COHN, District Judge.
Under the Civil Service Reform Act of 1978, P.L. 95-454, most federal employees may appeal adverse employment decisions to the Merit Systems Protection Board (the Board) and then to federal court.
Ballard was employed at the Watts Bar Nuclear Plant in Spring City, Tennessee, as a captain in the Tennessee Valley Authority's (TVA) Public Safety Service. He was demoted and transferred to another nuclear power plant for failing to act when one of his subordinates showed him an obscene racial slur on the job. Ballard appealed
Defendants moved to dismiss on November 23, 1983. Their primary contention was that Ballard's suit was untimely because more than 30 days had gone by since Ballard received notice of the decision issued on July 18, 1983. On April 25, 1984, the district judge dismissed Ballard's suit finding it was not timely filed. The district judge construed the provisions of 5 U.S.C. §§ 7701-7703 to require that Ballard file for review within 30 days of the date he received the decision issued on July 18, 1983.
This appeal turns on the meaning of the term "decision of the Board" as used in 5 U.S.C. § 7702(a)(3). In a mixed case an appellant has 30 days to file for review in federal district court "after the date the individual filing the case received notice of the judicially reviewable action under such section 7702." 5 U.S.C. § 7703(b)(2). Section 7702 describes 6 different types of decisions during the administrative process which are judicially reviewable actions.
Appellees argue the decision which issued on July 18, 1983, which was the initial decision of the presiding official, is the decision which starts the 30 day limitations clock ticking. Ballard insists the clock does not begin to tick until the initial decision becomes the final decision of the Board which in this case, under Board regulations and pursuant to the very terms of the decision issued on July 18, 1983, did not occur until August 22, 1983.
We conclude that the "decision of the Board" mentioned in § 7702(a)(3), which begins the running of the limitations period for seeking judicial review of a Board decision in a mixed case, is the final decision of the Board and not the initial decision of the presiding official. This is the only reasonable interpretation in light of the statutory provisions in 5 U.S.C. §§ 7701-7703 which must be considered as a whole. This interpretation is also supported by the legislative history of the Civil Service Reform Act of 1978, P.L. 95-454 (the Act). Finally, the regulations of the Board, the agency charged by statute with administering civil service appeals, clearly indicate that an appeal
In deciding this case we begin with the language of the statute. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 110, 103 S.Ct. 986, 990, 74 L.Ed.2d 845 (1983); Rubin v. United States, 449 U.S. 424, 429, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981). Section 7702(a)(3) does not by its terms specify if the decision of the Board which constitutes a "judicially reviewable action" is the initial decision of the presiding official or the final decision of the Board.
The legislative history of Sec. 205 of the Act, which amended Chapter 77 of Title 5 U.S.C., conclusively shows that § 7703(a)(1) applies to all cases before the Board, including mixed cases. While being considered by Congress Sec. 205 underwent significant revision. However, throughout its consideration Congress consistently took the position that judicial review in a mixed case was to be sought from a final Board decision. Congress never intended to treat a mixed case any differently than an appealable action case which raised no discrimination issues.
Before passage of the Act Ch. 77 of Title 5, U.S.C., consisted of a single section, § 7701, titled "Appeals of preference eligibles."
Sec. 205 of H.R. 11280 remained essentially unchanged when the House passed the bill on August 24, 1978. In contrast during consideration of S. 2604 by the Senate Sec. 205 underwent significant revision. S. 2640 was referred to the Senate Governmental Affairs Committee which approved an amendment dealing with appellate procedures in mixed cases.
This language is almost identical to that contained in § 7703(a)(1) as it currently reads. In discussing this section the Senate Report states:
Faced with differences in S. 2640 and H.R. 11280 the bills were sent to a conference committee. Based on the recommendation of the conference committee the Senate bill, with some amendments, was passed by Congress in lieu of the House bill. The substance of Sec. 205 of S. 2640 remained the same, though some changes were made. The procedures set forth at § 7701(f)-(i) of S. 2640 as passed by the Senate on September 13, 1978, which dealt exclusively with mixed cases, were placed in a separate section, § 7702, and titled "Actions involving discrimination". The section dealing with judicial review, previously § 7702, was renumbered as § 7703 in the conference committee. The phrase "judicially reviewable action" in § 7703(b)(2) as it currently reads appeared for the first time in S. 2640 as reported out by the conference committee.
Nothing in the legislative history suggests that Congress, in using the phrase "judicially reviewable action", intended to depart from the consistent position in prior versions of Sec. 205 that petitions for judicial review were to be filed in all cases within 30 days of receiving notice of the final Board decision. As noted above the amendment to Sec. 205 by the Senate Governmental Affairs Committee provided for special procedures in mixed cases. With the participation of the EEOC those cases took on an additional layer of administrative complexity and an appellant could potentially seek judicial review at three different points in the administrative process, depending on how the Board and the EEOC interacted.
The provisions on timeliness for seeking judicial review of Board decisions in § 7703(b) lack the clarity contained in the initial versions of Sec. 205 which appeared in S. 2640 and H.R. 11280. In the initial versions of the bills and up to consideration by the conference committee there was no question that petitions for judicial review had to be filed in all cases, including mixed cases, within 30 days of receiving notice of the final Board decision. While § 7703 as it currently reads lacks the clarity it would have had under the initial versions of the bill there is still no doubt, as seen in the legislative history of the Act, that judicial review in a mixed case is sought from the final Board decision.
A careful analysis of 5 U.S.C. §§ 7701-7703 and of regulations adopted by the Board supports this conclusion; mixed cases are treated by the Board in basically the same way as appealable action cases which raise no discrimination issues. In all cases the 30 day limitations period for seeking judicial review begins to run only after the final Board decision.
The fulcrum of appellees' position, the critical argument on which everything else hinges, is that a mixed case is treated by the Board in a manner totally different than an appealable action case which raises no discrimination issues. Appellees contend § 7701 controls in appealable action cases with no discrimination issues before the Board, § 7702 controls in mixed cases, and never the twain shall meet. Appellees' argument, however, does not stand up under close scrutiny. 5 U.S.C. §§ 7701-7703 and the regulations promulgated by the Board do not support it. All cases before the Board are treated in basically the same manner.
Section 7702(a)(1) directs the Board to decide a mixed case "in accordance with the Board's appellate procedures under § 7701." Rather than standing side-by-side as two separate statutory sections providing two totally different administrative schemes, § 7702 builds on and assumes all the procedures laid out in § 7701. The provisions of § 7702 for the most part explain the role played by the EEOC in a mixed case, a role which begins only after the Board has completed its consideration of the case pursuant to the procedures set out in § 7701.
Section 7701 governs the procedures followed by the Board in all cases before it, including mixed cases. In each case the Board or a person designated by the Board makes a decision after a hearing, and a copy of the decision is sent to each party to the appeal and to the Office of Personnel Management (OPM). Section 7701(b). There is a 30 day hiatus before that decision becomes final, and in that time either party may petition the Board for review. In addition the Director of the OPM may petition the Board for review if he believes the decision is wrong and will impact the civil service. The Board can also reopen and reconsider the case on its own motion. Section 7701(e)(1). By regulation the Board has lengthened the period allowing for administrative review from 30 to 35 days. See 5 C.F.R. § 1201.112.
The 35 day waiting period before an initial decision becomes final is integral to the
Section 7701 sets forth a skeletal rubric of the Board procedures in appeals from adverse federal agency employment actions, leaving the Board to flesh out its own procedures through regulations. See § 7701(a) and (j).
Part 1201 of 5 C.F.R. parallels the statutory provisions of Chapter 77, 5 U.S.C. Subpart B, 5 C.F.R. 1201.11 et seq., covers hearing procedures for appellate cases before the Board. Subpart D, 5 C.F.R. § 1201.151 et seq., covers the procedures in cases involving allegations of discrimination, that is, mixed cases. Paralleling § 7701(a)(1), Subpart D, states that
5 C.F.R. § 1201.152.
Within Subpart B, C.F.R. §§ 1201.111-1201.118 set forth the procedure by which the Board arrives at a final decision. Section 1201.111(a) states that "the presiding official shall prepare an initial (or recommended) decision within 25 days of the closing of the record." Section 1201.111(b) lists what must be included in an initial decision:
Section 1201.113 provides that "the initial decision of the presiding official shall become
Clearly review in federal court is to be sought only after the initial decision of the presiding official becomes final. The regulations refer to the initial decision of the presiding official as merely a "recommended" decision which is not even effective until 35 days have passed. Section 1201.118 specifically states that review in federal court may be pursued after a final Board decision issues, which does not occur until administrative remedies have been exhausted. In a case where no one seeks review by the Board of the initial decision no new decision issues and the initial decision becomes the final decision of the Board after 35 days. From that date the employee who is aggrieved by the final Board decision has 30 days to file for review in federal court.
These regulations are controlling in this case since nothing in Subpart D, which governs the procedures in mixed cases, expressly provides otherwise. To the contrary, 5 C.F.R. § 1201.158, under Subpart D, provides:
We hold that the 30 day limitations period to appeal to federal district court from a Board decision in a mixed case runs from the point an individual receives notice of the final Board decision in his or her case. When no one seeks administrative review of the initial decision of the presiding official no new notice is sent, and the passage of the 35 days from the time the initial decision issues converts the initial decision into the final decision of the Board. The initial decision itself notifies the parties that it will become the final decision of the Board in 35 days if no further administrative review is sought. The employee thus "receives notice" of the final decision of the Board on the very day the initial decision becomes the final decision of the Board, and must file for judicial review within 30 days of that date.
Ballard's complaint was timely filed.
Ballard named the wrong defendants when his case was initially filed.
As a general rule an appellate court will not consider an issue not raised below. In re White Motor Corporation, 731 F.2d 372, 375 (6th Cir.1984); Brown v. Marshall, 704 F.2d 333, 334 (6th Cir.) cert. den., 464 U.S. 835, 104 S.Ct. 120, 78 L.Ed.2d 119 (1983); Bannert v. American Can Company, 525 F.2d 104, 111 (6th Cir.1975) cert. den., 426 U.S. 942, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976). Seeing no reason to depart from that general rule we do not consider appellees' second argument.
We REVERSE and REMAND this case for further proceedings consistent with this opinion.
If review of a Board decision by the EEOC is sought, there are four additional situations which present judicially reviewable actions, depending on what course the EEOC and the Board take:
There was no subsection separately dealing with mixed cases.
See § 7702(b) as added to Ch. 77 by Sec. 205 of S. 2640 as passed by the Senate on Sept. 13, 1978.
§ 7701(j) provides:
It is unfortunate that the clearest statement regarding the time limitations for seeking review of a Board decision in a mixed case is not in the statute or the regulations but in a pamphlet distributed by the Board.