Case: 14-3120 Document: 19 Page: 1 Filed: 08/26/2014
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALBERT P. SCHULTZ,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3120
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-94-0233-C-6.
______________________
ON MOTION
______________________
Before LOURIE, O’MALLEY, and WALLACH, Circuit Judges.
PER CURIAM.
ORDER
The Merit Systems Protection Board’s motion to
transfer this case is granted.
In previous decisions, the Board awarded back pay af-
ter determining that the Postal Service had failed to
accommodate petitioner’s physical disability. The amount
of back pay owed to petitioner was determined in part
Case: 14-3120 Document: 19 Page: 2 Filed: 08/26/2014
2 SCHULTZ v. MSPB
through a 2004 settlement agreement and in part after
prolonged litigation that took this case before the Board
and federal court.
Once those enforcement proceedings were completed,
petitioner’s estate filed a petition at the Board seeking
attorney fees for work incurred before the Board years
before. In April 2012, the Board dismissed the petition as
untimely. The estate appealed the matter to this court
and, on September 17, 2013, this court transferred the
case to the United States District Court for the Western
District of Pennsylvania, referencing the discrimination
claims underlying petitioner’s initial allegations. Mean-
while, petitioner’s estate filed the underlying petition at
the Board in April 2012, seeking additional fees he as-
serts were owed under the settlement agreement. After
the Board again dismissed the petition as untimely, the
estate again filed a petition for review with this court.
Both this court and the Third Circuit have held that
jurisdiction over this case lies in district court. See
Schultz v. Merit Sys. Prot. Bd., No. 12-3142, slip. op. at 4
(Fed. Cir. Sept. 17, 2013) (noting that “[t]he petition for
attorney fees stems from a mixed case” and “a federal
employee should seek judicial review in district court, not
in this court, when he claims that an agency action vio-
lates an antidiscrimination statute”); Schultz v. Potter,
349 Fed. Appx. 712, 714 n.1 (3d Cir. 2009) (“The District
Court had jurisdiction over Schultz’s action to enforce the
MSPB decision pursuant to 5 U.S.C. §7703(b)(2).”).
That is the law of this case, which governs these
proceedings absent extraordinary circumstances. See
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,
815-16 (1988) (“[T]he doctrine [of the law of the case]
posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in
subsequent stages in the same case.”); Texas Am. Oil
Corp. v. U.S. Dep’t of Energy, 44 F.3d 1557, 1561-62 (Fed.
Case: 14-3120 Document: 19 Page: 3 Filed: 08/26/2014
SCHULTZ v. MSPB 3
Cir. 1995) (applying law of the case to jurisdictional
ruling); Doko Farms v. United States, 861 F.2d 255, 256-
57 (Fed. Cir. 1998) (same). After careful review of the
papers when read in light of the applicable standard, we
conclude that transfer of this case is appropriate. See 28
U.S.C. § 1631 (authorizing transfer).
Accordingly,
IT IS ORDERED THAT:
The motion to transfer is granted. This case and all
pending motions shall be transferred to the United States
District Court for the Western District of Pennsylvania.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s19
ISSUED AS A MANDATE: August 26, 2014