Richard Hornsby v. Federal Housing Finance Agency

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD HORNSBY,
Petitioner
v.
FEDERAL HOUSING FINANCE AGENCY,
Respondent
______________________
2023-1518
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-15-0576-I-2.
______________________
Before D YK, CUNNINGHAM , and STARK, Circuit Judges.
P ER CURIAM .
O R D E R
Having considered the parties’ responses to this court’s
March 20, 2023, show cause order, we agree with the par-
ties that we lack jurisdiction and that this matter should
be transferred back to the United States District Court for
the District of Columbia.
Richard Hornsby appealed to the Merit Systems Pro-
tection Board (“Board”), arguing that his removal from the
Federal Housing Finance Agency (“FHFA”) was based, in
part, on discriminatory retaliation. After the Board
Case: 23-1518 Document: 26 Page: 1 Filed: 10/26/2023

-- 1 of 3 --

HORNSBY v. FEDERAL HOUSING FINANCE AGENCY 2
affirmed the removal, Mr. Hornsby filed suit in the United
States District Court for the District of Columbia, where he
continued to pursue his argument that his removal from
the agency was discriminatory retaliation.
FHFA moved to dismiss, or, in the alternative, for sum-
mary judgment, based on a failure to exhaust the discrim-
inatory retaliation claim and a resulting lack of subject
matter jurisdiction over the remaining claims. The district
court largely agreed, dismissing the discriminatory retali-
ation claim and concluding that it lacked jurisdiction over
the remaining claims because dismissal of the discrimina-
tory retaliation claim meant it was no longer a mixed case;
instead of dismissing, however, the court transferred to
this court. Hornsby v. Thompson, No. 1:22-cv-1472, Dkt.
No. 14 (D.D.C. Jan. 17, 2023). Mr. Hornsby’s filings here
again indicate that he continues to seek review of his dis-
criminatory retaliation claim.
In general, we have jurisdiction to review final Board
decisions except in “[c]ases of discrimination subject to the
provisions of [5 U.S.C. §] 7702,” 5 U.S.C. § 7703(b)(2). See
5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9). Those so-
called “mixed cases” “shall be filed in district court.”
Kloeckner v. Solis, 568 U.S. 41, 50 (2012); see 5 U.S.C.
§ 7703(b)(2); Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 432
(2017). For a case to be a mixed case, and hence to fall
outside of our review authority, there must be a complaint
of an agency action that is appealable to the Board and at-
tributed, in whole or in part, to covered discrimination.
Perry, 582 U.S. at 422; see 5 U.S.C. § 7702(a)(1). Here,
there is no dispute that Mr. Hornsby’s allegations before
the Board satisfy those requirements. Nor is there any
question that Mr. Hornsby has continued to pursue his dis-
criminatory retaliation claim at every stage of these pro-
ceedings.
The parties now agree (and so do we) that the district
court’s dismissal of Mr. Hornsby’s discriminatory
Case: 23-1518 Document: 26 Page: 2 Filed: 10/26/2023

-- 2 of 3 --

HORNSBY v. FEDERAL HOUSING FINANCE AGENCY 3
retaliation claim did not divest that court of jurisdiction
over the remaining claims or otherwise convert this mixed
case into one that we have jurisdiction to review. See ECF
Nos. 24, 25. As we held in Williams v. Department of Army,
“where jurisdiction lies in the district court under 5 U.S.C.
§ 7703(b)(2), the entire action falls within the jurisdiction
of that court and this court has no jurisdiction.” 715 F.2d
1485, 1491 (Fed. Cir. 1983) (en banc). See Dedrick v. Berry,
573 F.3d 1278, 1281–82 (Fed. Cir. 2009) (holding that
transfer is appropriate because we lack jurisdiction even
after the dismissal of a discrimination claim); see also
Punch v. Bridenstine, 945 F.3d 322, 330–31 (5th Cir. 2019)
(noting that “every court of appeals to consider the question
has prohibited bifurcation”). Although “we are cognizant
of the Supreme Court’s caution against engaging in ‘per-
petual game[s] of jurisdictional ping-pong,’ Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988),”
Dedrick, 573 F.3d at 1281 n.1, we agree with the parties
that, pursuant to 28 U.S.C. § 1631, transfer back to the
District Court for the District of Columbia is appropriate
under the circumstances so that the court may conduct ap-
propriate proceedings with respect to the remaining
claims.
Accordingly,
I T I S O RDERED T HAT :
This matter and all of the filings are transmitted to the
United States District Court for the District of Columbia
pursuant to 28 U.S.C. § 1631.
October 26, 2023
Date
F OR THE COURT
/s/ Jarrett B. Perlow
Jarrett B. Perlow
Clerk of Court
Case: 23-1518 Document: 26 Page: 3 Filed: 10/26/2023

-- 3 of 3 --