Appealed from: Merit Systems Protection Board
Before Mayer, Chief Judge, *fn1 * Schall, and Bryson, Circuit Judges.
The opinion of the court was delivered by: Schall, Circuit Judge.
Leroy T. Austin seeks review of the final decision of the Merit Systems Protection Board (Board), dismissing his petition for review for lack of jurisdiction. See Austin v. United States Postal Serv., 72 M.S.P.R. 31, 34 (1996). Because we conclude that the Board had jurisdiction to consider the petition, we reverse and remand.
This is a mixed case. A mixed case is an appeal to the Board from an adverse personnel action, coupled with an allegation that the action was based on prohibited discrimination. See 5 U.S.C. § 7702 (1994). *fn2 An employee may initiate a mixed case directly with the Board and seek a decision on both the appealable action and the discrimination claim. See 5 U.S.C. § 7702(a)(1). The review rights that follow the Board's Disposition of a mixed case differ from an ordinary personnel case in that the employee may appeal to the Equal Employment Opportunity Commission (EEOC).
After an administrative Judge (AJ) issues an initial decision in a mixed case and the initial decision becomes the final decision of the Board, see 5 U.S.C. § 7701(e); 5 C.F.R. § 1201.113, the employee may file a petition for review with the EEOC. See 5 U.S.C. §§ 7701(e)(1), 7702(b); 5 C.F.R. § 1201.163. If the employee seeks review before the EEOC and the EEOC agrees to consider the decision, the EEOC can concur in the Board's final decision, or it can issue a new final decision. *fn3 See 5 U.S.C. § 7702(b). Once the EEOC concurs in a final decision of the Board, the decision becomes judicially reviewable in federal district court. See 5 U.S.C. § 7702(b)(5)(A). The Board then has no further jurisdiction to review the matter. See Williams v. United States Postal Serv., 967 F.2d 577, 579 (Fed. Cir. 1992).
An alternative that is not available in a mixed case is an appeal to this court. We are not empowered to decide discrimination claims in mixed cases. See 5 U.S.C. § 7703(b). If an individual wishes to appeal to this court from an unfavorable decision in a mixed case, he must abandon his discrimination claim and proceed before us solely with respect to the adverse personnel action. See Daniels v. United States Postal Serv., 726 F.2d 723, 724 (Fed. Cir. 1984). However, we do have authority to entertain an appeal in a case such as this, where the sole issue is whether the Board erred in dismissing a mixed case for lack of jurisdiction. See King v. Lynch, 21 F.3d 1084, 1089 (Fed. Cir. 1994); Ballentine v. Merit Sys. Protection Bd., 738 F.2d 1244, 1247-48 (Fed. Cir. 1984).
The issue in this case is whether the Board has jurisdiction to review an AJ's initial decision when a petition for review is timely filed with the Board, but the EEOC issues a decision Concurring in the initial decision before the Board acts on the petition. Insofar as they relate to the issue of the Board's jurisdiction, the underlying facts are not in dispute.
Effective June 20, 1995, Mr. Austin was removed from his position as a distribution clerk with the United States Postal Service (agency) in Valdosta, Georgia. Austin, 72 M.S.P.R. at 32. He appealed the removal to the Board, alleging, inter alia, that the agency had discriminated against him on the basis of race. Id. The case was assigned to an AJ who, on October 30, 1995, issued an initial decision affirming the removal action. Id. On December 1, 1995, Mr. Austin timely requested an enlargement of time for filing a petition for review with the Board. See id.; see also 5 C.F.R. §§ 1201.113(d), 1201.114(e). The enlargement request was granted, and Mr. Austin was informed that the initial decision would become the Board's final decision if he did not file a petition for review by December 29, 1995. Austin, 72 M.S.P.R. at 32.
On December 26, 1995, Mr. Austin's attorney mailed a petition for review to the Board. Id. at 33. However, the Board did not receive the document. Id. Also on December 26th, Mr. Austin's attorney petitioned the EEOC, asking it to review what was described as a final decision of the Board (but what was actually only the AJ's initial decision). Id. at 32-33. On February 2, 1996, the Clerk of the Board received notice from the EEOC that Mr. Austin had filed a petition for review with the EEOC. Austin, 72 M.S.P.R. at 32. Because the Board had not received Mr. Austin's petition for review, the Clerk of the Board believed that the AJ's initial decision of October 30th had by that time become the final decision of the Board. Consequently, on February 9, 1996, he forwarded a copy of the AJ's decision and the record in the case to the EEOC. Id.
On February 13, 1996, Mr. Austin's attorney sent a letter to the EEOC, stating that he had submitted a petition for review to the Board. Id. at 33. On June 4, however, the EEOC issued a final decision in which it concurred in the AJ's initial decision. Id. In its decision, the EEOC noted that although Mr. Austin claimed that he had filed a petition for review with the Board, there was no record of any such petition. Austin, 72 M.S.P.R. at 33.
After receiving the EEOC's decision, Mr. Austin's attorney filed a sworn statement with the Board in which he attested that he had timely filed a petition for review with the Board on December 26, 1995. Id. Faced with the sworn statement, the Board found that Mr. Austin had "timely filed a petition for review with the Board on December 26, 1995." Id. It nevertheless concluded that the EEOC's issuance of a final decision during the period when it appeared that Mr. Austin had decided to forego further proceedings before the Board ...