Federal Circuit disposition — 24-145

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In Re RICHARD CORNELIUS JACKSON,
Petitioner
______________________
2024-145
______________________
On Petition for Writ of Mandamus to the Merit Sys-
tems Protection Board in Nos. CH-1221-23-0376-W-1 and
CH-1221-24-0117-W-1.
______________________
ON PETITION
______________________
Before REYNA, LINN , and STOLL , Circuit Judges.
PER C URIAM.
O R D E R
Richard Cornelius Jackson, who has several pending
matters before the Merit Systems Protection Board, peti-
tions for a writ of mandamus seeking to compel the Board
to issue final decisions on his individual right of action
(“IRA”) appeals. He also asks for costs. The Board and the
Department of Homeland Security (“DHS”) oppose.
I.
Since March 2023, Mr. Jackson has filed six appeals at
the Board, five of which were assigned to the same
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IN RE JACKSON 2
administrative judge (“AJ”), including the two IRA appeals
at issue here: CH-1221-23-0376-W-1 (“the 0376 appeal”)
and CH-1221-24-0117-W-1 (“the 0117 appeal”).
Mr. Jackson’s 0376 appeal alleges that DHS retaliated
against him for his whistleblower activity by unlawfully ac-
cessing his consumer credit report and suspending him for
five days. On October 30, 2024, the AJ issued an order con-
cluding that the Board had jurisdiction over at least some
of Mr. Jackson’s asserted claims, allowing the case to go
forward. Previously, the AJ resolved, among other things,
Mr. Jackson’s motion for sanctions against DHS, motion for
the AJ’s disqualification, and request to certify the disqual-
ification ruling for interlocutory appeal.
Mr. Jackson’s 0117 appeal alleges that DHS retaliated
against him by issuing a punitively low performance ap-
praisal. Mr. Jackson sought to dismiss the appeal without
prejudice, which the AJ denied in February 2024 for failing
to show any reasonable basis for such request. The AJ also
denied without prejudice Mr. Jackson’s request to join the
appeal with the 0376 appeal and reset the deadline to Feb-
ruary 22, 2024, to respond to the AJ’s order to show why
the Board had jurisdiction over the appeal. Most recently,
on November 4, 2024, the AJ directed Mr. Jackson to con-
firm what claims he intends to advance.
II.
A writ of mandamus is a “drastic and extraordinary
remedy” reserved for “exceptional circumstances.” Cheney
v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (citations
omitted). “In general, three conditions must be satisfied
for a writ to issue.” In re Apple Inc., 979 F.3d 1332, 1336
(Fed. Cir. 2020) (citing Cheney, 542 U.S. at 380–81). First,
“the petitioner must demonstrate a clear and indisputable
right to issuance of the writ.” Id. Second, “the petitioner
must have no other adequate method of attaining the de-
sired relief.” Id. And third, “the court must be satisfied
that the writ is appropriate under the circumstances.” Id.
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IN RE JACKSON 3
This court has recognized that mandamus may be used
to compel unlawfully withheld or unreasonably delayed ac-
tion by the Board. See, e.g., In re Howard, 547 F. App’x
999, 1001 (Fed. Cir. 2013); see also Martin v. O’Rourke, 891
F.3d 1338, 1345 (Fed. Cir. 2018) (recognizing the use of
mandamus more generally for such claims); 5 U.S.C.
§ 706(1); Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d
70 (D.C. Cir. 1984). The standard for granting such relief
is demanding, requiring petitioners to show the delay is
egregious. Howard, 547 F. App’x at 1001 (citing In re Mon-
roe Commc’ns Corp., 840 F.2d 942, 945 (D.C. Cir. 1988)).
Mr. Jackson has not made that showing here.
Mr. Jackson argues that the Board “has ignored its
purported ‘120-day standard,’” ECF No. 2-1 at 7, but he has
not established a clear and indisputable right to having his
IRA appeals decided within that time. To the extent this
argument relies on 5 U.S.C. § 7702(a)(1), that reliance is
misplaced. That provision is expressly limited to so-called
mixed cases and merely permits the filing of a district court
case if no final Board decision is reached by that deadline.
See id. (stating that “the Board shall, within 120 days of
the filing of the appeal, decide both the issue of discrimina-
tion and the appealable action”); § 7702(e)(1). By contrast,
the Board is only expected to issue a decision in IRA ap-
peals “as soon as practicable.” 5 U.S.C. § 1221(f).
Nor can we say that any delay in handling Mr. Jack-
son’s appeals here has been so egregious as to warrant
mandamus relief, given the number of motions that the AJ
has had to resolve since these cases were filed and the re-
cent progress made in the cases. However, we expect that
the AJ will expeditiously rule on jurisdiction in the 0117
appeal and issue decisions in both cases in due course. Un-
der the circumstances, the court cannot say that granting
Mr. Jackson’s request for costs is appropriate.
Accordingly,
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IN RE JACKSON 4
IT IS O RDERED THAT:
The petition is denied.
December 11, 2024
Date
FOR THE C OURT
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