“The district court reviews the discrimination claim de novo and the nondiscrimination claim on the administrative record under 5 U.S.C. § 7703(c).”
How later courts described this case
- “The district court reviews the discrimination claim de novo and the nondiscrimination claim on the administrative record under 5 U.S.C. § 7703(c).”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ELIZABETH J. MARTIN, )
)
Plaintiff, )
)
v. ) No. 4:22-cv-00213-HEA
)
DEPARTMENT OF VETERANS )
AFFAIRS, )
)
Defendant. )
OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon review of the file following transfer from the
United States Court of Appeals for the Federal Circuit. For the following reasons, the Court
will order plaintiff to file an amended complaint on this Court’s employment
discrimination complaint form.
Background
Plaintiff originally filed this case in the United States Court of Appeals for the
Federal Circuit, seeking judicial review of the decision of the Merit Systems Protection
Board (“MSPB”). Plaintiff, a GS-0905-14 attorney with the agency’s national torts law
group, working from home in St. Louis, Missouri, had been fired for unacceptable
performance under the authority of the Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017. Plaintiff brought claims against the agency for
employment discrimination and retaliation. After an evidentiary hearing, the MSPB denied
plaintiff’s claims.
Judicial review of decisions of the MSPB is provided for by 5 U.S.C. § 7703.
Generally, the Court of Appeals for the Federal Circuit has exclusive jurisdiction over
appeals of Board determinations. See 5 U.S.C. § 7703(b)(1). In cases where certain
discrimination claims are presented before the MSPB, however, a plaintiff may seek review
in the U.S. District Court. See 5 U.S.C. § 7703(b)(2). In “mixed cases” such as the instant
case, the district court has jurisdiction to review both the discrimination and non-
discrimination claims. Kelliher v. Veneman, 313 F.3d 1270, 1274 (11th Cir. 2002).
Additionally, in mixed cases, “the adverse agency action is reviewed on the administrative
record, while the discrimination claim is reviewed de novo.” Crawford v. Runyon, 37 F.3d
1338, 1340 (8th Cir. 1994); Mason v. Frank, 32 F.3d 315, 317 (8th Cir. 1994) (“The district
court reviews the discrimination claim de novo and the nondiscrimination claim on the
administrative record under 5 U.S.C. § 7703(c).”).
The Complaint
Prior to transfer to this Court, plaintiff had drafted her complaint on a form pleading
used by the United States Court of Appeals for the Federal Circuit. See ECF No. 5
(“Informal Brief of Petitioner/Appellant”). The Court will order plaintiff to file an amended
complaint on this Court’s employment discrimination complaint form. Plaintiff has thirty
days from the date of this Order to file an amended complaint in accordance with the
specific instructions set forth here. All claims in the action must be included in one,
centralized complaint form. See Fed. R. Civ. P. 7(a)(1), 8(a).
Additionally, plaintiff is warned that the filing of an amended complaint replaces
the original complaint and all previously-filed pleadings, so plaintiff must include each and
every one of the claims she wishes to pursue in the amended complaint. See, e.g., In re
Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir.
2005). Any claims from the original complaint, that are not included in the amended
complaint will be deemed abandoned and will not be considered. /d.
If plaintiff fails to file an amended complaint on the Court’s form within thirty days
and in compliance with the Court’s instructions, the Court will dismiss this action without
prejudice and without further notice to plaintiff.
Accordingly,
IT IS HEREBY ORDERED that the Clerk is directed to mail to plaintiff a copy of
the Court’s employment discrimination complaint form (MOED-0035).
IT IS FURTHER ORDERED that plaintiff must file an amended complaint on the
Court’s form within thirty (30) days of the date of this Order.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the
Court will dismiss this action without prejudice and without further notice to plaintiff.
Dated this 7 day of July, 2022.
UNITED STATES DISTRICT JUDGE