John Doe v. Department of Justice

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JOHN DOE,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
__________________________
2012-3204
__________________________
Petition for review of the Merit Systems Protection
Board in No. CH0752090404-I-1.
__________________________
ON MOTION
__________________________
Before L OURIE, BRYSON, and MOORE, Circuit Judges.
L OURIE, Circuit Judge.
O R D E R
In light of John Doe’s and the Department of Justice’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.
Case: 12-3204 Document: 38 Page: 1 Filed: 05/03/2013

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JOHN DOE V. DOJ 2
John Doe previously moved for a stay of the remand
proceedings ordered by the Merit Systems Protection
Board or, in the alternative, for a writ of mandamus to
direct the Board to reinstate him and to award back pay
and attorney fees. The Department of Justice opposed
and moved to dismiss Doe’s petition for review for lack of
jurisdiction. Doe replied and opposed dismissal. The
Department of Justice replied.
In response to those motions, this court ordered the
parties to respond why this case should not be dismissed
or transferred to a district court, in light of the Supreme
Court’s recent decision of Kloeckner v. Solis, ___ U.S. ___,
133 S. Ct. 596 (2012). In Kloeckner, the Supreme Court
held that a federal employee who claims that an agency
action appealable to the Merit Systems Protection 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. This case involves an
agency action removal that the employee “may appeal to
the Merit Systems Protection Board,” and in which the
applicant “alleges that a basis for the action was discrim-
ination[.]” 5 U.S.C. § 7702(a)(1). Judicial review is there-
fore assigned to the district court. See Conforto v. Merit
Sys. Prot. Bd., __ F.3d __, No. 2012-3119 (Fed. Cir. Apr.
18, 2013) (Federal Circuit has jurisdiction if underlying
action would not be appealable to the Merit Systems
Protection Board).
The Department of Justice argues that dismissal is
required because judicial review is only appropriate for a
final board order, and it argues that the order from which
Doe appeals is not final. Doe argues that transfer is
appropriate, in light of Kloeckner.
Because Kloeckner is clear that judicial review of a
Board decision in a mixed case, such as this, that includes
a discrimination claim, is assigned to the district court,
rather than this court, we agree with Doe that transfer is
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JOHN DOE V. DOJ 3
the appropriate remedy. The Department of Justice may
raise its arguments regarding the finality of the Board
decision in the district court.
Upon consideration thereof,
I T I S O RDERED T HAT :
(1) This appeal is transferred to the United States
District Court for the District of Columbia pursuant to 28
U.S.C. § 1631.
(2) The motions to stay the remand proceedings and
for writ of mandamus are moot.
(3) All other pending motions are moot.
F OR T HE COURT
/s/ Jan Horbaly
Jan Horbaly
Clerk
s24
Case: 12-3204 Document: 38 Page: 3 Filed: 05/03/2013

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