Council v. Dept. of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DARRALYN C. COUNCIL,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2010-3019
__________________________
Petition for review of the Merit Systems Protection
Board in AT0752090091-I-1.
__________________________
Decided: June 11, 2010
__________________________
DARRALYN C. COUNCIL, of Orlando, Florida, pro se.
ELIZABETH A. SPECK, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and STEVEN J.
GILLINGHAM, Assistant Director.
__________________________
COUNCIL v. VA 2
Before RADER, Chief Judge, NEWMAN, and PLAGER,
Circuit Judges.
PER CURIAM.
Darralyn C. Council seeks review of a decision of the
Merit Systems Protection Board (“Board”) sustaining his
removal from the Department of Veterans Affairs (“VA” or
“agency”). 1 Because we lack jurisdiction to review the
Board’s decision, we dismiss the appeal.
The agency removed Mr. Council from his position as
a supply technician at the VA Medical Center (“VAMC”)
in Orlando, Florida. The charges against him related to
his alleged improper retention of documents containing
sensitive patient information from his prior employment
at the VAMC in Houston, Texas. The agency became
aware that Mr. Council possessed these documents during
discovery in connection with one of several Equal Em-
ployment Opportunity (“EEO”) complaints filed by Mr.
Council alleging discrimination at the Houston VAMC.
Mr. Council appealed his removal to the Board. The
administrative judge assigned to the case rejected his
claim that he was wrongfully terminated as well as his
claims that he was subjected to discrimination based on
race and that the agency’s action was in retaliation for his
prior EEO activity. The administrative judge’s decision
became the final decision of the Board when the Board
denied Mr. Council’s petition for review.
We agree with the Government that this matter must
be dismissed because it is a “mixed” case. A mixed case is
1 Council v. Dep’t of Veterans Affairs, No. AT-0752-
09-0091-I-1 (June 11, 2009) (initial decision); Council v.
Dep’t of Veterans Affairs, No. AT-0752-09-0091-I-1 (Oct. 8,
2009) (final order denying petition for review).
3 COUNCIL v. VA
one in which an employee has been affected by an agency
action that is appealable to the Board and alleges that
discrimination was a basis for the action. See 5 U.S.C.
§ 7702(a)(1); Williams v. Dep’t of the Army, 715 F.2d 1485,
1487 (Fed. Cir. 1983) (en banc). This court lacks jurisdic-
tion to review the Board’s decision on the merits in a
mixed case unless the discrimination claim is waived.
Lang v. Merit Sys. Prot. Bd., 219 F.3d 1345, 1347 n.2 (“If
an individual wishes to appeal to this court from an
unfavorable decision in a mixed case, he must abandon
his discrimination claim and proceed before us solely with
respect to the adverse personnel action.”). If an employee
wishes to challenge the Board’s decision regarding both
discrimination and non-discrimination claims, judicial
review is available in the federal district courts, which
have exclusive jurisdiction over mixed cases. Williams,
715 F.2d at 1491.
Mr. Council alleged before the Board that discrimina-
tion and retaliation were among the bases for the agency’s
removal decision, and he has not waived those claims on
appeal. On the statement concerning discrimination that
he filed pursuant to Federal Circuit Rule 15(c), Mr. Coun-
cil did not check the box indicating that any claim of
discrimination “has been abandoned or will not be raised
or continued in this or any other court.” 2 Furthermore,
Mr. Council continues to raise allegations of discrimina-
tion and retaliation in the briefs he has filed with this
court. In addition, Mr. Council has filed a case in the
United States District Court for the Middle District of
2 Mr. Council checked the box indicating that he
seeks review only of the Board’s dismissal for lack of
jurisdiction or untimeliness, issues that are not relevant
in this case because the Board did not dismiss the appeal
for lack of jurisdiction or untimeliness.
COUNCIL v. VA 4
Florida 3 that includes claims of wrongful discharge,
discrimination, and retaliation, the same claims at issue
in this appeal. Because Mr. Council has not waived his
discrimination claims, we dismiss the appeal for lack of
jurisdiction.
DISMISSED
3 Council v. Shinseki, No. 6:09-cv-01406-MSS-GJK
(M.D. Fla. filed Aug. 11, 2009).