Case: 13-3033 Document: 32 Page: 1 Filed: 11/21/2013
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LARRY BROOKS,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
______________________
2013-3033
______________________
Petition for review of the Merit Systems Protection
Board in No. AT0752120103-I-1
______________________
ON MOTION
______________________
Before NEWMAN, PROST, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
ORDER
In light of Larry Brooks’s and the Department of the
Air Force’s responses to this court’s show cause order, we
consider whether this case should be dismissed or trans-
ferred to a district court pursuant to 28 U.S.C. § 1631.
Brooks was removed from his position as a Sheet
Metal Mechanic Supervisor at Robins Air Force Base
Case: 13-3033 Document: 32 Page: 2 Filed: 11/21/2013
2 BROOKS v. AIR FORCE
based on a charge of inappropriate conduct. Brooks
appealed the removal to the Merit Systems Protection
Board. Brooks argued that he did not make any of the
statements attributed to him and asserted two affirmative
defenses – race and age discrimination. The Administra-
tive Judge affirmed the Air Force’s removal of Brooks, and
the full Board denied Brooks’s petition for review.
Brooks then filed a petition for review with this court.
The petition was subsequently dismissed for failure to
submit a required Statement Concerning Discrimination
in accordance with the Rules of Practice. Brooks moved to
reopen the appeal. The court granted the motion “for the
purposes of addressing whether this court has jurisdiction
due to the Supreme Court’s recent decision in Kloeckner v.
Solis, [___ U.S. ___, 133 S.Ct. 596 (2012).]” The parties
were directed to respond why this case should not be
dismissed or transferred to a district court in light of
Kloeckner.
In Kloeckner, the Supreme Court held that a federal
employee who claims that an agency action appealable to
the Board violates an antidiscrimination statute listed in
5 U.S.C. § 7702(a)(1) should seek judicial review in dis-
trict court, not in the Federal Circuit. Id. at 607. This
case involves an agency removal action that the employee
“may appeal to the Merit Systems Protection Board,” and
in which the employee “alleges that a basis for the action
was discrimination[.]” 5 U.S.C. § 7702(a)(1). Judicial
review is therefore assigned to the district court.
Brooks and the Department of the Air Force argue
that this court has jurisdiction to hear the petition for
review. Because Brooks’s proffered Statement Concern-
ing Discrimination indicates that “[a]ny claim of discrimi-
nation by reason of race, sex, age, national origin, or
handicapped condition raised before and decided by the
[Board] . . . has been abandoned or will not be raised or
continued in this or any other court.” According to the
Case: 13-3033 Document: 32 Page: 3 Filed: 11/21/2013
BROOKS v. AIR FORCE 3
parties, this “waiver” of any discrimination claim triggers
this court’s jurisdiction. We disagree.
Brooks’s appeal before the Board alleged discrimina-
tion based on age and race. As the Board recently ob-
served, there is nothing in the statutes suggesting “that
the appellant can transform a mixed case into a nonmixed
case after the Board has issued a decision simply by not
seeking judicial review on a discrimination claim.” Mills
v. USPS, 119 M.S.P.R. 482 ¶9 (2013) (concluding that
“from now on the Board will not inform appellants in
mixed cases that they may seek judicial review before the
Federal Circuit on issues other than discrimination”); see
also Doe v. Dep’t of Justice, No. 2012-3204, 2013 U.S. App.
Lexis 9095 (Fed. Cir. May 3, 2013) (transferring to the
district court a petition for review in which the petitioner
had indicated in his Statement Concerning Discrimina-
tion that any claim of discrimination was abandoned).
Because Kloeckner is clear that judicial review of a
Board decision in a mixed case that includes a discrimina-
tion claim is assigned to the district court, rather than
this court, we transfer the petition for review to the
appropriate district court, the United States District
Court for the Middle District of Georgia.
Accordingly,
IT IS ORDERED THAT:
The petition is transferred to the United States Dis-
trict Court for the Middle District of Georgia pursuant to
28 U.S.C. § 1631.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
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