*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.

United States Court of Appeals

Fifth Circuit

FILED

February 21, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50607

Summary Calendar

DAVID MICHAEL RUIZ

Plaintiff-Appellant,

versus

THOMAS RIDGE, Secretary of the Department of Homeland Security-BICE

Defendant-Appellee.

Appeal from the United States District Court for

the Western District of Texas

(USDC No. 5:03-CV-992)

_________________________________________________________

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

David Michael Ruiz, who sued his former employer, the Department of Homeland

Security, for wrongful termination, appeals the district court’s (1) grant of the Secretary’s

motion to dismiss, and (2) denial of Ruiz’s motion to reinstate. Reviewing the grant of
1 Ruiz’s wrongful removal claim is one where the underlying personnel action

falls within the class of actions appealable to the MSPB and which also raises an

allegation that a basis for the action was prohibited discrimination. See 5 U.S.C. §

7702(a)(1)(A) and (B). An employee with such a claim must make an election between

filing a mixed complaint of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) or filing a mixed appeal to the MSPB. 29 C.F.R. § 1614.302(a)

and (b). 

2

the motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) de novo, Zephyr

Aviation, L.L.C. v. Dailey, 247 F.3d 565, 570 (5th Cir. 2001), and the denial of the

motion to reinstate under Rule 60(b) for abuse of discretion, Edward H. Bohlin Co., Inc.

v. Banning Co., Inc., 6 F.3d 350, 353 (5th Cir. 1993), we affirm for the following

reasons:

1. In the underlying lawsuit (“Lawsuit 2"), the second of two employmentrelated suits Ruiz filed against the Department, the viability of Ruiz’s

wrongful termination claim turned on the issue of whether Ruiz was

medically fit for duty, the Secretary claiming that he was not. While his

initial lawsuit for discrimination and retaliation (“Lawsuit 1") was pending

before the district court, Ruiz opted to file a “mixed case” appeal of his

subsequent termination of employment to the Merit System Protection

Board (“MSPB”).1

Noting that the determination of whether Ruiz was medically fit to

perform the duties of his position was also one of the issues which might be

resolved in Lawsuit 1, the MSPB’s Administrative Law Judge, (“the ALJ”)
3

stayed and dismissed the appeal without prejudice ordering that, if the

fitness issue was not resolved by the district court, Ruiz was to re-file his

appeal within thirty days of receipt of judgment in that case. Ruiz did not

re-file his appeal to the MSPB after either the partial dismissal of Lawsuit 1

or the grant of summary judgment on all remaining issues in that suit,

neither action having disposed of the fitness for duty question, but instead

filed Lawsuit 2 in district court. 

2. As a precondition to filing suit in federal court, a federal employee claiming

discrimination must first exhaust administrative remedies in a timely

fashion. If an employee fails to do so, the court is deprived of jurisdiction. 

See Tolbert v. United States, 916 F.2d 245, 247 (5th Cir. 1990). 

In this case, having elected to appeal his termination to the MSPB,

Ruiz was bound to abide by the procedures of that forum through

completion of that appeal. The ALJ deferred to the district court in Lawsuit

1 to avoid dual adjudication on the fitness-for-duty issue, but did so with

the express caveat that Ruiz was to continue pursuing his administrative

remedies by refiling within thirty days of the district court judgment. 

Thus, while Ruiz properly initiated the administrative process, he did not

return to it as judicially instructed. Accordingly, we find no error in the

district court’s holding that, because Ruiz had not exhausted his

administrative remedies before filing suit, the court lacked jurisdiction over
4

his case. 

3. We find no abuse of discretion in the district court’s denial of Ruiz’s

motion to reinstate. Ruiz argues that the court should have reinstated his

case because, by the time the court dismissed his case for want of

jurisdiction, his appeal with the MSPB was denied for untimeliness. This is

not the type of changed circumstance warranting relief under Rule 60(b)(5). 

Ruiz could have, but did not, follow the instructions of the ALJ to timely

refile his appeal with the MSPB following the dismissal of Lawsuit 1. The

record indicates neither extenuating circumstances, see Teemac v.

Henderson, 298 F.3d 452, 457 (5th Cir. 2002), nor lack of counsel, see

Rolland v. United States Dep’t of Veterans Affairs, 146 Fed. App’x 743,

746 (5th Cir. 2005) such as would weigh in favor of equitable tolling in this

case. 

AFFIRMED.