Zonnytta Bolton v. Carolyn Colvin , 674 F. App'x 282 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1907
ZONNYTTA BOLTON,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security;
OFFICE OF PERSONNEL MANAGEMENT,
Defendants - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Loretta C. Biggs,
District Judge. (1:14-cv-00151-LCB-LPA)
Argued: December 6, 2016 Decided: January 5, 2017
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
ARGUED: Phillip R. Kete, Chesapeake Beach, Maryland, for
Appellant. Sydney Foster, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees. ON BRIEF: Norman B. Smith,
SMITH, JAMES, ROWLETT & COHEN, LLP, Greensboro, North Carolina,
for Appellant. Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Marleigh D. Dover, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Ripley Rand,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
After being demoted from her paralegal specialist
position with the Social Security Administration (“SSA”),
Zonnytta Bolton appealed to the Merit Systems Protection Board
(“MSPB”), contending that her demotion resulted from
discrimination and improper personnel procedures. After Bolton
provided notice that resolution of her claim involved
interpretation of regulations promulgated by the Office of
Personnel Management (“OPM”), the MSPB sua sponte bifurcated her
appeal into an individual challenge to her demotion and a claim
seeking review of those OPM regulations. Because of this
bifurcation, which Bolton did not request and consistently
questioned, the MSPB decided her claim regarding the applicable
regulations first, and Bolton appealed that decision to the
Court of Appeals for the Federal Circuit.
After exhausting MSPB remedies with regard to the
individual demotion claim, Bolton then sought review of that
claim in the Middle District of North Carolina, raising two
discrimination claims and six non-discrimination claims. The
district court concluded that when Bolton filed her appeal with
the Federal Circuit, she waived district court review of her
discrimination claims. Therefore, it dismissed her entire case
for lack of subject matter jurisdiction. For the reasons that
3
follow, we affirm in part, reverse in part, and remand for
further proceedings.
I.
On October 24, 2011, Bolton, a hearing-impaired
employee with the SSA, was demoted from a GS-12 paralegal
specialist position to a GS-8 senior case technician position.
She filed an administrative appeal with the MSPB, claiming that
her demotion violated 5 U.S.C. § 4303 (providing rights and
safeguards to which a government employee is entitled before
demotion); 5 C.F.R. § 432.104 (providing criteria necessary to
demote an employee); and the Rehabilitation Act of 1973, 29
U.S.C. § 791 (prohibiting disability discrimination by programs
receiving federal financial assistance). She also argued that
her demotion involved an improper personnel procedure, that is,
the SSA did not have an OPM-approved performance appraisal
system as required by 5 C.F.R. § 432.104.
A few months later, Bolton filed a “motion for notice
to the O[PM],” explaining “the interpretation of an OPM
regulation [wa]s at issue” in her case. J.A. 58 (capitalization
omitted); 1 see also 5 U.S.C. § 7701(d)(2) (“The [MSPB] shall
promptly notify the Director [of the OPM] whenever the
1
Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
4
interpretation of any civil service law, rule, or regulation
under the jurisdiction of the O[PM] is at issue in any
proceeding under this section.”). Thereafter, the MSPB did not
rule on the motion, but rather, bifurcated Bolton’s case into
one claim based on discrimination and improper personnel
procedures, see Bolton v. Soc. Sec. Admin., No. DC-0432-12-0121-
I-1 (the “individual case”), and one claim seeking review of OPM
regulations, see Bolton v. Office of Pers. Mgmt., No. CB-1205-
12-0011-U-1 (the “regulation-review case”). Bolton had not
requested bifurcation; the MSPB simply bifurcated of its own
accord, relying solely on Bolton’s motion for notice. The cases
then progressed on two different tracks, despite the fact that
Bolton filed a statement with the MSPB in March of 2012 stating,
“The record should be clear that Ms. Bolton did not file a . . .
request for [regulation] review . . .” J.A. 144.
On June 5, 2012, a single administrative law judge
for the MSPB (the “ALJ”) issued its initial decision in the
individual case. The ALJ upheld the SSA’s decision to demote
Bolton, concluding: the SSA’s performance appraisal system was
properly approved by OPM; it remained an “approved” system at
the time Bolton was demoted; and the SSA’s performance standards
were valid, permitted [an] accurate evaluation of Bolton’s job
performance, and were adequately communicated to her. J.A. 77-
84. As for Bolton’s allegations of disability discrimination,
5
the ALJ found that Bolton did not present sufficient evidence of
harassment, retaliation, failure to accommodate, or
discrimination based on disparate treatment. Finally, the ALJ
found that the SSA did not violate Bolton’s due process rights
in ordering her demotion. Bolton filed a petition for review of
this decision with the full three-judge MSPB.
Three days later, on June 8, 2012, Bolton filed a
statement in the regulation-review case, arguing generally that
OPM’s regulations “result in the commission of prohibited
personnel practices,” and suggesting that the problem may be
“government-wide” rather than limited to the SSA. J.A. 146
(capitalization omitted). Then, while the petition for review
in the individual case was pending, the MSPB issued a final
decision in the regulation-review case on April 2, 2013,
declining to review Bolton’s claim in part because it “ha[d]
been reached . . . in her individual [MSPB] appeal.” J.A. 190.
On June 4, 2013, Bolton filed an appeal of the MSPB’s
regulation-review decision with the Federal Circuit. See ECF
No. 1, Bolton v. Office of Pers. Mgmt., No. 13-3123 (Fed. Cir.
June 4, 2013); see also J.A. 199. The sole issue in that appeal
was whether the Federal Circuit should “set aside [the] MSPB
decision to not review certain OPM regulations,” because the
MSPB failed to “explain why th[ose] regulations should not be
reviewed.” J.A. 224, 231.
6
On July 25, 2013, Bolton filed a motion to stay in the
Federal Circuit pending a final decision from the MSPB in her
individual case. She explained, “The peculiar history of the
case . . . makes it unlikely, albeit not impossible, that a
decision by this court will be necessary, because any judicial
review Ms. Bolton seeks will be provided by an appropriate
federal district court.” J.A. 203. OPM opposed the motion and
filed a motion to dismiss for lack of jurisdiction because the
MSPB did not decide the regulation-review case on its merits.
The Federal Circuit denied the stay and motion to dismiss
without explanation. Then, on January 24, 2014, the full MSPB
denied Bolton’s petition for review in the individual case.
With her regulation-review appeal still pending in the
Federal Circuit, on February 21, 2014, Bolton filed the instant
action against OPM and the Acting Commissioner of the SSA
(collectively, “Appellees”) in the Middle District of North
Carolina. The operative complaint, amended on August 15, 2014,
contains the following eight claims:
• discriminatory demotion (Count One);
• failure to accommodate Bolton’s hearing
disability (Count Two);
• failure to establish, communicate, and
use statutory performance standards in
demoting Bolton (Count Three);
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• improper demotion of Bolton without
certain statutory and regulatory
preconditions (Count Four);
• improper use of statute for demoting
Bolton without OPM review for
compliance (Count Five);
• due process violations (Counts Six and
Seven); and
• administrative challenge to OPM’s
approval of 50 agencies’ performance
appraisal systems, and OPM’s
promulgation of requirements for such
approval (Count Eight).
On April 1, 2014, Bolton filed a request to voluntarily dismiss
her regulation-review appeal, which the Federal Circuit granted
the following day.
In the district court, Appellees filed a motion to
dismiss, arguing, inter alia, that Bolton waived her
discrimination claims, depriving the district court of
jurisdiction. The motion was referred to a magistrate judge,
who recommended the motion be granted. The district court
dismissed the amended complaint on July 7, 2015, adopting the
magistrate judge’s explanation that “absent any authority to the
contrary, this Court cannot ignore [Bolton]’s waiver of her
discrimination claims at the Federal Circuit and give her
another opportunity to litigate them when the Fourth Circuit has
plainly foreclosed that maneuver.” Bolton v. Colvin, No. 1:14-
cv-151, 2015 WL 2452829, at *5 (M.D.N.C. May 22, 2015) (citing
8
Pueschel v. Peters, 577 F.3d at 563–64 (4th Cir. 2009))
(emphasis supplied), report and recommendation adopted, No.
1:14-cv-151, 2015 WL 4094127 (M.D.N.C. July 7, 2015).
Bolton timely noted this appeal, which challenges the
district court’s dismissal. “In reviewing a district court’s
dismissal of a claim for lack of [subject matter] jurisdiction
. . . , we review the court’s factual findings for clear error
and its legal conclusions de novo.” Al Shimari v. CACI Premier
Tech., Inc., 840 F.3d 147, 154 (4th Cir. 2016).
II.
As a matter of background, under the Civil Service
Reform Act of 1978 (“CSRA”), “a federal employee subjected to
. . . [a] demotion may appeal her agency’s decision to the
M[SPB].” Kloeckner v. Solis, 133 S. Ct. 596, 600 (2012); see
also 5 U.S.C. §§ 7512(3)-(4), 7701(a). In such an appeal, the
employee “may claim, among other things, that the agency
discriminated against her in violation of a federal statute.”
Kloeckner, 133 S. Ct. at 600. If an employee claims she was
demoted via an improper personnel procedure and alleges that the
demotion was based on discrimination, this is called a “mixed
case.” Id. at 601; see also 29 C.F.R. § 1614.302. It is
undisputed that Bolton’s initial filing with the MSPB was a
mixed case appeal.
9
The MSPB is not only the main adjudicatory body for
federal employees subject to a termination, demotion, or other
adverse employment action, see 5 U.S.C. § 1204(a); it also has a
“regulation review” function. For example, pursuant to 5 U.S.C.
§ 1204(a)(4), the MSPB is tasked with “review[ing] . . . rules
and regulations of the O[PM].” The MSPB “shall review any
provision” of an OPM rule or regulation “on [the MSPB’s] own
motion” or “on the granting . . . of any petition for such
review filed with [MSPB] by any interested person.” 5 U.S.C.
§ 1204(f)(1)(A)-(B). The MSPB also has the authority to
determine whether an OPM regulation has been invalidly
implemented by an agency such as the SSA. See id.§ 1204(f)(2)(B).
If an employee is displeased with her adverse
employment action, she can file an appeal to the MSPB, and an
administrative judge will issue an “initial decision.” 5 C.F.R.
§ 1201.111. If the initial decision is adverse to the employee,
she may then petition the full MSPB for review. See 5 U.S.C.
§ 7701(e). If the full MSPB denies the petition for review, the
initial decision becomes the final decision. See 5 C.F.R.
§ 1201.113(b).
“An employee who is dissatisfied with the MSPB’s
decision is entitled to judicial review in the United States
Court of Appeals for the Federal Circuit.” Elgin v. Dep’t of
10
Treasury, 132 S. Ct. 2126, 2130 (2012); see also 5 U.S.C.
§ 7703(b)(1)(A). Generally, the Federal Circuit “has exclusive
jurisdiction over appeals from a final decision of the MSPB.”
Elgin, 132 S. Ct. at 2131 (internal quotation marks omitted).
There is an exception that is relevant here: if the MSPB upholds
the agency’s personnel action in a mixed case, “[t]he employee
may appeal [the] MSPB decision to either the U.S. Court of
Appeals for the Federal Circuit or the appropriate federal
district court.” Pueschel v. Peters, 577 F.3d 558, 563 (4th
Cir. 2009) (emphasis supplied) (citing 5 U.S.C. § 7703); see
also Kloeckner, 133 S. Ct. at 604. But we have held, “If the
employee pursues the mixed case in the Federal Circuit, then she
abandons her discrimination claims because the Federal Circuit
lacks jurisdiction to entertain discrimination claims.”
Pueschel, 577 F.3d at 563.
A.
It is well established that the federal district
courts possess authority to review “mixed case” appeals from
MSPB decisions. See Kloeckner, 133 S. Ct. at 604 (citing 5
U.S.C. §§ 7703(b)(2), 7702(a)(1)); Pueschel, 577 F.3d at 563.
The district court’s conclusion does not deny this proposition;
rather, it rests on Bolton’s waiver of the right to seek such
review.
11
“[W]aiver is the intentional relinquishment or
abandonment of a known right.” Wood v. Crane Co., 764 F.3d 316,
326 n.9 (4th Cir. 2014) (emphasis supplied) (quoting United
States v. Olano, 507 U.S. 725, 733 (1993)); see also Johnson v.
Zerbst, 304 U.S. 458, 464 (1938); Little Beaver Enters. v.
Humphreys Rys., Inc., 719 F.2d 75, 79 (4th Cir. 1983)
(explaining that waiver is effective “if the acts or conduct of
one party evidences an intention to” give up certain rights
(emphasis supplied)).
The district court relied on two distinct actions to
conclude that Bolton waived her right to pursue her
discrimination claims in the district court: (1) the filing of
her appeal in the Federal Circuit, and (2) her representations
made on the Federal Circuit’s “Statement Concerning
Discrimination,” also known as “Form 10.” We disagree that
these actions demonstrated an intentional relinquishment of
Bolton’s right to district court review.
1.
Federal Circuit Appeal
The district court’s decision that Bolton waived
review of her mixed case in district court relied heavily on
this court’s decision in Pueschel v. Peters, 577 F.3d 558 (4th
Cir. 2009). There we held, “If the employee pursues [a] mixed
case in the Federal Circuit, then she abandons her
12
discrimination claims because the Federal Circuit lacks
jurisdiction to entertain discrimination claims.” Id. at 562;
see also Williams v. Dep’t of the Army, 715 F.2d 1485, 1490
(Fed. Cir. 1983). We also stated that a petitioner “cannot
create a superficial distinction between her claims that have
gone before the Federal Circuit and the district courts [when]
they arise out of the same set of facts.” Pueschel, 577 F.3d at
564.
But the case at hand is markedly different than
Pueschel. Deborah Pueschel, the erstwhile employee, was
terminated and denied the opportunity to buy back annual leave
from her employer. She pursued a mixed case with the MSPB.
There, she raised a discrimination defense, but the MSPB
rejected it and upheld the termination. See Pueschel, 577 F.3d
at 563. Then Pueschel, pursuing her non-discrimination claims,
appealed that decision to the Federal Circuit. See id. After a
decision on the merits from the Federal Circuit, Pueschel then
pursued her disability-based discrimination claims in the
Eastern District of Virginia. See id. at 564. Thus, Pueschel
herself “bifurcate[d]” her claims by filing an appeal from her
mixed case in the Federal Circuit and separately pursuing her
discrimination claims in district court. Id. In other words,
Pueschel sought “a second bite at the apple” on her
discrimination claims. Id. (internal quotation marks omitted).
13
Here, in contrast, the MSPB itself bifurcated Bolton’s
claim, and Bolton did not wait for a decision from the Federal
Circuit, but rather, voluntarily dismissed it after she filed
her district court action. Moreover, Bolton made numerous
filings in both the MSPB and Federal Circuit, explaining that
she did not intend for the claims to be separate and that she
wanted to preserve review of her individual case. See, e.g.,
J.A. 144 (March 26, 2012 filing with MSPB: “[Bolton] did not
file a . . . request for [regulation] review, at least not
consciously.”); id. (same: “Bolton has in no way abandoned her
right to have proper litigation of her prohibited personnel
practices claim in her individual case.”); id. at 117 (June 12,
2012 filing with MSPB: requesting an extension of time to file a
petition for review of the individual case “in order to avoid
duplication” with the regulation-review case); id. at 202 (July
15, 2013 filing with Federal Circuit: “Bolton respectfully
requests the court . . . to suspend the [briefing] schedule
. . . at least until the M[SPB] issues a decision in [the
individual case]”); id. at 228 (May 13, 2015 brief filed in
Federal Circuit: “The motion [for notice to OPM] did not assert
that the OPM regulations were invalid.”); id. at 229 (same:
“[T]he merits of [Bolton’s arguments] are in no way before this
court.”).
14
Furthermore, the government agencies involved have
sent mixed signals to Bolton. For example, Appellees admitted
“judicial review would be available in district court to
challenge . . . the [MSPB]’s review of [her] mixed case against
SSA,” despite the fact that she had already filed the Federal
Circuit appeal. J.A. 278 n.7; see also id. at 218. And on
April 2, 2013, 14 months after the MSPB itself docketed the
regulation review case separately, the MSPB then turned around
and said it could not review her claim because the regulation
review issue “ha[d] been reached . . . in her individual [MSPB]
appeal.” Id. at 190. In order to preserve her appeal of that
issue, however, Bolton was required to file an appeal to the
Federal Circuit within 60 days. See 5 U.S.C. § 7703(b)(1)(A)
(“Notwithstanding any other provision of law, any petition for
review shall be filed within 60 days after [MSPB] issues notice
of the final order or decision . . . .”).
In short, Bolton was between a rock and a hard place:
she could file her appeal with the Federal Circuit and risk
losing her discrimination claims (which had not even been
finalized yet), or she could wait until the final decision in
the individual case and potentially lose her opportunity to
appeal the regulation-review issue. And it was the Government
15
who put her in this position. Pueschel simply did not
contemplate this type of situation. 2
Appellees understandably rely on Pueschel’s admonition
that a plaintiff cannot create a “superficial distinction”
between the Federal Circuit and district court claims when they
“arise out of the same facts.” Pueschel, 577 F.3d at 564. But
this case presents no “superficial distinction.” Rather, it is
a distinction created by the administrative body that reviewed
the claims. No case relied on by Appellees possesses this
unique fact. See, e.g., Chappell v. Chao, 388 F.3d 1373, 1375-
76 (11th Cir. 2004) (employee filed a mixed case appeal with the
MSPB; while it was pending, he filed separate discrimination
action in district court based on the same conduct; after that,
he appealed the MSPB decision to the Federal Circuit); McAdams
2
To make matters worse, at oral argument, the Government
stated that Bolton’s two cases were “effectively merged” and
“reconsolidate[d]” before she appealed to the Federal Circuit;
thus, she could have chosen not to appeal the regulation-review
case to the Federal Circuit but still somehow preserve her
review of that case. Oral Argument at 32:15-32:37, 33:20-33:30,
Bolton v. Social Security Admin., No. 15-1907 (Dec. 6, 2016),
available at http://www.ca4.uscourts.gov/oral-argument/listen-
to-oral-arguments. But the Government could not demonstrate
that Bolton received explicit notice of formal reconsolidation.
In any event, the deadline for filing a Federal Circuit appeal
of the regulation-review case expired before the MSPB issued its
final decision in the individual case. Therefore, as previously
noted, if Bolton had waited to appeal the regulation-review
issues in the district court, she risked losing her regulation-
review appeal in the Federal Circuit. See 5 U.S.C.
§ 7703(b)(1)(A).
16
v. Reno, 64 F.3d 1137, 1140 (8th Cir. 1995) (after successfully
winning at the MSPB level, employee sought additional Title VII
damages in the district court); Smith v. Horner, 846 F.2d 1521,
1521 (D.C. Cir. 1988) (employee filed denial of disability claim
with MSPB and appealed to Federal Circuit; after adverse
decision there, he filed a discrimination action in district
court).
In all, Bolton did not “pursue[] the mixed case in the
Federal Circuit,” nor did she “cho[o]se to split” her
discrimination claims. Pueschel, 577 F.3d at 563 (internal
quotation marks omitted). Therefore, Pueschel does not support
the conclusion that Bolton intentionally abandoned review of her
discrimination claims.
2.
Form 10
The district court accurately acknowledged that “the
Federal Circuit requires . . . employees [appealing MSPB cases
to the Federal Circuit] to certify, by completing Federal
Circuit Claim Form 10, either that no claim of discrimination
has been or will be made, or that any such claim has been
abandoned.” Bolton, 2015 WL 2452829, at *2. Bolton filed the
Form 10, but a close look at the form reveals she did not
certify “no claim of discrimination has been or will be made,”
17
nor did she certify that her discrimination claim “has been
abandoned.”
For example, Bolton checked the line next to the
following statement: “No claim of discrimination by reason of
race, sex, age, national origin, or handicapped condition has
been or will be made in this case.” J.A. 201 (emphasis
supplied). Indeed, “this case,” i.e., the case being appealed
to the Federal Circuit, stemmed from a request for review of
cross-agency OPM regulations -- not discrimination -- and the
briefing only challenged the MSPB’s failure to explain its
decision in the regulation-review case.
Also on the Form 10, Bolton answered “No” to the
question: “Have you filed a discrimination case in a United
States district court from the [MSPB]’s . . . decision?” J.A.
201. She did not check the blank next to this statement: “Any
claim of discrimination . . . raised before and decided by
[MSPB] has been abandoned or will not be raised or continued in
this or any other court.” Id.None of these indications on the Form 10 demonstrate
that Bolton intentionally relinquished her discrimination claims
by appealing the regulation-review case to the Federal Circuit.
Cf. De Santis v. Merit Sys. Prot. Bd., 826 F.3d 1369, 1372 n.2
(Fed. Cir. 2016) (noting that the employee “no longer ha[d] a
discrimination claim” where “he did not pursue his
18
discrimination claim with the [MSPB], and he informed th[e]
[Federal Circuit], in his Form 10 filing, that no claim of age
discrimination ‘has been or will be made in this case’”
(citation omitted) (emphasis supplied)); Stribling v. Dep’t of
Educ., 309 F. App’x 396, 398 (Fed. Cir. 2009) (explaining that
employee “explicitly waived her discrimination claims by
completing this court’s . . . Form 10[], and checking the box
stating that ‘Any claim of discrimination . . . raised before
and decided by the M[SPB] has been abandoned or will not be
raised or continued in this or any other court’”). We note,
however, that as a rule, a litigant cannot waive a
discrimination claim solely by checking a certain box on the
Form 10, nor can he or she avoid waiver by doing so. Our
holding is simply that, on the strange facts of this particular
case, the district court’s reliance on Bolton’s Form 10 to reach
its waiver conclusion was inappropriate, as her discrimination
claims were simply not part of the “case” being appealed to the
Federal Circuit. See Pueschel, 577 F.3d at 564.
Bolton’s Form 10 likewise fails to demonstrate waiver
of her discrimination claims. Therefore, we reverse the
district court’s holding that Bolton waived her right to review
of her discrimination claims and that it lacked subject matter
jurisdiction over those claims.
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B.
Relying on its conclusion that it lacked jurisdiction
over the discrimination claims (Counts One and Two), the
district court proceeded to dismiss the other six counts in
Bolton’s amended complaint, explaining, “[G]iven that this Court
lacks subject-matter jurisdiction over [Bolton’s] discrimination
claims (the only basis on which an employee may appeal a
decision of the MSPB to a federal district court), it lacks
subject-matter jurisdiction over her entire action challenging
her demotion by SSA.” Bolton, 2015 WL 2452829, at *5. Because
we have reversed this conclusion, we remand for consideration of
Counts Three through Seven.
As to Count Eight, Bolton contends the district court
possessed jurisdiction only on the basis of the Administrative
Procedure Act (“APA”). See Appellant’s Br. 1. The APA provides
in relevant part, “A person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency
action . . . is entitled to judicial review thereof.” 5 U.S.C.
§ 702. However, “competitive service employees, who are given
review rights by [the CSRA] cannot expand these rights by resort
to judicial review outside of the CSRA scheme.” Elgin, 132 S.
Ct. at 2133 (emphasis omitted); see also Hall v. Clinton, 235
F.3d 202, 206 (4th Cir. 2000) (“[T]he comprehensive grievance
procedures of the CSRA implicitly repealed all other then-
20
existing statutory rights of federal employees regarding
personnel decisions.” (footnote omitted)). Bolton has already
taken advantage of the CSRA scheme, as Count Eight is basically
the same claim raised in the regulation-review case and
voluntarily dismissed in the Federal Circuit. Therefore, the
APA cannot provide a basis for review of Count Eight, and we
affirm the dismissal of that claim.
III.
For the foregoing reasons, we affirm the district
court’s dismissal of Count Eight of Bolton’s amended complaint.
We reverse its dismissal of Bolton’s remaining seven counts, and
remand for further proceedings on those claims.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
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