Case: 18-40580 Document: 00515239067 Page: 1 Date Filed: 12/17/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-40580 FILED December 17, 2019 Lyle W. Cayce Clerk JOHNNETTA PUNCH, Plaintiff-Appellant, v. JIM BRIDENSTINE, in his official capacity as Administrator, National Aeronautics and Space Administration; NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, (NASA); MARK GEYER, in his official capacity as Director, National Aeronautics and Space Administration, Defendants-Appellees. Appeal from the United States District Court for the Southern District of Texas Before JONES, HO, and OLDHAM, Circuit Judges. ANDREW S. OLDHAM, Circuit Judge: Johnnetta Punch says the National Aeronautics and Space Administration (“NASA”) discriminated against her. She pursued her claims before numerous tribunals—none of which found any discrimination or other violation of law. But the merits of her allegations are not before us. The issue here is procedural. We must decide whether Punch pled her way out of federal court by attempting to litigate her claims in several mutually exclusive forums. The district court said yes. We agree. Case: 18-40580 Document: 00515239067 Page: 2 Date Filed: 12/17/2019 No. 18-40580 I. When a federal employee challenges an adverse employment action, such as termination, a “complicated tapestry” of statutes and regulations governs her claim. Butler v. West, 164 F.3d 634, 637 (D.C. Cir. 1999). We think the better metaphor is a road. But this trip is not for the easily carsick. The Civil Service Reform Act (“CSRA”) gives federal employees numerous job protections. One is the right to challenge certain “serious personnel actions.” Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1979 (2017). The employee “may merely allege that the agency had insufficient cause for taking the action under the CSRA.” Kloeckner v. Solis, 568 U.S. 41, 44 (2012). The employee “may also or instead charge the agency with discrimination prohibited by another federal statute.” Ibid. This second type of charge is called a “mixed case.” Ibid. (citing 29 C.F.R. § 1614.302). Under the CSRA, employees face a series of mutually exclusive paths to bring a “mixed case.” Option 1 is an appeal to the Merit Systems Protection Board (“MSPB”). The MSPB is “an independent adjudicator of federal employment disputes” that hears appeals from “particularly serious” actions, such as terminations of employment. Ibid. After the MSPB decides a mixed case, the road forks again. The employee has three options for further review. First (Option 1.A), she can appeal to the Federal Circuit—but only if she waives her discrimination claims and limits her appeal to CSRA claims. 5 U.S.C. § 7703(b)(1). If she chooses Option 1.A, she must file her appeal within 60 days of the MSPB’s decision. Id. § 7703(b)(1)(A). Second (Option 1.B), the employee can instead keep pursuing her mixed case. But the road for review forks once again. The employee can immediately file suit in the appropriate federal district court (Option 1.B.i). Id. § 7703(b)(2). Or the employee can take a further administrative appeal to the EEOC (Option 2 Case: 18-40580 Document: ...
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