## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 4 2003 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD EVAN HARMS,

Plaintiff - Appellant,

v. INTERNAL REVENUE SERVICE,

Defendant - Appellee. No. 01-3245

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 00-CV-2460-KHV)

Alleen Castellani VanBebber, Mission, Kansas, for P laintiff-Appellant. Nancy Landis Caplinger, Assistant United States Att orney, (James E. Flory, United States Attorney, Eric F. Melgren, United States Attorney, with her on the briefs), Topeka, Kansas, for Defendant-Appellee.

Before LUCERO , PORFILIO , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.1 Harms pleaded a violation of the Americans with D isabilities Act, 42

U.S.C. §§ 12101–12213. The district court, however , properly construed Harms’ claims as arising under the Rehabilitation Act. -2- I. INTRODUCTION Appellant Richard Harms filed this action in federa l district court against his former employer, the Internal Revenue Service ( “IRS”), alleging he was wrongfully suspended and terminated in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. , and the Vocational Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. §§ 791 and 794. 1 The district court granted the IRS’ motion for summ ary judgment on Harms’ claims relating to his suspension and dismissed the claims relating to his termination for lack of subject matter jurisdiction . This court has jurisdiction under 28 U.S.C. § 1291 and affirms

. II. FACTUAL AND PROCEDURAL BACKGROUND Harms was employed as a tax examining assistant by the IRS. The IRS suspended Harms without pay from April 22 through M ay 1, 1996. On April 17, 1996, Harms filed an individual complaint of discri mination (an “EEO complaint”) with the Department of the Treasury, Tr easury Complaint Center (“TCC”). Harms’ EEO complaint alleged that his sus pension was the result of retaliation and discrimination based on age, sex, n ational origin, race, religion,-3-

and mental and physical disability. The TCC accept ed Harms’ EEO complaint for processing on August 12, 1996. On October 13, 1996, Harms was terminated by the IR S. Harms was informed by the IRS that he could appeal his termin ation to the Merit Systems Protection Board (“MSPB”). Harms was also informedthat if he alleged his termination was based on discrimination, he could e ither appeal the termination to the MSPB, or raise his discrimination allegation th rough the IRS discrimination complaint system. He was, however, told that he co uld not pursue both routes. On November 14, 1996, Harms appealed his terminatio n to the MSPB. In his appeal, Harms alleged that his termination was the result of retaliation and discrimination on the basis of race, religion, sex, and political affiliation. On January 9, 1997, the TCC dismissed Harms’ EEO co mplaint regarding his suspension, stating that the appeal of his term ination to the MSPB raised the same matters contained in his EEO complaint. Harms was instructed by the TCC to bring the allegations he made in his EEO complai nt to the attention of the MSPB. On January 23, 1997, Harms’ brother informed the Ad ministrative Law Judge (“ALJ”) assigned to hear Harms’ MSPB appeal that Harms had been involuntarily institutionalized and that he was “expected to regain competency-4-

within six months.” The ALJ dismissed Harms’ appea l without prejudice and ordered that he re-file his appeal by July 23, 1997

. On November 6, 1997, Harms filed a petition to reop en his appeal with the MSPB. On March 4, 1998, the ALJ dismissed Harms’ p etition on the grounds that he did not timely re-file his appeal with the MSPB after he regained competency on August 2, 1997, the date he resumed t aking his antipsychotic medication. Harms filed a petition for review of t he dismissal of his appeal which the MSPB denied on July 31, 1998. Harms appe aled the final decision of the MSPB to the United States Court of Appeals for the Federal Circuit. The Federal Circuit affirmed the decision of the MSPB o n February 14, 2000. Harms filed a petition for writ of certiorari with the Un ited States Supreme Court which was denied on October 2, 2000. On October 12, 2000, Harms filed this action in the district court alleging that his suspension and termination violated Title VII and the Rehabilitation Act. On February 9, 2001, the IRS filed a motion to dism iss, or in the alternative, for summary judgment. The district court granted summary judgment for the IRS on Harms’ claims relating to his suspension, concludin g that Harms failed to timely file his civil action and that equitable tolling wa s not warranted under the circumstances. The district court also dismissed H arms’ claims relating to his termination, reasoning that it lacked subject matte r jurisdiction to review the-5-

MSPB’s dismissal of Harms’ appeal for untimeliness and that Harms failed to exhaust his administrative remedies. III. DISCUSSION A. The Civil Service Reform Act 1. Individual Complaints in Non-Mixed Cases A federal employee asserting Title VII and Rehabili tation Act claims must file an initial complaint with his agency Equal Emp loyment Office (“EEO”). 29 C.F.R. §§ 1614.105(a)(1), 1614.106. The employee may appeal the final determination of the agency to the federal districtcourt within ninety days of the receipt of the final action or 180 days after the f iling of the complaint if no action is taken by the agency. 29 C.F.R. § 1614.407(a)-(b ). 2. Mixed Cases The Civil Service Reform Act (“CSRA”), provides an alternative mechanism by which a federal employee may assert Ti tle VII and Rehabilitation Act claims that arise out of adverse employment act ions which are also appealable to the MSPB. 5 U.S.C. §§ 1201–1222; McAdams v. Reno , 64 F.3d 1137, 1141 (8th Cir. 1995). Such cases are referred to as “mi xed cases” because the alleged unlawful discrimination is either related to or ste ms from an employment action over which the MSPB has jurisdiction. 29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.3.-6-

Under the CSRA, a federal employee may file a mixed case complaint with the agency’s EEO department or a mixed case appeal with the MSPB. 5 U.S.C. § 7702(a); 29 C.F.R. § 1614.302; 5 C.F.R. §§ 1201.151 -1201.157. A mixed case complaint and mixed case appeal, however, cannot be pursued simultaneously. 29 C.F.R. § 1614.302(b). If the employee files a mixed case appeal with the MSPB, the MSPB is required to address both the alleged discriminationand the employment action. 5 U.S.C. § 7702(a)(1). When the MSPB issues a decisi on on a mixed case, the employee may seek de novo review of the MSPB’s decision in federal district court. 29 C.F.R. § 1614.310(b). B. Harms’ Suspension Claims The individual EEO complaint Harms filed with the T CC was not a mixed case because the MSPB lacked jurisdiction over his ten-day suspension. 5 C.F.R § 1201.3 (2002); 5 U.S.C. § 7702(a)(1)(A). The TCC dismissed Harms’ individual EEO complaint on January 9, 1997. Harms , however, waited until October 12, 2000, to file this case in federal dist rict court appealing the dismissal of his individual EEO complaint by the TCC. The district court granted the IRS summary judgmenton Harms’ suspension claims by concluding that Harms did not timely file his civil action challenging the TCC’s dismissal of his individual EEO complaintand that equitable tolling-7-

was not warranted under the circumstances. Harms c oncedes that his civil action was not timely. 29 C.F.R. § 1614.407(a) (providing that an employee who receives an adverse agency decision on his individu al EEO complaint may then file a civil action in federal district court withi n 90 days of the receipt of the final agency action). He argues, however, that the distr ict court abused its discretion when it decided not to equitably toll the time in w hich he was required to seek review of the TCC’s dismissal of his EEO complaint. This court typically reviews the district court’s g rant of summary judgment de novo

. Simms v. Oklahoma , 165 F.3d 1321, 1326 (10th Cir. 1999). This court , however, reviews the district court’s decision not to apply equitable tolling for an abuse of discretion. United States v. Clymore , 245 F.3d 1195, 1198 (10th Cir. 2001).The requirement that a plaintiff file a timely civi l action after the disposition of an individual EEO complaint is not ajurisdictional requirement, but rather is subject to waiver, estoppel, and equitabl e tolling. Cf. Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 393 (1982); Biester v. Midwest Health Servs., Inc. , 77 F.3d 1264, 1267 (10th Cir. 1996). Equitable e xceptions, however, have been narrowly construed. See Biester , 77 F.3d at 1267. Harms argues that the time for filing his civil action should have been t olled because: (1) he was not-8-

mentally competent to proceed in a timely manner; a nd (2) the TCC improperly instructed him to bring his suspension claims befor e the MSPB. This court has never held that an individual’s ment al incapacity entitles him to equitable tolling Id . at 1268. In Biester , however, we noted that courts which recognize equitable tolling for mental incapacity h ave limited its application to exceptional circumstances. Id . Given the facts of this case as explained more fully below, this court need not reach the issue of whether the statute of limitations for filing a civil action in district c ourt from the dismissal of an individual EEO complaint should be equitably tolled for mental incapacity. The district court concluded the undisputed facts s howed that Harms was mentally competent as of August 2, 1997 when he res umed taking his antipsychotic medication. The district court also noted Harms presented no evidence to explain why he delayed the filing of hi s complaint for three years after he regained mental competency. Harms, howeve r, argues that the district court failed to request medical records or psychiat ric evidence to support its conclusion that he was mentally competent after Aug ust 2, 1997. Harms’ argument lacks merit. Harms had the burden of esta blishing his mental competency. See Biester , 77 F.3d at 1268-69. Harms failed to present any evidence to the district court that he was mentally incompetent after August 2, 1997, when he resumed taking his antipsychotic medi cation. Accordingly, after-9-

reviewing the record this court is satisfied that t he district court did not abuse its discretion in concluding that equitable tolling was not warranted because Harms failed to proffer any evidence to justify the delay in filing his civil action after August 2, 1997. Harms also argues that the time for filing his civi l action should have been tolled because the TCC improperly instructed him to take his suspension claims to the MSPB. Harms’ suspension was for less than fourteen days. The MSPB lacks jurisdiction over appeals from suspensions that are less than fourteen days. 5 C.F.R. § 1201.3. Accordingly, Harms could not have brought his suspension claims to the MSPB even in a mixed case appeal. 5 U.S.C. § 7702(a)(1). While this court recognizes that equitable tolling is per mitted when a plaintiff is actively misled or prevented from asserting his rights, ther e is no evidence in the record that Harms was misled by the TCC’s improper instruc tion because he never attempted to raise his suspension claims in his app eal to the MSPB. See Martinez v. Orr , 738 F.2d 1107, 1110 (10th Cir. 1984). Therefore, the district court did not abuse its discretion in concluding that equitable t olling was not warranted on this basis. C. Harms’ Termination Claims The district court dismissed Harms’ claims relating to his termination, reasoning that it lacked subject matter jurisdictio n to review the MSPB’s-10-

dismissal of Harms’ mixed case appeal for untimelin ess because the United States Court of Appeals for the Federal Circuit has exclus ive jurisdiction to review such decisions. The district court also concluded it la cked subject matter jurisdiction because Harms failed to exhaust his administrative remedies. This court reviews the dismissal of Harms’ termination claims for lackof subject matter jurisdiction de novo

. Robinson v. Union Pac. R.R. , 245 F.3d 1188, 1191 (10th Cir. 2001). Harms argues that the district court erred in concl uding that the Federal Circuit has exclusive subject matter jurisdiction o ver MSPB dismissals of mixed cases on procedural grounds. A determination of wh ether the district court has subject matter jurisdiction to resolve Harms’ termi nation claims requires an examination of the CSRA. Under the CSRA, the Feder al Circuit has exclusive jurisdiction to review final decisions of the MSPB in all appeals except those involving “cases of discrimination” filed under § 7 702(a)(1). 5 U.S.C. §§ 7702(a)(1); 7703(b)(1), (2). To fall within the am bit of § 7702(a)(1), the employee must (1) “[have] been affected by an actio n which . . . may [be] appeal[ed] to the [MSPB],” and (2) allege that the basis for the action was unlawful discrimination. 5 U.S.C. § 7702(a)(1). This court in Wall , held that if the MSPB dismisses an appeal on jurisdictional grounds because the adverse employme nt action alleged is not appealable to the MSPB, the appeal does not involve a “case of discrimination”2 The IRS argues that this court’s decision in Wallcontrols this issue. In

Wall , this court held that the Federal Circuit has excl usive jurisdiction to review the dismissal of a mixed case appeal by the MSPB onjurisdictional grounds. 871 F.2d at 1542-43. The court in Wallwas not confronted with the issue presented in this appeal—whether a federal district court or the Federal Circuit has jurisdiction to review a dismissal of a mixed case appeal on pro cedural grounds. Accordingly, the decision in Wallis not binding precedent on the issue before the c ourt in this case. -11- under § 7702(a)(1) and the Federal Circuit has excl usive subject matter jurisdiction to review the dismissal under § 7703(b )(1). Wall v. United States , 871 F.2d 1540, 1542-43 (10th Cir. 1989). This court declines to extend the ruling in Wallto dismissals by the MSPB on procedural, as oppose d to jurisdictional, grounds. 2 If the MSPB exercises jurisdiction and makes a deci sion on the merits of both the appealed employment action and the discrimination claim, the appeal involves a “case of discrimination” and the federal district court has jurisdiction to review de novo the MSPB’s decision under § 7703(b)(2). See Ballentine v. Merit Sys. Prot. Bd. , 738 F.2d 1244, 1246 (Fed. Cir. 1984). The circui ts, however, are split over whether the Federal Circuithas exclusive jurisdiction over the MSPB’s dismissal of appeals filed under § 7702( a)(1) on procedural grounds. Compare Ballentine , 738 F.2d at 1247 with Downey v. Runyon , 160 F.3d 139, 144-45 (2d Cir. 1999).-12-

In Ballentine , the Federal Circuit held that it has exclusive ju risdiction over the dismissal of an appeal by the MSPB “until issue s touching the merits of a discrimination claim are appealed.” 738 F.2d at 12 47. The Federal Circuit reasoned that its exclusive authority to review dec isions by the MSPB is limited only in “cases of discrimination,” i.e ., mixed case appeals under § 7702(a)(1). Id

. at 1246-48; 5 U.S.C. § 7703(b)(2). The Federal Cir cuit noted in Ballentine that under § 7702(a)(1), the MSPB must “‘decide both the issue of discrimination and the appealable action’” before an appeal can be tak en to federal district court. Ballentine , 738 F.2d at 1246 (quoting 5 U.S.C. § 7702(a)(1)). From the language of § 7702(a)(1), the Ballentine court reasoned, “it is clear that the judicially reviewable action by the MSPB which makes an appeal a ‘case of discrimination’ under § 7703(b)(2) that can be filed in district co urt is that the MSPB has decided ‘both the issue of discrimination and the appealabl e action . . . .’” Ballentine , 738 F.2d at 1246 (quoting 5 U.S.C. § 7702(a)(1)). In Downey , the Court of Appeals for the Second Circuit rejec ted the reasoning in Ballentine and held that the federal district court, not the Federal Circuit, has subject matter jurisdiction to review the MSPB’s dismissal of a mixed case on procedural grounds. 106 F.3d at 144-45. T he court in Downeyreasoned that § 7703(b)(2) deprives the Federal Circuit of j urisdiction over appeals properly filed under § 7702(a)(1). Id . Further, the Downeycourt reasoned, there-13-

is no language in CSRA “that suggests that judicial ly reviewable actions under subsection (a)(3) of section 7702 are limited to de cisions on the merits, or that a matter becomes a ‘[c]ase[] of discrimination’ undersubsection (b)(2) of section 7703 only after a merits decision.” Id . at 145. It is clear from the language of § 7703(b)(2) that the Federal Circuit lacks jurisdiction to review decisions made by the MSPB i n “cases of discrimination” as designated in § 7702(a)(1). 5 U.S.C. § 7703(b)( 2). Under § 7702(a)(1), an appeal is a “case of discrimination” if the action is appealable to the MSPB and the employee alleges unlawful discrimination. 5 U.S.C. § 7702(a)(1); Wall , 871 F.2d at 1542. Accordingly, when the MSPB decides that it lacks jurisdiction over an appeal because the employment action is not with in the MSPB’s designated appellate jurisdiction, the appeal is not a “case o f discrimination” under § 7702(a)(1). See Wall , 871 F.2d 1542-43. A decision need not be reached by the MSPB on the merits of the discrimination issue, how ever, for the appeal to constitute a “case of discrimination.” 5 U.S.C. § 7702(a)(1). This is clear from the statutory language in § 7702(a)(1)(B) which spe cifies only that the employee
must allege that a basis for the action was unlawful discrimin ation for the appeal to fall under § 7702(a)(1). This court adopts the reasoning in Downeyand holds that when the MSPB has jurisdiction over an appeal under § 7702(a)(1) but dismisses the appeal on-14-

procedural grounds, the federal district court has jurisdiction to review de novo the decision of the MSPB. Accordingly, we conclude the district court erred when it dismissed Harms’ termination claims for lac k of jurisdiction. Because we determine that the district court erred in concluding that it lacked jurisdiction over the MSPB’s dismissal of Harms’ appeal, this court must now address the district court’s alternative basis for dismissing Harms’ termination claims, i.e. , Harms failed to exhaust administrative remedies. Whether a plaintiff has exhausted administrative re medies is a question of law reviewed de novo

. Jones v. Runyon , 91 F.3d 1398, 1400 (10th Cir. 1996). While the district court determined that Harms’ failure t o exhaust administrative remedies with the MSPB was a jurisdictional bar to filing his civil action, the failure to timelyexhaust administrative remedies is not a jurisdict ional deficiency but rather is in the nature of a violation of a statute of limitations. Cf. Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 393 (1982); Jones , 91 F.3d at 1400 n.1; Downey , 160 F.3d at 145-46. Under the CSRA, a plaintiff must either file a time ly mixed case appeal with the MSPB or a timely mixed case complaint with the agency’s EEO department prior to bringing a civil action. 5 C.F .R. § 1201.154 (2002); 293 The parties assert that Harms may have also faile d to exhaust his

administrative remedies by failing to appeal the di scrimination claim to the Equal Employment Opportunity Commission (the “Commission” ) prior to filing this civil action. However, while a plaintiff may appea l a final decision by the MSPB on a discrimination claim to the Commission, he is not required to do so prior to appealing the MSPB’s decision in a civil action in federal district court. 29 C.F.R. §§ 1614.303, 1614.310; Sloan v. West , 140 F.3d 1255, 1260 (9th Cir. 1998).

4 Harms argues that his election to file a mixed ca se appeal with the MSPB over a mixed case complaint with the TCC constitute s exhaustion of his administrative remedies. Harms, however, provides no support for this argument. -15- C.F.R. § 1614.310. 3 Further, once a plaintiff chooses to file a mixed case appeal with the MSPB, he must exhaust administrative remed ies in that forum prior to filing a civil action in federal district court. McAdams , 64 F.3d at 1142. Harms elected to file a mixed case appeal of his terminat ion with the MSPB on November 14, 1996. 4 That appeal, however, was dismissed without preju dice by the ALJ on January 23, 1997, when the ALJ determine d that Harms had been involuntarily institutionalized and was unable to c ontinue pursuing his appeal. The ALJ ordered Harms to re-file his appeal by July23, 1997. However, Harms did not attempt to re-file his appeal until Novembe r 6, 1997, when he filed a petition to reopen his appeal. Accordingly, Harms’ mixed case appeal before the MSPB was not timely, resulting in Harms’ failure to exhaust his administrative remedies. See Downey , 160 F.3d at 145-46. Harms argues that his failure to timely exhaust his administrative remedies before the MSPB is excused under a reasonable interpretation of 29 C.F.R. §-16-

1614.302. The interpretation of a regulation is re viewed de novo by this court. United States v. 162 Megamania Gambling Devices , 231 F.3d 713, 718 (10th Cir. 2000). Under 29 C.F.R. § 1614.302, an employee who files a mixed case appeal with the MSPB that is dismissed on jurisdictional g rounds shall be notified of the right to file a mixed case complaint with the agenc y’s EEO department within 45 days of receipt of the notice. 29 C.F.R. § 1614.30 2(b). Harms was not given the notice required by 29 C.F.R. § 1614.302(b). This r egulation, however, is inapplicable in this case. First, 29 C.F.R. § 1614 .302(b) is silent as to whether the time period for filing a mixed case complaint w ith the agency’s EEO department is tolled when the employee files a mixe d case appeal with the MSPB that is dismissed on procedural, rather than jurisd ictional, grounds. Id . Second, 29 C.F.R. § 1614.302(b) tolls the time for re-filin g a mixed case complaint with the agency’s EEO department and does not address th e basis of Harms’ failure to exhaust, i.e. , failure to timely file an appeal with the MSPB. Id. Accordingly, application of 29 C.F.R. § 1614.302(b) does not sup port Harms’ argument. To the extent Harms argues that his failure to exha ust by filing a timely appeal with the MSPB should be excused because of h is mental incompetence, the district court found that Harms was mentally compet ent on August 2, 1997. Harms, however, did not file his petition to reopen his MSPB appeal until November 6, 1997. The district court concluded that Harms did not present any-17-

evidence to justify his delay in proceeding with hi s suspension claims after August 2, 1997. Accordingly, Harms is similarly no t excused for failing to exhaust his administrative remedies prior to bringi ng the appeal of his termination claims. Therefore, while the district court had jurisdictio n to review the MSPB’s dismissal of the termination claims, Harms failed t o timely file his appeal with the MSPB and, thus, failed to exhaust his administrativ e remedies. Because Harms has not demonstrated that his failure to exhaust ad ministrative remedies should be excused, the district court properly dismissed his termination claims. IV. CONCLUSION For the foregoing reasons, this court affirms the district court’s grant of summary judgment to the IRS on Harms’ suspension cl aims and dismissal of Harms’ termination claims.