IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10207 Summary Calendar

DEXTER E. NEAL,

Plaintiff-Appellant,

versus

WILLIAM S. COHEN, Secretary, Department of Defense, et al.,

Defendants,

WILLIAM S. COHEN, Secretary, Department of Defense; BEN L. ERDREICH, Chairman Merit Systems Protection Board; MERIT SYSTEMS PROTECTION BOARD;

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:97-CV-1534-BC -------------------- January 26, 2000

Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

Dexter E. Neal appeals the district court’s dismissal of his

complaint, which alleged that (i) his employer, the Defense

Logistics Agency, and the Merit Systems Protection Board (MSPB)

committed procedural errors during the adjudication of his

challenge to a demotion and (ii) the MSPB committed racial

discrimination in violation of Title VII when it held against him

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. on the DLA’s petition for review of an administrate judge’s order.

The district court concluded that it had subject-matter

jurisdiction over Neal’s complaint. However, it held that the MSPB

could not be sued by Neal under Title VII for discrimination and

that the MSPB was not a proper respondent in any action challenging

its resolution of an employing agency’s petition for review. The

court rejected the claims against the DLA on the merits.

In the district court, the MSPB and its chairman argued that

subject-matter jurisdiction was lacking. Despite granting motions

to dismiss under Fed. R. Civ. P. 12(b)(1), the district court

disagreed, and none of the parties has questioned the subject-

matter jurisdiction on appeal. However, we must examine the basis

of the district court’s subject-matter jurisdiction whenever “it

appears at all questionable.” Odeco Oil & Gas Co., Drilling Div.

v. Bonnette,

, 403 n.2 (5th Cir. 1993). We do so here.

In Blake v. Dep’t of the Air Force,

(5th

Cir. 1986), we noted that the United States Court of Appeals for

the Federal Circuit typically has exclusive jurisdiction to review

the final orders of the MSPB. See also

(a);

(b). The only exception is for “[c]ases of

discrimination subject to the provisions of”

.

Blake,

. When an employee brings one of these so-

called “mixed cases,” involving both discrimination and

nondiscrimination claims, jurisdiction is proper in a district

court.

However, if the “discrimination claim . . . [has been]

eliminated from the case,” the district court lacks subject-matter

jurisdiction, and the Federal Circuit retains exclusive jurisdiction over the case.

The district court held that Neal’s case was “mixed” because

he had alleged racial discrimination by the MSPB during its

adjudication of his case.1 We conclude, however, that a claim of

adjudicatory discrimination by the MSPB does not make a case

“mixed.” As noted, in these circumstances, district courts have

jurisdiction only over “[c]ases of discrimination subject to the

provisions of” § 7702. See § 7703(b)(2). Section 7702(a)(1), in

turn, applies only to “the case of any employee . . . who has been

affected by an action which the employee . . . may appeal to the

Merit Systems Protection Board, and [who] alleges that a basis for

the action was discrimination prohibited by” several listed

statutes, including Title VII. As this language makes clear, the

section refers only to allegations of employment discrimination by

an employing agency, allegations that the employee “may appeal to

the” MSPB. It does not encompass allegations that the MSPB itself

committed discrimination in deciding an employee’s case. Any such

claim of adjudicatory bias properly would be raised in the

employee’s appeal of the MSPB’s order in the Federal Circuit.

In holding that it had jurisdiction over Neal’s complaint, the

district court cited Williams v. Rice,

(10th

Cir. 1993), and Morales v. MSPB,

, 801-02 (9th Cir.

1991). In these cases, however, the employee presented both claims

of discrimination and nondiscrimination by the employing agency

itself. Accordingly, these cases involved issues covered by §

1 In the district court and on appeal, Neal has disclaimed any allegation of racial discrimination by the DLA in its demotion of him. 7702(a)(1). Neither case involved the situation presented here, in

which the employee’s only discrimination claim is against the MSPB.

Williams and Morales are inapposite.

The district court also cited Afifi v. U.S. Dep’t of Interior,

(4th Cir. 1991). As the district court realized,

Afifi authorizes a district court, in some situations, to consider

an employee’s nondiscrimination claims after it has disposed of the

discrimination claims.

. When, as here, the case

presented to the district court is not “mixed,” the district court

lacks jurisdiction.

; Blake,

.

Because the district court lacked jurisdiction over Neal’s

complaint, we VACATE the district court’s judgment and REMAND the

matter for the district court to dismiss Neal’s complaint.