concluding that a federal employee may seek de novo judicial review in federal district court of a discrimination claim after the MSPB did not address the merits of the claim but rather dismissed it on untimeliness grounds
How later courts described this case
- concluding that a federal employee may seek de novo judicial review in federal district court of a discrimination claim after the MSPB did not address the merits of the claim but rather dismissed it on untimeliness grounds
- rejecting Ballentine and holding that employee could seek review of his discrimination claims in the district court, despite the fact that the MSPB had dismissed plaintiffs appeal because it was untimely and had not reached the merits of his discrimination claims
- holding that plaintiff is obliged to exhaust administrative remedies prior to filing a claim under the Rehabilitation Act.
- holding that plaintiff obliged to exhaust administrative remedies prior to bringing claim under the Rehabilitation Act
Written by the judges who cited it.
The opinion
PETITION FOR REHEARING
Jan. 26, 1999
Petition for rehearing with respect to opinion filed on November 13, 1998. Petition denied.
Defendant Postmaster General makes three principal arguments in support of his petition for rehearing, each of which we reject.
(1)The Postmaster General argues that our decision conflicts with the decision of the Federal Circuit in Ballentine v. Merit Systems Protection Board, 738 F.2d 1244, 1247 (Fed.Cir.1984), and with decisions of other circuits. As is made clear in the panel opinion, we disagree with the Ballentine court’s interpretation of 5 U.S.C. §§ 7702 and 7703. The decisions of other circuits in Powell v. Department of Defense, 158 F.3d 597 (D.C.Cir.1998), Sloan v. West, 140 F.3d 1255 (9th Cir.1998), and Wall v. United States, 871 F.2d 1540 (10th Cir.1989), cert. denied, 493 U.S. 1019 (1990), are distinguishable. Those cases involved MSPB appeals that had been dismissed not for untimeliness but because they were beyond the substantive scope of MSPB jurisdiction. By definition, such a matter does not involve “an action which the employee or applicant may appeal to the Merit Systems Protection Board,” 5 U.S.C. § 7702 (a)(2)(A), and is therefore not a “[c]ase[ ] of discrimination subject to the provisions of section 7702,” id., § 7703(b)(2). See, e.g., Sloan v. West, 140 F.3d at 1261 (“if the MSPB does not have jurisdiction over the non-discrimination claim, then the case is not a ‘mixed case’ ”).
(2) The Postmaster General contends that an MSPB appeal that “is not within the MSPB’s procedural time limits in the first instance” does not qualify as a “mixed case” subject to 5 U.S.C. § 7702 . We disagree with the analytical premise. Whether a matter is a mixed case depends on the substance of the claims presented, not on the timeliness of their assertion.
(3) The Postmaster General suggests that the decision of the district court should have been affirmed for reasons relating to plaintiffs failure to timely exhaust his administrative remedies. The district court in this case dismissed for lack of jurisdiction. Neither exhaustion nor its timeliness is a matter of jurisdiction but rather is a matter to be raised as an affirmative defense. See, e.g., Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997) (“untimely exhaustion of administrative remedies is an affirmative defense”). The Postmaster General remains free to assert such a defense in the district court.
Petition denied.