Krishna Murthy v. Thomas J. Vilsack , Secretary , United States Department of Agriculture

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 2010 Decided June 25, 2010
No. 09-5026
KRISHNA M URTHY ,
APPELLANT
v.
THOMAS J. VILSACK , SECRETARY , UNITED STATES
DEPARTMENT OF AGRICULTURE ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-02208-RJL)
David A. Branch argued the cause and filed the briefs for
appellant.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Ronald C. Machen, Jr.,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: ROGERS , TATEL and GRIFFITH , Circuit Judges.

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Opinion for the Court by Circuit Judge ROGERS .
ROGERS , Circuit Judge: Dr. Krishna Murthy sued the
Secretary of Agriculture for breach of the terms of a settlement
agreement and for non-selection to a GS-15 position in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. The district court transferred the contract claims to the
Court of Federal Claims pursuant to 28 U.S.C. § 1631 and
granted summary judgment on the Title VII non-selection claim
for failure to exhaust administrative remedies. Murthy appealed.
By order of July 10, 2009 this court dismissed Murthy’s appeal
of the transfer of the contract claims for lack of jurisdiction.
Murthy v. Vilsack, Order, No. 09-5026 (D.C. Cir. July 10, 2009)
(citing 28 U.S.C. § 1292(d)(4)(A)). The question now is
whether, despite the transfer of some claims, this court has
jurisdiction to review the grant of summary judgment on the
remaining Title VII non-selection claim. We conclude that we
do, and we affirm.
I.
According to his complaint, Dr. Krishna Murthy worked at
the U.S. Department of Agriculture for twenty-seven years, most
recently as a GS-14, step 10 veterinarian in Food Safety and
Inspection Services. Throughout his tenure, despite his
“exemplary” performance, he was “repeatedly” denied
promotions to GS-15 and has consequently filed equal
employment opportunity (“EEO”) complaints against the
Department. Cmplt. ¶ 5. He also was “instrumental” in
initiating a class charge filed with the Equal Employment
Opportunity Commission (“EEOC”) by Asian/Pacific Islander
employees alleging discrimination by the Department in denying
promotions. Cmplt. ¶ 6. A settlement agreement of the class
charge was approved by the EEOC in December 2004. Arun C.
Basu, et al. v. Veneman, Dep’t of Agriculture, EEOC No. 100-

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A1-7863X. However, Murthy did not learn the settlement had
been approved until after the thirty-day period to object had
passed. Three of the six class agents received “significant
individual relief, including retroactive promotions and payments
of $100,000 to $300,000,” while he, although also a class agent,
“was designated to receive only $40,000 and a two step increase
at his current grade 14 step 8 position.” Cmplt. ¶ 10. Murthy
filed a notice of breach of the settlement agreement with the
Department and later complained to the EEOC contesting the
fairness of the settlement agreement. The EEOC denied his
petition and request for reconsideration.
Murthy then filed two charges with the EEOC: on June 28,
2006 seeking promotion to GS-15, and on August 17, 2006
alleging a violation of the settlement agreement and
discrimination and reprisal when he was not selected for a GS-
15 Associate Deputy Administrator position. On December 26,
2006 — 131 days after filing his August 17, 2006 EEOC charge
— Murthy filed a complaint in the federal district court. In
count one, he alleged discrimination in violation of Title VII
when the Department denied him promotions to GS-15 in June
and August 2006. He also alleged discrimination and retaliation
in violation of Title VII when he was provided “significantly
less relief” under the settlement agreement than other class
agents and was not provided timely notice of his right to object.
Cmplt. ¶ 17. He sought placement in a GS-15 or comparable
position and compensatory damages, including front and back
pay and benefits. In count two, he alleged breach of contract
because he was provided “significantly less” under the
settlement agreement than other class agents and was not
provided timely notice of his right to object. Cmplt. ¶ 18. He
sought rescission of the settlement agreement as it applied to
him, damages equal to his accumulated lost wages and benefits
as well as future lost wages, and damages for financial and
emotional harm.

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The district court transferred Murthy’s breach of the
settlement agreement claims in count 2 and also the non-
promotion claims in count 1 determined to arise under the
settlement agreement to the Court of Federal Claims, which has
exclusive jurisdiction over contract claims against the United
States for more than $10,000, see 28 U.S.C. § 1491(a)(1);
Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007). The
district court reasoned that Murthy’s claims of discrimination
and retaliation relative to the other class agents were primarily
contract claims for breach of the settlement agreement. The
district court granted summary judgment on Murthy’s remaining
Title VII non-selection claim because he failed to exhaust his
administrative remedies when he filed his lawsuit prior to the
expiration of Title VII’s 180-day waiting period. Murthy v.
Schafer, 579 F. Supp. 2d 110 (D.D.C. 2008).
II.
Pursuant to 28 U.S.C. § 1631, the district court may transfer
a civil action for lack of jurisdiction. Section 1631 provides:
Whenever a civil action is filed in a [qualifying
federal] court . . . and that court finds that there is a
want of jurisdiction, the court shall, if it is in the
interest of justice, transfer such action or appeal to any
other such court in which the action or appeal could
have been brought at the time it was filed . . ., and the
action or appeal shall proceed as if it had been filed in
. . . the court to which it is transferred on the date upon
which it was actually filed in . . . the court from which
it is transferred.
In Hill v. Henderson, 195 F.3d 671 (D.C. Cir. 1999), the district
court dismissed one of four counts in a complaint and ordered
the remaining counts transferred to the Northern District of

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Illinois based on venue. Id. at 672 (citing 28 U.S.C. § 1404(a)).
When Hill appealed the dismissal, this court held that it lacked
jurisdiction for want of a final judgment, in the absence of an
order under Federal Rule of Civil Procedure 54(b). Hill, 195
F.3d at 674. The court stated that the dismissed count should
“tag[] along” with the transferred counts to best effectuate “[t]he
efficiencies sought to be achieved by the final judgment rule.”
Id. The court reasoned that unlike dismissal of parties, see
Reuber v. United States, 773 F.2d 1367 (D.C. Cir. 1985),
dismissal of claims seemed more likely to achieve these
efficiencies given the “greater probabilities that circumstances
will moot dismissal of the appeal (e.g., by overall settlement, or
by a recovery on one of the claims that effectively compensates
plaintiff for loss under the dismissed claim), and that issues
between the two (hypothetical) appeals will overlap.” Hill, 195
F.3d at 674. Viewing “the appealability of the claim dismissal
[to] . . . flow[] to the transferee circuit,” the court stated that the
dismissed count would be subject to appellate review by the
Seventh Circuit Court of Appeals “on the issuance of a final
judgment by the [district court in the] Northern District of
Illinois.” Id. at 675, 678.
Ordinarily, the principles in Hill would counsel declining
jurisdiction over the grant of summary judgment on Murthy’s
Title VII non-selection claim and permitting the Federal Circuit
to undertake eventual review of all of the claims in Murthy’s
complaint, including the Title VII non-selection claim.
However, the Court of Federal Claims and the Federal Circuit
are courts of specialized jurisdiction. Although the Federal
Circuit has exclusive jurisdiction over an appeal from a final
decision of the Court of Federal Claims, see 28 U.S.C.
§ 1295(a)(3), the Court of Federal Claims lacks jurisdiction over
claims “sounding in tort,” 28 U.S.C. § 1491(a)(1). This court
observed in Greenhill, 482 F.3d at 574, that “the Court of
Federal Claims has no jurisdiction over Title VII claims.” The

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Federal Circuit has held that section 1631 permits partial
transfers to the Court of Federal Claims and considers
transferred claims to be bifurcated from untransferred claims.
See United States v. County of Cook, Ill., 170 F.3d 1084, 1089
(Fed. Cir. 1999). As a result, neither the Court of Federal
Claims nor the Federal Circuit upon appeal will review the
dismissal of the untransferred claims.
Because of the specialized jurisdiction of the Court of
Federal Claims and the Federal Circuit’s treatment of partial
transfers, neither the federal district court nor the Court of
Federal Claims could exercise jurisdiction over all of the claims
in Murthy’s complaint. This court recognized in Hill, 195 F.3d
at 678, that an exception to the tag-along approach might be
required where the transferee court could not adjudicate the
dismissed claim. This is such a case. Were this court to decline
to exercise appellate jurisdiction, the grant of summary
judgment on the Title VII non-selection claim would
“completely elude review,” Hill, 195 F.3d at 676. There may be
a risk that some part of the case could be transferred back to the
district court, but that risk is minimized here because Murthy
has not appealed the transfer order to the Federal Circuit, see 28
U.S.C. § 1292(d)(4)(A), and the deadline for such an appeal has
passed, see FED . R. APP . P. 4(a)(1)(B).
In other circumstances it would be preferable to exercise
appellate jurisdiction based upon a Rule 54(b) order in which the
district court made the required finding of “no just reason for
delay,” given the separability of the affected claims. But here
requiring a Rule 54(b) certification “would . . . not ensure only
a single appeal — one of the objectives of the final judgment
rule” and would “risk needless complications.” United States ex
rel. Hampton v. Columbia/HCA Healthcare Corp., 318 F.3d
214, 217 (D.C. Cir. 2003); see also United States v. County of
Cook, Ill., 167 F.3d 381, 384 (7th Cir. 1999).

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Accordingly, this court will exercise appellate jurisdiction
over the grant of summary judgment on Murthy’s Title VII non-
selection claim.
III.
Title VII permits an aggrieved federal employee to file a
civil action in the district court 180 days after the filing of a
charge with the EEOC, when the EEOC has taken no final
action. 42 U.S.C. § 2000e-16(c). In Martini v. Federal National
Mortgage Ass’n, 178 F.3d 1336, 1347 (D.C. Cir. 1999), this
court construed the 180-day period in Title VII’s enforcement
provisions, 42 U.S.C. § 2000e-5. The court interpreted the 180-
day period in 42 U.S.C. § 2000e-5(f)(1), under which the EEOC
may authorize private suits, to be a mandatory waiting period.
Observing that Congress had imposed a “mandatory and
unqualified” duty on the EEOC to investigate charges and that
the legislative history indicated Congress “‘hoped that recourse
to . . . private lawsuit will be the exception and not the rule,’”
the court concluded that EEOC’s power to authorize private
suits within 180 days would undermine both its statutory
investigatory duty and Congress’ policy of encouraging informal
“resolution up to the 180th day.” Martini, 178 F.3d at 1346–47
(quoting 118 CONG . REC . 7168). Rejecting a suggestion of
futility based upon EEOC’s lack of resources, and finding no
equitable considerations warranting an exception to the 180-day
requirement, the court held that Martini’s lawsuit was untimely
because it was filed less than 180 days after the filing of the
EEOC charge, vacated the district court’s judgment, and
remanded the case with instructions for the district court to
dismiss the complaint without prejudice. See id. at 1348.
The reasoning in Martini applies no less to the 180-day
period in section 2000e-16(c). Section 2000e-16 provides that
a federal employee must wait 180 days, absent final action by

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the EEOC, before filing a lawsuit in the federal district court and
that any civil suit shall be filed “as provided in § 2000e-5,” and,
specifically, that section 2000e-5(f) through (k) shall govern.
See 42 U.S.C. § 2000e-16(c), (d). The reasoning in Martini that
permitting exceptions would undermine the purpose of the 180-
day waiting period in section 2000e-5(f)(1) supports reading the
180-day waiting period in section 2000e-16(c) as mandatory,
and Murthy provides no reason to read it otherwise. Although
worded somewhat differently, the 180-day period in section
2000e-16(c) serves the same purpose as the 180-day period in
section 2000e-5(f)(1), as interpreted in Martini. Congress
sought to allow a period for the EEOC to investigate and attempt
to resolve charges through conciliation; in the absence of an
agreeable resolution or when the EEOC took no action,
Congress determined lawsuits could be filed in federal district
court by an aggrieved party. This conclusion about the purpose
of the 180-day period is consistent with the Supreme Court’s
observation in Brown v. General Services Admininistration, 425
U.S. 820, 832–33 (1976), that the filing of lawsuits by federal
employees “after 180 days” is part of Title VII’s “careful blend
of administrative and judicial enforcement powers,” and that the
provision authorizing lawsuits after 180 days incorporates Title
VII’s enforcement provisions, see id. at 832.
Murthy’s attempts to avoid the consequences of the
mandatory 180-day waiting period fail. First, the filing of an
amended complaint after the 180-day period expired cannot cure
the failure to exhaust. Section 2000e-16(c) provides an
aggrieved federal employee may file a civil action “after one
hundred and eighty days from the filing of the initial charge”
when the EEOC has failed to take final action. As with
permitting the EEOC to authorize a private suit before the
expiration of the 180-day period in Martini, allowing Murthy to
cure his failure to exhaust administrative remedies by amending
his complaint would contravene EEOC’s investigative duty and

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undermine Congress’ policy of encouraging informal resolution
“up to the 180th day.” Martini, 178 F.3d at 1346–47.
Second, Murthy’s argument that he had to file his civil
action related to his contract claims within 90 days of the
EEOC’s September 2006 decision on those claims, see 42 U.S.C.
§ 2000e-16(c), is forfeited. Murthy raised this argument only in
his motion to alter or amend the judgment pursuant to Federal
Rule of Civil Procedure 59(e), and “issues not raised before
judgment in the district court are usually considered to have been
waived on appeal,” Whelan v. Abell, 48 F.3d 1247, 1251 (D.C
Cir. 1995). His argument touches upon several complex issues
regarding Title VII’s administrative exhaustion requirements and
the Supreme Court’s decision in National Railroad Passenger
Corp. v. Morgan, 536 U.S. 101 (2002), none of which has been
adequately briefed. Moreover, there is a split in the circuits
regarding whether after Morgan “a claim arising after the filing
of a formal administrative complaint must be raised with . . . [an]
agency’s [Office of Equal Employment Opportunity] before
being brought before a district court.” Weber v. Battista, 494
F.3d 179, 183–84 (D.C. Cir. 2007).
Finally, contrary to Murthy’s suggestion, res judicata will
not bar the filing of a new Title VII non-selection civil action
after he exhausts his EEOC remedies. In granting summary
judgment on the Title VII non-selection claim, the district court
did not dismiss Murthy’s complaint without prejudice, as in
Martini, 178 F.3d at 1348. However, where an action is
prematurely filed or the plaintiff has failed to satisfy a
precondition to suit, a final judgment for the defendant “does not
bar another action by the plaintiff instituted after the claim has
matured, or the precondition has been satisfied.” RESTATEMENT
(SECOND ) OF J UDGMENTS § 20(2) (2009). The Secretary
acknowledges in his brief that such a new claim “would not face
res judicata problems from the District Court’s decision here

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because that decision necessarily did not reach the merits of his
new basis for arguing exhaustion.” Appellee’s Br. at 23 (citing,
e.g., I.A.M. Nat’l Pension Fund v. Indus. Gear Mfg. Co., 723
F.2d 944, 946–47 (D.C. Cir. 1983)); see also Ali v. Dist. of
Columbia, 278 F.3d 1, 9 (D.C. Cir. 2002).
Accordingly, we affirm the grant of summary judgment.

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