Opposition Brief — Wall v. United States

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No. 89-317 JOSEPH F. SPANIOL, JR

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1989

RICHARD J. WALL, PETITIONER

V.

UNITED STATES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Altorney General

WILLIAM KANTER

ROBERT M. LOEB _

Altorneys

Departmeni of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

After the Merit Systems Protection Board heid that it had

no jurisdiction over petitioner’s claim of discriminatory

discharge, petitioner filed an action in a federal district court

alleging discrimination by the employer agency. The ques-

tion presented is whether the court of appeals was correct

in affirming the district court’s dismissal of the action.

(1)

TABLE OF CONTENTS

Page

a ek x wb desu ease <6 |

a ars |

en cg pa cde wes enccces 2

A rrr S

ES ; )

TABLE OF AUTHORITIES

Cases:

Derr v. Gulf Oil Corp., 796 F.2d 340 (10th Cir.

hs A a s

McDonnell Douglas Corp. v. Green, 411 U.S. 792

a a y

Muller v. United States Steel Corp., 509 F.2d 923

(10th Cir.), cert. denied, 423 U.S. 825 (1975) s

Statutes and regulations:

Age Discrimination in Employment Act, 29 U.S.C.

ee eee a vac sc seca ss

§ 15(c), 29 U.S.C. 633a(c) ..... 6, 8

§ 15(d), 29 U.S.C. 633a(d) 5

Rehabilitation Act of 1973,

a an. eee OO. ....... 3

§ Seo, 29 U.S.C. 794 ... 5,8

5 U.S.C. 7702 (1982) ..... 6

§ U.S.C. 7702(a) (1982) .. 6

§ U.S.C. 7702(a)(1) (1982) .... 5, 7

§ U.S.C. 7702(b)(2) (1982) . .

5 U.S.C. 7703(b)(1) (1982) .... 3

§ U.S.C. 7703(b)(2) (1982) 3, 4, 6, 7

(lil)

IV

Statutes and regulations:

42 U.S.C. 2000e-16(c) (§ 717(c))

ae C.F .R.*?

Sections 1613.212-1613.214

Section

Section

Section

Section

section

1613.

1613.

1613.

1613.

1613.

Be Sais

.” oe

214(a)

214(a)(4)

421

6,

~~) Ww

Jn the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-317

RICHARD J. WALL, PETITIONER

Vv. -

UNITED STATES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The court of appeals’ opinion (Pet. App. Al-A19) is

reported at 871 F.2d 1540. The memorandum and order of

the district court (Pet. App. A20-A28) is reported at 637

F. Supp. 90. The initial opinion of the Merit Systems Pro-

tection Board (Pet. App. A29-A35) is unreported; the

Board’s order denying the petition for review of the initial

decision (Pet. App. A36-A37) is summarily reported at 27

M.S.P.R. 647.

JURISDICTION

The judgment of the court of appeals was entered on

March 31, 1989. The court of appeals denied a petition for

rehearing en banc on May 24, 1989. The petition for a writ

of certiorari was filed on August 22, 1989. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

(1)

tr

STATEMENT

|. Petitioner was employed by the Department of

Health and Human Services (HHS) as an Intergovernmen-

tal and Congressional Affairs Specialist from 1973 to

September 28, 1984. Pet. App. A21. On September 18, 1984,

HHS informed petitioner of its decision to remove him from

his position effective September 28, 1984. /bid. Thereafter,

petitioner conferred with HHS Employee Relations

Specialists concerning his retirement rights. /bid. During

these meetings, petitioner discussed his desire to protect his

employment record, to obtain timely retirement benefits,

and to preserve his insurance coverage. /d. at A33-A34. He

agreed to select a retirement date, and inquired as to the

last possible day he could retire prior to his removal. He

was told that he could retire on September 28 and that if

he did so, the separation would be processed as a retire-

ment rather than a removal for cause. /d. at A31-A32. On

September 27, 1984, petitioner filed a Standard Form 50,

requesting separation from employment by retirement ef-

fective September 28, 1984. /d. at A30. HHS processed peti-

tioner’s removal as a retirement.

2. Petitioner filed an appeal with the Merit Systems Pro-

tection Board (MSPB or Board), alleging that his retirement

was involuntary because HHS had decided to remove him

for cause and because the Employee Relations Specialists

did not inform him that retiring on September 28 would

cause him to lose his appeal rights. Pet. App. A29-A31.

Atter reviewing the record and hearing the testimony of peti-

tioner and the Employee Relations Specialists, the Board

determined that the retirement was voluntary.' The Board

' The Board rejected petitioner’s claim that the agency’s decision to

remove him rendered his retirement involuntary, noting that “the courts

have repeatedly upheld the voluntariness of resignations and retirements

where they were submitted to avoid possible removal for cause.” Pet.

held that since there had been no adverse action taken

against petitioner by HHS, it had no jurisdiction to hear

petitioner’s appeal. /d. at A29, A30-A34.

3. Petitioner appealed the Board’s decision to the

Federal Circuit pursuant to § U.S.C. 7703(b)(1) (1982). Pet.

App. A21. Petitioner also filed an action in the United States

District Court for the District of Kansas, claiming that his

termination amounted to age and handicap discrimination

in violation of the Age Discrimination in Employment Act

of 1967 (ADEA), 29 U.S.C. 621 et seq., and the Rehabilita-

tion Act of 1973, 29 U.S.C. 701 et seq. Pet. App. A20-A21.

The Federal Circuit stayed the proceedings before it pen-

ding the outcome of the district court action. /d. at A21.

The district court observed that it had jurisdiction over

petitioner’s claim under 5 U.S.C. 7703(b)(2) (1982) only it

petitioner had presented a “mixed” claim —that is, a claim

that was appealable to the MSPB and that alleged

discrimination by the agency. Otherwise, “the Federal Cir-

cuit has exclusive jurisdiction.” Pet. App. A24. The court

then noted that, although petitioner’s claim included an

App. A30 (citations omitted). The Board observed that petitioner's

resignation would be binding only if his removal was for good cause,

but held that the good cause requirement was satistied unless petitione:

could show “that the agency knew or believed that the removal action

could not be substantiated.” /d. at A3l (citations omitted). Because

petitioner had not met this standard, the Board tound that “the dec)

sion of the appellant to retire was not, at least legally, rendered involun

tary simply because appellant was to be removed.” /bid

The Board also found that, although the Employee Relations

Specialists did not inform petitioner that his decision to retire on the

day he was to be terminated would preclude any appeal of the agency's

action (see Pet. App. A31l n.2, A32-A33), he nonetheless was informed

that a retirement on the date he selected would result in his separation

“be[ing] processed as a retirement action, mos a removal for cause.”

Accordingly, the Board found that petitioner's decision to retire was

not rendered involuntary by any misrepresentation. /d. at A33

4

allegation of discrimination, the case was “not a ‘mixed’ case

falling within the provisions of section 7702” because “(t]he

MSPB made a factual finding that plaintiffs retirement was

voluntary,” and “{a]s a matter of law, a voluntary retire-

ment is not subject to the MSPB’s jurisdiction.” /bid.

Therefore, the court concluded, the Federal Circuit had ex-

clusive jurisdiction to review the Board’s determination that

the resignation was voluntary and that the Board lacked

jurisdiction over the claim. /bid. The district court dismissed

the claim for lack of jurisdiction. Jd. at A28.

4. Petitioner appealed the district court’s decision to the

Tenth Circuit, and the Tenth Circuit affirmed. Pet. App.

A4-A19. The court of appeals majority agreed with the

district court’s reading of Section 7703(b)(2) as requiring

that where “an employee’s appeal to the [MSPB} is ‘not ap-

pealable’ under the statute, and the Board does not con-

sider the employee’s claim of discrimination on the merits,

review of the Board’s determination that it lacks jurisdic-

tion to hear the employee’s claim lies exclusively in the

Federal Circuit.” Pet. App. AS.? The majority concluded

that petitioner’s de novo action in the district court “was

properly dismissed.” Jd. at A7.

Judge Seymour dissented, concluding that “[rjequiring

Wall to appeal the Board’s resolution of this issue in the

Federal Circuit deprives him of de novo review of his

discrimination claim in district court, a result contrary to

> The court of appeals also stated that, if the Federal Circuit on ap-

peal “reverses the Board's determination that Wall’s retirement was

voluntary, the matter will then be remanded to the Board to hear Wall’s

discrimination claim on the merits.” Pet. App. AS. If the MSPB on

remand issued a ruling adverse to petitioner, petitioner could then file

an action in district court. “It would seem to follow,” the court con-

cluded, “that should the Federal Circuit on appeal uphold the Board’s

finding that Wall voluntarily retired, such would rule out any claim

of discrimination.” Jd. at A6.

vj

statutes.” Pet. App. Al5. She noted that the majority’s

analysis would result in a “person in Wall’s position

[being] unable to raise his discrimination claim in any

judicial forum.” Jd. at Al7. She concluded that there was

no “compelling statutory construction or policy argument”

to support the majority’s view that Congress intended

federal employees to be “without a remedy in this situation.”

Ibid.

Judge Seymour also acknowledged the government’s

argument that the district court had properly dismissed the

action because petitioner had failed to fulfill the prerequisite

of exhausting his administrative remedies by filing a claim

with the agency.* Pet. App. Al7. Although the thirty-day

period established by regulation for presenting his claim of

discriminatory termination to HHS had long since expired

(see 29 C.F.R. 1613.214(a)), Judge Seymour concluded that

petitioner had satisfied the requirement of administrative

exhaustion under the regulations by following an “alter-

native procedure[ ] for pursuing administrative relief” —

filing a timely claim with the MSPB under § U.S.C.

7702(a)(1). Pet. App. Als.

ARGUMENT

This case does not warrant further review. Because the

district court properly dismissed petitioner's action for

discrimination, the court of appeals’ decision aftirming

dismissal of that action was correct. Moreover, petitioner

still has ample opporunity to obtain what he seeks: con-

> See 42 U.S.C. 2000e-16(c), as incorporated by reference in the

ehabilitation Act of 1973 (29 U.S.C. 794a); Section 15(d) of ADEA,

29 U.S.C. 633a(d) (requiring that a complaint be filed with the agency,

or that the EEOC be notified, before an action is tiled in federal court)

See also 29 C.F.R. 1613.212-1613.214 (requiring that a complaint to

the agency be filed within thirty days of the discriminatory personne!

action).

eo Se

2. However, petitioner still has ample opportunity to

obtain. consideration of the merits of his claim of

discriminatory discharge.

a. Petitioner may elect to pursue his appeal of the MSPB

decision to the Federal Circuit. Reversal by the Federal Cir-

cuit of the MSPB’s ruling that petitioner’s retirement was

voluntary would result in a remand to the MSPB for con-

sideration of petitioner’s “mixed” discrimination claim on

the merits. If the MSPB rejects the “mixed” claim, petitioner

could then bring suit in district court under $ aE toe

7703(b)(2) (1982). See 29 C.F.R. 1613.42].

b. If petitioner does not pui sue his appeal to the Federal

Circuit, or if the Federal Circuit upholds the MSPB’s

jurisdictional ruling, petitioner would then be able to fulfill

the prerequisites to the filing of an independent district court

action for discrimination. Under the relevant regulations,

petitioner is entitled to an enlargement of time within which

to file his complaint with the agency: 29 C.F.R

1613.214(a)(4) states that “[t}he agency shall extend the time

limits in this section when the complainant shows that * * *

[he] was prevented by circumstances beyond [his] control

from submitting the matter within the time limits.” In this

Case, petitioner elected in good faith to proceed under §

U.S.C. 7702(a)(1) by filing what he thought was a “mixed”

adverse action-discrimination claim with the MSPB Based

on its own factual findings, rather than any misfeasance

Of petitioner, the MSPB determined that the claim was not

“mixed” and that it therefore had no jurisdiction. (Assum

ing that the MSPB’s decision is correct. petitioner's claim

is an “unmixed” discrimination claim that should have been

filed directly with the district court following agency con

sideration.) These circumstances warrant an enlargement

of time under 29 C_F.R. 1613.214 once the MSPB pro

ceedings and any judicial review of these proceedings have

concluded. Petitioner may then file a complaint with the

8

agency and, if necessary, proceed to file a discrimination

claim in district court within the applicable period. See 42

U.S.C. 2000e-16(c)(setting forth limitations period ap-

plicable to the filing of a district court action following com-

plaint to the agency, incorporated by reference in Section

505 of the Rehabilitation Act of 1973, 29 U.S.C. 794a. See

also Section 15(c) of ADEA, 29 U.S.C. 633a(c)).

3. Nothing in the decisions below precludes de novo

consideration of whether, notwithstanding his decision to

retire, petitioner was the victim of unlawful discrimination

under ADEA or the Rehabilitation Act of 1973. The court

of appeals held only that there was no jurisdiction to bring

an action under Section 7703(b)(2), not that there was no

jurisdiction under the relevant Sections of ADEA or the

Rehabilitation Act of 1973 —the provisions under which any

second action would be brought. Also, if petitioner has

properly exhausted his administrative remedies by the time

he files again, the obstacles to the present action will not

exist. Thus, an affirmative defense of res judicata would

be unwarranted, and would not foreclose petitioner’s later

action challenging the agency’s conduct.®

¢ Nor would the MSPB’s determination (or the Federal Circuit’s af-

firmance) that petitioner’s retirement was “voluntary” necessarily

preclude his litigation in district court of the issue whether his separa-

tion from the agency nevertheless qualified as a discriminatory “con-

structive discharge,” or whether the agency otherwise discriminated

avainst him in violation of ADEA or the Rehabilitation Act of 1973.

Compare Pet. App. A6 (court of appeals majority, stating in dictum,

that “{i}f Wall, in fact and in law, voluntarily retired, he cannot argue

ihat his termination was the result of agency discrimination”).

It is true that petitioner cannot collect back pay or win reinstatement

unless the court finds that he has been constructively discharged, see,

ee, Mullery. United States Steel Corp. , 509 F.2d 923 (10th Cir.), cert.

denied, 423 U.S. 825 (1975), and that his decision to retire would be

pertinent to the issue of whether a constructive discharge had taken

place. Cf. Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir. 1986)

9

Since the dismissal below was correct, and petitioner mz,

still receive all of the relief he ultimately seeks, this case does

not warrant further review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

* STUART M. GERSON

Assistant Attorney General

WILLIAM KANTER

ROBERT M. Lor

Attorneys

DECEMBER 1989

(“the question on which constructive discharge cases turn is simply

whether the employer by its illegal discriminatory acts has made work

ing conditions so difficult that a reasonable person in the employee's

position would feel compelled to resign”). However, the legal standard

governing the MSPB’s determination whether 4 decision to retire js

“voluntary” may differ from the legal standard tor determining whethe:

a discriminatory discharge has occurred. See Pet App. A30-A31, and

compare the cases there cited (decision (O retire to avoid terminat

for cause is deemed voluntary unless the “appellant * * * show({s} that

the agency knew or believed that the removal action could not be

substantiated”) with McDonnell Douglas Corp. v. Green, 441 US. 792

(1973) (setting forth order and burden Of proot for discrimination Clain

under Title VI1). Thus, the MSPB’s ruling on the former question. ey

if upheld by the Federal Circuit, may not be preclusive on the latte: