* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 21 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANDREA Y. HENDRIX,

Plaintiff - Appellant, No. 96-2150

v. (D. New Mexico) UNITED STATES DEPARTMENT OF AGRICULTURE,

Defendant - Appellee. (D.C. No. 95-CV-1176)

ORDER AND JUDGMENT *

Before ANDERSON , HENRY , and BRISCOE , Circuit Judges. After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Andrea Hendrix appeals the district court’s order upholding the final decision of the Merit Systems Protection Board (MSP B) to terminate her employment with the United States Forest Service, U nited States Department of-2-

Agriculture. In its brief on appeal, the Departmen t of Agriculture argues, and Ms. Hendrix agrees, that the district court lacked subj ect matter jurisdiction over the case. Because the United States Court of Appeals f or the Federal Circuit has exclusive jurisdiction over Ms. Hendrix’s case, we vacate the decision of the district court, and remand her case to the districtcourt with instructions to transfer it to the Federal Circuit. I. On March 1, 1994, Ms. Hendrix was removed from her position with the Forest Service for conduct prejudicial to the best interests of the service, specifically, assault of a co-worker, inflicting bo dily harm on a co-worker, and threatening a co-worker. Ms. Hendrix appealed this decision to the Merit Systems Protection Board, which affirmed her removal in an order that became final on October 21, 1994. Before the Service and the MSPB, Ms. Hendrix argued, among other things, that her removal from the Service was an act of reprisal in violation of Title VII of the Civil Rights Act of 1964. On November 14, 1994, Ms. Hendrix petitioned the Un ited States Court of Appeals for the Federal Circuit to review the final order of the MSPB (MSPB appeal). On November 28, 1994, Ms. Hendrix also fi led a complaint in the U.S. District Court for the District of New Mexico alleg ing that her removal from the service was part of a continuing pattern and practi ce of reprisal in violation of-3-

Title VII. In a subsequent filing before the Feder al Circuit, Ms. Hendrix stated that no claim of discrimination had been or would b e made in her MSPB appeal before the Federal Circuit. She also disclosed that she had filed the abovementioned discrimination case in New Mexico distric t court. Appellee’s Supp. App. at 64. The New Mexico district court consolidated Ms. Hend rix’s discrimination action with a related discrimination claim she file d one year earlier (discrimination actions). The Department of Agricu lture then moved to dismiss the discrimination actions, arguing that the distri ct court lacked subject matter jurisdiction because Ms. Hendrix had improperly att empted to bifurcate her appeal of the MSPB’s final order. Id. at 28, 32-33. The Department also moved to amend its brief before the Federal Circuit, argu ing that the Federal Circuit lacked jurisdiction because Ms. Hendrix was still a ctively pursing her discrimination actions in the district court. Id. at 82-84. As a result of these jurisdictional concerns, the p arties entered a stipulated order in New Mexico district court on August 4, 199 5, dismissing without prejudice Ms. Hendrix’s consolidated discriminationactions. The stipulated order also provided that Ms. Hendrix had the right to re- file the claims “up to and including thirty (30) days after the ruling of this Court on the plaintiff’s appeal1 Ms. Hendrix does not dispute the Department of Agriculture’s arguments that she

is now barred from raising any discrimination claims. -4- related to the issues contained in [her MSPB appeal .]” Id. at 74. 1 Then, on August 7, 1995, the Federal Circuit granted Ms. Hen drix’s unopposed motion to transfer her MSPB appeal, and transferred the case to the New Mexico district court. The district court heard Ms. Hendrix’s MSPB appeal on the merits, and affirmed her removal from the Forest Service. Ms. Hendrix appeals the New Mexico court’s order. On appeal, the Department of Agriculture argues that the district court lacked jurisdiction because “there is not and was n ot at any time since the [transferred] case was first opened in district cou rt a pending discrimination claim associated with this appeal of the MSPB decision. Thus, the district court lacked jurisdiction over the MSPB appeal as a mixed case and this Court lacks jurisdiction over it now.” Appellee’s Br. at 6. M s. Hendrix agrees, stating: On August 4, 1995, the parties entered into a Stipu lated Order of Dismissal Without Prejudice. The parties then agre ed that Ms. Hendrix would file an unopposed motion to transfer to the Tenth Circuit. On the 7th day of August, 1995, the Feder al Circuit then issued an Order transferring the appeal to the Unit ed States District Court for the District of New Mexico. The attorneys that initiated the original transfer then proceeded with a full briefing at the District Court and obta ined a ruling in their favor, despite the fact that there was an apparent flaw in the jurisdiction as of August 4, 1995. . . . Obviously , this was an oversight on the part of all parties.2Alternatively, the Department of Agriculture requests this court to dismiss the

appeal. -5-

Apparently, neither the District Court or this Court had jurisdiction. Appellant’s Reply Br. at 1-2 (citations omitted). Both parties request that the case be transferred back to the Federal Circuit. 2 II. The United States Court of Appeals for the Federal Circuit has exclusive jurisdiction over appeals from final orders of the Merit Systems Protection Board. See 5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9); see also Long v. United States Dep’t of Air Force , 751 F.2d 339, 342 n.2 (10th Cir. 1984); Bergman v

. Department of Commerce , 3 F.3d 432, 434 (Fed. Cir. 1993); Afifi v. United States Dep’t of Interior , 924 F.2d 61, 62 (4th Cir. 1991). However, if a c ase is a “mixed case,” in which “the employee is challenging judici ally the board's determinations of both the discrimination and the nondiscriminatio n issues,” then jurisdiction lies solely in the district court pursuant to 5 U.S.C. § 7703(b)(2). Williams v. Department of Army , 715 F.2d 1485, 1491 (Fed. Cir. 1983); see also Williams v. Rice , 983 F.2d 177, 179-80 (10th Cir. 1993); Hill v. De partment of Air Force , 796 F.2d 1469, 1470 (Fed. Cir. 1986). In such a “mixedcase” the entire action must be brought in district court, and bifurcated procee dings are prohibited. See Afifi , 924 F.2d at 62-63; Williams , 715 F.2d at 1490-91.-6-

Here, there is no dispute that Ms. Hendrix dismisse d her discrimination actions in the New Mexico district court before herMSPB appeal was transferred from the Federal Circuit to that court. Accordingl y, at that point, there was no basis for the transfer because the case was no long er mixed. Also, it is undisputed that she made no discrimination claim in her appeal before the Federal Circuit, and has otherwise abandoned any discrimination claims connected with her appeal of the MSPB’s decision. Therefore, Ms. Hendrix does not present a “mixed case,” and the U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over her appeal. See King v. Lynch , 21 F.3d 1084, 1089 (Fed. Cir. 1994) (noting case no longer mixed and Federal Circ uit has jurisdiction when plaintiff abandons discrimination claims either bef ore the board or on appeal); Daniels v. United States Postal Service , 726 F.2d 723, 724 (Fed. Cir. 1984) (same). Regardless of the odd conditional language in the stipulated order of dismissal, as we indicated earlier, Ms. Hendrix doe s not dispute that she can no longer pursue her discrimination claims, and she is foreclosed from bringing those claims in any forum. III. Because the Federal Circuit has exclusive jurisdict ion over this case, we VACATE the decision of the district court and REMAN D the case with instructions that it be transferred, “in the intere sts of justice,” to the United States3 In retransferring this case, we recognize the Supreme Court’s admonition to

respect the law of the case concerning jurisdiction, and to avoid jurisdictional ping-pong. Christianson v. Colt Indus. Operating Corp. , 486 U.S. 800, 818-19 (1988). However, nothing in the record on appeal suggests that the Federal Circuit was aware of the parties’ agreement to dismiss the discrimination actions in the district court prior to the transfer of the MSPB appeal from the Federal Circuit. This is a case where the transfer was clearly erroneous, and re-transfer of the case to the Federal Circuit is appropriate. See Christianson , 486 U.S. at 819; Simanonok v. Simanonok, 918 F.2d 947, 953 (Fed. Cir. 1990).

4In light of our disposition of the jurisdiction issue, we deny Ms. Hendrix’s motion to remand to the district court for review of the entire record. -7- Court of Appeals for the Federal Circuit so that Ms . Hendrix may have her case heard before the proper forum. 3 See 28 U.S.C. § 1631 (stating federal courts shall transfer an action to cure a want of jurisdiction, if transfer is in the interests of justice); see also Burkins v. United States , 112 F.3d 444 (10th Cir. 1997) (remanding with directions that district court tran sfer action to United States Court of Federal Claims which had exclusive Tucker Act jurisdiction); Cooper v. Department of the Navy , 108 F.3d 324, 327 (Fed. Cir. 1997) (retransferrin g MSPB case to district court because discrimination claims existed); Denton v. Merit Systems Protection Board , 768 F.2d 422, 425 (D.C. Cir. 1985) (transferring MSPB appeal to the Federal Circuit). 4 The mandate shall issue forthwith. ENTERED FOR THE COURT Stephen H. Anderson Circuit Judge