N OTE : This order is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

LARRY BROOKS, Petitioner,

v.

DEPARTMENT OF THE AI R FORCE, Respondent.

______________________

2013

- 3033

______________________

Petition for review of the Merit System s Protection
Board in No. AT0752120103 -I-1

______________________

ON MOTION

______________________

Before N EWMAN

, P ROST

, and R EYNA

, Circuit Judges

.
R EYNA

, C ircuit Judge

.
O R D E R

In light of Larry Brooks ’s and the Department of the Air Force’s responses to this court’s show cause order, we
consider whether this case should be dismissed or tran sferred to a district court pursuant to 28 U.S.C. § 1631.

Brooks was removed from his position as a Sheet Metal Mechanic Supervisor at Robins Air Force Base Case: 13-3033 Document: 32 Page: 1 Filed: 11/21/2013BROOKS v. AIR FORCE 2

based on a charge of inappropriate conduct . Brooks appealed the removal to the Merit Systems Protection Board. Brooks argued that he did not make any of the

statements attributed to him and asserted two affirmative
defenses – race and age discrimination. The Administr ative Judge affirmed the Air Force’s removal of Brooks, and the full Board denied Brooks’s petition for review.

Brooks then filed a petition for review with this court

. The petition was subsequently dismissed for failure to

submit a required Statement Concerning Discrimination
in accordance with the Rules of Practice. Brooks moved to reopen the appeal. The court granted the motio n “for the purposes of addressing whether this court has jurisdiction due to the Supreme Court’s recent decision in Kloeckner v.
Solis

, [___ U.S. ___, 133 S.Ct. 596 (2012). ] ” The parties were directed to respond why this case should not be dismissed or transferred to a district court in light of

Kloeckner

.
In Kloeckner , the Supreme C ourt held that a federal employee who claims that an agency action appealable to

the Board violates an antidiscrimination statute li sted in
5 U.S.C. § 7702(a)(1) should seek judicial review in di strict court, not in the Federal Circuit. Id. at 607. This case involves an agency removal action that the employee “may appeal to the Merit Systems Protection Board,” and

in which the employee “alleges that a basis fo r the action was discrimination[.]” 5 U.S.C. § 7702(a)(1). Judicial review is therefore assigned to the district court.

Brooks and the Department of the Air Force argue that this court has jurisdiction to hear the petition fo r review . B ecause Brooks’s proffered Statement Concer ning Discrimination indicates that “[a]ny claim of discrim ination by reason of race, sex, age, national origin, or handicapped condition raised before and decided by the [Board] . . . has been abandoned or will not be raised or continued in this or any other court.” According to the Case: 13-3033 Document: 32 Page: 2 Filed: 11/21/2013BROOKS v. AIR FORCE 3

parties, this “waiver” of any discrimination claim triggers this court’s jurisdiction. We disagree.

Brooks ’s appeal before the Boa rd alleged discrimin ation based on age a nd race. As the Board recently o bserved, there is nothing in the statutes suggesting “that the appellant can transform a mixed case into a nonmixed case after the Board has issued a decision simply by not seeking judicial review on a discrimination claim. ” Mills
v. USPS , 119 M.S.P.R. 482 ¶9 (2013) (concluding that “from now on the Board will not inform appellants in mixed cases that they may seek judicial review before the Federal Circuit on issues other than discrimination”) ; see also Doe v. Dep’t of Jus tice , No. 2012

- 3204, 2013 U.S. App. Lexis 9095 (Fed. Cir. May 3, 2013) (transferring to the district court a petition for review in which the petitioner had indicated in his Statement Concerning Discrimin ation that any claim of discrimination was abandoned ).

Because Kloeckner is clear that judicial review of a

Board decision in a mixed case that includes a discrimin ation claim is assigned to the district court, rather than this court, we transfer the petition for review to the appropriate district court, the United States District
Court for the Middle District of Georgia

. Accordingly,

I T I S O RDERED T HAT :

The petition is transferred to the United States Di strict Court for the Middle Distric t of Georgia pursuant to 28 U.S.C. § 1631.

F OR THE C OURT

/s/ Daniel E. O’Toole

Daniel E. O’Toole

Clerk of Court

s25 Case: 13-3033 Document: 32 Page: 3 Filed: 11/21/2013