FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN W. CROWE,

Plaintiff-Appellant,

 v. 

CHRISTINE WORMUTH, Secretary 

of the Army, 

Defendant-Appellee,

RYAN D. MCCARTHY, 

Defendant-Appellee,

and 

MARK T. ESPER, Secretary of the 

Army, sued in his official capacity, 

Defendant.

No.21-15802

D.C. No. 

1:18-cv-00288-

ACK-RT 

OPINION

Appeal from the United States District Court

for the District of Hawaii

Alan C. Kay, District Judge, Presiding

Argued and Submitted October 14, 2022

Submission Withdrawn January 5, 2023

Re-argued and Re-submitted March 2, 2023

San Francisco, California
2 CROWE V. WORMUTH

Filed July 25, 2023

Before: Mary M. Schroeder, Johnnie B. Rawlinson, and 

Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress;

Concurrence by Judge Schroeder

SUMMARY*

Employment/Merit Systems Protection Board

The panel affirmed in part and vacated in part the district 

court’s decision and remanded in an action brought by 

Steven Crowe, a police officer at the Tripler Army Medical 

Center in Honolulu, Hawaii, alleging that he had been 

subjected to discrimination based on his sexual orientation 

(bisexual) and race (Caucasian), retaliated against for 

protected conduct, and ultimately terminated from his 

employment. 

Prior to his termination, Crowe filed a complaint with the 

Equal Employment Opportunity (EEO) office alleging 

sexual and race discrimination, retaliation, and a proposed 

and later a formal termination. After he was terminated, 

Crowe attempted to file a mixed case appeal with the Merit 

Systems Protection Board (MSPB), seeking to appeal the 

Army’s termination decision based on the affirmative 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
CROWE V. WORMUTH 3

defense of sexual orientation discrimination. The MSPB 

upheld Crowe’s termination and Crowe filed suit in district 

court.

The panel first vacated the district court’s decision that 

Crowe failed to exhaust administrative remedies before the 

MSPB with respect to his claims of pre-termination adverse 

employment actions. The panel held that the MSPB lacked 

jurisdiction to consider the pre-termination claims. Neither 

the text nor the structure of the Civil Service Reform Act 

(CSRA) supports the theory that the MSPB has pendent 

jurisdiction to decide factually related claims of 

discrimination associated with personnel actions outside the 

list of “particularly serious” actions set forth in 5 U.S.C. 

7512. Such discrimination claims must instead be exhausted 

through the EEO process. The panel remanded for further 

proceedings.

The panel affirmed the district court’s (1) determination 

that Crowe failed to exhaust before the MSPB any other 

theories of discrimination for his termination besides sexual 

orientation, the only claim Crowe asserted; (2) grant of 

summary judgment to the Army on Crowe’s Title VII claim, 

finding there was no genuine dispute of material fact that 

Crowe was terminated because of his misconduct at the 

workplace, as opposed to his sexual orientation; and (3) 

grant of summary judgment to the Army on Crowe’s CSRA 

claim, finding that substantial evidence supported the 

MSPB’s finding that Crowe regularly had sex at TAMC 

during work hours. 

Concurring, Judge Schroeder agreed with the majority’s 

outcomes, including its conclusion to remand the pretermination claims to the district court, but noted the 

unfortunate situation that two government entities are taking 
4 CROWE V. WORMUTH

opposing positions with respect to the district court’s 

jurisdiction to hear the pre-termination claims.

COUNSEL

Kevin Owen (argued), Gilbert Employment Law, Silver 

Spring, Maryland; Elbridge W. Smith and Elbridge Z. Smith, 

Smith Himmelmann AALC ALC, Honolulu, Hawaii; Mateo 

Caballero, Caballero Law LLLC, Honolulu, Hawaii; for 

Plaintiff-Appellant.

Stephen W. Fung (argued), Attorney; Katherine M. Smith, 

Deputy General Counsel; Allison J. Boyle, General Counsel; 

Office of the General Counsel, United States Merit Systems 

Protections Board; Washington, D.C.; for Amicus Curiae 

Merit Systems Protection Board.

Edric Ming-Kai Ching (argued), Assistant U.S. Attorney; 

Clare E. Connors, United States Attorney; Office of the 

United States Attorney, District of Hawaii; Honolulu, 

Hawaii; for Defendants-Appellees.
CROWE V. WORMUTH 5

OPINION

BRESS, Circuit Judge:

“[T]he intersection of federal civil rights statutes and 

civil service law has produced a complicated, at times 

confusing, process for resolving claims of discrimination in 

the federal workplace.” Kloeckner v. Solis, 568 U.S. 41, 49

(2012). In this case, we work in one wing of this difficult

area and consider whether the plaintiff failed to exhaust 

certain claims before the Merit Systems Protection Board 

(MSPB). This in turn requires us to examine the scope of 

the MSPB’s jurisdiction in a so-called “mixed case,” in 

which a federal employee alleges that a qualifying adverse 

employment action (here, termination) was motivated in 

whole or in part by unlawful discrimination. Our principal 

holding is that the plaintiff did not fail to exhaust before the 

MSPB his discrimination claims based on pre-termination

adverse employment actions because the MSPB lacked 

jurisdiction to consider those claims.

We affirm in part, vacate in part, and remand for further 

proceedings.

I

A

Plaintiff Stephen Crowe worked as a police officer at the 

Tripler Army Medical Center (TAMC) in Honolulu, Hawaii. 

Supervisory Police Officer Michael Ballesteros was 

Crowe’s superior. In February 2016, Crowe complained to 

Ballesteros that another officer, Kevin Oda, had called 

Crowe a “fag” or “faggot” when introducing him. Crowe 

alleges that Oda used this term on other occasions, both in 
6 CROWE V. WORMUTH

specific reference to Crowe and as a word that he would use 

generally.

Ballesteros oversaw an inquiry into this issue. In that 

process, Officer Oda admitted using the derogatory term and 

participated in counseling with Ballesteros. Shortly 

thereafter, Officer Oda apologized to Crowe in a meeting 

with Ballesteros. In a formal Memorandum of Counseling 

to Officer Oda, Ballesteros wrote that “this type of language 

use and behavior is degrading to many individuals and 

unacceptable.” Officer Ballesteros maintained that, at the 

time of Crowe’s complaint and the meeting, he did not know 

Crowe’s sexual orientation.

A few months later, Officer Ballesteros received a 

complaint from James Sewell, an employee in the TAMC 

Emergency Department. Sewell alleged that Crowe had 

aggressively confronted Sewell about a supposed

relationship between Sewell and a Ms. Garcia, who worked 

as a medical assistant at TAMC and had previously dated 

Crowe. Sewell, whose significant other was TAMC 

employee Kiana Ah Lee Sam, took offense at Crowe 

“spreading lies” about an alleged affair between Sewell and 

Garcia. Sewell also noted that Crowe, as a law enforcement

officer, was carrying a gun when he confronted Sewell, 

implying this made Sewell feel unsafe.

Officer Ballesteros brought Sewell’s complaint to his 

superiors, who asked him to initiate an investigation. Officer 

Ballesteros assigned the investigation to Officer Oda, the 

first officer he saw. Ballesteros also chose Oda for the job

because as the “operations officer,” Oda was “capable of 

doing investigations.” On Officer Ballesteros’s instruction, 

Officer Oda interviewed four individuals—Garcia, Vasthi 
CROWE V. WORMUTH 7

Tabangeura, Sam, and Sewell—and obtained sworn 

statements from each.

Garcia admitted that for six months, she and Crowe had 

sex three to four times per week during work hours in an 

upstairs room at TAMC, during which time Crowe would 

take off his duty belt that held his service weapon. Garcia 

provided corroborating details about these intimate

encounters, including information about the room and how 

other officers would cover for Crowe while he was with 

Garcia. Garcia later recanted her testimony. After the Army 

proposed removing Garcia for lying, Garcia withdrew her 

recantation and stood by her original statement, 

acknowledging that her workplace sexual relationship with 

Crowe was “inexcusable.”

Tabangeura and Sam, who both worked as medical 

administration specialists at TAMC, reported that Crowe 

would spend hours of his shift gossiping with employees and 

discussing his sex life with them. Tabangeura described how 

Crowe showed her websites “where he goes to hookup with 

girls,” as well as photos of the women “he’s hooking up 

with.” Tabangeura further reported that Garcia had

disclosed to her that Garcia was having sex with Crowe in

the upstairs room, and that Crowe had himself told 

Tabangeura about taking a “friend” to have sex in a locked 

room on TAMC’s tenth floor. Tabangeura understood the 

“friend” to be Garcia. Finally, Sewell described the incident 

in which Crowe confronted him while on duty.

In May 2016, Crowe was placed on temporary detail 

without his police powers and was restricted to 

administrative duties. A month later, Crowe’s temporary 

detail was extended indefinitely pending the investigation. 

During the investigation, Crowe and his union representative 
8 CROWE V. WORMUTH

met with Officer Ballesteros twice. In November 2016, 

Ballesteros began the process of terminating Crowe by 

issuing a notice of proposed removal. As relevant here, the 

notice cited Crowe’s confronting Sewell, his on-duty sexual 

activity with Garcia, and his inappropriate workplace

gossiping.

In February 2017, after considering the various witness 

statements, along with Crowe’s response—and after 

consulting with a subject-matter expert from the Civilian 

Personnel Office—Officer Ballesteros’s superior, Deputy 

Provost Marshal James Ingebredtsen, independently decided 

to terminate Crowe from federal service.

B

Thus began a somewhat excruciating administrative 

review process. Because the primary issue in this appeal is

whether Crowe properly exhausted his claims, we recount 

this part of the procedural history in some detail.

1

In August 2016—after Crowe’s placement on indefinite 

temporary detail but before Officer Ballesteros proposed 

removing Crowe—Crowe filed a complaint with the Army’s 

Equal Employment Opportunity (EEO) office. Crowe 

alleged that he had been subjected to discrimination based 

on his sexual orientation (bisexual) and race (Caucasian). 

He alleged that discriminatory animus motivated the Army’s 

decisions to investigate him and place him on administrative 

detail.

On November 5, 2016, the day after Officer Ballesteros 

proposed that Crowe should be fired, Crowe amended his 

EEO complaint to assert a claim based on his proposed 

termination. Crowe also asserted an additional basis for
CROWE V. WORMUTH 9

discrimination in the form of retaliation for his protected 

activity, claiming that the Army was investigating and 

seeking to terminate him in retaliation for complaining about 

Officer Oda’s offensive comments. On February 23, 2017, 

after Crowe was formally terminated from federal 

employment, he amended his EEO complaint again, this 

time to encompass his formal (as opposed to merely

proposed) termination.

In March 2017—after Crowe’s termination but before 

any action was taken on his EEO complaint—Crowe 

attempted to file a mixed case appeal with the MSPB, 

seeking to appeal the Army’s termination decision. As we 

noted above and describe at greater length below, a mixed 

case is a claim by a federal employee challenging a 

qualifying adverse employment action and alleging related 

discrimination. Before the MSPB, and as relevant here,

Crowe opposed his termination based on the affirmative 

defense of sexual orientation discrimination.

Initially, the MSPB Administrative Judge (AJ) dismissed 

Crowe’s mixed case appeal without prejudice because 

Crowe’s pending EEO complaint already encompassed his 

termination, making it a “mixed case complaint.” Although 

there are many disputed procedural issues in this case, it is 

undisputed that Crowe could not challenge his termination 

through a simultaneous EEO mixed case complaint and 

MSPB mixed case appeal. See 29 C.F.R. § 1614.302(b)

(“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 MSPB pursuant to 5 CFR 

1201.151, but not both.”). To cure this deficiency, Crowe 

requested that the part of his EEO complaint relating to his

termination be voluntarily dismissed. The EEO office

granted the motion.
10 CROWE V. WORMUTH

Crowe then re-filed his mixed case appeal with the 

MSPB, limited to the issue of his allegedly wrongful 

termination. Before the MSPB, Crowe challenged the 

sufficiency of the evidence supporting his termination and

alleged that his termination was based on sexual-orientation 

discrimination.1 Through this maneuver, Crowe split his 

claimsinto separate proceedings before the MSPB and Army 

EEO office. Before the MSPB, Crowe argued that there was 

insufficient evidence to support his termination, which he 

also claimed was motivated by sexual-orientation 

discrimination. Before the Army’s EEO office, Crowe

challenged the pre-termination adverse employment 

actions—the investigation of Crowe, the removal of his 

police powers, his reassignment to administrative duties

(including the deprivation of overtime), and his proposed 

removal—and claimed that those actions were themselves

motivated by multiple forms of unlawful discrimination, 

alleging more bases for discrimination than he did before the 

MSPB.

After a three-day hearing at which various witnesses 

testified, the MSBP AJ upheld Crowe’s termination. The AJ 

found that the Army had proven the grounds supporting 

Crowe’s removal, that removal was a reasonable penalty, 

and that Crowe had failed to establish the affirmative 

1 In his re-filed MSPB appeal, Crowe also contended that the Army had 

discriminated against him on the basis of his sex and race, and in

retaliation for complaining about Officer Oda’s offensive language. But 

in subsequent status conferences before the MSPB AJ, Crowe narrowed 

his claims to assert only sexual orientation discrimination and a nowabandoned assertion of procedural error, in addition to his general 

challenge to the sufficiency of the evidence supporting the Army’s 

decision to remove him from service.
CROWE V. WORMUTH 11

defense of sexual orientation discrimination. The EEO 

office, meanwhile, did not rule on Crowe’s claims, which 

meant that after 180 days, Crowe could pursue relief in

federal court. 29 C.F.R. § 1614.407(b).

2

On July 27, 2018, Crowe filed this lawsuit in federal 

district court. See 5 U.S.C. § 7703(b)(2); 28 U.S.C. §1331. 

Crowe’s complaint raised both Title VII discrimination 

claims, see 42 U.S.C. § 2000e, et seq., and a challenge under 

the Civil Service Reform Act (CSRA) to the sufficiency of 

the evidence supporting the MSPB’s decision sustaining his 

termination, see 5 U.S.C. § 7513. But rather than sticking 

with just the sexual orientation discrimination claim that he

had raised before the MSPB, Crowe’s Title VII claims 

alleged discrimination based on his sex, race, and in 

retaliation for engaging in protected activities (i.e., his 

complaint against Officer Oda). These latter allegations of 

discrimination related to the adverse actions taken before

Crowe’s termination. As we have discussed, Crowe had 

previously raised these pre-termination discrimination 

claims in his EEO complaints, but not before the MSPB.

The district court dismissed Crowe’s sex discrimination, 

race discrimination, and retaliation claims for failure to 

exhaust administrative remedies before the MSPB. The

court concluded that the MSPB would have had jurisdiction 

over Crowe’s claims of pre-termination discrimination

because they were factually related to the claims concerning 

his formal termination. Because Crowe had not pursued 

these pre-termination discrimination claims before the 

MSPB, the district court held that Crowe had failed to 

exhaust his administrative remedies for those claims.
12 CROWE V. WORMUTH

On Crowe’s Title VII claim of wrongful termination 

based on sexual orientation discrimination—the one claim

of discrimination that Crowe had raised before the MSPB—

the district court reached the merits and granted summary 

judgment to the Army. The court concluded that Crowe had 

not made out a prima facie case of sexual orientation

discrimination; the Army had legitimate non-discriminatory 

reasons for terminating Crowe; and Crowe had not shown 

pretext. Finally, the district court concluded that, under the 

CSRA, substantial evidence supported the MSPB’s decision 

sustaining Crowe’s removal.

Crowe timely appealed. We have jurisdiction under 28 

U.S.C. § 1291. After we heard oral argument in this case, 

the MSPB, which has independent litigating authority, see 5 

U.S.C. § 1204(i), sua sponte filed an amicus brief 

disagreeing with the district court’s (and Army’s) exhaustion 

analysis. This meant that the Department of Justice

(representing the Army) and the MSPB were now taking 

different positions on the exhaustion question and the scope 

of the MSPB’s jurisdiction.

As a result of this development, we heard oral argument 

a second time, at which the MSPB appeared as an amicus in 

support of Crowe on the exhaustion issue. The district court, 

which conscientiously evaluated the many complex 

procedural issues in this case, did not have the benefit of the 

MSPB’s views or the more comprehensive briefing and 

argument we have now received on the exhaustion 

questions.

II

The first and central issue we resolve is whether Crowe

properly exhausted his pre-termination discrimination 

claims by pursuing them before the Army’s EEO office 
CROWE V. WORMUTH 13

when he was at the same time appealing his termination to 

the MSPB. The Army argues, and the district court agreed, 

that Crowe failed to exhaust his pre-termination claims 

because they were factually intertwined with the 

discrimination claim he raised before the MSPB, such that 

Crowe should have challenged all of the Army’s adverse 

employment actions before that body. Crowe and the MSPB 

maintain that this is incorrect because the MSPB did not 

have jurisdiction over Crowe’s claims of pre-termination 

discrimination.

We review the purely legal question of exhaustion de 

novo. Farrell v. Principi, 366 F.3d 1066, 1067 (9th Cir. 

2004). We hold that Crowe did not fail to exhaust before the 

MSPB his claims of pre-termination discrimination. The 

MSPB lacked jurisdiction over those claims, and so Crowe 

acted properly in raising them in the EEO process at the 

administrative level.

Given the highly complicated nature of the 

administrative regime, our analysis must proceed in several 

steps. In Part A, we lay out the basic mixed case scheme. In 

Part B, we explain why Crowe’s position is correct as a 

matter of statutory interpretation. In Part C, we address 

circuit precedent and in Part D, agency precedent and

guidance. In Part E, we touch on the policy implications of 

both our reading of the statute and the Army’s contrary 

position. In Part F, we apply our holding to the facts of 

Crowe’s case. And once we are done with that, we turn to 

the remaining issues in this case.

A

We begin by setting forth the regime that governs 

workplace protections for federal employees, as it relates to 

so-called “mixed cases.” This is vast and rugged terrain, and 
14 CROWE V. WORMUTH

we describe the governing framework only so far as is

necessary to comprehend the role of the MSPB and the 

exhaustion issues that this case presents.

The Civil Service Reform Act of 1978 (CSRA) 

“established a comprehensive system for reviewing 

personnel action taken against federal employees.” Elgin v. 

Dep’t of Treasury, 567 U.S. 1, 5 (2012) (quoting United 

States v. Fausto, 484 U.S. 439, 455 (1988)). For certain 

“particularly serious” adverse employment actions, the

affected federal employee may appeal his agency’s 

employment decision to the MSPB, “an independent 

adjudicator of federal employment disputes.” Kloeckner v. 

Solis, 568 U.S. 41, 44 (2012); 5 U.S.C. §§ 7512, 7701. Thus, 

“[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 affected employee has a right 

to appeal the agency’s decision to the MSPB.” Kloeckner, 

568 U.S. at 44. We will have more to say below about the 

specific types of adverse employment actions that are 

appealable to the MSPB. But the key point for present 

purposes is that not every type of employment action can be 

appealed to that authority.

2

If a federal employee does suffer a qualifying personnel 

action appealable to the MSPB, he may raise before that 

adjudicatory body a civil service claim under the CSRA.

2 In addition to the MSPB’s appellate jurisdiction over certain adverse 

employment actions, the MSPB has jurisdiction over other matters not 

relevant here. See 5 C.F.R. § 1201.3. Crowe’s appeal does not concern

these matters, nor does it implicate the special provisions applicable to 

claims of whistleblower reprisal. See 5 U.S.C. § 1221(a). Our decision 

is limited to the MSPB’s jurisdiction over mixed cases challenging the 

“particularly serious” adverse employment actions listed in 5 U.S.C. 

§ 7512.
CROWE V. WORMUTH 15

Perry v. MSPB, 582 U.S. 420, 424 (2017). That type of 

claim essentially maintains that the agency lacked a 

sufficient basis for taking the adverse action. See Kloeckner, 

568 U.S. at 44. Crowe raised such a CSRA claim here, and 

we discuss it further below in Part V. If a federal employee’s 

appeal before the MSPB is limited to such a civil-serviceonly claim, the MSPB’s decision can be appealed, but only 

to the Federal Circuit. See 5 U.S.C. § 7703(b)(1); Perry, 582 

U.S. at 422 (“If an employee asserts rights under the CSRA 

only, MSPB decisions, all agree, are subject to judicial 

review exclusively in the Federal Circuit.”).

Federal employees also receive protections under federal 

civil rights laws, such as Title VII of the Civil Rights Act of 

1964. In the absence of an accompanying CSRA claim, a 

federal employee who wishes to pursue a claim of wrongful 

discrimination under the civil rights laws must follow the 

usual exhaustion rules that apply to such claims. See 29 

C.F.R. §§ 1614.105, 1614.106; Sloan v. West, 140 F.3d 

1255, 1259 (9th Cir. 1998), abrogated on other grounds by

Perry, 582 U.S. at 434 & n.8. That requires filing a 

complaint with the EEO office of the employee’s agency, 

with the option to appeal to the EEOC and then a follow-on 

lawsuit in federal district court. 29 C.F.R. §§ 1614.401(a), 

1614.110, 1614.407; Perry, 582 U.S. at 422; Sloan, 140 F.3d 

at 1259.

When a federal employee suffers a qualifying adverse 

employment action that is appealable to the MSPB and

attributes the agency’s decision, in whole or part, to unlawful 

discrimination, the employee has what is known as a “mixed 

case.” Perry, 582 U.S. at 422; Washington v. Garrett, 10 

F.3d 1421, 1428 (9th Cir. 1993); 29 C.F.R. § 1614.302. 

Implementing regulations define a “mixed case complaint” 

as “a complaint of employment discrimination filed with a 
16 CROWE V. WORMUTH

federal agency based on race, color, religion, sex, national 

origin, age, disability, or genetic information related 

to or stemming from an action that can be appealed to the 

Merit Systems Protection Board (MSPB).” 29 C.F.R. 

§ 1614.302(a)(1). Similarly, 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, disability, age, or genetic information.” 29 

C.F.R. § 1614.302(a)(2).

A federal employee with a “mixed case” has a unique set 

of procedural options. See Kloeckner, 568 U.S. at 44–45 

(explaining that “[t]he CSRA and regulations of the MSPB 

and [EEOC] set out special procedures to govern such a 

case—different from those used when the employee either 

challenges a serious personnel action under the CSRA alone 

or attacks a less serious action as discriminatory”). One 

option is for the employee to file a discrimination complaint

with his agency’s EEO office, “much as an employee 

challenging a personnel practice not appealable to the MSPB 

could do.” Id. at 45. If that decision is unfavorable to the

employee, or if the EEO office does not rule within a certain 

period of time, the employee may then appeal his mixed case 

to the MSPB (making it a mixed case appeal), or he may skip 

the MSPB and file directly in federal district court. 29 

C.F.R. § 1614.302(d)(1); Perry, 582 U.S. at 424; Sloan, 140 

F.3d at 1259.

If the employee does not wish to start the process by 

filing an internal EEO complaint with his agency, he may 

instead begin his mixed case by appealing the adverse action

straight to the MSPB as a “mixed case appeal” (i.e., 

appealing the agency’s underlying decision to take a 

qualifying adverse action against the employee). 5 C.F.R. 
CROWE V. WORMUTH 17

§ 1201.154(a); 29 C.F.R. § 1614.302(b); Kloeckner, 568 

U.S. at 45. Once the mixed case reaches the MSPB—either 

as an appeal from the agency’s final decision in the EEO 

process or as a direct appeal from the adverse employment 

action that is filed initially with the MSPB—the MSPB may 

provide a final decision on both parts of the employee’s 

mixed case. 5 U.S.C. § 7702(a)(1). Any party has the option 

to petition for review before the full Board. 5 C.F.R. 

§ 1201.114. After the MSPB issues a final decision, or after 

a specified amount of time has passed without a decision, the 

employee may choose either to seek further administrative 

review of his discrimination claim before the EEOC, 5 

U.S.C. § 7702(b), or to bring his case in the appropriate 

federal district court (not the Federal Circuit). 5 U.S.C. §§

7702(e), 7703(a)(1), (b)(2); 29 C.F.R. § 1614.310; Perry, 

582 U.S. at 425; Kloeckner, 568 U.S. at 45.3

Importantly, when an employee has a mixed case, he 

must initiate the administrative process in either his agency’s 

EEO office or the MSPB—but he cannot litigate the mixed 

case in both. 29 C.F.R. § 1614.302(b).

B

This case involves the interaction between the mixed 

case regime and the doctrine of exhaustion of administrative 

remedies. As a general matter, that doctrine requires a 

plaintiff to pursue relief through an available administrative 

3 There is also an additional potential review by a “special panel” 

comprised of a representative from the EEOC and MSPB and a third 

person who is appointed by the President and confirmed by the Senate 

for a six-year term. 5 U.S.C. § 7702(d); Sloan, 140 F.3d at 1260. The 

decisions of this panel may also be appealed to the district court. 5 

U.S.C. § 7702(d)(2)(A). The details of the special panel process are 

beyond the scope of this appeal.
18 CROWE V. WORMUTH

agency process before filing suit in federal court. See, e.g.,

Woodford v. Ngo, 548 U.S. 81, 88–89 (2006). Thus, 

although the scheme we have outlined above does give 

federal employees with mixed cases some options in terms 

of the administrative process they wish to pursue, they must 

exhaust one of the available processes before filing a case in 

federal court. See 5 U.S.C. § 7703(b)(2) (CSRA); 42 U.S.C. 

§ 2000e-16(c) (Title VII); 29 C.F.R. § 1614.310; Brown v. 

General Servs. Admin., 425 U.S. 820, 832 (1976); Punch v. 

Bridenstine, 945 F.3d 322, 328 (5th Cir. 2019).

The primary exhaustion question in this case is whether 

Crowe was required to exhaust before the MSPB claims 

relating to his pre-termination adverse employment

actions—the investigation into Crowe, the changes to his 

duties, and his proposed termination. To answer the 

exhaustion question, we must examine in greater depth the 

scope of the MSPB’s jurisdiction in mixed cases. If the 

MSPB lacks jurisdiction to consider claims of discrimination 

relating to these types of adverse actions, Crowe would of 

course not have been required to raise these claims before 

the MSPB.

As we referenced above, a federal employee “may 

submit an appeal to the Merit Systems Protection Board 

from any action which is appealable to the Board under any 

law, rule, or regulation.” 5 U.S.C. § 7701(a). With some 

exceptions not relevant here, the CSRA specifies that the 

“actions covered” for purposes of the MSPB’s jurisdiction 

are: “(1) a removal; (2) a suspension for more than 14 days; 

(3) a reduction in grade; (4) a reduction in pay; and (5) a 

furlough of 30 days or less.” Id. § 7512. These are the 

“particularly serious” adverse personnel actions that we 

referenced above. Kloeckner, 568 U.S. at 44.
CROWE V. WORMUTH 19

It is clear from the statute that in the absence of one of 

the five qualifying “particularly serious” adverse actions, the 

MSPB lacks jurisdiction. As we have stated, “[t]he MSPB 

does not possess jurisdiction over claims that do not fall into 

one of the five ‘adverse action’ categories outlined in 5 

U.S.C. § 7512.” Sloan, 140 F.3d at 1260; see also 

Kloeckner, 568 U.S. at 44 (explaining that the MSPB has 

jurisdiction “[i]f (but only if)” the employment action is one 

of the statutorily prescribed “particularly serious” actions). 

There is no suggestion that Crowe’s pre-termination adverse 

personnel actions fall into any of the five qualifying actions

set forth in § 7512. These actions on their own would not be 

appealable to the MSPB.

The Army argues that in this case, however, Crowe was 

required to bring these claims before the MSPB. Its theory 

is one of pendent jurisdiction. The Army maintains that

because Crowe’s termination was a qualifying action over 

which the MSPB had jurisdiction under § 7512, Crowe was 

thereby required to exhaust before the MSPB any pretermination discrimination claims that were factually related

to his termination. According to the Army, “[w]here a 

plaintiff initially filed an EEO complaint relating to matters 

that eventually culminate in an action appealable to the 

MSPB, and he subsequently appeals that matter to the MSPB 

as a mixed case . . . , he is required to exhaust all related 

claims . . . in the MSPB before filing a civil action.”

The problem with this argument is that it lacks any basis 

in the text of the CSRA. “The Board has only that 

jurisdiction conferred on it by Congress.” Cruz v. Dep’t of 

Navy, 934 F.2d 1240, 1243 (Fed. Cir. 1991) (en banc). 

When construing the jurisdictional limits Congress has 

authored, we must give effect to the statute’s plain and 

ordinary meaning, reading the language as a whole and 
20 CROWE V. WORMUTH

evaluating the words used with an eye to the surrounding 

textual context. E.g., S.F. Herring Ass’n v. U.S. Dep’t of the 

Interior, 33 F.4th 1146, 1152 (9th Cir. 2022).

The CSRA spells out the MSPB’s jurisdiction over 

mixed cases:

(a)(1) Notwithstanding any other provision 

of law, and except as provided in paragraph (2) 

of this subsection,[4] in the case of any employee 

or applicant for employment who--

(A) has been affected by an action which 

the employee or applicant may appeal to the 

Merit Systems Protection Board, and

(B) alleges that a basis for the action was 

discrimination prohibited by [one of several 

antidiscrimination laws] . . .

the Board shall, within 120 days of the 

filing of the appeal, decide both the issue of 

discrimination and the appealable action in 

accordance with the Board’s appellate 

procedures under section 7701 of this title 

and this section.

5 U.S.C. § 7702(a)(1).

Nothing in the text of this provision states that if the 

MSPB has jurisdiction over a sufficiently serious adverse 

employment action (like a termination), that it then has 

4 The reference in § 7702 to “except as provided in paragraph (2) of this 

subsection” does not carve out an exception to the MSPB’s jurisdiction. 

It is merely a reference to the fact that the employee may initially pursue 

his mixed case in his agency through the EEO process. See 5 U.S.C. 

§ 7702(a)(2).
CROWE V. WORMUTH 21

pendent jurisdiction over claims for all other allegedly 

discriminatory personnel decisions that are factually related 

to the jurisdiction-enabling adverse action. Instead, the 

statutory text in § 7702 runs directly counter to that 

suggestion. Subsection (a)(1)(A) provides that for the 

MSPB to have jurisdiction, the employee must “ha[ve] been 

affected by an action which the employee or applicant may 

appeal to the Merit Systems Protection Board.” Id.

§ 7702(a)(1)(A) (emphasis added). The MSPB in that 

circumstance may then determine whether “a basis for the 

action was discrimination prohibited by” various listed antidiscrimination laws. Id. § 7702(a)(1)(B) (emphasis added).

The specific use of the singular—“the action”—is a clear 

reference to the appealable “action” that gave rise to the 

MSPB’s jurisdiction, that is, one of the specifically 

identified “particularly serious” adverse employment actions 

set forth in § 7512. Kloeckner, 568 U.S. at 44. The Army 

points to the last part of § 7702(a)(1), which states that the 

MSPB shall “decide both the issue of discrimination and the 

appealable action.” 5 U.S.C. § 7702(a)(1) (emphasis added). 

But the “issue of discrimination” is in context discrimination 

in connection with “the action” that the employee is 

permitted to appeal to the MSPB. It is not any issue of 

discrimination, or any issue of discrimination that is 

factually related to the appealable adverse action. The 

statute does not say either of those things. Sections 7512 and

7702 are instead narrowly drawn to give the MSPB 

jurisdiction to consider certain adverse personnel actions, as 

well as unlawful discrimination in relation to those actions. 

But here, the MSPB’s jurisdiction extends no further. If 

Congress, contrary to § 7512, had wanted to give the MSPB 

the authority to consider discrimination claims in connection 

with lesser adverse employment actions over which it would 
22 CROWE V. WORMUTH

otherwise lack jurisdiction, Congress “could have just said 

so.” Kloeckner, 568 U.S. at 52.

Our construction of the statute makes some sense given 

the role of the MSPB. The MSPB “was created to ensure 

that all Federal government agencies follow Federal merit 

systems practices.” 5 C.F.R. § 1200.1. But the MSPB’s 

jurisdiction is reserved for the more significant adverse 

employment actions. Kloeckner, 568 U.S. at 44. The 

MSPB, tasked with monitoring the federal civil service rules,

Sloan, 140 F.3d at 1258–59, evaluates certain adverse 

employment actions irrespective of the reasons why they 

may be invalid. When federal employees allege wrongful 

discrimination before the MSPB, courts have thus regularly 

described these employees as raising an “affirmative 

defense” to an adverse employment action. See, e.g., Jonson 

v. FDIC, 877 F.3d 52, 56 n.5 (1st Cir. 2017); Diggs v. Dep’t 

of Hous. & Urb. Dev., 670 F.3d 1353, 1355 (Fed. Cir. 2011)

(per curiam); Butler v. West, 164 F.3d 634, 636 (D.C. Cir. 

1999); Williams v. Dep’t of Army, 715 F.2d 1485, 1487 (Fed.

Cir. 1983) (en banc). Indeed, before the MSPB, Crowe 

himself described his alleged sexual orientation 

discrimination as an “Affirmative Defense” to his removal. 

It would be inconsistent with the long-held understandings 

of the role of the MSPB and the function of the

discrimination objection in a mixed case appeal to treat 

Crowe as having affirmative defenses to lesser personnel 

decisions over which the MSPB does not have jurisdiction

in the first place.

In sum, neither the text nor structure of the CSRA 

supports the theory that if the MSPB has jurisdiction over a 

mixed case, it then has pendent jurisdiction to decide 

factually related claims of discrimination associated with 

personnel actions outside the list of “particularly serious” 
CROWE V. WORMUTH 23

actions set forth in 5 U.S.C. § 7512. Such discrimination 

claims must instead be exhausted through the EEO process.

C

Ninth Circuit precedent on the exhaustion question 

before us is relatively limited, but our reading of the 

statutory text is consistent with our case law. In particular, 

our decision in Kerr v. Jewell, 836 F.3d 1048 (9th Cir. 2016), 

is supportive of Crowe’s position. In that case, a federal 

employee at the Fish and Wildlife Service (FWS) alleged 

that, on the basis of her sex and religion, she was given a 

poor performance review, a warning letter, and a 60-day 

reassignment to a different duty station. Id. at 1050–51. She 

also alleged that she was removed from employment for the 

same discriminatory reasons. Id.

We explained that the plaintiff’s “Title VII claims 

challenging the less serious personnel actions (the negative 

performance evaluation, the warning letter, and the 60-day 

detail) had to be presented to FWS’s EEO office.” Id. at 

1055. But we noted that her “Title VII claims challenging 

her removal (her mixed case) could have been presented 

initially to either FWS’s EEO office or the MSPB.” Id.

(emphasis in original). Consistent with our interpretation of 

the CSRA, Kerr did not treat as part of the employee’s mixed 

case those discrimination claims that related to the lesser 

adverse employment actions that were not otherwise within 

the MSPB’s jurisdiction. And we adhered to that 

understanding even though it is apparent that the various 

claims of discrimination were all factually related. See id. at 

1051–52.

Our decision in Sloan does not suggest any different 

approach. Sloan did not involve the exhaustion of 

administrative remedies. Regardless, as we noted above, 
24 CROWE V. WORMUTH

Sloan specifically recognized that “[t]he MSPB does not 

possess jurisdiction over claims that do not fall into one of 

the five ‘adverse action’ categories outlined in 5 U.S.C. 

§ 7512.” 140 F.3d at 1260. Sloan did note at one point that 

“the MSPB may not exercise jurisdiction over a claim of 

discrimination that is completely divorced from a personnel 

action otherwise within its jurisdiction pursuant to § 7512.” 

Id. That much, of course, is true. But Sloan did not suggest 

that “complete divorcement” from an appealable claim was 

the actual test for determining which claims could go to the 

MSPB, such that discrimination claims that were factually 

related to appealable claims were thereby within the MSPB’s 

jurisdiction. Sloan does not imply that rule. Indeed, Sloan

does not speak to these issues at all.

5

In its discussion of the CSRA mixed case scheme, Sloan 

twice cited the Eighth Circuit’s decision in McAdams v. 

5 We note as well that the core holding of Sloan is no longer good law. 

Sloan held that when the MSPB in a mixed case concludes that it lacks 

jurisdiction, the matter is reviewable in the Federal Circuit, not the 

district courts. 140 F.3d at 1262 (holding that “appeals of MSPB 

jurisdictional decisions involving mixed claims are properly venued in 

the Federal Circuit Court of Appeals”). For this, Sloan relied on, among 

other authorities, Ballentine v. MSPB, 738 F.2d 1244, 1247 (Fed. Cir. 

1984). See Sloan, 140 F.3d at 1261 & n.18. But in Perry, the Supreme 

Court rejected this position, holding that just as the MSPB’s dismissals

of mixed cases on procedural grounds are reviewed in district courts and 

not the Federal Circuit, see Kloeckner, 568 U.S. at 50, that “review route 

remains the same when the MSPB types its dismissal of a mixed case as 

‘jurisdictional.’” Perry, 582 U.S. at 423. Perry thus explicitly 

“disapprove[d] Ballentine’s holding with respect to jurisdictional 

dismissals.” Id. at 434 n.8. We have cited Sloan at several points in our 

decision here because it contains a helpful overview of the general 

statutory and regulatory scheme governing mixed cases. All the points 

for which we have cited Sloan remain good law. But Sloan’s actual rule 

of decision does not.
CROWE V. WORMUTH 25

Reno, 64 F.3d 1137 (8th Cir. 1995), including on the 

“completely divorced” point. See Sloan, 140 F.3d at 1259–

60. McAdams, like many cases in this area, involved a 

complex procedural history. But as relevant here, McAdams 

held that a federal employee had failed to exhaust a Title VII 

hostile work environment claim because she did not raise it 

before the MSPB. 64 F.3d at 1142–43. The plaintiff had 

brought before the MSPB claims relating to her demotion 

and removal, which were within the MSPB’s jurisdiction. 

Id. at 1143. The Eighth Circuit held that the plaintiff should 

also have brought her hostile work environment claim before 

the MSPB because it was “related to, and nearly dependent 

on, two appealable actions,” i.e., the demotion and removal. 

Id.; see also id. (noting that the plaintiff’s “EEO complaints 

and the Title VII claims in this case raised similar issues 

arising out of overlapping facts”).

The situation would be different, the Eighth Circuit 

allowed, “[i]f a harassment or hostile work environment 

claim is not related to an appealable action,” in which case 

“separate EEO and MSPB actions would be appropriate.” 

Id. at 1144. But because the plaintiff’s hostile work 

environment claim was factually intertwined with the 

removal and demotion claims over which the MSPB had 

jurisdiction, McAdams held that the plaintiff was also

required to raise her hostile work environment claim before

the MSPB.

Although we do not lightly disagree with another circuit, 

McAdams is not persuasive, and we respectfully decline to 

follow it. McAdams did not even attempt to locate its 

“factual relatedness” test in the text of the CSRA. Nor did it 

cite any authority supporting its expansive view of the 

MSPB’s jurisdiction. McAdams was also decided in 1995, 

well before the EEOC and MSPB issued decisions (which 
26 CROWE V. WORMUTH

we discuss below) that adopted the same general approach 

we adopt here. McAdams thus lacked the benefit of these 

agency decisions, which we find persuasive. Our decision 

in Sloan did, as we have noted, cite McAdams. See Sloan, 

140 F.3d at 1259–60. But Sloan did not embrace 

McAdams’s “relatedness” test, nor could it have done so, 

since the case did not involve these exhaustion issues.6

D

Our reading of the CSRA also aligns with the guidance 

and precedents of both the MSPB and EEOC—the agencies 

that most frequently deal with these issues. After some 

initial uncertainty, the agencies have generally coalesced 

around the position we adopt here.

Initially, the EEOC provided guidance more consistent 

with the Eighth Circuit’s approach. In a 1999 Management 

Directive 110 sent to government agencies, the EEOC 

explained that:

Where a complainant has pending a nonmixed case complaint or a series of nonmixed case complaints and the claims raised 

in those complaints are inextricably 

intertwined with an appeal on a claim that 

is appealable to the MSPB 

6 In Chappell v. Chao, 388 F.3d 1373, 1377–79 (11th Cir. 2004), the 

Eleventh Circuit favorably cited McAdams’s “factual relatedness” 

approach. But Chappell concerned the different issue of whether a 

plaintiff waived the right to proceed with discrimination claims in federal 

district court when he appealed the non-discrimination aspect of his 

mixed case to the Federal Circuit. Id. at 1378–79. That scenario is not 

presented here. Chappell also pre-dated most of the MSPB and EEOC 

decisions and guidance that we discuss next.
CROWE V. WORMUTH 27

The agency should file with the MSPB a 

motion to consolidate the non-mixed case 

claim with the mixed case appeal. . . . This 

provision is specifically meant to address 

those situations where a series of events, 

connected in time or type, culminate in an 

appealable action against a person with 

standing to appeal to the MSPB. For 

example: minor discipline, warnings or other 

claims may form the basis for a non-mixed 

case, but ultimately lead to suspension in 

excess of 14 days or termination; similarly, 

an allegedly discriminatory performance 

evaluation and subsequent placement on a 

performance improvement plan are nonmixed claims that may culminate in denial of 

a within-grade promotion, or even in 

removal, both of which are appealable to the 

MSPB.

EEOC, Equal Employment Opportunity Management 

Directive for 29 C.F.R. Part 1614, at ch. 4, pt. II.B.4.d & n.4

(1999) (“1999 EEO-MD-110”).

In 2003, however, the EEOC changed course. In a 

Management Bulletin, the EEOC explained that it “ha[d] 

been notified by the MSPB” that the directive in its 1999

EEO-MD-110—to consolidate in the MSPB non-mixed case 

complaints with factually related mixed case appeals—was 

“improper procedurally, in that it constitutes a request for an 

MSPB Judge to hear matters which may not be within the 

jurisdiction of the MSPB.” See EEOC, Management 

Bulletin 100-1 (Oct. 24, 2003) (“MB 100-1”). As a result of 

the MSPB’s notification, the EEOC issued Management 
28 CROWE V. WORMUTH

Bulletin 100-1 (MB 100-1), which specifically instructed 

agencies to “immediately delete” the implicated language 

from their existing copies of the 1999 EEO-MD-110. Id.

The EEOC provided a further update to its guidance in 

the 2015 revisions to Management Directive 110. EEOC, 

Equal Employment Opportunity Management Directive for 

29 C.F.R. Part 1614, (rev. 2015) (“2015 EEO-MD-110”). 

This new version provides that, for the mixed case 

regulations to apply, “the claim that forms the basis of the 

discrimination complaint must be appealable to the MSPB.” 

Id. at ch. 4, pt. II.B. This Directive makes clear that the 

MSPB’s jurisdiction over appealable matters does not 

extend to related non-appealable matters. Id. (citing EEOC 

precedent that “essentially overturned the doctrine of 

inextricably intertwined”).

Meanwhile, in 2005, the MSPB formally rejected the 

“inextricably intertwined” doctrine that the Army would 

have us adopt. In Lethridge v. United States Postal Service, 

99 M.S.P.R. 675 (M.S.P.B. 2005), the federal employee 

appealed to the MSPB following his removal from the Postal 

Service, alleging disability discrimination. Id. at 676. The 

employee had also filed three related EEO complaints 

alleging discrimination in connection with (1) the denial of 

a reasonable accommodation and placement in a non-pay 

status, (2) the ending of his detail assignment, his supervisor 

calling him a “bastard,” and his being informed of his 

impending termination, and (3) a notice of proposed 

removal. Id. at 676–77. The EEOC consolidated the EEO 

complaints and ruled that they “cannot sensibly be 

disassociated from the termination claim” pending before 

the MSPB, “and that the entire matter must be referred to the

MSPB.” Id. at 677–78. The employee then submitted the 

claims to the MSPB.
CROWE V. WORMUTH 29

In a precedential opinion, an MSPB appellate panel held 

that the MSPB lacked jurisdiction over all three claims. Id.

at 678–81. Just as we reasoned above, the MSPB found 

“nothing in the plain language of sections [5 U.S.C. §§]

7512, 7513(d), and 7702(a)(1), that suggests that the Board 

has jurisdiction over otherwise non-appealable actions, such 

as those at issue here, when those actions are allegedly 

‘inextricably intertwined,’ or ‘cannot sensibly be 

bifurcated,’ with otherwise appealable actions.” Id. at 679. 

Or, put another way, “section 7702(a)(1) provides that the 

Board shall decide the issue of discrimination ‘and the 

appealable action,’ not issues of discrimination in 

connection with non-appealable actions.” Id.

Lethridge also located its rule in other sources beyond 

the statutory text. It relied on the CSRA’s legislative history,

which indicated that “‘[i]n the case of discrimination 

complaints involving personnel actions not otherwise 

appealable to the Board, the Commission [EEOC] will have 

full responsibility for deciding the matter,’ and that ‘[t]he 

jurisdiction of the Board is determined entirely by the nature 

of the personnel action taken, not by the kind of legal or 

factual arguments raised or the procedures used to raise the 

discrimination issue.’” Id. at 679–80 (alterations in original) 

(quoting S. Rep. No. 95–969, at 53, 56 (1978), as reprinted 

in 1978 U.S.C.C.A.N. 2775, 2778). Lethridge further relied 

on the fact that, as we discussed above, the EEOC in 2003 

had changed its own guidance, withdrawing its prior 

directive that claims relating to otherwise non-appealable 

matters be consolidated in the MSPB with factually related 

appealable claims. Id. at 680.

Lethridge recognized that there may be “valid policy 

reasons for the [MSPB] to consider non-appealable actions 

with appealable actions, such as the avoidance of allegedly 
30 CROWE V. WORMUTH

inconsistent results.” Id. But this did not change matters 

because “the Board cannot expand its limited jurisdiction to 

address those policy concerns.” Id. Lethridge did go on to 

state that “[i]n any event, we find that there are distinct 

actions at issue in the appellant’s EEO complaints and his 

[MSPB] appeal that, if adjudicated, would not necessarily 

produce inconsistent results.” Id. But this aside does not 

take away from Lethridge’s clear holding that the MSPB 

lacked pendent jurisdiction over otherwise non-appealable 

matters, even if factually related to an appealable claim. 

Later decisions from the MSPB follow this rule from

Lethridge. See, e.g., Desjardin v. U.S. Postal Serv., 2023 

WL 2170811, at ¶ 25 (M.S.P.B. Feb. 22, 2023); 

McDermott v. U.S. Postal Serv., 2015 WL 5943662, at 

¶¶ 26–28 (M.S.P.B. Oct. 13, 2015); Webster v. Dep’t of 

Energy, 2015 WL 4069357, at ¶¶ 44–45 (M.S.P.B. July 6, 

2015); Wilson v. Dep’t of Veterans Affs., 2006 WL 1375031, 

at ¶¶ 8, 13 (M.S.P.B. May 11, 2006). Of course, to the extent 

there is any imprecision within the MSPB’s decisions postLethridge, our decision today may provide occasion for the 

MSPB to consider whether to issue clearer guidance to those 

whom it serves.

In its briefing, the Army identified a few EEOC 

decisions in which the EEOC referenced the “inextricably 

intertwined” doctrine, notwithstanding its contrary 2003 

Management Bulletin and 2015 Management Directive. 

See, e.g., Venetta S., Complainant, EEOC DOC 

2020000414, 2020 WL 5994724 (Sept. 9, 2020); Belkis D., 

Complainant, EEOC DOC 2021000093, 2021 WL 1072293 

(Mar. 2, 2021); Maximo S., Complainant, EEOC DOC 

2020003877, 2020 WL 6165645 (Oct. 7, 2020).
CROWE V. WORMUTH 31

But, in addition to the formal directives we discussed 

above, other recent EEOC decisions explicitly reject the 

doctrine. See, e.g., Melani F., Complainant, EEOC DOC 

2022002288, 2022 WL 3153835 (July 19, 2022) (“[T]he 

doctrine of ‘inextricably intertwined’ is no longer applicable 

in most circumstances because the MSPB generally does not 

have jurisdiction over non-appealable matters, even if they 

are related to appealable matters.”); Willia M., Complainant, 

EEOC DOC 0120181909, 2019 WL 1397652 (Mar. 15, 

2019) (“[T]he doctrine of ‘inextricably intertwined’ was 

overturned because the MSPB generally does not have 

jurisdiction over non-appealable matters, even if they are 

related to appealable matters.”).

In sum, it appears that both the MSPB and the EEOC

have now for some time (if not with perfect consistency) 

taken the position that the MSPB does not have jurisdiction 

over otherwise non-appealable employment actions that may 

be factually related to an appealable one. We do not give 

these agency decisions any deference, nor do we defer to the 

MSPB’s amicus brief in this case. Because we find the 

general positions of the MSPB and EEOC persuasive, we 

have no occasion to decide whether any deference might be 

warranted. The MSPB’s interpretation of the text of the 

CSRA in Lethridge mirrors our own. And the general

approach that both agencies have now long followed is the 

approach we adopt here.

E

That the MSPB and EEOC share our view of the 

statutory scheme leads to some important practical benefits. 

Although we could not endorse agency practice if it were 

contrary to the text of the statute, a welcome consequence of 

our decision today is that it does not upend what is now at 
32 CROWE V. WORMUTH

least two decades of MSPB and EEOC guidance and rulings 

on the question of whether factually related discrimination 

claims may be swept in to the MSPB’s mixed case 

jurisdiction.

This also means that if a federal employee files in the 

MSPB a mixed case appeal along with other claims over 

which the MSPB lacks jurisdiction, the MSPB can be 

expected to direct the employee to re-file the non-appealable 

claims in the EEO process. See 29 C.F.R. § 1614.302(b). 

As we noted in Sloan, “[o]rdinarily, if the MSPB finds it 

lacks jurisdiction over either the entire case, or over one of 

the claims, it will dismiss the complaint and/or claims” and 

“advise the employee to seek appropriate review of any 

extra-jurisdictional non-discrimination claims through other 

channels,” including EEO administrative procedures. 140 

F.3d at 1260–61.

We understand that there are some potential practical

downsides to our interpretation of the statute, most notably 

that factually related claims may need to be brought before 

both the EEO offices and the MSPB, to the extent employees

wish to pursue mixed case appeals before the MPSB. Even 

though the MSPB’s jurisdiction is limited to adjudicating

appealable actions, it appears the MSPB will consider other 

agency actions as evidence in deciding whether the 

appealable action was discriminatory. See, e.g., Desjardin, 

2023 WL 2170811, at *7. The MSPB acknowledged the 

same point at oral argument. Stays of administrative 

proceedings may ameliorate some of the difficulties 

associated with raising factually related claims before both 

an EEO office and the MSPB, and we understand that such 

stays are sometimes entered when an employee has factually 

related claims pending in multiple administrative fora. But

even so, one could reasonably argue that if the employee 
CROWE V. WORMUTH 33

with a mixed case is going to proceed before the MSPB, it 

would be more efficient if all the claims—appealable claims

and factually related claims—could all be administratively 

exhausted before that entity.

There is, however, a simple answer to this: our role is not 

to devise a “better” administrative scheme than the one 

Congress enacted. “[P]ractical difficulties . . . do not justify 

departure from the [statute’s] plain text.” E.P.A. v. EME 

Homer City Generation, L.P., 572 U.S. 489, 509 (2014). 

Congress clearly envisioned a division of responsibility 

between the MSPB and EEO offices, such that federal 

employees would need to raise some types of claims before 

one or the other. All we have done is give effect to 

Congress’s twin choices to limit the MSPB’s jurisdiction to 

certain “particularly serious” adverse employment actions, 5 

U.S.C. § 7512; Kloeckner, 568 U.S. at 44, and to tie the 

MSPB’s authority over claims of discrimination to those

specific types of employment actions over which the MSPB 

has jurisdiction, 5 U.S.C. § 7702(a)(1).

We cannot speculate why Congress may have set things 

up this way. To the extent the “mixed case” regime was 

intended to avoid “protract[ed] proceedings” and 

“increas[ed] costs,” Perry, 582 U.S. at 423, one can 

reasonably question whether the complex legal architecture 

in this area is serving those objectives. But we note that in 

this instance, there is possible logic behind Congress’s setup: 

it is at least a clear rule. If an employee wants to bring a 

mixed case appeal before the MSPB, it must concern one of 

the five “particularly serious” adverse employment actions 

in 5 U.S.C. § 7512, full stop. Discrimination claims 

concerning other lesser employment actions must go through 

the EEO process. The regime may seem arbitrary, but if two

administrative bodies are to be involved, it is at least 
34 CROWE V. WORMUTH

apparent which claims may be taken to which forum. To this 

point, we note that after some initial confusion before he 

obtained counsel, Crowe properly navigated this 

administrative regime.

There is, meanwhile, a significant downside of a

McAdams-style “factually related” or “inextricably 

intertwined” test: it may often be unclear when such a test is 

met. Employees who suffer one of the five “particularly 

serious” adverse actions within the MSPB’s jurisdiction may 

view those employment decisions as arising from a series of 

perceived indignities, demerits, and workplace issues that 

occur over time. In each case, this would present the 

question of just how related these other actions must be to 

the more serious action that enabled the MSPB’s 

jurisdiction. That uncertain inquiry could well lead to 

confusion over where claims should be exhausted. 

Especially considering that many CSRA claimants are 

unrepresented in the administrative process, see Perry, 582 

U.S. at 423 n.1, a regime that turns on a “factually related” 

standard could fail to provide “clear guidance about the 

proper forum for the employee’s claims at the outset of the 

case.” Elgin, 567 U.S. at 15. But in any event, whether the 

statute reflects sound policy or not, we must interpret it 

according to its terms. That is what we have done here.

F

We now apply our interpretation of the CSRA and 

implementing regulations to Crowe’s claims of pretermination discrimination. These adverse personnel actions 

again consist of the following: the Army’s investigation into 

Crowe; his temporary reassignment to administrative duties

and related removal of his police powers (including 

deprivation of overtime); and his proposed termination. 
CROWE V. WORMUTH 35

None of these adverse actions is among the five “particularly 

serious” actions over which the MSPB has jurisdiction in

mixed cases. 5 U.S.C. §§ 7512; 7702(a)(1); Kloeckner, 568 

U.S. at 44.

We therefore hold that Crowe did not fail to exhaust 

these claims before the MSPB because the MSPB lacked 

jurisdiction to consider them. Under the statute, Crowe is 

properly understood not as having impermissibly pursued a 

“mixed case complaint” and a “mixed case appeal” “on the 

same matter,” 29 C.F.R. § 1614.302(b), but as having 

permissibly pursued a “mixed case appeal” and several nonmixed EEO complaints. Crowe accomplished this result 

once he withdrew his termination claim from the EEO 

process and re-filed it before the MSPB as a mixed case 

appeal. 

In the case of Crowe’s proposed termination, we note 

that there is some authority from the EEOC suggesting that, 

notwithstanding the EEOC’s rejection of the “inextricably 

intertwined” doctrine, a proposed termination is nonetheless 

part of the mixed case and within the MSPB’s jurisdiction. 

See, e.g., Robert L. Wilson, Complainant, EEOC DOC 

0120122103, 2012 WL 4320987 at *2 (Sept. 10, 2012) (“The 

doctrine of inextricably intertwined was effectively 

overturned . . . . We note, however, that a proposed action 

merges with the decision on an appealable action, i.e., a 

proposed removal merges into a decision to remove.”); see 

also EEO MD-110 at Ch. 4 § II.B.4.d (2015).

The MSPB takes a different view. In Lethridge, the 

MSPB held that it lacked jurisdiction to hear the employee’s 

claim that his proposed removal was based on 

discrimination. 99 M.S.P.R. at 681. The MSPB disagreed 

that it could consider the employee’s proposed removal on 
36 CROWE V. WORMUTH

the theory that it “was intertwined with the agency’s ultimate 

removal action over which the Board has jurisdiction,” 

because “the applicable statutes limit the Board’s 

jurisdiction to removals, not proposed removals.” Id. The 

MSPB also cited authority from the Federal Circuit holding 

the same. See Cruz, 934 F.2d at 1243 (“Because mere 

proposals to remove are not listed in § 7512, they are not 

appealable adverse actions in themselves and the Board has 

no jurisdiction to consider them.”). 

The MSPB’s position is the correct one: under the 

CSRA, the MSPB lacks jurisdiction to adjudicate claims of 

discrimination for proposed removals, and so Crowe was not 

required to exhaust this claim before the MSPB. The same 

is true of Crowe’s other pre-termination claims.

III

We have thus far limited our discussion of exhaustion to 

Crowe’s pre-termination discrimination claims, but there is 

another exhaustion issue we must also resolve. In 

challenging his termination before the MSPB, the only form 

of discrimination Crowe alleged as an affirmative defense 

was sexual orientation discrimination. In the district court, 

it appears that Crowe tried to broaden his allegations, 

claiming that the Army also terminated him because of his 

race, sex, and in retaliation for complaining about Officer 

Oda’s use of a homophobic slur. To the extent Crowe is now 

trying to argue that he was terminated for discriminatory 

reasons other than his sexual orientation, we hold that Crowe 

failed to exhaust these theories before the MSPB.

Having chosen to challenge his termination in a mixed 

case appeal before the MSPB, Crowe was required to raise 

before that body all theories of discrimination that he 

believed applied to that appealable personnel decision. This 
CROWE V. WORMUTH 37

obligation, known as “issue exhaustion,” is “commonly 

require[d]” in administrative review schemes. Carr v. Saul, 

141 S. Ct. 1352, 1358 (2021). Courts will sometimes require 

issue exhaustion even “[w]here statutes and regulations are 

silent.” Id. But “it is common for an agency’s regulations 

to require issue exhaustion in administrative appeals,” and 

“when regulations do so, courts reviewing agency action 

regularly ensure against the bypassing of that requirement by 

refusing to consider unexhausted issues.” Sims v. Apfel, 530 

U.S. 103, 108 (2000); see also Sears, Roebuck & Co. v. FTC,

676 F.2d 385, 398 (9th Cir. 1982) (“Exhaustion rules insure 

an adequate record, prevent surprise, and avoid the 

application of judicial resources to matters which might be 

resolvable at the agency level. . . . [A]bsent exceptional 

circumstances, a reviewing court will refuse to consider 

contentions not presented before the administrative 

proceeding at the appropriate time.” (quotation omitted)).

Here, the MSPB has promulgated regulations requiring 

issue exhaustion. See 5 C.F.R. § 1201.59(c).7 Under those 

regulations, the MSPB “generally does not accept arguments 

raised after the close of the record before the administrative 

judge.” McClenning v. Dep’t of the Army, 2022 WL 985905 

at *3 (M.S.P.B. Mar. 31, 2022) (citing 5 C.F.R. 

§ 1201.59(c)). Based on these regulations, the MSPB 

requires a claimant to exhaust an issue before an AJ before 

the full Board’s review panel will consider it. Id. at *3–6.

Additionally, the Federal Circuit requires issue exhaustion 

7 That regulation provides that “[o]nce the record closes, additional 

evidence or argument will ordinarily not be accepted unless: (1) The 

party submitting it shows that the evidence or argument was not readily 

available before the record closed; or (2) It is in rebuttal to new evidence 

or argument submitted by the other party just before the record closed.” 

5 C.F.R. § 1201.59(c).
38 CROWE V. WORMUTH

in appeals from the MSPB. See, e.g., Bosley v. MSPB, 162 

F.3d 665, 668 (Fed. Cir. 1998) (“[I]f the party fails to raise 

an issue in the administrative proceeding or raises an issue 

for the first time in a petition for review by the full Board, 

this court will not consider the issue.”). For the same 

reasons, we conclude that an employee who pursues his 

mixed case in the MSPB and who seeks judicial review in 

the district court must first exhaust any theories of 

discrimination as to adverse employment actions over which 

the MSPB would have had jurisdiction.

To hold otherwise would compromise the statutory 

scheme. The entire structure of the “comprehensive system” 

that the CSRA creates, Elgin, 567 U.S. at 5—with its several 

layers of administrative and judicial review—presupposes 

that each step in the administrative (and judicial) process 

will build on the last. If an employee could bolster his mixed 

case in the district court with new theories never presented 

to the MSPB, the CSRA’s extensive framework of 

administrative review would be rendered irrelevant as soon 

as the employee moved on to federal court. Congress surely

did not construct this administrative labyrinth just for fun.

Having determined that issue exhaustion is required in 

MSPB proceedings, we conclude that Crowe failed to 

comply with this requirement for his theories that his 

termination was based on sex and race discrimination and in 

retaliation for protected activity. Even if Crowe raised these 

claims in the EEO process when he amended his EEO 

complaint to encompass his termination, Crowe voluntarily 

moved to dismiss his termination-based claims from his 

EEO complaint shortly thereafter so that he could raise them 

before the MSPB as a mixed case appeal. Crowe thus did 

not exhaust those claims through the EEO process (and

could not have done so once he elected to pursue his mixed 
CROWE V. WORMUTH 39

case before the MSPB, see 29 C.F.R. § 1614.302(b)). Nor

did Crowe exhaust these claims in his MSPB appeal. The 

only discrimination claim Crowe asserted there was a claim 

of sexual orientation discrimination.8 We thus hold that any 

other theories of discrimination that Crowe may wish to raise 

as to his termination are unexhausted. 

IV

We now switch gears and turn to the one Title VII claim 

that the district court found exhausted and addressed on the 

merits: Crowe’s claim that he was terminated based on his 

sexual orientation. We review the district court’s grant of 

summary judgment to the Army de novo. Silverado 

Hospice, Inc. v. Becerra, 42 F.4th 1112, 1118 (9th Cir. 

2022). We construe the facts in the light most favorable to 

Crowe as the nonmoving party and determine if there is any 

genuine dispute of material fact. Fed. R. Civ. P. 56(a); 

O’Doan v. Sanford, 991 F.3d 1027, 1035 (9th Cir. 2021). 

“Where the record taken as a whole could not lead a rational 

trier of fact to find for the non-moving party, there is no 

‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. 

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First 

8 Based on selective quotations from the MSPB AJ’s initial decision and 

isolated statements Crowe’s counsel made during the MSPB hearing, 

Crowe argues that he raised his termination-based retaliation claim 

before the MSPB. We reject this argument. Although the AJ 

occasionally used the term “retaliation” in her decision, including when 

discussing general legal standards, the AJ never addressed whether the 

Army retaliated against Crowe for reporting Officer Oda, further 

supporting that Crowe did not present such a theory to the MSPB. That 

Crowe’s counsel fleetingly mentioned retaliation a few times during a 

three-day hearing was also not sufficient to raise the issue before the 

MSPB.
40 CROWE V. WORMUTH

Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289

(1968)).

To make out a prima facie case of discrimination under 

Title VII, the plaintiff may invoke the burden-shifting 

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 

792 (1973), and demonstrate that “(1) he belongs to a 

protected class; (2) he was qualified for the position; (3) he 

was subject to an adverse employment action; and (4) 

similarly situated persons outside his protected class were 

treated more favorably.” Chuang v. Univ. of Cal. Davis, Bd. 

of Trs., 225 F.3d 1115, 1123 (9th Cir. 2000). The plaintiff 

may “alternatively offer direct or circumstantial evidence of 

discriminatory motive to establish her prima facie case.” 

Opara v. Yellen, 57 F.4th 709, 722 (9th Cir. 2023). Once the 

plaintiff makes out a prima facie case, the burden shifts to 

the employer to articulate a legitimate, nondiscriminatory 

reason for the adverse employment action. McDonnell 

Douglas, 411 U.S. at 802. Assuming the employer does so, 

the burden then shifts back to the plaintiff to show that the 

employer’s asserted nondiscriminatory reason is pretextual. 

Id. at 804.

The Supreme Court has now held that sexual orientation 

discrimination is actionable under Title VII. See Bostock v. 

Clayton Cnty., Ga., 140 S. Ct. 1731, 1737 (2020). But we 

agree with the district court that the Army is entitled to 

summary judgment on this claim. Although the district court 

concluded that Crowe’s showing was so insufficient that he 

had not even made out a prima facie case, we will assume 

without deciding that he has. See, e.g., Hawn v. Exec. Jet. 

Mgmt., Inc., 615 F.3d 1151, 1158 (9th Cir. 2010) (“[A] 

plaintiff’s burden is much less at the prima facie stage than 

at the pretext stage.”).
CROWE V. WORMUTH 41

Even so, the Army has clearly articulated sufficient, nondiscriminatory reasons for removing Crowe based on his 

inappropriate workplace conduct. This principally included: 

regularly having sex with Garcia in a room at the TAMC 

during work hours; spending long periods of time gossiping 

with other employees while on duty; having inappropriate 

discussions with other employees about his romantic 

relationships; and confronting James Sewell about an 

alleged relationship with Garcia. It goes without saying that 

instances of workplace misconduct such as these quite 

plainly satisfy the Army’s burden to produce evidence of

valid, non-discriminatory reasons for terminating an 

employee.

The burden thus shifts back to Crowe to show pretext. 

He may do so “(1) directly, by showing that unlawful 

discrimination more likely than not motivated the 

employer,” and/or “(2) indirectly, by showing that the 

employer’s proffered explanation is unworthy of credence 

because it is internally inconsistent or otherwise not 

believable.” Opara, 57 F.4th at 723 (quoting Chuang, 225 

F.3d at 1127) (alterations and quotations omitted). Crowe 

concentrates his pretext argument on Officer Oda’s 

inappropriate comments and Oda’s later role in interviewing 

employees for the investigation into Crowe’s workplace 

behavior. But we agree with the district court that there is 

no genuine issue of material fact as to whether the Army’s 

decision to terminate Crowe was pretextual.

Although Officer Oda conducted the interviews, he acted

at the direction of Supervisory Officer Ballesteros. It was 

Ballesteros who decided to issue the notice of proposed 

removal to Crowe. And it was Deputy Provost Marshal 

Ingebredtsen who, after consulting with a subject-matter 

expert from the Civilian Personnel Office, made the 
42 CROWE V. WORMUTH

independent decision to terminate Crowe’s federal 

employment. There is no evidence that either Ballesteros or 

Ingebredtsen harbored animus toward Crowe based on his 

sexual orientation. Indeed, there is no evidence that either 

man knew at the relevant timesthat Crowe was bisexual. See 

Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983) 

(“mere assertions” of “discriminatory motivation and intent” 

are “inadequate, without substantial factual evidence, to 

raise an issue precluding summary judgment”). Regardless, 

it is undisputed that when Crowe early on complained about 

Oda’s homophobic language, Ballesteros took immediate 

action, counseling Oda that this was inappropriate and 

requiring Oda to apologize to Crowe.

To the extent Crowe argues that derogatory remarks 

always create a dispute of material fact as to unlawful 

discrimination regardless of the rest of the circumstances, 

our cases show that is not correct. See, e.g., Kortan v. Cal.

Youth Auth., 217 F.3d 1104, 1110–11, (9th Cir. 2000)

(holding that a supervisor’s usage of highly inappropriate 

sexist comments was not “frequent, severe or abusive 

enough to interfere unreasonably with [the plaintiff’s] 

employment”); Vasquez v. County of Los Angeles, 349 F.3d 

634, 642–44 (9th Cir. 2003), as amended (Jan. 2, 2004)

(holding that racist comments were “not severe or pervasive 

enough” to create a dispute of fact).

In short, there is no genuine dispute of material fact that 

Crowe was terminated because of his misconduct at the 

workplace, as opposed to his sexual orientation.

V

We turn lastly to Crowe’s challenge to the MSPB’s 

decision rejecting Crowe’s claim under the CSRA and 

upholding his termination as supported by sufficient 
CROWE V. WORMUTH 43

evidence. Because Crowe’s case before the MSPB was a 

mixed case, and because Crowe continued to challenge the 

discrimination component of that decision, Crowe properly 

sought review of the MSPB’s resolution of his CSRA claim 

in the district court. Perry, 582 U.S. at 426 & n.3; 

Washington, 10 F.3d at 1428.

Our review of the MSPB’s decision on Crowe’s CSRA

claim is deferential. We will not set it aside unless it is “(1) 

arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law; (2) obtained without procedures 

required by law, rule, or regulation having been followed; or 

(3) unsupported by substantial evidence.” Sloan, 140 F.3d 

at 1260 & n.16 (quoting 5 U.S.C. § 7703(c)); see also 

Washington, 10 F.3d at 1428.

Crowe has not demonstrated infirmity in the MSPB’s 

resolution of his CSRA claim. Crowe’s only argument is 

that the MSPB failed adequately to account for the fact that 

Garcia—who testified that she regularly had sex with Crowe 

while he was on duty—recanted her testimony and then 

ultimately recanted her recantation after the Army proposed 

firing her for making false statements. But the MSPB 

Administrative Judge (AJ) considered Garcia’s 

recantation(s) and found that her testimony about her sexual 

encounters with Crowe at TAMC was “unequivocal, 

detailed, internally consistent, [and] consistent with the 

record.” Further, while Garcia was “sincere and forthright,” 

Crowe’s “self-serving testimony” was not believable.

The AJ gave specific reasons for crediting Garcia’s 

original statement over her recantation, including that the 

original statement was “likely made before Garcia fully 

understood the impact that her statement would have on both 

[Crowe] and herself,” whereas her recantation “appear[ed] 
44 CROWE V. WORMUTH

more calculated and motivated by the exigencies of the 

circumstances in which she found herself at that time.” The 

AJ also found that Garcia’s testimony was supported by the 

statements of Tabangeura and Sam.

“Special deference” is given to the AJ’s “credibility 

judgments.” Curran v. Dep’t of the Treasury, 714 F.2d 913, 

915 (9th Cir. 1983). We conclude that substantial evidence 

supports the MSPB’s finding that Crowe regularly had sex 

at TAMC during work hours. Crowe’s CSRA claim thus 

fails.

* * *

To summarize our holdings: (1) we vacate the district 

court’s decision that Crowe failed to exhaust administrative 

remedies before the MSPB with respect to his claims of pretermination adverse employment actions, and we remand 

these claims for further proceedings; (2) we affirm the 

district court’s determination that Crowe failed to exhaust 

before the MSPB any other discriminatory grounds for his 

termination besides sexual orientation discrimination; (3) we 

affirm the district court’s grant of summary judgment to the 

Army on Crowe’s Title VII claim alleging he was terminated 

because of his sexual orientation; and (4) we affirm the 

district court’s grant of summary judgment to the Army on 

Crowe’s CSRA claim. The parties shall bear their own costs 

on appeal.

AFFIRMED in part, VACATED in part, and 

REMANDED.
CROWE V. WORMUTH 45

SCHROEDER, Circuit Judge, concurring:

I agree with the majority’s outcomes, including its 

conclusion to remand the pre-termination claims to the 

district court. Given the Merit Systems Protection Board’s 

(“MSPB”) position that it will not decide any of plaintiff’s 

claims other than the termination claim, no matter how 

closely related, we should not penalize the plaintiff for 

seeking to litigate them elsewhere. At the same time, I fully 

understand why the district court followed the only circuit 

decision on point. See McAdams v. Reno, 64 F.3d 1137 (8th 

Cir. 1995). The court had little choice. As the majority 

points out, the MSPB had fully articulated its position in 

Lethridge v. United States Postal Service, 99 M.S.P.R. 675 

(M.S.P.B. 2005). That decision was not before the district 

court, even though the plaintiff’s position was consistent 

with it. Indeed we did not have the benefit of that decision 

until after oral argument in this appeal, when the MSPB 

appeared as an amicus and we ordered re-argument. And, 

importantly, because the conflict was not apparent until after 

oral argument, the Department of Justice never had an 

opportunity to review the situation to guard against 

intergovernmental conflicts.

The unfortunate situation we face now is that two 

government entities are taking opposing positions with 

respect to the district court’s jurisdiction to hear the pretermination claims. Aware of the MSPB’s position, the 

plaintiff has made a reasonable decision to seek a district 

court forum to litigate those claims. They include claims for 

damages that are independent of the damages sought in the 

termination claim, although all claims arise out of the same 

factual nexus.
46 CROWE V. WORMUTH

Whether the MSPB’s position on its jurisdiction is 

correct as a matter of law, I am uncertain. The majority notes 

there are downsides, and that is an understatement. 

Litigating related claims, stemming from the same facts, in 

two different forums, is expensive, time consuming, and can 

yield inconsistent results. Our civil litigation rules require 

such claims to be tried together. See Fed. R. Civ. 13(a). We 

are creating a circuit split that exacerbates this uncertainty, 

but, viewed most optimistically, may permit the Department 

of Justice to review this legal disarray and live up to its 

mission that the government “speaks with one voice in its 

view of the law.” See About the Division, U.S. Dep’t of 

Justice, Civ. Div. (2023), https://www.justice.gov/civil. 

This case illustrates why that is a worthy goal.