Bullock v. Department of Air Force

ORDER

MICHEL, Circuit Judge.

The Department of the Air Force moves to waive the requirements of Fed. Cir. R. 27(f) and to dismiss Donald E. Bullock’s petition for review.

Bullock was removed by the Air Force from his position as High Voltage Electrician Supervisor on the grounds, inter alia, that he was unfit for duty. Bullock alleged as a defense that the Air Force discriminated against him based on a perceived disability. The Administrative Judge (AJ) determined that Bullock had proven his discrimination defense. The Merit Systems Protection Board affirmed the AJ’s decision reversing the removal of Bullock, but reversed the AJ’s determination that the Air Force discriminated against Bullock based upon a perceived disability.

Bullock indicates in his Fed. Cir. R. 15(e) statement concerning discrimination that no claim of discrimination has been or will be made in this case. However, Bullock states in his brief that the issue on appeal is whether the “Board incorrectly determine[d] that the [AJ] erred in finding that the agency discriminated against the petitioner based upon a perceived disability.” Thus, the only issue Bullock challenges is the discrimination issue.

The Ail' Force argues that dismissal is proper because Bullock prevailed in his removal action. We do not reach that issue because we dismiss on another ground. This court does not have jurisdiction to review a final Board decision in “situations in which the employee is challenging judicially the board’s determinations of ... discrimination ... issues.” Williams v. Department of the Army, 715 F.2d 1485, 1493 (Fed.Cir.1983) (en banc); see also 5 U.S.C. § 7703(b). Under these circumstances, the court lacks jurisdiction to consider the merits of Bullock’s petition for review.

Accordingly,

IT IS ORDERED THAT:

(1) The Air Force’s motion to waive the requirements of Rule 27(f) is granted.

(2) The Air Force’s motion to dismiss is granted.

(3) Each side shall bear its own costs.