Appealed from: Merit Systems Protection Board
Before Nies, Chief Judge, Smith, Senior Circuit Judge, and Michel, Circuit Judge.
SMITH, Senior Circuit Judge.
Charles R. Connor appeals the 23 October 1992 order of the Merit Systems Protection Board (Board)*fn1 dismissing his appeal as untimely filed. We vacate the order and remand the case to the Board with instructions to dismiss Connor's appeal for lack of jurisdiction.
The dispositive issue here, rather than timeliness of the appeal to the Board, is whether the Board had subject matter jurisdiction over Connor's appeal regarding his removal, where prior to filing such appeal to the Board, Connor had amended a complaint in United States district court to include a cause of action challenging his removal based on the same discrimination allegations.
The United States Postal Service (Agency) removed Connor from his position as Superintendent, Station Operations, Farmers Branch Station, Dallas, Texas, due to his inability to perform the functions of his job, effective 31 July 1987. The Agency notified Connor by letter of decision dated 15 July 1987 that he had two alternate routes of appeal: either (1) to the Board, or (2) through the Agency's internal appeal procedures. See 5 U.S.C. § 7702(a)(1), (2) (1988); 5 C.F.R. § 1201.154(a) (1993).*fn2
Connor followed the latter procedure of filing an appeal through the Agency's internal procedures in July 1987. With regard to his removal, Connor in addition filed a formal complaint of discrimination with the Postal Service Equal Employment Opportunity Office (EEO complaint) on 26 October 1987.
While his EEO complaint was still pending with the Agency, Connor on 16 February 1988, amended a complaint, which he previously had filed in the United States District Court for the Northern District of Texas,*fn3 to include a count based on the removal. On 16 June 1988, Agency counsel notified the EEO complaint processing office of Connor's district court action. On 23 June 1988, the Agency issued a written final decision, notifying Connor that the processing of his EEO complaint had been terminated, pursuant to 29 C.F.R. §§ 1613.283,*fn4 .513*fn5 (1988), because of the filing of the amended complaint (and therefore the pendency of a district court action). He appealed this decision to the Equal Employment Opportunity Commission (EEOC). Thereafter, the EEOC decision issued on 19 September 1988, affirming the Agency's action, and stating that "the correct ground for complaint cancellation in such a situation is that the EEO complaint is the basis of a pending civil action in a United States District Court. 29 C.F.R. § 1613.215(a)(3); 52 Fed. Reg. 41923 (October 30, 1987)."
Connor on 19 August 1988, over six months after amending his complaint in District Court, filed an appeal with the Board challenging his removal. In that first appeal the administrative Judge dismissed Connor's appeal for lack of jurisdiction in an initial decision of 16 December 1988. She reasoned that Connor's "right to appeal the removal action to the Board [was] extinguished by his raising the issue in the previously filed civil action." The administrative Judge also relied on 29 C.F.R. § 1613.283 (1988).
A full panel of the Board reversed and remanded the case to the administrative Judge. Connor v. United States Postal Serv., 52 M.S.P.R. 588 (1992) ("Connor I"). The full panel, citing McGovern v. EEOC, 28 M.S.P.R. 689, 691 n.1 (1985), erroneously reasoned that the Board was not precluded from adjudicating the removal action despite the pendency of a civil action involving the removal before the United States district court. The panel instructed the administrative Judge to address, on remand, timeliness of the appeal.
On remand, in an initial decision of 17 June 1992, the administrative Judge (AJ) dismissed Connor's appeal as untimely filed. First, the AJ set out the ...