                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                            No. 11-11839               NOVEMBER 22, 2011
                        Non-Argument Calendar              JOHN LEY
                                                             CLERK
                      ________________________

                D.C. Docket No. 2:10-cv-00761-MHT-WC

BUTLER B. BROWDER,

                                                          Plaintiff-Appellant,

                                 versus

POSTMASTER GENERAL, U.S. POSTAL SERVICE,

                                                         Defendant-Appellee.

                    __________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     _________________________

                          (November 22, 2011)

Before EDMONDSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
      Butler E. Browder, proceeding pro se, appeals from the district court’s

dismissal of his complaint for lack of subject matter jurisdiction.

      Browder, a 37-year employee of the U.S. Postal Service, sued the

Postmaster General (1) alleging race discrimination and retaliation in violation of

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e to

2000e-17, and (2) seeking enforcement of Browder’s 2006 settlement agreement

with the Postal Service that resolved his earlier employment-discrimination

claims. The U.S. Merit Systems Protection Board (“MSPB”) concluded that the

Postal Service did not breach the 2006 settlement agreement and denied

Browder’s petition to enforce the agreement. Browder then filed this complaint

alleging that the Postal Service breached the settlement agreement and that, as a

result, he is entitled to pursue his underlying employment-discrimination claims.

After review, we conclude that the district court properly dismissed this action for

lack of subject matter jurisdiction.

                      I. PROCEDURAL BACKGROUND

A. 2006 Settlement Agreement

      In late 2005 or early 2006, Browder complained of race-discrimination in

his Montgomery, Alabama mail facility. In February 2006, the Postal Service

fired Browder based on certain misconduct. Browder then filed with the Postal

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Service an administrative Equal Employment Opportunity complaint alleging race-

discrimination and retaliation. On July 31, 2006, the Postal Service found no

discrimination or retaliation with respect to Browder’s discharge. On August 21,

2006, Browder appealed to the MSPB.

      While Browder’s MSPB appeal was pending, the National Postal Mail

Handlers Union pursued a contractual grievance on Browder’s behalf. That

grievance was submitted to arbitration, and in November 2006, the arbitrator

sustained Browder’s discharge.

      On December 4, 2006, while Browder’s MSPB appeal was still pending,

Browder and the Postal Service settled Browder’s race-discrimination and

retaliation claims. The tape-recorded, verbal agreement provided for Browder’s

reinstatement and his retirement under specified conditions, and for the dismissal

of Browder’s MSPB appeal and all of his other grievances. The settlement

agreement also provided that Browder would be permitted to use his accrued sick

leave before his retirement became effective and that his unused annual leave

would be credited in a cash award. An administrative law judge (“ALJ”) read

aloud these terms into the MSPB record. The ALJ found the settlement agreement

valid and dismissed Browder’s MSPB appeal.




                                         3
      Later that same day, Browder attempted to file a pleading with the ALJ to

set aside the settlement agreement.1 Eight days later, Browder filed a petition,

challenging the validity of the settlement agreement, before the full board of the

MSPB. The full board of the MSPB denied Browder’s petition in March 2007.

Browder then appealed the MSPB’s ruling to the Equal Employment Opportunity

Commission, which found that it lacked jurisdiction to review a settlement

agreement executed before the MSPB.

B. Browder’s 2007–2008 Lawsuit

      Proceeding pro se, Browder sued the Postmaster General in the U.S. District

Court for the Middle District of Alabama in June 2007. Browder’s 2007

complaint alleged retaliatory discharge and race-discrimination, in violation of

Title VII. The Postal Service moved to dismiss, arguing that the settlement

agreement deprived the district court of jurisdiction to hear Browder’s claims. In

response, Browder claimed that the settlement agreement was invalid because it

was not in writing and the Postal Service coerced him into accepting it.

      In March 2008, the district court adopted the magistrate judge’s report and

recommendation (“the report”) and dismissed Browder’s complaint for lack of

subject matter jurisdiction. Browder v. Potter, No. 2:07-CV-546-MEF, 2008 WL

      1
          The record does not indicate what action, if any, the ALJ took on Browder’s filing.

                                                 4
822132, at *5 (M.D. Ala. Mar. 26, 2008) (unpublished). The report explained that

the district court has jurisdiction to hear a federal employee’s Title VII claim only

if the employee has exhausted his administrative remedies against the federal

employer. Id. at *4 (citing Brown v. Gen. Servs. Admin., 425 U.S. 820, 832, 96 S.

Ct. 1961, 1967 (1976)). Because Browder settled his claims before the MSPB

ruled on his appeal, he failed to exhaust his administrative remedies. Id. at *5.

      Alternatively, the district court dismissed Browder’s 2007 complaint

because the MSPB did not resolve Browder’s discrimination claims on the merits.

Id. at *6. Under 5 U.S.C. § 7702 and § 7703, the district court has limited

jurisdiction to review MSPB rulings, but only if the employee’s claim is based in

whole or in part on discrimination (termed a “mixed case”) and the MSPB resolves

the “mixed case” on the merits. Id. at *4–5; see Ballentine v. Merit Systems

Protection Bd., 738 F.2d 1244, 1246 (Fed. Cir. 1984); see also 29 C.F.R.

§ 1614.302(a) (defining a “mixed case complaint” as a complaint of employment

discrimination “related to or stemming from an action that can be appealed” to the

MSPB). Generally speaking, after proceeding to the MSPB, a federal employee

must file any further appeal with the Court of Appeals for the Federal Circuit. 5

U.S.C. § 7703(b)(1). Due to the settlement agreement, the MSPB had not

addressed the merits of Browder’s discrimination claims. Accordingly, the district

                                          5
court dismissed Browder’s complaint in March 2008. Lacking subject matter

jurisdiction, the district court did not reach Browder’s challenges to the validity of

the settlement agreement. Browder, 2008 WL 822132 at *6 n.4. Browder did not

appeal this dismissal.

C. 2009 Petition to Enforce

       In 2009, before the MSPB, Browder filed a petition to enforce the 2006

settlement agreement entered into before the MSPB. Browder claimed that the

Postal Service had breached the settlement agreement by not permitting Browder

to use his sick leave prior to retiring and by not crediting his unused annual leave

in a cash award. In December 2009, the ALJ denied Browder’s petition on

grounds that (1) the Postal Service had not breached the agreement, and (2)

Browder’s voluntary actions made the Postal Service’s compliance impossible.2

       2
          The Postal Service did not credit Browder’s accrued annual or sick leave, per the terms
of the settlement agreement. The ALJ explained that Browder, before entering into the
December 2006 settlement agreement, had already signed the paperwork to retire and had chosen
March 6, 2006 as his effective retirement date, as follows:
                It is undisputed that, even prior to entering into the [settlement] agreement, on
        October 24, 2006, [Browder] completed the necessary paperwork to retire. Inasmuch as
        [Browder] was absent from work and not in a pay status for a lengthy period of time, he
        backdated his retirement date by designating March 6, 2006, as the effective date of his
        retirement. [Browder] submitted the paperwork to the [Postal Service] such that the [Postal
        Service] received the paperwork just four days after the settlement agreement. In response,
        the [Postal Service] sent to [Browder] an “Acknowledgment of Understanding” that stated
        the retirement date as March 6, 2006. [Browder] does not dispute that he both signed the
        “Acknowledgment of Understanding” and placed his initials (BBB) next to the retirement
        date of March 6, 2006.
Because Browder himself made his retirement effective as of March 6, 2006, the Postal Service

                                                6
The full board of the MSPB denied Browder’s petition for review of the ALJ’s

decision.

D. This 2010 Lawsuit

       In September 2010, Browder again sued the Postmaster General in the U.S.

District Court for the Middle District of Alabama. In his complaint, Browder

again alleged that the Postal Service discriminated and retaliated against him, in

violation of Title VII, and breached the settlement agreement by not crediting his

accrued sick and annual leave. On February 24, 2011, the magistrate judge issued

a report and recommendation concluding that, given the earlier lawsuit, Browder’s

discrimination claims were barred by the doctrine of issue preclusion. In addition,

the magistrate judge determined that the district court lacked jurisdiction over

Browder’s discrimination claims for the same reasons it lacked jurisdiction over

his 2007 claims: Browder had settled those claims and failed to exhaust his

administrative remedies, and the MSPB had not decided Browder’s “mixed case”

discrimination claim on the merits.

       The magistrate judge also recommended dismissing on jurisdictional


could not add sick-leave time to his service time in December 2006, after he had already retired
effective March 2006. As a result, the ALJ concluded that Browder’s actions rendered
compliance by the Postal Service impossible and “cancelled the benefit of his bargain in the
settlement agreement.”


                                                7
grounds Browder’s claim that the Postal Service breached the settlement

agreement. Browder’s challenge to the settlement agreement was not a “mixed

case,” but was an improper appeal of the MSPB’s order denying his petition to

enforce the settlement agreement. Because the district court has jurisdiction to

review only “mixed case[s]” decided on the merits by the MSPB, the district court

lacked jurisdiction to hear Browder’s claims with respect to the settlement

agreement. See Ballentine,738 F.2d at 1246; see also 29 C.F.R. § 1614.302(a).

The district court adopted the magistrate judge’s report and recommendation, and

Browder timely appealed.3

                                      II. DISCUSSION

       A federal employee must pursue and exhaust administrative remedies before

filing an action under Title VII. Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th

Cir. 1999). The MSPB is “an administrative agency that has jurisdiction over

specified adverse employment actions affecting federal civil servants, including

terminations, demotions, and suspensions.” Chappell v. Chao, 388 F.3d 1373,

1375 (11th Cir. 2004) (internal quotation marks omitted); 5 U.S.C. § 7512

(detailing adverse employment actions subject to the MSPB’s jurisdiction). A



       3
          We review de novo a district court’s dismissal of a complaint for lack of subject matter
jurisdiction. Dalrymple v. United States, 460 F.3d 1318, 1324 (11th Cir. 2006).

                                                 8
federal employee who alleges that an appealable adverse action was based in

whole or in part on discrimination presents a “mixed case” that may be appealed

directly to the MSPB. Chappell, 388 F.3d at 1375; 5 U.S.C. § 7702(a)(1)(B)

(providing that the MSPB shall decide issues of discrimination that accompany

actions otherwise appealable to the MSPB); 29 C.F.R. § 1614.302(a).

      Except for cases including discrimination claims, a petition to review a final

decision of the MSPB “shall be filed” in the U.S. Court of Appeals for the Federal

Circuit. 5 U.S.C. § 7703(b). However, if the MSPB rejects an employee’s claims

in a mixed case, the employee may either (1) appeal the discrimination claim to the

EEOC; (2) appeal the entire case or any part thereof to the appropriate district

court; or (3) waive the discrimination claim and appeal to the Federal Circuit. Id.

§§ 7702(a)(1), 7703(b); 5 C.F.R. §§ 1201.157, 1201.175. Unless the

discrimination claim and the appealable action have been decided on the merits by

the MSPB, an employee has no statutory right to a trial de novo in a district court.

Ballentine, 738 F.2d at 1246.

      Browder’s instant complaint stemmed from an enforcement action that he

had filed with the MSPB, in which he contended that the Postal Service had

breached the settlement agreement. The MSPB found that the Postal Service had

not breached the agreement, and in so ruling, never addressed Browder’s

                                          9
underlying discrimination claims on the merits. As such, the district court lacked

jurisdiction to review the MSPB’s final decision, and Browder’s sole avenue for

relief was to appeal to the Federal Circuit. See 5 U.S.C. §§ 7702(a)(1), 7703(b).

Accordingly, the district court properly dismissed Browder’s complaint for lack of

subject matter jurisdiction.

                               III. CONCLUSION

      Upon review of the entire record on appeal, and after consideration of the

parties’ briefs, we affirm.

      AFFIRMED.




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