One Too Many Appeals

By on July 18, 2007 in Current Events with 0 Comments

An Air Traffic Control Specialist who was RIFed from the Fort Worth, Texas Automated Flight Services Station, was not able to persuade the Federal Circuit Court of Appeals that the Merit Systems Protection Board had jurisdiction to hear his appeal. The court agreed with the Board that Urban’s previously filed age discrimination case precluded him from later filing his discrimination with the MSPB. (Urban v. Merit Systems Protection Board, C.A.F.C. No. 2007-3027 (nonprecedential), 7/17/07)

Let’s back up and look at the facts as reported in the court’s decision.

Following the agency’s designation of their positions as surplus, Urban and several of his fellow employees filed individual and class allegations in a federal lawsuit "to challenge unlawful age discrimination in employment by the FAA pursuant to the Age Discrimination in Employment Act…" Their argument was that the surplus employees to be RIFed were largely over 40 years of age and would be replaced by younger contract workers. (Opinion pp. 2-3)

Just before his job was eliminated, Urban applied—without success–for two vacant positions with the FAA in Alaska, both of which were not in danger of being subject to the upcoming RIF. A few months later, Urban received his RIF notice indicating that he would be removed from his position. The notice spelled out his appeal rights, including what to do if he wanted to challenge the RIF based on allegations of discrimination—he could file a grievance under the union contract, appeal to the MSPB, or file an EEO complaint.

Urban appealed to the Board, arguing among other things that the FAA had discriminated against him on the basis of age in not selecting him for the Alaska positions. (p. 3)

The FAA moved to dismiss Urban’s MSPB appeal for lack of jurisdiction, arguing that because Urban was part of the previously filed class action case, he had already made his election. Urban’s attorney then got the class plaintiffs to move to withdraw Urban from the class action suit. The class action court ordered Urban’s withdrawal. However meanwhile, the MSPB Administrative Judge agreed with the agency’s motion and dismissed Urban’s appeal since he had already raised the same matter in the class lawsuit. (pp. 3-4)

Urban appealed the MSPB ruling to the Federal Circuit, with mixed success.

As to his contention that he should be allowed to assert age discrimination in an appeal to the Board, the court sided with the MSPB, finding that the Board lacked jurisdiction because Urban had elected previously to pursue the class action ADEA suit: "…[A] claimant must choose to pursue one path and ‘cannot simultaneously litigate the same case in the United States Courts and in the administrative process.’" (citations omitted, p. 7)

Urban did persuade the court that the Board should not have dismissed those parts of his appeal relating to his non-selection for the Alaska positions that did not involve discrimination allegations. While agreeing with the Board that it generally does not have jurisdiction over appeals involving non-selection for vacant positions, the court nevertheless sent the case back to the Board for more work. The court directed the Board to consider and made a specific decision as to whether any of these other allegations provided a "potential basis for jurisdiction…" (pp. 8-9)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.