(petition for certiorari filed Nov. 9, 1992). In the Woods case, plaintiff alleged that her employer had terminated her employment on the basis of race and gender; she originally filed an EEOC complaint and soon thereafter commenced an action in the Western District of New York alleging violations of Section 301 of the Labor Management Relations Act. After the court granted summary judgment in defendant's favor and the EEOC issued a right-to-sue letter, plaintiff filed a second action, also in the Western District, this time based on Title VII. Id. at 38. Relying on Supreme Court case law, the Second Circuit stated:
"[A] judgment upon the merits in one suit is res judicata in another where the parties and subject-matter are the same, not only as it respects matters actually presented to sustain or defeat the right asserted, but also as respects any other available matter which might have been presented to that end.
Id. at 38 (quoting Grubb v. Public Utils. Comm'n of Ohio, 281 U.S. 470, 74 L. Ed. 972, 50 S. Ct. 374 (1930). The Woods court went on to explain that the
identity of facts surrounding the occurrence constitutes the cause of action, not the legal theory upon which (plaintiff, chose to frame her complaint.
Id. at 39 (emphasis added). The court therefore held that plaintiff's Title VII action was barred by res judicata. Id. at 40-41; see also Saud v. Bank of New York, 929 F.2d 916, 919 (2d Cir. 1991) ("'It is the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory upon which a litigant relies.'") (quoting Expert Elec., Inc. v. Levine, 554 F.2d 1227, 1234 (2d Cir.), cert. denied, 434 U.S. 903, 54 L. Ed. 2d 190, 98 S. Ct. 300 (1977))
Plaintiff's current action asserts ADEA violations -- presumably as an appeal of the EEOC determination that no age discrimination took place -- whereas his action in the Federal Circuit sought review of the MSPB rulings regarding overtime pay and remuneration for legal fees. Nevertheless, as in Woods, the transaction underlying Long's two actions is identical -- both suits stem out of the same 1982 conduct by the Postal Service that was reviewed by the EEOC. In addition, plaintiff now seeks the same relief as he has been seeking throughout this litigation's protracted history. What distinguishes this case from Woods, however, is the fact that Long could not have presented to the Federal Circuit the discrimination claims upon which he now seeks to recover; for this reason, this court may consider his claims for relief that arise as a direct result of age discrimination violations -- specifically, here, Long's claim for overtime back pay.
The Federal Circuit has exclusive jurisdiction to hear appeals of from final orders of the MSPB in federal personnel matters. See 28 U.S.C. § 1295(a)(9); 5 U.S.C. § 7703(a)(1) ("any employee . . . adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision"); 5 U.S.C. § 7703(b)(1) ("a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit"). But this jurisdiction does not extend to claims of discrimination under the Civil Rights Act, Age Discrimination in Employment Act, or Fair Labor Standards Act; judicial review in that type of case is available only in the appropriate district court. 5 U.S.C. §§ 7702 and 7703(b)(2).
The interrelationship between Federal Circuit and district court jurisdiction over MSPB appeals is not always clear. For example, the Federal Circuit has held that where an employee alleges both discrimination and non-discrimination claims -- in what is known as a "mixed case" -- bifurcation is not appropriate and the entire action must be brought in the district court. Williams v. Department of Army, 715 F.2d 1485, 1491 (Fed. Cir. 1983) (en banc). The Fourth Circuit has explained other such "twists on the entangling vine" as follows:
Though it is a court of sharply limited subject-matter jurisdiction, the Federal Circuit has assumed jurisdiction over what it terms "procedural" or "threshold" issues. These have included waivers of filing deadlines, Ballentine v. MSPB, 738 F.2d 1244 (Fed. Cir. 1984), whether the MSPB itself had jurisdiction, id., and whether the MSPB appropriately dismissed a request for attorney's fees. Hopkins v. MSPB, 725 F.2d 1368 (Fed. Cir. 1984). In addition, and perhaps most problematically, the Federal Circuit has assumed jurisdiction where it determines that a facially "mixed" complaint does not actually state a cognizable discrimination claim. Hill v. Dep't of Air Force, 796 F.2d 1469 (Fed. Cir. 1986).
Afifi v. United States Dept. of Interior, 924 F.2d 61, 63 (4th Cir. 1991); see also Wallace v. Merit Systems Protection Bd., 728 F.2d 1456, 1458-59 (Fed. Cir. 1984) (finding jurisdiction over timeliness of plaintiff's discrimination petition). Finally, in Kean v. Stone, 926 F.2d 276, 287 (3d Cir. 1991), the Third Circuit found that a plaintiff who had prevailed on a handicap discrimination claim nevertheless belonged in district court on the issues of attorney fees since "the standards that inform civil rights fee awards grow out of the dynamics of civil rights law enforcement" and therefore are "part and parcel of the claim on the merits."
In this case, the Federal Circuit appeal addressed orders of the MSPB going to awards of overtime pay and remuneration for legal fees; the opinion of that court never discussed the legal basis for plaintiff's claims. Clearly, this court does not have power to review the jurisdiction already exercised by the Federal Circuit. Nevertheless, this court must decide the preclusive effect of the Federal Circuit's prior exercise of jurisdiction on a subsequent discrimination complaint.
Several district court cases are instructive. See, e.g., Collier v. United States, 720 F. Supp. 75, 78 (W.D. La. 1989) (holding final decision of Federal Circuit reviewing MSPB decision to preclude subsequent action in district court), aff'd without opinion, 896 F.2d 550 (5th Cir. 1990); Smith v. Horner, 635 F. Supp. 323, 326 (D.D.C. 1986) ("The Federal Circuit declined to dismiss the appeal before it, and this Court will not undertake to define the proper limits of the Federal Circuit's jurisdiction. Therefore, whether or not a bifurcated review is the correct procedure in this case, this Court will not deny plaintiff his opportunity to pursue the merits of his reprisal claim."); Miller v. Department of Air Force, 654 F. Supp. 186, 187 (D. Mass. 1985) (refusing to give res judicata effect to Federal Circuit decision because that court would not have had jurisdiction over plaintiff's discrimination claim had he raised it there).
This court finds that plaintiff's decision to proceed via the Federal Circuit does not preclude him from bringing suit for overtime back pay based on age discrimination claims since those questions were not and could not be considered by the Federal Circuit. The prior decision did not address the merits of plaintiff's claim for overtime back pay under Title VII but only discussed whether the MSPB correctly determined that his claim was not timely; notably, while the same standards for assessing recovery govern actions asserting violations of Title VII and the ADEA, see Nobler v. Beth Israel, 715 F. Supp. 570, 571 (S.D.N.Y. 1989) (citing authorities), these two statutes have different limitations provisions. Moreover, the ADEA clearly provides for the relief plaintiff seeks herein. 29 U.S.C. § 626(b) ("In any action brought to enforce [the ADEA] the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum. wages or unpaid overtime compensation under this section.") (emphasis added). Finally, plaintiff has asserted his age discrimination claims in a timely fashion. The federal catch-all six-year statute of limitations governs federal employees' ADEA claims. See, e.g., Medwid v. Baker, 752 F. Supp. 125, 135 (S.D.N.Y. 1990). Thus, plaintiff had six years from August of 1982 -- the date his cause of action accrued -- in which to file a civil action under the ADEA. However, since he chose to seek redress from the EEOC, this limitations period was tolled during the administrative proceedings -- which ended in December of 1986. In sum, since the issue of Long's entitlement to relief under the ADEA was not raised before the Federal Circuit and, more importantly for res judicata principles, that court did not have jurisdiction to inquire into that claim, plaintiff's action seeking overtime back pay is not barred by res judicata or collateral estoppel.
In contrast, this court finds that preclusion principles clearly bar plaintiff's request for direct payment of attorney fees. As mentioned above, on June 12, 1987, the MSPB awarded $ 6525 in fees pursuant to the Civil Service Reform Act, 5 U.S.C. § 7701(g)(1). (Dudek Decl. Exh. K) Long does not dispute the amount of fees awarded or claim that his entitlement arises directly out of antidiscrimination statutes; rather, he asserts only that his attorney Mr. Kaplan failed to reimburse him for fees he had already paid during the administrative proceedings. Long presented this identical claim to the Federal Circuit,
which correctly cited Jensen v. Department of Transportation, 858 F.2d 721, 724 (Fed. Cir. 1988), for the proposition that payment of such an award should go directly to counsel rather than to the client. Res judicata therefore bars this court from considering Long's claim for fees.
Clearly, he should bring any claim for reimbursement directly against Mr. Kaplan.
Defendant's motion for summary judgment on plaintiff's claim for direct payment of attorney fees is hereby granted on the basis of the doctrine of res judicata. However, defendant's motion for summary judgment on the claim for overtime back pay under the ADEA is denied for the reasons stated above.
Dated: Brooklyn, New York
December 23, 1992
I. LEO GLASSER, U.S.D.J.