JAMES D. HARMAN, APPELLANT V. ELIZABETH DOLE, SECRETARY OF LABOR, ET AL. No. 88-1011 In The Supreme Court Of The United States October Term, 1988 On Appeal From The United States Court Of Appeals For The Third Circuit Motion To Dismiss TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Argument Conclusion Appendix OPINIONS BELOW The opinion of the Presiding Official of the Merit Systems Protection Board (App., infra, 1a-29a) is unreported. The opinion of the Merit Systems Protection Board is reported at 27 M.S.P.R. 293, 303 (1985). The decision of the Equal Employment Opportunity Commission (App., infra, 30a-35a) is unreported. The opinion of the district court (J.S. App. E2-E15) is unreported. The summary affirmance of the district court's judgment by the court of appeals (J.S. App. E16-E17) is unreported. JURISDICTION The judgment of the court of appeals was entered on September 20, 1988. The jurisdictional statement was filed on November 17, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1252. QUESTIONS PRESENTED 1. Whether appellant stated a claim under the Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et seq., in alleging that he was terminated from employment because he was farsighted. 2. Whether the district court lacked jurisdiction to entertain appellant's challenge to the Merit Systems Protection Board's affirmance of his termination based on unacceptable performance. 3. Whether appellant's constitutional attack on the termination of his employment is barred under Bush v. Lucas, 462 U.S. 367 (1983). STATEMENT Appellant contends that the courts below improperly dismissed his claim of discriminatory removal from federal service in violation of the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq., and the Constitution. He also contends that the courts below erred in concluding that the district court lacked jurisdiction to review the Merit Systems Protection Board's decision insofar as it affirmed his removal on grounds of unacceptable performance. 1. Appellant formerly worked as a coal mine safety and health inspector with the Mine Safety and Health Administration of the United States Department of Labor (App., infra, 1a). In 1984, the Department terminated appellant's employment for unacceptable performance (ibid.). The Department based its action on appellant's failure to issue citations at mines that had improperly stored explosives, that had no escapeway, and that had various mechanical deficiencies, and on appellant's errors or omissions in 4 of the 21 citations issued by him (id. at 9a). Appellant appealed the Department's decision to the Merit Systems Protection Board (MSPB or Board), alleging, inter alia, that the Department's action was the result of discrimination on the basis of physical handicap (id. at 16a-17a). Specifically, he maintained that the Department had failed to "accommodate his poor eyesight" (id. at 17a). On July 10, 1984, an MSPB presiding official (PO) /1/ found that appellant's termination was supported by substantial evidence and that his claim of discrimination was meritless (App., infra, 13a, 17a). The PO acknowledged that appellant's vision tests revealed that he was farsighted, but pointed out that the Department had consequently issued him safety glasses (id. at 17a). The PO concluded that "(n)eeding a pair of reading glasses does not render this appellant a qualified handicapped person because there was no evidence proffered that the appellant's impaired eyesight had substantially limited one of his major life activities" (ibid.). Moreover, even assuming appellant's impaired vision qualified him as a handicapped person within the meaning of the Rehabilitation Act, the PO found that the Department had reasonably accommodated any impairment by providing him with glasses and that upon receipt of the glasses, his eyesight problem "could no longer be said to impair his ability to engage in a major life function." Ibid. The MSPB affirmed, sub nom. Donaldson v. Department of Labor, 27 M.S.P.R. 293, 303 (1985). 2. Appellant then sought review by the Equal Employment Opportunity Commission (EEOC) of the MSPB's final opinion and order on the issue of handicap discrimination (see 5 U.S.C. 7702(b)(1)). The EEOC agreed that there was no discrimination in appellant's removal (App., infra, 23a). First, the EEOC concluded that appellant had failed to show he was handicapped by being farsighted, as no "major life activities (are) substantially limited" by that condition. Ibid. It added that "(a)t most, (appellant's) eye examination indicated he probably needed a correction for close work, such as reading," and that "(t)his condition was easily corrected by glasses," which the Department had provided to appellant. Ibid. Even assuming that appellant's condition was a handicap, the EEOC observed that since the Department had issued appellant a pair of prescription safety glasses within 10 days of the date when he was placed on a 90-day performance improvement plan, "(i)tis clear that any deficiencies that may have existed in (appellant's) performance were not due to difficulties in reading" (ibid.). 3. Appellant then brought this action in the United States District Court for the Middle District of Pennsylvania. /2/ The complaint contained 13 counts, all arising out of his allegedly improper termination (J.S. App. E5). /3/ After allowing appellant to amend his complaint twice, the district court dismissed his action (id. at E2-E15). The court concluded that appellant had failed to state a claim under the Rehabilitation Act and that, in the absence of a claim of prohibited discrimination, the district court had no jurisdiction to review the merits of the MSPB's decision that petitioner had been terminated for unacceptable performance. The court first determined that appellant's farsightedness "is not the type of handicap that that act was designed to ameliorate" (J.S. App. E8 (citing Forrisi v. Bowen, 794 F.2d 931, 933-934 (4th Cir. (1986)). Accordingly, appellant had not alleged a discriminatory basis for his termination. As to appellant's remaining challenges to the MSPB's ruling, the court held that he "may only seek review of final orders or decisions of the (MSPB) that relate to (the merits of his discharge) in the United States Court of Appeals for the Federal Circuit" (J.S. App. E10-E11). Finally, the court concluded (id. at E11-E15) that none of the other statutory or regulatory provisions relied upon by appellant provided him a cause of action against respondents in federal district court. /4/ The Third Circuit affirmed in an unpublished order (id. at E16-E17). ARGUMENT The court of appeals' decision is correct and does not conflict with any decision of this Court or of any other court of appeals. Review by this Court is therefore not warranted. Moreover, this case does not fall with this Court's appellate jurisdiction under former 28 U.S.C. 1252, and the appeal should thus be dismissed. /5/ Treating the jurisdictional statement as a petition for a writ of certiorari, see 28 U.S.C. 2103, the petition should be denied. 1. Appellant's principal contention (J.S. 14) is that the courts below erred in holding that he had failed to allege a discriminatory basis for his removal. This contention is without merit. As the district court recognized (J.S. App. E7-E8), the plain language of the Rehabilitation Act refutes appellant's claim that he is "handicapped" because of his farsightedness. The Act defines "individual with handicaps" to mean a person with "a physical or mental impairment which substantially limits one or more of such person's major life activities." 29 U.S.C. 706(8)(B)(i) (Supp. IV 1986) (emphasis added). "The burden is on the plaintiff to establish the existence of an impairment that substantially limits a major life activity as an element of the plaintiffs' prima facie case." Jasany v. United States Postal Service, 755 F.2d 1244, 1249 (6th Cir. 1985). As a matter of common sense, farsightedness that can be wholly corrected with glasses cannot be considered a substantial limitation of a major life activity. See Jasany, 755 F.2d at 1249 (rejecting claim that a postal worker with crossed eyes established a prima facie case of handicap discrimination); cf. Padilla v. City of Topeka, 238 Kan. 218, 708 P.2d 539 (1985) (rejecting claim that a police force applicant whose glasses made his vision 20/20 was a "handicapped person" for purposes of 29 U.S.C. 794). This result is fully consistent with the purposes of the Rehabilitation Act, which "assures that truly disabled, but genuinely capable, individuals will not face discrimination in employment because of stereotypes about the insurmountability of their handicaps." Forrisi v. Bowen, 794 F.2d at 934 (emphasis added); E.E. Black Ltd. v. Marshall, 497 F. Supp. 1088, 1099-1100 (D. Haw. 1980). /6/ 2. Appellant also challenges the holding below (J.S. App. E10-E11) that he failed to establish a jurisdictional basis for district court review of the merits of the MSPB's decision affirming his discharge for unacceptable performance. Appellant's argument on this point has no legal support. The Federal Circuit has exclusive jurisdiction of an appeal from a final order or decision of the MSPB in an adverse action case (see 5 U.S.C. 7703(b)(1)). It has been held that in a so-called "mixed" case -- an appealable adverse action in which appellant makes a colorable claim of prohibited discrimination as one basis for the action -- a federal district court may review all aspects of the MSPB decision. See Williams v. Department of Army, 715 F.2d 1485, 1487-1491 (Fed. Cir. 1983) (en banc). But frivolous allegations of discrimination cannot defeat the Federal Circuit's exclusive jurisdiction of MSPB appeals. See Hill v. Department of the Air Force, 796 F.2d 1469, 1471 (Fed. Cir. 1986). If any allegation of discrimination were enough to obtain a plenary hearing in district court, federal employees could easily circumvent the Federal Circuit's exclusive jurisdiction and obtain district court review simply by adding frivolous claims of discrimination to their complaints. That would place an unwarranted burden on the district courts and disrupt Congress's scheme for judicial review of federal employment decisions. Because appellant failed to make even a threshold showing of unlawful discrimination, the court below properly affirmed the district court's decision that it lacked jurisdiction to review the merits of the adverse action appeal. /7/ 3. Finally, there is no merit to appellant's constitutional claims. As this Court explained in Bush v. Lucas, 462 U.S. 367, 385 (1983), "(f)ederal civil servants are now protected by an elaborate, comprehensive scheme that encompasses substantive provisions forbidding arbitrary action by supervisors and procedures -- administrative and judicial -- by which improper action may be redressed." Because "(c)onstitutional challenges to agency action, such as (those raised by appellant), are fully cognizable within this system" (id. at 386), this Court has concluded that it would be inappropriate to supplement that regulatory scheme with a new judicial remedy founded directly on the United States Constitution. Since appellant's claims are fully comprehended by the review procedure culminating in the decision of the MSPB, he cannot rely on the Constitution as a basis for bringing a new district case arising out of the same events. CONCLUSION The appeal should be dismissed; treating the jurisdictional statement as a petition for a writ of certiorari, the petition should be denied. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General JERRY G. THORN Acting Solicitor Department of Labor MARCH 1989 /1/ The PO is an official authorized by the Board to preside over hearings and issue initial decisions. See 5 C.F.R. 1201.4(a), 1201.41, 1201.111. The PO's initial decision becomes the final decision of the Board after 35 days unless a party petitions the Board for review or the Board sua sponte reopens the case. 5 C.F.R. 1201.113. /2/ Pursuant to 29 U.S.C. 794a(a)(1), a person complaining of discrimination by a federal agency in violation of Section 501 of the Rehabilitation Act, 29 U.S.C. 791, is accorded the remedies, procedures, and rights set forth in Section 717 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16, including trial de novo in federal district court and, in the district court's discretion, court-appointed counsel. See 42 U.S.C. 2000e-16(c), cross-referencing 42 U.S.C. 2000e-5. /3/ The complaint named as defendants Ann McLaughlin (then-Acting Secretary of Labor), James Schoffstall (petitioner's immediate supervisor), and John B. Shutack (another officer or employee of the Mine Safety and Health Administration). /4/ Appellant had relied, inter alia, on purported causes of action arising under 5 U.S.C. 7203 (authorizing the promulgation of rules prohibiting discrimination because of a handicapping condition), 5 U.S.C. 4301 (defining terms with respect to performance appraisal), 18 U.S.C. 241 (conspiracy to violate civil rights), 18 U.S.C. 1001 (false statements), and 18 U.S.C. 1621 (perjury). The district court found that these statutes, as well as others cited in the complaint, did not give rise to private causes of action for appellant. /5/ Appellant has not properly invoked this Court's jurisdiction under 28 U.S.C. 1252 (repealed by the Act of June 27, 1988, Pub. L. No. 100-352, Section 1, 102 Stat. 662, effective September 25, 1988), since the judgment below did not hold unconstitutional any Act of Congress. /6/ If appellant were "handicapped" by virtue of his poor eyesight, he would still have to show as an element of his prima facie case that the adverse action of which he complains occurred "under circumstances which gave rise to the inference that (the action) was based solely on his handicap." Jasany 755 F.2d at 1250 n.5. In this case, however, the Department fully accommodated appellant's condition by providing him with prescription safety glasses that corrected his farsightedness. See App., infra, 25a. Even after he received corrective safety glasses, appellant failed to perform satisfactorily. Ibid. Under these circumstances, it is plain that appellant's unsatisfactory performance, not any eyesight problem, formed the basis for his termination from employment. /7/ Nor is there any obligation by the district court to transfer the case to the Federal Circuit. As the court explained in Williams, "(t)he district courts have ample authority to dismiss cases based on frivolous or sham discrimination claims," and they "need not transfer even legitimate merits issues where a litigant has made abusive use of the judicial system." 715 F.2d at 1491. Otherwise, the mixed-case rule would "enable litigants to forum shop between district courts and this court by merely alleging discrimination." Ibid. APPENDIX