UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


BUTLER, DARLENE

v.

WEST, TOGO D.


97-5348a

D.C. Cir. 1999


*	*	*


Wald, Circuit Judge: Darlene Butler ("Butler" or "appel- lant") brings
this appeal challenging two rulings by the  district court that, taken
together, dismissed the entirety of  her suit against Togo West, the
Secretary of the Army  ("appellee"). Prior to her December 11, 1992
removal for  insubordination and creating a disturbance, Butler had 
worked for several years in the Civilian Personnel Office at  Walter
Reed Army Medical Center in Washington, D.C.  ("Walter Reed"). After
Equal Employment Opportunity  ("EEO") administrative proceedings
proved ineffectual, appel- lant filed a mixed case appeal with the
Merit Systems Protec- tion Board ("MSPB" or the "Board") alleging that
her remov- al violated the Civil Service Reform Act of 1978 ("CSRA" or
 the "Act"), Pub. L. No. 95-454, 92 Stat. 1111 (codified as  amended
in sections of 5 U.S.C. (1996)), and was motivated by  discriminatory
animus. The MSPB Administrative Judge's  Initial Decision upheld the
Army's allegations of insubordina- tion, but mitigated the punishment
to a thirty-day suspension  and ordered appellant's reinstatement with
back pay. The  Army petitioned the full Board for review, and Butler
filed a  cross petition challenging the thirty-day suspension. Subse-
quently, Butler filed this complaint with the United States  District
Court for the District of Columbia, suing Togo West  in his official
capacity and broadly alleging unlawful discrimi- nation in her
removal. On defendant's motion, the district  court dismissed Butler's
Title VII and retaliation claims for  failure to exhaust
administrative remedies. Following defen- dant's motion to reconsider
retention of her First Amendment  claim, the district court dismissed
that as well. We find that  the district court improperly narrowed the
window for filing  suit available under 5 U.S.C. s 7702(e)(1)(B),
which explicitly  allows all of appellant's claims, and accordingly
vacate the  dismissal and remand for further proceedings.


I.


The procedural history of this case is convoluted but the  controlling
legal question is time-specific; consequently, we  discuss only those
facts necessary to our decision.


On December 11, 1992, the Department of the Army re- moved Darlene
Butler from her position as a GS-11 Position  Classification
Specialist for insubordination and creating a  disturbance. Butler, an
African-American woman, had begun  to have problems at work roughly
two years earlier, following  her October 15, 1990 reassignment from
the Position Manage- ment and Classification Division at Walter Reed
to the Re- cruitment and Placement Division, Special Action Branch. 
Prior to her termination, she had initiated EEO counseling on  four
separate occasions--in December of 1991, April of 1992,  January of
1993, and either February or March of 1993.1  Following each episode
she filed a formal EEO complaint  alleging both racial discrimination
and retaliation in various  terms and conditions of her employment. In
each instance,  an Army investigator and an Equal Employment
Opportunity  Commission ("EEOC") Administrative Judge recommended a 
finding of "no discrimination," and the Department of the  Army
("Army") adopted their recommendations on June 15,  1994.


Following her removal in December of 1992, which she  attributed to
discriminatory animus and hostility towards her  recent election as an
officer of a newly-formed chapter of  Blacks in Government ("BIG"),
Butler again pursued the  necessary administrative procedures with the
Army. She  timely sought EEO counseling, and then filed a formal com-
plaint with the Equal Employment Opportunity Office at 




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n 1 The record before us is unclear as to the exact dates that EEO 
counseling initiated. The Bench Decision of the EEOC Administra- tive
Judge lists December 6, 1991, April 13, 1992, January 13, 1993,  and
February 10, 1993. See Butler v. West, Complaint Nos.  170-94-7116X,
170-94-8124X, 170-94-8239X, 170-94-8240X, at 3-6  (E.E.O.C. May 12,
1994). The district court, by contrast, cites  December 6, 1991, April
6, 1992, January 13, 1993, and April 22,  1993. See Butler v. West,
No. 94-2182 at 2 (D.D.C. Feb. 14, 1997).


Walter Reed in which she alleged that her termination was a  product of
racial discrimination. The Department of Defense  Office of Complaint
Investigations recommended a finding of  "no discrimination" on
December 10, 1993. Butler then filed  a "mixed case appeal"2 with the
MSPB on April 5, 1994,  challenging her removal as both procedurally
improper3 and  discriminatorily motivated. On August 3, 1994, exactly
120  days after Butler lodged her appeal, an MSPB Administrative 
Judge ("AJ") issued an Initial Decision which held that: (i)  the Army
had carried its burden of showing that appellant  had been
insubordinate and had created a disturbance; (ii)  the resulting
disciplinary action promoted the efficiency of the  agency as required
by 5 U.S.C. s 7513(a)4; (iii) the procedur- al errors made in removing
the appellant were harmless; (iv)  Butler failed to make out her
affirmative defenses of retalia- tion and discrimination; and (v) that
the removal penalty was  unreasonable. Accordingly, the AJ mitigated
her removal to  a thirty-day suspension and ordered back pay with
interest.  The Army petitioned the MSPB to review this penalty reduc-
tion within the thirty-five-day period provided for by the  MSPB's
regulations, see 5 C.F.R. s 1201.114(d), and appellant 




__________

n 2 "A mixed case appeal is an appeal filed with the MSPB that  alleges
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. s 1614.302(a)(2).


3 Butler alleged that the Army failed to follow the procedures 
articulated in the Walter Reed Army Medical Center Supervisor's 
Handbook for the recommendation and processing of adverse ac- tions.
The MSPB Administrative Judge found that the agency  failed to adhere
to its normal procedures for initiating and investi- gating
disciplinary matters, but that this departure neither harmed  nor
prejudiced the appellant. See Butler v. Department of the  Army,
USMSPB Initial Decision, No. DC-0752-94-0396-I-1, at 9  (August 3,


4 5 U.S.C. s 7513(a) provides that "[u]nder regulations prescribed  by
the Office of Personnel Management, an agency may take an  action
covered by this subchapter against an employee only for such  cause as
will promote the efficiency of the service."


filed a cross petition addressing only her nondiscrimination  claim of
procedural irregularities.


On October 11, 1994, while the cross petitions were pending  before the
MSPB, appellant filed this action in the United  States District Court
for the District of Columbia, naming  Togo West, in his official
capacity as the Secretary of the  Army, as defendant. Butler's
complaint contained three  counts, alleging racial discrimination,
retaliation, and a viola- tion of her First Amendment rights to free
speech and  association. Subsequently, on December 21, 1994, the MSPB 
denied both petitions for review and the AJ's Initial Decision  became
final. See 5 C.F.R. s 1201.113(b) ("If the Board  denies all petitions
for review, the initial decision will become  final when the Board
issues its last decision denying a peti- tion for review."). In March
of 1995, the appellee moved to  dismiss Butler's lawsuit under Rule
12(b) of the Federal  Rules of Civil Procedure or, in the alternative,
for summary  judgment, alleging that Butler filed her complaint
premature- ly as the MSPB had not yet issued a final decision. The 
district court dismissed appellant's discrimination claims as 
untimely in a February 14, 1997 Memorandum Opinion, rea- soning that
Butler had failed to exhaust available administra- tive remedies under
the CSRA prior to filing suit. While the  court originally held that
she had stated a timely First  Amendment claim independent from her
Title VII action, a  November 12, 1997 Memorandum Opinion and Order
granted  the defendant's motion for reconsideration and dismissed 
Butler's First Amendment claim as equally untimely under  the CSRA.


Recognizing that it faced a question of first impression, the  district
court found that appellant filed her suit at a time  when the court
lacked jurisdiction to hear her complaint.  Although section
7702(e)(1)(B) states that an individual claim- ing discrimination
shall be entitled to file a civil action if there  is no judicially
reviewable action within 120 days following the  filing of an appeal
with the MSPB, the court held that an  initial decision by the AJ
within that period is sufficient to  foreclose immediate access to the
federal courts. For pur- poses of section 7702(e)(1)(B), it ruled,
"[a]n initial decision is 


essentially the same as a final decision...." Butler v. West,  No.
94-2182 at 7 (D.D.C. Feb. 14, 1997) ("Butler I").


The court articulated three separate grounds for this con- clusion:
First, it reasoned that an initial decision and a final  decision are
functionally indistinguishable, as the former auto- matically converts
into the latter provided that neither party  (nor the MSPB on its own
motion) seeks further Board  review. Second, it noted that 29 C.F.R. s
1614.310(h) autho- rizes an individual with a mixed case to file a
civil action  "[a]fter 120 days from the date of filing an appeal with
the  MSPB if the MSPB has not yet made a decision" (emphasis  added).
Since the EEOC refers to a final decision in other  subsections of 29
C.F.R. s 1614.310, the court concluded that  the EEOC's use of the
more general term decision in section  1614.310(h) signals an intent
that any MSPB decision--initial  or final--should foreclose judicial
review. Finally, the court  reasoned that any other reading of section
7702(e)(1)(B)  would lead to absurd results that defied the purpose of
the  statute, since it necessarily takes more than 120 days for the 
MSPB fully to process most claims before it. Were a pro- spective
plaintiff allowed to proceed in district court whenev- er the Board
failed to meet that deadline, the statutory  requirement of MSPB
participation would be rendered mean- ingless.


According to the district court, appellant should have fol- lowed the
alternative avenue into the federal courts provided  by 5 U.S.C. s
7703(b), which allows a civil suit to be filed  within thirty days of
a final MSPB decision. Since Butler  neither refiled her suit nor
moved to amend her complaint  within the thirty-day period following
December 21, 1994, the  date on which the Initial Decision became
final, her complaint  was untimely. In this appeal, Butler challenges
the district  court's construction of the relevant statutory
provisions, argu- ing that her suit was timely under 5 U.S.C. s
7702(e)(1) as  the MSPB had failed to issue a judicially reviewable
decision  within 120 days after Butler lodged her appeal. We agree.5




__________

n 5 Appellant additionally asserts (i) that her complaint "ripened" 
when the MSPB denied the cross petitions for review and the Initial 


II.


The CSRA lays out a comprehensive statutory framework  for the
processing of mixed case appeals, which has been  supplemented and
elaborated by regulations issuing from  both the EEOC and the MSPB.
See 5 U.S.C. s 7702; 5  C.F.R. ss 1201.151-1201.175; 29 C.F.R. ss
1613.401- 1613.421. As the procedural history of this case well illus-
trates, the provisions that structure both administrative and 
judicial review of adverse personnel actions form a complicat- ed
tapestry. Where Congress has spoken authoritatively, the  time limits
articulated by the Act have been strictly policed.  See King v. Dole,
782 F.2d 274, 276 (D.C. Cir. 1986) (per  curiam) (given "the clear and
emphatic language of the statu- tory provision" requiring civil action
to be filed within thirty  days from notice of a judicially reviewable
action, district  court lacks jurisdiction to hear case filed
thirty-one days after  receipt of notice); Harrison v. Bowen, 815 F.2d
1505, 1515  (D.C. Cir. 1987) ("reading between the lines [of the CSRA]
to  interpolate remedies Congress did not provide can only lead  the
Court into error"). To some extent, this case presents  the flip side
of King, as it requires us to determine whether  the equally clear and
emphatic language of section  7702(e)(1)(B), which facially permits a
lawsuit when 120 days  pass without a judicially reviewable decision,
merits an equal- ly strict reading. We hold that it does.


A.The Statutory and Regulatory Framework for Mixed  Case Appeals


5 U.S.C. s 7702 contains the statutory provisions directly  addressing
the procedural path of a mixed case--an adverse  personnel action
subject to appeal to the MSPB coupled with  a claim that the action
was motivated by discrimination. See,  e.g., McAdams v. Reno, 64 F.3d
1137, 1141 (8th Cir. 1995) 




__________

n Decision became final, such that her complaint then became timely 
under 5 U.S.C. s 7703(b), and (ii) that she did not have to exhaust 
administrative remedies with respect to her First Amendment  claims,
as the MSPB was incapable of granting full relief. Since we  hold
appellant's complaint timely under 5 U.S.C. s 7702(e)(1), we do  not
reach these contentions.


(defining the mixed case in similar terms); Romain v. Shear,  799 F.2d
1416, 1419 (9th Cir. 1986) (per curiam) (same).  When the
discrimination is alleged as a violation of Title VII,  the federal
employee must negotiate and exhaust the complex  administrative regime
that governs Title VII public employ- ment cases in addition to the
usual procedures for challenging  an adverse personnel action under
the CSRA. See Brown v.  General Servs. Admin., 425 U.S. 820, 832-33
(1976) (requiring  exhaustion of administrative remedies prior to
filing a Title  VII suit in federal district court).6 The MSPB and
EEOC  regulations that structure the prosecution of mixed cases are 
extremely complicated, but they can be reduced to a decision  tree,
albeit a somewhat elaborate one. We briefly survey this  scheme so as
to lay out the statutory and regulatory backdrop  for our inquiry into
the proper meaning of section  7702(e)(1)(B).


An employee who intends to pursue a mixed case has  several paths
available to her. At the outset, the aggrieved  party can choose
between filing a "mixed case complaint"7  with her agency's EEO office
and filing a "mixed case ap- peal"8 directly with the MSPB. See 29
C.F.R. s 1614.302(b).  By statute, the relevant agency EEO office and
the MSPB  can and must address both the discrimination claim and the 
appealable personnel action. See 5 U.S.C. s 7702(a). Should  she elect
the agency EEO route, within thirty days of a final  decision she can
file an appeal with the MSPB or a civil 




__________

n 6 "However, when a federal employee claims he or she has been 
affected by both an 'adverse employment action' and a related Title 
VII violation, administrative remedies may be exhausted for Title  VII
purposes by asserting both claims before the MSPB." Sloan v.  West,
140 F.3d 1255, 1259 (9th Cir. 1998) (citing McAdams, 64 F.3d  at


7 "A mixed case complaint is a complaint of employment discrimi- nation
filed with a federal agency ... related to or stemming from  an action
that can be appealed to the [MSPB]." 29 C.F.R.  s 1614.302(a)(1).


8 See supra n.2.


discrimination action in federal district court.9 See 29 C.F.R.  ss
1614.302(d)(1)(ii), 1614.302(d)(3), 1614.310(a). If 120 days  pass
without a final decision from the agency's EEO office,  the same
avenues of appeal again become available: the  complainant can file
either a mixed case appeal with the  MSPB or a civil action in
district court. See 5 U.S.C.  ss 7702(e)(1)(A), 7702(e)(2); 29 C.F.R.
ss 1614.302(d)(1)(i),  1614.310(g); 5 C.F.R. s 1201.154(b)(2).


When a complainant appeals to the MSPB, either directly  or after
pursuing her claim with the agency EEO office, the  matter is assigned
to an Administrative Judge who takes  evidence and eventually makes
findings of fact and conclu- sions of law. See 5 C.F.R. ss 1201.41(b),
1201.111. The AJ's  initial decision becomes a final decision if
neither party, nor  the MSPB on its own motion, seeks further review
within  thirty-five days. See 5 C.F.R. s 1201.113. However, both  the
complainant and the agency can petition the full Board to  review an
initial decision. Should the Board deny the petition  for review, the
initial decision becomes final, see 5 C.F.R.  s 1201.113(b); if the
Board grants the petition, its decision is  final when issued. See 5
C.F.R. s 1201.113(c). At this point,  the complainant again has a
choice: within thirty days of  receiving a final decision from the
MSPB, she can either  appeal the discrimination claim to the EEOC, see
5 C.F.R.  s 1201.157, or appeal the entire claim (or any parts
thereof)  to the appropriate district court.10 See 5 U.S.C. s 7703(b),




__________

n 9 The party can also appeal the decision to the EEOC, but in that 
case she forfeits further consideration of all nondiscrimination 
claims. See Sloan, 140 F.3d at 1260 (9th Cir. 1998).


10 On the discrimination claim, the complainant "shall have the  right
to have the facts subject to trial de novo by the reviewing  court." 5
U.S.C. s 7703(c). The district court reviews nondiscrimi- nation
claims on the administrative record, and will set aside the  MSPB's
determinations only when "arbitrary, capricious, an abuse  of
discretion, or otherwise not in accordance with law"; "obtained 
without procedures required by law, rule or regulation having been 
followed"; or "unsupported by substantial evidence." 5 U.S.C.  s
7703(c)(1)-(3). For applications of these standards, see Barnes v. 
Small, 840 F.2d 972 (D.C. Cir. 1988); Romain v. Shear, 799 F.2d 


C.F.R. s 1201.175, 29 C.F.R. s 1614.310(b). Finally, if the  MSPB fails
to render a judicially reviewable decision within  120 days from the
filing of a mixed case appeal, the aggrieved  party can pursue her
claim in federal district court. See 5  U.S.C. s 7702(e)(1)(B).


B.The Meaning of Section 7702


We review statutory interpretation by a district court de  novo.11 See
Fawn Mining Corp. v. Hudson, 80 F.3d 519, 521  (D.C. Cir. 1996);
United States v. Wishnefsky, 7 F.3d 254,  256 (D.C. Cir. 1993). As
always, our inquiry starts from "the  fundamental canon that statutory
interpretation begins with  the language of the statute itself."
Pennsylvania Dep't of 




__________

n 1416, 1421 (9th Cir. 1986). If the complainant seeks only to pursue 
her nondiscrimination claim, appeal properly lies with the Federal 
Circuit. See 5 U.S.C. s 7703(b)(1); 5 C.F.R. s 1201.120; Powell v. 
Department of Defense, 158 F.3d 597, 598-99 (D.C. Cir. 1998).


11 Appellee argues that this case requires a Chevron analysis of  MSPB
and EEOC regulations. See Chevron U.S.A. Inc. v. Natural  Resources
Defense Council, Inc., 467 U.S. 837 (1984). 5 C.F.R.  s 1201.156(a),
promulgated by the MSPB, provides that "[w]hen an  appellant alleges
prohibited discrimination in the appeal, the judge  will decide both
the issue of discrimination and the appealable  action within 120 days
after the appeal is filed." 29 C.F.R.  s 1614.310(h), promulgated by
the EEOC, allows an individual with  a mixed case appeal before the
MSPB "to file a civil action in an  appropriate United States District
Court ... [a]fter 120 days from  the date of filing an appeal with the
MSPB if the MSPB has not yet  made a decision." According to appellee,
the MSPB and EEOC  regulations merely require an initial decision
within 120 days:  section 1201.156(a) requires a "judge," rather than
the full Board, to  issue a decision, while section 1614.310(h)
requires a "decision,"  rather than a "final decision." We cannot
agree. Neither the  MSPB nor the EEOC have construed their regulations
in such a  manner, and neither advances this construction as a party
to this  dispute. In any case, since we believe that the plain
language of 5  U.S.C. s 7702(e)(1)(B) contains the "unambiguously
expressed in- tent of Congress," Chevron, 467 U.S. at 843, and our
decision gives  effect to that intent, we need not go any further into


Pub. Welfare v. Davenport, 495 U.S. 552, 557-58 (1990). See  also
Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc.,  447 U.S. 102, 108
(1980) (same).


1.The Statutory Language


The text of 5 U.S.C. s 7702(e)(1)(B) provides that:


Notwithstanding any other provision of law, if at any time  after--


(B) the 120th day following the filing of an appeal with  the Board
under subsection (a)(1) of this section [provid- ing for mixed case
appeals], there is no judicially review- able action ...;


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


The parties disagree as to the proper meaning of the term  "judicially
reviewable action"--appellant limits its scope to  final decisions,
while appellee asserts that it encompasses  both initial and final
decisions. Since initial decisions are not  subject to judicial
review, appellant argues, the statute ex- pressly sanctioned her civil
action; there was no judicially  reviewable action by the 120th day
after she lodged her mixed  appeal with the MSPB.12 Appellee rejects
this literal read- ing, embracing a functional approach analogous to
that  adopted by the district court below. Because an initial 
decision automatically converts into a final decision unless the 
parties or the MSPB seeks further review, appellee argues  that
initial decisions effectively constitute judicially reviewa- ble
actions. We think that appellant's reading of the statute  is clearly


The unambiguous and explicit language of section  7702(e)(1)(B), as
well as the basic design of the statute in  which it reposes, limit
our reading of "judicially reviewable 




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n 12 At the time appellant filed her complaint in the district court, 
179 days had elapsed since she lodged her mixed appeal with the  MSPB.
Eighty-one days more would pass before a final decision  issued.


action" to one subject to judicial review as of the time the  plaintiff
files suit. First, the phrase does not speak in  contingent terms to
encompass actions that may or may not  be judicially reviewable at
some point in the future. While an  initial decision can convert to a
final decision with either the  passage of thirty-five days or the
denial of all outstanding  petitions for review, it can also be
overturned or modified by  the Board, in which case it will never be
reviewable by the  courts in its initial form. Furthermore, throughout
the  thirty-five-day period following the issuance of an initial 
decision, the parties can each petition for another round of  review
from the Board. Once a decision becomes final,  however, a losing
party's only recourse lies in the courts.  These distinctions in the
effect of the two kinds of decisions  have real-world implications,
and defy any gloss that an initial  decision and a final decision are


Second, as sketched above, see supra pp. 7-10, section  7702(e)(1)(B)
is situated within a larger statutory provision-- section 7702--that
structures the path of all mixed cases. As  a whole, section 7702
provides a rigid time line for advancing  mixed cases through the
various phases of administrative and  judicial review set forth
therein. In looking to its parallel  structure, we "follow the
cardinal rule that a statute is to be  read as a whole," King v. St.
Vincent's Hospital, 502 U.S. 215,  221 (1991) (citing Massachusetts v.
Morash, 490 U.S. 107, 115  (1989)), "since the meaning of statutory
language, plain or  not, depends on context." Conroy v. Aniskoff, 507
U.S. 511,  515 (1993). As in Conroy and "the context of this statute 
actually supports the conclusion that Congress meant what  [section
7702(e)(1)(B)] says." Id. For example, sections  7702(a)(1) and
7702(a)(2) respectively direct that the MSPB  and an employee's
agency--depending on where the com- plainant chooses first to pursue
his mixed case--"shall, within  120 days of the filing of the appeal,
decide both the issue of  discrimination and the appealable action", 5
U.S.C.  s 7702(a)(1), and "shall resolve such matter within 120 days."
 5 U.S.C. s 7702(a)(2). Moreover, sections 7702(e)(1)(A) and 
7702(e)(1)(C) each allow aggrieved employees to pursue their  claims
in federal court when either their employing agency or 


the EEOC has been temporally remiss in processing a case  before it.13
See 5 U.S.C. ss 7702(e)(1)(A) & 7702(e)(1)(C).  Read together, these
provisions clearly express Congress'  desire that mixed cases should
be processed expeditiously,  and that complainants should have access
to a judicial forum  should their claims languish undecided in the
administrative  machinery.


The legislative history lends further support to our reading  of
section 7702(e)(1)(B). The Joint Explanatory Statement of  the
Committee on Conference accompanying the CSRA ("Ex- planatory
Statement") declares that


[t]he bill establishes mandatory time limits to govern the  maximum
length of time the employing agency, the  MSPB, the EEOC, or the Panel
may take to resolve the  matter at each step in the process. The act
makes  compliance with these deadlines mandatory--not discre-
tionary---in order to assure the employee the right to  have as
expeditious a resolution of the matter as possible.


H. Conf. Rep. No. 95-1717, Joint Explanatory Statement of  the
Committee on Conference, 95th Cong., 2d Sess., reprinted  in 1978
U.S.C.C.A.N. 2860, 2874 (emphasis added). Describ- ing the procedural
path for processing mixed cases, the  Explanatory Statement goes on to
explain that


[t]he conference substitute fully protects the existing  rights of
employees to trial de novo under title VII of the  Civil Rights Act of
1964 or other similar laws after a final  agency action on the matter.
Under the act's provisions,  this final agency action must occur
within 120 days after  the complaint is first filed. After these 120
days, the  employee may appeal to the Board or file a complaint in 
district court in those cases where the agency in violation  of the
law has not issued a final decision. If the employ-




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n 13 5 U.S.C. s 7702(e)(1)(A) entitles an employee to bring suit  when
there is no judicially reviewable action on the 120th day  following
the filing of a mixed case complaint with the employing  agency, while
5 U.S.C. s 7702(e)(1)(C) allows recourse to the feder- al courts when
there is no "final agency action" on the 180th day  following the
filing of a petition with the EEOC.


ee files an appeal of the agency action with the MSPB,  the employee
may file a suit in district court any time  after 120 days if the
Board has not completed action on  the matter by that time.


Id. at 2874-75. (emphasis added). We think this history  reinforces our
reading of the text that Congress used "judi- cially reviewable
action" to refer to final agency actions alone.  The Board has not
"completed action" nor "resolve[d] the  matter" until it issues a
final decision. The text and struc- ture of section 7702, as well as
the accompanying legislative  history, permit no other


Appellee's principal support for his contrary reading lies in  a
separate passage in the Explanatory Statement. After  discussing the
mandatory nature of the time limits for agency  action, the
Explanatory Statement continues: "[i]t is not  intended that the
employing agencies, the Board, the Com- mission, or the special panel
would automatically lose jurisdic- tion for failing to meet these time
frames. Congress will  exercise its oversight responsibilities should
there be a sys- tematic pattern of any body failing to meet these time
 frames." Id. at 2874. In appellee's view, this statement  signals a
clear intention to prevent complainants from enter- ing federal court
until the administrative agency takes final  action, and section
7702(e)(1)(B) merely constitutes a type of  savings clause that
applies on those rare occasions when the  agency refuses to act
altogether.14 Appellee fails to explain,  however, why authorization
of an agency's retention of juris- diction after a deadline for action




__________

n 14 In support of his reading, appellee also cites to sections 
7701(i)(1) & (2), which direct the MSPB to announce time frames  for
processing appeals and to submit yearly reports to Congress 
discussing its adherence to these deadlines. 5 U.S.C. ss 7701(i)(1)  &
(2). Neither the requirement of record-keeping nor the specter  of
congressional oversight undercuts the alternative avenue for  relief
that Congress made available to plaintiffs in section  7702(e)(1)(B).
In fact, these provisions reinforce our reading; they  illustrate yet
another mechanism for assuring the expeditious reso- lution of
employee complaints that Congress so clearly contemplat- ed.


divest the federal courts of the jurisdiction expressly granted  by
section 7702(e)(1)(B) to consider the appeal of an appellant  in the
same situation. The two are in no way mutually  exclusive. See Padilla
v. Department of the Air Force, 58  M.S.P.R. 561, 566 (1993) ("The
appellant's filing of a civil  action in a United States District
Court does not automatical- ly terminate the Board's jurisdiction over
her appeal," as  Board law "permits simultaneous adjudication of a
mixed case  appeal before the Board and a United States District 
Court."); Connor v. United States Postal Serv., 52 M.S.P.R.  588, 591
(1992) (same); McGovern v. Equal Employment  Opportunity Comm'n, 28
M.S.P.R. 689, 691 n.1 (1985) ("The  fact that Section 7702(e)(1)(B)
allows the appellant to go to  District Court if he does not have a
decision within 120 days  of his appeal to the regional office does
not lead us to  conclude that the presiding official's initial
decision consti- tutes a final and reviewable Board order in this
case. Rath- er, that section provides the appellant with an
alternative and  additional route of appeal...."). The section allows
the  appellant to ignore the time lapse by the Board or to move  the
case to federal court. Accordingly, although the MSPB  does not lose
its jurisdiction when 120 days elapse without a  final decision, the
appropriate federal district court can take  jurisdiction as well.


2.Does Our Reading of Section 7702(e)(1)(B) Produce an  Absurd


Appellee draws on the district court's opinion further to  argue that a
literal reading of section 7702(e)(1)(B) would  produce absurd
results. According to the court below, "[o]ne  hundred and twenty days
is not enough time for the Board to  complete the entire cycle of
initial decision and subsequent  review that is necessary to render a
'final' decision." Butler  I, at 7. Allowing a complainant to proceed
to federal court  after the passage of 120 days would, in appellee's
view,  undermine the MSPB's role as the preeminent authority on 
federal personnel disputes and obviate the requirement for  the
exhaustion of administrative remedies. We disagree.


First, the line of cases relied upon by appellee, dating back  to Holy
Trinity Church v. United States, 143 U.S. 457 (1892), 


and continuing up through United States v. X-Citement  Video, Inc.,
513 U.S. 64 (1994), sanctions departure from a  statute's plain
meaning only in that rare instance where a  literal reading would
produce an application at odds with the  clearly expressed purpose of
the statute. Where a " 'literal  application of a statute will produce
a result demonstrably at  odds with the intentions of its drafters'
... the intention of  the drafters, rather than the strict language,
controls." Unit- ed States v. Ron Pair Enterprises Inc., 489 U.S. 235,
242  (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 
564, 571 (1982)) (emphasis added). We think it clear, howev- er, for
the reasons just discussed, that the plain language of  section
7702(e)(1)(B) does not lead to a particular application  that deviates
from Congress' plain intent. To the contrary,  every application of
our statutory reading will accord with  Congress' clearly expressed
purpose. Accordingly, the prin- ciple of statutory construction
expressed in Holy Trinity is  inapposite. To the extent that section
7702(e)(1)(B) permits a  complainant to proceed to federal district
court without first  obtaining a final decision from the MSPB, and
thereby to  avoid exhausting available administrative remedies,
Congress  intended that result.15 See National Treasury Employees 
Union v. King, 961 F.2d 240, 243 (D.C. Cir. 1992) ("Exhaus- tion is
indeed a 'flexible doctrine,' in which congressional  intent is of
'paramount importance.' ") (quoting Patsy v.  Board of Regents, 457


We do not discount the special role that the MSPB has  been assigned in
the adjudication of federal personnel dis-




__________

n 15 It is for this reason that cases cited by appellee like Tolbert v.
 United States, 916 F.2d 245 (5th Cir. 1990) and Rivera v. United 
States Postal Serv., 830 F.2d 1037 (9th Cir. 1987), are distinguish-
able. In Tolbert and Rivera, the complainants appealed adverse 
decisions from their employing agency to the EEOC, and then filed 
suit before the 180 days allotted the EEOC for rendering a final 
decision had passed. In other words, the plaintiffs brought suit 
without first pursuing their claims at the administrative level to the
 extent explicitly required by statute. In the present case, by 
contrast, appellant pursued her claim before the MSPB and waited  the
statutorily prescribed 120 days before bringing this lawsuit.


putes, nor do we impugn its expertise. The degree of defer- ence that
federal courts must accord MSPB resolutions of  nondiscrimination
claims, see 5 U.S.C. s 7703(c) (limiting  review to actions found to
be arbitrary, capricious, an abuse  of discretion, contrary to law, or
unsupported by substantial  evidence), speaks directly to its
preeminent role in this area.  We agree with our sister courts that
"[a]dministrative law  judges and the MSPB [and] EEO counselors and
the EEOC  ... all have a measure of expertise and familiarity with 
employment discrimination disputes that federal judges can- not
readily match." Vinieratos v. United States Dep't of the  Air Force,
939 F.2d 762, 775 (9th Cir. 1991). See also Muller  Optical Co. v.
EEOC, 743 F.2d 380, 395 (6th Cir. 1984) ("the  EEOC has developed
considerable expertise in the field of  employment discrimination
since Congress created it by the  Civil Rights Act of 1964"); cf.
Hopkins v. Price Waterhouse,  920 F.2d 967, 979 (D.C. Cir. 1990) ("In
explaining Congress'  decision to grant the EEOC administrative
enforcement pow- ers, the Senate Committee on Labor and Public Welfare
 observed that ... '[t]he Equal Employment Opportunity  Commission
would be expected to develop an important res- ervoir of expertise in
these matters, expertise which would  not readily be available to a
widespread court system.' ")  (quoting S. Rep. No. 415, 92d Cong., 1st
Sess. 18-19 (1971)).  Nevertheless, where the complainant has neither
deliberately  abandoned the administrative regime,16 see Vinieratos,
939  F.2d at 770 (plaintiff abandoned claim when he filed third  EEO
complaint and asked MSPB to defer to EEO process);  McGinty v. United
States Dep't of the Army, 900 F.2d 1114,  1117 (7th Cir. 1990)
(plaintiff abandoned administrative sys- tem by filing claim in
federal court rather than appealing  agency no age discrimination
finding to the EEOC), nor  refused to cooperate in its processes, see
Wilson v. Pena, 79  F.3d 154, 164 (D.C. Cir. 1996) ("If a complainant
forces an  agency to dismiss or cancel the complaint by failing to




__________

n 16 As should be evident, we conclude that a federal employee who 
files suit after 120 days have elapsed but before the MSPB issues a 
final decision has not abandoned her administrative remedies.


sufficient information to enable the agency to investigate the  claim,
he may not file a judicial suit."); Barnes v. Levitt, 118  F.3d 404,
409 (5th Cir. 1997) (district court lacks jurisdiction  over
employment discrimination suit where plaintiff refused  to cooperate
with agency EEO investigation), and has herself  followed the rigorous
time limitations prescribed by section  7702, section 7702(e)(1)(B)
explicitly sanctions a civil action in  the federal district courts
once 120 days have passed without  a final decision from the MSPB.17


While the district court has jurisdiction over such a claim,  and
cannot dismiss it as untimely for failure to exhaust  administrative
remedies, we see no reason why the district  court cannot stay the
case, or hold it in abeyance, for a  reasonable period of time. See
National Treasury Employ- ees Union, 961 F.2d at 245 (reversing
dismissal for failure to  exhaust administrative remedies but
directing the district  court to hold claim in abeyance for three
months to allow the  FLRA time to hear unfair labor practice claim).
Such treat- ment would allow the court to benefit from the exercise of
 MSPB expertise, preserving judicial resources while simulta- neously
protecting the right of appeal contained in section  7702(e)(1)(B). In
this case, for example, the MSPB's final  decision was issued in
December of 1994, a little more than  two months after appellant filed
her complaint; the district  court did not rule on her complaint,
however, until February  of 1997. While this delay may not be typical,
it reveals that  the district courts can routinely benefit from MSPB
expertise  without running afoul of the unambiguous language of
section  7702(e)(1)(B), and without disadvantaging parties who follow 


III.


For reasons discussed, we hold that the initial decision of  an
administrative judge is not a "judicially reviewable deci-




__________

n 17 If the MSPB issues a final decision after more than 120 days  have
elapsed but before the complainant has brought suit, 5 U.S.C.  s 7703
controls. Under section 7703(b)(2), once the party receives  notice of
the MSPB's final action, she has thirty days in which to  file a claim
in district court. See 5 U.S.C. s 7703(b)(2).


sion" for purposes of 5 U.S.C. s 7702(e)(1)(B) unless neither  party,
nor the MSPB on its own motion, seeks further review  within
thirty-five days. Accordingly, section 7702 allows a  complainant like
Butler to appeal her claim to the appropriate  federal district court
when, after filing a mixed case appeal  with the MSPB, 120 days elapse
without final MSPB action.  Accordingly, we reverse the dismissal of
appellant's claim and  remand to the district court for further


So ordered.