United States Court of Appeals 

For the First Circuit 

No. 17-1257 

PAUL D. JONSON; NOREEN A. JONSON, 

Appellants, 

v. 

FEDERAL DEPOSIT INSURANCE CORPORATION, 

Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Rya W. Zobel, U.S. District Judge] 

Before 

Barron, Selya, and Stahl, 

Circuit Judges. 

Elizabeth S. Dillon and Brian D. Fishman, with whom Cetrulo 

LLP was on brief, for appellants. 

John W. Guarisco, Counsel, Federal Deposit Insurance 

Corporation, with whom Colleen J. Boles, Assistant General 

Counsel, and Kathryn R. Norcross, Senior Counsel, were on brief, 

for appellee. 

December 8, 2017 
- 2 - 

STAHL, Circuit Judge. 

Plaintiff-Appellant, Paul D. Jonson ("Jonson") commenced 

two different actions against the Federal Deposit Insurance 

Corporation ("FDIC"), challenging its decision to terminate his 

employment.1 When the case reached the district court, the court 

dismissed Jonson's complaint for lack of subject matter 

jurisdiction. Jonson appeals the district court's decision. 

First, Jonson disputes the district court's conclusion 

that he waived his associational disability discrimination claim. 

Second, Jonson requests that the Court transfer the case to the 

Federal Circuit. Finding that both of Jonson's arguments on appeal 

lack merit, we affirm. 

I. Procedural History 

Jonson worked at the FDIC for more than 20 years. In 

2010, Jonson and his wife both filed for bankruptcy, they said, as 

a result of expenditures they incurred in caring for their sick 

daughter. In September 2011, both Jonson and his wife received a 

bankruptcy discharge. 

In November 2011, Jonson applied for a special shortterm assignment through the FDIC with the United States Treasury. 

As a part of the background check required for this position, 

 1 While Noreen A. Jonson is also a named party, the dispute 

concerns the termination of Paul D Jonson. Therefore, this opinion 

refers to the Plaintiff-Appellant, Paul D. Jonson, in the singular. 
- 3 - 

Jonson disclosed the fact of his bankruptcy. On January 29, 2013, 

the FDIC terminated Jonson's employment with the agency because of 

his failure to meet the minimum standards of fitness and integrity 

established and required by 12 U.S.C. § 1822(f)(4). 

On February 28, 2013, Jonson exercised his rights, 

pursuant to the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 

et seq. ("CSRA"), by timely filing an appeal of his termination 

with the Merit Systems Protection Board ("MSPB"). Jonson alleged 

that (1) the basis proffered by the agency for his removal, the 

minimum standards of fitness and integrity, were invalid; (2) the 

termination violated the anti-discrimination provision of the 

Bankruptcy Code, 11 U.S.C. § 525(a); and (3) the termination 

constituted associational disability discrimination, in violation 

of the Rehabilitation Act, 29 U.S.C. §§ 791, 794. 

On June 14, 2013, the administrative law judge ("ALJ") 

issued a ruling in Jonson's favor. The ALJ did not reach the 

merits of Jonson's discrimination claims. Rather she determined 

that the FDIC exceeded its authority in promulgating the minimum 

standards regulations, the basis by which the FDIC terminated 

Jonson, because it failed to obtain the concurrence of the Office 

of Government Ethics ("OGE"). From that ruling, the FDIC took an 

interlocutory appeal. The MSPB affirmed the ALJ's reversal of 
- 4 - 

Jonson's removal and remanded the case to the ALJ to consider the 

merits of Jonson's discrimination claims.2

On June 27, 2014, Jonson's counsel, by letter, withdrew 

Jonson's discrimination claims with prejudice. The purpose of the 

withdrawal was to enable Jonson to immediately return to employment 

at the agency. Subsequently, the ALJ issued an initial decision, 

ordering, as interim relief, that the FDIC reinstate Jonson. 

The FDIC petitioned for review of the ALJ's initial 

decision and the MSPB reversed its prior ruling, finding that the 

minimum standards regulations had been properly promulgated.3 The 

MSPB canceled the ALJ's order of interim relief and remanded the 

matter to the ALJ and as part of that remand, required that Jonson 

be given an opportunity to reinstate his discrimination claims. 

The ALJ reopened the matter and authorized the parties 

to engage in discovery. The FDIC propounded several discovery 

requests to Jonson including, among other items, information 

related to his discrimination claims. The ALJ ordered Jonson to 

respond to the FDIC's discovery requests. Jonson failed to respond 

 2 The MSPB explained that "the FDIC was authorized to 

promulgate minimum standards of employment, but it was required to 

obtain [the Office of Government Ethics'] concurrence, which it 

failed to do." 

3 After the MSPB issued its original decision, the OGE 

provided a declaration, explaining that the "FDIC was not required 

to obtain [the OGE's] approval before promulgating the minimum 

fitness regulations." 
- 5 - 

to these requests and because of that failure, on October 8, 2015, 

the FDIC moved for sanctions. 

On December 4, 2015, during the pendency of the MSPB 

proceeding, Jonson initiated an adversary proceeding before the 

bankruptcy court pursuant to 5 U.S.C. § 7702(e), raising the same 

discrimination claims he had raised before the MSPB. 

Shortly thereafter, on December 7, 2015, the ALJ entered 

an order imposing sanctions on Jonson for failure to comply with 

her orders and prohibited Jonson from, among other things, 

introducing evidence regarding his discrimination claims. The ALJ 

also entered an order to show cause, directing Jonson to explain 

why his case should not be dismissed. On December 22, 2015, 

Jonson, with new counsel, filed a motion for reconsideration of 

the December 7, 2015 order imposing sanctions and a response to 

the order to show cause. On February 25, 2016, the ALJ granted in 

part and denied in part Jonson's motion. The ALJ determined that 

"all sanctions imposed . . . [would] remain in effect. However, 

the appeal will not be dismissed." 

On February 23, 2016, the FDIC filed a motion requesting 

that the bankruptcy court dismiss the adversary proceeding, or, in 

the alternative, abstain. The FDIC made several arguments in its 

motion, most importantly that Jonson's case was no longer mixed 

and the bankruptcy court lacked supplemental jurisdiction over his 

claims. See 29 C.F.R. 1614.302 ("A mixed case [] is a complaint 
- 6 - 

of employment discrimination filed with a Federal agency based on 

race, color, religion, sex, national origin, age, disability, or 

genetic information related to or stemming from an action that can 

be appealed to the Merit Systems Protection Board (MSPB)."). On 

the same day, the FDIC also filed a motion with the district court 

requesting the withdrawal of the reference to the bankruptcy court. 

Jonson agreed to the FDIC's request to withdraw the reference. On 

May 17, 2016, the district court withdrew the reference of the 

adversary proceeding from the bankruptcy court. 

Before the district court addressed the FDIC's motion to 

dismiss, the MSPB issued its final order, affirming the FDIC's 

termination decision. On October 20, 2016, Jonson filed a "Notice 

of Appeal" with the district court in which he stated that he 

"formally appeal[ed] the decision of the MSPB, pursuant to 5 U.S.C. 

§ 7703." 

Thus, when the case came before the district court, it 

had two procedural histories, one from the bankruptcy court and 

one from the MSPB hearings. The court requested additional 

briefing from the parties regarding whether "the two proceedings 

are identical in terms of the issues they present and the burdens 

on either party." Jonson requested that the case proceed in the 

district court pursuant to 5 U.S.C. § 7702.4 

 4 See PLAINTIFF'S SUPP. TO OPP. TO FDIC MOTION TO DISMISS 

("this action should proceed (as it had for the nine months between 
- 7 - 

Subsequently, the court granted the FDIC's motion to 

dismiss, finding that the court lacked subject matter jurisdiction 

because the case was no longer "mixed," a requirement for the 

district court's jurisdiction. See Jonson v. FDIC, No. CV 16-

10518-RWZ, 2016 WL 7493958, at *3 (D. Mass. Dec. 30, 2016). In 

addition, the court denied Jonson's subsequent motion to transfer 

the case to the Federal Circuit. On March 13, 2017, Jonson timely 

filed his notice of appeal. 

II. Analysis 

The CSRA constitutes "a comprehensive system for 

reviewing personnel action[s] taken against federal employees." 

United States v. Fausto, 484 U.S. 439, 455 (1988). CSRA claims 

must first be presented to the agency-employer and, if pursued 

further, reviewed by the MSPB. See Kloeckner v. Solis, 568 U.S. 

41, 44-45 (2012). The MSPB initially refers an appeal to an ALJ, 

who hears evidence and argument and issues an initial decision 

after the record closes. See 5 U.S.C. § 7701(b)(1); 5 C.F.R. §§ 

1201.59, 12.111. That initial decision becomes a final order, 

unless the employee petitions for review by the MSPB, which has 

authority to review the initial decision and issue its own final 

order. 5 C.F.R. §§ 1201.113, 1201.114, 1201.117. An employee 

aggrieved by an MSPB final order may obtain judicial review by 

 

when Jonson initiated the instant action, and when Jonson appealed 

the MSPB's Final Order), pursuant to Section 7702 of the CSRA.") 
- 8 - 

filing a petition in the United States Court of Appeals for the 

Federal Circuit within 60 days. 5 U.S.C. § 7703(a)(1), (b)(1)(A). 

If, however, the aggrieved employee is pursuing a "mixed 

case," -- i.e. alleging that the adverse employment action was 

based on discrimination in violation of certain antidiscrimination provisions, such as Section 501 of the 

Rehabilitation Act -- the employee instead obtains judicial review 

of an adverse MSPB order by filing suit within thirty days in a 

United States District Court. See 5 U.S.C. §§ 7702(a)(1)(B), 

7703(b)(2); Kloeckner, 568 U.S. at 45-46, 50. Additionally, the 

CSRA provides that for mixed cases, if the MSPB does not issue a 

final order within 120 days after an MSPB appeal is filed, an 

employee may file suit in the district court. 5 U.S.C. 

§ 7702(e)(1)(B). 

 1. The District Court's Subject Matter Jurisdiction 

We review "de novo a district court's dismissal for lack 

of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1)." 

United States v. Murphy, 45 F.3d 520, 522 (1st Cir. 1995). In 

reviewing the district court's decision, the Court is "mindful 

that the party invoking the jurisdiction of a federal court carries 

the burden of proving its existence." Taber Partners, I v. Merit 

Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993). Both parties 

agree that the district court's subject matter jurisdiction rests 
- 9 - 

on whether Jonson's case is "mixed."5 The district court concluded 

that Jonson did not have a mixed case because of his failure to 

reinstate or prosecute his Rehabilitation Act defense before the 

MSPB, despite being given the right to do so, after expressly 

withdrawing the claim with prejudice. 

This Circuit has routinely held that an employee who 

fails to exhaust available administrative remedies under the CSRA 

is precluded from bringing a mixed case in federal district court. 

See, e.g., Gonzalez v. Velez, 864 F.3d 45, 51-52 (1st Cir. 2017); 

Rodriguez v. United States, 852 F.3d 67, 87 (1st Cir. 2017); 

Irizarry v. United States, 427 F.3d 76, 78-79 (1st Cir. 2005). 

This case presents a slightly nuanced version of the established 

administrative exhaustion principle: whether a party who 

withdraws a claim of discrimination in an MSPB proceeding, and 

never reinstates the claim in that proceeding, may still have a 

mixed case appropriate for judicial review before the district 

court. Other circuits faced with this question have determined 

that a waived discrimination claim results in a non-mixed case. 

 5 The district court also dismissed the claim for 

discrimination under Section 525(a) of the Bankruptcy Code for the 

independent reason that such claims are not cognizable in federal 

court under the CSRA. See Jonson v. FDIC, No. CV 16-10518-RWZ, 

2016 WL 7493958, at *3 (D. Mass. Dec. 30, 2016) (citing 5 U.S.C. 

§ 7702). The Section 525(a) claim is not germane to the issues 

before us (as it cannot confer "mixed" case status) and going 

forward the only discrimination claim/affirmative defense that is 

discussed is the Rehabilitation Act claim. 
- 10 - 

See e.g., McAdams v. Reno, 64 F.3d 1137, 1144 (8th Cir. 1995) ("The 

record indicates that McAdams abandoned her discrimination claims 

at the MSPB. The district court thus properly determined that it 

lacked jurisdiction to consider them."); Blake v. Dep't of Air 

Force, 794 F.2d 170, 173 (5th Cir. 1986) ("We find that in the 

case before us any discrimination claim, to the extent one ever 

existed, was eliminated from the case and thus there is no subject 

matter jurisdiction."); Stephens v. Connley, 842 F. Supp. 1457, 

1459 (M.D. Ga. 1994), aff'd mem., 48 F.3d 537 (11th Cir. 

1995)(unpublished table decision) ("If this court determines that 

the discrimination claim has been eliminated, then the Court of 

Appeals for the Federal Circuit would have exclusive jurisdiction 

over plaintiff's case."). 

As the court explained in Connley, 842 F. Supp. at 1459, 

"[i]t is clear that a discrimination claim may be abandoned during 

MSPB proceedings." While an explicit waiver is not required, see 

id., in this case, Jonson's explicit withdrawal of his claim is 

sufficient proof that his discrimination claim was abandoned. See 

McMillan v. Mass. Soc. for Prevention of Cruelty to Animals, 140 

F.3d 288, 310 (1st Cir. 1998) (noting that a party's voluntary 

withdrawal of a claim relinquishes the right to pursue it later). 

Jonson was given opportunities to re-allege his discrimination 

claim, but failed to do so on multiple occasions. At no point 

during the subsequent proceedings did Jonson present or attempt to 
- 11 - 

present any evidence to support a discrimination claim. We cannot 

find that Jonson's original complaint, which alleged a claim of 

discrimination that was later withdrawn, without anything more, is 

sufficient to create a mixed case. See Hill v. Dep't of Air Force, 

796 F.2d 1469, 1471 (Fed. Cir. 1986) ("It was plainly not the 

intent of Congress to enable manipulation of . . . jurisdiction by 

the mere mention of discrimination in a petition for review."). 

Finding that the district court lacked subject matter 

jurisdiction, we turn to Jonson's next challenge on appeal. 

 2. Transfer to the Federal Circuit 

"We review a refusal to transfer for abuse of 

discretion." Cimon v. Gaffney, 401 F.3d 1, 6 (1st Cir. 2005). 

After the district court dismissed the case for want of subject 

matter jurisdiction, Jonson filed a motion for reconsideration, 

or, in the alternative, to transfer the case to the Court of 

Appeals for the Federal Circuit. Without issuing an opinion, the 

district court denied Jonson's motion. 

In making the transfer request before the district 

court, Jonson's counsel argued that transfer was proper pursuant 

to 28 U.S.C. § 1404(a), which provides for change of venue "[f]or 

the convenience of parties and witnesses, in the interest of 

justice" and "where it might have been brought or to any district 

or division to which all parties have consented." On appeal, 

Jonson's counsel concedes that the transfer request should have 
- 12 - 

been pursued under 28 U.S.C. § 1631, but nonetheless, the district 

court should have transferred the case in the interest of justice. 

Jonson's failure to raise section 1631 before the 

district court constitutes a waiver of the issue on appeal. See 

Albion v. YMCA Camp Letts, 171 F.3d 1, 2 n.3 (1st Cir. 1999) 

(deciding that where a party only raised 28 U.S.C. § 1404 and 

§ 1406 as grounds for transfer, the court would not address the 

applicability of 28 U.S.C. § 1631); see also Me. Green Party v. 

Me., Sec'y of State, 173 F.3d 1, 4 (1st Cir. 1999) (finding waiver 

when "the argument plaintiff presse[d] on appeal was not timely 

asserted in the district court"). 

Further, even if the Court were to overlook Jonson's 

waiver, the denial of transfer was nonetheless proper. Section 

1631 provides that: 

the court shall, if it is in the interest of 

justice, transfer such action or appeal to any 

other such court in which the action or appeal 

could have been brought at the time it was 

filed or noticed, and the action or appeal 

shall proceed as if it had been filed in or 

noticed for the court to which it is 

transferred on the date upon which it was 

actually filed in or noticed for the court 

from which it is transferred. 

(emphasis added). 

Jonson's counsel contends that the transfer serves "the 

interest of justice," namely because Jonson filed the instant 

action with the "good-faith belief" that his associational 
- 13 - 

disability discrimination claims were valid. While Section 1631 

creates a presumption in favor of transfer, transfer is 

inappropriate if it would not cure a want of jurisdiction. See 

Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553, 560 (2017) ("A 

court of competent jurisdiction is a court with the power to 

adjudicate the case before it."). 

 Regardless of the interest of justice argument, a transfer of 

the case would not cure the want of jurisdiction. Jonson's claim 

before the district court was filed pursuant to 5 U.S.C. 

§ 7702(e)(1)(B). Unlike an appeal from a final MSPB order, which 

may be brought before a district court or the Federal Circuit 

depending on its mixed status, see 5 U.S.C. §§ 7702(a)(1), 

7703(b)(1)(A) and (2), a section 7702(e)(1)(B) claim is only for 

mixed cases and can only be brought in the district court. It 

could never have been brought before the Federal Circuit. Further, 

the Federal Circuit only has jurisdiction over final orders or 

decisions of the MSPB. See 28 U.S.C. § 1295(a)(9); Weed v. Soc. 

Sec. Admin., 571 F.3d 1359, 1361-62 (Fed. Cir. 2009). But, at the 

time Jonson's section 7702 action was filed, his case was still 

pending before the MSPB. There was no final order. As such, 

Jonson's section 7702 claim could not have been filed in the 

Federal Circuit at the time it was filed in the district court 

because it was not a final order. Although Jonson may have been 

led astray by his prior counsel, the Court cannot transfer a case 
- 14 - 

in the interest of justice if the transfer fails to cure the 

jurisdictional defect. 

For these reasons, we affirm the district court's 

decision.