Adverse Benefits Decisions by OPM Can Give Rise to Mixed Cases
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
On February 9, 2022, the United States Court of Appeals for the Federal Circuit determined that a claim by a federal employee presented a ‘mixed case,’ and, therefore, the court lacked jurisdiction to hear it. The court had not previously dealt with the question of whether the type of adverse action at issue—here, the denial of disability retirement benefits—could qualify as a “mixed case” if it involved allegations of discrimination.
In September 2020, the employee appealed to the Merit Systems Protection Board (the Board), disputing a decision of the Office of Personnel Management (OPM). He argued that OPM wrongly denied his application for disability retirement benefits. Ash asserted that OPM engaged in disparate treatment based on his race and on his prior protected activity. The Board affirmed OPM’s denial of disability benefits, and Ash appealed the Board’s decision to the Federal Circuit. On appeal to the Federal Circuit, Ash maintained his racial discrimination argument.
On October 7, 2021, the court directed the parties to explain whether the case should be transferred to a United States district court under 5 U.S.C. § 7703(b)(1)(A). Ordinarily, 5 U.S.C. § 7703(b)(1)(A) requires an appellant to appeal a final Board decision to the Federal Circuit. When the appellant’s case is a “mixed case,” though, it must be transferred to a United States district court. An appellant presents a mixed case when he “(1) has been affected by an action that the appellant may appeal to the Board and (2) alleges that a basis for the action was discrimination prohibited by enumerated federal statutes.”
The court first established that Ash was alleging that the basis for the personnel action was discrimination prohibited by an enumerated federal statute, as required by the second prong of the mixed case test. Specifically, 24 U.S.C. § 2000e-16, which prohibits racial discrimination in “personnel actions,” is an enumerated statute for the purposes of determining a mixed case.
Addressing the first prong, the court acknowledged that resolving whether a disability retirement decision was “an action that the appellant may appeal to the Board” was an issue it had not directly addressed before. Not all adverse personnel actions may be appealed to the Board. In fact, an employee has the right to appeal an agency’s decision to the Board “[i]f (but only if) the action is particularly serious—involving, for example, a removal from employment or a reduction in grade or pay.” The personnel action that is most often at issue in a mixed case is employee termination, but “[r]emoval is not the only adverse action that can created a mixed case.”
The court held for the first time that because “[a]n OPM decision that adversely affects retirement ‘rights or benefits’” is a “personnel action” that can be appealed to the Board, 24 U.S.C. § 2000e-16’s prohibition on discrimination in “personnel actions,” allows employees or retirees to file a “mixed case” appeal on the retirement benefits decision that must be brought to federal district court after disposition by MSPB, rather than the Federal Circuit.
Applying these principles to the employee’s case, the court established that Ash presented a “mixed case” appeal because he raised an adverse personnel action that is appealable to the Board and because he alleged discrimination prohibited by an enumerated federal statute. As a result, the court concluded that the appeal was a “mixed case” over which it lacked jurisdiction, and it ordered the case to be transferred to the District of Maryland.
Find the full case here: Ash v. OPM.
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