216 F.3d 1105 (D.C. Cir. 2000)
Hordon H. Evono, Appellantv.Janet Reno, Appellee
No. 99-5283
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 3, 2000Decided June 27, 2000

Appeal from the United States District Court for the District of Columbia(No. 97cv01893)
Brian C. Kalt argued the cause for appellant.  With him on  the briefs was Langley R. Shook.
David T. Smorodin, Assistant U.S. Attorney, argued the  cause for appellee.  With him on the brief were Wilma A.  Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.  Attorney.
Before:  Silberman, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge:
Hordon H. Evono, a former Deputy United States Marshal, appeals the dismissal of his employment discrimination complaint against the United States  Marshals Service for lack of jurisdiction.  In Butler v. West,  164 F.3d 634 (D.C. Cir. 1999), the court held that Congress  intended to permit a federal employee to proceed to district  court where the Merit Systems Protection Board ("MSPB")  fails to issue a final decision on the employee's "mixed case  appeal"1 within 120 days.  Id. at 641.2  Under Butler, the  district court had subject matter jurisdiction over the claims  asserted in Mr. Evono's complaint.  To the extent that the  district court ruled that Mr. Evono waived his right to sue in  district court on the basis of his pro se statements to the  MSPB suggesting that the relief he sought in court differed  from the relief sought in administrative proceedings, the  district court erred.  Accordingly, because the district court  had original subject matter jurisdiction over Mr. Evono's  "mixed case," it retained original jurisdiction over his retaliation claims, and we reverse.
I.
Hordon H. Evono was employed in 1970 as a Deputy  United States Marshal.  The Marshals Service discharged  him in 1972 for alleged misconduct, but that discharge was  held to have been animated by racial discrimination against  him.  Evono v. Civiletti, C.A. No. 74-19 (D.D.C. Feb. 1, 1980),  aff'd sub nom. Evono v. Smith, No. 80-1366 (D.C. Cir. June 8,  1981).  After having been reinstated in 1980, and after additional litigation to enforce the district court's 1980 judgment,  Mr. Evono was diagnosed in 1983 with a hearing loss, subsequently determined to have been job-related, that rendered  him unfit for his position. He was forced to retire in March  1984.  In 1993, Mr. Evono formally requested reemployment  in accordance with the Priority Placement Referral System of  the Department of Justice.  The Marshals Service denied  that request, and Mr. Evono filed an Equal Employment  Opportunity ("EEO") complaint alleging violations of the Civil  Service Reform Act and racial and disability discrimination  and retaliation.  When the Department of Justice failed to act  on his "mixed case" complaint within 120 days, he appealed to  the MSPB on September 16, 1994.3


1
When no final decision was forthcoming from the MSPB,  Mr. Evono, acting pro se, filed suit on August 20, 1997, in the  district court, alleging discriminatory and retaliatory actions  by the Marshals Service.4  Thereafter, the district court  granted the government's motion to dismiss Mr. Evono's  discrimination claims.5  The district court, citing 5 U.S.C. § 7702, acknowledged that Mr. Evono generally would have a  statutory right to file a "mixed case" where the MSPB had  not issued a final decision on the underlying administrative  action within 120 days, but ruled that he had waived his right  to pursue his discrimination claim in court before exhausting  his administrative remedies.  The district court relied on the  fact that Mr. Evono did not refute the government's assertions that Mr. Evono had represented to the MSPB "that he  ha[d] no intention of interfering with [the] administrative  proceedings" and that he was not seeking judicial review of  his full "mixed case," and on the fact that he sought summary  judgment only on the retaliation claims.  The district court  retained jurisdiction over Mr. Evono's retaliation claims and  appointed counsel for him in light of "the complexity of  litigating the remaining retaliation claim."  Counsel filed a  second amended complaint alleging retaliatory acts only.6


2
On the eve of trial, the government moved to dismiss the  second amended complaint on the ground that the district  court lacked subject matter jurisdiction over the retaliation  claims, reading the district court's dismissal of Mr. Evono's  discrimination claims to have been based on the district  court's conclusion that it lacked subject matter jurisdiction,  and arguing that hence, the district court could not exercise  "supplemental jurisdiction" over Mr. Evono's unexhausted  retaliation claims.  Mr. Evono responded, by counsel, that  under Butler, subject matter jurisdiction was proper and  exhaustion established.  The government replied that Mr.  Evono could not split his "mixed case" between the MSPB and the court.  After initially denying the government's motion to dismiss as moot, the district court, on August 2, 1999,  granted the government's motion to reconsider and dismissed  Mr. Evono's second amended complaint without prejudice on  the ground that the court lacked supplemental jurisdiction  over his retaliation claims.

II.

3
In contending that the district court erred in dismissing his  retaliation claims, Mr. Evono maintains that Butler controls,  and that because he was entitled to file his "mixed case" in  the district court when the MSPB failed to issue a final  decision within 120 days of his appeal, the district court had  original jurisdiction over his discrimination and retaliation  claims and thus retained original jurisdiction over his retaliation claims after dismissing his discrimination claims for  failure to exhaust administrative remedies.  We agree.


4
5 U.S.C. § 7702(e)(1) provides: Notwithstanding any other provision of law, if at anytime after--


5
....


6
(B) the 120th day following the filing of an appeal with the [MSPB] under subsection (a)(1) of this section, there is no judicially reviewable action....


7
....


8
an employee shall be entitled to file a civil action to the same extent and in the same manner as provided insection 717(c) of the Civil Rights Act of 1964....


9
5 U.S.C. § 7702(e)(1).  Mr. Evono's appeal to the MSPB was  a "mixed case appeal", alleging "that an appealable agency  action was effected, in whole or in part, because of discrimination," 29 C.F.R. § 1614.302 (a)(2), and thus began the process  described in § 7702(e)(1)(B).  Consistent with Butler v. West,  164 F.3d at 638, the government agrees that, ordinarily, the  district court would have had original jurisdiction over Mr.  Evono's entire "mixed case," because the MSPB had not  issued a final decision within 120 days of Mr. Evono's appeal, notwithstanding the fact that this would result in simultaneous administrative and judicial proceedings.  See Butler,  164 F.3d at 642-43.  What distinguishes Mr. Evono's case, in  the government's view, is Mr. Evono's pro se statement in the  MSPB proceeding that he was not pursuing in the district  court the full "mixed case" that was pending before the  MSPB.  In other words, the government contends, Mr. Evono attempted to split his claims, keeping his discrimination  claims in the MSPB and his retaliation claims in the district  court.  Relying on Smith v. Chicago School Reform Board of  Trustees, 165 F.3d 1142, 1150 (7th Cir. 1999), applying the law  of claim preclusion in interpreting the compensation cap in 42  U.S.C. § 1981a(b)(3), the government maintains that because  there is "but one subject matter transaction, i.e., Mr. Evono's  non-restoration", he "may not split [it] into multiple packages  of different claims, i.e., retaliation, handicap discrimination,  racial discrimination, Civil Service merits. etc.".  While acknowledging that there can be no res judicata bar until a first  judgment is rendered, the government urges that splitting of  this nature should be discouraged as wasteful of judicial  resources.


10
Of course, the difficulty with the government's position is  clear from Butler, where the court, in holding that the  existence of simultaneous district court and administrative  proceedings could not serve as the basis for dismissal of a  complaint filed pursuant to § 7702(e)(1), noted that the pendency of simultaneous proceedings was what Congress contemplated.  164 F.3d at 640-41.  To that extent it is clear, as  the government concedes, that the district court had original  jurisdiction over both Mr. Evono's discrimination claims and  his retaliation claims, his pro se complaint containing the  same claims that had been pending before the MSPB for over  120 days without a final decision.7  Although Butler did not address a situation in which the district court dismisses part  of a "mixed case" and § 7702 jurisdiction is asserted with  respect to the remaining claims, the government has cited no  authority, and we see no basis as a matter of statutory  interpretation, for treating a "mixed case" over which the  district court properly had jurisdiction but which it dismissed  in part, any differently from a "mixed case" that proceeds in  full in the district court.  Section 7702(e)(1) provides an  employee with a right to file a "mixed case" in the district  court and does not suggest that the jurisdiction thereby  conferred on the district court dissolves upon dismissal of one  claim where original jurisdiction otherwise properly exists. Contrary to the government's position, Mr. Evono was not  obligated to abandon his proceedings before the MSPB. There thus was exhaustion and subject matter jurisdiction  over Mr. Evono's retaliation claims in the district court  pursuant to 5 U.S.C. § 7702 and 28 U.S.C. § 1331.


11
To the extent that the government and the district court  relied on Mr. Evono's pro se statements to the MSPB to  conclude that he waived his right to file his "mixed case" in  the district court, or was attempting to split his claims, their  reliance is misplaced.  First, there was no waiver of his right  to bring his discrimination claims to the district court.  Cf.  United States v. Olano, 507 U.S. 725, 733 (1993).  The  statement at issue arose when Mr. Evono responded to the  government's letter of September 18, 1997, to the MSPB  administrative law judge apparently suggesting that in view  of the pending judicial complaint, Mr. Evono would have to  withdraw his administrative appeal.  The government has not  made its letter a part of the record, and for that reason alone  we have no basis to view Mr. Evono's pro se remarks,  attempting to distinguish his MSPB claims and district court  claims in order to avoid dismissal of the MSPB claims, as a  waiver of his right to pursue a "mixed case" under § 7702.8  Moreover, Mr. Evono's remarks advised the administrative  law judge that he was seeking judicial review of the "continuing violations of [his] rights," which hardly reflects the language of waiver.  Nor do Mr. Evono's statements in the  district court, responding to the government's erroneous arguments about exhaustion and claim splitting, demonstrate  waiver.  Cf. Olano, 507 U.S. at 733.  Furthermore, that Mr.  Evono sought summary judgment only on his retaliation  claims reflects at most that he thought there were material  issues of disputed fact on his discrimination claims, not that  he was waiving his right to pursue the latter, much less  voluntarily dismissing them.  In any event, as the government acknowledged in its memorandum in support of its  motion to dismiss or for summary judgment, and again at oral  argument in this court, the claims raised by Mr. Evono in the  MSPB and the district court were indistinguishable.


12
Second, Mr. Evono did not split his "mixed case."  His pro  se complaint contained discrimination and retaliation claims.It was the district court that split his case in two, by  dismissing Mr. Evono's discrimination claims for failure to  exhaust and declining to dismiss his retaliation claims.  As  Mr. Evono points out, that he proceeded in reliance on the  district's court dismissal, preparing for trial only on the  retaliation claims, has nothing to do with whether the district  court had jurisdiction over his case.  Nor does the second  amended complaint filed by counsel after the district court  had dismissed Mr. Evono's discrimination claims, raise claims  of a different nature than those before the MSPB.  The  government's reliance on Chicago School Reform Board is  simply misplaced.  In that case, the Seventh Circuit held that  the applicable statutory compensation cap did not prevent  multiple suits from being filed, but noted that the doctrine of  claim preclusion would prevent litigants from "splitting into  multiple packages different claims arising out of the same  transaction".  165 F.3d at 1150.  Nothing of the sort is at  issue here;  as Mr. Evono notes in his reply brief, the  government can raise the defense that Mr. Evono is seeking  to avoid the damages cap if he files a second lawsuit.


13
Finally, the government's supplemental jurisdiction contention fares no better.  The government contends not only that  the district court lacked original jurisdiction under § 7702(e)  to hear only a part of Evono's "mixed case," but that the only  basis for jurisdiction over his unexhausted retaliation claims  was supplemental jurisdiction, and that the district court  properly ruled it lacked such jurisdiction.  Supplemental jurisdiction was never necessary in Mr. Evono's case, nor did he  ever rely upon such a theory, because the district court  always had original jurisdiction over his retaliation claims  under § 7702(e).9  Parallel proceedings in the district court  and the MSPB are contemplated by § 7702.  Butler, 164 F.3d  642-43.  Insofar as the government was concerned about  wasting judicial resources, the district court could have  stayed or held the judicial proceedings in abeyance pending a  decision by the MSPB.10  Id. at 643.


14
Accordingly, we hold that where a complaint is properly  filed under 5 U.S.C. § 7702(e)(1), the district court's dismissal  of some claims does not deprive it of original jurisdiction over  the remaining claims, notwithstanding the pendency of the  same claims before the MSPB, and we reverse the order  dismissing Mr. Evono's complaint alleging retaliation.



Notes:


1
  "A mixed case appeal is an appeal filed with the MSPB that  alleges that an appealable agency action was effected, in whole or in  part, because of discrimination on the basis of race, color, religion,  sex, national origin, handicap or age."  29 C.F.R. § 1614.302(a)(2).


2
  Butler was decided on January 8, 1999, approximately five  months after the district court dismissed Mr. Evono's discrimination claims and approximately seven months before it dismissed his  retaliation claims.


3
  A "mixed case" complaint is "a complaint of employment  discrimination filed with a Federal agency based on race, color,  religion, sex, national origin, age or handicap related to or stemming from an action that can be appealed to the Merit Systems  Protection Board (MSPB)."  29 C.F.R. § 1614.302(a)(1).  Where a  federal agency fails to act on a mixed case complaint within 120  days, the matter may be appealed to the MSPB.  29 C.F.R.  § 1614.302(d)(1)(i).


4
  Mr. Evono filed an amended pro se complaint on December 8,  1997, for equitable relief and damages for racially discriminatory  and retaliatory actions in violation of Title VII of the Civil Rights  Acts of 1964 and 1991, 42 U.S.C. § 2000e et seq., and § 1981, the  Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., and the Constitution.  His amended pro se complaint essentially restated the  allegations in his original complaint.  After the MSPB issued a final  decision on June 24, 1999, Mr. Evono appealed to the Equal  Employment Opportunity Commission pursuant to 5 U.S.C.  § 7702(b)(1), where the matter was pending at the time briefs were  filed in this court.


5
 The district court's opinion, filed July 27, 1998, stated that the  dismissal was without prejudice to the refiling of Mr. Evono's Title  VII and Rehabilitation Act claims after exhaustion of his MSPB  remedy.  The district court dismissed with prejudice Mr. Evono's  constitutional discrimination claims on the ground that Title VII  and the Rehabilitation Act of 1973 provide the exclusive remedies  for his employment discrimination claims.  The court denied without prejudice Mr. Evono's motion for summary judgment and  declaratory relief.


6
  The second amended complaint, filed by counsel, alleges that  Mr. Evono's forced retirement and the thwarting of his efforts to  obtain reinstatement were in retaliation for his EEO activities,  which began in the 1970s and continued in the early 1980s.


7
  In view of the unequivocal holding in Butler, that the existence of simultaneous district court and administrative proceedings  could not serve as a basis for dismissal of a complaint filed pursuant  to § 7702(e)(1), it is unclear why the government did not file a  notice of error with the district court regarding dismissal of Mr.  Evono's discrimination claims or confess error in this court.


8
  Indeed, Mr. Evono stated to the MSPB that "[i]f it felt that  there is a conflict in some way, that would complicate matters being  decided before the [MSPB], I wish to be informed as much,"  suggesting that in his mind there was no conflict.


9
  The cases relied upon by the government stand only for the  unremarkable proposition that a district court need not exercise  supplemental jurisdiction over matters with respect to which it does  not have original jurisdiction, where the matters over which original  jurisdiction could have been exercised have been dismissed, and  only supplemental matters remain.  See, e.g., Saksenasingh v.  Secretary of Education, 126 F.3d 347, 351 (D.C. Cir. 1997);  Harris  v. Secretary, U.S. Dep't of Veterans Affairs, 126 F.3d 339, 346 (D.C.  Cir. 1997).


10
  The government misconstrues Mr. Evono's point that the  district court could have stayed his case, characterizing it as an  argument that Mr. Evono sought a stay, or that the district court  erred in not granting one.  To the contrary, Mr. Evono simply  reiterates what the court said in Butler, namely that the district  court may stay its proceedings if it wishes to benefit from MSPB  expertise or avoid simultaneous proceedings.  Id.


