NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

 

 

2007-3027 

LARRY D. URBAN 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

Hak K. Dickenson, H.K. Dickenson & Associates, PLLC, of Houston, Texas, 

argued for petitioner. 

Michael A. Carney, Attorney, Office of the General Counsel, United States Merit 

Systems Protection Board, of Washington, DC, argued for respondent. With him on the 

brief were B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General 

Counsel, and Sara B. Rearden, Acting Associate General Counsel. 

Appealed from: United States Merit Systems Protection Board 
Note: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-3027 

LARRY D. URBAN, 

 

 Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

 Respondent. 

 DECIDED: July 17, 2007 

Before LOURIE, SCHALL, and PROST, Circuit Judges. 

SCHALL, Circuit Judge. 

DECISION 

Larry D. Urban petitions for review of the final decision of the Merit Systems 

Protection Board (“Board”) that dismissed his appeal for lack of jurisdiction. Relying on 

Connor v. United States Postal Service, 15 F.3d 1063 (Fed. Cir. 1994), the Board held 

that Mr. Urban’s prior filing of a district court alleging age discrimination precluded him 

from filing a discrimination appeal with the Board. Urban v. Dep’t of Transp., No. DA-
0351-06-0066-I-1 (M.S.P.B. July 24, 2006).1

 We affirm-in-part, vacate-in-part, and 

remand. 

DISCUSSION 

I. 

Mr. Urban was employed as an Air Traffic Control Specialist (“ATCS”) with the 

Automated Flight Services Station (“AFSS”), Flight Services Unit, Air Traffic 

Organization, of the Federal Aviation Administration (“FAA” or “agency”), at the Flight 

Service Station located in Fort Worth, Texas. On February 18, 2005, the Vice President 

of the Flight Services Unit, Air Traffic Organization, certified members of the AFSS as 

“surplus,” thereby signaling that the identified employees were likely to face 

displacement through a future reduction in force (“RIF”). 

On March 31, 2005, in response to the certification, Kathleen Breen and other 

ATCS employees, including Mr. Urban, filed a civil class action in federal district court 

(hereinafter referred to as the “class action suit”), which they later supplemented with a 

June 24, 2005 amended complaint. As stated in the complaint the purpose of the suit 

was “to challenge unlawful age discrimination in employment by the FAA pursuant to 

the Age Discrimination in Employment Act [‘ADEA’].” The “common question” 

presented in the complaint was “whether [the agency] discriminated against the over-40 

class members . . . by the FAA’s decision to eliminate these persons’ federal 

employment and related benefits,” given that 92% of the affected Flight Service 

Controllers were over age forty. In that regard, the plaintiffs alleged that the agency’s 

 1

 Mr. Urban did not petition the Board for review of the administrative 

judge’s (“AJ’s”) initial decision, so the initial decision became the final decision of the 

Board on August 28, 2006. 

2007-3027 2
decision to effect their separations would allow the agency to replace them with younger 

workers as contractors. According to the complaint, each of the class members also 

asserted individual claims of age discrimination on his or her own behalf. 

On March 18, 2005, the agency issued two job announcements for positions in 

Alaska that would not be subject to the RIF. Mr. Urban applied for the positions but was 

not selected for either of them. On July 19, 2005, the agency issued a RIF notice to Mr. 

Urban informing him that he would be removed from his position effective October 3, 

2005. Attachment A to the RIF notice advised affected employees of their appeal rights. 

The attachment advised bargaining unit members such as Mr. Urban, who wished to 

challenge the RIF for reasons involving allegations of discrimination, that they could 

elect to file a grievance, pursue a Board appeal, or lodge an Equal Employment 

Opportunity (“EEO”) complaint. 

Pursuant to the RIF, Mr. Urban was removed from his position effective October 

3, 2005. On November 2, 2005, Mr. Urban filed an appeal with the Board, alleging in 

paragraph 3a of his appeal document that the FAA had discriminated against him on the 

basis of his age in connection with the open Alaska positions because other younger 

employees not immediately eligible for retirement were given more consideration for the 

positions than he was.2 Paragraphs 3b, 3c, and 3d of his appeal document made 

additional claims with respect to the RIF.3

On November 21, 2005, the agency moved to dismiss the Board appeal for lack 

of jurisdiction, relying upon this court’s decision in Connor, to argue that Mr. Urban’s 

election to seek a remedy in the class action suit precluded him from pursuing the same 

 2

 We refer to this claim as Mr. Urban’s “discrimination claim.” 

3

 We refer to these claims as Mr. Urban’s “non-discrimination claims.” 

2007-3027 3
matter before the Board. Thereafter, on January 23, 2006, Mr. Urban’s counsel sent a 

letter to counsel representing the class action suit plaintiffs seeking Mr. Urban’s 

withdrawal from that suit. Counsel for the class action suit plaintiffs submitted a motion 

to the district court seeking Mr. Urban’s withdrawal on January 25, 2006, and the court 

granted the motion on March 31, 2006. However, on July 24, 2006, the AJ dismissed 

Mr. Urban’s Board appeal, ruling that Connor precluded him from filing a Board appeal 

concerning the same matter raised in the class action suit. Urban, slip op. at 9. The AJ 

also ruled that the Board generally lacks jurisdiction over appeals regarding 

nonselection for a vacant position and so lacked jurisdiction in this case to review Mr. 

Urban’s claim of nonselection for one of the Alaska positions. Id. 

II. 

Our scope of review in an appeal from a decision of the Board is limited. 

Specifically, we must affirm the Board’s decision unless it is found to be arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained 

without procedures required by law, rule, or regulation having been followed; or 

unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health & 

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). Whether the Board has 

jurisdiction to adjudicate a particular appeal is a question of law that we review de novo. 

Kings v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996). 

We see no error in the Board’s ruling that, under Connor, Mr. Urban’s election to 

pursue a civil action challenging the RIF as a violation of the ADEA precluded him from 

pursuing an appeal with the Board concerning the same matter. 

2007-3027 4
In Connor, the United States Postal Service removed Charles Connor from his 

position. Following his removal, Connor filed a discrimination complaint with the Postal 

Service. Under then existing regulations, Connor had the option of filing an appeal with 

the Board or filing a civil action in district court, if the agency did not issue a judicially 

reviewable decision within 120 calendar days. While his discrimination complaint was 

pending before the Postal Service, Connor amended a complaint he previously had filed 

in federal district court to include a count based on his removal. Later, when Connor 

sought to appeal his removal to the Board, the Board dismissed the appeal for lack of 

jurisdiction on the ground that his right to appeal to the Board had been extinguished by 

his amendment of the district court complaint to include a challenge to his removal. 

Upon petition for review of the Board’s dismissal, we held that Connor had effectively 

elected the district court action when he amended his complaint there, and that 

therefore a subsequent appeal to the Board was foreclosed by existing regulations.4

 

Accordingly, we affirmed the Board’s decision. 

In this case, Mr. Urban had three options for bringing a challenge to his removal 

based upon a claim of discrimination. He could elect to file (1) a grievance in 

accordance with the memorandum of agreement between the National Association of 

Air Traffic Specialists and the FAA, (2) a mixed case administrative complaint with the 

agency, or (3) a mixed case appeal with the Board. As in Connor, the regulations 

foreclose litigating the same case through both the administrative process and United 

 4

 The regulations relied on by the court in Connor have been superseded 

and do not apply to this case. Effective October 1, 1992, 29 C.F.R. § 1613 was 

replaced by 29 C.F.R. § 1614, which now governs administrative complaints and 

appeals alleging employment discrimination filed by federal employees and applicants 

for federal employment. 57 Fed. Reg. 12,634 (1992). However, the underlying 

reasoning from Connor is still sound and may be applied to the present case. 

2007-3027 5
States’ courts. Part 1614 of title 29 of the Code of Federal Regulations, entitled 

“Federal Sector Equal Employment Opportunity,” sets forth the policies and procedures 

for complaints of employment discrimination including, inter alia, age discrimination. 

The regulations explicitly note that a complainant may bring an age discrimination claim 

by filing an administrative complaint. Alternatively, a complainant may bypass the 

administrative process and file a civil action in district court.5

 In the case of a mixed 

case complaint, the regulations allow the complainant to file a complaint with the 

agency, or the complainant may bypass the agency and file an appeal with the Board.6 

 5

 29 C.F.R. § 1614.201(a) states 

As an alternative to filing a complaint under [Part 1614. Federal Sector 

Equal Employment Opportunity], an aggrieved individual may file a civil 

action in a United States district court under the ADEA against the head of 

an alleged discriminating agency after giving the Commission not less 

than 30 days’ notice of the intent to file such an action. 

(Emphases added). 

6

 29 C.F.R. § 1614.302(a) defines 

(1) Mixed case complaint. A mixed case complaint is a complaint of 

employment discrimination filed with a federal agency based on race, 

color, religion, sex, national origin, age or handicap related to or stemming 

from an action that can be appealed to the Merit Systems Protection 

Board (MSPB). The complaint may contain only an allegation of 

employment discrimination or it may contain additional allegations that the 

MSPB has jurisdiction to address. 

(2) Mixed case appeals. A mixed case appeal is an appeal filed with the 

MSPB that alleges that an appealable agency action was effected, in 

whole or in part, because of discrimination on the basis of race, color, 

religion, sex, national origin, handicap or age. 

29 C.F.R. § 1614.302 states, in relevant part 

An aggrieved person may initially file a mixed case complaint with an 

agency pursuant to this part or an appeal on the same matter with the 

2007-3027 6
Thus, the regulatory framework makes various options available to a claimant. 

However, a claimant must choose to pursue one path and “cannot simultaneously 

litigate the same case in the United States Courts and in the administrative process.” 

Connor, 15 F.3d at 1065 (quoting Colon v. Chairman of Bd. of Dirs. of Fed. Deposit Ins. 

Corp., 723 F. Supp. 842, 844 (D.P.R. 1989)). 

Mr. Urban was advised via attachment A to the RIF notice on July 19, 2005, of 

his right to elect one of the available forums to challenge the RIF action and that “[t]he 

first appeal that you file will be considered the forum in which you have elected to 

pursue your claim.” Mr. Urban was a party to the district court class action at the time 

he received the RIF notice; yet it was not until January 23, 2006, that he attempted to 

withdraw from the class action suit⎯over two months after he filed his Board appeal 

and over six months after he received notice of his several appeal options. Under these 

circumstances, the Board did not err in determining that Mr. Urban elected to pursue his 

age discrimination challenge to the RIF action in district court. Therefore it did not have 

jurisdiction over his subsequent appeal to the Board concerning the same matter. 

Accordingly, the Board did not err in dismissing the discrimination claim. 

However, the Board also dismissed Mr. Urban’s appeal with respect to his nondiscrimination claims. As noted, these are the claims set forth in paragraphs 3b, 3c, 

 

MSPB pursuant to 5 CFR 1201.151, but not both. An agency shall inform 

every employee who is the subject of an action that is appealable to the 

MSPB and who has either orally or in writing raised the issue of 

discrimination during the processing of the action of the right to file either a 

mixed case complaint with the agency or to file a mixed case appeal with 

the MSPB. The person shall be advised that he or she may not initially file 

both a mixed case complaint and an appeal on the same matter and that 

whichever is filed first shall be considered an election to proceed in that 

forum. 

2007-3027 7
and 3d of his November 2, 2005 appeal document. These claims appear to be distinct 

from the discrimination claim, which is set forth in paragraph 3a of the November 2, 

2005 appeal document and which was part of the class action suit. Our reasoning in 

Connor is not dispositive of the Board’s jurisdiction over these other claims. 

The Board’s jurisdiction is not plenary; it is limited to those matters over which it 

has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Sys. Prot. Bd., 

759 F.2d 9, 10 (Fed. Cir. 1985). The Board noted in this case that it generally lacks 

jurisdiction to consider an appeal regarding nonselection for a vacant position. Urban, 

slip op. at 9 (citing Nashkin v. Dep’t of Justice, 98 M.S.P.R. 524, 528 (2005); 

Metzenbaum v. Gen. Servs. Admin., 83 M.S.P.R. 243, 246 (1999)). This proposition is 

correct in that there is no general right of appeal to the Board available to individuals 

who are not selected for a particular position within an agency. However, Mr. Urban 

argues that the Board has jurisdiction over claims involving “[e]mployment of another 

applicant when the person who wishes to appeal to the Board is entitled to priority 

employment consideration after a reduction-in-force action,” quoting 5 C.F.R. 

§ 1201.3(a)(13). The Board did not consider this potential basis for jurisdiction. Neither 

did it consider whether any of the other non-discrimination claims in paragraphs 3b, 3c, 

and 3d of the November 2, 2005 appeal document provided it with jurisdiction. 

For the foregoing reasons, the final decision of the Board is affirmed insofar as 

the Board (i) held, based upon Connor, that it lacked jurisdiction over Mr. Urban’s 

discrimination claim and (ii) dismissed that claim. However, we vacate the balance of 

the Board’s dismissal of Mr. Urban’s appeal and remand the case to the Board for 

further proceedings. On remand, after briefing from the parties, the Board should 

2007-3027 8
2007-3027 9

determine whether it has jurisdiction over any of Mr. Urban’s non-discrimination claims, 

those being the claims set forth in paragraphs 3b, 3c, and 3d of the November, 2, 2005 

appeal document.