Smith v. United States Postal Service
Opinion of the Court
ORDER
Ronald Smith petitions for review of the final decision of the Merit Systems Protection Board (“Board”) which dismissed his appeal of the United States Postal Service’s (“USPS”) removal action as moot and found that Mr. Smith had not raised a genuine issue of material fact with respect to his discrimination claim. Smith v. U.S. Postal Serv., SF0752110001-I-1 (M.S.P.B. Jan. 24, 2011), petition for review denied. (M.S.P.B. May 23, 2011). Because we lack jurisdiction to hear this appeal under 5 U.S.C. § 7703(b)(1), Mr. Smith’s appeal is transferred under 28 U.S.C. § 1631 to the United States District Court for the Northern District of California for further proceedings.
Mr. Smith has appealed the Board’s decision to this court. Our jurisdiction to hear an appeal from the Board is limited. Under 5 U.S.C. § 7703(b)(1), we cannot review decisions of the Board in cases of discrimination that are subject to the provisions of 5 U.S.C. § 7702. Section 7702 “defines the types of cases involving discrimination that are excluded from the jurisdiction of this court, including so-called ‘mixed cases’ — those involving both discrimination and non-discrimination claims.” Dedrick v. Berry, 573 F.3d 1278, 1280 (Fed.Cir. 2009). This limitation to our jurisdiction is also explained in our Guide for Pro Se Petitioners and Appellants: “This court does not have jurisdiction to review cases involving bona fide claims of discrimination based on race, sex, age, national origin, or handicap that were raised before and considered by the [Board].” Accordingly, we can only review a mixed case “if the petitioner filed an explicit waiver of the claim of discrimination.” Davidson v. U.S. Postal Serv., 24 F.3d 223, 224 (Fed.Cir. 1994).
Where, as here, the petitioner has not filed an explicit waiver of the discrimination claim, the entire action belongs in the appropriate district court. See 5 U.S.C. § 7703(b)(1); Dedrick, 573 F.3d at 1280-81. We, therefore, lack jurisdiction to hear Mr. Smith’s appeal.
The court, PER CURIAM determines as follows:
IT IS ORDERED THAT:
(1) The November 28, 2011 Motion to Supplement the record is denied.
(2) The January 3, 2012 Motion to Supplement the record is denied.
(3) This action is transferred under 28 U.S.C. § 1631 to the United States District Court for the Northern District of California for further proceedings.
. On November 28, 2011, Mr. Smith filed a motion to supplement the record, attaching various documents for submission. Mr. Smith did not explain why these documents were relevant to his appeal. The government opposed this motion, arguing that the documents either post-dated the Board’s decision or did not appear to have ever been part of the record presented to the Board. On January 3, 2012, Mr. Smith submitted additional
Reference
- Full Case Name
- Ronald SMITH v. UNITED STATES POSTAL SERVICE
- Status
- Published