NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
Is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3015
SHIA-LU C. VANDEGRIFT,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
___________________________
DECIDED: March 14, 2006
___________________________
Before RADER, SCHALL, and PROST, Circuit Judges.
RADER, Circuit Judge.
The Merit Systems Protection Board (Board) affirmed the Department of
Agriculture’s (Agency) decision to remove Ms. Shia-Lu C. Vandegrift from her position
as a computer specialist with the Agency’s Office of the Chief Information Officer.
See Vandegrift v. Dep’t of Agriculture, DC-0752-05-0005-I-1 (M.S.P.B. 2005). Because
this court does not have jurisdiction to review Ms. Vandegrift’s mixed case on the
merits, this court dismisses for lack of jurisdiction.
BACKGROUND
The Agency proposed removing Ms. Vandegrift from her position for:
(1) Deliberate and malicious refusal to comply with rules, regulations,
written procedures, and proper supervisory instructions; (2) use of
malicious, derogatory, discourteous, and otherwise inappropriate
language and other conduct toward her supervisor and fellow employees;
(3) failure to comply with proper procedures for requesting and receiving
leave approval; (4) unauthorized absence, including unexcused tardiness
and leaving the workstation without permission and before the end of the
day; and (5) use of government-provided services for inappropriate
purposes.
Id., slip op. at 1-2. In response, Ms. Vandegrift filed discrimination complaints against
the Agency, alleging
that her removal was the result of discrimination based on her age (date of
birth 2/19/38), national origin (Chinese), race (Asian), and reprisal for her
prior equal employment opportunity (EEO) activity.
Id., slip op. at 2. The Equal Employment Opportunity Commission consolidated
Ms. Vandergrift’s complaints, and instructed the Agency to process the case as a mixed
case. Id. Thereafter, the Agency issued a final decision concluding it had not
discriminated against Ms. Vandegrift as alleged and that she should indeed be removed
from her position as initially proposed. This decision was upheld by the Board on
appeal. Id., slip op. at 23. The present appeal followed.
DISCUSSION
This court has jurisdiction to review decisions of the Merit Systems Protection
Board pursuant to 28 U.S.C. § 1295(a)(9). Under § 1295(a)(9), this court lacks
jurisdiction to review a mixed case appeal decided on the merits that involves
allegations of discrimination and retaliation without a waiver of such claims.
See Williams v. Dep’t of Army, 715 F.2d 1485 (Fed. Cir. 1983) (en banc).
Ms. Vandegrift’s appeal presents the court with a mixed case prohibited under
Williams. Specifically, Ms. Vandegrift alleges discrimination and retaliation were the
basis for the Agency’s removal decision, and she has not waived these claims on
06-3015 2
appeal. Thus, this court lacks jurisdiction to entertain the present appeal. The appeal is
hereby dismissed for want of jurisdiction.
06-3015 3