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


EVONO, HORDON H.

v.

RENO, JANET


99-5283a

D.C. Cir. 2000


*	*	*


Rogers, Circuit Judge: Hordon H. Evono, a former Depu- ty United States
Marshal, appeals the dismissal of his em- ployment 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 retalia- tion 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




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n 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. s 1614.302(a)(2).


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


tional litigation to enforce the district court's 1980 judgment,  Mr.
Evono was diagnosed in 1983 with a hearing loss, subse- quently
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


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. 




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n 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 stem-
ming from an action that can be appealed to the Merit Systems 
Protection Board (MSPB)." 29 C.F.R. s 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.  s 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. s 2000e et seq., and s 1981, the 
Rehabilitation Act of 1973, 29 U.S.C. s 791 et seq., and the Consti-
tution. 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.  s 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


s 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 asser- tions 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


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 




__________

n 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 with- out 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.


and the court. After initially denying the government's mo- tion 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.


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 retalia- tion claims after dismissing his
discrimination claims for  failure to exhaust administrative remedies.


5 U.S.C. s 7702(e)(1) provides:


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


....


(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....


....


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....


5 U.S.C. s 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 discrimina- tion," 29 C.F.R.
s 1614.302 (a)(2), and thus began the process  described in s
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.


notwithstanding the fact that this would result in simulta- neous
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.
Evo- no 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. s 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 ac- knowledging 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


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 s
7702(e)(1), noted that the pen- dency of simultaneous proceedings was
what Congress con- templated. 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 




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n 7 In view of the unequivocal holding in Butler, that the exis- tence
of simultaneous district court and administrative proceedings  could
not serve as a basis for dismissal of a complaint filed pursuant  to s
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.


address a situation in which the district court dismisses part  of a
"mixed case" and s 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. s 7702 and 28 U.S.C. s 1331.


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 s 7702.8 




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n 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.


Moreover, Mr. Evono's remarks advised the administrative  law judge
that he was seeking judicial review of the "continu- ing violations of
[his] rights," which hardly reflects the lan- guage of waiver. Nor do
Mr. Evono's statements in the  district court, responding to the
government's erroneous ar- guments 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 govern- ment
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


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


Finally, the government's supplemental jurisdiction conten- tion fares
no better. The government contends not only that  the district court
lacked original jurisdiction under s 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 jur- isdiction 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 s
7702(e).9 Parallel proceedings in the district court  and the MSPB are
contemplated by s 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.


Accordingly, we hold that where a complaint is properly  filed under 5
U.S.C. s 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.




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n 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.