Raymond H. Wilkes v. Department of the Treasury

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3294
RAYMOND H. WILKES,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
ON MOTION
Before BRYSON, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit
Judge.
PER CURIAM.
O R D E R
The Department of the Treasury moves to waive the requirements of Fed. Cir. R.
27(f) and to dismiss Raymond H. Wilkes’ petition for review of the decision of the Merit
Systems Protection Board in Wilkes v. Treasury, No. CH-0432-04-0774-I-1 (Apr. 20,
2006). Wilkes opposes and submits an amended opposition.
Treasury removed Wilkes from his position as a revenue agent and Wilkes
appealed to the Board alleging, inter alia, discrimination based on race. The
Administrative Judge (AJ) determined that Wilkes had not proven his discrimination
claim and affirmed the removal action. The Board denied Wilkes’ petition for review of
the AJ’s decision. Wilkes sought review of the Board’s decision both in this court and
with the Equal Employment Opportunity Commission (EEOC). EEOC determined that
Wilkes’ petition was untimely and issued a notice of denial of consideration on June 22,

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2006. On August 15, 2006, Wilkes filed a complaint in the United States District Court
for the Northern District of Illinois. Wilkes v. Paulson, No. 06-CV-04411. The district
court entered judgment dismissing Wilkes’ action on January 24, 2007.
Treasury argues that because Wilkes pursued judicial review in district court of
both discrimination and non-discrimination issues decided by the Board, this court lacks
jurisdiction over his petition for review. Treasury asserts that Wilkes’ brief reflects that
he seeks review of discrimination issues in this court and that pursuant to this court’s
decision in Williams v. Dept. of the Army, 715 F.2d 1485 (Fed. Cir. 1983) (en banc), this
court lacks jurisdiction to review discrimination issues.
Wilkes contends that pursuant to Chappell v. Chao, 388 F.3d 1373 (11th Cir.
2004), if a petitioner seeks review of a Board decision in both a district court and this
court, the district court case would be “overruled” by the filing in this court.
The Eleventh Circuit’s decision in Chappell is not on point. In that case, the
Eleventh Circuit affirmed the district court’s determination that it lacked jurisdiction
because this court had already decided the petitioner’s case. In contrast, in the present
case the district court has already dismissed Wilkes’ case.
Pursuant to this court’s en banc decision in Williams, a petitioner seeking review
of a Board decision involving discrimination issues may either waive the discrimination
issues and seek review of non-discrimination issues in this court or seek review of both
discrimination and non-discrimination issues in a district court. Bifurcation of the
discrimination and non-discrimination issues between a district court and this court is
impermissible. Williams at 1491. Thus, we dismiss.
Accordingly,
2006-3294 2

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IT IS ORDERED THAT:
(1) Treasury’s motion to waive the requirements of Fed. Cir. R. 27(f) is
granted.
(2) Treasury’s motion to dismiss is granted.
(3) Each side shall bear its own costs.
FOR THE COURT
April 3, 2007 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Raymond H. Wilkes
Steven M. Mager, Esq.
s17
ISSUED AS A MANDATE: April 3, 2007
2006-3294 3

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