Background
Mallie A. Thompson’McCarley appealed her removal from federal service to the Merit Systems Protection Board. The Board dismissed her appeal as untimely filed.
Thompson’McCarley then petitioned the Federal Circuit for review. Her filings indicated that she had raised a discrimination claim before the Board and wished to continue pursuing it. In response to the Federal Circuit’s show-cause order, both the Board and Thompson’McCarley supported transferring the matter to the appropriate court.
The Court’s Holding
The Federal Circuit held that it lacked jurisdiction because Thompson’McCarley alleged both an action appealable to the Board—her removal—and covered discrimination as a basis for that action. Under 5 U.S.C. §§ 7702 and 7703(b)(2), such a “mixed case” belongs in federal district court rather than the Federal Circuit.
Because the employment action appeared to have occurred within the Southern District of Ohio, the court transferred the matter and all filings to the U.S. District Court for the Southern District of Ohio under 28 U.S.C. § 1631.
Key Takeaways
- A federal employee who challenges an MSPB-appealable personnel action while alleging covered discrimination generally must seek judicial review in federal district court.
- The district-court route applies even when the MSPB dismissed the employee’s appeal as untimely.
- The Federal Circuit transferred the case rather than dismissing it, preserving the filings for consideration by the proper court.
Why It Matters
The nonprecedential order reinforces the jurisdictional path for federal-sector mixed cases. Attorneys should identify discrimination allegations early because they can place review of an MSPB decision in district court rather than the Federal Circuit, including when the Board resolved the case on procedural grounds.