     Case: 18-40580     Document: 00515239067       Page: 1   Date Filed: 12/17/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit


                                     No. 18-40580                          FILED
                                                                   December 17, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
JOHNNETTA PUNCH,

             Plaintiff-Appellant,

v.

JIM BRIDENSTINE, in his official capacity as Administrator, National
Aeronautics and Space Administration; NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION, (NASA); MARK GEYER, in his official capacity
as Director, National Aeronautics and Space Administration,

             Defendants-Appellees.



                  Appeal from the United States District Court
                       for the Southern District of Texas


Before JONES, HO, and OLDHAM, Circuit Judges.
ANDREW S. OLDHAM, Circuit Judge:
      Johnnetta       Punch   says    the   National    Aeronautics       and        Space
Administration (“NASA”) discriminated against her. She pursued her claims
before numerous tribunals—none of which found any discrimination or other
violation of law. But the merits of her allegations are not before us. The issue
here is procedural. We must decide whether Punch pled her way out of federal
court by attempting to litigate her claims in several mutually exclusive forums.
The district court said yes. We agree.
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                                   No. 18-40580
                                         I.
      When a federal employee challenges an adverse employment action, such
as termination, a “complicated tapestry” of statutes and regulations governs
her claim. Butler v. West, 164 F.3d 634, 637 (D.C. Cir. 1999). We think the
better metaphor is a road. But this trip is not for the easily carsick.
      The Civil Service Reform Act (“CSRA”) gives federal employees
numerous job protections.      One is the right to challenge certain “serious
personnel actions.” Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1979 (2017).
The employee “may merely allege that the agency had insufficient cause for
taking the action under the CSRA.” Kloeckner v. Solis, 568 U.S. 41, 44 (2012).
The employee “may also or instead charge the agency with discrimination
prohibited by another federal statute.” Ibid. This second type of charge is
called a “mixed case.” Ibid. (citing 29 C.F.R. § 1614.302).
       Under the CSRA, employees face a series of mutually exclusive paths
to bring a “mixed case.” Option 1 is an appeal to the Merit Systems Protection
Board (“MSPB”).        The MSPB is “an independent adjudicator of federal
employment disputes” that hears appeals from “particularly serious” actions,
such as terminations of employment. Ibid.
      After the MSPB decides a mixed case, the road forks again.                The
employee has three options for further review. First (Option 1.A), she can
appeal to the Federal Circuit—but only if she waives her discrimination claims
and limits her appeal to CSRA claims. 5 U.S.C. § 7703(b)(1). If she chooses
Option 1.A, she must file her appeal within 60 days of the MSPB’s decision.
Id. § 7703(b)(1)(A).
      Second (Option 1.B), the employee can instead keep pursuing her mixed
case. But the road for review forks once again. The employee can immediately
file suit in the appropriate federal district court (Option 1.B.i). Id. § 7703(b)(2).
Or the employee can take a further administrative appeal to the EEOC (Option
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                                  No. 18-40580
1.B.ii). Id. § 7702(b)(1). And if she’s unhappy with the EEOC’s resolution, the
employee can sue in district court. Id. §§ 7702(b)(3)(A), (b)(5)(A), (b)(5)(B), (c),
7703(b)(2); see Perry, 137 S. Ct. at 1980. Thus, both of these options (1.B.i and
1.B.ii) allow the employee to continue pursuing discrimination claims as part
of her mixed case, and both eventually lead to litigation in district court. The
employee’s deadline to file a complaint in district court is 30 days from the final
decision by the relevant administrative body—either the MSPB or the EEOC,
depending on the route she chooses. See 5 U.S.C. § 7703(b)(2).
      But the employee need not start with the MSPB—or take any of the
roads running from it. There’s another way. Call it Option 2. An employee
can file a mixed case complaint with the agency’s Equal Employment
Opportunity (“EEO”) office. 29 C.F.R. § 1614.302(b); see also Kloeckner, 568
U.S. at 45. If the agency’s EEO office rules against the employee, she can
appeal to the EEOC. When the EEOC’s decision becomes final and reviewable,
she can challenge it in district court. See 29 C.F.R. § 1614.407. So Option 2,
like Options 1.B.i and ii, eventually leads to district court.
                                        II.
      We turn now to Punch’s case. In early 2013, Punch worked as a Program
Analyst at NASA. On March 4, 2013, her supervisors gave her a “notice of
unacceptable performance” and placed her on a “performance improvement
plan.” The plan required her to successfully complete certain tasks within her
general job duties.
      The plan did not go well for Punch. She received an “unacceptable”
rating on her 2012–2013 performance review.           So in June 2013, Punch’s
supervisor recommended her employment be terminated. NASA terminated
her on August 7, 2013.
      Punch alleged that NASA discriminated against her on the basis of race,
color, sex, and age (among other things). She also alleged NASA discriminated
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                                      No. 18-40580
against her by placing her on the performance improvement plan, conducting
the plan, and terminating her employment. She also alleged her termination
violated the CSRA. In other words, she had a “mixed case.” As described
above, Punch had several paths to seek review of her mixed case. But instead
of choosing one path, Punch tried to choose all of them. First Punch chose
Option 1. Then she tried to choose Option 2. But then she lost Option 1—so
she tried to choose Option 1.A. and 1.B. Procedural chaos ensued. 1
                                            A.
       We start, as Punch did, with Option 1. On September 5, 2013, Punch
timely appealed her termination to the MSPB. She argued that NASA violated
the CSRA by failing to provide the necessary resources and support to complete
the improvement plan, that the same failures were discriminatory, and that
the whole thing was retaliation for discrimination complaints she had
submitted to NASA in the past.
       The MSPB affirmed NASA’s decision. The MSPB’s decision letter
instructed Punch that she had two options for pursuing her mixed case. She
could pursue all of it (both the CSRA claims and the discrimination claims) in
the district court (Option 1.B.i). Or she could appeal to the EEOC (Option
1.B.ii). The MSPB also informed her that either filing would need to be made
within 30 days of Punch’s receipt of the decision letter. Punch received the
letter on February 9, 2016, so her deadline to file in district court or appeal to
the EEOC was March 10, 2016.
       Ultimately, Punch chose neither option. She instead purported to drop
the discrimination claims and to pursue only her CSRA claims in the Federal
Circuit (Option 1.A). She filed her petition for review on April 5, 2016. Her



       1 This is a long and winding road. A chronology of events is set out in the Appendix,
infra. It gives new meaning to the phrase “administrative exhaustion.”
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                                 No. 18-40580
petition did not purport to press a mixed case. Indeed, Punch submitted a form
to the Federal Circuit certifying that “[n]o claim of discrimination by reason of
race, sex, age, national origin, or handicapped condition has been or will be
made in this case.” All of that makes sense because the Federal Circuit has
jurisdiction to review only CSRA claims. So far so good, right?
                                       B.
       Not so fast. Three months after Punch chose Option 1 by appealing to
the MSPB, she also purported to choose Option 2. On December 9, 2013, Punch
also filed a discrimination complaint with NASA’s EEO office. As pertinent
here, Punch alleged (1) she received an “unacceptable” performance rating,
(2) her request for reassignment was denied, (3) she was “denied official time
to work on [a] prior EEO complaint,” and (4) her supervisor proposed that
Punch’s employment be terminated.
       Punch’s complaint was handled by NASA’s Office of Diversity and Equal
Opportunity (“ODEO”).      NASA ODEO declined to consider allegation (4)
because the termination itself had already been appealed to the MSPB. But it
allowed three other allegations to go forward through the EEO process (Option
2):
          1) On June 6, 2013, you received an “unacceptable” rating for
             your 2012-2013 appraisal due to your supervisor’s denial of
             your request for additional resources (snag-it CD, sit/stand
             workstation, lightweight laptop computer) that would have
             enabled you to perform your job more effectively.
          2) On June 19, 2013, your request for a reassignment and/or
             modification to your scope of work was denied.
          3) On July 8, 2013, you were denied official time to work on
             your prior EEO complaint, Agency Docket No. NCN-13-JSC-
             00025.
Ultimately, NASA ODEO found no discrimination.



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                                      No. 18-40580
         Punch appealed NASA ODEO’s final decision to the EEOC. Regulations
provide that if the EEOC has not issued a final decision on such an appeal
within 180 days, the claimant can file suit in the appropriate federal district
court.       29 C.F.R. § 1614.407(d).    That deadline passed without an EEOC
decision. So on May 17, 2016, Punch filed an Option 2 lawsuit in the Southern
District of Texas that’s based, she contends, solely on her NASA EEO
complaint. If governed by the 30-day deadline for seeking judicial review of an
EEOC action, the complaint was timely. See 5 U.S.C. § 7703(b)(2); 29 C.F.R.
§ 1614.407(d).
         The Option 2 complaint alleges Punch was denied the resources she
needed to complete the improvement plan, such as computer software and
training, and that NASA “retaliated against Plaintiff by giving her an
unacceptable rating on her 2012-2013 performance appraisal, proposing her
removal from the Agency on June 6, 2013, and refusing to allow her to transfer
to another manager.” It also alleges she “was retaliated against by being
placed on a Plan and eventually removed from her position” because of her
prior EEOC complaints. 2
                                            C.
         Punch’s Option 2 complaint prompted NASA to move to dismiss her
Option 1.A appeal to the Federal Circuit. That’s when things really veered into
the ditch.


         2Adding to the procedural complexity and confusion of Punch’s multi-pronged
litigation strategy, she actually filed two EEO complaints. Punch filed the first in March
2013—before her termination—and it’s docketed under the number NCN-12-JSC-00025. The
parties call this the “EEO-25 Complaint.” Punch filed the second in December 2013—after
her termination—and it’s docketed under the number NCN-13-JSC-00062. The parties call
this the “EEO-62 Complaint.” The district court dismissed the EEO-25 Complaint, and
Punch did not appeal that dismissal. Her failure to appeal the dismissal of the EEO-25
complaint forfeits it as a basis for relief. See Cantú v. Moody, 933 F.3d 414, 419 (5th Cir.
2019). Therefore, throughout this opinion, we refer to the EEO-62 complaint as Punch’s
Option 2 complaint.
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                                        No. 18-40580
       In her opposition to NASA’s motion to dismiss, Punch revealed that she
also purported to pursue Option 1.B.ii by appealing her mixed case from the
MSPB to EEOC. As Punch told it in her opposition:
       • On March 8, 2016, Punch appealed her mixed case from the MSPB to
         the EEOC (Option 1.B.ii);
       • On April 5, 2016, Punch petitioned for review in the Federal Circuit
         (Option 1.A); and
       • On May 17, 2016, Punch filed her complaint in the Southern District
         of Texas (Option 2). 3
The Option 1.B.ii appeal was news to the federal government, apparently,
because the EEOC never acknowledged it. It also was a problem for Punch
because if her mixed case was properly filed before the EEOC under Option
1.B.ii, then she’d lose her Option 1.A appeal before the Federal Circuit and her
Option 2 suit before the Southern District of Texas. Again, the three paths are
mutually exclusive. So Punch and NASA stipulated to the Federal Circuit that
Punch “never formally filed an appeal from the MSPB to” the EEOC. Based
on that stipulation, the parties agree Punch’s Option 1.B.ii election was a
nullity. 4
       Of course, that does not ameliorate this procedural car wreck because
the Southern District of Texas suit (Option 2) provided an independent
jurisdictional problem for Punch’s Federal Circuit appeal (Option 1.A). NASA
told the Federal Circuit that Punch was continuing to pursue discrimination
complaints arising from the same facts in the district-court lawsuit, so she
hadn’t really waived her discrimination claims (as is necessary to invoke




       3   Again, please see the roadmap in the Appendix, infra.
       4 That stipulation did not stop the EEOC, however. On March 7, 2017, it issued a
decision anyway and concurred with the MSPB that NASA did not discriminate against
Punch. Punch has not, to our knowledge, appealed that decision.
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                                  No. 18-40580
Federal Circuit review). Noting the overlap between the appeal before it and
the district-court complaint, the Federal Circuit agreed:
      Since Ms. Punch has not abandoned her discrimination claim we
      have no authority over the [MSPB]’s decision. In Williams v.
      Department of Army, 715 F.2d 1485 (Fed. Cir. 1983), we rejected
      the notion that an employee could pursue the personnel action and
      the discrimination claim in separate fora. We recognized that
      “Congress did not direct or contemplate bifurcated review” of
      mixed cases because claims of adverse action and discrimination
      “will be two sides of the same question and must be considered
      together.”
      . . . The basic premise of Williams—that a petitioner cannot
      challenge the nondiscrimination issues here while challenging the
      discrimination issues in district court—is the precise situation
      that has been created by Ms. Punch’s separate filings.
Punch v. NASA, No. 16-1804, slip op. at 3–4 (Fed. Cir. Apr. 26, 2017) (citation
omitted). So the Federal Circuit transferred Punch’s appeal to the district
court, where the two cases (Option 1.A and Option 2) were consolidated.
      Magistrate Judge Edison issued a careful report and recommendation
(“R&R”) that analyzed Punch’s various claims in their various procedural
postures. Judge Edison found that Punch’s Option 1.A appeal to the Federal
Circuit and her Option 2 complaint in district court related to “the same
matter” under 29 C.F.R. § 1614.302(b).      Therefore, her Option 1.A appeal
required that her Option 2 complaint “be dismissed as a matter of law.” R&R
at 16. Then Judge Edison held the rest of Punch’s claims were untimely. Ibid.
Therefore, the magistrate judge recommended summary judgment for the
defendants and the dismissal of Punch’s claims. The district court adopted the
R&R and dismissed the case. Punch timely appealed. And that, at long last,
brings the case to us.




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                                  No. 18-40580
                                       III.
      Punch faced two crossroads. At both, her choice of one path excluded her
choice of the other. But both times, she attempted to have it both ways. We
hold that Punch’s refusal to pick one path and stick to it requires dismissal of
her appeals.
                                       A.
      Punch’s first crossroads was her choice between Option 1 (an MSPB
appeal) and Option 2 (an EEO complaint with NASA ODEO). See 5 U.S.C.
§ 7702(a)(1), (2); 29 C.F.R. § 1614.302(a). The applicable federal regulation
requires the employee to elect one or the other, but not both: “whichever is filed
first” (Option 1 or Option 2) “shall be considered an election to proceed in that
forum.” 29 C.F.R. § 1614.302(b). We have called the election “irrevocabl[e].”
Devaughn v. U.S. Postal Serv., 293 F. App’x 276, 281 (5th Cir. 2008) (per
curiam). Other courts have called it “binding.” Economou v. Caldera, 286 F.3d
144, 149 (2d Cir. 2002). By whatever name, it’s preclusive of the unchosen
option: Once the employee sets out along one route, she must “exhaust [her]
remedies in th[e chosen] forum.” Devaughn, 293 F. App’x at 280 (citing Tolbert
v. United States, 916 F.2d 245, 248 (5th Cir. 1990) (per curiam)); see also
Casimier v. U.S. Postal Serv., 142 F. App’x 201, 204 (5th Cir. 2005) (per
curiam). Her choice at the start really matters.
      Punch chose Option 1. She pursued her mixed case—both her CSRA
claims and her discrimination claims—before the MSPB. After the MSPB
rejected her mixed case, she could have sought review in federal district court
(Option 1.B.i).   See 5 U.S.C. § 7703(b)(2); 5 C.F.R. § 1201.175; 29 C.F.R.
§ 1614.310(b). What she could not do is go back to the first fork in the road and
choose Option 2 by filing an EEO complaint. Once she chose Option 1, federal
law required her to follow that road to the end. There are no U-turns.


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                                No. 18-40580
      Punch says that all of this is NASA ODEO’s fault. NASA ODEO severed
from Punch’s Option 2 complaint those portions of her allegations that were
pending before the MSPB in her Option 1 appeal, then adjudicated the rest.
And in her view, NASA ODEO’s decision to do so makes all of her claims
reviewable here.    Punch thus contends she could not make a wrong turn
because NASA ODEA was at the wheel.
      We disagree for two reasons.    First, Punch filed her Option 2 EEO
complaint three months after she filed her Option 1 MSPB appeal. That makes
the former a legal nullity insofar as they both concern “the same matter.” 29
C.F.R. § 1614.302(b); see Devaughn, 293 F. App’x at 281. And we have no doubt
that Punch’s Option 2 EEO complaint and Option 1 MSPB appeal involve “the
same matter.” We agree with the magistrate judge, who conducted a rigorous,
thorough, and careful analysis of Punch’s Option 1 MSPB appeal and her
Option 2 EEO complaint. The magistrate judge even produced a detailed, two-
page table comparing the allegations in the two pleadings.            The two
proceedings involve “the same matter.”
      Second, NASA is not somehow estopped from challenging Punch’s
bifurcation, even though NASA’s ODEO mistakenly adjudicated part of her
Option 2 complaint. We’ve previously rejected this sort of estoppel-by-mistake
argument. See Devaughn, 293 F. App’x at 281–82. We do so again today. The
district court correctly entered judgment as a matter of law on the Option 2
EEO complaint.
                                     B.
     Punch reached her second crossroads after the MSPB rejected her
“mixed case.” She could’ve dropped her mixed case and pursued only the CSRA
claim before the Federal Circuit (Option 1.A); pursued the mixed case in
federal district court (Option 1.B.i); or pursued the mixed case in the EEOC
(Option 1.B.ii). Federal law allowed her to pick only one of these options—but
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                                  No. 18-40580
she tried to choose all three. That choice had three consequences. First, Punch
deprived any court of subject-matter jurisdiction over her appeal from the
MSPB. Second, she pled her way out of the Federal Circuit (Option 1.A). And
third, Punch missed the deadline to file in district court (Option 1.B.i).
                                          1.
      Let’s start with the first consequence. An employee dissatisfied with the
MSPB’s resolution of a mixed case may “petition the [EEOC] to consider the
decision.” 5 U.S.C. § 7702(b)(1). That gives the EEOC 30 days to “determine
whether to consider the decision.” Id. § 7702(b)(2). If the EEOC chooses to
consider the decision, it may concur or refer it back to the MSPB for
reconsideration. Id. § 7702(b)(3), (c).
      Section 7702 sets clear limits on when—and in what instances—EEOC
and MSPB actions may be scrutinized by the courts. In relevant part, § 7702
makes an MSPB decision a “judicially reviewable action” on “the date of
issuance if the employee . . . does not file a petition with the [EEOC].” Id.
§ 7702(a)(3)(A). If the employee does petition the EEOC, the MSPB decision
becomes a “judicially reviewable action” on “the date the [EEOC] determines
not to consider the decision,” id. § 7702(a)(3)(B), or when “the [EEOC] concurs
. . . in the decision of the [MSPB],” id. § 7702(b)(5)(A). We have held these
limitations are jurisdictional. See Randel v. U.S. Dep’t of Navy, 157 F.3d 392,
395 (5th Cir. 1998) (failure to exhaust the MSPB and EEOC review
requirements in §§ 7702 and 7703 deprived the court of subject-matter
jurisdiction); Smith v. Potter, 400 F. App’x 806, 812 (5th Cir. 2010) (failure to
wait until there was a final administrative determination rendered employee’s
federal claim jurisdictionally defective).
      Following the MSPB’s rejection of her mixed case, Punch timely filed a
petition with the EEOC on March 8, 2016. The EEOC then had 30 days to
decide whether to review the MSPB’s disposition. Rather than wait for the
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                                       No. 18-40580
EEOC to act, however, Punch purported to take her case to the Federal Circuit
28 days later, on April 5, 2016. This was fatal to her appeal. The MSPB’s
decision was not, at that time, a “judicially reviewable action” under § 7702.
Under Randel and Smith, that deprived the Federal Circuit of subject-matter
jurisdiction to consider Punch’s appeal.
       The parties have stipulated that the EEOC petition was a nullity. But
stipulations cannot create subject-matter jurisdiction. See, e.g., Gonzalez v.
Thaler, 565 U.S. 134, 141 (2012) (“When a requirement goes to subject-matter
jurisdiction, courts are obligated to consider sua sponte issues that the parties
have disclaimed or have not presented. Subject-matter jurisdiction can never
be waived or forfeited.” (citation omitted)); MidCap Media Fin., L.L.C. v.
Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019) (“Notwithstanding the
parties’ agreement, we have an independent obligation to assess our own
jurisdiction before exercising the judicial power of the United States.”). Nor
does it matter that the EEOC eventually created an otherwise-reviewable
action when it concurred with the MSPB. See Smith, 400 F. App’x at 811
(“Where an employee has prematurely filed an action in . . . court, the issuance
of a final decision by the agency before a . . . court can dismiss the claim does
not cure the jurisdictional defect.”). 5
                                              2.
       In all events, Punch pled her way out of the Federal Circuit. She did so
by attempting to bifurcate her discrimination and non-discrimination (CSRA)


       5 Neither party asks us to reconsider our decisions in Randel and Smith in light of
Fort Bend County v. Davis, 139 S. Ct. 1843 (2019). In Fort Bend County, the Supreme Court
concluded that certain time limits for bringing a Title VII claim under 42 U.S.C. § 2000e were
mandatory claims-processing rules and not jurisdictional ones. We need not reconsider
whether § 7702 likewise supplies mere “preconditions to relief,” id. at 1849, or instead
supplies jurisdictional prerequisites for “judicially reviewable action,” 5 U.S.C. § 7702(a)(3).
Either way, § 7702 presents a roadblock to just one of the many routes Punch purported to
take. For the reasons given below, those other roads also are now closed.
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                                  No. 18-40580
claims. When federal employees have discrimination and non-discrimination
claims arising from “the same or related facts,” every court of appeals to
consider the question has prohibited bifurcation. See Pueschel v. Peters, 577
F.3d 558, 563 (4th Cir. 2009) (“If the employee pursues the mixed case in the
Federal Circuit, then she abandons her discrimination claims . . . .”); Chappell
v. Chao, 388 F.3d 1373, 1378 (11th Cir. 2004) (“Chappell waived his right to
proceed on his discrimination action in district court when he elected to appeal
his termination claim to the Federal Circuit, rather than bringing his related
discrimination and termination claims in one forum, as required.”); Smith v.
Horner, 846 F.2d 1521, 1523 (D.C. Cir. 1988) (“[A]ppellant relinquished that
cause of action [for discrimination] when he responded to the Federal Circuit’s
Clerk’s letter [and chose to appeal under Option 1.A].”); Williams v. Dep’t of
Army, 715 F.2d 1485, 1490 (Fed. Cir. 1983) (“Congress did not direct or
contemplate bifurcated review” of mixed cases under [5 U.S.C.] § 7702.”); cf.
Tolbert v. United States, 916 F.2d 245, 248 (5th Cir. 1990) (“[H]aving chosen to
pursue administrative review of the Postal Service’s decision [before the EEOC
under Option 1.B.ii], Tolbert must exhaust that remedy [and cannot] abandon
it in mid-course, and pursue a civil action instead [under Option 1.B.i].”).
      We agree with this unbroken line of authority. “[T]he issues of a mixed
case are tied together for resolution at the same time . . . .” Chappell, 388 F.3d
at 1378. Therefore, after the MSPB rejects a mixed case under Option 1, an
employee who wants to pursue the mixed case must do so by taking the entire
thing to district court (Option 1.B.i) or the EEOC (Option 1.B.ii). Or the
employee can discard her discrimination claims and pursue only the CSRA
claim in the Federal Circuit (Option 1.A). As all our sister courts have held, in
no circumstance can the employee bifurcate or trifurcate her mixed case
between these options.     “We are always chary to create a circuit split.”


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                                 No. 18-40580
Gahagan v. United States Citizenship & Immigration Servs., 911 F.3d 298, 304
(5th Cir. 2018) (quotation omitted).
      Punch petitioned for review in the Federal Circuit on April 5, 2016
(Option 1.A). Almost two weeks later, on April 18, she warranted to the
Federal Circuit that she had not raised—and would not raise—any
discrimination claims:




But Punch had already raised her discrimination claims before petitioning for
the Federal Circuit’s review:
      • On December 9, 2013, Punch filed her discrimination claims with
        NASA’s ODEO (Option 2);
      • On August 21, 2015, Punch appealed NASA ODEO’s decision to
        EEOC; and
      • On March 8, 2016, Punch appealed the MSPB’s decision to EEOC
        (Option 1.B.ii).
Not only had she raised discrimination claims before going to the Federal
Circuit—she continued to press them after purporting to waive them: One
month after the purported waiver, on May 17, 2016, Punch changed lanes
again and filed suit on her discrimination claims in federal district court.
      We agree with the Federal Circuit’s rejection of Punch’s bifurcation
strategy:


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                                 No. 18-40580
      The underlying nature of this appeal [from the MSPB decision]
      and Ms. Punch’s district court complaint are not, as she asserts,
      “entirely separate actions”—far from it. In Count V of her [district
      court] complaint, “Termination On The Basis of Retaliation Under
      Title VII,” Ms. Punch asserts she was removed from her position
      as retaliation for the filing of her EEO complaints that alleged race
      and sex discrimination. She also states as part of her request for
      injunctive relief that “reinstating Plaintiff to her position” is
      among the actions she is seeking from the court. These statements
      confirm rather than undermine the fact that Ms. Punch is
      continuing to seek the same relief she sought from the Board.
Punch, slip op. at 3. Without a valid waiver of her discrimination claims,
Punch could not pursue her bifurcated CSRA claims before the Federal Circuit.
See, e.g., Tolbert, 916 F.2d at 248 (holding an employee cannot abandon an
option and switch to another “mid-course”); Smith, 846 F.2d at 1523 (noting “it
makes little sense for the Federal Circuit to entertain only half of the claim”).
The Federal Circuit’s decision to that effect “best serves the CSRA’s objective
of creating an integrated scheme of review, which would be seriously
undermined by parallel litigation regarding the same agency action.” Perry,
137 S. Ct. at 1987 (quotation and alterations omitted).
                                       3.
      The final consequence of Punch’s bifurcation strategy is that she’s too
late to litigate her claims in the federal district court. After the MSPB rejects
a “mixed case” under Option 1, the employee has three potential paths:
      • Abandon the discrimination claims and appeal only the CSRA claims
        to the Federal Circuit within 60 days. See 5 U.S.C. § 7703(b)(1);
        Perry, 137 S. Ct. at 1981. (Option 1.A)
      • File a “mixed case” complaint in federal district court within 30 days.
        See 5 U.S.C. § 7703(b)(2). (Option 1.B.i)
      • File a “mixed case” appeal before the EEOC within 30 days. See id.
        § 7702(b)(1); 5 C.F.R. § 1201.157. (Option 1.B.ii)
      Punch took no court action until 58 days after receiving the MSPB’s
decision. At that point, she purported to drop her discrimination claims and
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                                       No. 18-40580
pursue only her CSRA claim before the Federal Circuit (Option 1.A). If Punch
wanted to litigate her mixed case in federal district court, she should’ve chosen
Option 1.B.i and filed her complaint within 30 days of the MSPB’s decision, or
the EEOC’s concurrence with that decision. See 5 U.S.C. § 7703(b)(2). Her
failure to do so means she’s time-barred from litigating in district court now. 6
           Punch concedes she’s untimely, but she says § 7703(b)(2)’s time bar
should be equitably tolled. The district court did not abuse its discretion in
declining to do so. See Granger v. Aaron’s, Inc., 636 F.3d 708, 712 (5th Cir.
2011) (noting we review equitable-tolling decisions for abuse of discretion).
The MSPB told Punch in writing that any district court complaint must be filed
within 30 days. Punch received that order. Then she made her choice with the
assistance of counsel. That is not the stuff of equitable tolling. Because
Punch’s equitable-tolling argument fails in all events, we need not decide
whether § 7703(b)(2) is subject to equitable tolling in the first place. Compare,
e.g., Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002) (holding that
§ 7703(b)(2)’s time bar is not jurisdictional and hence can be equitably tolled),
and Blaney v. United States, 34 F.3d 509, 512–13 (7th Cir. 1994) (same), and
Nunnally v. MacCausland, 996 F.2d 1, 4 (1st Cir. 1993) (per curiam) (same),
with Dean v. Veterans Admin. Reg’l Office, 943 F.2d 667, 670 (6th Cir. 1991)
(holding that § 7703(b)(2)’s time bar is jurisdictional and hence cannot be
equitably tolled), vacated, 503 U.S. 902 (1992).




       6 The Federal Circuit’s decision to transfer Punch’s CSRA claims does not change that
result. A federal court can transfer a case to a court “in which the action or appeal could have
been brought at the time it was filed.” 28 U.S.C. § 1631 (emphasis added). At the time Punch
filed her case—58 days after the MSPB’s decision—it was too late to file in federal district
court. For the same reason, we cannot transfer her CSRA case back to the Federal Circuit.
At the time Punch filed her case, she steadfastly refused to waive her discrimination claims.
And therefore, as explained in the preceding section, her case could not have been brought in
the Federal Circuit either.
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                           No. 18-40580
                           *     *       *
  The judgment of the district court is AFFIRMED.




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                              No. 18-40580
                                APPENDIX
                          Chronology of Events
   August 7, 2013 NASA terminates Punch.
September 5, 2013 Punch appeals to the MSPB (Option 1).
December 9, 2013 Punch files discrimination complaint with NASA’s
                 ODEO (Option 2).
     April 9, 2015 NASA’s ODEO finds no discrimination (Option 2).
  August 21, 2015 Punch appeals the NASA ODEO decision to the EEOC
                  (Option 2).
 February 9, 2016 MSPB affirms Punch’s termination (Option 1).
   March 8, 2016 Punch appeals the MSPB decision to the EEOC
                 (Option 1.B.ii).
     April 5, 2016 Punch petitions the Federal Circuit to review the
                   MSPB’s decision (Option 1.A).
    April 18, 2016 Punch purports to waive her discrimination claims in
                   the Federal Circuit (Option 1.A).
    May 17, 2016 Punch challenges the NASA ODEO decision in district
                 court (Option 2).
   March 7, 2017 The EEOC concurs with the MSPB decision (Option
                 1.B.ii).
    April 26, 2017 The Federal Circuit transfers the case to the district
                   court (Option 1.B.i).
  August 21, 2017 The district court consolidates the two cases (Options
                  1.B.i and 2).
    May 18, 2018 The district court dismisses Punch’s claims.




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