Clarence J. Cansler, Plaintiff-appellant, v. Tennessee Valley Authority, et al., Defendants-appellees, 774 F.2d 432 (11th Cir. 1985)

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US Court of Appeals for the Eleventh Circuit - 774 F.2d 432 (11th Cir. 1985) Oct. 18, 1985

James R. Foley, Huntsville, Ala., for plaintiff-appellant.

Herbert S. Sanger, Jr., Gen. Counsel, Tennessee Valley Authority, Justin M. Schwamm, Jr., Thomas F. Fine, Ronald E. Klipsch, Knoxville, Tenn., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before RONEY and ANDERSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

PER CURIAM:


The sole issue on this appeal is whether suit must be brought in federal court on an employee discrimination claim within 30 days of the date the decision by the Merit Systems Protection Board denying an administrative claim is received by the employee, or within 30 days of the date that the Board's decision becomes final. This Circuit has not previously decided the point.

Based on the reasons set forth in the Sixth Circuit case of Ballard v. Tennessee Valley Authority, 768 F.2d 756, 764 (6th Cir. 1985), we hold that the 30-day period to appeal to federal district court from a Merit Systems Protection Board decision in a mixed case, one that includes a racial discrimination claim, runs from the date the decision of the Board becomes final. It is not necessary here to repeat the analysis made in that opinion, which we fully endorse.

This holding requires reversal of the district court's dismissal of Clarence J. Cansler's claim against his employer, the Tennessee Valley Authority. Without burdening this opinion with an unnecessary recitation of facts, Cansler's federal suit was filed within 30 days of the date that the Board's decision stated it would become final.

The district court did not have available to it the Ballard decision, which is the only Court of Appeals decision addressing this precise issue, issued just a month before oral argument in this case. The basis of the Ballard decision was not argued by plaintiff's counsel either in the district court or on appeal. General counsel for the appellee called the case to our attention, however, and counsel at oral argument and in a supplemental brief, with appropriate candor, concedes this decision is contrary to the decision in the district court, but argues that it should not be followed because it is incorrect and because it goes off on an issue never presented by the plaintiff in this case. Holding that the case was correctly decided, however, it is appropriate that this case be reversed for the reasons therein stated.

REVERSED.