Neal v. Cohen ( 2000 )


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  •                   IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 99-10207
    Summary Calendar
    DEXTER E. NEAL,
    Plaintiff-Appellant,
    versus
    WILLIAM S. COHEN, Secretary, Department of Defense, et al.,
    Defendants,
    WILLIAM S. COHEN, Secretary, Department of Defense;
    BEN L. ERDREICH, Chairman Merit Systems Protection Board;
    MERIT SYSTEMS PROTECTION BOARD;
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:97-CV-1534-BC
    --------------------
    January 26, 2000
    Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
    PER CURIAM:1
    Dexter E. Neal appeals the district court’s dismissal of his
    complaint,     which    alleged   that    (i)    his    employer,   the    Defense
    Logistics Agency, and the Merit Systems Protection Board (MSPB)
    committed    procedural     errors      during    the    adjudication      of   his
    challenge    to   a    demotion   and    (ii)    the    MSPB   committed    racial
    discrimination in violation of Title VII when it held against him
    1
    Pursuant to 5TH CIR. R. 47.5, the court has determined
    that this opinion should not be published and is not precedent
    except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    on the DLA’s petition for review of an administrate judge’s order.
    The   district      court    concluded        that     it    had     subject-matter
    jurisdiction over Neal’s complaint. However, it held that the MSPB
    could not be sued by Neal under Title VII for discrimination and
    that the MSPB was not a proper respondent in any action challenging
    its resolution of an employing agency’s petition for review.                       The
    court rejected the claims against the DLA on the merits.
    In the district court, the MSPB and its chairman argued that
    subject-matter jurisdiction was lacking.               Despite granting motions
    to dismiss under Fed. R. Civ. P. 12(b)(1), the district court
    disagreed, and none of the parties has questioned the subject-
    matter jurisdiction on appeal.             However, we must examine the basis
    of the district court’s subject-matter jurisdiction whenever “it
    appears at all questionable.”           Odeco Oil & Gas Co., Drilling Div.
    v. Bonnette, 
    4 F.3d 401
    , 403 n.2 (5th Cir. 1993).                    We do so here.
    In Blake v. Dep’t of the Air Force, 
    794 F.2d 170
    , 172 (5th
    Cir. 1986), we noted that the United States Court of Appeals for
    the Federal Circuit typically has exclusive jurisdiction to review
    the final orders of the MSPB.               See also 
    28 U.S.C. § 1295
    (a); 
    5 U.S.C. § 7703
    (b).      The    only    exception       is    for   “[c]ases    of
    discrimination subject to the provisions of” 
    5 U.S.C. § 7702
    .
    Blake, 
    794 F.2d at 172
    .           When an employee brings one of these so-
    called   “mixed      cases,”        involving        both    discrimination        and
    nondiscrimination claims, jurisdiction is proper in a district
    court.   
    Id.
        However, if the “discrimination claim . . . [has been]
    eliminated from the case,” the district court lacks subject-matter
    jurisdiction,      and      the     Federal     Circuit          retains   exclusive
    jurisdiction over the case.
    The district court held that Neal’s case was “mixed” because
    he    had    alleged     racial   discrimination    by    the     MSPB   during   its
    adjudication of his case.1           We conclude, however, that a claim of
    adjudicatory discrimination by the MSPB does not make a case
    “mixed.”         As noted, in these circumstances, district courts have
    jurisdiction only over “[c]ases of discrimination subject to the
    provisions of” § 7702.            See § 7703(b)(2).      Section 7702(a)(1), in
    turn, applies only to “the case of any employee . . . who has been
    affected by an action which the employee . . . may appeal to the
    Merit Systems Protection Board, and [who] alleges that a basis for
    the    action      was   discrimination     prohibited      by”    several   listed
    statutes, including Title VII.            As this language makes clear, the
    section refers only to allegations of employment discrimination by
    an employing agency, allegations that the employee “may appeal to
    the” MSPB.        It does not encompass allegations that the MSPB itself
    committed discrimination in deciding an employee’s case.                    Any such
    claim       of   adjudicatory     bias   properly   would    be    raised    in   the
    employee’s appeal of the MSPB’s order in the Federal Circuit.
    In holding that it had jurisdiction over Neal’s complaint, the
    district court cited Williams v. Rice, 
    983 F.2d 177
    , 179-80 (10th
    Cir. 1993), and Morales v. MSPB, 
    932 F.2d 800
    , 801-02 (9th Cir.
    1991). In these cases, however, the employee presented both claims
    of discrimination and nondiscrimination by the employing agency
    itself.          Accordingly, these cases involved issues covered by §
    1
    In the district court and on appeal, Neal has disclaimed
    any allegation of racial discrimination by the DLA in its
    demotion of him.
    7702(a)(1). Neither case involved the situation presented here, in
    which the employee’s only discrimination claim is against the MSPB.
    Williams and Morales are inapposite.
    The district court also cited Afifi v. U.S. Dep’t of Interior,
    
    924 F.2d 61
    , 64 (4th Cir. 1991).   As the district court realized,
    Afifi authorizes a district court, in some situations, to consider
    an employee’s nondiscrimination claims after it has disposed of the
    discrimination claims.    
    Id. at 63
    .    When, as here, the case
    presented to the district court is not “mixed,” the district court
    lacks jurisdiction.   
    Id. at 62
    ; Blake, 
    794 F.2d at 173
    .
    Because the district court lacked jurisdiction over Neal’s
    complaint, we VACATE the district court’s judgment and REMAND the
    matter for the district court to dismiss Neal’s complaint.