UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1907

ZONNYTTA BOLTON,

Plaintiff - Appellant,

v.

CAROLYN W. COLVIN, Acting Commissioner of Social Security; 

OFFICE OF PERSONNEL MANAGEMENT,

Defendants - Appellees.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Loretta C. Biggs,

District Judge. (1:14-cv-00151-LCB-LPA)

Argued: December 6, 2016 Decided: January 5, 2017

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished 

per curiam opinion. 

ARGUED: Phillip R. Kete, Chesapeake Beach, Maryland, for 

Appellant. Sydney Foster, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Appellees. ON BRIEF: Norman B. Smith, 

SMITH, JAMES, ROWLETT & COHEN, LLP, Greensboro, North Carolina, 

for Appellant. Benjamin C. Mizer, Principal Deputy Assistant 

Attorney General, Marleigh D. Dover, Civil Division, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Ripley Rand, 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Greensboro, North Carolina, for Appellees.
2

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

After being demoted from her paralegal specialist 

position with the Social Security Administration (“SSA”), 

Zonnytta Bolton appealed to the Merit Systems Protection Board 

(“MSPB”), contending that her demotion resulted from 

discrimination and improper personnel procedures. After Bolton 

provided notice that resolution of her claim involved 

interpretation of regulations promulgated by the Office of 

Personnel Management (“OPM”), the MSPB sua sponte bifurcated her 

appeal into an individual challenge to her demotion and a claim 

seeking review of those OPM regulations. Because of this 

bifurcation, which Bolton did not request and consistently 

questioned, the MSPB decided her claim regarding the applicable 

regulations first, and Bolton appealed that decision to the 

Court of Appeals for the Federal Circuit. 

After exhausting MSPB remedies with regard to the 

individual demotion claim, Bolton then sought review of that 

claim in the Middle District of North Carolina, raising two 

discrimination claims and six non-discrimination claims. The 

district court concluded that when Bolton filed her appeal with

the Federal Circuit, she waived district court review of her 

discrimination claims. Therefore, it dismissed her entire case 

for lack of subject matter jurisdiction. For the reasons that 
4

follow, we affirm in part, reverse in part, and remand for 

further proceedings.

I.

 On October 24, 2011, Bolton, a hearing-impaired 

employee with the SSA, was demoted from a GS-12 paralegal 

specialist position to a GS-8 senior case technician position. 

She filed an administrative appeal with the MSPB, claiming that 

her demotion violated 5 U.S.C. § 4303 (providing rights and 

safeguards to which a government employee is entitled before 

demotion); 5 C.F.R. § 432.104 (providing criteria necessary to 

demote an employee); and the Rehabilitation Act of 1973, 29 

U.S.C. § 791 (prohibiting disability discrimination by programs 

receiving federal financial assistance). She also argued that 

her demotion involved an improper personnel procedure, that is, 

the SSA did not have an OPM-approved performance appraisal 

system as required by 5 C.F.R. § 432.104.

A few months later, Bolton filed a “motion for notice

to the O[PM],” explaining “the interpretation of an OPM 

regulation [wa]s at issue” in her case. J.A. 58 (capitalization 

omitted);1 see also 5 U.S.C. § 7701(d)(2) (“The [MSPB] shall 

promptly notify the Director [of the OPM] whenever the 

 1 Citations to the “J.A.” refer to the Joint Appendix 

filed by the parties in this appeal.
5

interpretation of any civil service law, rule, or regulation 

under the jurisdiction of the O[PM] is at issue in any 

proceeding under this section.”). Thereafter, the MSPB did not 

rule on the motion, but rather, bifurcated Bolton’s case into 

one claim based on discrimination and improper personnel 

procedures, see Bolton v. Soc. Sec. Admin., No. DC-0432-12-0121-

I-1 (the “individual case”), and one claim seeking review of OPM 

regulations, see Bolton v. Office of Pers. Mgmt., No. CB-1205-

12-0011-U-1 (the “regulation-review case”). Bolton had not 

requested bifurcation; the MSPB simply bifurcated of its own 

accord, relying solely on Bolton’s motion for notice. The cases 

then progressed on two different tracks, despite the fact that

Bolton filed a statement with the MSPB in March of 2012 stating, 

“The record should be clear that Ms. Bolton did not file a . . . 

request for [regulation] review . . .” J.A. 144. 

On June 5, 2012, a single administrative law judge 

for the MSPB (the “ALJ”) issued its initial decision in the 

individual case. The ALJ upheld the SSA’s decision to demote 

Bolton, concluding: the SSA’s performance appraisal system was 

properly approved by OPM; it remained an “approved” system at 

the time Bolton was demoted; and the SSA’s performance standards 

were valid, permitted [an] accurate evaluation of Bolton’s job 

performance, and were adequately communicated to her. J.A. 77-

84. As for Bolton’s allegations of disability discrimination, 
6

the ALJ found that Bolton did not present sufficient evidence of 

harassment, retaliation, failure to accommodate, or 

discrimination based on disparate treatment. Finally, the ALJ 

found that the SSA did not violate Bolton’s due process rights 

in ordering her demotion. Bolton filed a petition for review of 

this decision with the full three-judge MSPB.

Three days later, on June 8, 2012, Bolton filed a 

statement in the regulation-review case, arguing generally that 

OPM’s regulations “result in the commission of prohibited 

personnel practices,” and suggesting that the problem may be 

“government-wide” rather than limited to the SSA. J.A. 146 

(capitalization omitted). Then, while the petition for review 

in the individual case was pending, the MSPB issued a final 

decision in the regulation-review case on April 2, 2013, 

declining to review Bolton’s claim in part because it “ha[d] 

been reached . . . in her individual [MSPB] appeal.” J.A. 190.

On June 4, 2013, Bolton filed an appeal of the MSPB’s 

regulation-review decision with the Federal Circuit. See ECF 

No. 1, Bolton v. Office of Pers. Mgmt., No. 13-3123 (Fed. Cir. 

June 4, 2013); see also J.A. 199. The sole issue in that appeal 

was whether the Federal Circuit should “set aside [the] MSPB 

decision to not review certain OPM regulations,” because the 

MSPB failed to “explain why th[ose] regulations should not be 

reviewed.” J.A. 224, 231. 
7

On July 25, 2013, Bolton filed a motion to stay in the 

Federal Circuit pending a final decision from the MSPB in her 

individual case. She explained, “The peculiar history of the 

case . . . makes it unlikely, albeit not impossible, that a 

decision by this court will be necessary, because any judicial 

review Ms. Bolton seeks will be provided by an appropriate 

federal district court.” J.A. 203. OPM opposed the motion and 

filed a motion to dismiss for lack of jurisdiction because the 

MSPB did not decide the regulation-review case on its merits. 

The Federal Circuit denied the stay and motion to dismiss 

without explanation. Then, on January 24, 2014, the full MSPB 

denied Bolton’s petition for review in the individual case.

With her regulation-review appeal still pending in the 

Federal Circuit, on February 21, 2014, Bolton filed the instant 

action against OPM and the Acting Commissioner of the SSA 

(collectively, “Appellees”) in the Middle District of North 

Carolina. The operative complaint, amended on August 15, 2014, 

contains the following eight claims:

• discriminatory demotion (Count One); 

• failure to accommodate Bolton’s hearing 

disability (Count Two); 

• failure to establish, communicate, and 

use statutory performance standards in 

demoting Bolton (Count Three); 
8

• improper demotion of Bolton without 

certain statutory and regulatory 

preconditions (Count Four);

• improper use of statute for demoting 

Bolton without OPM review for 

compliance (Count Five);

• due process violations (Counts Six and 

Seven); and

• administrative challenge to OPM’s 

approval of 50 agencies’ performance 

appraisal systems, and OPM’s 

promulgation of requirements for such 

approval (Count Eight).

On April 1, 2014, Bolton filed a request to voluntarily dismiss 

her regulation-review appeal, which the Federal Circuit granted 

the following day.

In the district court, Appellees filed a motion to 

dismiss, arguing, inter alia, that Bolton waived her 

discrimination claims, depriving the district court of 

jurisdiction. The motion was referred to a magistrate judge, 

who recommended the motion be granted. The district court 

dismissed the amended complaint on July 7, 2015, adopting the 

magistrate judge’s explanation that “absent any authority to the 

contrary, this Court cannot ignore [Bolton]’s waiver of her 

discrimination claims at the Federal Circuit and give her 

another opportunity to litigate them when the Fourth Circuit has 

plainly foreclosed that maneuver.” Bolton v. Colvin, No. 1:14-

cv-151, 2015 WL 2452829, at *5 (M.D.N.C. May 22, 2015) (citing 
9

Pueschel v. Peters, 577 F.3d at 563–64 (4th Cir. 2009)) 

(emphasis supplied), report and recommendation adopted, No. 

1:14-cv-151, 2015 WL 4094127 (M.D.N.C. July 7, 2015). 

Bolton timely noted this appeal, which challenges the 

district court’s dismissal. “In reviewing a district court’s 

dismissal of a claim for lack of [subject matter] jurisdiction 

. . . , we review the court’s factual findings for clear error 

and its legal conclusions de novo.” Al Shimari v. CACI Premier 

Tech., Inc., 840 F.3d 147, 154 (4th Cir. 2016). 

II.

As a matter of background, under the Civil Service 

Reform Act of 1978 (“CSRA”), “a federal employee subjected to 

. . . [a] demotion may appeal her agency’s decision to the 

M[SPB].” Kloeckner v. Solis, 133 S. Ct. 596, 600 (2012); see 

also 5 U.S.C. §§ 7512(3)-(4), 7701(a). In such an appeal, the 

employee “may claim, among other things, that the agency 

discriminated against her in violation of a federal statute.” 

Kloeckner, 133 S. Ct. at 600. If an employee claims she was 

demoted via an improper personnel procedure and alleges that the 

demotion was based on discrimination, this is called a “mixed 

case.” Id. at 601; see also 29 C.F.R. § 1614.302. It is 

undisputed that Bolton’s initial filing with the MSPB was a 

mixed case appeal.
10

The MSPB is not only the main adjudicatory body for 

federal employees subject to a termination, demotion, or other 

adverse employment action, see 5 U.S.C. § 1204(a); it also has a 

“regulation review” function. For example, pursuant to 5 U.S.C. 

§ 1204(a)(4), the MSPB is tasked with “review[ing] . . . rules 

and regulations of the O[PM].” The MSPB “shall review any 

provision” of an OPM rule or regulation “on [the MSPB’s] own 

motion” or “on the granting . . . of any petition for such 

review filed with [MSPB] by any interested person.” 5 U.S.C. 

§ 1204(f)(1)(A)-(B). The MSPB also has the authority to 

determine whether an OPM regulation has been invalidly 

implemented by an agency such as the SSA. See id.

§ 1204(f)(2)(B).

If an employee is displeased with her adverse 

employment action, she can file an appeal to the MSPB, and an 

administrative judge will issue an “initial decision.” 5 C.F.R. 

§ 1201.111. If the initial decision is adverse to the employee, 

she may then petition the full MSPB for review. See 5 U.S.C. 

§ 7701(e). If the full MSPB denies the petition for review, the 

initial decision becomes the final decision. See 5 C.F.R. 

§ 1201.113(b). 

“An employee who is dissatisfied with the MSPB’s 

decision is entitled to judicial review in the United States 

Court of Appeals for the Federal Circuit.” Elgin v. Dep’t of 
11

Treasury, 132 S. Ct. 2126, 2130 (2012); see also 5 U.S.C. 

§ 7703(b)(1)(A). Generally, the Federal Circuit “has exclusive 

jurisdiction over appeals from a final decision of the MSPB.” 

Elgin, 132 S. Ct. at 2131 (internal quotation marks omitted). 

There is an exception that is relevant here: if the MSPB upholds 

the agency’s personnel action in a mixed case, “[t]he employee 

may appeal [the] MSPB decision to either the U.S. Court of 

Appeals for the Federal Circuit or the appropriate federal 

district court.” Pueschel v. Peters, 577 F.3d 558, 563 (4th 

Cir. 2009) (emphasis supplied) (citing 5 U.S.C. § 7703); see 

also Kloeckner, 133 S. Ct. at 604. But we have held, “If the 

employee pursues the mixed case in the Federal Circuit, then she 

abandons her discrimination claims because the Federal Circuit 

lacks jurisdiction to entertain discrimination claims.” 

Pueschel, 577 F.3d at 563.

A.

It is well established that the federal district 

courts possess authority to review “mixed case” appeals from 

MSPB decisions. See Kloeckner, 133 S. Ct. at 604 (citing 5 

U.S.C. §§ 7703(b)(2), 7702(a)(1)); Pueschel, 577 F.3d at 563. 

The district court’s conclusion does not deny this proposition; 

rather, it rests on Bolton’s waiver of the right to seek such 

review. 
12

“[W]aiver is the intentional relinquishment or 

abandonment of a known right.” Wood v. Crane Co., 764 F.3d 316, 

326 n.9 (4th Cir. 2014) (emphasis supplied) (quoting United 

States v. Olano, 507 U.S. 725, 733 (1993)); see also Johnson v. 

Zerbst, 304 U.S. 458, 464 (1938); Little Beaver Enters. v. 

Humphreys Rys., Inc., 719 F.2d 75, 79 (4th Cir. 1983) 

(explaining that waiver is effective “if the acts or conduct of 

one party evidences an intention to” give up certain rights 

(emphasis supplied)).

The district court relied on two distinct actions to 

conclude that Bolton waived her right to pursue her 

discrimination claims in the district court: (1) the filing of 

her appeal in the Federal Circuit, and (2) her representations 

made on the Federal Circuit’s “Statement Concerning 

Discrimination,” also known as “Form 10.” We disagree that 

these actions demonstrated an intentional relinquishment of 

Bolton’s right to district court review.

1.

Federal Circuit Appeal

The district court’s decision that Bolton waived 

review of her mixed case in district court relied heavily on 

this court’s decision in Pueschel v. Peters, 577 F.3d 558 (4th 

Cir. 2009). There we held, “If the employee pursues [a] mixed 

case in the Federal Circuit, then she abandons her 
13

discrimination claims because the Federal Circuit lacks 

jurisdiction to entertain discrimination claims.” Id. at 562; 

see also Williams v. Dep’t of the Army, 715 F.2d 1485, 1490 

(Fed. Cir. 1983). We also stated that a petitioner “cannot 

create a superficial distinction between her claims that have 

gone before the Federal Circuit and the district courts [when] 

they arise out of the same set of facts.” Pueschel, 577 F.3d at 

564.

But the case at hand is markedly different than 

Pueschel. Deborah Pueschel, the erstwhile employee, was 

terminated and denied the opportunity to buy back annual leave 

from her employer. She pursued a mixed case with the MSPB. 

There, she raised a discrimination defense, but the MSPB 

rejected it and upheld the termination. See Pueschel, 577 F.3d 

at 563. Then Pueschel, pursuing her non-discrimination claims,

appealed that decision to the Federal Circuit. See id. After a 

decision on the merits from the Federal Circuit, Pueschel then 

pursued her disability-based discrimination claims in the 

Eastern District of Virginia. See id. at 564. Thus, Pueschel 

herself “bifurcate[d]” her claims by filing an appeal from her 

mixed case in the Federal Circuit and separately pursuing her 

discrimination claims in district court. Id. In other words, 

Pueschel sought “a second bite at the apple” on her 

discrimination claims. Id. (internal quotation marks omitted). 
14

Here, in contrast, the MSPB itself bifurcated Bolton’s 

claim, and Bolton did not wait for a decision from the Federal 

Circuit, but rather, voluntarily dismissed it after she filed 

her district court action. Moreover, Bolton made numerous 

filings in both the MSPB and Federal Circuit, explaining that 

she did not intend for the claims to be separate and that she 

wanted to preserve review of her individual case. See, e.g., 

J.A. 144 (March 26, 2012 filing with MSPB: “[Bolton] did not 

file a . . . request for [regulation] review, at least not 

consciously.”); id. (same: “Bolton has in no way abandoned her 

right to have proper litigation of her prohibited personnel 

practices claim in her individual case.”); id. at 117 (June 12, 

2012 filing with MSPB: requesting an extension of time to file a 

petition for review of the individual case “in order to avoid 

duplication” with the regulation-review case); id. at 202 (July 

15, 2013 filing with Federal Circuit: “Bolton respectfully 

requests the court . . . to suspend the [briefing] schedule 

. . . at least until the M[SPB] issues a decision in [the 

individual case]”); id. at 228 (May 13, 2015 brief filed in 

Federal Circuit: “The motion [for notice to OPM] did not assert 

that the OPM regulations were invalid.”); id. at 229 (same: 

“[T]he merits of [Bolton’s arguments] are in no way before this 

court.”). 
15

Furthermore, the government agencies involved have 

sent mixed signals to Bolton. For example, Appellees admitted 

“judicial review would be available in district court to 

challenge . . . the [MSPB]’s review of [her] mixed case against 

SSA,” despite the fact that she had already filed the Federal 

Circuit appeal. J.A. 278 n.7; see also id. at 218. And on 

April 2, 2013, 14 months after the MSPB itself docketed the 

regulation review case separately, the MSPB then turned around 

and said it could not review her claim because the regulation 

review issue “ha[d] been reached . . . in her individual [MSPB] 

appeal.” Id. at 190. In order to preserve her appeal of that 

issue, however, Bolton was required to file an appeal to the 

Federal Circuit within 60 days. See 5 U.S.C. § 7703(b)(1)(A) 

(“Notwithstanding any other provision of law, any petition for 

review shall be filed within 60 days after [MSPB] issues notice 

of the final order or decision . . . .”). 

In short, Bolton was between a rock and a hard place: 

she could file her appeal with the Federal Circuit and risk 

losing her discrimination claims (which had not even been 

finalized yet), or she could wait until the final decision in 

the individual case and potentially lose her opportunity to 

appeal the regulation-review issue. And it was the Government 
16

who put her in this position. Pueschel simply did not 

contemplate this type of situation.2 

Appellees understandably rely on Pueschel’s admonition 

that a plaintiff cannot create a “superficial distinction” 

between the Federal Circuit and district court claims when they 

“arise out of the same facts.” Pueschel, 577 F.3d at 564. But 

this case presents no “superficial distinction.” Rather, it is 

a distinction created by the administrative body that reviewed 

the claims. No case relied on by Appellees possesses this

unique fact. See, e.g., Chappell v. Chao, 388 F.3d 1373, 1375-

76 (11th Cir. 2004) (employee filed a mixed case appeal with the 

MSPB; while it was pending, he filed separate discrimination 

action in district court based on the same conduct; after that, 

he appealed the MSPB decision to the Federal Circuit); McAdams 

 2 To make matters worse, at oral argument, the Government 

stated that Bolton’s two cases were “effectively merged” and 

“reconsolidate[d]” before she appealed to the Federal Circuit; 

thus, she could have chosen not to appeal the regulation-review 

case to the Federal Circuit but still somehow preserve her 

review of that case. Oral Argument at 32:15-32:37, 33:20-33:30, 

Bolton v. Social Security Admin., No. 15-1907 (Dec. 6, 2016), 

available at http://www.ca4.uscourts.gov/oral-argument/listento-oral-arguments. But the Government could not demonstrate

that Bolton received explicit notice of formal reconsolidation. 

In any event, the deadline for filing a Federal Circuit appeal 

of the regulation-review case expired before the MSPB issued its 

final decision in the individual case. Therefore, as previously 

noted, if Bolton had waited to appeal the regulation-review 

issues in the district court, she risked losing her regulationreview appeal in the Federal Circuit. See 5 U.S.C. 

§ 7703(b)(1)(A).
17

v. Reno, 64 F.3d 1137, 1140 (8th Cir. 1995) (after successfully 

winning at the MSPB level, employee sought additional Title VII 

damages in the district court); Smith v. Horner, 846 F.2d 1521, 

1521 (D.C. Cir. 1988) (employee filed denial of disability claim 

with MSPB and appealed to Federal Circuit; after adverse 

decision there, he filed a discrimination action in district 

court). 

In all, Bolton did not “pursue[] the mixed case in the 

Federal Circuit,” nor did she “cho[o]se to split” her 

discrimination claims. Pueschel, 577 F.3d at 563 (internal 

quotation marks omitted). Therefore, Pueschel does not support 

the conclusion that Bolton intentionally abandoned review of her 

discrimination claims.

2.

Form 10

The district court accurately acknowledged that “the 

Federal Circuit requires . . . employees [appealing MSPB cases 

to the Federal Circuit] to certify, by completing Federal 

Circuit Claim Form 10, either that no claim of discrimination 

has been or will be made, or that any such claim has been 

abandoned.” Bolton, 2015 WL 2452829, at *2. Bolton filed the 

Form 10, but a close look at the form reveals she did not 

certify “no claim of discrimination has been or will be made,” 
18

nor did she certify that her discrimination claim “has been 

abandoned.” 

For example, Bolton checked the line next to the 

following statement: “No claim of discrimination by reason of 

race, sex, age, national origin, or handicapped condition has 

been or will be made in this case.” J.A. 201 (emphasis 

supplied). Indeed, “this case,” i.e., the case being appealed 

to the Federal Circuit, stemmed from a request for review of

cross-agency OPM regulations -- not discrimination -- and the 

briefing only challenged the MSPB’s failure to explain its 

decision in the regulation-review case. 

Also on the Form 10, Bolton answered “No” to the 

question: “Have you filed a discrimination case in a United 

States district court from the [MSPB]’s . . . decision?” J.A. 

201. She did not check the blank next to this statement: “Any 

claim of discrimination . . . raised before and decided by 

[MSPB] has been abandoned or will not be raised or continued in 

this or any other court.” Id. 

None of these indications on the Form 10 demonstrate 

that Bolton intentionally relinquished her discrimination claims 

by appealing the regulation-review case to the Federal Circuit. 

Cf. De Santis v. Merit Sys. Prot. Bd., 826 F.3d 1369, 1372 n.2 

(Fed. Cir. 2016) (noting that the employee “no longer ha[d] a 

discrimination claim” where “he did not pursue his 
19

discrimination claim with the [MSPB], and he informed th[e] 

[Federal Circuit], in his Form 10 filing, that no claim of age 

discrimination ‘has been or will be made in this case’” 

(citation omitted) (emphasis supplied)); Stribling v. Dep’t of 

Educ., 309 F. App’x 396, 398 (Fed. Cir. 2009) (explaining that 

employee “explicitly waived her discrimination claims by 

completing this court’s . . . Form 10[], and checking the box 

stating that ‘Any claim of discrimination . . . raised before 

and decided by the M[SPB] has been abandoned or will not be 

raised or continued in this or any other court’”). We note, 

however, that as a rule, a litigant cannot waive a 

discrimination claim solely by checking a certain box on the 

Form 10, nor can he or she avoid waiver by doing so. Our 

holding is simply that, on the strange facts of this particular 

case, the district court’s reliance on Bolton’s Form 10 to reach 

its waiver conclusion was inappropriate, as her discrimination 

claims were simply not part of the “case” being appealed to the 

Federal Circuit. See Pueschel, 577 F.3d at 564. 

Bolton’s Form 10 likewise fails to demonstrate waiver 

of her discrimination claims. Therefore, we reverse the 

district court’s holding that Bolton waived her right to review 

of her discrimination claims and that it lacked subject matter 

jurisdiction over those claims.
20

B.

Relying on its conclusion that it lacked jurisdiction 

over the discrimination claims (Counts One and Two), the 

district court proceeded to dismiss the other six counts in 

Bolton’s amended complaint, explaining, “[G]iven that this Court 

lacks subject-matter jurisdiction over [Bolton’s] discrimination 

claims (the only basis on which an employee may appeal a 

decision of the MSPB to a federal district court), it lacks 

subject-matter jurisdiction over her entire action challenging 

her demotion by SSA.” Bolton, 2015 WL 2452829, at *5. Because 

we have reversed this conclusion, we remand for consideration of 

Counts Three through Seven. 

As to Count Eight, Bolton contends the district court 

possessed jurisdiction only on the basis of the Administrative 

Procedure Act (“APA”). See Appellant’s Br. 1. The APA provides 

in relevant part, “A person suffering legal wrong because of 

agency action, or adversely affected or aggrieved by agency 

action . . . is entitled to judicial review thereof.” 5 U.S.C. 

§ 702. However, “competitive service employees, who are given 

review rights by [the CSRA] cannot expand these rights by resort 

to judicial review outside of the CSRA scheme.” Elgin, 132 S. 

Ct. at 2133 (emphasis omitted); see also Hall v. Clinton, 235 

F.3d 202, 206 (4th Cir. 2000) (“[T]he comprehensive grievance 

procedures of the CSRA implicitly repealed all other then-
21

existing statutory rights of federal employees regarding 

personnel decisions.” (footnote omitted)). Bolton has already 

taken advantage of the CSRA scheme, as Count Eight is basically 

the same claim raised in the regulation-review case and 

voluntarily dismissed in the Federal Circuit. Therefore, the 

APA cannot provide a basis for review of Count Eight, and we 

affirm the dismissal of that claim.

III.

For the foregoing reasons, we affirm the district 

court’s dismissal of Count Eight of Bolton’s amended complaint. 

We reverse its dismissal of Bolton’s remaining seven counts, and 

remand for further proceedings on those claims.

AFFIRMED IN PART, 

REVERSED IN PART, 

AND REMANDED