Reported / Citable
Background
Arturo S. Lopez Sr. challenged the Air Force’s removal of him for allegedly falsifying an onboarding document. He had appealed to the Merit Systems Protection Board, arguing both harmful procedural error and retaliation for protected EEO and whistleblowing-related activity. The MSPB upheld his removal. Lopez initially sought review in the Federal Circuit, which transferred the matter to district court because it was a mixed case involving discrimination allegations.
After transfer, Lopez also alleged that a five-day January 2017 suspension was retaliatory, sought to hold three Air Force employees individually liable under Title VII, and asserted due-process claims based on the employment actions. Defendants moved to dismiss or, alternatively, for summary judgment.
The Court’s Holding
Magistrate Judge Matthew H. Watters recommended granting the Rule 12(b)(6) motion to dismiss. The recommendation concluded that Lopez’s mixed-case appeal from the MSPB was untimely: the MSPB’s final decision was received May 3, 2024, but Lopez did not file in the Federal Circuit until June 27, after the applicable 30-day deadline.
The magistrate judge also concluded that Lopez’s challenge to the 2017 suspension was an untimely appeal of an EEOC administrative judge’s decision. The recommendation further found that Title VII does not permit individual liability against the named employees and that no Bivens remedy was available for Lopez’s due-process allegations because Title VII and the Civil Service Reform Act provide alternative remedial structures. It also recommended denying Lopez’s jury-trial request.
Key Takeaways
- A mixed-case MSPB appeal alleging discrimination must be filed within 30 days of receiving the final MSPB decision.
- Federal employees cannot pursue Title VII retaliation claims against individual coworkers or supervisors.
- Title VII and the CSRA foreclose a new Bivens damages remedy for alleged constitutional harms arising from federal employment actions.
Why It Matters
This is a report and recommendation, not a final district-court ruling. Unless timely objections lead the district judge to a different result, the recommendation would end Lopez’s challenge without reaching the merits of his retaliation allegations.
The recommendation underscores the strict administrative and judicial filing deadlines governing federal-sector employment disputes, as well as the limited availability of personal-capacity constitutional claims in that setting.