Case: 12-3204     Document: 38    Page: 1   Filed: 05/03/2013




           NOTE: This order is nonprecedential.

   United States Court of Appeals
       for the Federal Circuit
                 __________________________

                       JOHN DOE,
                        Petitioner,
                             v.
                DEPARTMENT OF JUSTICE,
                      Respondent.
                 __________________________

                         2012-3204
                 __________________________

    Petition for review of the Merit Systems Protection
 Board in No. CH0752090404-I-1.
               __________________________

                       ON MOTION
                 __________________________

    Before LOURIE, BRYSON, and MOORE, Circuit Judges.

 LOURIE, Circuit Judge.
                          ORDER
     In light of John Doe’s and the Department of Justice’s
 responses to this court’s show cause order, we consider
 whether this case should be dismissed or transferred to a
 district court pursuant to 28 U.S.C. § 1631.
Case: 12-3204      Document: 38   Page: 2    Filed: 05/03/2013




 JOHN DOE V. DOJ                                           2

     John Doe previously moved for a stay of the remand
 proceedings ordered by the Merit Systems Protection
 Board or, in the alternative, for a writ of mandamus to
 direct the Board to reinstate him and to award back pay
 and attorney fees. The Department of Justice opposed
 and moved to dismiss Doe’s petition for review for lack of
 jurisdiction. Doe replied and opposed dismissal. The
 Department of Justice replied.
     In response to those motions, this court ordered the
 parties to respond why this case should not be dismissed
 or transferred to a district court, in light of the Supreme
 Court’s recent decision of Kloeckner v. Solis, ___ U.S. ___,
 133 S. Ct. 596 (2012). In Kloeckner, the Supreme Court
 held that a federal employee who claims that an agency
 action appealable to the Merit Systems Protection Board
 violates an antidiscrimination statute listed in 5 U.S.C.
 § 7702(a)(1) should seek judicial review in district court,
 not in the Federal Circuit. Id. This case involves an
 agency action removal that the employee “may appeal to
 the Merit Systems Protection Board,” and in which the
 applicant “alleges that a basis for the action was discrim-
 ination[.]” 5 U.S.C. § 7702(a)(1). Judicial review is there-
 fore assigned to the district court. See Conforto v. Merit
 Sys. Prot. Bd., __ F.3d __, No. 2012-3119 (Fed. Cir. Apr.
 18, 2013) (Federal Circuit has jurisdiction if underlying
 action would not be appealable to the Merit Systems
 Protection Board).
     The Department of Justice argues that dismissal is
 required because judicial review is only appropriate for a
 final board order, and it argues that the order from which
 Doe appeals is not final. Doe argues that transfer is
 appropriate, in light of Kloeckner.
     Because Kloeckner is clear that judicial review of a
 Board decision in a mixed case, such as this, that includes
 a discrimination claim, is assigned to the district court,
 rather than this court, we agree with Doe that transfer is
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 3                                             JOHN DOE V. DOJ

 the appropriate remedy. The Department of Justice may
 raise its arguments regarding the finality of the Board
 decision in the district court.
       Upon consideration thereof,
       IT IS ORDERED THAT:
     (1) This appeal is transferred to the United States
 District Court for the District of Columbia pursuant to 28
 U.S.C. § 1631.
     (2) The motions to stay the remand proceedings and
 for writ of mandamus are moot.
       (3) All other pending motions are moot.


                                       FOR THE COURT


                                       /s/ Jan Horbaly
                                       Jan Horbaly
                                       Clerk

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