               Case: 13-11053    Date Filed: 11/18/2013   Page: 1 of 8


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-11053
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 3:11-cv-00295-HES-JRK



ANTHONY T. LEE,

                                                                 Plaintiff-Appellant,

                                       versus

USA, et al.,

                                                                         Defendants,

SECRETARY OF THE ARMY,
United States Army Corp of Engineers,

                                                               Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                (November 18, 2013)
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Before PRYOR, MARTIN and DUBINA, Circuit Judges.

PER CURIAM:

      Appellant Anthony Lee, proceeding pro se, appeals from the district court’s

judgment of dismissal for lack of subject matter jurisdiction of his employment

discrimination case, brought under Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e-3(a), and 42 U.S.C. § 1981. Lee filed several complaints

with the Equal Employment Office (“EEO”) of the U.S. Army Corps of Engineers

(“Corps”), alleging that the Corps had discriminated against him on the basis of

race and age and as reprisal for his whistleblowing activity and EEO complaints.

Lee initially filed a formal complaint with the Equal Employment Opportunity

Commission (“EEOC”) containing those same claims, but the EEOC dismissed

that complaint when Lee requested a right to sue letter. The EEOC sent the claims

back to the Corps’s EEO to issue a final agency decision, and, when the EEO ruled

against him, Lee filed the instant suit in federal district court. When the Corps

subsequently terminated Lee’s employment, he appealed his termination to the

Merit Systems Protection Board (“MSPB”), alleging that he was terminated in

retaliation for whistleblowing activity and filing EEO complaints. The MSPB’s

administrative judge determined that Lee’s termination was proper and was not

based on any whistleblowing or EEO activity, and Lee unsuccessfully appealed

that decision to the United States Court of Appeals for the Federal Circuit


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(“Federal Circuit”). The district court dismissed Lee’s instant complaint, finding

that it lacked subject matter jurisdiction over Lee’s “mixed” claims of termination

and discrimination because he had waived his right to appeal those “mixed” claims

when he appealed to the Federal Circuit the MSPB’s order upholding his

termination.

      On appeal, Lee’s arguments are hard to follow, but he appears to contend

that: (1) the Corps was responsible for creating a “mixed” case; (2) the district

court did not litigate his claims of retaliation and hostile work environment; (3) he

never pursued or elected to file a “mixed” case with the MSPB; and (4) the MSPB

never had jurisdiction over his discrimination claim. Lee claims that his EEOC

complaint was a “pure” discrimination claim, and that his MSPB complaint was a

“pure” premature-termination claim, and that those claims were not related or

based on the same conduct.

      We review a district court’s order dismissing a complaint for lack of subject-

matter jurisdiction de novo. Dalrymple v. United States, 460 F.3d 1318, 1324

(11th Cir. 2006). “We may affirm the district court’s judgment on any ground that

appears in the record, whether or not that ground was relied upon or even

considered by the court below.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,

1364 (11th Cir. 2007).




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      When a federal employee has been subject to an “adverse employment

action,” including a termination, a demotion, or a suspension, he is entitled to

appeal that adverse action to the MSPB. 5 U.S.C. §§ 7512, 7513(d). The MSPB

does not have jurisdiction over discrimination claims that are not related to adverse

actions, but it can entertain appeals in “mixed cases,” where an employee alleges

discrimination in relation to one of the specified adverse employment actions.

5 U.S.C. § 7702(a)(1)(B); 29 C.F.R. § 1614.302(a). Specifically, for a case to

qualify as a mixed case appeal, an employee must “allege[] 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, disability, age, or genetic

information.” 29 C.F.R. § 1614.302(a)(2). When a federal employee has a Title

VII claim that is not mixed with an adverse action within the MSPB’s jurisdiction,

he must file an initial complaint with his agency’s EEO to pursue his claim.

Chappell v. Chao, 388 F.3d 1373, 1375 n.2 (11th Cir. 2004). Once the employee

has exhausted his administrative remedies, he may file a civil action in federal

district court. Id.; 42 U.S.C. § 2000e-5(f)(3).

      When the MSPB issues a final decision in a mixed case, the employee is

permitted to seek judicial review. Chappell, 388 F.3d at 1375. If the MSPB

rejects an employee’s claims in a mixed case, the employee may: (1) seek the

EEOC’s review of his discrimination claims; (2) file a civil action in federal


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district court raising both his discrimination and termination claims; or (3) petition

the Federal Circuit for review of the termination decision. 5 U.S.C. §§ 7702(b)(1),

7703(b)(1)-(2). The Federal Circuit does not have jurisdiction to hear

discrimination appeals. Chappell, 388 F.3d at 1375. “Thus, according to the

statutory scheme governing review of MSPB final orders, if a federal employee

wants to pursue any type of discrimination claim on appeal, the employee must file

a complaint in a federal district court, as the federal district court is the only forum

in which an employee can appeal both parts of a mixed claim.” Id. at 1375-76.

We have concluded that “[t]he statutory scheme established by Congress for

federal employees requires them either to combine their related employment

discrimination and termination claims and pursue them in federal district court, or

to appeal their termination claims to the Federal Circuit and waive any

discrimination claims.” Id. at 1374.

      In Chappell, the plaintiff, an employee of the Department of Labor

(“DOL”), filed several EEO complaints over a period of three years alleging

discrimination based on his age and race, and retaliation for previously filing

complaints with the EEO of the DOL. Id. Chappell was placed on a Performance

Improvement Plan (“PIP”) in January 2000, and was terminated in July 2000 for

failure to comply with the PIP. Id. While his EEOC discrimination claims were

still pending, he separately appealed the termination decision to the MSPB, which


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had jurisdiction over his “mixed case” of discrimination and termination claims.

Id. at 1375. Prior to the MSPB entering its findings, the EEOC found that

Chappell had failed to present an adequate showing for his discrimination claims.

Id. Chappell then filed a lawsuit in the Northern District of Georgia in August

2001. Id. In September 2001, the MSPB upheld Chappell’s termination from the

DOL. Id. The MSPB outlined Chappell’s remaining avenues of relief for him,

which included (1) seeking EEOC review of his discrimination claims, (2) filing a

civil action on both his discrimination and termination claims, or (3) requesting

review by the Federal Circuit of his termination decision. Id. Chappell opted to

appeal the MSPB decision regarding his termination to the Federal Circuit. Id. at

1376. While Chappell’s appeal in the Federal Circuit was pending, he attempted to

amend his discrimination lawsuit filed in the Northern District of Georgia to

include his termination claims, which the district court rejected because he had

failed to file a motion for leave to amend. Id. After the Federal Circuit dismissed

Chappell’s termination appeal on the merits, the DOL moved the district court for

summary judgment, arguing that the discrimination claims were related to events

already litigated in the Federal Circuit. Id. The district court granted summary

judgment, finding that it lacked subject matter jurisdiction. Id.

      On appeal, we upheld the grant of summary judgment in favor of the DOL,

explaining that the district court had subject matter jurisdiction over Chappell’s


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discrimination and termination claims, but that Chappell had waived his right to

bring the discrimination action in the district court by electing to appeal his

termination claim to the Federal Circuit. Id. at 1378 & n.8. We considered “the

language, legislative history, and underlying policies” of the statutes in question

and held that “a federal employee who wants to preserve both discrimination and

non-discrimination claims after a final order from the MSPB must do so by

bringing all his related claims in federal district court.” Id. at 1378. Therefore, if

the federal employee appeals a decision to the Federal Circuit, he “waives his right

to pursue not only any discrimination claims he raised before the MSPB, but also

any other discrimination claims arising out of the same facts.” Id. Thus, by

appealing his termination claim to the Federal Circuit, rather than bringing his

discrimination and related termination claims in the district court, Chappell waived

his right to bring the claims before the district court. Id. at 1378-79. We noted that

Chappell had “ample notice” of the consequences of filing his appeal in the Federal

Circuit and that he had “numerous opportunities to avoid those consequences.” Id.

(noting that the MSPB order explicitly stated that both claims could only be

pursued in a district court, that the district court had provided him the opportunity

to move for leave to amend his complaint to include an appeal of the MSPB

termination decision, and that Chappell had informed the Federal Circuit that he

did not plan on pursuing his discrimination claims elsewhere). We also concluded


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that, despite Chappell’s arguments that his discrimination claims before the MSPB

and the district court were different, “Chappell’s various administrative filings

raised related issues and arose out of overlapping facts.” Id. at 1379 (internal

quotation marks omitted) (“All of these complaints related to Chappell’s work

environment and ability to do his job, including the conditions leading up to his

termination.”).

      Because Lee appealed the MSPB’s adverse decision on his termination

claim to the Federal Circuit, which disposed of it, and his discrimination and

termination claims were based on the same facts, we conclude that Lee waived his

right to bring this suit in federal district court. The district court correctly

dismissed Lee’s complaint, although it incorrectly determined it lacked subject

matter jurisdiction over the case.

      AFFIRMED.




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