Kerr v. Merit Sys. Prot. Bd.

United States Court of Appeals
for the Federal Circuit
______________________
LESLIE A. KERR,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-2538
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-17-0362-I-1.
______________________
Decided: November 15, 2018
______________________
STEPHANI AYERS, Law Office of S.L. Ayers, Medford,
OR, argued for petitioner. Also represented by THAD
MCINTOSH GUYER, T.M. Guyer & Friends, PC, Medford,
OR.
JEFFREY GAUGER, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, argued for
respondent. Also represented by TRISTAN LEAVITT,
KATHERINE MICHELLE SMITH.
______________________
Before PROST, Chief Judge, DYK and MOORE, Circuit
Judges.
2 KERR v. MSPB
DYK, Circuit Judge.
Leslie A. Kerr petitions for review of the Merit Sys-
tems Protection Board’s (“MSPB’s” or “Board’s”) dismissal
of her claim under the Whistleblower Protection Act of
1989 (“WPA”), 5 U.S.C. § 1201 et seq., as untimely filed
without good cause for the delay. Because the MSPB
abused its discretion in rejecting Kerr’s claim of good
cause, we reverse and remand.
BACKGROUND
This case was originally a “mixed case,” i.e., it in-
volved a personnel action appealable to the MSPB and a
claim of prohibited discrimination. See 29 C.F.R.
§ 1614.302(a); 5 C.F.R. § 1201.151. In such cases, “the
intersection of federal civil rights statutes and civil ser-
vice law has produced a complicated, at times confusing,
process for resolving claims of discrimination in the
federal workplace.” Kloeckner v. Solis, 568 U.S. 41, 49
(2012). As with some other mixed cases, Kerr’s case has
traversed a byzantine labyrinth of administrative and
judicial channels of review. The procedural history has
been reviewed elsewhere. Kerr v. Jewell, 549 F. App’x 635,
636–38 (9th Cir. 2013) (“Kerr I”); Kerr v. Jewell, 836 F.3d
1048, 1050–53 (9th Cir. 2016) (“Kerr II”). This opinion
focuses only on those events relevant to Kerr’s petition for
review now before the court.
Kerr was employed by the U.S. Department of the In-
terior Fish and Wildlife Service (“agency”) from February
1980 to her involuntary retirement in June 2006. Both
parties treat Kerr’s involuntary retirement as effectively a
removal: we will too. Before her removal, Kerr was sub-
jected to a series of adverse personnel actions. Kerr filed a
formal complaint with the agency’s Equal Employment
Opportunity (“EEO”) office in May 2006, challenging the
adverse personnel actions and alleging claims of sex and
religious discrimination and retaliation.
KERR v. MSPB 3
When Kerr was removed she did not initially seek re-
view of her removal claim before the EEO office but
instead, in June 2006, challenged her removal and the
earlier adverse personnel actions by filing an appeal with
the MSPB. In her MSPB appeal, Kerr alleged that the
adverse personnel actions were based on sex and religious
discrimination, prohibited by Title VII of the Civil Rights
Act of 1964, and constituted retaliation for engaging in
whistleblower activities protected under the WPA. The
MSPB informed Kerr that it lacked jurisdiction over the
less serious personnel decisions (i.e., warning letter,
negative performance evaluation, and 60-day detail), and,
because of the agency’s inadequate notification of Kerr’s
appeal rights for her mixed case, gave Kerr the opportuni-
ty to present her removal-related claims to the agency’s
EEO office or have the MSPB decide them in the first
instance. Kerr elected to have her claims reviewed by the
EEO office first. Thus, the MSPB dismissed Kerr’s appeal
without prejudice in November 2006, and the EEO office
accepted Kerr’s removal-related claim for investigation
along with her already pending claims.
In September 2008, the agency’s EEO office issued a
final decision rejecting Kerr’s discrimination claims and
concluding that the WPA claim was not within the EEO
office’s jurisdiction. The final decision also informed Kerr
that, because she had a “mixed case,” she could not appeal
the constructive discharge claim to the Equal Employ-
ment Opportunity Commission (“EEOC”), but instead
could either appeal the decision to the MSPB or file a civil
action in district court (pursuant to 5 U.S.C. § 7702(a) and
29 C.F.R. § 1614.310(a)).
Kerr decided to pursue review of her mixed case in
district court by filing suit in the District of Alaska in
October 2008. The parties litigated the discrimination and
WPA claims on the merits, and, in 2011, the district court
granted summary judgment in favor of the government on
4 KERR v. MSPB
both claims. In 2013, the Ninth Circuit reversed and
remanded for further consideration of both claims on the
merits. Kerr I, 549 F. App’x at 641.
On remand to the district court, the government ar-
gued for the first time that the district court lacked juris-
diction over Kerr’s WPA claim because she failed to
exhaust her administrative remedies by failing to seek
review of her WPA claim at the MSPB. The district court
agreed and dismissed the WPA claim in July 2014 but
held a jury trial for the discrimination claim. The jury
returned with a verdict on the discrimination claim in
favor of the government. The district court entered final
judgment. Kerr appealed only the dismissal of her WPA
claim. The Ninth Circuit affirmed on September 6, 2016.
Kerr II, 836 F.3d at 1059. The Ninth Circuit reasoned that
the district court had no jurisdiction over the WPA claim
because Congress created a “comprehensive system of
administrative review” for WPA claims. Id. at 1057. This
scheme would be undermined if an employee could pre-
sent “an entirely unreviewed WPA claim to the district
court” in the first instance. Id. at 1056–57 (citing 5 U.S.C.
§§ 1211–15) (emphasis in original). Because Kerr’s WPA
claim had not been adjudicated by the EEO or the MSPB,
the court held that district court review was unavailable.
The Ninth Circuit noted “Kerr’s reasonable reliance” on
contrary authority from the Tenth Circuit, see id. at 1059,
which had held that a district court had jurisdiction over
an unreviewed WPA claim as part of a mixed case, see
Wells v. Shalala, 228 F.3d 1137, 1142–43 (10th Cir. 2000).
Kerr filed a petition for a writ of certiorari with the
Supreme Court on December 5, 2016, which was denied
on March 20, 2017. Approximately three weeks later, on
April 11, 2017, Kerr filed a request with the MSPB to
reopen her earlier appeal to the Board that had been
dismissed without prejudice. The Board rejected Kerr’s
request, concluding that there was neither good cause nor
KERR v. MSPB 5
equitable tolling for the untimely filing of Kerr’s appeal
with the MSPB from the EEO office’s final decision in
September 2008.
Kerr timely petitioned for review of the MSPB’s dis-
missal to this court. We have jurisdiction pursuant to 5
U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9). 1
DISCUSSION
I. Good Cause for Delay
“If a party does not submit an appeal [to the MSPB]
within the time set by statute, regulation, or order of a
[Board] judge, it will be dismissed as untimely filed unless
a good reason for the delay is shown.” 5 C.F.R.
§ 1201.22(c); see id. § 1201.12. The appellant bears the
burden of establishing “good cause” for the delay. Id.
§ 1201.56(b)(2)(i). We review the Board’s good cause
determination for abuse of discretion. See Herring v. Merit
Sys. Prot. Bd., 778 F.3d 1011, 1013 (Fed. Cir. 2015) (citing
Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed.
Cir. 1992) (en banc)).
MSPB regulations do not delimit what constitutes
good cause for delay, but “[d]elay is excusable where,
under the circumstances, a petitioner exercises diligence
or ordinary prudence.” Mendoza, 966 F.2d at 653 (citation
omitted). To evaluate whether a petitioner has demon-
strated good cause, a variety of nonexclusive criteria have
been considered, including:
1 We do not have jurisdiction to review “mixed cas-
es,” see Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1988
(2017), but because Kerr’s discrimination claims have
been finally adjudicated, Kerr II, 836 F.3d at 1052–53,
and all that remains is her WPA claim, Kerr’s petition for
review does not present a “mixed case” for us to review.
6 KERR v. MSPB
the length of the delay; whether appellant was noti-
fied of the time limit or was otherwise aware of it;
the existence of circumstances beyond the control of
the appellant which affected his ability to comply
with the time limits; the degree to which negligence
by the appellant has been shown to be present or
absent; circumstances which show that any neglect
involved is excusable neglect; a showing of una-
voidable casualty or misfortune; and the extent and
nature of the prejudice to the agency which would
result from waiver of the time limit.
Herring, 778 F.3d at 1013–14 (quoting Alonzo v. Dep’t of
the Air Force, 4 MSPB 262, 264, 4 M.S.P.R. 180, 184
(1980)).
In this case, it is undisputed that Kerr’s request to
reopen her earlier MSPB appeal was not timely filed after
the EEO office’s final decision in September 2008. So the
question for the Board was whether Kerr established good
cause for the delay. To answer this question, the Board
considered three factors: the length of delay, the reasona-
bleness of Kerr’s excuse for the delay, and the presence of
attorney representation. 2 The Board found that the delay
between the EEO office’s final decision (September 2008)
and Kerr’s petition for reopening her earlier MSPB appeal
(April 2017) was substantial (8.5 years) and that Kerr had
been represented by counsel the entire time. The crux of
the Board’s no good cause determination was that Kerr
did not have a reasonable excuse for pursuing her unre-
viewed WPA claim in district court in the Ninth Circuit.
2 The Board identified a fourth factor—whether
there was evidence of circumstances beyond Kerr’s control
that led to the delay, but the Board did not consider any
evidence on that point. Neither party argues that this
factor applies to this case.
KERR v. MSPB 7
We disagree. Kerr did have a reasonable basis for
thinking that the district court was an appropriate forum
for resolving all of her mixed case claims, including her
WPA claim.
Under 5 U.S.C. § 7702(a)(2), “[i]n any matter before
an agency which involves” a personnel action that is
appealable to the MSPB and that is alleged to have been
based, in whole or in part, on “any issue of discrimination
prohibited [under the provisions described in subsection
(a)(1)(B)],” “[t]he decision of the agency in any such mat-
ter shall be a judicially reviewable action.” As the Su-
preme Court has noted, after an adverse decision by the
agency “the employee may then either take the matter to
the MSPB or bypass further administrative review by
suing the agency in district court.” Kloeckner, 568 U.S. at
45 (citing 5 C.F.R. § 1201.154(b); 29 C.F.R.
§ 1614.302(d)(1)(i)); see Perry v. Merit Sys. Prot. Bd., 137
S. Ct. 1975, 1980 (2017) (citing 5 U.S.C. § 7702(a)(2)); 29
C.F.R. § 1614.310(a). It would appear from the face of the
statute that the combination of the agency’s adverse
action and ruling by its EEO office constitutes “the deci-
sion of the agency” in such circumstances even if the
agency did not address all grounds for challenging the
adverse personnel action. See Rodriguez v. United States,
852 F.3d 67, 84–85 (1st Cir. 2017).
The Tenth Circuit previously adopted this position in
Wells where it held that a WPA claim in a mixed case
could be reviewed by a district court without first requir-
ing the claim be reviewed by the MSPB. 228 F.3d at
1142–43. The Tenth Circuit determined that this inter-
pretation of the statutory and regulatory language en-
sured related claims were resolved in the same forum,
which was consistent with Congressional intent and
concerns of judicial economy. See id. at 1143; see also
Perry, 137 S. Ct. at 1980, 1987 (explaining that “review
rights should be read not to protract proceedings, increase
8 KERR v. MSPB
costs and stymie employees, but to secure expeditious
resolution of the claims employees present” and noting
the “expense, delay, and inconvenience of requiring em-
ployees to sever inextricably related claims, resorting to
two discrete appellate forums, in order to safeguard their
rights”). Based on the Tenth Circuit’s reasoning, Kerr had
a reasonable basis to believe that the district court was a
proper forum to review her mixed case, including the
WPA claim.
The Board determined that Kerr’s excuse for filing in
district court in the Ninth Circuit, rather than appealing
the EEO office’s final decision to the MSPB, was not
reasonable based on the Ninth Circuit’s earlier decision in
Sloan v. West, 140 F.3d 1255 (9th Cir. 1998). The Board
interpreted Sloan as precluding district court review of an
unreviewed WPA claim in a mixed case, J.A. 7 n.6; how-
ever, Sloan (unlike this case) neither involved a WPA
claim nor did it involve an employee who had pursued
district court review of a final agency decision in a mixed
case before MSPB review. 3 Although the Ninth Circuit in
3 In Sloan, after the employee was fired from his
position in the Department of Defense U.S. Army Corps of
Engineers (“Army”), he filed a complaint with the Army’s
EEO office alleging racial discrimination. 140 F.3d at
1257–58. The EEO investigator recommended a finding of
no discrimination, and the employee requested a hearing
at the EEOC. Id. at 1257 n.3 (citing 32 C.F.R. §§ 588.24,
588.25 (1997)). Before the EEOC issued a decision, the
employee withdrew his request for an EEOC hearing, and
instead opted to appeal the EEO decision to the MSPB so
as to pursue his discrimination claim along with a claim
of civil service procedural violations as a “mixed case.” Id.
at 1257–58. Based on this record, the Ninth Circuit noted
that “[i]f a complainant wishes to preserve both [his
discrimination and non-discrimination] claims, he or she
KERR v. MSPB 9
Kerr’s case eventually read Sloan as having decided the
question, see Kerr II, 836 F.3d at 1057, it was reasonable
for Kerr to interpret Sloan as not deciding the issue on
district court jurisdiction over Kerr’s unreviewed WPA
claim. Perhaps for these reasons the Ninth Circuit recog-
nized that Kerr had been reasonable in seeking review of
her mixed case in district court rather than with the
MSPB, despite ultimately holding that the district court
lacked jurisdiction over the unreviewed WPA claim. Id. at
1059. The Ninth Circuit stated:
If Kerr wishes to pursue her WPA claim, her proper
course is to file an appeal before the MSPB. At oral
argument, the government acknowledged the dead-
lines for presenting claims to the MSPB are subject
to equitable tolling. Tolling may be warranted here
in light of Kerr’s reasonable reliance on the Tenth
Circuit’s opinion in Wells. The question of tolling
should be addressed in the first instance by the
MSPB.
Id. at 1059 (internal citations omitted). Under the circum-
stances, we conclude that Kerr’s district court filing was
entirely reasonable.
The appropriateness of finding good cause based on a
reasonable filing in the wrong forum is demonstrated by
cases arising under the doctrine of equitable tolling.
Under equitable tolling—a doctrine the parties agree is
narrower than good cause—filing a case in the wrong
forum can be excused when “the claimant has actively
pursued his judicial remedies by filing a defective plead-
ing during the statutory period.” Irwin v. Dep’t of Veterans
must not pursue an appeal of the EEO decision with the
EEOC. Rather, he or she must file the appeal with the
MSPB, or be deemed to have waived the non-
discrimination claim.” Id. at 1260 & n.12.
10 KERR v. MSPB
Affairs, 498 U.S. 89, 96 (1990); see e.g., Burnett v. N.Y.
Cent. R.R. Co., 380 U.S. 424, 429 (1965) (noting the
“[p]etitioner here did not sleep on his rights but brought
an action within the statutory period,” only being delayed
because “he felt that his state action was sufficient,” and
that there was adequate service of process to inform the
defendant of the cause of action); Herb v. Pitcairn, 325
U.S. 77, 78–79 (1945); cf. 5 U.S.C. § 7702(f) (excusing
timely filed case materials when filed with the wrong
agency).
The reasonableness of Kerr’s delay is further support-
ed by her lack of notice regarding the jurisdictional defect
of her WPA claim. In some limited circumstances, we
have upheld the MSPB’s rejection of good cause when an
employee was adequately warned about the impropriety
of pursuing a particular review route. For example, in
Massingale v. Merit Systems Protection Board, 736 F.2d
1521 (Fed. Cir. 1984), we upheld the MSPB’s determina-
tion of no good cause because the petitioner had been
warned that his removal was not arbitrable, yet he none-
theless pursued arbitration, which caused his delayed
filing with the MSPB. Id. at 1523; see also Bacashihua v.
Merit Sys. Prot. Bd., 811 F.2d 1498, 1502 (Fed. Cir. 1987);
Duncan v. Merit Sys. Prot. Bd., 795 F.2d 1000, 1002 (Fed.
Cir. 1986).
Here, the government did not warn Kerr she would
waive her non-discriminatory claim by failing to file at the
MSPB. In fact, the government litigated the WPA claim
on the merits for more than five years in the district court
and at the Ninth Circuit before even presenting the issue.
Additionally, the EEO office’s final decision expressly
informed Kerr that she could pursue review of her mixed
case in an appropriate district court instead of with the
MSPB. J.A. 73 (“In lieu of an appeal to the Board, the
Appellant may file a civil action in an appropriate United
States District Court . . . .”).
KERR v. MSPB 11
The government argues, and the Board appears to
have agreed, that even if Kerr acted reasonably in filing
in district court before obtaining MSPB review, Kerr was
on notice that she was pursuing the wrong approach once
the district court dismissed the claim in July 2014. Thus,
according to the government, Kerr’s subsequent appeal to
the Ninth Circuit and petition for writ of certiorari to the
Supreme Court cannot be excused. The government is
wrong. A district court decision is not the final word on a
legal issue. In light of the Tenth Circuit’s directly on-point
precedent in Wells, it was entirely reasonable to seek
Ninth Circuit review. See Burnett, 380 U.S. at 435 (tolling
the statute of limitations during the time when an appeal
from the improperly filed case could be taken or until
there was a final judgment on appeal). And once the
Ninth Circuit rejected Kerr’s arguments, it was reasona-
ble for her to petition for a writ of certiorari given the
split between the Ninth and Tenth Circuits. This is not a
case like Turner v. Merit Systems Protection Board, 806
F.2d 241 (Fed. Cir. 1986), where the likelihood of Su-
preme Court review was too remote to warrant additional
tolling. Id. at 245. Thus, Kerr has established a reasona-
ble excuse for the entirety of the delay, from the 2008
EEO office’s final decision to Kerr’s 2017 request to the
MSPB to reopen her earlier appeal.
Once “the employee gives a reasonable excuse for the
delay, such excuse should be accepted by the presiding
official, absent a showing of substantial prejudice to the
agency caused by the delay in filing.” Herring, 778 F.3d at
1018 (quoting Williamson v. Merit Sys. Prot. Bd., 334 F.3d
1058, 1064 (Fed. Cir. 2003)). Here, the agency does not
identify any prejudice it would suffer from having the
MSPB review Kerr’s WPA claim on the merits, let alone
substantial prejudice. There is no basis for a finding of
prejudice: the agency has been fully aware of Kerr’s WPA
claim since at least her initial MSPB appeal, and the
12 KERR v. MSPB
agency litigated this claim on the merits for more than
five years at the district court and on appeal until it was
dismissed for lack of jurisdiction.
Because Kerr has demonstrated reasonable “diligence
[and] ordinary prudence” in her efforts to have her mixed
case, including the WPA claim, timely resolved and be-
cause there is no showing of prejudice to the agency, we
hold that the MSPB abused its discretion in failing to
excuse Kerr’s untimely request to reopen her earlier
MSPB appeal for good cause. 4
II. ELECTION OF REMEDIES
The government argues, in the alternative, that when
Kerr elected to pursue her mixed case in district court,
the MSPB lost jurisdiction over her WPA claim. An elec-
tion of remedies typically requires the petitioner have
“full knowledge of the circumstances that make both
theories available and inconsistent.” 18B Charles A.
Wright, Arthur B. Miller & Edward H. Cooper, Federal
Practice & Procedure § 4476 (2d ed. 2002) (emphasis
added). Under our precedent, election of a review route
that cannot afford a remedy (e.g., no jurisdiction over the
claim) will generally not foreclose access to a route that
can provide a remedy. See Biogen MA, Inc. v. Japanese
Found. for Cancer Research, 785 F.3d 648, 653 (Fed. Cir.
2015) (holding that there was appellate jurisdiction over
the administrative proceeding at issue pursuant to 35
U.S.C. § 141, despite the appellant’s initial election of
4 Because we hold that Kerr established good cause
for her delay under the applicable regulations, we need
not address the question of whether the doctrine of equi-
table tolling would apply in this case. See Sebelius v.
Auburn Reg’l Med. Ctr., 568 U.S. 145 (2013) (discussing
the interaction between regulatory time limits and the
doctrine of equitable tolling).
KERR v. MSPB 13
district court review under id. § 146 because the district
court lacked jurisdiction).
The government relies on cases where the petitioner
sought a second bite at the apple after review in the
initially selected forum denied the claim on the merits.
For example, in Connor v. U.S. Postal Service, 15 F.3d
1063 (Fed. Cir. 1994), we held that the MSPB lacked
jurisdiction over a claim that was originally filed in the
district court and was still co-pending when the com-
plainant appealed to the MSPB. Id. at 1066. The district
court’s jurisdiction over the claim was not questioned, and
ultimately the petitioner received a decision on the mer-
its. Connor v. U.S. Postal Serv., 210 F.3d 369, 2000 WL
294392 (5th Cir. 2000) (unpublished); see also e.g., Wil-
liams v. Dep’t of Veterans Affairs, 244 F. App’x 345, 346
(Fed. Cir. 2007) (per curiam) (“[T]he district court ad-
dressed the same issues now presented by this appeal.”).
Here, Kerr is merely trying to secure review of her WPA
claim in the first instance, not a second chance to re-
litigate a decision on the merits. The election of remedies
doctrine has no application when the elected remedy is
not available from the selected forum, and thus Kerr’s
filing in district court did not constitute an effective
election that stripped the MSPB of jurisdiction over her
claim.
The Ninth Circuit ultimately held that the district
court could not grant Kerr any relief on her WPA claim
because the district court lacked jurisdiction. See Kerr II,
836 F.3d at 1059. Accordingly, Kerr’s litigation of her
mixed case, including the WPA claim, in district court did
not constitute an effective election that stripped the
MSPB of jurisdiction over her WPA claim.
14 KERR v. MSPB
CONCLUSION
Because the Board abused its discretion in failing to
find good cause, we reverse and remand for further pro-
ceedings on the merits.
REVERSED AND REMANDED
COSTS
Costs to the petitioner.