Gerald Mitchell v. Merit Systems Protection Board

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GERALD MITCHELL,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-2152
______________________
Petition for review of the Merit Systems Protection
Board in Nos. AT-0831-19-0078-I-1 and AT-844E-13-3694-
I-1.
______________________
Before D YK, WALLACH , and CUNNINGHAM , Circuit Judges.
P ER CURIAM .
O R D E R
In response to the court’s December 8, 2023 order to
show cause, the Merit Systems Protection Board urges
transfer of Gerald Mitchell’s petition for review with re-
spect to MSPB Docket No. AT-844E-13-3694-I-1 and dis-
missal with respect to No. AT-0831-19-0078-I-1. Mr.
Mitchell opposes dismissal and moves for various relief.
In No. AT-844E-13-3694-I-1, Mr. Mitchell challenged
the Office of Personnel Management’s decision denying
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MITCHELL v. MSPB 2
him disability retirement benefits, alleging discrimination
on the basis of his disability. In 2013, the administrative
judge dismissed the appeal for lack of jurisdiction when
OPM rescinded the challenged decision.
In 2018, Mr. Mitchell filed No. AT-0831-19-0078-I-1 to
challenge OPM’s alleged discriminatory and retaliatory
failure to respond to his requests for information and doc-
uments related to his disability retirement benefits. In
April 2019, the Board’s administrative judge dismissed the
appeal for lack of jurisdiction. Mr. Mitchell then filed sep-
arate petitions for Board review in both cases.
On May 1, 2023, the Board joined the two petitions for
administrative convenience, dismissed the petition as to
No. AT-844E-13-3694-I-1 as untimely, and denied the peti-
tion as to No. AT-0831-19-0078-I-1, affirming the dismissal
in that case. On July 10, 2023, this court received Mr.
Mitchell’s petition seeking judicial review of the Board’s
May 1, 2023 decision. Mr. Mitchell’s filings here state that
he wishes to pursue judicial review of his discrimination
claims.
As to No. AT-844E-13-3694-I-1, we agree with the
Board that we lack jurisdiction. Federal district courts, not
this court, have jurisdiction over “[c]ases of discrimination
subject to the provisions of [5 U.S.C.] § 7702,” i.e., “mixed
cases” involving adverse personnel actions appealable to
the Board and allegations of covered discrimination.
5 U.S.C. § 7703(b)(2); Perry v. Merit Sys. Prot. Bd., 582 U.S.
420, 432 (2017); Ash v. Off. of Pers. Mgmt., 25 F.4th 1009,
1011 (Fed. Cir. 2022).
Given Mr. Mitchell’s ongoing pursuit of discrimination
claims in No. AT-844E-13-3694-I-1, that case is outside our
jurisdiction. We conclude that transfer to the United
States District Court for the District of Columbia is appro-
priate under 28 U.S.C. § 1631. See 42 U.S.C. § 2000e-5(f)(3)
(providing that discrimination cases brought pursuant to 5
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MITCHELL v. MSPB 3
U.S.C. § 7702 “may be brought within the judicial district
in which the respondent has his principal office.”).
As to No. AT-0831-19-0078-I-1, we dismiss. Under cur-
rent precedent, the filing deadline is mandatory and juris-
dictional. See Fedora v. Merit Sys. Prot. Bd., 848 F.3d
1013, 1016 (Fed. Cir. 2017). Here, Mr. Mitchell’s petition
was received outside of that deadline. Even assuming eq-
uitable tolling is available, Mr. Mitchell has shown no basis
for tolling here based only on a vague recollection of “some
technical issue(s) with his computer system and/or printer
and scanner and/or internet,” or “something of that nature”
and “difficulty figuring out how to make thing[s] happen
using the FedEx Office Store equipment.” ECF No. 20 at 1.
Accordingly,
I T I S O RDERED T HAT :
(1) MSPB Docket No. AT-844E-13-3694-I-1 is trans-
ferred to the United States District Court for the District
of Columbia pursuant to 28 U.S.C. § 1631.
(2) This matter is dismissed as to MSPB Docket No.
AT-0831-19-0078-I-1.
(3) All pending motions are denied.
March 26, 2024
Date
F OR THE COURT
Case: 23-2152 Document: 43 Page: 3 Filed: 03/26/2024

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