Case: 09-50869 Document: 00511085305 Page: 1 Date Filed: 04/20/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 20, 2010
No. 09-50869 Lyle W. Cayce
Summary Calendar Clerk
RAYMOND H RYAN,
Plaintiff - Appellant
v.
DEPARTMENT OF THE AIR FORCE,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas, San Antonio
USDC No. 5:08-CV-927
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Raymond H. Ryan appeals the district court’s dismissal of his complaint
in which he sought judicial review of a final decision of the Merit Systems
Protection Board (“MSPB”). Because the district court correctly determined that
it lacked subject matter jurisdiction, we AFFIRM.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-50869 Document: 00511085305 Page: 2 Date Filed: 04/20/2010
No. 09-50869
I.
Ryan was employed as a civilian aerospace engineer for the Department
of the Air Force. In September 2005, Ryan was reassigned from Texas to
Oklahoma. He was ordered to report for duty in Oklahoma on November 28,
2005, but he requested a delay because of his medical condition. In March 2006,
the Air Force terminated Ryan’s employment on grounds of excess absenteeism,
based on his failure to report for work in Oklahoma. Ryan received severance
pay from the Air Force at that time. Ryan challenged his removal before the
MSPB. He contended that his discharge was because of disability discrimination
and in retaliation for his whistleblowing activities. An administrative law judge
(“ALJ”) held an evidentiary hearing and sustained the removal. Ryan appealed
to the full MSPB.
In an Opinion and Order dated October 4, 2007, the MSPB held that the
ALJ had committed procedural error which required that Ryan be reinstated to
his job. The MSPB ordered the Air Force to cancel Ryan’s removal effective
March 21, 2006 and to issue a check to him for the appropriate amount of back
pay no later than sixty days after the date of the MSPB’s decision. However, the
MSPB also upheld the ALJ’s finding that Ryan had failed to prove disability
discrimination and whistleblower retaliation and, accordingly, it affirmed that
portion of the ALJ’s decision. A notice appended to the MSPB’s Opinion and
Order informed Ryan that he could file a civil action against the Air Force on
both his discrimination claims and his other claims in an appropriate federal
district court, “no later than 30 calendar days after your receipt of this order.”
He did not do so.
In the meantime, and in compliance with the reinstatement and back pay
order, the Air Force directed Ryan to report to work at his assignment in
Oklahoma on October 15, 2007. He failed to report, claiming that he needed
“official travel orders” and proof of the reinstatement of his employment. In
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Case: 09-50869 Document: 00511085305 Page: 3 Date Filed: 04/20/2010
No. 09-50869
February 2008, Ryan’s employment with the Air Force was terminated a second
time, this time for his failure to report to work in Oklahoma.1
As we have noted, Ryan did not seek further review of the MSPB’s October
4, 2007 decision on his discrimination claims. Instead, in December 2007, he
filed with the MSPB a petition for enforcement of the October 4, 2007 decision.
He did not make any reference to his discrimination claims in his petition for
enforcement.
In April 2008, the ALJ denied Ryan’s petition for enforcement, holding
that the Air Force had established that it canceled Ryan’s removal as directed
by the MSPB in its October 4, 2007 Opinion and Order. The ALJ concluded that
Ryan was not entitled to back pay because he continued to be absent from his
assigned location in Oklahoma even after his reinstatement.
In May 2008, Ryan filed with the MSPB a petition for review of the ALJ’s
April 2008 decision. In September 2008, the MSPB issued a Final Order in
which it denied the petition. A notice appended to the order informed Ryan that
he had the right to request that the United States Court of Appeals for the
Federal Circuit review that decision.
Instead, Ryan filed this civil action in the federal district court in Texas,
challenging the MSPB’s September 2008 Final Order. Ryan alleged in his
complaint that the Air Force had violated his rights under the Civil Rights Act
of 1964, the Rehabilitation Act of 1973, the Americans with Disabilities Act, the
Family Medical Leave Act, and various other federal statutes – claims that he
had not made in his petition before the MSPB. The district court dismissed his
complaint on the ground that it lacked subject matter jurisdiction because Ryan
had not raised claims of discrimination in the MSPB administrative proceedings.
1
Ryan challenged this February 2008 termination in a separate lawsuit that is now
pending in Oklahoma. The Air Force has filed a counterclaim in that lawsuit to recover the
severance pay that Ryan received after his first termination in March 2006.
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No. 09-50869
II.
We review the district court’s dismissal for lack of subject matter
jurisdiction de novo. Williams v. Wynne, 533 F.3d 360, 364 (5th Cir. 2008). The
United States Court of Appeals for the Federal Circuit has exclusive jurisdiction
to review final orders of the MSPB, except in a case involving discrimination
claims, in which case the employee may seek review of the MSPB’s decision in
federal district court. See Blake v. Dep’t of the Air Force, 794 F.2d 170, 172 (5th
Cir. 1986); see also 28 U.S.C. § 1295(a)(9); 5 U.S.C. §§ 7702, 7703(b).
Although Ryan’s first challenge to his removal included allegations of
discrimination, those proceedings are long passed; and fatal to his claim today
is that he did not seek review of that MSPB decision of October 4, 2007. It was
that decision in which the MSPB held that Ryan had failed to prove his charges
of discrimination. Instead, in his second administrative action, Ryan only
petitioned for enforcement of that decision, relating to reinstatement and back
pay. Ryan did not allege discrimination either in his petition for enforcement of
the MSPB’s October 4, 2007 decision, or in his May 2008 petition for review of
the ALJ’s denial of his petition for enforcement. Accordingly, the district court
correctly concluded that it lacked subject matter jurisdiction. See Blake, 794
F.2d at 172. III.
For the foregoing reasons, the district court’s dismissal of Ryan’s complaint
for lack of subject matter jurisdiction is
AFFIRMED.
4