Butler, Darlene v. West, Togo D.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 1998 Decided January 8, 1999
No. 97-5348
Darlene Butler,
Appellant
v.
Togo D. West, Jr.,
Secretary, Department of the Army,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 94cv02182)
James L. Kestell argued the cause and filed the briefs for
appellant.
Michael J. Ryan, Assistant United States Attorney, argued
the cause for appellee. On the brief were Wilma A. Lewis,
United States Attorney, R. Craig Lawrence, Assistant United
States Attorney, and Paige E. Harrison, Special Assistant
United States Attorney. Gregory W. Addington, Assistant
United States Attorney, entered an appearance.
Before: Wald, Randolph and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge: Darlene Butler ("Butler" or "appel-
lant") brings this appeal challenging two rulings by the
district court that, taken together, dismissed the entirety of
her suit against Togo West, the Secretary of the Army
("appellee"). Prior to her December 11, 1992 removal for
insubordination and creating a disturbance, Butler had
worked for several years in the Civilian Personnel Office at
Walter Reed Army Medical Center in Washington, D.C.
("Walter Reed"). After Equal Employment Opportunity
("EEO") administrative proceedings proved ineffectual, appel-
lant filed a mixed case appeal with the Merit Systems Protec-
tion Board ("MSPB" or the "Board") alleging that her remov-
al violated the Civil Service Reform Act of 1978 ("CSRA" or
the "Act"), Pub. L. No. 95-454, 92 Stat. 1111 (codified as
amended in sections of 5 U.S.C. (1996)), and was motivated by
discriminatory animus. The MSPB Administrative Judge's
Initial Decision upheld the Army's allegations of insubordina-
tion, but mitigated the punishment to a thirty-day suspension
and ordered appellant's reinstatement with back pay. The
Army petitioned the full Board for review, and Butler filed a
cross petition challenging the thirty-day suspension. Subse-
quently, Butler filed this complaint with the United States
District Court for the District of Columbia, suing Togo West
in his official capacity and broadly alleging unlawful discrimi-
nation in her removal. On defendant's motion, the district
court dismissed Butler's Title VII and retaliation claims for
failure to exhaust administrative remedies. Following defen-
dant's motion to reconsider retention of her First Amendment
claim, the district court dismissed that as well. We find that
the district court improperly narrowed the window for filing
suit available under 5 U.S.C. s 7702(e)(1)(B), which explicitly
allows all of appellant's claims, and accordingly vacate the
dismissal and remand for further proceedings.
I.
The procedural history of this case is convoluted but the
controlling legal question is time-specific; consequently, we
discuss only those facts necessary to our decision.
On December 11, 1992, the Department of the Army re-
moved Darlene Butler from her position as a GS-11 Position
Classification Specialist for insubordination and creating a
disturbance. Butler, an African-American woman, had begun
to have problems at work roughly two years earlier, following
her October 15, 1990 reassignment from the Position Manage-
ment and Classification Division at Walter Reed to the Re-
cruitment and Placement Division, Special Action Branch.
Prior to her termination, she had initiated EEO counseling on
four separate occasions--in December of 1991, April of 1992,
January of 1993, and either February or March of 1993.1
Following each episode she filed a formal EEO complaint
alleging both racial discrimination and retaliation in various
terms and conditions of her employment. In each instance,
an Army investigator and an Equal Employment Opportunity
Commission ("EEOC") Administrative Judge recommended a
finding of "no discrimination," and the Department of the
Army ("Army") adopted their recommendations on June 15,
1994.
Following her removal in December of 1992, which she
attributed to discriminatory animus and hostility towards her
recent election as an officer of a newly-formed chapter of
Blacks in Government ("BIG"), Butler again pursued the
necessary administrative procedures with the Army. She
timely sought EEO counseling, and then filed a formal com-
plaint with the Equal Employment Opportunity Office at
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1 The record before us is unclear as to the exact dates that EEO
counseling initiated. The Bench Decision of the EEOC Administra-
tive Judge lists December 6, 1991, April 13, 1992, January 13, 1993,
and February 10, 1993. See Butler v. West, Complaint Nos.
170-94-7116X, 170-94-8124X, 170-94-8239X, 170-94-8240X, at 3-6
(E.E.O.C. May 12, 1994). The district court, by contrast, cites
December 6, 1991, April 6, 1992, January 13, 1993, and April 22,
1993. See Butler v. West, No. 94-2182 at 2 (D.D.C. Feb. 14, 1997).
Walter Reed in which she alleged that her termination was a
product of racial discrimination. The Department of Defense
Office of Complaint Investigations recommended a finding of
"no discrimination" on December 10, 1993. Butler then filed
a "mixed case appeal"2 with the MSPB on April 5, 1994,
challenging her removal as both procedurally improper3 and
discriminatorily motivated. On August 3, 1994, exactly 120
days after Butler lodged her appeal, an MSPB Administrative
Judge ("AJ") issued an Initial Decision which held that: (i)
the Army had carried its burden of showing that appellant
had been insubordinate and had created a disturbance; (ii)
the resulting disciplinary action promoted the efficiency of the
agency as required by 5 U.S.C. s 7513(a)4; (iii) the procedur-
al errors made in removing the appellant were harmless; (iv)
Butler failed to make out her affirmative defenses of retalia-
tion and discrimination; and (v) that the removal penalty was
unreasonable. Accordingly, the AJ mitigated her removal to
a thirty-day suspension and ordered back pay with interest.
The Army petitioned the MSPB to review this penalty reduc-
tion within the thirty-five-day period provided for by the
MSPB's regulations, see 5 C.F.R. s 1201.114(d), and appellant
__________
2 "A mixed case appeal is an appeal filed with the MSPB that
alleges an appealable agency action was effected, in whole or in
part, because of discrimination on the basis of race, color, religion,
sex, national origin, handicap or age." 29 C.F.R. s 1614.302(a)(2).
3 Butler alleged that the Army failed to follow the procedures
articulated in the Walter Reed Army Medical Center Supervisor's
Handbook for the recommendation and processing of adverse ac-
tions. The MSPB Administrative Judge found that the agency
failed to adhere to its normal procedures for initiating and investi-
gating disciplinary matters, but that this departure neither harmed
nor prejudiced the appellant. See Butler v. Department of the
Army, USMSPB Initial Decision, No. DC-0752-94-0396-I-1, at 9
(August 3, 1994).
4 5 U.S.C. s 7513(a) provides that "[u]nder regulations prescribed
by the Office of Personnel Management, an agency may take an
action covered by this subchapter against an employee only for such
cause as will promote the efficiency of the service."
filed a cross petition addressing only her nondiscrimination
claim of procedural irregularities.
On October 11, 1994, while the cross petitions were pending
before the MSPB, appellant filed this action in the United
States District Court for the District of Columbia, naming
Togo West, in his official capacity as the Secretary of the
Army, as defendant. Butler's complaint contained three
counts, alleging racial discrimination, retaliation, and a viola-
tion of her First Amendment rights to free speech and
association. Subsequently, on December 21, 1994, the MSPB
denied both petitions for review and the AJ's Initial Decision
became final. See 5 C.F.R. s 1201.113(b) ("If the Board
denies all petitions for review, the initial decision will become
final when the Board issues its last decision denying a peti-
tion for review."). In March of 1995, the appellee moved to
dismiss Butler's lawsuit under Rule 12(b) of the Federal
Rules of Civil Procedure or, in the alternative, for summary
judgment, alleging that Butler filed her complaint premature-
ly as the MSPB had not yet issued a final decision. The
district court dismissed appellant's discrimination claims as
untimely in a February 14, 1997 Memorandum Opinion, rea-
soning that Butler had failed to exhaust available administra-
tive remedies under the CSRA prior to filing suit. While the
court originally held that she had stated a timely First
Amendment claim independent from her Title VII action, a
November 12, 1997 Memorandum Opinion and Order granted
the defendant's motion for reconsideration and dismissed
Butler's First Amendment claim as equally untimely under
the CSRA.
Recognizing that it faced a question of first impression, the
district court found that appellant filed her suit at a time
when the court lacked jurisdiction to hear her complaint.
Although section 7702(e)(1)(B) states that an individual claim-
ing discrimination shall be entitled to file a civil action if there
is no judicially reviewable action within 120 days following the
filing of an appeal with the MSPB, the court held that an
initial decision by the AJ within that period is sufficient to
foreclose immediate access to the federal courts. For pur-
poses of section 7702(e)(1)(B), it ruled, "[a]n initial decision is
essentially the same as a final decision...." Butler v. West,
No. 94-2182 at 7 (D.D.C. Feb. 14, 1997) ("Butler I").
The court articulated three separate grounds for this con-
clusion: First, it reasoned that an initial decision and a final
decision are functionally indistinguishable, as the former auto-
matically converts into the latter provided that neither party
(nor the MSPB on its own motion) seeks further Board
review. Second, it noted that 29 C.F.R. s 1614.310(h) autho-
rizes an individual with a mixed case to file a civil action
"[a]fter 120 days from the date of filing an appeal with the
MSPB if the MSPB has not yet made a decision" (emphasis
added). Since the EEOC refers to a final decision in other
subsections of 29 C.F.R. s 1614.310, the court concluded that
the EEOC's use of the more general term decision in section
1614.310(h) signals an intent that any MSPB decision--initial
or final--should foreclose judicial review. Finally, the court
reasoned that any other reading of section 7702(e)(1)(B)
would lead to absurd results that defied the purpose of the
statute, since it necessarily takes more than 120 days for the
MSPB fully to process most claims before it. Were a pro-
spective plaintiff allowed to proceed in district court whenev-
er the Board failed to meet that deadline, the statutory
requirement of MSPB participation would be rendered mean-
ingless.
According to the district court, appellant should have fol-
lowed the alternative avenue into the federal courts provided
by 5 U.S.C. s 7703(b), which allows a civil suit to be filed
within thirty days of a final MSPB decision. Since Butler
neither refiled her suit nor moved to amend her complaint
within the thirty-day period following December 21, 1994, the
date on which the Initial Decision became final, her complaint
was untimely. In this appeal, Butler challenges the district
court's construction of the relevant statutory provisions, argu-
ing that her suit was timely under 5 U.S.C. s 7702(e)(1) as
the MSPB had failed to issue a judicially reviewable decision
within 120 days after Butler lodged her appeal. We agree.5
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5 Appellant additionally asserts (i) that her complaint "ripened"
when the MSPB denied the cross petitions for review and the Initial
II.
The CSRA lays out a comprehensive statutory framework
for the processing of mixed case appeals, which has been
supplemented and elaborated by regulations issuing from
both the EEOC and the MSPB. See 5 U.S.C. s 7702; 5
C.F.R. ss 1201.151-1201.175; 29 C.F.R. ss 1613.401-
1613.421. As the procedural history of this case well illus-
trates, the provisions that structure both administrative and
judicial review of adverse personnel actions form a complicat-
ed tapestry. Where Congress has spoken authoritatively, the
time limits articulated by the Act have been strictly policed.
See King v. Dole, 782 F.2d 274, 276 (D.C. Cir. 1986) (per
curiam) (given "the clear and emphatic language of the statu-
tory provision" requiring civil action to be filed within thirty
days from notice of a judicially reviewable action, district
court lacks jurisdiction to hear case filed thirty-one days after
receipt of notice); Harrison v. Bowen, 815 F.2d 1505, 1515
(D.C. Cir. 1987) ("reading between the lines [of the CSRA] to
interpolate remedies Congress did not provide can only lead
the Court into error"). To some extent, this case presents
the flip side of King, as it requires us to determine whether
the equally clear and emphatic language of section
7702(e)(1)(B), which facially permits a lawsuit when 120 days
pass without a judicially reviewable decision, merits an equal-
ly strict reading. We hold that it does.
A.The Statutory and Regulatory Framework for Mixed
Case Appeals
5 U.S.C. s 7702 contains the statutory provisions directly
addressing the procedural path of a mixed case--an adverse
personnel action subject to appeal to the MSPB coupled with
a claim that the action was motivated by discrimination. See,
e.g., McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir. 1995)
__________
Decision became final, such that her complaint then became timely
under 5 U.S.C. s 7703(b), and (ii) that she did not have to exhaust
administrative remedies with respect to her First Amendment
claims, as the MSPB was incapable of granting full relief. Since we
hold appellant's complaint timely under 5 U.S.C. s 7702(e)(1), we do
not reach these contentions.
(defining the mixed case in similar terms); Romain v. Shear,
799 F.2d 1416, 1419 (9th Cir. 1986) (per curiam) (same).
When the discrimination is alleged as a violation of Title VII,
the federal employee must negotiate and exhaust the complex
administrative regime that governs Title VII public employ-
ment cases in addition to the usual procedures for challenging
an adverse personnel action under the CSRA. See Brown v.
General Servs. Admin., 425 U.S. 820, 832-33 (1976) (requiring
exhaustion of administrative remedies prior to filing a Title
VII suit in federal district court).6 The MSPB and EEOC
regulations that structure the prosecution of mixed cases are
extremely complicated, but they can be reduced to a decision
tree, albeit a somewhat elaborate one. We briefly survey this
scheme so as to lay out the statutory and regulatory backdrop
for our inquiry into the proper meaning of section
7702(e)(1)(B).
An employee who intends to pursue a mixed case has
several paths available to her. At the outset, the aggrieved
party can choose between filing a "mixed case complaint"7
with her agency's EEO office and filing a "mixed case ap-
peal"8 directly with the MSPB. See 29 C.F.R. s 1614.302(b).
By statute, the relevant agency EEO office and the MSPB
can and must address both the discrimination claim and the
appealable personnel action. See 5 U.S.C. s 7702(a). Should
she elect the agency EEO route, within thirty days of a final
decision she can file an appeal with the MSPB or a civil
__________
6 "However, when a federal employee claims he or she has been
affected by both an 'adverse employment action' and a related Title
VII violation, administrative remedies may be exhausted for Title
VII purposes by asserting both claims before the MSPB." Sloan v.
West, 140 F.3d 1255, 1259 (9th Cir. 1998) (citing McAdams, 64 F.3d
at 1141).
7 "A mixed case complaint is a complaint of employment discrimi-
nation filed with a federal agency ... related to or stemming from
an action that can be appealed to the [MSPB]." 29 C.F.R.
s 1614.302(a)(1).
8 See supra n.2.
discrimination action in federal district court.9 See 29 C.F.R.
ss 1614.302(d)(1)(ii), 1614.302(d)(3), 1614.310(a). If 120 days
pass without a final decision from the agency's EEO office,
the same avenues of appeal again become available: the
complainant can file either a mixed case appeal with the
MSPB or a civil action in district court. See 5 U.S.C.
ss 7702(e)(1)(A), 7702(e)(2); 29 C.F.R. ss 1614.302(d)(1)(i),
1614.310(g); 5 C.F.R. s 1201.154(b)(2).
When a complainant appeals to the MSPB, either directly
or after pursuing her claim with the agency EEO office, the
matter is assigned to an Administrative Judge who takes
evidence and eventually makes findings of fact and conclu-
sions of law. See 5 C.F.R. ss 1201.41(b), 1201.111. The AJ's
initial decision becomes a final decision if neither party, nor
the MSPB on its own motion, seeks further review within
thirty-five days. See 5 C.F.R. s 1201.113. However, both
the complainant and the agency can petition the full Board to
review an initial decision. Should the Board deny the petition
for review, the initial decision becomes final, see 5 C.F.R.
s 1201.113(b); if the Board grants the petition, its decision is
final when issued. See 5 C.F.R. s 1201.113(c). At this point,
the complainant again has a choice: within thirty days of
receiving a final decision from the MSPB, she can either
appeal the discrimination claim to the EEOC, see 5 C.F.R.
s 1201.157, or appeal the entire claim (or any parts thereof)
to the appropriate district court.10 See 5 U.S.C. s 7703(b), 5
__________
9 The party can also appeal the decision to the EEOC, but in that
case she forfeits further consideration of all nondiscrimination
claims. See Sloan, 140 F.3d at 1260 (9th Cir. 1998).
10 On the discrimination claim, the complainant "shall have the
right to have the facts subject to trial de novo by the reviewing
court." 5 U.S.C. s 7703(c). The district court reviews nondiscrimi-
nation claims on the administrative record, and will set aside the
MSPB's determinations only when "arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law"; "obtained
without procedures required by law, rule or regulation having been
followed"; or "unsupported by substantial evidence." 5 U.S.C.
s 7703(c)(1)-(3). For applications of these standards, see Barnes v.
Small, 840 F.2d 972 (D.C. Cir. 1988); Romain v. Shear, 799 F.2d
C.F.R. s 1201.175, 29 C.F.R. s 1614.310(b). Finally, if the
MSPB fails to render a judicially reviewable decision within
120 days from the filing of a mixed case appeal, the aggrieved
party can pursue her claim in federal district court. See 5
U.S.C. s 7702(e)(1)(B).
B.The Meaning of Section 7702
We review statutory interpretation by a district court de
novo.11 See Fawn Mining Corp. v. Hudson, 80 F.3d 519, 521
(D.C. Cir. 1996); United States v. Wishnefsky, 7 F.3d 254,
256 (D.C. Cir. 1993). As always, our inquiry starts from "the
fundamental canon that statutory interpretation begins with
the language of the statute itself." Pennsylvania Dep't of
__________
1416, 1421 (9th Cir. 1986). If the complainant seeks only to pursue
her nondiscrimination claim, appeal properly lies with the Federal
Circuit. See 5 U.S.C. s 7703(b)(1); 5 C.F.R. s 1201.120; Powell v.
Department of Defense, 158 F.3d 597, 598-99 (D.C. Cir. 1998).
11 Appellee argues that this case requires a Chevron analysis of
MSPB and EEOC regulations. See Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). 5 C.F.R.
s 1201.156(a), promulgated by the MSPB, provides that "[w]hen an
appellant alleges prohibited discrimination in the appeal, the judge
will decide both the issue of discrimination and the appealable
action within 120 days after the appeal is filed." 29 C.F.R.
s 1614.310(h), promulgated by the EEOC, allows an individual with
a mixed case appeal before the MSPB "to file a civil action in an
appropriate United States District Court ... [a]fter 120 days from
the date of filing an appeal with the MSPB if the MSPB has not yet
made a decision." According to appellee, the MSPB and EEOC
regulations merely require an initial decision within 120 days:
section 1201.156(a) requires a "judge," rather than the full Board, to
issue a decision, while section 1614.310(h) requires a "decision,"
rather than a "final decision." We cannot agree. Neither the
MSPB nor the EEOC have construed their regulations in such a
manner, and neither advances this construction as a party to this
dispute. In any case, since we believe that the plain language of 5
U.S.C. s 7702(e)(1)(B) contains the "unambiguously expressed in-
tent of Congress," Chevron, 467 U.S. at 843, and our decision gives
effect to that intent, we need not go any further into a Chevron
step-two analysis.
Pub. Welfare v. Davenport, 495 U.S. 552, 557-58 (1990). See
also Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980) (same).
1.The Statutory Language
The text of 5 U.S.C. s 7702(e)(1)(B) provides that:
Notwithstanding any other provision of law, if at any time
after--
(B) the 120th day following the filing of an appeal with
the Board under subsection (a)(1) of this section [provid-
ing for mixed case appeals], there is no judicially review-
able action ...;
an employee shall be entitled to file a civil action to the
same extent and in the same manner as provided in section
717(c) of the Civil Rights Act of 1964....
The parties disagree as to the proper meaning of the term
"judicially reviewable action"--appellant limits its scope to
final decisions, while appellee asserts that it encompasses
both initial and final decisions. Since initial decisions are not
subject to judicial review, appellant argues, the statute ex-
pressly sanctioned her civil action; there was no judicially
reviewable action by the 120th day after she lodged her mixed
appeal with the MSPB.12 Appellee rejects this literal read-
ing, embracing a functional approach analogous to that
adopted by the district court below. Because an initial
decision automatically converts into a final decision unless the
parties or the MSPB seeks further review, appellee argues
that initial decisions effectively constitute judicially reviewa-
ble actions. We think that appellant's reading of the statute
is clearly the right one.
The unambiguous and explicit language of section
7702(e)(1)(B), as well as the basic design of the statute in
which it reposes, limit our reading of "judicially reviewable
__________
12 At the time appellant filed her complaint in the district court,
179 days had elapsed since she lodged her mixed appeal with the
MSPB. Eighty-one days more would pass before a final decision
issued.
action" to one subject to judicial review as of the time the
plaintiff files suit. First, the phrase does not speak in
contingent terms to encompass actions that may or may not
be judicially reviewable at some point in the future. While an
initial decision can convert to a final decision with either the
passage of thirty-five days or the denial of all outstanding
petitions for review, it can also be overturned or modified by
the Board, in which case it will never be reviewable by the
courts in its initial form. Furthermore, throughout the
thirty-five-day period following the issuance of an initial
decision, the parties can each petition for another round of
review from the Board. Once a decision becomes final,
however, a losing party's only recourse lies in the courts.
These distinctions in the effect of the two kinds of decisions
have real-world implications, and defy any gloss that an initial
decision and a final decision are effectively synonymous.
Second, as sketched above, see supra pp. 7-10, section
7702(e)(1)(B) is situated within a larger statutory provision--
section 7702--that structures the path of all mixed cases. As
a whole, section 7702 provides a rigid time line for advancing
mixed cases through the various phases of administrative and
judicial review set forth therein. In looking to its parallel
structure, we "follow the cardinal rule that a statute is to be
read as a whole," King v. St. Vincent's Hospital, 502 U.S. 215,
221 (1991) (citing Massachusetts v. Morash, 490 U.S. 107, 115
(1989)), "since the meaning of statutory language, plain or
not, depends on context." Conroy v. Aniskoff, 507 U.S. 511,
515 (1993). As in Conroy and "the context of this statute
actually supports the conclusion that Congress meant what
[section 7702(e)(1)(B)] says." Id. For example, sections
7702(a)(1) and 7702(a)(2) respectively direct that the MSPB
and an employee's agency--depending on where the com-
plainant chooses first to pursue his mixed case--"shall, within
120 days of the filing of the appeal, decide both the issue of
discrimination and the appealable action", 5 U.S.C.
s 7702(a)(1), and "shall resolve such matter within 120 days."
5 U.S.C. s 7702(a)(2). Moreover, sections 7702(e)(1)(A) and
7702(e)(1)(C) each allow aggrieved employees to pursue their
claims in federal court when either their employing agency or
the EEOC has been temporally remiss in processing a case
before it.13 See 5 U.S.C. ss 7702(e)(1)(A) & 7702(e)(1)(C).
Read together, these provisions clearly express Congress'
desire that mixed cases should be processed expeditiously,
and that complainants should have access to a judicial forum
should their claims languish undecided in the administrative
machinery.
The legislative history lends further support to our reading
of section 7702(e)(1)(B). The Joint Explanatory Statement of
the Committee on Conference accompanying the CSRA ("Ex-
planatory Statement") declares that
[t]he bill establishes mandatory time limits to govern the
maximum length of time the employing agency, the
MSPB, the EEOC, or the Panel may take to resolve the
matter at each step in the process. The act makes
compliance with these deadlines mandatory--not discre-
tionary---in order to assure the employee the right to
have as expeditious a resolution of the matter as possible.
H. Conf. Rep. No. 95-1717, Joint Explanatory Statement of
the Committee on Conference, 95th Cong., 2d Sess., reprinted
in 1978 U.S.C.C.A.N. 2860, 2874 (emphasis added). Describ-
ing the procedural path for processing mixed cases, the
Explanatory Statement goes on to explain that
[t]he conference substitute fully protects the existing
rights of employees to trial de novo under title VII of the
Civil Rights Act of 1964 or other similar laws after a final
agency action on the matter. Under the act's provisions,
this final agency action must occur within 120 days after
the complaint is first filed. After these 120 days, the
employee may appeal to the Board or file a complaint in
district court in those cases where the agency in violation
of the law has not issued a final decision. If the employ-
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13 5 U.S.C. s 7702(e)(1)(A) entitles an employee to bring suit
when there is no judicially reviewable action on the 120th day
following the filing of a mixed case complaint with the employing
agency, while 5 U.S.C. s 7702(e)(1)(C) allows recourse to the feder-
al courts when there is no "final agency action" on the 180th day
following the filing of a petition with the EEOC.
ee files an appeal of the agency action with the MSPB,
the employee may file a suit in district court any time
after 120 days if the Board has not completed action on
the matter by that time.
Id. at 2874-75. (emphasis added). We think this history
reinforces our reading of the text that Congress used "judi-
cially reviewable action" to refer to final agency actions alone.
The Board has not "completed action" nor "resolve[d] the
matter" until it issues a final decision. The text and struc-
ture of section 7702, as well as the accompanying legislative
history, permit no other interpretation.
Appellee's principal support for his contrary reading lies in
a separate passage in the Explanatory Statement. After
discussing the mandatory nature of the time limits for agency
action, the Explanatory Statement continues: "[i]t is not
intended that the employing agencies, the Board, the Com-
mission, or the special panel would automatically lose jurisdic-
tion for failing to meet these time frames. Congress will
exercise its oversight responsibilities should there be a sys-
tematic pattern of any body failing to meet these time
frames." Id. at 2874. In appellee's view, this statement
signals a clear intention to prevent complainants from enter-
ing federal court until the administrative agency takes final
action, and section 7702(e)(1)(B) merely constitutes a type of
savings clause that applies on those rare occasions when the
agency refuses to act altogether.14 Appellee fails to explain,
however, why authorization of an agency's retention of juris-
diction after a deadline for action has passed should also
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14 In support of his reading, appellee also cites to sections
7701(i)(1) & (2), which direct the MSPB to announce time frames
for processing appeals and to submit yearly reports to Congress
discussing its adherence to these deadlines. 5 U.S.C. ss 7701(i)(1)
& (2). Neither the requirement of record-keeping nor the specter
of congressional oversight undercuts the alternative avenue for
relief that Congress made available to plaintiffs in section
7702(e)(1)(B). In fact, these provisions reinforce our reading; they
illustrate yet another mechanism for assuring the expeditious reso-
lution of employee complaints that Congress so clearly contemplat-
ed.
divest the federal courts of the jurisdiction expressly granted
by section 7702(e)(1)(B) to consider the appeal of an appellant
in the same situation. The two are in no way mutually
exclusive. See Padilla v. Department of the Air Force, 58
M.S.P.R. 561, 566 (1993) ("The appellant's filing of a civil
action in a United States District Court does not automatical-
ly terminate the Board's jurisdiction over her appeal," as
Board law "permits simultaneous adjudication of a mixed case
appeal before the Board and a United States District
Court."); Connor v. United States Postal Serv., 52 M.S.P.R.
588, 591 (1992) (same); McGovern v. Equal Employment
Opportunity Comm'n, 28 M.S.P.R. 689, 691 n.1 (1985) ("The
fact that Section 7702(e)(1)(B) allows the appellant to go to
District Court if he does not have a decision within 120 days
of his appeal to the regional office does not lead us to
conclude that the presiding official's initial decision consti-
tutes a final and reviewable Board order in this case. Rath-
er, that section provides the appellant with an alternative and
additional route of appeal...."). The section allows the
appellant to ignore the time lapse by the Board or to move
the case to federal court. Accordingly, although the MSPB
does not lose its jurisdiction when 120 days elapse without a
final decision, the appropriate federal district court can take
jurisdiction as well.
2.Does Our Reading of Section 7702(e)(1)(B) Produce an
Absurd Result?
Appellee draws on the district court's opinion further to
argue that a literal reading of section 7702(e)(1)(B) would
produce absurd results. According to the court below, "[o]ne
hundred and twenty days is not enough time for the Board to
complete the entire cycle of initial decision and subsequent
review that is necessary to render a 'final' decision." Butler
I, at 7. Allowing a complainant to proceed to federal court
after the passage of 120 days would, in appellee's view,
undermine the MSPB's role as the preeminent authority on
federal personnel disputes and obviate the requirement for
the exhaustion of administrative remedies. We disagree.
First, the line of cases relied upon by appellee, dating back
to Holy Trinity Church v. United States, 143 U.S. 457 (1892),
and continuing up through United States v. X-Citement
Video, Inc., 513 U.S. 64 (1994), sanctions departure from a
statute's plain meaning only in that rare instance where a
literal reading would produce an application at odds with the
clearly expressed purpose of the statute. Where a " 'literal
application of a statute will produce a result demonstrably at
odds with the intentions of its drafters' ... the intention of
the drafters, rather than the strict language, controls." Unit-
ed States v. Ron Pair Enterprises Inc., 489 U.S. 235, 242
(1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S.
564, 571 (1982)) (emphasis added). We think it clear, howev-
er, for the reasons just discussed, that the plain language of
section 7702(e)(1)(B) does not lead to a particular application
that deviates from Congress' plain intent. To the contrary,
every application of our statutory reading will accord with
Congress' clearly expressed purpose. Accordingly, the prin-
ciple of statutory construction expressed in Holy Trinity is
inapposite. To the extent that section 7702(e)(1)(B) permits a
complainant to proceed to federal district court without first
obtaining a final decision from the MSPB, and thereby to
avoid exhausting available administrative remedies, Congress
intended that result.15 See National Treasury Employees
Union v. King, 961 F.2d 240, 243 (D.C. Cir. 1992) ("Exhaus-
tion is indeed a 'flexible doctrine,' in which congressional
intent is of 'paramount importance.' ") (quoting Patsy v.
Board of Regents, 457 U.S. 496, 501 (1982)).
We do not discount the special role that the MSPB has
been assigned in the adjudication of federal personnel dis-
__________
15 It is for this reason that cases cited by appellee like Tolbert v.
United States, 916 F.2d 245 (5th Cir. 1990) and Rivera v. United
States Postal Serv., 830 F.2d 1037 (9th Cir. 1987), are distinguish-
able. In Tolbert and Rivera, the complainants appealed adverse
decisions from their employing agency to the EEOC, and then filed
suit before the 180 days allotted the EEOC for rendering a final
decision had passed. In other words, the plaintiffs brought suit
without first pursuing their claims at the administrative level to the
extent explicitly required by statute. In the present case, by
contrast, appellant pursued her claim before the MSPB and waited
the statutorily prescribed 120 days before bringing this lawsuit.
putes, nor do we impugn its expertise. The degree of defer-
ence that federal courts must accord MSPB resolutions of
nondiscrimination claims, see 5 U.S.C. s 7703(c) (limiting
review to actions found to be arbitrary, capricious, an abuse
of discretion, contrary to law, or unsupported by substantial
evidence), speaks directly to its preeminent role in this area.
We agree with our sister courts that "[a]dministrative law
judges and the MSPB [and] EEO counselors and the EEOC
... all have a measure of expertise and familiarity with
employment discrimination disputes that federal judges can-
not readily match." Vinieratos v. United States Dep't of the
Air Force, 939 F.2d 762, 775 (9th Cir. 1991). See also Muller
Optical Co. v. EEOC, 743 F.2d 380, 395 (6th Cir. 1984) ("the
EEOC has developed considerable expertise in the field of
employment discrimination since Congress created it by the
Civil Rights Act of 1964"); cf. Hopkins v. Price Waterhouse,
920 F.2d 967, 979 (D.C. Cir. 1990) ("In explaining Congress'
decision to grant the EEOC administrative enforcement pow-
ers, the Senate Committee on Labor and Public Welfare
observed that ... '[t]he Equal Employment Opportunity
Commission would be expected to develop an important res-
ervoir of expertise in these matters, expertise which would
not readily be available to a widespread court system.' ")
(quoting S. Rep. No. 415, 92d Cong., 1st Sess. 18-19 (1971)).
Nevertheless, where the complainant has neither deliberately
abandoned the administrative regime,16 see Vinieratos, 939
F.2d at 770 (plaintiff abandoned claim when he filed third
EEO complaint and asked MSPB to defer to EEO process);
McGinty v. United States Dep't of the Army, 900 F.2d 1114,
1117 (7th Cir. 1990) (plaintiff abandoned administrative sys-
tem by filing claim in federal court rather than appealing
agency no age discrimination finding to the EEOC), nor
refused to cooperate in its processes, see Wilson v. Pena, 79
F.3d 154, 164 (D.C. Cir. 1996) ("If a complainant forces an
agency to dismiss or cancel the complaint by failing to provide
__________
16 As should be evident, we conclude that a federal employee who
files suit after 120 days have elapsed but before the MSPB issues a
final decision has not abandoned her administrative remedies.
sufficient information to enable the agency to investigate the
claim, he may not file a judicial suit."); Barnes v. Levitt, 118
F.3d 404, 409 (5th Cir. 1997) (district court lacks jurisdiction
over employment discrimination suit where plaintiff refused
to cooperate with agency EEO investigation), and has herself
followed the rigorous time limitations prescribed by section
7702, section 7702(e)(1)(B) explicitly sanctions a civil action in
the federal district courts once 120 days have passed without
a final decision from the MSPB.17
While the district court has jurisdiction over such a claim,
and cannot dismiss it as untimely for failure to exhaust
administrative remedies, we see no reason why the district
court cannot stay the case, or hold it in abeyance, for a
reasonable period of time. See National Treasury Employ-
ees Union, 961 F.2d at 245 (reversing dismissal for failure to
exhaust administrative remedies but directing the district
court to hold claim in abeyance for three months to allow the
FLRA time to hear unfair labor practice claim). Such treat-
ment would allow the court to benefit from the exercise of
MSPB expertise, preserving judicial resources while simulta-
neously protecting the right of appeal contained in section
7702(e)(1)(B). In this case, for example, the MSPB's final
decision was issued in December of 1994, a little more than
two months after appellant filed her complaint; the district
court did not rule on her complaint, however, until February
of 1997. While this delay may not be typical, it reveals that
the district courts can routinely benefit from MSPB expertise
without running afoul of the unambiguous language of section
7702(e)(1)(B), and without disadvantaging parties who follow
the letter of the statute's time line.
III.
For reasons discussed, we hold that the initial decision of
an administrative judge is not a "judicially reviewable deci-
__________
17 If the MSPB issues a final decision after more than 120 days
have elapsed but before the complainant has brought suit, 5 U.S.C.
s 7703 controls. Under section 7703(b)(2), once the party receives
notice of the MSPB's final action, she has thirty days in which to
file a claim in district court. See 5 U.S.C. s 7703(b)(2).
sion" for purposes of 5 U.S.C. s 7702(e)(1)(B) unless neither
party, nor the MSPB on its own motion, seeks further review
within thirty-five days. Accordingly, section 7702 allows a
complainant like Butler to appeal her claim to the appropriate
federal district court when, after filing a mixed case appeal
with the MSPB, 120 days elapse without final MSPB action.
Accordingly, we reverse the dismissal of appellant's claim and
remand to the district court for further proceedings.
So ordered.