Jurisdiction Over Reprisal Mixed Cases
On November 1, 2011, the U.S. Court of Appeals for the Federal Circuit issued its decision in Diggs v. Dept. of Housing and Urban Development, Case No. 2010-3193, dismissing the case for lack of jurisdiction. Despite argument from both parties encouraging the Federal Circuit to exercise jurisdiction over the case, the court found that Diggs’s affirmative defense of EEO reprisal constituted a claim under Title VII, converting Diggs’s case into a “mixed case” excluded from Federal Circuit jurisdiction by statute.
The agency removed Diggs from her management analyst position on charges of “rude, disruptive, aggressive, or intimidating behavior” and misrepresentation stemming from an alleged workplace altercation in January 2008. Prior to her removal, Diggs had filed sex discrimination claims against the agency. Diggs appealed her removal to the Merit Systems Protection Board and raised EEO reprisal as an affirmative defense to the removal. An MSPB administrative judge, and then the full Board on petition for review, affirmed the agency’s removal decision, finding that Diggs had failed to prove her affirmative defense of reprisal.
Diggs then appealed the MSPB’s decision to the Federal Circuit, while separately appealing the MSPB’s decision on the EEO reprisal claim to the Equal Employment Opportunity Commission. Diggs raised her EEO reprisal claims in both appeals. The EEOC issued its decision first, finding that, while Diggs had demonstrated a prima facie case of EEO reprisal, the evidence showed that her removal was not based upon the intent to retaliate for her prior protected EEO activity.
The jurisdiction issue examined by the Federal Circuit stems from its lack of jurisdiction in EEO mixed case situations. Under current statute, the Federal Circuit lacks jurisdiction to hear appeals from the MSPB regarding “mixed cases” (adverse action cases within MSPB jurisdiction where discrimination is asserted as an affirmative defense to the adverse action). As a result, employees seeking appellate review of MSPB decisions with discrimination elements have a procedural election: either appeal the case into U.S. District Court based upon the discrimination claim or else drop the discrimination claim and appeal the case into the Federal Circuit.
The Federal Circuit directed the parties to brief the issue of whether it held jurisdiction over the case. The specific issue was whether the Federal Circuit recognized EEO reprisal as a private cause of action for federal sector employees under Title VII, an issue on which the Federal Circuit had issued conflicting decisions over the years. If the Federal Circuit recognized EEO reprisal as a form of Title VII discrimination claim, then it lacked jurisdiction to hear Diggs’s appeal; if the Federal Circuit did not recognize the reprisal claim, then Diggs’s case could fall within the court’s jurisdiction and be heard.
Both parties’ briefs urged the Federal Circuit to exercise jurisdiction, albeit on different grounds. However, the court opted to reject the parties’ arguments. Instead, the Federal Circuit – joining several other circuits and the EEOC – found that Title VII does give a cause of action for EEO reprisal, thus rendering Diggs’s case a mixed case carved out of the court’s jurisdiction by statute. Since Diggs had opted to raise her EEO reprisal claim in her Federal Circuit appeal, the court dismissed her appeal for lack of subject matter jurisdiction.
