Albert P. Schultz v. Merit Systems Protection Board

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALBERT P. SCHULTZ,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3142
______________________
Petition for review from the Merit Systems Protection
Board in No. PH0752940233-A-6.
______________________
ON MOTION
______________________
Before L OURIE, O'MALLEY , AND REYNA, Circuit Judges.
O'MALLEY , Circuit Judge.
O R D E R
The Merit Systems Protection Board moves to trans-
fer this appeal to the United States District Court for the
Western District of Pennsylvania in light of the United
States Supreme Court’s decision in Kloeckner v. Solis, No.
133 S.Ct. 596 (2012). Albert P. Schultz opposes.
Case: 12-3142 Document: 34 Page: 1 Filed: 09/17/2013

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ALBERT SCHULTZ v. MSPB 2
This appeal has its genesis in an appeal to the Board
alleging that United States Postal Service (“agency”)
discriminated against Schultz based upon his physical
and mental disabilities in a constructive suspension and
subsequent removal. The Board agreed with Schultz’s
claim and reversed both the constructive suspension and
removal actions and awarded Schultz back pay. Schultz
and the agency entered into a settlement agreement
resolving all issues and claims against the agency except
for the proper amount of back pay. Schultz filed suit in
the district court for back pay and the district court
calculated the amount owed. Schultz then filed a motion
for attorney fees with the district court. The district court
ultimately awarded Schultz fees that excluded fees in-
curred during Board proceedings. Schultz then filed a
petition for attorney fees before the Board. The full Board
dismissed Schultz’s petition for fees incurred during the
removal appeal as untimely filed without good cause
shown for the delay. The Board denied Schultz’s petition
for fees incurred during the compliance matter for lack of
entitlement. Schultz petitioned this court for review.
Before the court is the Board’s motion to transfer the
petition for review to the district court. In Kloeckner, the
Supreme Court addressed the proper forum for an appeal
from the Board in a mixed case.1 The Court held in no
uncertain terms that such appeals were to be brought to
the district courts:
A federal employee who claims that an
agency action appealable to the [Board] vio-
lates an antidiscrimination statute listed in
[5 U.S.C.] §7701(a)(1) should seek judicial
review in district court, not in the Federal
1 A “mixed case” is one in which “an employee com-
plains of a personnel action serious enough to appeal to
the [Board] and alleges that the action was based on
discrimination.” Id. at 601.
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ALBERT SCHULTZ v. MSPB 3
Circuit. That is so whether the Board decid-
ed her case on procedural grounds or instead
on the merits.
Id. at 607.2
Schultz argues that Kloeckner does not apply to his
appeal because he is appealing the dismissal of his peti-
tion for attorney fees, not the merits of his original claim
against the agency. Schultz also contends that this action
relates to and arises from a settlement agreement be-
tween the parties and thus the underlying enforcement
action is substantively an action for money damages and
is encompassed by the Tucker Act. As a result, if the
appeal is to be transferred at all, Schultz asserts it is to be
transferred to the United States Court of Federal Claims.
We disagree.
The petition for attorney fees stems from a mixed
case. Schultz initially alleged discrimination based on
physical and mental disabilities. The Supreme Court’s
Kloeckner decision is not ambiguous: a federal employee
should seek judicial review in district court, not in this
court, when he claims that an agency action violates an
antidiscrimination statute. Id.
Pursuant to 28 § U.S.C. § 1631, this court is author-
ized to transfer a case to a court in which the appeal could
have been brought at the time it was filed or noticed, here
the United States District Court for the Western District
2 In Conforto v. Merit System Protection Board, No.
713 F.3d 1111 (Fed. Cir. 2013), we explained that Kloeck-
ner did not affect our prior caselaw regarding the Board’s
jurisdictional dismissals, and that this court has jurisdic-
tion over a petition when the Board dismisses for lack of
jurisdiction. Here, Schultz’s petition for attorney fees was
not dismissed on jurisdictional grounds.
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ALBERT SCHULTZ v. MSPB 4
of Pennsylvania. The district court would have jurisdic-
tion over this case pursuant to 5 U.S.C. § 7703(b)(2).
Accordingly,
I T I S O RDERED T HAT :
(1) The motion is granted and the appeal is trans-
ferred to the United States District Court for the Western
District of Pennsylvania pursuant to 28 U.S.C. § 1631.
(2) The Board’s motion to stay the appeal pending the
Supreme Court’s decision in Kloeckner v. Solis, No. 133
S.Ct. 596 (2012), is denied as moot.
F OR THE COURT
/s/ Daniel E. O'Toole
Daniel E. O'Toole
Clerk
s25
ISSUED AS A MANDATE: September 17, 2013
Case: 12-3142 Document: 34 Page: 4 Filed: 09/17/2013

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