NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

LARRY BROOKS,

Petitioner,

v.

DEPARTMENT OF THE AIR FORCE,

Respondent.

______________________ 

2013-3033

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT0752120103-I-1 

______________________ 

ON MOTION

______________________ 

Before NEWMAN, PROST, and REYNA, Circuit Judges. 

REYNA, Circuit 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 transferred 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

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2 BROOKS v. AIR FORCE

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 Administrative 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 motion “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 Court held that a federal 

employee who claims that an agency action appealable to 

the Board violates an antidiscrimination statute listed in 

5 U.S.C. § 7702(a)(1) should seek judicial review in district 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 for 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 for 

review. Because Brooks’s proffered Statement Concerning Discrimination indicates that “[a]ny claim of discrimination 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 

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BROOKS v. AIR FORCE 3

parties, this “waiver” of any discrimination claim triggers 

this court’s jurisdiction. We disagree. 

Brooks’s appeal before the Board alleged discrimination based on age and race. As the Board recently observed, 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 Justice, 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 Discrimination 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 discrimination 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,

IT IS ORDERED THAT: 

The petition is transferred to the United States District Court for the Middle District of Georgia pursuant to 

28 U.S.C. § 1631.

 FOR THE COURT

 /s/ Daniel E. O’Toole

 Daniel E. O’Toole

Clerk of Court

s25

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