NOTE: This order is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JOHN DOE, 

Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

Respondent. 

__________________________ 

2012-3204 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. CH0752090404-I-1. 

__________________________ 

ON MOTION 

__________________________ 

O R D E R 

John Doe moves for a stay of the remand proceedings 

ordered by the Merit Systems Protection Board or, in the 

alternative, for a writ of mandamus to direct the Board to 

reinstate him and to award back pay and attorney fees. 

The Department of Justice opposes and moves to dismiss 

Doe's petition for review for lack of jurisdiction. Doe 

replies and opposes dismissal. The Department of Justice 

replies. 

Case: 12-3204 Document: 32 Page: 1 Filed: 12/20/2012
JOHN DOE V. DOJ 2

Doe was removed in 2009 from his position as an Assistant United States Attorney. On appeal to the full 

Board, the Board remanded Doe's removal to the agency 

and directed the agency to apply its internal procedures 

for Access Review Committee Review of the decision to 

withdraw an employee's eligibility for access to classified 

information under 28 C.F.R. Part 17. The Board set forth 

procedures to be followed on remand, and stated that Doe 

could file a new petition for appeal with the regional office 

after the agency had informed Doe that it had carried out 

the Board's order. 

Doe petitioned this court for review and asserts, inter 

alia, that he was entitled to an immediate reinstatement 

without remand proceedings. He moves to stay those 

remand proceedings or to treat his request as a petition 

for a writ of mandamus. 

On December 10, 2012, the Supreme Court decided 

Kloeckner v. Solis, 565 U.S. ---, slip op no. 11-184 (2012). 

Neither party addresses that case because of its recent 

issuance. In Kloeckner, the Supreme Court held that if a 

petitioner claims that an agency action appealable to the 

MSPB violates an antidiscrimination statute listed in 5 

U.S.C. § 7702(a)(1), the petitioner must seek judicial 

review in a district court and not with this court. Id., slip 

op. at 14. Here, the Board's decision states that Doe 

raised, inter alia, claims that his removal was due to 

disability discrimination and due to retaliation for filing 

equal employment opportunity complaints. The Department of Justice's motion to dismiss further raises the 

jurisdictional concern whether the Board's remand order 

is final for purposes of review. See Weed v. Soc. Sec. 

Admin., 571 F.3d 1359 (Fed. Cir. 2009) (court lacked 

jurisdiction over petition for review of Board remand 

order because it was not a final order). It would appear 

based upon the papers submitted that this court lacks 

jurisdiction due to the holding of Kloeckner. 

Case: 12-3204 Document: 32 Page: 2 Filed: 12/20/2012
3 JOHN DOE V. DOJ

The court determines that further briefing concerning 

the jurisdictional issues is required. Doe and the Department of Justice are directed to respond, within 10 

days of the date of this order, concerning why this case 

should not be dismissed or transferred to a district court 

pursuant to 28 U.S.C. § 1631 because of the Kloeckner

holding. Each side's response should not exceed 10 pages. 

 Upon consideration thereof, 

IT IS ORDERED THAT: 

(1) Doe and the Department of Justice are directed to 

respond, within 10 days of the date of this order, concerning why this case should not be dismissed or transferred 

to a district court pursuant to 28 U.S.C. § 1631. 

(2) All pending motions are held in abeyance. 

 FOR THE COURT

 /s/ Jan Horbaly 

 Jan Horbaly 

 Clerk 

s8 

Case: 12-3204 Document: 32 Page: 3 Filed: 12/20/2012