Case: 21-2194 Document: 11 Page: 1 Filed: 02/09/2022

United States Court of Appeals for the Federal Circuit ______________________

JULIAN R. ASH, Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent ______________________

2021-2194 ______________________

Petition for review of the Merit Systems Protection Board in No. DA-844E-20-0536-I-1. ______________________

JULIAN R. ASH, Lutherville, MD, pro se.

CHRISTOPHER L. HARLOW, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent. ______________________

Before DYK, PROST, and HUGHES, Circuit Judges. PER CURIAM. ORDER On October 7, 2021, we directed the parties to show cause whether this case should be transferred to a United States district court as a mixed case under 5 U.S.C. § 7703(b)(1)(A). In response, the Office of Personnel Case: 21-2194 Document: 11 Page: 2 Filed: 02/09/2022

2 ASH v. OPM

Management asserted that Julian R. Ash presented a mixed case and that we should transfer this case to the United States District Court for the District of Maryland. Because this case involves (1) an action that is appealable to the Merit Systems Protection Board and (2) a discrimi- nation allegation, we conclude that it is a mixed case and therefore order the case transferred to the District of Mar- yland. I In September 2020, Julian R. Ash appealed to the Merit Systems Protection Board, challenging a reconsider- ation decision of the Office of Personnel Management that denied his application for disability retirement benefits. Mr. Ash asserted affirmative defenses, including disparate treatment based on race and prior protected activity. The Board affirmed OPM’s reconsideration decision and con- cluded, among other things, that Mr. Ash failed to prove his affirmative defenses. Mr. Ash appeals, and his submis- sions before this court indicate that he wishes to continue pursuing his discrimination claim. II Under 5 U.S.C. § 7703(b)(1)(A), an appellant generally must appeal a final Board decision to the Federal Circuit. But if the appellant (1) has been affected by an action that the appellant may appeal to the Board and (2) alleges that a basis for the action was discrimination prohibited by enu- merated federal statutes, then the appellant is said to have brought a “mixed case” and must seek judicial review in federal district court. Kloeckner v. Solis, 568 U.S. 41, 44, 56 (2012) (citing 5 U.S.C. § 7702(a)(1), 29 C.F.R. § 1614.302 (2012)); Perry v. MSPB, 137 S. Ct. 1975, 1985 (2017). One of those enumerated federal statutes is 42 U.S.C. § 2000e- 16, which prohibits racial discrimination with respect to “personnel actions.” Case: 21-2194 Document: 11 Page: 3 Filed: 02/09/2022

ASH v. OPM 3

Some adverse personnel actions may not be appealed to the Board and therefore do not create mixed cases. An affected employee has a right to appeal an agency’s deci- sion to the Board “[i]f (but only if) the action is particularly serious—involving, for example, a removal from employ- ment or a reduction in grade or pay.” Kloeckner, 568 U.S. at 44. And some cases “by definition are never ‘mixed cases.’” Young v. MSPB, 961 F.3d 1323, 1328 (Fed. Cir. 2020). For example, Individual Right of Action appeals can- not be mixed cases because “[d]iscrimination claims may not be raised in that context.” Id. at 1327 (citing 5 C.F.R. § 1209.2(c)). Usually, the serious adverse personnel action in a mixed case is employee termination. See, e.g., Lang v. MSPB, 219 F.3d 1345, 1347 (Fed. Cir. 2000) (“Lang be- lieved his termination was a discriminatory ac- tion . . . . Thus, Lang pled a mixed case complaint . . . .”). Here, Mr. Ash challenges a different adverse action: a dis- ability retirement decision. We have not directly spoken on this issue, 1 so we take this opportunity to clarify that an appeal arising from a benefits decision can be a “personnel action” giving rise to a mixed case over which we do not have jurisdiction.

1 In Hirschfield v. OPM, 725 F. App’x 934 (Fed. Cir. 2018), a benefits case, we recognized that “[w]hen an em- ployee complains of a personnel action appealable to the board and asserts that the action was prompted, in whole or part, by sex discrimination . . . he or she must appeal an adverse board decision to a federal district court rather than this court.” Id. at 936. But we ultimately concluded that we had jurisdiction because “Hirschfield’s pro se fil- ings are most reasonably read not to assert a claim of un- lawful sex discrimination, but instead to assert that . . . the statute . . . is unconstitutional.” Id. Case: 21-2194 Document: 11 Page: 4 Filed: 02/09/2022

4 ASH v. OPM

Removal is not the only adverse action that can create a mixed case. See Kloeckner, 568 U.S. at 44 n.1 (listing other actions that an employee can appeal to the Board). Per 5 U.S.C. § 7702(a)(1)(A), a challenge to an adverse agency personnel action can be a mixed case as long as the adverse action can be appealed to the Board. An OPM de- cision that adversely affects retirement “rights or benefits,” like the decision that Mr. Ash appeals in this case, is a “per- sonnel action.” 5 U.S.C. § 8461(e)(1); Miller v. OPM, 449 F.3d 1374, 1377–78 (Fed. Cir. 2006). Here, Mr. Ash (1) raises an adverse personnel action that is appealable to the Merit Systems Protection Board and (2) alleges discrimination. So, we conclude that this ap- peal is a mixed case over which we do not have jurisdiction. We therefore order this case transferred to the District of Maryland. IT IS ORDERED THAT: This case is transferred to the United States District Court for the District of Maryland.

FOR THE COURT

February 9, 2022 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court