Larry D. Urban v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3027
LARRY D. URBAN
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Hak K. Dickenson, H.K. Dickenson & Associates, PLLC, of Houston, Texas,
argued for petitioner.
Michael A. Carney, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, argued for respondent. With him on the
brief were B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General
Counsel, and Sara B. Rearden, Acting Associate General Counsel.
Appealed from: United States Merit Systems Protection Board

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Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3027
LARRY D. URBAN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
DECIDED: July 17, 2007
Before LOURIE, SCHALL, and PROST, Circuit Judges.
SCHALL, Circuit Judge.
DECISION
Larry D. Urban petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) that dismissed his appeal for lack of jurisdiction. Relying on
Connor v. United States Postal Service, 15 F.3d 1063 (Fed. Cir. 1994), the Board held
that Mr. Urban’s prior filing of a district court alleging age discrimination precluded him
from filing a discrimination appeal with the Board. Urban v. Dep’t of Transp., No. DA-

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0351-06-0066-I-1 (M.S.P.B. July 24, 2006).1 We affirm-in-part, vacate-in-part, and
remand.
DISCUSSION
I.
Mr. Urban was employed as an Air Traffic Control Specialist (“ATCS”) with the
Automated Flight Services Station (“AFSS”), Flight Services Unit, Air Traffic
Organization, of the Federal Aviation Administration (“FAA” or “agency”), at the Flight
Service Station located in Fort Worth, Texas. On February 18, 2005, the Vice President
of the Flight Services Unit, Air Traffic Organization, certified members of the AFSS as
“surplus,” thereby signaling that the identified employees were likely to face
displacement through a future reduction in force (“RIF”).
On March 31, 2005, in response to the certification, Kathleen Breen and other
ATCS employees, including Mr. Urban, filed a civil class action in federal district court
(hereinafter referred to as the “class action suit”), which they later supplemented with a
June 24, 2005 amended complaint. As stated in the complaint the purpose of the suit
was “to challenge unlawful age discrimination in employment by the FAA pursuant to
the Age Discrimination in Employment Act [‘ADEA’].” The “common question”
presented in the complaint was “whether [the agency] discriminated against the over-40
class members . . . by the FAA’s decision to eliminate these persons’ federal
employment and related benefits,” given that 92% of the affected Flight Service
Controllers were over age forty. In that regard, the plaintiffs alleged that the agency’s
1 Mr. Urban did not petition the Board for review of the administrative
judge’s (“AJ’s”) initial decision, so the initial decision became the final decision of the
Board on August 28, 2006.
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decision to effect their separations would allow the agency to replace them with younger
workers as contractors. According to the complaint, each of the class members also
asserted individual claims of age discrimination on his or her own behalf.
On March 18, 2005, the agency issued two job announcements for positions in
Alaska that would not be subject to the RIF. Mr. Urban applied for the positions but was
not selected for either of them. On July 19, 2005, the agency issued a RIF notice to Mr.
Urban informing him that he would be removed from his position effective October 3,
2005. Attachment A to the RIF notice advised affected employees of their appeal rights.
The attachment advised bargaining unit members such as Mr. Urban, who wished to
challenge the RIF for reasons involving allegations of discrimination, that they could
elect to file a grievance, pursue a Board appeal, or lodge an Equal Employment
Opportunity (“EEO”) complaint.
Pursuant to the RIF, Mr. Urban was removed from his position effective October
3, 2005. On November 2, 2005, Mr. Urban filed an appeal with the Board, alleging in
paragraph 3a of his appeal document that the FAA had discriminated against him on the
basis of his age in connection with the open Alaska positions because other younger
employees not immediately eligible for retirement were given more consideration for the
positions than he was.2 Paragraphs 3b, 3c, and 3d of his appeal document made
additional claims with respect to the RIF.3
On November 21, 2005, the agency moved to dismiss the Board appeal for lack
of jurisdiction, relying upon this court’s decision in Connor, to argue that Mr. Urban’s
election to seek a remedy in the class action suit precluded him from pursuing the same
2 We refer to this claim as Mr. Urban’s “discrimination claim.”
3 We refer to these claims as Mr. Urban’s “non-discrimination claims.”
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matter before the Board. Thereafter, on January 23, 2006, Mr. Urban’s counsel sent a
letter to counsel representing the class action suit plaintiffs seeking Mr. Urban’s
withdrawal from that suit. Counsel for the class action suit plaintiffs submitted a motion
to the district court seeking Mr. Urban’s withdrawal on January 25, 2006, and the court
granted the motion on March 31, 2006. However, on July 24, 2006, the AJ dismissed
Mr. Urban’s Board appeal, ruling that Connor precluded him from filing a Board appeal
concerning the same matter raised in the class action suit. Urban, slip op. at 9. The AJ
also ruled that the Board generally lacks jurisdiction over appeals regarding
nonselection for a vacant position and so lacked jurisdiction in this case to review Mr.
Urban’s claim of nonselection for one of the Alaska positions. Id.
II.
Our scope of review in an appeal from a decision of the Board is limited.
Specifically, we must affirm the Board’s decision unless it is found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been followed; or
unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &
Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). Whether the Board has
jurisdiction to adjudicate a particular appeal is a question of law that we review de novo.
Kings v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996).
We see no error in the Board’s ruling that, under Connor, Mr. Urban’s election to
pursue a civil action challenging the RIF as a violation of the ADEA precluded him from
pursuing an appeal with the Board concerning the same matter.
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In Connor, the United States Postal Service removed Charles Connor from his
position. Following his removal, Connor filed a discrimination complaint with the Postal
Service. Under then existing regulations, Connor had the option of filing an appeal with
the Board or filing a civil action in district court, if the agency did not issue a judicially
reviewable decision within 120 calendar days. While his discrimination complaint was
pending before the Postal Service, Connor amended a complaint he previously had filed
in federal district court to include a count based on his removal. Later, when Connor
sought to appeal his removal to the Board, the Board dismissed the appeal for lack of
jurisdiction on the ground that his right to appeal to the Board had been extinguished by
his amendment of the district court complaint to include a challenge to his removal.
Upon petition for review of the Board’s dismissal, we held that Connor had effectively
elected the district court action when he amended his complaint there, and that
therefore a subsequent appeal to the Board was foreclosed by existing regulations.4
Accordingly, we affirmed the Board’s decision.
In this case, Mr. Urban had three options for bringing a challenge to his removal
based upon a claim of discrimination. He could elect to file (1) a grievance in
accordance with the memorandum of agreement between the National Association of
Air Traffic Specialists and the FAA, (2) a mixed case administrative complaint with the
agency, or (3) a mixed case appeal with the Board. As in Connor, the regulations
foreclose litigating the same case through both the administrative process and United
4 The regulations relied on by the court in Connor have been superseded
and do not apply to this case. Effective October 1, 1992, 29 C.F.R. § 1613 was
replaced by 29 C.F.R. § 1614, which now governs administrative complaints and
appeals alleging employment discrimination filed by federal employees and applicants
for federal employment. 57 Fed. Reg. 12,634 (1992). However, the underlying
reasoning from Connor is still sound and may be applied to the present case.
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States’ courts. Part 1614 of title 29 of the Code of Federal Regulations, entitled
“Federal Sector Equal Employment Opportunity,” sets forth the policies and procedures
for complaints of employment discrimination including, inter alia, age discrimination.
The regulations explicitly note that a complainant may bring an age discrimination claim
by filing an administrative complaint. Alternatively, a complainant may bypass the
administrative process and file a civil action in district court.5 In the case of a mixed
case complaint, the regulations allow the complainant to file a complaint with the
agency, or the complainant may bypass the agency and file an appeal with the Board.6
5 29 C.F.R. § 1614.201(a) states
As an alternative to filing a complaint under [Part 1614. Federal Sector
Equal Employment Opportunity], an aggrieved individual may file a civil
action in a United States district court under the ADEA against the head of
an alleged discriminating agency after giving the Commission not less
than 30 days’ notice of the intent to file such an action.
(Emphases added).
6 29 C.F.R. § 1614.302(a) defines
(1) Mixed case complaint. A mixed case complaint is a complaint of
employment discrimination filed with a federal agency based on race,
color, religion, sex, national origin, age or handicap related to or stemming
from an action that can be appealed to the Merit Systems Protection
Board (MSPB). The complaint may contain only an allegation of
employment discrimination or it may contain additional allegations that the
MSPB has jurisdiction to address.
(2) Mixed case appeals. A mixed case appeal is an appeal filed with the
MSPB that alleges that an appealable agency action was effected, in
whole or in part, because of discrimination on the basis of race, color,
religion, sex, national origin, handicap or age.
29 C.F.R. § 1614.302 states, in relevant part
An aggrieved person may initially file a mixed case complaint with an
agency pursuant to this part or an appeal on the same matter with the
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Thus, the regulatory framework makes various options available to a claimant.
However, a claimant must choose to pursue one path and “cannot simultaneously
litigate the same case in the United States Courts and in the administrative process.”
Connor, 15 F.3d at 1065 (quoting Colon v. Chairman of Bd. of Dirs. of Fed. Deposit Ins.
Corp., 723 F. Supp. 842, 844 (D.P.R. 1989)).
Mr. Urban was advised via attachment A to the RIF notice on July 19, 2005, of
his right to elect one of the available forums to challenge the RIF action and that “[t]he
first appeal that you file will be considered the forum in which you have elected to
pursue your claim.” Mr. Urban was a party to the district court class action at the time
he received the RIF notice; yet it was not until January 23, 2006, that he attempted to
withdraw from the class action suit⎯over two months after he filed his Board appeal
and over six months after he received notice of his several appeal options. Under these
circumstances, the Board did not err in determining that Mr. Urban elected to pursue his
age discrimination challenge to the RIF action in district court. Therefore it did not have
jurisdiction over his subsequent appeal to the Board concerning the same matter.
Accordingly, the Board did not err in dismissing the discrimination claim.
However, the Board also dismissed Mr. Urban’s appeal with respect to his non-
discrimination claims. As noted, these are the claims set forth in paragraphs 3b, 3c,
MSPB pursuant to 5 CFR 1201.151, but not both. An agency shall inform
every employee who is the subject of an action that is appealable to the
MSPB and who has either orally or in writing raised the issue of
discrimination during the processing of the action of the right to file either a
mixed case complaint with the agency or to file a mixed case appeal with
the MSPB. The person shall be advised that he or she may not initially file
both a mixed case complaint and an appeal on the same matter and that
whichever is filed first shall be considered an election to proceed in that
forum.
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and 3d of his November 2, 2005 appeal document. These claims appear to be distinct
from the discrimination claim, which is set forth in paragraph 3a of the November 2,
2005 appeal document and which was part of the class action suit. Our reasoning in
Connor is not dispositive of the Board’s jurisdiction over these other claims.
The Board’s jurisdiction is not plenary; it is limited to those matters over which it
has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Sys. Prot. Bd.,
759 F.2d 9, 10 (Fed. Cir. 1985). The Board noted in this case that it generally lacks
jurisdiction to consider an appeal regarding nonselection for a vacant position. Urban,
slip op. at 9 (citing Nashkin v. Dep’t of Justice, 98 M.S.P.R. 524, 528 (2005);
Metzenbaum v. Gen. Servs. Admin., 83 M.S.P.R. 243, 246 (1999)). This proposition is
correct in that there is no general right of appeal to the Board available to individuals
who are not selected for a particular position within an agency. However, Mr. Urban
argues that the Board has jurisdiction over claims involving “[e]mployment of another
applicant when the person who wishes to appeal to the Board is entitled to priority
employment consideration after a reduction-in-force action,” quoting 5 C.F.R.
§ 1201.3(a)(13). The Board did not consider this potential basis for jurisdiction. Neither
did it consider whether any of the other non-discrimination claims in paragraphs 3b, 3c,
and 3d of the November 2, 2005 appeal document provided it with jurisdiction.
For the foregoing reasons, the final decision of the Board is affirmed insofar as
the Board (i) held, based upon Connor, that it lacked jurisdiction over Mr. Urban’s
discrimination claim and (ii) dismissed that claim. However, we vacate the balance of
the Board’s dismissal of Mr. Urban’s appeal and remand the case to the Board for
further proceedings. On remand, after briefing from the parties, the Board should
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2007-3027 9
determine whether it has jurisdiction over any of Mr. Urban’s non-discrimination claims,
those being the claims set forth in paragraphs 3b, 3c, and 3d of the November, 2, 2005
appeal document.

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