Case: 21-2194 Document: 11 Page: 1 Filed: 02/09/2022
United States Court of Appeals
for the Federal Circuit
______________________
JULIAN R. ASH,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2021-2194
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-844E-20-0536-I-1.
______________________
JULIAN R. ASH, Lutherville, MD, pro se.
CHRISTOPHER L. HARLOW, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent.
______________________
Before DYK, PROST, and HUGHES, Circuit Judges.
PER CURIAM.
ORDER
On October 7, 2021, we directed the parties to show
cause whether this case should be transferred to a United
States district court as a mixed case under
5 U.S.C.
§ 7703(b)(1)(A). In response, the Office of Personnel
Case: 21-2194 Document: 11 Page: 2 Filed: 02/09/2022
2 ASH v. OPM
Management asserted that Julian R. Ash presented a
mixed case and that we should transfer this case to the
United States District Court for the District of Maryland.
Because this case involves (1) an action that is appealable
to the Merit Systems Protection Board and (2) a discrimi-
nation allegation, we conclude that it is a mixed case and
therefore order the case transferred to the District of Mar-
yland.
I
In September 2020, Julian R. Ash appealed to the
Merit Systems Protection Board, challenging a reconsider-
ation decision of the Office of Personnel Management that
denied his application for disability retirement benefits.
Mr. Ash asserted affirmative defenses, including disparate
treatment based on race and prior protected activity. The
Board affirmed OPM’s reconsideration decision and con-
cluded, among other things, that Mr. Ash failed to prove
his affirmative defenses. Mr. Ash appeals, and his submis-
sions before this court indicate that he wishes to continue
pursuing his discrimination claim.
II
Under
5 U.S.C. § 7703(b)(1)(A), an appellant generally
must appeal a final Board decision to the Federal Circuit.
But if the appellant (1) has been affected by an action that
the appellant may appeal to the Board and (2) alleges that
a basis for the action was discrimination prohibited by enu-
merated federal statutes, then the appellant is said to have
brought a “mixed case” and must seek judicial review in
federal district court. Kloeckner v. Solis,
568 U.S. 41, 44, 56
(2012) (citing
5 U.S.C. § 7702(a)(1),
29 C.F.R. § 1614.302
(2012)); Perry v. MSPB,
137 S. Ct. 1975, 1985 (2017). One
of those enumerated federal statutes is 42 U.S.C. § 2000e-
16, which prohibits racial discrimination with respect to
“personnel actions.”
Case: 21-2194 Document: 11 Page: 3 Filed: 02/09/2022
ASH v. OPM 3
Some adverse personnel actions may not be appealed
to the Board and therefore do not create mixed cases. An
affected employee has a right to appeal an agency’s deci-
sion to the Board “[i]f (but only if) the action is particularly
serious—involving, for example, a removal from employ-
ment or a reduction in grade or pay.” Kloeckner,
568 U.S.
at 44. And some cases “by definition are never ‘mixed
cases.’” Young v. MSPB,
961 F.3d 1323, 1328 (Fed. Cir.
2020). For example, Individual Right of Action appeals can-
not be mixed cases because “[d]iscrimination claims may
not be raised in that context.”
Id. at 1327 (citing
5 C.F.R.
§ 1209.2(c)).
Usually, the serious adverse personnel action in a
mixed case is employee termination. See, e.g., Lang v.
MSPB,
219 F.3d 1345, 1347 (Fed. Cir. 2000) (“Lang be-
lieved his termination was a discriminatory ac-
tion . . . . Thus, Lang pled a mixed case complaint . . . .”).
Here, Mr. Ash challenges a different adverse action: a dis-
ability retirement decision. We have not directly spoken on
this issue, 1 so we take this opportunity to clarify that an
appeal arising from a benefits decision can be a “personnel
action” giving rise to a mixed case over which we do not
have jurisdiction.
1 In Hirschfield v. OPM, 725 F. App’x 934 (Fed. Cir.
2018), a benefits case, we recognized that “[w]hen an em-
ployee complains of a personnel action appealable to the
board and asserts that the action was prompted, in whole
or part, by sex discrimination . . . he or she must appeal an
adverse board decision to a federal district court rather
than this court.” Id. at 936. But we ultimately concluded
that we had jurisdiction because “Hirschfield’s pro se fil-
ings are most reasonably read not to assert a claim of un-
lawful sex discrimination, but instead to assert that . . . the
statute . . . is unconstitutional.” Id.
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4 ASH v. OPM
Removal is not the only adverse action that can create
a mixed case. See Kloeckner,
568 U.S. at 44 n.1 (listing
other actions that an employee can appeal to the Board).
Per
5 U.S.C. § 7702(a)(1)(A), a challenge to an adverse
agency personnel action can be a mixed case as long as the
adverse action can be appealed to the Board. An OPM de-
cision that adversely affects retirement “rights or benefits,”
like the decision that Mr. Ash appeals in this case, is a “per-
sonnel action.”
5 U.S.C. § 8461(e)(1); Miller v. OPM,
449
F.3d 1374, 1377–78 (Fed. Cir. 2006).
Here, Mr. Ash (1) raises an adverse personnel action
that is appealable to the Merit Systems Protection Board
and (2) alleges discrimination. So, we conclude that this ap-
peal is a mixed case over which we do not have jurisdiction.
We therefore order this case transferred to the District of
Maryland.
IT IS ORDERED THAT:
This case is transferred to the United States District
Court for the District of Maryland.
FOR THE COURT
February 9, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
