Timothy Goodrich v. Department of the Army

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TIMOTHY GOODRICH,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-21-0270-I-1.
-------------------------------------------------
TIMOTHY GOODRICH,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2023-1536
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-844E-22-0380-I-1.
______________________
Before P ROST , REYNA, and STARK, Circuit Judges.
Case: 23-1536 Document: 21 Page: 1 Filed: 06/14/2023

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GOODRICH v. ARMY 2
P ER CURIAM .
O R D E R
The government responds to the court’s April 5, 2023,
order urging the court to transfer Timothy Goodrich’s peti-
tion for review as it relates to Goodrich v. Army, PH-0752-
21-0270-I-1, and to otherwise dismiss as premature. Mr.
Goodrich has not filed a response.
Mr. Goodrich’s petition seeks review of decisions in two
separate Merit Systems Protection Board proceedings: SF-
844E-22-0380-I-1 and PH-0752-21-0270-I-1. In SF-844E-
22-0380-I-1, the administrative judge issued an initial de-
cision affirming the Office of Personnel Management’s de-
nial of disability retirement. In PH-0752-21-0270-I-1, the
administrative judge’s initial decision affirmed Mr.
Goodrich’s removal from the Department of the Army. Mr.
Goodrich filed timely petitions for review at the Board in
both matters, and those petitions remain pending. Mr.
Goodrich’s filings at this court indicate that he raised
claims of discrimination in the removal action that he does
not wish to abandon. See ECF No. 8 at 1, 3.
We lack jurisdiction to review a “mixed case” from the
Board—one in which a federal employee (1) complains of
having suffered a serious adverse personnel action appeal-
able to the Board and (2) attributes the adverse action, in
whole or in part, to bias prohibited by certain federal anti-
discrimination laws. See Harris v. SEC, 972 F.3d 1307,
1317–18 (Fed. Cir. 2020); Perry v. Merit Sys. Prot. Bd., 582
U.S. 420, 426 (2017) (holding that federal district court is
the proper forum for review of mixed cases from the Board);
5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9).
In PH-0752-21-0270-I-1, we agree with the government
that Mr. Goodrich sought the Board’s review of an adverse
employment action within the Board’s jurisdiction (re-
moval) on the basis that it was discriminatory. His case
therefore belongs in federal district court. We transfer that
Case: 23-1536 Document: 21 Page: 2 Filed: 06/14/2023

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GOODRICH v. ARMY 3
matter to the United States District Court for the Western
District of Washington where he was employed. See 5
U.S.C. § 7702(e)(1)(B) (allowing an employee in certain cir-
cumstances to file a civil action if “there is no judicially re-
viewable action” after “the 120th day following the filing of
an appeal with the Board”); Butler v. West, 164 F.3d 634,
640 (D.C. Cir. 1999) (holding that a district court had juris-
diction under similar circumstances).
We do not transfer but instead dismiss the petition as
to the administrative judge’s initial decision in SF-844E-
22-0380-I-1. Because there is no indication that matter is
a mixed case, we would have jurisdiction except the Board
has not yet issued a “final decision,” 28 U.S.C. § 1295(a)(9),
given Mr. Goodrich’s pending timely petition with the
Board. See 5 C.F.R. § 1201.113(a) (“The initial decision will
not become the Board’s final decision if within the time
limit for filing . . . any party files a petition for re-
view . . . .”). We therefore dismiss that matter as prema-
ture.*
* There are two potential paths to this court’s ulti-
mate review of a final decision in SF-844E-22-0380-I-1.
Mr. Goodrich may wait for a final determination from the
full Board on his petition for Board review, at which point
Mr. Goodrich may seek this court’s review by filing a timely
petition for review with this court. Alternatively, Mr.
Goodrich may file a motion at the Board to withdraw his
petition pursuant to the June 2022 policy specified on the
Board’s website. See https://www.mspb.gov/ap-
peals/files/Policy_Regarding_Withdrawal_of_a_Peti-
tion_for_Review_1515773.pdf (last visited May 25, 2023).
Under that policy, the Clerk of the Board may grant re-
quests to withdraw a petition for review when there is no
apparent issue of untimeliness of the petition and no other
party objects to the withdrawal. When the Clerk grants a
Case: 23-1536 Document: 21 Page: 3 Filed: 06/14/2023

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GOODRICH v. ARMY 4
Accordingly,
I T I S O RDERED T HAT :
(1) The court transfers the petition as applied to PH-
0752-21-0270-I-1 and all transmittals to the United States
District Court for the Western District of Washington pur-
suant to 28 U.S.C. § 1631 and dismisses the petition as to
SF-844E-22-0380-I-1.
(2) Each side shall bear its own costs as to the dis-
missed matter.
June 14, 2023
Date
F OR THE COURT
/s/ Jarrett B. Perlow
Jarrett B. Perlow
Acting Clerk of Court
request to withdraw, the order granting the request will be
the final order of the Board for purposes of obtaining judi-
cial review.
Case: 23-1536 Document: 21 Page: 4 Filed: 06/14/2023

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