Conforto v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.

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 at

1328–30.

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.