which bans “discrimination based on race,” in federal district court. It is quite clear, moreover, that the Federal Circuit’s position in Williams would apply whether the complainant was asserting a simple discrimination claim under Title VII or a retaliation claim under the same Title. Smith was represented by counsel, therefore his response appears designed to circumvent the Federal Circuit’s effort to prevent litigants from seeking, in this area of review of government personnel decision, “two bites at the apple.”³

Nor are we persuaded by appellant’s argument to the effect that his waiver in the Federal Circuit should not bind him because of the Supreme Court cases which guarantee a plaintiff a federal court to resolve Title VII claims regardless of prior litigation before state or federal administrative agencies. See University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 3225, 92 L.Ed.2d 635 (1986); Chandler v. Roudebush, 425 U.S. 840, 846, 96 S.Ct. 1949, 1952, 48 L.Ed.2d 416 (1976); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47-48 & n. 8, 94 S.Ct. 1011, 1019 & n. 8, 39 L.Ed.2d 147 (1974). We are dealing with litigation in the Federal Circuit, and to permit Smith to pursue his Title VII claim here notwithstanding his waiver there would undermine the Federal Circuit’s laudable efforts to prevent sequential forum shopping. Nothing in Title VII or its legislative purpose suggests the propriety of such cavalier treatment of a federal appellate court. Cf. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 478, 102 S.Ct. 1883, 1895, 72 L.Ed.2d 262 (1982) (plaintiff may not sue in district court under Title VII if he previously litigated his discrimination claim in state court, because of the full faith and credit clause).

Because appellant has waived his Title VII discrimination claim, we affirm the district court’s judgment.

It is so ordered.

1 . Section 2000e-3(a) provides, in part:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

2 . The text of the letter, as reproduced in Brief for Appellee at 9, was as follows:

In Williams v. Department of the Army, 715 F.2d 1485 (Fed. Cir.1983) this Court held that when a claim of discrimination is present, jurisdiction is vested only in the U.S. District Courts.

If you complete and file the enclosed form indicating that you have abandoned all claims of discrimination, the appeal will proceed in this court on such non-discrimination claims as may be present.

A claim of "discrimination" referred to in the enclosed form means a claim that the adverse action complained of was based on age, sex, race, religion, national origin, or handicap. If you do not abandon the claim of discrimination, you may request the court to transfer the case to a U.S. District Court pursuant to 28 U.S.C. § 1631.

If you do not file the enclosed form within 15 days of the above date, the appeal will be dismissed.

3 . Smith could also be held precluded from litigating his Title VII claim because he "split" his two claims. Smith chose to litigate his disability claim in a court (the Federal Circuit) that could hear less than his entire claim instead of going to the district court, which was competent to entertain both his disability and Title VII claims. Claim preclusion does not turn on whether the first court chosen had jurisdiction as expansive as a later one. See Restatement (Second) of Judgments § 24 comment g, illustrations 13-15 (1982). All that matters is that plaintiff Smith had the opportunity to litigate both claims in a court of competent jurisdiction (here, the district court), but instead chose to split them. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 382-86 & n. 3, 105 S.Ct. 1327, 1332-34 & n. 3, 84 L.Ed.2d 274 (1985); 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4412 (1981). And, moreover, a transfer to the district court, actually mentioned as an option in the Clerk’s letter, could easily have brought Smith’s disability claim from the Federal Circuit to the district court, where it could be combined with his Title VII discrimination claim. See 28 U.S.C. § 1631.