                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-1907


ZONNYTTA BOLTON,

                Plaintiff - Appellant,

           v.

CAROLYN W. COLVIN, Acting Commissioner of Social Security;
OFFICE OF PERSONNEL MANAGEMENT,

                Defendants - Appellees.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Loretta C. Biggs,
District Judge. (1:14-cv-00151-LCB-LPA)


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


Before MOTZ, KEENAN, and THACKER, Circuit Judges.


Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.


ARGUED: Phillip R. Kete, Chesapeake Beach, Maryland, for
Appellant.   Sydney Foster, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees.     ON BRIEF: Norman B. Smith,
SMITH, JAMES, ROWLETT & COHEN, LLP, Greensboro, North Carolina,
for Appellant.    Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Marleigh D. Dover, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Ripley Rand,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            After    being       demoted     from     her    paralegal        specialist

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

Zonnytta Bolton appealed to the Merit Systems Protection Board

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

discrimination and improper personnel procedures.                        After Bolton

provided    notice        that     resolution         of    her       claim     involved

interpretation       of    regulations       promulgated        by    the     Office    of

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

appeal into an individual challenge to her demotion and a claim

seeking    review    of    those    OPM     regulations.             Because    of     this

bifurcation,      which    Bolton     did       not   request      and   consistently

questioned, the MSPB decided her claim regarding the applicable

regulations    first,      and    Bolton        appealed    that     decision    to     the

Court of Appeals for the Federal Circuit.

            After    exhausting       MSPB       remedies    with      regard    to    the

individual demotion claim, Bolton then sought review of that

claim in    the     Middle   District       of    North     Carolina,       raising    two

discrimination claims and six non-discrimination claims.                               The

district court concluded that when Bolton filed her appeal with

the Federal Circuit, she waived district court review of her

discrimination claims.           Therefore, it dismissed her entire case

for lack of subject matter jurisdiction.                     For the reasons that



                                            3
follow,         we    affirm     in     part,      reverse        in    part,    and     remand     for

further proceedings.

                                                       I.

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

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

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

She filed an administrative appeal with the MSPB, claiming that

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

safeguards to which a government employee is entitled before

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

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

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

receiving federal financial assistance).                                 She also argued that

her demotion involved an improper personnel procedure, that is,

the   SSA        did      not    have       an    OPM-approved          performance         appraisal

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

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

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

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

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

promptly         notify         the     Director            [of   the     OPM]        whenever      the



            1
          Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.



                                                        4
interpretation of any civil service law, rule, or regulation

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

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

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

one     claim    based    on   discrimination    and      improper      personnel

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

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

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

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

requested bifurcation; the MSPB simply bifurcated of its own

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

then progressed on two different tracks, despite the fact that

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

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

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

                On June 5, 2012, a single administrative law judge

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

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

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

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

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

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

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

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

                                       5
the ALJ found that Bolton did not present sufficient evidence of

harassment,       retaliation,          failure           to        accommodate,         or

discrimination based on disparate treatment.                         Finally, the ALJ

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

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

this decision with the full three-judge MSPB.

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

statement in the regulation-review case, arguing generally that

OPM’s   regulations      “result     in       the    commission        of     prohibited

personnel practices,” and suggesting that the problem may be

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

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

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

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

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

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

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

regulation-review decision with the Federal Circuit.                            See ECF

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

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

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

decision to not review certain OPM regulations,” because the

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

reviewed.”    J.A. 224, 231.

                                          6
            On July 25, 2013, Bolton filed a motion to stay in the

Federal Circuit pending a final decision from the MSPB in her

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

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

decision by this court will be necessary, because any judicial

review   Ms.    Bolton       seeks   will       be        provided   by   an   appropriate

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

filed a motion to dismiss for lack of jurisdiction because the

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

The   Federal       Circuit    denied      the       stay     and    motion    to    dismiss

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

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

            With her regulation-review appeal still pending in the

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

action   against       OPM    and    the    Acting          Commissioner       of   the    SSA

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

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

contains the following eight claims:

                •    discriminatory demotion (Count One);

                •    failure to accommodate Bolton’s hearing
                     disability (Count Two);

                •    failure to establish, communicate, and
                     use statutory performance standards in
                     demoting Bolton (Count Three);




                                                7
              •    improper demotion of Bolton without
                   certain    statutory   and  regulatory
                   preconditions (Count Four);

              •    improper use of statute               for demoting
                   Bolton    without    OPM              review   for
                   compliance (Count Five);

              •    due process violations (Counts Six and
                   Seven); and

              •    administrative    challenge    to  OPM’s
                   approval of 50 agencies’ performance
                   appraisal      systems,     and    OPM’s
                   promulgation of    requirements for such
                   approval (Count Eight).

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

her regulation-review appeal, which the Federal Circuit granted

the following day.

            In the district court, Appellees filed a motion to

dismiss,    arguing,        inter     alia,      that      Bolton     waived       her

discrimination      claims,        depriving      the      district       court     of

jurisdiction.       The motion was referred to a magistrate judge,

who   recommended    the     motion   be      granted.      The    district      court

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

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

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

discrimination      claims    at    the    Federal       Circuit    and   give     her

another opportunity to litigate them when the Fourth Circuit has

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

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


                                          8
Pueschel     v.     Peters,    577    F.3d     at   563–64    (4th      Cir.    2009))

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

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

            Bolton timely noted this appeal, which challenges the

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

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

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

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

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

                                         II.

            As a matter of background, under the Civil Service

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

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

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

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

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

discriminated against her in violation of a federal statute.”

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

demoted via an improper personnel procedure and alleges that the

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

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

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

mixed case appeal.



                                          9
            The MSPB is not only the main adjudicatory body for

federal employees subject to a termination, demotion, or other

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

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

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

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

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

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

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

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

determine     whether        an     OPM        regulation        has     been        invalidly

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

§ 1204(f)(2)(B).

            If     an    employee         is        displeased      with       her       adverse

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

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

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

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

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

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

§ 1201.113(b).

            “An    employee        who     is       dissatisfied        with    the      MSPB’s

decision is entitled to judicial review in the United States

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

                                               10
Treasury,      132    S.    Ct.    2126,   2130       (2012);   see   also    5    U.S.C.

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

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

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

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

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

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

Appeals   for     the      Federal     Circuit    or     the    appropriate       federal

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

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

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

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

abandons her discrimination claims because the Federal Circuit

lacks     jurisdiction            to   entertain         discrimination       claims.”

Pueschel, 577 F.3d at 563.

                                           A.

            It       is    well    established        that   the   federal    district

courts possess authority to review “mixed case” appeals from

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

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

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

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

review.



                                           11
               “[W]aiver            is    the        intentional         relinquishment           or

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

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

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

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

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

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

one    party    evidences           an   intention      to”     give      up    certain      rights

(emphasis supplied)).

               The district court relied on two distinct actions to

conclude        that      Bolton          waived       her      right          to     pursue     her

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

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

made      on       the        Federal          Circuit’s        “Statement              Concerning

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

these     actions        demonstrated           an    intentional         relinquishment          of

Bolton’s right to district court review.

                                                 1.

                                Federal Circuit Appeal

               The     district          court’s       decision       that          Bolton   waived

review of her mixed case in district court relied heavily on

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

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

case     in      the         Federal       Circuit,          then        she        abandons     her

                                                 12
discrimination        claims        because       the    Federal     Circuit        lacks

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

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

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

create a superficial distinction between her claims that have

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

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

564.

            But    the     case      at    hand    is    markedly    different       than

Pueschel.         Deborah         Pueschel,       the   erstwhile     employee,      was

terminated and denied the opportunity to buy back annual leave

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

There,     she    raised      a    discrimination        defense,     but     the   MSPB

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

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

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

decision on the merits from the Federal Circuit, Pueschel then

pursued     her    disability-based           discrimination        claims     in    the

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

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

mixed case in the Federal Circuit and separately pursuing her

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

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

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

                                            13
                 Here, in contrast, the MSPB itself bifurcated Bolton’s

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

Circuit, but rather, voluntarily dismissed it after she filed

her     district         court   action.       Moreover,       Bolton    made    numerous

filings in both the MSPB and Federal Circuit, explaining that

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

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

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

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

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

right       to    have    proper    litigation      of   her   prohibited       personnel

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

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

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

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

15,     2013      filing     with    Federal     Circuit:      “Bolton       respectfully

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

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

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

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

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

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

court.”).



                                            14
            Furthermore,       the      government    agencies     involved     have

sent mixed signals to Bolton.               For example, Appellees admitted

“judicial        review   would    be    available    in    district    court    to

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

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

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

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

regulation review case separately, the MSPB then turned around

and said it could not review her claim because the regulation

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

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

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

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

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

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

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

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

she could file her appeal with the Federal Circuit and risk

losing     her    discrimination        claims    (which    had   not   even    been

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

the   individual      case   and    potentially      lose   her   opportunity     to

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




                                          15
who    put      her   in   this   position.          Pueschel    simply   did   not

contemplate this type of situation. 2

                Appellees understandably rely on Pueschel’s admonition

that       a   plaintiff    cannot   create     a    “superficial    distinction”

between the Federal Circuit and district court claims when they

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

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

a distinction created by the administrative body that reviewed

the    claims.        No   case   relied   on   by   Appellees    possesses     this

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

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

MSPB; while it was pending, he filed separate discrimination

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

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

       2
       To make matters worse, at oral argument, the Government
stated that Bolton’s two cases were “effectively merged” and
“reconsolidate[d]” before she appealed to the Federal Circuit;
thus, she could have chosen not to appeal the regulation-review
case to the Federal Circuit but still somehow preserve her
review of that case. Oral Argument at 32:15-32:37, 33:20-33:30,
Bolton v. Social Security Admin., No. 15-1907 (Dec. 6, 2016),
available   at   http://www.ca4.uscourts.gov/oral-argument/listen-
to-oral-arguments.    But the Government could not demonstrate
that Bolton received explicit notice of formal reconsolidation.
In any event, the deadline for filing a Federal Circuit appeal
of the regulation-review case expired before the MSPB issued its
final decision in the individual case. Therefore, as previously
noted, if Bolton had waited to appeal the regulation-review
issues in the district court, she risked losing her regulation-
review   appeal   in   the  Federal   Circuit.     See  5   U.S.C.
§ 7703(b)(1)(A).



                                           16
v. Reno, 64 F.3d 1137, 1140 (8th Cir. 1995) (after successfully

winning at the MSPB level, employee sought additional Title VII

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

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

with    MSPB     and      appealed    to    Federal          Circuit;       after      adverse

decision there, he filed a discrimination action in district

court).

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

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

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

quotation marks omitted).             Therefore, Pueschel does not support

the conclusion that Bolton intentionally abandoned review of her

discrimination claims.

                                            2.

                                          Form 10

               The district court accurately acknowledged that “the

Federal Circuit requires . . . employees [appealing MSPB cases

to    the     Federal     Circuit]    to    certify,          by     completing        Federal

Circuit Claim Form 10, either that no claim of discrimination

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

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

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

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



                                            17
nor    did    she    certify      that    her       discrimination      claim          “has      been

abandoned.”

              For     example,      Bolton          checked    the    line       next       to    the

following statement: “No claim of discrimination by reason of

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

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

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

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

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

briefing      only     challenged        the     MSPB’s       failure       to    explain        its

decision in the regulation-review case.

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

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

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

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

claim    of    discrimination        .    .     .    raised    before       and    decided         by

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

this or any other court.”                Id.

              None of these indications on the Form 10 demonstrate

that Bolton intentionally relinquished her discrimination claims

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

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

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

discrimination          claim”       where           “he      did     not         pursue          his

                                                18
discrimination     claim   with    the    [MSPB],      and   he    informed      th[e]

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

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

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

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

employee    “explicitly        waived     her     discrimination        claims     by

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

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

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

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

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

discrimination claim solely by checking a certain box on the

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

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

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

its waiver conclusion was inappropriate, as her discrimination

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

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

           Bolton’s Form 10 likewise fails to demonstrate waiver

of   her   discrimination       claims.          Therefore,       we   reverse    the

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

of her discrimination claims and that it lacked subject matter

jurisdiction over those claims.



                                         19
                                           B.

               Relying on its conclusion that it lacked jurisdiction

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

district       court   proceeded     to   dismiss    the     other   six     counts    in

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

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

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

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

subject-matter jurisdiction over her entire action challenging

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

we have reversed this conclusion, we remand for consideration of

Counts Three through Seven.

               As to Count Eight, Bolton contends the district court

possessed jurisdiction only on the basis of the Administrative

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

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

agency    action,      or    adversely    affected      or   aggrieved       by    agency

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

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

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

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

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

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

procedures       of    the   CSRA    implicitly     repealed       all     other    then-

                                           20
existing     statutory      rights     of     federal   employees       regarding

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

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

the   same    claim      raised   in   the     regulation-review        case   and

voluntarily dismissed in the Federal Circuit.                    Therefore, the

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

affirm the dismissal of that claim.

                                       III.

             For   the   foregoing     reasons,    we   affirm    the    district

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

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

remand for further proceedings on those claims.

                                                           AFFIRMED IN PART,
                                                           REVERSED IN PART,
                                                                AND REMANDED




                                        21
