Marie Conforto v. Mspb

United States Court of Appeals
for the Federal Circuit
______________________
MARIE C. CONFORTO,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3119
______________________
Petition for Review of the Merit Systems Protection
Board in No. SF0752120154-I-1.
______________________
Decided: April 18, 2013
______________________
SCOTT L. ZIELINSKi, Grady and Associates, of San Die-
go, California, argued for petitioner.
KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent. With her on the brief were
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
______________________
2 MARIE CONFORTO v. MSPB
Before DYK, BRYSON, and MOORE, Circuit Judges.
Opinion for the court filed by Circuit Judge BRYSON.
Dissenting opinion filed by Circuit Judge DYK.
BRYSON, Circuit Judge.
Marie C. Conforto seeks review of the Merit Systems
Protection Board’s dismissal of her appeal for lack of
jurisdiction. Although she sought review in this court,
Ms. Conforto now challenges this court’s jurisdiction to
hear her appeal in light of the Supreme Court’s recent
decision in Kloeckner v. Solis, 133 S. Ct. 596 (2012). For
the reasons explained below, we conclude that we have
jurisdiction over this appeal, and we affirm the Board’s
decision.
I
Ms. Conforto worked for the Department of the Navy
until she retired on December 31, 2010. At the time of
her retirement, she had worked in the Department for 39
years and held the position of Supervisory Contract
Specialist in the Material Management Department.
Ms. Conforto alleges that she was forced to retire at
the end of 2010 because of a series of events that occurred
at her workplace during the previous year. She contends
that those events were motivated by age and sex discrim-
ination, as well as retaliation for her prior equal employ-
ment opportunity (“EEO”) activity. The particular
incidents about which she complained are the following:
in December 2009, her parking space was taken away; in
March 2010, one of her subordinates was promoted to a
vacated position instead of her; in April 2010, she was
denied permission to attend a training session; and in
July 2010, she felt pressured into canceling a training
session that she had planned to attend. In September
2010, following those events, Ms. Conforto advised her
agency’s human resources office that she wished to retire
as of December 31 of that year.
MARIE CONFORTO v. MSPB 3
In the months after Ms. Conforto submitted her re-
tirement papers but before her retirement became effec-
tive, several more events occurred that she alleges were
the products of discrimination or retaliation. In October
2010, her supervisor criticized her work progress by e-
mail and then issued her a formal letter of reprimand. In
November 2010, Ms. Conforto alleges, her supervisor
denied her request for sick leave, and in December he
issued her a notice proposing to suspend her for seven
days. Finally, she complains that after her retirement the
agency issued her a letter charging her with improperly
copying materials from her work computer, gave her a
negative interim appraisal for the year 2010, and did not
give her a bonus or raise for that year.
As these events unfolded, Ms. Conforto filed an EEO
complaint with her agency in June 2010, alleging discrim-
ination based on age and sex as well as reprisal for prior
EEO activity. She later amended her EEO complaint to
allege that she had been forced to retire because of har-
assment. In October 2011, the agency issued its decision
on Ms. Conforto’s EEO complaint. Following a detailed
factual analysis of her claims, the agency concluded that
Ms. Conforto had not been subjected to discrimination or
retaliation and that she had retired voluntarily, not
because of discriminatory or retaliatory conduct by agency
personnel.
Ms. Conforto appealed the agency’s decision to the
Board in December 2011. The administrative judge who
was assigned to her case issued an order advising her that
the Board might not have jurisdiction over her appeal
because retirement is presumed to be a voluntary act.
Under this court’s en banc decisions in Cruz v. Depart-
ment of the Navy, 934 F.2d 1240, 1248 (Fed. Cir. 1991),
and Garcia v. Department of Homeland Security, 437 F.3d
1322, 1328 (Fed. Cir. 2006), the Board lacks jurisdiction
over an employee’s voluntary decision to resign or retire.
In response to the administrative judge’s order, Ms.
4 MARIE CONFORTO v. MSPB
Conforto replied that the Board had jurisdiction over her
appeal because her retirement was the product of coercion
by the agency. As such, she contended, her involuntary
retirement constituted a constructive removal and thus
fell within the Board’s jurisdiction. See 5 U.S.C.
§§ 7512(1); 7513(a), (d); 7701(a); Garcia, 437 F.3d at1328–30.
The administrative judge dismissed Ms. Conforto’s
appeal for lack of jurisdiction. According to the adminis-
trative judge, Ms. Conforto had failed to make a non-
frivolous allegation that her retirement was involuntary,
and thus she was not entitled to a hearing on the issue of
jurisdiction. Analyzing Ms. Conforto’s allegations, the
administrative judge found that even the most serious
actions of which she complained—the letter of reprimand
and the proposed seven-day suspension—could not sup-
port a claim of coerced retirement because they did not
leave her without any reasonable alternative but to retire.
In addition, the administrative judge noted that Ms.
Conforto had not alleged any facts suggesting that the
agency knew it could not justify those actions.
The administrative judge pointed out that the agency
had provided a detailed analysis of Ms. Conforto’s allega-
tions and had concluded that there was a legitimate basis
for each of the actions of which she complained. Accord-
ing to the administrative judge, Ms. Conforto had “not
made any specific factual allegations to call these conclu-
sions into question.” Moreover, the administrative judge
noted that the most serious actions—the letter of repri-
mand and the proposed suspension—occurred after Sep-
tember 2010, when Ms. Conforto advised the agency that
she would retire as of the end of the year. The timing of
those incidents, according to the administrative judge,
“undercut[] any assertion that her retirement was
prompted by” those events. In sum, the administrative
judge concluded that while Ms. Conforto alleged that she
felt subjectively that she had no choice but to retire, “the
MARIE CONFORTO v. MSPB 5
circumstances she alleges would not make a reasonable
person believe that she had no realistic alternative but to
resign or retire.” The administrative judge ruled that Ms.
Conforto had failed to make a non-frivolous showing that
the agency had coerced her into retiring and thus that she
had failed to satisfy her burden of showing that her
retirement was involuntary.
After the administrative judge’s initial decision be-
came final, Ms. Conforto appealed to this court.
II
The first issue we must address is whether this court
has jurisdiction to review the Board’s ruling under the
Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq.
Resolving that question requires a brief discussion of the
options open to a federal employee complaining of dis-
crimination in the workplace. First, the employee may
file an EEO complaint with the employing agency; if the
employee does so, the agency is obligated to investigate
and take final action on the complaint. 29 C.F.R.
§§ 1614.101–110. If dissatisfied with the agency’s resolu-
tion of the complaint, the employee may bring an action in
a United States district court. Id. § 1614.407. In the case
of discrimination based on race or sex, that action would
be brought under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-16(c). In the case of age discrimination,
that action would be brought under the Age Discrimina-
tion in Employment Act, 29 U.S.C. § 626(c). Alternative-
ly, the employee may appeal the agency’s decision to the
Equal Employment Opportunity Commission (“EEOC”),
and then to a district court. 29 C.F.R. §§ 1614.401–405.
In certain cases, the employee has a third option—to file
an appeal from the employing agency’s final action to the
Merit Systems Protection Board. Id. § 1614.302.
An appeal to the Merit Systems Protection Board is
available only in cases in which the adverse action in
question falls within the Board’s jurisdiction, such as in
6 MARIE CONFORTO v. MSPB
the case of removal or suspension for more than 14 days.
5 U.S.C. § 7512; see id. §§ 7513(a), (d), 7701(a). If the
Board has jurisdiction to review an agency action against
an employee, Congress has also authorized it to adjudi-
cate the employee’s claims of discrimination that would
otherwise fall outside the Board’s jurisdiction. Id.
§ 7702(a)(1); 29 C.F.R. § 1614.302; see Garcia, 437 F.3d at
1335. Such a case is referred to as a “mixed case appeal.”
29 C.F.R. § 1614.302(a)(2). By alleging forced retirement
in addition to her discrimination claims, Ms. Conforto
sought to bring her case before the Board as a mixed case
appeal in which the Board would review both the adverse
employment action and the related discrimination claims.
If an employee loses her mixed case appeal on the
merits of her discrimination claim, she may obtain further
review of the adverse decision, either from a district court
or from the EEOC and then (if necessary) a district court,
but not from this court. 5 U.S.C. §§ 7702(a)(3), 7703(b)(2);
see 29 C.F.R. 1614.303–310. That much is clear from the
statutes and regulations pertaining to mixed case ap-
peals.
It is now equally clear that the district court’s juris-
diction would also extend to review of a mixed case appeal
that the Board dismissed on procedural grounds, such as
untimeliness. That is the holding of the Supreme Court’s
recent decision in Kloeckner v. Solis. As a result, the
district court, and not this court, is charged with jurisdic-
tion over any mixed case appeal that the Board resolves
either on the merits or on procedural grounds. That in
effect means that any case in which the Board exercises
its jurisdiction to decide a discrimination claim, and in
which the employee seeks review of that decision, is not
appealable to this court. See Garcia, 437 F.3d at 1348
n.6.
This case requires us to decide what court has review-
ing authority when the Board decides that it does not
MARIE CONFORTO v. MSPB 7
have jurisdiction over an appeal because the challenged
agency action is not within the Board’s statutory power to
review. Before Kloeckner, we consistently held that
judicial review of the Board’s “no jurisdiction” rulings
resides in this court. Even though Ms. Conforto filed her
appeal in this court, she now argues, based on Kloeckner,
that this court lacks jurisdiction over her appeal and that
her case should be transferred to a district court. After
close consideration of the Kloeckner decision and a careful
review of the statutes that govern mixed case appeals, we
conclude that this court has jurisdiction to review a
determination by the Board that it lacks statutory juris-
diction over an employee’s appeal. That category includes
the Board’s decision that it lacked jurisdiction over Ms.
Conforto’s appeal because her retirement was voluntary
and therefore did not constitute an “adverse action”
within the meaning of section 7512.
A
For years, we have held that appeals such as Ms. Con-
forto’s must come to this court. Ballentine v. Merit Sys.
Prot. Bd., 738 F.2d 1244, 1247–48 (Fed. Cir. 1984); see Oja
v. Dep’t of the Army, 405 F.3d 1349, 1355 (Fed. Cir. 2005);
Lang v. Merit Sys. Prot. Bd., 219 F.3d 1345, 1347 n.2
(Fed. Cir. 2000); Austin v. Merit Sys. Prot. Bd., 136 F.3d
782, 784 (Fed. Cir. 1998); King v. Lynch, 21 F.3d 1084,
1089 (Fed. Cir. 1994); Wallace v. Merit Sys. Prot. Bd., 728
F.2d 1456, 1458–59 (Fed. Cir. 1984); Hopkins v. Merit Sys.
Prot. Bd., 725 F.2d 1368, 1370 (Fed. Cir. 1984). The court
held that appeals should be taken to this court not only in
cases that the Board dismissed for lack of jurisdiction, but
also in cases in which the Board exercised jurisdiction
over the appeal but disposed of it on procedural grounds
without reaching the merits of the employee’s discrimina-
tion claim. Thus, in Ballentine, this court noted that
section 7702(a)(1) requires the Board to decide “both the
issue of discrimination and the appealable action.” 738
F.2d at 1246. The court then reasoned that under the
8 MARIE CONFORTO v. MSPB
statutory scheme, “the judicially reviewable action by the
MSPB which makes an appeal a ‘case of discrimination’
under § 7703(b)(2) that can be filed in district court is that
the MSPB has decided ‘both the issue of discrimination
and the appealable action.’” Id. Therefore, the court
concluded, judicial review would be proper in district
court only if the Board decided the merits of the discrimi-
nation claim. In other cases, including dismissals on
procedural grounds, we held that this court would be the
proper forum to review the Board’s decision.
Several circuits adopted the position taken by this
court, holding that judicial review of mixed case appeals
dismissed in the first instance by the Board on any non-
merits grounds fell under our jurisdiction. See McCarthy
v. Vilsack, 322 F. App’x 456, 458 (7th Cir. 2009); Powell v.
Dep’t of Def., 158 F.3d 597, 598–99 (D.C. Cir. 1998); Sloan
v. West, 140 F.3d 1255, 1261–62 (9th Cir. 1998); Blake v.
Dep’t of the Air Force, 794 F.2d 170, 172–73 (5th Cir.
1986); cf. Burzynski v. Cohen, 264 F.3d 611, 620–21 (6th
Cir. 2001) (holding judicial review of a jurisdictional
dismissal by the Board must be in the Federal Circuit).
Two circuits departed from the approach employed in
Ballentine and held that judicial review in cases in which
the Board rejected the employee’s claim on procedural
grounds belongs in district court and not in this court.
See Harms v. Internal Rev. Serv., 321 F.3d 1001, 1008
(10th Cir. 2003); Downey v. Runyon, 160 F.3d 139, 144–45
(2d Cir. 1998). Importantly, the circuits that departed
from our rule did so in cases in which the Board had
jurisdiction over the employee’s adverse action appeal but
did not reach the merits of the employee’s discrimination
claim due to a procedural fault. Those courts did not hold
that the Federal Circuit would be the wrong forum to
review a ruling by the Board that it lacked jurisdiction
over the employee’s adverse action claim. In fact, in
Harms the Tenth Circuit specifically stated that “when
the MSPB decides that it lacks jurisdiction over an appeal
MARIE CONFORTO v. MSPB 9
because the employment action is not within the MSPB’s
designated appellate jurisdiction, the appeal is not a ‘case
of discrimination’ under § 7702(a)(1),” and accordingly the
appeal should be reviewed by the Federal Circuit. 321
F.3d at 1008.
In Kloeckner v. Solis, 639 F.3d 834 (8th Cir. 2011), the
Eighth Circuit had occasion to address the conflicting
precedents on this issue. The court noted that the Harms
case taught that this court was the proper forum for
judicial review when the Board dismissed for lack of
jurisdiction, but not when the Board dismissed for non-
jurisdictional procedural reasons. Id. at 837. The Eighth
Circuit adhered to the majority rule, however, holding
that judicial review in both classes of cases should be in
this court and that district courts would have jurisdiction
over mixed case appeals only if the Board reached the
merits of the employee’s discrimination claim. Id. at 838.
The Supreme Court granted review in Kloeckner and
reversed. Endorsing the minority view, the Court held
that judicial review of procedural dismissals by the Board
must be obtained in district court. The Court, however,
was silent on the question of how to treat jurisdictional
dismissals, such as the one at issue in this case.
B
Although the Supreme Court in Kloeckner did not ex-
plicitly address the jurisdictional issue presented here,
the statutory text, the Court’s rationale in Kloeckner, our
own prior decisions, and the decisions of other courts all
indicate that an appeal from the Board’s dismissal for
lack of jurisdiction belongs in this court.
The statutory point is simple but compelling. Section
7703(b)(1) of Title 5 states that, except for one relevant
exception provided in section 7703(b)(2), review of a final
order of the Merit Systems Protection Board will be in the
Federal Circuit. Section 7703(b)(2) states that “cases of
10 MARIE CONFORTO v. MSPB
discrimination subject to the provisions of section 7702”
shall be filed in the district court. Therefore, appeals of
Board decisions must be brought in the Federal Circuit
unless they are subject to section 7702. Section 7702, in
turn, applies to cases in which an employee “(A) has been
affected by an action which the employee . . . may appeal
to the Merit Systems Protection Board” and “(B) alleges . .
. discrimination.” 5 U.S.C. § 7702(a)(1). These are the
mixed case appeals. Because an employee “may appeal to
the Merit Systems Protection Board” only if the employ-
ee’s claim is within the Board’s appellate jurisdiction, the
plain import of this statutory language is that a purported
mixed case appeal is reviewed by a district court only if
the Board has jurisdiction to decide the appeal from the
adverse action in issue. 1
It therefore follows that sections 7703(b)(1) and
7702(a)(1)(A) give this court jurisdiction to review a Board
determination that an employee’s case is not appealable
to the Board, regardless of whether the employee has
sought to raise claims of agency discrimination. Thus, for
example, if an employee sought Board review of a minor
disciplinary action, such as suspension for fewer than 15
days, the appeal would plainly be outside the Board’s
jurisdiction, and review of the Board’s decision would be
in this court, not in the district court, even if the employee
contended that the action was taken because of discrimi-
1 The dissent contends that the same analysis would
apply to procedural dismissals, as “an employee also may
only appeal to the Board if he does so within the applica-
ble time limits,” including the procedural 30-day limit set
out in 5 C.F.R. § 1201.154(a). But that is not true. The
Board has the authority to entertain appeals that are
procedurally defective under its own regulations, see 5
C.F.R. § 1201.12, but it may not hear a case over which it
lacks jurisdiction.
MARIE CONFORTO v. MSPB 11
natory animus. The statute, moreover, requires that the
Board actually have jurisdiction over the employee’s
claim, not merely that the employee allege Board jurisdic-
tion. As we held in our en banc decision in Cruz, “mere
assertion does not provide a basis for Board jurisdiction in
[a] voluntary resignation case.” Cruz, 934 F.2d 1240,
1245.
The Supreme Court’s decision in Kloeckner supports
our conclusion. The employee in Kloeckner filed her
discrimination claim after the 30-day regulatory deadline
provided for in 5 C.F.R. §1201.154(a). Thus, her claim
was barred under a procedural rule; the Board dismissed
her case only after finding that she had failed to show
good cause for her delay. In holding that the district court
could hear her claim, the Supreme Court reversed only
the line of authority holding that “mixed cases” dismissed
by the Board on procedural grounds were appealable to
this court.
The scope of the Court’s holding in Kloeckner is clear
in light of the issue the Court took the case to decide. The
Court granted certiorari “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.” Kloeckner, 133 S. Ct. at 603. As we have noted,
the courts of appeals that have addressed the issue have
unanimously agreed that this court is the appropriate
forum for jurisdictional dismissals, and therefore there
was no circuit split for the Supreme Court to resolve on
that point. The Court reiterated several times throughout
its opinion that it was deciding the question whether
judicial review of procedural dismissals of mixed case
appeals should go to the Federal Circuit. Id. at 600, 602–
07. 2 By contrast, the Court never mentioned jurisdiction-
2 In light of the Supreme Court’s consistent refer-
ence to “procedural” dismissals, we do not agree with the
12 MARIE CONFORTO v. MSPB
al dismissals, nor did it suggest that the rule it adopted
applied to any cases falling outside the Board’s jurisdic-
tion.
Importantly, the Court reached its decision pursuant
to a statutory analysis similar to the one we have under-
taken here. It held, as we do today, that “mixed cases”
are those subject to section 7702. 133 S. Ct. at 603–05.
Significantly, the Court characterized mixed cases, which
it held are judicially reviewable in district court, as “those
appealable to the MSPB and alleging discrimination.” Id.
at 604. And the Court pointed out that Ms. Kloeckner
had been removed and thus undoubtedly “she was affect-
ed by an action (i.e., removal) appealable to the MSPB.”
Id. The Court did not suggest that the same rule would
apply to cases falling outside the Board’s jurisdiction,
such as resignations or retirements that were not shown
to be involuntary.
Because Kloeckner does not bear on the precise ques-
tion before us, the rule we apply today must be consistent
with the binding law of this circuit. In Ballentine, we
analyzed section 7702(a)(1) and concluded that it dictated
that jurisdictional dismissals by the Board were reviewa-
ble in this court. 738 F.2d at 1246–47. Although we
applied that principle to procedural dismissals as well,
that aspect of the decision was not necessary to resolve
the case. Id. Thus, while the Supreme Court’s decision in
Kloeckner rejected Ballentine’s extension of its holding to
procedural dismissals, it did not affect the portion of
Ballentine that dealt with jurisdictional dismissals. For
that reason, this court’s statutory analysis of jurisdiction-
al dismissals in Ballentine and subsequent cases is still
dissent that Kloeckner was simply silent on the distinc-
tion between procedural and jurisdictional limitations.
MARIE CONFORTO v. MSPB 13
good law, 3 and we are required to follow it. See Oja, 405
F.3d at 1355; Austin, 136 F.3d at 784; King, 21 F.3d at
1089.
Finally, our decision in this case is consistent with
the unanimous view of the circuits that have addressed
this question. As we have observed, the two circuits that
had rejected this court’s analysis in Ballentine addressed
Board dismissals on procedural grounds, not for lack of
jurisdiction. And the Tenth Circuit in Harms specifically
reasoned, in the course of holding procedural dismissals to
be reviewable in district court, that it would have adopted
a different view if the Board had dismissed the appeal on
jurisdictional, rather than procedural, grounds. 321 F.3d
at 1008.
C
Contrary to the dissent, our decision does not deprive
a litigant such as Ms. Conforto of the right to a ruling on
her discrimination claims. As the Supreme Court made
clear in Kloeckner, 133 S. Ct. at 601, a federal employee in
Ms. Conforto’s position can elect to bypass the Merit
Systems Protection Board altogether and file a complaint
against her agency in district court. See Garcia, 437 F.3d
at 1342. Our jurisdictional decisions affect only those
cases in which an employee elects to proceed by appealing
3 The dissent argues that Kloeckner overruled Bal-
lentine in its entirety because “Ballentine, like Kloeckner,
involved the application of rules governing the time for
filing.” That argument ignores the fact that, unlike the
regulatory 30-day period at issue in Kloeckner, the timing
issue in Ballentine was jurisdictional. Ballentine had
brought his challenge before either the agency decision
had issued or 120 days had passed since his initial com-
plaint. Ballentine, 738 F.2d at 1248; see 5 U.S.C. § 7702.
Consequently, the Board lacked jurisdiction over his
appeal.
14 MARIE CONFORTO v. MSPB
to the Merit Systems Protection Board but the Board
concludes it does not have jurisdiction over the employee’s
appeal.
In such a case, if we hold that the Board was correct
in its jurisdictional ruling, relief from the Board is of
course closed to the employee. But the employee is free to
pursue any other remedy that the employee has pre-
served, such as a Title VII action in district court. See
Cruz, 934 F.2d at 1247–48; Sloan, 140 F.3d at 1260–61. 4
If, on the other hand, we hold that the Board does have
jurisdiction, the case returns to the Board for resolution of
the merits of the discrimination claim, with review of that
ruling available in the district court.
The dissent asserts that in the context of claims of in-
voluntary separation, deciding the issue of Board jurisdic-
tion necessarily requires this court to decide the merits of
the employee’s discrimination claim, because the issues of
discrimination and Board jurisdiction are “identical.”
That is not so, as this court explained in Garcia, 437 F.3d
at 1341. In order to establish the Board’s jurisdiction, the
employee must show that he was forced to resign or
retire. The employee in such cases may claim that he was
forced to resign or retire in part or in whole because of
discrimination by the agency, but the two questions—
involuntariness and discrimination—present distinct
issues: whether improper conduct by the agency com-
4 Courts have uniformly stated that the decision of
the Board, or of this court, holding that the Board lacks
jurisdiction over the employee’s appeal, would not be
given collateral estoppel effect in a discrimination action
brought in district court. Powell, 158 F.3d at 599 n.2;
Sloan, 140 F.3d at 1262 n.20; Dews-Miller v. Clinton, 707
F. Supp. 2d 28, 53 n.19 (D.D.C. 2010); Burrell v. U.S.
Postal Serv., 164 F. Supp. 2d 805, 811 (E.D. La. 2001);
Long v. Frank, 808 F. Supp. 961, 966 (E.D.N.Y. 1992).
MARIE CONFORTO v. MSPB 15
pelled the employee to resign, and whether the allegedly
improper conduct was the product of discrimination.
Coercion can be found without proof that the improper
conduct was the product of discrimination, and discrimi-
nation can be found without proof that the discriminatory
conduct was so serious as to compel the employee to
resign. Id. The presence of discrimination is neither
necessary nor sufficient to give the Board jurisdiction over
a constructive removal claim. 5
With respect to the issue of coercion—the precise is-
sue presented to us in appeals of this kind—our role is
simply to determine whether the employee has made a
sufficient showing of coercion to give the Board authority
to decide a case that would otherwise be outside the
statutory limits of its jurisdiction. We established that
principle in our en banc decision in Garcia, and although
the dissenting judge in this case disagrees with that
decision, we are not free to disregard it.
5 Contrary to the dissent, Cruz did not hold that any
employee “must prove that the discrimination existed in
order to prove coercion (and therefore Board jurisdiction).”
See Cruz, 934 F.2d at 1244 (“Cruz has submitted no
evidence . . . indicating that his resignation was involun-
tary.”). We also rejected the dissent’s contention in Gar-
cia. 437 F.3d at 1341 (noting “differences between the
jurisdictional issues and the merits of the discrimination
claim,” including that “in mixed cases the discrimination
claim itself is adjudicated using the elements, burdens,
and defenses specific to the underlying discrimination
statute.”). The dissent is therefore mistaken to suggest
that differences between the jurisdictional issue and the
discrimination claim go only to “the scope of relief” avail-
able to the employee, and not the merits of the claim
itself.
16 MARIE CONFORTO v. MSPB
In sum, we conclude that the plain language of section
7702(a)(1) dictates that when the Board dismisses a
purported mixed case appeal for lack of jurisdiction, any
appeal from that decision is to this court. We decline Ms.
Conforto’s invitation to read the Supreme Court’s decision
in Kloeckner so broadly as to remove this court’s jurisdic-
tion over appeals in such cases. In this case, the Board
found that Ms. Conforto’s retirement was voluntary and
therefore held, in accordance with the binding precedent
of this court, that it lacked jurisdiction over her claim of
constructive removal. For that reason, the exception to
our jurisdiction described in sections 7702(a) and
7703(b)(2) does not apply. We have jurisdiction to decide
Ms. Conforto’s appeal.
III
On the merits of the jurisdictional issue, the
Board was correct in ruling that Ms. Conforto failed to
make a non-frivolous showing that her retirement was
“‘involuntary and thus tantamount to forced removal.’”
Garcia, 437 F.3d at 1328, quoting Shoaf v. Dep’t of Agric.,
260 F.3d 1336, 1340–41 (Fed. Cir. 2001). We therefore
uphold the Board’s ruling dismissing her appeal without a
hearing.
The two principal grounds on which employees have
sought to show that their resignations or retirements
were involuntary are (1) that the resignation or retire-
ment was the product of misinformation or deception by
the agency, see Covington v. Dep’t of Health & Human
Servs., 750 F.2d 937, 942 (Fed. Cir. 1984), and (2) that the
resignation or retirement was the product of coercion by
the agency, see Dumas v. Merit Sys. Prot. Bd., 789 F.2d
892, 894 (Fed. Cir. 1986). Ms. Conforto relies on the
latter ground, invoking the principle that a retirement
can be involuntary if the employee’s agency coerced her
into retiring “‘by creating working conditions so intolera-
ble’” that she was “‘driven to involuntarily . . . retire.’”
MARIE CONFORTO v. MSPB 17
Garcia, 437 F.3d at 1328, quoting Shoaf, 260 F.3d at
1341.
The test for involuntariness is objective. The employ-
ee must overcome the presumption that her resignation or
retirement was voluntary and must do so by establishing
“‘that a reasonable employee confronted with the same
circumstances would feel coerced into resigning’” or
retiring. Garcia, 437 F.3d at 1329, quoting Middleton v.
Dep’t of Def., 185 F.3d 1374, 1379 (Fed. Cir. 1999); see also
Terban v. Dep’t of Energy, 216 F.3d 1021, 1024–25 (Fed.
Cir. 2000). Ms. Conforto was entitled to a hearing only if
she made a non-frivolous showing of coerced retirement.
Garcia, 437 F.3d at 1344.
The doctrine of coercive involuntariness “‘is a narrow
one,’ requiring that the employee ‘satisfy a demanding
legal standard.’” Id. at 1329, quoting Staats v. U.S. Postal
Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996). An employee’s
dissatisfaction with the options that an agency has made
available to him is not sufficient to render his decision to
resign or retire involuntary. See Mueller v. U.S. Postal
Serv., 76 F.3d 1198, 1202–03 (Fed. Cir. 1996); Taylor v.
United States, 591 F.2d 688, 692 (Ct. Cl. 1979) (“[T]he fact
that an employee is faced with an unpleasant situation or
has to choose between two unpleasant alternatives does
not make the resulting action involuntary unless there is
deception, coercion, duress, time pressure or intimida-
tion.”). Thus, the doctrine of coerced involuntariness does
not apply if the employee resigns or retires because he
does not like agency decisions such as “a new assignment,
a transfer, or other measures that the agency is author-
ized to adopt, even if those measures make continuation
in the job so unpleasant . . . that he feels that he has no
realistic option but to leave.” Staats, 99 F.3d at 1124.
Moreover, the coercion must be “the result of improper
acts by the agency.” Id.18 MARIE CONFORTO v. MSPB
The agency conducted a detailed analysis of Ms. Con-
forto’s allegations and concluded that there was a reason-
able, nondiscriminatory explanation for each of the
incidents of which she complained. For example, with
respect to her allegation that the agency took away her
designated parking spot, the agency explained that all the
parking spaces for employees in her department were
taken away when it was discovered that those parking
places were being used without authorization and that
those individuals should have been using staff parking
spots. With respect to her complaint about being denied a
promotion, the agency explained that no promotion was at
issue; rather, another individual was designated to act as
the Acting Department Head in the absence of the De-
partment Head (a military position), and that the decision
was based on an internal recommendation as to who was
best suited to take over that responsibility. Moreover,
Ms. Conforto was eventually assigned the role of Acting
Department Head after that individual vacated the posi-
tion.
In investigating Ms. Conforto’s contentions regarding
the disapproval of training opportunities, the agency
found that the April 2010 training was not required for
Ms. Conforto’s position and that, because of budgetary
considerations, Ms. Conforto’s division was able to send
only four people to the April 2010 training session. The
supervisor who made the selection, according to the
agency’s findings, did so based on the selectees’ field of
expertise. As for the day-and-a-half training session that
Ms. Conforto wished to attend in early August, entitled
“Take Back Your Life,” the agency concluded that Ms.
Conforto had not been prevented from attending the
session. However, according to the agency’s findings, an
important audit for Ms. Conforto’s division was to occur
only a few days after the training session, and the respon-
sible agency officials advised her that although she was
free to attend the training session, the department’s
MARIE CONFORTO v. MSPB 19
performance in the audit was her responsibility. Ms.
Conforto ultimately decided not to attend the training
session.
The agency conducted a similar analysis of each of the
allegations of discrimination that, according to Ms. Con-
forto, occurred during the months after she advised the
agency, in September 2010, that she was going to retire as
of the end of that year. The agency concluded that the
October 2010 letter of reprimand sent to Ms. Conforto was
based on her failure to complete her assigned tasks and
her unprofessional conduct in dealings with one of her
supervisors. The agency further stated that the agency
official who proposed a seven-day suspension for Ms.
Conforto (which was never effected) did so based on her
failure to complete assignments, a leave violation, and
inappropriate conduct on her part. As to the denial of sick
leave, the agency concluded that Ms. Conforto’s supervi-
sor had denied her request for leave because he believed it
was for annual leave for a day in which her presence was
required, but that when Ms. Conforto clarified that the
request was for medical reasons, he approved the re-
quest. 6
As the administrative judge noted, Ms. Conforto’s re-
sponse to his order to show why the Board had jurisdic-
tion over her case did not contain a factual response to the
agency’s analysis. Instead, she simply re-asserted her
claims that the various incidents that occurred between
late 2009 and early 2011 were all motivated by unlawful
discrimination and retaliation both for her prior EEO
6 The administrative judge also observed that Ms.
Conforto had already advised the agency of her decision to
retire at the time of the October and November 2010
actions about which she complains. She has not ex-
plained how those actions support her claim that her
decision to retire was the product of coercion.
20 MARIE CONFORTO v. MSPB
activities and for her appeal of her 2009 performance
rating.
Given the state of the record, the administrative judge
was clearly correct to hold that Ms. Conforto failed to
satisfy her burden of making non-frivolous allegations
that she had been subjected to coercive pressures suffi-
cient to compel a reasonable person to retire involuntari-
ly. In short, she did not demonstrate that she had no
realistic alternative but to resign or retire, and that her
retirement was the result of “improper acts” by the agen-
cy. Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir.
1987). For that reason, we sustain the Board’s decision
that Ms. Conforto failed to show that her retirement was
involuntary—and thus tantamount to a removal action.
Accordingly, the Board correctly held that it lacked juris-
diction over her appeal.
AFFIRMED
United States Court of Appeals
for the Federal Circuit
______________________
MARIE C. CONFORTO,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3119
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0752120154-I-1.
______________________
DYK, Circuit Judge, dissenting.
In my view, the majority’s jurisdictional holding is in-
consistent with the Civil Service Reform Act of 1978
(CSRA), see 5 U.S.C. §§ 7702–03, and with the Supreme
Court’s decision in Kloeckner v. Solis, 568 U.S. ___, 133 S.
Ct. 596 (2012). The majority holds that this circuit has
jurisdiction to review Merit Systems Protection Board
(“Board”) decisions in mixed cases involving discrimina-
tion allegations even though, as the Supreme Court
recently held, Congress specifically excluded those cases
from our jurisdiction and required review in district
courts. See 5 U.S.C. § 7703(b)(2); Kloeckner, 568 U.S. ___,
133 S. Ct. at 607.
2 MARIE CONFORTO v. MSPB
I
Under the CSRA, mixed cases are those in which an
employee or applicant for employment “alleges that an
appealable agency action was effected, in whole or in part,
because of discrimination” prohibited by certain federal
anti-discrimination laws. 29 C.F.R. § 1614.302(a)(2); see
also 5 U.S.C. § 7702(a)(1). As the majority correctly
observes, 5 U.S.C. §§ 7702 and 7703(b)(2) specify that
district courts, not this circuit, have jurisdiction to review
Board decisions in mixed cases. In Kloeckner, the Su-
preme Court held that the district courts and not the
Federal Circuit have jurisdiction to decide whether a
mixed case is barred by procedural error (for example, the
failure to timely file). 568 U.S. ___, 133 S. Ct. at 604. The
majority here nonetheless concludes that if the alleged
bar is not “procedural” but instead rests on an alleged
lack of “jurisdiction,” the case comes to us and not the
district courts.
The majority attempts to find the distinction between
jurisdictional Board dismissals and procedural Board
dismissals in the text of the statute. See Maj. Op. 9–11.
The majority appears to reason that a mixed case appeal
to the Board is not a “[c]ase[] of discrimination subject to
the provisions of section 7702” within the meaning of 5
U.S.C. § 7703(b)(2) unless the employee has established
the Board’s jurisdiction, including proving that he or she
“‘has been affected by an action which the employee . . .
may appeal to the Merit Systems Protection Board.’” See
Maj. Op. 10 (omission in the original) (quoting 5 U.S.C.
§ 7702(a)(1)(A)).
The majority’s reading of the statute was necessarily
rejected in Kloeckner, for the majority’s approach would
equally give our court jurisdiction to review procedural
issues in mixed cases. As the government pointed out in
Kloeckner, an employee also may only appeal to the Board
if he does so within the applicable time limits. See Br. for
MARIE CONFORTO v. MSPB 3
Resp’t in Opp’n at 15–16, Kloeckner, 568 U.S. ___, 133 S.
Ct. 596; see also 5 C.F.R. § 1201.154. Sections 7702 and
7703(b)(2) do not draw any textual distinction between
different types of Board decisions, and there is no other
basis for distinguishing between jurisdictional and proce-
dural dismissals. 1
Indeed, in Kloeckner, while holding that the district
court lacked jurisdiction to determine whether a proce-
dural bar existed, the Eighth Circuit rejected the proce-
dural-jurisdictional distinction, concluding that it rested
on “an unpersuasive textual analysis that would require
courts to draw difficult and unpredictable distinctions
between [Board] non-merits rulings that are ‘jurisdiction-
al,’ and those that are merely ‘procedural.’” Kloeckner v.
Solis, 639 F.3d 834, 838 (8th Cir. 2011), rev’d, 568 U.S.
___, 133 S. Ct. 596; see also Reed Elsevier, Inc. v. Much-
nick, 559 U.S. 154, ___, 132 S. Ct. 1237, 1243 (2010)
(“[T]he distinction between jurisdictional conditions and
claim-processing rules can be confusing in practice.”).
In the Supreme Court, in Kloeckner, both parties
agreed that that any distinction between “procedural” and
“jurisdictional” Board decisions was without merit. For
example, the government argued that the distinction
between jurisdictional and procedural dismissals “has no
1 Notably, where Congress intended to distinguish
between different types of Board decisions, it did so
expressly. See 5 U.S.C. § 3330b(b) (“An election under
this section may not be made . . . after the [Board] has
issued a judicially reviewable decision on the merits of the
appeal.” (emphasis added)); 5 U.S.C. § 7703(a)(2) (“The
Board shall be named respondent in any proceeding
brought pursuant to this subsection, unless the employee
. . . seeks review of a final order or decision on the merits
. . . .” (emphasis added)).
4 MARIE CONFORTO v. MSPB
basis.” See Br. for Resp’t at 25 n.3, Kloeckner, 568 U.S.
___, 133 S. Ct. 596. It also argued that:
[the] distinction between procedural [Board] dis-
missals (reviewable in district court) and jurisdic-
tional [Board] dismissals (reviewable only in the
Federal Circuit) is difficult and unpredictable.
The procedural-jurisdictional distinction rests on
the premise that an appeal beyond the [Board]’s
jurisdiction does not involve an action which the
employee . . . may appeal to the Board under Sec-
tion 7702(a). But that description applies equally
to an appeal, like [Kloeckner’s], that is not timely
filed.
Br. for Resp’t in Opp’n at 15, Kloeckner, 568 U.S. ___, 133
S. Ct. 596 (citations and quotation marks omitted).
Kloeckner agreed because “determining whether a
[Board] ruling was procedural or jurisdictional can be
‘difficult and unpredictable.’” See Rep. Br. for Pet’r at 2,
Kloeckner, 568 U.S. ___, 133 S. Ct. 596 (quoting Br. for
Resp’t in Opp’n, supra, at 15).
As the parties recognized, any distinction between
“procedural” and “jurisdictional” Board decisions would be
unworkable in practice. The Board frequently decides
cases on alternate grounds, including both procedural and
jurisdictional grounds. See, e.g., Louie v. Dep’t of the
Treasury, 211 F. App’x 942, 944 (Fed. Cir. 2007) (review-
ing the Board’s dismissal of a whistleblowing claim on five
alternate grounds, one of which was a lack of jurisdiction);
Davenport v. U.S. Postal Serv., 97 M.S.P.R. 417, 417
(M.S.P.B. 2004) (dismissing “for lack of jurisdiction and as
untimely filed” (emphasis added)); see also, e.g., Marshall
v. Dep’t of the Navy, 84 M.S.P.R. 676, 677–78 (M.S.P.B.
2000) (dismissing some allegations as waived, others as
abandoned, others as untimely, and still others for lack of
jurisdiction).
MARIE CONFORTO v. MSPB 5
Given the broad agreement between the parties that
it is not possible to meaningfully distinguish between
“procedural” and “jurisdictional” Board dispositions, the
Supreme Court’s silence as to the distinction can hardly
be read to approve it. Quite to the contrary, the Supreme
Court has recently emphasized the need for “clear guid-
ance about the proper forum for [an] employee’s claims”
under the CSRA. See Elgin v. Dep’t of the Treasury, 567
U.S. ___, ___, 132 S. Ct. 2126, 2135 (2012). The Court’s
view is also reflected in the legislative history, which
explains that one of the core purposes of the CSRA was to
avoid “a bureaucratic maze which . . . mires every person-
nel action in red[]tape, delay, and confusion.” H.R. Rep.
No. 95–1403, at 2 (1978). By attempting to draw a line
between procedural and jurisdictional issues, the majority
reintroduces the very complexity and uncertainty that the
Supreme Court rejected in Kloeckner and its prior cases.
See Kloeckner, 568 U.S. ___, 133 S. Ct. at 604; Lindahl v.
Office of Pers. Mgmt., 470 U.S. 768, 799 (1985) (noting the
“bizarre jurisdictional patchwork” that would result if the
forum for judicial review of Board decisions depended on
“whether an employee’s retirement was involuntary or
voluntary, and accordingly . . . whether the appeal might
properly be characterized as an adverse action”).
Compelling employees with claims to Board jurisdic-
tion to raise those issues in the Federal Circuit rather
than the district courts disadvantages them by requiring
filing in both the Federal Circuit and the district court to
preserve their rights. See Powell v. Dep’t of Def., 158 F.3d
597, 600 (D.C. Cir. 1998). Yet, as the Supreme Court
noted in Elgin, “[t]he CSRA’s objective of creating an
integrated scheme of review would be seriously under-
mined” by such “parallel litigation regarding the same
agency action.” Elgin, 567 U.S. at ___, 132 S. Ct. at 2135.
On the other hand, if the jurisdictional issue is reviewed
in district court, and the district court concludes that
6 MARIE CONFORTO v. MSPB
there is no Board jurisdiction, the employee can pursue
other avenues of relief in the same district court forum.
The majority’s other justification for its approach is
that our earlier decision in Ballentine v. Merit Systems
Protection Board, 738 F.2d 1244 (Fed. Cir. 1984), on this
jurisdictional point “is still good law” after Kloeckner.
Maj. Op. 12–13. But Ballentine, like Kloeckner, involved
the application of rules governing the time for filing. In
Ballentine, the employee had filed too early, whereas in
Kloeckner, the employee had filed too late. See Kloeckner
568 U.S. at ___, 133 S. Ct. at 603; Ballentine, 738 F.2d at
1248. Nothing in Ballentine drew any distinction between
such procedural issues and jurisdiction; rather, the Bal-
lentine rule applied equally to all “threshold matters.”
See Ballentine, 738 F.2d at 1246–47. In Kloeckner, the
government urged the Supreme Court to adopt this
court’s statutory analysis from Ballentine—that proce-
dural and jurisdictional dispositions do not constitute
“judicially reviewable actions” under the statute. See
Kloeckner, 568 U.S. at ___, 133 S. Ct. at 604–05; see also
Ballentine, 738 F.2d at 1246–47. The Supreme Court
rejected the government’s approach, calling it “a contriv-
ance[] found nowhere in the statute’s provisions on judi-
cial review” and holding that “[a] federal employee who
claims that an agency action appealable to the [Board]
violates an antidiscrimination statute listed in
§ 7702(a)(1) should seek judicial review in district court,
not in the Federal Circuit,” whether the Board “decided
her case on procedural grounds or instead on the merits.”
Kloeckner, 568 U.S. at ___, 133 S. Ct. at 604, 607. Noth-
ing in Kloeckner preserved the supposed separate holding
in Ballentine that “jurisdictional” Board dispositions are
to be reviewed here. 2
2 The majority also makes much of pre-Kloeckner
cases from other circuits which held that we have jurisdic-
tion over Board jurisdictional dispositions. See, e.g., Maj.
MARIE CONFORTO v. MSPB 7
II
Quite apart from the majority’s misguided attempt to
distinguish between “jurisdictional” and “procedural”
Board dispositions, it cannot be that we lack jurisdiction
to review the “merits” of mixed cases but nevertheless
may review “jurisdictional” issues that are identical to the
merits of the discrimination claim in mixed constructive
adverse action cases. 3 Constructive adverse action cases,
perhaps the most common type of mixed cases, are cases
in which the employee resigns but contends that the
resignation was coerced, and therefore inoperative. See,
e.g., Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,
1324 (Fed. Cir. 2006) (en banc). In Garcia, we held that,
in constructive adverse action cases, an employee must
prove involuntariness by a preponderance of the evidence
in order to establish jurisdiction—the same burden of
proof applicable on the merits. 4 437 F.3d at 1344. Thus,
Op. 8. Those cases all relied, either directly or indirectly,
on the Ballentine approach which the Supreme Court
deemed erroneous in Kloeckner. See, e.g., Harms v. Inter-
nal Revenue Serv., 321 F.3d 1001, 1007 & n.2 (10th Cir.
2003) (citing Wall v. United States, 871 F.2d 1540, 1542–
43 (10th Cir. 1989) (citing Ballentine).
3 While it is true that where jurisdiction is estab-
lished the scope of merits relief may present additional
issues, see Garcia v. Dep’t of Homeland Sec., 437 F.3d
1322, 1341 (Fed. Cir. 2006) (en banc), there can be no
jurisdiction unless the employee establishes the existence
of discrimination.
4 In this case, the Board found that Conforto failed
even to make a non-frivolous allegation that her retire-
ment was involuntary, and thus held that she was not
entitled to a jurisdictional hearing. The majority refers to
this non-frivolous allegation standard. See Maj. Op. 16.
Under Garcia, however, an employee must ultimately
8 MARIE CONFORTO v. MSPB
in constructive adverse action cases, the Board’s jurisdic-
tion and the merits are “‘inextricably intertwined,’” so
much so that “[i]f it is established that a resignation is
involuntary, the [Board] not only has jurisdiction, ‘but
also the employee wins on the merits.’” Shoaf v. Dep’t of
Agric., 260 F.3d 1336, 1341 (Fed. Cir. 2001) (quoting
Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir.
1987)). In other words, in constructive adverse action
cases, in general, “the jurisdictional stage is the end of the
line before the Board; there is no independent ‘merits’
phase.” Lloyd v. Small Bus. Admin., 96 M.S.P.R. 518, 528
(M.S.P.B. 2004) (McPhie, Acting Chairman, concurring). 5
prove involuntariness by a preponderance of the evidence
to establish jurisdiction. 437 F.3d at 1344.
5 As I spelled out in my dissent in Garcia, this con-
flating of the jurisdictional and merits tests is itself
contrary to the statute. On its face, section 7702 imposes
no requirement that an employee prove the merits of his
adverse action claim in order to invoke its procedures.
The most natural reading of section 7702(a)(1) is that it
merely describes the type of allegations that constitute
mixed cases “subject to the provisions of section 7702.”
See 5 U.S.C. § 7703(b)(2). That is how the Supreme Court
read the statute in Kloeckner. See 568 U.S. at ___, 133 S.
Ct. at 607 (“A federal employee who claims that an agency
action appealable to the [Board] violates an antidiscrimi-
nation statute listed in § 7702(a)(1) should seek judicial
review in district court . . . .” (emphasis added)). So too, it
is how our sister circuits have read the statute. E.g.,
Downey v. Runyon, 160 F.3d 139, 143 (2d Cir. 1998)
(“Mixed appeals to the [Board] are those appeals alleging
an appealable action affected in whole or in part by pro-
hibited discrimination.” (emphasis added)); Powell, 158
F.3d at 597 (defining “a ‘mixed case’ appeal” as “an appeal
alleging both a Board-jurisdictional agency action and a
claim of unlawful discrimination” (emphasis added));
MARIE CONFORTO v. MSPB 9
The majority attempts to avoid this difficulty by sug-
gesting that coercion (and therefore Board jurisdiction)
might be found without proof of discrimination. See Maj.
Op. 15. But while an employee might advance such an
alternative theory of relief, an employee whose sole claim
is that his resignation was coerced by discrimination must
prove that the discrimination existed in order to prove
coercion (and therefore Board jurisdiction). See Cruz v.
Dep’t of the Navy, 934 F.2d 1240, 1244 (Fed. Cir. 1991) (en
banc). In such cases, proving the merits of the employee’s
discrimination claim is necessary to establish Board
jurisdiction and the two issues are therefore hardly “dis-
tinct.” 6
Under the majority’s decision, involuntary retirement
claims involving discrimination allegations will almost
Christo v. Merit Sys. Prot. Bd., 667 F.2d 882, 883 (10th
Cir. 1981) (describing a mixed case as “containing both a
claim of improper agency action and a claim of discrimina-
tion” (emphasis added)), vacated, 667 F.2d 885 (10th Cir.
1982). A plain reading of § 7702 is that it applies to all
cases involving allegations of an adverse action and
allegations of discrimination. Nothing in the statute
indicates that the Board lacks jurisdiction unless discrim-
ination is established by a preponderance of the evidence.
6 The majority also suggests that the jurisdictional
holding—even if identical to the merits—would not give
rise to collateral estoppel. See Maj. Op. 14 n.4. The
circuit cases cited by the majority were decided before
Garcia and assumed that the jurisdictional and merits
issues were different, not that they were identical. See,
e.g., Sloan v. West, 140 F.3d 1255, 1262 n.20 (9th Cir.
1998) (“Ordinarily, collateral estoppel would not apply
because the discrimination issues would not be actually
litigated and necessarily determined in the appeal.”
(quotation marks omitted)).
10 MARIE CONFORTO v. MSPB
never be addressed in the district courts. We will either
find that there is jurisdiction (and that the employee
therefore prevails on the merits) or that the retirement
was voluntary (and the employee therefore loses on the
merits). This anomalous approach turns Congress’ clear
intent on its head, requiring that we address the type of
fact-intensive inquiries into matters such as voluntariness
and discrimination, for which Congress specifically found
review in district courts “more appropriate.” S. Rep. No.
95-969, at 63 (1978).
This is also made clear by § 7702(e)(3), which clearly
states that “[n]othing in this section shall be construed to
affect the right to trial de novo” on the employee’s dis-
crimination allegations. 5 U.S.C. § 7702(e)(3). Yet that is
precisely what the majority’s construction of the statute
does in constructive adverse action cases. If we find that
the employee has established jurisdiction, then he also
necessarily wins on the merits, Shoaf, 260 F.3d at 1341,
and there is thus no need for a trial de novo, except per-
haps on the scope of relief. If we find that the employee
failed to establish jurisdiction, then there is no claim on
the merits and no need for a trial de novo. Thus, there is,
as a practical matter, almost no circumstance in which
there can be a trial de novo in the district court. Contrary
to the majority’s insistence, under our cases an employee
cannot establish Board jurisdiction yet “lose[] her mixed
case appeal on the merits of her discrimination claim” and
then seek review in district court. Maj. Op. 6.
In sum, the majority’s effort to preserve our authority
to review “jurisdictional” issues in mixed cases (particu-
larly in constructive adverse action cases) is contrary to
Kloeckner and the statute. I respectfully dissent.